| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : HAINES and O'BRIEN [2011] WASAT 170 MEMBER : MS NATASHA OWEN-CONWAY (MEMBER) HEARD : 20 OCTOBER 2011 DELIVERED : 26 OCTOBER 2011 FILE NO/S : CC 1564 of 2011 BETWEEN : KAREN HAINES Applicant
AND
PATRICK O'BRIEN
YVONNE O'BRIEN
Respondents
Catchwords: Twolot surveystrata scheme Easement Legislation: Strata Title General Regulations 1996 (WA), reg 14E
Strata Titles Act 1985 (WA), s 5D, s 6(2), s 81(7) Result: The application succeeded in part
(Page 2)
Category: B
Representation: Counsel:
Applicant : Ms J Kenny
Respondents : Self-represented
Solicitors:
Applicant : Dwyer Durack
Respondents : N/A
Case(s) referred to in decision(s):
Nil
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant is the owner of Lot 2 of a two-lot surveystrata scheme located at No 14B Millar Road, North Beach in Western Australia. The respondents are the owners of Lot 1 of that twolot surveystrata scheme located at No 14A Millar Road, North Beach in Western Australia. The certificate of title for Lot 2 notes the registration of two easements for the purpose of gaining vehicular access to and egress from one or other of the lots and Millar Road. Each easement was created pursuant to s 5D of the Strata Titles Act 1985 (WA). The easement marked 'D' and noted on the surveystrata scheme plan attached to the certificate of title for Lot 2 (easement D) provides that it has effect in favour of Lot 2 and against Lot 1. 2 The Tribunal granted the applicant an order that the respondents keep clear that part of their land affected by an easement for vehicle access which is for the benefit of the applicant's lot.
The hearing 3 At the hearing, there was no issue between the parties that easement D operated for the benefit of Lot 2 and that the owners of Lot 1 were required to keep clear the area delineated in easement D for the benefit of the owner of Lot 2 so as to enable her vehicular access to and egress from Lot 2 to Millar Road, as provided for by reason of s 5D of the Strata Titles Act 1985 (WA) (ST Act) and reg 14E of the Strata Title General Regulations 1996 (WA). 4 At the commencement of the hearing, counsel for the applicant informed the Tribunal that an order in terms of order 1 of the application was no longer required as the respondents has dismantled a small shed situated on a section of Lot 1, which area is the subject of easement D. Leave was granted to the applicant to withdraw the application in terms of order 1 thereof and that part of the application was withdrawn. 5 The respondents conceded that the applicant was entitled to an order in terms of order 2 of the application. 6 The Tribunal concluded that jurisdiction to entertain pecuniary penalty proceedings for contravention of s 6(2) of the ST Act as sought by the applicant was not conferred on the Tribunal. (Page 4)
7 The Tribunal also concluded that it was not empowered to make an order for costs in the applicant's favour in these proceedings, by reason of the provisions of s 81(7) of the ST Act.
Orders 1. The applicant has leave to withdraw the application in so far as the applicant seeks an order in terms of order 1 thereof. 2. The application in so far as it relates to and concerns an order in terms of order 1 in the application is withdrawn. 3. The respondents shall keep clear that part of their land affected by an easement for vehicle access which is for the benefit of the applicant's lot (Lot 2) and created under Section 5D of the Strata Titles Act 1985 (WA). 4. The application is otherwise dismissed. |