Ortega and Anor and Berger and Ors

[2006] WASAT 71

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   ORTEGA & ANOR and BERGER & ORS [2006] WASAT 71

MEMBER:   MR T CAREY (MEMBER)

HEARD:   28 JUNE 2005, 8 SEPTEMBER 2005

SUPPLEMENTARY WRITTEN SUBMISSIONS FILED BY APPLICANT:
23 DECEMBER 2005
SUPPLEMENTARY WRITTEN SUBMISSIONS FILED BY RESPONDENT:
16 FEBRUARY 2006

DELIVERED          :   24 MARCH 2006

FILE NO/S:   STR 141 of 2004

BETWEEN:   JOSEPH EUGENE ORTEGA

MEREDI JO ORTEGA
Applicants

AND

JENS BERGER
SARAH LOUISE HENZELL
BELINDA JANE WHYTE
THE OWNERS OF 16A - 16B MORAN STREET BEACONSFIELD - STRATA PLAN 23654
Respondents

Catchwords:

Strata titles – Common property – Application for consent to proposal to alter common property – Conversion of strip of land from heavily vegetated to concreted pathway – Common property held by all proprietors as tenants in common – Requirements for order under Strata Titles Act 1985 (WA) s 85(1) – Whether in absence of proposed alteration the applicants' legitimate access requirements met – Whether strata company's refusal to consent unreasonable – Strata Plan 23645

Legislation:

State Administrative Tribunal Act 2004 (WA), s 167

Strata Titles Act 1985 (WA), s 7, s 7A, s 7B, s 17(1)(a), s 85, s 85(1)

Result:

Application partially successful

Category:    B

Representation:

Counsel:

Applicants:     Mr G Owen

Respondents                 :     Self­represented

Solicitors:

Applicants:     McLeods

Respondents                 :     Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicants sought orders to the effect of which was to allow their proposal that a narrow strip of land, part of the common property of a strata scheme, be converted from heavily vegetated to a concrete path.  This would enable ready access from the street frontage of the parcel to the applicants' lot at the rear.

2. The Tribunal's analysis commenced with the basic principle that any change to common property should generally occur with the consent of all the owners, subject to the proponent's right to review of a refusal to consent where the refusal is unreasonable.

3. The Tribunal found that the applicants' legitimate right of access was catered for by the right‑of‑way abutting the applicants' lot and no sufficient reason existed to uphold a proposal constituting a significant change to the nature of the common property.  It found that the detriment relied upon by the applicants flowing from the refusal of the proposal was a consequence of the location of their lot at the rear of the parcel.

4. The Tribunal allowed that part of the application concerning an admitted encroachment of a garden shed on the common property.

Application

1. The original application was filed with the former Strata Title Referee shortly before the Tribunal came into existence and subsequently transferred to the Tribunal pursuant to s 167 of the State Administrative Tribunal Act 2004 (WA). The application was amended in significant respects on 8 September 2005, and was further amended, after solicitors came on the record for the applicants, on 22 December 2005.

2. The application, as finally amended, is in the following terms:

   "The Applicants make application for the following principal orders pursuant to section 85 of the Strata Titles Act 1985:

   1.That any buildings or structures or vegetation, authorised or not, erected or planted on Lot 4 which encroach onto the common property immediately abutting the southern boundary of Part Lot 4 ('the Common Property') or which would impede the carrying out of the works contemplated by Order 2 and 3 hereof be removed within 28 days of the making of this order;

   2.The strata company consent to the Applicants' proposal for the construction of a concrete path over the Common Property and the erection of suitable fencing and a gate from the Common Property to Lot 5;

   3(a)Within 42 days of the making of these orders, the proprietor of Lot 5, shall on behalf of the owners of 16A – 16B Moran Street Beaconsfield, obtain and submit to the proprietors of Lot 4, not less than two written quotations from:

   (i)professional contractors tor the clearing and levelling of the Common Property and the laying of a concrete pathway; and

   (ii)professional contractors for the installation of fencing and a gate as may be necessary to provide a safe and secure access way to Lot 5 over the Common Property.

   3(b)

   (i)That the cost of the works to be carried out pursuant to this Order be met by the proprietors in the following proportions – Lot 4, 28% – Lot 5, 72%; and

   (ii)Within fourteen (14) days of such quotations being submitted to them the proprietors of Lot 4 shall notify the proprietor of Lot 5, in writing which quotation they prefer and within fourteen (14) days of being notified by the proprietor of Lot 5 which contractor has been chosen, the proprietors of Lot 4 will within fourteen (14) days send to the proprietor of Lot 5, cheques payable to the stated contractor, amounting to 28% of the quoted cost, but:

   (iii)If the proprietors of Lot 4 shall not so notify the proprietor of Lot 5 within the period of fourteen (14) days, the proprietor of Lot 5 may accept either of such quotations and shall forthwith notify the proprietor of Lot 4 in writing of such acceptance whereupon the proprietors of Lot 4 will forthwith send to the proprietor of Lot 5, cheques payable to the stated contractor amounting to 28% of the quoted cost.

   4.In the event that the proprietors of Lot 4 wish to incur expenses for fence and any additional gates over and above the lawful obligation of the owner of Lot 5, to contribute to the dividing fence and gate, then the proprietors of Lot 4 shall:

   (i)be permitted to install such gates as may be approved by SAT; and

   (ii)any such costs will be borne entirely by the proprietors of Lot 4.

   5.That for the avoidance of doubt the strata company be ordered to cause the above works to be carried out within thirty five (35) days of the date of this order, or consent to the works being carried out as set out herein."

Introduction

1. The applicants are the owners of Lot 5 in a three lot residential strata development situated in Moran Street, Beaconsfield.  The first and second respondents (to whom I will refer collectively as "the respondents") own Lot 4 and the third respondent owns Lot 3.  The strata plan (plan) discloses that Lots 3 and 4 are situated alongside each other and fronting Moran Street, whereas Lot 5 is situated at the rear of the parcel with no physical connection with Moran Street.  A right‑of‑way connecting with another street abuts Lot 5 for the length of its western boundary.  The plan also shows a one metre wide strip between the southern boundary of Lot 4 and part of the southern boundary of the parcel for the same length as Lot 4.  This strip of land comprises common property (common property strip).  It is agreed between the parties that the common property strip is entirely covered with dense vegetation, although the parties disagree on how long this has been the case.  In addition, it is common cause that a garden shed located primarily on Lot 4 encroaches on the common property strip.

2. At an extraordinary general meeting of the strata company on 3 February 2004 was a motion proposed by the applicants that the strata company construct a concrete path over the common property strip and erect suitable fencing and gates to the extent necessary to ensure safe and secure pedestrian access over the common property strip.  The motion was not seconded and thus was not passed.  The motion was opposed formally by the proprietors of both Lots 3 and 4 although it is clear that the respondents have been, and are, the driving force of opposition to the applicants' proposal.  The position of the owner of Lot 3 is that she will abide by the Tribunal's decision and in the event that the application succeeds, her share of the cost involved would be borne by the applicants as provided by the orders they seek.

Issues

1. The application is brought under s 85(1) Strata Titles Act1985 (WA) (the Act) which states:

   "85.   Order with respect to certain consents affecting common property

   1)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."

2. The substance of the relief sought is an order for the removal of "any buildings or structures or vegetation" encroaching on the common property, or which would impede the carrying out of works on the common property, and for consent to be given to construction of a concrete path for the length of the common property strip.

3. The respondents have acknowledged that their garden shed encroaches onto the common property by 20 centimetres.  They state that they have taken steps to rectify this as part of their future house development plans, those plans being a proposed development of Lot 4 which had been put to the other proprietors and which would, had it been approved, resolved all the issues raised in the application.  The applicants have not given their approval and, as things stand, the development cannot proceed.  In these circumstances, I regard the respondents as having consented to, or at least not opposed, the removal of their garden shed from the common property.  An appropriate order will be made.

4. The orders sought relating to the clearing of the vegetation from, and construction of a concrete path on, the common property strip raise the following issues, each of which must be determined affirmatively for the application to succeed:

   (a)is the proposal "to effect alterations to the common property"?

   (b)if so, is the strata company's refusal to consent unreasonable?

5. I will deal with each issue in turn.

Is the proposal one to effect alterations to the common property?

1. This requirement is clearly satisfied.  The common property strip is currently heavily vegetated.  The proposal to clear it and construct a concrete path covering its entire length is one to effect the alterations to the common property.

Is the strata company's refusal to consent to the proposal unreasonable?

1. The gravamen of the applicants' submissions is that the extent of the vegetation on the common property strip is such that it denies the applicants a means of ready access to Moran Street for the applicants themselves, visitors and services.  A right‑of‑way exists at the rear of the property providing access to the applicants' lot, but its surface leaves much to be desired.  The applicants referred to confusion which has arisen in the minds of those wishing to attend the applicants' premises for the first time who are simply aware of its street address of 16B Moran Street, which might have serious consequences, for example, in case of a need for an emergency service to attend their lot.  There is also reference in the submissions to the respondents treating the common property strip as their exclusive property which was inappropriate in the absence of any exclusive use by‑law under s 42(8) of the Act.  According to the applicants, the respondents have advanced no cogent argument why the applicants should be denied access to or use of the common property strip, or why they (the respondents) should be entitled to some particular benefits from the present situation affecting the common property strip effectively at the cost of and to the detriment of the applicants.

2. As mentioned above, there is a dispute between the applicants and the respondents as to the period for which the common property strip has been densely vegetated.  The applicants claim that in 1995, when the strata scheme was registered, the vegetation was much less extensive than it was now.  Indeed, their supplementary submissions include a suggestion that some of the vegetation now growing was planted by the respondents, which the respondents deny.  The evidence before me is simply insufficient to resolve these issues, but for reasons which will become apparent I do not regard their resolution to be necessary.

3. As the applicants indicated in their supplementary submissions, the common property strip is held by the proprietors of the lots in the parcel as tenants in common in shares proportional to their unit entitlements: s 17(1) of the Act. It will be noted that there is an almost total absence of any provisions in the Act regulating proposals for alterations to common property, which is to be compared with the quite rigorous regime set out for alterations to owners' lots (see s 7, s 7A and s 7B of the Act). As a matter of basic principle, an alteration to the common property proposed by an individual owner requires the consent of all other owners before it can come into effect, subject to review rights under s 85. Although the Tribunal generally does not deal with issues in terms of a requirement for one party or the other to discharge an onus of proof, in the case of an application under s 85 it is necessary for an applicant to establish that the refusal by the strata company to consent to a proposal was unreasonable. In my view, the applicants have failed to discharge that onus.

4. In order for the application to succeed, the applicants would need to establish that the current state of the common property strip has the effect that the applicants are denied reasonable access to their lot in a global sense.  Their lot is located at the rear of the parcel, and consequently it does not enjoy the same access to Moran Street as the other two lots.  Although there exists a right‑of‑way at the rear of the parcel providing access to the applicants' lot, the applicants contend this is inadequate for reasons which include the condition of the right‑of‑way and difficulty in locating the applicants' lot on the basis of its street address.  In my opinion, the applicants' legitimate access requirements are catered for by the right‑of‑way.  The applicants' case amounts to an attempt to completely change the character of the common property strip for reasons associated with the location of their lot at the rear of the parcel.  I am not satisfied that the decision of the strata company to deny this change in character so as to afford to the applicants' lot an access way additional to the existing right‑of‑way was unreasonable.

5. I reject the submission by the applicants that the respondents are obtaining a benefit peculiar to them by the common property strip remaining heavily vegetated.  Any proprietor is entitled to the same access to it as any other, within the limits of its character, which is as I have described.  Moreover, this application is not based on a breach of standard Sch 1 by‑law 1(2)(a) (use of common property so as not to interfere with the use and enjoyment thereof of other proprietors) nor standard Sch 2 by‑law 2 (obstruction of lawful use of common property); it simply seeks an order predicated upon the unreasonableness of the failure to consent to the proposal.  I also reject the submission that the respondents are benefiting from the current situation to the detriment of the applicants.  The detriment which the applicants allege is not, in my judgment, being sufficient to deem the refusal to consent unreasonable.  In these circumstances, to uphold the application would be to bestow a benefit upon the applicants which would compromise the legitimate right of the remainder of the strata company to retain the character of the common property strip as it is.

6. Those parts of the application seeking orders to clear the common property strip, construct a concrete path and erect suitable fencing and a gate will be dismissed.

Orders

1.The first and second respondents must, within 28 days of the making of this order, cause the garden shed which currently encroaches on the common property immediately abutting the southern boundary of Lot 4 to be relocated or removed so as to remove the encroachment.

2.The application is otherwise dismissed.

I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR T CAREY, MEMBER