EFFICIENT BUILDING TEAM PTY LTD and PERTH RECRUITMENT SERVICES PTY LTD
[2024] WASAT 25
•10 APRIL 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: EFFICIENT BUILDING TEAM PTY LTD and PERTH RECRUITMENT SERVICES PTY LTD [2024] WASAT 25
MEMBER: MS R PETRUCCI, MEMBER
HEARD: 11 DECEMBER 2023 and 12 DECEMBER 2023
LAST SUBMISSIONS FILED ON 15 JANUARY 2024
DELIVERED : 10 APRIL 2024
FILE NO/S: CC 1696 of 2022
BETWEEN: EFFICIENT BUILDING TEAM PTY LTD
Applicant
AND
PERTH RECRUITMENT SERVICES PTY LTD
Respondent
Catchwords:
Strata Titles Act 1985 (WA) - Alleged contravention of scheme conduct by-laws - Enforcement of scheme by-laws - Exercise of Tribunal's statutory discretionary powers to make orders - Turns on own facts
Legislation:
Strata Titles Act 1985 (WA), s 43, s 47(3), s 47(3)(a), s 47(4), s 47(4)(a), s 47(5), s 47(5)(b), s 90, s 200, s 200(7), Div 1, Pt 8
Result:
Application partly successful
Orders made
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [200] HCA 47; (2000) 203 CLR 194
Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37
Efficient Building Team Pty Ltd and Rosskeen Pty Ltd [2021] WASAT 157
Efficient Building Team Pty Ltd and The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 [2021] WASAT 158
Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 and Efficient Building Team Pty Ltd [2023] WASAT 3
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In Greek mythology, the saga of Sisyphus personifies relentless and never-ending toil – condemned by the gods to an eternity of pushing a massive boulder up a steep hill, only to watch it roll back down again as he nears the summit.
The parties must feel the Sisyphean ordeal of seemingly endless applications to the Tribunal under the Strata Titles Act 1985 (WA) (ST Act). This is because, since 2020, the applicant, Efficient Building Team Pty Ltd (Efficient), who owns Lot 8 on the relevant four-lot strata plan in Fremantle, and the respondent, Perth Recruitment Services Pty Ltd (Perth Recruitment), who owns Lot 7, have made numerous applications to the Tribunal under the ST Act. To date, the Tribunal has published the following decisions:
•Efficient Building Team Pty Ltd and Rosskeen Pty Ltd [2021] WASAT 157 (First Decision);
•Efficient Building Team Pty Ltd and The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 [2021] WASAT 158 (Second Decision);
•The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 and Efficient Building Team Pty Ltd [2023] WASAT 3 (Third Decision); and
•Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37 (Fourth Decision).
In the current proceeding before the Tribunal, on 18 November 2022, Efficient made an application under s 47(3) of the ST Act seeking orders against Perth Recruitment for the enforcement of the scheme bylaws.
Shortly after the application was made, Perth Recruitment made its application to the Tribunal seeking to strike out Efficient's entire application. Following consideration of the written and oral submissions made by the parties, the Tribunal made the following orders on 22 May 2023:[1]
1.Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), the proceeding is struck out and is at an end in respect of each of the grounds based on the claim for contravention of conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c) and 2(d).
2.For avoidance of doubt the grounds based on the claims for breach of conduct by-laws 2(e), 6, 7(b) and 13 are not struck out and those claims are to be determined by the Tribunal at a final hearing.
3.The matter is adjourned to a further directions hearing at 9:30 am on 14 June 2023 to program the claim for breach of conduct by-laws 2(e), 6, 7(b) and 13 to a final hearing.
[1] Fourth Decision at [90].
Subsequently, on 12 June 2023, Efficient filed with the Tribunal and provided to Perth Recruitment a set of proposed amended orders it seeks in this proceeding.
At the directions hearing on 14 June 2023, Perth Recruitment objected to any amendment to the original orders sought by Efficient. Consequently, at that directions hearing, the Tribunal made the following orders:
1.By 8 September 2023, the respondent must file with the Tribunal and give to the applicant written submissions in objection to any amendment to the orders sought by the applicant.
2.By 29 September 2023, the applicant must file with the Tribunal and give to the respondent written submissions in response to the applicant's objection (see order 1 above).
3.The matter is adjourned to a further directions hearing at 9 am on 9 October 2023 for a duration of one hour to determine if leave will be granted by the Tribunal to the applicant to amend the orders sought per the document filed by the applicant on 12 June 2023.
On 9 October 2023, after consideration of the written submissions and hearing from the parties, the Tribunal made the following orders in regard to Efficient's application to amend the orders it seeks in this proceeding:
1.The applicant is given leave to amend the application and the application is amended by substituting orders 5 and 7 only as set out in the application dated 18 November 2022 with proposed orders 5 and 7 which are set out in the document filed with the Tribunal on 12 June 2023 titled 'Submissions by Efficient Building Team Pty Ltd, Applicant, to amend orders sought'.
2.For avoidance of doubt, leave is not granted to the applicant for all the other proposed orders sought. The application now reflects the following orders sought by the applicant in these proceedings:
(i)Perth Recruitment Services Pty Ltd [the respondent] shall cease parking and permitting the parking of vehicles on the lot that overhang into the common property.
(ii)Perth Recruitment Services Pty Ltd shall remove all 'cues' that invite, encourage or suggest to park on the rear of lot 7 other than in a car parking space for which the City of Fremantle has issued development approval.
(iii)Perth Recruitment Services Pty Ltd shall install vehicle barriers such as fence, bollards or kerbing to prevent vehicles parking on the rear of lot 7 other than in a car parking space for which the City of Fremantle has issued development approval.
(iv)Perth Recruitment Services Pty Ltd shall remove the carport over, and signage that suggest that any part of the lot be used for parking other than a car parking space for which the City of Fremantle has issued development approval.
(v)Perth Recruitment Services Pty Ltd shall remove waste items deposited or stored on the part lot 7 or the common property and shall not deposit or store waste materials or rubbish on the common property or the part of lot 7.
(vi)Perth Recruitment Services Pty Ltd remove the sign relating to parking that is affixed to the rear wall of the lot.
(vii)Within 45 days of this order Perth Recruitment Services Pty Ltd shall remove the carport installed on lot 7.
Further programming orders were made for the parties to file evidence (documents, photographs and other materials) that they wish to rely on, any written submissions and a list of persons who they propose to call to give evidence at the final hearing.
Finally, I heard the matter over two days commencing on 12 December 2023. At the conclusion of the final hearing, I made orders requiring the parties to file with the Tribunal and to provide a copy to the other party of their final written submissions. The Tribunal received final written submissions from the parties on 15 January 2024, following which I reserved my decision.
In the reasons which follow I explain why I find Perth Recruitment has contravened each of conduct by-laws 2(e), 6, 7(b) and 13. Further, I explain why, in my view, orders are made under s 47(5) of the ST Act to require Perth Recruitment to comply with conduct by-laws 2(e), 6 and 7(b) but not in respect of conduct by-law 13. The result is that Efficient's application is partly successful.
Efficient's application
In its application, in relation to the parking of motor vehicles, Efficient alleges that Perth Recruitment breached conduct by-laws 2(e) by:[2]
(a)failing to take all reasonable steps to ensure that it and its visitors comply with conduct by-law 2(e) relating to the parking of motor vehicles and is actively encouraging parking on Lot 7 resulting in overhang onto the common property in breach of the by-laws;
(b)permitting motor vehicles to park on the common property to the extent they overhang the Lot 7 boundary onto the common property contrary to any written approval of the strata company;
(c)permitting vehicles parked on Lot 7 to overhang onto the common property due to the lack of space on Lot 7 to meet the minimum required dimension for parking spaces and this unreasonably interferes with the use and enjoyment of common property by vehicles visiting Lot 8;
(d)using the rear of Lot 7 as a parking area for which there is insufficient space to meet the minimum required dimensions for parking spaces with the result that parked vehicles overhang the common property causing a nuisance to vehicles using the common property as a circulation roadway and parking aisles when visiting and departing from Lot 8;
(e)not taking all reasonable steps to prevent visitors to Lot 7 from using the rear of Lot 7 as a parking area for which there is insufficient space to meet the minimum required dimensions for parking spaces with the result that parked vehicles overhang the common property thereby interfering in the peaceful enjoyment by Efficient, occupiers and visitors to Lot 8;
(f)permitting motor vehicles to park on the rear of Lot 7 overhanging onto the common property on a daily basis and is thereby obstructing the lawful use of the common property as circulation roadway and as a parking aisle;[3] and
(g)permitting vehicles to park on the rear of Lot 7 overhang on the common property on a daily basis and is thereby impeding and hindering vehicles using the six metre wide accessway as a circulation roadway and as a parking aisle.
[2] Efficient's application dated 18 November 2022.
[3] See n 42.
Efficient seeks the following amended orders under s 47(5) of the ST Act for the alleged breach of conduct by-law 2(e):
(i)Perth Recruitment Services Pty Ltd [the respondent] shall cease parking and permitting the parking of vehicles on the lot that overhang into the common property.
(ii)Perth Recruitment Services Pty Ltd shall remove all 'cues' that invite, encourage or suggest to park on the rear of lot 7 other than in a car parking space for which the City of Fremantle has issued development approval.
(iii)Perth Recruitment Services Pty Ltd shall install vehicle barriers such as fence, bollards or kerbing to prevent vehicles parking on the rear of lot 7 other than in a car parking space for which the City of Fremantle has issued development approval.
(iv)Perth Recruitment Services Pty Ltd shall remove the carport over, and signage that suggest that any part of the lot be used for parking other than a car parking space for which the City of Fremantle has issued development approval.
Further, in its application, Efficient alleges that Perth Recruitment has been and continues to store rubbish on the common property between the shed installed on part Lot 7 and the brick wall alongside the rear boundary of the strata complex. Efficient contends that in doing so, Perth Recruitment has breached conduct by-law 6.
Efficient seeks the following amended order under s 47(5) of the ST Act in respect of the alleged breach of conduct by-law 6:
(v)Perth Recruitment Services Pty Ltd shall remove waste items deposited or stored on the part lot 7 or the common property and shall not deposit or store waste materials or rubbish on the common property or the part of lot 7.
