KILLIGREW and THE OWNERS OF CAMDALE STRATA PLAN 7996
[2005] WASAT 48
•5 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985
CITATION: KILLIGREW and THE OWNERS OF CAMDALE STRATA PLAN 7996 [2005] WASAT 48
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: ON PAPERS
DELIVERED : 5 APRIL 2005
FILE NO/S: CC 111 of 2005
BETWEEN: ANNA JANE KILLIGREW
Applicant
AND
THE OWNERS OF CAMDALE STRATA PLAN 7996
Respondent
Catchwords:
Unauthorised installation of air conditioning unit
Legislation:
State Administrative Tribunal Act 2004 (WA), s 11(1), s 35(1), s 42(1)(8), s 60(2),
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 17(1), S 35(1), S 38(2), s 42(1), s 82(1), s 83(4), s 85, s 94(1), s 77(b)
Result:
1. The application for an interim order in terms of s 82(1) Strata Titles Act is dismissed
2. The application for an order in terms of s 94 Strata Titles Act is dismissed
3. In terms of s 81(3) of the Strata Titles Act the applicant is ordered to remove at her cost within 60 days of the date of this order the air conditioner unit the subject of this application and make good any damage that has been caused to the common property unless the strata company provides written permission for the removal to be delayed until such time as the policy dealing with the installation of air conditioners is finalised
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
DR B DE VILLIERS (MEMBER):
REASONS FOR DECISION
Issue
The applicant is seeking an order in terms of s 94(1) of the Strata Title Act 1985 from the State Administrative Tribunal to grant her a "licence to have fixed and to use the external unit of a split-system air conditioner on the common property". The applicant installed an air conditioner without approval of the respondent and sought approval from the strata company in retrospect. The applicant is also seeking an interim order in terms of s 82(1) to the effect that she does not have to comply with the instruction from the strata company to remove the said air conditioning unit until such time as the primary application has been dealt with.
It is common cause that the applicant installed the system without permission of the strata company or the AGM. The applicant submits that the strata company is unwilling or reluctant to develop a policy that regulates the installation of air conditioners. The respondent submits that the applicant acted unlawfully by installing the system without proper authorisation as required by the Strata Titles Act 1985 ("the Act"), that the respondent is obliged to uphold the provisions of the Act and by-laws and that it had not acted unreasonably in refusing retrospective permission. The respondent also submits that as secretary of the strata company the applicant had a special duty to comply with the legislation.
Applicant and Respondent
The applicant is owner-resident of unit 35 and her address is P.O. Box 3217, Broadway, Nedlands, WA 6009.
The respondent is The Owners of Camdale Strata Plan 7996 of 26 Kingsway, Nedlands, WA 6009.
Submissions were received from the applicant, respondent and several other owners with an interest in the matter.
Application lodged with State Administrative Tribunal
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). The application for relief was lodged in terms of s 77 of the Strata Titles Act, 1985. The applicant certified in terms of s 77B that the strata company had no by-laws to regulate the resolution of a dispute. In exercising its jurisdiction SAT deals with a matter in accordance with the SAT Act and the enabling Act which in this case is the Strata Titles Act, 1985.
In 1985, the 1966 Act was repealed and replaced by the Strata Titles Act 1985 which continues to be the relevant Act.10In these Reasons, unless otherwise specified, all references to sections and Schedules are, respectively, references to sections of and Schedules to the 1985 Act.
The key provisions of the Act of relevance to the application are the following:
Section 17(1)"Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots."
…
Section 35(1)"A strata company shall:
(a)enforce the by-laws;
(b)control and manage the common property for the benefit of all the proprietors"
…
Section 38(2)"Where a proprietor, mortagee in possession, or occupier of a lot fails or neglects to carry out any work on or in relation to that lot required to be carried out by order of a court or tribunal, the strata company may carry out the work specified in the order".
…
Section 42(1) "A strata company may make by-laws, not inconsistent with this Act, for:
…
(c)other matters relating to the management, control, use and enjoyment of the lots and any common property".
…
Section 42(2) "The provisions set out in Schedules 1 and 2 shall be deemed to be by-laws of the strata company and may be amended, repealed or added to by the strata company:
(a)By resolution without dissent in the case of Schedule 1 by-laws;
(b)In accordance with any order of a court or the Strate Administrative Tribunal or any written law; or
(c)In any other case, by special resolution".
