Baker and Anor and Staples

[2005] WASAT 290

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   BAKER & ANOR and STAPLES [2005] WASAT 290

MEMBER:   MR T CAREY (MEMBER)

HEARD:   DETERMINED ON THE PAPERS

DELIVERED          :   7 NOVEMBER 2005

FILE NO/S:   STR 137 of 2004

BETWEEN:   TERENCE OLIVER BAKER

LOUISE GENEVIEVE BAKER
Applicant

AND

VERA PATRICIA STAPLES
Respondent

Catchwords:

Strata titles – Owner of lot seeking approval for proposed extensions and alterations from the other lot owner – Approval refused – Whether any of grounds for refusal permitted, and whether notice of decision in compliance with Strata Titles Act – Consequence of non-compliance – Whether approval should have been given but unreasonably withheld – Strata Plan 4504

Legislation:

Strata Titles Act1985 (WA), s 7, s 7(2), s 7(3), s 7(5), s 7(5)(c), s 7B(1), s 7B(2), s 7B(5), s 7B(6), s 7B(7), s 77, s 77B, s 77B(2), s 103F, s 103F(3)

Strata Titles General Regulations 1996 (WA), r 31

Result:

Application successful
Order under s 103F Strata Titles Act 1985 (WA) made

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

Respondent:     Self­represented

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 the Tribunal's decision

1. The applicants, who own one of two lots in a strata scheme, failed to obtain approval of the other owner to a proposal for a substantial extension and alterations to the dwelling on their lot.  The respondent raised various objections within the statutory period.  The nature of the respondent's objections changed to some degree before the Tribunal.

2. The Tribunal analysed the matter in terms of the validity of the notice of the respondent's decision on the proposal given within the statutory period and decided that the notice was invalid by reason of its failure to provide as a ground for the rejection any ground permitted by the Strata Titles Act1985 (WA) (ST Act). Although the effect was that the approval applied for is taken to have been given, the Tribunal went on to determine whether the applicants were entitled to an order dispensing with the respondent's approval under s 103F on the basis that the approval should have been given and was unreasonably withheld, and decided that they were.

Introduction

1. This application concerns a two lot residential strata scheme, comprising 17 B and 17 C Malsbury Street, Bicton.  The applicants own and reside at 17 B Malsbury Street, which is lot 3, having purchased this property in November 1994.  The respondent owns and resides at 17 C Malsbury Street, which is lot 4, and has done so for many years.

2. The applicants wish to construct extensions to their house, including an additional storey and the installation of a swimming pool.  The respondent has objected to the proposed alterations, both as part of the process for obtaining planning approval from the City of Melville, and as the proprietor of the other lot in a two lot strata scheme whose approval is required under the ST Act.  Whether or not the respondent's objections were valid for the purposes of the Act will be the subject of discussion later in these reasons.

3. Amendments were made to the plans submitted to council, according to the applicants, in an attempt to accommodate the respondent's requirements.  On 5 March 2004, the City of Melville issued a planning approval in relation to the amended plans, subject to special conditions relating to horizontal sails in the pool area and planter boxes on a balcony on the new storey.  Notwithstanding the planning approval, the respondent has rejected both informal and formal requests for her approval for the proposed alterations.  Although I will, under the next two headings, explore in some detail the various objections that have been articulated, it is fair to say that the most significant stem from the physical aspect of the parcel, which slopes down from the applicants' lot in the direction of the respondent's lot, resulting in an accentuation of the usual difficulties for neighbours associated with, in particular, vertical house extensions.

4. By reason of s 7(2) of ST Act, the proprietor of a lot shall not cause or permit any alteration of a structural kind to, or extension of, a structure on his lot, except (relevantly) with the prior approval of the proprietor of the other lot in the case of a two lot strata scheme. Section 7(3) provides that the proprietor may refuse to give approval on any ground that is permitted by subsection 5, but not otherwise. The grounds permitted by s 7(5) are:

   " …

   (a)that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot ascertained in accordance with section 7A(3);

   (b)in the case of a lot that is not a vacant lot, that the carrying out of the proposal –

   (i)will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development;

   (ii)may affect the structural soundness of a building; or

   (iii)may interfere with any easement created by section 11 or 12;

   or

   (c)any other ground that is prescribed."

   One ground has been prescribed for the purposes of s 7(5)(c) by reg 31 of the Strata Titles General Regulations 1996 (WA), namely, the fact that the carrying out of a proposal will contravene a specified by‑law of the strata company.

5. A proprietor wishing to obtain the approval of the other proprietor in a two‑lot scheme is required by s 7B(1) of the ST Act to serve an application on the other proprietor setting out details of the proposal and further prescribed information. The applicants did this by formal notice dated 18 August 2004 directed to the respondent. The notice had attached to it plans of the proposed extensions and alterations and a "Finishes Schedule". Prescribed information contained in the notice included plot ratio restrictions and open space requirements in relation to the parcel, pro rata entitlements of, or requirements for the lot, whether carrying out the proposal would breach the plot ratio restrictions or open space requirements, location and dimensions of the proposed structure, details of materials to be used, colours of those parts of the structure that would be visible from outside the lot and the method of construction and estimated work plan.

6. By s 7B(5) of the ST Act, notice in writing of the decision, in the case of a two lot scheme, by the other proprietor on an application under s 7B(1) is required to be given within 42 days after service of the application. The respondent provided two written responses within the 42 day period, the first on 6 September 2004 and second on 29 September 2004. For reasons which will become apparent, it is necessary to restate in some detail the matters raised in these responses.

The respondent's first response

1. In her first response, dated 1 September 2004 and received by the applicants on 6 September 2004, the respondent enclosed an email she had sent the mail Mr Baker back in April 2004.  That email:

   •referred to a "fault" in the plans of the proposed extension which had then been provided, namely, that the driveway and the floor of the applicants' garage and the respondent's carport are shown at the same level as a courtyard when, according to the respondent, there should have been a significant difference;

   •indicated there were "details that needed to be discussed", including access to the respondent's electricity meter, location of the respondent's letter box, the extent of new rendering and the colour of the rendering;

   •notified that there were "unauthorised alterations you have made" required to be dealt with, in particular, replacement of a brush fence with other material and re-rendering of present rendering; and

   •referred to "the matter of the tidiness of your front yard and the street verge".

2. According to the first response, a reading of the email suggested a number of issues "that may legally undermine the validity of any approval given by us", none of which had been addressed.  The issues "centred" on the fact that alterations had proceeded without the applicants following the correct procedure, that is, by obtaining the respondent's approval first.  The first response referred to a matter, not referred to in the email, of a downpipe and soakwell placed into the common driveway without authorisation which did not work and had caused disfiguring of the (unauthorised) rendering.  Further, according to the response, new drawings which had just been provided were the same inaccurate drawings received and referred to in the email, with the same problem of the floor height/ground level of the courtyard areas relative to the levels of the garage floor and driveway.

3. The first response then identified the following concerns in respect of the s 7B(1) application:

   (a)doubts existed regarding the colour of the extension;

   (b)access to the respondent's electricity meter needed to be given;

   (c)the size, style, and method of access to the letterbox were unstated;

   (d)a relative disparity in parking on the applicants' lot compared with the respondent's;

   (e)confirmation of the removal in the drawings of the down pipe into the driveway was sought; and

   (f)the extent of the new rendering along the driveway wall was questioned.

4. The first response cited three grounds upon which it was considered that the application "could" be refused, the first of which concerned the drawings "which don't portray the actual or future situation", and the second and the third of which related to the colour of the extension or alteration of the structure, including those parts visible from outside the lot.

5. The first response concluded that, "it stands to reason that the unauthorised alterations need to be dealt with before the present application could have any legal standing, regardless of whether or not I approve it".  The submission of the application was a pointless exercise, and the passage of 42 days (from service of the purported application) "would mean nothing, legally" because all of the matters raised.

The respondent's second response

1. The applicants' solicitors wrote to the respondent on 17 September 2004.  In that letter, it was asserted that the respondent's references to alleged unauthorised alterations previously made had no relevance to the request for approval for the proposed alterations.  The letter also sought confirmation that the respondent did in fact object to the proposal bearing in mind the specific grounds upon which objection may be made (those grounds being set out, accurately, in the application).  The solicitors' letter had the desired effect to the extent that the respondent wrote a second letter, dated 27 September 2004 and received on 29 September 2004, advising that she did object to the application.

2. As for the grounds upon which objection was being taken, according to the second response, "the specific grounds have already been given to you".  The letter indicated that a colour sample which had been received in the interim had resolved the two grounds of possible objection referred to in the first response relating to colour, which, according to the second response, "leaves the matter of the plans".

3. The second response asserted that the plans were still inaccurate in at least three respects, namely:

   (a)the whole of the applicants' place is still shown at the incorrect height;

   (b)cones of vision which were shown in earlier drawings had been removed; and

   (c)the plans indicated that rendering of the driveway wall stopped short of the point to which the applicants' solicitors had previously indicated it would go.

4. The second response again referred to the brushwood fence, in the context that this "illegal structure" was shown in the plans.  Also, the second response referred to the need for discussions regarding matters including letter box design, paving around the letter box, leaky downpipe in the driveway and appearance of the front of the parcel, according to the second response "for the simple reason that we are all on a strata title and there are matters of common property".  The second response repeated the suggestion in the first response that any valid grounds of objection to the proposed extension were interrelated with the previous "illegal" alterations, although apparent concessions are made that some of the "illegal alterations" would be superseded by the extension and alterations, based on the plans provided.  Finally, according to the second response, "the main problems centre on the illegal alterations, which can be dealt with quickly by the Bakers".

