MCLERIE and DRAKE-BROCKMAN - [2010] WASAT 59

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: MCLERIE and DRAKE-BROCKMAN [2010] WASAT 59

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 10 MARCH 2010

DELIVERED : 20 APRIL 2010

FILE NO/S: CC 956 of 2009

BETWEEN: MARK MCLERIE
Applicant
AND
MARGARET DRAKE-BROCKMAN
Respondent

Catchwords:

Strata Titles Act 1985 (WA) - Effect of informal exclusive use of areas of common property - Whether one owner in twolot scheme entitled to oppose proposed changes to method of management of strata scheme

Legislation:

Strata Titles Act 1966 (WA), by-law 3(f)
Strata Titles Act 1985 (WA), s 36A, s 36A(1), s 42A, s 81(1), s 83, s 85, s 90, s 103A, s 103B, s 103C, s 103L

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr R Kronberger

Solicitors:

Applicant: Self-represented
Respondent: Atkinson Legal

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

Bacroy Pty Ltd and The Owners of Westside House Strata Plan 11137 [2006] WASAT 153
The Owners of 100 President Street, Welshpool, Strata Plan 13322 and Damer [2008] WASAT 258
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In May 2009, the applicant purchased a lot in a twolot single tier strata scheme.
The rear portion of common property was divided by a low dividing fence and prior to the applicant becoming a lot owner, his predecessor in title and the respondent, as owners of the other lot, by conduct, accepted responsibility for the maintenance of the common areas adjoining each lot. Also by conduct, the lot owners had granted each other a licence for the exclusive use of the carports adjoining their respective lots, patio areas and garden sheds.
A dispute arose between the applicant and the respondent when the applicant sought to increase the height of the fence dividing the common property. After that dispute arose, the applicant made an application to the Tribunal seeking a change in the management arrangement to a more formal structure and requiring the respondent to share in the cost of all maintenance to the common property garden and other related relief.
The Tribunal concluded that the respondent, and therefore the strata company, had not acted unreasonably in rejecting the applicant's proposals for a change in the management structure, or in agreeing to maintenance being carried out, provided the applicant bore the cost, based on the particular facts of the case. The garden maintained by the respondent on common property was described by the Tribunal as a pleasant sanctuary. By contrast, the common property garden adjoining the applicant's lot had become overgrown and appeared derelict.
The Tribunal concluded that it must have been obvious to the applicant at the time of purchase that the strata scheme was not operated under a standard strata management regime. It appeared consistent with that understanding that the applicant had originally sought only to increase the height of the fence dividing the common property in order to enhance the privacy of the two separated garden areas. The Tribunal also concluded that the applicant had no genuine desire to interfere with the exclusivity which the lot owners enjoyed in the use of areas of common property and in the enjoyment of the separated garden areas. Further, that the applicant had advanced a multitude of claims in order to overbear the respondent and induce her into agreeing to his proposal to merge the respective common property areas into each lot and to convert the scheme to a survey strata scheme.
The Tribunal observed that a time might be reached once the common property areas adjacent to the applicant's lot had been improved to a standard comparable with the common property adjacent to the other lot when it might be unreasonable to insist on the continuation of the current management arrangements. The application was dismissed.

The application

In these reasons for decision, all references to sections of legislation are references to the Strata Titles Act 1985 (WA) (ST Act) unless expressly stated to the contrary.
On 1 July 2009 the applicant commenced proceedings in the Tribunal seeking a range of orders against the respondent, namely, interim orders for the completion of maintenance and repair work to common property and consenting to alterations to common property which the applicant sought to carry out, an order under s 90 for the supply of information or documents, an order under s 103B to enable a quorum to be established at a general meeting of the strata company, an order under s 103C making a resolution for a twolot scheme, an order under s 103L for an order to contribute to an insurance premium and finally an order under s 85 that the strata company consent to a proposal for alterations to the common property.
At the time of making the application the respondent was on holiday in the United Kingdom and was not expected to return until November 2009. She was represented initially by her son, Mr Howard Brockman, and later by Mr Kronberger, of counsel. Consent was given in relation to some of the applicant's requests, but areas of disagreement remain. As the matter progressed, it then became apparent from the applicant's statement of issues, facts and contentions (SIFC) which was filed, that different orders were being sought to those originally claimed. A number of the orders originally sought fell away and the application for interim relief was dismissed.
At the commencement of the hearing, Mr Kronberger raised a number of technical objections to the orders sought in the application. No leave application had ever been made to amend the orders sought as reflected in the applicant's SIFC. As a result of the objections the applicant confirmed that he was no longer seeking an order under s 103B for the establishment of a quorum, nor was he seeking an order under s 103L for a contribution to an insurance premium. Otherwise, the applicant considered that the forms of orders being sought, as reflected in the applicant's SIFC, were consistent with the orders originally sought. In the circumstances, the objection, which amounted to an application for dismissal, was overruled and I indicated that the Tribunal would deal with the substantive dispute between the parties and that if it became apparent that any amendment was needed to the orders sought, the applicant would be afforded an opportunity to apply for such amendment.

The central issues

At the centre of the dispute between the parties is their differing views concerning how the strata scheme should be managed and concerning the manner of use of certain common property areas.
Once those issues are resolved, the multitude of issues raised by the applicant's SIFC will largely fall into place. In the circumstances, I intend to address the central issues and will then apply that outcome to the particular issues raised in the applicant's SIFC.
It is necessary to set out details of the strata scheme, the relevant history and findings against which the central issues can be determined.

