CASABLANCA HOLDINGS PTY LTD and ADVANCED LIGHTNING TECHNOLOGY PTY LTD
[2005] WASAT 174
•12 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: CASABLANCA HOLDINGS PTY LTD and ADVANCED LIGHTNING TECHNOLOGY PTY LTD [2005] WASAT 174
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 12 JULY 2005
FILE NO/S: CC 260 of 2005
BETWEEN: CASABLANCA HOLDINGS PTY LTD
Applicant
AND
ADVANCED LIGHTNING TECHNOLOGY PTY LTD
Respondent
Catchwords:
Strata titles - Settlement of a dispute - Refusal to exercise a power - Installation of gas heating - Digging of trench on common property
Legislation:
State Administrative Tribunal Act 2004 (WA), s 7, s 9, s 11(1)
Strata Titles Act 1986 (WA), s 17(1), s 35(1), s 77, s 83(1)
Result:
Orders made
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
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The applicant, who is the proprietor of Lot 2, seeks an order under s 83(1) of the Strata Titles Act 1985 (WA) ("the Act") for the resolution of a dispute with the proprietor of Lot 1. The dispute arises from the refusal of the respondent to exercise the power to give permission for the digging of a trench on common property. The trench is required for installation of gas supply to Lot 2. The applicant contends that the respondent is acting unreasonably in refusing to give approval for the digging of the trench to be commenced.
The applicant contends that they have taken all reasonable steps to obtain the consent of the respondent, that the consent has been unreasonably withheld, that the disruption to traffic to the Lots while the trench is dug would be minimal and that the request is fair and reasonable.
The respondent contends that although they are not opposed to the installation of gas supply, they hold concerns regarding the disruption to traffic, the possible impact thereof on their business, and the absence of a detailed works programme for the proposed digging.
Applicant and respondent
The applicant is the proprietor of Lot 2 on Strata Plan 7094 and is represented by Mr Roy Catt of PO Box 449, Claremont 6910.
The respondent is the proprietor of Lot 1 on Strata Plan 7094 and is represented by Mr Ken Miller of 250 Stirling Highway, Claremont 6010.
Submissions were received from the applicant and respondent. Enclosed in the submissions were records of previous correspondence and meetings to resolve the issue, photographs to show the location of the buildings, and drawings of the proposed work plan and related activities.
Application lodged with State Administrative Tribunal
The application was lodged with the State Administrative Tribunal ("SAT") on 14 February 2005. A directions hearing was held on 7 April 2005 before senior member Raymond.
The SAT was established on 1 January 2005 under s 7 of the State Administrative Tribunal Act2004 (WA) ("SAT Act").
The application for relief was lodged in terms of s 77 of the Act. The applicant did not certify, as is required by s 77B, that the strata company had no by‑laws to regulate the resolution of a dispute. However, no submissions were received in regard to the existence of alternative dispute resolution by‑laws. Due to the urgency of the application and the fact that it has been ongoing for more than a year I am willing to proceed therewith. In exercising its jurisdiction SAT deals with a matter in accordance with the SAT Act and the enabling Act, which in this case is the Act.
The matter is determined on the papers pursuant to s 60(2) SAT Act as ordered by senior member Raymond on 7 April 2005.
The President of SAT nominated me on 5 July 2005 pursuant to s 11(1) of the SAT Act to constitute the Tribunal to determine the application.
I have now considered the submissions and attachments and make the following determination.
Parcel
The strata complex referred to as the Owners of Strata Plan 7094 in the Town of Claremont comprises two lots. The buildings are described as "brick and iron showrooms and warehouses". The complex is situated at 250A and 250B Stirling Highway, Claremont.
It is shown on the floor plan that the lots are adjacent to each other. Each lot has one unit entitlement. The lots also share common property. The common property affected by the proposed digging is situated at the entrance of the complex. The approval of both parties is required for work affecting the common property to be conducted.
Strata plan and Strata Titles Act
The Strata Plan was registered on 14 November 1979 pursuant to the Strata Titles Act 1966 (WA) ("the 1966 Act").
In 1985, the 1966 Act was repealed and replaced by the Act, which continues to be the relevant Act.
In these reasons, unless otherwise specified, all references to sections and Schedules are, respectively, references to sections of and Schedules to the 1985 Act.
The provisions of the Act of relevance to the application are the following:
Section 17(1):
"Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots."
Section 35(1):
"A strata company shall –
(a)enforce the by‑laws;
(b)control and manage the common property for the benefit of all the proprietors … "
Section 83(1):
"The State Administrative Tribunal may, pursuant to an application if a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme…"
By-laws
The by‑laws provide the following in regard to the application under consideration:
Schedule 1 s 1(2):
"A proprietor, occupier or other resident of a lot shall –
(a)use and enjoy the common property in such a manner as not unreasonably interfere with the use and enjoyment thereof by other proprietors, occupiers or other residents, or of their visitors;
(b)not use the lot or permit it to be used in such a manner or for such a purpose as causes a nuisance to any occupier of another lot …"
Schedule 2 s 13:
"A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by-laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before the commencement of the alteration, a written notice describing the proposed alteration."
Schedule 2 s 14:
"A proprietor, occupier or other resident of a lot shall not, without the written consent of the strata company, maintain within the lot anything visible from the outside that, viewed from the outside of the lot, is not in keeping with the rest of the building."
State Administrative Tribunal Act 2004 WA
Section 9 states as follows:
"The main objectives of the Tribunal in dealing with matters within its jurisdiction are –
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case …"
Applicant's submission
The following paragraphs provide a summary of the main elements of submissions and photographs by the applicant:
(a)The request to have heating installed in the building situated on Lot 2 is fair and reasonable. Staff have complained that conditions inside the buildings are "freezing". Other alternatives have been considered but are unpractical.
(b)Meetings have occurred with the respondent and information provided to them but they have unreasonably refused to agree for the digging of the trench to occur.
(c)The disruption to traffic would be minimal and temporary and a person nominated by the tenant (Trilogy Furniture) would be on duty during the digging to ensure that traffic flow continues. The risk of possible disruption of traffic is therefore overstated by the respondent.
(d)The number of cars accessing the parking area is low. At no time will the car park be completely blocked or access to businesses prevented.
(e)This type of installation has been done many times by Alinta and the contractors who will dig the trench are experienced in these matters. It is expected that the works would be completed within 3 days. A detailed plan dated 17 April 2005 has been prepared by the tenant. Canning Vale Air Conditioning has confirmed that underground boring is feasible. This would further reduce any discomfort to other tenants or customers.
(f)All the necessary plans have been submitted to the respondent and concerns raised by them have been addressed.
(g)The actual work will take place at a time and in a manner to minimise any inconvenience to costumers as far as possible, but even in the event of some inconvenience, business would be able to continue.
(h)The tenant of Lot 2 signed an undertaking on 21 June 2004 to the effect that they will meet all costs as may be incurred for the installation of the gas line, including digging of the trench.
(i)The dispute has been ongoing for more than a year and with another winter (2005) approaching it is reasonable to address the complaint urgently.
Respondent's submission
The following paragraphs provide a summary of the main elements of the submissions by the respondent:
(a)They do not object to the installation of gas heating in Lot 2 but they object to the proposed digging of a trench as it has the potential to severely disrupt their business. The applicant has failed to adequately address their concerns regarding continued access to the businesses while digging is under way.
(b)Insufficient detail of the proposed works is available and no written schedule of intended works have been provided.
(c)Several containers are expected to arrive in May 2005 and an obstruction of the access way would cause financial losses and disruption to the respondent.
(d)It would be preferred if the proposed works were to occur outside business hours so as to minimise any detrimental impact on the other activities within the complex.
(e)No detail has been provided to the strata company regarding the bollard and gas meter box, footing size, height, finish etc.
Consideration
The Act contains several provisions that are relevant to this application. The main provisions of the Act are quoted above.
In summary, the Act provides that common property is held in common by all proprietors; the strata company has to control and manage the common property for the benefit of all owners; a resident may not use the common property in a manner that causes a nuisance to others or unreasonably interferes with their enjoyment of the common property; a proprietor may not without the written consent of the strata company alter the structure that is not in keeping with the rest of the building.
The Act anticipates that disputes may arise from time to time between proprietors and hence the Tribunal is placed in a position to make a determination within the framework of the Act and by-laws thereto. The Tribunal has to balance the interests of the respective parties and take into consideration the impact that a decision might have on the party who opposes it.
The applicant has attempted over a period of more than 12 months to secure approval from the respondent for minimal digging to occur on the common property. It is estimated that the digging and restoration of the surface would be completed within 3 days. The applicant has retained a reputable company to undertake the digging. The concerns of the respondent fall into two categories namely possible disruption to traffic and the provision of a work plan. The respondent indicated previously that they do not object to the installation of gas heating in Lot 2.
In response to the concern regarding traffic flow the applicant submits that disruption, if any, would be minimal and that at no stage would the entire parking area be closed off to the public or staff. The tenant of lot 2 has also offered to provide a person to be on duty to direct traffic in the event of any blockages. This seems to me a reasonable offer and should address the concerns raised by the respondent. The respondent has failed to demonstrate why the proposed activity would unreasonably interfere with the use and enjoyment of the common property by other proprietors, occupiers or other residents, or of their visitors.
In response to the request for a work plan, I note the detailed proposal dated 17 April 2005 drawn up by the tenant of Lot 2. I note there is no intention on the part of the applicant to permanently alter the structure of the common property. The gas pipe will be below ground and any damage to the common property would be restored. The external equipment that may accompany the installation of a heater can hardly be classified as not being in keeping with the building if account is taken that the building is used for commercial purposes where air-conditioning and heating may be required by staff and customers. I am satisfied that the work plan of 17 April 2005 read with the letter from Canning Vale Air Conditioning dated 16 June 2004, the letter from Alinta dated 17 June 2004 and enclosed sketch are adequate given the limited scope of the intended works.
I respect the right of the respondent to protect his interests in the common property, but it seems as if the delays caused have been excessive and with little if any justification. It also appears that the respondent has not really made an effort to resolve the dispute by proposing dates that would suit him or possible measures to ensure that traffic flow is not too severely disrupted.
Finding
The application should succeed under s 83(1) of the Act on the basis that the respondent had failed to exercise his authority in a reasonable way.
Orders
1.The application succeeds.
2.The applicant may proceed to arrange for the installation of gas supply to Lot 2 and the digging of trench on common property on basis the plan of works dated 17 April 2005 subject to the following conditions:
(a)a person must be nominated by the applicant to be in attendance while digging occurs so as to minimise any disruption to traffic; and
(b)the applicant must arrange for the digging of the trench to occur in a manner and at a time that would minimise disruption of traffic as far as is reasonable and practicable.
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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