Barrett and Owners Of 31 Coode Street South Perth * Strata Plan 15354

[2005] WASAT 306

BARRETT and OWNERS OF 31 COODE STREET SOUTH PERTH ­ STRATA PLAN 15354 [2005] WASAT 306

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 306
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:2945/2005	Heard:	DETERMINED ON THE PAPERS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	24/11/05
No of pages:	7	Judgment Part:	1 of 1
Result:	Application partially successful
Category:	B
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Parties:	ANNA MARGARET BARRETT OWNERS OF 31 COODE STREET SOUTH PERTH ­ STRATA PLAN 15354
Catchwords:	Strata titles Orders restraining causing of damage to dividing walls and fences Claim for rectification of walls and fences Orders sought that strata company refrain from including in notices of meetings, matters relating solely to private responsibilities
Legislation:	Dividing Fences Act 1961 (WA) State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) Strata Titles Act 1985 (WA), s 81(10), s 116, s 123B Strata Titles General Regulations 1996 (WA), reg 30
Case References:	Harold & Gladys Verryt and Ann Williams [2005] WASAT 101 Strata Plan no 464 v Oborn NSW Strata Titles Cases 1979 - 1990 Nil
Orders	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.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : BARRETT and OWNERS OF 31 COODE STREET SOUTH PERTH ­ STRATA PLAN 15354 [2005] WASAT 306 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 24 NOVEMBER 2005 FILE NO/S : CC 2945 of 2005 BETWEEN : ANNA MARGARET BARRETT

Applicant

AND

OWNERS OF 31 COODE STREET SOUTH PERTH ­ STRATA PLAN 15354
Respondent

Catchwords:

Strata titles - Orders restraining causing of damage to dividing walls and fences - Claim for rectification of walls and fences - Orders sought that strata company refrain from including in notices of meetings, matters relating solely to private responsibilities

Legislation:

Dividing Fences Act 1961 (WA)

(Page 2)

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Strata Titles Act 1985 (WA), s 81(10), s 116, s 123B
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):

Harold & Gladys Verryt and Ann Williams [2005] WASAT 101
Strata Plan no 464 v Oborn NSW Strata Titles Cases 1979 - 1990

Case(s) also cited:

Nil


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Tribunal held that the relief sought by the applicant related to dividing walls and fences which were beyond the jurisdiction of the Tribunal and fell to be dealt with under the Dividing Fences Act 1961 (WA).

2 In so far as the applicant sought remedies flowing from an alleged breach of an interim order made by the Strata Title Referee the Tribunal concluded that the applicant's only remedies lay under both the Dividing Fences Act 1961 or upon complaint being made for the enforcement of a penalty under s 116 of the Strata Titles Act 1985 (WA) as in force at the time of the alleged breach.

3 To the extent that the strata company had endeavoured to address matters relating to dividing walls and fences in strata meetings the Tribunal concluded that these were not matters with which the strata company had any legitimate interest, other than in relation to boundaries between common property and either another lot or an adjoining property. The applicant was entitled to an order directing the strata company to refrain from dealing with such matters.

Introduction

4 These proceedings are related to other proceedings commenced by the applicant being Anna Margaret Barrett and Martina Alberdina Maria Hamer and Roland Emmanuel Maria Hamer STR 000117 of 2004 in which a decision has been handed down simultaneously with these reasons for decision. The necessary background is set out in those proceedings and accordingly is not repeated.

5 The relief sought by the applicant in these proceedings is as follows.

"Orders sought

1. That the Strata Management Company namely Southern Strata Services of 39 Pether Road Manning


(a) not cause or permit to be caused any further damage or removal of any part of the brickwall/timber fences that divide respectively lots 4 and 5 or lots 5 and 6 and

(Page 4)

(b) repair and make good to original condition any damage sustained to the aforementioned walls or fences caused by the respective owners, occupiers or residents of lots 4 and 6.

(c) The aforementioned Strata management company being breach of an interim order no ST – 2004 – 001 – f [sic] dated 1st December 2004 of which they had been made aware shall at there [sic] cost, rectify any and all alterations or additions to any and all fences and all walls between the boundaries of unit 5 and unit 4 and unit 5 and unit 6 on strata plan 15354 in compliance with city of South Perth by-laws as applicable and at no cost to the applicant whatsoever.

and [sic] including any proposed construction on the common property and/or any capital exspenditure [sic] on the common property to be validated upon a vote of strata members without dissent. and [sic] not to vote on any issues which have not been on the agenda for the meeting.

2. that the strata company shall:

(a) refrain from any actions that may result in the replacement of existing fences at the strata scheme in any materials other than materials that substantially match the existing materials and;

(b) refrain from including in notices of meetings of the strata company any matters that relate solely to private responsibilities of proprietors and

(c) refrain from purporting to determine contributions from proprietors share of fence repair/replacement between a part lot portion of land and the common property or between parts of lots."

Considerations

6 To the extent that the relief sought by the applicant relates to dividing walls and fences, s 123(B) of the Strata Titles Act 1985 (WA) requires that the dispute be resolved under the Dividing Fences Act 1961

(Page 5)

(WA) and is accordingly beyond the jurisdiction of this Tribunal. I adopt the Strata Titles Referee's reasons for so concluding as set out in his above decision dated 1 December 2004.

7 In the reasons for the decision when granting the above mentioned interim order, the Strata Title Referee raised the possibility that s 7(6) of the Strata Titles Act 1985 and reg 30 of the Strata Titles General Regulations 1996 might have application if the alterations to the walls and fences involved a structure. A structure is defined to mean any building or improvement the construction or erection of which is required to be approved by the local government or any other authority. The applicant did not pursue this aspect, although the issue was raised with her during a directions hearing. The matter thereafter proceeded on the Tribunal's understanding that it was accepted that no approval was required for the works concerned.

8 Accordingly, all the relief claimed by the applicant in relation to the dividing walls and fences must be refused. The applicant does raise an allegation that the respondent is in breach of the interim order made by the Strata Title Referee on 1 December 2004. That allegation is clearly incorrect because the order was made in terms, as set out in those other proceedings, that the proprietors of lots 4 and 6, not the respondent, were to cease taking the particular described action. The order was undoubtedly restricted in that way because the respondent strata company was not a party to those proceedings and it would have been inappropriate to grant interim relief against the respondent. It was for the same reason that similar claims made in those other proceedings were withdrawn and these proceedings were instituted against the strata company.

9 Accordingly, to the extent that any complaint is to be made about any alleged breach of the interim order, on which this Tribunal makes no findings, that must be pursued by a complaint being made under s 116 of the Strata Titles Act 1985 as it stood at the time of the breach. Section 116 was repealed by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) and a different regime applies in relation to any breach of the orders of this Tribunal.

10 For the above reasons the applicant is not entitled to any of the relief sought under par 1 of the orders sought.

11 The order sought, no 2(a), raises questions about whether replacement fencing must match the existing materials.

(Page 6)

12 There is an obligation on the strata company via the enforcement of the by-laws to ensure that alterations to a lot are in keeping with the rest of the building (Sch 2 by-law 13 and 14). What is in keeping is in the first instance a matter for the strata company. It is for the body corporate, acting within its powers to decide whether there will be uniformity in the external appearance of the building, either total or in particular respects. See Strata Plan no 464 v Oborn NSW Strata Titles Cases 1979 - 1990, Harold & Gladys Verryt and Ann Williams [2005] WASAT 101.

13 The next issues raised under the orders sought under order 2(b) and (c), concern the respondent including in notices of meetings matters concerning the dividing walls and fences and endeavouring to levy costs in relation thereto.

14 The material filed by both parties shows that what the applicant alleges has occurred on many occasions.

15 For the reasons given above matters relating to the cost of dividing fences are to be agreed between individual proprietors and any dispute is to be resolved in accordance with the Dividing Fences Act 1961. The only responsibility falling on the strata company is to ensure that any style, design, colour, materials or finishes selected do not constitute a breach of the above mentioned by-laws.

Orders

16 For the above reasons, the Tribunal orders as follows.

1. The respondent, by its proper officers and agents, is directed to refrain from including in notices of meetings of the strata company, from permitting debate in strata company meetings of matters concerning dividing walls or fences which fall to be determined in accordance with the Dividing Fences Act 1961 (WA); save to the extent that the respondent is directly involved in relation to a dividing wall or fence between the common property and another lot or land adjoining the parcel.

2. The respondent, by its proper officers and agents, is directed to refrain from purporting to determine contributions from proprietors in relation to dividing fence and wall costs, save to the extent that the respondent is directly involved in relation to a dividing wall or fence

(Page 7)

between the common property and another lot or land adjoining the parcel.

3. Pursuant to s 81(10) of the Strata Titles Act 1985 (WA) order 1 and 2 above shall not cease to have any force or effect upon the expiration of the period of two years that next succeeds the making of the order.

4. The application is otherwise dismissed.

I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR MEMBER