PICKFORD HOLDINGS PTY LTD and THE OWNERS OF 93 HECTOR STREET OSBORNE PARK
[2008] WASAT 295
•12 DECEMBER 2008
PICKFORD HOLDINGS PTY LTD and THE OWNERS OF 93 HECTOR STREET OSBORNE PARK [2008] WASAT 295
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 295 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1082/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS J HAWKINS (MEMBER) | 11/12/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| B | |||
| PDF Version |
| Parties: | PICKFORD HOLDINGS PTY LTD THE OWNERS OF 93 HECTOR STREET OSBORNE PARK |
Catchwords: | Application to alter lot Unreasonable refusal Approval given to alter height of roller door opening |
Legislation: | State Admininistrative Tribunal Act 2004 (WA), s 60(2) Strata Titles Act 1985 (WA), s 3A, s 3AC(1), s 3(2), s 7, s 7B, s 7(2), s 7(2)(d), s 7(5), s 7(5)(b)(i), s 7(5)(b)(ii), s 103, s 103F, s 103F(3)(a), s 103F(3)(b) |
Case References: | Nil |
Orders | Subject to the applicant:,(a) obtaining local council approval; and,(b) making the alterations in accordance with the recommendations set out in the reports of Mr Scott dated 8 August 2008 and 17 September 2008,,the applicant is given approval to alter Lot 6 at his own cost as follows:,(c) increase the height of the roller door opening of Lot 6 by 250 millimetres and widen it by 300 millimetres; and,(d) replace the existing roller door with a new roller door to match the style and colour of the existing roller door upon Lot 6. |
Summary | The applicant sought approval to alter his lot by increasing the height of the roller door opening of its factory unit. Several lot owners dissented. The parties agreed that it be determined on the documents. The applicant provided supportive information from an engineer to support the alteration. The respondent provided no contrary expert evidence. The applicant also provided photographs which showed that the height of the roller door openings throughout the strata complex were not uniform. No contrary independent information was provided by the respondent.,Accordingly, the Tribunal considered that, on the basis of this information, approval for the alteration should be permitted subject to certain conditions. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : PICKFORD HOLDINGS PTY LTD and THE OWNERS OF 93 HECTOR STREET OSBORNE PARK [2008] WASAT 295 MEMBER : MS J HAWKINS (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 12 DECEMBER 2008 FILE NO/S : CC 1082 of 2008 BETWEEN : PICKFORD HOLDINGS PTY LTD
- Applicant
AND
THE OWNERS OF 93 HECTOR STREET OSBORNE PARK
Respondent
Catchwords:
Application to alter lot - Unreasonable refusal - Approval given to alter height of roller door opening
Legislation:
State Admininistrative Tribunal Act 2004 (WA), s 60(2)
Strata Titles Act 1985 (WA), s 3A, s 3AC(1), s 3(2), s 7, s 7B, s 7(2), s 7(2)(d), s 7(5), s 7(5)(b)(i), s 7(5)(b)(ii), s 103, s 103F, s 103F(3)(a), s 103F(3)(b)
(Page 2)
Result:
Application successful
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant sought approval to alter his lot by increasing the height of the roller door opening of its factory unit. Several lot owners dissented. The parties agreed that it be determined on the documents. The applicant provided supportive information from an engineer to support the alteration. The respondent provided no contrary expert evidence. The applicant also provided photographs which showed that the height of the roller door openings throughout the strata complex were not uniform. No contrary independent information was provided by the respondent.
2 Accordingly, the Tribunal considered that, on the basis of this information, approval for the alteration should be permitted subject to certain conditions.
Background to the application
3 Mr Williams is the director of Pickford Holdings Pty Ltd (Pickford Holdings or applicant). Pickford Holdings owns Lot 6, 93 Hector Street Osborne Park. The strata complex is made up of 12 lots containing 10 brick and iron factory units. Lot 6 is a factory unit from which Mr Williams runs a plumbing and drainage contracting business.
4 As none of the criteria in s 3A of the Strata Titles Act 1985 (WA) (ST Act) apply, the boundaries of each lot, in accordance with s 3(2) of the ST Act, are the inner surface of the walls corresponding substantially with the vertical boundaries delineated on the floor plan, and the horizontal boundaries are the floor or ceiling in the building to which the strata plan relates. The ST Act defines 'wall' to include a door dividing a lot from common property.
5 Pickford Holdings lodged an application with the State Administrative Tribunal (Tribunal) on 10 July 2008 seeking approval under s 103F of the ST Act. Pickford Holdings is seeking permission to remove the existing roller door to its factory unit, to increase that entrance by 250 millimetres in height and 350 millimetres in width and then to fit a new roller door to match the adjusted opening in a colour to match the existing roller door.
6 The request for permission to carry out this alteration was first considered by the strata company when all lot owners were sent a letter by the strata manager on 13 December 2007 asking lot owners to advise, by a tear-off panel
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- at the bottom of the letter, whether they consented or objected to the alterations being proposed by Pickford Holdings.
7 From those responses there were eight lot owners who supported the alteration, three lot owners who did not respond and one lot owner who dissented. Accordingly, approval was refused by the respondent.
8 At that stage, Pickford Holdings was seeking a variety of alterations. The current application, however, only sought approval for the alteration to the height of the roller door. The strata manager, who represented the strata company at the initial directions hearing, advised by letter dated 7 August 2008 that she had advised all lot owners by letter that Pickford Holdings was only seeking to alter its lot by changing the height of the roller door.
9 Further, all lot owners were asked whether they were agreeable to treating their responses to the original proposal as having been made in a general meeting of the strata company. This was to avoid the need to convene a general meeting of the strata company. All lot owners agreed to this process but the owner of Lot 4, in advising that he was agreeable to his response being treated as being made at a general meeting of the strata company, wrote upon the advice to the strata manager 'Do Not Agree to Alterations'.
10 The applicant and the respondent were given the opportunity to file and provide to the other party further information or submissions in respect to this matter.
11 In addition, all lot owners were given the opportunity to file any submissions in writing to the Tribunal that they wished the Tribunal to take into account in the determination of this matter.
12 Pickford Holdings has filed with the Tribunal, and given to the respondent, reports from Mr Neil Scott of Structerre Consulting Group, chartered consulting engineers, dated 8 August 2008 and 17 September 2008.
13 The respondent has not filed any response or information in response to the engineer's reports provided by Pickford Holdings. Nor did any lot owners who did not support the alteration provide any independent information to support their stance.
(Page 5)
14 The parties agreed that, rather than be the subject of a hearing, it be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
Legal framework
15 The two main provisions of relevance to the application are s 7(2)(d) and s 103F of the ST Act.
16 Section 7(2)(d) of the ST Act provides that a proprietor may not cause any alteration to a lot without approval as is expressed by a resolution without dissent. A resolution without dissent is defined by s 3AC(1) of the ST Act as a resolution passed at a duly convened Annual General Meeting of the strata company by a sufficient quorum with no vote being cast against it. Section 7B of the ST Act sets out further procedures to be followed for an application to alter a lot. Section 7(2) of the ST Act provides that a proprietor may refuse to give permission for the alteration on specific grounds as set out in s 7(5) of the Act.
17 Section 103F of the ST Act provides that a proprietor who has sought but failed to obtain approval under s 7B of the ST Act may apply to this Tribunal for an order that permission is deemed to have been given on the basis that it has been unreasonably withheld by the strata company or proprietors (s 103F(3)(a) of the ST Act).
18 The question for the Tribunal, under s 103F(3)(b) of the ST Act, is to determine whether permission has been unreasonably withheld.
Has permission been unreasonably withheld?
19 When considering the reasonableness of the refusal to approve the application, the Tribunal must take into account the interests of the objectors and the interests of Pickford Holdings.
20 The ST Act limits the right of a proprietor to erect a structure or alter their lot on grounds that such an alteration or structure may be detrimental to the interests of other proprietors due to its impact on the entire complex. Hence the recognition in the ST Act that any proprietor may withhold permission for a structure to be erected provided that the objection to a proposal complies with certain requirements as set out in the ST Act.
21 The ST Act, however, also provides that an objection to an application by a proprietor does not necessarily constitute an absolute veto. Hence, provision is made in s 103F of the ST Act for the Tribunal to make an order that
(Page 6)
- permission is deemed to have been given if it, the Tribunal, finds that the refusal by the strata company or a proprietor was unreasonable.
22 In particular under s 103F of the ST Act, the Tribunal may make an order allowing a proposed alteration if satisfied that approval should have been given under s 7 of the ST Act and that the approval has been unreasonably withheld.
23 In this case, one objector has raised a concern as envisaged under s 7(5)(b)(i) and s 7(5)(b)(ii) of the ST Act that the alteration may result in a structure that is visible from outside the lot and is not in keeping with the rest of the development and that it may affect the structural soundness of the building.
