SQUELCH and Anor and Brooklea Nominees Pty Ltd

[2005] WASAT 198

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   SQUELCH & ANOR and BROOKLEA NOMINEES PTY LTD [2005] WASAT 198

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   ON THE PAPERS

DELIVERED          :   9 AUGUST 2005

FILE NO/S:   STR 138 of 2004

BETWEEN:   ANDREW SQUELCH

JOAN SQUELCH
Applicants

AND

BROOKLEA NOMINEES PTY LTD
Respondent

Catchwords:

Real property - Strata titles - Alteration of lot - Unauthorised installation of air­conditioner

Legislation:

State Administrative Tribunal Act 2004 (WA), s 60(2), s 95(1)

Strata Titles Act 1986 (WA), s 7, s 7(2), s 7(2)(d), s 7B, s 7B(1), s 77, s 77B, s 83(1), s 103G, s 103G(1)(b), Sch 2(13), Sch 2(14)

Result:

Final orders

Category:    B

Representation:

Counsel:

Applicants:     Self­represented

Respondent:     Self­represented

Solicitors:

Applicants:     Self-represented

Respondent:     Self-represented

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

Arasi & Anor v The Owners of Beverly Court [2005] WASAT 197

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Issue

1. The applicants, who are proprietors of unit 2 of the strata complex, seek an order under s 83(1) of the Strata Titles Act 1985 (WA) (the STA) for the resolution of a dispute with the respondent who is proprietor of unit 3. The dispute arises from the purported failure of the respondent to obtain an authority and perform a duty under the STA.

2. The applicants contend that the respondent had failed to obtain proper authorisation to alter his lot in order to install an air‑conditioning unit and that he subsequently refused to remove the air‑conditioning unit as instructed by the strata company.  The respondent did not make submissions in response to the application.

3. The external wall of unit 3 forms part of the lot and any alteration thereto falls within the requirements of s 7B STA.  It is common cause that the respondent had not complied with the requirements of the STA.  Although the applicants support the installation of air‑conditioning units in the complex, their complaint is directed at the location of the air‑conditioner due to the noise it makes and the vibration it causes.

4. Orders are made for (i) the air‑conditioning unit to be removed within 60 days of the date of the order and, (ii) in the time being for the air‑conditioner not to be operated outside the hours 9am – 10pm.

Applicants and Respondent

1. The applicants are the owners of unit 2 of 40 McMaster Street, Victoria Park on strata plan 37175.

2. The respondent is the owner of unit 3 40 McMaster Street, Victoria Park on strata plan 37175.

3. Submissions, correspondence minutes of meetings and were received from the applicants.  No submission was received from the respondent although the applicant confirmed that they had served a copy of the application on the respondent.

Application lodged with State Administrative Tribunal

1. The application for relief was lodged under s 77 STA.  The applicants certified as is required by s 77B STA, that the strata company had no by‑laws to regulate the resolution of a dispute.

2. The matter is determined on the papers pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) as ordered by Senior Member Raymond on 16 June 2005.

3. The Tribunal has considered the submissions and correspondence and make the following determination.

Orders sought

1. The applicants seek orders for the respondent to (a) remove the air‑conditioning unit at its expense within two weeks of the order and (b) to seek approval from the strata company before an air‑conditioner is installed at an appropriate site.

2. In these reasons I will first deal with the process of authorisation for the installation of the air‑conditioner; secondly with the relief available; and thirdly with the discretion of the Tribunal to make orders as sought.

Authorisation required

1. The strata plan 37175, registered on 26 November 1999, shows that the lots on 40 McMaster Street include not only the building but also the land portion to the front and back of each unit.  In the event where two lots have a common wall, the centre‑plane of that wall is the boundary between the lots.

2. The wall against which the air‑conditioning unit is installed therefore forms part of the lot of unit 3.  Any alternation of the lot must be preceded by the authorisation process set out in s 7B STA.  This requires from the respondent to serve an application of the proposed works on the strata company (s 7B(1) STA).

3. The proposal to install an air-conditioner had to be submitted to a general meeting of the strata company.  Approval expressed by a resolution without dissent is required for the work to commence (s 7(2)(d) STA).  Without the necessary approval a proprietor "shall not cause or permit "(a) any structure to be erected; or (b) any alteration of a structural kind, or an extension of, a structure on his lot…"  (s 7(2) STA).

4. From the submissions and correspondence received, it appears that the respondent installed the air‑conditioner without complying with the requirements of s 7 or s 7B STA.  The strata company discussed the complaints of the applicants at the annual general meeting held on 24 February 2004, and the respondent failed to address the issue even after the strata manager had sent a letter.

5. The issue was discussed again at the extraordinary general meeting held on 18 March 2004 and the respondent again failed to comply with the written instructions to "remedy" the problem.

6. The applicants and respondent met in April 2004 and the latter agreed to remedy the problem but again no action was taken.

7. A final letter instructing the respondent to remove the air‑conditioning unit was sent by the strata manager on 27 September 2004.  The respondent again failed to comply.

8. The respondent did not make any submission to Tribunal to oppose the application or to provide an alternative version of events.

9. The Tribunal is therefore satisfied that the respondent installed the air‑conditioner without the necessary authorisation as required by s 7(2) STA.

Relief available

1. The next question deals with the appropriate relief available to the applicants. Relief can be sought under two sections of the STA, namely s 103G and s 83(1).

2. Section 103G STA deals with the relief available if a breach of s 7(2) STA has occurred.  However, s 103G(1)(b) limits the availability of relief to an application brought by the strata company.  This relief offered by this section therefore does not apply as the owners of a unit brought the application.

3. The applicants amended their application on 16 June 2005 to seek relief under s 83(1) STA.

4. The STA clothes the Tribunal with a discretionary power to determine if an order ought to be made under s 83(1) STA. Section 83(1) provides that the Tribunal:

   "may … make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by‑laws in connection with that scheme …"

5. Section 83(1), STA must be read with the obligations placed on the respondent in Schedule 2 by‑law 13 and Schedule 2 by‑law 14. The former requires from the respondent not to alter the structure of the lot except as permitted by the STA and in any event not without giving notice to the strata company of the intended alteration. Schedule 2 by‑law 14 prohibits the respondent to maintain within the lot anything visible from the outside of the lot that is not in keeping with the rest of the building.

6. The air‑conditioner is attached to the outside of the lot and affects the appearance thereof as shown on the photographs.  The respondent was therefore required to adhere to the provisions by Schedule 2 by‑law 14 by obtaining written consent from the strata company prior to the installation.

7. The Tribunal has a discretion to make an order pursuant to s 83(1) STA. Refer in this regard to the matter of Arasi & Anor v The Owners of Beverly Court [2005] WASAT 197 pages 9 – 10.

8. The Tribunal must therefore be satisfied that the nature of the breach and the circumstances surrounding it, justify the making of an order for relief.

9. The applicants have shown in their submission and correspondence enclosed therewith that they have gone to great length to discuss their complaint with the strata company and the respondent.  They do not object in principle to the installation of an air‑conditioner to the external wall of unit 3, but they require that (a) the provisions of the STA dealing with authorisation must be adhered to and (b) the air‑conditioning unit must be situated at a location where it does not cause them discomfort.

10. The present location of the air‑conditioning unit, as is illustrated in photographs submitted to the Tribunal, is within approximately 50 centimetres of the bedroom wall of the applicants.  The noise and vibration caused has become a "big problem" according to the applicants and has caused sleep deprivation.  It appears that the air‑conditioner runs long hours, as it is reserve cycle and therefore effective at day and night.

11. In the minutes of the annual general meeting held on 18 March 2004 it is recoded that the respondent had to take "urgent" steps to rectify the matter by attaching buffers to the mountings or install a cover to reduce noise.  The respondent has not taken any action to comply with the directive of the strata company.

12. The Tribunal finds that the installation of the air-conditioner was in breach of s 7(2) STA and Sch 2 by‑law 13 and Sch 2 by‑law 14.  The applicants are therefore entitled to relief.

Conclusion

1. The Tribunal is satisfied that the applicant have shown (a) the respondent installed the air‑conditioner 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.

Orders

1.The respondent must at their cost remove the air-conditioning unit within 60 days from the date of this order and repair and make good any damage to the external wall of unit 3.

2.The respondent must until the removal thereof, limit the operating hours of the air‑conditioner to the hours between 9am and 10pm.

3.Failure by the respondent to comply with these orders is an offence under s 95(1) of the State Administrative Tribunal Act 2004 (WA).

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

DR B DE VILLIERS, MEMBER