Has the respondent given notice of her decision on the application under s 7B(1) as required by the ST Act?

1. The ST Act contains very specific provisions as to the giving of a notice in writing of a decision on an application for approval of proposed alterations of a lot. Section 7B(5) has been referred to above. Section 7B(6) provides that in a case where the decision is not to approve the application, the s 7B(5) notice must show the ground or grounds (relevantly) on which approval is refused by the other proprietor. It will be recalled that only those grounds set out in s 7(5) are grounds upon which approval may be refused. Finally, s 7B(7) provides that if notice of a decision is not given to the applicant in accordance with s 7B(5) and s 7B(6) (in the case of a refusal), the approval applied for is to be taken to have been given.

2. The cumulative effect of these provisions is that unless within 42 days of receipt of a s 7B(1) application the other proprietor gives a written notice containing grounds which he or she may validly rely upon to refuse the application, his or her approval is deemed to have been given.

3. The only one of the array of objections and concerns raised in the first and second responses coming close to satisfying any of the permitted grounds of objection under s 7(5) concerns the complaint that the plans supplied were in error to the extent that incorrect heights were shown. With the benefit of the response filed by the respondent in the Tribunal to the application before the Tribunal, this complaint might be seen to have mutated into an objection that the actual height of the proposed extension is forbidden by a so‑called "special by‑law", which, the respondent contends, effectively forbids the addition of another storey to the lot above the highest apex of its roof. It might be argued on this basis, that either the first response or the second response, or a combination of the two, did disclose a ground on which approval was refused by the respondent, being one of the permitted s 7(5) grounds (the carrying out of the proposal would contravene a by‑law of the strata company). However, I believe that it is necessary to read the references to the respondent's complaint about the plans in their contexts in the first response and the second response.

4. The first response makes reference to the "inaccurate drawings" as one of "a number of issues that may legally undermine the validity of any approval given by" the respondent. The first response referred to the significance of the floor height/ground level of the courtyard areas relative to the level of the garage floor and the driveway as affecting the cones of vision/privacy aspect, which does not fit neatly within any of the s 7(5) grounds. More fundamentally, the major premise of the first response was whether or not the respondent gave her approval, the issue of "unauthorised alterations" needed to be resolved before the alterations application would be considered.

5. The second response repeated the assertion about incorrect relative heights of the two lots and suggested that the applicants' draftsman, Mr Fishwick, be consulted with a view to the errors being corrected.  As an aside, I mention that a subsequent letter from the applicants' solicitors advised that Mr Fishwick had checked the plans and drawings previously sent and was satisfied that they were correct in all material respects, a minor error having occurred in floor level of the existing laundry, which had no bearing upon the respondent or her privacy.  The respondent has not sought to contest this statement.  The second response rhetorically asked what had happened to the cones of vision in the plans, that is, it again raised the issue of privacy.

6. In my view, the respondent failed to comply with the requirements under s 7B(5) and s 7B(6) of a notice of the rejection of the applicants' application for the proposed alterations and extension. The consequence (under s 7B(7)) is that the approval applied for was taken to have been given on the 43rd day after service of the application on the respondent. The filing of an application for an order under s 103F of the ST Act dispensing with the s 7(2) approval was therefore strictly unnecessary, although perhaps understandable in light of the attitude of the respondent reflected in the first and second responses. However, now that it is made and has been argued, I have decided in the interests of certainty to proceed to determine whether the applicants are entitled to such an order, and if so, to make it.

Should there be an order under s 103Fof the ST Act?

1. The test to be applied on an application under s 103F is whether the other proprietor's approval should have been given but has been unreasonably withheld (see s 103F(3) of the ST Act).

2. In her response to the Tribunal, comprising eight and a half pages of text in quite small font, many of the same complaints as those previously raised are referred to, in addition to alleged failures by the applicants in terms of the processes required under the ST Act and allegations of misleading statements in the application to the Tribunal.

3. There are present in the response document two new contentions to be dealt with, and also some differences in emphasis compared with the respondent's previously stated positions.

4. According to the response, the "core legal issue" for the Tribunal is the height restriction said to have been contained in the special by‑law to which reference has already been made.  The applicants, it is said, used the same by‑laws against the respondent to prevent her from adding another storey to her lot.  The respondent's attitude and motivation in opposing the application may well be attributable to what occurred in the past in relation to the respondent's own building plans.  However, the task for the Tribunal is to assess the respondent's objections to the applicants' proposal against the framework of the relevant provisions of the Act.

