NEWMO PTY LTD and THE OWNERS OF 16 O'CONNOR WAY, WANGARA - STRATA PLAN 16327
[2007] WASAT 140
•5 JUNE 2007
NEWMO PTY LTD and THE OWNERS OF 16 O'CONNOR WAY, WANGARA - STRATA PLAN 16327 [2007] WASAT 140
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 140 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1419/2006 | 25 MAY 2007 | |
| Coram: | MS J HAWKINS (MEMBER) | 5/06/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for licence pursuant to s 94 Strata Titles Act 1985 (WA) is dismissed | ||
| B | |||
| PDF Version |
| Parties: | NEWMO PTY LTD THE OWNERS OF 16 O'CONNOR WAY, WANGARA - STRATA PLAN 16327 |
Catchwords: | Licence of common property for use as car sales/hire display area |
Legislation: | Strata Titles Act 1985 (WA), s 7(2), s 7(5), s 17, s 42(1), s 42(8), s 94, s 94(2)(a), s 94(2)(b), s 94(3), s 103F, Sch 1, Sch 2 |
Case References: | Killigrew and Owners of Camdale Strata Plan 7996 [2005] WASAT 48 McGeachie & Ors v Clark & Ors [2005] WASC 177 Platt v Ciriello [1998] 2 Qd R 417 |
Orders | 1. The application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : NEWMO PTY LTD and THE OWNERS OF 16 O'CONNOR WAY, WANGARA - STRATA PLAN 16327 [2007] WASAT 140 MEMBER : MS J HAWKINS (MEMBER) HEARD : 25 MAY 2007 DELIVERED : 5 JUNE 2007 FILE NO/S : CC 1419 of 2006 BETWEEN : NEWMO PTY LTD
- Applicant
AND
THE OWNERS OF 16 O'CONNOR WAY, WANGARA - STRATA PLAN 16327
Respondent
Catchwords:
Licence of common property for use as car sales/hire display area
Legislation:
Strata Titles Act 1985 (WA), s 7(2), s 7(5), s 17, s 42(1), s 42(8), s 94, s 94(2)(a), s 94(2)(b), s 94(3), s 103F, Sch 1, Sch 2
(Page 2)
Result:
Application for licence pursuant to s 94 Strata Titles Act 1985 (WA) is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr I Rogers
Respondent : Mr A Shaw
Solicitors:
Applicant : Hardy Bowen
Respondent : Atkinson and Associates
Case(s) referred to in decision(s):
Killigrew and Owners of Camdale Strata Plan 7996 [2005] WASAT 48
McGeachie & Ors v Clark & Ors [2005] WASC 177
Platt v Ciriello [1998] 2 Qd R 417
(Page 3)
Summary of Tribunal's decision
1 The applicant owns a lot in a strata complex at 16 O'Connor Way, Wangara. In this case the applicant asked the Tribunal to grant a licence to it for the use of common property pursuant to s 94 of the Strata Titles Act 1985 (WA). It wanted a licence to use an area of common property situated at the front of the strata complex at 16 O'Connor Way, Wangara. It wanted the use of a portion of common property to enable it or any of its tenants to display cars for sale or hire. It suggested that it had no option but to seek such a licence as it believed that any other avenue for approval from the respondent under the Strata Titles Act 1985 would be futile.
2 The applicant or its tenant has been using the portion of common property over which it sought a licence despite not having obtained approval from the respondent. The applicant has also received rent from its tenant for the use of that portion of the common property.
3 The Tribunal was not satisfied that this was an appropriate case to grant a licence under s 94 and did not consider the applicant had pursued all the alternative approval processes available to it under the Strata Titles Act 1985 which allows a strata company to approve the use of common property.
4 In addition the Tribunal was not satisfied that the applicant could show that its lot was incapable of being reasonably used or enjoyed without the licence. The application was therefore dismissed.
Application
5 The applicant commenced proceedings in this Tribunal on 11 September 2007. That application was subsequently amended on 16 January 2007and 21 May 2007. Although the applicant originally sought a raft of orders against the respondent strata company, it has now reduced its claim to simply seeking an order under s 94 of the Strata Titles Act 1985 (WA) (ST Act) for a licence to use a portion of the common property of a strata complex at 16 O'Connor Way, Wangara (the strata complex). The orders sought are as follows:
"That an order for use of a portion of the common property, measuring approximately 285 square metres in favour of the applicant be made under the provisions of s 94 of the ST Act on terms and provisions contained in the draft licence deed and
(Page 4)
- valuation, proposed to the respondents by way of letter dated 29 March 2007, alternatively, on such terms and conditions as the Tribunal may order."
