Maber & Anor and The Owners of Strata Plan 11391
[2007] WASAT 99
•1 MAY 2007
MABER & ANOR and THE OWNERS OF STRATA PLAN 11391 [2007] WASAT 99
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 99 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1551/2006 | DETERMINED ON THE PAPERS | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 1/05/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Finding that resolution without dissent required | ||
| A | |||
| PDF Version |
| Parties: | MARGARET FRANCES MABER WILLIAM FRANCIS MABER THE OWNERS OF STRATA PLAN 11391 |
Catchwords: | Strata titles Alteration to common property Erection of window on common property Nature of restriction required Whether control and management of common property |
Legislation: | Strata Titles Act 1985 (WA), s 7, s 17, s 19, s 20, s 21Q, s 35, s 36, s 42, s 42(1), s 42(8), s 85, s 95, Sch 1 |
Case References: | Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282 |
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. |
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 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE PAPERS DELIVERED : 1 MAY 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:
Strata titles Alteration to common property Erection of window on common property Nature of restriction required Whether control and management of common property
Legislation:
Strata Titles Act 1985 (WA), s 7, s 17, s 19, s 20, s 21Q, s 35, s 36, s 42, s 42(1), s 42(8), s 85, s 95, Sch 1
(Page 2)
Result:
Finding that resolution without dissent required
Category: A
Representation:
Counsel:
Applicants : Self-represented
Respondent : Self-represented
Solicitors:
Applicants : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
(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. In 2004, Mr and Mrs Maber sought a similar permission for the owners of the lots on the eastern face of the building, of which theirs was one. At the company's Annual General Meeting on 1 April 2004, a resolution was passed giving permission to those owners to enclose a portion of their balcony "to a style and design to be approved by the Strata Council". It was contemplated that a by-law encompassing the permission for enclosure by the approved design would be subsequently presented to a meeting of the strata company.
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. A resolution without dissent is required to amend or add to by-laws. The Mabers then commenced proceedings in the State Administrative Tribunal seeking an order that would permit them to install the window on their balcony.
3 In the course of the proceedings before the Tribunal, the question arose as to the nature of the resolution required to grant permission for the proposed work on the common property. The parties agreed that that question should be determined as a preliminary issue. The Tribunal considered the provisions of the Strata Titles Act 1985 (WA) concerning use of, and work on, common property, and in relation to the making of by-laws. The Tribunal concluded that, in order to carry out the work, the Act contemplated that a by-law was required, and that a resolution without dissent was necessary to permit that work to be carried out.
(Page 4)
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 east 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 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 north 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 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 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 Annual General Meeting 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 west 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 Extraordinary General Meeting on 28 October 2006. Notice of a motion "to make a by-law to grant permission to install a window at lot 4 as detailed in [an annexure to a
(Page 6)
- 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 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."
12 Although the motion put to the October 2006 EGM was in terms of the adoption of a by-law, the applicants contend that the ST Act does not require that alterations to common property be the subject of a by-law. They argue that it is sufficient for the proprietors at a general meeting to resolve by simple majority to have the work done, that resolution constituting the exercise of the strata company's authority to "control and manage the common property".
ST Act provisions concerning common property
13 Section 17 of the ST Act provides that common property shall be held by the proprietors as tenants in common in shares proportional to their unit entitlements.
14 There are a number of provisions which enable a strata company to deal with common property. Section 19 permits the transfer or lease of common property by a strata company, pursuant to a resolution without dissent. Section 20 permits the grant of easements by the strata company, again pursuant to a resolution without dissent. Section 21Q permits a strata company, by resolution without dissent, to amend a strata plan so as to merge land that is common property into a lot.
15 There is no provision which, in express terms, deals with the erection of structures or alterations to structures on common property by a strata company. Section 7 permits structural erections, alterations and extensions to a lot by the proprietor of that lot where authorised by a resolution without dissent. It does not deal with the situation of a proprietor of a lot wishing to make some structural erection, alteration or
(Page 7)
- extension to common property. It can be noted in passing that the grounds upon which approval by a strata company of a structural erection or alteration on a lot includes where the carrying out of the proposal "will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development".
16 Section 42 deals with by-laws. Section 42(1) provides:
"A strata company may make by-laws, not inconsistent with this Act, for –
(a) its corporate affairs;
(b) any matter specified in Schedule 2A; and
(c) other matters relating to the management, control, use and enjoyment of the lots and any common property."
17 An amendment or addition to the Sch 1 by-laws requires a resolution without dissent. In the case of a Sch 2 by-law, a special resolution, being a resolution of not less than 50% of the lot owners representing an aggregate of not less than 50% of the unit entitlements, with not more than 25% of the proprietors, or proprietors representing not more than 25% aggregate unit entitlement, voting against the resolution.
18 Section 42(8) provides:
"(8) Without limiting the generality of any other 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 (or unanimous resolution, in the case of a two-lot scheme) 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 (including the proper maintaining and keeping in a state of good and serviceable repair of the common property or that part of the common property, as the case may be, and the payment of money by that proprietor to the strata company) as may be specified in the by-law and may, pursuant to a resolution without dissent (or unanimous resolution, in the case of a two-lot scheme), make a
- by-law amending or repealing any by-law made under this subsection."
19 It was under this section that the applicants sought the motion that led to these proceedings.
20 Section 35 imposes an obligation on a strata company to "control and manage the common property for the benefit of all the proprietors", and to "keep in good and serviceable repair, properly maintain and, where necessary, renew and replace common property". Section 36 requires a strata company to establish a fund sufficient for the control and management of the common property and to discharge any other obligations of the strata company.
21 Section 85 enables a proprietor to seek an order from the Tribunal to consent to a proposal to effect alterations to common property where the strata company has unreasonably refused to consent to a proposal by that proprietor. It is under that section this application is brought.
22 The by-laws in Sch 1 of the Act have been adopted by the respondent. By-law 12(6) provides that "except where otherwise required by or under the Act, resolutions maybe passed at a general meeting by a simple majority vote".
Control and management of common property
23 In Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282 at [25], the Tribunal said:
"There is no clear dividing line between what constitutes works undertaken as part of the control and management of common property, and what comprises works which are improvements to the common property going beyond control and management. The latter type of works is outside the duty imposed upon the strata company by s 35."
24 Section 42 makes reference to by-laws "relating to the management, control, use and enjoyment of … any common property". The use of the expression "use and enjoyment" denotes something different from, or additional to, management and control.
25 The erection of the window proposed by Mr and Mrs Maber is designed to improve the use and enjoyment of the area of common property to which they have the right of exclusive use. It involves the erection of a structure visible from the outside of the building.
(Page 9)
26 The obligation of the strata company under s 35 is an obligation to control and manage the common property "for the benefit of all of the proprietors". The applicants contend that that provision "does not mean that all proprietors must benefit from each individual decision of the strata company". They contend that the strata company has the power to extend the privilege for the benefit of all proprietors by similar motions relating to other units if required. It is further contended that no individual, nor any group of proprietors will suffer any material detriment or disadvantage by the erection of the windows by the applicants.
27 It is not to the point to ask whether other proprietors will suffer a material disadvantage or detriment. The question is whether what is done by a strata company pursuant to its authority under s 35 is "for the benefit of all proprietors". Whether that is so requires an examination of the substance and object of the particular action or proposed action. In this case, it is abundantly clear that that motion in its present terms, seeks only to improve the use of the common property by the proponent of the motion. The fact that other motions might be proposed which might confer a similar benefit on other proprietors is irrelevant.
28 In my view, the proposal to permit the erection of the window for the benefit of Mr and Mrs Maber does not come within the authority of s 35 to control and manage the common property for the benefit of all proprietors. If it did, by-law 12(6) would have enabled a resolution by simple majority to authorise the work.
Authority for the proposal
29 All proprietors have a proprietary interest in the common property. It is no doubt a recognition of those rights which underlies the requirement for a resolution without dissent in sections 19, 20, 21Q and 42(8) of the ST Act. It is consistent with an entitlement by a co-owner of property to prevent works being conducted on the property by another co-owner that a resolution without dissent should be required. It is also consistent with a recognition of the proprietary interests of the co-owners that a strata company which, although charged with the control and management of common property, is not the owner of it, should only deal with the common property on the authority of a specific statutory provision. The proposal by Mr and Mrs Maber is a proposal of the type contemplated by s 42(8). In the absence of any specific statutory authority enabling the strata company to carry out alterations and improvements to common property (beyond works encompassed within control and management) a by-law under s 42(8) is required.
(Page 10)
30 Any other conclusion would lead to an absurd situation where a lot owner would require a resolution without dissent to make alterations or extensions to his or her own lot (s 7), but require only a simple majority to make alterations or extensions to common property. The absurdity would arise because the consent of all other lot owners would be required in relation to works on land in which they have no interest, but not in relation to works on land in which they have a proprietary interest. They would have a ground to object to work on a lot where it would result in a structure visible from the outside of the building, but not have the same rights in relation to structures or common property visible from the outside of the building.
31 It follows that a resolution without dissent is required for a by-law which authorises the work proposed by Mr and Mrs Maber.
The April 2004 AGM resolution
32 The applicants rely upon the resolution at the AGM in 2004 where, by unanimous resolution, permission was given to the eastern side lots to enclose the north western most section of the balcony to a style and design to be approved by the Strata Council. They contend that the approval of the style and design was achieved by the vote at the EGM in September 2006 when the design was accepted by a majority of ten to five.
33 There are two reasons why that submission should not be upheld. The first is that, on a proper construction of the resolution of April 2004, it should be construed as a preliminary approval given on the basis that a by-law incorporating the particular design would ultimately be required. That is consistent with the "managers note" in the agenda, and from the minutes which record "the owners of these units are to pursue designs and prepare a by-law for presentation at a general meeting of the strata company". All concerned subsequently conducted themselves consistently with that construction.
34 The second reason is that the statutory authority for the work to be conducted is provided through the mechanism of a by-law adopted pursuant to s 42. In the absence of a by-law, the resolution of itself is insufficient to authorise the work.
Issues remaining
35 The answer to the preliminary issue raised by the parties is therefore that the applicants require a resolution without dissent pursuant to s 42(8)
(Page 11)
- of the ST Act to authorise the erection of the window proposed. They have not achieved that resolution. 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.
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.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
15
1
1