GIABENI PTY LIMITED and THE OWNERS OF 30 COODE STREET MOUNT LAWLEY STRATA SCHEME 11321 - [2025] WASAT 5

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   GIABENI PTY LIMITED and THE OWNERS OF 30 COODE STREET MOUNT LAWLEY STRATA SCHEME 11321 [2025] WASAT 5
MEMBER:   MS N EAGLING, MEMBER
HEARD:   8 JANUARY 2025
DELIVERED          :   9 JANUARY 2025
PUBLISHED           :   17 JANUARY 2025
FILE NO/S:   CC 626 of 2024
BETWEEN:   GIABENI PTY LIMITED
Applicant
AND
THE OWNERS OF 30 COODE STREET MOUNT LAWLEY STRATA SCHEME 11321
Respondent

Catchwords:

Strata Titles Act 1985 (WA) - Scheme dispute - Maintenance of common property

Legislation:

State Administrative Tribunal 2004 (WA), s 9
Strata Titles Act 1985 (WA), s 14, s 91(1)(c), s 197(4), s 200, s 200(1), s 202, s 209, Pt 13

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Giabeni Pty Limited and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1

REASONS FOR DECISION OF THE TRIBUNAL:

(This application was heard on 8 January 2025. An oral decision was delivered on 9 January 2025. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to improve clarity of expression and setting out.)

Introduction

The applicant, Giabeni Proprietary Limited (Giabeni) is the owner of Lot 12 on strata plan 11321 (strata plan). Ms Jocelyn O'Donnell is the director of the applicant and resides at Lot 12.
The respondent is The Owners of 30 Coode Street Mount Lawley Strata Scheme 11321 (strata company). The strata company is the body corporate established under s 14 of the Strata Titles Act 1985 (WA) (ST Act) on registration by the Register of Titles of the strata titles scheme on 24 February 1983 and comprises 16 lots (strata scheme). It is located in the suburb of Mount Lawley, and is described on the strata plan as follows:
Brick and iron home units wholly contained within the external boundaries of portion of Swan Location Y and being Lot 100 on Diagram 64201.
On 8 September 2024, Giabeni commenced the proceeding in the Tribunal under s 197(4) of the ST Act to resolve a scheme dispute at the strata scheme.
The respondent informed the Tribunal at the hearing that this matter is the sixth legal proceeding which the applicant has commenced against the respondent since it bought into the complex in 2022. Two of those legal proceedings have been in the Magistrates Court and four in the Tribunal. Furthermore, the respondent stated that the applicant had very recently commenced a new proceeding which is listed for a first directions hearing in the near future.
Ms O'Donnell is a strata manager by profession and it became evident to the Tribunal during the hearing that, at least in relation to some issues, she was using the Tribunal as a first option in order to attempt to resolve matters in dispute between the parties rather than attempting to work with the Council of Owners (COO) (for example the alleged issue relating to the driveway which I will return to later in these reasons).
It became clear at the hearing that the relationship between the parties has completely broken down and there is significant mistrust on both sides. It was also evident that the members of the COO of the complex (all of whom work full time and are volunteers) have suffered significant stress as a result of the continuing legal proceedings instigated by the applicant. The respondent informed me that on the advice of the City of Vincent (City) they have taken steps to try and ease the pressure concerning communications with Ms O'Donnell by establishing a service level agreement to regulate the time spent by the COO responding to complaints by owners.
There are six issues which are in dispute between the parties all of which relate to the maintenance of the common property and which are broadly in the categories of:
(1)rubbish bins;
(2)parking in visitors' bays;
(3)gardening;
(4)repair of soakwells;
(5)an alleged raised driveway; and
(6)the installation of a gate at the end of Lot 12.
Giabeni says orders from the Tribunal are necessary because the strata company has not demonstrated a genuine attempt to maintain the common property.
The strata company disagrees and says that their actions in relation to the above issues are reasonable in the circumstances.
I heard the matter yesterday, 8 January 2024, over a long hearing day. Ms O'Donnell gave evidence for the applicant. The strata company called three witnesses, Ms Kelly Tyrrell, Mr Robert Patrick and Ms Jessica Gatt.
The Tribunal prepared a Hearing Book containing all of the documents filed by the parties in accordance with the programming orders of Senior Member O'Sullivan on 29 October 2024 which was Exhibit 1. Exhibit 2 was a hand drawn sketch by the respondent of the laneway area.
The Tribunal notes that both parties filed additional documents subsequent to the documents which were not filed in accordance with any order of the Tribunal and which consisted of responses to each other's statement of issues, facts and contentions and some additional documents. At the commencement of the hearing, I determined that these documents would not be included in the Hearing Book as they were generally repetitive in nature and the parties could also raise any new issues by way of cross-examination. Further, I found that it would not be consistent with the objectives of s 9 of the State Administrative Tribunal Act 2004 (WA), (in particular to determine matters speedily and informally), to allow the endless filing of documents.

