Harold & Gladys Verryt and Ann Williams - [2005] WASAT 101

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985

CITATION: HAROLD & GLADYS VERRYT and ANN WILLIAMS [2005] WASAT 101

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 17 MARCH 2005

DELIVERED : 11 MAY 2005

FILE NO/S: CC 19 of 2005

BETWEEN: HAROLD & GLADYS VERRYT
Applicant
AND
ANN WILLIAMS
Respondent

Catchwords:

Real property - Strata titles - Alteration of lot without notice to strata company - Whether alternations in keeping with rest of the building - Meaning of "in keeping with"

Legislation:

State Administrative Tribunal Act 2004 (WA), s 39(e)

Strata Titles Act 1985 (WA), s 3AB, s 7, s 21, s 83, s 103G

Result:

Application successful in part

Category: B

Representation:

Counsel:

Applicant: Mr D Verryt
Respondent: Mr R Griffiths

Solicitors:

Applicant:
Respondent: Griffiths & Godecke

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

Strata Plan No 464 v Oborn NSW Strata Titles Cases 1979-90

Case(s) also cited:

Nil

MR C RAYMOND (SENIOR MEMBER):

REASONS FOR DECISION

Issue

The issue for determination is whether alterations made to the respondent's property are in breach of the strata company's rules and whether an order should be made that the property be reinstated by the respondent to its former condition.

Strata Plan and Parcel

The applicants and respondent are proprietors of Lot 1 and Lot 2 respectively shown on Strata Plan 17152.
The Strata Plan was registered on 20 March 1989. There is no notification on the register of any amendment, repeal or additional bylaws and pursuant to s 42 of the Strata Titles Act 1985 (WA) ("the Act") the provisions set out in Sch 1 and Sch 2 of the Act are deemed to be the bylaws of the strata company.
The parcel comprises only of the said Lots 1 and 2. Each lot comprises of the buildings shown on the plan and external areas as shown.
By virtue of the operation of s 21I and s 21M of the Act, no notice of resolution having been registered under s 21H nor any objection having been lodged under s 21O, s 3AB of the Act operates to determine the boundaries of the lots. The boundaries thereunder are the external surfaces of the buildings and in relation to any common or party wall, the centre plane of the wall. As noted on the Strata Plan except where covered, the stratum of Lot 1 and Lot 2 external to the buildings extends between 5m below and 10m above the floor surface level of the building on Lot 1.

The Application and Hearing

The applicants made application to the State Administrative Tribunal ("the Tribunal") on 7 January 2005 seeking an order: "to reinstate the premises to as they were before the unauthorised and nonsanctioned works were carried out". The grounds stated for the order were:
"In breach of Sch 2 bylaws 13 and 14."
On the same date an interim application was lodged signed by Mr D Verryt, the applicants' son, on behalf of the applicants. On 12 January 2005, the applicant, Mr H Verryt, signed the application as well. In terms of that application, an order was sought in the following terms:
"No further works or alterations be made to the premises situated at 40B Halls Head Pde, Halls Head until SAT hearing ruling is handed down
No works other than return of property to original condition prior to unauthorised/nonsanctioned works."
The need for any interim order fell away when, at a hearing on 27 January 2005, the respondent informed the Tribunal that there was no work commissioned to take place. An undertaking was given to the Tribunal not to proceed with any works.

