DING and THE OWNERS OF STRATA PLAN 19112 OF 80 FORREST STREET FREMANTLE
[2005] WASAT 63
•11 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: DING and THE OWNERS OF STRATA PLAN 19112 OF 80 FORREST STREET FREMANTLE [2005] WASAT 63
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: ON PAPER
DELIVERED : 11 APRIL 2005
FILE NO/S: CC 11 of 2005
BETWEEN: KYLIE ELIZABETH DING
Applicant
AND
THE OWNERS OF STRATA PLAN 19112 OF 80 FORREST STREET FREMANTLE
Respondent
Catchwords:
Strata title - Alteration to common property - Removal of tree - Two-lot unit
Legislation:
State Administrative Tribunal Act 2004 (WA), s 7, s 11(1), s 60(2)
Strata Titles Act 1985 (WA), s 17(1), s 77, s77 (b), s 85, s 35(10), s 35(1)(b), s 42(1), s 50(b), s 51A(1), s 82(4), s 85, s 103(b), s 103(c)
Result:
1. The strata company must arrange for the Tipuana tree to be removed by a professional tree surgeon within 60 days of this order
2. The owners of Lot 1 and 2 share the cost of the removal of the tree in equal proportions
3. The application for an order in regard to the replacement of the Tipuana tree is dismissed
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
DR B DE VILLIERS (MEMBER):
REASONS FOR DECISION
Issue
The applicant is seeking an order under s 85 of the Strata Titles Act 1985 for the respondent to carry out alterations to the common property by removing a Tipuana tree, for the alterations to be conducted in a certain manner and for a new tree (Chinese Tallow) to be planted. The parties are in agreement that the Tipuana tree must be removed but they disagree on the proper way for the work to be conducted and what type of plant/shrub/tree must replace it.
Applicant and Respondent
The applicant is owner-resident of Lot 2, 80A Forrest St, Fremantle, WA 6160.
The respondent is The Owners of Strata Plan 19112 of 80 Forrest Street, Fremantle, 6160.
Submissions were received from the applicant and the other owner of the two-unit scheme.
Application lodged with State Administrative Tribunal
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). The application for relief was lodged on 5 January 2005 under s 77 of the Strata Titles Act, 1985. The applicant certified in terms of s 77B that the strata company had no by‑laws to regulate the resolution of a dispute. 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 Strata Titles Act 1985.
The application was served on the respondent and owners of Lot 1 on 14 February 2005 with an invitation to respond by 28 February 2005. The owners of Lot 1 filed a submission on 21 February 2005.
The President of SAT nominated me in terms of s 11(1) SAT Act to constitute the Tribunal to determine this matter. The Tribunal thinks it appropriate for the application to be determined on the basis of documents (s 60(2) SAT Act).
I have taken the submissions received into account in making this determination.
Orders sought
The applicant are seeking the following orders under s 85:
"That the Owners of Strata Plan 19112 carry out the following alterations to the common property:
- The Tipuana tree on the common property shall be removed;
- The Tipuana tree shall be replaced by a Chinese Tallow in a 100 litre bag
and the alterations are carried out in the following manner:
- The Tipuana tree shall be removed by a professional tree surgeon carrying full insurance;
- The replacement tree shall be planted by employees of a tree farm, or by a professional gardener;
- The costs of the tree removal and replacement shall be shared equally between the owners of Lot 1 and Lot 2;
- That the removal and replacement shall be carried completely (sic) before the 1st of July 2005."
Parcel
The two-lot scheme is situated on 80 Forrest Street, Fremantle, Lot 504 of Fremantle Town Lots 1117 and PT 1439 on Diagram 76451, Strata Plan 19112. The certificate of title is numbered Volume 1848 Folio 22 registered on 9 July 1990 in terms of the Strata Titles Act 1985. The building on Lot 1 is referred to on the Strata Plan as comprising a single storey brick and iron building. No reference is made on the Strata Plan of a building on Lot 2 which belongs to the applicant. Lot 1 has a unit entitlement of 68 and Lot 2 has a unit entitlement of 32.
