Re ; Ex Parte the Owners of 95 Mandurah Terrace Mandurah - Strata Plan 20610

[2005] WASAT 50

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985

CITATION:   RE ; EX PARTE THE OWNERS OF 95 MANDURAH TERRACE MANDURAH - STRATA PLAN 20610 [2005] WASAT 50

MEMBER:   MR C RAYMOND (SENIOR MEMBER)

HEARD:   ON PAPERS

DELIVERED          :   5 APRIL 2005

FILE NO/S:   ST 134 of 2004

EX PARTE

THE OWNERS OF 95 MANDURAH TERRACE MANDURAH - STRATA PLAN 20610
Applicant

Catchwords:

Strata titles - Liability for cost of fencing between lots and common property - Jurisdiction - Operation of Dividing Fences Act 1961 - Quaere whether appropriate to make order under s 83(1) of Strata Titles Act 1985 - Whether settlement of a dispute

Legislation:

Dividing Fences Act 1961 (WA)

State Administrative Tribunal Act 2004 (WA)

Strata Titles Act 1985 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Solicitors:

Applicant:    

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

Nil

Case(s) also cited:

Nil

MR C RAYMOND (SENIOR MEMBER):

REASONS FOR DECISIONS

Issue for Determination

1. An order is sought determining responsibility to erect a fence on top of a boundary wall dividing common property and lots.

Application Transferred to the State Administrative Tribunal

1. The application was originally made to the Strata Titles Referee on 25 November 2004. A query was raised as to the identity of the persons against whom an order was sought. There was no response to that query prior to the matter being transferred to the State Administrative Tribunal on 1 January 2005 pursuant to s 167(4)(b) of the State Administrative Tribunal Act 2004 and, as a result, no action was taken by the Strata Titles Referee.

The Parties

1. The applicant is the strata company known as The Owners of 95 Mandurah Terrace, Mandurah, Strata Plan 20610.

2. When the application was first lodged, no respondent was identified.  In completing the portion of the application form requiring the address or addresses for service of notice upon the person or persons against whom an order was sought, the applicant inserted "N/A".  This resulted in a query being raised as referred to above.  The applicant then lodged an amended application form on 31 March 2005 completing the answer in the following terms:

   "All owners agree to have the matter resolved by strata referee.  Attached list owners and postal addresses."

3. It is not clear that any dispute exists between the strata company and any particular owners.  That is a matter which could possibly be clarified.  Further reference is made to this issue below.

Strata Plan and Parcel

1. The strata plan was registered on 9 September 1991.  The parcel is a six lot scheme comprising single-storey brick and tile residential home units, known as 95 Mandurah Terrace, Mandurah.

Lot Boundaries

1. Each lot within the scheme is a cubic space, bounded, pursuant to s 3A and s 3AB of the Strata Titles Act 1985 (WA), by the external surface of the buildings. The strata plan creates boundaries external to the buildings by reference to the internal face of the boundary walls. The strata of the portion of lots external to the buildings extends between 2 metres below and 5 metres above the upper surface of the ground floor of the respective adjoining lots except where covered.

Description of Relevant Area

1. The northern boundary of the parcel abuts Mandurah Terrace.  Lots 1, 2 and 3 are situated along that boundary with a driveway, for the use of all lots, running between lots 1 and 2.  The ground slopes from Mandurah Terrace down towards the parcel so that each of the buildings on lots 1, 2 and 3 have been cut into the slope, and in each instance, the boundary of each lot external to the building, on the northern side, is a retaining wall.  Beyond each of these retaining walls and closer to Mandurah Terrace is a boundary wall demarcating the northern boundary of the parcel.  The area between this boundary wall and the retaining walls and the area comprising the driveway, referred to above, is common property.

2. It is possible for members of the public to gain access to the parcel and to walk between the boundary wall and the retaining walls.  The retaining walls are of some height and represent a potential danger, in that someone falling over the walls would risk injury.

3. It is proposed that fencing be constructed along the top of the retaining walls to minimise the risk of injury to third parties and it is this proposed fencing which is the subject of the application.

Jurisdiction

1. Section 123B of the Strata Titles Act 1985 provides as follows:

   "123B.  Internal fencing

   1.The Dividing Fences Act 1961 applies to fencing between lots in a survey strata scheme and a single-tier strata scheme as if:

   (a)adjoining lots were adjoining lands to which that Act applies;

   (b)a proprietor of a lot held the lot for an estate or freehold in possession; and

   (c)common property were held by the strata company for an estate of freehold in possession.

   2.Subsection (1) has effect subject to any by-law of the strata company."

2. There is no Notification on the schedule of the strata plan indicating any variation to the standard by-laws which apply to the scheme pursuant to s 42(2) of the Act. The standard by-laws do not in any way affect the operation of s 123B of the Act.

3. The Dividing Fences Act 1961 (WA) prescribes what notice must be given by one owner to the owner of adjoining land where there is a dispute concerning the construction of dividing fences (s 8) and, where after such notice has been given, agreement has not been reached, a Court of Petty Sessions may make an order determining the matters in dispute (s 9).

4. It follows that the Tribunal does not have jurisdiction to determine the questions raised in the application.

Order for the Settlement of a Dispute

1. In addition, the Tribunal's jurisdiction under s 83 of the Act is to 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 the Act or the by-laws in connection with a strata scheme.

2. It is not appropriate that the Tribunal be used, in effect, as a medium for obtaining legal advice.  In this case, it is possible, that investigation might show that there is a genuine dispute and a directions hearing might have resulted in this potential problem being overcome.  In view of the decision reached in relation to the Dividing Fences Act 1961 (WA), there is no need to investigate this aspect further. It is, however, important that only genuine disputes be referred to the Tribunal. Otherwise, time and effort may well prove wasted, because the Tribunal will decline to make an order in the absence of a genuine dispute.

1. For the above reasons, the application must be dismissed and an order will issue accordingly.

I certify that this and the preceding five pages comprise the reasons for decision of the Tribunal.

__________________________

Mr C Raymond
Senior Member