HOBDEN and STRATA COUNCIL MANAGEMENT OF LAWLEY TOWERS
[2008] WASAT 216
•17 SEPTEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: HOBDEN and STRATA COUNCIL MANAGEMENT OF LAWLEY TOWERS [2008] WASAT 216
MEMBER: MR M SPILLANE (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 17 SEPTEMBER 2008
FILE NO/S: CC 357 of 2008
BETWEEN: CARL JAY HOBDEN
Applicant
AND
STRATA COUNCIL MANAGEMENT OF LAWLEY TOWERS
Respondent
Catchwords:
Strata titles - Whether boundaries form part of the common property - Boundaries of each lot to be determined by reference to strata plan
Legislation:
State Administrative Tribunal Act (2004) (WA), s 60
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 7, s 85
Result:
Order pursuant to s 85(a) of the Strata Titles Act 1985 not required as balcony not part of the common property
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr R Kronberger
Respondent: Mr E Pretrucha
Solicitors:
Applicant: Atkinson and Associates
Respondent: Self-represented
Case(s) referred to in decision(s):
Jordan v Van Schoubroeck [2005] WASCA 120
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant in this matter sought a review of a decision by strata council refusing permission to remove an internal sliding door that opened onto an enclosed balcony. The strata council was of the opinion that the balcony was common property.
The parties agreed that the Tribunal determine the review on the documents and it became clear that the principle issue to be determined was whether the balcony in question was part of the applicant's lot or part of common property.
The Tribunal found that the boundaries of each lot are determined by the strata plan and on an examination of the strata plan and the facts of the case the Tribunal was satisfied that the balcony formed part of the applicant's lot and was not part of common property.
In the circumstances, as an order of the Tribunal to set aside the strata council decision was not necessary, the application was dismissed.
Introduction
This matter came to the Tribunal as an application under s 85 of the Strata Titles Act 1985 (WA) (ST Act 1985) for an order to set aside the respondent's decision not to permit the applicant to remove the internal sliding door and window between the applicant's unit and the enclosed balcony attached to the applicant's unit which is unit 24 of the scheme.
The scheme is a 32 lot, eight level residential scheme located at 169 Railway Parade, Mount Lawley and described as Lot 1 on Diagram 38072, being portion of Swan Location Y on Certificate of Title Volume 269 Folio 3A. The strata plan was registered on 27 October 1970 under the Strata Titles Act 1966 which has since been repeated and replaced by the ST Act 1985.
It was agreed that the matter should be dealt with on the documents pursuant to s 60 of the State Administrative Tribunal Act (2004) (WA) (SAT Act). Following directions hearings and submissions by the parties, it became clear that two principal issues arise to be decided, namely:
1)Is the balcony of Unit 24 part of the lot or part of the common property?
2)If the balcony of Unit 24 is part of the common property, was the respondent correct in not permitting the removal of the sliding door and window?
In submissions, the applicant raised the further issue that if the Tribunal held that the balcony was part of the applicant's lot, then approval for the works in question was not necessary under s 7 of the ST Act 1985. The respondent argued that the application to the Tribunal should only proceed in respect of matters relating to common property.
The application before the Tribunal is clearly brought under s 85 of the ST Act 1985 and no application has been made to amend that. In the circumstances the Tribunal will only deal with the two issues outlined above. If matters in respect of s 7 of the ST Act 1985 arise, they will have to be dealt with separately by the parties.
Issue 1 Is the balcony of Unit 24 part of the lot or part of the common property?
Applicant's submissions
Apart from the application dated 13 March 2008, the applicant filed a letter dated 8 May 2008 and a response dated 5 June 2008 to the respondent's submissions. In the letter of 8 May 2008 the applicant stated:
The Strata Plan was registered under the Strata Titles Act 1966 (the 1966 Act). Section 5(d) of the 1966 Act required a strata plan to:
'define the boundaries of each lot in the building by reference to floors, walls and ceilings…'
Section 5(5) of the 1966 Act provided that:
'unless otherwise provided in the strata p[l]an, the common boundary of a lot with another lot or with common property shall be the centre of the floor, wall or ceiling, as the case may be'[.]
Clearly, that section was concerned only with two kinds of boundaries the boundaries between lots (such as the boundary between Lot 24 and the adjacent Lot 21) and the boundaries between lots and common property (such as the external walls of each lot, although the 1966 Act did not define 'wall'. While the 1985 Act does include such a definition, that definition cannot be interpreted retrospectively to schemes created under the 1966 Act).