Decision

For the following reasons, I have decided that Giabeni's application in its entirety is unsuccessful and I will dismiss the application.

Legislation

The proceeding comes within the Tribunal's original jurisdiction (s 209 of the ST Act).
Part 13 of the ST Act deals with Tribunal proceedings.
In proceedings under the ST Act, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding (s 200(1) of the ST Act). The types of orders that the Tribunal may make are set out in s 200 of the ST Act.
It is also possible for the Tribunal to make a decision not to make an order or declaration. This is provided for in s 202 of the ST Act.
I am satisfied that the Tribunal has jurisdiction under s 197(4) of the ST Act to determine the dispute between Giabeni and the strata company as it is a scheme dispute between scheme participants as those terms are defined in the ST Act.

Principles

The principles which guide the Tribunal's discretion as to whether or not to make an order were set out by Member Petrucci in a previous decision involving the parties, namely Giabeni Pty Limited and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105 (Previous Decision) at [37] - [39] and I respectfully adopt those principles when determining whether or not to make orders.
In this case the following paragraphs of the Tribunal in the decision of The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1 at [59] - [60] is of particular assistance and relevance to this matter:
59In dealing with whether or not a strata company has unreasonably refused to do that which it allegedly should have done, the Tribunal has consistently taken an approach that the management of a strata company is best left to the strata company and that the Tribunal should not too readily impose its own views of what is unreasonable. See, for example, Hopkins and Clayton [2007] WASAT 255. At the same time, the legislature has intended that there be a practicable means of breaking deadlocks between the members of a strata company who are co-owners of the common property, live often in close proximity, and who should desire to live in harmony with each other.
60The Tribunal has fulfilled that role in circumstances where resolutions proposed to a strata company have failed whether due to the dissent of a single lot owner, or of a majority of lot owners, by examining the rationale for dissent to ascertain whether there is a sensible basis for dissent. This necessarily means that the Tribunal is drawn into a balancing of interests and views and must inevitably reach a subjective view of whether the decision is unreasonable. If that balance is delicately poised it will not be possible to conclude that the decision is unreasonable. It is possible for persons acting reasonably to come to opposite conclusions on the same set of facts. (Emphasis added)
The principles which concern the general duty of a strata company to control and manage the common property were set out by Member Petrucci in the Previous Decision at [116] - [121] and I also respectfully adopt those principles when determining this matter.
In summary, as Member Petrucci observed, if there is evidence of an adequate process adopted by the strata company, the practical objective of which is to keep the common property in good and serviceable repair; properly maintained and where necessary renew or replace the common property, then the strata company has discharged the duty imposed by s 91(1)(c) of the ST Act even if, at any given time, the common property is in a deteriorated state.

Issues

I now turn to consider the issues in turn.

Issue 1 - rubbish bins

The complex utilises a shared bin system and the applicant wishes to change from this system to a single use system (Order 7) or, alternatively if this is not granted, to increase the cleaning of the bins to monthly (Order 6). In her closing submission the applicant also suggested an alternative order, namely that the existing bins be stored behind the letterboxes at the front of the complex.
The exact location of the bins over the years was disputed between the parties, however it was not disputed and I find that a single use system has never been in place and I also find that at least from the time the applicant purchased her property the bins were located outside her property (her own evidence was that they were banging along the asbestos fence).
I will address Order 7 first given it is the preferred order of the applicant relating to this issue.

Order 7 - to return bins to single use management

The applicant says that the bins are misused and as a result are smelly, attract rodents and the area in which the bins are located encourages illegal dumping of items such as unwanted household furniture. Ms O'Donnell's questioning of the witnesses (for example whether the bins could be viewed from the master bedroom window) also suggests that she finds the view of the bins aesthetically unpleasing. She also states that the enclosure for the bins is too small and that the current system which requires rubbish trucks to reverse to collect the bins is dangerous, particularly for children.
The respondent does not support replacing the existing bin arrangement for numerous reasons including:
•concerns about lot owners' capacity to store three bins within their units which would disproportionately disadvantage the 10/16 units which have small courtyards, many of whom use such courtyards as entertaining areas and whom bought their properties on the basis that they would have full use of those courtyards and not have to use them as a bin storage area;
•concerns about the fact that the residents would have to transport their single use bins to one of the two verges up to a potential distance of 75 metres (noting that there is a difference between walking a distance to a bin to dispose of rubbish bags as compared to wheeling a heavy bin over a distance and over a verge);
•the respondent says that the City has raised concerns about the capacity of the verges to service the bins, which advice has repeatedly been given; and
•there is no evidence that a change in the bin system would address illegal dumping (which is in any event a rare issue).
Two of the respondent's witnesses (Mr Patrick and Ms Gatt) gave evidence that they have not experienced any of the same concerns about odour and vermin in relation to the bins and that the only person who has complained about the bins from within the complex is the applicant.
Furthermore, the respondent points out that the applicant has raised this issue at two Annual General Meetings (AGMs), and it has been overwhelming defeated.

Single use bins - decision

I find that the respondent has not acted unreasonably in refusing to implement a single use bin system. In my view there are two factors which are of particular relevance to this issue, firstly the fact that the strata company has rejected this proposal on two previous occasions and secondly that the applicant bought her unit in full knowledge of the existing arrangement.
I find on the basis of the evidence that the only lot owner from within the complex that has complained about the alleged unhygienic state of the bins is the applicant. I accept that there is evidence before the Tribunal that the bins have been misused on occasions, particularly that items which cannot be recycled are placed in the yellow bins. The applicant also complained that the bins are overfull on occasion and the lids cannot be closed, however in my view this may also occur with a single use system.
However, the evidence presented by the applicant does not go so far as to establish that there is significant misuse of the bins on an ongoing basis which has resulted in them becoming unhygienic or unsanitary or attracting vermin. The one incident of a dead rat by the bin (which I accept, despite the evidence of Mr Patrick, is more likely to be a rat and not a quenda) is insufficient to establish that there is a problem with the bins attracting rats over and above any other suburban bin.
The applicant also relied on an unsigned letter (1 July 2022) written by Mr Martin and Ms Goode who are former owners of a different strata complex and whom resided in a unit which is a similar distance from the bins as the applicant's unit. This letter complains about issues of odour, untidiness and vermin. However, the authors of the letter were not present for cross-examination and therefore limited weight can be placed on their evidence.
Further, the respondent called Ms Tyrrell to give evidence who resided in that same unit (after Mr Martin and Ms Goode) during 2023 and 2024. I accept her evidence that she resided in the same unit during the summers of 2023 and 2024 and did not experience any similar issues, even when she removed four large olive trees between her unit and the bins. She maintained her evidence under cross-examination.
The evidence of the respondent was that the COO regularly inspect the bins and have not found them in an unsanitary condition and any isolated incidents are promptly attended to by the COO.
The applicant argued that because there has recently been a change to more owner/occupiers than tenants there will be more likely to be complaints about the bins. However, in my view this logic does not necessarily follow and, in any event, the applicant has provided no evidence of such complaints by recent owners/occupiers.
Further, I find that there is no evidence to suggest that moving to a single use system would resolve, what appears to be, the very infrequent issue of illegal dumping of other items.
I also find that the respondent has an adequate system in place to deal with this when it occurs, for example the evidence given by Ms Gatt as to the shopping trolley which was recently abandoned and the removal of the large olive branch which was also recently dumped.
I also agree with the concerns expressed by the respondent in relation to the potential impact of a change in the bin system on the front courtyards of the smaller blocks. When I asked Ms O'Donnell about this issue, she said it was not for her to work out how the front courtyards of these lots were used or how it would impact them. In my view, this highlights that the applicant is taking an entirely self-centered approach to this issue. I find that the implementation of a single use bin system would have a disproportionate impact on the majority of the lot owners who have a smaller courtyard and that this would be unfair to them given that they purchased their units with the existing arrangements in place. Further, the evidence of Mr Patrick was to the effect that if the bins were stored in the small front courtyards, not only would the space in and amenity of those courtyards be affected, the view of the courtyard from the lounge rooms of those units would be of the bins.
The applicant also suggested that the single use bins could be stored out the front of the units on the existing garden beds. However, I find that this is not a reasonable alternative for the following reasons:
•there is no evidence to suggest that the bins would physically fit in those areas and Mr Patrick gave evidence that he was unsure if they would fit;
•there is evidence of lighting and gas meters (from Mr Patrick) in those areas which would cause access issues;
•there is currently soft sand in the area and this would need to be concreted for hardstands for the bins and pathways; and
•the areas are designated to be used as gardens, not bin storage areas. Whilst they are in a barren state at present, the respondent has indicated that the plan is to rejuvenate the garden. Therefore, even if the other issues of physical space and access could be overcome, I would remain of the view that this is not a reasonable alternative.
There was some dispute in the evidence between the parties as to the length of time it took the rubbish truck to empty the bins (the respondent's measurement of time was just under two minutes, whereas the applicant's was over five minutes). However, in my view, a five minute window on a weekly or even bi-weekly basis for emptying bins is not unreasonable in a suburban area. Further there is no evidence before the Tribunal about the danger to children posed by reversing trucks, any more than there is always the potential for danger to children by vehicles in a suburban area. The uncontested evidence of the respondent was also that the bins were usually collected during school hours.
In my view the above factors would be sufficient to resolve this issue. However, I have also had regard to the views of the City. It is clear that ultimately the decision about the bins was one for the strata company and not the City. The original correspondence from the City on the issue suggested there may be room for the bins if both verges are utilised. However, the communication of 4 December 2024 at page 716 of Exhibit 1 confirms the respondent's statements to the city that:
…
•It's not suitable or practical to have individual bins due to no space provision on property lots.
•There isn't sufficient space for a weekly 24 bins verge waste collection on Coode Street.
For the above reasons, this matter is dismissed.

Order 6 - the shared bins if retained, are to be cleaned monthly

I find that the bins have been cleaned once in each of the years 2022, 2023 and 2024. There was some dispute between the parties as to whether this constitutes 'annual' cleaning given that some of the cleans were not within a 12-month period.
The position of the respondent is that it does not support any increase in bin cleaning given that there have been no other complaints from within the complex except from the applicant and that she purchased the property knowing that her lot was located the closest to the bins.
The respondent points out again that this issue has also been contested at two AGMs and the majority of owners voted to keep the same cleaning cycle of annually. The respondent points out that between AGMs there have been new people on the COO and the same result was reached.

I find that the respondent has not acted unreasonably in declining to clean the bins monthly. In my view, as explained in relation to Order 7 above, there is insufficient evidence to establish that the bins are regularly misused or in an unhygienic state or that they are overly smelly. I remind the parties of the legal principle referred to above that the management of a strata company is best left to the strata company and that the Tribunal should not too readily impose its own views of what is unreasonable.

Movement of the bins to the front of the complex

I also decline to make an order about the movement of the bins to the front of the complex. I accept the respondent's evidence that this would simply shift the issues that the applicant says are occurring with the bins away from her and to another lot owner (which again indicates that her approach to this issue is focussed on her own interests).

Issue 2 - parking

The primary concern of the applicant in relation to this issue is that the eight visitor car bays are used by persons who are not visitors so that they are, as the applicant put it, deriving a benefit not afforded to anyone else. Of particular concern to the applicant is that some lot owners who have more than one vehicle use the visitors bays as overflow parking.
The applicant seeks the following orders:
Order 8That a parking agreement is entered into with the City of Stirling or a towing company for those that abuse visitors parking.
Order 9That signage and line marking is put in place for visitors parking.

Order 8 - parking agreements be entered into

The position of the respondent is that this order is not supported as it is not necessary. It says that adequate visitor parking bays are available and points out that only five of the 16 lots have more than one car. It relies on a review recently conducted by Ms Gatt, on behalf of the COO, which shows that there is adequate parking available. Ms Gatt gave evidence that she collated data across various dates and times documenting 132 visitors bays and there were 89% of bays available on average at any given time. The review conducted by Ms Gatt was supported by time and date stamped photographs. This evidence was not disputed by the applicant.
The respondent submits that on the infrequent occasions where owners park in the visitor parking bays the COO has a process in place to address the issue which is effective and the introduction of parking agreements is not necessary or desirable. Ms Gatt's evidence, which I accept is that the COO are active in responding to events which come up.
The respondent also points out that the applicant's motion in relation to this issue was defeated at the 2024 AGM.

