Duffy and Owners of Warrawong Strata Plan 7976 - [2010] WASAT 113

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: DUFFY and OWNERS OF WARRAWONG STRATA PLAN 7976 [2010] WASAT 113

MEMBER: MR T CAREY (MEMBER)

HEARD: 28 APRIL 2010
FINAL WRITTEN SUBMISSIONS PROVIDED 17 MAY 2010

DELIVERED : 5 AUGUST 2010

FILE NO/S: CC 1024 of 2009

BETWEEN: JUDITH DUFFY
Applicant
AND
OWNERS OF WARRAWONG STRATA PLAN 7976
Respondent

FILE NO/S :CC 1060 of 2009

BETWEEN :OWNERS OF WARRAWONG STRATA PLAN 7976
Applicant
AND
JUDITH DUFFY
Respondent

Catchwords:

Strata titles Unauthorised installation of hot water system on common property wall Whether unreasonable refusal to grant consent to proposal to alter common property Whether remedy available where proposal made after alteration complete Identification of proposal on facts Whether lot incapable of reasonable use and enjoyment if licence not granted

Legislation:

Strata Titles Act 1985 (WA), s 7, s 7(2), s 7(5), s 7B, s 17, s 35(1)(b), s 42(8), s 83, s 83(2), s 83(3), s 85, s 94, s 95, s 103F, s 103G, s 115

Result:

Proprietor's application unsuccessful
Strata company's application substantially successful

Category: B

Representation:

CC 1024 of 2009

Counsel:

Applicant: Mr R Kronberger
Respondent: Ms K Roach

Solicitors:

Applicant: Atkinson Legal
Respondent: Roach Legal Consulting Services

CC 1060 of 2009

Counsel:

Applicant: Ms K Roach
Respondent: Mr R Kronberger

Solicitors:

Applicant: Roach Legal Consulting Services
Respondent: Atkinson Legal

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The proprietor of a lot in a 16 lot residential strata scheme installed on an external common property wall the water heater and other workings of a gas hot water system for the use of her lot. She did so without the express approval of the strata company. The strata company refused to grant consent to the installation after it was completed.
The proprietor sought the Tribunal's intervention to enable the hot water system to remain. She did so under two provisions of the Strata Titles Act1985 (WA). The first is concerned with unreasonable refusals to consent to proposals to effect alterations to common property. The second provision deals with licences to use common property where a lot is incapable of reasonable use and enjoyment unless the licence is granted.
The Tribunal found there to have been no request by the proprietor to alter the common property in the manner of such an installation, and this was fatal to the application relying upon the first provision. The Tribunal considered the evidence produced by both parties relating to the asserted incapability of use and enjoyment if the installation was not allowed to remain. It found that the evidence fell short of establishing that the existing installation was not the only legal, practical and safe source of hot water.
The application of the proprietor was therefore dismissed. A crossapplication by the strata company seeking removal of the gas hot water apparatus was upheld in substance, with the proprietor being allowed two months for the removal works.

