CUNEO and THE OWNERS OF 14 FULHAM STREET KEWDALE - STRATA PLAN 21588

[2005] WASAT 219

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   CUNEO and THE OWNERS OF 14 FULHAM STREET KEWDALE - STRATA PLAN 21588 [2005] WASAT 219

MEMBER:   MR T CAREY (MEMBER)

HEARD:   DETERMINED ON THE PAPERS

DELIVERED          :   22 AUGUST 2005

FILE NO/S:   CC 2212 of 2005

BETWEEN:   KAREN ANNE CUNEO

Applicant

AND

THE OWNERS OF 14 FULHAM STREET KEWDALE - STRATA PLAN 21588
Respondent

Catchwords:

Strata Titles - Refusal to consent to proprietor's proposal to alter common property by installation of security screens to windows of proprietor's lot – Relevant matters to consider in assessing proposed alteration – Relevance of existing identical security screens in proprietor's and other lots - Strata Plan 21588

Legislation:

Strata Titles Act 1985 (WA), s 35(1), s 85

Result:

Application successful
Order made that respondent consent to proposed alteration to common property; applicant to bear associated costs

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

Respondent:     Self­represented

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 of Tribunal's decision

1. The applicant sought an order that the strata company consent to her proposal to install security window screens to her lot, on the basis that they would match a security door already installed on the lot and also screens installed on other lots in the complex, albeit in a part physically separate from the lots including the applicant's.  The strata company refused to consent based on a view that the proposed screens were not in keeping with the rest of the complex.

2. The Tribunal found that the strata company's refusal was unreasonable and ordered that it consent to the applicant's proposal.

Introduction

1. The applicant is the owner of a lot in a ten lot strata scheme situated at 14 Fulham Street Kewdale.  She sought the consent of the strata company to install security screens to six windows in her villa unit, three in the front and three in the back.  The desired screens go by the brand name of Visisafe, are of an open grill construction, and are doeskin in colour.  The applicant's unit already has a Visisafe doeskin security door, and the window screens would match the door.

2. On 16 March 2005, the strata manager advised the applicant that the window security screens were not approved based on objections to the grill type and colour, as not being in keeping with "the theme of the complex".  The strata manager's letter advised that the strata council would reconsider the position should the screens be the same type and colour as were installed on another unit in the complex.

3. The applicant has applied under s 85 of the Strata Titles Act1985 (WA) for an order that the strata company consent to the proposal to install the doeskin security screens. This is the appropriate section, as the walls of the applicant's lot, including the windows, are part of the common property of the complex under the Act. The proposal is, therefore, one "to effect alterations to the common property", which is the subject of s 83.

4. In assessing the application, it is necessary to consider the following issues:

   1.What matters are relevant to a consideration of whether alterations to the common property should be allowed?

   2.What are the relevant facts pertaining to the applicant's proposal?

   3.Was the strata company's refusal unreasonable?

What are the relevant matters when assessing alterations to common property?

1. The "standard" by‑laws in Sch 1 and Sch 2 to the Act apply to the applicant's strata complex. None of the standard by‑laws deals with the situation here of a request for alteration of the wall which comprises part of the common property wall of a lot. Pursuant to s 35(1) of the Act, the obligation to repair and maintain the wall rests with the strata company.

2. There is evidence of a practice in the complex for owners to install, at their own cost, security screens for doors and windows. This has occurred both prior and subsequent to the registration of the strata scheme in 1991. In considering an application by a proprietor to install such screens, s 85 of the Act itself imparts a duty on the strata company to act reasonably. Reasonableness is to be determined, at least in part, by what already exists in the complex and, to the extent that they might involve different cases, the strata company's responses to previous requests for approval of similar alterations.

What are the relevant facts of this case?

1. As stated above, the proposed window screens would match the security door already in place in the applicant's unit.  The papers do not disclose when the security door was installed, or whether it was the subject of a request for the strata company's consent.  I consider the mere presence of the security door is a significant factor in assessing the reasonableness of the strata company's refusal of consent.

2. The strata complex is arranged along the following lines.  Lots 1, 2, and 3 are serviced by a driveway from Fulham Street, and are physically divided from the remainder of the complex by a fence.  Lots 4 – 10 (including the applicant's lot 8) are serviced by a driveway from Mercury Street.

3. Two of the lots in what I will refer to as the Fulham Street sub‑group have window and door security screens identical to the applicant's door screen and her proposed window screens.  None of the lots in what I will refer to as the Mercury Street sub‑group, apart from the applicant's, has those screens.  At least one lot has alternative door and window screens going by the brand name of Crimsafe, which comprise a mesh construction, rather than the open weave construction of Visisafe, and, as appears from the photographs which have been submitted, are of a relatively dark appearance.  According to the applicant, the Crimsafe product is twice the cost of the Visisafe one.

Was the refusal of the strata company to consent to the applicant's proposal unreasonable?

1. Having had regard to the photographic evidence, and to the arguments of both sides of the debate (a number of other proprietors having filed submissions in either opposition to, or support of the application), I have come to the view that the strata company's refusal to consent to the applicant's proposal was unreasonable.  The evidence suggests that the identical security screens in two lots in the Fulham Street sub‑group were installed prior to the registration of the strata plan, but that would not appear to be the case with the security door installed in the applicant's lot.  Therefore, the inference I have drawn, in the absence of any evidence about the matter, is that the strata company did give its consent to install the security door.  On that basis alone, it is, in my view, unreasonable for the strata company to deny its consent to the applicant to install the window screens which match the security door I have inferred was the subject of an earlier consent by the strata company.

2. Even if the inference referred to in the preceding paragraph is incorrectly drawn, the fact is that the applicant has in place a security door of the identical type and colour to the window security screens proposed, and it is apparent that the strata company has taken no action to remove the security door consistent with its s 35(1) powers in respect of the common property. In such circumstances, it is not reasonable to refuse to consent to the applicant's matching window screens.

3. I also agree with the applicant's argument in relation to the matching security doors and window screens installed in two of the Fulham Street sub‑group units.  I acknowledge that the Fulham Street sub‑group is physically separated from the Mercury Street sub‑group in the ways described earlier.  However, as a matter of law, it remains part of the strata scheme, and questions as to the reasonableness of the strata company's responses to any requests for alteration to the common property must take into account the situation as it relates to the scheme as a whole.  Particularly where, as here, the applicant's unit already has a security door of the same type, the consistency that would result between the applicant's lot and the two other lots in the complex is a third basis upon which I have found the strata company's failure to give its consent unreasonable.

Order

1.Pursuant to s 85 Strata Titles Act1985 (WA), the Owners of 14 Fulham Street Kewdale – Strata Plan 21588 are to consent to the proposal by the applicant to install six doeskin "Visisafe" security screens to the windows of her lot.

2.All costs associated with the proposed alteration are to be the responsibility of the applicant.

I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR T CAREY, MEMBER