Conclusion

During her oral evidence Ms O'Donnell stated that at times her visitors have been unable to use the visitor parking bays. However, in my view this evidence should be viewed with circumspection given that she did not refer to this in her witness statement or in her documents (either by way of statement by herself or by supporting statements from her visitors). I prefer the evidence of the respondent which is to the effect that whilst at times owners (and other persons not authorised to do so) park in the visitors parking bays, this is not frequent, there is a system to address it and there is usually plenty of available parking based on the review completed by Ms Gatt.
Further, Ms O'Donnell's own evidence was that the situation has recently improved. She says, in effect, that the Tribunal can draw an inference that this is because she has brought these proceedings. However, this is not the only reasonable inference the Tribunal can draw about this issue. It may well be due to efforts made by the COO to improve the situation. The evidence of the respondent was that they have a satisfactory system in place to deal with parking infractions when they occur. For example, the evidence given by Ms Gatt about the white vehicle which was left at the strata scheme over the Christmas period.
In my view this order is unnecessary based on the evidence by the respondent that there are no or limited concerns in relation to visitor parking bay availability and also the evidence of the respondent as to the system they have in place for managing any issues which arise.

Order 9 - signage

The applicant also seeks for visitor parking and lines to be implemented. It correctly points out that a sum under $1,000 was allocated to this in year four of the 10-year plan (which was in 2024).
The respondent's position in relation to this order is that although in principle it supports lines and signage, it does not support expenditure on this issue at this time. It submits that there are no immediate safety issues and there are already natural grooves in the concrete which designate separate bays. Further, it says that the issue was voted on at the recent AGM, the outcome of which was that the works would be looked at when the five year review of the 10-year plan occurs.
I find that the approach taken by the strata company is not unreasonable in the circumstances given the evidence about the availability of visitor parking bays referred to earlier in these reasons and Ms O'Donnell's own evidence that the situation has recently improved.

Issue 3 - gardening

The order sought by the applicant in relation to this issue is that a gardener is reinstated given the butchered state of the gardens by members of the outgoing COO. During the hearing the applicant confirmed that she was in effect seeking an order that a new gardener be appointed.
I find the facts to be as follows in relation to the garden:
•the previous regular gardener Mr Neil Bees left of his own accord at the end of 2023;
•other gardeners were engaged to complete a garden clean up;
•one gardener performed unsatisfactory work and caused some damage to the gardens and was not paid a full fee;
•Mr Mick Del Caro has recently been contracted to do the gardening at a cost of $550 per month; and
•Mr Del Caro's costs can be covered in the $6,600 in the budget allocated for gardening together with the allocated funds for reticulation and tree loping.
I find that given that a new gardener has now been appointed, and there are sufficient funds allocated to pay him, this matter has already been resolved.

Issue 4 - soakwells

Order 11 sought by the applicant is 'that all soak wells at 4 Third Avenue are attended to in the same manner as the one arranged by the former owner of Lot 16'.
The substance of the applicant's complaint about this issue is that the respondent only repaired one soakwell in the complex instead of repairing all three.
In her witness statement Ms O'Donnell alleged that the former owner (the witness Mr Patrick) of Lot 16 who was on the COO and who was selling his property at the time, gained a benefit by the strata company attending to the soakwell outside of his property, when a discount could have been achieved if all three soakwells were repaired at the same time.
At the hearing, Ms O'Donnell acknowledged that she had been mistaken about the fact that the previous owner derived an advantage or that he was paid for overseeing the work.
The Tribunal finds that the previous owner of Lot 16 derived no benefit from the works done on the soakwell outside his property. The Tribunal notes that the work on the soakwell was performed on 19 June 2024 and the owner's property settled before that on 4 June 2024.
The Tribunal also finds, having regard to the quotations obtained, that there was no discount offered if all three soakwells were repaired at the same time.
The Tribunal also accepts the uncontested oral evidence of Mr Partick regarding why the one soakwell was repaired whereas the other two only cleaned. Mr Patrick stated in relation to the soakwell that was repaired as follows:
The location of the soak well was at the base of hill so it had more water; that particular soak well was in a bad way, the concrete around it was cracked, it was sinking and the distance it had sunk was 3-4 inches. When water flowed down it was washing silt and sand away and was getting worse and was a trip hazard even though people don't walk across a drain. The other two soak wells were not in a bad way - they had cracked concrete - we got quote for all 3 so we could find what we might be up for at a later time.
Mr Patrick also pointed out that the cost for repairing the three soakwells was significant, approximately, $28,000.
The evidence of the respondent was that they would review the other two soakwells as part of its five-year review of the 10-year plan.
I find that given the comparative condition of the different soakwells and the costs involved, this is an entirely reasonable approach for the respondent to take in the circumstances.