Factual background

This consolidated application concerns a 16 lot residential strata scheme in Perth. Judith Duffy (Ms Duffy) is the proprietor of Lot 12. There are three separate buildings comprising the lots. Four lots are located within one of the buildings on the ground floor, with two other complexes comprising a room described as 'laundry' as well as 'carports'. The first floor comprises six further lots, two of which (Ms Duffy's lot and Lot 7) are constructed on top of the laundry/carport complexes. The second floor comprises the final six lots, with the same configuration as the first floor.
In June 2009, installation of a gas hot water system currently servicing Ms Duffy's lot was completed. The installation included the placement of the heater box on a wall forming part of the common property immediately below the wall of Lot 12, being part of the room described as a laundry in the strata plan but which had been referred to as a storeroom, and pipework connecting the heater with the water and gas mains.
As was explained in the witness statement of Ms Duffy's husband, Kevin Duffy (Mr Duffy), who undertook the negotiations, such as they were, with the strata company or members of the council of owners (a topic to which I shall return), Ms Duffy inherited (with her brother) Lot 12 in about June 2007, and became the sole proprietor a year later. Upon that acquisition, the Duffys decided to renovate the lot for their desired purpose of leasing it. To quote Mr Duffy, 'We had advice to obtain a better quality tenant'.
A new hot water system formed part of the proposed works. The previous hot water system, which was located in the kitchen, was old (installed in 1973), afflicted by various problems and apparently beyond repair. In addition, the intention was to free up the space in a redesigned kitchen. Further, according to the Duffys, it was considered that relocation to an external location was appropriate, given the results of their internet research that similar internal facilities exposed occupants of premises to health and safety risks.
Ms Duffy concedes not having obtained the express approval of the strata company to the installation of the hot water apparatus on a common property wall. She relies upon a number of matters to excuse or justify her omission in this regard, or otherwise to substantiate her application to the Tribunal. Those matters, in summary form, are:
1)While they were the proprietors of Lot 12, Ms Duffy's parents, Mr and Mrs Hoare (the Hoares), approached 'the body corporate' about replacing the old hot water system, with an indication that they wished to relocate it to the common property wall now occupied by the installed system. No negative response to such a suggestion was ever received.
2)Indications given by the chairman and another member of the council of owners, prior to completion of the installation, that, at least as far as they were concerned, the installation was acceptable.
3)A written request for approval made on the day the installation was completed was never responded to.
4)A similar type of hot water heater servicing Lot 13, on common property on the ground floor, had been in place for a number of years to the present day. Further, a range of other uses of common property by individual owners to the exclusion of other proprietors has been allowed.
5)In any event, the strata company ought to have given its permission based on considerations of health and safety.
Ms Duffy seeks the following substantive relief:
1)An order under s 85 of the Strata Titles Act 1985 (WA) (ST Act) that the strata company consent to the fitting to the outside of a common property wall of a gas hot water heater.
2)In the alternative, an order under s 94 of the ST Act permitting Ms Duffy to use the common property wall for the permanent installation of a gas hot water system.
Such orders are sought with retrospective effect from June 2009.
The strata company, on the other hand, seeks orders for removal of the hot water system in question and related orders.

Legal framework

Ms Duffy invokes the powers vested in the Tribunal under s 85 and s 94 of the ST Act. Those sections are in the following terms:
85. Order with respect to certain consents affecting common property
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 has unreasonably refused to consent to a proposal by that proprietor
(a)to effect alterations 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.
94. Order granting certain licence
(1)Pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal may, subject to this section, order that the applicant, and any occupier or other resident of the lot of which the applicant is the proprietor, may use specified common property in such a manner, for such purposes, and upon such terms and conditions, if any, as are specified in the order.
(2)The State Administrative Tribunal shall not make an order under subsection (1) unless satisfied
(a)that the lot of which the applicant is proprietor is incapable of reasonable use and enjoyment by the proprietor, occupier, or other resident of the lot unless the order is made; and
(b)that the strata company has refused to grant a licence to use common property in such a manner, for such purposes, and upon such terms and conditions as would enable that proprietor or such an occupier or other resident reasonably to use and enjoy that lot.
(3)An order under subsection (1), when recorded under section 115, has effect, subject to any order with respect thereto made by a superior court, as if its terms were a bylaw.
The strata company seeks orders for removal of the gas hot water system, in particular the heater box, pipework and wiring external to Lot 12 (and therefore on common property) under s 83 of the ST Act. The terms of s 83, relevantly, empower the Tribunal to make an order in rectification of a complaint with respect to the exercise of a power or duty of the strata company in connection with a strata scheme. Here, the strata company's complaint concerns Ms Duffy's unauthorised installation of the hot water system on common property, and the power or duty of the strata company which is relevant is that which appears in s 35(1)(b) of the ST Act to:
… control and manage the common property for the benefit of all the proprietors.
The installation of any object by means of affixing it to a common property wall connotes a (perhaps minor) structural alteration to the common property. To the extent that it results in the use of part of the common property for purposes peculiar to the proprietor for whom it is being installed, it also entails use by that proprietor of common property to the exclusion of the other proprietors. An exclusive use bylaw under s 42(8) of the ST Act is the obvious vehicle for permitting such use, but none was obtained nor sought in this case. Ms Duffy is thus unable to avail herself of s 95 of the ST Act, under which the Tribunal may order that a s 42(8) by-law be made where it considers that the strata company unreasonably refused to do so. Instead, Ms Duffy relies upon avenues short of such a bylaw which might allow the installation to remain.
The relationship between the legislative underpinnings of the respective positions of the parties is readily apparent. Unless a basis exists for an order for consent under s 85 or a licence under s 94, the installation on common property will be unauthorised. The common property is owned by all the proprietors as tenants in common: s 17 of the ST Act. It would be difficult to argue against the proposition that allowing the retention of an unauthorised installation on common property is not for the benefit of all the proprietors. Anything installed without authorisation would, therefore, ordinarily be subject to removal at the behest of the strata company.
I will consider the relevant provisions in the detail which the competing submissions of the parties demand when I consider each of the factual matters relied upon by Ms Duffy. Referring to those matters as I summarised them above, items (1), (2), (3) and (4) are advanced in support of an order under s 85 of the ST Act, whereas item (5) supports the application based on s 94.

