Matysiak and Anor and Gabel
[2005] WASAT 179
•25 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: MATYSIAK & ANOR and GABEL [2005] WASAT 179
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 25 JULY 2005
FILE NO/S: CC 1980 of 2005
BETWEEN: ANNE MATYSIAK
First Applicant
DEAN WARD
Second ApplicantAND
LINCOLN GABEL
Respondent
Catchwords:
Strata titles Individual ownership of lot Maintenance and repair of underground sewerage pipe Right to enter of strata company
Legislation:
State Administrative Tribunal Act 2004 (WA), s 7, s 9, s 11(1) and s 60(2)
Strata Titles Act 1986 (WA), s 11(2), s 17(1), s 35(1), s 38(2), s 38(3), s 39(1), s 77, s 77B and s 83(1)
Result:
Orders made
Category: B
Representation:
Counsel:
First Applicant : Self-represented
Second Applicant : Self-represented
Respondent: Self-represented
Solicitors:
First Applicant : Self-represented
Second Applicant : Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The first and second applicants, who are respectively proprietors of lot 4 and lot 1 of the strata complex, seek an order under s 83(1) of the Strata Titles Act 1985 (WA) ("the Act") for the resolution of a dispute with the respondent who is proprietor of lot 3. The dispute arises from the alleged refusal of the respondent to clean the sewerage pipe that runs underground through his lot from roots, and to repair the pipe in order to prevent further blockages from occurring.
The applicants contend that they have obtained professional advice to show that if precautionary measures were not taken, the problem of blockage and overflowing would increase. They contend that it is the responsibility of individual owners to unblock and, if necessary, repair the part of the sewerage pipe that runs through their property.
The respondent contends that the clearance and maintenance of the sewerage pipe is the responsibility of all owners, and should therefore be treated as common property. The strata company is responsible for the cleaning and fixing of the pipe, and is willing to contribute to the cost of the strata company.
Orders made for the dispute to be resolved on the basis that, according to the strata plan, the pipe forms part of lot 3, and it is therefore incumbent on the respondent to repair and maintain it in accordance with the requirements of the Act.
Applicants and respondent
The first applicant is the proprietor of lot 4/140 Subiaco Road, Subiaco. The second applicant is the proprietor of lot 1/140 Subiaco Road, Subiaco.
The respondent is the proprietor of lot 3/140 Subiaco Road, Subiaco.
Submissions were received from the applicants and respondent. Enclosed in the submissions were records of previous correspondence and meetings to resolve the issue, correspondence from other owners, as well as photographs and a video to demonstrate the location of blockages and cracks in the sewerage pipe.
Application lodged with State Administrative Tribunal
The application was lodged with the State Administrative Tribunal ("SAT") on 22 February 2005. The application was amended on 3 May 2005. A directions hearing was held on 28 April 2005 before Senior Member Raymond.
The SAT was established on 1 January 2005 under s 7 of the State Administrative Tribunal Act2004 (WA) ("SAT Act").
The application for relief was lodged under s 77 of the Act. The applicants did not certify, as is required by s 77B, that the strata company had no bylaws to regulate the resolution of a dispute. However, no submissions were received in regard to the existence of alternative dispute resolution bylaws. Due to the urgency of the application and the fact that it has been ongoing for more than a year, I am willing to proceed therewith. 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 Act.
The matter is determined on the papers pursuant to s 60(2) of the SAT Act as ordered by Senior Member Raymond on 28 April 2005.
The President of SAT nominated me pursuant to s 11(1) of the SAT Act to constitute the Tribunal to determine the application.
I have now considered the submissions and attachments, and make the following determination.
Parcel
The strata complex is referred to as The Owners of 140 Subiaco Road, Subiaco on strata plan 4510. The parcel and buildings are described as one vacant lot and five doublestorey units of brick and tile construction situated on portion of Perthshire Location Ae and being lot 36 on Plan 52 as contained in Certificate of Title Volume 1168 Folio 173.
The original registration of the strata plan occurred on 4 April 1977 but a resubdivision was approved and registered on 27 February 2003. The parcel abuts the eastern railway to the north, private property to the west, Coghlan Road to the east and Subiaco Road to the south. Following the resubdivision, there is no common property remaining in the complex.
Strata plan and Strata Titles Act
The original strata plan was registered on 4 April 1979 pursuant to the Strata Titles Act 1966 (WA) ("the 1966 Act"). The resubdivision of lots 1 to 5 and common property was registered, and the strata plan amended on 27 February 2003 pursuant to the Act.
In 1985, the 1966 Act was repealed and replaced by the Strata Titles Act 1985 (WA) ("the Act"), which continues to be the relevant Act. In these reasons, unless otherwise specified, all references to sections and Schedules are, respectively, references to sections of and Schedules to the STA.
The amended strata plan shows that the individual lots are not limited to the buildings but also include the land that surrounds the buildings. The strata plan contains the following inscription regarding to the ownership of the surface below each lot:
"The stratum of the lots extends between 5 metres below ... ."
The provisions of the Act of relevance to the application are the following:
Section 11(2):
"A proprietor, mortgagee in possession or occupier of a lot shall not do any thing or permit any thing to be done on or in relation to that lot so that
…
(b)the passage or provision of water, sewerage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil and other services, including telephone, radio and television services, through or by means of any pipes, wires, cables or ducts for the time being in the lot is interfered with."
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 38(2):
"Where a proprietor, mortgagee in possession, or occupier of a lot fails or neglects to carry out any work
…
(b)necessary to remedy a breach of the duty imposed on him by section 11(2),
the strata company may carry out that work."
Section 38(3):
"Where a proprietor, mortgagee in possession, or occupier of a lot fails or neglects to carry out any work on or in relation to that lot required to be carried out by order of a court or tribunal, the strata company may carry out the work specified in the order."
Section 39(1):
"For the purpose of carrying out
(a) any work pursuant to section 38(1), (2), (3) or (6);
(b)any work required to be carried out by a strata company by a notice or order of a public authority or local government;
(c) any work referred to in section 35(1)(c);
(d) any work necessary to repair or renew any pipes, wires, cables or ducts referred to in section 11(2)(b); or
(e)any work required to be carried out by the strata company by order of a court or tribunal,
the strata company may, by its agents, servants or contractors, enter upon any part of the parcel for the purpose of carrying out the work … ."
Section 83(1):
"The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme … ."
By-laws
The bylaws provide the following in regard to the application under consideration:
Schedule 1 s 1(1)(b):
"A proprietor shall
(b)repair and maintain his lot, and keep it in a state of good repair, reasonable wear and tear, and damage by fire, storm, tempest or Act of God excepted."
State Administrative Tribunal Act 2004 (WA)
Section 9 states as follows:
"The main objectives of the Tribunal in dealing with matters within its jurisdiction are
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case … ."
Applicants' submission
The following paragraphs provide a summary of the main elements of submissions, video and photographs by the applicants:
(a)Owners within the complex have "individual ownership" of their lots which means that maintenance of the building and land portion surrounding the building are the responsibility of the owner. Ownership goes down to 5 metres below the surface. The pipeline is within 5 metres of the surface.
(b)Several requests have been made to the respondent to clean and repair the section of the sewerage pipe that runs through his property. If the problem is not dealt with, it would have ramifications to other owners. On previous occasions, a buildup of waste has caused flooding in some units.
(c)A professional drain cleaner made a video of the increasing root encroachment in the pipe. Although it appears that the roots are entering from a neighbouring property, it remains the responsibility of the respondent to address the problem.
(d)DOLA (now Department of Land Information) has been contacted, and has advised that the individual owner is responsible to clean and maintain the pipe. According to DOLA, there is no common property in the strata complex, and each owner is therefore responsible for his lot which includes ownership 5 metres below the surface.
(e)The first applicant had to call out a plumber twice in 2004 to unblock pipes and to replace one pipe. The video the applicants submitted shows that there are further cracks along the pipe located on the property of the respondent.
(f)Included in the applicants' submission was a letter dated 14 April 2005 from Mr Les Wilshusen, Assistant Registrar of Titles, in which he states that:
a. The individual proprietors own the land areas outside of the buildings.
b. There is no common property in the strata complex.
c. The ownership of each proprietor extends to 5 metres below the surface up to the boundary of the lot.
d. The section of the pipeline falling within a lot is owned by the proprietor of that lot and he is responsible for it.
Respondent's submission
The following paragraphs provide a summary of the main elements of the submission by the respondent:
(a)The alleged root encroachment is not caused by trees or vegetation on his property, and he is therefore not responsible for clearing it.
