NEVILLE and ANDERSON - [2008] WASAT 275

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: NEVILLE and ANDERSON [2008] WASAT 275

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 5 NOVEMBER 2008

DELIVERED : 21 NOVEMBER 2008

FILE NO/S: CC 1229 of 2008

BETWEEN: CARL DAVID NEVILLE
Applicant
AND
WENDY ANDERSON
Respondent

Catchwords:

Strata title Unreasonable refusal to improve or rectify common property - Fixing of driveway - Fixing of dividing fence - When is refusal to do work on common property unreasonable

Legislation:

Strata Titles Act 1985 (WA), s 42(8), s 85

Result:

The application is granted

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The dispute concerned the refusal of the strata company to consent to a proposal by Mr Neville to do the following works on common property: replace the fibrous Super 6 fence between Lot 2 and the neighbouring property with a limestone wall; fix and resurface the existing driveway of Lot 2; and construct a 2 course limestone wall with letterbox in front of Lot 2.
Mr Neville contended that the consent had been withheld unreasonably since the driveway was in a state of disrepair, the dividing fence had already fallen over in some places and the retaining wall had become unstable. The work was therefore required to effectively maintain the common property and also to improve it.
Mrs Anderson, who is the only other proprietor in the two lot scheme, refused consent on grounds that a proper consultation process had not been followed, the two units and all structures had to be 'identical' and the material used was not of her liking.
The Tribunal emphasised that the underlying principle of management and control of common property according to the Strata Titles Act 1985 (WA) is that each proprietor has an undivided share in common property and that owners must consent to alterations to such common property before it may occur.
The strong protection of a proprietor's right of refusal to allow works on common property is, however, limited by the provisions of s 85 of the Strata Titles Act 1985 (WA) which give the Tribunal an oversight of the merit of any refusal to allow works on common property.
The Strata Titles Act 1985 (WA), through s 85, provides that the Tribunal can override a refusal by a strata company to consent to certain works on common property if the Tribunal considers that an application to affect alterations to common property or to repair common property has been refused 'unreasonably'.
The Tribunal found that the refusal to consent to the proposal by Mr Neville was unreasonable. Orders were made that the strata company consent to the proposed works.

Issue

The issue in dispute is whether the refusal of the strata company to consent to a proposal by Mr Neville to make improvements and alterations to common property, was unreasonable. The works Mr Neville sought approval for were to repair the driveway to his unit; to replace the dividing fence between his lot and a neighbouring property; and to erect a two course limestone wall and letterbox.

Background

Mr Neville lodged the application pursuant to s 85 of the Strata Titles Act 1985 (WA) (ST Act) on 4 August 2008. The first directions hearing took place on 14 August 2008 and the Tribunal adjourned the dispute for mediation. The mediation failed and the matter was referred for a further directions hearing on 16 October 2008. At this directions hearing the matter was set down for hearing on 17 November 2008. The hearing on 17 November 2008 commenced with a site inspection to enable the parties to explain to the Tribunal their respective position with reference to the proposed works. After the site inspection the hearing commenced at a Tribunal hearing room.
The work that Mr Neville sought approval for can be described as follows:
a)replace the fibrous Super 6 fence between Lot 2 of the strata complex and a neighbouring property with a limestone wall;
b)fix and resurface the existing driveway to Lot 2; and
c)construct a 2 course limestone front wall with letterbox in front of Lot 2.
The proposed works and costing thereof are described in detail in the proposal submitted to the strata company. Mr Neville gave an undertaking to pay for all costs arising from the works and for all the works to be done without interruption.
The strata scheme is registered as 193A and 193B on Strata Plan 3174 Marmion Street, Palmyra. Mr Neville is the proprietor of Lot 2 and Mrs Anderson is the proprietor of Lot 1. A notification of change of bylaws (bylaw 16 - 20) was registered by instrument G188714 on 28 May 1996. Bylaw 16 provides for the exclusive use of common property by the respective proprietors of Lot 1 and Lot 2. Bylaw 17 deals with the maintenance of the area of exclusive use.
The driveway and dividing fence, the subject of this application, are situated on common property and are subject to an exclusive use bylaw.

Statutory framework

Section 85 of the ST Act provides as follows:
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.
By-law 16 sets out the exclusive use arrangements as follows:
That the areas shown on the attached plan as 'for the use of lots 1 and 2' shall be for the exclusive use of the registered proprietors and occupiers of the respective lots.
By-law 17 sets out the maintenance of the exclusive use area as follows:
The Owner of Lot 1 shall not be liable for any costs in respect of Lot 2, the external walls and roof of Lot 2 and the exclusive use area for Lot 2. Costs shall include but not be limited to cost in respect of gardens, lawns, roofs, guttering, walls, windows, screens, driveways, paths, fencing, carports, patios, doors, plumbing, and electrical.

Submissions by the parties

Mr Neville contends that the strata company has unreasonably refused the proposal for works to be undertaken on common property. According to him all the proposed works are within the exclusive use area of Lot 2 and he is willing to pay for the cost associated therewith. The City of Melville has already approved the work subject to approval by the strata company. Mr Neville explained that several formal and informal efforts had been made at mediation but to no avail.
The motivation for the work is, according to Mr Neville, as follows:
a)The fence between his lot and the neighbours is in a dilapidated state and in some places it has already fallen over. The retaining ability of the fence and brick wall is also inadequate and it causes a danger to his lot. The neighbour has agreed to the proposed limestone fence to be erected.
b)The surface of the driveway leading to Lot 2 is cracked, uneven and has subsided in some places to the extent that it constitutes a danger to persons who may trip and fall. He will repair it with crushed limestone and apply a new bitumen surface.
c)The front wall will comprise of a two course limestone wall that will match the dividing wall. The front wall will also include a letterbox. The wall will only cover a small part of the frontage of Lot 2.
d)Mr Neville has undertaken to cover all costs associated with the works.
Mrs Anderson objects to the proposal on the grounds that Mr Neville did not follow the correct procedures in seeking approval for the works. According to Mrs Anderson, she took offence that Mr Neville rendered part of the exterior of the wall of Lot 1 without seeking her approval. He also caused building material to be delivered prior to obtaining her approval. As a result the relationship between them deteriorated.
Although efforts were made to mediate the dispute, Mrs Anderson insists that Mr Neville did not comply with the provisions of the ST Act when he sought approval of the strata company. Mrs Anderson contends that 'absolute uniformity' must apply in a strata scheme and that she has the right of absolute veto over anything that Mr Neville seeks to do on common property.
Mrs Anderson concedes that some repairs to the driveway and fence may be necessary but objected to the use of limestone and bitumen.

