OWNERS OF 7A, 7B, 7C & 7D THE AVENUE STRATA PLAN 7644 and BASANOVIC
[2014] WASAT 51
•5 MAY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: OWNERS OF 7A, 7B, 7C & 7D THE AVENUE STRATA PLAN 7644 and BASANOVIC [2014] WASAT 51
MEMBER: MS L WARD (MEMBER)
HEARD: 5 FEBRUARY 2014
DELIVERED : 5 MAY 2014
FILE NO/S: CC 1551 of 2013
BETWEEN: OWNERS OF 7A, 7B, 7C & 7D THE AVENUE STRATA PLAN 7644
Applicant
AND
MARA BASANOVIC
Respondent
Catchwords:
Strata Titles – Balcony enclosure - Alteration to lot without strata approval – s 7(2) of the Strata Titles Act 1985 (WA) - incomplete alteration - any significant inconvenience or detriment - s 103G(4) of Strata Titles Act 1985 (WA) - Application for order under s 95 of the State Administrative Tribunal Act 2004 (WA) – Failing to comply with decision
Legislation:
State Administrative Tribunal Act 2004 (WA), s 95
Strata Titles Act 1985 (WA), s 7, s 103B, s 103G
Result:
Application successful
Summary of Tribunal's decision:
The applicant applied for orders that the respondent, as the owner of Lot 1 within Strata Plan 7644, be granted relief under s 103G of the Strata Titles Act 1985 (WA) for a breach of s 7(2) of the Strata Titles Act 1985 (WA). The applicant requires that the respondent remove the partially completed alterations to the balcony of Lot 1 and to reinstate the balcony and the wall to the prealteration state. The applicant also seeks an order that a structural engineer is to certify the structural aspects of the work undertaken. An order was also sought that s 95(1) of the State Administrative Tribunal Act 2004 (WA) apply to the decision.
The material provided with the application was not disputed by the respondent. A breach of s 7(2) of the Strata Titles Act 1985 (WA) was found and the Tribunal also found that the balcony and wall alterations would continue to cause a significant inconvenience and/or detriment to other proprietors.
The Tribunal granted the application and the orders sought were granted.
Category: B
Representation:
Counsel:
Applicant: Mr RG Sharland (Strata Company Manager acting as Agent)
Respondent: Self-represented
Solicitors:
Applicant: No appearance
Respondent: No appearance
Case(s) referred to in decision(s):
Hamilton v Thompson (1999) 23 SR (WA) 41
The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161
The Owners of The Views, Strata Plan 6669 and Larralee Pty Ltd [2006] WASAT 126
Uta Pty Ltd v Celenza & Anor [2002] WASCA 360
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In about October 2004, Ms Mara Basanovic (respondent) commenced alterations to the balcony on her strata lot, which is Unit 1. The respondent owns and lives in Unit 1 of Strata Plan 7644. According to the respondent's letter to the owners of Unit 2 dated 29 October 2004, the alterations to her balcony included:
… a simple and stylish glasshouse with waterfall window that will enclose the balcony … a part of the wrought iron look aluminium balustrade being retained on the street side of the extension. The colour of the extension will be a limestone cream (magnolia) with lightly glazed glass … (referred to below as the proposal).
The respondent did not obtain approval of the proposal without dissent by the other strata lot proprietors. The owners of Unit 2 are on the record as opposing the proposal on the grounds of the structure being visible from outside the lot, and one that is not in keeping with the rest of the development.
It is alleged that the works constituted a breach of s 7 of the Strata Titles Act 1985 (WA) (ST Act). The Owners of 7A, 7B, 7C & 7D The Avenue Strata Plan 7644 (applicant or strata company) sought an order pursuant to s 103G of the ST Act that the partially completed alterations to Unit 1 be pulled down and removed and that the wall and balcony be returned to its original state, and that a structural engineer is to certify the structural aspects of the work undertaken.
The strata complex is a two storey residential strata scheme, comprising of four strata lots, each with a ground floor and a first floor, at 7A, 7B, 7C & 7D The Avenue Strata Plan 7644 (site).
The work undertaken to date includes the removal of the jarrah French doors opening onto the balcony and the doorway widened through the removal of bricks. The widening of the doorway causes the applicant some concerns as to whether or not the structural integrity of Unit 1 has been maintained. The balustrade around the balcony has also been removed. Aluminium struts have been attached to the wall and the balcony. The widened doorway has been boarded up with plywood, and temporary acrow props have been in place for several years.
Previous proceedings in the Tribunal – CC 182 of 2005
Following the defeat of the respondent's proposal at the 2005 annual general meeting, she sought an order 'dispensing with approval under section 7(2)' pursuant to s 103F of the ST Act. On 9 November 2005, a differently constituted Tribunal dismissed the respondent's application in CC 182 of 2005. The Tribunal was satisfied that the proposal related to an alteration of the applicant's lot. In summary, the application was dismissed because the Tribunal was not satisfied that approval for the proposal should have been given under s 7 of the ST Act or that approval was unreasonably withheld.
According to the applicant, there has been no change in the partially completed alterations to the balcony of Unit 1 since at least 9 November 2005, now almost 8.5 years ago. Nor has the respondent re‑submitted any amended plans for approval to the strata company.
Respondent's lack of participation in the proceedings
The respondent took no part in these Tribunal proceedings. The respondent did not attend the Tribunal at any time, nor did she contact the Tribunal or make any submissions or comply with any orders of the Tribunal. The application and all correspondence from the Tribunal were sent to the respondent's residential address, which is also the premises the subject of these proceedings. The Tribunal has no reason to believe that the documents were not received by the respondent and she is therefore taken to be aware of the proceedings.
All of the evidence before the Tribunal has been provided by the applicant. None of the applicant's claims have been disputed by the respondent.
Relevant statutory scheme
In accordance with s 7 of the ST Act, the alteration to any structure on a strata lot must be approved by the other lot owners in writing or the strata company by a resolution without dissent at a general meeting. The relevant portions of s 7 of the ST Act are set out below:
Structural erections, alterations and extensions restricted, strata schemes
…
(2)The proprietor of a lot shall not cause or permit ‑
(a)any structure to be erected; or
(b)any alteration of a structural kind to, or extension of, a structure,
on his lot except ‑
(c)with the prior approval of the proprietor of the other lot in the case of a strata scheme in which there are not more than 2 lots; and
(d)in any other case with the prior approval, expressed by resolution without dissent, of the strata company.
(3)Where an application is made to a proprietor in accordance with section 7B the proprietor may refuse to give approval on any ground that is permitted by subsection (5), but not otherwise.
…
(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); or
(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; or
(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.
…
Where a lot owner does not receive prior approval for a structural alteration to their lot, then an order may be sought by the strata company under s 103G of the ST Act. The relevant portions of s 103G of the ST Act are set out below:
Order granting relief for breach of s. (2)
(1)An application to the State Administrative Tribunal for a finding and an order under this section may be made ‑
(a)by the proprietor of a lot in a two-lot scheme; or
(b)in the case of any other scheme, by the strata company.
(2)A finding under this section is a finding that the proprietor of a lot in the scheme has committed a breach of section 7(2).
(3)An order under this section is an order that the proprietor ‑
(a)stop carrying out any work or any specified work in breach of subsection (2) of section 7; or
(b)within a specified time, pull down, remove, or alter anything or any specified thing that is in place as a result of work done in breach of that subsection,
or an order under both of those paragraphs.
(4)On the making of an application under subsection (1), the State Administrative Tribunal shall ‑
(a)make a finding under this section if satisfied that a breach of section 7(2) has occurred;
(b)make an order under this section unless satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors.
Issues for determination of application under s 103G of the ST Act
The issues for determination of this application under s 103G of the ST Act are:
•Does the applicant have standing under s 103G(1)(b) of the Strata Titles Act 1985 (WA)?
•Is the Tribunal satisfied that the respondent committed a breach of s 7(2) of the ST Act?
•Is the Tribunal satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors?
It is necessary for the applicant to satisfy all three requirements in order for its application to be successful. The Tribunal's consideration of the above issues follows below.
Does the applicant have standing under s 103G(1)(b) of the ST Act?
In this case, the strata company has made the application to the Tribunal. As the strata plan is not a two lot scheme, the application is in accordance with s 103G(1)(b) of the ST Act. Accordingly, the applicant does have standing to make the application.
Is the Tribunal satisfied that the respondent committed a breach of s 7(2) of the ST Act?
The Tribunal is satisfied that the respondent has breached s 7(2) of the ST Act. The respondent has not obtained prior approval for the proposal from the applicant by a resolution without dissent.
Without doubt, the respondent's balcony alteration was 'an alteration of a structural kind … on [her] lot', within s 7(2)(b) of the ST Act. Therefore, it required 'the prior approval, expressed by resolution without dissent, of the strata company', within s 7(2)(d) of the ST Act.
The respondent commenced construction of the balcony alteration without obtaining the required approval. The orders made by the Tribunal on 9 November 2005 make it clear that there was no approval under s 7 of the ST Act in place at that time. There is no evidence of any subsequent approval. The respondent has not disputed that she does not have approval for the proposal. In the circumstances of this case, the Tribunal finds that the respondent has committed a breach of s 7(2) of the ST Act.
Is the Tribunal satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors?
The real issue in this case is whether the Tribunal is satisfied that the work done by the respondent to date will not cause any significant inconvenience or detriment to the other proprietors.
Section 103G(4)(b) of the ST Act requires the Tribunal to exercise a discretion where it finds that although an alteration to a lot has been done without the requisite approval from the other lot proprietors, it will, however, not cause any significant inconvenience or detriment to them.
In this regard, the Tribunal notes that the inconvenience or detriment to non‑proprietors is not relevant to s 103G of the St Act. Therefore, any evidence relating to the neighbours adjacent to Strata Plan 7644 is not relevant to the Tribunal's deliberations.
The applicant's evidence has focussed on the work done to date, rather than the work intended to be done, which is quite proper in the factual circumstances of this case. Accordingly, the Tribunal's consideration will also focus on 'the work done' limb of s 103G(4)(b) of the ST Act. Although the Tribunal does note, and accepts, the 'privacy concerns' raised by Mr House of Lot 2 in the form of if the glasshouse is created as per the proposal was completed, then it would be a 'glass encased "viewing platform" being constructed very close to and overlooking the front entrance to his residence'.
Turning to the Tribunal's consideration of s 103G(4)(b) of the ST Act, it is well established that one of the factors relevant to this section of the ST Act is that it must be considered against the grounds of refusal set out in s 7(5) of the Act; otherwise, it may encourage lot owners to 'by‑pass the approval process': see The Owners of The Views, Strata Plan 6669 and Larralee Pty Ltd [2006] WASAT 126 at [15] and The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161 at [28].
The words 'inconvenience' and 'detriment' are not defined in the ST Act. Accordingly, these words are to be given their natural meaning, and each case needs to be assessed on its merits as to whether or not they apply: see Hamilton v Thompson (1999) 23 SR (WA) 41 at [50] and [51] which was cited with approval in Uta Pty Ltd v Celenza & Anor [2002] WASCA 360 (Uta).
'Inconvenience' is defined in the Macquarie Dictionary (The Macquarie Dictionary Online © 2014 Macquarie Dictionary Publishers Pty Ltd) (Macquarie Dictionary) as including 'something that causes discomfort, trouble'.
'Detriment' is defined in the Macquarie Dictionary as including 'damage, loss, harm, prejudice or a disadvantage'.
Section 103G of the ST Act expressly requires 'significant' inconvenience or detriment. Accordingly, the inconvenience or detriment must be material and of consequence to the other proprietors.
The Tribunal must determine if the work done to date on the respondent's balcony has caused any significant inconvenience or detriment to the other strata lot proprietors.
The applicant has provided the Tribunal with detailed submissions and supporting documents in relation to the issue of 'significant inconvenience or detriment'.
The applicant's submissions and supporting documents rely on the following as indicating that the respondent's work to date has caused significant inconvenience or detriment, namely:
•'Aesthetic eyesore' ‑ The existence of the partially completed balcony enclosure, the partial demolition of the brick wall leading to the balcony, the plywood covering over the opening in the wall and the prolonged use of an acrow prop collectively provide an aesthetic eyesore.
•Reduction in value ‑ The proprietor of Lot 3 (Unit 4) in her submission, and the proprietor of Lot 2 (Unit 2) in his submission, are both of the view that the value of their lots and the capacity to sell those lots is seriously diminished by the partial completion of the balcony alteration.
•Safety aspects ‑ The applicant has raised the risk of injury to passersby and of damage to property as a result of the state of the balcony and the abutting wall. The applicant submits that already components of the enclosure structure have fallen off the balcony and that a crack has appeared in the balcony slab above a support pillar.
•Insurance ‑ the applicant's existing insurer has terms in the policy enabling complete rejection of a claim arising from the balcony alterations whereby an excess of $100,000 will be applied in some circumstances.
The respondent has not disputed the applicant's claims. This is significant because in Uta at [15] and [40], Justice Mazza found that the respondent carries the onus of demonstrating that there has been no significant detriment to the appellant. Clearly, in this case, that onus has not been discharged by the respondent.
Further and in any case, the Tribunal is satisfied that the balcony and wall alterations undertaken to date would continue to cause a significant inconvenience and/or detriment to other proprietors. The photographs before the Tribunal clearly indicate that the current structure is highly visible from outside the lot and is that of an incomplete renovation, which is far from being in keeping with the rest of development. Different colours and materials have been used and the alteration is to the exterior of Unit 1. The Tribunal accepts that the partial alteration to the Unit 1 balcony has created an eyesore, as claimed by the applicant, which has been in place for at least the past 8.5 years. The alteration certainly creates an unkempt and untidy appearance which detracts from the surrounding units. On this basis alone, the Tribunal is satisfied that the visual appearance of the balcony and wall alterations would continue to cause a significant inconvenience or detriment to other proprietors. The difficulties with insurance, a reduction in property value and the public safety concerns certainly add to the significant inconvenience or detriment to the other proprietors.
Application for an order under s 95 of the State Administrative Tribunal Act 2004 (WA)
The applicant also seeks an order under s 95 of the State Administrative Tribunal Act2004 (WA) (SAT Act). Given that the issues relating to the balcony alteration have been ongoing since about October 2004 ‑ a period of about 9.5 years ‑ and the respondent's lack of engagement in the process of dispute resolution since 9 November 2005, the Tribunal finds that this is an appropriate case for an order under s 95 of the SAT Act. Accordingly, the Tribunal declares that s 95 of the SAT Act applies so that any failure by the respondent to comply with the Tribunal's order would constitute an offence for which a penalty of up to $10,000 applied.
Orders
The orders of the Tribunal are:
1.There is a finding pursuant to s 103G(2) of the Strata Titles Act 1985 (WA) that the respondent has committed a breach of s 7(2) of that Act.
2.By 7 July 2014, the respondent is to remove the partially completed alterations to the first floor balcony of Lot 1 on Strata Plan 7644 and reinstate the balcony and the wall to its former condition, and to provide the applicant with relevant certification from a structural engineer, pursuant to s 103G(1) and s 103G(3)(b) of the Strata Titles Act 1985 (WA).
3.The Tribunal declares that section 95(1) of the State Administrative Tribunal Act 2004 (WA) applies to this decision.
4.Pursuant to s 95(5) of the State Administrative Tribunal Act 2004 (WA), the applicant may give the respondent:
(a)a copy of the decision, that is, the reasons for decision and the order, that a judicial member or the executive officer has certified to be a true copy; and
(b)a copy of s 95 of the State Administrative Tribunal Act 2004 (WA);
by way of ordinary prepaid mail addressed to the respondent at Unit 1, 7 The Avenue, Crawley WA 6009.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L WARD, MEMBER
2
3
2