5. It transpires that the by‑law relied upon by the respondent concerned lot 1 and lot 2 in the same strata plan, which were the predecessor titles of the current lot 3 and lot 4.  The relevant by‑law 12(a) provided for the exclusive use by the proprietors of lot 1 of an area of common property which extended to a height equal to the apex of the highest part of the roof of the building then contained on the lot.  A similar right of exclusive use was bestowed upon the proprietor of the then lot 2 by by–law 12(b).  Even if the by‑law still applied subsequent to the re‑subdivision which resulted in the creation of lot 3 and lot 4, which I doubt, the effect of the by‑law is not, as the respondent suggests, to "effectively forbid the addition of another storey to either units above the highest apex of their roofs".  The by‑laws were dealing with what was then common property of the previously existing lots.  The by‑laws simply do not have the effect for which the respondent argues, and do not present the opportunity for any contention that the applicants' proposed extension is in breach.

6. The respondent also contends that there has been a failure by the applicants to comply with s 77B of the ST Act in relation in their application to the Tribunal. Section 77B requires an application to be accompanied by a certificate under subsection 77B(2), stating either that there are no relevant provisions in the by‑laws of the strata company that relate to the resolution of the matter in dispute, or that there are such provisions and the applicant has, so far as is possible, complied with them. Here, the applicants filed with the application to the Strata Titles Referee (the application having been commenced prior to the commencement of the Tribunal on 1 January 2005), a s 77B certificate in standard form which certified there is no relevant provision in the by‑laws that relates to the resolution of the matter. According to the response document, the applicants failed to inform the Tribunal that there is such a by‑law, and that therefore, their application is invalid.

1. Unfortunately, the respondent omitted to refer to the by‑law said to relate to resolution of the matter. There is no such by‑law in the "standard" by‑laws which apply to the scheme, nor is there any such by‑law notified on the plan according to the titles search which has been filed. I am not satisfied of the existence of any failure of the applicants in terms of s 77B.

2. The response document makes reference to specific concerns allegedly held regarding the applicants' plans, including the propensity of limestone cladding to be used on a part of the extension to deteriorate any noise problems associated with the sails in the pool area. The short answer to such matters is that they do not fall within any of the permitted grounds for objection under s 7(5). They may fall within the purview of the local government authority, and the applicants filed the documentary record of the consideration by the City of Melville of the plans (from time to time) of the extensions and alterations which, on at least two occasions, were rejected for reasons including matters raised by the respondent, prior to the City's ultimate approval of the plans. It is not part of the Tribunal's role to give the respondent a second opportunity to raise planning‑type objections outside those permitted under the ST Act. A classic example where she has sought to do so is her suggestion that balconies and patios facing the respondent's bedrooms be removed or set back a further 2 metres. No breach of the by‑laws nor any of the other s 7(5) grounds associated with these items having been established, they do not represent a valid basis of objection.

3. The response document contains a "wish list" which includes the following proposals:

   •That permission be granted to the respondent, or her successors in title, to extend vertically by adding two or more storeys should they so wish.

   •That the by‑laws be amended to reflect this, or alternatively conversion to survey‑strata be considered.

   •That the applicants take measures to ensure noise does not emanate from the proposed rumpus room or courtyard which might create a nuisance in the respondent's bedroom area.

   •That the applicants be required to deal with each of the issues of concern outlined in Appendix B, those issues generally being the same issues identified in the first response and the second response, although not exclusively so.

4. None of the items in this list is relevant to the question of whether an order should be made under s 103F, and do not fall for determination by the Tribunal on the present application.

5. Finally, the response document is replete with warnings about the capacity of the application before the Tribunal to undermine the Act and the Tribunal itself.  It raises the spectre of ulterior motivation on the part of the applicants and the potential rendering of the procedures under the Act meaningless.  Such dire pronouncements are, more than anything else, a reflection of the imperfect understanding of the respondent and those advising her of the requirements of the Act in relation to proposed alterations or extensions of the kind proposed here.  Essentially, the exercise should be a relatively simple one of the applicants' neighbouring owner having the opportunity to object on at least one of limited specified grounds, and, where valid objection has been made but the applicant considers approval should have been given, the applicant having a right of review by the Tribunal.  The primary consideration on such a review will be the merits of any objections.  The difficulty in this case has been to identify any valid objection amongst the array of complaints raised by the respondent.

Finding

1. For the reasons set out above, I am satisfied that the approval for the extensions and alterations proposed by the applicants should have been given under s 7 of the ST Act by the respondent, but was unreasonably withheld. I am therefore prepared to make an order in terms of s 103F of the ST Act.

Order

1. The order of the Tribunal is:

   1.There is an order under s 103F of the Strata Titles Act1985 (WA) declaring that the approval of the respondent to a proposal by the applicants to cause an alteration of a structural kind to or an extension of a structure on lot 3 on Strata Plan 4504 in accordance with details contained in their application for approval dated 18 August 2004 is deemed to have been given.

   I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   MR T CAREY, MEMBER