PLUIM and WILLIS
[2007] WASAT 233
•22 AUGUST 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: PLUIM and WILLIS [2007] WASAT 233
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
ORAL REASONS FOR DECISION DELIVERED ON 22 AUGUST 2007 AND TRANSCRIPT PROVIDED TO CONSTITUTE WRITTEN REASONS
DELIVERED : 22 AUGUST 2007
PUBLISHED : 7 SEPTEMBER 2007
FILE NO/S: CC 837 of 2007
BETWEEN: ADRIAN GREGORY PLUIM
Applicant
AND
KYLE WILLIS
Respondent
Catchwords:
Strata title – Air-conditioner installed without consent of other owner in two-lot scheme – Application to remove – Effect of intrusion easement
Legislation:
State Administrative Tribunal Act 2004 (WA), s 79, s 87
Strata Titles Act 1985 (WA), s 7, s 7A, s 81(3), s 83, s 103G
Strata Titles General Regulations 1996 (WA), reg 14H, reg 14H(1), reg 14H(3), reg 32, reg 33
Result:
Application granted in part
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Radford v The Owners of Miami Apartment Strata Plan 45236 [2007] WASAT 51
Riley v Booth (1890) 44 Chancery Division 12
The Owners of Millpoint Strata Plan 11391 and & Ors [2007] WASAT 9
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied for orders for the removal of an air‑conditioning unit, installed without his consent in a manner which encroached on the applicant's lot, and for compensation.
The respondent's submission, that the encroachment was permitted because it was within an intrusion easement granted in favour of the respondent, was rejected.
The evidence failed to establish that the encroachment was within the intrusion easement. In any event, the terms of the grant of the easement related only to the parts of the building intruding at the time of the grant. The air‑conditioner had been installed subsequent to the grant of the easement onto a wall which was not part of the intrusion.
The Tribunal found that the applicant had not established that the respondent had breached the requirements of s 7(2) of the Strata Titles Act 1985 (WA), which was a prerequisite to the grant of an order sought under s 103G of the Strata Titles Act 1985 (WA). The Tribunal permitted an amendment to the application to rely on its general dispute resolution powers under s 83 of the Strata Titles Act 1985 (WA) and determined that the air‑conditioner should be removed. Because there was some indication that the matter was capable of a commercial resolution between the parties, now that their rights had been determined, the Tribunal issued an order in terms which delayed its coming into operation for a period of six weeks, to afford the parties an opportunity to resolve the matter.
The application for compensation was dismissed. This was, firstly, because the terms of the indemnity to which the applicant was entitled, as incorporated in the intrusion easement, covered only loss or damage to property or person, neither of which was established. To the extent that the application might constitute a claim for the costs of the proceedings, the Tribunal held that it was precluded from making any such order.
Reasons for decision
The Tribunal delivered oral reasons for decision on 22 August 2007 and a transcript was provided to the parties in discharge of the Tribunal's obligation to provide written reasons for decision, as authorised by s 79 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Because the decision deals with some matters of principle which will be of general interest to those concerned with the operation of the Strata Titles Act 1985 (WA) (ST Act), the Tribunal has elected to publish its reasons for decision as reflected in the transcript provided to the parties, and those reasons are set out below, subject only to minor editing to aid clarity.
The decision will be discussed under the following nine headings:
1)The application and orders sought;
2)The survey strata plan and intrusion easements;
3)The air‑conditioning installation;
4)Is the air‑conditioner within the intrusion easement X?;
5)Rights under the intrusion easement;
6)Has a breach of s 7(2) of the ST Act occurred?;
7)Other considerations;
8)The claim for compensation; and
9)Orders to be made.
The application and orders sought
The application was lodged by Mr Pluim, who is the owner of Lot 2 of a two‑lot scheme. That was on 28 May 2007. The orders sought, as set out in the application, are to the following effect. The first order is for removal of the air‑conditioning unit from Lot 2 and re‑installation on Lot 1. It is stated immediately below that the construction was commenced after creation of the easement and there is a reference simply to "breach section 7(2) Act", which I take to be a reference to the ST Act. The application is expressly made under s 103G of the ST Act.
The second order is for compensation to the grantor - that is the applicant - for the cost of proceedings and to reimburse professional and other expenses associated with exercising rights to reclaim beneficial interest in property lost due to construction of the air‑conditioning unit.
Attached to the application is an extract from the Strata Titles General Regulations 1996 (WA) (ST Regulations) and, in particular, reg 14H(1) and reg 14H(3) which are asterisked to indicate the applicant's reliance on those provisions of the regulations. I shall return to those in due course.
The survey strata plan and intrusion easements
The survey strata plan number 48133 (strata plan) was registered on 16 November 2005. It reflects the two lots comprising the scheme. The applicant, as already indicated, is the owner of Lot 2, which is a battleaxe lot, and the shaft of the battleaxe is a walkway which runs along the full northern side of Lot 1. Lot 1 borders on Woodside Street on the eastern side of the development, and the walkway is obviously intended to give access from Lot 2 to Woodside Street.
Also depicted on the strata plan are the intrusion easements. There are two easements which are identified by reference to a code, being X and Y respectively. The intrusion easement Y is immediately adjacent to the carport on Lot 1, which is closest to Woodside Street, whereas the intrusion easement X is closer to Lot 2 and is immediately adjacent to the building as marked. The building is not marked, but there is an outline of the northern side of the building on Lot 1 and that diagram shows the edges of the building. I will refer to that as the building easement X, and it is with that easement that we are particularly concerned. The easements do not overlap. The western boundary of the carport easement Y is immediately below the eastern boundary of the building easement X.
The easements are three‑dimensional in each case. The length and width of each easement is marked on the diagram, and in addition there is a reference to the height of the easements. That is described both in words and also by way of a cross‑sectional diagram.
The cross‑sectional diagram shows the intrusion easement, or rather the description "Intrusion Easement" is given with arrows pointing off to both easements X and Y. After the words "Intrusion Easement" appears "Eaves & Gutters" in brackets. That description within the brackets is, in my view, misleading. It is evident from photographs to which the Tribunal will refer shortly, and perhaps it is self‑evident even without photographs, that the eaves and gutters could not intrude without also a portion of the roof intruding. The cross‑section drawing shows that the height is described by reference to the Australian Height Datum, or AHD. Once the AHD height at which each easement commences at its lowest point and ends at its highest point is given, there are also references to the same heights with the letters "RL" immediately before the height, which I take to be relative level, and in each instance, that can be read as referring to the AHD level because the heights are the same.
The cross‑sectional diagram shows that the carport easement Y commences at a height of 2 metres from the ground level. The dwellings, as completed, show paving and, indeed, one can not be absolutely certain that the ground level shown in the diagram is the finished ground level. It is for that reason that certainty is achieved by reference to the AHD level, because that will be a constant no matter what alteration may have occurred in the ground level. Nevertheless, it is useful to refer, subject to those qualifications, to the carport easement commencing at least approximately 2 metres above the ground level.
It can be discerned from the plan that the carport easement commences 2 metres above ground level at a relative level of 41.8 and extends to a relative level of 43.3 so that the easement is 1.5 metres in height. The building easement X is stated to commence at a height of 43.4, so that is 0.1 of a metre above the uppermost point of the carport easement, and it then extends to a relative level of 44.9 so that it is also 1.5 metres in height. Nothing actually turns on the width and length of the easements and therefore I make no reference to them specifically, but they are obviously described in the diagram.
The air‑conditioning installation
The respondent has tendered three photographs which I will describe and refer to as photographs A, B and C respectively. Photograph A is taken - and indeed they were all taken from within the walkway - from a position opposite the carport facing from east to west. It has superimposed on it in black markings which I understand the respondent to contend to be the area covered by the intrusion easement. Photograph B is taken facing in the same direction from east to west, but at a point a little closer to the air‑conditioner. The photograph reflects the respondent standing immediately under the air‑conditioner with his right hand above his head. The air‑conditioning installation is evident in all of the photographs, but it is probably useful to describe its location from photograph B because that is the one which is closest to the air‑conditioner itself.
The air‑conditioner is fitted on brackets. There is nothing to indicate the height of the air‑conditioner itself. It looks to be a fairly large unit, but without making any finding, which is obviously not possible, I would assume it is probably something just under 1 metre in height. It appears to be fitted just under the lower edge of the fascia and eaves of the building and consequently, as a result of the slope of the roof, one can see that there is probably two and a bit, or at least two brick courses, of the wall showing above the air‑conditioner at the point where it is closest to the wall. As I have said, the outer edge appears to be just underneath the fascia.
Photograph C is taken from the opposite direction, from west to east, and again the respondent is standing almost directly underneath the air‑conditioner, on this occasion with his left hand up‑raised. The presence of the respondent in the photograph and the brick courses which are evident on the main building give some idea of height.
Is the air‑conditioner within the intrusion easement?
As indicated, the photographs depicting the respondent standing underneath the air‑conditioning unit and the face brick of the building do assist in giving some idea, although not an accurate one, as to where the easements start and end. The drawing on diagram A, showing in the form of a box the position of the intrusion easement, appears to the Tribunal not to be accurate. It is evident from the dimensions to which the Tribunal has referred that there are two intrusion easements. The carport easement would commence at about the height shown by the box on drawing A, but probably, in the view of the Tribunal, a little lower to include the fascia and the gutter, but that cannot be said with certainty. The carport easement would then extend from approximately that position up for 1.5 metres. There would then be 0.1 of a metre gap before the main building easement X commences immediately to the west of the carport easement Y.
It is evident from these dimensions that the main building easement actually ends at a total height of approximately 5.1 metres above the ground level. That is, it is between a height of 3.6 and 5.1 metres above ground level.
The Tribunal has concluded that it cannot find that the air‑conditioner is entirely within the intrusion easement X relating to the main building. It was for the respondent to put proper evidence before the Tribunal to establish that precise location, and having not done so the Tribunal is not able to make a positive finding in favour of the respondent on that question.
That raises the question of whether the proceedings should be adjourned to allow better evidence to be provided on this question. The Tribunal is, of course, obliged to determine a matter according to its substantial merits. Whether the Tribunal should do so in this particular case depends on whether or not the respondent could succeed if the air‑conditioner is shown to be wholly within the intrusion easement X and, as will be seen, there are other issues which need to be addressed before the applicant, in any event, would be entitled to an order for removal of the air‑conditioner. For those reasons, the Tribunal will proceed to consider those further relevant considerations.
The rights under the intrusion easement
The respondent submits, and I quote from the respondent's written submissions:
"The survey strata plan indicates that the intrusion easement is to the benefit of Lot 1 and to the burden of Lot 2. It is in favour of the grantee and the grantee is entitled to an estate or interest in possession of the easement. That is, the easement area belongs to Lot 1."
That submission, with respect, reflects a lack of understanding of the nature and effect of an easement. If it is an easement, the easement area cannot belong to the owner of Lot 1 because there would then not be a dominant and servient tenement. A right of easement cannot amount to the grant of exclusive use. In support of that conclusion I refer to the text, Easements and Restrictive Covenants in Australia by Bradbrook and Neave, 2nd ed, Butterworths, at par 1.6. The learned authors there refer to the case of Riley v Booth (1890) 44 Chancery Division 12 at [26], a decision of the Court of Appeal, where the following extract is quoted:
"The exclusive or unrestricted use of a piece of land I take it beyond all question passes the property or ownership in that land and there is no easement known to the law which gives exclusive and unrestricted use of a piece of land. It is not an easement in such a case. It is property that passes."
The correct approach, in the Tribunal's view, is to determine the extent of the rights granted by the easement so that it is the terms of the grant which must be considered. In this case the effect of the ST Act and ST Regulations is that the grant is in the terms of reg 14H, to which reference has already been made. Regulation 14H provides that the short form description for the right of a structure to intrude by reference to the term "intrusion easement" is as thereafter set out. There is then set out four specific provisions which set out the extent of the grant and various terms applying to it.
Regulation 14H(1) is as follows:
"The registered proprietor of the servient lot ('grantor') grants to the registered proprietor and every occupier of the dominant lot or lots from time to time ('grantee') the right for the grantee and his or her independent contractors, employees, agents and visitors, at any time to retain, construct, inspect, alter, maintain, repair, replace and use roofs, floors, walls, footings, eaves, gutters, downpipes, pipes, and all parts of any building or anything attached to or which projects from a building on the dominant lot, which intrude into the servient lot in the easement area at the date of creation of this easement."
It can be seen that the easement includes the right to use parts of the building which intruded at the date of creation of the easement which was created when the easement was registered with the strata plan on 16 November 2005.
In the Tribunal's view, the only argument which is open to the respondent would be if, say, use was being made of a wall by fixing the air‑conditioner to it, but that requires that the wall must be part of the intrusion. It is not in this case. I find, therefore, that the installation of the air‑conditioner is not a use granted by the terms of the easement.
Has a breach of section 7(2) of the Strata Titles Act occurred?
The question which the heading raises is whether the installation of the air‑conditioner constitutes a breach of s 7(2) of the ST Act enabling the applicant to an order under s 103G.
Section 103G(3) provides:
"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."
That of necessity, therefore, takes one to s 7(2) of the ST Act. It provides that:
"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."
There are a number of issues that this raises. Clearly the section requires that the alteration must be on the other party's lot. As is evident from the findings already expressed, the air‑conditioner is not on the respondent's lot. That is the underlying basis, in fact, on which the applicant has brought this application; that it is in fact an alteration which has been made on his lot. The Tribunal considers that that is an accurate reflection of what has actually occurred. It is building work which has occurred in the air space above Lot 2.
The second point is that there is some doubt as to whether or not the installation of an air‑conditioner is a structure. The Tribunal does not consider that it is necessary to determine that issue, but it is relevant to note that s 7(6) of the ST Act provides that a structure includes any prescribed improvement. Regulation 32 and reg 33 of the ST Regulations set out the prescribed improvements. Regulation 32 relates to alterations to a strata lot and reg 33 to alterations to a survey‑strata lot. The ambit of those regulations may suggest that a narrower meaning should be given to the word "structure".
There are two reasons why it is not necessary for the Tribunal to make a final determination on that issue. Firstly, because I do not consider that this constitutes an alteration to the respondent's lot. Secondly, because s 7(2) applies only to a strata lot. Section 7(1) expressly provides: "This section does not apply to a lot in a survey‑strata scheme".
It is therefore evident that an order for removal under s 103G of the ST Act requires a finding that there has been a breach of s 7(2) and, for the reasons given, s 7(2) does not apply. Therefore, the respondent cannot be found to be in breach of that provision.
Other considerations
Remarkably, there is no section of the ST Act corresponding to s 103G which applies to a survey‑strata scheme. However, even if there was, the applicant would face the difficulty that such a provision would require an alteration "on his lot" as provided in s 7A, which deals with alterations to survey‑strata schemes. For the reasons I have given, it is not considered that what has occurred is an alteration to the respondent's lot.
As already mentioned, the Tribunal must determine the matter according to its substantial merits. The Tribunal does have broad powers to make orders for settlement of disputes under s 83 of the ST Act; that is, provided the dispute is not one with respect to the exercise or performance of, or the failure to exercise or perform, an authority, duty or function conferred or imposed on the strata company by the ST Act which requires a unanimous resolution, resolution without dissent or a special resolution. Section 83(4) of the ST Act prohibits the use of the Tribunal's general dispute resolution powers under s 83 in such circumstances.
Under s 7A, which applies to a survey strata lot, in the case of a two‑lot scheme only the approval of the proprietor of the other lot is required. That approval is not prescribed to be by way of any resolution or even that it be in writing. Therefore, s 83(4) does not prevent the exercise of the Tribunal's powers under s 83(1) in this case. The order for removal sought needs no amendment. Technically, however, the application should be amended to include reliance on s 83. There can be no valid objection to such an amendment because of the Tribunal's obligation under the SAT Act to deal with the substantial merits of the dispute.
It follows on the above findings that the installation of the air‑conditioner so as to encroach on Lot 1 was unlawful, and the applicant is entitled, subject to an amendment to the application, to an order for its removal.
The claim for compensation
The claim is for "the cost of proceedings, professional and other expenses associated with exercising rights to reclaim beneficial interest in property lost". The applicant relies on reg 14H(3) for that claim, which provides:
"The grantee agrees to indemnify and keep indemnified the grantor against all actions, liabilities, proceedings, claims, costs and expenses which the grantor may suffer, incur or sustain in connection with, or arising in any way out of the loss of or damage to any property or the death or injury of any person resulting from the exercise of the rights granted in this easement, including the right of entry."
The right to that indemnity, therefore, hinges on any expenses or costs which the grantor may suffer in connection with or arising out of the loss or damage to any property, or the death or injury of any person. In the Tribunal's view, that is not demonstrated in this case. There has been no loss of or damage to any property or injury to any person. It may be that the claim should, in those circumstances, be interpreted as constituting a claim for costs, as that term is ordinarily used in s 87 of the SAT Act. But even if it were to be benevolently construed in those terms, the Tribunal is precluded by the terms of s 81(3) of the ST Act from awarding costs, save in specific circumstances which are not relevant in this case. I refer to the decisions of The Owners of Millpoint Strata Plan 11391 and & Ors [2007] WASAT 9 and Radford v The Owners of Miami Apartment Strata Plan 45236 [2007] WASAT 51, which hold to that effect. It is therefore not open to the Tribunal to make any costs or expense awards in favour of the applicant.
Orders
The applicant indicated at a directions hearing that he would consider any reasonable proposal for a consideration by which to resolve the encroachment and avoid the air‑conditioner being removed. At that stage it was evident there was little prospect of agreement being reached. The parties' rights have now been determined and orders will be issued in accordance with the Tribunal's findings for the removal of the air‑conditioner and dismissing the claim for costs. However, the order will not come into effect for a period of six weeks to afford the parties an opportunity to reach a commercial resolution. The terms of any such agreement may result in the Tribunal's orders being treated as discharged. It would obviously be prudent for any agreement to that effect to be recorded in writing.
For those reasons, therefore, the orders that the Tribunal makes are as follows:
1.The application is amended to rely also upon s 83 of the Strata Titles Act 1985 (WA) for the orders sought.
2.Within 30 days of this order coming into effect the respondent must cause the air‑conditioning unit installed on the northern side of the building on Lot 1 on survey‑strata plan 48133 to be removed at his cost.
3.Order (1) shall come into effect on 3 October 2007.
4.The application for costs is dismissed.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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