O'NEILL and ALLMARK
[2006] WASAT 118
•12 MAY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: O'NEILL and ALLMARK [2006] WASAT 118
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 3 MAY 2006
DELIVERED : 12 MAY 2006
FILE NO/S: CC 103 of 2006
BETWEEN: SHEA O'NEILL
Applicant
AND
SALLY ALLMARK
Respondent
Catchwords:
Strata Titles Act 1985 (WA) – Application to set aside interim order
Legislation:
Strata Titles Act 1985 (WA), s 11, s 82, s 82(2), s 83, s 83(1)
Result:
Interim order revoked and varied form of order issued
Category: B
Representation:
Counsel:
Applicant: Mr C O'Neill (As Agent)
Respondent: Mr M Allmark (As Agent)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Bilek and Vata Investments Pty Ltd [2005] WASAT 39
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The respondent applied to set aside an interim order granted in favour of the applicant on 28 April 2006, in terms of which the respondent was ordered to refrain from carrying out any building works of whatsoever nature, upon Lot 1 of strata plan 39171.
The applicant has the benefit of an implied easement under s 11 of the Strata Titles Act 1985 (WA) in respect of a sewerage drain, which services Lot 2, and runs parallel to the eastern boundary of Lot 1. The respondent has had building plans approved for a dwelling. The footings of part of the building and of a parapet wall, as reflected in the approved plan, will be constructed immediately above the sewerage drain.
The Tribunal concluded that, on the information before it, there was a serious issue for final determination in the substantive application filed by the applicant. That was whether there was a risk that the drain might suffer damage at some stage in the future. In the event of such failure, the Tribunal accepted that the inconvenience to the applicant was not one which could be measured and compensated for in damages. In considering the balance of convenience, the Tribunal was attracted to a proposal made by the respondent that the drain be relocated. There was, however, no evidence before the Tribunal as to the details of that proposal and whether or not it would result in any disturbance to the applicant's property. The Tribunal indicated that it would make directions in the substantive application to afford an opportunity to the respondent to provide expert evidence addressing the proposal and also the issue in relation to risk of future damage on which the respondent had also not provided any evidence and the applicant to provide responsive evidence.
As the applicant had provided an undertaking as to damages in a satisfactory form, the Tribunal concluded that the balance of convenience favoured the continuation of the interim order. However, as the applicant was concerned that the order was wider than necessary and that might expose the applicant to damages, an order in a narrower form was requested by the applicant. Although the Tribunal doubted that the narrower form of order would make any practical difference, it acceded to the applicant's request. The interim order was accordingly revoked and a new order substituted for it, which restricted any works being undertaken within defined areas.
Nature of application
On 30 January 2006, the applicant filed a substantive application under s 83(1) of the Strata Titles Act1985 (WA) (ST Act) and simultaneously applied for an interim order. In both applications the order sought was identical, namely:
"That the proprietor of survey strata lot 1 on survey strata plan 39171, being the property identified as 4 Wellington Parade, Yokine, refrain from building or allowing building, over or immediately adjacent to the property sewer servicing survey strata lot 2 on survey strata plan 39171, being the adjoining property identified as 53 Collins Street, Yokine."
The interim application was first heard on 13 February 2006. The Tribunal then declined to make an order on the basis that no urgency then existed and to afford the applicant an opportunity to provide expert evidence.
At that hearing, the respondent, who was represented by her husband, Mr M Allmark, was informed that it was important that the respondent keep the applicant informed as to her intentions and that if building work commenced on site, the urgency which was currently lacking could be demonstrated, and the Tribunal might then consider it appropriate to grant interim relief. Further, the parties' representatives were advised that if it was necessary, the application could be brought on again at very short notice, if need be, simply by the applicant telephoning the Tribunal and providing reasons as to why it was necessary for the matter to be heard urgently.
A directions hearing was heard in respect of the substantive application on 9 March 2006, and directions were issued for the filing of affidavits which would stand as evidence in both the main, and interim applications. An order was also made granting the applicant leave to file an amended application and it was further ordered that an application filed on 7 March 2006, stand as such amended application and further service on the respondent was dispensed with.
The applicant did not file further affidavit evidence. The respondent requested an extension of time and in due course filed an affidavit on 18 April 2006.
On 27 April 2006, the applicant, through his agent Mr C O'Neill, filed and served a written response to the respondent's affidavit, together with a letter from PJ Wright & Associates Pty Ltd, hydraulic services and public health consultants, signed by the managing director, Mr Philip J Wright, above the description "principal hydraulic services engineer". The next day, by email addressed to me personally, Mr C O'Neill advised that building appeared to be imminent on the property and he sought an urgent determination of the application for an interim order. Further, that despite requests to Mr Allmark, he had not advised as to when the building works would commence and had not responded to a request to defer building pending resolution of the current situation. At the subsequent hearing, the applicant was informed that such communication was inappropriate and that any communications were to be addressed to the Registry.
An urgent hearing was convened that day, of which the respondent was given oral notice by the Tribunal. Mr Allmark was not available and the respondent declined to attend in his absence.
At the hearing of the interim application, Mr C O'Neill informed the Tribunal that works had commenced on the respondent's property. A photograph was tendered, which Mr C O'Neill advised had been taken that day, which showed that site works had taken place. Having regard to the criteria relevant to the grant of interim relief, the Tribunal granted an order that subject to s 82 of the ST Act, and otherwise until further order by the Tribunal, the respondent refrain, with immediate effect, from continuing with any building works of whatsoever nature, upon Lot 1 strata plan 39171. The order was expressed in terms consistent with, but wider than that sought in the application, because in response to questioning from the Tribunal, Mr C O'Neill conceded that once the footings and slabs for the proposed dwelling were poured it would be practically very difficult to effect any change to the works.
Because the order was made in the absence of the respondent, the order also granted the respondent leave to file and serve a response, including expert reports, to the further evidence provided by the applicant under cover of the letter of 26 April 2006 and also, on not less than 48 hours to the applicant, to apply to the Tribunal to set aside or vary the above order.
On 1 May 2006, by letter of that date, the respondent applied to set aside the order made on 28 April 2006. In a supporting submission filed with the letter, the respondent advised that not less than 48 hours notice to the applicant had been given. A hearing was convened on 3 May 2006 to hear the respondent's application.
The application to set aside
Section 82(2) of the ST Act requires that the Tribunal be satisfied on reasonable grounds that by reason of the urgent circumstances of the case it should make an interim order. The Tribunal has interpreted this section in a manner which requires the usual principles applicable to the grant of an injunction by a court, also be applied: Bilek and Vata Investments Pty Ltd [2005] WASAT 39. The criteria are:
1)that there is a serious question to be tried;
2)that the applicant will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and
3)that the balance of convenience favours the granting of an injunction.
At this stage of the proceedings, the Tribunal has before it all the evidence which the parties had intended to provide for the final determination of the substantive application. I have therefore been able to examine the issues raised more thoroughly than would ordinarily be necessary for the purposes of an interim order. While it was not strictly necessary to do so, the Tribunal followed this course in order to be able to provide some guidance to the parties through these reasons for decision, as to why the Tribunal considers that the parties should have the opportunity to provide further evidence to ensure a proper final determination of this dispute. For the purposes of consideration of the interim order, the Tribunal has nevertheless applied the ordinary principles stated above.
As the issues will have to be determined finally, in the main application the Tribunal does not intend to discuss them in detail in these reasons.
The essential background in a summarised form is as follows.
1)The applicant is the proprietor of survey strata Lot 2 on survey strata plan 39171, registered on 4 December 2000. The respondent is the owner of survey strata Lot 1 on that plan.
2)There is an existing dwelling on Lot 2. A sewer line runs parallel to the eastern boundary of Lot 1 and approximately 0.4 of a metre from that boundary, in order to service Lot 2.
3)The respondent has had building plans approved which will result in a portion of the dwelling being built directly over the sewer line, and most of the remaining sewer line will have a parapet wall built over it.
4)There has been a change in the approval process for building licences as a result of which it is no longer necessary to obtain approval from the Water Corporation. Under the previous regime, the Water Corporation was unlikely to have approved the plan which is inconsistent with the applicable Australian/New Zealand standard (AS/NZS 3500) which requires that any drain located under or inside a building shall only serve fixtures within that building.
5)Compliance with the AS/NZ 3500 is now intended to be achieved through the regulation of licenced plumbers, who are required, by regulation, to comply with the standard.
6)The respondent's position is that he has complied with all laws in relation to obtaining approval for the proposed dwelling and that there is no law which therefore prevents him from proceeding to construct the proposed dwelling in accordance with those plans. Nevertheless, the respondent concedes, as a result of his own inquiries and taking into account the AS/NZ 3500 that it is not desirable to construct over the sewer. He has proposed to the applicant that the sewer be relocated and asserts this can be done in a manner which will result in the sewer having to pass under the applicant's garage. It is not clear, at this stage, as to how that work would be undertaken and whether or not it would involve breaking up the floor of the applicant's garage.
7)The applicant has not accepted the above proposal, even in principle. The applicant contends that it should be possible to reach an agreement to resolve the matter and that it is possible to demonstrate that the respondent's dwelling could be moved from the boundary, in a manner which would not require any substantive change to the design of the dwelling. The respondent disputes that this is possible and asserts that the applicant has commenced these proceedings for an ulterior purpose, and that is to have the respondent's building moved from its current intended position.
8)There is a history of prior discussions between the parties, in which the applicant advocated the advantages of the position of the proposed dwelling being such that the parties would not be precluded from obtaining a green title. There was, further, some suggestion that the value of both the applicant's and the respondent's dwellings would be depreciated by the respondent's dwelling being constructed in the proposed location.
9)The applicant relies on the above AS/NZ 3500 which specifies the necessary setback requirements of drains from footings. Diagram 3.3 depicts that any drain running parallel with footings, as in the present case, must be located outside a 45 degree line drawn from the corner of the outer and bottom edge of the footing. The respondent's approved plans show that the footings are 450 millimetres wide, so that they will be situated directly over the sewer line which is only 400 millimetres from the boundary. The applicant has provided a report from a hydraulics services engineer in which reference is made to the above setback requirement. Concern is expressed as to the adequacy of the existing drain to support the imposed load of the proposed building. The engineer states "the fact that the pipe is almost directly under the footing of the proposed boundary wall, which will bear a substantial portion of the load of the building, is of particular concern in this regard".
10)The respondent has provided no evidence to address the above expressed concern. The respondent made submissions at the hearing to the effect that he had been assured by many plumbers that the practice was not to comply with the above standards and that the proposed construction would not result in any difficulty.
A serious issue
The applicant has advanced various legal bases of claim. It suffices at this stage merely to indicate that the Tribunal is satisfied that a serious issue is raised in respect of one basis of claim.
The applicant points to the implied easement which operates in his favour, pursuant to s 11 of the ST Act. The implied easement operates for the passage of a number of stated services, including sewerage. The section provides that a proprietor "shall not do any thing or permit any thing to be done" so that the passage or provision of the stated services is interfered with.
Although the applicant has not framed his argument on this basis, the effect of the evidence summarised above is that it is established that there is some risk that the sewerage pipe might fail at some stage in the future, as a result of the load imposed on it by the respondent's dwelling. That is the only interference which will be drawn logically from Mr Wright's opinion.
The substantive application is brought under s 83 of the ST Act which enables the Tribunal to make such orders as may be necessary for the settlement of the dispute. It is not therefore necessary to rely only on s 11 of the ST Act which would require that the respondent presently be doing something which interferes with the passage of a relevant service. The dispute can be characterised as one relating to the applicant's concern that the steps taken now, by constructing the dwelling as approved, is likely to result in damage to the pipe in the future, with the consequences that then will follow.
The Tribunal is satisfied that the above raises a serious issue for final determination in the main application.
Balance of convenience
There is no issue that once the slab and footings have been poured, it would be practically very difficult to provide any effective remedy. It would become progressively more difficult to do so as the construction works are advanced.
The respondent's answer to this, is to point to the proposal put forward to relocate the sewer line. There is considerable merit in this suggestion, but the difficulty for the respondent is that there is no evidence before the Tribunal properly defining the proposal and addressing how the relocation would be undertaken. The respondent has contended that a new sewer line be installed "in the manner recommended by the Plumbers' Board" and has made it clear that the sewer line, as proposed, would run beneath the applicant's garage. The Tribunal cannot properly assess the proposal on this basis. The Tribunal will issue directions in the substantive application to afford the respondent an opportunity to put further evidence before the Tribunal and will direct that such evidence may be relied upon in any further application relating to the interim order.
The respondent has further proposed that the relocation of the sewer should be effected at the applicant's expense, but "should SAT not see fit, the cost to be shared equally by the applicant, the respondent and the Water Corporation". The Water Corporation has indeed offered, to the respondent, to contribute one third of the cost of relocating the sewer. The reason for this is not explained, but may have something to do with its assessment of the Water Corporation's role in relation to the original application for registration for the strata plan. The Water Corporation then permitted a sewer line to cut across Lot 1 in an almost diagonal manner, simply on the basis that the then owner of Lot 1 would disclose to a first purchaser that the location of the sewer line might restrict development of the lot. The first purchaser was the respondent and by arrangement between the vendor and the respondent, the cost of relocating the sewer to its present location was shared.
It was apparent from the respondent's submissions that he misunderstood who owned the drainage pipe itself. The respondent contended that it was owned by the applicant and therefore its location was the applicant's problem. That is patently wrong. What is contained in and comprises Lot 1, is owned by the respondent. It is for that reason that an easement must be implied. Accordingly, for the respondent's proposal to carry its maximum weight for the purposes of assessing the balance of convenience, it would be necessary for the respondent to agree to bear the cost, although of course, as between the respondent and the Water Corporation, there may be an entitlement to a contribution.
Also relevant to a consideration of the balance of convenience, is that the applicant has been prepared to furnish and has furnished an undertaking as to damages to be assessed by the Tribunal.
Based on all the information currently before it, the Tribunal concludes that the balance of convenience favours the continuation of the interim order. The applicant did, however, express concern that the wider form of the order granted on 28 April 2006 might expose him to damage which might not arise, if the order was in the terms originally sought, and as further defined in a minute of proposed orders handed up during the hearing. For the reasons given above, and conceded by the applicant's agent at the hearing on 28 April 2006, the Tribunal doubts very much that a narrower form of order will make any difference to any potential liability for damages. However, as that is the order for which the applicant contends, the Tribunal will revoke the present order and vary it by substituting a new order in the terms hereafter expressed.
Guidance to parties
While the interim order will effectively continue as a result of the above conclusions, based on the Tribunal's wider assessment of the evidence filed, which by virtue of the terms of a directions order made on 9 March 2006, stands as evidence in both the main and interim applications. Given the further directions which the Tribunal intends to make in the main application, it is possible that the applicant will not be entitled to the relief sought on a final basis.
The reason for this is that the directions to be made will provide the respondent with an opportunity to provide expert evidence addressing:
a)whether there is any risk of damage to the sewer line in the event that the construction of the dwelling proceeds in accordance with the current building licence; and
b)in detail the proposal for relocation for the sewer line including satisfactory evidence as to how the works would be undertaken, with specific reference to any impact to the applicant's property.
Subject to the respondent satisfactorily addressing the issue raised in (a), it may be that the Tribunal would decline to grant the relief sought in the main application.
If only the relocation issue is satisfactorily addressed, the Tribunal may be inclined to revoke the interim order in its current form. In such circumstances, the Tribunal would afford the applicant with a choice of either facing the risk of dismissal of the proceedings, or amending the order sought in terms which would satisfy the Tribunal. At present, in such circumstances, the Tribunal would be inclined towards an order that the respondent relocate the sewer line, in accordance with the then current proposal, at his own cost, and an order that the respondent refrain from carrying out building work, in the terms sought by the applicant, until the relocation works have been completed and fully commissioned.
It is of course necessary to provide the applicant with an opportunity to respond to any further evidence provided by the respondent.
Order
The Tribunal will issue separate orders in the main application proceedings to provide the parties with the opportunity to put further evidence before it, in respect to those proceedings, and if necessary for the purposes of any reconsideration of the interim order.
However, for the reasons given above, the Tribunal makes the following orders on the respondent's application heard on 3 May 2006.
It is ordered:
1.The interim order made in paragraph 1 of the order made on 28 April 2006, is revoked and the order set out in paragraph 2 below is substituted.
2.Subject to s 82 of the Strata Titles Act1985 (WA), and otherwise until further order by the Tribunal;
a)the respondent, as proprietor of survey strata Lot 1 on survey strata plan 39171, being the property known as 4 Wellington Parade, Yokine, refrain from building or allowing building, over or immediately adjacent to the property sewer servicing survey strata Lot 2 on survey strata plan 39171;
b)for the purposes of this order, the term "immediately adjacent" referred to above, means:
i)closer to the property sewer than indicated for services on the footing and ground slab details illustrated on Sheet No S3 of 7 of Annexure MA34 to the affidavit by Marlon Allmark, filed on behalf of the respondent on 18 April 2006, or,
ii)closer to the property sewer than the separation distance required for drains under cl 3.8.2 of AS/NZS3500.2.2.
3.The respondent has leave on not less than 48 hours notice to the applicant to apply to the Tribunal to set aside or vary Order 2 above.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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