Failure to respond to approach by applicant's parents to strata company to relocate hot water system to current position

I am prepared to accept, on the basis of Mr Duffy's hearsay evidence, that his parents-in-law, when they owned Lot 12, made an approach to the strata company to replace the hot water system which had been causing them problems, and to relocate it to the location of the current installation. As I understand Mr Duffy's evidence, the approach was an informal one to the Chair of the council of owners. I note that, on Ms Duffy's own case, no response, favourable or otherwise, was received by her parents. Reliance is placed on a lack of a negative response to the Hoares' approach. At its highest, the argument is that the Hoares made a request to the strata company to relocate their hot water system, and the strata company's failure to respond within two months amounted to a refusal of the request by reason of the deeming operation of s 83(2) and s 83(3) of the ST Act.
In marked contrast to rights conferred under an exclusive use bylaw, the grant of consent contemplated by s 85 is personal to the proprietor in whose favour it is granted. It does not carry over, once an interest in a strata titled property is sold or otherwise alienated to another party, to the new proprietor. There may, however, be cases where this Tribunal might be persuaded to direct, pursuant to s 115 of the ST Act, that an order it makes under s 85 be recorded on a strata plan, although whether this has the effect of extending the operation of the order after a change of ownership is an open question.
In any event, the terms of s 85 of the ST Act require an identity of the proprietor who makes the application for an order under the section (Ms Duffy in this case) with the proprietor who proposed the alterations to the common property (the Hoares). It is, therefore, simply not open for Ms Duffy to rely upon a deemed refusal of any request by the Hoares, regardless of the close relationship between the two. The argument based on any approach to the strata company by the Hoares to relocate their hot water system fails.

Favourable indications of council of owners members and failure to respond to written request when installation completed

Mr Duffy's statement contains allegations, which he reiterated in his oral evidence, that the Chairman of the council of owners, Mr Drew, and another council member, Mr Williams, made comments indicating a subjective favourable predisposition to the installation in its current location. However, a reading of the closing submissions of Ms Duffy discloses a lack of reliance upon the alleged discussions with either gentleman, whether as satisfying the requirement for strata company approval, or as representing a proposal to use common property giving rise to a deemed refusal. It seems to me that neither discussion assists the case put by Ms Duffy under s 85 of the ST Act.
Ms Duffy contends that she did make a request to the strata company for approval of the external hot water system in the form of her letter to Ms Anstey dated 24 June 2009, which was the date that installation of the system was completed. According to Ms Duffy, the request was never responded to, thereby constituting a deemed refusal. I will deal with the terms of the letter, and whether on a fair reading it constitutes a proposal for which the strata company's consent is sought, after considering whether a request made upon completion of the installation is capable of founding an application under s 85 of the ST Act.
I am troubled by the proposition that an application can be brought under s 85 in relation to existing alterations of common property. What the section contemplates is that, prior to proposed alterations being commenced, the strata company is provided, for its decision, with a proposal for alterations to the common property, and the strata company refuses the proposal. The avenue of an application to the Tribunal under s 85 then becomes available if the proponent wishes to pursue the proposal. By proceeding instead with the alterations, two consequences follow. The responsible proprietor engages in unauthorised alteration of common property which may be the subject of the action taken by the strata company in this case. And, to the extent that the proposal is carried to fruition, it is no longer 'a proposal to effect alterations', the alterations having already been effected.
The position may be contrasted with alterations to a proprietor's lot. In that case, it is still incumbent on the proprietor to obtain the approval, prior to commencement, of the strata company: s 7(2) ST Act. Unlike the position concerning alterations to common property, however, the approval process is prescribed in some detail by s 7 and s 7B of the ST Act, including the reference in s 7(5) to the grounds upon which approval may be refused. There exists under s 103F the possibility, analogous to s 85, of obtaining a deemed approval by the strata company. Significantly, in my view, there is also an express allowance, under s 103G (dealing with applications for breach of the requirement for approval under s 7(2)) to refuse orders to stop carrying on work in breach, or to pull down, remove or alter anything in place as a result of such work, in certain circumstances. That no such allowance applies to unauthorised alterations to common property gives rise to the presumption that Parliament intended no such concession in the case of unauthorised alterations to common property. This is perhaps not surprising, given that common property is owned by all the proprietors as tenants in common.
In my view, the application under s 85 of the ST Act must fail because Ms Duffy is unable to demonstrate having put any proposal to the strata company to effect the alterations in question before the alterations were effected.
I turn then to the issue of whether the letter dated 24 June 2009 constituted, by its terms, a 'proposal' for the purposes of s 85.
The letter is produced as an attachment to Mr Duffy's statement. It is a letter from Mr and Ms Duffy addressed to Strata Focus, which is the strata management company. It is introduced as follows:
We are writing in regard to the recent renovations to the above unit and the concerns of the Body Corporate to certain works undertaken.
The letter then sets out various matters under five headings: 'Hot Water System', 'Air Conditioning', 'Upgrading Circuit Board', 'Front Screen Door' and 'Windows'. The final paragraph, which appears to be separate from any particular heading, states:
Again we apologise for the urgent way in which we have undertaken these renovations and we would ask that the Body Corp [sic] consider our above requests in the spirit of harmonious tenancy.
When reading the letter, requests for approval from the strata company are readily apparent in respect of proposals regarding air conditioning, upgrading circuit board and front screen door. A request for reimbursement of windows replaced at Ms Duffy's cost is also made. I cannot, however, discern a request of any type in relation to the hot water system. That part of the letter is devoted to reasons for replacing the previous system; reasons for proceeding with the installation without the strata company's consent (and an acknowledgement this was a mistake for which an apology is given); references to the discussions with Mr Drew and Mr Williams; and an indication of a preparedness to undertake certain camouflaging of the pipework and heater. On my reading of the letter, the reference in the final paragraph to 'our above requests' was to the requests I have identified relating to each of the subject matters in the letter save for the hot water system. No request appears in the letter for approval of either the new hot water system or the new windows (as distinct from reimbursement of the cost of the windows, based on there being common property), presumably because they were already in place.

Although not argued before me, it appears that Ms Duffy did make a request for consent for the installation to remain in the second paragraph of an email to Ms Arney of Strata Focus on 6 August 2009. The email reads:
Until a policy has been made regarding air conditioners in the above building, we are willing to concede that our unit needs to be removed at this time. We shall do so immediately.
With this in mind, we would request the Body Corporate consider allowing the water heater to remain in its present position.
Could you please inform me of their decision.
The response was an email from Ms Arney to Ms Duffy on 18 August 2009, as follows:
The Council of Owners appreciates the removal of the airconditioner, however, the hot water system is to be removed, as previously advised.
Therefore, to the extent that the request made on 6 August 2009 can be regarded as being for consent to a proposal for alterations to the common property, it appears to have been refused within the required 14 day period. But, as I have found, it cannot be so regarded, because the alterations had already been effected.

Inconsistencies of the strata company's approach given its failure to act in relation to installation by another proprietor of a hot water service on common property and willingness to permit other exclusive use behaviour in respect of common property

The point sought to be raised by Ms Duffy is put most concisely in her written closing submissions as follows:
Further, it has been shown that the Strata Company has been inconsistent in its approach in relation to externally-located gas heaters or to the very considerable undocumented de facto grants of exclusive use of large parts of the common property to other lot proprietors or even the use of common property for the installation of flues. No explanation has been given for those inconsistencies. In the interests of fairness to Mrs Duffy, she should not be singled out in an indiscriminate manner in relation to a small heater in an unobtrusive and safe position and which has been installed on the basis of a sound and sensible decision.
Great emphasis was placed on the fact that there has, since at least 1997, been a hot water system servicing Lot 13 attached to an external common wall. The current part owner of Lot 13, Mr Cameron, made a short written statement in which he said that Mr Drew has been the Chair of the council of owners for the entire period of his and his wife's ownership and that at no time had Mr Drew informed them that there was any problem with the location of their hot water service.
In his oral evidence, he was asked about letters from Strata Focus to him and his wife regarding the external hot water system. The first letter was dated 27 August 2009, in which a missing panel cover from the heater was referred to and 'repairs' (presumably replacement of the cover) were requested. Mr Cameron said that this was done.
A second letter, dated 21 October 2009, referred to the Camerons as having:
… installed an external appliance (hot water system) upon the common property without either seeking or receiving Strata Company approval, as required by the Strata Company by-laws …
and required the removal of all appliances installed upon common property by 28 October 2009, failing which the council would take the matter to the Tribunal.
On receipt of this letter, Mr Cameron contacted Ms Amery and recounted the relevant history, including that the hot water system was in place when they purchased their lot in 1997, and the request made two months before to effect repairs. Although Mr Cameron's subsequent email in confirmation of the matters discussed with Ms Amery, in which a request that the strata company 'withdraw the action requested in the Strata Focus letter of 21st October 2009', was never formally responded to, Mr Cameron said that in another conversation with Ms Amery, she told him to disregard the letter and apologised for sending it.
It is common ground that no steps (other than the letter sent to the Camerons) have been taken to remove the hot water installation servicing Lot 13. Mr Drew explained in crossexamination that the council usually acts only in cases of complaint, and there had been no complaint regarding the Camerons' external hot water service.
In addition to the apparent inconsistency in the exercise of its powers with respect to common property in the cases of the two hot water systems, Ms Duffy also points to examples where the strata company (through the council of owners) has, without any grant of exclusive use by-laws, permitted de facto exclusive use of car bays, decking, and garden areas defined by unapproved fencing. Of perhaps most direct relevance to the facts of this case, proprietors have not been required to remove flues constructed on the common property. Such examples are relied upon to demonstrate the unfairness and unreasonableness of the position adopted in relation to the installation of Ms Duffy's appliance.
It is appropriate at this point to refer to a motion by Mr Duffy (presumably as Ms Duffy's proxy) at an Extraordinary General Meeting of the strata company on 25 January 2010 for a resolution in the following terms:
That the Council of Owners adopt a formal policy controlling the fixing to or installation on the common property of any appliance intended for use servicing any Lot.
The outcome, as recorded in draft minutes of the meeting, was that Ms Arney was asked to assist the council in drafting the policy/ies. Although nothing appears to have occurred in that regard, and criticism is levelled by Ms Duffy for this lack of action, it does indicate that Ms Duffy herself endorses the ability of the strata company, through the council of owners, to regulate the type of use of the common property of which her own unauthorised use is an example.
It would appear that the council has adopted a somewhat lax approach to the procedure it has adopted (or not adopted) regarding exclusive use behaviour by proprietors in relation to a limited number of specific uses of common property. However, the evidence does show a (perhaps newfound) commitment to ensure that the formal approval procedures are adhered to when it comes to items such as hot water services and air conditioners. Mr Cameron's case can perhaps be confined to its peculiar facts, including the longevity of the existence of the appliance in its current location, and the previous decision-making of the council predicated upon an entitlement that it remain. In making this observation, I should not, of course, be regarded as expressing any deliberative view on issues which would arise in any application where Mr Cameron's use of the relevant portion of the common property is called into question.
Questions going to the extent of management and control of the strata company in relation to the common property may, in an appropriate case, inform the outcome as to whether a particular approval within the provenance of the strata company to give, but which has been refused, should be the subject of a direction by the Tribunal that it be given. But that is only possible where the Tribunal is empowered by the enabling statute to act upon an application. The Tribunal has no inherent or other jurisdiction to enable the vindication of a claim under s 85 of the ST Act (or any other section for that matter) where, as here, the applicant is unable to bring her claim within the ambit of the section relied upon.