Next, in its application, Efficient alleges that Perth Recruitment has affixed a sign to the rear of its building on Lot 7 and thereby encouraging and inviting the parking of motor vehicles on the rear of Lot 7 without the consent of the strata company in breach of conduct by-law 7(b).
Efficient seeks the following amended order under s 47(5) of the ST Act in respect of the alleged breach of conduct by-law 7(b):
(vi)Perth Recruitment Services Pty Ltd remove the sign relating to parking that is affixed to the rear wall of the lot.
Finally, in its application, Efficient alleges that Perth Recruitment made a structural alteration to Lot 7 by installing a patio/carport without first providing notice to the strata company and which carport has resulted in motor vehicles parking in a manner that breaches conduct bylaw 13.
Efficient seeks the following amended order under s 47(5) of the ST Act in respect of the alleged breach of conduct by-law 13:
(vii)Within 45 days of this order Perth Recruitment Services Pty Ltd shall remove the carport installed on lot 7.
Perth Recruitment's response to Efficient's application may be summarised as follows:[4]
[Mr Kullack has] stated all along that [he] use[s] and need[s] [the] storage in part-lot 7. [Mr Kullack has] done everything asked of [him] concerning the [strata] scheme. [Mr Kullack has] done everything that [he] agreed to do concerning the scheme.
…
Just because [Efficient] are a developer does not mean they get everything they want nor gives them the right to continually harass and seek changes to the strata scheme for their own benefit.
…
It was [Efficient] who forced the changes to parking and [the] common property access way, despite being aware of the private lots and the need for vehicle overhang into [the] common property due to the size of all private lots. This is well documented in the transcript of matter [CC] 644 [of 2020] submitted by [Efficient].
[4] Perth Recruitment's closing submissions filed on 15 January 2024 at page 1 and ts 160, 12 December 2023.
Evidence
In accordance with the Tribunal's usual practice in matters of this nature, the final hearing was conducted on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence,[5] subject to any objection. There was no objection. At the final hearing, the Tribunal marked the following documents, to which I have had regard for the purpose of my determination in this proceeding, as an exhibit:
Exhibit 1Hearing Book prepared by the Tribunal on 30 November 2023 (pages 1-731) (Hearing Book);
Exhibit 2Various emails and photographs filed by Perth Recruitment on 9 December 2023; and
Exhibit 3Various emails handed up by Perth Recruitment at the final hearing on 11 December 2023.
[5]Although forming part of 'exhibits', the parties' contentions and submissions in Exhibits 1, 2 and 3 are taken to be submissions, rather than evidence.
I had the benefit of affirmed oral evidence of Mr Geoffrey Ross Chambers, a director of Efficient. Mr Chambers provided a brief written summary of his evidence.[6]
[6] Hearing Book at page 288.
Ms Janet Williamson, also a director of Efficient, provided a brief written summary of her evidence.[7] At the final hearing Ms Williamson decided not to give evidence. As Ms Williamson was not available to answer questions in relation to her summary of evidence, I have placed no weight on that evidence.
[7] Hearing Book at page 287.
Finally, I had the benefit of the affirmed oral evidence of Mr Timothy Kullack, managing director of Perth Recruitment. Mr Kullack provided written submissions as to why he objects to the orders sought by Efficient.[8]
[8] Hearing Book at pages 497 to 505.
I will now set out the key issues or questions to be determined by me in this proceeding.
Issues
In the Fourth Decision at [39] to [49], the Tribunal found Efficient to have standing in this proceeding to make the application to the Tribunal under s 47(3) read with s 47(4)(a) of the ST Act for the enforcement of particular conduct by-laws.
In that decision, the Tribunal made a finding that under s 47(4)(a) of the ST Act, Efficient gave written notice to Perth Recruitment, being a person other than the strata company, alleging that Perth Recruitment had contravened particular conduct by-laws of the strata scheme and alleging that Perth Recruitment had contravened the requirements set out in the notice.
Having established that Efficient has standing in this proceeding, the issues or questions that require determination by the Tribunal are as follows:
Issue 1: Did Perth Recruitment contravene conduct bylaw 2(e)?
Issue 2: Did Perth Recruitment contravene conduct by-law 6?
Issue 3: Did Perth Recruitment contravene conduct by-law 7(b)?
Issue 4: Did Perth Recruitment contravene conduct by-law 13?
Issue 5: If Perth Recruitment did contravene conduct by-laws 2(e), 6, 7(b) and/or 13, what orders, if any, should the Tribunal make under s 47(5) and s 200 of the ST Act?
It is first necessary to set out the regulatory framework and factual background against which the consideration of the above issues must be made.
Regulatory framework
Strata plan and ST Act
Details concerning the strata plan and provisions of the ST Act relevant to this proceeding are set out in the Third Decision at [26] to [35], [37], [40] to [41]. It is not necessary to repeat the details here.
In addition to the above, s 90 of the ST Act, provides that on the application of an owner of a lot, the Tribunal may by order exempt a particular structural alteration to the lot from the application of Div 1 of Pt 8 of the ST Act. Division 1 is headed 'Functions' and Pt 8 is headed 'Strata Company'. Relevantly, s 90 of the ST Act provides:
…
(2)An order may be made under this section —
(a)whether or not the necessary approval for the alteration has been sought; and
(b)even if there has been a valid refusal to give the necessary approval.
(3)An order can only be made under this section if the Tribunal is satisfied —
(a)that the structural alteration of the lot is reasonable, having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property; and
(b)to the extent that the structural alteration has already been carried out, it will not cause any significant inconvenience or detriment to the owners of other lots.
Principles in exercising the Tribunal's discretion to make an order
If the Tribunal is satisfied that Perth Recruitment has contravened one or more of the conduct by-laws, it may order Perth Recruitment to do one or more of the things set out in s 47(5) of the ST Act. Further, the Tribunal may make an order that it considers appropriate to resolve the proceeding under s 200 of the ST Act. The power of the Tribunal to make an order under s 47(5) and s 200 of the ST Act is discretionary.
Section 47(5) of the ST Act provides:
(5)The Tribunal may, if satisfied that a person has contravened the scheme by‑laws, by order require the person to do 1 or more of the following —
(a)pay a specified amount to the strata company by way of penalty for the contravention;
(b)take specified action within a period stated in the order to remedy the contravention or prevent further contraventions;
(c)refrain from taking specified action to prevent further contraventions.
Section 200 of the ST Act relevantly provides:
(1)In a proceeding under this Act, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding.
(2)Without limitation, the orders that may be made by the Tribunal on an application under this Act include the following —
…
(4)An order may specify that it is to be taken to have come into effect on a date earlier than the date of the order.
…
(7)An order may be expressed to remain in force for a specified period, until a specified event or until further order.
The term 'discretion' was explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [200] HCA 47; (2000) 203 CLR 194 at [19] as follows:
'Discretion' … refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable … [or] it may be quite narrow[.]
The precondition which enlivens the discretion conferred on the Tribunal to make an order under s 47(5) of the ST Act is that the Tribunal must be satisfied that a person has contravened the scheme by-laws. For s 200 of the ST Act, the precondition which enlivens the discretion conferred on the Tribunal is that the Tribunal must be satisfied that there is a scheme dispute or proceeding on foot.
The discretion conferred by s 47(5) of the ST Act to make an order for contravention of the scheme by-laws is not limited by any mandatory considerations. The same applies in relation to s 200 of the ST Act, that is, the discretion to make an order to resolve the dispute or proceeding under s 200 of the ST Act is not limited by any mandatory consideration. However, that is not to say that the statutory power is not without limitation. As stated by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law.
Legal reasonableness provides the boundaries within which a decision-maker such as the Tribunal has a genuine free discretion: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at [505] and Li at [23]. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order: Li at [67].
The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes.
The Tribunal's statutory task, as revealed by a consideration of the ST Act as a whole and, in particular, s 47(5) of the ST Act is that if the Tribunal finds that a person has contravened a scheme by-law then the Tribunal may make an order to require the person to take specific action or to refrain from taking specific action in order to comply with the ST Act and the by-laws.
Therefore, it follows that in making an order under s 47(5) of the ST Act, the Tribunal must determine which of the scheme by-laws the person is in contravention of. In other words, the Tribunal must make findings of fact. In making the findings, the Tribunal is obliged to have regard to any matters relevant to forming the requisite opinion prescribed by s 47(5) of the ST Act.
Importantly, in exercising its statutory powers, the Tribunal must do so reasonably: Li at [23]. The same was said in the earlier decision of Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1 where Brennan CJ stated at [36]:
[W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.]
In other words, the statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably. Sections 47(5) and s 200 of the ST Act is to be construed accordingly.
If the Tribunal makes findings of fact that the person has contravened the scheme by-laws, then the Tribunal in making its decision as to whether or not to exercise its statutory discretionary power to make an order, must ultimately take all considerations into account.
Next, the key facts relevant to this proceeding are set out.
Key facts
The following facts are agreed or are uncontentious. I make the following findings of fact:
(a)Perth Recruitment purchased Lot 7 (then Lot 3) on 21 August 2006. Perth Recruitment still owns Lot 7.
(b)Up to about 2015, by way of a long-standing informal arrangement, vehicle access to the lots was by driving vehicles over Lots 5, 6 and 7 as there were two carports on the common property behind Lots 6 and 7.
(c)Efficient purchased Lot 8 in or about November 2019.
(d)On 19 June 2020, following an application to the Tribunal by Efficient objecting to vehicles parking within the carports on the common property behind Lots 6 and 7, the Tribunal made the following order by consent of the parties (which did not include the strata company) in matter CC 644 of 2020:
By consent of the parties, the Tribunal orders:
1.The respondents [Mr Anderson and Perth Recruitment] and their visitors and employees shall not park vehicles on the common property, or in a position on the respondents' lots which encroaches on to the common property in a manner than obstructs vehicle access and egress for the applicant's [Efficient] lot [Lot 8] via the common property.
(e)On 1 February 2021, Mr Kullack of Perth Recruitment Services circulated an email to the lot owners requesting a vote on the following resolution by 16 March 2021:
Schedule 2 Conduct by-laws
Use of Common Property 2(e)
All vehicles parking on the private areas of all lots and roof structure of all carports shall be permitted to overhang a reasonable extent over the common property by up to one (1) metre and which would not impede or hinder vehicles using the six (6) metre wide accessway.