Strata Plan and relevant Act
The applicant certified as part of her application that in terms of s 77B there is no provision in the by-laws for resolution of conflicts. The application can therefore proceed directly to SAT.
The Strata Plan was registered pursuant to the Strata Titles Act 1985.
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 key provisions of the Act of relevance to the application are the following:
Section17(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 42(1)"A strata company may make by-laws, not inconsistent with this Act, for –
…
c.other matters relating to the management, control, use and enjoyment of the lots and any common property.
…
Section 42(2) "The provisions set out in Schedules 1 and 2 shall be deemed to be by-laws of the strata company and may be amended, repealed or added to by the strata company –
a.By resolution without dissent (or unanimous resolution in the case of a two-lot scheme) in the case of Schedule 1 by-laws;
b.In accordance with any order of a court or the Strata Administrative Tribunal or any written law; or
c. In any other case, by special resolution".
Section 50B"Subject to any order under section 103B, the proprietors of the lots in a two-scheme, or their respective duly appointed proxies, constitute a quorum for a general meeting of the strata company for that scheme."
Section 51A(1)"Where-
a.under this Act a unanimous resolution is necessary before any act may be done in respect of a two-lot scheme; but
b.that resolution is not obtained because the proprietors of the lots do not agree;
a proprietor may apply to the District Court for an order under this section.
Section 83(4) "Nothing in subsection (1) empowers the State Administrative Tribunal to make an order under that subsection 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 on the strata company by this Act where that power, authority, duty or function may, in accordance with any provision of this Act, only be exercised or performed pursuant to a unanimous resolution, resolution without dissent or a special resolution."
Section 85"Where, pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates to has unreasonably refused to consent to a proposal by that proprietor –
a.to effect alternations to the common property; or
b.to have carried out repairs to any damage to the common property or any other property of the strata company,
it may make an order that the strata company consent to the proposal."
Section 103B "(1) Where a proprietor of a lot in a two-lot scheme has failed or refused to attend a general meeting of the strata company, the proprietor of the other lot may apply to the State Administrative Tribunal for an order under this section."
Section 103C "(1) Where a resolution, including a special resolution, for which an order under this section may be made has been proposed by a proprietor of a lot in a two-lot scheme for passing by the strata company but has been defeated, the proprietor may apply to the State Administrative Tribunal for an order under this section."
By-laws
The Strata Company's by-laws are the "standard" by-laws contained in Sch 1 and 2.
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(3) "Except with the approval of the strata company, a proprietor, occupier, or other resident of a lot shall not –
(a) damage any lawn, garden, tree, shrub, plant or flower upon common property,"
Applicant submissions
The applicant made a submission that accompanied her application. The submission included photographs in hard copy and on CD‑Rom. She also made a subsequent submission dated 29 March 2005.
The main elements of her submissions can be summarised as follows:
a.This is a two-lot scheme and both owners must have the benefit of the common property. The proprietors of Lot 1 are in agreement for the Tipuana tree to be removed but it appears they do not want it replaced with a similar large type tree. The applicant contends that if the Tipuana tree is not replaced with a tree of similar decorative value, it will encroach upon the right of the applicant to enjoy the common property. The Tipuana tree provides shade to the driveway of Lot 2.
b.It is common cause that the Tipuana tree is causing problems to the owners and to neighbours and must therefore be removed.
c.The applicant has done research as to the most ideal tree to replace the Tipuana with and has identified the Chinese Tallow. She provided detailed motivation why the Chinese Tallow is her preferred choice.
d.The removal must be undertaken by a professional person with the necessary experience, equipment and public liability insurance.
e.Although the unit entitlements are indicated at 68 for Lot 1 and 32 for Lot 2, the applicant is happy for the costs of the removal to be shared 50-50.
f.The applicant requested that the application be dealt with urgently as the tree is causing damage to the neighbouring property and the dispute is causing friction between the owners of Lot 1 and 2.
Respondent submissions
The owners of Lot 1 Allen Ernest Cottrell and Merle Patricia Cottrell consent to the removal of the Tipuana tree but oppose the remainder of the application that deals with the way in which the tree is removed and the possible replacement thereof. They submitted several letters of previous correspondence in regard to the problems caused by the tree. The main elements of their submission can be summarised as follows:
a.It is common cause for the Tipuana tree to be removed. The tree causes many problems to the owners and the neighbour. However there is disagreement as what should replace it. They prefer to replace it with a shrub.
b.In addition to the problems the tree is causing, they are concerned that possible legal action may result from damage to the property of the neighbour. A letter from the neighbour Mr N Burningham demands that the tree be removed.
c.Both previous owners of 80A Forrest Street had agreed that each owner would take care of their garden area. They "could plant what they like but maintain it at their expense and time".
d.They have obtained a quote to remove the tree and the contractor has agreed to make good any damage that might be caused. However there might be additional costs if it turns out that the roots of the tree had wrapped itself around electricity or other underground cabling.
e.They object to the issue being sorted out in writing rather than through discussions.
Consideration
There are basically three disputes on which the applicant requests a determination by the Tribunal:
a.The removal of the Tipuana tree
b.The appointment of a suitable contractor for the job
c.The replacement of the Tipuana tree with a Chinese Tallow
The parties are in agreement for the Tipuana tree to be removed. The reasons submitted by the parties show that the removal of the tree is not for mere aesthetic reasons but to prevent further damage that it may cause. The strata company therefore does not have any choice but to remove the tree. The parties are in agreement that the costs associated with the removal of the Tipuana tree will be shared on a 50/50 basis. The parties therefore meet the requirements of Schedule 2 by-law 2(3).
I note that the informal arrangement referred to by the owners of Lot 1 to the effect that each owner could take care of the common property in their garden area, had not been registered as a by‑law under the Act.
In regard to the question who should be contracted to undertake the removal of the tree, I note that the strata company is obliged under s 35(1)(b) to control the common property to the benefit of the owners. This obligation includes the duty of care to ensure that the activities by the strata company on common property do not cause damage to the buildings on the respective lots or to adjacent properties. The removal of such a big tree requires the work of a specialist, particularly if underground cabling may be effected. It is therefore the duty of the strata company to retain a person or company that has proven experience in the removal of large trees and who is fully acquainted with such tasks and insured against the possible risks thereof.
In regard to the replacement of the Tipuana tree with a Chinese Tallow I note that s 85 enables the Tribunal to make certain orders only if it is convinced that the strata company has "unreasonably refused to consent to a proposal" (my emphasis). The word "unreasonable" has to be given proper weight and due consideration as the Tribunal cannot be called to settle any difference of opinion that may arise in the day to day running of a strata complex. One can imagine that differences of opinion may arise in strata units as to the most appropriate choice of plants, but it is not within the jurisdiction of the Tribunal to make a determination where the owners of a two-lot unit have mere different preferences to such matters.
I note that the applicant did not provide me with sufficient information to demonstrate that (i) all options as to what could possibly be the most appropriate plant to replace the tree, have been discussed with the owner of Lot 1 and (ii) that the owner of Lot 1 or the strata company has acted in an unreasonable manner. From what I gather the applicant is bringing the matter to the Tribunal for determination without her having exhausted all decision-making mechanisms of the strata company. The provisions of s 84(4), s 85, s 103B or s 103C therefore do not offer relief to the applicant.
Finding
I therefore find and make orders under s 81(3) that the parties consent for the Tipuana tree to be removed, for the costs to be shared on a 50/50 basis and for the removal to be undertaken by a professional person with the necessary, skills, equipment and insurance.
In regard to the determining what is the proper plant to replace the tree, I find that the applicant fails in her application for an order under s 85 as she has not demonstrated that the owner of Lot 1 or the strata company has acted unreasonably. The application is therefore dismissed under s 81(4).
Orders
The strata company must arrange for the Tipuana tree to be removed by a professional tree surgeon within 60 days of the date of this order.
The owners of Lot 1 and 2 share the costs of the removal of the tree in equal proportions.
The application for an order in regard to the replacement of the Tipuana tree is dismissed.
I certify that this and the preceding 10 pages comprise the reasons of judgment of the State Administrative Tribunal.
______________
B De Villiers - Member
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