BRAMLEY and THE OWNERS OF 52 WICKHAM STREET STRATA PLAN 59237

[2013] WASAT 127

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   BRAMLEY and THE OWNERS OF 52 WICKHAM STREET STRATA PLAN 59237 [2013] WASAT 127

MEMBER:   MS NATASHA OWEN-CONWAY (MEMBER)

HEARD:   20 JUNE 2013

DELIVERED          :   14 AUGUST 2013

FILE NO/S:   CC 637 of 2013

BETWEEN:   STEVE BRAMLEY

Applicant

AND

THE OWNERS OF 52 WICKHAM STREET STRATA PLAN 59237
Respondent

Catchwords:

Strata Titles Act 1985 (WA) ­ By­laws conferring the exercise of a discretion on the respondent ­ Council of owners' exercise of discretion for the respondent ­ Acting reasonably in making a decision under a by­law ­ Application to the respondent to grant a lot proprietor written consent to keep pets on the proprietor's lot ­ Turns on own facts

Legislation:

Strata Titles Act 1985 (WA), s 42(1)(c), s 83(1)

Result:

Application dismissed

Summary of Tribunal's decision:

<summary>The applicant purchased a lot in the strata development.  The by­laws prohibit the keeping of pets without the written consent of the respondent.  The applicant's application to keep two cats on his lot was refused by the respondent.  The applicant asserted that the respondent did not act reasonably as required by the by­laws.  The Tribunal found that there was no evidence that the respondent failed to act reasonably.  The respondent took into account certain factors including the maintenance of the common property to an 'executive' apartment standard, the wishes of other lot proprietors, the health risk to one lot proprietor and the primary position expressed by the by­laws that pets were prohibited unless expressly consented to.  The respondent also considered the difficulty of managing and policing any conditions attached to any consent.  The application was dismissed.

</summary>

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr B Delfante (Acting as Agent)

Solicitors:

Applicant:     N/A

Respondent:     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. By application dated 22 May 2013, the applicant made application to the Tribunal against the respondent for the following orders:

   1)to direct the respondent's council of owners to approve the applicant's application to keep his two cats at his apartment; and

   2)to direct the respondent's council of owners to allow visitors to the applicant's apartment to bring their dog to his apartment.

2. The applicant asserts that the respondent has not acted reasonably in refusing his application made pursuant to the relevant by­laws. The application to the Tribunal is made pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act).

Documents

1. The applicant provided the following documents to the Tribunal upon filing his application:

   1)minutes of meeting of the council of owners 2 April 2013;

   2)minutes of meeting of the council of owners 3 April 2013;

   3)proposed pet charter sent to the respondent on 30 April 2013;

   4)minutes of the meeting of the council of owners 14 March 2013;

   5)copy schedule to by­laws for the strata company;

   6)certificate of title to applicant's lot (Lot 3); and

   7)copy strata plan.

2. On 4 July 2013 (and in apparent response to the Tribunal's orders made on 20 June 2013 to file a statement of issues, facts and contentions and all documents on which he proposes to rely in the proceeding), the applicant filed the following documents:

   1)Timeline of Pets Application;

   2)Appendix A ­ council meeting minutes 2 February 2013;

   3)Appendix B ­ email from applicant to respondent attaching proposed pet charter;

   4)Appendix C ­ proposed pet charter;

   5)Appendix D ­ council meeting minutes 16 April 2013;

   6)Appendix E ­ letter to respondent from applicant (undated);

   7)Appendix F ‑ council meeting minutes 14 May 2013; and

   8)Appendix G ­ relevant schedule to by­laws for the strata company.

3. In essence, many of the documents attached to the Timeline of Pets Application filed on 4 July 2013 are substantially the same as those attached to the application.  The documents do not identify the issues and the applicant's contention or how the facts affect the issues and contentions for the purposes of resolving the dispute by the Tribunal.

The strata by­laws

1. The strata development was recently registered (10 December 2012) as identified by the certificate of grant of approval dated 15 November 2012 and the strata plan application dated 10 December 2012 (Exhibit 1).  The applicant became the registered proprietor of his lot with another on 12 December 2012 (Exhibit 2).

2. There is no dispute between the parties that Sch 2 By­laws 9 to 11 inclusive, identified by the applicant, are the relevant and lawful by­laws of the respondent (Exhibit 3).  Schedule 2 By­laws 9 to 11 inclusive are additional to those provided by the ST Act.

3. By­law 9 provides:

   An Owner will only be permitted to keep Pets in its Lot if the Owner obtains the prior written consent of the Strata Company to do so.

4. By­law 10 provides:

   Without limited By­law 11, the Strata Company will act reasonably when requested to give its consent under By­law 9.

5. By­law 11 provides:

   The Strata Company will be entitled to refuse to give its consent under By­law 9 if the Strata Company forms the opinion, on reasonable grounds, that the intended keeping of the relevant pet, will, or is likely to, do any of the following:

   11.1adversely impact on the health or hygiene of other owners;

   11.2interfere with the peaceful and quiet enjoyment of owners;

   11.3otherwise result in a breach of the By­laws; or

   11.4breach any applicable laws or regulations.

6. By­law 9 prohibits the keeping of pets at the strata development unless the strata company has granted written consent.  The power to grant written consent to a lot proprietor to keep a pet is conferred upon the respondent.  That power is qualified by By­law 10 which imposes an obligation on the respondent when exercising the By­law 9 power to exercise the power by acting 'reasonably'.  By­law 11 identifies some specific circumstances that 'entitle' the respondent to refuse an application to keep pets.  By­law 11 does not confine the general power conferred by By­law 9 to the four circumstances identified in By­laws 11.1 and 11.4.  If the circumstances of an application do not fall within By­law 11, the respondent may still refuse an application, provided it acts reasonably when considering the application.

7. In this proceeding, the parties have not provided the Tribunal with any general meeting resolutions restricting the council of owners' exercise of the respondent's powers.  There was no issue between the parties that the By­law 9 power conferred on the respondent was lawfully exercised by the council of owners.  The Tribunal notes that the standard Sch 1 By­law 4(1) provides that:

   The powers and duties of the strata company shall, subject to any restriction imposed or direction given at a general meeting, be exercised and performed by the council of the strata company …

The issues

1. Has the council of owners of the respondent acted reasonably in considering the applicant's application made pursuant to By‑law 9 and in refusing the applicant's application?

The facts

1. The applicant has two cats which reside on his lot.  He made application to the respondent for written consent to keep the two cats on his lot.  The applicant has proposed a number of strategies in the proposed pet charter so as to reduce the contact of the cats with other lot proprietors, including not 'leaving' the cats on the balcony of his lot.

2. The respondent asserts that it is in the nature of cats to roam and it is not unreasonable to expect that if a person keeps a cat or cats on their lot, it is very likely that those cats will be required to have exercise outside the lot.  It is very likely, the respondent asserts, that the cats will inevitably roam around the common property and possibly on the open balconies belonging to other lot proprietors.  The respondent asserts that it was not unreasonable for the respondent to have refused the applicant's application, given the nature of cats to roam, their inevitable need for exercise, their ability to access balconies of other lot proprietors and the difficulty in restraining and confining cats.  The respondent also relied upon evidence that other lot proprietors were against the grant of consent, and one was allergic to cats.  The respondent's documents comprise a letter dated 5 June 2013 and the following attachments:

   a)a letter dated 1 June 2013 from Steven Friend (Mr Friend), a lot proprietor; and

   b)an email dated 6 June 2013 from John Bezley (Mr Bezley), a lot proprietor.

3. The email dated 6 June 2013 contains a statement from Mr Bezley:

   My wife has extreme allergies to cats …

   The Wickham Street apartments were purchased with a no pet policy and this policy must be upheld.

   The last thing we want [is] for cats on our balcony and having to listen to barking/yapping dogs even if it [is] only from visitors['] pets.

4. In addition, the respondent raised the concern of cleanliness of the common property and the need to maintain the quality of the executive apartments.

5. The respondent considered the following matters:

Cleanliness

1. The respondent says that it is not unreasonable to anticipate that cats will roam and have access to the common property which includes barbeques, lounges, tables and well­maintained gardens.  The respondent considers that these are executive­style apartments and that it wishes, along with the other lot proprietors, to maintain the strata development to a very high standard so as to maintain the value of the apartments.  The respondent asserts that the cats roaming across these areas will detract from the enjoyment of other lot proprietors and will cause deterioration in the gardens unless extra work is performed and paid for by the respondent to maintain the high­quality gardens.  Mr Bezley, in his email, has raised this issue.

2. The applicant's proposed pet charter provides that the pets must not be left on the balconies and that they only have access to the common property for transport to and from the proprietor's lot.

Nuisance

1. The respondent considers that if a lot proprietor keeps cats and they are likely to roam upon the common property and upon the lots of others, it will attract other cats in the neighbouring location.  There is no evidence from a veterinarian or any animal behaviourist to support this assertion, but the respondent asserts it is not beyond the knowledge of the respondent members that this is the case with cats.

2. Mr Friend's letter indicates that he observed a cat jump onto the balcony of the applicant's lot.  It is not clear from that letter whether that cat was one of the applicant's cats or another cat who was attracted to the applicant's lot because he accommodated his pets.  No weight could reasonably be placed upon this letter.  However, the Tribunal considers that a consideration of the possibility of attracting neighbourhood cats is reasonable.

3. The applicant's proposed pet charter provides that the pets not be permitted on the common property save for access to and from the proprietor's lot.

Health

1. There was some evidence before the respondent, and now before the Tribunal, that at least one lot proprietor has a significant allergy to cats.  Mr Bezley's email asserts that his wife is allergic to cats.

2. The applicant's proposed pet charter reduces the risk of contact with other lot proprietors.

3. The Tribunal considers that it is not unreasonable, when one lot proprietor indicates that they have a health reason for not wishing to have cats in their strata development, that this be given significant weight.

Financial

1. The respondent asserts that allowing cats and any other pets to reside in a lot is likely to reduce the value of the units, largely because they will cease to have the quality that makes them executive­style accommodation.  There is no evidence before the Tribunal to support that contention.

Prior applications

1. The respondent asserts that it has made the decision to refuse the applicant's application consistently with an earlier application.  The consistency of the respondent's decisions is suggestive of a reasoned rather than arbitrary approach to and consideration of applications made pursuant to By­law 9.

No pets policy

1. The Tribunal has not been provided with a 'no pet policy' as referred to by Mr Bezley.  If Mr Bezley in his letter intended to refer to the provisions of By­law 9 then he is mistaken, because that By­law does not identify a 'no pet policy'.  It provides a prohibition on keeping pets without the prior written consent of the respondent and it may be inferred that the primary position is that there should be no pets kept at the strata development.  It might be inferred that some fact, other than the fact that the applicant desires to have a pet or pets on his lot, is required to persuade the respondent to grant consent to an application to keep pets on a lot.  However, By­law 9 does not absolutely prohibit the respondent from giving its written consent.

Consideration

1. The primary position is that the strata development is pet‑free, save when written consent of the respondent is provided.  The respondent in exercising that power must act reasonably (By­law 10) and is specifically entitled to refuse where By­laws 11.1 to 11.4 apply.

2. In construing By­laws 9 to 11, the Tribunal considers the applicant bears the onus of addressing any impact on the strata development and other lot proprietors of keeping a pet or pets on a lot.

3. The respondent must, in exercising the By­law 9 power, consider the position of all lot proprietors and their enjoyment of their lots and the common property as is required for the passing of a by­law as provided for by s 42(1)(c) of the ST Act. All of the factors considered by the respondent are relevant to the respondent's obligation to the management, control, use and enjoyment of all of the lots and the common property. That is, the factors are relevant to the enjoyment of all of the lot proprietors of their lots and the common property. The desires of other lot owners, the prima facie position that no pets are permitted by the By­laws, the health of other lot proprietors and the style of accommodation and the standard to which it is intended to be maintained by the respondent are all relevant factors. There is no evidence that the respondent has failed to have regard to the applicant's application or has not applied a reasoned approach to the applicant's application. Further, there is no evidence that the respondent has refused the applicant's application arbitrarily and, to the contrary, there is some evidence in the form of the respondent's written material that it has taken a consistent approach to the By‑law 9 applications.

4. The Tribunal considers that the respondent has acted reasonably when considering the applicant's application pursuant to By‑law 9.

5. Further, in having regard to Mr Bezley's letter that his wife is allergic to cats, and for that reason, the respondent has reasonable grounds to form the opinion that a lot proprietor's health will be adversely affected.  By reason of By­law 11.1, the respondent was entitled to refuse the applicant's application.

The proposed pet charter

1. The applicant's proposed pet charter is a document which the applicant advanced as being a basis for the respondent to make decisions in the context of By­law 9 matters.  If adopted by the respondent at a general meeting, it might form a basis for the respondent to make decisions in the future.  However, it is not the standard of 'reasonable' by which the conduct of the respondent is to be measured when making a decision pursuant to By­law 9.

2. Further, the respondent gave consideration to the difficulty of managing, policing and enforcing any conditions of the kind identified in the proposed pet charter, which difficulty alone might well reasonably justify the refusal of an application based on the conditions identified in the charter.

Conclusion

1. For these reasons, the Tribunal concludes that it was open to the respondent to have refused the applicant's application for the keeping of pets on his lot and that it acted reasonably in refusing his application made pursuant to By­law 9.  Further, the Tribunal concludes that the respondent was entitled to refuse the applicant's application made pursuant to By­law 9 based upon By­law 11.1.  For this reason, the applicant's application for order 1 is dismissed.

Other matters

1. There was no evidence produced that there was an application put before the respondent to allow the applicant's visitors to bring their pet (a dog) onto the strata development. Because that matter has not yet been the subject of an application to the respondent, the latter has not refused an application and there is no dispute on foot between the parties as to whether the respondent exercised the power conferred by By­law 9 by not acting reasonably. As such, that matter is not properly the subject of an application to the Tribunal pursuant to s 83(1) of the ST Act. For this reason, the applicant's application for order 2 is dismissed.

Orders

1.The applicant's application for an order directing the respondent to approve the applicant's application to keep two cats on his lot is dismissed.

2.The applicant's application to direct the respondent to allow visitors to attend the strata development and to bring their dog is dismissed.

I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS NATASHA OWEN-CONWAY, MEMBER