The Issues Raised

In a letter dated 7 January 2005 written by Mr D Verryt, on behalf of the applicants, to the respondent, the works, the subject of the application, were identified as follows:
"The works in question are
1.Removal of the 'whirlygigs' that have recently been installed on the roof
2.Removal of the non-conforming 'security door' that faces onto Halls Head Parade
3.Painting of all THE GUTTERS, they need to be returned to the 'brown' colour the same as 60A
4.The windows that have been fitted, that are not in accordance with the colour or style that were previously installed (as per 60A)
5.Removal of the external side door installed on the southern wall
6.Removal of the non-conforming 'security door' that is fitted to that door.
7.Removal of the White Security Screens around your property and to be fitted with mission brown screens.
8.The proposed works to alter the roof colour be cancelled."
At the hearing of the interim application on 27 January 2005, the applicants added the following issues:
"9.the painting of wooden fence posts;
10.the painting of an asbestos fence alleged to be powder blue on both sides."
At the conclusion of the interim hearing, directions were issued for the provision of signed written statements of evidence and any photographic evidence, on which the parties intended to rely.
Subsequently, when the applicants filed a signed written statement and photographs, as directed, prior to the hearing, the issues were clarified by stating that the security door referred to in item 6 was, in fact, a white framed screen door, and the asbestos fence referred to in 10 above was only painted on the inner side. An additional item was raised and described as: "11 rear wooden fence and gate painted white".
Leave was granted to Mr D Verryt to represent the applicants pursuant to s 39(e) of the State Administrative Tribunal Act 2004 (WA) ("the SAT Act"). The applicants are elderly. Mrs Verryt requires constant care which is provided by Mr H Verryt. Further, it was obvious that the applicants had relied upon Mr D Verryt to correspond with the respondent as the dispute developed.
At the commencement of the hearing, I raised with Mr D Verryt whether Mr H Verryt, who had signed the statement, would be available for cross-examination. Mr Griffiths for the respondent indicated his desire to cross-examine Mr H Verryt. I advised Mr D Verryt that if Mr H Verryt was not available for cross-examination, and it became necessary to determine conflicts in the evidence, there would be a significant risk that the respondent's evidence would be preferred, given the indication that the respondent would give evidence and would therefore be available for crossexamination. Mr D Verryt indicated that he was not prepared to subject his elderly father to cross-examination.