Issue 5 - driveway

Order 12 sought by the applicant seeks that the driveway to 4 Third Avenue is shaved back to prevent vehicle undercarriage damage to vehicles entering and exiting the complex.
I find that this driveway services Lots 13 - 16 and the four visitor parking bays accessed from Third Avenue.
The applicant provided no evidence (expert or otherwise) which supports its contention that there is a structural fault or issue with the driveway. It has provided no engineering or building report, no statements by persons whose cars have been damaged and no photographs of any damage.
As the respondent points out, the applicant does not even need to use this driveway to access her lot.
In response to a question under cross-examination, Ms O'Donnell stated that she has had to direct people to Third Avenue for visitor parking and their undercarriages have been damaged. However, I do not accept this evidence given that she did not refer to this in her witness statement or her documents and also has provided no evidence of such damage.
The respondent's evidence about this issue was as follows:
•Mr Patrick confirmed that he was an owner of a lot on Third Avenue and he did not have any damage to his car or any complaints from tenants over 28 years; and
•Ms Gatt gave evidence that she has frequently driven over that driveway in her Mazda sedan which is 21 centimetres from the ground and has never encountered issues with the driveway damaging the undercarriage of her vehicle.
The respondent stated that the first time the applicant brought this issue to its attention was in the context of the Tribunal proceedings. The Tribunal accepts this evidence. In my view this factor would be relevant to the Tribunal's discretion as to whether it should make an order in these circumstances, however in this case, the applicant has not overcome the first hurdle as I find that it has provided no evidence to justify the order sought.

Issue 6 - gate

The applicant seeks, by Order 13, that a gate is installed at the end of Lot 12 in accordance with the QIA Safety Report dated February 2023 to prevent public thoroughfare through the complex.
The evidence at the hearing establishes and I find that there is a walkway between the rear fence of Lot 12 and the rear fence of 145 Railway Parade and the Coode Street address. Ms Gatt gave evidence that she has used that walkway to access the train station. The uncontested evidence was also that the residents in Lots 13 - 16 use the laneway to access the bins.
The report is at page 87 of Exhibit 1 and contains six recommendations, two of which relate to the installation of gates, one at Lot 12 and the other facing units 3 - 4. The only explanation given for the need for such gates was 'as the current situation allows for nonresident members of the general public to use the common property as a thoroughfare which increase the public liability risk to the property'.
No explanation is given as to the nature of the public liability risk identified beyond that brief statement. The author of the report was not called to give evidence.
Further, both parties agreed that the recommendation in the report for a second gate was confusing and the location which was referred to was unclear. The respondent also submitted that the report contained references to matters irrelevant to the strata complex such as balconies and metal balustrades.
The evidence of Mr Patrick was that this report was obtained by the strata company upon recommendation by the Strata Manager.
Mr Patrick's evidence was that the recommendation for the gate was noted but the decision of the strata company was not to go ahead as there had been no problems with the public moving through the complex. He stated that if a gate was installed people coming down from Third Avenue side (Lots 13 - 16) would have to unlock a gate to get through or they would have to go all the way around the block, round the corner of Coode Street, out to the public footpath to get to the bins which would be inconvenient for people. He said in all the time he has been in the property no one has commented about people wandering through the place.
Ms Gatt gave evidence that she has lived on both sides of the complex as both tenant and owner and has never seen members of the public utilising the laneway as a thoroughfare. She in fact gave evidence that when she first moved in it took her a week to realise that there was even a walkway there and she only found it when she went to find the rubbish bins.
Ms Gatt also gave evidence that the walkway was not visible from the street on both the Third Avenue and Coode Street sides. This evidence was unshaken in cross-examination.
The applicant says that her lot has three open boundaries, including one along the walkway all of which are exposed and all of which pose a risk. However, she provided no evidence of damage which has occurred to her property or any other issues which have arisen.
I find that the decision of the strata company not to install a gate is not unreasonable given the evidence I have referred to above. There are no identified safety risks, no evidence the laneway is being used as a thoroughfare and the entrances to the laneway are not visible outside the complex.
The QIA Safety report is very brief, it does not expand on its recommendations or provide reasons for them and further both parties agreed that its recommendation as to the location of the other gate is unclear.
If the gate was to be locked, I accept that this would cause significant inconvenience to at least some of the residents. When I raised this issue with the applicant, she said it could be unlocked, however I find that this may then not achieve the object of preventing public access.
However, regardless of whether a gate is locked or unlocked, I find that the decision of the strata company on this issue is not unreasonable.

Orders

The Tribunal orders:
1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
17 JANUARY 2025