FRYER and ROSA
[2016] WASAT 93
•23 NOVEMBER 2015
FRYER and ROSA [2016] WASAT 93
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 93 | |
| 29/07/2016 | |||
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:734/2015 | 3 NOVEMBER 2015 | |
| Coram: | MS L EDDY (MEMBER) | 23/11/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The applicants own the relevant wall | ||
| B | |||
| PDF Version |
| Parties: | JOHN FRYER MORAG FRYER HELEN ROSA RUI PEDRO ROSA |
Catchwords: | Strata Titles Act Dispute regarding work done by respondents on outside wall of applicants' house Meaning of 'common or party wall' Lot boundaries 1996 amendments |
Legislation: | Interpretation Act 1984 (WA) Strata Titles Act 1985 (WA), s 3(1), s 3(2), 3(2)(a), s 3(2)(b), 7(2), s 3AB, s 21, s 83(1), s 103(G) Strata Titles Amendment Act 1996 (WA) |
Case References: | Nil |
Summary | A dispute arose between the parties as a result of work that the respondents had done in relation to a brick wall that is one of the external walls of the house that the applicants live in. The parties disagreed about who owned the relevant part of the wall.,In order to ascertain whether the application had been made under the correct provision of the Strata Titles Act 1985 (WA) and what the issues were for determination by the Tribunal, it was necessary to determine, as a preliminary issue, who owned the wall or part wall in relation to which the respondents had carried out work. In other words, it was necessary to identify the boundaries of the lots of this strata scheme.,After considering the effect of amendments to the Act made in 1996, the Tribunal found that the whole of the wall in relation to which the disputed works had been done, up to the external face of that wall, belonged to Lot 2, that is, the applicants' lot. The respondents did not own any part of that wall. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : FRYER and ROSA [2016] WASAT 93 MEMBER : MS L EDDY (MEMBER) HEARD : 3 NOVEMBER 2015 DELIVERED : 23 NOVEMBER 2015 PUBLISHED : 29 JULY 2016 FILE NO/S : CC 734 of 2015 BETWEEN : JOHN FRYER
- MORAG FRYER
Applicants
AND
HELEN ROSA
RUI PEDRO ROSA
Respondents
Catchwords:
Strata Titles Act Dispute regarding work done by respondents on outside wall of applicants' house Meaning of 'common or party wall' Lot boundaries 1996 amendments
Legislation:
Interpretation Act 1984 (WA)
Strata Titles Act 1985 (WA), s 3(1), s 3(2), 3(2)(a), s 3(2)(b), 7(2), s 3AB, s 21, s 83(1), s 103(G)
Strata Titles Amendment Act 1996 (WA)
Result:
The applicants own the relevant wall
Summary of Tribunal's decision:
A dispute arose between the parties as a result of work that the respondents had done in relation to a brick wall that is one of the external walls of the house that the applicants live in. The parties disagreed about who owned the relevant part of the wall.
In order to ascertain whether the application had been made under the correct provision of the Strata Titles Act 1985 (WA) and what the issues were for determination by the Tribunal, it was necessary to determine, as a preliminary issue, who owned the wall or part wall in relation to which the respondents had carried out work. In other words, it was necessary to identify the boundaries of the lots of this strata scheme.
After considering the effect of amendments to the Act made in 1996, the Tribunal found that the whole of the wall in relation to which the disputed works had been done, up to the external face of that wall, belonged to Lot 2, that is, the applicants' lot. The respondents did not own any part of that wall.
Category: B
Representation:
Counsel:
Applicants : In Person
Respondents : In Person
Solicitors:
Applicants : N/A
Respondents : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 This matter was heard by the Tribunal on 3 November 2015 with an oral decision delivered on 23 November 2015. The Tribunal considers that this matter may have some precedent value and should now be published. What follows is a formally revised and edited version of those reasons delivered orally on 23 November 2015.
Background
2 The Tribunal has before it an application under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act). On this type of application the Tribunal may make an order for the settlement of a dispute or the rectification of a complaint with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by the ST Act or the bylaws in connection with the scheme. The applicants are the owners of one of the lots in a two lot strata scheme at 6 Swan Road, Attadale. The respondents are the owners of the other lot.
3 A dispute has arisen between the parties as a result of work that the respondents have done in relation to a brick wall that is one of the external walls of the house that the applicants live in. The respondents have carried out work in relation to the external wall in order to improve the visual amenity of their rear outside area. The Tribunal has not yet heard evidence as to exactly what work has been done to the wall, but at this point it seems to have involved the application of some render, the adherence to the wall of some brickwork using mortar and some form of bitumising of the wall.
4 The applicants assert that they did not give permission for the work to be carried out. The parties disagree about who owns the part of the wall that the respondents have worked on. The applicants assert that the boundary to their lot is the external face of the wall and as such the respondents had no right to do anything to that wall without their permission. The respondents assert that as the wall is a common or party wall, the boundary between the two lots is the centre plane of the wall. Therefore the half of the wall facing the respondents lot is part of their lot.
5 If the wall or part wall on which the respondents have worked is part of their lot, a question arises as to whether they would be in breach of s 7(2) of the ST Act by causing or permitting an alteration of a structural kind of a structure on their lot, that is, the respondents' lot, without the prior approval of the proprietors of the other lot. If this is the issue, the application would appear to have been made under the incorrect provision; as an application under s 103(G) of the ST Act would be the appropriate application. This could be fixed, if it became an issue, by an amendment of the application.
6 Alternatively, if the wall or part wall is within the applicants' lot, the question is whether the carrying out of work by the respondents on the applicants' property involves the exercise or performance, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by the ST Act or the relevant bylaws so that the Tribunal could make orders under the ST Act.
Preliminary issue
7 Therefore, in order to ascertain whether the application has been made under the correct provision of the ST Act and what the issues are for determination by the Tribunal, it was necessary to determine, as a preliminary issue, who owns the wall or part wall in relation to which the respondents have carried out work. In other words, it is necessary to identify the boundaries of the lots of this strata scheme.
The strata scheme
8 The strata scheme is reflected in the strata plan registered on 5 November 1990, a copy of which is included as one of the documents in Exhibit 2.
9 The arrangement of the two lots, both of which are made up of part lots, including a building and an outside area, is a 'battleaxe' configuration with the respondents' lot being at the front, visible from Swan Road, with a driveway to the side of the dwelling leading to the applicants' lot behind. The division between the two lots is shown on the strata plan as a line stretching between both side boundaries of the site at 90 degreesto the side boundary, approximately 20 metres from the front boundary of the site.
10 The building shown in Lot 2 on the strata plan has one of its walls on that boundary line. The strata plan has a statement on it, apparently in accordance with s 3(2)(b) of the ST Act (this provision was in the same terms at the time of registration of the scheme as it is currently), that statement being that 'external faces of the wall are the boundaries of the part lot comprising the building'. A statement on a floor plan of the strata scheme under s 3(2)(b) of the ST Act was required to be in the 'prescribed form', however the Tribunal was unable to ascertain whether this statement was in the 'prescribed form'. The Tribunal was unable to ascertain what the 'prescribed form' was at the time that the strata scheme was registered. The Tribunal searched the government gazettes and state law publisher but was unable to identify any regulations that prescribed anything for the purposes of s 3(2)(b) of the ST Act.
11 The strata plan also has endorsed on it a standard form statement advising of the effect on lot boundaries of single tier schemes caused by the amendments to the ST Actin 1996. Relevantly to this matter, this statement provides:
As at 20th July 1997 unless a notice of resolution under section 21H or an objection under 21O has been recorded on the strata plan
The boundaries of the lots or parts of the lots which are buildings shown on the strata plan are the external surfaces of those buildings, as provided by section 3AB of the Strata Titles Act 1985;
…
The areas of the lots shown on the strata scheme may have changed;
where two lots have a common or party wall, or have buildings on them which are joined, the centre plane of that wall or the place at which they are joined is the boundary;
Statutory framework regarding lot boundaries
12 The scheme is a 'single tier strata scheme' as defined in s 3(1) of the ST Act because no part of any lot is above or below another lot. As there are not more than five lots and as the strata plan was registered before 1 January 1998, it is an 'existing small strata scheme' for the purposes of s 21A of the ST Act and the related sections introduced into the ST Act by the Strata Titles Amendment Act 1996 (WA) (1996 amendments).
13 Those amendments included provisions that affected an automatic change on 20 July 1997 to the boundaries of lots in existing small strata schemes unless the strata company had adopted a resolution in relation to the boundaries and registered that resolution, or a proprietor had lodged an objection with the Registrar of Titles to the automatic change of boundaries: see s 21F, s 21J, s 21O and s 21M of the ST Act.
