BARRETT and HAMER
[2005] WASAT 307
•24 NOVEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: BARRETT and HAMER [2005] WASAT 307
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 24 NOVEMBER 2005
FILE NO/S: STR 117 of 2004
BETWEEN: ANNA MARGARET BARRETT
Applicant
AND
ROLAND EMMANUEL MARIA HAMER
Respondent
Catchwords:
Strata titles - Dispute over dividing fences and use of common property
Legislation:
Dividing Fences Act 1961 (WA)
State Administrative Tribunal Act 2004 (WA)
State Administrative Tribunal Regulations 2004 (WA), reg 28
Strata Titles Act 1985 (WA), s 3, s 7(6), s 35(1)(b), s 42(2), s 101, s 82, s 83
Strata Titles General Regulations 1996 (WA), reg 30
Result:
Application partially 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 the Tribunal's decision
During the course of the proceedings the applicant withdrew certain relief sought, which became the subject of a further application against the strata company, so that the only matter for determination by the Tribunal was whether the respondent Roland Emmanuel Maria Hamer (Mr Hamer) should be ordered to remove and keep removed from the common property a shed, motor cycles allegedly stored or parked on the common property together with rubbish bins allegedly used by the proprietors, or occupiers or residents of his lot and be ordered to refrain from installing any gate or fence obstructing access to the common property concerned.
Although the majority of proprietors had expressed agreement in discussion, during an annual general meeting held on 29 October 2003, to the use of the shed by Mr Hamer provided that the shed would be removed in the event that his lot was sold, no formal resolution was then passed. The Tribunal held that no effective process had been followed to grant exclusive use and in any event any attempt to do so would be invalid and beyond power as being inconsistent with the obligations of the strata company under the Strata Titles Act1985 (WA) to control and manage the common property for the benefit of all the proprietors. The applicant was accordingly entitled to the relief sought for removal of the shed.
The Tribunal was not satisfied on the information provided that the factual circumstances justified any further relief. The Tribunal held that even if the applicant's allegations in relation to storage, parking of motor vehicles and keeping of rubbish bins on the common property were correct, these were matters which the strata company could permit as part of its control and management of the common property. The Tribunal therefore made orders substantially as sought for the removal of the shed but declined to grant any of the further relief sought.
Introduction
The application was originally made to the Strata Title Referee on 22 October 2004.
The applicant sought three principal orders against the then respondents, Roland Emmanuel Maria Hamer (Mr Hamer) and Martina Alberdina Maria Hamer (Ms Hamer). Subsequently the applicant withdrew its application for the orders set out in par 1 and 2 of the application and commenced separate proceedings against the strata company for substantially the same relief.
The relief sought in order 3 is as follows:
"That the registered proprietor of Lot 4 on Strata Plan 15354 shall forthwith at its cost and risk in all respects:
(a)remove and keep removed from the common property comprised in the Strata Plan that is adjacent to Lot 4 and contiguous to both Coode Street and Swan River all installations including but not limited to a garden shed added to or installed in the said common property by any proprietor, occupier or resident of lot 4 and immediately thereafter make good all damage to the said common property caused by such installations or their removal.
(b)remove and keep removed from the common property any motorcycles stored or parked by it in the said common property.
(c)refrain from the installation of any gate, fence or other item proposed to be installed by it, that may obstruct access to the area of common property adjacent to Lot 4 on Strata plan 15354 and contiguous to both Coode Street and Swan Street.
(d)remove and keep removed from the common property any rubbish bins used by the proprietors, occupiers or residents of lot 4."
The applicant also sought an interim order as follows:
"1.That the strata company generally and also separately the proprietors of lots 4 and lot 6 must refrain from any alteration/removal of any existing fence at the strata scheme pending a final decision by the Strata Titles Referee in respect of the Principal Orders as sought in this application."
On 1 December 2004 the Strata Title Referee issued an interim order in the following terms:
Interim Order
"The proprietors of Lots 4 and 6 on Strata Plan 15354 ("the Strata Plan") must immediately cease making any alterations or additions to any fences or walls between the garden and courtyard areas of those lots and the garden and courtyard area of Lot 5 on the Strata Plan."
In the Strata Titles Referee's reasons for decision the Strata Title Referee found that any dispute involving damage or the repair or replacement of the fences had to be resolved between the adjoining owners under the Dividing Fences Act 1961 (WA). I agree with and adopt the Strata Title Referee's reasons for so concluding. The Strata Title Referee further stated that it was possible that any intended works would involve a structure within the meaning of s 7(6) of the Strata Titles Act 1985 (WA) (the ST Act) and reg 30 of the Strata Titles General Regulations 1996 (WA) if the intended works involved a "structure" being a construction or erection required to be approved by the local government or any other authority. Pending clarification of that issue, the Strata Title Referee considered it appropriate to grant the above interim relief.
On 1 January 2005 the application was transferred to this Tribunal pursuant to the transitional provisions of the State Administrative Tribunal Act 2004 (WA). In accordance with reg 28 of the State Administrative Tribunal Regulations 2004 (WA) the matter is taken to have commenced in the Tribunal and the Tribunal may have regard to any record of the former adjudicator which I have done.
A number of Directions Hearings have been held in order to ensure that the proceedings were progressed and determined in the most appropriate manner. One of the consequences of this was that the applicant abandoned the first two orders sought by her on the basis that such relief could be sought only against the strata company. The applicant, thereafter, commenced further proceedings against the owners of 31 Coode Street, South Perth – Strata Plan 15354, File No CC 2945/05 on 2 August 2005 and both matters were thereafter programmed together. The decision in those proceedings will be handed down simultaneously with these reasons for decision.
In consequence, there is no longer any relief sought against (Ms Hamer) in these proceedings. However, as Ms Hamer has filed a response to the proceedings she remains entitled to a copy of the order and these reasons for decision pursuant to s 101 of the ST Act and has therefore continued to be given copies of all notices which have issued from the Tribunal from time to time.
Strata plan and parcel
The strata plan was registered on 2 November 1987 pursuant to the ST Act.
The parcel is named on the strata plan as Units 1 – 6 , 31 Coode Street, South Perth. It is situated at the corner of Coode Street and Swan Street, South Perth.
The applicant is the proprietor of lot 5. The adjoining lot to the west is lot 6 which is owned by Ms Hamer and that to the west is lot 4 of which Mr Hamer is the proprietor. To the west of lot 4 is a strip of common property running between the building and Coode Street and which turns through approximately 45 degrees to also meet with Swan Street to the north of the buildings.
By‑laws
There is no repeal, amendment or addition to by‑laws recorded on the strata plan and the by‑laws of the strata company are, pursuant to s 42(2) of the ST Act, the standard by‑laws set out in Sch 1 and Sch 2.
Issues for determination
The submissions filed and supporting documentation contain a range of matters, all of which have been considered, but which may be distilled into the following issues for determination.
1.Is Mr Hamer entitled to keep and to enjoy the exclusive use of the garden shed and installations placed on the common property?
In determining this issue it is necessary to consider what is the effect of the approval given by a majority of owners to Mr Hamer having the use of the shed during an annual general meeting of the strata company held on 29 October 2003.
2.Does Mr Hamer park or store motorcycles or store rubbish bins on the common property?
3.If the answer to 2 above is "yes" in any respect, do the majority of owners support such use and, if so is it open to the strata company to permit or license the same?
4.Whether, having regard to the above issues, Mr Hamer should be ordered to refrain from the installation of any gate, fence or other item that might obstruct access the area of common property adjacent to lot 4.
The garden shed and installations
The submissions and documentation filed show that a garden shed is located on the common property.
A bore to pump water for the reticulation for use within the parcel is located on the common property as is the reticulation controller. This is reflected in item 5.7 of the minutes of the annual general meeting of the strata company held on 29 October 2003. That item states as follows.
"5.7Mr Bright ‑ Proxy for Mrs Barrett addressed the meeting and tabled various items. He stated that the placement of the garden shed and the area adjacent to Unit 4 was illegal. After a review of the strata plan it was agreed that the shed was on an area 'ownership for Unit 4' and as such there were no objections. It was agreed that if Unit 4 was sold – the shed would be removed from the complex prior to settlement. Discussions also took place regarding the right of owners to access the reticulation controller. It was agreed that access to the reticulation controller would be provided – provisional that Mr Hamer is informed of the requirement to access the controller."
It is to be inferred from the obligation to remove the shed that Mr Hamer was responsible for the installation of the shed particularly as nowhere in the responses filed is the contrary asserted.
The strata plan does not reflect that the shed was on an area of "ownership for Unit 4". The strata plan expressly reflects that this area is common property and in any event by virtue of the definition of "common property" under s 3 of the ST Act as this area of land comprised in the strata plan is not comprised in a lot shown on the plan; it is common property.
The conclusion that somehow the shed was on an area of "ownership for Unit 4" is not only wrong, but it is inconsistent with the later agreement that if Unit 4 was sold the shed would be removed from the complex prior to settlement.
It is inconceivable that if the proprietors had regard to the strata plan that they would not have understood that the shed was on common property. It would be open to regard the Minute of the above discussion as an ill motivated attempt to justify Mr Hamer's continued use of the shed in the face of the applicant's objection. The animosity exhibited between the parties in this matter is quite extraordinary. It is neither possible nor relevant for the Tribunal to determine where responsibility lies for the complete breakdown in the relationship between the parties but it is apparent that the vast majority the owners in the parcel are very much against the applicant. Their attitude may or may not be justified. What is relevant, is that no resolution was put to the meeting concerning the issue. It can be inferred that no notice of the matter was given prior to the meeting. Consequently, the Minute reflects no more than the attitude of the owners who were present. The strata company has therefore not granted any licence to Mr Hamer to enjoy the exclusive use of the garden shed and as already noted above there has been no addition to the standard by‑laws which might have purported to do so. While it would be open to the strata company to grant a licence or to have an exclusive use by‑law passed concerning the use of common property it may only do so when that is consistent with the strata company's discharge of its obligations under the ST Act. In my view, there is no valid reason raised which would allow either of these courses to constitute control and management of the common property for the benefit of all the proprietors within the meaning of s 35(1)(b) of the ST Act. There is no conceivable benefit for the other proprietors as a whole in granting such exclusive use.
It is implicit in the orders sought by the applicant that she alleges that Mr Hamer was responsible for the erection of the shed. There is nothing in the responses filed to suggest otherwise. In a joint response filed on behalf of Mr Hamer and Ms Hamer together with the owners of lots 1 and 3 reference is made to the minutes of an extraordinary general meeting of the strata company held on 5 October 2004 which reflect that a resolution was passed that the shed could remain on the common property "as at present". The resolution does not purport to give any exclusive rights to Mr Hamer but seen in the context of the dealings between the parties, and the previous resolution referred to above, the only logical inference to be drawn is that is was passed to give Mr Hamer that benefit.
For the above reasons, the applicant is entitled to an order as sought in relation to the removal of the shed.
Storage of motor cycles and rubbish bins
The joint response reflects that there are no motor cycles parked on common property, but that Mr Hamer has a motor scooter which is stored in the shed.
The response in relation to the garbage bins is not particularly clear. It is stated that no garbage bins are kept on common property by Unit 4 (lot 4) ie Mr Hamer. It is then stated that with the agreement of the majority of owners that the garbage bins were temporarily stored as an interim security block to stop passage to the corridor next to the east wall. Reference is further made to the passing of a resolution at the extraordinary general meeting on 4 November 2004 to provide for fencing and, without stating whether or not the fencing has been installed, it is then stated that the bins normally kept on the private property on part of lot 4 will be removed once the security issue is resolved by the colourbond fence.
It is apparent that the dispute between the parties is fairly narrow and their respective positions are dependant upon whether the bins are stored on part of lot 1 or on the common property.
In relation to the motor cycle/motor scooter issue the response is not inconsistent with the applicant's assertion of storage on common property.
Is it open to the strata company to permit or license storage?
It is clearly within the ordinary function of a strata company to control parking of vehicles and the storage of rubbish bins.
If Mr Hamer's motor scooter was not parked on the common property, it would have to be parked elsewhere. It is a matter for the strata company to determine where vehicles may be most appropriately parked and the same applies in relation to the rubbish bins. The Tribunal does not consider that any relief is warranted in respect of these matters.
Installations obstructing access to common property
The resolution passed at the extraordinary meeting on 4 November 2004, to which reference is made above, is expressed in the following terms.
"Block off side area pathway with colourbond fencing – allow access to owners at the complex to Western Power box etc."
The resolution is imprecise in its terms but it does convey an intention that access would be allowed to the Western Power meter box.
Again, security is a matter which is obviously within the strata company's power to control and manage the common property for the benefit of all the proprietors. The proprietors are entitled to ensure that the common property remains accessible. It is for the strata company in the first instance to determine how that should be achieved, for example by providing a locked gate with all proprietors having a key or by the key being located in an agreed safe place accessible by the proprietors or occupiers. The Tribunal does not consider it appropriate for any relief to be granted prior to the establishment of any restriction of access.
Orders
For the above reasons the Tribunal orders as follows.
1.That the respondent Roland Emmanuel Maria Hamer shall within 28 days of this order and at his cost and risk in all respects remove and keep removed from the common property comprised in strata plan 15354 the garden shed and any installations appurtenant or incidental thereto and make good any damage to the common property caused by such removal.
2.The application is otherwise dismissed.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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