MCDONAGH and OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228 - [2011] WASAT 148

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: MCDONAGH and OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228 [2011] WASAT 148

MEMBER: MR S ELLIS (SENIOR SESSIONAL MEMBER)

HEARD: 15 JUNE 2011, FINAL SUBMISSION FILED 22 JUNE 2011

DELIVERED : 19 SEPTEMBER 2011

FILE NO/S: CC 300 of 2011

BETWEEN: MICHAEL JOHN MCDONAGH
ESTATE OF THE LATE SONIA LEEANNE GILLIS
Applicants
AND
OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228
First Respondent
I HOCKEY
C HOCKEY
Second Respondents
G SANTICH
M SANTICH
Third Respondents
JILL ADAMS
Fourth Respondent
A STURROCK
Fifth Respondent

Catchwords:

Enforcement of by-laws - Removal of obstructions to common areas

Legislation:

Strata Titles Act 1985 (WA), s 35(1)(a), s 35(1)(c), s 39(1), s 42, s 83, s 83(1), Sch 1, Sch 1 bylaw 1(2)(a), Sch 2, Sch 2 bylaw 2

Result:

Order for strata company to remove obstructions from common areas of development

Category: B

Representation:

Counsel:

Applicants:     Mr M McDonagh
First Respondent           :     Mr Murphy and Ms E Sherwood
Second Respondents     :     Mr I Hockey
Third Respondents        :     Mr M Santich
Fourth Respondent        :     Self-represented
Fifth Respondent          :     Mrs C McCarton

Solicitors:

Applicants:     Self-represented
First Respondent           :     Self-represented
Second Respondents     :     Self-represented
Third Respondents        :     Self-represented
Fourth Respondent        :     Self-represented
Fifth Respondent          :     Self-represented

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants, who are proprietors of Lot 8 in Mount Bakewell Resort Strata Plan 18228 sought an order under s 83 of the Strata Titles Act 1985 (WA) that the respondent strata corporation remove all obstructions from a thin strip of land running between Lots 3, 5, 7, 9, 11 and 13 and Lots 2, 4, 6, 8, 10 and 12 in that development, so as to provide reasonable access to Lot 8.
The strip of land had been largely fenced in by a number of the proprietors of lots in Mount Bakewell Resort Strata Plan 18228. Although the Tribunal regarded the use of the strip of land as an access way as less than ideal, it appeared there were no other feasible means by which access could be obtained. Accordingly, the Tribunal made the order sought.

Introduction

Mr McDonagh and the Estate of the Late Sonia LeeAnne Gillis (Estate), bring this applicant in order to obtain access to Lot 8, which they own in Mount Bakewell Resort Strata Plan 18228 (Development).
The application can best be understood by reference to the diagram in Appendix 1, which is taken from the Landgate strata plan. It will be seen that there is a thin strip of land (Strip) which runs between Lots 2, 4, 6, 8, 10 and 12 (Even Lots) and Lots 3, 5, 7, 9, 11 and 13 (Odd Lots). It is about 3 metres wide. This Strip is part of the common area of the strata development and is the land the subject of this application. There are obstructions on the Strip, mainly fences. Mr McDonagh presently has no other practical means of getting vehicular access to his Lot.
The applicants seek an order under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) requiring the strata corporation of the Owners of Mount Bakewell Resort Strata Plan 18228 (first respondent) to exercise its powers to clear the Strip of any encroachments or private property so that the Strip can be used to provide access to Lot 8.

The parties

The application was initially made by Mr McDonagh in his own name. At the hearing, the trustee of the Estate was joined as an applicant and Mr McDonagh was given permission to represent the Estate.
The first respondent was represented at the hearing by Mr Murphy and Ms Sherwood, who were councillors of the strata corporation and the proprietors of unit 1. In addition, each of the following was joined as a respondent:
a)Mr I and Mrs C Hockey, the proprietors of Lot 11;
b)Mr and Mrs G Santich, the proprietors of Lot 10;
c)Ms J Adams, the proprietor of Lot 5; and
d)Ms A Sturrock, a proprietor of Lot 6.
Mr Hockey, Mrs Santich and Ms Adams participated at the hearing. Ms Sturroch was represented at the hearing by her mother, Mrs Carolyn McCartin.

Factual background

There was little dispute about the factual background.
It was common ground that there is no access to the Even Lots along their northeastern boundary. The land the subject of the Development had formerly been part of the Mount Bakewell Caravan Park. When the strata plan was created, Lots 2 to 14 were hived off. Lot 1 continued to be used as a caravan park. Initially, the proprietors of the Even Lots had been able to obtain access to their properties over Lot 1. At some stage, however, the owner of Lot 1 built a fence about a 100 millimetres back from the boundary of the Even Lots and Lot 1 which prevented the proprietors of the Even Lots obtaining access to their properties over Lot 1. It appears that the fences along the northwest boundaries of the Even Lots were built about a metre back from that boundary. Accordingly, it is possible for Mr McDonagh to walk to his lot between the back fence of the Even Lots and the fence on Lot 1. However, he has to go on other people's land to do so.
There is a gravel road or access way running along the southeastern boundary of the Odd Lots which provides access to them. There was evidence that all or some of this access road was not located on common areas of the development. There is more common area to the southeast of the Odd Lots, but at least some of that area is hilly and not particularly suitable for a road.
It was also agreed by all the parties that there were encroachments on the Strip which prevented coming and going along the Strip. A number of the proprietors had fenced in parts of the Strip so that the southeastern fence of an Even Lot met the northwestern fence of the corresponding Odd Lot, with no real gap between them. There may be common fencing between the corresponding Odd and Even Lots. The fencing makes it impossible for Mr McDonagh to walk or drive a car to his lot along the Strip.

Relevant legislation

Section 42 of the ST Act provides that the by-laws in Sch 1 and Sch 2 apply, unless amended or repealed. Bylaw 1(2)(a) of Sch 1 provides that a proprietor shall use and enjoy the common property in such manner as not to interfere with the use and enjoyment thereof by other proprietors. Bylaw 2 of Sch 2 provides that a proprietor shall not obstruct lawful use of common property by any person. There was no suggestion that these bylaws had been amended. Section 35(1)(a) of the ST Act requires the strata company to enforce the bylaws. Section 35(1)(c) requires the strata company to keep the common property in good and serviceable repair. Section 39(1) enables a strata company to enter upon land for the purpose of carrying out works under s 35(1)(c). The combined effect of these provisions gives the strata corporation power to carry out works to prevent unauthorised obstruction of the common property, and which has the effect of preventing its legitimate use by other proprietors.
Section 83(1) provides that the proprietor of a lot may apply to the Tribunal for an order for settlement of a dispute or the rectification of a complaint with respect to the failure by a strata company to exercise or perform a duty or function conferred or imposed under the ST Act or the bylaws. Section 83 does not set out criteria to be applied by the Tribunal in making determinations under it. Accordingly, the Tribunal's discretion to grant relief under s 83 must be exercised by reference to the objects of the legislation, and general considerations of fairness and reasonableness.

Consideration

The parties did not dispute that Mr McDonagh was not able to obtain adequate access to his property and that this situation was unsatisfactory. Apart from the obvious inconvenience of being unable to get to his lot, Mr McDonagh indicated that he was unable to get insurance for his house because insurers would not provide insurance unless fire and emergency services can access his home.
At a directions hearing on 7 April 2011, Member de Villiers directed the first respondent to state whether it agreed that there were structures on the property, and, if it considered that there were, why an order should not be made for their removal. The first respondent did not have time to organise a meeting to formulate a formal response, so it passed on the enquiry to the proprietors in the Development. A number of responses from the proprietors were received by the Tribunal. Mr Murphy and Ms Sherwood favoured the application. Mr Garlick and Ms Sturrock agreed that an order should be made for removal of unauthorised structures on the Strip.
Mrs Santich and Mr Hockey opposed the proposal to clear the Strip, although they did not dispute that the present situation was not practical for Mr McDonagh and that there were obstructions on the Strip. They opposed the application because they considered that there was a better means by which the Even Lots, including Mr McDonagh's, could have access.
Mrs Santich and Mr Hockey considered that the proprietors of Odd Lots should grant easements over their properties to allow the proprietors of Even Lots access. They had taken steps to further this arrangement by having suitable drawings for units 10, 11, 12 and 13 drawn up. It appears that an arrangement of this nature was in place with Lot 10 and Lot 11.
Mrs Santich and Mr Hockey said that there had been a meeting of the proprietors in March 2011, at which it had been agreed that the creation of easements was the best solution. It appears, however, that some proprietors of Odd Lots either withdrew their agreement or were not willing to enter into the agreement in the first place. At the hearing, Mrs Santich and Mr Hockey agreed that the proprietor of Lot 9 was not willing to grant an easement in favour of Lot 8 to enable Mr McDonagh to gain access to Lot 8 over Lot 9.
Mrs Santich and Mr Hockey argued that using the Strip as the main access way would not be practical. The Strip was only 3 metres wide, so access for trucks would be tight. Further, the Strip does not have enough space at the end for vehicles to turn around. They argued that it would be necessary for vehicles, including trucks, to reverse backwards out along the Strip. Mrs Santich also noted that she was planning to have construction work done on her lot. She contended that it would not be practical for construction work to be done relying on the Strip for access. She also suggested that there would be problems due to the amount of traffic along the Strip.
Another difficulty is that the Strip is used for the provision of underground services to both Odd Lots and Even Lots. Mrs Santich and Mr Hockey both expressed reservations about whether use of the Strip to provide access to Even Lots would interfere with these services.
There is substance to the criticisms of Mr McDonagh's proposal. Three metres is not wide. Cars will not be able pass in both directions and will not be able to park on the Strip. However, in practice some of the difficulties may not be as great as is feared. Cars may be able to turn around on Even Lots. Clearing the Strip will not prevent proprietors in the Development continuing to use whatever access they presently enjoy. It seems unlikely that the proprietors of Odd Lots will stop using their access road along the southern boundary of Odd Lots just because the Strip is cleared. If Mrs Santich's builder is not able to use the Strip to obtain access to her Lot, and needs to use alternative access, that is no worse than the situation which exists at the moment.
It may be the case that the grant of easements by Odd Lots in favour of Even Lots behind them might work as well or better than using the Strip to provide access. It is not necessary to decide whether this is so because creating easements requires the cooperation of the proprietors of Odd Lots. In particular, the proprietor of Lot 7 must grant an easement over his land in order to give Mr McDonagh access to Lot 8. It appears he is unwilling to do so. The Tribunal has no power to compel him to do so. Unless and until the proprietor of Lot 7 grants an easement, the suggestion of Mrs Santich and Mr Hockey is not a workable solution.
The Tribunal was provided with a copy of a letter dated 9 August 2006 from the Shire of York. That letter expresses the view that the Strip is not suitable or practicable for development as an access road to service the properties. In that letter, the Shire of York's Chief Executive Officer suggested that the Strata Plan should be amended to provide unrestricted access to each individual property. That course of action may well be a solution preferable to either of the solutions put forward at the hearing, but again, it is not something which I can order on this application. It is not something which has been achieved by agreement between the parties up until now.
Ms Adams also opposed the relief sought by Mr McDonagh. She wrote to the Tribunal on 4 May 2011 and indicated that she had no unauthorised structures on the Strip and that she had permits from the Shire and other strata members in 1994. During the course of the hearing it emerged that the permits to which Ms Adams was referring were building permits for the construction of her house, rather than permits which related specifically to the use of the common property. Ms Adams also complained about the fact that the proprietor of Lot 1 had taken away access to the Even Lots over Lot 1. The conduct of the proprietor of Lot 1 is not a matter before the Tribunal.
Ms Adams also raised concerns about the presence of Telstra signage on or near the Strip. Mr McDonagh contended that the signage could be replaced with a placard.
At the hearing, the Tribunal made a direction that the first respondent provide a copy of any records relating to any agreements about or resolutions concerning the use of the Strip. On 20 June 2011, Ms Sherwood provided a copy of minutes of a meeting held on 12 November 1994 in which the proprietor of Lot 1 indicated that he would be willing to exchange all 'gravel roads and 3 m service lane for the common land and shed at the entrance to the Strata Title Subdivision'. He is recorded as saying that he would give the owners 'a right of carriageway (or whatever necessary) to allow entry to the properties'. The minutes also record that it was contemplated there would be an application for 'destruction' of the strata plan and for a new strata title subdivision, involving various access ways. Although these proposals are recorded in the minutes, they were not implemented. No record was provided of a resolution removing the Strip from the common property of the Development.

Conclusion

Having considered all the materials provided by the parties and the submissions made at the hearing, it is apparent that clearing the Strip to create an access way to Lot 8 is not an ideal solution. A preferable course of action would be that suggested by the Shire in its letter of 9 August 2006, but that cannot be achieved by this application. It may be that creation of easements would be preferable, but that requires the consent of the proprietor of Lot 9, and, as far as Mr McDonagh is concerned, that consent is not forthcoming. The Tribunal is left with the choice of removal of obstructions from the Strip or leaving Mr McDonagh with no access to his property. In the circumstances, the obstructions should be removed.
While an order will be sought by the applicant, the Tribunal urges the parties to continue to work on arrangements which will provide a full and final resolution of all access issues.

Orders

1.The Owners of Mount Bakewell Resort Strata Plan 18228 do all things necessary to remove any obstructions from that part of the common property of the Mount Bakewell Resort Strata Plan 18228 which lies between Lots 3, 5, 7, 9, 11 and 13 and Lots 2, 4, 6, 8, 10 and 12.
2.The Owners of Mount Bakewell Resort Strata Plan 18228 bear costs of this work and the replacement of any fences removed during this work; and
3.The parties have liberty to apply for directions in the event that issues arise as to the implementation of this order or in the event that the parties, including Mr McDonagh, reach an alternative agreement.

Appendix 1

I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR S ELLIS, SENIOR SESSIONAL MEMBER