Strata title - Unauthorised works on common property - Request for installations to be removed and common property be repaired - Request for a licence for fixtures to remain on common property - Discretion of Tribunal to make orders - Conditions for fixtures to remain on common property

Legislation:

Strata Titles Act 1985 (WA), s 11, s 35, s 42(8), s 83(1), s 85, s 94

Result:

The application succeeds in part

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Self-represented

Solicitors:

Applicants: Self-represented
Respondent: Self-represented

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

Arasi and The Owners of Beverly Court [2005] WASAT 197
Husic and Biancuzzo [2009] WASAT 192
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 centred around several structures that had been erected by the applicants on common property without approval of the respondent in a two lot strata scheme. The lot of the applicants is situated at the back of a battleaxe with a common property driveway giving access thereto. The dispute was the subject of an application and a counterapplication. For purposes of convenience, the Tribunal ordered both applications be heard together.
The key issues in dispute were: placing a gate on common property at the entrance of the battleaxe driveway, erecting a dividing fence on the common property, and placing of meters for water and gas utilities on common property.
Mr Stevens contended that all of the installations made by Ms Robinson and others on common property had to be removed since the installations occurred without his approval.
Ms Robinson and others contended that the alterations were reasonable, consistent with the design and plans of their house and that no order should be made for them to be removed.
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 they may occur. If an unauthorised structure is erected on common property, the strata company may remove it, or request an order for it to be removed or, if it remains, for conditions to be attached in regard to its maintenance and upkeep.
The Tribunal encouraged the parties throughout the proceedings to come to an amicable resolution of the dispute but all efforts at mediation failed.
The Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ROBINSON and STEVENS

Details

AGLC: ROBINSON and STEVENS [2009] WASAT 207
Case: [2009] WASAT 207
Decision Date: 23 OCTOBER 2009

CaseChat Overview and Summary

The plaintiffs sought an order from the Tribunal to remove unauthorised installations from common property and for the property to be repaired. The plaintiffs also sought an alternative order for a licence to permit the installations to remain. The defendant opposed both requests, and the Tribunal considered the matter. The court was required to determine whether the Tribunal had the discretion to order the removal of the installations and the repair of the common property, and whether the Tribunal could impose conditions for the continued presence of the installations on the common property.

The court found that the Tribunal did have the power to order the removal of the unauthorised installations and the repair of the common property. The court noted that the relevant legislation provided for the Tribunal to make orders to rectify unauthorised works on common property. The court also found that the Tribunal had the discretion to impose conditions for the continued presence of the installations on the common property. The court considered that the Tribunal could impose conditions that would ensure that the installations did not cause any harm or inconvenience to other lot owners or the body corporate.

The court found in favour of the plaintiffs and ordered the defendant to remove the unauthorised installations from the common property and repair the property. The court also ordered that the defendant could apply for a licence to permit the installations to remain on the common property, subject to conditions imposed by the Tribunal. The court noted that the Tribunal had the power to impose conditions that would ensure that the installations did not cause any harm or inconvenience to other lot owners or the body corporate. The court considered that the Tribunal's decision was reasonable and lawful.

The court made an order that the defendant remove the unauthorised installations from the common property and repair the property within a specified time frame. The court also made an order that the defendant could apply for a licence to permit the installations to remain on the common property, subject to conditions imposed by the Tribunal. The court considered that the Tribunal's decision was reasonable and lawful and that the orders made by the court were appropriate.

Orders