Background and Evidence

In compliance with the directions issued by the Tribunal, signed statements were filed by both the applicants and respondent. Both parties provided photographic evidence. The applicants also filed a response to the respondent's statement by way of a Schedule (exhibit A2). Contrary to the direction issued on 27 January 2005 that parties were to provide signed written statements of any evidence on which they intended to rely, the Schedule was not signed.
The respondent also filed written submissions, an index to the photographs relied upon and a chronology. While some of the events referred to are disputed, I do not understand the applicants to dispute the dates on which the works, now being criticised, were carried out. The respondent's statement and chronology relevantly show as follows:
1.On 13 December 2002, settlement in respect of the respondent's purchase of 60B Halls Head Parade (Lot 2) occurred.
2.On 6 February 2003, a conversation occurred between the parties. The respondent testified that the discussion related to the installation of security grilles, roller shutters and security doors, and that they should be cream in colour. Mr H Verryt acknowledges that "cream colour for shutters was discussed" but asserts that "security grilles/screens colour and fitting of same was never discussed". This appears in the unsigned Schedule and is consistent with the applicant's signed statement.
3.By 17 March 2003, the works related to the security door facing Halls Head Parade and the installation of white security screens were completed.
4.During March or April 2003, the inside of the respondent's asbestos fence was painted a bluegrey colour.
5.By 21 October 2003, the works were completed in relation to the installation of windows, the installation of the external side door on the southern wall and the "security door" attached thereto.
6.By 18 November 2004, installation of cream Colorbond gutters, fascia, eaves, downpipes and "WhirlyBirds" was completed.
7.By 19 November 2004, a dispute had developed between Mr H Verryt and the respondent relating to the gutters, the respondent's intention to repair or replace broken and cracked tiles to the roof of her dwelling and to paint the roof.
8.On 21 November 2004, the applicants received a letter of that date from Mr D Verryt objecting to the proposed roof treatment and reserving the applicants' rights in respect of previous unapproved works, namely "side door, window replacement and gutters". It is common cause that the respondent did not respond to the letter.
The documents annexed to the application include the correspondence which then followed. On 4 December 2004, Mr D Verryt wrote to the respondent referring to his earlier letter and noting that he had received no communication from her. Mr H Verryt's signed statement reflects his understanding that the roof was to be painted yellow. The respondent, in her evidence, stated that she selected a colour from a chart which was the closest match to the existing roof, ie a colour called midterracotta.
In the letter of 4 December 2004, the issues in relation to which the applicants' rights were reserved, were raised. The letter stated:
"After further consultation with my parents they have instructed me to write to you formally requesting that the unauthorised and non-sanctioned works (detailed below) be removed and the premises be reinstated to the condition/visual appearance that they were prior to you undertaking the works.
The works in question are:
1.Removal of the "whirlygigs" that have recently been installed on the roof
2.Removal of the non-conforming "security door" that faces onto Halls Head Parade
3.Painting of the gutters, they need to be returned to the "brown" colour the same as 60A
4.The windows that have been fitted that are not in accordance with the colour or style that were previously installed (as per 60A)."
The letter proceeded to advise that if the remedial works had not commenced by 7 January 2005, he, Mr D Verryt, was instructed to make an application to the Strata Titles Referee for an order under s 83.
On 7 January 2005, Mr D Verryt wrote a further letter to the respondent again noting that no communication had been received from her. He accordingly advised that an application was being made to the State Administrative Tribunal, and attached a copy of the application. The letter proceeded to advise that, to be absolutely clear, the unauthorised and non-sanctioned works upon which the applicants sought the Tribunal to rule were as stated therein. Items 1 4 of the list set out was the same as the previous communication. However, four other items were added.
"5.Removal of the external side door installed on the southern wall.
6.Removal of the non-conforming "security door" that is fitted to that door.
7.Removal of the white security screens around your property and to be fitted with mission brown screens.
8.Proposed works to alter the roof colour be cancelled."
On 7 January 2005, an application was made for substantive relief that the premises be reinstated to their former condition and an interim application for an order, in effect, that no further works be carried out pending determination of the substantive application.
At the hearing on 27 January 2005, as already observed, the respondent gave an undertaking not to proceed with any works and advised that there were no works planned to be carried out pending resolution of the matter.
Mr H Verryt in his signed statement addressed each of the 11 issues raised by the substantive applications. In relation to issue 1, the installation of the "whirlygigs", he stated that there had been no prior discussion and he had not approved their installation. In relation to issue 2, the white security door facing Halls Head Parade, he stated that there had been a discussion and an agreement about fitting a security screen. However, there was no reference to colour. He stated that he informed the respondent's father that the door did not conform (because it was white not brown). The date of that discussion is not stated. Similarly, in relation to issue 3, the gutters and downpipes, the applicant stated that he consented provided they conformed to the original outline and colour. He advised that in January 2005, the gutters at the front and southern side of the respondent's dwelling were re-painted brown but the gutters at the rear (east) and on the free-standing carport were left as installed ie a cream colour. He referred to the downpipes remaining a greenish colour.
In relation to issue 4, the windows, Mr H Verryt stated that he had agreed with the respondent's father that they could be replaced provided the window frames were the same as the existing (ie brown). He stated that, as far as the side door and security door were concerned (issues 5 and 6), he knew nothing about these works until they were undertaken. He stated that there was previously a solid wall with no door.
Mr H Verryt further stated in relation to the security screens, issue 7, that the respondent's father had informed him that he was replacing the screens, but there was no mention as to whether they were the front screens, the back screens, or both. He acknowledged that he agreed but stated that it was on the basis that they were the same as the existing.
In relation to the roof, issue 8, the applicant referred to a telephone call from the contractor who was to carry out the work, PJ Roof & Wall Coatings, who inquired whether he wanted his roof done as they were doing the respondent's roof. He was told that they were doing her roof yellow and if he wanted to have his done at the same time, it would be cheaper. He stated that he spoke to the respondent and she advised him that PJ Roof & Wall Coatings were wrong, the roof was not to be yellow, it was to be a cedar red colour. He stated that the respondent informed him that she had seen a solicitor and that she could do what she wanted and the applicant could not stop her. Consequently, he had his son commence writing to the respondent.
In relation to the fence being painted blue, issue 9, he said that the respondent had proceeded to paint the fence without any advice given or permission sought, and the same applied in respect of the fence posts and the rear wooden fence and gate, being issues 10 and 11 respectively.
The respondent, in her statement, addressed the background to her involvement with the applicant and each of the identified issues. The respondent stated that, within a day or two of settlement, in November 2002, Mr H Verryt entered her property and in an aggressive manner, asserted that the land was common property, that he could use it whenever he wanted to, that the respondent could not park a motor vehicle in the front driveway, and that if the respondent ever tried to build anything at the front of the residence, "it would be World War 3". In response to this statement, the Schedule reflects:
"Irrelevant, and in any case, comments were in response to the respondent's comments as to having big plans for the house."
The substance of the discussion was not put in issue.
The respondent says that, as a result of Mr H Verryt's manner, which she described as confrontational and intimidating, she was careful to inform the applicant of her intentions and to consider any advice he might offer. She proceeded in the statement, in some detail, to refer to when the various works were carried out and to discussions which she stated that she had with the applicant concerning them. She stated that the colour of the security grilles and rollers were discussed with Mr H Verryt and that he said "that this was fine with him".
The respondent stated that the installation of the security door and screens was completed on 17 March 2003 and that a day or two later, Mr H Verryt viewed them with her and commented that he could have obtained them more cheaply. There is no reference to any objection being raised.
The respondent also referred to the circumstances in which the inside of the asbestos fence was painted during March or April 2003. Mr H Verryt had a discussion with her while she was painting the asbestos fence and she advised him that, if she had any paint left over, she would also paint the wooden pole fence at the front of her land. She stated that Mr H Verryt said "Thats (sic) fine". The wooden pole fence was painted a few days later.
The respondent testified that, during late August 2003, she discussed with Mr H Verryt the installation of fixed glass panels in the windows facing the ocean. She further advised that she was considering installing a large window/door on the southern side as well as a fixed glass panel in that door and the kitchen window.
Later during September 2003, the respondent said that she was proceeding with the installation of the glass panels and large window/door and that she had advised the applicant that they would be cream coloured. To this, she stated that Mr H Verryt responded to the effect that she could do what she liked as long as she didn't build anything at the front of his residence.
The respondent stated that shortly after the windows, side door and security door had been fitted (issues 4, 5 and 6), Mr H Verryt had accompanied her on an inspection of the works. The works were completed on 21 October 2003. The respondent advised that Mr H Verryt recommended that she request the suppliers to place stickers on each of the windows to indicate that they contain security glass. Again, no reference was made to any objection.
It was much later, in September and October 2004, that the question of replacement of gutters, downpipes and repairs to the roof arose. There is no issue between the parties that the repairs to the roof are necessary, indeed that the applicant had pointed out to the respondent, that the roof was sagging. The respondent says that she discussed these matters with Mr H Verryt, including her wish for the gutters to be white, and the applicant said that his preference was for mission brown gutters, but if the respondent wanted cream gutters, that was fine by him.
The respondent says that she mentioned to Mr H Verryt that the roof would have to be sealed in a colour as close as possible to the existing terracotta tiles. According to the respondent, Mr H Verryt went so far as offering to obtain quotations for her for this work because he believed he could get it done cheaper than the price quoted to her. The respondent stated that Mr H Verryt arranged for a contractor, Ballantyne Plumbing, to attend at her residence to provide a quotation to be addressed to the applicant's son. However, possibly because Mrs Verryt was hospitalised, the provision of the quotation was delayed and the respondent decided to seek a further quotation herself.
The supposition was put forward by the respondent during the hearing on 17 March 2005 that Mr H Verryt may have taken umbrage that she had proceeded without waiting for him to come back to her and that this was the reason for the dispute which then arose. Her evidence was that, when contractors commenced to install the cream gutters, Mr H Verryt had intervened and had harassed the contractors. That was on 15 November 2004.
On 19 November 2004, the respondent stated that the applicant had called to see her, that he was aggressive and threatening, and stated that he was going to have all the gutterwork ripped off. She stated that she informed him that she had replaced the old gutters with cream coloured gutters on the strength of his agreement and that Mr H Verryt acknowledged that agreement but said that it had been oral, not in writing, and he was not bound by it, that her residence looked nice but he in any event demanded that the guttering be restored to its previous condition.

The applicants, in the response schedule, as already indicated, denied that agreement had ever been reached in respect of colour. In relation to the installation of the fixed glass panel, the response schedule reflects that Mr H Verryt expressed the view that the appearance of the windows was unsatisfactory.
The respondent was called to give evidence and to confirm on oath the correctness of her statement, which she did. She was subjected to cross-examination, but it did not result in any concessions being made by her or any deviation from her statement.

Relevant Statutory Provisions and Strata Bylaws

Section 7 of the Act provides by subsection (2):
"The proprietor of a lot shall not cause or permit -
(a)any structure to be erected; or
(b)any alteration of a structural kind to, or extension of, a structure,
on his lot except -
(c)with the prior approval of the proprietor of the other lot in the case of a strata scheme in which there are not more than two lots; and
(d)in any other case with the prior approval, expressed by resolution without dissent, of the strata company."
Subsection 5 provides for the grounds on which a proposal may be refused and that includes, in the case of a lot that is not a vacant lot, that the carrying out of the proposal will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development.
Section 103G prescribes that the Tribunal may make a finding that the proprietor of a lot in a twolot scheme has committed a breach of s 7(2) and may then order the carrying out of any work or that work be pulled down, removed or altered. By subsection (4), the Tribunal shall:
"(a)make a finding under this section if satisfied that a breach of section 7(2) has occurred;
(b)make an order under this section unless satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors."
At Schedule 2:
"13. Notice of alteration to lot
A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the bylaws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before commencement of the alteration, written notice describing the proposed alteration.
14. Appearance of lot
A proprietor, occupier or other resident of a lot shall not, without the written consent of the strata company, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building."