6 The licence is sought to enable the applicant to use a portion of the common property of the strata complex to display for hire or sale a maximum of 10 cars.
7 The applicant is the registered proprietor of Unit 4 of the strata complex. By letter dated 29 March 2007, the applicant's solicitors presented a detailed written proposal to the respondent for a licence. The proposal for the licence was rejected by the respondent in a letter from the respondent's solicitors dated 20 April 2007.
8 This matter has been the subject of a mediation in this Tribunal on 4 May 2007 which was unsuccessful. An agreed bundle of documents formed the evidence in this matter. The hearing was therefore limited to oral submissions from counsel representing the parties.
Background and relevant facts
9 Lot 4 is located at the southern end of the strata complex on the corner of O'Connor Way and Buckingham Drive, Wangara. The applicant became the registered proprietor of Lot 4 on 24 December 2001. A licence is sought to enable the applicant or any of its tenants to use a portion of the grassed area at the front of the strata complex (the proposed area), to display cars for sale or hire. There is no dispute that the proposed area forms part of the common property of the strata complex.
10 The strata plan describes the building situated at 16 O'Connor Way, Wangara as a single storey commercial complex comprising four units with varying unit entitlements. It was accepted by both parties that the strata complex is situated within the City of Wanneroo's (the City's) Scheme area and is zoned "Service Industrial" under the City's Planning Scheme No 2. A permitted use under table 1 of the City's Scheme in the service industrial zone is "vehicle sales/hire premises". Permission was granted by the City by letter dated 4 February 2003 for the outdoor display of a maximum of 10 cars on the proposed area. The proposed area has and is being used to display cars for sale or hire. A lease or licence of the proposed area was purported to be given by the respondent in December 2001 to a then tenant of Lot 4 (Scott Ruppell) for the purpose permitted by the City. That purported lease or licence was for a period of two years, was non transferable and was for a yearly fee of $3600.
(Page 5)
11 In March 2003, the City confirmed upon enquiry by Mr Hughes, the Director of the applicant, that approval to operate the business of car sales upon the proposed area remained. The applicant then wrote to the respondent on 24 March 2003 requesting permission to use the proposed area to display cars for sale or hire. He also requested permission to install a roller door at the front of Lot 4 to enable the public to more easily view cars within Lot 4. The respondent refused permission.
12 On 5 June 2003, the respondent then wrote to the applicant requesting the applicant remove the cars on display for sale from the proposed area. By letter dated 9 June 2003, the applicant wrote again to the respondent, and amongst other things, again sought approval to display up to 10 cars on the proposed area.
13 In neither letter to the respondent did the applicant proffer to pay a fee for use of the proposed area.
14 This matter was the topic of further discussion at an Extraordinary General Meeting held by the respondent on 17 February 2005. The respondent council resolved as follows:
"Not to approve or in any way permit the use of any part of the common property for the parking, standing, or display of motor vehicles or any other goods displayed for sale on any part of the common property. The chairman noted Mr Hughes' opposition to the motion."
and
"to take all available and necessary steps to have removed, any motor vehicles or other goods displayed for sale on any part of the common property. The chairman noted Mr Hughes' opposition to the motion."
15 The applicant or its tenants have and continue to use the proposed area to display cars without written approval from the respondent. There is some dispute as to whether the respondent has persistently demanded a fee of $6000 to be paid to each other lot owner for the proposed area. However, the applicant admits that it has received rental income for the use by its tenant of the proposed area.
16 The lots within the strata complex have been used for a variety of business ventures such as electric sales and motor repairs, business
(Page 6)
- machinery retail, paint suppliers, sign-writing, retail of electrical goods, mobile carpet cleaning and new and used furniture.
17 On 29 March 2007, the applicant put a written proposal to the respondent for a licence to use the proposed area. In summary, the proposal was as follows:
1) a licence fee of $3563;
2) an initial term of five years with five further options to renew each of the five year periods, subject to approval from the Western Australian Planning Commission plus rent review after five years based on any CPI increases in the twelve month period prior to the renewal;
3) the permitted use being for the hire or sale or a maximum of 10 vehicles;
4) the respondent to keep the licensed area in a state of good repair;
5) the applicant as licensee to indemnify the respondent against any public liability or other usual risks;
6) an obligation to comply with all relevant acts and by-laws relating to the use of the licensed area.
