BLAZEY and HUNTER - [2020] WASAT 155

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   BLAZEY and HUNTER [2020] WASAT 155
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   17 SEPTEMBER 2020
DELIVERED          :   9 DECEMBER 2020
FILE NO/S:   CC 198 of 2020
BETWEEN:   ROGER BLAZEY
First Applicant
DENISE BLAZEY
Second Applicant
AND
PAMELA HUNTER
Respondent

Catchwords:

Strata titles - Two-lot strata scheme - Whether fence and gate are structures within meaning of s 7 of the Strata Titles Act 1985 (WA) (prior to 1 May 2020) (ST Act) - Whether respondent breached s 7(2) of ST Act - Whether structure will not cause any significant inconvenience or detriment to other proprietors for purposes of s 103G(4) of ST Act

Legislation:

Dividing Fences Act 1961 (WA)
Strata Titles Act 1985 (WA) (as amended 1 May 2020), Pt 5, Div 3
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 3, s 7, s 7B s 11, s 12, s 12A, s 42, s 61, s 81, s 103F, s 103G, s 122, s 123, s 123B, Sch 1, Sch 2
Strata Titles Amendment Act 2018 (WA)
Strata Titles General Regulations 1996 (WA), reg 31, reg 32, reg 34

Result:

Application successful

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	In Person

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161
The Owners of 5 Thor Street Innaloo Strata Plan 72475 and Maul (No 2) [2020] WASAT 81
The Owners of 5 Thor Street Innaloo Strata Plan 72475 and Maul [2020] WASAT 15
The Owners of Northwood Rise Strata Plan 50673 and Mill Point Financial Centre Pty Ltd [2019] WASAT 140

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In broad terms, this dispute concerns the erection of a fence and proposed installation of a gate within one lot of a two lot strata scheme. The respondent, who has undertaken or proposed the works, considers that she is entitled to erect a dividing fence and gate when those structures are wholly contained within her lot. The applicants are the owners of the other lot and say that their approval was and is required, and has been refused, and they seek orders for the removal of the fence and to prevent the installation of the gate. The Tribunal must determine which of those positions is correct.

Proceeding in the Tribunal

The proceeding was commenced on 11 February 2020 by the applicants filing an application under s 103G the Strata Titles Act 1985 (WA) (ST Act), pursuant to which application (as amended by orders dated 17 March 2020) the applicants seek orders (Proposed Orders) that:
(a)within a specified time, the solid 1.8m high fencing which is parallel to, and generally about 65 cm from the lot 1 building wall, be removed entirely. Specifically, all posts numbered 1 to 7 and all fencing slats, rails and plinths between the adjacent posts numbered 1 to 8 be removed within that specified time; and
(b)no further work be undertaken with a lot 2 driveway gate at the point where the newly erected internal fence terminates at post 1 and further no other gate be erected across the lot 2 driveway without the respondent following due legal process under s 7, s 7B and possibly s 103F of the ST Act.
Because the proceeding commenced before 1 May 2020, the dispute is to be determined under the ST Act as it stood before that date (relevantly, unamended by the Strata Titles Amendment Act 2018 (WA)). Accordingly, in these reasons, unless otherwise specified:
(a)any reference to legislative provisions or 'the Act' will be a reference to the ST Act as it stood before 1 May 2020; and
(b)any reference to regulations will be a reference to the Strata Titles General Regulations 1996 (WA).
A final hearing of the application was conducted on 17 September 2020 (Hearing).
At the Hearing, the parties appeared in person and were selfrepresented. Each gave oral evidence on affirmation and had an opportunity to cross-examine the other parties' evidence. No other witnesses were called.
Prior to the Hearing, each party filed submissions and documents with the Tribunal. These were bundled into a hearing book which was taken into evidence (Exhibit 1). In addition, the respondent was given leave to refer to, and to hand up a copy of, a document entitled 'Building Code of Australia: Class 1 and Class 10 Buildings Housing Provisions' and watermarked 'Superceded' (Code).
All of the above evidence has been considered by the Tribunal in making its findings on material questions of the facts, which are set out below, and in arriving at its decision.

Material facts

Except as otherwise identified, the following facts are uncontentious.
The registration, on 22 June 2006, of strata plan 50601 (Strata Plan) created a two lot strata scheme, described as a 'brick and iron single and two storey residential development situated on Lot 594 on Plan 3697', known as 178 Gildercliffe Street, Scarborough (Scheme).
The applicants are the proprietors of lot 1 with a single storey residence (Lot 1), and the respondent is the proprietor of lot 2 with the double storey residence (Lot 2), in the Scheme.
The Scheme is situated on a fairly long and narrow parcel of land, with two lots, in a 'battle axe' configuration, comprising the whole of the Scheme and no common property. Lot 1 is at the front of the block and Lot 2 is principally at the back, but with a driveway (Driveway) running along the northern boundary of Lot 1 (Driveway Boundary) to meet the street crossover.
The applicants' dwelling occupies much of the width of Lot 1. The northern aspect of the house runs parallel with, and close to (some 60 centimetres from), the Driveway Boundary and includes:
(a)a recessed section contiguous with the applicants' dining room;
(b)windows (including full length windows from the applicants' dining room) which face the Driveway Boundary; and
(c)as shown by a gutter survey conducted on 10 March 2020 (Exhibit 1, page 62), eaves and gutters that extend beyond the walls of the house, contiguous with the Driveway Boundary (see Exhibit 1, page 116).
Unfortunately, the parties have had an extremely difficult relationship as neighbours, marked by conflict. This has included both parties taking out, and later withdrawing, Misconduct Restraining Orders against one another (see, for example: Exhibit 1, pages 110111, 159-164, and 169-170).

Fence

The respondent has constructed, along a portion of the Driveway Boundary, a 1.8 metre high solid fence (Fence), separating her Driveway from the applicants' lot. The Fence:
(a)comprises solid metal (Colorbond) panels and posts, in the colour 'Riversand';
(b)commences, at the front of the property, from a point about 3 metres back from the front wall (western aspect) of the Lot 1 dwelling;
(c)is almost 17 metres in length, with a narrow terminating panel that abuts but does not adjoin the wall which separates the applicants' rear alfresco area from Lot 2 (see Exhibit 1, page 146); and
(d)is located, along its length, marginally (about 5 centimetres) within the Driveway Boundary of Lot 2, being a distance of around 65 centimetres from the northern aspect of the Lot 1 dwelling, except where that dwelling is recessed where the distance widens to around 1.5 metres.
The construction of a fence dividing Lot 1 and Lot 2 was first proposed by the respondent (orally) in or about 2015. By letter dated 20 July 2016 (Exhibit 1, page 283), the respondent formally proposed construction of the Fence and sought a response within 21 days, expressing an intention to commence proceedings under the Dividing Fences Act 1961 (WA) (DF Act) in the event the parties could not reach agreement.
This precipitated an exchange of communication and correspondence between the parties over the course of the next three years, over the course of which the respondent also raised her desire to erect a gate that would enclose the Lot 2 driveway.
The correspondence passing between the parties from July 2016 to July 2019 (see Exhibit 1, pages 283-237 and 91-98), insofar as it is relevant to the Fence and the Driveway Gate, may broadly be summarised as follows:
(a)the applicants:
(i)expressed disagreement about the need for a dividing fence, and concern about its proposed location (in the early stages it was proposed to be a 57 centimetre distance from the northern wall of the Lot 1 dwelling, and later at a 65 centimetre distance) and type (solid);
(ii)expressed the view that if any fence were to be considered, it should not encroach on Lot 1, and that a visually permeable fence would be more appropriate to allow light and air into their north-facing windows; and
(iii)later, also raised issues regarding the aesthetics of the proposed fence itself (its length, height and colour), inadequate passage for egress from Lot 1, and impaired access to their gutters from the location of a fence just below the gutter line and the erection of a gate preventing access to the Driveway.
(b)in December 2016, the applicants also obtained market valuation estimates regarding the (negative) impact of the construction of the Fence on the saleability and value of Lot 1 (Exhibit 1, pages 70-73);
(c)the respondent:
(i)expressed that, in her view, a dividing fence was necessary for safety, security and privacy reasons;
(ii)indicated that a visually permeable fence was not adequate from a privacy perspective;
(iii)expressed the view that the height and colour of the proposed fence were in keeping with the development; and
(iv)refuted that the applicants were entitled to an outlook over the Driveway, or to enter the Driveway to access their gutters (although the respondent also conveyed that she may agree with sufficient notice to the latter).
It would appear that in or about late 2016 the respondent commenced proceedings in the Magistrates Court seeking orders under the DF Act in relation to the erection of the Fence (the respondent gives the action number as 13904/2016: Exhibit 1, page 171). A hearing of that application was commenced and ran for five days in October 2017, being adjourned to a further three day hearing in December 2017 (Exhibit 1, pages 132 and 172). On or about 7 December 2017, before the final three days of hearing, the respondent discontinued the action (Exhibit 1, page 172).
In July 2019, each party sought legal advice and legal letters were exchanged.
By letter dated 5 July 2019 (Exhibit 1, pages 155-158), the respondent's solicitor notified the applicants that:
(a)the respondent denied that the applicants had any entitlement to enter the Driveway (to water plants, attend the applicants' gutters or other property maintenance) under any easement arising under the Act, and that any further entry would be regarded a trespass and action taken accordingly;
(b)the Fence, as proposed by the respondent, is not a 'structure' within the meaning of the Act, and so the respondent did not require the applicants' approval under s 7(2) to erect it;
(c)further, since the respondent was not seeking financial contribution from the applicants in relation to erecting the Fence, she was not required to give them notice under the DF Act; and
(d)the respondent would shortly arrange to have contractors attend the property to quote for and undertake the erection of the Fence.
By letter dated 24 July 2019 (Exhibit 1, pages 65-67), the applicants' solicitor notified the respondent that, contrary to the position asserted by the respondent's solicitor:
(a)the applicants had a right by statutory easement (arising under s 12 and s 12A of the Act) to enter the Driveway to inspect, alter, repair or replace parts of the eaves or guttering that align with the Driveway Boundary (and that a further easement under s 11 would likely apply). The applicants reserved their rights to access the Driveway under any statutory easement, but agreed to provide 24 hours' notice to the respondent before exercising any such right of access; and
(b)the Fence was a structure for the purpose of s 7 and therefore required the applicants' approval to be sought and obtained under s 7(2). Further, the Scheme's bylaws required the approval of the strata company before the erection of any improvement visible from outside the respondent's lot. The construction of the Fence as proposed would, in the applicants' view, serve no immediately apparent purpose and would significantly reduce the amenity of Lot 1. If the respondent intended to seek the applicants' approval for construction of the Fence, then it was suggested that correspondence in that regard be exchanged through the parties' respective legal representatives.
On 24 August 2019, contractors engaged by the respondent commenced construction of the Fence, and it was completed some weeks thereafter (ts 20, 28, 17 September 2020; Exhibit 1, page 191).

Driveway Gate

Having built the Fence, by letter dated 24 February 2020 and accompanying sketch (Exhibit 1, pages 28-30) (Proposal Letter), the respondent has given notice to the applicants that she proposes to install a gate across the front of the Driveway, perpendicular to and connecting with the start of the Fence (Driveway Gate), which will be:
(a)1.8 metres high and 3 metres wide;
(b)constructed of 50 millimetres extruded aluminium frame housing three permeable 3 millimetres thick infills of 9 millimetres perforated aluminium, plus an infill of the same construction to the northern boundary;
(c)powder-coated Colorbond 'Riversand' to match the Fence;
(d)positioned entirely within Lot 2 boundaries, being set back 8 metres from the street curb and 3 metres behind the front wall of the Lot 1 dwelling, and opening inwards toward the northern boundary;
(e)hung on a 100 millimetre steel post embedded in concrete on the northern side of the Driveway; and
(f)visually permeable to/from the street, and expected to be visually compatible with the Scheme development.
The Proposal Letter:
(a)also indicated that the Driveway Gate would not interfere with any statutory easements in favour of the applicants (noting that the Fence, to which the Driveway Gate would attach, is set 1 metre back from the Lot 1 meter boxes, and that access for any necessary gutter maintenance could be arranged with notice);
(b)sought the applicants' response to the proposal within 21 days, being by 16 March 2020; and
(c)is dated and was sent after the commencement of the present proceeding (see [2] above).
The applicants:
(a)responded in terms that, on the assumption that the Proposal Letter was an application for approval under s 7(2), then they had 42 rather than 21 days within which to respond;
(b)sought, and by orders dated 17 March 2020 obtained, leave to amend the application before the Tribunal, seeking orders to deal with the proposed Driveway Gate (see [2] above).
The applicants produced a photograph marked with the date 20 January 2020 (Exhibit 1, page 117) which depicts a depression, partly filled with bricks, in a narrow garden bed along the Driveway. The applicants contend that the photograph depicts a hole dug by the respondent (or a contractor engaged by her) as 'an exploratory hole to ensure a post can be inserted there' and 'in preparation for a post on the northern side of the lot 2 boundary' (ts 41, 17 September 2020).
The respondent conceded that she dug a hole (or caused it to be dug) to 'see what was in that access' but 'that doesn't mean that that hole was preliminary work for a gate' (ts 182, 17 September 2020).
On balance the Tribunal is satisfied that it is more likely than not that the hole in question was an exploratory hole dug by or on behalf of the respondent to determine whether a support post for the proposed Driveway Gate could be erected in that location (without, for example, interfering with utilities).

Issues to be determined

An application under s 103G is for orders granting relief for breach of s 7(2) of the Act, which requires the Tribunal to determine:
(a)whether each of the works in question is a 'structure' for the purposes of s 7; and if so,
(b)whether the respondent has breached s 7(2); and if so,
(c)whether the work done or intended to be done will not cause any 'significant inconvenience or detriment' to the applicants.

Regulatory framework

The application is for orders granting relief for a breach of s 7(2) brought pursuant to s 103G, which relevantly provides:
(1)An application to the State Administrative Tribunal for a finding and an order under this section may be made
(a)by the proprietor of a lot in a two lot scheme; or
(b)in the case of any other scheme, by the strata company.
(2)A finding under this section is a finding that the proprietor of a lot in the scheme has committed a breach of section 7(2).
(3)An order under this section is an order that the proprietor
(a)stop carrying out any work or any specified work in breach of subsection (2) of section 7; or
(b)within a specified time, pull down, remove, or alter anything or any specified thing that is in place as a result of work done in breach of that subsection,
or an order under both of those paragraphs.
(4)On the making of an application under subsection (1), the State Administrative Tribunal shall
(a)make a finding under this section if satisfied that a breach of section 7(2) has occurred;
(b)make an order under this section unless satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors.
As appears from that wording, it is a precondition of any relief that the Tribunal be satisfied that a breach of s 7(2) has occurred. That provision relevantly states:
(2)The proprietor of a lot shall not cause or permit
(a)any structure to be erected; or
(b)any alteration of a structural kind to, or extension of, a structure,
on his lot except
(c)with the prior approval of the proprietor of the other lot in the case of a strata scheme in which there are not more than 2 lots[.]
Section 7(6) provides that a 'structure' for these purposes 'includes any prescribed improvement' which, under reg 32, are as follows:
[A]ny dwelling, shop, factory, commercial premises, garage, carport or other building or improvement
(a)the construction or erection of which is required to be approved by the local government or any other authority; or
(b)the area of which is to be taken into account for the purposes of determining the plot ratio restrictions or open space requirements for the lot under section 7A,
whether free standing or annexed to or incorporated with any existing building on the lot.
Section 7B requires that:
(a)a proprietor who wishes to obtain an approval of a proposal that comes within s 7(2) must serve on the other proprietor an application that sets out details of the proposal and 'such other information as may be prescribed' (s 7B(1)) (and such information is prescribed in reg 34); and
(b)in the case of a two lot scheme, the other proprietor must provide a decision in writing within 42 days after service of the application (s 7B(5)(a)), and in the event of refusal, stating the ground or grounds on which approval is refused (s 7B(6)) (and if such notice is not given then approval is taken to have been given: s 7B(7)).
Pursuant to s 7(3), where an application is made to a proprietor in accordance with s 7B, a proprietor may only refuse to give approval on a ground that is permitted by s 7(5), as follows:
(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); or
(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; or
(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.

Relevant to the ground in s 7(5)(b)(iii):
(a)s 11 creates statutory easements relating to the subjacent and lateral support of, and the passage of services and utilities to, strata lots; and
(b)s 12 confers on each lot proprietor an entitlement to such shelter as is able to be afforded by the building on the lot, and creates an easement over other strata property entitling a proprietor to enter to replace, renew or restore any such shelter.
The Tribunal notes that, following the introduction of amendments to the ST Act on 1 May 2020 (see [3] above), these provisions have been replaced by different statutory easements which are now contained under Part 5 Div 3 (comprising s 61 to 66) of the ST Act (as amended).
Relevant to the ground in s 7(5)(c), reg 31 provides that contravention of a specified by-law by the carrying out of a proposal is a further ground for refusal. The by-laws applicable to the Scheme are the default by-laws contained in Sch 1 and Sch 2 of the Act (s 42), the latter relevantly including:
13.Notice of alteration to lot
A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
14.Appearance of lot
A proprietor, occupier or other resident of a lot shall not, without the written consent of the strata company, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.
Finally, pursuant to s 123B, subject to any by-law of the strata company, the DF Act applies to fencing between lots in a single tier strata scheme (which the Scheme is, because no part of one lot is above or below the other: s 3) as if:
(a)adjoining lots were adjoining lands to which the DF Act applies; and
(b)each lot was held by the respective proprietor for an estate of freehold in possession.

The parties' contentions

The applicants' contentions may be summarised as follows:
(a)the Fence and proposed Driveway Gate are structures within the meaning of s 7;
(b)the respondent sought, but did not obtain, the consent of the applicants to the erection of either the Fence or the Driveway Gate;
(c)in breach of s 7(2), the respondent erected the Fence without the consent of the applicants;
(d)the respondent will be in breach of s 7(2) if she erects the proposed Driveway Gate without the consent of the applicants to do so;
(e)the respondent has commenced preliminary work on the erection of the Driveway Gate;
(f)the Fence is not in keeping with the Lot 1 building or the Scheme development;
(g)the Fence causes significant inconvenience and/or detriment to the applicants by:
(i)being very close to the Lot 1 dwelling;
(ii)compromising the visual outlook from the Lot 1 dwelling, and being visually invasive;
(iii)restricting the ambient light and air flow to the Lot 1 dwelling;
(iv)in the above premises, giving rise to a significant loss of amenity;
(v)having a detrimental effect on the saleability and market value of Lot 1;
(vi)attracting or housing pests including spiders;
(vii)constituting a security hazard for Lot 1 (by creating a dark, narrow passage along the house); and
(viii)being contiguous with the gutter line of the Lot 1 dwelling, unreasonably interfering with the applicants' ability to access the gutters along the northern aspect of the dwelling, for the purpose of cleaning and maintenance (and in this regard, the applicants contend that they have the present benefit of a statutory easement to access the gutters);
(h)the proposed Driveway Gate will cause significant inconvenience and/or detriment to the applicants by:
(i)extending the Fence (to which the applicants object); and
(ii)creating a further impediment to the applicants' access to their gutters; and
(i)neither the Fence nor the Driveway Gate are necessary.
The respondent's contentions may be summarised as follows:
(a)the erection of the Fence and the proposed Driveway Gate are essential for the respondent's safety and security;
(b)the respondent has done her best to comply with legal requirements in relation to the erection of the Fence and the proposed installation of the Driveway Gate;
(c)works have not commenced in relation to the installation of the Driveway Gate;
(d)the Fence and proposed Driveway Gate are not structures within the meaning of s 7 (and therefore s 7(2) does not apply and has not been breached);
(e)in any event, s 7(2) does not derogate from the respondent's entitlement to erect a dividing fence between Lot 1 and Lot 2 (and she relies in this regard on s 122 and s 123, read together with the DF Act);
(f)in the above premises, the erection of the Fence and/or the proposed Driveway Gate will not breach either of by-law 13 or by-law 14 in Sch 2;
(g)both the Fence and the Driveway Gate constitute internal fencing and:
(i)do not require local government approval (referring to Exhibit 1, pages 152-154 and 349); and
(ii)are in keeping with the relevant local government (City of Stirling) design guidelines;
(h)the Fence constitutes a sufficient dividing fence within the meaning of the DF Act;
(i)the Fence and proposed Driveway Gate are in keeping with:
(i)the appearance of the Scheme, being of a similar colour to the Lot 1 dwelling (referring to colour photographs at Exhibit 1, page 345); and
(ii)local building practice (referring to photographs at Exhibit 1, page 344, which she contends are examples in the area of fences of similar construction, height and distance from dwellings);
(j)neither the Fence nor the proposed Driveway Gate cause or will cause any significant inconvenience and/or detriment to the applicants, with the respondent contending that:
(i)the Fence does not, and the proposed Driveway Gate will not, restrict the ambient light and air flow to the Lot 1 dwelling (she relied in this regard on photographs at Exhibit 1, pages 286-289, and on the Code: see [6] above);
(ii)the applicants have no right to a view of the Driveway; and
(iii)the applicants do not have an unfettered right (by easement or otherwise) to access their gutters from the Driveway, and reasonable access to the Driveway for that purpose can be accommodated by request. In any event, the applicants have alternative means to accessing their gutters (via the front of the dwelling which is wholly within Lot 1).
The respondent contends that the Proposed Orders should not be made.

Consideration

The resolution of the issues in dispute requires careful attention to the meaning and operation of the key legislative provisions.
The meaning given to written laws is to be approached in accordance with the general principles of construction, relevantly summarised in Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 at [29] and [31] as follows:
29The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The importance of construction of legislation is to begin in the text itself by regard to its context and purpose. Statutory context within immediate provisions and the whole of an Act is to be considered from the beginning of the task.
…
31[Further], context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.

Are the Fence and proposed Driveway Gate structures?

The meaning of 'structure' in s 7(6) has recently been considered by the Tribunal in The Owners of 5 Thor Street Innaloo Strata Plan 72475 and Maul (No 2) [2020] WASAT 81(Maul No 2), in which matter:
(a)the respondent proposed the construction, on part of the boundary of her strata title lot, of a brick wall and an aluminium slat gate (opening into her lot);
(b)the strata company sought an order under s 103G to prevent the construction of the proposed wall and gate, which it contended were structures within the meaning of s 7(2); and
(c)the respondent contended that:
(i)before an inquiry is made into whether the proposed wall and gate could be characterised as a 'structure' for the purposes of s 7(2), the first 'test' ought to be whether the proposed wall and gate could be 'more specifically characterised' as 'fencing' for the purposes of s 123B;
(ii)any dispute concerning a fence, within the meaning of s 123B, falls within the jurisdiction of the Magistrates Court under the DF Act (this issue was dealt with as a preliminary issue in The Owners of 5 Thor Street Innaloo Strata Plan 72475 and Maul [2020] WASAT 15 (Maul No 1))); and
(iii)in any event, the proposed wall and gate were not structures within the meaning of s 7(2), noting that the construction of a dividing fence of up to 1.8 metres did not require local government approval.
In Maul No1, the Tribunal considered the question of whether s 123B had the effect that there was no jurisdiction under s 103G to make orders in respect of dividing fences, and determined that question as follows (summarised in Maul No 2 at [71]):
71In the Preliminary Issue Decision the Tribunal decided that:
•Sections 7, 8 and 9 of the DF Act deal with the issue of the liability of an adjoining owner to either 'join in' or 'contribute' to the construction of a dividing fence if the other owner wishes to compel the adjoining owner to do so: [31] of [Maul No 1].
•The purpose of s 123B of the ST Act is to allow the issue of the liability of owners of adjoining lots in a strata scheme to contribute to the construction and/or repair of a dividing fence to be dealt with under the DF Act (in the Magistrates Court). There is no reason why that should preclude the Tribunal from exercising its jurisdiction under s 103G (or s 103F) of the ST Act where the construction of a dividing fence falls within s 7 of the ST Act: [35] of [Maul No 1].
•Section 123B(1) of the ST Act does not operate to exclude the jurisdiction of the Tribunal to deal with the application under s 103G(1) of the ST Act in this matter: [46] of [Maul No 1].
•The Tribunal has jurisdiction to determine this application under s 103G(1) of the ST Act: [47] of [Maul No 1].
Accordingly, the characterisation of a fence or gate as a 'dividing fence' does not preclude it from also being a 'structure' under s 7. As to whether something is a structure for the purposes of that provision, the Tribunal considered in Maul No 2 that:
(a)the definition of 'structure' in s 7(6) is inclusive;
(b)it follows that it is sufficient, but not necessary, that the works or proposed works in question fall within the prescribed improvements set out in reg 32;
(c)the ordinary meaning of 'structure', having regard to the dictionary definitions of that term, included the proposed wall and gate in that case.
The Tribunal, with respect, agrees with and adopts the reasoning of the Senior Member in Maul No 1 and Maul No 2, and adds the following further comments regarding the construction of the term 'structure' in s 7:
(a)the broad dictionary definition of 'structure', being 'something built or constructed': Macquarie Dictionary Online (2020), must be informed by the legislative context in which it is used (see [42] above);
(b)in s 7, the term 'structure' is informed but not limited by the definition in reg 32 and, viewed in that light, it includes works of a similar kind to those which may require the approval of a local government; and
(c)further taking account of the matters dealt with in s 7, 'structures' are likely to include works of a kind that might impact on the aesthetics of a strata scheme as a whole, or upon the plot ratios of or easements pertaining to a strata scheme.
In this case, the Fence is a substantial, permanent feature of the property, which was erected by the installation of metal posts in concrete and the fixing of solid metal panels between those posts. Fences may be the subject of local council approvals (notwithstanding that certain fences, such as the present, are excluded). They are certainly the kinds of works that can have an impact on the aesthetics of a strata development as a whole. The Tribunal finds that the Fence is a 'structure' within the meaning of that term in s 7.
The Driveway Gate is proposed as an extension of the Fence and so, by reason of s 7(2)(b), also falls within the meaning of 'structure' (and the Tribunal is satisfied that it would constitute a 'structure' in its own right in any event, for similar reasons as those pertaining to the Fence).

Breach of s 7(2)

In light of the finding that the Fence and the proposed Driveway Gate are 'structures' within the meaning of that term in s 7, it follows that the requirements for approval under s 7(2) apply to their erection.
The Tribunal finds that the applicants have not approved, and are not by reason of s 7B(7) deemed to have approved, the erection of the Fence or the proposed Driveway Gate.
Further, the respondent has not, pursuant to s 103F, sought or obtained an order dispensing with approval under s 7(2).
In the circumstances, the Tribunal finds that:
(a)by causing the Fence to be erected the respondent has breached s 7(2); and
(b)if and to the extent that works have begun on the erection of the proposed Driveway Gate, then those works are in breach of s 7(2).

No significant inconvenience or detriment?

It is clear from the express language of s 103G(4) that, once the Tribunal has found that s 7(2) has been breached, it shall make an order under s 103G(3) unless it achieves a positive satisfaction that 'the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors' (emphasis added).
The approach to determining whether a structure 'will not cause significant inconvenience or detriment' to other owners was usefully summarised in The Owners of Northwood Rise Strata Plan 50673 and Mill Point Financial Centre Pty Ltd [2019] WASAT 140 (Northwood Rise) at [27]-[30], as follows:
27Under s 103G(4)b) of the ST Act, the respondent carries the onus of demonstrating that there has been no significant inconvenience or detriment to the applicant: Uta Pty Ltd v Celenza & Anor [2002] WASCA 360 at [15] and [40] (Uta).
28Because the words 'inconvenience' and 'detriment' are not defined in the ST Act, they must be given their natural meaning and each case needs to be assessed on its merits as to whether or not they apply: see Hamilton v Thompson (1999) 23 SR(WA) 41 at [50] and [51] which was cited with approval in Uta.
29The Tribunal considered the meaning of the words 'significant inconvenience or detriment' in the decision of The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161 (Barker Road). The Tribunal stated at [29]:
'Inconvenience' necessitates a disadvantage and connotes something that is troublesome and impedes prosperity. 'Detriment' is ordinarily defined as damage, loss, harm, prejudice or a disadvantage. Section 103G of the Act refers to 'significant' and therefore the inconvenience or detriment cannot be immaterial or of no import; it must be material and of consequence.
30The grounds of refusal set out in s 7(5) of the ST Act are relevant in determining if there has been significant detriment to the applicant: The Owners of The Views, Strata Plan 6669 and Larralee Pty Ltd [2006] WASAT 126 at [20]. To disregard the grounds in s 7(5) of the ST Act would, in effect, encourage strata lot proprietors to by-pass the prescribed approval process and to 'get in the back door': Barker Road at [28]. One of the grounds in s 7(5) of the ST Act is whether the carrying out of the proposal will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development.
As to the relevance of the grounds set out in s 7(5), the Tribunal notes that, while it can properly have regard to those grounds in making a determination under s 103G(4)(b), it is not confined to them. It is clear that the phrase 'significant inconvenience or detriment' allows for a wide range of matters to be taken into account, with the focus being on the impact of the structure or proposed structures in question on the other proprietor/s.
The applicants have raised a number of bases upon which they say that significant inconvenience or detriment is caused by the Fence. Some of those (such as the harbouring of spiders in the Fence) could not be considered 'significant' in the sense discussed in The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011]WASAT161 and Northwood Rise at [29].
However, there are certainly matters raised in the applicants' submissions and on the evidence before the Tribunal that are of consequence. In particular:
(a)the degree to which the Fence is or is not in keeping with the rest of the development;
(b)the visual outlook from, and light coming into, the Lot 1 dwelling; and
(c)the saleability and market value of Lot 1.
As to the outlook, the respondent contends that the applicants have no entitlement to an unobstructed outlook over the Driveway. That, however, is not the issue for determination; rather the question for the Tribunal is whether it can be positively satisfied that the erection of the Fence has not caused significant inconvenience or detriment to the applicants.
As noted above,
(a)the Fence is located around 65 centimetres (increasing to 1.5 metres along the recessed wall) from the northern aspect of the Lot 1 dwelling, which contains windows to the principal living areas of the dwelling (living room, dining room and kitchen); and
(b)in the case of the dining room, the windows are full height.
Although there was some contention about the degree to which light coming into the northern windows of Lot 1 was impacted, there is no doubt that the erection of the Fence has had a significant impact on the outlook from the dwelling, which outlook now principally comprises a solid Colorbond panel at close range. The fact that that outlook impacts the principal living areas of the dwelling is significant.
Further, there is evidence before the Tribunal that the erection of such a Fence was expected to have a detrimental effect on the market value of Lot 1 (Exhibit 1, pages 70-71) and on its market appeal (Exhibit 1, pages 70-73). There is no or little answering evidence in this regard from the respondent. The Tribunal cannot be satisfied that the Fence has not had a detrimental effect on the market appeal, and therefore likely saleability and value, of Lot 1 predicted to arise from its construction.
Although the Tribunal is satisfied that the Fence is of a similar colour to the buildings in the Scheme, it is nevertheless not satisfied that the Fence is in keeping with the development. This is because the Scheme is a two lot strata scheme with the dwelling of Lot 1 being situated such that its primary living areas face the Lot 2 Driveway. In those circumstances, the construction of a solid 1.8 metre fence along the Driveway Boundary is not in keeping with the overall design of the Scheme (and this view is supported by the market evidence adduced by the applicants: Exhibit 1, page 72-73).
In relation to the proposed Driveway Gate, the Tribunal considers that:
(a)the proposed Driveway Gate is properly characterised as an extension of the Fence and, accordingly, the grounds for objecting to the Fence are also grounds for objecting to the proposed Driveway Gate; and
(b)in any event, in the absence of the Fence, a (selfstanding) driveway gate will not be in keeping with the Scheme development.

Each of the conclusions in [60]-[63] above is sufficient to preclude the Tribunal from being satisfied that the Fence and proposed Driveway Gate will not cause any significant inconvenience or detriment to the applicants.
For the reasons above, the application is successful and the applicants are entitled to orders which, pursuant to s 81, 'may be expressed in terms different from the order sought, so long as it does not differ in substance from the order sought'.

Final observation

For completeness, the Tribunal notes the grounds advanced by the applicants (see [38] above) included contentions that:
(a)they have, and will have into the future (including under s 61 of the ST Act, as amended: see [35] above), the benefit of a statutory easement to access and maintain their gutters along the Driveway Boundary;
(b)that easement will be unreasonably interfered with by the Fence and proposed Driveway Gate; and
(c)notwithstanding that the present application is to be determined under the Act as it stood prior to 1 May 2020 (see [3] above), the question of whether the Fence or proposed Driveway Gate will not cause any significant inconvenience or detriment to them should take account of any interference with an easement arising under the provisions of the ST Act (as amended) (see ts 79-80, 17 September 2020).
Given the conclusion reached at [64] above, it is unnecessary for the Tribunal to determine whether the applicants benefit from a statutory easement (whether under the ST Act as it was prior to 1 May 2020, or as amended) in relation to their gutters and, if so, whether that easement would be unreasonably interfered with such as to cause them significant inconvenience or detriment.
The Tribunal does observe, however, that if and to the extent that the applicants might have the benefit of a statutory easement relevant to their gutters under Part 5 Div 3 of the ST Act (as amended), it is not clear on the face of the evidence currently before the Tribunal that the existence of the Fence and proposed Driveway Gate would necessarily interfere with it. That is because any such easement would, going forward, give rise to a right of entry under s 65 of the ST Act (as amended), which is in qualified terms (rather than conferring unfettered rights of entry).

Orders

The Tribunal orders:
1.The respondent must, by no later than 30 January 2021, cause the fence which runs along, and generally about 65 centimetres from, the Lot 1 building wall, to be removed entirely, including by removing all component parts of the fence and making good affected surfaces.
2.The respondent must immediately stop carrying out any work associated with the erection of a gate attaching to the fence referred to in order 1.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B MCGIVERN, MEMBER
9 DECEMBER 2020