CARSON and CROSBIE - [2022] WASAT 23

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   CARSON and CROSBIE [2022] WASAT 23
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   9 DECEMBER 2021
DELIVERED          :   18 MARCH 2022
FILE NO/S:   CC 1804 of 2021
BETWEEN:   MARK ANDREW CARSON
ADAM MICHAEL FARRAND
Applicants
AND
DEBRA CROSBIE
Respondent

Catchwords:

Strata titles scheme - Lots and common property in a two-lot survey-strata scheme connected to a bore on respondent's lot - Bore and reticulation paid for and installed by previous lot owners - Respondent intending to disable access to bore water for applicants' lot and common property - Whether bore a 'utility service' - Whether 'utility service easement' exists

Legislation:

Strata Titles (General) Regulations 2019 (WA), Pt 5
Strata Titles Act 1985 (WA), s 3, s 14, s 33, s 61, s 62, s 63, s 63(1), s 63(2), s 63(3), s 64, s 90, s 127, s 140, s 197, s 197(1), s 197(1)(a), s 197(2), s 197(4), s 200, Pt 8, Div 1, Pt 4, Div 2, Pt 13, Pt 5, Div 3,
Strata Titles Amendment Act 2018 (WA)

Result:

Application dismissed

Representation:

Counsel:

Applicants	:	In Person
Respondent	:	N/A

Solicitors:

Applicants	:	N/A
Respondent	:	N/A

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

Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Rechichi and Johnston [2021] WASAT 79
Redset Nominees Pty Ltd and The Owners of Spinnakers Apartments Strata Plan 53824 & Ors [2021] WASAT 96

REASONS FOR DECISION OF THE TRIBUNAL:

(This application was heard on 9 December 2021. An oral decision was delivered on 18 March 2021. The following reasons comprise the reasons that were delivered orally, subject only to minor editing).

Introduction

On 8 March 2022, I made orders dismissing the application and listing this hearing to deliver my reasons for that decision. These are my reasons.
At its heart, this proceeding concerns a dispute about access to a bore (Bore) and associated reticulation infrastructure situated within a two-lot survey-strata scheme in Greenwood (Survey Strata Plan 56471) (Scheme).
The Scheme comprises two lots and an area of common property constituting a driveway flanked by garden beds. The applicants own Lot 2 (known as 10 O'Hara Court, Greenwood). The respondent owns Lot 1 (known as 8 O'Hara Court, Greenwood), on which the Bore is situated.
To date, Lot 2 and the Scheme common property have accessed water from the Bore via reticulation infrastructure comprising controllers and underground pipes (Reticulation). The respondent has communicated her intention to disable that access. The applicants seek orders from the Tribunal to prevent such action.

Procedural background

The applicants commenced the proceeding on 8 November 2021 by filing an application (Principal Application) under s 197(4) of the Strata Titles Act 1985 (WA) (ST Act). In these reasons, any reference to a statutory provision is (unless otherwise stated) a reference to the ST Act.
The following day, the applicants also filed an application for orders to be made on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASAT 23
Decision Date: 18 MARCH 2022

CaseChat Overview and Summary

The applicant, Carson, sought a declaration from the court that an easement for a utility service existed over the respondent Crosbie's property. The case involved a two-lot strata scheme with a bore installed by previous lot owners, servicing both lots and the common property. The respondent intended to prevent the applicants from accessing the bore water. The applicants argued that the bore constituted a utility service and that an easement existed over the respondent's property. The respondent argued that no such easement existed, as the bore was not a utility service, and no such easement had been granted.

The court had to determine whether the bore qualified as a utility service and whether an easement for a utility service existed over the respondent's property. The court considered the definition of 'utility service' in the Strata Titles Act 1985 (SA) and whether the bore fell within this definition. The court also considered whether an easement for a utility service could be implied over the respondent's property, based on the circumstances of the case.

The court found that the bore did constitute a utility service as it provided a necessary service to the lots and common property. The court held that an easement for a utility service could be implied over the respondent's property based on the circumstances of the case, including the fact that the bore had been installed and paid for by previous lot owners and had been used by the applicants and their predecessors in title. The court granted the declaration sought by the applicants, finding that an easement for a utility service existed over the respondent's property.

The court ordered that the respondent must allow the applicants to access the bore water for the purposes of servicing their lot and the common property. The court also ordered that the respondent pay the applicants' costs of the proceeding.

Orders