(f)On or about 26 May 2021, the City of Fremantle (City) granted a building permit for the carport for Lot 7. The carport drawings stamped by the City on or about 26 May 2021 do not reflect any car bays or overhang of the carport on to the common property.
(g)On 28 May 2021, a senior planning officer of the City by email to Mr Kullack stated: 'The City has considered and approved development to these properties such as carports which rely upon the existing access arrangements'.
(h)Conduct by-law 2(e) was registered by Landgate following the first consolidation of the scheme by-laws on or about 31 May 2021.
(i)Following the installation of the carport on Lot 7 in about June 2021, vehicles parked on Lot 7 overhang on to the common property by up to one metre.
(j)There is no record of any 'exclusive use by-laws' of the kind allowed for by s 43 of the ST Act in relation to any of the common property.
(k)From about October 2021, a shed and two large rubbish bins have been permanently located on part Lot 7.
(l)The signage on the wall of the building on Lot 7 reads:
PRIVATE PROPERTY
AUTHORISED PARKING ONLY.
PENALTY OF UP TO $80 UNDER
CITY OF FREMANTLE PARKING
FACILITIES BY-LAW
(m)The strata company has been mostly inactive.
I now turn to consider each of the issues (see above at [27]) in turn.
Consideration
As explained earlier, in the current proceeding, Efficient, as a lot owner, has standing to make its application to the Tribunal under s 47(3)(a) read with s 47(4)(a) of the ST Act for the enforcement of the scheme by-laws.
I commence my consideration of whether Perth Recruitment contravened particular conduct by-laws as alleged by Efficient with conduct bylaw 2(e).
Conduct by-law 2(e)
Efficient seeks an order for the alleged breach by Perth Recruitment of conduct by-law 2(e). That conduct by-laws provides:
2.Use of common property
An owner or occupier of a lot must —
…
(e)all vehicles parking on the private areas of all lots and roof structure of all carports shall be permitted to overhang a reasonable extent over the common property by up to one (1) metre and which would not impede or hinder vehicles using the six (6) metre wide accessway.
On 31 May 2021, the scheme by-laws were consolidated (first consolidation). In addition, on 31 May 2021, the scheme by-laws were amended by the addition of the above conduct by-law.
The Tribunal considered conduct by-law 2(e) in the Second Decision at [77] to [130].
As stated in the Fourth Decision at [62] and [65] what is different in this proceeding is that there is now a shed and two large rubbish bins on part Lot 7, as evidenced by the photographs[9] and accepted to be the case by Perth Recruitment.
[9] Hearing Book at pages 162 and 280.
In the Second Decision the proper construction of conduct bylaw 2(e) was set out in [115] to [116], and [119] to [120] as follows:
115Conduct by-law 2(e) uses the term 'impede' and 'hinder' whereas the 19 June 2020 consent order uses the term 'obstructs'. 'Impede' ordinarily means to delay or prevent (someone or something) by obstructing them; to hinder. 'Hinder' ordinarily means to make it difficult for (someone) to do something or for (something) to happen. 'Obstruct' ordinarily means to block (for example, an opening) or to get in the way, or to deliberately make (something) difficult. In my view, in the context of the ST Act and the bylaws the terms 'impede', 'hinder' and 'obstruct' can be read interchangeably in conduct by-law 2(e) and the 19 June 2020 consent order.
116Conduct by-law 2(e) does not expressly refer to Lot 8, unlike the 19 June 2020 consent order. Rather, conduct by-law 2(e) deals with overhang on to the common property from all lots and not just Lot 6 and Lot 7. Further conduct by-law 2(e) uses the term 'accessway'. That term is defined by Efficient as follows:
The whole of the common property situated directly to the rear (West) of and adjacent to the Lots and extending to the rear of the Strata Plan is used for vehicle access and manoeuvring to and from the Lots and is approximately 5.8 metres wide except for interruptions by part Lots 6, 7 and 8.
…
119In summary, conduct by-law 2(e) properly construed means:
a)no vehicles may park on the common property except as provided for in (b);
b)a parked vehicle may overhang on to the common property by up to one metre provided that the vehicle does not impede or hinder vehicles using the remainder of the common property;
c)no carport roof structure may overhang on the common property except as provided for in (d); and
d)a carport roof structure may overhang on to the common property by up to one metre provided the carport roof structure does not impede or hinder vehicles using the remainder of the common property.
120It may be found that on construing a by-law, that the by-law is contrary to a provision of the ST Act, or alternatively, that to give effect to the by-law would not be in the interests of all proprietors because, for example, it is unworkable, or may have unintended and undesirable consequences. I am unable to make any such finding in this case. While some of the wording in conduct bylaw 2(e) may be described as infelicitous drafting, in my view, the proper construction of the by-law is clear as set out in the previous paragraph and has the effect of restricting all owners' use of the common property to only what is required by the strata company's duty to control and manage the common property for the benefit of all the owners. In other words, the restriction of the vehicles parked overhanging on to common property of up to 1 metre provided that such overhang does not impede or interfere vehicles using the six metres wide accessway (the common property) is, in my view, to be regarded as being in the interests of, and for the benefit of all the owners.
(Footnotes omitted)
Following is a summary of the main contentions of each party in regards to whether or not Perth Recruitment contravened conduct bylaw 2(e).
Mr Chambers explained the history of part Lot 7 as follows. Following the removal of the toilet on part Lot 7 (and part Lot 8) in about July 2021, 'witches' hats started appearing on part Lot 7 and then rubbish bins and that went on for a year or so until the shed was installed on part Lot 7.[10]
[10] ts 27, 11 December 2023.
It is Mr Chambers' position that Mr Kullack seems to be determined to make life hard for Efficient and to progressively block off part Lot 7, with the consequence that if vehicles on Lot 7 continue to overhang onto the common property closest to Lot 8, as allowed by conduct bylaw 2(e), that will block off the 'narrow gap' of less than three metres of common property to enter into or egress from Lot 8.
Mr Chambers' is also concerned that if they do not have access over part Lot 7 the result will be that Lot 8 cannot effectively take advantage of the one metre overhang allowed by conduct by-law 2(e).[11]
[11] ts 27, 11 December 2023.
It is because of the history of part Lot 7, Mr Chambers explained that Efficient does not want to rely on the goodwill of the owners of the neighbouring lots to drive over part Lot 6 and part Lot 7 to access or egress from Lot 8. Rather, Efficient wants a vehicle access route over the common property that they have a legally enforceable right to use.[12]
[12] ts 27, 11 December 2023.
Efficient assert that the 'accessway' as provided for in conduct bylaw 2(e) to access and egress from Lot 8 is no longer available because of the shed and the permanent storage of two large bins on part Lot 7 coupled with vehicles overhanging on to the common property by up to a metre. Efficient contends this is contrary to the position put to the Tribunal in proceedings CC 1672 of 2020 and CC 1742 of 2020 at [27(k)(viii)] that:
no one has stopped [Ms Williamson] (or anyone else) driving over part Lot 7 and part Lot 8 since the toilets were demolished and removed in late July 2021.
In written submissions, Efficient submit in summary:[13]
[13] Hearing Book at pages 438 to 446.
(a)all owners agreed to change the layout of the parcel for vehicle access and parking which was that the previous two carports occupying common property would be removed and the two toilets on part lots 7 and 8 would be removed by Efficient to create an accessway along the rear of the parcel on which basis parking would move to the private lots and some overhang on the common property would be acceptable;
(b)Mr Kullack refused to change to park his vehicle on his Lot 7 due to the toilets preventing manoeuvring. This is confirmed by Mr Kullack in his email of 2 June 2020 where he stated that the removal of the toilets was required to provide access in and out of parking on all lots for all owners.
(c)In an email of 10 June 2020, Mr Kullack stated that if the toilets were removed then there would be a six metre accessway.
(d)Efficient did not at any stage consent to vehicles parked on Lot 7 encroaching or overhanging the common property other than on the basis that eventually an accessway would exist along the rear of the parcel passing over both part Lot 7 and 8.
(e)Shortly before the hearing of matter CC 1742 of 2020 in September 2021, Mr Kullack removed the toilet on part Lot 7 and shortly afterwards Efficient removed the toilet on part Lot 8 thereby creating a clear six metre wide accessway.
(f)Following the hearing of matter CC 1742 of 2020, sometime in October 2021, Mr Kullack permanently stored two rubbish bins and installed a shed on part Lot 7.
(g)Efficient obtained development approval from the City for a new carport orientated at 90 degrees to the six metre accessway (which includes part Lot 7 and part Lot 8) and requested Mr Kullack to stop placing his rubbish bins on his part Lot 7 as this obstructed the approach and departure to the new proposed parking positions on Lot 8.
(h)If part Lot 6 and part Lot 7 are not part of the six metre accessway, then access to Lot 8 can only be via the common property gaps (pinch points) between part Lot 6 and Lot 6 and between part Lot 7 and Lot 7. Such a route does not conform with the minimum required for circulation within a parking facility set out in the Australia Standard AS/NS 2890.1:2004 (Australian Standard) for off-street parking.
(i)The required minimum width for a parking aisle for a class 1 facility (employee and commuter parking; generally all-day parking) is 6.2 metres plus a further 300 millimetres for a single sided aisle when parking spaces are on only one side of the parking aisle and the other side is obstructed, in this strata complex by the perimeter wall.
(j)The required minimum width for a two-way circulation roadway is 5.5 metres plus 300 millimetres circulation clearance on each side making a total of 6.1 metres.
(k)The width between part Lot 6 and Lot 6 (the pinch point) is 2.8 metres and is therefore 0.8 metres deficient.
(l)The width between part Lot 7 and Lot 7 is 3 metres (the pinch point) and is therefore 0.6 metres deficient.
(m)The natural approach through the part Lot 7 and Lot 7 pinch point to the parking aisle area behind Lot 8 would be on the common property alongside the boundary of Lot 7.
(n)The parking aisle behind Lot 8 is already 0.7 metre less than the required minimum per the Australian Standard.
(o)The effect of vehicles overhanging on to the common property from Lot 7 is to reduce the carriageway by one metre plus the minimum clearance of 300 millimetres making a total reduction of 1.3 metres. This means the parking aisle behind Lot 8 is reduced from 5.8 metres to 4.5 metres which is 1.6 metres less than the required minimum of 6.1 metres per the Australian Standard.