Section 13(4)(h) of the 1966 Act required a Strata Company to repair and properly maintain the common property. This included the repair and maintenance of the external surfaces of the building the subject of the strata plan.
There was no provision for the inclusion on the Strata Plan of the broken lines shown by the surveyor on your Strata Plan but, in my view, the boundary of Lot 24 extended to the centre plane of the external wall of the balcony. The fact that the balcony wall may only have been to half the height of the balcony did not prevent the Registrar of Titles, under the 1966 Act, from allowing balcony areas to be included as parts of lots if the balcony was covered by a structure.
The 1996 Act contained no provisions dealing with a structure, fixture or fitting which divided one part of a lot from another.
The sliding door and glass panels in the position shown by the broken lines on the Strata Plan were never intended to be a boundary wall. They did not separate Lot 24 from any other lot and it did not separate Lot 24 from any part of the common property.
The balcony was not common property. Common property on the same floor level of the building as Lot 24 is identified as such by a specific endorsement. There is no such endorsement on the balcony area of Lot 24.
It has been suggested that the area of Lot 24 (900 square feet) shown on the Strata Plan could be used to determine if the balcony was included within that area. However, it must be noted that on any measurement of the area of the lot, the boundaries of the 900 square feet area extended to the centre planes of the external walls of Lot 24 and to the centre plane of the wall between Lot 24 and the adjacent Lot 21. Some allowance must be made for the inclusion of the inner halves of those walls in computing the area of 900 square feet.
On the basis of measurements made by my client, the internal floor area of Lot 24 is approximately 850 square feet, inclusive of the balcony area. He advises that if the balcony area is excluded, the area of his Lot 24 would be decreased by approximately 26%.
In these circumstances, there can be little doubt that the original proprietor's surveyor and the Registrar of titles included the area of the balcony as part of Lot 24.
In his response dated 5 June 2008 the applicant further states:
The applicant's 8 May 2008 submission refers to the reasons given in the Bey Apartments decision in 2004 but quotes para 38 without quoting the following para 39:
39.However, if I am wrong in my interpretation of the Strata Plan … any structural alterations and additions … would have to be considered in the light of s 7 and related sections of the 1985 Act.
Subsequently, the Full Court of the Supreme [C]ourt in Jordan v Van S[c]houbroe[c]k 2005 WASCA 120, in relation to a multi storey Strata Titles Act 1966 apartment building, had no difficulty in determining that, on the basis of area measurements, the balconies formed part of the lots in that scheme (para 16), even where, as in that case[,] the interior and balcony portion of the lot were separated by a solid, rather than (as in this case) a broken line.
The Court found that the purpose of depicting the balcony on the Strata Plan was to show that the 'balcony formed part of the lot' (paras 17 and 21).
The Court considered that even if the outer boundary of the balcony did not extend upwards to the lower level of the balcony above, the outer boundary of the lot could be construed by a line extending upwards from the top of the balcony wall (para 20).
Strata Plan 46, being the Strata Plan the subject of the Jordan decision and being a plan registered under the Strata Titles Act 1966, showed balconies separated from the balance of the lots by a solid line, indicating a masonry or similar wall. This emphasises the broken line in respect of the Applicant's lot in the present case was not intended to be part of the common property structure see attached extract from Strata Plan 46.
Respondent's submissions
The respondent filed two sets of submissions, the first dated 30 April 2008, attached to which was a letter of advice to the respondent from Mr Ian Laird, a strata titles consultant, which advice the strata company adopted. At page 2 of his letter, Mr Laird stated:
Lot boundaries
When the strata plan was registered the boundaries of the lots were to the centre plane of the walls, floors and ceilings. When the 1985 Act replaced the 1966 Act the lot boundaries changed so as to form a cubic space bounded by the inner surface of the perimeter walls, the upper surface of the floor and the under surface of the ceiling of that part of the building in which the lot was situated.
The floor plans of this scheme as registered show an area marked 'Balcony' where the true building wall physically separating the balcony area from the internal lot area is outlined by broken lines and the surveyor has attempted to link the balcony area to the lot by use of a symbol known as a 'vinculum'. Because the 1966 Act did not allow for parts of lots to be comprised of areas outside a building, which the balcony undoubtedly is, the balconies were not part of the respective lots even though they may only be conveniently accessible from within the lot by way of a door or sliding window assembly. Additionally, there being no notation of a stratum with respect to the balconies they do not qualify as part lots under the 1985 legislation. The strata company may want to address the issue of 'ownership' and use of the balcony areas at some future time but in my view this is not materially relevant to the matter currently before the SAT.
The use of the 'vinculum' does not, in any event, have effect on the lot boundaries depicted by the broken line. The broken line was at the time of registration of the strata plan, the centre plane of the perimeter wall which, in the specific case of lot 24, comprises part of the perimeter walls of the kitchen and the lounge area.
Common property
… the lot boundaries moved, on 30 June 1985, to the inner surface of both of the wall areas at issue. Section 3(1) of the Act defines 'Wall' as including a door, window or other structure dividing a lot from common property or from another lot. Therefore all windows on or within the external walls of the building are part of the common property and that applies in this particular case to the kitchen and lounge area windows and doors facing onto the balcony area.
It is my opinion that the proposal by the proprietor of lot 24 to remove the kitchen window and sliding door are issues which involve common property and which require the approval of the strata company. Such approval may only be given by way of the making and registration of a Schedule 1 bylaw granting exclusive use or special privilege, pursuant to section 42(8) of the Act, in respect of that part of the common property and on such terms and conditions as the bylaw may stipulate.
The respondent's second set of submissions were dated 30 May 2008 in which, among others, the following points made were:
•The windows referred to in this matter are part of the common property and therefore, are under the management and control of the Strata Company and no removal or alteration should take place without the approval of the company and this should only be permitted by the registration of a Schedule 1 by-law pursuant to section 42(8).
•The vast majority of the balconies at Lawley Towers are still open balconies. Some balconies are enclosed at Lawley Towers but they still remain balconies. These balconies are not of masonry construction and were never constructed as weather-proof exterior walls. The ground floor 'balconies' which in fact are 'patios' have no structural improvements and the upper floor balconies only had a metal rail and infill balustrade provided, presumably as a safety measure. In a complex of 32 units only 9 have had glass added to the balcony balustrade to provide some modest protection from weather[.]
•The proposal by the proprietor of lot 24 to remove the kitchen window and sliding door are issues which involve common property and which require the approval of the Strata Company. The original windows, doors and main sliding door window form part of the common property of the strata scheme. Fixed structures and fittings such as the windows and doors form part of the extended surface of the structure and therefore, cannot be altered or removed by an owner.
•The Council's submission is not primarily whether or not the balcony space is part of the lot. The Council asserts that the kitchen window and the fixed windows and sliding windows in the whole building are common property.
•The original status of the balconies at Lawley Towers has not changed since the strata plan was registered on 27 October 1970 pursuant to the Strata Titles Act, 1966. The balcony was considered to be outside of the building and accordingly, the sliding door, fixed windows and kitchen window were integral parts of the structure and fabric of the building as originally constructed.
•The strata body has continued to repair and maintain all windows and sliding doors in the building based on their status as common property, as well as to maintain harmony in respect to the building as a whole.
•The application to the Tribunal should only proceed if it is in respect to common property matters, which the applicant's letter now says are not common property matters.
Consideration
In a 2005 decision Jordan v Van Schoubroeck [2005] WASCA 120 (Jordan v Van Schoubroeck) the Western Australian Supreme Court of Appeal decided a matter with almost identical issues to the present case.
In its decision the Court of Appeal outlined in some detail the position under both the old Strata Titles Act 1966 (WA) and the new ST Act 1985 and a large proportion of that judgment is relevant and important in the context of the present case. The court stated:
The Old Act
12The Strata Plan was registered in 1969 pursuant to the old Act.
13The old Act provided that land may be subdivided into lots by registering a strata plan in the manner provided by the Act. When a strata plan has been so registered the lots may devolve or be transferred or otherwise dealt with in the same manner and form as land held under the provisions of the Transfer of Land Act 1893. Section 3 of the old Act provides that unless the contrary intention appears 'lot' means a lot shown as such on a strata plan. Subsection 5(1) deals with a strata plan. Paragraph (c) provides that a strata plan shall include a drawing illustrating the lots and distinguishing them by numbers or other symbols. Paragraph (d) provides that a strata plan shall define the boundaries of each lot in the building by reference to floors, walls and ceilings, without necessarily showing any bearings or dimensions of the lot. Paragraph (e) provides that a strata plan shall show the approximate floor area of each lot. It follows that the boundaries of each lot are determined by the strata plan.
14A copy of the first page of the registered Strata Plan (Annexure A) and sheets 1, 3 and 5 (Annexure B, C and D) of the Strata Plan are attached to these reasons for judgment. On sheets 3 and 5 of the Strata Plan, the line that marks the boundary between the balcony and the interior of lots 17 and 33, and other lots, is broken by a vinculum. A vinculum is defined in the New Shorter Oxford English dictionary as a bond or tie or a horizontal line over two or more terms denoting that they are to be treated as a unit in the following operation. The evidence before the Commissioner includes a report from Mr Ian Laird, who describes himself as a strata titles consultant. Mr Laird referred to a vinculum as follows:
The use of the so called vinculum or 'surveyor's hook' on the floor plans was occasionally used by surveyors under the 1966 legislation to imply that there was some exclusivity of use of the area so connected.
15The presence of the vinculum suggests that the lots that are distinguished by numbers include both the interior and the balcony of the unit. The balcony for each unit is separated by walls from those adjacent to it. The common property is identified by the notation 'common'. Those matters taken together suggest that the balcony of each lot forms part of that lot.
16If there is any ambiguity then that ambiguity is resolved by considering the floor area of each lot shown on the Strata Plan. Each lot depicted on the Strata Plan has the same dimensions except for the balcony attached to the lot. Each lot with a similar balcony is shown as having the same floor area. Lots with balconies with different dimensions are shown as having a different floor area. For example, all of the units shown on sheet 3, including lot 17, are shown as having a floor area of 839 square metres, except for lot 21 which is shown as having a floor area of 912 square feet. The only relevant difference between that lot and the other lots is that it is a corner lot and has a larger balcony. The irresistible inference is that the balconies form part of each lot. That inference is confirmed by measurements of the units undertaken on behalf of the appellant. That evidence is to the effect that when the floor area of lot 33 is measured, the area of the balcony must be included in the calculation in order to reach an area that is consistent with the area of 839 square feet as shown on the Strata Plan.
17The respondent submits that the lots shown on the Strata Plan are not shown as including the balconies. The respondent submits that the line between the balcony and the interior of the unit shows that the balcony does not form part of the lot, notwithstanding that the line is broken by a vinculum. The respondent submits that if the balcony was intended to form part of the lot then it would not be distinguished from the rest of the lot in the manner shown on the Strata Plan. In my view, the draftsman has depicted the balcony on the Strata Plan and shown that it is part of the lot by the connecting device of the vinculum. The purpose of depicting the balcony on the Strata Plan is to show that the balcony forms part of each lot.
18The respondent further submits that any ambiguity as to whether or not the balcony is part of each lot is resolved by reference to subsection 5(5) of the old Act. That subsection provides:
'Unless otherwise provided in the strata plan, the common boundary of a lot with another lot or with common property shall be the centre of the floor, wall or ceiling, as the case may be.'
19The respondent submits that the outside edge of the balcony consists of a wall and a balustrade up to about waist height and thereafter is open. The respondent submits that the effect of subsection 5(5) is that a boundary must consist of a floor, wall or ceiling and hence the outside edge of the balcony cannot be a lot boundary because it consists in part of open air and not a floor, wall or ceiling.
20It is arguable that subsection 5(5) does no more than define the common boundary of a lot with another lot or the boundary of a lot with common property and has no application to a situation where a lot adjoins neither another lot or common property but open air. Furthermore, some boundaries will be constituted in part by something other than a floor, wall or ceiling. For example, a boundary may in part consist of a window or a floor to ceiling sliding glass door. It is arguable that the western boundaries of lots 17 and 33 are constituted by the balcony wall and a perpendicular line extending from that wall to the floor of the balcony above.
21In any event, subsection 5(5) of the old Act is subject to the express qualification 'unless otherwise provided in the strata plan'. The respondent concedes that if the Strata Plan expressly and unequivocally stated that the balcony of each lot forms part of the lot then the lot includes the balcony. In my opinion the Strata Plan shows each lot to include the balcony of that lot.
The New Act
22The new Act commenced on 30 June 1985 (the appointed day). Transitional and savings provisions are found in Sch 3, which is given effect by s 132.
23Subclause 3(1) of Sch 3 provides that a former lot, that is[,] a lot under the old Act, on the appointed day becomes for the purposes of the schedule a derived lot corresponding to that former lot and having as its boundaries the same boundaries as that former lot with one qualification. That qualification is that where the former lot had any boundary that under s 5(5) of the old Act was the centre of a floor, wall or ceiling, the former lot becomes a derived lot having as its boundaries instead of any boundary that was the centre of a floor, wall, or ceiling, the upper surface of that floor, the inner surface of that wall or the under surface of that ceiling, as the case may be.
