ROBINSON and STEVENS
[2009] WASAT 207
•23 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: ROBINSON and STEVENS [2009] WASAT 207
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 14 SEPTEMBER 2009
DELIVERED : 23 OCTOBER 2009
FILE NO/S: CC 1026 of 2009
CC 1054 of 2009
BETWEEN: CHARMAINE ROBINSON
PETER VENTOURAS
MARK O'GORMAN
ApplicantsAND
JEREMY STEVENS
Respondent
Catchwords:
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 found as follows:
•The gate on common property was erected without authorisation and has the effect of granting to the applicants a de facto exclusive use area over part of the common property driveway. The objections raised by Mr Stevens were found to be reasonable and an order was made for the gate to be removed by Ms Robinson and for the common property to be restored.
•The fence was erected without authorisation but the reasons offered by Mr Stevens for having it removed were found to be unreasonable and unfounded. There was insufficient evidence that the fence impaired the use of the common property driveway. It was further clear, from the evidence provided to the Tribunal, that the fence was artistic and designed to fit in with the design of Ms Robinson's house. If it encroached on common property, it only did so marginally since it is attached to the existing dividing fence. The cost to remove the fence would far outweigh Mr Stevens' objection that it was not to his taste. The Tribunal made an order that the proprietors of the lot, and their successors in title, would be responsible for the maintenance and upkeep of the fence. The Tribunal ordered that its order had to be recorded against the title of the lot.
•The Tribunal found that the objection against the placing of the utility meters on common property was unreasonable. The Strata Titles Act 1985 (WA) allows for such meters and services to be placed on common property and there is insufficient evidence to support the contention of Mr Stevens that the meters, and the box that houses them, impaired the use of the common property driveway. The application for the meters to be removed was therefore dismissed.
Issue
The issues in dispute were whether structures that had been erected by Ms Robinson on common property had to be removed or whether they could remain, subject to the necessary order for Ms Robinson to maintain them. The following structures are in contention:
•a gate on the common property driveway leading to the battleaxe;
•a timber dividing fence on the common property; and
•utility meters (gas and water) and the structure within which the meters are located on the common property.
Background
Two applications were lodged with the Tribunal. The first, Robinson and Stevens (CC 1026 of 2009) (Ms Robinson), was lodged on 9 July 2009. The Robinson application was lodged pursuant to s 94 of the Strata Titles Act 1985 (WA) (ST Act). Ms Robinson and others are the proprietors of Lot 2. The second, Stevens and Robinson (CC 1054 of 2009) (Mr Stevens), was lodged on 14 July 2009. The Stevens application was lodged pursuant to s 83(1) of the ST Act. Mr Stevens is the proprietor of Lot 1.
Both applications essentially dealt with the same issues in dispute, albeit from different angles, and the Tribunal therefore ordered, on 30 July 2009, for them to be heard together. For purposes of convenience, the Tribunal will, in these reasons, refer to the parties respectively as Ms Robinson and Mr Stevens.
The first directions hearing took place on 30 July 2009. The Tribunal made programming orders and set the matter down for a hearing.
The hearing took place on 14 September 2009. The hearing was preceded by a site inspection. Ms Robinson and her coproprietors were at the inspection and Mr Stevens was represented by a property management agent.
The parties represented themselves in the proceedings. Mr Stevens participated in the hearing via telephone link from the United Kingdom. The parties gave what can best be described as a combination of submissions and evidence and they did not call any witnesses. Both parties made extensive written submissions mixed with evidence.
At the conclusion of the hearing, mention was made by Mr Stevens that the premises of Ms Robinson had been sold to a Mr Scott but settlement had not yet occurred. Ms Robinson confirmed that Mr Scott was aware of the proceedings and that an amount was held in trust for any reparations, if any, to be effected. The Tribunal made orders for Mr Scott to be given a copy of the orders and for him to indicate, before 29 September 2009, to the Tribunal if he wished to inspect the files and/or make submissions in the proceedings. Mr Scott acknowledged receipt of the orders but did not indicate that he wanted to be heard. The decision was reserved on 2 October 2009. The Tribunal was also informed by Ms Robinson, by way of a letter dated 14 October 2009, that Mr Stevens had placed his property on the market for sale. This was confirmed by Mr Stevens in a letter dated 16 October 2009.
Statutory framework
Mr Stevens' 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 bylaws 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.
Ms Robinson's application is brought under s 94 of the ST Act which provides as follows:
(1)Pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal may, subject to this section, order that the applicant, and any occupier or other resident of the lot of which the applicant is the proprietor, may use specified common property in such a manner, for such purposes, and upon such terms and conditions, if any, as are specified in the order.
(2)The State Administrative Tribunal shall not make an order under subsection (1) unless satisfied
(a)that the lot of which the applicant is proprietor is incapable of reasonable use and enjoyment by the proprietor, occupier, or other resident of the lot unless the order is made; and
(b)that the strata company has refused to grant a licence to use common property in such a manner, for such purposes, and upon such terms and conditions as would enable that proprietor or such an occupier or other resident reasonably to use and enjoy that lot.
(3)An order under subsection (1), when recorded under section 115, has effect, subject to any order with respect thereto made by a superior court, as if its terms were a bylaw.
Submissions by the parties
The submissions made by Ms Robinson can be summarised as follows:
•The gate was erected to increase the security of their lot and to prevent unauthorised parking in the common driveway area leading to their lot. Prior to erecting the gate, they had problems with unauthorised people parking on the common property driveway and thereby blocking access to their lot. They also contend that Mr Stevens benefits from the placing of the gate since it increases security to the back part of his lot. If the gate were removed, people from the street could walk down the common property driveway and look over the wall of Mr Stevens' lot and thereby invade his privacy. If the gate were to be removed from the common property, the common property driveway would again form an alleyway that poses a security risk to both lots.
•The timber fence was designed to suit the style and development of their house. It is of a very high quality timber finishing and it fits in with the part of the dividing fence that separates their lot from the neighbouring premises. It runs continuously along the entire length of the boundary between the scheme and the neighbouring property. The consistency in design must therefore be taken into account by the Tribunal. Ms Robinson is willing for a condition to be imposed on the title of Lot 2 by way of a by-law or licence or, otherwise, that they and their successors in title are responsible for the maintenance and upkeep of the fence. Ms Robinson also disputes the contention that the fence impairs on the use of the common property driveway. According to her, the fence abuts the existing dividing fence with the neighbouring property and any encroachment onto common property would be limited to a few centimetres.
•The placing of the utility meters was marked on the approved building plans when Ms Robinson acquired the lot. The meters were installed by the water and gas utilities and the box in which the meters are housed is situated in a garden bed. The ST Act allows for common property to be used for the installation of such meters and the provision of services. It would be completely impractical for the meters to be installed at the end of the driveway on her lot. The meters are placed on the very far side of the common property in a garden bed; they do not obstruct common property and they do not interfere with vehicular access to the driveway.
The submissions made by Mr Stevens can be summarised as follows:
•By placing the entrance gate on common property, Ms Robinson was in effect expanding Lot 2 by creating a de facto exclusive use area for which there is no approval. This not only has a positive impact on the value of Lot 2, it also diminishes the rights of Mr Stevens in regard to the common property driveway. There was no evidence of the alleged illegal parking or blocking of access by unauthorised persons. If problems had been experienced with unlawful parking, it should have been brought to the attention of Mr Stevens or his tenants and he would have responded to it. The common property had been damaged by the installation of the gate and it must be repaired.
•The dividing fence between the strata scheme and the neighbouring property was not to his taste and impaired his ability to use the driveway when he turned his vehicle. The fence was erected without approval and, being on common property, he would have to contribute to the maintenance and upkeep thereof.
•The utility meters and box should be located on the lot of Ms Robinson and not on common property. The meters also impaired his ability to use the common property driveway when he turned his vehicle.
Consideration
The Tribunal explained to parties in the proceedings the general principles regulating the use of common property in strata title schemes: that 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. Owners must therefore collectively consent to alterations to such common property before they may occur. This is in 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. These principles are applied consistently by the Tribunal in determining disputes.
The ST Act contains several provisions that allow a proprietor to seek approval to use common property, for example by registration of an exclusive use bylaw (s 42(8) of the ST Act), by being granted a licence to use (s 94 of the ST Act) or by obtaining approval to alter common property (s 85 of the ST Act) (Stanley and Owners of Waterloo Heights Strata Plan 4192 [2009] WASAT 55 at [42]).
The ST Act further contains an underlying assumption that a proprietor should seek approval for the alteration to common property prior to doing any works. A proprietor who fails or refuses to seek approval from fellow owners by installing a structure on common property without approval, runs the risk that it may have to be removed and the common property restored. Refer, for example, to the matter of Husic and Biancuzzo [2009] WASAT 192 (Husic) in which the Tribunal ordered the removal of a garden wall on the basis that it enclosed a common property garden without authorisation having been given.
If an alteration is made to common property without prior approval, the strata company may give retrospective approval (subject to conditions if necessary) for the structure to remain or it may seek an order from the Tribunal, pursuant to s 83(1) of the ST Act, for the structure to be removed.
The ST Act clothes the Tribunal with a discretionary power to determine if an order ought to be made under s 83(1) of the ST Act. Section 83(1) provides that the Tribunal 'may … make an order …'. It is therefore not automatic that any alteration to common property would by necessity be removed. The Tribunal must apply its mind to the facts before it to determine if it should exercise its discretion to order the removal of a structure. Refer, in regard to the general discretion of the Tribunal to make an order, to the matter of Arasi and The Owners of Beverly Court [2005] WASAT 197.
The Tribunal has, for example, in the past, allowed an airconditioner that was installed on common property without approval to remain. Although the Tribunal would generally order the removal of a structure that had been installed without authorisation on common property, the Tribunal retains a discretion whether to make an order pursuant to s 83(1) of the ST Act for it to be removed.
In the matter of Whittick and Ridley [2005] WASAT 134, the Tribunal (at [42]) refused to order that an air-conditioner installed on common property be 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 from common property 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:
… satisfied that the applicant[s] 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, the circumstances surrounding it and the implications to other owners, justify the making of an order for relief.
In these proceedings there were three main issues at stake and the Tribunal will deal with each of those separately. The parties also had a number of other issues of complaint against each other, including alleged breaches of planning conditions, but the Tribunal is satisfied that by dealing with the three main issues, the remaining disputes are also disposed of, and, as far as compliance with planning conditions are concerned, an appropriate authority can deal with it.
Installation of the gate on the common property driveway
The Tribunal notes the submissions and evidence of the parties and was greatly benefited by visiting the site to familiarise itself with the placing of the gate.
The Tribunal accepts the contention of Mr Stevens that the placing of the gate on common property has the effect of annexing a substantial part of the common property driveway into the lot of Ms Robinson. This alteration would probably increase the value of Ms Robinson's lot. It also means the strata company is responsible for the maintenance of the gate. On the other hand, the Tribunal can see the practical benefits of the arguments put forward by Ms Robinson for the gate to be retained in its current location. The ideal would have been for the parties to reach agreement about the matter.
In the absence of any agreement, it is the view of the Tribunal that although the gate would indeed have potential benefit to Mr Stevens' lot, the following militates against the retention of it:
•Mr Stevens does not consent to the alteration to the common property and, as a co-owner of the common property, his view must weigh substantially with the Tribunal.
•No conclusive evidence was provided to the Tribunal about the alleged illegal parking on the common property prior to the gate being erected. Although Ms Robinson alleged that such incidents were frequent, she offered no documentary proof or photographs to support the evidence.
•No conclusive evidence was provided to the Tribunal about alleged security risks that may arise if the gate is placed at the lower end of the driveway where the lot abuts the common property.
•The area of the common property which for all practical purposes would become part of the lot of Ms Robinson, is substantial - approximately 60 square metres.
•There is no reason why future proprietors could not again engage in discussions for the gate to be placed where it currently is placed but with the necessary by-law or licence conditions to support it.
The Tribunal therefore finds that the gate that is situated on the common property must be removed and the common property be restored. A period of a maximum of 60 days should be allowed for the work to be done.
Dividing timber fence on common property
The Tribunal notes the submissions and evidence of the parties and was greatly benefited by visiting the site to familiarise itself with the placing of the dividing timber fence.
The submissions of the parties in regard to the dividing fence are wellbalanced and illustrate how difficult it can be for the Tribunal to make a decision about the use of common property.
The Tribunal understands the concern of both parties.
On the one hand, Mr Stevens has in essence three reasons why he wants the timber fence to be removed: firstly, the erection of the timber fence was without his permission; secondly, the fence is not to his taste. During the hearing he told the Tribunal that he 'does not like it'. He admitted, however, that he has not seen the fence in person since he resides in the United Kingdom, but he has seen photographs of it. Although he indicated during the hearing that he intended to relocate to the house, he informed the Tribunal after the hearing that the house had been placed on the market. Thirdly, Mr Stevens contends that the fence interferes with vehicular access to the common property driveway.
On the other hand, Ms Robinson emphasises the architectural merit of the fence, their willingness to maintain it, the fact that it abuts the existing dividing fence, and she refutes the contention that it diminishes accessibility to the common property.
The Tribunal is satisfied that Ms Robinson has shown that the request for the fence to be removed was unreasonable and that the Tribunal should not exercise its discretion in favour of Mr Stevens' request. The reasons for this finding are as follows:
•There is no conclusive evidence before the Tribunal that the fence is indeed located on common property. There was no expert evidence, such as that of a surveyor, to confirm the location of the fence as being on the boundary line, on common property or on the neighbouring lot. Mr Stevens noted that the steel fence was on the boundary line according to a surveyor report he had done at the time of subdivision. The report was not provided to the Tribunal. Although the parties may have accepted as point of departure that the fence is on common property simply because it is on the common property side of the existing dividing fence, the Tribunal must be satisfied that the fence is indeed on the common property before it makes an order for it to be removed. If it is marginally on the neighbouring lot and not on common property, there is no ground for the Tribunal to order for it to be removed. Given the high cost and the wasted resources to order the fence to be removed, the Tribunal must be satisfied that it is indeed on common property.
•Even if the fence were on common property, it closely abuts the existing iron dividing fence. The Tribunal does not accept the contention of Mr Stevens that the timber fence diminishes access to the common property driveway. The fence does not encroach for more than a few centimetres from the existing iron fence, and given the space that is available to use the driveway, there is no credible evidence to suggest such a small intrusion onto the common property would limit vehicular use of the driveway. Mr Stevens did not provide any expert evidence to support his contention that the drive space is being limited or that the area for turning a vehicle is diminished by the fence. To add to the question of credibility of Mr Stevens' evidence, the Tribunal notes that by his own admission he has not seen the timber fence in person nor used the driveway since the erection of the fence. His contention that the fence automatically diminishes the turning area available to his vehicle is based on pure speculation since he has not had the area measured, nor has he turned his own vehicle in the area, nor have his tenants complained.
•Ms Robinson has expressed her willingness for a condition to be imposed on the title of her lot to the effect that the current proprietor and their successors in title would be entirely responsible for the maintenance and upkeep of the timber fence. In doing so, they would maintain the dividing fence that is part of their lot and the dividing fence that is on the common property. In such a way, Mr Stevens or his successors in title would have no responsibility for the maintenance and upkeep of the dividing fence and to insure it, although they may have the benefit of the artistic value the fence adds to their property. The conditions to maintain, as proposed by Ms Robinson, are reasonable conditions as foreseen in s 94 of the ST Act.
•The fence forms an integral part of the architectural design of Ms Robinson's house and also forms a coherent part with the timber fence that separates Ms Robinson's lot from the neighbouring property. The same timber fence basically runs uninterrupted the entire length of the common property and the lot of Ms Robinson. It would be impractical, unaesthetic and diminish the value of both lots if a rather tired looking steel fence were to be followed by a very modern looking timber fence. Mr Stevens' evidence that the timber fence is not to his taste is noted, but the Tribunal must consider other factors than merely the taste of Mr Stevens. The design of the fence, the value it adds to the lots, the consistency it has with the fence on Ms Robinson's lot, the practical problems that may or may not arise from it, and the wasted and unnecessary cost to have it removed, justify an order pursuant to s 94 of the ST Act. This assessment of the Tribunal contrasts with the outcome of the decision in the matter of Husic, since, in that case, a substantial portion of common property was annexed by a garden wall; the wall blocked off part of the driveway; and the wall constituted a risk for children.
•The letterbox which is attached to the common property dividing fence does not obstruct passage of persons or vehicles. The parties are in agreement that a letterbox could be erected on the common property crossover area but that, in turn, may obstruct access to vehicles. In time, a common sense solution may be found to place a letterbox on common property without unduly restricting access.
The Tribunal therefore finds that the part of the timber dividing fence that is placed on common property may remain in its current location, subject to the condition that the proprietor of Lot 2 is, for now and in the future, solely responsible for all the costs arising from the maintenance and upkeep thereof. The condition must be registered against the title of Lot 2 to ensure that future proprietors are aware of the condition.
Utility meters (gas and water) and box on common property
The Tribunal notes the submissions and evidence of the parties and was greatly benefited by visiting the site to familiarise itself with the placing of the utility meters.
The Tribunal notes the concerns of Mr Stevens that the meters and box may diminish the area available for vehicular access on the common property. The Tribunal does not accept the contentions for the meters and box to be removed for the following reasons:
•The Tribunal accepts the evidence of Ms Robinson that the location of the meters was identified on the approved building plans when they acquired the lot. The meters are located very close to the dividing fence, in a garden bed and accessible to the authorities responsible for the reading and maintenance of the meters.
•The meters were installed by the respective utility companies in accordance with the ST Act, which allows for an implied easement for the installation of such meters on common property (s 11 of the ST Act). It would be entirely impractical, and without any clear benefit, if meters were to be located on the respective lots.
•The meters and the masonry box in which the meters are contained are placed in a well kept, tiny garden bed which is situated on the common property and which does not substantially affect the use of the driveway at all. The suggestion that the garden bed and/or the placing of the meters diminish the use of the common property is exaggerated and without substance. As observed above, Mr Stevens has not seen the garden bed or meters first hand; he has not personally experienced any difficulty to use the driveway; he did not provide any expert evidence to substantiate his claims and his tenants did not give evidence about the purported trouble to use the driveway.
The Tribunal therefore finds that the application for an order to have the gas and water meters removed from the common property should be dismissed.
Summary
The Tribunal therefore finds in summary that:
•The gate on the common property was erected without authorisation and has the effect of granting to the applicants a de facto exclusive use area over part of the common property driveway. The gate must be removed and the common property restored.
•A licence should be granted for the timber dividing fence to remain, on the condition that current and future proprietors of Lot 2 are responsible for the maintenance and upkeep and insurance thereof.
•The utility meters and box do not impair the use of the common property driveway and can remain in the current location.
Orders
1.The gate which is situated on the common property must be removed within 60 days from the date of these orders and the common property must be restored and made good. The cost for removing the gate and restoring the common property is for the account of the proprietors of Lot 2.
2.The application to have the utility meters and the box in which they are kept removed is dismissed.
3.The application to have the timber fence removed is dismissed.
4.A licence is granted, pursuant to s 94 of the Strata Titles Act 1985 (WA), to the proprietor of Lot 2 to retain the timber fence on the common property and to be solely responsible for the maintenance, upkeep and insurance thereof.
5.Ms Robinson must within 30 days from the date of these orders lodge with the Registrar of Titles a certified copy of this order, together with the prescribed fee in order for order 4 to be recorded on the strata plan.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
6
6
1