| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : CLARK and THE OWNERS OF WATERFRONT MEWS STRATA PLAN 14082 [2011] WASAT 110 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 30 MAY 2011 DELIVERED : 14 JULY 2011 FILE NO/S : CC 1896 of 2010 BETWEEN : JOHN FRANCIS CLARK Applicant
AND
THE OWNERS OF WATERFRONT MEWS STRATA PLAN 14082
Respondent
Catchwords: Strata titles Extent of obligation to keep swimming pools in good and serviceable repair Whether within control and management of common property for swimming pools to be closed for extended periods Legislation: Strata Titles Act 1985 (WA), s 17(1), s 18, s 35(1), s 35(1)(d), s 42(4), s 81(10), s 83(1), Sch 1 bylaw 12(1), Sch 1 bylaw 11(5)
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Result: Application granted Category: B
Representation: Counsel:
Applicant : In person
Respondent : Mr W Kiddle and Mr R Murphy (Acting as Agents)
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Banning and The Owners of 106 Terrace Road, Perth Strata Plan 6289 [2006] WASAT 296
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Rucci & Anor v The Owners of 95 Mandurah Terrace, Mandurah Strata Plan 20610 [2002] WADC 33
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
The Owners of Rosneath Farm Survey Strata Plan 35452 and Rowell & Anor [2007] WASAT 95
Velovski and The Owners of Hector Gardens Strata Plan 6448 [2004] WASTR 12
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant applied under s 83(1) of the Strata Titles Act 1985 (WA) for orders requiring the respondent firstly, to reopen one of two swimming pools situated in the common property of the strata complex and secondly, to properly maintain both swimming pools in good and serviceable condition. 2 One of the swimming pools had been closed for more than a year in order to reduce the costs of its operation. The other pool was also closed during the winter months. As a result of the closure of the first pool and because it was only cleaned at approximately monthly intervals, it was often full of debris and not in a condition fit to be used. 3 The Tribunal examined the extent of the respondent's maintenance obligations as explained by Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 and concluded the respondent was not in breach of its maintenance obligations merely because the chemicals supplied to the swimming pool had been reduced as asserted by the applicant. However, to the extent that the condition of the pool had deteriorated as a result of falling debris, leaves and other matter, the respondent was held to be in breach of its maintenance obligation. 4 The Tribunal also examined a number of decisions reflecting circumstances in which a strata company in the exercise of its control and management of the common property can take steps affecting an owner's right to use the common property. The Tribunal concluded that a decision to close a swimming pool for limited periods, such as over the winter months, could be justified as an exercise of the power to control and manage common property for the benefit of all the proprietors. It could not use that power to close a swimming pool, as in this case, merely to effect cost savings for a period of in excess of a year as to do so is contrary to the right of a proprietor as a tenant in common of the common property. 5 The Tribunal also found that the respondent had breached its maintenance obligations by failing to remove graffiti on a gazebo, by not ensuring that depth markers were clearly visible and accurate, and by not keeping available all necessary first aid equipment. Orders were accordingly made in favour of the applicant. (Page 4)
The application and issues for determination 6 The applicant is the registered proprietor of Lot 52 on Strata Plan 14082. 7 The strata plan consists of 57 lots comprised within three separate buildings. Lots 1 to 21 are contained within two buildings and have the postal address Units 1 21, No 7 Riverslea Avenue, Maylands (together referred to as the Riverslea buildings). Lots 22 57 are contained within the remaining building and have the postal address Units 22 57, No 1 Bardon Way, Maylands (the Bardon buildings). The rest of the land within the parcel comprises common property. Included within the common property are two swimming pools. A smaller pool is located closer to the Riverslea buildings and is referred to as the Riverslea pool. A larger swimming pool is located closer to the Bardon building and is referred to as the Bardon pool. 8 The orders sought by the applicant are directed towards ensuring that the swimming pools are properly maintained in good and serviceable repair. However, the grounds to the application disclose that the primary basis of the claim is that one of the pools (subsequently identified as the Riverslea pool) has been closed and the applicant seeks that it be reopened. Later submissions by the applicant also identified maintenance issues in respect of what is understood to be a reference to the Bardon pool area. The complaint related to graffiti on a gazebo adjacent to that pool, a slashed shade cloth and the absence of a first aid kit. The applicant's submission also reflects that the Riverslea pool was vacuumed only every 28 days and that its condition is such as to reflect neglect or poverty. In oral submissions the applicant expanded on this and described in more detail that leaves and vegetable matter collected on the bottom of the pool and, in the case of leaves, on the surface (presumably until they sank). The impression clearly conveyed is that the pool is in no state fit for anyone to swim in and that it looked neglected. The case presented by the applicant is that the Riverslea pool had been closed for more than a year and that the respondent had resolved to keep it closed. Further, that the Bardon pool was now being closed over the winter months as well. The representatives for the respondent did not dispute this last assertion. 9 The application raises the following issues for determination. 1) Did the respondent fail to comply with any statutory requirements in giving notice of the meeting of the annual general meeting which took place on 23 June 2010 when a resolution was passed that the Riverslea pool be (Page 5)
10 In these reasons for decision, unless otherwise specified, all references to sections, schedules or by-laws are respectively references to the sections or schedules of the Strata Titles Act 1985 (WA) (ST Act) or the by-laws under the schedules thereof.