14 In the present case there is no indication of a resolution under s 21F of the ST Act having been registered on the strata plan and no record of an objection having been lodged under s 21O. In such a case s 21M of the ST Act provided that on and after the 'change-over day' s 21I applies to the scheme. Section 21I(1)(a) of the ST Act relevantly provides:
The boundaries of lots or parts of lots on the strata plan are fixed by reference to section 3AB regardless of where they were located before that registration; …
15 Section 3AB of the ST Act provides that:
(1) Where this section applies the boundaries of any cubic space referred to in paragraph (a) of the definition of floor planin section 3(1) are, regardless of the exact location of the lines referred to in that paragraph
(a) the external surfaces of the building occupying the area represented on that floor plan
(i) including anything that
(I) is attached to and projects from the building; and
(II) is prescribed by the regulations to be included as part of a lot;
but
(ii) excluding any thing that is prescribed by the regulations not to be included as part of a lot;
or
(b) despite paragraph (a), where 2 lots
(i) have a common or party wall, the centre plane of that wall; or
(ii) have buildings on them that are joined, the plane or planes at which they are joined.
(3) Nothing in this section applies to a boundary of a lot or a part of a lot that is external to a building.
(4) Where this section applies it
(a) displaces the operation of section 3(2)(a); but
(b) does not affect the operation of subsection (2)(b) of that section.
[Tribunal's emphasis]
(2) Except where section 3AB applies, the boundaries of any cubic space referred to in paragraph (a) of the definition of floor planin subsection (1)
(a) except as provided in paragraph (b)
(i) are in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition the inner surface of that wall; and
(ii) are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space the upper surface of that floor and the under surface of that ceiling;
or
(b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).
17 Following the changeover day, the lot boundaries were then fixed by reference to s 3AB of the ST Act. Section 3AB(1)(a) did not have any practical impact on this strata scheme as the boundaries already were in accordance with this provision. However, as one of the walls of the building, that is part Lot 2, is on the boundary between Lots 1 and 2, s 3AB(1)(b) potentially introduces a change if this wall is a common or party wall within the meaning of s 3AB(1)(b) of the ST Act.
18 Before considering this issue in detail, it is relevant to consider the effect of s 3AB(4) of the ST Act because the boundaries in this strata scheme were, prior to the commencement of the 1996 amendments, those described on the floor plan in accordance with s 3(2)(b) of the ST Act.
19 Section 21I of the ST Act provided that boundaries are fixed by reference to s 3AB. Section 3AB(4) of the ST Act provides that where it applies, s 3AB displaces s 3(2)(a) but does not affect the operation of s 3(2)(b). Section 3(2) of the ST Act starts with the words 'except where section 3AB applies' then specifies what the cubic space boundaries are in (a). Section 3(2)(a), however, also commences with an 'except as provided in paragraph (b)'. Section 3(2)(b) of the ST Act specifies that the boundaries are as described on the floor plan of the strata scheme.
20 It is difficult to follow this circular set of provisions, but having regard to the words used in these provisions and to the context of the provisions within the ST Act as a whole, the Tribunal is satisfied that the effect of all of these provisions is that the automatic change to lot boundaries to those specified in s 3AB of the ST Act did not apply in circumstances where the existing scheme had specified the boundaries of the lots by way of a statement on the floor plan of the scheme pursuant to s 3(2)(b) of the ST Act.
21 The automatic changes to boundaries applied to all of those existing small single tier schemes whose boundaries had, before the 1996 amendments, been ascertained by reference to s 3(2)(a) of the ST Act. Therefore in this case, whether or not the boundaries specified on the floor plan of the scheme had in fact been in accordance with s 3AB(1) of the ST Act, the boundaries remained as described on the floor plan.
22 Thus, the whole of the wall in relation to which the disputed works have been done, up to the external face of that wall, belongs to Lot 2, that is, the applicants' lot. The respondents do not own any part of that wall.
23 If the Tribunal is incorrect about the effect of s 3AB(4) of the ST Act and instead the boundaries of the lots on this scheme should be understood as those specified by s 3AB(1) of the ST Act rather than as described on the floor plan, the Tribunal's conclusion as to the ownership of the wall in question does not change.
24 That is because the Tribunal is satisfied that this is not a common or party wall within the meaning of s 3AB(1)(b) of the ST Act. The ordinary meaning of a 'common wall' is a wall that is on the boundary and supports two structures or buildings, one on each of two neighbouring lots or properties. The term 'party wall' can mean the same thing, but can also mean a wall that supports a structure that is on the boundary between two lots or properties.
25 Under this second meaning of 'party wall' the wall may or may not support structures on both sides of the boundaries so long as it supports a structure that is located on the boundary. Unfortunately, the term 'party wall' is not defined in the ST Act and it is therefore unclear as to which of the different meanings of that term applies to s 3AB of the ST Act. It is not a term that is defined in the Interpretation Act 1984 (WA) either. The Tribunal has been unable to find any decided case that has considered this question.
26 Given the ambiguity of s 3AB(1)(b) of the ST Act, the Tribunal has considered the second reading speeches and debates to see if those could assist the Tribunal to understand what meaning of 'party wall' would be more consistent with the purposes of the 1996 amendments. In essence, it is apparent from the Parliamentary material that the purpose of the 1996 amendments was to fix a perceived problem created by the introduction of the ST Act in 1985: see the second reading speech in the Legislative Council (Western Australia, Parliamentary Debates, Legislative Council, 30 October 1996, Hansard pages 74237426, Hon Norman Moore).
27 At that time, the ST Act had included a provision that required all strata companies to obtain insurance in relation to common property within the scheme and did not allow opting out of that obligation unless it was approved by the strata titles referee. Apparently, prior to the introduction of the ST Act there was widespread misunderstanding as to what was owned by proprietors of lots within strata schemes, particularly where there were small schemes made up of free standing units or buildings that were in a single tier, that is, without any lots above them. It seems not only most proprietors, but also the insurance industry, assumed that the proprietors of the lots within such schemes owned the entire building.
28 It was common for the proprietors to take out insurance in the belief that it would cover any accidental damage to the roof or walls of that building. The reality was that the proprietor of such buildings generally owned the cubic space inside the building. The walls and roof were common property of the strata scheme. The proprietor's insurance therefore would not cover damage to the roof or walls. In order to ensure these common areas were properly insured, the ST Act required the strata company to obtain insurance for all the common property.
29 Following the commencement of the ST Act, it seems that there were many problems as the owners of lots in small strata schemes had difficulties agreeing about and obtaining insurance over the common property. The main purpose of the 1996 amendments was, in effect, to change the boundaries of the buildings in these existing single tier small strata schemes, so that each proprietor of the lot owned the entirety of the building in that lot. This way each proprietor could obtain their own insurance as the roof and walls were no longer common property of the scheme.
30 Having regard to this purpose, the Tribunal is persuaded that the reference to 'party wall' in s 3AB(1)(b) of the ST Act is, in fact, part of a composite phrase, that is, 'common or party wall' being a single phrase that has two words describing the same thing: a wall on the boundary that supports a structure or building on both sides of that boundary. It is inconsistent with the purpose of the 1996 amendments for the wider meaning of the term 'party wall' to apply. This would unnecessarily complicate the ability of the proprietor of the single building to obtain insurance because one of the walls of his or her house, if located on a boundary, would be partly owned with the other lot owner, even though the other lot owner did not rely on that wall to hold up his or her house or other structural building on the lot.
31 In coming to this conclusion, the Tribunal has taken into account the well accepted principle of statutory interpretation that ordinarily one can assume that where the drafter has used a different word they intended to convey a different meaning. However, standing against that presumption in this case is the purpose of the amending provisions, the grammatical context that allows for the notion that the word 'party wall' is used as a part of a composite phrase, and the fact that it could be considered prudent to use two commonly interchangeable terms in order to allow the provision to be understood by people no matter which of those terms the individual understood. All those matters support the Tribunal's findings as to the meaning of the term 'party wall' for the purposes of s 3AB(1)(b) of the ST Act.
Conclusion
32 In this case, the wall that is on the boundary of the lots supports only one structure, that is, the applicants' house. It does not support any structure on the respondents' lot, nor did it as at the time of registration. Accordingly, the Tribunal is satisfied that this particular wall is not a common or party wall within the meaning of the ST Act. Therefore if s 3AB did apply, it rendered no change to the description of the boundaries as had been previously described on the floor plan of the strata scheme.
33 The only remaining issue then, subject to submissions, is whether there is then anything that the Tribunal has jurisdiction to determine in relation to the dispute about the works. The Tribunal will hear from the parties in relation to this.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER
0
0
3