SEOW and COULSON
[2006] WASAT 32
•14 FEBRUARY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: SEOW and COULSON [2006] WASAT 32
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: DETERMINED ON DOCUMENTS
DELIVERED : 14 FEBRUARY 2006
FILE NO/S: STR 99 of 2002
BETWEEN: JUNE EWE-CHYE SEOW
Applicant
AND
NATALIE ANN COULSON
Respondent
Catchwords:
Strata titles Alteration of lot Certification of structural safety of alterations Inconvenience to other proprietors
Legislation:
State Administrative Tribunal Act 2004 (WA), s 7, s 11(1), s 167(4)(b)
Strata Titles Act 1985 (WA), Pt VI Div2A, s 7, s 7B, s 7(2), s 7(5), s 81(1), s 103G, s 103G(3), s 103G(4), Sch 2 bylaw 13, Sch 2 bylaw 14, reg 32(a)
Strata Titles General Regulations 1996 (WA), reg 32(a)
Result:
Application dismissed
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
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ms Seow sought an order to compel Ms Coulson to produce a report from a structural engineer to certify that the removal of an internal wall of a lot does not compromise the structural safety of the lots.
Ms Coulson produced a report and the Tribunal accepted the evidence.
The application is dismissed.
Application transferred to the State Administrative Tribunal
The Strata Title Referee (Referee) appointed pursuant to Part VI Division 1 of the Strata Titles Act 1985 (WA) (the Act) originally received this application dated 9 October 2002 for investigation under Part VI Division 2A of the Act.
The Referee invited submissions to the application and received several written submissions from the applicant and respondent over an extended period of time. However, the Referee had not made a determination prior to the matter being transferred to the State Administrative Tribunal on 1 January 2005.
The State Administrative Tribunal (the Tribunal) was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA)(SAT Act). On the same day this matter was transferred to the Tribunal in terms of s 167(4)(b) of the SAT Act for continuation.
The President of the Tribunal nominated me pursuant to s 11(1) of the SAT Act to constitute the Tribunal to determine the application.
Background to application
Ms Seow sought orders pursuant to s 81(1) and s 103G of the Act to oblige Ms Coulson to (a) discontinue building operations to the external walls of the complex and to reinstate the structure to its original state and (b) provide engineering certification as to the structural soundness of the roof and adjoining walls shared their lots. The property the subject of the strata plan is a duplex development at 6 and 8 Campbell Street, Subiaco.
Ms Seow contended that Ms Coulson required her permission before she could make any alterations to common property. Ms Seow also alleged that Ms Coulson utilised the services of an unregistered builder; that she did not obtain the necessary building approval from the City of Subiaco; and that neither she nor the builder had the necessary indemnity insurance for the works.
The Tribunal will not summarise all the claims and counter‑claims that were made in correspondence over a period of four years. The main issues to be determined as set out in [8] above.
Resolved Matters
Since the application was lodged, two matters have been resolved.
Firstly, the Department of Land Administration notified Ms Seow in a letter dated 13 November 2002 that the objection she had lodged against the merger of buildings had failed. As a consequence the shared wall between the lots which Ms Seow alleged to be common property was in fact part of the respective lots. The boundary between the lots is therefore the centre plane of the wall. The Strata Title Registrar also clarified the situation to the City of Subiaco in a letter dated 6 August 2003.
The Tribunal therefore proceeds on the basis of the registered strata plan. The current application only deals with the renovations brought about by Ms Coulson. The Tribunal explained to Ms Seow at the direction hearing held on 14 November 2005 that if she wanted to pursue the reinstatement of the objection to the merger, a fresh application would have to be lodged for that purpose.
Secondly, the renovations have been completed since the application was lodged. The Referee issued an interim order on 12 November 2002 for all renovations to be stopped. Several representations were made to the City of Subiaco and to the Referee in regard to alleged non‑compliance with the stop work order. The Strata Title Registrar informed Ms Seow in his letter dated 8 January 2003 that if the interim order is not complied with it is up to her to commence a private prosecution in the Court of Petty Sessions. Ms Coulson explained in her email of 24 March 2003 that it was her understanding that the renovations could continue since the wall did not form part of the common property and she could therefore complete all works that related to her lot.