The relevant evidence 11 The Tribunal has considered all of the material filed in support of or in opposition to the application. The following evidence or material is relevant to the determination of the matters in issue. 12 A notice of the annual general meeting to be held on 23 June 2010 was sent to proprietors and is dated 2 June 2010. The notice of agenda made no specific reference to any proposal for the closure of either of the swimming pools. It did, however, give notice of the proposed budget to be considered and, if appropriate, adopted at the annual general meeting. That budget included costs of $3,265 for pool monitoring and $4,138.28 for pool maintenance and supplies. The agenda also gave notice that there would be consideration of matters arising from the minutes of the previous annual general meeting. 13 The minutes of the annual general meeting held on 23 June 2010 show that one of the matters arising from the minutes of the previous annual general meeting was the question of opening times for the swimming pools. The applicant, according to the minutes, suggested altering the opening times for the pools. He suggested that the Bardon pool be kept open from 22 October (2010) to the end of Anzac Day (2011) (which is understood to effectively mean to the end of the Anzac Day weekend in late April of each year). He also suggested that the Riverslea pool be open from 1 December (2010) to 10 March (2011) inclusive. The minutes reflect that the matter of the pools was discussed at length and it was suggested that the Riverslea pool be closed and 'Winterised' permanently in an effort to save funds 'as the pool is hardly utilised and those that would wish to have a swim could use the Bardon pool'. At the conclusion of the discussion of matters arising from the (Page 6)
minutes, a motion by simple resolution was moved that the Riverslea pool be permanently 'Winterised' as an experiment in order to save costs for a period of 12 months and, furthermore, that the 'COM [Council of Management] monitor this matter and assess as required'. The motion was carried with only a vote from the applicant being recorded against it. 14 On 3 March 2011 the applicant filed a number of documents in support of the application. Included were a series of photographs showing graffiti on the gazebo. Considered in conjunction with the oral submissions and evidence provided by the applicant at the final hearing, it is understood that the photographs depict the immediate area surrounding the Bardon pool and, in particular, the gazebo which is there located. The applicant stated that one of the depth markers reflects a depth of 11 metres instead of 1.1 metres (which presumably indicates that the original marking has become indistinct) and there is no first aid kit and blanket in the first aid box. Also enclosed is an undated petition signed by 50 persons. It is understood that all but five of the signatories are tenants within the strata parcel. According to the applicant, five of the signatories, who were not identified, are owners of lots within the strata scheme. It is to be noted that despite notice of the proceedings, together with an order of the Tribunal setting out the process by which notified persons could apply to be joined in the proceedings, no other owner has sought to be joined as an applicant. There have, however, been submissions filed by two owners: Ms Amanda Hearn (Lot 5) and Ms Sally Jetson (Lots 22, 34 and 46) both of whom support the respondent. Ms Jetson asserts that the graffiti issue was dealt with some years ago when a black marker pen had been used on the pergola. The applicant points out that although Ms Jetson resided for some time in the development, she no longer does so, and that the graffiti on the gazebo, nearby the pergola, was in existence at the time of his filing the photographic evidence. The applicant accepts that the torn shade cloth (presumably fixed to the gazebo) had been replaced. 15 The respondent also provided an email addressed by Ms Lou Carney to Mr Richard Murphy, dated 16 January 2011. It is apparent that the email was sent to Mr Murphy in his capacity as treasurer of the respondent. The salutation is 'Dear committee of management'. Ms Carney concluded the email describing herself as the pool supervisor, Waterfront Mews. The purpose of the email, as reflected in its heading, is to set out the maintenance arrangements relating to the Riverslea pool. It describes the work which would be undertaken if the pool were to be reopened during the summer. In essence, the work involves cleaning the pool using a backwash vacuum system to remove 'any debris that falls (Page 7)