Relocation of hot water service necessary on health and safety grounds

In order for this claim to succeed, it is necessary to satisfy the requirements set out in s 94(2) of the ST Act. Those requirements are repeated here:
(a)that the lot of which the applicant is proprietor is incapable of reasonable use and enjoyment by the proprietor, occupier, or other resident of the lot unless the order is made; and
(b)that the strata company has refused to grant a licence to use common property in such a manner, for such purposes, and upon such terms and conditions as would enable that proprietor or such an occupier or other resident reasonably to use and enjoy that lot.
Contrary to the submissions of the strata company, I can see no reason why, in an appropriate case, the Tribunal would be unable to make an order under s 94(1) in respect of use of specified common property which has already commenced. Unlike the position under s 85, the fact that the use has commenced does not render inapplicable the statutory conditions for the grant of relief. Although s 94(2)(b) requires a refusal by the strata company to grant the licence sought, there is no indication that prior use disqualifies an application to the Tribunal for such a licence. On the facts of this case, the request for grant of the licence was made in Ms Duffy's email on 6 August 2009, which was refused on 18 August 2009.
The question which I must determine is whether Ms Duffy's lot is incapable of reasonable use and enjoyment by any resident of the lot unless the external hot water system is allowed to remain. This is a high standard, requiring an acceptance that the use of common property being sought is the only means by which reasonable use and enjoyment of the lot is achievable.
In his written statement, Mr Duffy provided the following description of the consideration given by him and his wife to the safety of internal gas hot water systems as opposed to external installations:
28.Prior to the work on the unit and in particular the hot water system, we did some research on the web and discovered that in most States of Australia it is recommended not to have internal gas hot water systems of any type.
29.This research alerted my wife and I to the very real prospect of a threat to the lives of any occupant of this unit with an internal gas water heater fitted. We felt it would be difficult for anybody to feel comfortable and enjoy living there knowing that the internal gas water heaters have caused deaths in the past.
30.In this regard I refer to print outs I have obtained from various States in particular 'gas focus' issue No.23 April 2002, by the Government of Western Australia in which it states, 'The State Energy Commission of WA (SECWA) embarked on a program to have all internally mounted instantaneous water heaters removed from the inside of multiple dwellings' 'The replacement water heaters were generally installed externally on balconies and external walls'.
These are annexed and marked 'C'.
31.I can state by reason of our research that it was our intention to utilize external installation for safety purposes based on what we had read, which would allow any occupant to use and enjoy the property in a healthy environment.
Annexure 'C' to Mr Duffy's statement comprises a number of publications of different States' regulatory authorities where issues relating to gas hot water installations are mentioned.
The first publication is a release by the New South Wales Office of Fair Trading under the heading 'Gas Safety'. It appears to have been updated on 11 December 2009.
The publication contains the following pronouncements:
Gas hot water heaters that have not been properly maintained have been responsible for deaths and serious injuries. If you have a gas bath heater or flued instantaneous water heater in your bathroom or a flueless water heater in your kitchen like any of the appliances shown here (see diagram) it could be a source of danger.
Flued water heaters
Flued water heating, using natural or LPG gas, were often installed in bathrooms. They were designed to operate with a flue that vented harmful fumes outside just like a chimney. If the flue pipe leaks or becomes blocked problems can occur.
Flueless water heaters
Flueless water heating, also using natural or LPG gas, were designed to work without a flue pipe. However, they still need permanent unobstructed ventilation to operate safely. They were sometimes installed in the kitchen, often in cupboards below the kitchen sink.
The potential risk
If ventilation is obstructed in either a flued or flueless water heater, poisonous fumes such as carbon monoxide can be forced back into the room contaminating the air you breathe. As carbon monoxide is colourless, odourless and tasteless, you will be unaware of its presence.
Reducing the risk
The easiest way to reduce the risk is to replace the heater with a new, safer and more energy efficient heater, located outside the building. If you decide to do this, use an authorised gas service agent to carry out the work.
Make sure your water heater (indoor or outdoor) is serviced once a year by a licensed gas fitter.
Important safety tips
Here are some important safety tips to remember …
•make sure your bathroom and kitchen heaters have unobstructed ventilation
…
•make sure heater flue pipes are free from all restrictions and holes
…
•make sure that all new and replacement gas water heaters are installed outside the building
The next document to which I will refer is a release from the Victorian Office of Gas Safety under the heading 'Important Alert for Gasfitters'. The release is undated.
The release commenced:
The Office of Gas Safety … alerts gasfitters that all openflued instantaneous gas water heaters (IGWH) in toilets and bathrooms should be replaced as a matter of urgency.
Openflued IGWH's, in a confined living space, can expose gas users to the risk of Carbon Monoxide poisoning. Gasfitters are uniquely placed to help in removing this risk.
Under the heading 'What Action has OGS taken so far' appears the following:
We have previously warned plumbers and gasfitters not to install a new or replacement openflued instantaneous water heater in a bedroom, bathroom, toilet or sleeping area (the Gas & Fuel prohibited these installations in 1985).
The release urges gasfitters to inform residents that IGWHs in toilets or bathrooms should be replaced, and to notify the Office of Gas Safety where a resident or owner refuses permission in that regard.
Another release from the Office of Gas Safety headed 'Important Safety Warning' advises, in relation to a gas hot water heater which appears on the release (which is of similar appearance to the previous system in Ms Duffy's lot):
