Clay & Ors and Pearce & Ors
[2016] WASAT 107
•20 SEPTEMBER 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: CLAY & ORS and PEARCE & ORS [2016] WASAT 107
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 30 AUGUST 2016
DELIVERED : 20 SEPTEMBER 2016
FILE NO/S: CC 292 of 2016
BETWEEN: MARK GREGORY CLAY & ORS
Applicants
AND
NEIL MOBREY PEARCE & ORS
Respondents
Catchwords:
Strata title Common property Delineation of cubic space of a lot Whether a glass-panel that separates one partlot from another partlot is common property Whether the removal of the glasspanel automatically merged the two partlots into a single lot
Legislation:
Strata Titles Act 1985 (WA), s 3, s 17(1), s 35, 81(1), s 83(1), Reg 5(1a)(c), Reg 37AA
Result:
The application succeeds. The respondents must restore the common property according to orders made.
Summary of Tribunal's decision:
This dispute concerns the proper classification of a glass-panel that comprised an aluminium frame, windows and sliding doors that separated the living area of a lot from the patio-area of the same lot. The respondents had removed the glass-panel without the approval of the strata company. The question was whether the glass-panel was common property or whether it was part of the respective lots. It was conceded by the respondents that if the glass-panel was common property, the approval of the strata company was required for the common property to be destroyed and that no approval had been sought or obtained. The respondents also said that even if it was found that the panel constituted common property, it would be unreasonable for it to be restored.
The Tribunal found that the glass-panel constituted common property, that the applicants had reasonable concerns to lodge the application and to seek the restoration of common property, and that the common property must be restored by the respondents.
Category: B
Representation:
Counsel:
Applicants: In Person
Respondents : Frank Mestichelli
Solicitors:
Applicants: N/A
Respondents : Corporate Counsel Lawyers
Case(s) referred to in decision(s):
Fryer and Rosa (2016) WASAT 93
Husic and Biancuzzo (2009) WASAT 192
Tipene v The Owners of strata Plan 9485 [2015] WASC 30
Wong and Reid [2016] WASC 59
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This dispute concerns the removal of aluminium and glass-panelling and glass sliding doors that separated two parts within the same strata parcel. Five strata lots on the ground floor of the strata scheme had removed the glasspanelling. The lots of the respondents pursuant to the strata plan comprised two parts the interior living area and the exterior patio. The glasspanelling, at the time of registration of the strata plan, formed the external face of the lots, with the exception of Lot 3 where the patio had been enclosed prior to registration of the strata plan. Since the registration of the strata plan, the respondents (other than Lot 3) had enclosed the patios of their lots and all respondents have at different stages since the registration of the strata plan removed the glasspanelling. The respondents did not obtain approval from the strata company for the glasspanelling to be removed. The lots now comprise, for all practical purposes, one continuous living area (which includes the patios).
The applicants say the glass-panelling formed part of common property; that the destruction or alteration of the common property required the approval of the strata company; that no approval had been obtained; that the lots and common property must be brought to conformity with the strata plan; and that the glass-panelling must be restored at the cost of the respondents in a manner that allows for contemporary material and design.
The respondents say that the glass-panelling did not form part of common property; that informal consent for the removal of the glasspanelling had been obtained; that it would be unreasonable for the panelling to be restored; that the strata plan should be corrected to reflect the practical situation namely that the part-lots had been merged into a single lot; and that the application should be dismissed.
Issues
Two issues lie at the centre of this dispute:
Firstly, was the glass-panelling that separated the living area of the lots from the patio of the lots part of common property?
Secondly, if the glass-panelling constituted common property, is it reasonable for the common property to be restored?
Background
The application was lodged on 16 February 2016. The application was lodged pursuant to s 83(1) of the ST Act after discussion about ways to bring the lots to conformity with the strata plan or, in the alternative, to bring the strata plan to conform with the practical appearance of the lots, had been unsuccessful. The parties made several efforts to resolve the dispute but to no avail. The applicants, who are owners within the strata scheme, brought the application albeit that they were not formally authorised to act on behalf of the strata company or the strata council. The applicants say they are entitled to bring such a proceeding, while the respondents say that the matter must be struck out since the applicants are not duly authorised to act on behalf of the strata company. The Tribunal will shortly address this issue, but suffice to say that the legal representative of the respondents, Mr Mestichelli, conceded during the hearing that the applicants were entitled to bring the application.
After several directions hearings and mediation between the parties the scope of issues had been reduced to the proper classification of the glasspanelling referred to in the Issues as set out above. The glasspanelling comprised an aluminium frame with clear glass and glass sliding doors and covered the entire space between the living area and the patio of each of the lots. The glass-panelling extended between the brick walls on both sides of the frame with glass-sliding doors and fixed glass/window fitting into the frame. At the time of registration of the strata plan the glass-panelling formed the external face of the lots leading onto the patio.
The applicants seek orders for the glass-panelling to be restored at the cost of the respondents; for the orders to have continued effect; and for the applicants to be reimbursed for the costs associated with the application.
Facts
The following facts are agreed by the parties:
The applicants are the owners of Lots 5, 10, 11 and 18. The respondents are the owners of Lots 2, 3, 4, 6 and 7 (lots). The apartment complex is situated at 153 Esplanade, Rockingham, and is generally referred to as 'Carinya Court' and it was built in 1964. The complex was converted to a strata title scheme in 1994 with the registration of strata plan 25819 on 15 June 1994. The apartment scheme is exclusively a residential complex. There are 18 residential lots in the scheme with eight ground floor lots, eight first floor lots and two second floor lots. The lots in the scheme are used for private residence, holiday accommodation and rental purposes.
Each ground floor lot comprises two cubic spaces, one encompassing all the original internal areas and the other encompassing the original external patio. Each first and second floor lot also comprises two cubic spaces, one encompassing all the original internal areas and the other encompassing the external balcony. The patios of the ground floor lots are covered by overhanging concrete slabs that form the balconies of the first floor lots.
Past and present owners of the lots have added aluminium and glass enclosures to enclose the external patio of the lots. The enclosure of the patios had been retrospectively approved by way of a resolution without dissent. The approval to enclose the patios did not include approval to also remove the glasspanelling. The strata plan had not been amended or altered following the enclosure of the patios of the respective lots.
Between the two cubic spaces of each lot is a solid line as indicated on the strata plan. It is not contested that situated on this line was the glasspanelling the subject of this dispute. Between 2007 and 2014 the respondents removed the glass-panelling of their respective lots. No approval had been obtained from the strata company for the glasspanelling to be removed and no retrospective approval has been sought from the strata company.
The removal of the glass-panelling was not without controversy. The strata company adopted a resolution at an Annual General Meeting that took place on 2 May 2009 that required from the respondents to bring to the attention of third parties should they want to sell their lots, of the unapproved alterations that occurred in regard to the removal of the glasspanelling. The motion 3.4 of the Annual General Meeting approved by a majority provided as follows:
(a)owners of any unit that has had its patio area incorporated with its lounge area ensure that when offering the units for sale that they inform their real estate agent, settlement agent and any intended purchaser that the merger of the area has not been approved by the corporate body and that any ingress of water to the merged area from the vicinity of the incorporated patio area is the responsibility of the unit owner and not the responsibility of the corporate body[.]
Following many years of disputation about the removal of the glasspanelling, the applicants lodged a caveat over the lots on 1 February 2016 so as to make third parties aware of what the applicants contend are unauthorised alterations to common property.
Since the first lot had removed its glass-panelling, the removal had been controversial and the subject of several emails, letters, discussions, meetings and mediation but no approval or agreement could be reached to authorise the removal be it prospectively or retrospectively.
Who may bring the application?
The Tribunal will first address the question about whom may bring the application since that bears relevance to the remainder of the proceeding.
The applicants say they are entitled to bring the application pursuant to s 81(1) of the ST Act. The respondents say that the applicants are not duly authorised to bring the application on behalf of the strata company and that only the strata company may bring an application concerning a dispute about common property.
The Tribunal agrees with the applicants.
Section 83(1) of the ST Act relevantly provides as follows:
General powers of SAT to make orders
The State Administrative Tribunal may, pursuant to an application of 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 bylaws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company.
…
This subsection authorises a proprietor to bring a dispute to the Tribunal for a determination. Although generally speaking one would expect the strata company to bring disputes about the use of common property because of the general obligations of a strata company to look after common property pursuant to s 35 of the ST Act, this does not exclude a proprietor from bringing a dispute to the Tribunal about common property. Each proprietor, after all, is a coowner of common property. See for example the matters of Wong and Reid [2016] WASC 59 (Wong) at [25] and Husic and Biancuzzo (2009) WASAT 192 at [27]. In Wong the Court declared as follows:
… It is true, as Mr Wong's ground asserts, that s 35(1)(a) of the Strata Titles Act provides that a strata company shall enforce the bylaws. The effect of that section is that one of the functions and duties of the strata company is to enforce the bylaws. That does not mean that the only person or entity with any power to enforce the bylaws, or to ask the Tribunal to make an order enforcing the bylaws, is the strata company. Section 83 of the Strata Titles Act empowers the Tribunal to make an order to rectify a complaint with respect to the exercise or performance of or failure to exercise or perform a power, authority, duty or function conferred or imposed by the bylaws (or the Act) in connection with a strata scheme. Section 83(1) provides for a wide range of persons upon whose application the Tribunal may make such an order. Those classes of person include the strata company, an administrator, a proprietor of a lot, a person with an estate or interest in a lot, or an occupier or resident of a lot. Thus, by s 83, it is open to a person within any of the classes of person set out in s 83 to enforce the bylaws by an application under that section. (Tribunal emphasis)
In this matter the dispute is about a complaint that has arisen as a result of what the applicants contend is the unauthorised removal of common property glass-panelling. The strata company is internally divided about the matter; the dispute had been dragging on for many years and the applicants resorted to the Tribunal to determine the dispute. It is within their rights to bring the application and the Tribunal therefore dismisses the objection by the respondents in this regard.
Areas of agreement
The Tribunal handed to the parties during the morning of the first day of the hearing a summary of what the Tribunal saw as potential areas of agreement between the parties after the Tribunal had read the submissions and witness statements. The purpose of the summary was to identify the real issues in dispute; to assist the parties in examination of witnesses; and to save time. The parties considered the draft and after an extensive break approved the following as Areas of Agreement:
a)The key issue is whether the aluminium and glasspanel the subject of the proceeding constituted common property or whether the panel was part of the lot.
b)The respective lots according to the strata plan comprise two cubic spaces, namely the living area and patio. The glass-panelling used to separate the living area from the patio.
c)The glass-panelling was situated on the solid line that according to the strata plan separates the enclosed living area of the lots from the patios of the lots. Although at the time of the registration of the strata scheme the glasspanelling separated the internal part of the lots from the external patios of the lots, the patios of the lots has now been enclosed. It is noted that in the case of Lot 3 the patio had been enclosed prior to registration of the strata plan, but the glass-panelling had been removed after the registration of the strata plan.
d)If it is found that the glass-panel constituted common property, approval of the strata company was required for the panel to be removed since all owners hold common property as tenants in common: s 17(1) of the ST Act.
e)Approval by the strata company to vary or destroy common property requires a duly constituted meeting and vote approval cannot be granted by letters or emails to the Tribunal.
f)No approval was sought from a strata meeting to remove the glass-panelling.
g)No approval was granted by a strata meeting for the glass-panelling to be removed.
h)No retrospective approval had been sought or obtained from a strata meeting about the removal of the glasspanelling.
i)The patios of the lots had been enclosed with the retrospective approval of the strata company by way of a resolution without dissent.
j)The answer whether the glass-panelling constituted common property must be determined in accordance to the definitions of the ST Act and the strata plan, and not by the physical characteristics or functionality of the glass-panelling.
k)The internal walls of the lots (excluding the glasspanelling which is the subject of this dispute) are not designated on the strata plan since the internal walls are not relevant for purposes of determining the boundaries of the lots or the floor plan of the lots pursuant to the ST Act.
l)No expert evidence is before the Tribunal in regard to water ingress from the first level balconies to the patios of the applicants; the potential cause of any ingress; the scope of potential ingress; or remedies. It is however agreed by the respondents that the balconies are not water impervious and that some water ingress incurs into some of the lots of the respondents.
Areas of disagreement
The parties hold different views in regard to the following:
The applicants say that the glass-panelling was located on the vertical boundary that is signified by the continuous line on the strata plan; that the lots are measured as cubic squares from the vertical boundary; that the glasspanelling is not merely an internal wall since internal walls are not designated on a strata plan; and that the glasspanelling was part of the common property. The applicants further say that the cement slab that overhangs the patios are not water pervious and is therefore not suitable as cover for purposes of an internal living area as the patios have now, in effect, become as a result of the enclosing of the patios. Finally the applicants say that the removal of the glasspanelling was not approved by the relevant local authority.
The respondents says that the exact classification of the glasspanelling is not clear and unequivocal. The respondents say that the dark line on the strata plan is merely a symbolical line for purposes of describing the respective parts of the lots and that the glass-panelling should not be taken as being part of the common property. The respondents say that after the enclosure of the patios, the glasspanelling in effect became an internal wall, and therefore forms part of the lot and not part of common property. The removal of the glasspanelling had the effect that the two part-lots were merged into a single lot and the strata plan was, in effect, amended. This explains why the local authority approval was not required when the glass-panelling was removed. The respondents refer in this regard to Fryer and Rosa (2016) WASAT 93 (Fryer) . The respondents also say that even if the glass panelling was common property, it is unreasonable for it to be restored; the glass-panelling was not weight bearing or structural; that the glass-panelling was an unnecessary obstruction which had no practical use within the lots; that the size of the part-lots would be unbearably small if the glass-panelling had to be restored; and the concern about water ingress is not relevant or well founded. The respondents also contend that the application has been lodged so late after the event that the equitable doctrine of Laches should apply whereby the applicants should be barred from seeking the relief. The respondents also filed email correspondence from some other owners who did not object to the status quo being retained.
Witnesses
Several witnesses gave evidence. Much of the evidence of the witnesses called by the respondents was about the character and conduct of the applicants, particularly in regard to Mr Clay; about informal approval that had purportedly been given for the removal of the glasspanelling; about the understanding of the witness of the legal principles at stake; and about the unreasonableness of the application. The benefit of this evidence was limited since Mr Mestichelli has conceded that if the glasspanelling formed part of common property, approval had to be sought from the strata company and that: (a) no such approval had been sought; (b) no approval had been granted; and (c) no retrospective approval had been sought or granted. If it is therefore found that the glass-panelling constitute common property, it is conceded by the respondents that they did not have approval for the panelling to be removed. The Tribunal repeatedly reminded Mr Mestichelli that the purpose of the proceeding was not about the character of Mr Clay. The applicants comprised of several proprietors and little utility could be found in the attack of character of Mr Clay. The Tribunal deals below with the evidence in more detail.
Decision
The Tribunal will first make known its decision and then explain the reasons for the decision.
The Tribunal finds that the glass-panelling the subject of this proceeding constituted common property; that approval of the strata company was required for the glass-panelling to be removed; that no such approval had been granted; and that orders should be made for the respondents to restore the glass-panelling and make good the common property at the cost of the respondents.
The reason for this finding is as follows:
The status of the glass-panelling must be determined not by its physical characteristics or utility but by its location on the strata plan and the definition of lot in the ST Act. At face value the application may seem to be unreasonable by reason of the propositions put forward by the respondents, but it is the characterisation of the glass-panelling as being common property that brings us to this outcome.
As far as the strata plan is concerned the glass-panelling is not described or defined, but the line on which the glass-panelling was located is a continuous line that separates the one part of the lots from the other part of the lots. The solid, thickened line is a demarcation between the interior living area and exterior patio of each lot, with the solid, lighter line denoting the boundary of the patio visàvis the common property garden. The strata plan shows that the measurement of the respective parts of the lots is done with reference to this solid line being 10 square meters for the patios of Lots 1 and 8; and six square meters for the patios of Lots 2, 3, 4, 5, 6 and 7 as measured from the solid line to the edge of concrete; whereas the interior of Lots 1 and 8 measures 89 square meters and the interior of Lots 2, 3, 4, 5, 6 and 7 measures 62 square meters within the area marked by a dark, thick line on the strata plan. These two areas in each lot comprise the two cubic spaces that together form the entirety of each lot. The Tribunal accepts that the measurement was taken in the way it had because the solid line represents a vertical boundary from which the lots or parts of the lot are measured. Hence, the two measurements on either side of the solid line which leaves the glasspanelling which was located on the solid line and from where the measurements are taken, to be common property.
The Tribunal notes that internal walls of the lots are not delineated on the strata plan since such walls bear no relevance to determine the floorplan or boundaries of the lots. The line upon which the glasspanelling was located is clearly not an internal wall and the enclosure of the patios did not change the legal status of the glasspanelling as being common property.The line represents a vertical boundary and the glass-panelling is the physical representation of that boundary since it is located on that line. The two cubic spaces that form each lot, cannot be merged merely by the removal of the glasspanelling as is suggested by Mr Mestichelli. In a practical sense it may feel as if the spaces have merged, but in a legal sense the necessary approvals must be obtained and amendment of the strata plan must take place before a single cubic space replaces two cubic spaces.
The floor plan of the lots is defined by base lines (s 3 of the ST Act) of each vertical boundary of every cubic space forming the whole or any part of a lot. A lot can comprise of more than one cubic space of which the different parts are separated by a base line. The line of which the glasspanelling formed part signifies the separation of the two parts of the lots. Regulation 5(1a)(c) of the ST Act provides that a floor plan must indicate the boundaries of a lot or separate parts of the same lot by continuous lines so that boundaries defined by walls and other structural features area clearly distinguished from boundaries defined by lines only. The boundary lines of the lots clearly fall within this categorisation and hence the line upon which the glasspanelling is located must be treated in the same way.
The glass-panelling constitutes a 'wall' for purposes of s 3 of the ST Act. 'Wall' according to the definition includes a structure that divides a lot from another lot. 'Lot' in a strata scheme in turn is defined by s 3 of the ST Act as one lot or part of one lot on the floor plan. In this case the glass-panelling complies with the definition of wall since it signifies the division of the two parts of the same lot. Regulation 37AA of the ST Act determines that the floor plan must be ascertained in the case of a vertical boundary 'where the base of any wall corresponds substantially with any baseline' by reference to the inner surface of that wall. The line upon which the glass-panelling was erected is a baseline and the glass-panelling is a wall for purposes of separating one part lot from another part lot. This explains why the line is continuous and why in the measurements of the lots are measured separately from the living area and the patio with reference to the glasspanelling.
Since the glass-panelling was common property, approval of the strata company had been required to remove it. It is agreed by the respondents that no such approval had been obtained. The Tribunal notes the evidence of witnesses and emails of support for the respondents, but that does not constitute approval by the strata company. The proposition by Mr Pearce, for example, that nine owners who had not responded to his email enquiry either had no objection or did not care about the issue, is rejected. Mr Pearce conceded that there was no obligation on any person to respond to his email and that the conclusion he seeks to draw from the lack of responses is highly speculative and unreliable. The emails in support of the respondents by other owners are not relevant since approval can only be granted by a duly constituted strata meeting. The Tribunal understands that those owners may have sympathy with the respondents, but the evidence by Carmelo Torre and Anthony Torre that Mr Clay had informally or verbally approved the removal of the glasspanelling is rejected since (a) Mr Clay disputes that such a discussion occurred; (b) both witnesses are vague about their recollection of this discussion; (c) the purported approval granted was never followed up by a strata resolution; and (d) Mr Clay, even if he had given approval, could not give such approval on behalf of all owners.