into the pool, thus using increased chlorine as it decays, eg, leaves from trees around the pool, food thrown into the pool and frogs, mice and birds that end up in the pool'. It further describes the removal of dirt and algae that builds up on the bottom and sides of the pool, the topping up of chlorine and other chemicals and using a skimmer to skim the surface of the pool for anything floating on the surface that has not sunk to the bottom. Ms Carney further describes the duties of the pool supervisor and current regulations involving chemical testing of the pool daily, the keeping of permanent records of the chemical levels in the case of problems with chlorine or pH levels, contacting PoolWerx (a reference to a maintenance contractor) and keeping the pool water levels at a satisfactory level. There is also a reference which is understood to convey that the pool supervisor must undergo a test to gain certification to operate the chemical testing equipment and to carry out basic lifesaving procedures. Additional duties include ejecting trespassers and removal of any rubbish, cans or bottles from the pool. 16 A letter from the pool maintenance contractor, PoolWerx, dated 16 January 2011 addressed to Mr Murphy, has also been provided. The letter outlines that under the winter (maintenance) mode, the Chemigen run times and output of chemicals are turned down to a minimum as there is no one using the pool. The reference to Chemigen is understood to be to the pool equipment which regulates the rate at which any required chemicals are added to the pool. The letter proceeds to explain that during the summer maintenance mode Chemigen run times are regulated having regard to the hours when the pools are open to use. It explains that chemical output is increased depending on the amount of time which a pool is used because heat, including body heat, hair, sweat, perfume, shampoos, make-up and lotions carried into the pool by swimmers reduce the chemical life and cause bacteria. The letter advocates weekly checking of the pools in summer and makes the point that if this were to be done only every two weeks any chemical imbalance could result in users becoming sick resulting in Health Department fines, litigation and possibly enforced closure of the pools by the Health Department. 17 Finally, the respondent has provided the minutes of the most recent annual general meeting which was held on 5 May 2011. The minutes reflect under special business that a substantial saving had been made due to the 'winterising' of the Riverslea pool and that discussion ensued regarding the benefits to the respondent and the opinions of a small number of owners who wished for the pool to remain open during summer. After that discussion a motion was moved that the Riverslea pool be 'Winterised' during summer 'as per summer just ended'. The (Page 8)
motion was carried. By way of a covering letter, dated 25 May 2011, the strata manager has confirmed that there was no opposition to the motion. The applicant was not present at the meeting.
Issue 1: The notice of meeting held on 23 June 2010 18 The discussion which occurred at the annual general meeting of 23 June 2010 relating to the use of the swimming pools was properly conducted under the notice given in the agenda that matters arising from the minutes of the previous annual general meeting would be discussed. Indeed, the topic was raised by the applicant. 19 No notice was given of any resolution to be passed at the annual general meeting concerning the use of the swimming pools. Pursuant to Sch 1 bylaw 12(1), all business shall be deemed special that is transacted at an annual general meeting, with the exception of a consideration of accounts and election of members to the council. Further, pursuant to Sch 1 bylaw 11(5), not less than 14 days' notice of a general meeting is required which in the case of special business must specify the general nature of that business. Technically, therefore, the resolution passed was not in accordance with the bylaw and would be susceptible to an order invalidating it. However, no specific order has been sought by the applicant and, in any event, that resolution has been overtaken by the resolution passed at the annual general meeting on 5 May 2011. Further, and in any event, the same result could have been achieved had the discussion taken place as part of the consideration of the budget and the only resolution that would have been necessary would then have been one of a simple majority passing the budget: see Velovski and The Owners of Hector Gardens Strata Plan 6448 [2004] WASTR 12 (Velovski) which was followed in Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282 (Sisto). 20 In the circumstances, no purpose would be served in the grant of a remedy invalidating the resolution passed on 23 May 2010. If a contrary conclusion had been reached, it would, in any event, have been necessary to afford the applicant an opportunity to amend the application and that may or may not have been opposed by the respondent.
Issue 2: The extent of any obligation to maintain the swimming pools and their surrounds 21 The applicant submits as follows: If a lift is not safe to use, it can't be described as being 'in good and serviceable repair'. If a swimming pool is not safe to use, it cannot be (Page 9)
described as being 'in good and serviceable repair'. The respondent is required to keep the common property 'in good and serviceable repair'. When Pool WerX'(s) [sic] Barry Pollard wants a pool to be safe to use, he does not put it in winter mode. The Chemigem takes a much higher profile, and so does he, as does Lou Carney. She tests every day, and notifies Barry if necessary. The smaller pool is not in service, not safe to use, and not kept in good and serviceable repair. 22 In effect, the respondent submits there is a continuing obligation to maintain the pool so that it is always safe and in serviceable repair. 23 Section 35(1) of the Strata Titles Act 1985 (WA) (ST Act) provides relevantly as follows: 24 The extent of the maintenance obligation was considered by the Western Australian Court of Appeal in Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 (Drexel London) where her Honour McLure JA stated at [230] and following: The Macquarie Dictionary (3rd ed, 2003) defines the expression repair in the context of 'to keep in repair' to mean the condition resulting from repairing and 'repair' means to restore to a good or sound condition after decay or damage. As the obligation requires positive action by the strata company, it implies that the property has existing decay or damage that is or should be known to the strata company. The same analysis applies to the third limb which refers to the obligation, where necessary, to renew and replace the common property. That duty to act implies the presence of damage or deterioration that is or ought to be known to the strata company. (Page 10)
The reference to 'inherent defect' in s 35(1)(c) is to the cause of the damage or deterioration. The obligation to 'properly maintain' has, in another statutory context, been held to give rise to an absolute obligation of the kind contended for by the injured claimants: Galashiels Gas Co Ltd v O’Donnell [1949] AC 275; Hamilton v National Coal Board [1960] 2 WLR 313. In both cases the expression was contained in legislation imposing specific safety obligations on employers. In Galashiels, the expression 'maintained' was defined in the relevant legislation to mean 'maintained in an efficient state, in efficient working order and in good repair'. Lord MacDermott in Galashiels at 286 noted that the word 'maintain' when used in relation to the state or condition of things is not always used in the same sense. It may be used to indicate the continuance of a particular state or condition or it may mean acts done or required to be done in the course of maintenance. In the latter context, maintain means service, look after or attend to. The House of Lords construed the term in the former sense with the consequence that any cessation in the efficient working order of plant in question established a breach. The effect was that the employer warranted that the equipment it was obliged to maintain would never be out of working order (see Hamilton (316)). When regard is had to the multiple purposes of s 35(1)(c), it is clear the legislature did not intend the strata company to guarantee a continuous outcome or standard. The term 'maintain' is used in the second sense identified by Lord MacDermott in Galashiels being the process that involves acts of maintenance with the object of continuing the statutory standard, which in this case is that the common property be in good and serviceable repair. (emphasis removed) 25 The effect of the above reasoning is that when common property is found to have deteriorated there is then an obligation on the strata company to carry out the necessary maintenance. This may appear to have strange consequences in the context of determining a strata company's obligations in relation to the maintenance of the correct chemical balance in a common property swimming pool. It appears that when 'winterising' a swimming pool the chemicals are nevertheless intended to remain in balance. It is simply that fewer chemicals are required because the reduction in use reduces the bacteria and therefore the quantities of chemicals required to kill them. There is no evidence to suggest that the pool water is in itself unsafe. Applying the maintenance obligation, as explained in Drexel London, there is no requirement to do anything with the chemicals until a reading establishes that the pool is out of balance and some additional chemicals are required. Provided that is done, the maintenance obligation will, in this respect, be discharged. To the extent that the applicant contends that the mere process of 'winterising' (Page 11)
the pool is unlawful because that in itself means that the pool is not being adequately maintained, the contention is rejected. 26 In effect, as a result of the application of Drexel London, the decision to 'winterise' a swimming pool must be regarded as part of a management decision taken by the strata company in the exercise of its duty to control and manage the common property for the benefit of all the proprietors. Whether or not that is a lawful exercise of that power is considered further below. But, it is not accepted that 'winterising' a pool, in itself, on the basis explained above is a breach of any obligation to properly maintain and keep the pool in good and serviceable repair. There are other factors which bear upon that consideration which are considered below. 27 The applicant described the neglected appearance of the Riverslea pool as set out above. That description is corroborated by the inferences to be drawn from the description of the work to be undertaken by the pool supervisor, as also set out above. I accept and find that in between the PoolWerx inspections every 28th day the condition of the pool deteriorates significantly as a result of falling debris, leaves and other matter such that it is so uninviting as to become effectively unusable and that the appearance of the pool is such as to detract rather than to add to the amenity of the development. Once that deterioration occurs, there is a duty to carry out whatever work is necessary to return the pool to a condition in which it could be used which will automatically add to the amenity of the development. To this extent, the applicant has established a breach on the part of the respondent of its duty to maintain the Riverslea pool. Of course, when the pool is restored to a condition in which it is capable of being used, that use may require the chemical levels to be increased, but there is no obligation on the respondent to adjust the chemicals until they are found to be deficient. The statement of the applicant concerning the inaccurate depth marker and lack of first aid equipment has not been contradicted and is accepted. This too constitutes a breach of the respondent's maintenance obligations. 28 Finally, in relation to the Bardon pool area, I accept the evidence of the applicant that there is graffiti on the nearby gazebo which has not been addressed. The failure to restore the gazebo to its original painted finish is a breach of the respondent's maintenance obligations. (Page 12)
Issue 3: Does closure of the pools fall within the management and control of common property? 29 It is evident from the minutes of the annual general meeting held on 23 June 2010 that there was some closure of the Riverslea and Bardon swimming pools in the preceding year. During the final hearing various references were made to the Bardon pool remaining closed outside the period from October through to the end of the Anzac Day weekend. That appears to be a continuation of an existing policy. In relation to the Riverslea swimming pool a resolution was then passed that the pool be closed for a period of 12 months as an experiment. In the submissions put to the Tribunal at the final hearing nothing was said to suggest any change in that approach and, indeed, the application is premised on the pool being closed. 30 The respondent, in its written response and its oral submissions, stressed that the decision to take this course had nothing to do with the maintenance of the pool but was a management decision made for the benefit of all of the proprietors. The consideration of what might constitute a valid management decision was fully canvassed, and given that the grounds of the application made plain that it was the closing of the pools which is the real issue, it will be appropriate to grant the applicant an appropriate form of relief consistent with the intent of the orders sought by the applicant. What was sought in substance is to have the pools reopened and thereby to comply with the respondent's maintenance obligation. The order sought to keep the swimming pools in good and serviceable repair is also intended to cover the additional maintenance obligations already addressed above relating to debris in the Riverslea swimming pool, the graffiti on the gazebo near the Bardon swimming pool and the failure to provide a first aid kit. 31 The principles raised by this issue are not as straightforward as the respondent appears to have thought. There are conflicting considerations which need to be reconciled. 32 By virtue of s 17(1) of the ST Act, the common property, including the swimming pools, is held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots. The essential feature of a tenancy in common is unity of possession, each of the tenants having the right to occupy the whole of the property in common with the others: see Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at [643]. While each coowner is entitled to the use of each and every part of the common property, that (Page 13)
entitlement is subject to the proviso that a coowner must not exclude other coowners: see The Owners of Rosneath Farm Survey Strata Plan 35452 and Rowell & Anor[2007] WASAT 95 at [22]. It is because of the extensive rights of a coowner that it is often argued that unanimous consent is required in order to deal with common property in a way which affects the right of a coowner. That is clearly incorrect. 33 There are examples where the ST Act requires a unanimous resolution or a resolution without dissent (see s 18 of the ST Act). But, it has also been recognised that the strata company in the exercise of its power to control and manage the common property for the benefit of all proprietors can make decisions which affect adversely one or more coowners in certain circumstances, such as where the object of the proposed course of action is based on grounds of safety and security: see Rucci & Anor v The Owners of 95 Mandurah Terrace, Mandurah Strata Plan 20610 [2002] WADC 33; and Velovski above, and also in some circumstances where the course proposed accords with the reasonable expectations of the proprietors as a whole: see Sisto. In appropriate circumstances, the proposed course can be sufficiently authorised by a resolution by a simple majority as occurred in Velovski and Sisto. 34 In relation to the relevant resolutions passed in the June 2010 and May 2011 annual general meetings, there appears to be a close relationship with consideration of the budget. In both cases, the course was motivated by the cost savings which it was anticipated could be achieved by 'winterising' the Riverslea pool. In relation to the Bardon pool the position is not as clear because the first reference in the materials provided to the Tribunal is in the context of discussing matters arising from the annual general meeting in the year preceding the June 2010 meeting. It is nevertheless clear that the Bardon pool is to be kept open only between October in each year and the end of the Anzac Day weekend in the corresponding year. 35 Sisto represented a significant development in the circumstances in which the rights of a coowner in the common property might be affected. The Tribunal accepted that the common areas of the complex were run down and in need of general refurbishment in order to meet the standards appropriate to a development occupying a prime location near the river and that the steps proposed in that context accorded with the reasonable expectations of the proprietors as a whole. The context in this matter is entirely different. The only justification is cost savings. Is a decision substantially affecting the use of common property based on the desire to (Page 14)
save costs one which meets the requirement that a decision of this nature be made for the benefit of all the proprietors when one or more owners are opposed to the proposal? The Tribunal came to a negative conclusion in Banning and The Owners of 106 Terrace Road, Perth Strata Plan 6289 [2006] WASAT 296. In that case a clear majority of owners wanted to convert common property gardens into a parking area so that parking rental income would make it unnecessary to increase levies. The Tribunal held that a decision of that nature could not be considered to be for the benefit of all proprietors in circumstances in which the proposal would be detrimental in a substantial way to some proprietors. 36 The above cases establish that there are limited circumstances which justify a strata company taking steps in the management and control of common property which impact significantly upon the rights of a coowner of the common property. In the case of the Riverslea pool the course undertaken has for a considerable period effectively prevented any lot proprietor from making use of the swimming pool and that will continue at the very least until the matter might be reviewed at the next annual general meeting in a year's time. As such, the action is not one which can be justified as being a decision made with respect to the management of common property for the benefit of all proprietors. 37 In the case of the Bardon pool the closure is for a limited period and is in fact consistent with what was proposed by the applicant at the annual general meeting on 23 June 2010. The swimming pool will be open for use from October through to the end of the Anzac Day weekend in the following year which effectively covers the entire summer period. While that imposes a degree of restriction on the manner in which a coowner can make use of his or her rights to the common property, it is a restriction which can be justified as concerning the management of common property for the benefit of all the proprietors. Section 35(1)(d) of the ST Act provides the authority for such a course because it is selfevident that any management of common property will impact to some degree with the coowners' rights in the common property. It is therefore a matter of fact and degree in each case as to the extent to which any such interference may be justified. In the cases discussed above there was a degree of permanency in the steps to be undertaken by the strata companies concerned and, as discussed, the circumstances when that can be justified are limited. In the case of the Bardon pool there is no degree of permanency in the course being undertaken to 'winterise' the pool. In fact, there is nothing to prevent any lot proprietor swimming if he or she wishes to do so, bearing in mind the observations made above with regard (Page 15)
to the respondent's maintenance obligation to ensure that the pool is kept sufficiently clean.
Conclusion and orders 38 For the above reasons, I conclude that the respondent has breached its maintenance obligations in respect of the Riverslea pool insofar as it is not being cleaned with sufficient regularity and has been allowed to fall into a state of apparent neglect. Further, the closure of the pool for a period in excess of a year is inconsistent with and contrary to the rights of coowners of the common property to make use thereof and cannot be justified under the respondent's obligation to control and manage the common property for the benefit of all the proprietors. 39 The intent of the respondent, as evidenced by the minutes of the two most recent annual general meetings, is to effect a closure of the Riverslea pool in order to reduce costs associated with maintaining the pool. It would serve no purpose to issue an order which requires the swimming pool to be reopened when on the findings that have been made it would be open to the respondent at an annual general meeting to pass a resolution approving a budget, by way of a simple majority, premised upon agreement to close the pool for a limited period. This could be justified under the control and management power vested in the respondent. The same result could be achieved by making a Sch 1 bylaw. In the circumstances, the order will require that the Riverslea pool be opened at the same time as the Bardon pool which on the evidence will be from 22 October 2011 to the end of the Anzac Day weekend in 2012, and that the pool be kept open during the corresponding period of subsequent years. 40 Insofar as the Bardon pool is concerned, I find that the respondent has breached its obligation to maintain the gazebo in proximity to the pool and to ensure that depth markers are clearly visible and accurate, and that all necessary first aid equipment is supplied and available for use. Otherwise I consider the decision to 'winterise' the pool as being one which can be justified under the respondent's obligation to control and manage the common property for the benefit of all the proprietors. There is no evidence to find that the pool itself is not being adequately maintained but the observations made above concerning the need to maintain proper chemical levels and ensure that it is kept clean are of equal application in relation to this swimming pool. 41 Orders will therefore be issued consistent with the above findings in the following terms: (Page 16)
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