18 The applicant's proposal was based on a valuation report from Mr Harray, a licensed valuer. That report was undated but suggested that a licence fee of $3563 was appropriate.
19 The respondent then obtained its own valuation report from Mr Garmony, a licensed valuer, dated 17 April 2007. Following receipt of that report, the applicant's proposal was refused by the respondent for the following reasons:
1) the reasons concerning public liability insurance;
2) the permitted use allowed for incidental uses that would invite dispute;
3) permitted the applicant to erect signs without requiring the consent of the respondent;
4) permitted assignment or sub-letting without restrictions;
(Page 7)
- 5) contain misconceived and inappropriate provisions in relation to rates, taxes, insurance, dispute resolution;
6) made inadequate provision for costs;
7) the licence fee was substantially less than current market conditions;
8) contemplated term may affect the development's potential of the scheme;
9) did not contain appropriate licence review conditions;
10) the respondent was not convinced the requirements of s 94(2)(a) of the ST Act had been met in any event.
20 A joint report from the two valuers, Mr Garmony and Mr Harray, has been obtained by the parties. That report date of 17 May 2007 states as follows:
"It is therefore agreed between both experts that the rental amount for the 285 square metre portion of common property be licensed for use as a vehicle display yard to be in the sum of $5700 per annum net plus outgoings and GST.
After further analysis, the experts agreed they were unable to accurately assess the outgoings attributed to the subject land, however it was agreed that the licensee is to pay the balance of any changes in outgoings for the complex from the addition of the 285 square metre licensed area. This rental assessment and statement is based on a five year term, assuming annual rent reviews to CPI with a market rent review at the start of a further term if a further term is agreed upon by the parties. It further agreed that it would be unrealistic for a long term license [sic] to be entered into for this type of property as it may restrict the development potential of the whole strata complex in the future."
Applicant's submissions
21 The applicant maintains that the elements of s 94 of the ST Act have been satisfied to allow a licence to be granted. It says that the proposal put by the applicant has been refused by the respondent by letter dated 20 April 2007; therefore, s 94(2)(b) of the ST Act is satisfied. As to s 94(2)(a), the applicant maintains as follows:
(Page 8)
- A. that the applicant is not seeking any structural alterations to the common property;
B. that valid planning approval exists to allow the display of up to a maximum of 10 vehicles;
C. that the applicant or its tenant require the proposed area to effectively use Lot 4 so that vehicles can be easily and conveniently displayed for sale or hire to the public;
D. without the use of the proposed area the applicant or its tenants cannot conduct the business of vehicle sales;
E. that no other lot owner within the strata complex requires the proposed area over which the licence is sought; and
F. that due to the relevant planning approval there is an inextricable nexus between the proposed area and the applicant's lot;
G. that due to the history between the parties, the applicant has no option but to obtain a licence under s 94 of the ST Act. The applicant does not consider that, even if it proposed a by-law under s 42(8) of the ST Act, this would be accepted by the respondent. It maintains that s 42(8) does not apply to the current proposal. It argues a by-law under s 42(8) only applies where there has been an alteration to the common property. Here the applicant suggests that it is not intending to alter common property. Further, it argues that s 42(8) of the ST Act has no application because the applicant is not seeking exclusive use as a result of the licence application. It argues that merely parking 10 vehicles on the common property does not prevent others from accessing or using the common property. It also suggests that by-law 1(2) Sch 1 of the ST Act entitles the applicant to park vehicles upon the proposed area without the respondent's permission.
H. Finally, the applicant suggests that without the licence being granted it will be unable to secure its investments in the purchase of the lot.
(Page 9)
Respondent's submissions
22 The respondent's submissions in opposition were extensive and it is not intended to repeat the entirety of those submissions. In summary, however, the respondent argued as follows:
A. Section 94(2)(a) of the ST Act is not concerned with the particular business that can be run from a lot;
B. a range of different business uses are available to the applicant to conduct upon the lot;
C. the approval by the City for a particular type of business on the proposed area is relevant only to capacity as to use. It does not mean that the proposed area can only be used for the purpose as approved by the City;
D. that it was not until the applicant's letter of 24 March 2007 that the applicant put any detailed proposal to the respondent or offered payment for use of the proposed area. Until then the respondent maintains that the applicant had never proposed that it pay in any way for the use of the proposed area;
E. that the applicant or its tenants have been using the area of common property without permission and the applicant has received rental income from its tenants for its use; and
F. that reference in s 94(2)(b) to the word "reasonable" requires the proposal to be reasonable. The respondent maintains that the proposal of 24 March 2007 put by the applicant was not reasonable for the following reasons:
(a) the licence fee offered was less than what the respondent had been prepared to accept in 2001. Scott Ruppell paid $3600 in 2001-2002 – the offer by the applicant in 2007 was for a licence fee less than that amount;
(b) the licence period suggested was manifestly long;
(c) a licence would prevent the proposed area being available for car parking in the future;
- (d) the amount offered as a licence fee was below market value, bearing in mind the joint valuers' report and the licence only allowing for a CPI increase at the end of five years, based on the prior 12 month period;
(e) the applicant only seeks the licence in order to enhance the value of its lot; and
(f) the respondent's rejection was reasonable as:
(i) rejection of the licence fee was based on the respondent's valuer's report;
(ii) there would be no need to assign the licence and that any assignment would allow the proposed area to be assigned and used external to the strata complex scheme;
(iii) the applicant does not as of right under standard by-laws under the ST Act have the ability to park cars upon common property without written approval of the respondent;
(iv) granting the licence would mean the applicant could avoid the governance processes under the ST Act which deal with the grant of exclusive use of common property;
(v) in relation to the roller door – there are only limited bases upon which an alteration to common property can be prevented under s 7B and s 7(5) of the ST Act;
(vi) as the respondent had shown a willingness with Scott Ruppell to come to a commercial arrangement, this meant that it cannot be accepted that the applicant's position is futile;
- (vii) the respondent suggests there may be no power in any event to grant a licence unless it can be shown that the licence is for the benefit of all proprietors;
(viii) the use of the proposed area would amount to exclusive uses;
(ix) the applicant's unlawful use of the subject common property should be considered if a licensing grant is granted and that a condition precedent of any licence would be that the applicant repay the respondent for the use it has made of the proposed area; and
(x) the terms of s 94(3) of the ST Act are linked to the same requirements that apply under s 42(8) of the ST Act when granting a by-law.
Relevant legislation
23 Section 94 of the ST Act provides as follows:
"(1) Pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal may, subject to this section, order that the applicant, and any occupier or other resident of the lot of which the applicant is the proprietor, may use specified common property in such as manner, in such purposes, and upon such terms and conditions, if any, as are specified in the order.
(2) The State Administrative Tribunal shall not make an order under s (1) unless satisfied –
(a) that the lot of which the applicant is proprietor is incapable of reasonable use and enjoyment by the proprietor, occupier, or other resident of the lot unless the order is made, and
(b) that the strata company has refused to grant a license to use common property in such a manner, for such purposes, and upon such terms and conditions as would enable that proprietor or such
- an occupier or other resident reasonably to use and enjoy that lot.
- (3) An order under s (1), when recorded under s 115, has effect, subject to any order with respect thereto made by a superior court, as if its terms were a by-law."
24 Section 7(2) provides as follows:
"(2) the proprietor of the lot shall not cause or permit –
(a) any structure to be erected; or
(b) any alteration of a structural kind to, or an extension of, a structure,
on his lot except –
(c) with the prior approval of the proprietor of the other lot in the case of the strata scheme in which there are not more than two lots; and
(d) in any other case with the prior approval, expressed by resolution without dissent, of the strata company."
"(5) The grounds on which approval may be refused are –
(a) that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot ascertained in accordance with section 7A(3);
(b) in the case of a lot that is not a vacant lot, that the carrying out of the proposal –
(i) will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development;
(ii) may affect the structural soundness of a building; or
- (iii) may interfere with any easement created by section 11 or 12; or
- (c) any other ground that is prescribed."
26 Section 17 provides as follows:
"17. Ownership of common property
(1) Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots."
"(8) Without limiting the generality of any other provision of this section other than subsection (1), a strata company may, with the consent in writing of the proprietor of a lot, pursuant to a resolution without dissent (or 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 (including the proper maintaining and keeping in a state of good and serviceable repair of the common property or that part of the common property, as the case may be, and the payment of money by that proprietor to the strata company) as may be specified in the by-law and may, pursuant to a resolution without dissent (or unanimous resolution, in the case of a two-lot scheme), make a bylaw amending or repealing any by-law made under this subsection."
