BURNS and THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414
[2006] WASAT 17
•30 JANUARY 2006
BURNS and THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414 [2006] WASAT 17
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 17 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:3603/2005 | ON THE PAPERS SITE INSPECTION: 11 JANUARY 2006 | |
| Coram: | DR B DE VILLIERS (MEMBER) | 30/01/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Orders made Application succeeds | ||
| B | |||
| PDF Version |
| Parties: | PAULINE BURNS THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414 |
Catchwords: | Property Strata titles Application to install an air conditioner on a lot Unreasonable refusal to alter the lot |
Legislation: | Strata Titles Act 1986 (WA) s 3AC(i), s 7B, s 7(2), s 7(2)(d), s 7(5), s 7(5)(b)(i), s 85, s 103F, s 103F(2), s 103F(3)(a), s 103F(3)(b) |
Case References: | Nil Nil |
Orders | 1. The application succeeds.,2. Pursuant to s 103F(2) of the Strata Titles Act 1986 the application by Ms Burns to insall an air-conditioner on the balcony of her lot is deemed to be approved by the strata company. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : BURNS and THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414 [2006] WASAT 17 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : ON THE PAPERS
- SITE INSPECTION: 11 JANUARY 2006
- Applicant
AND
THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414
Respondent
Catchwords:
Property - Strata titles - Application to install an air conditioner on a lot - Unreasonable refusal to alter the lot
Legislation:
Strata Titles Act 1986 (WA) s 3AC(i), s 7B, s 7(2), s 7(2)(d), s 7(5), s 7(5)(b)(i), s 85, s 103F, s 103F(2), s 103F(3)(a), s 103F(3)(b)
(Page 2)
Result:
Orders made
Application succeeds
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 Ms Burns applied for approval from the strata company to install an air-conditioner on the balcony of her apartment. The balcony forms part of the lot as per sheet 33 of Strata Plan 24414 registered on 26 May 1993. The apartment is situated on the third level of the complex Observation Rise, Scarborough. The complex has 157 units.
2 Ms Burns gave the following reasons in support of the application:
1. the apartment faces west into the afternoon sun and becomes very hot in the afternoons and remains hot during the evening;
2. the sliding door that opens on the balcony cannot be utilised at night due to the noise levels from West Coast Highway;
3. alternative air-cooling has been attempted but without success;
4. the air circulation in the apartment is poor and with the sliding door closed there is no movement of air through the main bedroom; and
5. some other apartments have installed air conditioners on their balconies albeit without approval.
3 The air-conditioning unit she proposed to install has the same colour scheme as that of the complex. The condensing part of the unit would be installed sideways to minimise its visibility from the street level. The width of the unit is approximately 28 centimetres which means the visual impact from the street level would be less than that of a large pot plant or outside furniture.
4 The strata company refused the application on grounds that seven objections were received to the application from proprietors pursuant to s 7(2) of the Strata Titles Act 1986 (WA) (ST Act). The reason for the objections is that the air-conditioner is a structure that would be visible from outside the lot and would not be in keeping with the rest of the development.
5 Ms Burns sought an order under s 103F of the ST Act to grant approval for the air-conditioner to be installed on grounds that the strata company was unreasonable in withholding its permission. The strata
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- company opposed Ms Burn's application on grounds of the objections and the concern that a precedent may be set for other proprietors to seek similar approval to install air-conditioners.
6 The Tribunal found that the consent has been unreasonably withheld. The reasons for the finding can be summarised as follows:
1. the visual impact of the air-conditioner would be minimal as the unit is situated on the third level and the balcony faces north west over a parking lot and beach;
2. the air-conditioner would only be visible in its width and it is of the same colour scheme as the complex;
3. an alternative option has been attempted but without success; and
4. the build-up of heat in the main bedroom makes the enjoyment thereof practically impossible during the hot summer months.
7 An order is therefore made under s 103F of the ST Act that the application to install an air-conditioner unit on the balcony of unit R311 (lot 86) is deemed to have been approved by the strata company.
Background to the application
8 Ms Burns lodged the application with the State Administrative Tribunal on 2 October 2005. Although the initial application was made under s 85 of the Strata Titles Act 1986 (WA) (ST Act), Ms Burns later amended to an application under s 103F of the ST Act since the application related to her lot and not the alteration of common property.
9 The request for permission to install the air-conditioner was considered at the Annual General Meeting of the owners on 23 August 2005 pursuant to s 7(2)(d) of the ST Act. The meeting failed to approve the request without dissent, with seven proprietors voting against it on grounds that it is not in keeping with the rest of the development and it would be visible from outside the lot.
10 The Tribunal visited the site on 11 January 2006 to familiarise itself with the location, the proposed placing of the air-conditioner, the line of sight from the road and other buildings to the balcony and any other relevant information. The persons who objected to the application were invited to attend the site inspection. None of them attended.
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11 The contractor who provided the quotation to install the air-conditioner was present to answer questions regarding the installation, noise level of the condenser and related matters. The strata manager Ms Pettit-Jones represented the Owners of Observation Rise. Ms Carole Wilson who works as a receptionist in the complex and who manages approximately 30 units for holiday-makers also provided information.
Legal framework
12 The two main provisions of relevance to the application are s 7(2)(d) and s 103F of the ST Act.
13 Section 7(2)(d) provides that a proprietor may not cause any alteration to a lot without approval as is expressed by a resolution without dissent. A resolution without dissent is defined by s 3AC(1) as a resolution passed at a duly convened Annual General Meeting of the strata company by a sufficient quorum with no vote being cast against it. Section 7B sets out further procedures to be followed for an application to alter a lot. Section 7(2) provides that a proprietor may refuse to give permission for the alteration on specific grounds as set out in s 7(5).
14 The seven proprietors objected on grounds of s 7(5)(b)(i) namely that the air-conditioner would be visible from outside the lot and is not in keeping with the rest of the development.
15 Section 103F provides that a proprietor who has sought but failed to obtain approval under s 7B may apply to the State Administrative Tribunal for an order that permission is deemed to have been given on the basis that it has been unreasonably withheld by the strata company or objectors (s 103F(3)(a)).
16 The Tribunal is satisfied that the Annual General Meeting of 23 August 2005 was properly constituted, that notice of the application was properly served and that the objections raised to the application was in compliance with the Act.
17 The question for the Tribunal to deal under s 103F(3)(b) is to determine whether the permission has been unreasonably withheld.
Has permission been unreasonably withheld?
18 When considering the reasonableness of the refusal to approve the application the Tribunal must take into account the interests of the objectors and interests of Ms Burns.
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19 The ST Act limits the right of a proprietor to erect a structure or alter their lot on grounds that such an alteration or structure may be detrimental to the interests of other proprietors due to its impact on the entire complex. Hence the recognition in the ST Act that any proprietor may withhold permission for a structure to be erected provided that the objection to a proposal complies with certain requirements as set out in the ST Act.
20 The ST Act however also provides that an objection to an application by a proprietor does not necessary constitute an absolute veto. Hence provision is made in s 103F for the Tribunal to make an order that permission is deemed to have been give if it (Tribunal) finds that the refusal by the strata company or a proprietor was unreasonable.
21 The objectors in this matter acted within their rights by raising concerns that an air-conditioner on the balcony of Ms Burns unit would be visible from the outside and that it would not be in keeping with the design of the building. Although the objectors did not attend the site inspection, Ms Pettit-Jones who is the strata manager, explained that the objectors were concerned that an approval may set a precedent and that additional air-conditioners would negatively impact on the external appearance of the building.
22 Their reasons for objection must however be balanced against the justification for approval as set out by Ms Burns.
23 The Tribunal will first deal with some of the physical aspects of the apartment and secondly with the specific living conditions of relevance to Ms Burns' application.
24 The apartment is situated at the third level of the complex and faces west-north-west. The western window, which fronts to the sea, cannot open. It is exposed to the afternoon sun. A sliding door gives access to the balcony which faces north-west. The balcony overlooks a secondary service road and a public parking area followed in the background by a townhouse complex and the beach. There are no buildings with a direct line of sight onto the balcony. Although the neighbouring unit might have sight of the air-conditioner, none of the neighbours lodged an objection to the proposal. Although the objectors did not refer to concerns about the possible noise that the air-conditioner might make, the Tribunal notes that the decibels of the proposed air-conditioner (60 decibels) is less than the 70 decibels of the air-conditioners that had been installed at the entrance of each apartment.
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25 According to the contractor who attended the site inspection the condensing unit can be installed in a way that would minimise its visibility from the road. The width of the unit is 28 centimetres, the unit will be installed so that only the width is visible from the street, no cabling will protrude from the back of the unit facing the street, the unit will be colour coded to be similar to that of the complex and at a height of three levels very little of it would be visible from the road. A large pot plant or external furniture would arguably be more visible than the air-conditioner.
26 The Tribunal will now address the living conditions on the main bedroom.
27 The air circulation in the apartment and in particular the main bedroom is very poor. The only source of fresh air in the main bedroom is by opening the sliding door. However this door opens to West Coast Highway which is so noisy that the door has to be closed throughout the night. Due to the fact that the western window is exposed to the afternoon sun from approximately 1 pm until 7.30 pm when the sun sets, the main bedroom in summer becomes a cocoon of stifled, hot air.
28 The lack of fresh air and the build-up of heat in the main bedroom were noticeable during the site inspection although it occurred at 11 am.
29 Ms Wilson who manages approximately 30 units for holiday-makers also noted that the western rooms of the complex were "boiling" in summer. She also mentioned that she receives continuous complaints in regard to the "sweltering" conditions in the apartments.
30 Ms Burns has attempted an alternative arrangement by using a mobile, ice-operated air-conditioner. However due to the heat in the main bedroom the ice melts so quickly that the mobile system has been shown to be ineffective and impractical.
31 Although the apartment has an air-conditioner situated at the front door, the layout of the rooms is such that there is no natural flow of air into the main bedroom. The air-conditioner mainly services the living and kitchen areas.
32 According to Ms Burns a precedent has already been set by the installation of air-conditioners on the balconies of a few other units. This observation was supported by Ms Wilson. Ms Pettit-Jones noted that the strata council has not received any complaints of unauthorised
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- air-conditioners and added that she was not aware of any unauthorised air-conditioners.
Finding
33 A balance has to be struck between the interests of the objectors and the interests of an individual proprietor such as Ms Burns. It is ideal for the interests to be harmonised but that is not always possible. In light of the absence of a policy by the council of owners to regulate the installation of air conditioners on the balconies, the Tribunal must determine each case on its merit.
34 The impact that the air-conditioner the subject of this application would have on the external appearance of the complex is far less intrusive than the unbearable heat and discomfort that Ms Burns has to suffer in her apartment. Perth is known for the harshness of its summers and in particular the build-up of heat in rooms that face the glaring afternoon sun. It is generally accepted that rooms along the coast that face in a westerly direction require some form of air-conditioning to make them habitable.
35 The Tribunal finds that the refusal of the strata company and the seven proprietors to approve the application to install an air-conditioner was unreasonable. It is completely reasonable for Ms Burns to be given approval to install an air-conditioner in an attempt to ameliorate the impact of the heat on the bedroom.
36 The application should therefore succeed and Mr Burns should be given permission to install the air-conditioner. The specific model that was demonstrated to the Tribunal is the Mitsubishi MCFZ-A18WV. The Tribunal will not make specific orders in regard to the model as it may be subject to change and availability.
Orders
1. The application succeeds.
2. Pursuant to s 103F(2) of the Strata Titles Act 1986 the application by Ms Burns to install an air-conditioner on the balcony of her lot is deemed to be approved by the strata company.
(Page 9)
- I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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