Moser and the Owners Of Wembley Glades - Strata Plan 11303
[2005] WASAT 289
•7 NOVEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: MOSER and THE OWNERS OF WEMBLEY GLADES - STRATA PLAN 11303 [2005] WASAT 289
MEMBER: MR T CAREY (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 7 NOVEMBER 2005
FILE NO/S: CC 176 of 2005
BETWEEN: ANTONY C MOSER
Applicant
AND
THE OWNERS OF WEMBLEY GLADES - STRATA PLAN 11303
Respondent
Catchwords:
Strata titles Proposal for installation of air conditioning system refused by strata company Installation concerning common property including exclusive use balcony Whether unanimous vote at general meeting required Requirements for order under s 85 Strata Titles Act Whether any of objections to proposal constitute proper basis to refuse consent Strata Plan 11303
Legislation:
Strata Titles Act 1985 (WA), s 7(2), s 35(1)(b), s 79(2), s 85
Result:
Application successful
Order that the strata company consent to the proposal subject to conditions
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, who is the proprietor of a lot in a large strata complex, unsuccessfully sought the approval of the strata company to install an air conditioning system. The refusal was based on the objections of two other proprietors.
A threshold claim that the strata bylaws required a unanimous vote at a general meeting was determined by the Tribunal to be misconceived, no such requirement having been established. The Tribunal then considered each of the other objections raised with the strata manager and found that none was sufficient to override the applicant's right to have his lot air conditioned. The system selected by the applicant was "state of the art" which would be barely audible or visible, and no suitable alternative had been put forward. The Tribunal ordered the strata company to consent to the proposal subject to agreed conditions.
Introduction
The applicant is the owner of Lot 36 in a residential strata development situated in Wembley comprising 69 lots known as Wembley Glades. By letter dated 16 December 2004, the applicant made a written request to the strata manager for the installation of a ducted air conditioning system in his lot. The letter enclosed another letter addressed to the council of owners seeking approval. This letter stated that the applicant's unit is on the top floor of the complex, directly under the roof, and gets unbearably hot in summer. The letter explained that, after an evaluation of various products, the applicant had chosen a 5kW ducted Daikin system, which would comprise:
(a)an internal unit in the roof void (internal unit);
(b)an external unit on the balcony below the kitchen window (external unit);
(c)possibly some external plumbing from the external unit to an outdoor drain (external plumbing), although the applicant expected that condensation water from the system could be drained through the applicant's lot by means of existing kitchen plumbing, obviating the need for the external plumbing.
All three components involve alterations to the common property. Component (b), concerning as it does the applicant's balcony, brings into play the strata company's bylaw 17, which was the subject of a notification on the plan registered on 24 February 1997. That bylaw conferred exclusive use of balconies on the respective proprietors, on the proviso that no proprietor would "alter, modify, erect or carry out any improvements on the common property for which exclusive use has been granted without first receiving the written approval of" the strata company.
By letter dated 5 January 2005, the strata manager wrote to "The Owner/s, Wembley Glades" to advise of the applicant's request "as per the attached information", which I have taken to be a reference to the letters to both the strata manager and the council of owners. The strata manager's letter suggested that if approval for the request was granted, it be subject to certain conditions specified in the letter. The owners were requested to advise no later than 14 January 2005 if they had any objections, failing which "it will be deemed that approval can be granted".
Two objections were received, from the proprietors of Lot 48 and Lot 22 (to whom I will refer for the sake of simplicity as "Lot 48" and "Lot 22" respectively).
One of the grounds raised by Lot 48 was of a threshold nature, to the effect that under the strata bylaws, any modification to common property may be carried out only with a unanimous vote at a general meeting of owners (unanimous vote requirement), and the applicant's proposal had not been put to any general meeting. Although the applicant has accepted the existence of the unanimous vote requirement, there is no such bylaw affecting the internal unit nor the external plumbing in either the standard bylaws applying to the scheme set out in Sch 1 and Sch 2 to the Strata Titles Act 1985 (WA) (Act), nor in the two notifications of changes of the scheme's bylaws registered on the plan. The parties may have had in mind the requirements of s 7(2) Act, which apply to alterations to a lot. Further, the effect of bylaw 17 (relevant to the external unit) is as stated above. In all these cases, the approval or consent of the strata company is required, nothing more. Therefore, the applicant's failure to comply with the unanimous vote requirement is not a valid basis to refuse the proposal.
No doubt influenced by the common position of the parties in relation to the unanimous vote requirement, on 28 April 2005 a senior member of the Tribunal adjourned the matter to enable the applicant to explore the possibility of an Extra Ordinary General Meeting to consider the proposal, or to obtain other evidence that the strata company had refused its consent. In fact, at an Annual General Meeting on 3 March 2005, reference was made to the applicant's application. According to the minutes, the meeting discussed and resolved that air conditioning systems shall be approved provided that the owners agree that the proposed system is as silent and as hidden from view as possible. The minutes give no indication of the nature of the resolution; that is, whether it was unanimous or a resolution without dissent, or a special or ordinary resolution. In any event, it did not purport to be a resolution as to whether the applicant's proposal should be approved. Only one of Lot 22 and Lot 48 was represented at the meeting (Lot 22), and that was by proxy.
The applicant did, however, provide evidence of the strata company's refusal of consent (being the alternative requirement of the senior member's order) in the form of an undated letter from the council confirming that the applicant's proposal was not acceptable, and that the council felt bound to reject the proposal, due to the objections lodged by the Lot 22 and Lot 48. I am satisfied that the strata company did refuse its consent to the applicant's proposal.
What are the requirements for an order under s 85 of the Act?
The applicant has brought his application under s 85, which states:
"Where, pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates has unreasonably refused to consent to a proposal by that proprietor:
(a) to effect alterations to the common property; or
(b)to have carried out repairs to any damage to the common property or any other property of the strata company,
it may make an order that the strata company consent to the proposal."
Consistent with my analysis that the requirement to obtain the consent of the strata company attaches to each of the three components of the air conditioning system, review of the strata company's refusal is available under s 85. In order to consider whether the Tribunal should grant the application, it is necessary to consider each of the remaining objections raised with a view to determining whether any particular objection is a sufficient basis for denying the proposal, or any combination of the objections cumulatively has that effect. Before doing so, I note that on 26 May 2005, the senior member ordered the strata company to serve a copy of the application on each of the persons referred to in s 79(2) of the Act (including each proprietor), the order providing those persons with the opportunity to file any response. No further response was filed. Therefore, the only objections on the record are those raised in the written responses received by the strata manager from Lot 22 and Lot 48.
What objections were raised, and what are their merits?
Lot 22 stated in her response to the strata manager that her previous objections to the proposal stand, without particularising those objections. No filed document indicates the nature of those objections. The response further suggested that the issue of the installation of air conditioners in the scheme generally be referred to the next AGM, which is what occurred on 3 March 2005 and the result of which is adverted to above. It is unclear whether or not Lot 22 is satisfied by the outcome. In any event, no outstanding concerns have made their way into the documents before the Tribunal.
The objections of Lot 48 are set out in a letter to the strata manager dated 10 January 2005. I will set out each objection (apart from the threshold matter already dealt with) in italics, followed by my consideration in respect of it.
"The precedent will be set for 68 other unit owners to go ahead with air conditioning or other work, resulting in ad hoc and unsightly changes to the outside of our building."
My starting point in considering this objection is that in the 21st century, owners or occupiers of strata lots should be permitted, in a hot climate as exists in Perth in the summer months, to take advantage of the technology now available by way of air conditioning to secure a comfortable living environment. Questions of the effect of the installation of an air conditioning system on the amenity of the whole of the complex must be considered, but not from the starting point that no visual or audible impact will be tolerated. The strata company should, consistent with its duty to control and manage the common property for the benefit of all the proprietors (s 35(1)(b) of the Act), exercise its discretion in considering an approval request in such a way as to respect the legitimate interests of the approval proponent while guarding against the possibilities of adhockery and unsightliness to which the objection refers.
Subject to consideration of the remaining objections, on its face, the air conditioning proposal seems entirely reasonable and capable of approval by the strata company. Two other lots obtained approval for air conditioning systems in about 1999. The applicant's proposed system is said to be "state of the art", the outdoor system is relatively small in dimensions, and would be able to be positioned on the balcony where, by reason of the design of the railing and shielding by surrounding trees, it would be, in the applicant's words, "barely visible".
"The noise factor is an important one and glossed over by the applicant."
Although the issue of noise is undoubtedly important, it seems to me that the applicant dealt with it at some length in his letter to the owners. Indeed, "minimal noise emission" was the first of three criteria identified in his letter as being the basis for assessment by the owners. The letter stated:
"The outdoor unit generates a cooling noise of only ~ 50 decibels when on. This is 'extremely quiet', as a reduction in 10 decibels equates to being half as loud. Further, we would install the unit on rubber pads to prevent any vibrations from being transmitted to the structure of the building. As our balcony faces away from all others and is on the top floor, neighbours or passersby would barely hear the system. We understand that it should not make any more noise than the existing rooftop exhaust fans of the complex. These also seem to be on for more of the day than our air conditioning would."
In my view, the applicant's letter addresses the issue of noise adequately, and the proposal should not be rejected on the basis of noise.
"I disagree that this balcony is shielded from view it is easily visible from the garden, verge and road. An outdoor drain is not acceptable."
The objection does not address the relevant issue of the visibility of the external unit of the air conditioning system. I find it difficult to accept that an external unit measuring 685 millimetres high, 800 millimetres wide and 300 millimetres deep will be obvious to the point of upsetting the amenity of the complex. The applicant's contention that, by reason of its placement on the balcony and shielding by trees the unit will be barely visible, is not addressed, at least directly. There has been advanced no proper basis upon which I should reject it.
As for the outdoor drain, it is unfortunate, and a little surprising, that the applicant is unable to state definitively whether or not an external drain will be required as part of the air conditioning system. Rather, he expresses it in terms of a last resort in the unlikely event that the existing internal plumbing will be unable to accommodate the system's drainage requirements. However, he points out that outdoor drains are visible on two of the lots (including Lot 67) and that, unlike those cases, if an external drain is necessary, it would be painted in the same colour as the existing roof drains.
In my view, the applicant's proposal should not be rejected on the basis of visibility or appearance.
"I disagree that this work would add value to any of the units in the complex (except perhaps U36!)"
I consider that the effect on values in the complex is a factor of considerably less importance than the other factors. There might be a debate about any likely effect on future values. In the absence of any evidence from a suitably qualified expert, I decline to make any finding on the issue. It is not one which, had I found against the applicant on the issue, would have resulted in a different outcome.
"There are alternative methods of air-conditioning which do not require any modification to the common property."
The applicant included the following passage in his letter to the owners under the heading "No relevant disturbance to common areas":
"Because our unit is on the top floor, we would probably not have to drill through any external walls. Our pipes would be taken up through the roof void above our unit, which is of no significance to other owners and which could only be accessed through our manhole. The ducted system we have chosen is one of the quietest and most discrete [sic] systems available. The alternatives, a ducted inverter or a split inverter system would be either bigger and thus more visible or louder. As such, we believe that the proposed system is most suited to the requirements of our neighbours and passersby. However, if there are any suggestions that would improve or change the proposal, we would gladly take these on board, in order for our application to be accepted. We would even be prepared to install an alternative system selected by the council."
Apart from the alternatives referred to in the passage, the applicant, in a document filed with the Tribunal, referred to the further alternative of portable evaporative air conditioners as being nowhere near effective enough for a unit on the top floor directly under the roof.
This final objection by Lot 48 is in the nature of a mere assertion, which suffers by its failure to take up the applicant's invitation in the above passage to select an alternative system which would be effective and is unaffected by the disadvantages which the applicant ascribes to other systems. As such, it does not form a proper basis for refusing the proposal.
Finding
I am not satisfied that any of Lot 48's objections individually is sufficient to deny the applicants approval of their proposed air conditioning system, nor that the objections when considered cumulatively have that effect. I therefore conclude that the refusal of the strata company to consent to the proposal was unreasonable, and that an order under s 85 of the Act should be made.
Order sought and made
The orders sought in the application were:
"1.That both objections are overturned on the grounds that they are unreasonable, and
2.That our proposal is approved subject to the conditions suggested by the strata management."
In my view, the wording of the order that might be made on the application should be framed, in accordance with s 85, "that the strata company consent to the proposal". In light of the second of the orders sought, the consent will be subject to the complete set of conditions recommended by the strata manager, with the exception of a condition that the installation be in keeping with the visual aesthetics of the strata complex, which has effectively been the subject of a finding in respect of the proposed air conditioner as its constituent parts have been explained by the applicant in the applicant's favour.
Order
The Tribunal makes the following orders:
1.Pursuant to s 85 of the Act, subject to the conditions set out in par 2, the strata company do consent, and such consent is to be deemed for all purposes to have been given, to the proposal for the applicant to install a ducted Daikin air conditioning system model FDY45F (the air conditioner) in Lot 36, including the installation as required of:
(a)an external unit on rubber pads on the balcony of the lot below the kitchen window; and
(b)external drainage connecting the external unit to the outdoor drain, but only if drainage cannot be obtained via the existing kitchen plumbing in the applicant's lot.
2.The conditions of the strata company's consent are:
(a)The proposed installation is to be in accordance with the building bylaws of the local authority.
(b)The strata company is to be fully indemnified against any damage whatsoever to the building or any property under its control arising from the installation of the air conditioner. Should any such damage be caused by the applicant or his agents, employees, tradespersons, tenants or any other person, the damage will be immediately repaired and made good at the expense of the applicant.
(c)All costs, fees and charges in respect of the installation of the air conditioner will be at the applicant's sole expense. The strata company will be fully indemnified against any claim of any nature whatsoever by any person which may arise at any time concerning nonpayment of monies with respect to the work performed.
(d)Any future maintenance, repair or replacement cost of the air conditioner will be at the applicant's sole expense.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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