Rothall and Ors and Nicoli and Anor
[2005] WASAT 5
•2 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985, s 83(1)
CITATION: ROTHALL & ORS and NICOLI & ANOR [2005] WASAT 5
MEMBER: MR R J KRONBERGER (SESSIONAL MEMBER)
HEARD: 22 DECEMBER 2004
DELIVERED : 2 MARCH 2005
FILE NO/S: ST 22 of 2004
BETWEEN: ALAN ROTHALL
KAYE ELIZABETH ROTHALL
VIVIENNE VEN GARRETT
ApplicantsAND
ROBERT FRANK NICOLI
FIONA CHRISTINE KERR
Respondents
Catchwords:
Real property - Strata titles - Installation of a spa pool - Approval required
Legislation:
State Administrative Tribunal Act 2004 (WA), s 11, s 176(4)(b)
Strata Titles Act 1985 (WA), Pt VI Div 1, Pt VI Div 2A
Strate Titles General Regulations 1996 (WA), r 31
Result:
My Orders are that the proprietors of Lot 1 on Strata Plan 35108 ("the Strata Plan") must
(a) By no later than 30 April 2005, at their own cost and risk, with neat non-transparent new materials, and in a proper and tradesman-like manner increase the height of the wall separating the rear portions of Lot 1 and 2 on the Strata Plan to the height of the guttering above the wall;
(b) Not use the spa pool pump at any time between 10:00 pm on any night or before 8:00 am on any day, unless otherwise agreed by the proprietors of Lot 2 or the Strata Plan.
Category: B
Representation:
Counsel:
Applicants: Self Represented
Respondents : Self Represented
Solicitors:
Applicants: Self Represented
Respondents : Self Represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION
Issues
Installation of a spa pool and related improvements on a lot without strata company approval.
Jurisdiction
As the Strata Title Referees appointed in terms of Pt VI Div 1 of the Strata Titles Act 1985 I originally received this application for investigation in terms of Pt VI Div 2A of the said Act.
As referee I invited submissions to the application and received a written submission as well as carrying out a site inspection. The matter was dealt with on the basis of the written submissions and site inspection but I had not made a determination prior to the matter being transferred to the State Administrative Tribunal on 1 January 2005.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). On the same day, this matter was transferred to SAT in terms of s 167(4)(b) of the SAT Act for continuation.
As I have been appointed a sessional member of SAT the President has nominated me in terms of s 11(1) of the SAT Act to constitute the Tribunal for the purposes of determining this matter.
Applicants
The applicants are Alan Rothall and Kaye Elizabeth Rothall as the proprietors of Lot 2 on Strata Plan 35108 ("the Strata Plan") and Vivienne Ven Garrett as the proprietor of Lot 3 on the Strata Plan.
Respondents
The respondents are Robert Frank Nicoli and Fiona Christine Kerr as the proprietors of Lot 1 on Strata Plan 35108 ("the Strata Plan").
Strata Plan and relevant Act
The Strata Plan was registered on 6 October 1998 pursuant to the Strata Titles Act 1985 ("the 1985 Act") which continues to be the relevant Act.
In these reasons, unless otherwise specified, all references to sections and schedules are, respectively, references to sections of and schedules to the 1985 Act.
Parcel
The parcel is a three‑lot residential development at the corner of Cobb Street and Olcote Street, Doubleview, within the City of Stirling ("the City").
The name of the parcel is "144 Cobb Street, Doubleview" and that is the strata company's address for service.
Lots
Each lot within the scheme comprises a two‑storey residence and small areas of adjacent land. The residential portions of Lots 1 and 2 share a common or party wall, but Lot 3 is a stand-alone residence.
The proprietors of Lot 1 are the respondents, Robert Frank Nicoli and Fiona Christine Kerr.
The strata plan includes the following endorsements:
"The stratum of the lots extends between 5 metres below and 20 metres above the upper surface level of the ground floor of the building shown on the plan as forming part of Lot 1.
The boundaries of the lots or parts of the lots which are buildings shown on the strata plan are the external surfaces of those buildings, as provided by s 3AB of the Strata Titles AcT 1985.
Where two lots have a common or party wall or have buildings on them which are joined, the centre plane of that wall or the plane at which they are joined is the boundary … "
I have assumed that the first paragraph of those endorsements refers to the external parts of the lots.
By-laws
As no changes of by‑laws are recorded on the strata plan, the by‑laws of the strata company are, pursuant to s 42(2), the "standard" by‑laws in Schs 1 and 2.
Orders sought
The applicants have sought orders pursuant to s 83 and s 103G. The applicants also refer to other sections and to the strata company's by‑laws, although, in the case of the by‑law, it is not clear on what basis.
The Orders sought are in the following terms:
"Order requesting owners of Lot 1 Strata Plan 35108, Robert Frank Nicoli and Fiona Christine Kerr remove and make good spa and equipment installation together with outside shower recess and remove tiles off all outside walls located on the building and within Lot 1.
All costs associated with removal and make good be borne by Mr Nicoli and Fiona Kerr and be removed within one month from issue of order or such other order as Referee deems fit."
Applicants' submissions
The applicants have advised that, on 25 May 2003, they noted that the proprietors of Lot 1 were carrying out drilling works in relation to the construction of a spa pool in the external portion of Lot 1. The applicants considered that this caused damage to the structure of Ms Ven Garrett's Lot 3, as well as creating excessive noise and vibration.
One of the respondents, Mr Nicoli, is said to have claimed that he did not need any consent from the other lot proprietors or from the strata company.
The spa pool was installed against a wall of Lot 3. The applicants claim that this caused cracks in the plaster and ceiling of the adjacent Lot 3 bedroom and damage to the exterior of the wall of the Lot 3 residence where electrical and other service controls of the spa pool were fitted.
The applicants brought the matter to the attention of the City, which gave notice to the respondents, as the proprietors of Lot 1, that the spa pool had to be immediately drained and not operated further and that it had to be removed.
Following receipt of that notice, the respondents lodged an application with the City for planning consent to "reinstall" the spa but the City would not consider the application until the existing spa pool and all attachments had been removed.
The proprietors of the three lots held a meeting on 11 December 2003 to discuss the spa pool. The requirements of the City for the removal of the original spa pool had been completed and the respondents advised that they would remove the fixtures from the wall of Lot 3. The applicants suggested that the respondents relocate the spa pool to the front of their Lot 1, but the respondents did not agree with that suggestion. The applicants state that the respondents agreed to provide the other lot proprietors with copies of the plan and application that went to the City, together with an engineer's report in relation to the sound and vibration aspects. However, the applicants state that those copies were never provided to them by the respondents.
The applicants claim that the respondents' application for planning consent included an undertaking to install the spa pool 1 metre from the boundary of Ms Garrett's Lot 3, with the spa pump to have insulated mountings with vibration dampening, as well as pump housing with noise‑deadening lining.
It appears that on that basis, the City considered the application to be "fully compliant", approved the proposal and issued a building licence.
There was no communication between the City and the other lot proprietors. In particular, the City did not advise the other proprietors of its decision.
Without prior notice to the applicants, the respondents, on 9 January 2004, commenced the re‑installation of the spa pool. The applicants telephoned the City and were informed that approval had been given on the basis that it was a survey-strata scheme and that, therefore, there was no requirement for the strata company to approve the installation.
The applicants wrote to the City on 24 January 2004 advising that the scheme was a strata scheme and not a survey-strata scheme and that officers of the City were aware of this before the building licence was granted. The applicants requested the City to revoke the approval. Following a number of calls by the applicant to the City, the City's Chief Executive Officer informed them that
" under the Act the Council did not need Strata Plan [sic] approval to issue a permit but the applicant (for the Permit) had to ensure that once a Permit was granted that all other requirements were action [sic] by them prior to commencement of building."
The spa pool installation was continued and completed by the respondents, without further reference to the strata company or to the applicants.
The applicants consider that the structure is not in keeping with the rest of the development and they believe that
"Once installed the operation of the pump and noise emanating from the use will be a continual nuisance (as has been demonstrated by the previous use) and will be a significant determent [sic] to the use and enjoyment of adjoining lot owners."
They also state that the respondents have installed, without notice or approval, an outside shower recess and wall‑tiling which, when viewed from the outside of the building, is not in keeping with the rest of the development.