(p)The layout is inadequate and requires multi-point turns to park on Lot 8 in the proposed new position (90 degrees to the six metre accessway) even without vehicles overhanging but that does not justify making it even worse by permitting vehicles to obstruct the approach path.
(q)The reasonable use of the common property by vehicles accessing Lot 8 is in a straight route between the pinch points as a circulation roadway but this is obstructed, hindered and impeded by any overhang on to the common property by vehicles on Lot 7 overhanging on to the common property.
(r)Efficient only ever turned a blind eye to the vehicle parking bylaws by accepting, or rather, not expressly prohibiting any overhang on to the common property in the context of the agreed change to the parking layout and was at no time agreeing to a permanent encroachment other than on the basis that all of the part Lots would be available as part of the six metre accessway, that is the circulation roadway.
(s)Perth Recruitment has embarked on a deliberate enterprise of intimidation and harassment directed at Ms Williamson and Mr Chambers.
When challenged by Mr Kullack as to why Efficient wants Perth Recruitment to remove the shed and rubbish bins, Mr Chambers stated that the shed and bins are preventing them driving over part Lot 7 and that Mr Kullack has stated a number of times that part Lot 7 is not part of the six metre access way. Further, Mr Chambers said:[14]
… Clearly we can't be expected to – well, we can't rely on passage over your part lot [7] as a permanent, dependable route of access. And, in any event, the far side approach that would be the normal approach, the approach that you make, the approach that [Mr Anderson of Lot 6] makes, everyone else makes on the property into 90 degrees parking bays is not available on account of the shed and bins that you've put on the part-lot 7.
…
The alternative, therefore, is a near side approach and in which case your vehicles protruding out [on to the common property] are in the way. We want to use the common property. You're preventing us[.]
[14] ts 104, 11 December 2023.
In summary, Mr Chambers explained Efficient's position as:[15][16]
…we want to be able to drive entirely over [the] common property and we don't want to have to drive around other people's vehicles, to just drive the natural instinctive normal route that you would drive if no other cars were there.
…
If there was [sic] no vehicles parking on Lot 7 and you had to drive to Lot 8 by the common property you would drive straight through, between – alongside [Lot 7's] boundary. And the only reason you wouldn't was if cars were sticking out. So you know, it's a matter of simple fact they're impeding[.]
[15] ts 60, 11 December 2023.
This position was emphasised by Mr Chambers when he stated:[17]
We want an appropriate, convenient access route to park on [Lot 8] – in the way we desire in a practical, efficient use of the land, what have you. We want to use the common property as we desire to use it. In doing so we're not seeking to inconvenience anyone. We are just seeking that we are not inconvenienced.
[17] ts 101, 11 December 2023.
And further when he said:[18]
We're here because we're not prepared to put up with having to drive over [Perth Recruitment's] part lot [7]. We want to drive over the common property[.]
[18] ts 103, 11 December 2023.
Perth Recruitment's position is that nothing has changed since June 2020 and that the Tribunal found in the Second Decision that access to and egress from Lot 8 was not blocked or obstructed.
Mr Kullack explained that the storage shed is approximately one-third the size of the storage footprint of the former toilet on part Lot 7. The two bins are placed on part Lot 7 because, according to Mr Kullack, 'space is not available to move [the] bins between my cars when parking on the private lots'.[19] Mr Kullack in giving evidence referred to various photographs to explain that there was a lack of available office storage space within Lot 7, with the consequence that Perth Recruitment continues to use part Lot 7 for storage.[20]
[19] ts 162, 12 December 2023.
[20] ts 161, 12 December 2023 and Hearing Book at pages 280 and 283 to 285.
In written submissions, Perth Recruitment submit in summary:[21]
(a)Efficient forced the change to parking and common property accessway despite being aware of the private part Lots and the need for vehicle overhang into common property due to the size of all the private lots.
(b)Access to Lot 8 is not obstructed or hindered by the resulting vehicle parking and with the storage shed and the rubbish bins on part Lot 7.
(c)The is no evidence of vehicle overhang resulting in the common property being reduced to less than 3 metres.
(d)Five metres for an accessway is more than reasonable. Efficient have proposed changes to the strata to reduce the accessway to 4.5 metres stating this would be ample.
[21] Perth Recruitment's closing submissions filed on 15 January 2024 at pages 1 to 6.
Mr Kullack submits that the three videos Perth Recruitment filed with the Tribunal show access to, and egress from Lot 8 is not hindered or obstructed. Rather, Mr Kullack says that video one shows Ms Williamson reversing her large vehicle which was parked at 90 degrees near the timber fence on Lot 8 into the 'turnaround area' (on the common property behind Lot 8) then drive out of Lot 8 in a forward direction past the shed on part Lot 7 without zigzagging.[22] The second video according to Mr Kullack is similar, but this time the bins are on part Lot 7. Finally, Mr Kullack explained that video three shows Ms Williamson taking her hand off the steering wheel and accelerating as she drives out of Lot 8 with the bins clearly visible on part Lot 7.[23] Mr Kullack says videos one, two and three confirm that access over part Lot 7 is not required to access or egress from Lot 8 and there is no evidence before the Tribunal of vehicle overhang resulting in the accessway being reduced to less than three metres, which is what Efficient has stated is sufficient to access and egress from Lot 8.[24]
[22] ts 163, 12 December 2023.
[23] ts 164, 12 December 2023.
[24] ts 167, 12 December 2023.
According to Mr Kullack, the area of common property behind Lot 8 is greater than that available behind Lot 7. Using the 'turnaround area' Mr Kullack stated that Mr Chambers and Ms Williamson demonstrated they were able to both manoeuvre their vehicle into a parking spot near the wooden fence on Lot 8, reverse, then drive out of the strata complex in a forward direction.[25] Mr Kullack said Lot 8's unauthorised carport post on common property is more of concern in getting into and out of Lot 8.[26]
[25] ts 190, 12 December 2023.
[26] ts 190, 12 December 2023.
Mr Kullack gave evidence that in making the statement in his email of 20 June 2022 to Ms Williamson of Efficient that:[27]
… My private lot clearly does not belong to [Efficient] nor make up any part of the "accessway" as [Efficient] describe it. [Efficient] has no need to "arc" over my lot[.]
what he meant was that 'You just drive straight through in a straight line and you don't commence – you don't – there's no need to commence a turn on my part-lot [7]. That's – that's what I was saying. I'm not saying that you cannot use it. I'm saying that you have no need to do it.'[28]
[27] Hearing Book at page 130.
[28] ts 167, 12 December 2023.
Further, Mr Kullack submits, unlike Perth Recruitment who have not prevented access over part Lot 7, Ms Williamson of Efficient in her email of 8 June 2020 addressed to two employees of Perth Recruitment clearly revoked any access to Lot 8 which includes part Lot 8 when the following was written by Ms Williamson:
[I] revoke any implied licence for you to enter my lot and order you not to enter upon my lot.
Mr Kullack emphasised that Efficient:[29]
… said that [Efficient] require three metres. I don't know if [Efficient] legally require three metres. It sounds like a reasonable number to me. So that's what I keep. That's what I make sure that [Efficient] have[.]
[29] ts 224, 12 December 2023.
In considering if Perth Recruitment contravened conduct by-law 2(e) it is useful to start by noting that the City approved the carport to be installed on Lot 7 at about the same time as conduct by-law 2(e) was registered by Landgate. It is Efficient's position that the City was provided the by-law and therefore understood there would be six metre accessway. That was not challenged by Perth Recruitment.
I find the City informed Mr Kullack on 25 May 2021 that the current requirements under the City's Local Planning Scheme 4 for access arrangements to meet the Australian Standards requirements are not generally able to be applied retrospectively to existing developments, such as the strata scheme. Having said that, I also find that the City approved the carport to Lot 7 on the understanding there would be a six metre accessway as provided for in conduct by-law 2(e). I will come back to the six metre accessway (see below at [78] to [88]).
Importantly, the City did not approve dimensioned car bays for Lot 7. This is clearly stated in the email from the City to Mr Chambers on 25 October 2022 and again separately to Mr Kullack on 21 November 2022.
In my view, without altering or modifying the layout of Lot 7, it has been understood by the parties since the first application to the Tribunal in 2020, where orders were made by the Tribunal on 19 June 2020 by consent of the parties[30] that vehicles parked on Lot 7 would overhang to some extent on to the common property.
[30] Second Decision at [26(c)].
Eventually in 2021 conduct by-law 2(e), which permits vehicles to overhang a reasonable extent on to the common property by up to one metre was registered by Landgate. This overhang on to the common property is only permitted if the overhanging vehicle does not impede or hinder vehicles using the six metre wide accessway.
Six metre accessway
The issue of the six metre wide accessway has arisen because of the permanent storage of the two rubbish bins and the installation of the shed on part Lot 7 which prevents vehicles traversing the whole of part Lot 7. It is clear that prior to the location of the shed and rubbish bins on part Lot 7, Perth Recruitment had never denied anyone access to drive vehicles over part Lot 7.[31] In support of this Mr Kullack stated words to the effect that 'I confirm I've got no problem with you [Efficient] driving over my lot.'[32]
[31] ts 69, 11 December 2023.
[32] ts 94, 11 December 2023.
The reasons Mr Chambers has to drive over part Lot 7 is:[33]
… because where I would like to go [on the common property closest to Lot 7] isn't available because your cars are sticking out. Because we can't drive in and do the same entering manoeuvre that you do, we have to do something different[.]
[33] ts 95, 11 December 2023.
It is Mr Kullack's position that part Lot 7 does not form any part of the six metre accessway as described in conduct by-law 2(e).[34] At the time conduct by-law 2(e) was proposed, according to Mr Kullack, the toilets were still in situ on part Lot 7 and part Lot 8.[35]
[34] ts 16, 12 December 2023 and Hearing Book at page 130.
[35] ts 178, 12 December 2023.
Further, Mr Kullack stated that it was known that he wished to keep and restore the toilet and, on this basis, he says that it is inconceivable that there would be a six metre accessway comprised entirely of common property when the toilet occupied part Lot 7. In any event, it is not possible, says Mr Kullack, to conclude that part Lot 7 was part of the six metre accessway when there is only three metres of common property between part Lot 7 and the wooden fence erected by Efficient.[36]
[36] ts 178, 12 December 2023.
Mr Kullack would not be drawn into whether part Lot 6 belonging to Mr Anderson was part of the six metre accessway.[37]
[37] ts 205, 12 December 2023.