Considerations

The only part of the works which the applicants contended constituted a structural alteration to the respondent's lot was the external side door and security door (issues 5 and 6).
Mr Griffiths for the respondent disputed that the work constituted structural works. The respondent's evidence was that the sliding security door was fitted in the same opening as the previous external window/sliding door.
It is not necessary to make any determination in respect of this because, during closing submissions, Mr D Verryt conceded that the alteration did not result in any significant inconvenience or detriment to the applicants. The effect of this concession was that it was also not necessary to consider whether there had been a breach of r 13 because the relief sought is that the works be restored to their original condition, and that order cannot be made by virtue of s 103G(4)(b). The concession made is patently correct and I am satisfied the work done will not cause any significant inconvenience or detriment to the applicants.
The only remaining issue was whether or not the changes made were a breach of r 14 and whether in consequence of the dispute relating thereto, the Tribunal should exercise its power under s 83 to make an order for the settlement of the dispute.
It is common cause that no written consent was obtained from the strata company in accordance with r 14. Thus, if the work undertaken by the respondent is visible from outside of the lot and is not in keeping with the rest of the building, a breach of that rule has occurred.
I am satisfied that a consideration of the photographic evidence provided by the parties is sufficient to enable me to come to the correct and preferable decision without the need of a view or other evidence.
The Shorter Oxford English Dictionary, 5^th ed., 2002 defines "in keeping with" as meaning … "in harmony with".
Harmony, in turn, is defined to mean "Combination or adoption of parts, elements or related things so as to form a consistent and orderly whole."
Mr Griffiths for the respondent contended that "in keeping with" should be taken to mean "not to clash". In my view, that is too wide a definition, and the words should be given their ordinary grammatical meaning as set out above. Nevertheless, the judgement of whether there exists a consistent and orderly combination of elements as a whole is subjective. In the context of a strata unit development, it does not mean that every unit must be identical. The extent to which similarity in appearance is required will vary from one development to the next. This is for the body corporate, acting within its powers, to decide.
As was held in Strata Plan No 464 v Oborn NSW Strata Titles Cases 1979-90:
"It is for the body corporate, acting within its powers, to decide whether there will be uniformity in the external appearance of the building, either total or in particular respects."
Those comments are of equal application in this instance save that, in a twolot scheme, there are only the views of the proprietors of the two lots who will dictate the standard which may be determined by the strata company. In this case, it was common cause that the strata company has been inactive so that, to all intents and purposes, the proprietors of the two lots, over a period of time, have determined the degree of uniformity to be applied. While technically no formal decision of the strata company has been made, the determination of whether particular works are in keeping with the rest of the building must be assessed by reference to the state of the building at the time the works were carried out. If the appearance has been affected by some feature which is challenged, it would obviously not be appropriate to have regard to that feature in determining whether other features are in keeping with the rest of the building, at least until the challenge has been determined.
It is in this context that the evidence relating to discussions of proposed works and the attitude of the parties in relation thereto, is of some importance. However, for the purposes of the determination of this matter, the correct starting point is the appearance of the building prior to commencement of any of the work, the subject of these proceedings.
The buildings as shown on the Strata Plan have been altered. The gap between the two buildings has been filled in and roofed on the applicants' property Lot 1 to form a garage. The western side of the garage, facing Halls Head Parade, has had fitted a white or cream coloured door which appears to be either a roller door or tilt-up door. The roof tiles are the same as the rest of the roof. On the eastern side, a metal clad extension has been constructed which extends for what appears to be approximately 7m or 8m beyond the eastern face of the original building. The metal cladding is cream in colour. There are two windows facing the respondent's property, ie on the southern side, and there is one window and what appears to be a double-sided door on the eastern face of the extension. The windows and the security grilles are also cream. The gutters along the extension are green. There appears to be two pipes on the eastern face, which appear to be drainpipes, one is entirely green, the other is half green and half white and cream. It may be that there were two drainpipes at this point, one green, and one white or cream. The double doors are white or cream in colour.
The rest of the building comprising Lots 1 and 2 is constructed out of the same face brick, and it is apparent from the evidence that all gutters and downpipes were originally a mission brown colour, as were the window frames and the front fence posts and letterboxes.
The external boundary fences were standard Supersix asbestos fences which were not painted.
At some time, which was not established on the evidence, all of the windows on the west and south faces of Lot 1, the applicants' property, were fitted with cream security shutters which, when closed, cover the whole of each window.
There is a contest on the evidence as to whether the rear wooden fence, or an asbestos fence, and gate were white prior to the respondent purchasing Lot 2. The respondent's evidence was that the gates were cream and that she painted then and an asbestos fence white on the inside. She testified that the outside of the asbestos fence had been cream. She asserted that she had not painted any wooden fence and that she understood the applicants to be referring to the asbestos fence.
For the reasons referred to further below, and also because the photographic evidence (Exh. R3 2(a), 4(a) and 5(a) shows the cream paint covered by white paint at the base of the fence, I accept the respondent's evidence and find that all of the gates on the rear fence, which is an asbestos not a wooden fence, were painted cream prior to the respondent's acquisition of the property.
In my, obviously subjective, view, the building as it existed prior to the respondent carrying out the works now in issue, had an appearance in which the combination of elements as a whole were not harmonious ie consistent and orderly. There was a stark contrast between Lots 1 and 2 as a result of the cream roller shutters and garage door, set against a relatively dark brick, brown gutters and downpipes. The extension to the eastern side of Lot 1 could actually be described as one which clashed with the remainder of the building.
It is against that setting, that the works carried out by the respondent must be assessed. I do so on the basis that I find that all of the works concerned are visible when viewed from outside Lot 2. Accordingly, if they are not in keeping with the rest of the building, bylaw 14 will have been breached.
1.Whirlygigs
The whirlygigs are painted in a colour which matches the roof. They are, in my view, in keeping with the building.
2.Security door
As pointed out by the respondent, the door does not face Halls Head Parade, it faces the applicants' residence. The respondent's evidence, which I accept, is that in an endeavour to address the applicants' objections, she has painted this security door, and the gutters which do face Halls Head Parade, and the gutters on the southern side, in a mission brown colour. There is accordingly no issue remaining for determination.
3.Gutters
As stated above, some of the gutters have been painted in a mission brown colour as required by the applicant. In my view, the applicants' criticism of the cream guttering on the western and southern faces of the building (which are those that have been repainted) was justified because the introduction of cream gutters would have reduced the level of consistency and orderliness. It would have broken a line created by the gutters half of which would have been brown and half cream. As the applicant's requirements in relation to these portions of the gutters have been met, there is to that extent, no issue to be determined.