28 Schedule 1 by-law 1(2) provides as follows:
"(2) 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;
- (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;
(c) take all reasonable steps to ensure that his visitors do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor, occupier or other resident of another lot or of any person lawfully using common property; and
(d) take all reasonable steps to ensure that his visitors comply with the by-laws of the strata company relating to the parking of motor vehicles."
29 Schedule 2 by-law 1 provides as follows:
"1. Vehicles
A proprietor, occupier, or other resident of a lot shall not park or stand any motor or other vehicle upon common property except with the written approval of the strata company."
30 In this case the applicant seeks a licence to use a portion of common property for the display of up to 10 cars. Pursuant to s 17 of the ST Act, common property is held by proprietors as tenants in common in shares proportional to their unit entitlement. This Tribunal's power to grant a licence is provided in s 94 of the ST Act. It has been stated in the matter of Killigrew and Owners of Camdale Strata Plan 7996 [2005] WASAT 48 that the power granted under s 94 of the ST Act is to be exercised with great "circumspect and caution". In particular it is stated at [33] of Killigrew as follows:
"The legislator could not have intended the normal decisionmaking processes as described in the rest of the Act to be circumvented by a reliance on s 94 – refer for example to the provisions of s 83(4). An order under s 94 can only be give[n] if the proprietor is, given all factors, 'incapable of reasonable use and enjoyment' of a unit. The mere rejection of an application for use of common property by the applicant cannot
(Page 15)
- in itself be taken as fulfilling the requirements of s 94(2). Section 94 can therefore not be used to escape or 'opt out' of approvals processes that regulate the approval process in Camdale."
31 The applicant suggests that it has no option but to seek a licence as every other proposal it has made to the respondent has been rejected. It refers to a proposal for the installation of a roller door as an example. It sought approval from the respondent for the installation of the roller door at the front of its lot which it considered would assist in the conduct of car sales from Lot 4. Apart from making that request in writing in 2003, it has taken no further steps to pursue that option. The provisions of s 7(5) of the ST Act would govern such an alteration. The grounds upon which such an alteration can be resisted are limited. Further, if resisted, the applicant always has the option of pursuing an application under s 103F in this Tribunal.
32 Additionally s 42(1) and s 42(8) of the ST Act enable the strata company to confer certain special rights on a proprietor for the use of common property. At no time has the applicant formally proposed a bylaw for exclusive use of the proposed area in accordance with s 42 of the ST Act. The applicant contends that s 42(8) is limited only to instances where, as a result of alterations to a lot, common property becomes part of a lot, entitling that lot owner to exclusive use of the area of common property in question. There is no such limitation expressed in s 42(8) of the ST Act nor is there any reason on a proper construction of the ST Act that such a restricted interpretation should be implied.
33 The applicant further suggests that the grant of the licence would not amount to exclusive use of the subject common property. It suggests that the parking of cars upon common property is something that is sanctioned under standard by-laws in the ST Act.
34 There is no dispute that those by-laws apply in this matter. The applicant seeks to rely on by-laws contained in Sch 1 by-law 1(2) of the ST Act. It argues that this by-law entitles the applicant an entitlement to use common property. However, this overlooks by-law 1 Sch 2 of the ST Act which states that cars may only be parked upon common property with the written approval of the strata company.
35 The applicant suggests that many uses of common property may result in exclusive use, such as by merely standing on a piece of common property (see Platt v Ciriello [1998] 2 Qd R 417 at 423). It argues that the
(Page 16)
- parking of cars does not interfere with other lot owners' ability to use and enjoy the subject common property as there is still land between the cars to enable other lot owners to make whatever use of that portion of the common property they wish to do so. As such the applicant maintains that a by-law under s 42(8) of the ST Act is unnecessary. The Tribunal rejects these contentions. The parking of 10 cars for sale or hire upon the proposed area substantially interferes with the use by which other proprietors could make of that area of common property.
36 Although it appears that until recently the respondent's processes in respect to conducting the strata company business have been informal, it is clear that since 14 November 2006 it has begun to conduct meetings in an orderly fashion. It was not until the 29 March 2007 that the applicant had put a proposal for payment for the use of the proposed area. Despite not having obtained the approval of the respondent to use the proposed area, the applicant or its tenant has continued to use the proposed area to display motor cars and the applicant has received rent from its tenant for the use of proposed area. There is accepted authority that courts are reluctant to interfere with the holding of meetings and to assume that people are going to meet with cast iron preconceived ideas. (See McGeachie & Ors v Clark & Ors [2005] WASC 177 at [20] – [29].)
