THE OWNERS OF 77 HUBERT STREET, EAST VICTORIA PARK - STRATA PLAN 18313 and KATZ
[2006] WASAT 262
•1 SEPTEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: THE OWNERS OF 77 HUBERT STREET, EAST VICTORIA PARK - STRATA PLAN 18313 and KATZ [2006] WASAT 262
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 1 SEPTEMBER 2006
FILE NO/S: CC 519 of 2006
BETWEEN: THE OWNERS OF 77 HUBERT STREET, EAST VICTORIA PARK - STRATA PLAN 18313
Applicant
AND
NATHAN KATZ
Respondent
Catchwords:
Strata Titles Act 1985 (WA) – Application for order that proprietor repair and maintain lot – Use of s 95 of State Administrative Tribunal Act 2004 (WA) – Failure to comply with decision constitutes offence
Legislation:
State Administrative Tribunal Act 2004 (WA), s 95, s 95.1, s 95(4)
Strata Titles Act 1985 (WA), s 42.2, s 83, Sch 1, by-law 1 (1)(b), Sch 2,
Result:
Application Granted
Category: B
Representation:
Counsel:
Applicant: Mr G Rodie (Acting as Agent)
Respondent: No Appearance
Solicitors:
Applicant: N/A
Respondent: No appearance
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied for an order against the respondent requiring the respondent to properly maintain the garden incorporated within the respondent's lot.
Despite written requests from the applicant's strata manager, the respondent had made no attempt to clean and tidy up the garden which compelled the applicant to apply to the State Administrative Tribunal. The standard by‑laws set out in Sch 1 to the Strata Titles Act 1985 (WA) applied and pursuant to by‑law 1 1(b) the respondent was obliged to maintain his lot. Photographic evidence satisfied the Tribunal that the respondent was in breach of the by‑law. The Tribunal therefore issued an appropriate order requiring the respondent to keep the garden in a neat and orderly condition. Having regard to the respondent's demonstrated intransigence, the Tribunal also declared that s 95 of the State Administrative Tribunal Act2004 (WA) applied so that any failure to comply with the Tribunal's order would constitute an offence for which a penalty of up to $10 000 applied.
The application and background
The applicant is the body corporate established upon registration of strata plan 18313 on 17 November 1989.
The parcel contained within strata plan 18313 comprises six brick and tile residential buildings. Apart from a common property driveway which enters the parcel from Hubert Street and runs approximately from north‑east to south‑west, the land surrounding each lot is constituted part of each respective lot.
The respondent is the registered proprietor of Lot 6 on the said strata plan, which is situated at the most northerly corner of the parcel. It has a wide frontage bordering Hubert Street, which is bordered by a wide brick paved walk‑way along the approximate eastern side of the house and a cement footpath running parallel with the walkway. There is a garden area between the building and the driveway on the approximately southern side of the building, and behind the building on the approximate western side, all of which is under vegetation. The cement footpath appears to demarcate the boundary of Lot 6 and the council verge. There is also a garden bed immediately adjacent the approximately eastern wall of the building which borders the walkway.
There being no notation of change of by‑laws, the standard Sch 1 and Sch 2 by‑laws to the Strata Titles Act 1985 (WA) (ST Act) apply by virtue of s 42(2) of the ST Act.
Schedule 1 by‑law 1(1)(b) provides that a proprietor shall repair and maintain his lot, and keep it in a state of good repair, reasonable wear and tear, and damage by fire, storm, tempest or act of God excepted.
On 8 September 2005, the applicant's strata manager wrote to the respondent advising that the strata council was not happy with the way in which the respondent was maintaining the front yard, and requesting his co‑operation to remedy the situation. On 18 November 2005, the strata manager wrote a further letter to the respondent advising that the owners were disappointed at the "total lack of co-operation in maintaining your gardens" and advising that if the matter was not addressed in the next two weeks, there would be no option but to take the appropriate action and have the gardens cleared and tidied up.
On 4 April 2006, the applicant lodged the application with the Tribunal seeking orders requiring compliance with the respondent's obligations under Sch 1 by‑law 1(b). The grounds for the application reflect that in addition to the above correspondence, the matter had been raised at previous Annual General Meetings, and in particular the last Annual General Meeting held on 11 July 2005.
The respondent has failed to respond in any way to the application and did not attend a directions hearing held on 27 April 2006. The respondent has not complied with one of the orders made at that hearing, requiring the respondent to file and serve any response on or before 11 May 2006.
At the hearing on 27 April 2006, the application was also amended to clearly express the orders sought by the applicant that within 28 days of the date of the order the respondent:
(a) neatly trim the lawn on the western (sic approximately northern) side of the driveway adjacent to Lot 6, and neatly trim the shrubbery and remove all dead foliage from the lot bordering the driveway;
(b) neatly trim the shrubbery and remove all dead foliage from:
(i)the area between the northern (sic approximately eastern) side of the brick‑paved walkway on the northern (sic approximately eastern) side of the lot and a cement foot‑path;
(ii)the area between the northern (sic approximately eastern) wall of the building on the lot and the brick‑paved walkway;
all so as to leave a straight clearly defined border with the drive‑way, brick‑paved walkway and the cement path; and thereafter maintain the areas in a neat and orderly condition.
The Tribunal assisted the applicant in formulating the amended order sought. After further consideration of the strata plan, the areas concerned are better described by reference to the approximate compass points which the Tribunal has added above in parenthesis.
The applicant has provided photographic evidence depicting the state of the garden within Lot 6 and within the areas described in the amended order. The areas consist generally of shrubbery and bushes. The garden between the northern face of the building and the brick‑paved walkway is a flower garden. In all areas there is a considerable amount of dead and decaying leaves and foliage. The area between the approximately northern side of the driveway and the approximately southern side of the building consists of shrubbery and lawn. The grass lawn is unkept and invades the driveway.
Considerations
The respondent is obliged to comply with the Sch 1 by‑law 1(1)(b) and is therefore bound to maintain the garden areas.
The respondent has failed to co‑operate with the applicant and is in breach of the above by‑law. In the premises the applicant is entitled to the order as sought.
Based on the respondent's conduct to date, it is desirable that the respondent be placed under compulsion to comply with the Tribunal's order in the manner contemplated by s 95 of the State Administrative Tribunal Act 2004 (WA). The Tribunal will declare that the section applies and as a result, subject to service of a copy of the decision with a copy of s 95, a failure to comply with the decision will constitute an offence for which a penalty of up to $10 000 may be imposed.
Order
For the above reasons the Tribunal orders as follows:
(1)On or before 29 September 2006 [nb: at the time of publication the date of compliance was correct, however due to an error in the order, an amended order was issued on 30 October 2006, with an amended compliance date of 23 October 2006] the respondent must:
(a)neatly trim the lawn on the approximately northern side of the driveway adjacent to Lot 6, neatly trim the shrubbery and remove all dead foliage from the lot bordering the drive‑way;
(b)neatly trim the shrubbery and remove all dead foliage from:
(i)the area between the approximately eastern side of the brick-paved walkway on the approximately eastern side of the lot and the cement footpath;
(ii)the area between the approximately eastern wall of the building on the lot and the brick‑paved walkway;
all so as to leave a straight clearly defined border with the drive‑way, brick‑paved walkway and the cement path; and thereafter maintain the areas in a neat and orderly condition.
(2)It is declared that s 95(1) of the State Administrative Tribunal Act 2004 (WA) applies to this decision.
(3)The applicant is directed to effect personal service on the respondent of a copy of this decision, duly certified in accordance with s 95(4) of the State Administrative Tribunal Act 2004 (WA) together with a copy of s 95 of that Act.
I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
| State Administrative Tribunal Act 2004 |
| Valid from: 7 April 2006 to Current |
| Part 4-Tribunals procedures |
| Division 7-Offences |
95.Failing to comply with decision
(1)A person who fails to comply with a decision of the Tribunal commits an offence.
Penalty: $10 000.
(2)Subsection (1) does not apply if, or to the extent that, the decision is a monetary order.
(3)Subsection (1) does not apply in relation to a decision unless -
(a)the Tribunal, in the decision, declares that subsection (1) applies; or
(b)after a person fails to comply with the decision, the Tribunal makes an order declaring that subsection (1) applies and the failure continues after notice of that order is served on the person.
(4)If the Tribunal made the decision without giving a person an opportunity to be heard, subsection (1) only applies to that person on the person being given personally or in accordance with subsection (5) -
(a)a copy of the decision that a judicial member or the executive officer has certified to be a true copy; and
(b)a copy of this section.
(5)If the Tribunal is satisfied that it is not possible or appropriate for a person to be personally given the documents referred to in subsection (4), the Tribunal may specify another method for service of the documents on the person under that subsection.
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