The Office of Gas Safety is urging residents who have this type of instantaneous gas water heater in their toilet or bathroom to REPLACE it, even if it is new.
Having this type of heater in a small, enclosed room such as a bathroom or toilet can cause deadly carbon monoxide (CO) poisoning. You cannot see, taste or smell CO, but it can cause death quickly.
The release is otherwise concerned with replacement of gas hot water heaters in bathrooms and toilets.
The next release, from Workplace Standards Tasmania, is dated 3 October 2009. The relevant passage is reproduced here:
Instantaneous Gas Water Heaters
The office of Energy Safe Victoria have recently implemented a program for removal of Instantaneous Gas Water Heaters from toilets and bathrooms, leading to raised awareness of carbon monoxide [CO] problems in the community, and a need for CO incident data on national basis. All related warnings and documents can be viewed on the OGS.
I refer next to a publication of Energy Safety Western Australia called 'Gas Focus', which contains a 'Policy Statement - Replacement of Gas Water Heaters', including the following passages:
This policy applies where the existing installation complies with previously applicable standards or was given a dispensation or special approval for installation of that appliance.
Where an existing gas water heating system is replaced, provided the installation meets the following criteria, it is acceptable for the replacement water heater to be installed in the original location … subject to the following conditions … :
•there is no practical alternative location available for the installation of the water heater;
…
An excerpt from an article attributed to Leith Higgins, Principal Scientific Officer of the Fire and Emergency Services Authority (FESA), was also included, in which the following passage appeared under the heading 'Man's Death Caused by Faulty Gas Heater':
Thirteen people have died in Western Australia since 1973 due to a fault in a gas hot water system. One such fatality occurred in February 1991, involving a 25 year old man.
The man died from acute carbon monoxide toxicity after having a shower in his Perth boarding house.
Hot water to the bathroom was supplied by a gas hot water heater which was fixed to a corner of the internal wall. The heater was connected to a flue which rose through the bathroom ceiling to the roof above.
Perth Coroner David McCann handed down a verdict of accidental death, but stressed the need to service gas hot water systems regularly.
He said advice should be sought if the flames in the burner were yellow, not blue.
Finally, Mr Duffy attached to his statement a number of excerpts from other papers concerning risks arising in indoor settings from various types of emissions, including internal heaters and hot water systems.
Mr Cameron, whose written statement has already been referred to, gave oral evidence going to the issue of safety of internal gas hot water systems. He has particular expertise relating to the effect of various applications on air quality. He holds qualifications in chemical engineering and environmental science, was from 1987 until 1997 the manager of the air monitoring section of the Western Australian Department of Environment, and at one time was the Western Australian representative on a national committee concerned with setting guidelines for ambient air conditions in a range of scenarios. Since 1997, he has been a consultant to private industry regarding air quality and emissions.
Mr Cameron said that in his intergovernmental dealings, there were extensive discussions regarding the dangers presented by room heating and internal hot water systems in internal areas. He confirmed the possible risks these appliances presented due to the possible build-up of carbon monoxide and nitrous oxygen in confined spaces. Having completed his government work dealing with these issues some 13 years ago, Mr Cameron was unaware of any Australian standards where minimum requirements for internal hot water services are imposed, and, indeed, he was unable to state whether internal systems remained legal. He indicated his personal attitude was that he would not live in premises with an internal hot water system, flued or unflued, which he believes should not be used in confined spaces. When asked about the 14 lots in the strata scheme, apart from his own and Ms Duffy's, which have internal hot water appliances, he responded that his concern was limited to his tenant. He said that he had not conducted any air quality tests in any of the lots, and indicated this was the only way that the efficiency of the internal systems could be assessed.
The strata company, on the other hand, produced evidence to the effect that balanced flued internal lot water units are legal in this State, that one supplier (Rinnai Australia) has a number of gas hot water systems which are designed for indoor installation, provided they are installed with Rinnai coaxial flues, and that some internal gas water heaters (including Rinnai's) are certified under the Australian Gas Association Product Certification Scheme.
In my opinion, the evidence relied upon by Ms Duffy falls short of establishing that to refuse to allow her to use part of the common property for the purpose of her external hot water system would mean that her lot is incapable of reasonable use and enjoyment, by denying her lot access to a safe and convenient source of hot water. The evidence establishes no more than an external system is to be preferred to an internal system on health and safety grounds. I do not discount the dangers referred to in the publications to which I have referred. However, those publications do not go so far as recommending that all internal hot water systems be banned, and there is no evidence that any legislative action to that end has occurred in Australia. They are certainly legal in Western Australia. Particular concerns centre around the need to ensure adequate ventilation of any internal appliance. Adequate flues are recommended, as is regular servicing. The presence of systems in bathrooms and toilets is particularly frowned upon, with the Victorian Office of Energy Safe implementing a program for their removal. Mr Cameron's personal preference not to live in a residence with an internally installed hot water service, while understandable given his insight into the relevant safety issues, was not, it would seem, reflected in the recommendations of the national committee of which he was a member, and has not been acted upon at the level of any government.

Based on all the evidence before me, an internal gas hot water system is both a legal and practical solution for the lots in this strata scheme, provided that proper precautions are taken. It appears that the council of owners has taken on board the need for precautions by permitting proprietors to have flues connected to their internal systems (which has involved the use of common property).
By rushing headlong into installing the external workings of her system, against the clear wishes of the council of owners, Ms Duffy took the risk that she would be unable to demonstrate that the type of installation acceptable to other proprietors in the scheme is not an option reasonably open to her. That risk has materialised.

Conclusion

For the reasons I have expressed, Ms Duffy fails in her claims under both s 85 and s 94 of the ST Act. In those circumstances, the strata company is entitled to relief substantially in terms of that sought in its application. The order will allow a period of two months from the date of the order for removal of those parts of the hot water system installed on common property.

Order

The Tribunal orders that:
1.The application of Ms Duffy is dismissed.
2.Ms Duffy shall by 6 October 2010, at her cost:
(a)remove from the common property, by a suitably qualified person approved by the strata company, the Rinnai V1200 gas hot water heater on the eastfacing external wall of the storeroom opposite the central courtyard and all the associated pipework and wiring that is not internal to Lot 12 (removal works);
(b)make good the condition of the building caused by the removal works, by a suitably qualified person approved by the strata company; and
(c)clean up all mess resulting from the removal works.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER