The Owners Of Belltower Strata Plan - 33581 and Allen and ANOR

[2006] WASAT 7

THE OWNERS OF BELLTOWER STRATA PLAN - 33581 and ALLEN & ANOR [2006] WASAT 7

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 7
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:2410/2005	Heard:	DETERMINED ON THE PAPERS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	13/01/06
No of pages:	6	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
PDF Version

Parties:	THE OWNERS OF BELLTOWER STRATA PLAN - 33581 K ALLEN C ALLEN
Catchwords:	Application for order for removal of dog pursuant to by­laws and s 91 of the Strata Titles Act 1985 (WA) Requirement to be satisfied that a person is keeping an animal on a lot or common property in contravention of the by­laws
Legislation:	Strata Titles Act 1985 (WA), s 42(2), s 42(5), s 91
Case References:	Nil Nil
Orders	1.   The application is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : THE OWNERS OF BELLTOWER STRATA PLAN - 33581 and ALLEN & ANOR [2006] WASAT 7 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 13 JANUARY 2006 FILE NO/S : CC 2410 of 2005 BETWEEN : THE OWNERS OF BELLTOWER STRATA PLAN - 33581

Applicant

AND

K ALLEN
C ALLEN
Respondent

Catchwords:

Application for order for removal of dog pursuant to by­laws and s 91 of the Strata Titles Act 1985 (WA) - Requirement to be satisfied that a person is keeping an animal on a lot or common property in contravention of the by­laws

Legislation:

Strata Titles Act 1985 (WA), s 42(2), s 42(5), s 91

(Page 2)

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant : N/A
Respondent : N/A

Solicitors:

Applicant : N/A
Respondent : N/A

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

Nil

Case(s) also cited:

Nil


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant applied for an order pursuant to its by-laws and s 91 of the Strata Titles Act1985 (WA) (the ST Act).

2 Correspondence tendered in support of the application satisfied the Tribunal that the respondents had kept an American Cocker Spaniel dog in the strata lot known as Unit 16, Mill Point Road, South Perth. The strata by-law 19.5.1 prohibited the keeping of animals on a lot without the prior written consent of the manager. Consent had been sought but refused.

3 The respondents responded to the application advising that the dog had been removed from the lot. The applicant did not rebut this and the Tribunal therefore accepted that the animal had been removed. As the Tribunal could not in these circumstances be satisfied as required by s 91 that "a person is keeping an animal on a lot or common property" it had no alternative but to dismiss the application.

The application

4 On 2 May 2005 the applicant applied for an order pursuant to s 91 of the Strata Titles Act1985 (WA) (the ST Act). The named respondents were then John and Suellen Murdoch, the owners as joint tenants of lot 16 on Strata Plan 3351.

5 The application was supported by correspondence commencing on 22 February 2004 between the applicant's strata managers and Mr and Mrs Murdoch, their property letting real estate agents and the occupants of lot 16, later identified as K and C Allen.

6 The application was subsequently amended to substitute C and K Allen as respondents by which term they are now referred.

7 The correspondence reflects that it was not disputed that the respondents were keeping an American Cocker Spaniel in lot 16. Indeed, by letter dated 9 March 2005, the property letting agent applied on behalf of the respondents for consent to the dog being kept on the premises. By letter dated 14 March 2005, the applicant's strata managers advised that such consent was refused and repeated the requests made earlier for the dog to be removed. On 10 October 2005, following service upon the respondents of an order substituting them as the respondents in the

(Page 4)

application, they filed a response stating that the dog was no longer on the premises and had been returned to Melbourne in June 2005.

8 The applicant's strata manager responded to this information by informing the Tribunal by email on 16 November 2005:

" … I have been informed and instructed by the caretaker/owner that the other residents are not able to ascertain the removal of the dog from the unit. They wish NOT to withdraw the application, as they wish for the Tribunal to make a decision in regards to the removal of the dog."

The by-laws and the ST Act

9 The Strata Plan was registered on 21 October 1997. A notification of change of by-laws was registered on 17 April 1998 being "Notification G 768067". By such notification, the schedule 1 by-laws were amended by adding to the standard by laws applicable pursuant to s 42(2) of the ST Act, by-laws 6 to 22.

10 By-law 19.5.1 provides as follows:

"19.5.1 No animals, fishes or reptiles or birds of any kind shall be kept or caused or suffered to be kept on a lot without the prior written consent of the Manager which consent may be granted or withheld at its absolute discretion."

11 In this context, the reference to Manager must be taken to be the strata manager as defined under by-law 16.1 being "the person who is appointed as manager pursuant to the Strata Management Agreement from time to time".

12 By-law 20.1 expressly provides that a "Resident's Invitees, including without limiting the generality of that term, any lessee or licensee of a Lot proprietor, are bound by these Additional By-laws". Resident is defined by by-law 16.1 to mean a owner of a lot. In addition, s 42(5) of the ST Act provides that a lease of a lot or common property shall be deemed to contain an agreement by the lessee that he will comply with the by-laws in force.

13 Section 91 of the ST Act provides as follows.

"91. Order relating to animal kept contrary to by-laws

(Page 5)

Where, pursuant to an application by a strata company, a proprietor, an administrator, a person having an estate or interest in a lot or an occupier or other resident of a lot for an order under this section, the State Administrative Tribunal considers that a person is keeping an animal on a lot or common property in contravention of the by-laws, the State Administrative Tribunal may order that person to cause the animal to be removed from the parcel within a specified time and thereafter to be kept away from the parcel, unless the keeping of the animal on the lot or common property, as the case may be, is subsequently authorised by the by-laws."

Considerations

14 As already indicated, there is no issue that a dog was being kept on the premises. Permission was sought in March 2005 for the dog to be kept on the lot and the strata manager refused to give such consent.

15 The correspondence reflects that the dog had been kept on the premises from at least February 2004 and on the respondents' version until June 2005. As the applicant has not rebutted the respondents' assertion that the dog was removed in June 2005, and there is no evidence to suggest that the dog was kept on the premises after that date, we accept that to be the case. However, during this period, the dog was kept on lot 16 without consent and accordingly, the respondents were throughout this period in breach of the by-laws.

16 Section 91 of the ST Act requires that the Tribunal must be satisfied that a person is keeping an animal on a lot or common property as a prerequisite to the making of an order requiring that person to cause the animal to be removed from the parcel within the specified time and thereafter to be kept away from the parcel.

17 The legislation is expressed in the present tense and conveys that at the time of making the determination, the Tribunal must be so satisfied. On the evidence before the Tribunal, it is not possible to be satisfied that the respondents are, at the present time, keeping an animal on the premises in breach of the by-laws, indeed the only information before the Tribunal, establishes the contrary.

18 In these circumstances, the Tribunal has no alternative but to dismiss the application and we accordingly order as follows.

(Page 6)

Order

1. The application is dismissed.







I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.









___________________________________

MR C RAYMOND, SENIOR MEMBER