Consideration

The underlying principle of management and control of common property according to the ST Act is that each proprietor has an undivided share in common property. As a result, the rights of proprietors in regard to improvements on, and alterations to, common property are statutorily protected. One way of protecting such rights is that a resolution without dissent is required when a by-law granting exclusive rights in regard to common property is moved (s 42(8) of the ST Act).
The strong protection of a proprietor's right of refusal to allow works on common property is limited by the provisions of s 85 of the ST Act which give the Tribunal an oversight of the merit of any refusal to allow works on common property. The Tribunal cannot grant approval for the mere fact that it may have come to a different decision or that it disagrees with the decision of a strata company. A higher threshold is imposed by the ST Act before a refusal of the strata company can be set aside. The Tribunal must show respect for the right of proprietors in strata schemes to manage and control common property according to their own interests and the Tribunal must therefore be slow to interfere in a decision to withhold consent to affect alterations to common property.
The ST Act through s 85 provides, however, that the Tribunal can override a refusal by a strata company to consent to certain works on common property if the Tribunal considers that an application to affect alterations to common property or to repair common property has been refused 'unreasonably'.
In these proceedings Mrs Anderson objected to the proposals by Mr Neville on what appears to be three grounds. Firstly, that he did not properly consult her from the outset; secondly, that there must be absolute uniformity in a strata scheme; and thirdly, that the material used is not to her liking.
The Tribunal will now consider the reasons for her objection.
The information before the Tribunal indicates a long process of consultation between the two proprietors. Both of them made use of consultants to assist in the discussions. The matter was also referred for mediation by the Tribunal. Although the initial consultation may have been deficient, the Tribunal is satisfied that Mr Neville made extensive efforts during the later process to find agreement from Mrs Anderson. In this regard the Tribunal refers, for example, to the letter from Mr Ian Laird to Mr Peter Munday, dated 16 May 2008, in which the scope and extent of the proposed works were set out in detail. The proposal was rejected by Mr Munday, acting for Mrs Anderson, in the letter dated 15 April 2008. It is therefore incorrect for Mrs Anderson to suggest she had not been made fully aware of the nature and scope of the works.
In regard to the first ground for objection, the Tribunal is satisfied that a proper consultation process occurred prior to the application being lodged with the Tribunal and that Mrs Anderson firmly rejected the proposals.
Mrs Anderson explained to the Tribunal that her understanding of the ST Act is that all units and works in a strata scheme must be absolutely uniform. She contended that, on proper construction of the ST Act, the driveway of both units must be 'identical' and the same in regard to the dividing fence with neighbouring properties.
The Tribunal does not accept this contention. The ST Act allows proprietors to approve works that may cause parts of the common property to appear different from other parts. It is within the discretion of proprietors to control and manage their common property in a manner that suits their needs and requirements. Owners have flexibility to make such decisions.
In regard to the second ground of objection, the Tribunal rejects the contention of Mrs Anderson that the driveway and walls of the two lots must be absolutely identical.
In regard to the appropriate building material to be used, the Tribunal notes that Mrs Anderson did not suggest any specific material she would prefer, except that the current fence be restored to its original state. The Tribunal is satisfied that the type of material proposed to be used would not be to the detriment of the scheme, in fact, it would be an asset.
The Tribunal is satisfied that the nature and scope of works proposed by Mr Neville falls within the provisions of s 85 of the ST Act.
The driveway is in a perilous state and parts of it have subsided to such an extent that it may cause damage to property or injury to persons. The state of disrepair is clear on the photographs and was also obvious to the Tribunal during the site visit. It would be a dereliction of duty if the strata company fail to repair it. The method proposed by Mr Neville seems to be reasonable and there is no reason why the work should not go ahead.
The Tribunal therefore finds that the strata company has unreasonably refused for the work on the driveway to continue.
The dividing fence is not only unsightly, it is also in danger of collapsing in parts. In fact, part of it has already collapsed. Mr Neville demonstrated during the site inspection the risks that the fence poses and the lack of proper compacting for retaining purposes. Part of the brick retaining wall is so weak that it could be eroded with ease. It is obvious that the current fence needs to be replaced and the retaining wall must be strengthened. Mr Neville has offered to pay for all of the work and the proprietor of the neighbouring property has agreed for the wall to be erected.
The Tribunal therefore finds that the strata company has unreasonably refused for the dividing fence to be replaced with a limestone wall.
The two course limestone wall and mail box proposed to beautify the front of Lot 2 is in keeping with the other proposed developments. The wall will be only two courses high, it will only affect part of the front of Lot 2 and it would not detract from the garden of Lot 1.
The Tribunal therefore finds that the strata company has unreasonably refused for a 2 course front wall and mailbox to be erected.
In summary, the Tribunal finds that the strata company has unreasonably refused to consent to the proposal by Mr Neville to do the following works on common property: replace the fibrous Super 6 fence between Lot 2 and the neighbouring property with a limestone wall; fix and resurface the existing driveway of Lot 2; and construct a 2 course limestone front wall with letterbox at the front of Lot 2.
Following the finding, an order should be made that the strata company consent to the works and that Mr Neville should bear the costs thereof. This is consistent with the bylaw regulating the exclusive use areas which requires proprietors to take responsibility of all costs arising from the maintenance of the exclusive areas under their control.

Order

1.The application is granted.
2.The strata company consents to the proposal by Mr Neville to replace the fibrous Super 6 fence between Lot 2 and the neighbouring property with a limestone wall; fix and resurface the existing driveway of Lot 2; and construct a 2 course limestone wall with letterbox in front of Lot 2.
3.All the above work must be done at the cost of Mr Neville.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER