Pitsikas and Grimes
[2009] WASAT 80
•29 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: PITSIKAS and GRIMES [2009] WASAT 80
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 21 APRIL 2009
DELIVERED : 29 APRIL 2009
FILE NO/S: CC 104 of 2009
BETWEEN: MURRAY FREDERICK PITSIKAS
Applicant
AND
DAVID GRIMES
First RespondentOWNERS OF STRATA PLAN 124, BROADWAY, NEDLANDS
Second Respondent
Catchwords:
Strata title Unauthorised installation of airconditioner - Request for airconditioner to be removed - Noise - If airconditioner was installed by previous owner, what obligations face the new owner - Removal of airconditioner - Repair damage caused to common property
Legislation:
Strata Titles Act, 39 of 1966 (WA)
Strata Titles Act 1985 (WA), s 35, s 79(2), s 83(1)
State Administrative Tribunal Act 2004 (WA), s 48
Result:
The application succeeds
Mr Grimes must remove the air-conditioner no later than 15 June 2009 and make good any damage that has been caused to common property
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
First Respondent : Selfrepresented
Second Respondent : Ms C Trott (Representative)
Solicitors:
Applicant: Self-represented
First Respondent : Self-represented
Second Respondent : Owners of Strata Plan 124, Broadway, Nedlands
Case(s) referred to in decision(s):
Arasi and The Owners of Beverly Court [2005] WASAT 197
Squelch and Brooklea Nominees Pty Ltd [2005] WASAT 198
Stanley and Owners of Waterloo Heights Strata Plan 4192 [2009] WASAT 55
The Owners of Habitat 74 - Strata Plan 222 and Betteridge [2005] WASAT 25
Whittick and Ridley [2005] WASAT 134
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The dispute concerned a request by Mr Pitsikas for Mr Grimes to remove an air-conditioner that was installed on common property. The airconditioner was placed against the outside wall of Mr Pitsikas' unit and his bedroom is situated on the other side of the wall. The strata company supported the application for the air-conditioner to be removed.
Mr Pitsikas and the strata company contended that the airconditioner was installed on common property without approval of the strata company and that it was noisy and caused unacceptable vibration. The location of the airconditioner is such that it is clearly audible in the bedroom of Mr Pitsikas to such an extent that he cannot sleep at night. A previous tenant of Mr Pitsikas confirmed that the airconditioner was clearly audible in the bedroom and that it was difficult to sleep at night when the air-conditioner was operative.
Mr Grimes contended that the air-conditioner was installed by a previous owner and that he could therefore not be held liable for the removal thereof. He also questioned whether it was as noisy as was suggested by Mr Pitsikas. He further demanded that the strata company provided evidence that no previous approval had been given for the air-conditioner to be installed. He also referred to other air-conditioners that had been installed against the outside walls of the scheme and contended that he is being discriminated against.
The Tribunal emphasised that the underlying principle of management and control of common property according to the Strata Titles Act 1985 (WA) is that each proprietor has an undivided share in common property and that owners must consent to alterations to such common property before it may occur. A proprietor who installs an airconditioner on common property without approval of the strata company therefore runs the risk that it may have to remove it and make good any damage that has been caused to the common property. The fact that the airconditioner was installed by a previous owner without permission does not obviate the current owner of accountability to maintain it or liability to remove it.
The Tribunal explained to Mr Grimes during the hearing that he may wish to seek an adjournment of the proceedings to apply to the strata company to relocate the air-conditioner to a site on common property that is acceptable to the strata company, rather than to have the matter determined by the Tribunal. The strata company also indicated during the hearing that it would be willing to discuss with Mr Grimes alternative solutions. The Tribunal also offered an adjournment for Mr Grimes to find out from the previous owner if approval for the installation of the airconditioner had been granted. Mr Grimes indicated, however, that he did not require an adjournment and that he preferred the Tribunal to determine the matter since the previous owner had installed it and the noise was being exaggerated.
The Tribunal found that the application had to succeed since the airconditioner had been installed on common property without the necessary approval from the strata company. The fact that the previous owner had installed it does not obviate Mr Grimes from accountability to remove it or to show that approval had been granted prior to the installation. Mr Grimes was ordered to remove the air-conditioner and to repair any damage that may have been caused to common property. The strata company was further authorised to remove it at cost to Mr Grimes if he failed to comply with the order.
Issue
The issue in dispute is whether Mr Grimes should be ordered to remove an airconditioner that was installed on common property by the previous owner of his unit.
Background
The application was lodged on 21 January 2009 pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act). Mr Pitsikas contended that the airconditioner had been installed without the approval of the strata company. The strata company lodged a submission in support of the application. It confirmed that no approval had been granted for the airconditioner to be installed.
A directions hearing was held on 29 January 2009 at which programming orders were made for the matter to be heard. Mr Grimes did not attend the directions hearing and he did not apologise for his absence.
The Tribunal also made orders at the directions hearing for the application, and programming orders to be served on the strata company and on the persons referred to in s 79(2) of the ST Act. The strata company and other notified persons were given an opportunity to make submissions in regard to the application. Mr Grimes was put on notice that, unless he complied with the orders, the matter may be decided against him pursuant to s 48 of the State Administrative Tribunal Act 2004 (WA). The Tribunal also encouraged Mr Grimes, by way of an order, to meet with Mr Pitsikas in an attempt to resolve the dispute.
A second directions hearing was held on 18 March 2009 in light of the failure of Mr Grimes to comply with previous orders. Mr Grimes was again not in attendance and he did not apologise for his absence. The Tribunal made an order that the air-conditioner may not be turned on until further orders. The matter was set down for a hearing on 21 April 2009. The Tribunal again made an order in which the parties were encouraged to settle the dispute by agreement.
The hearing took place on 21 April 2009. Mr Grimes was present although he did not make any written submission as he was ordered to do at both directions hearings. He also failed to give a credible explanation for his failure to attend the previous two directions hearings or the reasons why he failed to make written submissions in reply to the application. The Tribunal nevertheless gave him opportunity to seek an adjournment to prepare in more detail for the hearing or so seek alternative outcomes. Mr Grimes declined the offer and expressed preference for the Tribunal to determine the matter.
The strata scheme is located at 124 Broadway, Nedlands. It comprises a two story dwelling comprising six units. The scheme was registered pursuant to the Strata Titles Act, 39 of 1966 (WA). It is agreed that the wall against which the airconditioner is attached, is common property. Mr Pitsikas is the proprietor of Unit 1 and Mr Grimes is the owner of Unit 4.
Statutory framework
The application is brought under s 83(1) of the ST Act, which provides as follows:
The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by‑laws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company.
There is no dispute that the air-conditioner is erected on common property. There is also no dispute that the lay-out of Mr Pitsikas' apartment is such that the main bedroom is immediately adjacent to the wall against which the airconditioner is installed, in contrast with the other units where airconditioners are installed against a common property wall that abuts a living area.
Submissions by the parties
Submissions were received from:
•Mr Pitsikas;
•The Chairman, Council of Owners;
•Ms Trott, strata manager on behalf of the Strata Company;
•Ms Mima Savasta on behalf of Council of Owners;
•Ms Patricia van Baren; and
•Oral submission from Mr Grimes.
The submissions and evidence can be summarised as follows.
Mr Pitsikas contends that the air-conditioner was installed without approval, that it is noisy and that the work done to address the noise has not been effective. As a result of the noise, Mr Pitsikas has been unable to sleep in his bedroom and had to sleep in the main living area for a substantial period of time.
The chairman of the Council of Owners, Mr Alex Vergilifano, expresses unconditional support for the application that the air-conditioner be removed since approval for the installation thereof had not been obtained. He was quite willing to consider it to be placed at a more suitable location on common property subject to approval by the strata council.
Ms Carol Trott confirms that the strata council had previously requested Mr Grimes to remove the air-conditioner but that he had failed to heed the request. She explained that the air-conditioner was installed without approval, that it was noisy and that the work done to alleviate the noise and vibrations had not been successful.
Ms Mima Savasata, acting on behalf of the strata council, wrote to Mr Grimes on 25 March 2008 informing him that he could seek retrospective approval for the installation of the air-conditioner but that a complaint had been received about the noise it makes. He was put on notice that unless he complied with the ST Act and by-laws, an application may be lodged with the State Administrative Tribunal for an order to oblige him to remove the airconditioner.
Ms Patricia van Baren notes that she was a previous tenant of Mr Pitsikas and that she found the noise of the air-conditioner 'unbearable'. As a result she had to sleep in the lounge. She says that although attempts have been made to reduce the noise, she recently attended the unit and it was 'as noisy as ever'.
Mr Grimes submits that the previous proprietor installed the airconditioner and that he is therefore not responsible for the removal of it. He further contends that he had some work done on the air-conditioner to reduce the noise and that, according to the technician he used, the noise is now within acceptable limits. He further comments that there are other air-conditioners also installed against common property walls and that he feels discriminated against for having to remove his air-conditioner.
Consideration
The underlying principle of management and control of common property according to the ST Act is that each proprietor has an undivided share in common property and that owners must collectively consent to alterations to such common property before it may occur. This is a recognition that the strata company is responsible for the maintenance and control of common property (s 35 of the ST Act) on behalf of all proprietors.
The ST Act contains several provisions that allow a proprietor so seek approval to use common property, for example by registration of an exclusive use by-law, by being granted a licence to use or by obtaining approval to alter common property. (Stanley and Owners of Waterloo Heights Strata Plan 4192 [2009] WASAT 55 at [42])
A proprietor who refuses to seek approval from fellow owners by installing a structure without approval, runs the risk that it may have to be removed.
The same standard applies to a new proprietor who acquires a lot where the previous owner had made alterations to common property. It is the responsibility of the new proprietor to ensure through due diligence that any alterations that have been made to the common property by the previous owner, was done with the necessary approval of the strata company. The fact that an alteration to common property was made by a previous owner without permission does not obviate the current owner of accountability or liability to remove the alteration and rectify any damage that may have been caused to common property.
The ST Act clothes the Tribunal with a discretionary power to determine if an order ought to be made under s 83(1) STA. Section 83(1) provides that the Tribunal 'may … make an order …'
This means that even if it is shown that the air-conditioner had been installed without authorisation, the Tribunal retains a discretion whether to make an order pursuant to s 83(1) ST Act for it to be removed. Refer in this regard to the matter of Arasi and The Owners of Beverly Court [2005] WASAT 197 pages 9 - 10.
In previous matters the Tribunal has, given the facts of a particular complaint, granted and refused approval for an air-conditioner to be removed.
Refer, for example, to the matter of Whittick and Ridley [2005] WASAT 134 in which the Tribunal (at [42]) refused to order that an air-conditioner installed on common property he removed for the following reason:
The photographs submitted to the Tribunal show that air-conditioners of different design and placed in different locations have been installed in the complex. There seems to be no consistency in regard to the preferred design of the air-conditioners or the location where they are to be installed on the common property. The strata company also does not have a policy that guides proprietors in this regard.
In the matter of The Owners of Habitat 74 - Strata Plan 222 and Betteridge [2005] WASAT 25 (at [47]) the Tribunal ordered an airconditioner to be removed on the following grounds:
Such unauthorised use of common property may not only impact on the value of individual lots, it may also have serious consequences for the strata company - for example insurance liability, health and security issues, ability to undertake maintenance and calculation of levies.
A similar approach was taken in the matter of Squelch and Brooklea Nominees Pty Ltd [2005] WASAT 198 in which the Tribunal found (at [34]) that it was:
[S]atisfied that the applicant have shown (a) the respondent installed the airconditioner without authorisation, (b) the air-conditioner is causing the applicants ongoing discomfort due to the noise and vibration while it operates and (c) the applicants are entitled to relief by the air-conditioner being removed.
The Tribunal must therefore be satisfied that the nature of the breach and the circumstances surrounding it, justify the making of an order for relief.
Mr Pitsikas and the strata company have shown in their submissions, evidence and correspondence enclosed therewith that they have gone to great length to discuss their complaint with Mr Grimes. They do not object in principle to the installation of an air-conditioner to the external wall but they requested him to discuss an appropriate location where it would cause minimal disturbance. The Tribunal accepts the evidence presented to it that the airconditioner causes vibrations and noise that are clearly audible within the lot of Mr Pitsikas to the extent that his peaceful enjoyment of the lot is negatively affected.
Mr Grimes made some attempts to reduce the noise by installing some padding, but he has refused to discuss with the strata company a more suitable placing of the air-conditioner. During the hearing, Mr Grimes appeared to be dismissive of Mr Pitsikas' concerns and the Tribunal had to caution him due to the way he behaved while Mr Pitsikas was giving evidence. The Tribunal found the evidence given by Mr Pitisikas credible and prefers it to the evidence of Mr Grimes. Mr Pitsikas' evidence is supported by the evidence of the strata council, the strata manager and the previous tenant Ms van Baren. Mr Grimes did not provide any documentary evidence in support of his contention that approval might have been given to the previous owner to install the airconditioner.
The Tribunal therefore finds that:
1)The air-conditioner was placed on common property without approval;
2)Mr Grimes does not escape obligations for the airconditioner due to the fact that a previous owner installed it;
3)The strata company acted reasonably by suggesting an alternative placing but Mr Grimes refused to apply for the air-conditioner to remain or for an alternative setting to be identified;
4)The noise and vibration caused by the air-conditioner was disruptive to Mr Pitsikas; and
5)If anyone acted unreasonably, it is Mr Grimes.
Conclusion
The Tribunal is satisfied that Mr Pitsikas, supported by the strata company, have shown:
a)the air-conditioner the subject of these proceedings was installed on common property without authorisation;
b)the air-conditioner is causing ongoing discomfort due to the noise and vibration while it operates; and
c)Mr Pitsikas is entitled to relief by the air-conditioner being removed.
Orders
1.The application succeeds.
2.Mr Grimes must no later than 15 June 2009 remove the air-conditioner the subject of these proceedings from the common property and make good any damage that may have been caused to common property.
3.If Mr Grimes fail to comply with order 2 the strata company may remove the air-conditioner at the cost of Mr Grimes.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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