ARMSTRONG-BURGIN and THE OWNERS OF COLLERAN COURT - STRATA PLAN 7199
[2005] WASAT 188
•1 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: ARMSTRONG-BURGIN and THE OWNERS OF COLLERAN COURT - STRATA PLAN 7199 [2005] WASAT 188
MEMBER: MR T CAREY (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 1 AUGUST 2005
FILE NO/S: STR 143 of 2004
BETWEEN: MONIQUE ARMSTRONG-BURGIN
Applicant
AND
THE OWNERS OF COLLERAN COURT - STRATA PLAN 7199
Respondent
Catchwords:
Real property - Strata Titles - Decking constructed on common property - Practice for construction and work to be carried out on common property on receipt of verbal consents from other proprietors - Objection by one of the proprietors to proposed decking - Whether effective refusal of strata company to consent to proposal unreasonable for purposes of s 85 of Strata Titles Act 1985 (WA) - Strata Plan 7199
Legislation:
State Administrative Tribunal Act 2004 (WA), s 11, s 60(2), s 167
Strata Titles Act 1985 (WA), s 7, s 7B, s 35(1), s 85
Result:
Application successful
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant wishes to construct wooden decking on an area which, in common with all lots in the strata scheme, has the appearance of the backyard of her lot, but which in fact is part of the common property. The proposed construction was objected to by the owner of the lot which adjoins the applicant's lot.
The practice had developed for owners seeking alterations to their "backyards" to obtain the informal consent of other owners, without strict adherence to the requirements of the relevant legislation. This had occurred in relation to earlier works undertaken by the applicant in relation to the same area and also in the case of other owners.
The Tribunal decided that in the absence of a cogent reason for objection, the proposed alteration should be permitted in accordance with the agreed practice. It considered and rejected each of the objections raised against the proposal and made an order that the strata company consent to it.
History of application
This application was originally made to the Strata Titles Referee. Subsequent to the commencement of the Tribunal on 1 January 2005, it was transferred to the Tribunal pursuant to s 167 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The application was commenced in the name of Matthew Christopher Burgin. On the Tribunal drawing to the attention of the persons concerned that the registered proprietor of lot 1 was not Mr Burgin, but Monique Petra Armstrong, the application was amended to show Monique Armstrong-Burgin (the same person) as the applicant.
I have been nominated to constitute the Tribunal pursuant to s 11 of the SAT Act. I have read and considered all of the documents filed by the parties, and consider that it is appropriate for the matter to be determined entirely on the basis of those documents in accordance with s 60(2) of the SAT Act.
The plan
Strata Plan 7199 (plan) was registered on 17 August 1979 pursuant to the Strata Titles Act 1966 (WA) (1966 Act). The 1966 Act was repealed by the Strata Titles Act 1985 (Act), which continues to be the relevant Act.
Parcel
The parcel is situated at 20 Colleran Way, Booragoon. The parcel includes five lots, comprising lots 1 and 2, the main accommodation buildings of which are adjoining, and each of which has a second storey; lot 3, the accommodation building of which is free standing; and lots 4 and 5, the accommodation buildings of which are adjoining. Each lot includes an external storage facility. Although the strata plan indicates with broken lines an outside area and carport as appurtenant to each lot, no exclusive use by‑law in respect of these areas has ever been passed, and the applicant accepts that they do not in fact form part of the lot and are common property. However, fences have been constructed creating de facto backyards for all of the lots.
Application
The applicant seeks the following order under s 85 of the Act:
"… an order that the Colleran Court Strata Company give consent to the proposal by applicant for the construction of the decking on common property. The order will express that costs associated with the alterations to be the responsibility of lot one".
Proposed alteration to common property
The alteration which is proposed by the applicant, the construction of which commenced until the objection of the owner of neighbouring lot 2, is an area of decking measuring 3.8 metres by 2.7 metres situated in the de facto backyard area of lot 1 abutting the fence between the backyards of lot 1 and lot 2. The decking is designed as a continuation of an existing pergola, which itself is constructed on the common property.
On or about 26 May 2005, the applicant secured planning approval for the proposed decking from the City of Melville, subject to the special condition that it be screened/modified to comply with a particular privacy requirement in the Residential Design Codes of Western Australia. According to the applicant, the special condition will be satisfied by increasing the height of the existing fence where it abuts the decking.
Relevant statutory provisions
The strata company is entrusted with the management of common property in strata schemes. Section 35(1) of the Act, insofar as it is relevant, provides:
"(1)A strata company shall ‑
(a)enforce the by‑laws;
(b)control and manage the common property for the benefit of all the proprietors;
(c)keep in good and serviceable repair, properly maintain and, where necessary, renew and replace ‑
(i)the common property, including the fittings, fixtures and lifts used in connection with the common property; and
(ii)any personal property vested in the strata company,
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause …"
Section 85, under which the applicant brings her application, provides:
"Where, pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates has unreasonably refused to consent to a proposal by that proprietor ‑
a)to effect alterations to the common property; or
b)…,
it may make an order that the strata company consent to the proposal."
By-laws
The strata company by‑laws are the "standard" by‑laws contained in Sch 1 and Sch 2 of the Act. The person objecting to the proposed decking has made reference in his submissions to the following by‑laws:
•Schedule 1 by‑laws
"1(2)A proprietor, occupier or other resident of a lot shall –
(a)use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other proprietors, occupiers or residents, or of their visitors …"
•Schedule 2 by‑laws
"3.Except with the approval of the Strata Company, a proprietor, occupier or other resident of a lot shall not –
(a)Damage any lawn, garden, tree, shrub, plant or flower upon common property;
(b)Use any portion of the common property for his own purposes as a garden.
12.A proprietor, occupier or other resident shall not –
(a)…
(b)make undue noise in or about any lot or common property …"
Applicant's submissions
The applicant accepts that inadequacies have arisen in the process followed to secure the approval of the owners of the other lots in the parcel. The misconception has arisen that the procedure which should have been followed is that laid out in s 7 and s 7B of the Act. Those sections explicitly apply to the erection or alteration of structures on a proprietor's lot, not on the common property. The applicant used the framework provided by s 7(5), which provides the grounds on which approval for a structure or alteration of a structure on a lot may be refused. For reasons that will be explained later in these reasons, although s 7(5) is strictly irrelevant to the present matter, in the circumstances of this case it assumes some importance.
By reference to the matters referred to in s 7(5)(b), the applicant contends –
1.The proposed decking will not be visible from outside the lots, with the exception of lot 2. Lots 1 and 2 are adjoining two‑storeyed town houses with greater visibility between them when compared with the remaining units.
2.The proposed alteration is a minor one. Further, in considering whether it will be in keeping with the rest of the development, it is significant that the backyards of all of the five lots in the parcel are different in terms of garden design and complexity, the existence and placement of covered pergolas or gazebos and the like. The decking is the remaining element of the applicant's planned garden and is suitably proportioned to the rest of the backyard area. It will, according to the applicant, appear as though it has "always been there".
3.There is no possibility that the structural soundness of any building will be affected by the decking, nor will it interfere with any easement.
4.As for any suggested contravention of the strata company's by‑laws involved with the use of the proposed decking, the decking would not create any additional privacy or noise issues which do not already exist. The level of the decking will be the same as the existing pergola, which is used for entertaining, but has not been the subject of any complaint from the adjoining owner. The extension of the entertaining area will not of itself create undue noise. The City of Melville's requirement for screening the decking meets the complaint of potential reduction in privacy.
Responses to application
The application was served on the owners of the other four lots in the parcel. Response statements were filed by an owner and/or resident of each of lots 3, 4 and 5, in each case indicating consent to the Tribunal making the order set out in the application. Mr Bing Huang Wang, the owner and/or resident of lot 2, filed a response indicating opposition to the application. Mr Wang also filed, in accordance with a Tribunal direction, a submission relevant to whether the proposed work is in keeping with the building. Mr Wang's submissions included:
1.The applicant did not discuss with him either the landscaping alterations of her backyard (common property) nor the additional decking.
2.The construction of the proposed decking constitutes a "breach of s 35(1)(a) and (b)" of the Act. More accurately expressed, Mr Wang considers that the effective rejection by the strata company of the proposal was consistent with its duties under those paragraphs.
3.Consequences for the strata company's liability insurance cover need to be considered.
4.The additional structure will disturb Mr Wang's enjoyment of his property. In particular, it could cause undue noise, contrary to Sch 2 by‑law 12(b) and intrude on Mr Wang's privacy contrary to Sch 1 by‑law 1(2)(a).
5.The proposal would not be in keeping with the rest of the development. Mr Wang's complaint in this regard included the whole of the landscaping work done to the lot 1 backyard, but also referred to:
(a)the different colours of the deck, fence and patio;
(b)the proposed raising of the height of part of the fence as not being in keeping with the original fences in the complex; and
(c)the applicant had removed shade cloth from the patio at the rear of lot 1, when all patios in the parcel have shade cloth attached.
6.The deck is too close to the fence common to lots 1 and 2, and would not leave space for workmen to carry out maintenance on the fence.
Consideration
As I alluded to earlier, this matter has been beset by a misconception about the nature of the issue raised by the application. Unfortunately, the predicament in which the applicant finds herself arises not because a procedure set out in the Act was not followed, but rather because, common with many strata schemes registered prior to 1985, segments of the parcel which have effectively been cordoned off for the private enjoyment of individual lot owners remains common property. I note that this very issue was discussed at a general meeting of the strata company on 8 December 2004, when the possibilities of merger of common property into lots and conversion to a survey-strata scheme were raised without any agreed solution. I would add the further possibility of an exclusive use by‑law under s 42(8) of the Act.
I am satisfied on the evidence that there has for some years been the practice within the strata company, in cases of an owner proposing works, and in particular structural works, in relation to his/her backyard area of the common property, for the owner to seek and obtain the oral consent of each of the other lot owners. I am satisfied that this was done in the case of the applicant's earlier alterations, which included landscaping, painting the common fence, painting the pergola, building a limestone flower‑bed wall, transplanting plants and putting in lawn. It was also done in the case of the owner of lot 5 in relation to the construction of a gazebo. There is a dispute on the documents as to whether the applicant sought from Mr Wang, and Mr Wang provided, oral consent in relation to the proposal in question. It is not necessary to resolve this factual question. The pertinent fact is that Mr Wang objected to the proposal at the meeting of the strata company on 8 December 2004. Mr Wang's objection is sufficient to constitute a refusal by the strata company of the applicant's proposal to effect operations to the common property, which enlivens the Tribunal's jurisdiction under s 85 of the Act.
Accepting, as I do, that the common property is not the property of individual lot owners except on a tenancy in common basis, and that the strata company has the obligations in relation to the common property set out in s 35(1) of the Act, I believe, in the circumstances of this case, that it is necessary to keep firmly in mind the historical perspective, that is, the previous course of dealing by the lot owners with respect to those parts of the common property which for a number of years have been treated as the backyards of individual lots. Although, as this case demonstrates, a more writing‑based approval procedure would represent an improvement on what has occurred in the past, it seems to me that a particular lot owner should not be permitted to veto any proposed alteration of another owner's backyard in the absence of a cogent reason for doing so. Whether or not a particular reason is cogent can conveniently be assessed by reference to the factors which come into play in the context of proposed structural alterations on individual lots, that is, the factors under s 7(5) of the Act referred to above.
In considering each of those matters, I accept the applicant's submission and reject the respondent's submission. That is to say:
1.I accept that the proposed decking will not be visible from outside the lot, with the exception of Mr Wang's lot 2. That visibility will arise only from the second storey of Mr Wang's lot, and can be discounted on that basis.
2.Although the decking is in the very early stages of construction, and there is no drawing of the completed structure giving a clear indication of its appearance when finished, I accept the applicant's submission that the decking will complement and finish off the redevelopment of her back garden. I note that although Mr Wang included in his submission a suggestion that the redevelopment of lot 1's garden in general and other particular alterations constituted a contravention of Sch 2, by‑law 3, it would appear that he has not taken that matter further. I also accept the applicant's submission as to the deliberate differentiation, as between lots, of styles of garden. Absent any significant problem for any other owner arising from the construction of the decking, the applicant should be permitted to complete her garden project.
3.There is no evidence or suggestion that either the structural soundness of a building or any easement will be compromised by the proposal.
4.I reject the arguments of Mr Wang of likely breaches of by‑laws of the decking is constructed. His argument concerning privacy falls away in light of the consideration of that issue by the City of Melville, which has imposed a particular condition on its planning permit which the applicant accepts. I agree with the applicant's submission that the deck, of itself, does not pose any additional problem in terms of noise when compared with the current situation.
5.The proximity of the deck to the fence is a matter within the provenance of the local government authority. I note that the City of Melville has approved the proposal.
6.In my view, the insurance issue raised by Mr Wang is a red herring. The strata company's duty to insure for public liability in respect of common property continues to apply, despite the de facto exclusive use by each lot owner of his/her backyard. Mr Wang has not demonstrated any particular insurance consequence for the strata company arising from the existence of the decking. That being the case, insurance is not a relevant factor in a consideration of whether or not consent should be granted. However, if merger, conversion to strata‑survey or exclusive use were to be implemented, insurance consequences would, no doubt, be considered in reaching any such decision.
For the above reasons, I consider that the strata company has unreasonably refused to consent to the applicant's proposed alteration and grant relief under s 85 of the Act.
Order
1.There be an order pursuant to s 85 Strata Titles Act 1985 (WA) that the owners of "Colleran Court" Strata Plan 7199 consent to the proposal by the applicant for the construction of the proposed wooden deck which is the subject of a planning approval of the City of Melville on 26 May 2005, subject to the conditions of the planning approval.
2.All costs associated with the proposed alteration are to be the responsibility of the applicant.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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