Publicly accessible common property: Contested vertical spaces

By Dr Janette Corcoran

Vertical villages are familiar with the challenges of common property, but might these spaces be more contested than we think?

Collectively owned by lot owners, common property includes items such as gardens, passages, pathways, driveways, stairs, lifts, foyers and fences. And as we high-rise dwellers are aware, there are many and varied challenges that come with common property, with issues of access, maintenance and alterations featuring all too frequently at our visits to VCAT. 

However, we vertical villagers may not be the only ones entitled to utilise our common property. 

It has come as a surprise to many a new owner that their common property may also be accessible to the public. 

Known as “publicly accessible, privately-owned”, these are resources which (as the label suggests) are open to the public, despite being private property.

In terms of our vertical villages, we have several different types of public-private resources, with the most common being publicly accessible spaces. These can include our external stairways, passageways, parklets and play areas. And as they are our common property, the owners’ corporations (OCs) typically pay for cleaning and maintenance, which can be costly if these spaces are in high use with significant wear and tear.   

Next is the public art placed in our vertical villages. The rationale is that public art provides numerous benefits for the community (as well as the developer and property owner), contributing to the cultural, social, physical and economic life of the city. However, agreements negotiated by developers may see vertical villages required to ensure ongoing access to these pieces, while also bearing the “reasonable costs” of cleaning and maintaining these public artworks.   

A third type of public-private resource in our vertical villages are public facilities, such as toilets and drinking fountains. While these may be less common, this category makes up for this by being much more problematic. Horror stories of escalating cleaning costs, repairs and security shows this type of public-private resource as very onerous to manage and burdensome to fund. 

So, why the demand for public-private resources in vertical villages? 

From a government’s perspective, this is a viable solution to their dwindling municipal budgets. By having a developer “squeeze” a public resource into a small part of a project, simultaneously solves their problems of finding available space and funding for installation and ongoing maintenance.  

However, the public’s perspective is often less rosy. Issues raised here stem from the ongoing debate about the “proper” public-private divide, with claims that the private provision of public resources erodes the public realm. Locally there are criticisms that many of these spaces in the CBD are not discoverable and/or not easily accessible. There are also questions over the owners’ ability to restrict use of these resources, such as requiring certain behaviours or denying access at certain times (e.g. for private functions).  

This now goes to the terms of the agreement – and how well these have been negotiated!

In the case of commercial developments, these agreements are undertaken by the developer, typically in conjunction with the building owner and/or major tenants. As these parties will have ongoing involvement with satisfying the conditions of their agreement, it is understandable that care will be taken to ensure a well-considered arrangement is struck. 

However, the situation is different for residential buildings. As our OCs are not yet operating, it is the developer who negotiates the agreements, which are then passed onto the OC and subsequent owners. Regrettably, this has seen many onerous conditions placed on apartment buildings, which have to be borne by the OC. 

However, some OCs are beginning to ask whether these overly burdensome arrangements can be changed. Vertical villages (unlike commercial offices) are not revenue generating.  The money to operate, maintain, repair and update comes directly from the pockets of the owners – not operating businesses •

The question is being asked – “why should some private residents directly pay for maintaining public assets?” 

And as repair and replacement costs continue to escalate, this may well be the next vertical village hot litigation topic! •

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