…
(8) "Without limiting the generality of any provision of this section other than subsection (1), a strata company may, with the consent in writing of the proprietor of a lot, pursuant to a resolution without dissent make, under this subsection only and not otherwise, a by-law in respect of that lot conferring on that proprietor the exclusive use and enjoyment of, or special privileges in respect of, the common property or any part of it upon such terms and conditions as may be specified."
…
Section 83(4)"Nothing in subsection (1) empowers the State Administrative Tribunal to make an order under that subsection 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 on the strata company by this Act where that power, authority, duty or function may, in accordance with any provision of this Act, only be exercised or performed pursuant to a unanimous resolution, resolution without dissent or a special resolution."
…
Section 85"Where, pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates to has unreasonably refused to consent to a proposal by that proprietor:
(a)to effect alternations to the common property; or
(b)to have carried out repairs to any damage to the common property or any other property of the strata company.
it may make an order that the strata company consent to the proposal."
…
Section 94"(1) Pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal may, subject to this section, order that the applicant, and any other occupier or other resident of the lot of which the applicant is a proprietor, may use specified common property in such a manner, for such purposes, and such terms and conditions, if any, as are specified in the order."
…
"(3) An order under subsection (1), when recorded under section 115, has effect, subject to any order with respect thereto made by a superior court, as if its terms were a by-law."
…
Section 95(1) "Where, pursuant to an application by a proprietor under this section, the State Administrative Tribunal considers that the strata company has unreasonably refused to make a by-law under section 42(8) with respect to any fixture or fitting to be attached to common property, the State Administrative Tribunal may:
(a)by order, exercise the powers conferred on the strata company under section 42(8) with respect to the making of a by-law in relation to the fixture or fitting; and
(b)include among the terms and conditions specified in the by-law and conditions relating to insurance of the fixture or fitting."
By-laws
The Strata Company's by-laws are the "standard" by-laws contained in Sch 1 and 2.
The by-laws provide the following in regard to the application under consideration:
Schedule 1 s1(2) "A proprietor, occupier or other resident of a lot shall:
(a)use and enjoy the common property in such a manner as not unreasonably interfere with the use and enjoyment thereof by other proprietors, occupiers or other residents, or of their visitors;
(b)not use the lot or permit it to be used in such a manner or for such a purpose as causes a nuisance to any occupier of another lot…"
Schedule 2 s13 "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 by-laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before the commencement of the alteration, a written notice describing the proposed alteration."
Schedule 2 s14 "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 the outside that, viewed from the outside of the lot, is not in keeping with the rest of the building."
Applicant submissions
The applicant made a submission on 18 January 2005 that accompanied her application and also made a further supplementary submission on 10 March 2005. Her submissions included photographs of Camdale as well as the newly built neighbouring units on an adjacent block.
The main elements of her submissions can be summarised as follows:
(a)The Camdale units are small with an approximately 35m2 floor area. Her unit is on the top floor and it has little protection against the sun. The roof space gets very hot and her unit which faces east, is exposed to a lot of sun. In summer the inside temperature can reach up to 40C and it retains the heat into the evening and even into following days. A tree that used to shield some sun away from the block had been removed. She requires a healthy environment from the perspective of residing in the unit and also since she does work from home. The applicant contends that she is incapable of reasonable use of her unit due to the heat she suffers.
(b)There is no by-law registered in regard to requirements for the installation of air conditioners and also no minute dealing with such matters in meetings of the Council of Owners or the AGM.
(c)The air conditioner that had been installed is not noisy and is also not adjacent to any other apartment. It keeps with the general appearance of the building. It would not interfere with the rights of any other tenant or owner. Neighbouring units in other blocks have all been fitted with air conditioning systems. Some units of Camdale also have non-authorised material and/or fixtures on their balconies. In the photographs submitted by the applicant the air conditioner can be seen to the side of the balcony of unit 35.
(d)The chronological sequence of events since the installation of the air conditioner in January 2004 were as follows:
i.1 June 2004: Respondent writes to the applicant to notify her that a Council of Owners decision to authorise the installation is required. In the letter it is noted that "as previous applications for Air Conditioners to be installed have resulted in permission not being granted, and as it appears written application was not made to the Council of Owners for this installation and consequently permission has not been given for its installation, it is requested that this matter be referred to a Council of Owners meeting for discussion and resolution to ensure uniformity throughout the building."
ii.8 September 2004: Council of Owners refers the application for respective approval to AGM. The Council felt that the matter required decision by all the owners and therefore fell outside of the jurisdiction of the Council. It is also noted that a "policy should be formulated for such matters…"
iii.19 October 2004: AGM rejects the application to approve the installation. The applicant is requested to remove the air conditioner but she refuses to give such an undertaking. The meeting resolves (13 to 3 votes) to write a letter to the applicant to instruct her to remove the air conditioner within 90 days and for the common wall to be reinstated to its original condition. The meeting subsequently discussed the need for a Policy in regard to air conditioners that would take account of factors such as aesthetics, noise, uniformity, power supply and approval if any by the Subiaco Council. The draft Policy is to be submitted to an Extraordinary General Meeting for consideration.
iv.4 November 2004: Council of Owners discuss various options for dealing with "heat issues" and resolve to develop a policy regarding air conditioners and other options to reduce heat, and submit it to the special general meeting for consideration. Some of the alternative options mentioned are installing insulation in the roof space, whirly-birds in the roof or in the eaves and awnings of the top floor units.
v.23 November 2004: Letter from the chair to the applicant: Council of Owners following the AGM decision, is instructing the applicant to remove air conditioner within 90 days and to make good any damage caused to the common wall.
vi.20 January 2005: Application lodged with State Administrative Tribunal
vii.22 February 2005: The Council of Owners devised a draft policy for installation of air conditioners.
Respondent submissions
The Council of Owners or Strata Company did not make any submissions. However copies of minutes of meetings and correspondence between the Council, Strata Company and applicant were enclosed in submissions made by the applicant and other owners.
Other submissions
Submissions were received from the owners of 18 units. Some owners own multiple units. Of the 18 units, the submissions of 14 were opposed to the application, with 3 in favour and 1 neutral.
The submissions can be summarised as follows:
Mr B Caine (owner unit 24) in his submission undated but received on 16 March 2005 supports the application and raised the following points of relevance: as one of only three owner/occupiers consideration must be given to the personal level of comfort. The units become very hot in summer with temperatures up to 35C. Owners should be allowed to install air conditioners to make their units more habitable. It will also increase the value of the complex.
Ms B Garas (trustee for Garas family trust, owner unit 6) in her submission dated 28 February 2005 supports the application but does not offer any additional motivation and/or reasoning.
Chong S Chia (joint owner unit 4) in her submission dated 15 March 2005 opposing the application raises the following points of relevance: the applicant installed the air conditioner knowing she had no permission to do so, she had declined the instruction by the Council and AGM to remove the air conditioner, her position as secretary of the Council of Owners required additional diligence and compliance with the Act and other alternatives such as a portable air conditioner should have been considered. If no action is take other owners and/or occupiers may follow the precedent. Issues arise in regard of insurance risks of the air conditioner and noise disturbance.
V S Venkatesan (owner units 7, 30 and 36) in his submission dated 14 March 2005 opposing the application raised the following points of relevance: the applicant made no attempt to approach the Council of Owners to obtain their permission for the installation to occur and no notification was given as required by Schedule 2 by-law, s 14. The installation encroaches on the common property, it affects the aesthetics of the building, it undermines uniformity of the building, it leads to increased noise levels, the implications of power supply have not been considered, insurance may be affected and permission may be required from the local council. The AGM considered and rejected the application. The Council of Owners is developing a policy and will report back to an extraordinary general meeting. At the time of installation several other options were under consideration to deal with the heat for example additional insulation on the roof and a ducted system of air conditioning. He mentioned at the time that a stand alone system should also be considered. As member of the Council the applicant had an additional obligation to comply with the instruction by the AGM to remove the air conditioner. The owners are not necessarily against the installation of air conditioners but it has to be done on the basis of a uniform policy that applies to all units.
Mrs R Venkatestan (owner unit 10) in her submission dated 14 March 2005 opposing the application raised the following points of relevance: the air conditioner was installed without permission, the current application is sought to correct something that is wrong but the air conditioner is unattractive and not keeping with the overall appearance of the block, allowing the air conditioner to remain would set a precedent for others to also install external air conditioners without seeking approval and portable air conditioners should have been considered as an alternative. The local council may have to be consulted about requirements for the installation of air conditioners for all the units. As member of the Council of Owners the applicant were aware or should have been aware of legal requirements and should have complied with it. Other owners cannot be blamed for their rejection of the application at the AGM as the system was installed without application. If the applicant does not remove the air conditioner the strata company must be authorised to do it at cost of the applicant.
Mr J Chidlow (owner unit 3) in his submission dated 14 March 2005 opposing the application raised the following points of relevance: The air conditioner was installed without permission and it must be removed. A policy must first be developed that would address heat issues in the block. The unauthorised action only hindered the development of a policy.
Mr GW Burns (owner unit 16, 21 and 26) in his submission dated 10 March 2005 opposing the application raised the following points of relevance: common property was altered without permission and the instruction by the Council and AGM to rectify the situation has been ignored. The applicant has a conflict of interest and should have acted in the interest of all owners as member of the Council. Any ad hoc installation of air conditioners would negatively impact on the aesthetics of the building, undermine uniformity, increase noise levels and put additional demands on the power supply that it may not be capable of handling. The owners are not against air conditioners but everyone has to comply with a policy. There was no need for the applicant to bring the application to the State Administrative Tribunal as the Council is in the process of developing a policy. To uphold the application would set a very concerning precedent, not only for Camdale but also for strata units across the state.
Mrs J Bolouri (owner unit 2) in her submission dated 15 March 2005 opposing the application raised the following points of relevance: the units are very small and noise is easily transmitted. The units cannot be compared with the new developments in the area and any reference to the air conditioning systems in the newly built units is therefore not relevant. The application circumvents the extraordinary general meeting where a policy for air conditioners will be discussed. Several options are being considered such as improved insulation of the roof, solar coating on the windows and insulted curtains. Previous applications to install similar systems had been refused. The external air conditioners would increase noise and impact on the ability of persons to use their balconies or to leave the sliding doors open. The AGM did consider the applicant's application and voted against it. The owners are not necessarily against air conditioners but want to develop a general policy before installation occurs. The applicant has been instructed to remove the air conditioner and make good any damage that has been caused. The applicant has been an owner for many years and knows the rules regarding common property.
Mr M Quinlivan (owner unit 23) in his submission undated but received on 16 March 2005 opposes the application and raised the following points of relevance: his unit is directly below the unit of the applicant and the air conditioner "seriously disrupts" the use of the balcony. The building would become an eyesore if every owner were to install a similar air conditioner. The applicant had no authorisation to install it.
Mr and Mrs Rooke (owners of unspecified unit) in their submission dated 15 March 2005 oppose the application and make the following points of relevance: the installation occurred without authorisation and the applicant failed to give effect to the directive to remove the air conditioner and to reinstate the common wall. The unregulated installation of air conditioners may in itself produce heat and noise. The power supply may be incapable of dealing with demand if all units were to install air conditioners. Unregulated installation of air conditioners will deface the building.
Ms K McDonough (owner of unit 20) in her submission dated 9 March 2005 oppose the application and make the following points of relevance: the Council of Owners have acted reasonably as the air conditioner is "very unattractive" and if it is allowed to remain it would set a precedent for other units to install air conditioners without following the approvals process. Portable air conditioners should have been considered as an alternative. While the strata company must act reasonably, the applicant acted unreasonably by making the installation knowing that permission was required. The installation must be removed as per the instruction of the AGM and Council of Owners.
Dr I Bytheway and Ms B Burns (joint owners unit 9) in their submission dated 15 March 2005 oppose the application and raise the following points of relevance: the applicant should comply with the directives given by the owners and remove the unlawfully installed air conditioning unit and fix the common wall. The alteration of the common property was undertaken without complying with the Act. The request to have the installation approved was rejected by the AGM. The instruction to remove it has been ignored. "The issue is simple: Dr Killigrew altered common property contrary to the Strata Titles Act of 1985, Schedule 2, By law 14 and against the wishes of the owners, and should be required to correct the matter."
Mr and Mrs Stuckey (owners unit 31) in their submission dated 14 March 2005 do not support or oppose the application but make the following points of relevance: the unit does become "extremely uncomfortable" in summer and since the removal of the tree it has become "unbearable". The situation is such that it is not merely a matter of comfort but a health issue. The AGM instructed the Council to develop a policy regarding air conditioners. Once the policy is formulated, all owners, including the applicant, have to comply therewith. Roof insulation should also be installed.
Consideration
The applicant is requesting that I make an order in terms of s 94(1) to grant her the use of the common property for purposes of retaining an air conditioner that was installed without permission. The applicant installed the air conditioner and subsequently applied for permission after it appeared that the strata company might instruct her to remove it. Her application for permission was considered by the Council of Owners and referred to the AGM for consideration. The AGM refused permission and instructed her to remove the air conditioner and make good any damage that had been caused. The applicant contends that the respondent acted unreasonably by refusing her permission and is preventing her from the reasonable use of her unit.
The power granted to SAT in s 94 is to be exercised with great circumspect and caution. The legislator could not have intended the normal decision-making processes as described in the rest of the Act to be circumvented by a reliance on s 94 – refer for example to the provisions of s 83(4). An order under s 94 can only be give if the proprietor is, given all factors, "incapable of reasonable use and enjoyment" of a unit. The mere rejection of an application for use of common property by the applicant cannot in itself be taken as fulfilling the requirements of s 94(2). Section 94 can therefore not be used to escape or "opt out" of approvals processes that regulate the approval process in Camdale.
In considering the submissions I have to take into account not only the provisions of s 94 but also other relevant provisions of the Act. I have quoted above the most important provisions that have bearing on this application. In summary I have to be satisfied of the following requirements of the Act before I can make an order as requested by the applicant:
(a)Section 35(1) requires that I take into account the obligations of the respondent to enforce the by-laws and control the common property for the benefit of all owners. I am not convinced that the strata company has acted unreasonably in considering the application by the applicant. On the contrary. There is a strong argument that it was in fact the applicant who acted unreasonably by installing the air conditioner without permission, without even seeking permission prior to the installation. One would have expected her, as member of the Council of Owners, to be particularly vigilant in upholding the Act and by-laws. All proprietors and occupants of the complex are expected comply with the Act and by-laws.
(b)Section 42(1) enables the strata company to make by-laws for the use of common property. I must therefore take account of the fact that the respondent could have made by-laws if it wanted to do so to regulate the installation of air conditioners. In the absence of a specific policy or by-law dealing with the installation of air conditioners, the normal decision-making and approvals processes as set out by the Act and by-laws have to be complied with. I note that the respondent is in a process of developing a policy that would be submitted to owners for a decision. In the absence of such a policy, individual owners remain subject to the approvals provisions of the Act and cannot use common property in a manner they seem fit.
(c)Section 42(8) enables the strata company to confer certain special rights on a proprietor for the use of common property and it may impose such conditions and terms at it may specify. S95(1) hence empowers me to make certain orders if I am of the view that the strata company has "unreasonably refused" to make a by-law under s42(8). There is no obligation on a strata company to grant such special rights and even when it does so, it has to take into account the possible implications the special rights may have on other owners – for example in regard to insurance, maintenance, upkeeping, electricity use, etc. I therefore regard it as reasonable for the respondent to be vigilant when considering an application that may deface the building, bring about possible additional insurance risks, may require permission from the local council, may increase electricity consumption and other relevant factors. The applicant did seek retrospective permission for the installation to be approved. Such permission was refused overwhelmingly by the owners at an AGM. The submissions received in response to this application were again overwhelmingly opposed to the order requested. The fact that an application for use of common property to the strata company is refused, does not in itself mean that the decision is unreasonable or that the provisions of s94 can be relied on.
I note that only a few of the proprietors actually reside in the complex. However that does not impact on their right to make decisions in a manner set out in the Act. I also note that the owner and occupier of unit 23 Mr Quinlivan who is immediately below the applicant's unit, has objected to the application.
(d)Section 85 enables me to make certain orders for the use of common property if I am satisfied that the strata company has "unreasonably" refused an application. Although the applicant does not base her application on the provisions of s85 I have to take all relevant provisions of the Act into account. I have not been provided with any convincing submissions to demonstrate that the respondent has acted unreasonably. The applicant did not show any ongoing process of application and refusals prior to her installing the air conditioner. She does not demonstrate how the issue of heating has been on the agenda for a long period of time with no decision being made or with the respondent acting unreasonably. She also does not show whether she attempted alternatives such as a mobile air conditioner and that it did not have the desired effect. I can only draw a conclusion on the alleged unreasonableness of the respondent if indeed there is sufficient information to demonstrate it. The refusal by the respondent to approve an installation ex post facto therefore does not appear to be unreasonable.
(e)Section 94 requires that I must be satisfied that that the proprietor is "incapable of the reasonable use and enjoyment" of her unit unless the order is made and that the strata company has refused to grant permission to enable her to "reasonably" use and enjoy her lot. Although I have a great deal of sympathy with the applicant in regard to the problem of heat, I note that although she has been in occupation of the unit since 1999, she did not provide me with submissions or a "paper trail" of ongoing efforts to address the situation. She does not indicate that all other options have failed and she brought the application in full knowledge that the respondent has been instructed by the AGM to consider alternatives and develop a policy for consideration by a special meeting of owners. I am therefore not convinced that the installation of this specific air conditioner by the applicant is so crucial that she is "incapable of the reasonable use and enjoyment" of the unit "unless the order is made". It appears from the submissions that the respondent is in a process of addressing the issue of heat and it may be that the outcome is such that other alternatives could be as effective as the installation of individual air conditioning units or in fact that individual air conditioners of the type installed by the applicant is accepted as the way to proceed. I am however not in a position to predetermine the outcome of the decision-making process of the owners. I have already commented above on the reasonableness or lack thereof of the actions of both the applicant and respondent.
(f)Schedule 1 by-law 1(2) requires that a proprietor uses common property in a manner that does not "unreasonably interfere with the use and enjoyment thereof by other proprietors…" and that a lot may not be used to create a "nuisance" to others. The installation of an air conditioner with part of it protruding to the external area of the complex in close proximity to the balcony of another proprietor, falls within the actions that the by-law seeks to regulate. As pointed out in the submissions, it is not merely the noise of the air conditioner that is an issue, but also the fact that is does impact on the external appearance and design of the building. One need only consider an extreme case where each proprietor unilaterally install their own style air conditioner, to realise why it is so important for this by-law to be complied with.
(g)Schedule 2 by-law 13 prohibits a proprietor from altering the structure of a lot "except as may be permitted and provided under the Act and by-laws" and shall not commence with such works unless at least 14 days written notice is given to the strata company prior to the works commencing. It is common cause that the applicant failed to comply with these requirements.
(h)Schedule 2 by-law 14 prohibits a proprietor to maintain anything within the lot that is visible from the outside and when viewed is not "in keeping with the rest of the building" unless the strata company consents in writing. It is common cause that the applicant failed to comply with this requirement.
Finding
I find that as set out above, the applicant has:
(a)acted in breach of the Strata Titles Act and by-laws by installing the air conditioner the subject of this application;
(b)failed to demonstrate that the respondent has acted unreasonably;
(c)failed to demonstrate that relief for an interim order as offered by s 82(1) should be made available to her; and
(d)failed to demonstrate that the relief offered by s 94 should be made available to her.
I note that the strata company is in the process of developing a policy to deal with the heat issues. The adoption of such a policy may assist the parties in resolving internal disputes amicably.
Orders
The application for an interim order in terms of s 82(1) Strata Titles Act is dismissed.
The application for an order in terms of s 94 Strata Titles Act is dismissed.
In terms of s 81(3) of the Strata Titles Act the applicant is ordered to remove at her cost within 60 days of the date of this order the air conditioner unit the subject of this application and make good any damage that has been caused to the common property unless the strata company provides written permission for the removal to be delayed until such time as the policy dealing with the installation of air conditioners is finalised.
I certify that this and the preceding 18 pages comprise the reasons for judgment of the State Administrative Tribunal
___________________________
B De Villiers
Member
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