HUSIC and BIANCUZZO - [2009] WASAT 192

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: HUSIC and BIANCUZZO [2009] WASAT 192

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 8 SEPTEMBER 2009

DELIVERED : 1 OCTOBER 2009

FILE NO/S: CC 744 of 2009

BETWEEN: SAMIRA HUSIC
Applicant
AND
FRANK BIANCUZZO
First Respondent
CONVCCIO BIANCUZZO
Second Respondent

Catchwords:

Strata title - Unauthorised erection of a garden wall on common property - Request for wall to remain - Risk of injury - Access to common property - Reasonability of objection to wall - Undivided share in common property - Maintenance and upkeep of common property

Legislation:

Strata Titles Act 1985 (WA), s 35, s 83, s 83(1), s 85, s 94, s 94(2)(a)

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Self-represented
Second Respondent       :     Self-represented

Solicitors:

Applicant:     Self-represented
First Respondent           :     Self-represented
Second Respondent       :     Self-represented

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

Arasi and The Owners of Beverley Court [2005] WASAT 197
Squelch and Brooklea Nominees Pty Ltd [2005] WASAT 198
Stanley and Owners of Waterloo Heights Strata Plan 4192 [2009] WASAT 55
The Owners of Habitat 74 - Strata Plan 222 and Betteridge [2005] WASAT 25

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The dispute concerned a request by Ms Husic for approval to retain a garden wall she erected on common property without permission of the strata company. The wall surrounds part of the area of common property that abuts the back of her lot. She previously used the same common property area for growing vegetables. She admitted that she discussed erecting the wall with Mr Frank Biancuzzo, but that she did not have approval to erect the wall. She now requests, after completion of the wall, for approval to be deemed to have been given by the strata company. She indicated she would be willing to take responsibility to maintain the wall and to release the strata company of any responsibility that may arise from its maintenance or upkeep.
The respondents, who collectively own the remainder of the lots, refused to grant retrospective approval for the wall to remain on common property. The essence of their objection can be summarised that: the wall constitutes a security risk since it is located at the entrance of the scheme; the wall gives de facto exclusive rights to the lot of Ms Husic; the wall, in effect, would increase the value of her property without consideration being paid to the other owners; and children may climb on the wall and injure themselves with possible claims against the strata company scheme.
The Tribunal found that, unreasonable as the respondents' objection to the wall might seem, Ms Husic did not have approval for it to be constructed and this Tribunal is not empowered to grant her retrospective approval. The Tribunal understood the dilemma of Ms Husic as a first home owner and the cost she incurred to build the wall. The Tribunal also accepted that she acted in good faith and in ignorance of the complexities of the Strata Titles Act 1985 (WA). But all of these considerations do not obviate the obligation to obtain approval from the strata company for the wall to be erected on common property.
The underlying principle of management and control of common property, according to the Strata Titles Act 1985 (WA), is that each proprietor has an undivided share in common property and that owners must consent to alterations to such common property before it may occur. A proprietor who, without approval, erects a wall on common property therefore runs the risk that they may have to remove it and make good any damage that has been caused to the common property. The concerns raised by the respondents were not unreasonable.
The Tribunal made several attempts to assist the parties to come to an agreement but the matter did not settle.
The Tribunal therefore found that the application had to be dismissed since the wall was erected without approval and there was no basis for the Tribunal to grant retrospective approval.

Issue

The issue in dispute is whether the Tribunal could give Ms Husic retrospective approval for a garden wall she built on common property without approval from the strata company.

Background

The application was lodged on 20 May 2009 pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act). Ms Husic contended that she had oral permission for the wall to be erected and that it would be very unfair to require her to remove it.
A directions hearing was held on 4 June 2009. The proceedings were adjourned to enable Ms Husic to meet on site with Mr Convccio Biancuzzo in an attempt to settle the dispute. A further directions hearing was held on 23 July 2009 and the matter set down for a hearing.
The strata company was not ordered to respond to the application on grounds that Mr Frank Biancuzzo and Mr Convccio Biancuzzo were the proprietors of all the remaining units, with Mr Frank Biancuzzo being the owner of four lots and Mr Convccio Biancuzzo being the owner of one lot. They were both aware of the proceedings and given an opportunity to make submissions. All three parties made written submissions and gave evidence at the hearing.
Although the matter was set down for a hearing, the Tribunal continued to encourage the parties to come to an amicable arrangement. Even after the conclusion of the hearing, the Tribunal reconvened the parties following a letter that was sent by Mr Frank Biancuzzo in which he suggested a settlement might be possible. All attempts to settle the dispute failed.
The hearing took place on 8 September 2009. The hearing was preceded with an on-site inspection. All three parties were present at the inspection.
The strata scheme comprises six lots and was registered on 22 March 1988. Ms Husic is the proprietor of Lot 1, Mr Frank Biancuzzo is the owner of Lot 2, Lot 3, Lot 5 and Lot 6 and Mr Convccio Biancuzzo is the proprietor of Lot 4. It is agreed that the wall, the subject of the proceedings, is located on common property.

Statutory framework

The application is brought under s 83(1) of the ST Act, which provides as follows:
The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company.
There is no dispute that the wall was erected on common property and that no written approval had been given by the strata company prior to the erection thereof.

Submissions by the parties

Submissions were received from each of the three parties and they gave evidence during the hearing.
The submissions and evidence can be summarised as follows.
Ms Husic contended as follows:
•She is a first home buyer, an immigrant and was not aware of the complexities of the ST Act.
•She discussed the possibility of erecting a wall with Mr Frank Biancuzzo and he said it was fine but she had to submit a plan to him. She thought it would be in order to go ahead and build the wall.
•The wall does not cause a nuisance or obstruction. The traffic can flow around it and it presents no bigger traffic risk than in any strata scheme where there are walls around garden areas.
•She is willing to accept a by-law that would require from her to maintain and repair the wall and to insure it in the event that damage or injury is caused;
•The wall constitutes an asset to the strata company and it is structurally sound. The local council has indicated that it has no objection to the wall remaining provided that the strata company approves it.
•The scheme has not had any strata company meetings and, as a result, there was nobody that she could have applied to for the wall to be erected.
The submissions and evidence of the two respondents can be summarised as follows:
•The wall is built on common property and no approval was given for it to be erected. Mr Frank Biancuzzo explicitly said to Ms Husic that she had to present him with a plan for consideration.
•All proprietors have an undivided share in common property and one owner cannot claim a part of common property for their personal use and benefit by erecting a wall on it.
•The wall would in effect add value to the property of Ms Husic since it creates an area of de facto exclusive use.
•The wall would in future require repair and maintenance and that would be for the account of the strata company.
•The wall constitutes a potential risk in that it restricts the view of vehicles entering and exiting the scheme. It may also cause injury if children climb onto it and fall off it.

Consideration

The underlying principle of management and control of common property according to the ST Act is that each proprietor has an undivided share in common property and that owners must collectively consent to alterations to such common property before it may occur. This is in recognition that the strata company is responsible for the maintenance and control of common property (s 35 of the ST Act) on behalf of all proprietors. Although the strata company in this scheme has not formally met, it has been discharging its duties in regard to common property, for example, through tending to gardens, paying insurance etc.
The ST Act contains several provisions that allow a proprietor to seek approval to use common property, for example by registration of an exclusive use by-law, by being granted a licence to use or by obtaining approval to alter common property (Stanley and Owners of Waterloo Heights Strata Plan 4192 [2009] WASAT 55 at [42]).
A proprietor who refuses or fails to seek approval from fellow owners by installing a structure on common property without their approval, runs the risk that it may have to be removed. Ms Husic may have been completely ignorant of the provisions of the ST Act and she may have been frustrated that no strata company meetings had been called, but that does not give her the right to erect a structure on common property without approval. If she were of the view that approval was unreasonably withheld or that the strata company refused to consider her proposal, she could have approached the Tribunal prior to the building of the wall.
As referred to above, Ms Husic could seek relief pursuant to s 83(1), s 85 or s 94 of the ST Act. The Tribunal will briefly consider the applicability of each of these sections to the matter in dispute.
In s 83(1), the ST Act clothes the Tribunal with a discretionary power to determine if an order ought to be made under s 83(1) of the ST Act. Section 83(1) provides that the Tribunal 'may … make an order …' Such a discretion must, however, be exercised judicially and within the context of the ST Act and in consideration of other decisions handed down by the Tribunal. Refer in this regard to the matter of Arasi and The Owners of Beverley Court [2005] WASAT 197 at 9 - 10.
In the matter of The Owners of Habitat 74 - Strata Plan 222 and Betteridge [2005] WASAT 25 (at [47]), the Tribunal ordered an airconditioner that was installed without approval on common property to be removed on the following grounds:
Such unauthorised use of common property may not only impact on the value of individual lots, it may also have serious consequences for the strata company - for example insurance liability, health and security issues, ability to undertake maintenance and calculation of levies.
A similar approach was taken in the matter of Squelch and Brooklea Nominees Pty Ltd [2005] WASAT 198 in which the Tribunal found (at [34]) that it was:
… satisfied that the applicant[s] have shown (a) the respondent installed the airconditioner without authorisation, (b) the air-conditioner is causing the applicants ongoing discomfort due to the noise and vibration while it operates and (c) the applicants are entitled to relief by the air-conditioner being removed.
In the above referred to proceedings, the applications were brought by the strata company. In the matter currently before the Tribunal, it is Ms Husic who seeks retrospective approval for the wall to remain. Section 83 does not provide the Tribunal with the discretion to grant such relief. Section 83(1) of the ST Act provides for dealing with disputes of a general nature. The respondents could have brought an application pursuant to s 83(1) for the wall to be removed, but Ms Husic cannot rely on s 83(1) for retrospective approval to be granted. There are specific sections of the ST Act that provide for a proprietor to seek approval for the use and enjoyment of common property. The Tribunal finds, therefore, that the application for relief under s 83(1) of the ST Act should be dismissed.
This brings us to s 85 of the ST Act. Section 85 envisages that a proprietor must seek approval from the strata company for the alteration of common property prior to the work being done, and if the approval is withheld 'unreasonably' that the Tribunal may grant approval. An application for such relief must be lodged with the Tribunal prior to the alteration to common property taking effect.
Ms Husic did not apply for approval from the strata company prior to building the wall. She discussed with Mr Frank Biancuzzo informally that she would like to build a wall but he told her that she had to submit to him a plan for consideration. She went ahead and built the wall without submitting a plan to the other proprietors and without approval of the local authority.
Section 85 does not offer to the Tribunal the discretion to approve retrospectively an alteration that was erected without approval of the strata company. Ms Husic's application must therefore fail on this ground.
Even if the Tribunal had the discretion to approve an alteration retrospectively pursuant to s 85 of the ST Act, the Tribunal must first consider if the refusal of the strata company to approve the alteration was 'unreasonable'.
In these proceedings, the Tribunal is satisfied that the refusal to approve the wall was not unreasonable. The Tribunal reaches this conclusion on the following basis:
•The Tribunal must show due regard to the way in which a strata company wishes to deal with common property. The Tribunal cannot impose its views on the mere fact that it may come to a different decision than the strata company. It must be satisfied that the strata company, in refusing to approve the wall, acted unreasonably.
•The Tribunal accepts that the respondents were not unreasonable when they were concerned at the additional liabilities the wall might bring unto the strata company.
•The Tribunal accepts that the respondents were not unreasonable when they expressed concerns that the line of sight in the access way in and out of the scheme would in part be diminished by the wall.
•The Tribunal accepts that the respondents were not unreasonable when they contended that the wall adds value to the lot of Ms Husic and that it creates de facto exclusive use of an area of common property without any benefit arising for the other proprietors.
•The Tribunal accepts that the respondents were not unreasonable when they said they wish the areas of common property to remain as it currently is. This view may change in future with other proprietors, but for now, the Tribunal accepts that the respondents were not unreasonable in refusing to grant permission for the wall to remain.
•The Tribunal accepts that Ms Husic acted in good faith and with a lack of knowledge but, unfortunately, that is not sufficient to show that the respondents are unreasonable in their refusal for the wall to remain.
The Tribunal therefore finds that even if it had the discretion to grant retrospective approval pursuant to s 85 of the ST Act, it is not satisfied that the respondents were unreasonable in their refusal to grant approval for the wall to remain.
The final section that may grant relief to Ms Husic is s 94 of the ST Act, which allows the use of common property by a proprietor. The difficulty faced by Ms Husic is that s 94 provides that the Tribunal 'shall not make an order' unless it is satisfied 'that the lot of which the applicant is the proprietor is incapable of reasonable use and enjoyment' unless the order is made (s 94(2)(a) of the ST Act).
In these proceedings there is insufficient evidence to conclude that Ms Husic's lot is 'incapable' of being used without the wall. The wall would no doubt add value to the lot and increase the enjoyment of the lot, but the Tribunal cannot conclude that the lot is 'incapable' of being used without the wall. The application must therefore also fail pursuant to s 94 of the ST Act.
The Tribunal therefore finds that:
1)The wall, the subject of the proceedings, was built on common property without approval of the strata company.
2)Ms Husic is not excused from complying with the ST Act on the basis of her lack of knowledge. In fact, she knew after the discussion with Mr Frank Biancuzzo that she had to submit detailed plans for the wall prior to building it.
3)There is no relief available to Ms Husic under s 83(1); s 85 or s 94 of the ST Act.

Conclusion

The application for retrospective approval for the construction of the wall to be deemed approved should be dismissed.

Orders

The application is dismissed.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER