Reader and Anor and Timberside Villas Village Council and Anor

Case •

[2005] WASAT 132

•

14 JUNE 2005

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985

CITATION:   READER & ANOR and TIMBERSIDE VILLAS VILLAGE COUNCIL & ANOR [2005] WASAT 132

MEMBER:   MR T J CAREY (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   14 JUNE 2005

FILE NO/S:   CC 2135 of 2005

BETWEEN:   PERCY READER

RON DICKINSON
Applicant

AND

TIMBERSIDE VILLAS VILLAGE COUNCIL
THE OWNERS OF TIMBERSIDE VILLAS ESTATE-STRATA PLAN 27426
Respondent

Catchwords:

Real property - Strata Titles - By-law stating structural alterations to be with approval of retirement village council - Pergola installed on lot without strata company approval but with village council approval given retrospectively - Strata Plan 24114

Legislation:

Retirement Villages Act 1992 (WA)

State Administrative Tribunal Act 2004 (WA), s 60(2)

Strata Titles Act 1985 (WA), s 7(b), s 42(1), s 83(1)

Result:

Application allowed. 
Order to dismantle and remove part of pergola

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

Case(s) also cited:

Nil

MR T J CAREY (MEMBER):

REASONS FOR DECISION

Issue

  1. The issue raised in this application is whether or not all necessary approvals were obtained to permit construction of a pergola on a strata lot in a retirement village.

Parties

  1. The applicants are the owners or part-owners and residents of 2 lots in respect of strata plan 27426 ("strata plan") registered in accordance with the Strata Titles Act 1985 (WA) ("Act"). The strata development is also a retirement village for the purposes of the Retirement Villages Act 1992 (WA).  The respondents are the body known as the "village council" of the "Timberside Villas" retirement village and the strata company (misdescribed in the documents as "strata council") respectively.  A high degree of commonality of membership exists between the village council and the strata council.

Parcel

  1. The parcel is situated at 10 Timbercrest Rise, Woodvale.  The parcel includes 140 single storey units and one double storey unit.  Lots are generally grouped into clusters of four, although this is not invariably the case.  Each lot has its own outside area, in each case as part of the lot.

Procedure

  1. On 31 March 2005, a senior member of the Tribunal ordered that this matter be determined on the papers if the Tribunal considers it appropriate. As the member appointed by the President to constitute the Tribunal for the purpose of determining the matter, I consider it is appropriate that the application be determined entirely on the papers in accordance with s 60(2) of the State Administrative Tribunal Act2004 (WA) and have proceeded on that basis.

Application

  1. By their application filed on 17 March 2005, the applicants sought an order under s 83(1) of the Act in the following terms:

    "The dismantle [sic] and removal of the extension to the Pergola at the rear of Unit 14."

  2. Unit (and lot) 14 abuts Mr Reader's lot 25 along the lots' back fence line, and Mr Dickinson's lot 24 is next to Mr Reader's lot and diagonally adjacent to lot 14.

  3. In the "grounds of support" section of their application, the applicants referred to:

    •the extension in question being without the written consent of the village council in accordance with the relevant residence contract and disclosure booklet;

    •the extension being outside the provisions of the Act, with apparent reference to s 7A; and

    •the structure being "a blemish on our outlook and not in keeping with the Village profile".

Factual background

  1. On 4 September 2004, the proprietors of lot 14 sought the approval, it appears, of the village council to install what is referred to by the manufacturer's name of "vergola", but to which I will refer as "pergola".  The pergola was to be constructed at the rear of the building on the lot and was in replacement of an existing pergola, although its effect was to extend the area of the pergola significantly.  The village manager informed the installer of the pergola that the approval of, and the issue of a building licence by, the City of Joondalup were required before the village council would consider the project, and those requirements were subsequently met.  On 8 October 2004, the village manager approved the pergola subject to conditions, and construction commenced some time after that.

  2. On 6 November 2005, the applicants (and Mr Dickinson's wife) wrote to the village council complaining that the construction had been permitted without consultation with them as occupiers of the adjacent lots.  The response from the chairman of the village council was that "the authority to approve such items is with the management", being a reference to the management of the retirement village, that the village manager had met with a building inspector from the City of Joondalup who "was satisfied that all was in order", and that "(t)he Village Council considered……everything was done as per normal in respect of this type of application".

  3. Mr Reader and the Dickinsons persisted. Having established that no approval for the pergola was obtained from the strata company, on 29 November 2004 they wrote to the chairman of the strata company to notify their objection based on a failure to comply with "the Strata Titles Act 1985 Pt 11 Division 1 cl 7", as well as particular provisions in the Timberside Villas residency deed and disclosure statement. On 21 January 2005, the chairman of the village council wrote to Mr Reader to advise that "the Village Council has again discussed the vergola at Villa 14" and that "based on the various other alterations and additions carried out in the Village over the years, we approve of the vergola in Villa 14 as required by the Village Scheme". This is somewhat curious, because it appears to be the second occasion on which the village council considered and granted retrospective approval, and also because if, as the letter says, approval of the village council was a requirement for construction of the pergola, such approval should have been granted before construction commenced, when in fact only the approval of the village manager had been given. This is a matter to which I will return.

  4. According to a sketch plan submitted by the applicants, the new pergola at the rear of lot 14 has two distinct sections. The first runs down the side of the building on the lot without extending past the back wall and corresponds with pergolas in place in the other three units drawn in the sketch (being both the applicants' units and lot 15), and is not the subject of dispute.  The second section, which is referred to in the application as "the extension to the Pergola", continues on from the first section, although it is wider than it, and extends to the rear fence (being the boundary of lots 14 and 25).  The whole of the pergola is fitted with louvres that may be opened and closed to form a solid roof.  Photographs supplied by both sides indicate that the extended section may not quite extend to the fence line.  Whether or not it does is immaterial to the outcome.

Relevant statutory provisions

  1. Section 7 and s 7B of the Act provide:

    "7.Structural erections, alterations and extensions restricted, strata schemes

    (1)This section does not apply to‑

    (a)a lot in a survey-strata scheme; or

    (b)the erection of, alteration to or extension of a structure on a lot in a strata scheme if‑

    (i)each proprietor of a lot in the scheme has in writing given approval to the erection, alteration or extension;

    (ii)that approval, if subject to conditions, is given by each proprietor subject to the same conditions; and

    (iii)a copy of each such approval is served on the strata company.

    (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 s 7B the proprietor may refuse to give approval on any ground that is permitted by subsection (5), but not otherwise.

    (4)Where an application is made to a strata company in accordance with s 7B‑

    (a)notice of the general meeting to which the application is to be submitted shall contain or be accompanied by a statement, in the prescribed form, of the effect of par (c) and (d);

    (b)the chairman of the general meeting shall before a vote is taken on the application read out the statement referred to in par (a);

    (c)a proprietor may vote‑

    (i)against a resolution to approve the application; or

    (ii)in support of a resolution to refuse approval of the application,

    on any ground that is permitted by subsection (5), but not otherwise; and

    (d)a vote referred to in par (c) is of no effect unless the person casting the vote discloses as a ground for his vote one or more of the grounds permitted by subsection (5).

    (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 s 7A(3);

    (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;

    (ii)may affect the structural soundness of a building; or

    (iii)may interfere with any easement created by s 11 or s 12;

    or

    (c)any other ground that is prescribed.

    (6)In this section‑

    }structure~ includes any prescribed improvement;

    }vacant lot~ means a lot that is wholly unimproved apart from having merged improvements within the meaning of that expression in the Valuation of Land Act 1978.

    7B.Further provisions as to approvals for purposes of s 7 and s 7A‑

    (1)A proprietor who wishes to obtain an approval of a proposal that comes within se 7(2) or s 7A(2) shall serve an application on the strata company or the other proprietor, as the case may require, and in the application shall set out details of the proposal and such other information as may be prescribed.

    (2)Where an application is made to a strata company under subsection (1) the council of the company shall submit the application to a general meeting of the company convened for the purpose, or for purposes which include that purpose, within 35 days after the application is received (}the allowed period~).

    (3)If the council does not‑

    (a)give notice of such a meeting, within 14 days after the application is served on the strata company, to each proprietor and registered mortgagee who has notified his interest to the strata company; or

    (b)convene a general meeting of the company within the allowed period,

    any proprietor may convene a general meeting, in the same manner as nearly as possible as that in which meetings are to be convened by the council, and submit the application to that meeting.

    (4)Despite subsection (2), a council may submit an application to a general meeting convened by the council after the allowed period if that meeting is held before a meeting is convened by the applicant under subsection (3).

    (5)Notice in writing of the decision on an application shall be given to the applicant‑

    (a)in the case of a two-lot scheme, by the other proprietor within 42 days after the service of the application on him; and

    (b)in any other case, by the strata company within 77 days after service of the application on the company

    (6)If an application made to a strata company or the other proprietor for approval under s 7 is not approved, a notice under subsection (5) shall show the ground or grounds‑

    (a)disclosed by each proprietor who cast a vote of a kind referred to in s 7(4)(c); or

    (b)on which approval is refused by the other proprietors,

    as the case may be.

    (7)If notice of a decision is not given to the applicant in accordance with subsection (5) and, where applicable, subsection (6) the approval applied for is to be taken to have been given."

  2. Section 42(1) of the Act provides:

    "42. By-laws

    (1)A strata company may make by-laws, not inconsistent with this Act, for‑

    (a)its corporate affairs;

    (b)any matter specified in Sch 2A; and

    (c)other matters relating to the management, control, use and enjoyment of the lots and any common property."

By-laws

  1. The "standard" by-laws contained in Sch 1 of the Act have been supplemented by additional by-laws which reflect the status of the development as a retirement village. By-law 19(12) is relevant and provides as follows:

    "19.Resident's Obligations

    The Resident:

    (12)must not without first obtaining the written consent of the Village Council make any structural alteration or addition to the Lot nor interfere with the appurtenances in or about the Lot."

Responses to application

  1. The only response is that of the respondents, no proprietor or resident of any lot having filed a response.  In particular, the residents of lot 14 did not file a response.

  2. The respondents submit that the initial approval for construction of the pergola was in accordance with cl 4.16 in the residence contracts ("residency deeds") which provided that residents can only make structural alterations or additions after obtaining "our written consent"; "our" being a reference to the village manager. The practice has developed over a number of years for applications for alterations and additions to be made to and approved by the village manager, including, recently, Mr Reader's application to install an air conditioner on the roof of his lot. In response to the claim of lack of compliance with the Act, the respondents rely upon the reference in non-standard by-law 19(12) to the requirement that consent must be obtained from the village council for any structural alterations or additions to a lot, and argue this requirement was met (albeit after the pergola had been constructed) when the village council approved the pergola at a meeting on 15 November 2004.

  3. In a document filed with the Tribunal, the respondents set out s 7 of the Act in full, and sought to demonstrate that none of the grounds for opposing approval under the section applied. They countered the applicants' reference, in the grounds of application to s 7A by pointing out that this section applies to survey-strata schemes which this scheme is not, and were correct in so doing. I think it likely that this was a slip on the applicants' part and the intended reference was to s 7B. The respondents also set out s 7B in full, without comment.

  4. The respondents have also sought to demonstrate that the provisions of the Act were complied with by their reference to the minutes of a strata council meeting on 17 January 2005 recording that "the Council came to the conclusion that as per……by-law 19(12) the Village Council was responsible for the approval…….of structural alterations to the Lots (Villas)". This then allowed the chairman of the strata council to write to Mr Reader (on 21 January 2005, the same day as the letter to Mr Reader from the chairman of the village council, the signatory to both letters being apparently the same) to advise him of the strata council's "conclusion".

Consideration

  1. Although it is true that by-law 19(12) and cl 4.16 of the residency deed oblige any resident intending to make any structural alteration or addition to his or her lot to first obtain the written consent of the village council (or perhaps the village manager), that does not necessarily mean that this is the only requirement.

  2. Quite apart from the problem for the respondents represented by the timing of the various events, the position they adopt pays no regard at all to the statutory framework provided by the Act governing erections, alterations and extensions in the context of strata schemes. It is with this in mind that I set out above the full text of s 7 and s 7B, which constitute an elaborate regime for applications for such improvements, the convening of a general meeting of the strata company, notice requirements, what is to occur at the meeting and what grounds of objection are open. Section 7(2) is fundamental, and provides that a proprietor is not to cause or permit the erection (etc) of a structure on his lot except with the prior approval (in a scheme of more than two lots) of the strata company expressed as a resolution without dissent. There are further provisions in the Act dealing with a situation where such an application is put to the strata company and the required resolution is not obtained, but one does not get to those sections until the procedure in s 7 and s 7B has been followed.

  3. Section 42(1) of the Act permits a strata company to make by-laws "not inconsistent with this Act". The strata council's "conclusion" is wrong to the extent that it is based on a construction of by-law 19(12) which gives the village council exclusive authority regarding structural alterations or additions, in light of the requirements of s 7 and s 7B. The correct construction of by-law 19(12) is that it requires residents to obtain village council approval for alterations or additions, in addition to the requirements that exist under the Act.

  4. The extension of the pergola was constructed without compliance with or regard to the requirements of the Act and s 7(2) in particular, and the applicants are entitled to the order sought. It is not necessary for me to decide the issue about whether there was compliance with by-law 19(12), either when the village manager gave his approval or when the village council gave its retrospective approval.

Order

  1. The Tribunal orders:

    1.That the application be allowed pursuant to s 83(1) of the Act.

    2.That the residents of Lot 14, 10 Timbercrest Rise, Woodvale dismantle and remove the extended portion of their pergola as soon as practicable.

    I certify that this and the preceding 11 pages comprise the reasons for decision of the Tribunal.

    ________________________

    TJ Carey, Member

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