MULLOWAY PTY LTD and MURRAY
[2005] WASAT 4
•4 FEBRUARY 2005 (Amended pursuant to s 83(1)(c) of the
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985, s 103F
CITATION: MULLOWAY PTY LTD and MURRAY [2005] WASAT 4
MEMBER: MR R J KRONBERGER (SESSIONAL MEMBER)
HEARD: 28 JANUARY 2005
DELIVERED : 4 FEBRUARY 2005 (Amended pursuant to s 83(1)(c) of the State Administrative Tribunal Act 2004, 2 March 2005)
FILE NO/S: ST 115 of 2004
BETWEEN: MULLOWAY PTY LTD
Applicant
AND
SHERIDENE LISA MURRAY
Respondent
Catchwords:
Real property - Strata titles - Twolot scheme - Approval for structural alterations
Legislation:
Strata Titles Act 1985 (WA), s 103F
Strate Titles General Regulations 1996 (WA), s 7B(1), reg 34, s 7B, reg 30
Valuation of Land Act 1978
Result:
The application be dismissed
Category: unassigned
Representation:
Counsel:
Applicant: Self Represented
Respondent: Self Represented
Solicitors:
Applicant: Self Represented
Respondent: Self Represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR R J KRONBERGER (REFEREE):
REASONS FOR DECISION
Issue
Approvals necessary to add a second storey and other structured works to a lot in a two-lot scheme.
Applicant
The Applicant is Mulloway Pty Ltd, as the proprietor of Lot 2 on Strata Plan 27603 ("the Strata Plan").
Strata Plan and relevant Act
The Strata Plan was registered on 6 September 1994 pursuant to the Strata Titles Act 1985 ("the 1985 Act") which continues to be the relevant Act.
In these Reasons, unless otherwise specified, all references to sections and schedules are, respectively, references to sections of and Schedules to the 1985 Act.
Parcel
The parcel is a two‑lot residential development at 79 Davies Road, Claremont.
Lot 1, having an area of 339m2, is at the front of the parcel. It includes an older‑style residence which is described on the Strata Plan as a "fibro and tile roofed single dwelling".
Lot 2 is at the rear of the parcel. It has a total area of 406m2 which includes a "battleaxe" arm along the northern boundary of the parcel, providing access from Davis Road. On the Strata Plan, Lot 2 appears as a vacant lot. However, since the Strata Plan was registered, a single‑storey brick and tile residence has been constructed on Lot 2. No Strata Plan of re‑subdivision has been registered to show the Lot 2 residence on the Strata Plan.
The parcel rises steeply from its Davies Road frontage. This means that Lot 2 is at a much higher level than Lot 1.
The Applicant has had plans prepared for a second storey and other alterations and extensions to the Lot 2 residence.
The proprietor of Lot 1 is Sheridene Lisa Murray ("the Respondent"). The Respondent has refused to give her approval to the proposed alterations and extensions.
Order sought
The Applicant has sought an order, under s 7(2), against the Respondent "dispensing with approval under s 7(2)".
Endorsements on Strata Plan
The Strata Plan includes the following endorsements
"1.The stratum of Lot 1 extends from 8 metres above to 4 metres below the upper surface of the ground floor of the building on Lot 1 including where covered.
2.The stratum of Lot 2 extends from 10 metres above to 2 metres below the upper surface of the ground floor of the building on Lot 1.
3.External faces of the walls are the boundaries of the part lot comprising the building"
4.Construction of buildings over that part of lots designated 6 is restricted pursuant to the Strata Titles Act 1985 (as amended) Sect. 6(1) in accordance with the Metropolitan Water Supply Sewerage and Drainage Act 1909 (as amended) Sect. 66(1)(a)."
As there was no building on Lot 2 when the Strata Plan was registered, the third of those endorsements could have only applied to the Lot 1 residence. Although a residence has subsequently been constructed within the cubic space of Lot 2, Lot 2 is still recorded only as a cubic space, bounded by its external boundaries, as shown on the Strata Plan, having the upper and lower limits specified in the second of those endorsements.
As to the fourth of those endorsements, the area "designated 6" is a 5 m wide easement, across the front of the larger portion of Lot 2. The easement also intrudes in a very minor way, across the rear, south-eastern corner of Lot 2.
Section 6(1) allows a restriction of the kind referred to in the fourth of those endorsements.
By-laws
As no changes of bylaws are recorded on the Strata Plan, the by‑laws of the Strata Company are, pursuant to s 42(2), the "standard" by‑laws in Sch 1 and Sch 2.
Applicant's submissions
The Applicant describes its proposed works as
"Remove existing carport and some internal walls, construct new internal walls, parapet boundary wall and external limestone screen wall, construct new double carport and storeroom, construct new dividing fence on the boundary between lot 1 & 2, construct new upper floor and balcony, remove and replace fixtures and fittings within the lot…"
The purpose of the works is said to:
"… extend, amalgamate and renovate the space within the lot into a more modern, solar effective, two‑level residential development…"
The Applicant advises that the proposal has been designed to comply with the Residential Design Codes of Western Australia and the Town of Claremont’s planning scheme. However, the Town of Claremont requires evidence of the consent of the Respondent.
The Applicant has provided copies of the Plans and Specifications of the proposed works, although the Respondent has challenged Applicant’s claim that they comply with the requirements of s 7B(1) and the related prescribed requirements of reg 34 of the Strata Titles General Regulations 1996. I have also noted that the "prescribed supplementary information" provided by the Applicant to the Respondent included a statement that
"All alterations the subject of this application will be contained within the lot"
The "lot" referred to is the Applicant’s Lot 2.
There have been discussions and correspondence between the Applicant and the Respondent and the Respondent's representatives, consultants and advisers since June 2003 and, from July to November 2003, discussions and correspondence between the Applicant, the Respondent and the Town of Claremont.
Following further discussions in January and February 2004, the plans to were revised by the Applicant but they have still not been approved by the Respondent.
Response to application
The Respondent summarises her view as follows
"Ultimately the proposed extensions and alterations on the elevated west facing side, will result in a structure that is prominent and imposing on the skyline: that is clearly visible from outside the lot, that is not in keeping with the single storey strata scheme development and that will significantly impact on the quality of life my children and I enjoy…The proposal will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development.
In my opinion and that of the professional advice given to me is that the scheme has been developed as 2 single storey dwellings and that without unanimous consent between both parties, should remain as is…"
The Applicant’s initial application to the Respondent pursuant to s 7B was made in November 2003.
It contained a request that the Respondent respond within 42 days. Revised plans were delivered to the Respondent on 31 December 2003.
On 6 January 2004, the Respondent wrote to the Applicant, setting out what she considered to be defects, omissions and inadequacies in the application and related documents. The Respondent objected to the proposals.
The Respondent made it clear that, in her opinion, the proposals would result in a structure that would be visible from outside Lot 2 and that they would not be in keeping with the rest of the development and that she did not give her consent to the proposals.
The Respondent also noted that substantial building works had already been commenced on Lot 2 without prior notice or approval, contrary to the 1985 Act and the Strata Company's by‑laws.
The Sch 2, by‑laws include:
"13AA proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by‑laws and in any event shall not alter the structure of the lot without giving to the Strata Company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
14A proprietor, occupier or other resident of a lot shall not, without the written consent of the Strata Company, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building."
The parties met on 6 January 2004. On the following day the Respondent wrote to the Applicant to confirm that discussion. The letter included
"… The proposed additions as they are, will cause significant inconvenience and detriment to my amenity. They will cause a loss of privacy and compromise my right to peaceful enjoyment of my property. The design generally and the carport and store in particular are my major areas of concern as they will create significant overshadowing and loss of amenity for the important rear living and outdoor areas. The balcony and the first floor windows will result in overlooking and a loss of privacy. These issues can be resolved with compromise and consideration…"
On 2 February 2004, the Applicant wrote to the Respondent on a "without prejudice" basis, withdrawing its application.
The Respondent responded on 4 February 2004. Her response included
"…My primary concerns are that the design generally and the carport and store in particular will create significant and unnecessary overshadowing and less of amenity for the important rear living and outdoor areas of my dwelling. …The balcony and first floor windows will overlook and create loss of privacy in the same areas …"
"… Due to the slope of the block the rear, east facing, living rooms are the only habitable rooms of 79 Davies Rd that have a direct linkage to an external outdoor space without a change of level. This room and the 3000 mm wide courtyard that it looks out into are fundamental to the amenity of Lot 1. The R codes note that 'Where a dwelling has only limited outdoor space … protection from overlooking of these areas has high priority'.
The proposed design of the first floor additions and balcony results in overlooking of the rear living and outdoor areas. The proposed balcony does not comply with the R Codes performance criteria requiring the avoidance of direct overlooking into neighbouring habitable rooms and outdoor areas. The bedroom West window will also overlook if the height of the carport/store wall and roof are lowered as I have requested elsewhere in this letter. …"
On 7 February 2004, the Applicant replied to the Respondent, making clear that, despite the Respondent's objections, the Applicant intended to proceed through all applicable application and appeal procedures.
On 27 August 2004, the Applicant sent to the Respondent a new application for approval.
The Respondent's detailed response of 26 September 2004 included
"… no significant effort has been made to respond to many of my fundamental concerns… Your revised proposal … will have a significant adverse affect on my property … it is excessively tall and has walls located on the boundary …The outcome of your proposal is a parapet wall on the boundary that is up to 4.6 m above the floor level of the rear areas of my house, flanked by boundary wall that are 3.2 m above my floor level. Walls of this height located on the boundary are not in keeping with the existing development.
The outdoor space east of the rear of my house is the only outdoor living space on my property that is at the same level and is directly connected to my internal living spaces. Your proposal will destroy the amenity of this outdoor living space and the rear rooms of my house and thus remains unacceptable…"
Considerations
Although, as mentioned above, the Strata Plan does not show a residence on Lot 2, there is in fact a residence. Section 7(6) defines a "vacant lot" as a lot that is wholly unimproved apart from having merged improvements as defined in the Valuation of Land Act 1978. Accordingly, despite the Strata Plan not showing the Lot 2 residence, Lot 2 is not a "vacant lot" for the purposes of s 7.
In a two‑lot scheme, where the proprietor of one of the lots, which is not a vacant lot, proposes to make structural alterations or additions to his lot, s 7(2)(b) obliges that proprietor to obtain the prior approval of the proprietor of the other lot.
Section 7B and reg 30 of the Strata Titles General Regulations 1996 set out the requirements for an application to the other proprietor in that regard. For example, an Applicant for such approval must provide full details of the plans and specifications of any proposed structural works.
Once the requirements of the application have been served on the other proprietor, that other proprietor must give a response within 42 days.
Section 7(5) specifies the only grounds upon which approval may be refused. The particular ground or grounds referred to in s 7(5) and upon which a refusal is based must be specified by the objector.
One of the permitted grounds of objection is that
"… the carrying out of the proposal will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development."
The Respondent has specified that ground as the basis for refusing to give her approval to the proposed works.
The Respondent has stated
"… the Strata Scheme has been developed as 2 single storey residential homes, a deciding factor that I took into account when purchasing my family home.
I consider that the proposal to let a second storey to the single storey on Lot 2 would not be in keeping with the development and will have an adverse effect on the quality of the life style of my children and I currently value and enjoy."
Section 103F
Section 103F entitles a proprietor in a two-lot strata scheme who has applied for, but not obtained, an approval under, s 7B, to apply to me for an order declaring that the approval is deemed to have been given by the other proprietor.
Section 103F(3) allows me to make such an order if I am satisfied that the approval should have been given but has been unreasonably withheld.
The proposed upper level additions will include a balcony across most of the western end of the Lot 2 residence. Although an 1800mm high brick wall along the western boundary of Lot 2, where it adjoins Lot 1, would provide some privacy to the rear of Lot 1, the floor level of the balcony would be 2785mm above the present floor level of the Lot 2 residence.
Conclusion
Although the structural materials of the two residences are different, there is uniformity between them to the extent that they are both single‑storey residences. The present single‑storey nature of the Applicant’s Lot 2 residence also limits its impact on the privacy of Lot 1, as described in the Respondent's objections as quoted above.
For the purposes of s 103F, I am not satisfied that the approval sought by the Applicant should have been given. I do not consider that the Respondent has unreasonably withheld her approval.
Order
My Order is that
"The application be dismissed."
I certify that this and the preceding 9 pages comprise the reasons for decision of the Tribunal.
______________
R J KRONBERGER
(Non-judicial member pursuant to s 167(15)
State Administrative Tribunal Act 2004)
0
0
3