The Owners of 19 Hayes Avenue Yokine - Strata Plan 24114 and White and Anor
[2005] WASAT 70
•22 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985
CITATION: THE OWNERS OF 19 HAYES AVENUE YOKINE - STRATA PLAN 24114 and WHITE & ANOR [2005] WASAT 70
MEMBER: MR T J CAREY (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 22 APRIL 2005
FILE NO/S: ST 122 of 2004
BETWEEN: THE OWNERS OF 19 HAYES AVENUE YOKINE - STRATA PLAN 24114
Applicant
AND
GARY RAYMOND WHITE
CHARMAINE WHITE
Respondent
Catchwords:
Real property - Strata Titles - Airconditioner installed on lot without strata company approval - "significant inconvenience or detriment" - Strata Plan 24114
Legislation:
State Administrative Tribunal Act 2004, s 60(2), s 167
State Administrative Tribunal Regulations 2004, r 28
Strata Titles Act 1985, s 7(2), s 83(1), s 103G, Sch 2 bylaw 14
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
MR T J CAREY (MEMBER):
REASONS FOR DECISION
The issue
The issue raised by this application is whether there should be an order under s 103G Strata Titles Act 1985 ("Act") for the removal or relocation of air-conditioning units installed within the boundary of a lot without strata company approval.
Application transferred to the State Administrative Tribunal
This application was originally made to the Strata Titles Referee ("Referee"). On 1 January 2005, the State Administrative Tribunal ("Tribunal") commenced pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA) ("SAT Act"). By virtue of s 167 of the SAT Act, this matter was transferred to the Tribunal. I have been nominated to constitute the Tribunal pursuant to s 11 of the SAT Act.
In accordance with the transitional provisions in reg 28 of the State Administrative Tribunal Regulations 2004 (WA), the matter is taken to have commenced in the Tribunal. The Tribunal may have regard to any record of the former adjudicator.
On 31 March 2005, a senior member of the Tribunal ordered that this matter be determined on the papers in accordance with s 60(2) of the State Administrative Tribunal Act.
Parties
The applicant is the strata company in respect of strata plan 24114 ("the strata plan"). The respondents are the proprietors of lot 1 on the strata plan, also referred to as unit 1.
Parcel
The parcel is situated at 19 Hayes Avenue, Yokine. The parcel includes four adjoining units each of which has a second storey. Each lot has its own carport and outside area, in each case as part of the lot.
Application
By their application received by the referee on 2 November 2004, the applicant sought orders under s 103(G) of the Act in the following terms:
" … order Unit 1 to relocate air‑conditioning units placed on the outside of the buildings in the view of all other units moved to a more indiscrete (sic – discreet) place. We require the relocation of the air‑conditioning units from view within 8 weeks and if a cost is to be incurred this is to be borne by Unit 1 of 9 Hayes Avenue, Yokine."
In the application document, the "grounds in support" of the application made reference to:
•no written permission having been sought from the applicant for installation of the units, which is a contravention of Sch 2 by-law 14
•when viewed from the outside of the lot, the air-conditioning units are not in keeping with the rest of the building (giving rise to the obligation under by‑law 14 to obtain consent)
•the applicant has requested relocation of the units to one of two alternative locations which would not contravene the by-law.
Facts common to the parties
The respondents have installed two new air-conditioners to the side of their lot on a narrow raised strip of land between an external wall of the building on the lot and a driveway running virtually along one side of the parcel. No permission for the installation of the units was sought from the strata company.
Relevant statutory provisions
Section 103(G) of the Act provides, relevantly:
"(1)An application to the State Administrative Tribunal for a finding and an order under this section may be made –
(a)by the proprietor of a lot in a two-lot scheme; or
(b)in the case of any other scheme, by the strata company.
(2)A finding under this section is a finding that the proprietor of a lot in the scheme has committed a breach of s 7(2).
(3)An order under this section is an order that the
proprietor –
(a)… ; 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 subsection …
(4)On the making of an application under subsection (1), the State Administrative Tribunal shall –
(a)make a finding under this section if satisfied that a breach of s 7(2) has occurred;
(b)make an order under this section unless satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors."
Section 7(2) of the Act provides:
"The proprietor of a lot shall not cause or permit –
(a)any structure to be erected;
(b)any alteration of a structural kind to, or an extension of, a structure,
on his lot except –
(c)with the prior approval of the proprietor of the other lot in the case of a strata scheme in which there are not more than two lots; and
(d)in any other case with the prior approval, expressed by resolution without dissent, of the strata company."
By-laws
The strata company's by-laws are the "standard" by-laws contained in Sch 1 and 2. By-law 14 in Sch 2 is as follows:
"14.Appearance of Lot
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".
Applicants' submissions
The applicants furnished copies of correspondence between the applicant's strata secretary and the respondent prior to the filing of the application. In addition to the matters referred to in the grounds, the applicant's secretary in that correspondence raised an issue regarding the safety of the units, given their proximity to the driveway, as well as "a potential noise issue for Unit 2" when the units are operated at night. This issue was described as a potential one once the units were no longer new. One of the letters sent by the applicant's secretary to the respondents indicated the author's view that the units changed the original appearance of the units and "are characteristically unsightly".
Responses to application
Pursuant to the provisions of the Act as they existed at the time the application was made, the Referee gave a notice which invited submissions to the application. Only the respondents made a submission, in the form of a letter to the then registrar and an enclosed report of minRisk Pty Ltd titled "Safety inspection of air-conditioning 1/19 Hayes Avenue, Yokine". According to this report, there is no significant safety‑related reason for requiring the relocation of the units; in particular, no realistic scenario existed which result in personal injury or damage to vehicles. The report also gives a favourable opinion in relation to the current noise levels of the units, stating that when turned on to full power, the units were found to produce very low levels and were "essentially inaudible" at the closest point of unit 2. The report indicated the noise ratings in the specifications for the units compared very favourably with other types of air‑conditioners, although it noted that no noise measurements were taken.
In the covering letter, one of the respondents, Ms White, submitted that the area containing the units had been re-landscaped, and in a few months, when the plants mature, the units will be barely visible from any direction. Difficulties with possible options of moving the units or re‑colouring were referred to.
Consideration
The terms of s 7(2) are quite clear. A proprietor of a lot is prohibited from causing or permitting, on the lot, any structure to be erected, or any alteration of a structural kind to a structure, without the prior approval, in the case of a strata scheme of more than two lots, expressed by resolution without dissent of the strata company. The respondents should have sought the approval of the strata company before they had the air‑conditioning units installed.
In an instance where a proprietor seeks approval for an erection or alteration of a structure and does not secure the required approval of the strata company, he or she may apply to the Tribunal under s 103F for an order dispensing with approval under s 7(2). The Tribunal may make an order on such an application if satisfied that the approval should have been given but was unreasonably withheld.
The applicants have brought this application under s 103G(1) of the Act. By s 103G(4), on the making of such an application, the Tribunal shall do both of the following:
•make a finding referred to in subsection 2 if satisfied that a breach of s 7(2) has occurred; and
•make an order referred to in subsection 3, unless satisfied that the work done will not cause any significant inconvenience or detriment to the other proprietors.
On the uncontroverted facts of the matter, I do make a finding under s 103G(2) that the respondents, as proprietor of lot 1, have committed a breach of s 7(2) by having affixed to the wall two air‑conditioning units.
Turning to s 103G(3), the question I have to consider is whether or not the installation of the units will cause any significant inconvenience or detriment to the other proprietors. Having regard to the parties' submissions, the photographic evidence and the minRisk report, I am not satisfied that permitting the units to remain would cause any significant inconvenience or detriment to the other proprietors. The placement of the units in a garden bed separated from the driveway by a low wall discounts in my view any reasonable prospect of inconvenience or lack of safety for users of the driveway, both vehicular and pedestrian. The respondents have also provided what I regard as an effective response to the claim regarding possible future noise problems in connection with the units in the form of the minRock report.
The applicants' reliance upon the prohibition under Sch 2 by‑law 14 is somewhat curious. My consideration of whether significant inconvenience or detriment to other proprietors arose has included considering the visual appearance of the units, although one might argue that significant inconvenience could never be established on the basis of aesthetics alone, and significant detriment only in the most extreme case. I am not satisfied that the appearance of the units is such that significant detriment is caused to the other proprietors.
I have also considered whether by‑law 14 has been contravened, and if so, any consequences of such breach apart from s 103G(1). Whether or not something visible from outside a lot is in keeping with the rest of the building when viewed from outside the lot is a question upon which different minds will vary. The only evidence of appearance are the photographs which have been provided, both in original form and reproduced in the minRisk report. Those photographs indicate two relatively small boxes, which, going on the photographs, appear white in colour (the minRock report refers to the colour as "neutral"), and a conduit from the back of the units traversing the wall housing electrical wiring and, perhaps, an air duct. The conduit is painted a red‑brown colour. The conduit is similar in dimensions and colour to another on the same wall and a wall of the adjacent unit, which I have assumed to be downpipes. The red-brown colour has also been employed on the guttering and some other trim of the units as seen in the photographs. In my view, the conduit is in keeping with the rest of the building.
This leaves the air-conditioning units themselves. Although there is a certain starkness of appearance given their colour, as the respondents have submitted, the plants shown in the photographs are relatively immature and will no doubt increasingly camouflage the white boxes over time. Although a breach of a by-law can give rise to a right to an order for settlement of a dispute or rectification of a complaint under s 83(1) of the Act, I think that a longer term view of whether something is or not in keeping with the rest of the building is appropriate. Adopting such a view, I do not consider that the air-conditioning units are out of keeping with the rest of building so as to justify such an order.
Order
The Tribunal orders that the application be dismissed.
I certify that this and the preceding seven pages comprise the reasons for decision of the Tribunal.
________________________
T CAREY
Member
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