THE OWNERS OF DIANELLA COURT STRATA PLAN 14961 and SUBASIC

Case •

[2023] WASAT 25

•

29 MARCH 2023

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   THE OWNERS OF DIANELLA COURT STRATA PLAN 14961 and SUBASIC [2023] WASAT 25

MEMBER:   MS A KING, MEMBER

HEARD:   29 MARCH 2023

DELIVERED          :   29 MARCH 2023

PUBLISHED           :   31 MARCH 2023

FILE NO/S:   CC 1786 of 2022

BETWEEN:   THE OWNERS OF DIANELLA COURT STRATA PLAN 14961

Applicant

AND

SUNNY SUBASIC

Respondent


Catchwords:

Strata Titles Act 1985 (WA) (as it applies from 1 May 2020) - Carport - Breach of by-laws, Garbage, Common property - Written notice requirements for an alleged contravention of scheme by-laws - Enforcement of scheme by-laws - Removal of garbage from part of lot - Resolution of scheme dispute - Tribunal proceedings - Discretion of Tribunal to make orders - Turns on own facts

Legislation:

Licensed Surveyors Act 1909 (WA)
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 42(2), s 47, s 47(1)(b), s 47(2), s 47(2)(d), s 47(5), s 112, Sch 2, Sch 5
Strata Titles Amendment Act 2018 (WA)

Result:

Application allowed in part

Category:    B

Representation:

Counsel:

Applicant : In Person
Respondent : Non-attendance

Solicitors:

Applicant : N/A
Respondent : N/A

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

Caputi and Pado [2005] WASAT 146

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally on 29 March 2023.  The following reasons comprise the reasons that were delivered orally, subject only to minor editing to improve clarity of expression and setting out)

Introduction

  1. The Owners of 'Dianella Court' Strata Plan 14961 (strata plan) situated at 62 Smith Street, Dianella WA 6062, represented by Shane Alex Binns the owner of Lot 8 of Dianella Court (the applicant) seek:

    (a)to enforce the scheme by-laws, in particular, Sch 2 by-law 11(c) and by-law 14; and

    (b)to have the owner of Lot 2 remove garbage stored within the carport and rear yard visible from the common driveway.

  2. The respondent is Ms Sunny Subasic who is the owner of Lot 2, (respondent).  

  3. Dianella Court is described on the strata plan as a brick and tile residential complex comprising of 10 units erected on that portion of swan location 1141 shown as Lot 120 on diagram 71097.

  4. The relevant strata title scheme was created by the registration of strata plan 14961 on 15 June 1987 (strata plan) under the Strata Titles Act 1966 (WA). That Act was repealed and replaced by the Strata Titles Act 1985 (WA) (ST Act). The ST Act was significantly amended on 1 May 2020. In these reasons all references are to the ST Act as it applies from 1 May 2020, unless expressly stated otherwise. The Sch 2 by-laws referred to are the 'default by-laws' under s 42(2) of the ST Act.

  5. The set of documents that define the parcel of land and building subject to the ST Act includes the strata plan which defines the lot boundaries, the relevant notices and the by­laws, which together are referred to as the strata scheme (strata scheme).

The history of the matter

  1. The applicant filed an application with the Tribunal on 5 December 2022.

  2. The matter was listed for a directions hearing by the Tribunal on 20 January 2023, at which time Senior Member O'Sullivan made orders requiring the respondent to file with the Tribunal and give to the applicant:

    (a)a written response to the application; and

    (b)copies of all documents on which the respondent proposes to rely.

  3. The respondent failed to attend the hearing and failed to comply with the orders made.

  4. By order of the Tribunal dated 21 February 2023, the matter was listed for final hearing on 29 March 2023.  A copy of the order was sent to the respondent via email and registered post with a receipt.

  5. The Tribunal was able to ascertain that the email sent to the respondent enclosing the order was opened by a person with access to the email account of the respondent on 22 February 2023 at 8.05 pm.  Australia Post advised the Tribunal that the relevant article (the letter enclosing the order of the Tribunal) was deemed by Australia Post as 'lost in transit'.

  6. At the time of the hearing Joshua Gentili (the strata manager) gave evidence that on Thursday 23 March 2023 he placed a letter under the door of the respondent including a copy of the order of the Tribunal made on 21 February 2023.  He returned on Monday 27 March 2023 to see if the letter had been received and noted that it had been taken.

  7. Having taken all of the evidence into consideration the Tribunal was satisfied that the respondent had notice of the hearing and proceeded to hear and determine the matter in her absence.

The applicant's case

  1. The applicant asserts that the respondent has breached the Sch 2 -Conduct by-laws[1] in particular, by-law 11(c) and by-law 14, over approximately, a 12 to 18-month period, by having excessive items in the carport and spread out in the driveway and by the side of her lot and in the rear yard.  It was submitted that orders sought in relation to the rear yard were sought only insofar as items that are visible from outside the lot.

    [1] ST Act, Sch 2 - Conduct by-laws, by-law 11 and by-law 14.

  2. The items are garbage and have adversely impacted the owners and occupiers of other lots of the strata scheme who have concerns for the comfort of other owners and concerns around hygiene.  It is also alleged that the garbage is impacting the saleability of Lot 8.

The respondent's case

  1. The respondent did not appear at the hearing.  The strata manager gave evidence that he spoke to the respondent between 29 August 2022 and 4 November 2022 in relation to the matter, requesting that she remove the garbage.  The respondent denied that the excess items amounted to garbage and added that she was attempting to sell many of the items and stated it was not easy to get rid of them, as she did not have the time.  The strata manager warned her that there was a possibility that an application would be made to the State Administrative Tribunal if she did not dispose of the items.

Decision of the Tribunal

  1. For the reasons that follow the application is successful and orders are made that require the respondent to remove the garbage within 12 weeks of the date of this order.  The application is otherwise dismissed.

Relevant procedural history and evidence

  1. The applicant's commenced proceedings (matter CC 1786 of 2022) by an application lodged on 5 December 2022 under s 47(1)(b) of the ST Act alleging the respondent contravened Sch 2 by-law 11(c) and by­law 14 and seek that garbage be removed from the lot of Unit 2.

  2. The matter was listed for a direction hearing on 20 January 2023 at which time Senior Member O'Sullivan made programming orders and listed it for further directions on 21 February 2023.  On that day the matter was listed for final hearing and Mr Shane Binns (the owner of Lot 8) was given leave to give evidence at the final hearing via teleconference.

  3. At the final hearing Mr Binns, made submissions on behalf of the applicant and gave evidence at the hearing.

  4. The Tribunal marked the following documents, to which the Tribunal had regard to, for the purpose of determining the proceedings, as:  Exhibit 1, Hearing Book for CC 1786 of 2022.

    a)The application dated 5 December 2022;[2]

    [2] Exihbit 1 page 1.

    b)Strata Plan 14961;[3]

    [3] Exihibit 1 page 23 and 'Title list' page 30.

    c)Letter of Shane Binns dated 15 September 2022;[4]

    [4] Exhibit 1 page 31.

    d)Minutes of the council of owners dated 21 November;[5]

    [5] Exhibit 1 page 4.

    e)Written notice of breach of strata by-laws addressed to Ms Subasic dated 1 April 2021 which includes a photograph of the garbage in the carport of Unit 2 alleging a breach of by­law 11(c) and by-law14;[6]

    [6] Exhibit 1 page 32.

    f)Written notice of breach of strata by laws addressed to Ms Subasic dated 27 June 2022 alleging a breach of by-law 11(c) and by­law 14.  The notice includes three photographs of the garbage in the carport and side of Unit 2;[7]

    [7] Exhibit 1page 34.

    g)Written notice of breach of strata by laws addressed to Ms Subasic dated 18 July 2022 alleging a breach of by-law 11(c) and by-law 14.  The notice includes photographs of the garbage in the carport of Unit 2;[8]

    [8] Exhibit 1 page 37.

    h)Written notice of breach of strata by laws addressed to Ms Subasic dated 29 August 2022 alleging a breach of by­law 11(c) and by-law 14.   The notice includes photographs of the garbage in the carport and side of Unit 2;[9]

    [9] Exhibit 1 page 40.

    i)Written notice of breach of strata by-law 11(c) and by-law 14, addressed to Ms Subasic dated 11 November 2022. The notice includes all previous notices and photographs as outlined above and a copy of Schedule 2 - Explanation of effect of s 47(2)(d) of the ST Act;[10] and

    [10] Exhibit 1, page 43.

    j)Email of the owner of Lot 1 dated 26 March 2023 attaching photographs taken on 25 March 2023 of the carport and rear yard of Lot 2 (Exhibit 2).

Issues to be determined

Issue 1:         Are there excess items on Lot 2 and do they fall within the definition of 'garbage'?

As to breach of by-law 11(c) - Garbage disposal

Issue 2:        Has the owner of Lot 2 failed to ensure, that the health, hygiene and comfort of another owner or occupier of a lot is not adversely affected by their disposal of garbage?  What is the meaning of garbage?

Issue 3:        Has the respondent breached by-law 11(c)?

As to breach of by-law 14 - Appearance of lot

Issue 4:        Did the strata company provide written consent to maintain within the lot the unwanted items?  If not, is it visible from the outside of the lot and not in keeping with the rest of the building?

Issue 5:        Has the respondent breached by-law 14?

Issue 6: If the Tribunal is satisfied that there has been a breach of by-law 11(c) and/or by-law 14, what order should the Tribunal make under s 47(5) of the ST Act?

  1. I now set out the regulatory framework and factual background against which the consideration of the above issues must be made.

Regulatory framework

ST Act

  1. Major amendments to the ST Act came into operation on 1 May 2020 under the Strata Titles Amendment Act 2018 (WA) (ST Amendment Act). However, the coming into operation of the ST Act does not affect the continued existence of the strata scheme or the strata company, amongst other things (Sch 5 by-law 2(1) of the ST Act). The applicant's filed their application with the Tribunal after 1 May 2020. This means that the provisions of the ST Act, as they are after the amendments, apply to the determination of these applications.

By-Laws

  1. Schedule 2 sets out the conduct by-laws and are the statutory 'default' by­laws under the ST Act.

    11.Garbage disposal

    An owner or occupier of a lot must —

    (a)maintain within their lot, or on such part of the common property as may be authorised by the strata company, in clean and dry condition and adequately covered, a receptacle for garbage;

    (b)comply with all local laws relating to the disposal of garbage;

    (c)ensure that the health, hygiene and comfort of an owner or occupier of any other lot is not adversely affected by their disposal of garbage.

    14.Appearance of lot

    An owner or occupier of a lot must 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.

Contravention of scheme by-laws

  1. The strata company has the function of complying with the scheme by­laws and enforcing compliance with those by-laws by others to whom they apply (s 112 of the ST Act).

  2. Section 47 of the ST Act provides for the enforcement of scheme by­laws:

    (1)A strata company may —

    (a)give a written notice to a person alleged to have contravened the scheme by‑laws; or

    (b)apply to the Tribunal under this section for an order enforcing scheme by‑laws if —

    (i)the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by‑laws; or

    (ii)the person has contravened the particular scheme by‑law on at least 3 separate occasions; or

    (iii)the person has been given notice under paragraph (a) and has contravened the notice[.]

  3. Where a written notice of the contravention of a scheme by-law is given, the requirements that must be complied with are set out in s 47(2) of the ST Act as follows:

    (2)A written notice given by a strata company to a person alleged to have contravened the scheme by-laws must —

    (a)specify the particular scheme by-law that is alleged to have been contravened; and

    (b)specify the particular facts relied on as evidence of the contravention; and

    (c)specify the action that must be taken or refrained from being taken in order to avoid a continuing or further contravention of the particular scheme by-law; and

    (d)contain an explanation of the effect of this section in terms set out in the regulations.