(b)He is not opposed to the sewerage pipe being cleared or replaced but he would not accept sole responsibility for costs that arise from it. The pipe forms part of common property and must therefore be maintained by the Owners.
(c)Currently the sewerage is flowing well and no problems are experienced. Therefore, there is no need for the application to be brought or a determination to be made.
(d)Advice obtained from DOLA's Mr Rob Warner is that the pipe forms part of common property and should be dealt with on a corporate basis.
(e)The respondent acknowledges that he is responsible for any pipes of which he has the sole use, but the sewerage pipe in question is for use by all the dwellings, and cannot be the responsibility of any individual owner.
Consideration
The Act contains several provisions that are relevant to this application. The main provisions of the Act are quoted above.
In summary, the Act provides that a proprietor is responsible for the repair and maintenance of his lot, and if he fails to comply with the duty, the strata company may enter the lot to undertake the work.
The Act anticipates that disputes may arise from time to time between proprietors, and hence, the Tribunal is placed in a position to make a determination within the framework of the Act and bylaws thereto. There are two questions at stake in the application:
(a)does the pipe form part of common property or is it part of the lot, and
(b)who is responsible for the cleaning and maintenance of the pipe?
Although the respondent contends that the current flow in the pipe is free of any obstruction, I accept the concern expressed by the applicants based on the video material submitted.
The applicants submitted photographs and a video recording by a professional drain cleaning company to demonstrate the presence of cracks in the sewerage pipe and roots causing blockages. The first applicant has already incurred some costs to clean and repair the section of pipe in her lot. Whether or not there is currently a blockage that affects the flow of water is in dispute, but the evidence nevertheless suggests that cracks exist and that root intrusion is taking place. This is visible on the video. The applicants have over a period to time attempted to convince the respondent of his obligations to clean and maintain the pipe. The respondent has replied that the pipe is common property and therefore the responsibility of the strata company. He has also raised the defence that the roots do not originate from trees on his lot and that he cannot be held responsible for items that other residents flush down their toilets.
I will henceforth address each of these responses.
In response to the question whether the pipe forms part of common property or part of the lot, the answer is found in the strata plan. Since the re-subdivision of the complex on 17 February 2003, ownership of the land surrounding each unit up to the fence line, vests with the proprietor of that unit. The ownership extends up to 5 metres below the surface of the lot. The sewerage pipe falls within the 5 metres. This is confirmed in the written advice received from the assistant registrar of titles Mr Wilshusen. Although the sewerage pipe also serves other units within the complex, the part that runs through lot 3 forms part of the lot of the respondent. It is therefore not common property but part of lot 3.
In response to the second question, it follows that, being part of the lot, it is incumbent on the owner of the lot to maintain the pipe in accordance with the Act. I refer in this regard to the following sections of the Act:
(a)Schedule 11(2) requires from a proprietor not to do anything or permit anything to be done that may interfere with the passage of sewerage;
(b)Schedule 38(2) and s (3) enables the strata company to undertake any work if the proprietor fails or neglects to undertake work as required under s 11(2);
(c)Schedule 39(1) empowers a strata company to enter in order to do certain work on behalf of the proprietor;
(d)Schedule 1 by-law 1(1)(b) requires from a proprietor to repair and maintain his lot and to keep it in a good state or repair.
The respondent raised two further concerns, namely, the predicament he faces that blockages caused by others become his responsibility, and secondly, that the entire complex derives benefit and usage from the sewerage pipe. These concerns seem reasonable, and require a pragmatic solution if possible. It would, indeed, be sensible for the owners of the complex to devise a joint strategy to deal with the cleaning and replacement of the sewerage pipe. However, in doing so, their actions rest on good neighbourliness and not on the notion of "common property". If, indeed, the respondent finds that the part of the pipe over which he has ownership is blocked due to the actions or inactions of neighbours, there are civil legal remedies at his disposal to pursue those who are causing the nuisance.
Finding
The application should succeed under s 83(1) of the Act, as the dispute whether the respondent is responsible for the maintenance and repair of the sewerage pipe that forms part of his lot, is determined in favour of the applicants.
Orders
1.The part of the sewerage pipeline that runs through lot 3 forms part of the lot.
2.The respondent must take the steps necessary to ensure that the part of the pipe on his lot is properly maintained, unblocked and, if necessary, repaired to ensure the unobstructed flow of water.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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