Berger and ANOR and the Owners of 16A and 16B Moran Street Strata Plan 23645
[2006] WASAT 264
•1 SEPTEMBER 2006
BERGER & ANOR and THE OWNERS OF 16A AND 16B MORAN STREET STRATA PLAN 23645 [2006] WASAT 264
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 264 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:817/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR T CAREY (MEMBER) | 1/09/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application successful Declaration pursuant to s 103F(2) made | ||
| B | |||
| PDF Version |
| Parties: | JENS DANIEL BERGER SARAH LOUISE HENZELL THE OWNERS OF 16A AND 16B MORAN STREET STRATA PLAN 23645 |
Catchwords: | Strata titles Application by owner of lot for approval of strata company for proposed extensions refused Grounds that structure would be out of keeping with rest of development and may breach open space requirements Whether either objection of substance Strata Plan 23645 |
Legislation: | Strata Titles Act 1985 (WA), s 7, s 7(2), s 7(2)(c), s 7(4), s 7(5), s 7(5)(a), s 7(5)(b)(i), s 7A(3), s 103F, s 103F(2), s 103F(3) Strata Titles General Regulations 1996 (WA), reg 34 |
Case References: | Nil Nil |
Orders | 1. There is a declaration pursuant to s 103F(2) Strata Titles Act 1985 (WA) that the approval required under s 7 in respect of the applicants' proposal for structural additions to their lot is deemed to have been given by the strata company. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : BERGER & ANOR and THE OWNERS OF 16A AND 16B MORAN STREET STRATA PLAN 23645 [2006] WASAT 264 MEMBER : MR T CAREY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 1 SEPTEMBER 2006 FILE NO/S : CC 817 of 2006 BETWEEN : JENS DANIEL BERGER
- SARAH LOUISE HENZELL
Applicants
AND
THE OWNERS OF 16A AND 16B MORAN STREET STRATA PLAN 23645
Respondents
Catchwords:
Strata titles Application by owner of lot for approval of strata company for proposed extensions refused Grounds that structure would be out of keeping with rest of development and may breach open space requirements Whether either objection of substance Strata Plan 23645
(Page 2)
Legislation:
Strata Titles Act 1985 (WA), s 7, s 7(2), s 7(2)(c), s 7(4), s 7(5), s 7(5)(a), s 7(5)(b)(i), s 7A(3), s 103F, s 103F(2), s 103F(3)
Strata Titles General Regulations 1996 (WA), reg 34
Result:
Application successful
Declaration pursuant to s 103F(2) made
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondents : Self-represented
Solicitors:
Applicants : Self-represented
Respondents : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 The applicants, who own one of three lots in a residential strata scheme, failed to obtain the approval of the strata company to a proposal for substantial extensions to the dwelling on their lot. The owners of one of the other lots voted against such an approval, on grounds relating to the appearance of the altered building from outside the lot and compliance with open space requirements.
2 The Tribunal found that the objection that the structure would not be in keeping with the rest of the development was limited to the issue of the size of the building, and specifically its height, and that this was not a sufficient basis for a valid objection when relativities with the other buildings in the scheme were considered. It also found that the complaint (or lack of satisfaction) as to open space requirements had not been made out. The Tribunal concluded that the strata company should have given its approval for the proposal extensions and the approval was unreasonably withheld, and that the applicants were entitled to a declaration deeming the approval to have been given.
Introduction
3 The applicants are the owners of Lot 4 in a three lot residential strata development in Moran Street, Beaconsfield. Lot 3 is owned by Ms Belinda Fic, and Lot 5 by Mr Joseph Ortega and Ms Meredi Ortega (the Ortegas). Lots 3 and 4 are situated alongside each other on the eastern side of the parcel fronting Moran Street, and Lot 5 is situated at the western end, abutting a right-of-way.
4 The applicants sought the approval of the strata company under s 7(2) Strata Titles Act 1985 (WA) (the Act) to make structural additions to the residential building on their lot. The application to the strata company set out details of the proposal and other information prescribed by the Strata Titles General Regulations 1996 (WA) reg 34. It included plans and specifications indicating significant additions to the existing structure comprising a new upper floor and extensions protruding from the eastern, western and southern walls of the main building. The application was submitted to an extraordinary general meeting as s 7(4) of the Act requires. By s 7(2)(c), any approval must be by resolution without dissent. The grounds upon which approval may be refused are limited to those referred to in s 7(5) of the Act.
(Page 4)
5 The approval sought by the applicants was not obtained because the Ortegas voted against the motion for approval. The Ortegas' grounds were that the proposed additions would result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development (s 7(5)(b)(i)), and that the carrying out of the proposal would breach the plot ratio restrictions or open space requirements for the lot (s 7(5)(a)), or more accurately, the Ortegas' refusal to concede that those restrictions and requirements would not be breached.
Application and issues
6 The applicants seek an order under s 103F of the Act declaring that the approval required under s 7 is deemed to have been given by the strata company. The Tribunal may make such an order if satisfied that the approval should have been given under s 7 but has been unreasonably withheld: s 103F(3). This necessarily involves consideration of the grounds appearing in s 7(5) upon which the approval was refused, which in this case are the two grounds given for the dissenting vote of the Ortegas. I will deal with each ground in turn.
The proposed additions would result in a structure visible from outside the lot that is not in keeping with the rest of the development
7 There is no dispute that the proposal would result in a structure visible from outside the lot.
8 The Ortegas' arguments that the proposed extension would not be in keeping with the rest of the development appear in a written submission to the Tribunal as follows:
"Again it is easy to see that the strata development has always been a one and two storey development. The proposed extension of Lot 4 will set a precedent for 3 storey dwellings. As we are all crowded together on such small blocks this is undesirable for a number of reasons.
If all houses on the strata scheme become 3 storeys there will be overshadowing, a feeling of being gridlocked into a highly built up area (particularly since the tribunal's recent decision to disallow us use of the common property laneway), lack of privacy, overlooking (there are a large number of new windows overlooking our private area which have not been adequately screened despite our expressed concerns on these matters), and
(Page 5)
- noise (the new balcony/windows face directly into the window from our main bedroom/ensuite)."
9 It is true that there would be three levels of the applicants' dwelling after construction of the proposed additions. The house is constructed on sloping land, the existing lower level having been excavated, at least in part, from the earth. A photograph showing the Moran Street streetscape of the parcel indicates that Lot 4 retains the appearance of a single-storey cottage. Describing the resultant structure as of three storeys therefore tends to be misleading. In any event, it is the scale of the house with the extensions which is relevant to the question of whether or not it is in keeping with the rest of the development. The maximum wall elevation after the proposed enlargement of Lot 4 would be almost identical to Lot 5, which is itself a substantial two-storey dwelling. There has been no issue raised in terms of the marginal widening of the house on Lot 4 (by approximately some 1.2 metres). In my view, an argument that the carrying out of the proposal would result in a structure that is not in keeping with the rest of the development cannot succeed based on the sheer dimensions of the completed structure.
10 This might account for the fact that the Ortegas' argument commenced from a starting point that a precedent for three storey dwellings would be set and the alleged difficulties said to flow from each of the houses in the parcel becoming three storeys. The problem with this approach, however, is that the Tribunal's task is to assess whether or not any of the grounds to refuse the approval in the case of a particular proposal can be sustained as of the date of its decision. In considering the ground under consideration, it is not for the Tribunal to speculate on what might be the case in the event of each of the other two houses being built up to three storeys. Further, it is not necessary for me to rule on the applicants' assertion that a third storey would probably not be permissible under the applicable residential codes in the cases of Lots 3 and 5 as they would probably exceed the maximum wall and roof heights prescribed. What this argument does underline, however, is that the scope for future development of the parcel is not determined solely by decisions of the strata company.
11 The Ortegas' references to overshadowing, grid locking, lack of privacy, overlooking and noise are irrelevant to the question of whether the proposal is in keeping with the rest of the development. Again, they may be matters which are relevant to an assessment of the applicants' application to the local government authority for planning approval and a building licence. The Ortegas had no complaint regarding any other
(Page 6)
- visual aspect of the proposed additions. It would have been difficult for them to do so, given that this was an issue which had been the subject of argument before the former Strata Titles Referee on a similar application brought by the Ortegas for structural alterations to their own lot [ST 2002-119]. In that case, the Strata Titles Referee accepted the Ortegas' own expert evidence that there was a lack of commonality between any of the three houses on the parcel and that the Ortegas' house (which, it must be said on the photographic evidence, is the "most different" of the three houses) was not visible from the front of either Lots 3 or 4 and sits independently of the rest, facing the opposite direction.
The proposed addition would breach the plot ratio restrictions and open space requirements for the lot
12 The relevant ground (a) in s 7(5) of the Act is expressed "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)". Section 7A(3) defines the plot ratio restrictions or open space requirements to be either those provided for by the by-laws of the strata company or "(b) in the absence of any such provision, those that represent the pro rata entitlements of or requirements for the lot calculated on the proportion that the area of the lot bears to the area of the parcel". There is no relevant provision in the by-laws of the strata company, making par (b) applicable.
13 The applicants and the Ortegas agree that there is no plot ratio requirement for the parcel. However, open space requirements are in place requiring a minimum of 50% open space and 30 square metres outdoor living for each dwelling.
14 According to the applicants, the site coverage of their lot subsequent to the completion of the extension would comprise 75.5 square metres, which is 31% of the lot (which has an area of 243.6 square metres). This leaves 69% open space, most of which would be outdoor living area. The Ortegas questioned what the figure of 75.5 square metres specifically related to, and in particular, whether the new decked areas at the western and eastern extremity of the building were classified as open or built space. The applicants' response was that as the decking areas are unenclosed outdoor living areas, they do not fall to be calculated as part of the site coverage, and were not included in the 75.5 square metres. However, even if they were, the result would be a total built up area of 94.8 square metres or 39% of the lot, leaving 61% as open space.
(Page 7)
15 As I have indicated, the Ortegas' query concerned whether the figure given for site coverage was conceptually correct, rather than raising any question concerning the accuracy of the applicants' figures. I am satisfied that the applicants provided an adequate response to the Ortegas' query by demonstrating on any view that the open space requirement applicable to their lot would not be breached by allowing the proposed extension. The Ortegas pointed out that development is controlled by means of numerous design requirements including setbacks, height controls and open space requirements. Of the three examples given, the strata company and the Tribunal can only concern itself with open space requirements, the others being within the exclusive purview of the local government authority in its consideration of any application for planning approval and a building licence.
Conclusion and order
16 Neither of the grounds for refusal of the application for structural additions to the applicants' lot has been made out. That being so, I am satisfied that the strata company should have given its approval under s 7 of the Act and that approval has been unreasonably withheld. A declaration in terms of s 103F is appropriate.
17 The Tribunal orders:
1. There is a declaration pursuant to s 103F(2) Strata Titles Act 1985 (WA) that the approval required under s 7 in respect of the applicants' proposal for structural additions to their lot is deemed to have been given by the strata company.
I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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