Certification by structural engineer
The only question that remains to be dealt with is the certification requested by Ms Seow that the structural safety of the lot has not been compromised by the renovations. The Tribunal made an order on 14 November 2005 for Ms Coulson to provide a certificate of a structural engineer to confirm that "works undertaken in Lot 1 do not affect the structural soundness of the building."
Ms Seow's main concern is that an internal wall in Ms Coulson's lot had been removed and that this might compromise the structural safety of both units since the beam that carries part of the ceiling could not sustain the weight. Ms Coulson's response to the concern is that the builder assured her that the wall was non‑load bearing and that the removal therefore poses no risk to the structural safety of the lots.
In a letter dated 10 January 2006, Mr Matt Buggins from MBSE Consultants Pty Ltd Structural Engineers confirmed that they had inspected 6 Campbell Street to "examine the structural condition of the property after the recent alterations." Mr Buggins then summarised his finding as follows:
"Generally the building structure appears in reasonable condition for its age. Whilst there are some structural defects apparent, such as cracks in masonry walls, these are minor in mature [sic] and are consistent with the defects expected to be present in any building of this age. They do not appear to affect the serviceability of the building. We are satisfied that the building is structurally adequate."
Ms Seow challenged the report in her letter of 1 February 2006 as it does not satisfy her request for explicit assurance that the timber beam would be adequate to carry the weight of the ceiling.
Consideration
Although the alterations made by Ms Coulson are limited to her lot it does not mean she has an unlimited right to carry out renovations without consulting Ms Seow. Alternations to a lot are covered by several provisions of the Act namely:
·Section 7 and s 7B require that a proprietor in a two lot strata scheme obtains the consent from the other proprietor before any structure is erected or any structural change is made to the lot. The other proprietor may refuse approval on certain limited grounds namely the structure would be visible from the outside of the lot, it may affect the structural soundness of the building or it may interfere with an easement. (s 7(5) of the Act). Ms Seow is concerned at the structural soundness of the lots following the removal of an internal wall.
·Schedule 2 by‑laws 13 and 14 deal with the notice that must be given prior to commencement of any work to alter the structure of a lot. No such notice was given by Ms Coulson.
·Regulation 32(a) requires that the necessary approvals from a local government must be obtained by the proponent of the development. At time of construction no approvals had been obtained.
·Section 103G(3) empowers the Tribunal to order that the structure be pulled down, removed or altered if the work was done on breach of the Act provided that such an order is not made unless the Tribunal is "satisfied that the work done or intended to be done will not cause any significant inconvenience to the other proprietors." (s 103G(4))
The Tribunal finds that Ms Coulson acted in breach of s 7(2) of the Act when she commenced with the works without the necessary approval of Ms Seow or the local authority. The Tribunal does not accept Ms Coulson's explanation that she was unaware that approval was required since the work only affected her lot and was minor in nature. The Act does not authorise a proprietor to "go it alone" by affecting works that potentially impact on the structure of the complex without following the process as set out by the Act.
In light of the breach of s 7(2) of the Act the Tribunal must consider what appropriate action, if any, should be taken.
Ms Seow's concern is that the removal of the internal wall might affect the structural integrity of the lots. Ms Seow therefore seeks certification from a structural engineer to allay her concerns.
The Tribunal made orders on 14 November 2005 for Ms Coulson to provide such a certificate from a structural engineer. Ms Coulson complied by letter dated 24 January 2006. The letter by MBSE Consultants certifies that they regard the building as "structurally adequate" and that the cracks are "minor in nature and are consistent with the defects expected to be present in any building of this age". Ms Seow indicated that she would have preferred the report to specifically address the adequacy of the beam.
The Tribunal accepts the findings of the engineer's report that the structural safety of the lot has not been compromised by the alterations. Although the report does not mention the beam as such it does refer to the "recent alterations" and therefore the findings include possible risks that may arise following the removal of the internal wall.
Although the Tribunal can order Ms Coulson to take remedial action following the breach of s 7(2), we are not satisfied that the work done will cause "significant inconvenience" to Ms Seow. Ms Seow succeeded in effect with her application since the report by a structural engineer has been submitted and the Tribunal accepted it. The application should therefore be dismissed.
Order:
1.The application is dismissed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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