The gutters on the eastern side of the respondent's property and in the carpark remain in the cream colour as installed. In my view, the appearance on this side of the building is very different to that on the western side. This is because of the motley of colours introduced by the extension of the Lot 1 portion of the building. The rear of the building, as a whole, had at the relevant time a mix of green, cream and brown gutters. The overall appearance, prior to the cream guttering being installed on Lot 2, was not harmonious, but that was the appearance which was acceptable to the proprietors of the Lots, and which must inevitably therefore reflect the view of the strata company. In those circumstances, I do not consider that the applicant has established that the cream guttering is not in keeping with the rest of the building. Although I do not consider the overall appearance of the building to be harmonious, it reflects that degree of conformity, or lack of it, which the parties, or their predecessors, had determined.
The applicant also objects to the downpipes which appear to be in a light green colour. There is no evidence to suggest that the applicant consented to downpipes of this colour being installed.
In my view, because of the motley of colours on the western side of the building and in particular the green guttering on the extension, the greenish downpipes on the eastern side of the building are in keeping with the rest of the building. However, I do not consider the same can be said in respect of the downpipes at the front of the building, ie the west facing side. The colours on this side of the building are predominantly the fairly dark brick colour, the mission brown paintwork and the mission brown doors and window frames with cream shutters. The photographs show that the shutters are closed in the afternoon - presumably to protect against the afternoon sun. The new cream framed windows and roller shutters were installed prior to the green gutters, but even if considered or assessed at that point, the gutters, in my view, introduce a further colour which is not in harmony or in keeping with the front and southern side of the building. They introduce a noticeable degree of lack of consistency or orderliness. The applicants' claim in this respect is upheld. The downpipes on the western and southern face of the building should be repainted in mission brown so as to be consistent with the other downpipes on the western face of Lot 1.
5.External side door/6 Screen door/7 White security screens
It is not clear from the photographs whether these screens are white, or cream as the applicants' shutters have been described to be. They do appear to be a lighter colour than the cream gutters. In my view, all of these items are consistent with the garage door and the security screens installed by the applicant on Lot 1. Once that colouring was introduced, having regard to the building as a whole, I consider that the white or cream coloured windows and doors installed by the respondent are in keeping with the rest of the building. While that is a subjective judgement, which I must make, I am fortified in my view by the conduct of the parties. In that regard, while the facts are in dispute, I accept the respondent's version of events and find that the applicant had consented to the installation and in particular to the colour used. There are a number of reasons as to why I prefer the respondent's evidence.
(i)The respondent dealt with the matters in a statement which was more detailed than that of the applicant. Furthermore, the respondent gave oral evidence confirming on oath her statement and was cross-examined thereon. She gave evidence in an entirely satisfactory manner.
(ii)Mr H Verryt was not called to give evidence and was not subjected to cross-examination.
(iii)The response schedule (exhibit A2) which the applicant relied upon to answer the respondent's statement is not signed and responded somewhat tersely to the matters raised. In some respects, it is more in the nature of a pleading but subject to the defect that on occasion bare denials only are made. At times, it is framed in terms in which it appears that the statement given is that of Mr D Verryt rather than Mr H Verryt - see for example the response to par 62 and par 81.
(iv)The correspondence, attached to the application, to which I have already referred, shows that the applicants' real concern was that the respondent might endeavour to change the colour of the roof. By that time, in November 2004, all of the works other than the gutters and downpipes, had been installed for some time, yet the applicants had done nothing about it.
(v)The manner in which this application has been conducted and the willingness of Mr H Verryt to intervene with contractors (see par 62 of the respondent's statement and the response schedule relating thereto) and the conduct of Mr H Verryt described in par 5 of the respondent's statement (which was not disputed) is inconsistent with Mr H Verryt having objected to any of the earlier works. If he had done so, and been ignored, it is unlikely he would have done nothing about the matters concerned at the time.
(vi)The delay in bringing forward any of the complaints, other than in relation to gutters, downpipes and the roof which were all recent events, is consistent with Mr H Verryt having advised the respondent that she could do whatever she liked as long as she did not build anything at the front of the applicant's residence. That was the point which he emphasised at his meeting with the respondent shortly after settlement of the respondent's purchase of Lot 2 (see par 5 and par 28 of the respondent's statement - the former which was not disputed).
6.Roof
It is clear on the respondent's evidence, which I accept, that there was never any intention to carry out repairs to the roof using a colour which was not matched as closely as possible to the existing. It may well be the case that Mr H Verryt genuinely believed that the respondent intended to use apply a yellow finish, but as soon as that matter was raised with the respondent, she informed the applicant that was not the case.
There is little doubt that this misunderstanding lies at the heart of the applicant's application for relief from the Tribunal. It is unfortunate that the respondent did not reply promptly to Mr D Verryt's initial correspondence because that, together with her willingness to repaint the security door and the gutters on the western and southern side of the house facing Halls Head Parade, might have avoided the need for this application.
In any event, the respondent's position is now patently clear, and that is that she seeks to have repairs carried out to the roof, which it is not disputed are necessary, and that she wishes to colour the roof as close as possible to the existing colour. The respondent is clearly entitled to follow that course.
9.The Wooden Fenceposts/10 The Asbestos Fence
Although the applicants originally contended that the asbestos fence had been painted a powder blue colour on both sides, it was clarified at an early stage that the colouring was only to the inside of the fence. The wooden fenceposts were painted the same colour.
The respondent's evidence, which I accept, was that this work had been carried out in March or April 2003, that Mr H Verryt had been present while the fence was being painted and had given his approval to the posts being painted in the same colour. Although my personal view is that the posts and fence have been painted in a colour which I would not regard as being in harmony with the building, for the reasons given above, it is for the proprietors of the strata company to determine the degree of uniformity or consistency required and consequently the standard by which a feature might be regarded as in keeping with the building, or not.
I accordingly find that the fenceposts, including the letterbox, and the asbestos fence painted in a blue-grey colour are in keeping with the rest of the building.
11.Rear Wooden Fence and Gate Painted White
As I have already found above that portion of the fence, which is an asbestos fence, not a wooden one, and gate was painted cream prior to the respondent acquiring Lot 2. I find that the painting of the fence in a white colour has not materially affected its appearance, and, even if this were not the case, given the range of colours visible on the eastern side of the property, and the standard thereby set by the proprietors, I consider that this work is in keeping with the rest of the building.

Orders Sought

For the above reasons, the only aspect of the application which has been successful has been in relation to the green coloured downpipes on the western and southern faces of the building comprising Lot 2. These downpipes should be repainted but in view of the commencement of the winter rainy season, I will allow an extended time for that work to be completed. The appropriate order to be made is therefore as follows:
1.On or before 30 June 2005 the respondent is to cause the drainpipes situated on the west and south faces of the building comprised within Lot 2 on Strata Plan 17152 to be painted in a mission brown colour paint.
2.The application is otherwise dismissed.
At the conclusion of the hearing, I encouraged the representatives of the parties to meet in an endeavour to reach a satisfactory resolution of the matter on the basis that the parties were neighbours and that the determination of the matter by the Tribunal would do nothing to mend their relations.
I asked that I be advised as soon as possible whether the settlement negotiations had been successful or not. On the same day as the hearing, Mr D Verryt addressed a facsimile to me. The second paragraph advised me that the parties were not able to reach resolution and the introduction to the third paragraph stated the issues which were discussed, and then proceeded to list them. I did not read the list because I was concerned that I should not be made aware of the content of the parties' negotiations, and I noted that the commencement of the next paragraph contained a statement "in an attempt to bring the matter to resolution I suggested the following". It was not appropriate that I should be aware of the parties' without prejudice settlement negotiations, and I read the document no further.
On 22 March 2005, a letter addressed by the respondent's solicitor to the Executive Officer of the Tribunal was received and forwarded to me. The letter confirmed that the settlement negotiation had not resulted in any of the issues being resolved and objected to the contents of Mr D Verryt's above letter on the basis that it purported to record settlement negotiations that were conducted on a without prejudice basis. As stated above, except to the extent there indicated, the letter was not read for that reason.

ORDER

It is ordered that:
1.On or before 30 June 2005 the respondent is to cause the drainpipes situated on the west and south faces of the building comprised within Lot 2 on Strata Plan 17152 to be painted in a mission brown colour paint.
2.The application is otherwise dismissed.

I certify that this and the preceding 22 pages comprise the reasons for decision of the State Administrative Tribunal.
______________________
C Raymond
Senior Member