37 The Tribunal is therefore not satisfied that the applicant has explored all available approval processes open to it under the ST Act to warrant a licence being granted in this matter under s 94 of the ST Act. In addition, it does not consider the applicant has satisfied the provisions of s 94 of the ST Act.
38 An order under s 94 of the ST Act is only able to be given if the proprietor can show that without a licence he or she is incapable of reasonably enjoying or using their lot. The Tribunal does not consider that the reference in s 94 of the ST Act to the "lot" includes common property situated outside the lot. The applicant suggests that the use of the lot is linked to a specific type of business – namely the selling of second-hand cars. The Tribunal does not accept this contention. Section 94 of the ST Act refers specifically and is limited to the use of the lot and cannot be interpreted to include, common property. If the Tribunal were to follow the applicant's contention, it would mean that an interpretation of s 94 of the ST Act was dependent upon the type of business the lot owner may wish to conduct upon a lot and upon the common property. This would lead, in the Tribunal's view, to inconsistent outcomes.
(Page 17)
39 Section 94 of the ST Act is more generally concerned with issues relating to access to a lot or the installation of fittings or fixtures upon a lot which may intrude into the common property, such as pergolas, air conditioners, awnings, signs etc (which allow a better use of the proprietor's lot). In this case the applicant is seeking a licence to use a portion of the common property to enable it or its tenants to carry on the particular business of car sales yard. The question therefore arises as to whether there is sufficient evidence to establish that the applicant's lot is incapable of reasonable use and enjoyment without the licence proposed being granted. The applicant is not suggesting that without the licence he cannot access the lot or that it requires the common property for the purpose of affixing a fixture or fittings that may enhance the occupation of its lot. Further, there is no evidence to suggest that the cars that it or its tenant wishes to display cannot fit within the lot. Rather it seems, that the applicant or its tenant require the licence to use common property to enhance the business of car sales or hire by maximising the exposure of the cars along the street front of the strata complex. The applicant seeks to suggest that the business of car sales is the most befitting of the lot as other commercial businesses have failed in other lots such as clothes storage and auto-graphics. The applicant has not, however, provided any evidence to show that the business of car sales or hire is the only business that can be run from the lot. A table of occupiers and uses dated 17 May 2005 was part of the agreed bundle of documents. This reveals that the various lots have been used for a variety of business ventures.
40 The City's approval in respect to the proposed area does not mean it can only be used for the display of cars for sale or hire. Clearly other businesses have been operating in the strata complex. The applicant has not put forward any cogent evidence to allow the Tribunal to be satisfied that running a car sales business from its lot and upon the proposed area is the only option available to the applicant and without the licence the applicant is incapable of reasonably using or enjoying its lot.
41 The use of the lot as a car sales business is a commercial decision by the applicant. The Tribunal does not consider that the grant of exclusive use of common property should be dependent on a lot owner's decision as to the type of business it wishes to run from the lot – without very good evidence to establish that this is the only type of business that is viable for that particular lot and with the use of that particular area of common property. The Tribunal is not therefore satisfied that the applicant has established that its lot is incapable of being reasonably used or enjoyed without the proposed licence of the common property as required under s 94(2)(a) of the ST Act.
(Page 18)
42 As for the second condition under s 94(2(b), it is clear that the applicant's proposal was refused by the respondent by letter dated 20 April 2007. Although it is not clear that the applicant needs to show for the purposes of s 94, whether the licence proposal was unreasonably refused by the respondent, it seems appropriate that some examination of the applicant's proposal takes place. The applicant's proposal was made on 29 March 2007. A summary of the applicant's proposal and the respondent's basis for rejection is set out at [19] above. The parties have filed a Joint Experts Report, dated 17 May 2007, from Mr Garmony and Mr Harray, both licensed valuers. The possible licence fee assessed by those experts was much higher than that suggested by the applicant to the respondent. In addition, the applicant sought what could only be described as an extensive term with an unrealistic number of options to renew. The joint experts' evidence only recommended an initial term of five years. They considered it unrealistic for a long term licence to be entered into as this could restrict the development potential of the strata complex. Based upon those two factors alone, had the Tribunal considered there was a basis to show that the applicant's lot could not be reasonably enjoyed without the licence as proposed, it would not have been satisfied that the licence sought by the applicant should have been granted, given the joint experts' report.
43 In all the circumstances, therefore, the Tribunal is not satisfied that grounds have been made out in this case for a licence to be granted to the applicant pursuant to s 94.
Order
1. The application is dismissed.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER
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