The Tribunal does not accept the proposition of the respondents that the strata plan is in error and that it should be remedied. If that is the case then the respondents should have put in motion a process to amend the strata plan. The Tribunal also does not accept that the proposition that at the time of registration of the strata plan a proper survey of the scheme had not been conducted. This is speculation of the highest order by Mr Mestichelli. There seems to be nothing untoward in the strata plan or the process of registration or the survey that preceded registration of the strata plan. If indeed the strata plan was for some reason incorrect, the owners of the scheme could have commenced action to remedy any deficiency, but that has not happened. The Tribunal also rejects the contention of Mr Mestichelli that when the patios had been enclosed, the strata plan had automatically been amended and that the two partlots had become merged into a singly cubic space. Mr Mestichelli did not refer to any authority in support of this proposition.
The Tribunal does not accept that Lot 3 which had the patio enclosure installed prior to the registration of the strata plan should be treated differently from the other respondents who had enclosed the patios of their lots only after registration of the strata plan. The enclosure of the patios prior to or after registration of the strata plan bears no relevance to the characterisation of the glasspanelling. The strata plan was duly registered after the scheme had been surveyed and certified. In practice the enclosure of the patio of Lot 3 may have existed at the time, but that did not alter the strata plan which determined that each lot comprised of two part lots and the glasspanelling separated the two part-lots.
The Tribunal notes the disagreement between the parties about whether the measures sought by the applicants are reasonable and whether there is indeed evidence of a risk of ingress of water from the balconies to the patios. These disagreements are not material to the outcome of the proceeding. There is no expert evidence before the Tribunal about the waterproofing of the first level balconies and there is no evidence before the Tribunal of insurance risks that may arise from the removing of the glasspanelling. But this decision is not based on those considerations. The Tribunal notes, however, that Mr Renato De'Pannone agreed with Mr Clay that water ingress from the balconies to the patios had been a long standing problem; that no solution had yet been found; and that steps would have to be taken to address the issue. The Tribunal therefore accepts the concern expressed by Mr Clay that water ingress from the first level balconies into the lots of the respondents are of concern to the strata company and ought to be addressed. This finding is, however, not material to the outcome of the proceeding.
The Tribunal rejects the relevance of proposition by Mr Mestichelli that the lots would not comply with local authority building regulations if the glasspanelling had to be reinstalled. Mr Mestichelli called no independent evidence on which to base his assertion and his opinion about the size of the living areas does not alter the proper characterising of the glass-panelling.
The Tribunal finds that the applicants are reasonable to express concern that future proprietors may hold the strata company responsible if the lots do not comply with the strata plan. Third parties rely on the strata plan and notations thereon and a strata company is obligated to ensure that the scheme in practice is consistent with the plan as registered.
The Tribunal rejects the proposition that the applicants had by not acting sooner or by way of the resolution of 2 May 2009, forfeited the right to prosecute this matter. There is nothing in the minutes of the AGM of 2 May 2009 that supports a conclusion that approval had in effect been granted for common property to be destroyed. On the contrary, the resolution imposed an obligation on proprietors and on the strata company to inform potential buyers of the unapproved works. The fact that the resolution did not demand a restoration of common property cannot reasonably be construed as tacit approval for the destruction to remain unremedied.
The answer to the dispute is ultimately found in the proper characterisation of the glass-panelling, and once it has been found that it constituted common property, the orders logically flow. No proprietor may damage or destroy common property since (a) all proprietors have an undivided share in common property in proportion to their unit entitlement and (b) the destruction of common property may have unintended yet far reaching implications for a scheme since it may destroy the lot since the integrity of the cubic space that forms the lot is destroyed.
Particularly relevant to these findings is the matter of Tipene v The Owners of strata Plan 9485 [2015] WASC 30. In this matter his Honour considered the impact of a proposed renovation of a strata scheme which would have had the effect of total demolition of lots in order to erect a new building on the same site as where the previous building stood. Justice Corboy observed as follows:
73.A lot in a strata scheme is a statutory construct created in relation to a three-dimensional space. The dimensions of that space are fixed by the surfaces of the walls, floors and ceilings of a building or parts of a building or by other physical features of a building in the case of structural cubic spaces. A lot is not an abstraction defined, for example, by what is depicted or described on the floor plan forming part of the strata plan for a strata scheme. A floor plan merely describes the cubic space and does so by reference to the physical structures that bound the space. It is the space created by those structures that constitutes the lot in a strata scheme.
…
77.Consequently, although a lot was defined as something shown as such on a strata plan, what was shown on the plan was defined by the physical dimensions of a building or portion of a building. As has been seen, a lot in a strata scheme is not defined in the STA by reference to the strata plan but rather, as a cubic space. That reflects an essential characteristic of a lot in strata scheme - it is not an interest in land as such but an interest in a three-dimensional space.
…
84Self-evidently, the demolition of a building will destroy the cubic space or spaces comprising or comprised in the building. Consequently, the demolition of a Boundary Building will destroy the structures by which the cubic space or spaces forming a lot or lots are bounded (or will destroy part of the boundary to a cubic space that forms a lot or lots). The cubic space is destroyed and with it, the lot that the space previously formed.
85.The subject matter of the strata scheme or the affected part of the scheme and the thing created on registration of the strata plan - the lot or lots - will have gone. There will be no cubic space or spaces capable of forming a lot or lots and nothing that can be part of a strata scheme and which a strata plan can continue to describe. That obviously has consequences for the owner of the affected lot. The proprietor's title is to the lot that was created on registration on the strata plan. The property interests created by s 4(2) are in respect of dealings with a lot. (Tribunal emphasis)
Although Mr Clay relied on the general characterisation of a lot as set out by Justice Corboy, Mr Clay replied in questioning by the Tribunal that the removal of the glasspanelling did not in his view destroy the respective lots, but he emphasised that the strata company had an obligation when common property is destroyed or damaged to remedy it. The Tribunal agrees that a strata company cannot sit idle when common property is destroyed since the effect of the destruction of a common property wall may be that the cubic space of the lot that is defined with reference to that wall is also destroyed.
The Tribunal does not accept that the matter of Fryer relied on by the respondent, is relevant to this dispute. In the Fryer matter an entirely different question arose in a single tier scheme where the boundary between lots were disputed and where it was found by the Tribunal that the wall in dispute formed part of one party's lot in its entirety due to the support it offered to a structure (house) of the one party.
In regard to the proposition of the respondents that the applicants should be estopped by virtue of the equitable remedy of Laches from lodging the application due to time that has lapsed since the panels had been removed, the Tribunal finds in the negative. The Tribunal is satisfied that the applicants and particularly Mr Clay had expressed ongoing concern about the removal of the glass-panelling; that extensive steps were taken to find a resolution to the dispute; and that ultimately a proceeding was commenced in SAT a mechanism of last resort.
Conclusion
The Tribunal therefore concludes that the glass-panelling the subject of this proceeding was part of common property; that it had been destroyed by the respondents without the approval of the strata company; and that orders should be made for it to be restored and common property made good. It is accepted by the parties and the Tribunal that it is not practical to reinstall glass-panelling that is exactly the same in material and design to the panelling that was used in 1964 when the building was erected. The material used and design should therefore be as close as is reasonable and practical to the glass-panelling that had been removed but with allowance for contemporary design and material.
The Tribunal dismisses the application for costs. The Tribunal is essentially an own cost jurisdiction and even if costs could be awarded I am satisfied that the issue before me were serious and meritorious; that adjudication was required; and that the respondents acted in good faith by opposing the application.
Orders
1.The application succeeds since it is found that the aluminium and glass-panelling and sliding doors (glasspanelling) the subject of this proceeding comprised common property and such common property had been removed by the respondents without the approval of the strata company.
2.The respondents must, at their cost by not later than 31 March 2017, restore the glass-panelling to its original location as marked by the solid, dark line on the strata plan that separates the living area from the patio of the respective lots.
3.The glass-panelling to be installed shall as far as is reasonable and practicable be consistent with the glass-panelling that had been removed albeit that account may be taken that the glasspanelling would by necessity comprise contemporary material and design.
4.These orders shall continue to have force and effect beyond the expiry of two years that next succeeds the making of these orders.
5.The application for costs is dismissed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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