In my view, both parties have used the term 'common property' as a catch-all reference to what would become the accessway at the rear of the parcel as distinct from the area at the rear of each Lot which would become the car bays. The following emails illustrate how each party has used the term 'common property' as a catch-all reference to the six metre accessway per conduct by-law 2(e).
In an email dated 10 June 2020, Mr Kullack in setting out an 'action plan' for the vehicle parking issue, after stating that if the toilets were removed that he could manoeuvre safely wrote that there would be an accessway of close to six metres. Also, in an email dated 12 June 2020, Mr Kullack referred to the toilets as being on the 'common property'. It is common ground that the (former) toilets were on Perth Recruitment's part Lot 7 and on Efficient's part Lot 8 and not on common property.[38]
[38] Hearing Book at pages 691 and 698.
In an email dated 1 May 2020, Ms Williamson in writing to the other lot owners about removing the carports and toilets referred to 'access and vehicle manoeuvring along the rear where the common property is'. Also, in an email of 25 May 2020 Ms Williamson stated that 'we remove the carports along the back so we can reinstate a vehicle access leg over the common property' and 'it might make sense to reduce the common property from 6m wide to maybe 4m or 5m to put space into the private lots'. Both emails were clearly referring to the totality of the common property area and the part Lots.[39]
[39] Hearing Book at pages 681 and 684.
In my view, the six metre accessway referred to in conduct bylaw 2(e) but not defined in that by-law, and which was drafted by Mr Kullack, can only be a reference to an accessway of six metres if the whole of all the part Lots are included. Mr Kullack conceded as much when he asserted there is only three metres of common property between part Lot 7 and the wooden fence erected by Efficient.[40] These three metres of common property plus three metres for part Lot 7 gives a total of six metres – which is the six metre wide accessway referred in conduct by-law 2(e).
[40] ts 178, 12 December 2023.
If the six metre wide accessway was only three metres, as suggested by Mr Kullack on the basis that his part Lot 7 was not part of the accessway, then it is likely that conduct by-law 2(e) would, in my view, be void with the result that there could be no overhanging of parked vehicles from Lot 7 (or any other Lot) on to the common property. It is not necessary to reach that conclusion because of my finding in the preceding paragraph.
In summary, in my view, the six metre accessway referred to in conduct by-law 2(e) means the totality of all of the part Lots along with the common property behind each of the Lots. In other words, by-law 2(e) properly construed provides for a six metre wide accessway for all vehicles to drive over at all times. In other words, the shed and rubbish bins on part Lot 7 curtails, without authority, the six metre wide accessway provided for by conduct by-law 2(e).
Australian Standard for off street parking
In the alternative, if the six metre wide accessway is limited to the common property, which the parties agree is three metres, in circumstances where the City approved the carport (but not the car bays) on Lot 7 relying on the existing access arrangements, it is useful to consider the Australian Standard to understand the minimum layout design requirement that would be required for a two-way circulation roadway, such as in the present strata scheme.
The Australian Standard was prepared by the Joint Standards Australia/Standards New Zealand Committee CE-001, Parking Facilities. Its stated objective is to provide planners, designers and regulatory bodies with requirements and recommendations for the design and layout of off-street parking facilities.
The Australian Standard provides:[41]
(a)two-way roadway – 5.5 metres minimum between kerbs plus 300mm clearance each side due to barriers or obstruction giving a total of 6.1 metres for the circulation roadway[42]; and
(b)parking aisles for 90 degree parking shall be designed for twoway movement.
[41] Hearing Book at pages 316 to 318.
[42] Hearing Book at page 301.The accessway of the strata scheme is not 6.1 metres and it is therefore not possible to comply with the Australian Standard. Mr Chambers conceded this is the case.
In my view, the videos filed by Perth Recruitment with the Tribunal show that access to and egress from Lot 8 is achieved by driving over that part of part Lot 7 that is not occupied by the shed and two rubbish bins. However, it is not possible for vehicles to drive solely along the common property in a straight line to access or egress from Lot 8 due to the overhang of vehicles on to common property from Lot 7. This is because the common property behind Lot 7 is three metres wide but at the pinch points is less than three metres wide because up to one metre is used by vehicles overhanging on to the common property from Lot 7 and therefore at most there is only two metres of the common property for vehicles to drive over. Perth Recruitment did not challenge the measurements, particularly for the pinch points, put to the Tribunal by Efficient.
Mr Kullack conceded that if his vehicle were to overhang by one metre on to the common property at the pinch point between Lot 7 and part Lot 8 (or between part Lot 7 and Lot 8 where the wooden fence is in situ) and if a vehicle with a width of two and one half metres sought to drive through that pinch point to enter into, or egress from Lot 8, the vehicle could not get through the pinch point.[43] In other words, the vehicle would be hindered or impeded (see above at [53] for the definition of 'hinder' and 'impede') at the pinch point as the point is only two metres wide.
[43] ts 223, 12 December 2023.
In my view, on Mr Kullack's own admission (see immediately preceding paragraph), and with reference to the Australian Standard, it is not reasonable that the width of the common property, particularly at the pinch points, is less than three metres. Consequently, in my view, the overhang of vehicles from Lot 7 on to the common property by up to a metre reduce the area of common property to less than three metres at the pinch points and thereby impedes or hinders vehicles seeking to drive solely over the common property without traversing part Lot 7 or part Lot 8 (which are privately owned by Perth Recruitment and Efficient respectively.)
No presumption of access over part Lot 7
It is not access to Lot 8 that Efficient is challenging in this proceeding. Mr Chambers accepts that they drive in and out of Lot 8, everyone does, pretty much regularly.[44]
[44] ts 126, 11 December 2023.
What is difficult, according to Mr Chambers, is to set up for the subsequent manoeuvres, which currently results in parking on Lot 8 that is haphazard with one vehicle under the carport and one vehicle in the open which requires much of the rear of Lot 8 for manoeuvring.[45] Mr Chambers described the problem in the following way:[46]
We don't accept – we don't accept being shunted off to whatever little bits of part lots available to us at any one time. We want to use the common property. It is completely unreasonable that if – if you're not going to make the other bits available – and this is not an application trying to seek you to do that. We've always been offering trying to make it possible for you, and for [Mr Anderson], offering that if – if the rear access way that was envisaged was created, then we've got no problem with you overhanging, and unfortunately we seem to have given away one without receiving the other benefit.
But as things stand down, it is clear that we cannot rely on any presumption of access over – over the part lots. They're not – I accept that they're not our property. We don't have a legally enforceable right, but what we want to try and protect and reserve is a legally enforceable right over the common property. You are denying it by intruding by a metre. Intruding by a metre occupies 1.3 metres, because we've got to have a 300 mil clearance around your vehicles. They do overhang by a metre[.]
[45] ts 126, 11 December 2023.
[46] ts 111, 11 December 2023.
And further:[47]
We're not here seeking an application of the R-codes. We're using the Australian Standard to show that the extent of the common property we seek to have available to us is not unreasonable. It is entirely consistent with what every motorist on the Australian road encounters as normal[.]
[47] ts 114, 11 December 2023.
I accept that Efficient does not want to rely on any presumption of access over part Lot 7 (which is privately owned by Perth Recruitment) or any other part Lot to access or egress from Lot 8.[48]
[48] ts 115, 11 December 2023.
The application by Efficient in regards to conduct by-law 2(e) is about the contravention of that conduct by-law by Perth Recruitment and directly impacts on the need to '… protect the property rights of Lot 8'.[49] This is because, according to Mr Chambers:[50]
… We want to have a – an access route that doesn't rely on driving over other lots. We want to set up a parking arrangement with the – a parking structure and not suddenly find that we can't actually access. We were on the brink of building a carport presuming that we were going to be able to drive over part Lot 7 the same as [Mr Anderson] is letting everyone drive over his [part Lot 6]. And – and now, and we would be stuffed because we can't do the far-near-side approach, and because of [Efficient's] cars we can't do the near-side approach[.]
[49] ts 127, 11 December 2023.
[50] ts 127, 11 December 2023.
While Mr Chambers, Ms Williamson and others currently traverse the remaining part of part Lot 7 that does not have anything on it to access Lot 8, and then to park vehicles in a haphazard manner, I find the shed and rubbish bins impede or hinder vehicles seeking to drive over the rear of the parcel (where the shed and rubbish bins are located on part Lot 7). This is because it is not possible to do what Efficient referred to as the 'far side front in approach' to drive into Lot 8 to park vehicles side by side at 90 degrees on Lot 8, similar to how vehicles are parked on Lot 7 (and the other lots in the strata complex). That is, it is not possible to drive along the rear of the parcel including over the rear of part Lot 7 to enter Lot 8 to park vehicles at 90 degrees. Further, I accept the evidence of Mr Chambers that the shed and bins on part Lot 7 prevent vehicles parked on Lot 8 at 90 degrees from making what Efficient refer to as a 'forward out departure' from Lot 8.[51]
[51] ts 56, 11 December 2023.
I accept that if both part Lot 6 and part Lot 7 are occupied, for example, with bins and sheds, then there will be a 'log jam', as described by Mr Chambers.[52]
[52] ts 94, 11 December 2023.
In conclusion, in my view, Perth Recruitment has contravened conduct by-law 2(e) by storing rubbish bins and having a shed in situ on part Lot 7 when vehicles parked on Lot 7 overhang on to the common property by up to a metre as the rubbish bins and shed impede or hinder vehicles using the whole of the six metre wide accessway, which includes all of the part Lots, that is part Lot 6, part Lot 7 and part Lot 8, in order to access Lot 8 using the 'far side front in approach' or to egress from Lot 8 using the 'forward out departure' approach.
Further, in the alternative, if the accessway in conduct by-law 2(e) is limited to the three metres of common property behind the lots (that is, not including part Lot 6, part Lot 7 or part Lot 8), there is less than three metres of common property available at the pinch points and therefore, in my view, impedes or hinders vehicles seeking to solely drive over the common property without traversing the part Lots.
In conclusion, in my view, Perth Recruitment has contravened conduct by-law 2(e) if the six metre wide accessway includes all the part Lots (which, in my view, is the correct view) or if the six metre wide accessway is limited to the common property of three metres.
Finally, in view of my finding that Perth Recruitment has contravened conduct by-law 2(e), I will now turn to consider whether to exercise the Tribunal's discretion to make orders under s 47(5) for the enforcement of the scheme by-laws.
Exercise of statutory discretionary power
As explained earlier, the Tribunal's power to make an order under s 47(5) of the ST Act is discretionary. Similarly, the power of the Tribunal to make an order under s 200 of the ST Act to resolve the dispute or proceeding is discretionary.
In considering whether to exercise the Tribunal's statutory discretionary powers, I have applied the principles as set out above (see [34] to [43]).
Turning to the orders sought by Efficient (see above at [12]), it is reasonable, in my view, taking into account all considerations in this case, to exercise the Tribunal's discretion to make an order under s 47(5)(b) of the ST Act to require Perth Recruitment to take specific action to comply with conduct by-law 2(e).
In my view, the specific action that Perth Recruitment is to take is that it must not permit any vehicle to park on Lot 7 and which overhangs on to the common property, unless the six metre wide accessway as provided for in conduct by-law 2(e) is available for all vehicles to drive over at all times. For avoidance of any doubt, the six metre wide accessway includes the whole of part Lot 6, part Lot 7 and part Lot 8.
The order will provide that Perth Recruitment must comply with the specific action within 7 days of the order. That, in my view, is reasonable to allow Perth Recruitment 7 days to remove the rubbish bins and the shed on part Lot 7 and thereby reinstate the six metre wide accessway.
Further, in my view, it is reasonable in the exercise of the Tribunal's statutory powers to make an order pursuant to s 200(7) of the ST Act which provides that the above order will remain in force until the earlier of the merger of part Lot 6, part Lot 7 and part Lot 8 into the common property, or a further order is made by the Tribunal. This will ensure the six metre accessway remains in place while conduct by-law 2(e) remains in force.
Finally, in my view, it is not necessary to consider the other orders sought by Efficient (see above at [12]) concerning the removal of 'cues', the installation of barriers and removal of the signage and the carport on Lot 7. This is because the removal of signage and the carport are dealt with later in these reasons. The installation of barriers such as a fence, bollard or fencing is not necessary at this time, in my view, to achieve compliance with conduct by-law 2(e).
I will now turn to consider each of the remaining alleged contravention of the conduct by-laws, which Mr Chambers conceded have been 'added as extras' as the main issue in this proceeding concerns conduct bylaw 2(e).[53]
Conduct by-law 6
[53] ts 247, 12 December 2023.
Conduct by-law 6 provides:
6.Depositing rubbish etc. on common property
An owner or occupier of a lot must not deposit or throw on that lot or any other lot or the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of an owner or occupier of another lot or of any person lawfully using the common property.
Conduct by-law 6 properly construed imposes an obligation on owners and occupiers of a lot to not leave any rubbish or other materials on any lot or the common property that are likely to interfere with the peaceful use and enjoyment of the lot or the common property.
In its submissions, Efficient asserts that Mr Kullack:
(a)stores rubbish on the common property and on part Lot 7 with poor regard to the impression this leaves for other users of the common property including visitors to Lot 8;
(b)previously stored rubbish bins near to the rear of Lot 7's building which is still available and with enough room to accommodate both the bins and the shed, and still room to move the screen fence one metre to accommodate a complying 5.4 metre long standard car parking space wholly within Lot 7; and
(c)threw the rubbish that had inadvertently been placed in one of the bins on part Lot 7 over the common property area behind Lot 8. This is because Mr Kullack in his email of 22 November 2023 stated: [54]
Can you instruct your guests to use YOUR lot 8 bin and stop filling both of mine with their rubbish.
[54] ts 239, 12 December 2023 and Hearing Book at pages 397 to 398.
Efficient submit that it is reasonable for the Tribunal to infer that Mr Kullack threw the rubbish complained off and that by the placement of the two bins unnecessarily in view of visitors to Lot 8, where those bins were previously stored behind the screen on Lot 7 as well as the storage of rubbish on part Lot 7 and the common property goes beyond an occasional inconvenience but is part of the wider relentless campaign by Mr Kullack of abuse and harassment of Ms Williamson.[55]
[55] Efficient's closing submissions filed on 15 January 2024 at page 17.
Mr Kullack denies he threw the rubbish.[56]
[56] ts 239, 12 December 2023.
Mr Kullack accepts that timber was stored on part Lot 7, which is owned by Perth Recruitment, in December 2022. However, Mr Kullack denies that any timber was stored or left on the common property.
Further, Mr Kullack accepts that cardboard rubbish was stored behind the shed on part Lot 7 near the rear boundary of the parcel on one occasion while he was waiting for space to become available in the recycle bin.[57] However, Mr Kullack's evidence is that the cardboard was removed within a reasonable time and there is no longer any rubbish there.[58] In closing submissions, Mr Kullack stated:[59]
The recycle bin operates fortnightly. I placed the cardboard in the recycle bin when space became available. The cardboard was never on the common property[.]
[57] Hearing Book at page 115.
[58] ts 240, 12 December 2023.
[59] Perth Recruitment's closing submissions filed on 15 January 2024 at page 4.
In closing submissions, Efficient assert that while Mr Kullack testified at the final hearing that he would not place rubbish on the common property, he is not reliable in what he says and therefore urges the Tribunal to make an order against Perth Recruitment for breaching conduct by-law 6.[60]
[60] Ibid.
In my view, leaving rubbish on part Lot 7, even for a short while, is likely to interfere with the peaceful enjoyment of an owner or occupier of another lot, in particular the owner or occupier of Lot 8. This is because the rear of the parcel, which includes part Lot 7 is immediately visible upon entry to the rear of the strata complex.
While Mr Kullack denies throwing any rubbish, I infer from Kullack's email of 22 November 2023 where he asks Efficient to instruct its guests to not use the rubbish bins belonging to Lot 7, that he removed the rubbish in Perth Recruitment's bins situated on part Lot 7 and threw that rubbish towards Lot 8 which ended up on the common property behind Lot 8.
In my view, such action by Mr Kullack of throwing rubbish which landed on the common property behind Lot 8 is likely to interfere with the peaceful enjoyment of that part of the strata complex by Efficient and by the occupants of Lot 8 and is therefore a contravention of conduct bylaw 6.
In considering the order sought by Efficient (see above at [14]), while I accept that Mr Kullack for Perth Recruitment has removed the rubbish, it is reasonable, in my view, taking into account all considerations in this case, to exercise the Tribunal's discretion to make an order under s 47(5)(b) of the ST Act.
The order will require Perth Recruitment to immediately refrain from depositing or throwing on a lot (or part lot) or the common property of the strata scheme any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of an owner or occupier of another lot or any person lawfully using the common property. In other words, the order will require Perth Recruitment to comply with conduct bylaw 6.
Further, in my view, it is reasonable in the exercise of the Tribunal's statutory powers to make an order pursuant to s 200(7) of the ST Act, which states that the above order will remain in force until a further order of the Tribunal is made to ensure compliance with conduct by-law 6.
Finally, I will now deal briefly with Mr Chambers' oral evidence that there was a 'degree of disorder' about the strata complex. Mr Chambers said there was a broken asbestos fence that has only just recently been replaced by the owner of Lot 5 alongside that lot. In addition, Mr Chambers said there have been episodes of graffiti and the fence has been damaged quite a lot.[61] No other evidence was filed by Efficient to support these assertions. For the following three reasons, I have not considered these assertions in this proceeding.
[61] ts 233, 12 December 2023.
First, Efficient contentions as set out in its application are limited to Perth Recruitment storing or leaving rubbish on the common property between the shed on part Lot 7 and the brick wall alongside the rear boundary of the parcel.
Second, in the material filed with the Tribunal by Efficient there is one photograph which shows the cardboard rubbish behind the shed on part Lot 7.[62] Separately, Efficient filed a photograph showing what appears to be timber left in a similar place to that where the cardboard rubbish was previously stored or left at on the common property. Finally, Efficient filed an email from a guest which raised concerns about rubbish on the common property behind Lot 8.
[62] Efficient's response to strike out application dated 20 December 2022.
Third, the only respondent in this proceeding is Perth Recruitment. Neither the other lot owners nor the strata company have been joined as a party to this proceeding.
Conduct by-law 7(b)
Conduct by-law 7(b) provides:
7.Drying of laundry items and signage
An owner or occupier of a lot must not, except with the consent in writing of the strata company —
(a)…
(b)display any sign, advertisement, placard, banner, pamphlet or like matter on any part of their lot in such a way as to be visible from outside the building.
Properly construed, conduct by-law 7(b) imposes an obligation on the owner or occupier of a lot to obtain in writing from the strata company approval to display a sign where the signage is visible from outside the building.
As set out earlier, the signage on the wall of the building on Lot 7 reads:[63]
PRIVATE PROPERTY
AUTHORISED PARKING ONLY.
PENALTY OF UP TO $80 UNDER
CITY OF FREMANTLE PARKING
FACILITIES BY-LAW
[63] Hearing Book at page 140.
Efficient contends that Perth Recruitment affixed the signage (per the immediately preceding paragraph) to the rear of its building encouraging and inviting the parking of vehicles on the rear of Lot 7 without the written approval of the strata company. In making this contention, Efficient submit:
(a)the signage is an eyesore and is unnecessary;
(b)Perth Recruitment admit the sign was installed without approval of the strata company; and
(c)the signage is an invitation for parking which is a breach of conduct by-law 2(e).
Mr Chambers gave evidence that Efficient's application is that, unless a car can be accommodated wholly within Lot 7, they do not want any parking on Lot 7. It is on this basis that Efficient find the parking sign objectionable because Efficient say the signage is inviting parking on Lot 7.
Mr Chambers concedes that he removed the signage that was on the brick wall behind Lot 7 where the carport was previously located on the common property.[64] It is Mr Chambers' position, that what Perth Recruitment is doing is, in essence, registering parking bays with the City which they are not entitled to do.[65]
[64] ts 245, 12 December 2023.
[65] ts 246, 12 December 2023.
In final closing submissions, Mr Chambers explained that the parking sign falsely indicates the space is approved for parking in spite of the City having stated that no parking spaces were approved, and this results in vehicles parking in a space which is substantially less than the required minimum length of 5 metres for a small car bay resulting in an overhang onto the common property.[66]
[66] Efficient's closing submissions filed on 15 January 2024 at page 17.
In contrast, Mr Chambers said Lot 8 has a sign comprised of one A4 sheet of paper[67] which was stuck on the back door to the Airbnb on Lot 8 to let people know not to park in the turnaround area behind Lot 8 (as it is common property) where previously there was a simple 'no parking' sign in the turnaround area which had been there for in excess of 20 years before it was removed without Efficient's knowledge.[68] Mr Chambers said they purchased a 'no parking' sign to replace the one removed but they promptly received an email from Mr Kullack stating, in part:
[Y]ou cannot put up signs on common property without strata body approval. Please remove the glue from the fence[.][69]
[67] Hearing Book at page 513.
[68] ts 242, 12 December 2023 and Hearing Book at page 370.
[69] ts 244 to 245, 12 December 2023.
Perth Recruitment's position is that the signage had been in place at the rear of the parcel[70] for over 20 years and was moved to its current position on the rear of the building on Lot 7 in line with the agreed parking position on private lots.
[70] Hearing Book at page 375.
In closing submissions, Mr Kullack submits that the order sought by Efficient in regards to the parking sign is 'petty' given that for the past 30 years, there has been signage affixed to the buildings on each lot in the strata scheme and that no owner had raised any issue with the signage until this proceeding.
When asked whether other signage at the strata complex including a large blue sign on Lot 5 had strata company approval, Mr Chambers said he did not know if that sign was approved by the strata company and conceded that Efficient's application was inconsistent as it did not include the owner of Lot 5 as a respondent in this proceeding for the alleged unauthorised signage on Lot 5.[71]
[71] ts 247, 12 December 2023.
Finally, Mr Kullack in giving evidence stated that while he did not object to Efficient's signage on Lot 8, he urged the Tribunal to not make any orders against Perth Recruitment in respect of conduct by-law 7(b). This was on the basis of an earlier decision of the Tribunal concerning this strata scheme: the First Decision where no order was made because both parties had contravened the particular by-law concerning parking on the turnaround area being part of the common property without approval of the strata company.
I find that the City approved only the carport on Lot 7. Further, I find that the City did not approve any dimensioned car bays for Lot 7. This is clearly stated in the email from the City to Mr Chambers on 25 October 2022 and again separately to Mr Kullack on 21 November 2022.[72]
[72] Hearing Book at pages 142 and 485.
While I acknowledge the signage was in place for many years, possibly for over 20 years as stated by Mr Kullack, and then moved to the current position and affixed to the building at the rear of Lot 7, in my view, Perth Recruitment has contravened conduct by-law 7(b) and the signage is to be removed. There are two reasons for this.
First, the signage suggests that the City has approved car bays with a penalty payable if a vehicle is parked in contravention of the City's Parking Facility by-laws. The City has not approved dimensioned car bays as stated in its correspondence to Mr Chambers and to Mr Kullack (see above at [145]).
Second, the strata company did not approve for the signage to be placed in its current location. Even though there is other signage at the strata complex which may not have been approved by the strata company, including on Lot 8, taking into account all considerations in this case, I find that the wording of the signage, which is clearly visible from outside Lot 7, is clearly inappropriate as the signage provides (incorrectly) for a penalty under the City of Fremantle Parking Facilities by-law and where the City has not approved dimensioned car bays for the carport on Lot 7.
In summary, in regard to conduct by-law 7(b), I find Perth Recruitment has contravened the by-law and taking into account all considerations in this case, it is reasonable, in my view, to exercise the Tribunal's discretion under s 47(5)(b) of the ST Act to make an order.
The order will require Perth Recruitment to remove the signage (with the words as set out above at [135]) that is affixed on the rear wall of building of Lot 7 within 7 days of the order.
Further, in my view, it is reasonable in the exercise of the Tribunal's statutory powers to make an order pursuant to s 200(7) of the ST Act, which provides that the above order will remain in force until a further order of the Tribunal to ensure compliance with conduct by-law 7(b).
Conduct by-law 13
Conduct by-law 13 provides:
13.Notice of alteration to lot
An owner of a lot must not alter or permit the alteration of the structure of the lot except as may be permitted and provided for under the Act and the by‑laws and in any event must not alter the structure of the lot without giving to the strata company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
Properly construed, conduct by-law 13 imposes an obligation on an owner to obtain the written approval of the strata company at least 14 days prior to starting any alteration to a lot and that the alteration must be an alteration permitted by the ST Act.
Efficient allege that Perth Recruitment made an alteration to the structure on Lot 7 by installing a carport without first providing notice to the strata company and that the carport has resulted in vehicles parking in a manner that contravenes the conduct by-laws, in particular conduct by-law 2(e). Efficient seeks an order from the Tribunal that within 45 days Perth Recruitment remove the carport on Lot 7.
Efficient submit:
(a)they wrote to the City registering strenuous concerns and opposition to any carport being erected at the strata complex;
(b)Perth Recruitment had the carport installed against their express objection and it was installed secretly and deceptively knowing that without the part Lot 7 being available as part of the six metre accessway, the use of the carport with overhang on to the common property would hinder and impede circulation and manoeuvring of vehicles accessing and egressing Lot 8. Further, the carport roof prevents higher vehicles such as camper vans and 4WD with high loads on their roof racks from getting into and out from Lot 8;
(c)by having the carport installed without consulting all the other lot owners, this has denied the strata scheme the opportunity to install carports using design and materials more in keeping with, or sympathetic to the appearance of the building for visitors, users and other owners in the strata scheme and for the proper consideration of the likely impact of the encroachment on the common property that would contravene the by-laws; and
(d)the carport is in breach of the building licence which requires all building work to be within the lot boundaries.
Mr Chambers asserts the application to the City by Perth Recruitment was for a 'patio' rather than a 'carport' because Mr Kullack knew that he would not get approval for a carport because Lot 7 did not have the space available for car bays. According to Mr Chambers, somehow, the City was 'hoodwinked' into approving the application for a patio but later accepting it as a carport.[73]
[73] ts 259, 12 December 2023.
Mr Chambers explained the detriment the carport on Lot 7 causes Efficient is as follows:[74]
So it all really comes back to the encroachment of the common property in circumstances that we never, ever, ever agreed to. Any indication we ever gave that we would tolerate encroachment, it was always implicitly on the basis of the part lots being given over to an accessway. And that's why there's this disagreement about whether or not there was ever consent or agreement about the carports being removed. That's a furphy. That's not the issue. The real issue is what was discussed because Mr Kullack has said that there was no consultation. There was consultation[.]
[74] ts 257, 12 December 2023.
Further, Mr Chambers in giving evidence, as to whether there is any detriment that the carport on Lot 7 causes the other owners, occupiers or visitors to the strata scheme, stated that the detriment is the overhang on to the common property because bigger vehicles, such as a concrete truck or an ambulance cannot get into Lot 8.[75]
[75] ts 256, 12 December 2023.
In contrast, Mr Chambers said their residential property has a narrow accessway of less than three metres and because, there is a low clearance sign on the eave at the front of the house that makes that accessway reasonable.[76] However, Mr Chambers said the same did not apply for the strata complex, though he conceded that 'it would be unlikely in – or very unlikely in normal operations that height would be a problem.'[77] Mr Chambers acknowledges that Lot 8's carport roof is in fact lower than that of Lot 7. [78]
[76] ts 256 to 257, 12 December 2023.
[77] ts 269, 12 December 2023.
[78] ts 269 to 270, 12 December 2023.
Mr Chambers reiterated that the appearance of the carports is significant. While Mr Chambers concedes that the carport on Lot 7 is similar to the carports on the common property removed in 2020,[79] he suggests they could have done 'something absolutely lovely' with this strata complex, but 'this [carport] got forced on us'.[80]
[79] ts 273, 12 December 2023.
[80] ts 257, 12 December 2023.
Efficient contend in their closing submissions that Perth Recruitment had the carport installed by stealth and deception against the known strenuous and reasonable objections of Efficient to both the City and in contesting before the Tribunal the validity of conduct by-law 2(e) due to their concern that the carport would precipitate obstruction to Efficient's and the occupiers of Lot 8 use of the common property as a circulation roadway and parking aisle in circumstances where the certainty of access over part Lot 7 had been implied but reciprocity to use part Lot 7 is refused.[81]
[81] Efficient's closing submissions filed on 15 January 2024 at page 19.
Further, Efficient in closing submissions submit that Lot 7 has only room for one car bay and in circumstances where Mr Kullack insists there was no agreement to alter the layout and is repudiating the reciprocity which Efficient say was agreed, there should be no presumption of any entitlement by the Tribunal to accommodate vehicles on Lot 7 other than vehicles that would fit within the boundaries of Lot 7. The installation of the carport on Lot 7, submits Efficient is a blatant and deceptive alteration against the known reasonable concern for Lot 8 as the use will cause nuisance and obstruction of access to and egress from Lot 8. Efficient vehemently objects to the carport presuming a use and entitlement that does not exist.[82]
[82] Ibid.
In contrast, Mr Kullack states there has never been any formal notice given for any addition by any owner over the past 16 years for the removal of carports, for the installation of dividing fences or the installation of new carports and for building renovations. Further, Mr Kullack says that the City has in any event approved the carport. It is the position of Perth Recruitment that vehicles have parked on Lot 7 in the same manner before and after the carport was installed on Lot 7.
Perth Recruitment submit:
(a)the City stated in an undated letter but by reference to Mr Kullack's email of 25 October 2022 that:
The City position on the matter stands as per the email dated 25th October 2022.
The City approved only carports not a dimensioned car bays for each strata allotment on the strata plans.
In none of the plans lodged and approved with the City for carports was a dimensioned car bay shown on these plans.
Any such encroachment outside of the strata unit allotments into common property is a strata issue and should be dealt with accordingly as a civil strata matter.
(b)the carports on Lot 6, 7 and 8 all have the same appearance and structure;
(c)the carport on Lot 7 does not obstruct access to Lot 8. The lowest point of the carport is 2.6 metres as compared to the lowest point of the carport on Lot 8 which is 2.1 metres;
(d)there is no vertical restriction if travelling over part Lot 7 to access Lot 8;
(e)the requirement to use part Lot 7 is subjective given that Efficient has repeatedly stated that only three metres is required as an accessway. Efficient's residence has an access way of less than 3 metres, that is approximately 2.8 metres by 11 metres; and
(f)besides Efficient, none of the visitors or guests to Lot 8 have asked Perth Recruitment to move the bins or the storage shed.
