MANSELL and THE OWNERS LILAC COURT
[2005] WASAT 135
•30 MAY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: MANSELL and THE OWNERS LILAC COURT [2005] WASAT 135
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: ON PAPERS
DELIVERED : 30 MAY 2005
FILE NO/S: CC 2134 of 2005
BETWEEN: CAMERON MANSELL
Applicant
AND
THE OWNERS LILAC COURT
Respondent
Catchwords:
Strata titles - Common property - Replacement of gate
Legislation:
Strata Titles Act 1985 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Application fails.
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 seeks an order under s 83(1) of the Strata Titles Act 1985 (WA) ("the Act") for the respondent to replace the garden gate that regulates access to the common area driveway in front of unit 1 which is occupied by him.
The applicant contends that the gate forms part of common property and it is therefore the duty of the respondent to repair and if necessary replace it.
The respondent contends that the previous owner of unit 1 erected the gate with the permission of the strata company subject to the condition that the owner would be responsible for its maintenance. The respondent is therefore under no obligation to maintain or replace the gate. Other owners have also erected gates subject to similar conditions where they are responsible for the maintenance and replacement of the gates.
Applicant and respondent
The applicant is the tenant in Unit 1, Lilac Court, PO Box 326, Leederville, WA 6007.
The respondent is the Owners of Lilac Court, PO Box 566, Leederville, WA 6903.
Submissions were received from the applicant and Ms Allison Haas, secretary of the respondent, made a submission on behalf of the strata company. No submission was received from the proprietor of unit 1.
Application lodged with State Administrative Tribunal
The application was lodged with the State Administrative Tribunal ("SAT") on 24 February 2005.
The SAT was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act2004 (WA) ("SAT Act").
The application for relief was lodged in terms of Sch 77 of the Act. 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 (WA).
The matter is determined on the papers under s 60(2) of the SAT Act.
The President of SAT nominated me in terms of s 11(1) of the SAT Act to constitute the Tribunal for purposes of determining this matter.
I have now considered the submissions and make the following determination.
Parcel
The strata complex known as "Lilac Court" is situated on Lot 50 of Perthshire location Diagram 68381 of 210 Carr Street, Leederville WA 6007. It is registered as Strata Plan 14062. The complex comprises of six double storey brick and tile residential units. The strata plan was registered on 7 August 1986 under the Act. The unit entitlements differ with units 1, 2 and 5 each having 16 entitlements, unit 3 and unit 6 having 17 unit entitlements and unit 4 having 18 unit entitlements for purposes of decision-making.
Unit 1 is registered in the name of Pail Craig Down according to the Certificate of Title that formed part of the application. Mr Down did not make any submissions in response to this application. In the applicant's submission dated 9 February 2005 he indicates that the name of the proprietor is John Forster. No submission was received from Mr Forster.
Strata plan and Strata Titles Act
The applicant certified as part of her application that in terms of s 77B of the Act there is no provision in the by-laws for resolution of conflicts. The application can therefore proceed directly to SAT.
The Strata Plan was registered pursuant to the Act.
In these Reasons, unless otherwise specified, all references to sections and Schedules are, respectively, references to sections of and Schedules to the Act.
No notifications of changes to the by‑laws of Lilac Court have been registered which means the Sch 1 and Sch 2 by‑laws of the Act are applicable.
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 42(1):
"A strata company may make by-laws, not inconsistent with this Act, for –
…
(b)other matters relating to the management, control, use and enjoyment of the lots and any common property."
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 related 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."
By-laws
Schedule 1 by‑law 2
"A proprietor, occupier or other resident shall resident of a lot shall –
(a)use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other proprietors, occupiers or residents, or of their visitors;"
Schedule 2 by‑law 3
"A proprietor, occupier or other resident of a lot shall not obstruct lawful use of the common property by any person."
Applicant's submissions
The following paragraphs summarise the main elements of the applicant's submissions:
(a)The entrance where the gate is to be erected falls within the common property and it is therefore the obligation of the respondent to maintain it and replace the defunct gate.
(b)A lockable gate had been in place when the applicant moved into unit 1, but it was removed by the proprietor of unit 1 after it became damaged in a storm.
(c)Since the removal of the gate the applicant had suffered losses to personal property due to theft.
Respondent's submissions
The respondent opposes the application. The following paragraphs summarise the main elements of the respondent's submissions:
(a)Lilac Court was built with no gates in the open areas leading to the driveways. The previous owner of unit 1 requested permission to place a gate over the entrance leading to the driveway.
(b)The respondent agrees that the area forms part of the common property, but contends it is the responsibility of the owner of unit 1 in accordance with a decision of the general meeting held on 31 October 1988 to install and maintain the gate. The said decision made it clear that "all upkeep of these gates is to be maintained at the owners own expense, and not from the body corporate maintenance".
(c)Although ownership of unit 1 has changed hands since the permission was given for the gate to be installed, the respondent had at no stage agreed to maintain or replace the gate.
(d)Due to damage suffered to the gate, the current owner of unit 1 decided to remove it and restore the entrance to its original condition. The owner of unit 2, who also had a gate installed, replaced their gate at their own cost after it had been damaged.
(e)Other entrances do not have gates and the respondent is not intending to install gates.
(f)There is no obligation on the respondent to replace the said gate. The respondent remains willing for the proprietor of unit 1 to fit and to maintain a gate at his own expense.
Other submissions
No other submissions have been received.
Consideration
The respondent is responsible for the maintenance, control and upkeep of the common property. Pursuant to this general power permission was given to the previous owner of unit 1 to install a garden gate on common property to regulate access to the common driveway in front of his unit. Permission to install the gate was subject to the condition that the proprietor of unit 1 would be responsible for the maintenance thereof. Permission was also granted to a few other proprietors to install gates that give access to common area driveways but at their cost. All the additional gates that had been installed are therefore subject to the same condition namely that the maintenance and replacement costs are for the account of the proprietor of the unit that installed it.
The previous owner of unit 1 accepted these conditions prior to installing the gate. Over a period of time the gate became worn and was removed recently after being damaged by a storm.
The respondent has indicated that it stands by the previous decision of the strata company and that the applicant or proprietor of unit 1 may therefore replace the garden gate provided they do so at their cost.
The decision on the respondent does not appear to be "unreasonable" as is required for me to make an order under s 85. The complex was designed with open entrances leading to the driveway. The respondent has, at the request of owners of some units, agreed for them to install gates in the entrances leading to the driveway area at their own cost. The respondent cannot be held accountable for the maintenance or replacement of such gates.
Finding
The applicant has failed to demonstrate that the respondent is under an obligation to install a garden gate at cost of the respondent. The respondent acted within its powers by approving an application by proprietors of individual units to install gates at their cost. The maintenance and replacement of such gates are subject to the conditions imposed by the respondent.
The application should therefore be dismissed under s 81(4) of the Strata Titles Act1985 (WA).
Orders
The application is dismissed.
I certify that this and the preceding 7 pages comprise the reasons for decision of the Tribunal.
______________________________
B De Villiers, Member
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