BLAZEY and HUNTER

The applicants, BLAZEY and HUNTER, brought a proceeding in the Supreme Court of Western Australia against the respondent, who is their neighbour, in relation to a fence and gate proposed to be erected on the boundary between their respective lots in a strata scheme. The applicants sought relief from the court in relation to the fence and gate, claiming that the respondent had erected the fence and was proposing to erect the gate without their consent, and that the fence and gate would cause them significant inconvenience and detriment. The applicants argued that the fence and gate were structures within the meaning of s 7 of the Strata Titles Act 1985 (WA) and that the respondent had breached s 7(2) by erecting the fence without their consent. They also contended that the fence and gate were not necessary and would cause significant inconvenience and detriment to them.

The court was required to determine whether the fence and gate were structures within the meaning of s 7 of the Strata Titles Act 1985 (WA) and whether the respondent had breached s 7(2) by erecting the fence without the applicants' consent. The court was also required to determine whether the fence and gate would cause significant inconvenience or detriment to the applicants for the purposes of s 103G(4) of the Strata Titles Act 1985 (WA). The court had to consider the relevant statutory provisions, the default by-laws, and the applicants' contentions in making its decision.

The court found that the fence and gate were structures within the meaning of s 7 of the Strata Titles Act 1985 (WA) and that the respondent had breached s 7(2) by erecting the fence without the applicants' consent. The court also found that the fence and gate would cause significant inconvenience and detriment to the applicants. The court noted that the applicants had the benefit of a statutory easement to access the gutters along the northern aspect of their dwelling and that the fence and gate would interfere with their ability to exercise that easement. The court also found that the fence was not in keeping with the rest of the building or the Scheme development and that the fence and gate were not necessary. The court made orders restraining the respondent from erecting the gate and requiring her to remove the fence within a specified period.

The final orders made by the court were that the respondent was restrained from erecting the proposed Driveway Gate and required to remove the Fence within 28 days of the date of the orders. The respondent was also ordered to pay the applicants' costs of the proceeding. The applicants were awarded damages for the loss of amenity caused by the Fence.