Maber and Anor and the Owners of Strata Plan 11391
[2007] WASAT 99 (S)
•1 MAY 2007
MABER & ANOR and THE OWNERS OF STRATA PLAN 11391 [2007] WASAT 99 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 99 (S) | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1551/2006 | DETERMINED ON THE PAPERS | |
| Coram: | MS J HAWKINS (MEMBER) | 1/05/07 | |
| 9/07/07 | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Finding that bylaw proposal not unreasonably refused | ||
| B | |||
| PDF Version |
| Parties: | MARGARET FRANCES MABER WILLIAM FRANCIS MABER THE OWNERS OF STRATA PLAN 11391 |
Catchwords: | Bylaw proposal for alteration to common property – Bylaw not passed by resolution without dissent – Whether bylaw proposal unreasonably refused by strata company |
Legislation: | Strata Titles Act 1985 (WA), s 35, s 35(1)(b), s 42, s 42(8), s 79(2), s 85, s 95 |
Case References: | Crockett & Anor and Munroe & Anor [2006] WASAT 382 Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99 The Owners of Millpoint Strata Plan 11391 and Houston [2007] WASAT 9 |
Orders | 1. The application is adjourned for further directions on 17 May 2007 in order to make directions as to the hearing of the application on its merits.,SUPPLEMENTARY DECISION:,1. The application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : MABER & ANOR and THE OWNERS OF STRATA PLAN 11391 [2007] WASAT 99 (S) MEMBER : MS J HAWKINS (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 1 MAY 2007 SUPPLEMENTARY
DECISION : 9 JULY 2007 FILE NO/S : CC 1551 of 2006 BETWEEN : MARGARET FRANCES MABER
- WILLIAM FRANCIS MABER
Applicants
AND
THE OWNERS OF STRATA PLAN 11391
Respondent
Catchwords:
Bylaw proposal for alteration to common property – Bylaw not passed by resolution without dissent – Whether bylaw proposal unreasonably refused by strata company
Legislation:
Strata Titles Act 1985 (WA), s 35, s 35(1)(b), s 42, s 42(8), s 79(2), s 85, s 95
(Page 2)
Result:
Finding that bylaw proposal not unreasonably refused
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Self-represented
Solicitors:
Applicants : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Crockett & Anor and Munroe & Anor [2006] WASAT 382
Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99
The Owners of Millpoint Strata Plan 11391 and Houston [2007] WASAT 9
(Page 3)
Summary of Tribunal's decision
1 Mr and Mrs Maber are the owners of a strata title unit which forms part of the development known as Mill Point in Mill Point Road, South Perth. Each unit in the development has the exclusive use of a balcony that is part of the common property. In 1998, the strata company granted permission to the owners of units of the western side of the building to enclose one section of their balconies with a window.
2 Since that time, Mr and Mrs Maber have endeavoured to obtain an approval for a design of a window matching those erected by a number of the west facing owners pursuant to the 1998 approval. Some owners have opposed the design proposed by Mr and Mrs Maber. A number of resolutions were put to various meetings of the body corporate, until eventually, on 28 October 2006, Mr and Mrs Maber proposed a motion that a by-law be made permitting the installation of a window on the balcony adjacent to their lot only. The motion received ten votes in favour and five against. The issue of the type of resolution that meets required was decided by His Honour Judge Chaney in Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99. It was held that a resolution without dissent is required to amend or add to by-laws.
3 Following the decision by His Honour Judge Chaney, Mr and Mrs Maber sought orders pursuant to s 85 and s 95 of the Strata Titles Act 1985 (WA) that the respondent strata company had unreasonably refused their by-law proposal. The Tribunal concluded that s 85 of the Strata Titles Act 1985 (WA) did not apply in this case. The Tribunal also found that on the facts that the respondent strata company had not unreasonably refused to pass the by-law as proposed by Mr and Mrs Maber. The application pursuant to s 95 of the Strata Titles Act1985 (WA) was therefore dismissed.
Background
4 The applicants are the owners of Lot 4 on Strata Plan 11391. The strata plan consists of 16 lots which comprise the building known as "Mill Point" situated at 16 Mill Point Road, South Perth. Mill Point is an eight storey building, with each storey comprising two lots. The odd numbered lots make up the western side of the building, and the even numbered lots make up the eastern side. Adjacent to each lot is a balcony area which comprises common property. By resolution without dissent passed on 2 September 1996, a by-law was adopted giving each unit
(Page 4)
- owner the exclusive use of the balcony immediately adjacent to that owner's lot.
5 In 1998, certain additional by-laws were adopted by the company including by-law 20 – Balcony Partial Enclosures. That by-law reads:
"The Strata Company gives permission to the owners of Units 3, 5, 7, 9, 11, 13 and 15 to enclose the north western most section only, of their balcony, to a style and design to be approved by the Strata Council after any negotiation that may be necessary with the local shire office. Cost of the initial installation and future maintenance is to be met by the individual owner."
6 Since the adoption of that by-law, some five of the seven affected owners have availed themselves of that permission by installing steel framed windows at the western end of the northern face of the building. Mr and Mrs Maber are keen to install a similar window on a portion of their balcony on the northern face of the building. Accordingly, in 2004, Mr and Mrs Maber gave notice of a proposal to have the company resolve to give permission to the owners of Units 4, 6, 8, 10, 12, 14 and 16 to enclose the north-western most section only of their balcony, to a style and design to be approved by the Strata Council after any negotiation that may be necessary with the local Shire office. It was also proposed that all costs associated with the initial installation and future maintenance of those enclosures be met by the individual owners. The agenda papers record a "manager's note" which reads "it should be noted that permission is being sought at this time, only. An additional by-law can be adopted at a later date, with approved sketch etc".
7 The minutes of the Annual General Meeting (AGM) on 1 April 2004 record the following:
"14.3 Balcony Partial Enclosure to Units 4, 6, 8, 10, 12, 14 & 16
It was RESOLVED permission be given to 4, 6, 8, 10, 12, 14 & 16 to enclose the north western most section of their balcony to a style and design to be improved [sic] by the strata council, after any negotiation that may be necessary with the local shire office.
- The owners of these units are to pursue designs and prepare a by-law for presentation at a general meeting of the strata company."
8 It is apparent that, between April 2004 and April 2005, attempts to settle upon a design for the proposed windows were unsuccessful. The minutes of the Annual General Meeting of 13 April 2005 record:
"Item 14.3 East-side Balcony Enclosures. Agreement cannot be reached on a design and therefore the Council can take no further action at this time."
9 Mr and Mrs Maber then made an application to the Tribunal under s 85 of the Strata Titles Act 1985 (WA) (ST Act). The outcome of that appeal was a direction to the owners Council to hold an Extraordinary General Meeting (EGM) in order to consider a proposal for a by-law in similar terms to by-law 20. That meeting was held on 13 October 2005. Being a motion for the adoption of a by-law, a resolution without dissent was required (ST Act s 42). The minutes record six votes for the motion, four against, with two abstentions. Accordingly the by-law was not adopted.
10 At the AGM on 11 April 2006, Mr and Mrs Maber again moved a motion seeking permission for the owners of even numbered units, apart from Unit 8, the owner of which had indicated no interest in installing a window, for the installation of windows in the most westerly section of the north-western face of their balconies. Discussion at the meeting concerned the design of proposed windows. Mr and Mrs Maber proposed windows matching those on the western side units, but other owners preferred a frameless design to preserve the views from the units. The minutes record that nine unit holders voted for the by-law, three against with four abstentions. A further application was then brought to the Tribunal this time seeking an order under s 95 of the ST Act. Following the initial directions hearing, that application was withdrawn, and a further motion put to an EGM on 28 September 2006. Notice of a motion "to make a by-law to grant permission to install a window at [L]ot 4 as detailed in [an annexure to a notice]" was proposed. The minutes of the meeting record that the motion put forward at the meeting was in the following terms:
"By-law X
The Strata Company gives permission to the owners of Lot 4 to install a window in the most westerly section of the north west
(Page 6)
- face of their balcony. The window design will match existing windows in the building. All costs for the construction, installation and future maintenance will be met by the owners of Lot 4."
11 Ten unit holders voted for the motion, and five against. The present proceedings relate to that motion, and are brought under s 85 of the ST Act.
12 This matter has been the subject of a decision by Deputy President Judge J Chaney in Maber & Anor and the Owners of Strata Plan 11391 [2007] WASAT 99, delivered on 1 May 2007. As a result of that decision it was determined that as the applicants' proposal for alteration to common property was a proposal for a by-law, resolution without dissent was required for the by-law to be passed. Such a resolution was not attained by the applicants. Judge Chaney went on to state:
"The failure by the strata company to approve the making of the by-law in the terms proposed does amount to a refusal of consent to a proposal by a proprietor which is capable, if found to be unreasonable, of triggering the Tribunal's jurisdiction to make an order under s 85. Alternatively, there is jurisdiction on the Tribunal to make the by-law under s 95 if the Tribunal considers that the strata company has unreasonably refused to make the by-law. It remains therefore for the Tribunal to consider the application on its merits, and in particular to consider the question of whether or not the dissent to the motion is unreasonable. It will be necessary to make further directions to enable that question to be determined."
13 The matter was therefore the subject of a further directions hearing on 17 May 2007, at which time programming orders were made for the filing of documents and listing the matter for hearing to determine the issue of whether the respondent has unreasonably refused consent to the applicants proposed by-law and if so whether this Tribunal should make the proposed by-law under s 85 and s 95 of the ST Act.
14 The matter was the subject of a hearing on 3 July 2007.
ST Act provisions
15 Section 85 provides as follows:
(Page 7)
- "85. Order with respect to certain consents affecting common property
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 ¾
(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."
"95. State Administrative Tribunal may make certain by-laws
(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 [s] 42(8) with respect to any fixture or fitting to be attached to the common property, the State Administrative Tribunal may ¾
(a) by order, exercise the powers conferred on the strata company under [s] 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 terms and conditions relating to insurance of the fixture or fitting.
(2) In making a by-law under subsection (1), the State Administrative Tribunal shall specify in the
- order whether or not [s] 42(10) is to apply to the by-law and [s] 42(10) shall, or shall not, apply accordingly."
17 Section 35 requires the strata company to "control and manage the common property for the benefit of all proprietors".
18 Section 42(8) however requires that a by-law which seeks to confer on a proprietor exclusive use, enjoyment of, or special privileges in respect of, the common property must be made by resolution without dissent.
The parties' contentions and relevant facts
19 Account has been taken of all of the documents filed on record, including submissions received from persons who were notified of the application pursuant to s 79(2) of the ST Act. Those documents include photographs of the building. The building is not a standard rectangular shape. Due to the unusual shape of the building it is difficult to view the balcony enclosures on the western side of the building at the same time as viewing the balconies on the eastern side of the building.
20 The reasons for refusal by the respondent and notified persons to the applicants' proposal can be summarised as follows:
• The proposal in various forms has been the subject of consideration by the respondent at five meetings of the strata company. The respondent therefore considers that it has been given adequate consideration.
• That the required resolution of unanimous consent was not achieved on the last occasion the matter was the subject of a meeting of the strata company at the EGM on 28 September 2006 as a result of five unit holders voting against the motion.
• The respondent maintains that those dissenting are concerned to ensure that haphazard changes to common property are not made.
• The respondent does not consider the 1998 decision of the strata company to allow owners on the western side of the building to enclose their balconies in the same manner as that proposed by the applicants creates a precedent. It maintains that the two sides of the building are different
- and that many of the proprietors do not want to make the same mistake as was made on the western side of the building. The respondent also suggests that at the time the owners on the western side were afforded the permission to enclose their balconies there was agreement by the seven owners affected on the western side as to the design for the enclosure.
- • The owner of Lot 8, Ms Smart, is one of the owners of the eastern side of the building, two levels above the applicants. She has filed a submission setting out her objections to the applicants' proposal. She wishes to maintain uniformity on the eastern side of the building. She does not consider that enclosing the north-eastern side of the balconies would be of any benefit as it is such a small section of balcony. She is more interested in enclosing the south-eastern section of the balconies as this offers the greater space. She also considers that a frameless glass design would allow an uninterrupted view.
• A letter from Mr Symons, the owner of Lot 10 has been filed by both parties. He does not wish to enclose his balcony. He suggests, however, that if there are owners who wish to enclose their balconies on the eastern side of the building he suggests that there be uniformity and a more clean and modern approach. He considers that the design of enclosures on the western side of the building, similar to that proposed by the applicants, was not a suitable design. He indicated if he was going to enclose his balcony a brown framework would not be acceptable to him.
• The owners of Lot 14, Mr and Mrs White, on the eastern side of the building, also filed submissions with this Tribunal. The Whites obtained the views of Mr Alexander, a planning consultant. In a letter dated 8 June 2005, he indicated that enclosures on the northern side of the building should be of universal design and any enclosures should be as contemporary and technologically advanced as possible. He considered a double framed enclosure formed by two sets of window framing would create extra lines across the view. It
- appears as a result of that advice Mr and Mrs White are not in favour of the applicants' proposal as they consider there should be uniformity on the eastern side of the building. Further, a frameless design may be more appropriate to preserve the views from the lots and that it may be better to consider in any event enclosure of the south-eastern side of the balconies rather than the north-eastern sides.
- • Mrs Levi, who is the owner of Lot 16, also on the eastern side of the premises, does not support the applicants' proposal. She does not like the brown frame and relies on the views of Mr Alexander to explain that a frameless design would enhance the eastern side of the building.
• Mr Takahashi is the owner of Lot 7 on the western side of the building. He too, has expressed the view that there should be a consensus on design amongst all owners on the eastern side of the building. He considers that approving a design for one person on the eastern side whilst there are owners who object to the design will create difficulties when the majority of owners on the eastern side present a design that is different to the design proposed by the applicants.
• As for the permission granted to Lot 2 to enclose the south-eastern portion of their patio, the respondent maintains that this permission was without dissent as a result of an annual general meeting in April 2006. It further maintains that the alteration was to a courtyard and therefore does not set a precedent to the situation concerning the balconies.
• As for the installation of roller shutters on Lot 16, the respondent says that prior permission was not granted to the then owner and although permission was given after the event this is now considered to have been a mistake.
• In respect to the comments by Mr Zuideveld as to the frameless design put to them, the respondent says that at no time has a final frameless design been agreed upon.
• As for the applicants' design being a replication of other windows and therefore in keeping with the rest of the
- development, the respondent suggests that this is not necessarily a relevant issue in matters of this nature.
21 The applicant maintains the reasons for refusal are unreasonable. In summary the applicant says that:
• The proposed alteration is in keeping with the style of windows used in the original construction of the building and those used by the owners on the western side of the building to enclose their balconies.
• That a precedent was created when the respondent passed a by-law in 1998 authorising proprietors on the western side of the building to erect a balcony in the most westerly section of their balconies, which allowed for those owners to install a particular design. The applicants suggest that they should be afforded the same privilege as granted to the proprietors on the western side of the building.
• As for the bronze frame impeding views, the applicants say that as they are the only proprietors putting up the proposal – to refuse on this ground would be unreasonable.
• That to refuse the applicants' proposal on the basis of failure of all to agree to a possible design is irrelevant especially when they say that prior approval of the enclosure for Lot 2's enclosure did not prevent it being permitted.
• The applicants suggest that allowing them to enclose the north-western side of their balcony would not necessarily prevent other lot owners on the eastern side of the building seeking to later enclose the south-eastern sides of their balconies. They maintain that as no other owner on the eastern side has proposed to do so – it is unreasonable to rely on this possibility to prevent the applicants' proposal being permitted.
• In addition, the applicant says that the possibility of having a modern façade to the building is hypothetical and that the changes the applicant proposes now would not necessarily prevent future modernisation occurring.
(Page 12)
- • The applicants have also provided a report from Mr Zuideveld, dated 29 May 2007, which indicates that the applicants' design is consistent with the window design of the existing building. It does also go on to say that in respect to the frameless design it is generally consistent with the design of the original windows.
• It is unreasonable to suggest that the applicants' proposal, if allowed would set a precedent for design of other enclosures on the eastern side of the building – as – the respondent has permitted Lot 2 to enclose the south-eastern side of their patio with sliding doors of a similar design to the applicants' proposal. In addition, changes to common property have been allowed to be made to Lot 16. Lot 16 has installed roller shutters to their windows. Accordingly, the applicants says that as changes have already been allowed to be made to the common property by the owners of Lots 2 and 16 on the eastern side of the building, the argument for uniformity on the eastern side falls away.
Considerations
22 All lot owners have a proprietary interest in common property as tenants in common property. The alterations proposed by the applicants involve alterations to common property. The applicants seek a determination of whether the refusal by the respondent to pass the applicants' proposed by-law concerning alteration of their balcony was unreasonable. They have made the application pursuant to s 85 and s 95 of the ST Act.
23 As found by Judge Chaney, it was necessary for the applicants' proposed by-law to be passed by resolution without dissent. Upon a vote at the EGM on 29 September 2006, the votes were 10 for, five against. As resolution without dissent was required the motion failed.
24 Although the applicants have sought to bring this application under two provisions of the ST Act, s 85 and s 95, it would seem that in this case only s 95 is applicable. The applicants in this case have sought to have their proposal to alter common property dealt with by asking the respondent to pass a by-law. Section 95 of the ST Act entitles this Tribunal to pass a by-law proposed by a proprietor in respect to any fixture or fitting to be attached to common property, where it considers the strata company has unreasonably refused to make the by-law. This is
(Page 13)
- exactly the case in this matter. The applicants proposed a by-law to allow them to attach windows to their north-eastern balcony. In the case of Crockett & Anor and Munroe & Anor [2006] WASAT 382 it was found that attaching a panel of glass to a balcony would come within the meaning of "fixture" as contemplated by s 95 of the ST Act. The applicants' proposal is for the attachment of a window to their balcony. I am satisfied that would constitute a fixture.
25 The legislature has made specific provision to assess whether a strata company has acted unreasonably in not passing a by-law in s 95. As found by Judge Chaney in this matter, the applicants required resolution without dissent to pass the by-law they proposed. Unlike s 95, s 85 does not empower this Tribunal to exercise a by-law making power. Although both provisions are similar in allowing the Tribunal to assess whether a strata company has acted unreasonably, s 85 does not give the Tribunal the power to grant the relief that is relevant in this case. While Judge Chaney expressed a view that jurisdiction might be exercised under s 85, that was not part of the rationale of the decision and His Honour did not specifically address the operation of s 85 and s 95. For the above reasons I do not consider that s 85 applies and the remainder of this decision is limited to determining whether the respondent strata company has unreasonably refused to pass the by-law as proposed by the applicants.
26 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. In this case, the respondents' refusal must be judged against the legislative context that for a proprietor to succeed in having a by-law passed to allow an alteration to common property under s 42(8) of the ST Act requires a resolution without dissent and therefore the level of support or dissent is a factor to be taken into account. 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.
27 In this case the by-law proposal was defeated by five dissenting votes from Lots 1, 7, 8, 14 and 16. Lots 8, 14 and 18 are all located on the eastern side of the building. Each of the dissenting lot owners have filed submissions setting out their reasons for dissent. In addition, an early letter from the owner of Lot 10, setting out his views was also available.
(Page 14)
- One of the key issues for refusal expressed by those dissenting is that before any lot owner on the eastern side of the building be given approval to enclose their balcony, as has happened on the western side, there should be consensus as to the design of the enclosure and which part of the balcony should be enclosed. Those dissenting are concerned to ensure that haphazard changes to common property of a building in a prestigious location not be made. It is thought a more modern design should be adopted and agreement reached between all those on the eastern side of the building who are interested in enclosing their balconies before the applicants are given approval to enclose their balcony. For the most part, they say to allow the applicants to proceed will create a precedent for that side of the building. They say that at the time agreement was given to the owners of the western side of the building to enclose their balconies there was consensus between all seven owners on the design of enclosure. Indeed some have expressed the view that the same design mistake as was made for the western balcony enclosures should not be made upon the eastern side of the building. Further, some are concerned that the use of a brown metal window frame will interfere with the views from the interior of the lots at a higher level than the applicants', some say a modern frameless window design is more suitable and will enhance the building as a whole, and some think enclosing the north-eastern balconies is less suitable than enclosing the south-eastern balconies which is a part of the balcony that affords greater space than the north-eastern part of the balcony.
28 The applicants suggest that what they are proposing is in keeping with the design on the western side of the building. They also suggest that in allowing the changes to the western side balconies, a precedent was set which must now be followed. That, in any event there have been changes allowed to common property on the eastern side of the building such as those to Lot 2 and Lot 16 show that consensus of design and uniformity have not been met and therefore it is unreasonable to disallow their proposal when judged against that background. In addition, the cost of a frameless design is greater. Finally, the applicants say what may or may not be agreed as the most favourable part of the balcony for enclosure and what design should be used is a hypothetical - as no-one else has put forward any proposal. Therefore, they should not be stopped from proceeding with their proposal on the basis of what may or may not be decided in the future.
29 Although the applicants have put forward compelling arguments as to why their proposal should be accepted, what I must determine is
(Page 15)
- whether on the basis of the reasons as presented, the applicants' proposal, has been unreasonably refused.
30 The common property must be managed for the benefit of all proprietors. This is a good governance provision. It requires a balancing of interests to assess whether the applicants' proposal in the context of the scheme is for the benefit of all. As indicated in the matter of The Owners of Millpoint Strata Plan 11391 and Houston [2007] WASAT 9, the "building is in a prestigious location, and the activities of the council of owners and the members of the strata company, as reflected in the various minutes of meetings which have been presented to the Tribunal, reflects a sophisticated level of management and a healthy interest by owners in such governance". Although the issues in this matter are slightly different to that of the matter of Houston, the comments made by the senior member in that matter, as to governance, when regard is had to the time dedicated to this issue by the respondent and the level of interest expressed by members of the strata company, holds true in this matter.
31 The respondent allowed balcony enclosures on the western side, which could be said to have given other lot owners on the eastern side of the building the expectation that they would be allowed to also enclose. However, the respondent's refusal is not concerned with the ability to enclose the balcony – but rather ensuring that a uniform approach is adopted by those who wish to do so, on the eastern side of the building.
32 The proposal for a by-law required resolution without dissent. That was not achieved. A significant minority of five lot owners opposed the by-law. The applicants' proposal has been the subject of discussion in the management of the scheme over a significant period of time. The reasons for dissent outlined above are cogent. They include concerns as to the need to have agreement of all lot owners on the eastern side of the building as to uniformity of design before any one lot owner proceeds to enclose a balcony, to ensure that when judged as a whole the alterations do not appear haphazard. The dissenters are keen to pursue a more modern look and some consider the changes allowed on the western side of the building to have been a mistake. Further, there are some that consider a better option is to enclose the south-eastern section of balcony rather than the north-eastern section. The reasons outlined by the dissenters are no less reasonable when judged against what has occurred so far on the eastern side of the building. The changes allowed to Lot 2 were agreed to without dissent. In addition, it appears that the changes made by the then owner of Lot 16 were not agreed to by the respondent before made by the then lot owner but were subsequently permitted at a
(Page 16)
- time when the strata company did not consider they had any other option. It should also be noted that due to the configuration of the building, it is difficult to view the enclosures made to the balconies on the western side of the building at the same time as viewing the balconies on the eastern side of the building. Accordingly, any differences in the use of fixtures on the western side of the building as opposed to the eastern side of the building would not be as noticeable as would be the case in a building of a standard rectangular shape.
33 In that context therefore, I am not satisfied that unreasonable refusal pursuant to s 95 of the ST Act has been made out. I am not, therefore, prepared to grant an order pursuant to s 95 and will dismiss the application.
Orders
1. The application is dismissed.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER
0
3
1