The proprietors of Lot 2 have submitted that:
"Firstly our Lot 2 has an outdoor balcony entertainment area located upstairs. We entertain our friends on a regular basis and also use this area ourselves, and this spa and shower installation has caused embarrassing situation. Lot 1 [sic] when in the spa, and the spa is operating, create excessive noise and vibration is still occurring. In the matter regarding the vibration we support our neighbour in Lot 3 who will be unduly affected by this disruption and noise. Not to mention the potential damage that it will cause.
The location of the Spa in Lot 1 is in a small courtyard that is surrounded by two-storey units. The noise bounces off each of the building thus creating a noise other than what is reasonable in a suburban area. The noise created is from the Spa pump, jets and the need for the occupants to raise voices in order to be heard. When we have guests on our balcony it is necessary for us to move inside to enjoy their company as trying to create conversation over this is uncomfortable.
Upon ceasing to use the Spa and on other occasions the occupants of Lot 1 then use their shower recess. Again with or without guests this is embarrassing as it is not our intention to observe persons showering. The shower and spa are in clear view from our balcony.
Given also this view and the noise we feel very strongly that this will greatly affect our property value. Already our neighbour at Lot 3 has experienced this when trying to sell her property recently, resulting in it being removed from the market."
Responses to application
The application has been supported by a further submission from Mr and Mrs Rothall who contend that the spa pool is a "structure" within the meaning of s 7(2) and that the use of the spa pool is a continuing nuisance to the proprietor and occupiers of Lot 3, in breach of Sch 1, by‑law 1(2)(b). It is claimed that during its operation, vibrations from the spa pool's pump are felt in Lot 3 and, in particular, in the bedroom and the study abutting the location of the spa pool.
They also refer to cracking in the plaster ceiling of two bedrooms and the bathroom of Lot 3 and damage to the external face of the wall of Lot 3 where electrical controls to the spa pool tiles, have been fitted.
Respondents' submissions
The respondents state that they were, initially, unaware of the approval required from the City and that the spa pool is not visible from outside their private courtyard. They state
"The spa rests on the ground, with a limestone surround, which is purely decorative and does not support the spa in any way. We are therefore not altering the structure of the lot."
They claim that
"The repositioning of the spa now meets all Stirling council requirements and passed a series of inspections to obtain our spa licence. This includes public health requirements and the State Government requirements for spa/pool fencing.
We have endeavoured to minimise noise levels by isolating and insulating the pump.
There are no fixtures or equipment associated with the spa attached to the common wall … Notice was given to owners of Lots 2 and 3 of our intention to proceed with installation of the spa, if a licence was granted by Stirling city council …the other owners prior to the December meeting had viewed a plan of the proposed reposition of the spa."
The respondents claim that, at the December meeting between the parties, the proprietors of Lot 2 stated that they would not be affected by the spa but would be supporting the opposition to it from the proprietor of Lot 3.
The respondents have pointed out that Mr & Mrs Rothall have an in‑ground pool in their rear courtyard, adjacent to the respondents' courtyard
They state
"The tiles on the external walls of Lot 1 are not visible from outside the property without an invasion of our privacy and are purely decorative and are not affecting the structure of the building in anyway."
They claim that, in November 2003, they inspected Lot 3 and considered that the walls were of a similar condition to those in Lot 1 and that, in a building report obtained by them at the time of their purchase, this was described as "natural settlement".
They state that Ms Ven Garrett, who was the proprietor of Lot 3 at the time, no longer resides in Lot 3.
Inspection
I have inspected Lots 1, 2 and 3, in the presence of Mrs Rothall and the respondents.
In the course of that inspection, I noted that there was a significant gap between the eastern wall of Lot 2, where it abuts the Respondents' Lot 1 courtyard, and the re‑located spa pool. The pump and electrical fittings associated with the spa pool are housed in an enclosure, made of masonry on three sides and with an access gate on the fourth side. That enclosure is not attached to any part of Lot 3.
The Respondent operated the spa pool at its maximum levels and, while it was operating, Mrs Rothall provided us with access to Lot 3. Lot 3 was unoccupied and, on the ground floor at least appeared to be unfurnished.
Any cracking that was visible appeared to be minimal.
The Respondent was able to show me minor cracking within his Lot 1 residence. He regards it as normal settlement of the building.
The external shower referred to in the Applicants' submissions was also inspected. The Respondents advised that it was used only on their family's return from beach outings, to wash off sand and salt. The Respondents offered to raise the wall between Lots 1 and 2, in order to limit the view of the shower from the Lot 2 balcony. The offer was accepted by Mrs Rothall subject to the wall being raised by approximately 700 mm to the height of the adjacent roof guttering.
The Respondent also indicated that they were prepared to cease to operate the spa pump after 10:00 pm on any night.
Considerations
The Strata Company's Sch 1 by-law include
"1(2)(b)A proprietor, occupier or other resident of a lot shall … not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier."
The Strata Company's Sch 2 by-laws include
"(13) A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by-laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
(14)A proprietor, occupier or other resident of a lot shall not, without the written consent of the strata company, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building."
Section 7 prohibits the erection of, or any alteration to, or extension of a structure in a lot on a strata scheme without the prior approval of the proprietors of the other lots in the scheme. In the absence of that approval, s 7(2) 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, the structure on his lot except
…
(d) …with the prior approval expressed by resolution without dissent, of the strata company.
Section 7B then sets out the procedures required for requesting the approval, including details of the information to be provided.
On receipt of that application, the Strata Company is obliged under s 7(4) to convene a meeting to consider the application. The requirements of the notice of the meeting are set out in s 7(4).
The other proprietors may only object to such a proposal on the grounds set out in s 7(5).
Section 7(5)(a) refers to plot ratio restrictions and open space requirements, but they do not appear to be relevant in this matter. However, s 7(5)(b) allows an objection where 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."
The easements in s 11 and s 12 refer to support and shelter and do not appear to be relevant to this application.
Section 7(5)(c) also allows an objection if the carrying out of the proposal would contravene a specified by‑law or by‑laws of the Strata Company (see r 31 of the Strata Titles General Regulations1996).
Section 7 and the related sections apply if a "structure" is involved. Regulation 32 includes:
"the improvements prescribed for the purposes of the definition of 'structure' in s 7(6) are any dwelling, shop, factory, commercial premises, garage, carport or other building or improvement
(a)the construction or erection of which is required to be approved by the local government or any other authority…
whether free-standing or annexed to or incorporated with any existing building on the lot."
In the present case, as the low wall surrounding the spa pool has been affixed to the land. Although it was approved by, and was the subject of a building licence from, the local government, and therefore optionally a "structure", it does not form any part of any building wall, floor, roof or other structure component of the Applicants' or the Respondents' lots.
Section 103G allows a strata company to apply to me for a finding that the proprietor of a lot in the scheme has committed a breach of s 7(2). An order under s 103G can be to
"(a)stop carrying out any work or any specified work in breach of sub‑section (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 sub‑section,
or both. As the works have been completed, only paragraph (b) is relevant."
Section 103G(4) provides that if a breach of s 7(2) has occurred I may make an order unless I am satisfied
"…that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors"
Conclusion
I am not satisfied that either the spa pump or the spa pool, which are both physically separated from the wall of the building containing Lot 3, are causing, or are likely to cause damage to Lot 3.
I have serous doubts that the sounds of voices of users of the spa pool or the sound of the spa and its pump are any grater than would be the case in relation to use of the small swimming pool in the rear compound of Lot 2.
However, I consider that the Respondents' offer not to use the spa pool after 10:00 pm on any night is a reasonable one.
In relation to the external shower, it appears to me that it is only visible from Lot 2 and that Mrs Rothall, on behalf of the proprietors of Lot 2 would be satisfied by the wall between Lot 1 and 2 being raised to the height of the adjacent guttering.
Order
My Orders are that the proprietors of Lot 1 on Strata Plan 35108 ("the Strata Plan") must
(a)By no later than 30 April 2005, at their own cost and risk, with neat non‑transparent new materials, and in a proper and tradesman‑like manner increase the height of the wall separating the rear portions of Lot 1 and 2 on the Strata Plan to the height of the guttering above the wall;
(b)Not use the spa pool pump at any time between 10:00 pm on any night or before 8:00 am on any day, unless otherwise agreed by the proprietors of Lot 2 on the Strata Plan.
I certify that this and the preceding twelve pages comprise the reasons for decision of the Tribunal.
________________________________
R J KRONBERGER
(Non-judicial member pursuant to s 167(15)
State Administrative Tribunal Act 2004)
0
0
3