  4. In this case the applicant seeks orders under s 47(5) of the ST Act:

    (5)The Tribunal may, if satisfied that a person has contravened the scheme by‑laws, by order require the person to do 1 or more of the following —

    (a)pay a specified amount to the strata company by way of penalty for the contravention;

    (b)take specified action within a period stated in the order to remedy the contravention or prevent further contraventions;

    (c)refrain from taking specified action to prevent further contraventions.

Factual background

  1. The key facts are not in any real dispute.  I make the following findings of fact (in date order where relevant but otherwise in no order of importance) which are relevant to the issues to be determined in these proceedings:

    a)The carports for each unit are clearly identified on the strata plan.

    b)Access to the carports is by a shared driveway which is on common property.

    c)The owner of Lot 2 has excessive items in her carport and by the side of her unit and at the rear of her lot.

    d)Written notice of an alleged contravention of a scheme by-law was given to the owner of Lot 2 on five separate occasions.

    e)The owner of Lot 2 has not removed the excess items in accordance with the notices.

    f)The written notice dated 11 November 2022 is the only notice that included an explanation of the effect of s 47 as required by s 47(2)(d) of the Act.

    g)The notice dated 11 November 2022 alleges a breach of by­law 11(c) and by-law 14 which are set out in the notice, attaches all previous notices and photographs of the garbage relied upon and describes the nature of the contravention as:

    1)Rubbish maintained in your carport still remains despite previous notice of breach of Strata Company by-laws.

    You are required to immediately remedy the contravention by:

    (1)Remove all rubbish that is stored within the carport and rear yard to ensure the health, hygiene, and comfort of occupiers of other lots are not adversely affected.

  2. The Tribunal is satisfied that the written notice dated 11 November 2022 meets the requirement of s 47(2) of the Act.

Main contentions

  1. The applicant's main contentions may be summarised as follows:

    a)Despite numerous communications with the owner of Lot 2 the garbage in her lot particularly her carport remains.  It has been an ongoing concern and the garbage has never totally been removed.  The requests made of the owner of Lot 2 was to remove all garbage that is within the carport and variously in the rear yard, to ensure that the health, hygiene, and comfort of occupiers of other lots, are not adversely affected.  About a week ago the owner of Lot 1 emailed the applicant with recent photographs which depict significant amount of garbage in the carport of Lot 2 and around the side and in the rear yard.  The owner of lot 1 is the direct neighbour of Lot 2.  As the garbage has not been removed the owners are continuing to be adversely affected and order are sought for the removal of the garbage.  The applicant clarified that it was only garbage that is visible from outside the lot which the applicant is seeking to have removed.

  2. The respondent's main contentions (as advanced by the strata manager) may be summarised as follows:

    a)The items are not 'garbage' and the respondent needs time to get rid of the items as it is not easy.

Issues to be decided

Issue 1:  Are there excess items on Lot 2 and do they fall within the definition of garbage within the meaning of by-law 11(c)?

  1. Dianella Court Strata Plan 14961 was registered on 12 December 1978.  The surveyor registered under the Licensed Surveyors Act 1909 (WA), as amended, certified that:

    (a)each lot that is not wholly within a building shown on the plan is within the external surface boundaries of the parcel; and either

    (b)each building referred to above is within the external surface boundaries of the parcel.

  2. Sheet 1 of the strata plan 14961 depicts the ground floor and notes:

    Strata of the parts of lots external to the building extends between 2 metres below and 5 metres above the upper surface of the ground floor of the respective adjoining lots except where covered.

  3. The ground floor plan indicates the boundaries for Lot 2 and states the total measurement of the lot as 113m2.  It allocates 66m2 for the building, 34m2 for the rear aspect and 13m2 for the carport.  The void around the side of the house between Lot 1 and Lot 2 is not identified as forming part of the lot.

  4. The Tribunal finds that excess items which are in the carport and rear yard are part of the lot and finds that the void at the side of the unit is part of the common property of the scheme. 

Do the items fall within the definition of garbage as referred to in by­law 11(c)?

  1. The applicant submitted that he visited the property at a time when he was attempting to sell his unit in 2021 and noted the items give off an odour consistent with being damp.  They look like items that should be disposed off and appear to be large amounts of household waste.

  2. I accept the evidence of the strata manager and accept that the respondent denies they are garbage however is seeking to get rid of the items.

  3. Garbage is defined by the Australia's Macquarie National Dictionary[11] as:

    Anything worthless, undesirable or unnecessary.

    [11] Fourth Edition.  The University of Sydney, NSW 2006.

  4. I accept that the items are unnecessary and find that the items fall within the definition of 'garbage'.

By-law 11(c) - Garbage disposal

Issue 2:  Has the owner of Lot 2 failed to ensure, that the health, hygiene and comfort of another owner or occupier of a lot is not adversely affected by their disposal of garbage?

  1. The applicant did not lodge any evidence that the health of any of the owners was being affected by the garbage.

  2. As to the comfort of other lot owners it was submitted by the applicant that the garbage was unsightly.

  3. It was also submitted that having the garbage stored as depicted in the photographs[12] gives rise to hygiene concerns.

    [12] Exhibit 1, pages 33 to 42 and Exhibit 2.

  4. Shane Binns visited the property between January and April 2021 and observed cockroaches.  He is concerned about other insects, or the like, being attracted to the garbage.

  5. The Australian Oxford Dictionary[13] includes in its definition of 'hygiene' a set of principles conducive to maintaining health or the prevention of disease especially through cleanliness.

    [13] Second edition, Oxford University Press.

  6. The Tribunal takes note of information publicly available on websites for Western Australia which demonstrate that placing garbage around ones house may attract vermin and can be a risk factor for disease.[14]

    [14] WA Health Guidance on pest control 15 January 2021 at http:/>

    The Tribunal is satisfied the placement of garbage around Lot 2 noting the proximity of Lot 2 to other lots, is a risk to the hygiene of other lots.  

  1. In the matter of Caputi and Pado[15] the Tribunal member considered the placement of a rubbish bin underneath the window of another lot owner a nuisance.  It was accepted by the Tribunal member in that case that garbage adversely affected the comfort of another lot owner.

    [15] Caputi and Pado [2005] WASAT 146.

  2. The Tribunal noting from the photographs the significant volume of the garbage in Lot 2 being much more than one rubbish bin and adopting the same reasoning, accepts that the garbage adversely affects the comfort of other lot owners.

Issue 3:  Has the respondent breached by-law 11(c)?

  1. For the reasons set out above, the Tribunal is satisfied that the respondent has breached by-law 11(c).

By-law 14 - Appearance of lot

Issue 4:  did the strata company provide written consent to maintain within the lot the unwanted items?  If not then, is it visible from the outside of the lot and not in keeping with the rest of the building?

  1. There was no evidence provided to the Tribunal that the strata company provided written consent to maintain the garbage within the lot.  As there was no evidence to the contrary, I find that no written consent was provided.

  2. The photographs depict that the garbage is clearly visible from the outside of the lot and not in keeping with the rest of the building.

  3. The applicant submitted that the garbage has impacted the aesthetics of 'Dianella Court'.  The carport is for keeping cars in and not for storing garbage.

  4. I am satisfied that the garbage is visible from outside the lot, and it amounts to what is commonly described as 'an eyesore'.  I am satisfied that it is not in keeping with the rest of the building.

Issue 5:  has the respondent breached by-law 14?

  1. For the reasons set out above,  I am satisfied that maintaining the garbage within the lot amounts to a breach of by-law 14.

Issue 6: if the Tribunal is satisfied that there has been a breach of scheme by­law 11 and/or by-law 14, what order should the Tribunal make under s 47(5) of the ST Act?

  1. I am satisfied that in all of the circumstances the Tribunal should make the order sought.

Orders

The Tribunal orders:

1.Pursuant to s 47(5)(b) of the Strata Titles Act 1985 (WA) the respondent is to remove the garbage within the carport and rear yard of Lot 2 visible from the common driveway, within 12 weeks of the date of this order and by no later than 5.00 pm on Wednesday 21 June 2023.

2.The application is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS A King, MEMBER

31 MARCH 2023


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CAPUTI and PADO [2005] WASAT 146