Loveland and The Owners Of Northlands Centre Strata Plan 17160
[2006] WASAT 358
•7 DECEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: LOVELAND and THE OWNERS OF NORTHLANDS CENTRE STRATA PLAN 17160 [2006] WASAT 358
MEMBER: MR T CAREY (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 7 DECEMBER 2006
FILE NO/S: CC 115 of 2005
BETWEEN: PHILLIP MARSHALL LOVELAND
Applicant
AND
THE OWNERS OF NORTHLANDS CENTRE STRATA PLAN 17160
Respondent
Catchwords:
Strata titles - Common property - Resolutions of strata company and council of owners permitting signage to remain - Whether exercise of any power, authority, duty or function referred to in s 83 of the Strata Titles Act 1985 (WA) - Council of owners as strata company's delegate - Resolutions concerned with management and control of common property and therefore within council's delegated authority - Strata plan 17160
Legislation:
Strata Titles Act 1985 (WA), s 35(1)(b), s 44(1), s 83, s 83(1), s 83(6), s 97
Result:
Leave to amend refused
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr J Park
Solicitors:
Applicant: Self-represented
Respondent: Park Legal Solutions
Case(s) referred to in decision(s):
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, Mr Loveland, sought an order for removal of signs which have been affixed to the front fascias of individual lots, being common property of a commercial strata complex. The signs have been the subject of retrospective approval by the strata company and/or the council of owners, and the council of owners recently adopted a policy under which licences would be granted to proprietors to maintain their current signage on application for such a licence being made. Mr Loveland argued that the council of owners, in particular, did not have authority to give any such approval or licence.
The Tribunal considered the relevant resolutions of the council of owners and concluded that they were instances of the exercise of its delegated authority to undertake the functions of the strata company. Further, according to the Tribunal, the issue of signage fell within the management and control of common property for the benefit of all the owners, which did not require a unanimous resolution or resolution without dissent of the strata company. The council of owners was therefore authorised to make the resolutions it did, the effect of which was to permit the signs to remain, and Mr Loveland's application was dismissed.
Introduction
The applicant is the proprietor of two lots in a 28 lot commercial strata scheme situated in Wanneroo Road, Balga known as the Northlands Centre. His application is concerned with signage currently attached to the brick walls located at the front of most lots. The brick walls, or at least the parts of them to which the signs are affixed, are part of the common property of the scheme.
The applicant has sought an order for removal of the signs. Following on from recent actions of the strata company, the applicant excluded from his application the removal of signs on a particular wall, referred to by the applicant as "the aspect of the Centrepiece". Further, by his amendment notification accompanying his Statement of Issues, Facts and Contentions filed on 22 September 2006, the applicant seeks the removal of the relevant signs by 1 January 2010, and, in addition, and by the same date, reinstatement of the signage in existence as at 1989 at the expense of all owners.
Basis of application
Without wishing to place too fine a point on it, I have had some difficulty in ascertaining the essential elements of the applicant's case. His Statement of Facts, Issues and Contentions (applicant's statement) runs to some 71 unnumbered paragraphs. The respondent has allocated a series of sequential numbers to each of the paragraphs which I have adopted for the purposes of these reasons. Paragraph 69 commences, optimistically, with "Essentially my position on this matter is quite simple", followed by a series of 12 propositions, which has some limited value in distilling the main points. I will attempt to set out my understanding of the essential aspects of the case the applicant seeks to agitate.
When the applicant purchased his first lot in 1989:
" … the Building presented well. The Building was uniform and aesthetically pleasing. Currently the building signs are not uniform and the Building presents poorly as compared with 1989" (applicant's statement par 11).
Although the signs which were present in 1989 were not of uniform dimensions, they were, according to the applicant, "of consistent dimensions", and each was mounted on the top of a front parapet wall of the complex, and not the common property front fascias of the lots themselves as is now the case. Further, they were of the same type, housing double fluorescent tubes, illuminated at night in a uniform way, and of an appropriate size and appropriately placed for the professional presentation of the building. Business seemed to be conducted from the centre satisfactorily for some years with the signage then in place. A change occurred, according to the applicant, approximately 10 years ago, with some of the lots having affixed to their front fascias large nonilluminated flat signs. The signs were of differing sizes and shapes.
Then, in 1999, the strata company, in its Annual General Meeting, resolved that all the original signage on the building be removed. The applicant's statement refers as the reason given by the proponent of the successful motion to those signs having become rusted and too expensive to repair. The applicant's statement goes into some detail about this resolution in a way which seeks to cast doubt as to its legitimacy, and suggests that the respondent should be required to produce to the Tribunal evidence to make good the basis for the resolution. As I have said, his amendment notification seeks an "extension" of the orders sought in the application to include an order that the original signage in existence in 1989 be reinstated at the expense of all owners.
In my opinion, the question of the validity of the 1999 resolution has not been properly raised by the applicant in this application. The relevant resolution, which is documented in the minutes which have been produced, was passed some seven years ago. If the applicant seriously wishes to challenge the validity of the resolution, he needs to do better than "tucking it away" on page 5 of a 12 page document filed in his current application. His application was filed on 24 January 2005 and has been the subject of a number of directions hearings as well as mediation. The applicant's statement and amendment notification were not filed until 26 September 2006. Moreover, leaving aside the significant matter of the age of the resolution in issue, any question as to the legitimacy of a resolution of the strata company is to be dealt with by way of an application under s 97 of the Strata Titles Act1985 (WA) (ST Act), and therefore cannot be dealt with under s 83(1), the general dispute resolution provision under which the current application is brought, by reason of s 83(6). It is a discrete question, and the subject of a different section of the ST Act, in relation to which its own set of considerations applies. Those considerations need to be the subject of proper process, allowing all necessary parties the opportunity to advance their respective cases and produce any evidence upon which they rely. The applicant himself has not addressed, at least in a readily discernable way, all the relevant considerations. For all these reasons, leave to amend the application, so as to add to the relief being sought an order for reinstatement of signage existing in 1989, will be refused.
In respect of the pertinent question raised by the application of signage which has been allowed in the past few years, the applicant relies upon what he regards as a lack of legitimacy under the ST Act of any purported permission for any of these signs to be affixed to the common property. In particular, he contends that the council of owners did not have authority to grant any permission in this regard, and the recent development of a policy for the erection of signs by the council, involving the grant of licences for the signs, some of which have been in place for 10 years, is "too little too late" and motivated by a desire to defeat the applicant's application to the Tribunal.
Issues
The substantive issue for the Tribunal to determine is whether there has been any failure by the strata company or council of owners in the exercise or performance of any power, authority, duty or function under the ST Act or the by-laws of the scheme to justify the relief sought. The onus of establishing any such failure rests with the applicant. His primary argument, as I have said, is that the council of owners made resolutions which it was not authorised to make.
To express the argument in this way gives rise to an issue as to whether the Tribunal has jurisdiction to deal with his complaint. The language of s 83 does not readily accommodate a complaint about actions being taken without authority. It is helpful, I think, to refer to decisions made by the council of owners itself and the strata company which fashioned those actions.
Among the numerous, and at times inconsistent, resolutions of the strata company and the council of owners regarding signage at the centre, the following resolutions were made:
(a)on 10 February 1999, the council of owners resolved that the current signage policy be maintained;
(b)on 2 June 1999, the strata company resolved that original signs be removed at strata company expense, with owners/occupiers having the ability to erect new signs of a non-rusting/corrosive nature, at their own expense, on the fascia of the building subject to strata company approval. The council of owners was to confirm the official signage policy at the next meeting – it appears nothing was done in relation to this until 7 June 2006;
(c)on 19 July 2005, the strata company resolved that a motion to remove all signage and replace with advertising boxes to all units be rejected and all signage to be left as is;
(d)on 7 June 2006, the council of owners adopted an official signage policy and resolved that the respondent's solicitor draft a signage licence to reflect the policy adopted; and
(e)on 3 August 2006, the council of owners resolved to grant to each of 27 of the lots licences to maintain signage on the common property appurtenant to their lots in accordance with any application received by the council.
The three resolutions of the council of owners represent the exercise of functions delegated by the strata company to the council of owners under s 44(1) of the ST Act. What the applicant says is that the subject matter of the resolutions being common property, the council of owners should not have exercised its delegated function in the manner in which it did, because a unanimous resolution or resolution without dissent of the strata company was required. That being so, the applicant is, in my view, complaining "with respect to the exercise or performance of … a power, authority, duty or function conferred or imposed by this Act … on the council" as referred to by s 83 of the ST Act. Further, and unlike the two resolutions mentioned of the strata company, the council's resolutions are not subject to review under any other section of the ST Act. The Tribunal is therefore authorised by s 83 to make an order for rectification of such a complaint, if it considers the circumstances require that to occur.
I will now consider whether there was any defect, in particular a lack of authority, in the way in which the council of owners has proceeded.
Did the council of owners act outside its delegated authority?
In par 46 of the applicant's statement, the following appears:
"I believe there was no legitimacy under the [ST] Act for any of these signs to be affixed to common property, as I believe that permission to affix these new signs was not 'properly' granted pursuant to the [ST] Act in that I understand a council of owners cannot grant such permission without the owners passing a resolution without dissent or a unanimous resolution. Even if the owners now contend that a licence is sufficient then why did the owners not formally grant a licence at the time?"
The strata company in any strata scheme has a duty to control and manage the common property for the benefit of all the proprietors: s 35(1)(b) of the ST Act. In setting the standard of a resolution without dissent or unanimous resolution of the strata company for permission to affix new signs, it follows that the applicant characterises actions of the corporate body permitting the signage to remain as outside that duty. In Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282, a case dealing with the erection of new structure, the Tribunal said (at [30]):
"In our view, the proper control and management of the common property, includes taking reasonable steps, possibly including the erection of new structures, to ensure that it is maintained and presented in a way which accords with the reasonable expectations of the proprietors as a whole. It is a question of fact and a matter of degree as to when the erection of new structures on the common property goes beyond control and management."
The applicant has not disputed that signage is an important identifier of businesses conducted from individual lots; quite the reverse. He goes to some length to signify his belief that signage and advertising are vital for healthy business operations, and complains of the consequences for his business of his refusal (at least at this stage) to apply to the council of owners for a licence in accordance with the recently introduced signage policy. Taken as a whole, and also individually, the resolutions of the council of owners in relation to the signage issue are, in my opinion, concerned with the management and control of common property for the benefit of all the owners. The applicant disagrees with the substance or extent of the control which has been exercised, but this is a matter for the council, acting within its delegated authority from the strata company, to decide. The applicant's argument, based on an alleged lack of authority in the council of owners to do what it did, fails.
In light of this conclusion, which disposes of the applicant's challenge to the actions of the council of owners, it is unnecessary to deal with the implications for the application of the strata company's two resolutions to which reference is made above.
The further aspect raised in the passage quoted above from the applicant's statement as to why the owners did not formally grant a licence at the time might be a question of interest to the applicant, but cannot detract from the force of the resolutions of the strata company and the council. The entire licence proposal, which is enshrined in a nine point policy adopted by the council of owners, on 7 June 2006, giving the council of owners responsibility for future requests for signage on common property, is the exercise of the control and management of the common property for the benefit of all the proprietors into the future. The applicant has raised no valid basis for impugning the licence regime.
The applicant's statement is replete with aspects of the way in which the signage issue (and other issues) has been dealt with over the years which have, to his way of thinking, been unsatisfactory. An example appears at par 59 of his statement, dealing with inconsistencies between resolutions of the council of owners over time. Clearly, inconsistent resolutions are to be discouraged. The critical questions for the Tribunal, however, are whether there exists any resolution(s) which mandates the signage to continue in its current form, and if so, whether the applicant has raised any matter upon which the Tribunal might overturn the consequence of such a resolution(s) that the signage to which he objects remains. For the reasons I have given, the answer to the first issue is "yes", while the answer to the second issue is "no".
I should comment on a flurry of filings concerning the recent granting of licences to a number of proprietors permitting signage on the common property and their possible effect. Those submissions have not influenced me either way, as they are irrelevant to the question of whether or not any defect in the exercise of any power, authority, duty or function of the council of owners has been exposed.
For the above reasons, the application shall be dismissed.
Orders
1.Leave to amend the application, to add to the relief being sought an order for reinstatement of signage existing in 1989, is refused.
2.The application is dismissed.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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