Bloomfield and Anor and the Owners of 15 Mason Court, South Lake - Strata Plan 16736

[2005] WASAT 246

BLOOMFIELD & ANOR and THE OWNERS OF 15 MASON COURT, SOUTH LAKE - STRATA PLAN 16736 [2005] WASAT 246

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 246
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:2754/2005	Heard:	DETERMINED ON THE PAPERS
Coram:	MR T CAREY (MEMBER)	Delivered:	8/09/05
No of pages:	7	Judgment Part:	1 of 1
Result:	Application successful Order made in terms of s 103F Strata Titles Act 1985 (WA)
Category:	B
PDF Version

Parties:	DIANNE BLOOMFIELD PATRICIA BINNEWEG THE OWNERS OF 15 MASON COURT, SOUTH LAKE - STRATA PLAN 16736
Catchwords:	Strata Titles – Application for approval to construct dwellings on lot refused by strata company – Ground for refusal not one of s 7(5) Strata Titles Act grounds – Whether approval should have been given and was unreasonably withheld – Whether breach of notice requirements under s 7B Consequences of breach for application – Strata Plan 16736
Legislation:	Strata Titles Act 1985 (WA), s 7, s 7B, s 103F
Case References:	Nil Nil
Orders	1. There is an order under s 103F of the Strata Titles Act 1985 (WA) declaring that the approval required under s 7 for the construction of two dwelling houses on lot 14 is deemed to have been given by the strata company.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : BLOOMFIELD & ANOR and THE OWNERS OF 15 MASON COURT, SOUTH LAKE - STRATA PLAN 16736 [2005] WASAT 246 MEMBER : MR T CAREY (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 8 SEPTEMBER 2005 FILE NO/S : CC 2754 of 2005 BETWEEN : DIANNE BLOOMFIELD

PATRICIA BINNEWEG
Applicants

AND

THE OWNERS OF 15 MASON COURT, SOUTH LAKE - STRATA PLAN 16736
Respondent

Catchwords:

Strata Titles – Application for approval to construct dwellings on lot refused by strata company – Ground for refusal not one of s 7(5) Strata Titles Act grounds – Whether approval should have been given and was unreasonably withheld – Whether breach of notice requirements under s 7B - Consequences of breach for application – Strata Plan 16736

(Page 2)

Legislation:

Strata Titles Act1985 (WA), s 7, s 7B, s 103F

Result:

Application successful

Order made in terms of s 103F Strata Titles Act1985 (WA)

Category: B

Representation:

Counsel:

Applicants : Mr G Papamihail
Respondent : Self­represented

Solicitors:

Applicants : George Papamihail Barristers & Solicitors
Respondent : Self-represented

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

Nil

Case(s) also cited:

Nil


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 The applicants, the executors of a deceased estate, sought the approval of a strata company for the construction of two dwellings on a vacant lot in the strata scheme. Previously, the late proprietor of the lot had sought and obtained the approval of the strata company to, in effect, excise his lot. The strata company refused to approve the applicants' proposal, apparently based on its agreement with the late owner.

2 By the time of the Tribunal's determination of the application (brought under s 103F Strata Titles Act1985 (WA)), the council of owners did not seek to contend that any permitted ground for objection under the Act applied. Indeed, it had indicated its agreement to the proposal subject to by-laws being agreed. However, the applicants expressing their desire for an early decision, the Tribunal proceeded with its determination.

3 The Tribunal found, in light of the concession by the council owners, that the requirements for an order under s 103F (that the approval of the strata company should have been given and that the withholding of approval was unreasonable) were met. It made an order declaring that approval for the construction of the dwellings was deemed to have been given.

Introduction

4 Frank Leonard Lucken was the proprietor of lot 14 in a 14 lot strata development at 15 Mason Court, South Lake. The strata plan was registered on 22 November 1988. Thirteen of the 14 lots are of a similar area, varying from 323 square metres to 378 square metres, and had a residential building constructed on them. Mr Lucken's lot 14 was of 851 square metres and was, and is, a vacant lot, the notation "residence demolished" appearing on the registered plan.

5 Mr Lucken was interested in exploring the possibility of excising his lot from the strata scheme. At a meeting of the strata council on 29 January 2002, a motion was passed by resolution without dissent whereby the strata company "agrees", amongst other things, to:

(a) the conversion of lot 14 to common property to be effected by transfer;

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(b) the transfer of the portion of the common property formerly comprised in lot 14 to the proprietor of lot 14.

6 It would appear that the device of converting Mr Lucken's lot to common property and thereafter transferring the relevant portion of common property back to Mr Lucken was an attempt to circumvent the absence of any provision in the Strata Titles Act1985 (WA) (the Act) for excision of a lot from a scheme. It is unnecessary for me to comment further on this aspect.

7 In the event, Mr Lucken took no further steps to have the property brought into a title solely in his name, for reasons which included the costs involved in doing so.

8 Mr Lucken died in October 2003. The applicants were appointed as executors of his will.

9 On 1 December 2004, the applicants made on application to the strata company for approval to construct two residential dwellings on lot 14. Copies of the proposed building plans were provided. The response was to request additional information about the ability of the existing sewer line to cope with the demands of the additional dwellings, which was duly supplied.

10 At an Annual General Meeting of the strata company on 6 April 2005, a resolution was passed by majority vote not to rescind the resolutions passed on 29 January 2002 "approving of the excision of lot 14 from the strata scheme". At the same meeting, by a motion on notice by the applicants, a resolution without dissent was sought agreeing to the application for construction of the dwellings on lot 14. The result, according to the minutes of the AGM, was as follows:

"As the Resolution to rescind the previous resolutions (made on 29th January 2002) … was not passed, this motion was overturned. As stated above, the Strata Company will not consider building on Lot 14, until they are aware of whether the motion to excise Lot 14 from the Strata Plan (29th January 2002) is binding or not."

11 Earlier in the minutes, in the section dealing with the "excision" motion, reference is made to a requirement that the strata company be made aware of whether the resolutions passed on 29 January 2002 were binding before the issues concerning lot 14 could be considered any further.
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Application and response

12 The applicants seek an order under s 103F of the Act, according to the application, "for the Tribunal to grant a resolution without dissent for 2 dwellings to be erected on vacant lot 14". This is not consistent with the language of s 103F, which allows the making of orders "declaring that the approval required under s 7 … is to be deemed to have been given by the … strata company" (s 103F(2)). According to the applicants, the strata company was unreasonable in rejecting their proposal, and failed to comply with the requirements for giving notice of its decision under s 7B of the Act. The applicants state their intention that after the dwellings are built, lot 14 will be re-subdivided to create two additional lots.

13 The response filed by the strata company attached what was described as "Minutes of Special Owners Meeting" held on 10 July 2005. According to the minutes, the owners of eight of the 14 lots (not including the applicants) were present, and that "all present are opposed to the proposed subdivisions of Lot 14". The minutes then set out the owners' objections to the proposal, which included the assertion that advice had been received from the Cockburn City Council that the proposal did not comply with plot ratio restrictions (see s 7(5)), that the proposal would mean the disclosure requirements under the Act had been breached, and that "continual issues" would arise from the different requirements of the new dwellings when compared with the existing units, which are about 16-years-old. It appears that none of these reasons was set out in a notice of the decision to reject the proposal (see s 7B(5) and s 7B(6)) and the significance of this will be touched on below.

14 A copy of a letter dated 4 August 2005, from the council of owners and counter-signed by the owners of five of the eight units referred to above to the applicants changes the situation. The letter advises that the council of owners agrees in principle to the proposal, subject to by-laws outlined in a meeting of the council on 21 July 2005 being drafted and presented to the council for endorsement. No record of that meeting, nor of the by-laws referred to, has been filed. At a directions hearing on 18 August 2005, members of the council conceded that none of the matters in the response "remained alive", but referred to the fact that the council's approval was subject to conditions which had not yet been met. It was pointed out by the presiding member that this was a matter for the parties, if the matter were to be resolved without the Tribunal's intervention. However, the applicants expressed their desire for a decision to be made on the application as soon as possible. The presiding member asked the members of the council whether they were in a position

(Page 6)

to consent to the application and was advised that they were not and was referred back to the council's letter of 4 August 2005.

15 The application was filed on 29 June 2005 as a result of the failure of the applicants' motion at the AGM on 6 April 2005. The Tribunal has, as one of its statutory objectives, to act as speedily as practicable and to minimise the costs to parties. In the circumstances, the applicants are entitled to a decision on their application.

16 The questions relevant to my determination of the application are:

1. Whether the requirements for an order under s 103F, namely, that the approval of the strata company should have been given but was unreasonably withheld (see s 103F(3)) are met; and

2. Whether notice of the strata company's decision was given as required, and if not, the consequences for this application.

Are the requirements of s 103F(3) of the Act met?

17 In light of the respondent's concession, there is no need for me to analyse in detail the requirements of the Act for a proprietor seeking the approval of the strata company for the erection of structures on a lot. The requirements, in the case of a strata scheme, are to be found in s 7 and s 7B of the Act. In the case of a lot that is not a vacant lot, the only ground upon which a proprietor may vote against a resolution to approve such a proposal is found in s 7(5)(a), that is, that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot. Given that the respondent no longer contends that this ground applies, it follows that the strata company should have given its approval in the first instance, and that the withholding of its approval has been unreasonable. This is sufficient to ground an order under s 103F.

Was there a breach of the notice provisions, and of what consequence is the breach, if any?

18 As the applicants have contended, s 7B(5) and s 7B(6) of the Act are to the effect that in a case such as this, where an application for approval under s 7(2) is not approved, written notice of the decision must be given to the applicant showing the ground or grounds disclosed by each proprietor who cast a vote against the resolution for approval. The applicants' claim that they received no such notice is not contested. It would appear that the only documentation in relation to the unsuccessful resolution that exists is the entry in the minutes of the AGM reproduced above. Section 7B(7) provides that if no notice of decision in accordance

(Page 7)

with s 7B(5) and s 7B(6) is given to the applicant, the approval applied for is to be taken to have been given. This somewhat draconian provision would appear to apply on the facts of this case. It is not necessary for me to decide the matter, however, for the two-fold reason that exactly the same result ensues as a result of my findings under s 103F, and the application is brought under s 103F and no other section.

Orders sought and made

19 As indicated earlier, the order sought in the application is not in terms which the Tribunal is permitted by s 103F to make. However, s 81(1) of the Act allows the Tribunal to make an order expressed in terms different from the order sought, provided it does not differ in substance from the order sought. In my view, the substance of the two orders is the same.

Order

20 The Tribunal makes the following order:

1. There is an order under s 103F of the Strata Titles Act1985 (WA) declaring that the approval required under s 7 for the construction of two dwelling houses on lot 14 is deemed to have been given by the strata company.







I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.









___________________________________

MR T CAREY, MEMBER