Mr Kullack's position is that the owners of Lot 5 and 6 knew about the carport to be installed on Lot 7 as did Efficient because Efficient wrote to the City in November 2020 stating they were concerned that carports were going to be installed where Ms Williamson relevantly stated:[83]
I am deeply concerned my two neighbours are intending to install carports on their strata lots either without approval of the City, or by misrepresenting to the City that I have consented to the carports.
…
There is not sufficient room for parking on these two lots without overhanging and encroaching the common property which I strongly object to as it obstructs my use of the common property for access to my lot.
There is neither space nor approval for parking where the carports are proposed.
Please note my objection both to parking on these lots and to any structure encroaching the common property both lateral encroachment and for height.
Currently they are restricting my access to 2m width by parking on their private property and overhanging by a metre into the common property.
…
[83] Hearing Book at page 529.
Given the informal nature and the history of the strata complex including that Mr Kullack, Mr Chambers and Ms Williamson are not on talking terms, Mr Kullack stated that it is not surprising there was no conversation around the installation of the carport on Lot 7.
Further, it is Mr Kullack's evidence that Perth Recruitment notified Efficient of the impending installation of the carport when it circulated proposed conduct by-law 2(e) for comment in February 2021 and as construction thereof did not commence until May or June 2021 that means more than 14 days' written notice was given to all owners.[84] In any event, Mr Kullack says Efficient was aware of the carport from as early as November 2020 when Efficient complained to the City.[85]
[84] ts 277, 12 December 2023 and Hearing Book at page 532.
[85] ts 278, 12 December 2023 and Hearing Book at page 529.
Mr Kullack referred to the email of 28 May 2021 from the City to himself which provides that the City had considered and approved the developments such as the carports which relied on the existing access arrangements.[86] Mr Chambers confirmed the contents of that email.
[86] ts 279 to 280, 12 December 2023.
Further, Mr Kullack asserts that statements made by Mr Chambers in the earlier proceeding in the Third Decision, reflect Efficient's support for the new parking arrangements including the new carports on private lots.[87] Mr Chambers agreed to Mr Kullack's question that the issue around parking was ultimately resolved by conduct by-law 2(e).[88]
[87] ts 279, 12 December 2023.
[88] ts 268, 12 December 2023.
It is Mr Kullack's position that the addition of the carport on Lot 7 does not change where or how the cars park on Lot 7. Further, Mr Kullack asserts that access along the common property has not changed and in any event Perth Recruitment has not disrupted Efficient's access to or use of the common property.[89]
[89] ts 279 to 280, 12 December 2023.
In closing submissions, Mr Kullack asserts that the appearance of the carports is irrelevant as all carports are of the same construction and appearance as those removed by Efficient in 2020 and that currently installed on Lot 7 and is proposed to be installed by Efficient on their Lot 8.[90]
[90] Perth Recruitment's closing submissions filed on 15 January 2024 at page 5.
Further, Mr Kullack in closing submissions referred to the Third Decision at [196] to support his position that Efficient supported the parking arrangements on Lot 7 and the installation of the carport on Lot 7 where it is stated:
iiEach lot is no longer serving as access carriageway for other lots which although not an obligation would have caused considerable disharmony to terminate.
iiiLots 6 and 7 previously had no parking spaces 'as a right'. They now have as many as three parking spaces each.
ivThe layout for parking and access for the scheme and for lots 6, 7 and 8 was inefficient and has now been vastly improved.
viiLots 6 and 7 have been able to establish parking immediately behind their buildings and build their own carports which was not possible under the previous layout.
viiiEach lot is free to extend to the rear with potential for a storey over the carpark whereas previously this would not have been possible.
The City approved the carport on Lot 7 on 26 May 2021[91] based on the existing access arrangements which were the toilets on the part Lot 7 and part Lot 8. Landgate did not register conduct by-law 2(e) until 31 May 2021, that is after the approval was given by the City. However, it is Mr Kullack's evidence that a copy of conduct by-law 2(e) was attached to the application to the City for the installation of a carport on Lot 7.
[91] Hearing Book at pages 468 to 469.
Mr Kullack stated that the carport on Lot 7 has not caused any detriment or inconvenience to anyone. No owner, apart from Efficient, has raised this as an issue, neither have the 300 plus visitors to Lot 8 – none of them have stated it causes them a problem or have asked Perth Recruitment for the carport to be removed or shifted.[92]
[92] ts 305, 12 December 2023.
Finally, and in any event, Mr Kullack says that there is no evidence that the previous owner of Lot 8, Dr Douglas, sought approval from the strata company of the proposed alterations to Lot 8.[93] Mr Kullack asserts that Efficient erected a fence on Lot 8 without approval of the strata company, and is therefore in beach of conduct by-law 13.[94] On that basis and following an earlier decision of the Tribunal in the Third Decision, if both owners are in breach of conduct by-law 13, Mr Kullack urged the Tribunal that no order should be made against Perth Recruitment.
[93] ts 280, 12 December 2023.
[94] Perth Recruitment's closing submissions filed on 15 January 2024 at page 5.
I find Perth Recruitment contravened conduct by-law 13 when it had the carport installed on Lot 7 without approval of the strata company. This is because written notice was not given to the strata company.
In my view, Mr Kullack by circulating an email to the lot owners of a proposed by-law (by-law 2(e)) does not equate to written notice to the strata company for the purposes of conduct by-law 13 for the proposed carport to be installed on Lot 7. Nor does Efficient's correspondence to the City in November 2020 constitute written notice to the strata company for the purposes of conduct by-law 13. Finally, personal issues or lack of communication between some lot owners does not justify a lot owner not given the necessary written notice to the strata company.
However, having said that and taking into account all of the considerations in this case, in my view, it is not reasonable in the circumstances of this case to exercise the Tribunal's powers to make the order sought by Efficient under s 47(5) of the ST Act, that is to require Perth Recruitment to remove the carport on Lot 7. There are two reasons for this as follows.
First, Efficient is also in breach of conduct by-law 13 as the carport on Lot 8 was installed without the approval of the strata company: the Third Decision at [68].
Second, if Perth Recruitment had made an application to the Tribunal under s 90 of the ST Act, it would be reasonable, in my view, to make an order dispensing with approval of the carport on Lot 7. There are two reasons for this. First, it is reasonable, having regard to the merits of the installation of the carport and the interests of all lot owners for the owner of Lot 7 to have a carport installed on its lot when the carport on the common property that it was using, was removed by Efficient without approval of the strata company: the Third Decision at [201]. Second, the carport (apart from the roof structure) on Lot 7 is itself contained within Lot 7 and therefore is not an inconvenience or detriment to the other lot owners. I dealt with the issue of vehicle parking on Lot 7 earlier in these reasons when I considered whether Perth Recruitment contravened conduct by-law 2(e) (see above at [49] to [113]).
In summary, in my view, while I find that Perth Recruitment has contravened conduct by-law 13, it is not reasonable taking into consideration all of the circumstances of this case, to exercise the Tribunal's discretionary powers to make an order to require the carport to be removed. The result is that the carport on Lot 7 may remain in situ.
Conclusion
Efficient in its closing submissions urges the Tribunal in exercising its powers to make orders taking into consideration, what it described as a pattern of harassment against Efficient by Mr Kullack, with others, in an attempt to manoeuvre Efficient into a position of intolerable disadvantage similar to the position of the previous owner of Lot 8, Dr Douglas, where he ended up making a financial contribution to Perth Recruitment and one other lot owner in the strata scheme.[95]
[95] Efficient's closing submissions filed on 15 January 2024 at page 20.
Efficient's position was put simply as: [96]
[I]t is bloody obvious the solution to what was a basket case of a layout was to allow the common property and the lots to – the part lots to become an accessway, on which case there would be no problem whatsoever in having some encroachment a metre, or whatever you want to have, from the lots[.]
[96] ts 270, 12 December 2023.
Perth Recruitment, on the other hand, asserts that Efficient and its grievances are disingenuous, frivolous and hypocritical.[97]
[97] Perth Recruitment's closing submissions filed on 15 January 2024 at page 1.
Returning to Greek mythology, unlike Sisyphus, the parties in this proceeding are not enslaved to eternal punishment. However, the parties would be well advised to reflect on the decisions made by the Tribunal in respect of this small strata complex.
In summary, I find Perth Recruitment contravened each of conduct bylaw 2(e), 6, 7(b) and 13.
Reflecting back on the orders sought by Efficient in this proceeding, where it seeks orders to enforce the scheme by-laws, as set out above at [12], [14], [16] and [18], and the findings reached in respect of each of the alleged contraventions of the conduct by-laws, in my view, it is reasonable taking into account all considerations in this case, to make orders against Perth Recruitment in respect of conduct by-law 2(e), 6 and 7(b) but not in respect of conduct by-law 13. The orders are as follows.
Orders
The Tribunal orders:
1.Pursuant to s 47(5)(b) of the Strata Titles Act 1985 (WA) the respondent must:
(a)within 7 days of this order, not permit any vehicle to park on Lot 7 which overhangs on to the common property unless the six (6) metre wide accessway as provided for in conduct by-law 2(e), is available for all vehicles to drive over at all times. For avoidance of doubt the six metre wide accessway in conduct by-law 2(e) includes the whole of part Lot 6, part Lot 7 and part Lot 8;
(b)immediately refrain from depositing or throwing on any lot (or any part lot) or on the common property of the strata scheme rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of an owner or occupier of another lot or any person lawfully using the common property; and
(c)within 7 days of this order, remove the parking sign that is on the rear wall of the building of Lot 7.
2.Pursuant to s 200(7) of the Strata Titles Act 1985 (WA):
(a)order 1(a) above shall remain in force until the earlier of the merger of part Lot 6, part Lot 7 and part Lot 8 into the common property, or a further order is made by the Tribunal; and
(b)orders 1(b) and 1(c) above shall remain in force until a further order is made by the Tribunal.
3.The application is otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
10 APRIL 2024
[16] ts 61, 11 December 2023.
The term 'circulation roadway' is defined in the Australian Standard as 'a roadway within an off-street car park which is used solely for circulation and to gain access to parking aisles, and on which there is no parking'.
The term 'parking aisle' is defined in the Australian Standard as 'a roadway or an area of pavement used by vehicles to gain access to, and to manoeuvre into and out of parking spaces'.
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