The strata scheme, its history and factual setting

The strata scheme was registered on 28 June 1979. The building on the parcel is described as a single storey brick and fibro residential duplex situated on Lot 531 of Swan location 69 on plan 4549 (sheet 3) and having an address of No 12A and No 12B Malsbury Street, Bicton. It is a single tier scheme with the building divided by a common wall into two lots, Lot 1 being 88 square metres and Lot 2 being 102 square metres. The boundaries of the lots are the external surfaces of the building as provided by s 3AB, and the centre plane of the common wall is the boundary between the two lots. The remainder of the parcel comprises common property.
The building is located in the approximate middle of the parcel with a narrow passageway on each side joining the rear and front garden areas. The front of the parcel abuts Malsbury Street. There are two carports in the front area, built off the sides of the building close to the north and southern boundaries of the lots, respectively, which are so positioned that it is obviously intended that each lot has the use of the carport joined to the particular lot. There is no exclusive use bylaw registered to preserve that position. Similarly, the strata plan shows that there is a small porch off Lot 2 but, like the carports, it is part of the common property and there is no exclusive use bylaw applicable to it. Each lot has a single unit entitlement.
The respondent became the owner of Lot 1 on 14 April 1987. The applicant became the owner of Lot 2 on 8 May 2009.
The previous owner of Lot 2 is Mr Graemme Weston who purchased Lot 2 in 1984.
It is evident that, at least initially, Mr Weston had little idea about what strata title ownership entailed, and it can be inferred, in the light of the way in which the property was maintained as detailed below, that, from the outset, Mr Weston and the respondent treated the common property immediately adjacent to each lot as effectively their own. At some point prior to the respondent becoming the owner of Lot 1, a fence had been erected which is understood to follow the plane of the centreline of the common wall separating the two lots, which effectively divides the rear of the property into two separate areas. Mr Weston only became aware of the need to confer with the respondent when his insurers notified him that, as a result of legislative changes, he and the other owner had to take out joint insurance in respect of the common property. It appears that this was within a year or so of the respondent purchasing Lot 1. Thereafter, for at least the next few years, Mr Weston's only contact with the respondent was when he would telephone to request a cheque for half the cost of the insurance. The respondent would provide a cheque and Mr Weston would arrange the necessary insurance.
Mr Weston recalls a time when the respondent requested his permission to erect a shed in the garden behind her lot. He gave his approval, but in a statement provided by him, said that he felt he had no moral right, let alone a legal right, to object. After the initial years, a friendship developed with the respondent and they spoke to each other about 'property improvement interests'. Quite what that means is not clear from Mr Weston's statement, but the reference to speaking about property improvement interests is followed immediately by a statement to the effect that he and the respondent never had a disagreement in the 20 or so years that they were neighbours which suggests, and I find, that the discussions must have included matters relating to the use of the respective properties. The respondent states at para 5.1 of her SIFC that 'all structures and modifications made to both No 12A (Lot 1) and No 12B (Lot 2) Malsbury Street, Bicton, that existed prior to the applicant's purchase, were made by mutual consent of the then existing registered proprietors' (parenthesis added). At para 17.2 of the respondent's SIFC, she states that she can verify that all changes, alterations and common land use was in accordance with the ST Act in an informal mutual strata management agreement by reference to the former proprietor, Mr Weston.
A view was conducted prior to the commencement of the hearing. A small patio has been constructed on common property adjacent to Lot 2 and a larger patio has been constructed on common property adjacent to Lot 1. They are not shown on the strata plan. There is also an enclosed porch adjacent to Lot 2, which is upon common property. It, and the carports, are shown on the strata plan. There is a shed built on Lot 2 and two sheds on Lot 1. None of these structures are shown on the strata plan.
It is improbable that there would have been a discussion about the erection of one shed and not about the other structures (excluding the other shed on common property adjacent to the rear of Lot 1 which the respondent states was there when she purchased Lot 1). Mr Weston may not have fully appreciated the effect of strata title, and that he and the respondent held the common property as tenants in common in shares proportional to the unit entitlements of their respective lots. However, given that Mr Weston recollects the respondent requesting permission for the erection of a shed, I think it is probable, and I find, that there were discussions concerning the other structures. But, even if that were not so, it is evident that Mr Weston and the respondent, by conduct, acquiesced in the continued existence of the patios, and accepted individual responsibility for maintaining the garden areas at the rear of their respective lots, which at all material times were divided, and remain divided, by an asbestos fence.
In respect of the front garden, it appears the respondent has tended generally to the garden but has not accepted responsibility for general maintenance issues. The response in a Scott Schedule, which the Tribunal ordered be filed (item 23 to item 35) shows the respondent maintained her own paved driveway, carport and letterbox in this area. Apart, therefore, from the gardening carried out by the respondent, I find that essentially the same regime for separate maintenance of the front area adjacent to each lot applied as in respect of the rear common property area.
Further, I find that, by conduct, each had granted the other a licence for the exclusive use of the carports adjoining each lot, and in the case of Lot 2, the enclosed porch at the rear, all of which are shown on the strata plan, and the respective areas of garden at the front and rear of each lot as well as the sheds to which reference has been made. This state of affairs may have influenced Mr Weston in stating that he did not think that he had a moral, let alone a legal right to object to the respondent 'using her property for what she felt was a legitimate exercise of her right', in reference to her request for permission to erect a shed.
Consistent with the existence of such a licence is that the respondent and Mr Weston agreed to share the cost of a survey of the parcel when Mr Weston became involved in a dispute with a property developer about the fence line at the rear of the property. A copy of the survey dated 22 December 1999 is Exhibit 2. That reflects that Mr Weston had some understanding that there were some mutual obligations and rights flowing from the strata title, as also reflected in the joint insurance taken in respect of the common property.
On a date which was not identified, Mr Weston ceased to reside at Lot 2 as he moved back into his parents' home in order to care for them. Mr Weston's mother predeceased his father and when the latter died in 2009, Mr Weston decided to sell Lot 2 in order to purchase his siblings' share of the family home in which he continues to reside.
While Mr Weston was caring for his parents, Lot 2 was rented to tenants.
It was in these circumstances that the applicant purchased Lot 2 and became the registered proprietor on 8 May 2009.
Before outlining the dealings which occurred between the parties, it is relevant to make some observations about them.
The applicant presents as a successful businessman who appears to be approximately 40 years of age. His actual occupation and age were not disclosed. He is clearly an intelligent man when regard is had to the quality of the correspondence which he addressed to the respondent, his submissions to the Tribunal and the documentation furnished by him, as well as the manner in which he represented himself at the hearing. The applicant mentioned during the hearing that he owns other strata properties.
The respondent is a 78yearold pensioner who presents as a mildmannered and gentle lady. It is to be noted that Mr Weston states that he had never had a disagreement with the respondent in the 20 or so years that they were neighbours, that their discussions were always pleasant and that there were no 'problems reaching agreements'.
Some observations should also be made concerning the state of the respective lots.
The applicant filed a series of photographs (applicant's documents 9.1 9.13). Those photographs and numerous others are contained in a CD provided by the applicant. The particular photographs referred to were all taken in August 2009 and are therefore reasonably reflective of the rear and front gardens, when the applicant became the owner of Lot 2. The photographs on applicant's documents 9.8, 9.9 and 9.12 reflect that the garden at the rear of Lot 2 was in a general state of neglect. That state was more marked during the view conducted on 10 March 2010, and it is selfevident that nothing has been done to improve the state of the garden since the acquisition of Lot 2 by the applicant. From the applicant's perspective, that is because he sees it as a duty which falls upon the strata company, and therefore both he and the respondent. By contrast, the view disclosed that the garden at the rear of the respondent's property is a very pleasant sanctuary, with neat garden beds, lawned areas and is well shaded by trees.
The applicant states that he met the respondent on 18 April 2009, immediately prior to the acceptance of the offer to purchase Lot 2, and subsequently made numerous attempts to meet with her to discuss 'common property repair, maintenance and improvement issues'. He stated that all attempts to meet were rejected, and referred to document 3.1 to support the assertion that is, a letter dated 20 June 2009 to which further reference will be made. In that letter the applicant recorded that he was sorry that despite his numerous attempts 'you did not find time to discuss my improvement plans in the weeks prior to your departure'. The respondent left for a planned vacation in the United Kingdom on 6 May 2009 with a return flight booked for 2 November 2009.
The respondent states that the applicant had approached her in the week or so prior to the respondent's departure overseas advising of his intention to purchase No 12B Malsbury Street. No leave was sought by either party to crossexamine in order to clarify this area of factual dispute. However, having regard to the correspondence furnished by the applicant, I consider it unlikely that the applicant foreshadowed meeting to discuss common property repair, maintenance and improvement issues, touching upon any of the many issues subsequently raised, other than in respect of the rear dividing fence.
On 17 May 2009, the applicant wrote to the respondent, raising as the subject of the letter 'Re: 12A/12B Malsbury Street Bicton WA 6157 dividing fence'. He stated relevantly as follows:
As you are aware from previous discussions I recently purchased 12B Malsbury Street and would like to improve the property over the coming months prior to reletting the property.
On inspection of the existing rear dividing fence I found it to be low and of pooraverage condition. As the existing fence does not meet the Melville City Council's minimum 1.8 m height requirement I wish to have it replaced. A suitable dividing fence will provide some privacy between the backyards.
Also given there is currently no dividing fence at the front of the property I would like to erect a new front dividing fence. I will seek permission from the council to erect a dividing fence at full height to the front boundary to enable me to fence my front boundary at a later stage. This is fully consistent with the properties that adjoin our properties and others in the street.
I would suggest the basic type of fence to be erected would be Hardifence super 6 with capping. Given that the boundary to be fenced is approximately 40 m (23 m rear, 17 m front) I estimate the cost would be in the order of $2,200 materials (44 sheets of 1 m x 2.4 m @ $43 ea + capping) and $2,200 installation (2 people for 2 days) including the removal of the old fencing making a total of $4,000$4,500.
Given that there is currently no front fence and it is not clear whether the rear fence is actually on the boundary we will need to have the boundaries resurveyed to ensure correct placement of the fences. This would cost approximately $400500.
Hence your share of a sufficient fence according to the local laws in the area would be approximately $2,200$2,500, subject to final quotes.
However, given I intend to erect solid brick fences on other dividing boundaries I would like to discuss the option of building a more substantial solid brick fence (22.5 m high) on our dividing boundary. I believe such an option would greatly enhance the privacy of our backyards and add significant value to both our properties.
I would appreciate you contacting me on [mobile telephone number and email address omitted] to organise a time convenient to you to discuss our options and way forward. I would appreciate a discussion and agreement with regard to the dividing fences within 7 days to enable me to start the work in late June coincident with other planned works to minimise the time vacant between tenants.
For your information the Dividing Fence Act 1961 ( outlines the rights and obligations of property owners in relation to dividing fences. The Act allows me to apply to a Magistrates Court for an order that describes the type of fence to be constructed and how much each party will contribute if after 21 days of receiving this notice you do not agree to erect/repair our adjoining fences.
Yours sincerely

It will be noted that nothing was raised concerning the improvements the applicant contemplated making to the property prior to reletting it. Although the respondent contends that the applicant was aware she was leaving for overseas, the applicant was either not aware of that, or had overlooked any advice to that effect. In the circumstances, the tone of the letter leaves much to be desired when one has regard particularly to its intended recipient, namely an elderly pensioner. It clearly contained an implied threat to apply to the Magistrates Court if the respondent did not agree to contribute towards the cost of the Hardifence within 21 days of receiving the letter.
The respondent's son, Mr Howard Brockman, replied by letter of 1 June 2009, informing the applicant that his letter had been forwarded to the respondent in England. Mr Brockman also confirmed that:
Some weeks prior to her departure on 6 May, and to which I was witness, my mother advised you in conversation that she would be away in England for some months and would deal with the matter on her return in November. She also advised you in conversation, to which I was witness, that she believed the rear dividing fence to be a sufficient fence as described in the Dividing Fences Act 1961 and did not want it replaced, and has thoroughly photographed this fence for her records. The Planning Department at Melville City Council have advised that the fence shall not exceed 1.8 m yet your letter to my mother states, that it shall be a minimum of 1.8 m …
It appears that the only matter discussed was the question of the dividing fence.
The respondent replied by a handwritten letter dated 4 June 2009:
Dear Mr McLerie
I was disappointed to receive your demanding letter. I thought we had agreed to discuss fences on my return to Australia.
However, you force me at this stage to say no to all your suggestions. The rear dividing fence is in sufficient condition, my property, as I told you, was only recently surveyed and the front shrubs which will provide ample privacy were provided by Melville Council under a programme to bring birds back to the suburbs 2 years ago.
Apart from that, I much prefer trees and shrubs to brick walls and high fences and am prepared to continue maintaining the front area as I have for nearly 20 years.
I have always endeavoured to cooperate with all my neighbours and am prepared to discuss this matter further on my return as I indicated earlier.
Yours truly
The applicant responded to Mr Brockman's letter on 5 June 2009 at a time when he had obviously not yet received the respondent's letter from England dated 4 June 2009. The letter dated 5 June 2009 was addressed to the respondent at No 12A Malsbury Street. In that letter, the applicant again only addressed the dividing fence, although there is an introductory statement of intent to renovate the property and improve the gardens and dividing fence. The letter also acknowledges the correctness of the advice that the applicant had attempted to engage the respondent to discuss the dividing fence issue ahead of her departure to the United Kingdom. The applicant stated:
I did not formally progress the issue based on your assertion that Howard would deal with such issues on your behalf in your absence.
The applicant defended his intention to have a wall or fence in excess of 1.8 metres in height, indicating that a fence in excess of 1.8 metres is permissible subject to planning approval. Again, reference was made to applying to the Magistrates Court to seek an order to progress the erection of a new front fence and the reerection of the rear fence. Alternatively, the applicant indicated that he might build a masonry fence on his 'side of the boundary' to the full height permitted by the Council. He stated:
…
This can be done without your consent. However, as I will not have access to your property and you still have the right to erect a dividing fence, I will not be in a position to properly finish the side of the fence facing your property. I doubt this will be aesthetically pleasing. You will not have a right to affix anything to this fence in the future.
I intend to make application to MCC (presumably a reference to the Melville City Council) within the next two weeks to erect masonry fences on my boundaries. If you do not engage me, via telephone, email, fax and/or Howard to discuss and agree the way forward by close of business by Monday 15 June I will progress one, or both, of the above options immediately.
Additionally if I do not hear from you by 15 June, as stated in my letter of 17 May, I will proceed with having the front and rear boundaries resurveyed to ensure the correct location of any new fences. In accordance with the Act you are liable for half of the cost of surveying the front boundary, and half the cost of surveying the rear boundary if it is found to be out of alignment. Should the rear fence be out of alignment you will be responsible for half the cost of any realignment.
Given I fully intend to own this property for some I would prefer to deal with the dividing fence issues amicably in preference to the court process. I would appreciate you contacting me on [contact details omitted] to organise a time convenient for you and/or Howard to discuss and agree the way forward.
…
This correspondence is entirely inconsistent with the applicant's later assertion that he had done his due diligence prior to purchasing Lot 2 and was therefore aware that the respondent was liable to contribute towards the cost of restoring the common property gardens. Again, the tone of the letter and the time limits imposed are not what one would expect when dealing with an elderly pensioner and a neighbour with whom one might wish to build a good relationship.
On 7 June 2009, Mr Brockman responded to the applicant's letter reconfirming his previous advice that he was not empowered to act on his mother's behalf and stating that it was not possible for her to reply within the very limited timeframe stipulated by the applicant. Mr Brockman asserted that the applicant was not entitled to construct any structure on the common property without the consent of his mother and that included boundary walls around the outside of the common areas, nor was the applicant entitled to remove any vegetation or structure without his mother's consent. Mr Brockman provided the applicant with a copy of strata plan 6979.
This correspondence brought about a change of tack by the applicant. The applicant wrote a letter dated 20 June 2009 to the respondent, care of Mr Howard Brockman at No 12A Malsbury Street, Bicton. The subject matter was now 'Alterations/common property'. The letter is some four pages in length. In it, the applicant sought approval from the respondent to carry out detailed alterations to his lot, to carry out detailed common property repairs and maintenance. This included removal of shrubs and trees, reinstating defined garden beds and the rear lawn 'as appropriate to ensure consistency throughout all areas of common property', replacing the dividing fence on the boundary with an adjoining property, removal of the lowlevel rear fence and installation of automatic reticulation to all garden beds and lawns. It also included alterations to common property involving the installation of an additional shed, installation of a gas service to Lot 2, conversion to an underground electrical connection, the increasing of the size of the paved area at the rear of the property (Lot 2) and the installation of a metal patio over part of the paving, alterations to common property fences, the installation of a solid brick fence on the boundary of adjoining property, and the installation of brick fences at the front and rear of the lots as well as a 'visually permeable brick pier front fence'.
For the first time, the applicant indicated that he requested an immediate written approval for all the common property repair and maintenance issues and indicated that he would obtain quotes to have the work done. He informed the respondent that the cost for reasonable repairs and maintenance to common property is the responsibility of the lot holders in shares proportional to the unit entitlements of their respective lots.
The applicant raised that he wished to clarify with the respondent how:
… we will manage common property access, ongoing maintenance and insurance in the future, particularly so I can ensure these issues are appropriately reflected in any future tenancy agreements…
…
An alternative approach to dealing with common property issues is to progress the merging of our proportionate shares of common property into our respective lots, as an incremental step to converting to survey strata at some time in the future. This is a relatively simple process which I am happy to progress with your approval. You previously stated that you have already had the property surveyed. If you provide a copy of work completed to date I would be happy to reimburse you 50% of any reasonable survey costs, provided it is relevant to a merger and a receipt is provided. Alternatively I can arrange a new survey.
Notwithstanding that the above letter called for a meeting at No 12B Malsbury Street at 2 pm on Saturday 4 July 2009, the applicant lodged the application commencing these proceedings on 1 July 2009.
By letter dated 7 July 2009, Mr Brockman responded to the applicant's letter of 20 June 2009 on behalf of his mother. Mr Brockman expressed the view that no consent was needed to the alterations to Lot 2 itself, that consent was given to carrying out the thinning of the front garden, the pruning and/or removal of trees and stumps and the reinstatement of garden beds and rear lawn, subject to the applicant bearing the cost. Consent was also given to vegetation on the verge being removed immediately in front of Lot 2. Consent was given to the construction of a boundary wall between the parcel and an adjoining neighbour, provided the wall did not exceed 2 metres in height and was paid for by the applicant. The respondent refused to agree to the removal and replacement of the fence dividing the common property at the rear of the property. Consent was given to building a shed at the rear of Lot 2, an increase in the size of the paved area and the installation of a metal patio, provided that all improvements were at the cost of the applicant. Subject to prior approval of drawings and specifications, the respondent also consented to a dividing fence being constructed to divide the front garden. The applicant was informed that the respondent did not wish to convert to a survey strata plan.
Attempts to mediate the dispute failed. At a directions hearing on 29 September 2009, there appeared to be an ongoing dispute about what consents had been given and precisely what was then required by the applicant. Consequently, the Tribunal made orders for the filing of statements of issues, facts and contentions by each of the parties, incorporating a Scott Schedule, prioritising all necessary work, providing a programme for the completion thereof, and an estimate of the cost of each item of work. The Scott Schedule, allowing for some item numbers which were left incomplete presumably for spacing and set out reasons, contains 36 separate items relating to common property issues and seven separate items dealing with management issues. The management issues include the provision of garden services, the establishment of a reserve fund for future improvements and the appointment of an agent to administer the strata company.

Considerations

It is inconceivable that any person purchasing Lot 2 at the time when the applicant purchased it would not have realised that this twolot strata scheme had been operated as if each lot owner was the individual owner of the portions of the front and rear property immediately adjoining each lot. It may be, as the respondent asserts, that she basically looked after all of the front garden, but the appearance of the lots would not have conveyed that, given the existence of the dividing fence down the middle of the rear common property.
The early correspondence reflects that the applicant was of the view that the development was operated in the above manner. The applicant asserted a right to build a masonry fence on his side of the 'boundary' fence dividing the rear of the parcel. The only issue that he raised until after Mr Brockman provided a copy of the strata plan and informed the applicant that he should not construct any structure on the common property without the respondent's consent, related to the replacement of the rear dividing fence and the construction of a similar fence dividing the front property.
As found above, by their conduct, Mr Weston and the respondent had granted each other a licence for the exclusive use of the respective carports and sheds, as well as the enclosed porch on Lot 2 and garden areas adjoining their respective lots, and had agreed that each would be individually responsible for the maintenance and upkeep of the common property areas adjoining their respective lots. In each case the licence for the exclusive use of the areas described was for an unspecified period and must be regarded as being terminable at the will of the strata company.
The applicant contends that any such licence is of no legal effect. The applicant made this submission in support of a proposed amended order for the removal of the fence dividing the common property at the rear of the lots. In doing so, the applicant relied on The Owners of 100 President Street, Welshpool, Strata Plan 13322 and Damer [2008] WASAT 258 (Damer) and Bacroy Pty Ltd and The Owners of Westside House Strata Plan 11137 [2006] WASAT 153 (Bacroy). Reference was made to a passage of the Damer decision at [19] where the Tribunal stated that, in executing its duty to control and manage the common property for the benefit of all proprietors under s 35(1)(b) of the ST Act, the strata company is charged with reining in any proprietor treating common property as the exclusive domain of that proprietor. The applicant also relied on a passage at 53 of the Bacroy decision where the Tribunal stated that, by introducing, in 1995, a 12 month extinguishing period (for the making of an application for an order recognising special privileges granted under bylaw 3(f) under the Strata Titles Act 1966 (WA)), subject to a right to apply within three years to the referee for an appropriate order, it could be concluded that the legislature intended to bring some finality to unregistered rights or privileges.
With respect, the applicant has misconstrued the effect of both cases. In Damer, a proprietor had carried out unauthorised alterations which extended over common property. However, at the very first annual general meeting of the strata company, a motion was passed in terms that the registered proprietor of the particular lot would have for a period of 10 years exclusive use of that portion of common property. In effect, the strata company granted a licence to that proprietor. It was not registered as a bylaw. Well after the expiry of the 10 year term, the strata company determined to require the proprietor of the particular lot to remove all temporary structures and to return the common area to its original state.
Bacroy was dealing with a quite different situation in which a proprietor had been granted special rights or privileges under a bylaw operating under the Strata Titles Act 1966 (WA) which was effective to give unregistered rights or privileges. The Strata Titles Act 1985 (WA) replaced that regime for granting exclusive use and enjoyment or special privileges. The decision was dealing with the effect of the transitional provisions of the 1985 legislation, and the passage relied on by the applicant was simply commenting that the legislature intended to bring some finality to unregistered rights or privileges by providing for a 12 month extinguishing period but subject to a right to apply within three years to the Strata Titles Referee for an appropriate order. The 1985 legislation, by s 42(8), provided that a strata company may, with the consent in writing of the proprietor of the lot, pursuant to a resolution without dissent (or unanimous resolution in the case of a twolot scheme), make under that subsection only and not otherwise, a bylaw in respect of that lot conferring on that proprietor the exclusive use and enjoyment or special privileges in respect of common property. The effect of this section and the transitional provisions to which I have referred was that notation on a strata plan 'for the use of' or an unregistered right or privilege granted by former by law 3(f) under the Strata Titles Act 1966 (WA) could not, without more, constitute the grant of exclusive use or special privileges. But, the 1985 legislation did not prevent the grant of a licence enabling a proprietor to use a specified common property in a particular manner: see s 19(10)(b). That this is so is also evidenced by s 94, which enables the Tribunal to grant a licence for the use of common property if satisfied that the strata company has refused to do so, subject to certain criteria being met.
The issue here, therefore, is whether the licence granted to the respondent and the decision of the strata company (in effect, reflected by the agreement between Mr Weston and the respondent) to manage the common property as they have done for the past some 20 years, should be allowed to continue, or not.
The disadvantage of such a periodic licence for an indefinite term is that it takes only a simple majority of owners, in general meeting to decide to revoke it. Ordinarily, that presents no difficulty, but, in the case of a twolot scheme, with equal unit entitlements, it may prove difficult to pass such a resolution. Where it is proposed to change the manner in which a strata company has been managed (in this case requiring termination of the existing licences), the Tribunal will have power to break any deadlock under s 83. Where there is a proposal to effect alterations to common property, such as by removal of sheds or fencing, the Tribunal will be able to break any deadlock by using the powers granted to it under s 85. However, before the Tribunal intervenes in either case, it is necessary to be satisfied that any proposal has been unreasonably refused. The Tribunal will be slow to intervene and will do so only if there is no good sense or logic to support the refusal of the proposal: The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1.
The method of management adopted by Mr Weston and the respondent has worked satisfactorily for some 20 years. Each owner has effectively maintained their respective lot and the adjacent areas of common property as if they were the owner of it and have borne all expenses in relation to it.
The general approach adopted by the respondent in relation to the front and rear garden areas is that there is no objection to the applicant carrying out whatever garden maintenance he wishes in the common area immediately adjacent Lot 2, provided that it is done at the cost of the applicant. Given the arrangement that has been in place for so long, there is a sound and logical reason for this position and it would be wrong for the Tribunal to intervene. The same applies to the general management of the strata company. To the extent that the proposed orders include that the relevant sections of the ST Act apply so as to require the keeping of minutes of meetings, books of account, the preparation of statements of account, the keeping of a receptacle for postal delivery and the maintenance of both an administrative and reserve fund, I do not consider that there is any basis for intervention. A reading of the correspondence, the applicant's SIFC and the Scott Schedule, speaking generally, reflects poorly on the applicant. In my view, he is endeavouring to place undue pressure on the respondent so that she is made ultimately to feel that it is all just too much trouble and the easiest thing would be to accede to the applicant's suggestion that the common property be merged into each lot and the strata plan converted to a survey strata plan. I do not consider that the applicant has any genuine reason for some of the claims which are advanced, such as for removal of the rear dividing fence. The applicant's real intent, in my view, is that the two lots present, as far as possible, as separate properties and that the parties enjoy exclusivity of use of the common property areas adjacent to their respective lots. Having said that, I will address the specific issues raised by the Scott Schedule, and, to the extent that there are some claims which have merit, they will need to be addressed. But, they can be addressed within the current method of management of the strata company.

Before addressing the Scott Schedule, I should refer to the applicant's proposal to merge the common property into the respective lots. The parties put before me their respective positions on that proposal. The respondent was prepared to agree to a merger if the applicant bore the cost, but they disagreed on the areas to merge with each lot. The applicant wanted 50% of the total common area. That meant the current division of the rear property would have to move from what the respondent saw as the logical line of division, being the centre plane of the common wall between each lot. Once I understood the essential differences between the parties, I declined to take further detailed evidence of the proposal into account. I was, and am, satisfied that there is a logical approach taken by both parties to the issue of merger and that their respective positions should not affect a consideration of whether or not the respondent or, in effect, the strata company, is unreasonably refusing to alter the existing management and exclusive use arrangements.

The Scott Schedule

A copy of the Scott Schedule is attached to these reasons for decision (Annexure A) in order to avoid unnecessary repetition. Item 1 to item 10 relate to the rear southeast corner of the common property, which is part of the rear garden adjacent to the respondent's Lot 1. With the exception of item 9, which relates to a dividing fence with an adjoining property, the matters raised fall to be dealt with by the respondent in accordance with the existing management arrangement, with which I decline to interfere.
Item 9 concerns the relationship of the strata company with an adjoining owner. According to the respondent, the existing fence is a sufficient fence, but the applicant has offered to build a wall at his expense, which the owners of the adjoining property have accepted. The respondent states that there has been no consultation with her. I am not satisfied that the existing fence is in any way deficient and therefore decline to make any order in relation to this item. As a general principle, should this fence require replacement in the future or should any of the other boundary fences require replacement, it will be a matter to be dealt with between the strata company and the adjoining owner. If the members of the strata company are unable to reach agreement, that is a matter which is capable of being referred to the Tribunal under s 83.
Item 12 to item 22 relate to the rear northeast corner of the common property, which is within the garden area, for which the applicant is responsible under the existing management arrangement, with which I decline to interfere. Item 11 and item 22 are spare items. With the exception of item 13 and item 21, the respondent has agreed with all of the work which the applicant seeks to have undertaken, provided the applicant bears the cost. This is consistent with the management regime and, accordingly, the applicant is not entitled to any relief from the Tribunal.
Item 13 is a claim for the removal of the small rear fence dividing the common property. The reasons given for the removal are that the structure is not authorised by the strata company, prevents unrestricted access to all common property, is in a poor state of repair and is visually unattractive. The respondent opposes the removal of the fence. Its existence is consistent with the existing management arrangement whereby each owner has accepted responsibility for the rear garden adjacent to the respective lots. The fence was erected prior to the respondent becoming the owner of Lot 1 and, clearly, the strata company, represented by Mr Weston and the respondent, has endorsed that existence. For the reasons given above, I do not think that the respondent's refusal to agree to its removal is unreasonable, and therefore no case has been made for its removal. The fence is cracked in some places and clearly some repair is warranted, but that is not the relief which the applicant has sought. The parties will need to reach agreement as to the extent of any repairs. No relief will, accordingly, be granted to the applicant in respect of this item.
Item 21 is a claim for the straightening of a dividing fence with an adjoining property. The applicant states that it might be necessary to remove some fencing sheets and that the cost will be shared with the adjoining owner. This is a matter for which the strata company is responsible, and I therefore reject the respondent's response to the claim that the issue is one to be resolved between the applicant and the adjoining owner. The parties will need to reach agreement between themselves, in the first instance, as to the extent of work required, if any, and then that will need to be agreed with the adjoining owner. The applicant and respondent will be responsible for onehalf of the costs involved, to be shared equally between them in accordance with their respective unit entitlements.
Items 23 to item 35 raise issues in relation to the common property in the front of the lots. Item 36 is a spare item. The respondent has no objection to the applicant undertaking any of the maintenance which the applicant seeks to have done, at least on the common property immediately adjacent to the applicant's Lot 2, provided the applicant bears all associated costs. The respondent's position is entirely consistent with the management arrangements which have been in place for many years and with which I am not prepared to interfere.
Item 37 to item 39 inclusive raise general issues. Item 37 claims that automatic reticulation should be installed throughout the common property. Item 38 asserts that the concrete paving around both lots should be resurfaced, and item 39 claims that the front fascias, windows, carpets and meter boxes should be repainted.
The respondent is satisfied with the watering system which she uses, but has no objection to the applicant installing reticulation. Although not stated, this must be understood as meaning in the garden areas immediately adjacent to Lot 2. The respondent disputes that the concrete paving around her lot requires resurfacing, but has no objection to the applicant resurfacing the concrete paving around Lot 2. In relation to both items, the respondent contends that the applicant should bear the cost. The respondent's approach is consistent with the existing management arrangement and, accordingly, no remedy is required. In relation to item 39, the applicant correctly observes that the repainting of the fascias and windows is the responsibility of each proprietor. The respondent does not accept that her fascias and windows are currently in need of repainting, whereas she states Lot 2 has not been repainted for some 25 years. Accordingly, the respondent contends that the applicant should bear any costs. The respondent has not directly addressed the painting of the carports, but it is consistent with the existing management arrangement that each proprietor should be responsible for the maintenance of the carport immediately adjacent their respective lots. I decline, therefore, to grant any remedy.
The Scott Schedule then sets out item (a) to item (g), all of which would require a change to the existing management arrangement, and for the reasons given, I decline to interfere with that arrangement.
I turn now to review the applicant's SIFC to ensure that all issues raised have been addressed. Six issues are there identified, and I am satisfied that issue 2 to issue 6 generally encompass the various matters raised in the Scott Schedule. Some particular matters need to be addressed. The applicant complained that the respondent had removed a power pole from the front of the property without his consent. In the applicant's SIFC, he foreshadows seeking an order for reinstatement of the pole. The applicant is correct. His consent should have been sought. However, I accept the respondent's explanation that the pole became redundant in 2007 when it was replaced by a licensed electrician as it was rusted and in a dangerous state. In the applicant's letter of 20 June 2009, he referred to having the redundant pole removed. It served no useful purpose and I do not consider any relief is warranted.
There is also disagreement concerning the location of a proposed underground gas service to Lot 2. The applicant insists on a trench being located where, in effect, the boundary would exist if the common property was merged in accordance with his proposed division of the common areas. The respondent has consented to the installation but requires the installation extend no more than 50 centimetres to the north of a line extended from the centre plane of the common wall of the two lots. In effect, the respondent, therefore, seeks to extend the current division applicable to the rear of the property, whereas the applicant assumes a merger of the common property in the manner for which he contends. He has no right to make that assumption. I do not consider that the respondent is acting unreasonably in seeking to maintain a use of the common area consistent with the current state of affairs, based on the centre plane of the common wall between the lots.
Issue 1 is headed 'No Strata Company Annual General Meetings or Fund'. In expanding that issue, it is stated that the strata company does not have a mechanism to manage common property issues; specifically, there are no annual general meetings and no administrative or reserve fund established for the purposes of funding common property repairs, maintenance, improvements or insurance. The orders sought relevant to issue 1 require that an order be made under s 103A to the effect that, despite s 36A, all of the provisions set out in the table to s 36A(1) shall apply.
No such relief was sought in the original application, but as I indicated at the outset of the hearing, I would deal with the substance of the dispute and, if necessary, the applicant would be provided with an opportunity to amend the application. This is necessary because s 81(1) permits the Tribunal only to make an order expressed in terms different from the order sought, so long as it does not differ in the substance from the order sought.
The current management arrangements have worked well because Mr Weston and the respondent developed trust and confidence in each other. Unfortunately, the relationship between the applicant and respondent has got off to a poor start. Until that relationship improves, I doubt that formal meetings of the strata company would be beneficial. The respondent has not objected to any of the applicant's proposals for alterations to Lot 2, nor to any maintenance to be undertaken to the common areas immediately adjacent to Lot 2, with the exception of the low fence dividing the rear common area, provided the applicant bears the cost. As any other matters arise, the applicant will be free to raise those matters with the respondent, and it might be preferable, at least initially, for that to be done in writing to minimise the risk of any misunderstandings. If the respondent (and therefore the strata company) acts unreasonably, any dispute within the Tribunal's jurisdiction can be determined. There is currently no need for a more formal style of management, and in these circumstances no purpose would be served by providing the applicant with an opportunity to amend the orders sought in the application.
I turn now to review the orders sought in the application, again to ensure that there are no live issues left unaddressed.

Orders sought

Order 1 and order 2 related to interim relief. An interim application was dealt with and dismissed.
Order 3 sought an order under s 90 for the supply of information or documents. The respondent had no records against which any order could operate, except for a copy of the survey which was conducted in 1999, a copy of which is Exhibit 2. There was an issue argued during the hearing whether the survey constituted a record of the strata company. I ruled, as the costs had been shared by Mr Weston and the respondent, that the survey was a strata record and directed that a copy be provided, which was done. That was the only document sought by the applicant and therefore it would no longer serve any purpose to make such an order.
Order 4 sought is an order under s 103B to enable a quorum to be established in a twolot scheme. The applicant did not pursue that order. Order 5 sought is an order under s 103C, making a resolution for a twolot scheme. As submitted by Mr Kronberger, such an order can only be made when a particular resolution has been proposed and has been defeated. No such resolution has been proposed and therefore this aspect of the application must fail.
Order 6 sought is an order under s 103L for contribution to an insurance premium. The applicant did not pursue that order.
Order 7 sought is an order under s 85 with respect to consents affecting common property. Issues relevant to that order have been fully canvassed above, and on the findings which I have made, the applicant is not entitled to any relief. The only point on which the applicant has succeeded is that it has been demonstrated that the respondent will be obliged to bear her proportionate share of the cost of any repairs necessary to the low rear fence dividing the common property and the cost of any repairs to or replacement of dividing fences with adjoining properties. In each case, the respondent will need to agree to whatever work may be required and to the cost involved. It is premature at this stage for any orders to be made, but if a dispute arises, the matter may be referred to the Tribunal.

Conclusion

This is an unusual case which turns on its own peculiar facts. The strata scheme has operated successfully for more than the past 20 years on a very informal basis, and with the proprietor of each lot accepting responsibility for the maintenance of the common property immediately adjoining each lot and with a licence being granted, permitting the exclusive use of carports, patio areas, sheds and the garden areas adjacent each lot. Whereas a bylaw granting such rights could not be terminated except by the passing of a requisite resolution pursuant to s 42, these licences can be revoked by a simple majority. In this case, I consider that the applicant has attempted to overbear the respondent with the object of inducing the respondent to acquiesce in the applicant's proposal for the common property to merge in each lot and ultimately for conversion to a survey strata plan. In these unusual circumstances, I consider it appropriate that the current management arrangements continue. I find that it cannot be said that the respondent is acting unreasonably in the position which she has adopted on the various issues raised. It may well be that, over time, when the common property adjoining Lot 2 has been improved to a standard comparable with the common property adjoining Lot 1, it may be unreasonable to insist on the continuation of the current management arrangements.

Order

For all of the above reasons, the Tribunal will issue the following order:
1.The application is dismissed.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER

Annexure A