24 The lot owner who dissented to the original alterations proposed by Pickford Holdings (which at that time included the change to the size of the roller door opening and the size of the roller door) did not provide any independent evidence to support the contention that the alteration may affect the structural soundness of the building.
25 The more recent objection made by the owner of Lot 4 did not provide any information to the Tribunal in respect to the objection.
26 Pickford Holdings, however, has provided two reports from Mr Scott, a chartered engineer. In his report dated 8 August 2008, Mr Scott confirms that he has visited Lot 6 to determine whether the width of the opening for the existing roller door could be increased by 1.5 bricks (360 millimetres) and the height by four courses of bricks (344 millimetres).
27 Those letters reveal that Mr Scott had attended upon the lot owned by Pickford Holdings. He set out his views in his letters dated 8 August 2008 and 17 September 2008. He stated that increasing the width of the opening should not cause any difficulties. He did think there was sufficient clearance for the roller door relative to the wind brace, but if that proved troublesome, the wind brace could be repositioned. He also recommended that, to create the new opening, a new T lintel would be required, and provided details on the dimensions of that lintel and how it should be installed.
28 The other objection raised by the objector was that the change to the height of the opening upon Pickford Holdings' lot would result in an alteration that is visible from outside the lot and is not in keeping with the rest of the
(Page 7)
- development. Apart from that statement, the objector offered no evidence to support this contention. Nor has the respondent provided any information in support of this contention.
29 Pickford Holdings provided photographs of the relevant lot and other lots within the strata complex.
30 Those photographs reveal that the strata development consists of factory units which are accessed via roller doors. Pickford Holdings has provided a photo of its factory unit and that of the unit adjacent to its unit on the left hand side. On the back of that photograph, it states that 'raising the door will put it at exactly the same height as the door adjacent on the left hand side'. The height of Pickford Holdings unit's roller door is currently approximately 41 brick courses high. Pickford Holdings has provided a photograph which shows the roller door height of another factory unit in the same complex at 53 courses high.
Finding
31 In this case, I must consider whether the approval to the proposed alteration should have been given under s 7 of the ST Act and whether it has been unreasonably withheld. The objector to the proposal raised concerns as to the proposed changes affecting the structural soundness of the building, and that they will result in a structure that is visible from outside the lot and is not in keeping with the rest of the development.
32 Neither the objector nor the respondent strata company has provided any independent evidence to support either of these objections.
33 In contrast, the applicant has provided evidence from a structural engineer which does not indicate that the alteration will affect the structural soundness of the building. That evidence was provided to the respondent strata company. In the absence, therefore, of any evidence to establish that the alteration will affect the structural soundness of the building, I do not consider refusal on the basis of this ground to be reasonable.
34 That only leaves consideration of the final ground, which is that the change will result in an alteration that is visible from outside the lot and is not in keeping with the rest of the development.
35 There is no question that increasing the size of the roller door opening will result in a change that is visible from outside the lot. However, the change must also be one that is not in keeping with the rest of the development. In this
(Page 8)
- case, neither the objectors nor the respondent strata company have provided any evidence to support this contention. The applicant, however, has provided photographs which show that, when viewed together, entrances to several of the lots are not uniform in height. The photographs show that lots have entrances that are slightly higher than the applicant's lot. Indeed, even with the changes, Pickford Holdings' roller door entrance will not result in an opening that is the highest in the development.
36 One objector also raised concerns that the factory units are appropriate for light commercial, warehousing and minor manufacturing. The concern raised is that the units were not designed for the loading and unloading of earthmoving equipment - such as that used in the applicant's business. For the purposes of the ST Act however, such factors are not relevant in the consideration of such a matter.
37 The Tribunal finds, therefore, that the refusal of the respondent to approve the application to increase the height of the roller door opening of the applicant's lot by 250 millimetres and widen it by 300 millimetres and to replace the roller door with one to match the style and colour of the existing roller door should have been approved. The refusal of the proposed alteration was therefore unreasonable.
Orders
Subject to the applicant:
(a) obtaining local council approval; and
(b) making the alterations in accordance with the recommendations set out in the reports of Mr Scott dated 8 August 2008 and 17 September 2008,
the applicant is given approval to alter Lot 6 at his own cost as follows:
(c) increase the height of the roller door opening of Lot 6 by 250 millimetres and widen it by 300 millimetres; and
(d) replace the existing roller door with a new roller door to match the style and colour of the existing roller door upon Lot 6.
(Page 9)
- I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER
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