24Clause 5 of the schedule provides that a person who, immediately before the appointed day, had an estate or interest in a former lot, has on that day the same estate or interest in the derived lot which corresponds to that former lot. Clause 6 of the schedule provides that subject to the schedule, the provisions of the new Act shall, on and from the appointed day, apply to and in respect of a former strata scheme as if it were a strata scheme under the new Act and a derived lot as if it were a lot under the new Act.
25The effect of the transitional and savings provisions is to preserve the estates and interests of the proprietors of lots 17 and 33 as they were, and with the boundaries they had, prior to the commencement of the new Act, subject only to the alteration of any boundary that was the centre of a floor, wall or ceiling becoming the upper surface of that floor, the inner surface of that wall or the under surface of that ceiling as the case may be.
26Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears[,] affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable prior to the repeal: Interpretation Act 1984, s 37(1)(c). The new Act does not show a clear intention to take away the estate or interest of the proprietor of a lot under the old Act, except that where a lot under the old Act had any boundary that was the centre of a floor, wall, or ceiling, that boundary is altered to be the upper surface of that floor, the inner surface of that wall or the under surface of that ceiling as the case may be. Indeed, the transitional provisions of the new Act expressly preserve the estate or interest of a proprietor in a lot under the old Act.
The present case
Attached to these reasons for decision is a copy of the following pages of the registered Strata Plan for the eighth level residential scheme the subject of these proceedings. The first page of the strata plan is (Annexure A), the Certificate of the Local Authority and Sheet 1 of the Strata Plan is (Annexure B), Sheets 2 and 3 of the Strata Plan are (Annexure C), Sheets 4 and 5 of the Strata Plan are (Annexure D), Sheets 6 and 7 of the Strata Plan are (Annexure E) and Sheet 8 of the Strata Plan is (Annexure F). Unit No 24 is clearly marked on Annexure E.
In all of the units there is an area marked 'Balcony' which has two hard lines and two broken lines surrounding it. The area marked 'Balcony' and the interior of the lot is linked by a 'vinculum', as described earlier. There is also an area marked 'Common' on each of the plans. The only access to the areas marked 'Balcony' are through the interior of the units.
At one of the directions hearing, the Tribunal clearly raised with the parties that the measurements of the lots could be a critical element in dealing with the matter.
In reference to the Tribunal's comments in this regard, the applicant in its submissions of 8 May 2008 stated:
It has been suggested that the area of Lot 24 (900 square feet) shown on the strata plan could be used to determine if the balcony was included within that area. However it must be noted that on any measurements of the area of the lot, the boundaries of 900 square feet area extended to the centre planes of the external walls of Lot 24 and to the centre plane of the wall which is Lot 24 and the adjacent Lot 21. Some allowance must be made for the inclusion of the inner half of those walls in computing the area of 900 square feet.
On the basis of measurements made by my client, the internal floor area of Lot 24 is approximately 850 square feet, inclusive of the balcony area. He advises that if the balcony area is excluded, the area of his Lot 24 would be decreased by approximately 26%.
The respondent in its later submissions made no comment in respect of the measurements. It has not contradicted the applicant's measurements nor has the respondent offered any measurements of its own.
Although the measurements given by the applicant do not appear to have been carried out professionally, they have not been disputed or an alternative put forward and the Tribunal is therefore left with only the applicant's measurements and in the circumstances accepts them to be at least reasonably accurate.
The Tribunal adopts and applies the reasoning of the Court of Appeal in Jordan v Van Schoubroeck, however in the present case the finding is further strengthened by the fact that the line between the interior of the applicant's lot and the balcony is a broken line rather than an unbroken one as in Jordan v Van Schoubroeck.
At [16] of Jordan v Van Schoubroeck, the Court of Appeal spoke of an irresistible inference that the balconies in that case formed part of each lot, and that inference was confirmed by reason of the measurement of the units undertaken on behalf of the appellant in that case.
In the present case, the Tribunal is of a view that there is a similar inference that the area of the balcony forms part of the lot. The fact that the internal boundaries of the balcony are formed by a broken line, and that a particular area on each floor is marked common and the balcony is not so marked, all support the same conclusion.
Furthermore, the only measurements before the Tribunal appear to confirm that position.
In all the circumstances, therefore, the Tribunal finds that in the present case the balcony forms part of the applicant's lot and, having found that the balcony of Unit 24 is part of the lot, the second issue identified in the introduction falls away.
Orders
The Tribunal will accordingly issue orders as follows:
1.The area in respect of which the application is brought is part of the applicant's lot and not part of common property.
2.No order pursuant to s 85(a) of the Strata Titles Act 1985 (WA) is required.
3.The application is dismissed.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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