Letizia and Owners of Fraser Court On Strata Plan 8456 - [2009] WASAT 103

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: LETIZIA and OWNERS OF FRASER COURT ON STRATA PLAN 8456 [2009] WASAT 103

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 19 MAY 2009

DELIVERED : 22 MAY 2009

FILE NO/S: CC 434 of 2009

BETWEEN: JACEA LETIZIA
Applicant
AND
OWNERS OF FRASER COURT ON STRATA PLAN 8456
Respondent

Catchwords:

Strata title - Unreasonable refusal to approve alteration to common property - Application to remove part of common property wall for purposes of access to new parking area on lot - Application to remove part of common property wall for purpose of pedestrian gate onto lot - Application to use part of common property garden bed for purposes of vehicular access - Inconsistent standards within scheme

Legislation:

Strata Titles Act 1985 (WA), s 79(2), s 85, s 103F(1)

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Maber and The Owners Of Strata Plan 11391 [2007] WASAT 99 (S)
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The dispute concerned the refusal of the strata company to consent to a proposal by Ms Letizia to alter common property in a manner that would provide her access for an additional car bay in her lot and a pedestrian gate into her lot. She proposed to remove part of the common property wall as well as part of the garden bed for the purpose of vehicular and personal access. She contended that the refusal of the strata company was unreasonable in light of the other inconsistent developments and alterations in the scheme.
The strata company refused to give approval for the proposed development. The main concerns raised by Mr Hugh Brown and several owners during the hearing were that the proposal is inconsistent with the design of the scheme, it would be aesthetically unpleasing, it would use part of the garden of a lot as a parking bay, the measurements provided by Ms Letizia were not accurate and the right of the owners to determine the use of common property must be respected.
The Tribunal emphasised in its reasons that 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 can therefore not approach the part of common property that it wants to use as if other owners do not have an interest therein. The Strata Titles Act 1985 (WA) therefore provides very strong protection of the rights of all proprietors to be consulted when alterations of common property are considered.
The strong protection of a proprietor's right of refusal to allow works on common property is, however, limited by the provisions of s 85 of the Strata Titles Act 1985 (WA), which give the Tribunal an oversight of the merit of any refusal to allow works on common property.
The Strata Titles Act 1985 (WA), through s 85, provides that the Tribunal can set aside a refusal by a strata company to consent to certain works on common property if the Tribunal considers that an application to effect alterations to common property or to repair common property has been refused 'unreasonably'. It was therefore incumbent on Ms Letizia to demonstrate the unreasonableness of the strata company's refusal.
The Tribunal conducted an on‑site inspection to assist it to better understand the issues put to it during submissions and evidence.
The Tribunal found that the application had to be dismissed on essentially three grounds. Firstly, the proposed development would alter the visual appearance of the scheme in a manner that would impact negatively on the other lots; secondly, the strata company was acting within its rights to ensure that developments within the scheme are consistent with the overall design of the scheme; thirdly, the effect of the application would be to provide for another parking bay in the lot of Ms Letizia and this would diminish the value of other lots and create an impression of a parking area rather than garden and parking areas. The strata company therefore did not act unreasonably when it withheld its decision.
The Tribunal is therefore satisfied that the strata company, which has to manage and control common property with the interests of all proprietors in mind, did not act unreasonably by refusing the application.
The application was therefore dismissed.

Issue

The issue in dispute is whether the refusal of the strata company to approve of an alteration of a common property garden wall to provide vehicular and pedestrian access to a lot was unreasonable.

Background

The application was lodged on 24 March 2009, pursuant to s 103F(1) of the Strata Titles Act 1985 (WA) (ST Act). Leave was granted on 9 April 2009 for the application to be amended to be brought under s 85 of the ST Act after it appeared that Ms Letizia was dissatisfied with the refusal of the strata company to approve a proposal she submitted for the alteration of common property. Ms Letizia contended that the strata company had unreasonably refused her application to remove a part of the common property garden wall for the purpose of vehicular access and for pedestrians to her lot.
A directions hearing was held on 9 April 2009, at which programming orders were made for the matter to be heard. At the directions hearing leave was granted to Ms Letizia to withdraw several others parts of her application. The only matter that remained was the issue in dispute in these proceedings.
The Tribunal also made orders for the application and programming orders to be served on the persons referred to in s 79(2) of the ST Act. Ms Letizia had to file and give to the strata company by no later than 1 May 2009 the reasons why she believed the decision was unreasonable. The strata company and other notified persons were given an opportunity to make submissions in regard to the application.
Several written submissions were received. The following persons made written submissions: Ms Kay (unit 10); Ms Herren (unit 5); Mr Taylor (unit 7); Ms Steward (unit 9); Ms Pannotitz (unit 1); Mr Brown (unit 4) and Ms Letizia (unit 2).
The hearing took place on 19 May 2009. The hearing commenced with a site inspection in order for the Tribunal to better understand the submissions put to it. The Tribunal was also assisted by the provision of photographs of the proposed alterations. At the hearing, the evidence was heard of Ms Letizia, Mr Brown and a very brief submission by Ms Harris.

Statutory framework

The application is brought under s 85 of the ST Act, which provides as follows:
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 has unreasonably refused to consent to a proposal by that proprietor ‑
(a)to effect alterations 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.
There is no dispute that the wall and garden bed, the subject of the application, form part of common property.

Submissions by the parties

The submissions and evidence of the parties can be summarised as follows:
Ms Letizia and Ms Kaye supported the application. Ms Kaye merely commented that she had 'no problems' with the proposal. Her email was directed to Ms Letizia and could not really be described as a 'submission' but the Tribunal nevertheless took it into account. Ms Letizia's submission and evidence can be summarised as follows:
•It would be to the benefit of the entire scheme if an additional parking area (in her lot) is created;
•There are several other examples in the scheme where common property has been altered in a manner that affects the visual appearance or aesthetics of the scheme;
• The scheme does not appear uniform ‑ refer to the different colours on external walls, alterations to gardens, alterations to garages, different covers for shade and so forth;
•Pedestrian access through a common property wall has been granted to unit 6;
•The concerns with safety are exacerbated and can be addressed;
•The correct measurements for the vehicle gate can be provided; and
•Why should the stricter approach commence with the rejection of her application?
The other submissions were all against the proposed development. The reasons raised by the persons who objected to the application can be summarised as follows:
•The plans submitted by Ms Letizia did not contain the correct measurements;
•Providing for another parking bay on her lot would create the impression of a row of cars rather than parking bays separated by gardens;
•The garden bed that will suffer contains plants and shrubs that beautify the driveway area;
•The size of the proposed parking area would be such that a large car would not allow the gates to properly close;
•Although there has been some inconsistency in the scheme, it nevertheless continues to present a uniform appearance;
•The strata council has been doing its best to bring all developments in conformity with the scheme. It is also acting within its right to stop new developments from using common property in a way that would undermine the aesthetics or visual appearance of the scheme; and
•The strata council has been making attempts to get 'some control' over alterations back since owners had previously done what they wanted to. There is no discrimination against Ms Letizia.

Consideration: Has approval been unreasonably withheld?

In considering the reasonableness of the decision of the strata company to reject Ms Letizia's application, the Tribunal must take into account the interests of Ms Letizia and the other owners. Although the common property wall is situated on the boundary of her lot, each proprietor has an interest in what happens to it since it forms part of common property. It is ideal for the interests of all concerned to be harmonised but that is not always possible.
Ms Letizia emphasised that the impact of what she proposes to do would be minimal and that it would not be visible from the road. She further refers to the many other alterations that have occurred over the years to the scheme and contends that what she proposes to do does not deviate from the overall scheme to such an extent that it should be refused.
The ST Act recognises that each proprietor has an undivided share, in proportion to its lot entitlement, in common property. Being an owner of common property, each proprietor is entitled to be involved in any decision affecting the common property. Hence the requirement of the ST Act that a resolution without dissent be passed before certain acts may occur.
The Tribunal explained to the parties during the hearing that the test of 'unreasonableness' is not merely whether the Tribunal has a different opinion to that of the majority of the strata company. The Tribunal must be satisfied that their decision to refuse an application was 'unreasonable' and that is a much more stringent test than mere difference of opinion. Ms Letizia has to show therefore that the refusal was indeed unreasonable and Mr Brown, for the strata company, has to show it was reasonable.
Section 85 of the ST Act empowers the Tribunal to consider the reasons for refusal of the strata company to allow alterations to common property and to determine whether such reasons were unreasonable. The Tribunal must as a general principle be cautious and slow to intervene in the way in which proprietors manage a strata company and make decisions regarding the use of common property. All proprietors own common property and they have the right to deal with it and to manage it in accordance to their discretion and interests. The strata company has autonomy to make decisions in a manner that it believes serve the interests of the scheme. The way in which different strata schemes in Western Australia manage their common property may differ.
At the same time, however, Parliament clothed the Tribunal with the power to consider the merit of a refusal of a strata company when it comes to making alterations to common property, in order to protect an individual proprietor against the unreasonable refusal by a strata company.
The ST Act does not define what is meant by 'unreasonable'. The Macquarie Concise Dictionary (Revised Third Edition, Macquarie University, 2004) defines 'unreasonable' as 'not agreeable to or willing to listen to reason' and 'not based on or in accordance with reason or sound judgement'. The mere fact that the Tribunal may disagree with a decision of a strata company, or that the Tribunal may have come to another conclusion on the same facts, does not, in itself, mean the decision of the strata company can be termed 'unreasonable'. If the decision is based on sound judgment, if opportunity was given for all views to be heard, if the strata company can show that it took proper account of all the facts, and if it can be shown that the individual and collective interests were taken into account, the Tribunal would generally be hesitant to impose its views on a strata company.
In the matter of Maber and The Owners Of Strata Plan 11391 [2007] WASAT 99 (S), at [26], the Tribunal made the following observation in regard to what constitutes 'unreasonable refusal':
There is no guidance under the ST Act as to what amounts to unreasonable refusal. All lot owners have a proprietary interest in common property as tenants in common. There is a requirement under s 35(1)(b) of the ST Act that common property be managed for the benefit of all proprietors. What amounts to unreasonable refusal will depend on the facts of each case. It must, however, be judged in its legislative context ... Therefore, as long as the reasons for refusal by the respondent are cogent when judged in this context, this Tribunal should be slow to find there has been an unreasonable refusal. (Tribunal emphasis)
In the matter of The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1, the Tribunal upheld the refusal of the strata company to refuse approval to install an air‑conditioner. The Tribunal summarised its review powers as follows:
The State Administrative Tribunal outlined the consistent approach taken in considering such applications that the management of a strata company be left to the strata company and that the State Administrative Tribunal should not too readily impose its own views of what is unreasonable. It was necessary to balance interests and views in order to reach a subjective view of whether a decision is unreasonable. It was stated that if the balance is delicately poised it will not be possible to conclude that the decision is unreasonable because it is possible for persons acting reasonably to come to opposite conclusions on the same set of facts. The task was for the State Administrative Tribunal to assess whether there was good sense or logic to support the dissenting view. [4] (Tribunal emphasis)
As said above, the test for the Tribunal to apply is not merely if it may come to a different conclusion in regard to the same facts. It is obvious that many decisions are made within strata schemes where an observer may come to a different conclusion. But having a difference of opinion is not sufficient to overrule the decision of a strata company on the ground of 'unreasonableness'.
The Tribunal must apply a more stringent test, namely, that it must be satisfied that the refusal of the strata company was 'unreasonable'.
In these proceedings, both parties explained their respective positions. Only one very brief email, which was addressed to Ms Letizia when she originally made the proposal, was received in support of the application, while five detailed submissions were against it. It is clear to the Tribunal that those owners who oppose the proposal are not acting out of malice but have the interests of the scheme at heart. The reasons for them objecting are well founded, properly motivated and clearly have merit.
The Tribunal finds that the rationale given by the strata company to refuse the proposal cannot be classified as 'unreasonable'. The Tribunal makes this finding for the following reasons:
(a)The Tribunal must respect the autonomy of owners to make decisions about the management and control of common property. Each owner has an undivided share in common property and if they refuse a common property wall to be demolished and a garden bed to be converted into an on-ramp for parking, that would only benefit one owner, the Tribunal must be cautious to intervene.
(b)Although the scheme does show signs of inconsistent developments as pointed out by Ms Letizia, overall the scheme continues to present well and uniform. Demolishing part of the internal garden wall and replacing it with a vehicle and pedestrian gate would diminish the appearance and cohesiveness of the overall structure even if it is not visible from the street. It would be visible from at least five other lots.
(c)The garden bed serves a proper purpose in its current state by breaking the lines of the garden walls and by beautifying the scheme. By replacing the garden bed with an entrance to a parking area, the scheme would lose its natural and pleasant appearance.
(d)The garden wall which is intended to be removed is symmetrical with the walls on both sides and opposite the lot. The Tribunal accepts the desire of the strata company to retain the symmetry. If part of the wall is removed and replaced with gates, it would undermine the symmetry.
(e)If the lot is used as a parking area, it would mean, as argued by the strata company, that a garden area would be replaced with a parking area. That would impact on the visual attractiveness of the scheme and impact on the view from the units that overlook the backyard. Currently their view is of a garden bed and a modern garden area. That would be replaced by a gate and a parking area. The Tribunal understands the concerns expressed by the strata company in this regard.
(f)The only benefit that would flow from an approval of the proposal would be for Ms Letizia to gain an additional parking spot. There is no benefit for the other owners. The problem is that Ms Letizia brought the lack of parking space unto herself by enclosing her garage. As a result of her own action, she reduced her parking space from two to one. With this application she seeks to increase her parking space again. It appears that her action, rather than those of the strata company, is motivated by self-interest and is unreasonable.
(g)There is no evidence before the Tribunal that the strata company is selectively seeking consistency from Ms Letizia. Although there has been some ad hoc developments in the scheme over the years, the evidence before the Tribunal is that the strata company is doing its utmost to bring all developments to conformity and to ensure that new proposals are treated fairly and objectively. The Tribunal accepts that the strata company is acting reasonable in the discharge of its duties.
The Tribunal therefore finds that the strata company did not act unreasonably when it refused approval for the proposal to alter part of the common property wall for purposes of a vehicle and pedestrian gate.

Conclusion

On the basis of the above finding, the application for relief pursuant to s 85 of the ST Act is dismissed.

Order

The application is dismissed.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER