Monks and Anor and WILLIAMS and Anor

Case •

[2005] WASAT 184

•

27 JULY 2005

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   MONKS & ANOR and WILLIAMS & ANOR [2005] WASAT 184

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   DETERMINED ON THE PAPERS

DELIVERED          :   27 JULY 2005

FILE NO/S:   STR 25 of 2003

BETWEEN:   STEPHEN WILLIAM MONKS

AMANDA JANE MONKS
Applicants

AND

DEBORAH EILEEN WILLIAMS
ROBERT JAY SMYLIE
Respondents

Catchwords:

Strata titles - Removal of unauthorised installations from common property

Legislation:

State Administrative Tribunal Act (WA), s 7, s 11, s 167

Strata Titles Act 1986 (WA), s 21M, s 42, s 103G

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicants:     Self-represented

Respondents                 :     Self-represented

Solicitors:

Applicants:     Self-represented

Respondents                 :     Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

  1. The applicants alleged that the respondents had erected unlawful structures on the common property.  After several exchanges of letters since the filing of the application on 7 March 2003, the respondents confirmed on 21 June 2005 that the structures had been removed.  The Tribunal undertook a site inspection to confirm that the removal of the structures had occurred.  The application is therefore dismissed.

Applicant and Respondent

  1. The applicants are Stephen William Monks and Amanda Jane Monks as the proprietors of lot 1 on Strata Plan 8195 ("the Strata Plan").  The respondents are Deborah Eileen Williams and Jay Robert Smylie of lot 2 on the Strata Plan.

Application transferred to the State Administrative Tribunal

  1. The Strata Title Referee appointed in terms of Part VI Division 1 of the Strata Titles Act 1985(WA) ("the Act") originally received this application for investigation in terms of Part VI Division 2A of the said Act.

  2. The Referee invited submissions to the application and received written submissions from the applicants and respondents.  The matter was considered and draft reasons submitted to the parties for comment, but the Referee had not made a determination prior to the matter being transferred to the State Administrative Tribunal on 1 January 2005.

  3. The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA)("SAT Act"). On the same day this matter was transferred to SAT in terms of s 167(4)(b) SAT Act for continuation.

  4. The President of SAT nominated me in terms of s 11(1) SAT Act to constitute the Tribunal for purposes of determining this matter.

  5. I convened a directions hearing for 9 June 2005 to facilitate a determination of the application in light of the fact that it had been ongoing for such a long time.  At the direction hearing, which was not attended by the respondents, I made orders for the parties to make further submissions and for the application to be determined on the papers.  Following the directions hearing the applicants provided me with photographs of the structures that gave rise to the application.  I also arranged with the parties to attend the site for an inspection on 15 July 2005 after I had received conflicting versions of what had been removed and what remains the subject of concern.

  6. I have now considered the submissions and make the following determination.

Strata Plan and relevant Act

  1. The Strata Plan was registered on 8 March 1981 pursuant to the Strata Titles Act 1966 (WA) ("the 1966 Act").

  2. In 1985 the 1966 Act was repealed and replaced by the Strata Titles Act 1985 (WA) ("the 1985 Act") which continues to be the relevant Act.

  3. In these Reasons, unless otherwise specified, all references to sections and Schedules are, respectively, references to sections of and Schedules to the 1985 Act.

Parcel

  1. The parcel is a 2‑lot residential scheme at 11 Staywell Way, Padbury within the City of Joondalup.

  2. Each lot comprises a stand‑alone residence and surrounding land.

Unit entitlements

  1. The unit entitlements of the lots are equal.

Lot boundaries

  1. The two lots are comprised in two separate buildings.  The location plan of the Strata Plan shows an area between the two residences outlined with broken lines, as well as an area on the eastern end of lot 1, similarly outlined.  Each of those areas is part of the common property.

  2. In 1996, plans for a re‑subdivision, involving the cancellation of lots 1 and 2 and the creation of new lots 3 and 4 (adding to lot 4 the area between the two lots) were approved but that re‑subdivision has not been completed.  Efforts remain on foot for the re‑subdivision to occur.

  3. Pursuant to s 21M, the boundaries of each of the lots have been extended to the respective external surfaces of the residences, but everything else within the parcel remains as common property.

Order sought

  1. The applicants have sought an Order under s 103G in the following terms:

    "To Deborah Eileen Williams and Jay Robert Smylie to please stop carrying out any more work on stud walls, panelling, bar and alfresco cooking/eating area.  To please remove all stud walls, panelling, bar and alfresco cooking/eating area from wall in carport along lot 1's lounge wall to kitchen wall and kitchen window within 2 weeks.  All costs and any damage to be the responsibility of Deborah Eileen Williams and Jay Robert Smylie."

  2. I will refer to s 103G in detail later in these reasons.

By-laws

  1. As no notifications of changes of or amendments to the by‑laws are recorded on the Strata Plan, the by-laws of the Strata Company are, pursuant to s 42(2), the "standard" by-laws contained in Sch 1 and 2.

  2. In particular, there is no by‑law under s 42(8) which grants to the proprietors of either lot the exclusive use of or special privileges in respect of any part of the common property.

  3. The Strata Company's Sch 1, by law 1(2) includes:

    "A proprietor, occupier or other 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; and

    (b)not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier;"

  4. The Strata Company's Sch 2, by-laws include:

    "2.  A proprietor, occupier or other resident of a lot shall not obstruct lawful use of common property by any person."

  5. Section 17(1) provides that:

    "Common property shall be held by the proprietors as tenants in common on shares proportional to the unit entitlements of their respective lots."

Section 103G

  1. Section 103G includes:

    "(1)An application to a referee for a finding and an order under this section may be made-

    (a)by the proprietor of a lot in a two-lot scheme; or

    (b)in the case of any other scheme, by the strata company.

    (2)A finding under this section is a finding that the proprietor of a lot in the scheme has committed a breach of section 7(2).

    (3)An order under this section is an order that the proprietor-

    (a)stop carrying out work or any specified work in breach of subsection (2) of section 7; or

    (b)within a specified time, pull down, remove, or alter anything or any specified thing that is in place as a result of work done in breach of that subsection,

    or an order under both of those paragraphs."

Applicants’ submissions

  1. The applicants have advised that:

    "1.Mr Smylie and Ms Williams didn't ask verbally or in writing for permission to build on the common property in the carport or area behind it adjacent to our kitchen window.

    2.The structure is very visible from our kitchen window.  We believe that they intend to put a roof on the structure to protect it from the elements.  This will block light and be unsightly.

    3.The structure affects the structural soundness of our roof by creating a greater risk of termites entering our roof.  It also prevents us from having visual and physical access to our walls and rafters for routine maintenance.

    4.The structure could be built elsewhere on the property where it would have little or no impact on our neighbours or us, because where it is now it will cause a lot of undue noise in our kitchen, dining and lounge rooms."

  2. The applicants made several further submissions over time but the essence is well reflected in the above. The applicants acknowledged in their letter dated 24 June 2005 that some of the panels had been removed, but expressed concern at the risk of termite damage and the remaining stud wall panel along the external wall.

Response to application

  1. The proprietors of lot 2 have opposed the application.

  2. Their initial comment was that the applicants are not co‑operating in proceeding with the sub division of the parcel.  They also advised that:

    1."We were told by our real estate agent when we purchased this property in 1999 that there were no common walls/property, but after speaking to DOLA we have found out this is not the case…

    The reason we asked them to pull down their work is because we were told by the council that various work they had done has not met proper regulations.  The extensions etc they have built next door really do not bother us it is just that we have become frustrated at having them encroach in our lives over the past 4 years…

    We were under the impression that what we did in our carport and backyard was our business and is not common property.

    2.Yes, the structure is visible from their kitchen window, they look into our backyard.  We were told by the council that if we capped the framework and "finished it off" cosmetically on their side it is classed as a privacy screen.  We have no intention of putting a roof over it.

    3.The framework has no effect on the structural soundness of their roof as it does not even touch their roof.  The framework used is treated pine.  They are not stopped from having visual or physical access to their wall or rafters because we have made sure the structure does not stop them from this.

    4.The bar can not be built anywhere else and the side wall has been insulated to minimise sound."

  3. The reference to the applicants' "extensions" does not give any particulars but I note that the applicants, in their submissions, have referred to a 2‑bedroom extension built by them in 1992.  They claim that that extension was built:

    "with permission of the owner of lot 2 and had followed all Shire building requirements…"

  4. They also refer to:

    "a brick wall built in 1999."

  5. and state that:

    "we had written permission from the owner of lot 2 to build the wall."

    and that they started building the wall before Ms Williams and Mr Smylie purchased lot 2 in 1999.  They state:

    "The pergola has been up for nearly 4 years and neither Mr Smylie or Ms Williams has commented on it."

  6. The applicants state that Mr Smylie:

    "has 2 pergolas on his side of the fence."

  7. The respondents made several further submissions but advised in a letter dated 21 June 2005 that the structures that gave rise to the application had been removed.

Considerations

  1. Neither the applicants nor the proprietors of lot 2 have any lawful right to use any part of the common property to the exclusion of the other.  In the absence of an approximately worded by‑law (the most common means of acquiring exclusive use rights over common property) or a lease or licence granted by the Strata Company, neither proprietor may make exclusive use of any part of the parcel external to the buildings.

  2. Section 42(8) provides, in part:

    "…a strata company may, with the consent in writing of the proprietor of a lot, pursuant to a…unanimous resolution in the case of a two-lot scheme make, under this subsection only and not otherwise, a by‑law in respect of that lot conferring on that proprietor the exclusive use and enjoyment of, or special privileges in respect of, the common property or any part of it upon such terms and conditions…as may be specified in the law…"

  3. If adopted, such a by-law must be registered on the Strata Plan within 3 months after the date of the relevant resolution.

  4. The full text of s 42(8) and the other provisions of s 42 should be referred to by the parties.

  5. There appear to have been some informal agreements in the past between the applicants and former proprietors of lot 2 but there is nothing recorded on the Strata Plan in that regard.

  6. An alternative to the grant of a special "exclusive use" by‑law, is a joint application to divide the common property in some mutually acceptable manner and to merge those parts with the separate lots so that each lot then contained both its residence and part of the surrounding land.

  7. The Strata Plan records that, in 1996, surveyors and valuers were engaged to give effect to a re‑subdivision by way of a merger and that he appropriate local government approval was obtained.  However, the Tribunal was told that the process remains under way.

  8. I am satisfied, following the site inspection, that the respondents have removed the structures that gave rise to the application.  I compared the status of lot 2 with the photographs that were provided to me and am satisfied with the removal.  There remains attached to the external wall a temporary panel but I do not see any compelling reason why an order must be made for the panel to be removed.  It is clearly of a temporary nature and is only slightly attached to a part of the wall.  If indeed it carries with it a risk of termite infestation, as alleged by the applicants, the local authority should be notified to inspect the property and if necessary make orders for treatment to take place.

  9. In light of the recent actions by the respondents to remove the structures that caused the application to be made, the rationale for the application has now fallen away. The application should therefore be dismissed.

Order

  1. The application is dismissed.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

DR B DE VILLIERS, MEMBER

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