THE OWNERS OF GLOUCESTER COURT, ORELIA - STRATA PLAN 34649 and GARSIDE
[2006] WASAT 239
•29 AUGUST 2006
THE OWNERS OF GLOUCESTER COURT, ORELIA - STRATA PLAN 34649 and GARSIDE [2006] WASAT 239
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 239 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | STR:128/2004 | DETERMINED ON THE PAPERS | |
| Coram: | MR M SPILLANE (MEMBER) | 29/08/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application to be dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF GLOUCESTER COURT, ORELIA - STRATA PLAN 34649 RICHARD GARSIDE |
Catchwords: | Strata titles Installation of wooden bi-fold doors Alteration to lot Appearance of lot visible from outside of the lot |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 7, s 11, s 60(2), s 167 State Administrative Tribunal Regulations 2004 (WA), reg 28 Strata Titles Act 1985 (WA), s3, s 7(2), s 7(5), s 7(6), s 83, s 83(1), s 103F, s 103G, s 103G(1), s 103G(2), Sch 1, Sch 2, Sch 2(13), Sch 2(14) Strata Titles General Regulations 1996 (WA), reg 32 |
Case References: | Nil Nil |
Orders | The application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : THE OWNERS OF GLOUCESTER COURT, ORELIA - STRATA PLAN 34649 and GARSIDE [2006] WASAT 239 MEMBER : MR M SPILLANE (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 29 AUGUST 2006 FILE NO/S : STR 128 of 2004 BETWEEN : THE OWNERS OF GLOUCESTER COURT, ORELIA - STRATA PLAN 34649
- Applicants
AND
RICHARD GARSIDE
Respondent
Catchwords:
Strata titles - Installation of wooden bi-fold doors - Alteration to lot - Appearance of lot visible from outside of the lot
Legislation:
State Administrative Tribunal Act 2004 (WA), s 7, s 11, s 60(2), s 167
State Administrative Tribunal Regulations 2004 (WA), reg 28
Strata Titles Act 1985 (WA), s3, s 7(2), s 7(5), s 7(6), s 83, s 83(1), s 103F, s 103G, s 103G(1), s 103G(2), Sch 1, Sch 2, Sch 2(13), Sch 2(14)
(Page 2)
Strata Titles General Regulations 1996 (WA), reg 32
Result:
Application to be dismissed
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Self-represented
Solicitors:
Applicants : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The owners of strata plan 34649 sought orders from the Tribunal that wooden bi-fold doors installed by the respondent on Lot 18 be removed.
2 The Tribunal found that as the wooden bi-fold doors are not easily visible from outside the lot, that the application be dismissed.
Application transferred to the State Administrative Tribunal
3 The applicants are the owners of strata plan 34649. This application was originally made to the Strata Titles Referee (the Referee). On 1 January 2005, the State Administrative Tribunal (the Tribunal) commenced pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA) (the 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.
4 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.
Parties
5 The applicant is the strata company in respect of strata plan 34649 (the strata plan). The respondent is the proprietor of Lot 18 on the strata plan.
Parcel
6 The parcel is situated at 4 Canham Way, Orelia, Western Australia. Lot 18 is one of 24 lots. The parcel comprises of two three-storey residential brick and iron buildings each comprising of 12 individual units respectively therefore totalling 24 residential units. Lot 18 is located on the top storey. The strata company's original application was seeking orders pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (the ST Act). The application was subsequently amended on 7 July 2005 indicating that the application was to be based on s 103G of the ST Act. The original application was in the following terms:
"At the Annual General Meeting held on 4 October 2003 the proprietor of Lot 18 was granted approval to relocate a sliding door. The owner has chosen to install bi-fold doors, whilst attractive, the strata company feels that the doors affect the
(Page 4)
- appearance of the rest of the building. The owner has been asked to remove the doors and replace them with what was approved."
7 The grounds in support of the application referred to Annual General Meeting (AGM) minutes of 4 October 2003, Extraordinary General Meeting (EGM) minutes of 9 March 2004 and letters sent to Mr Garside.
Findings of fact
8 The minutes of the AGM of 4 October 2003 indicate that the respondent requested permission to relocate the sliding doors on the verandah of his unit. The minutes reveal that the strata company indicated it did not object, on the proviso that the respondent obtain an engineer's report prior to the work being carried out. The installation of the wooden bi-fold doors was then the subject of discussion at an EGM of the strata company held on 9 March 2004, and it should be noted that the respondent was unable to attend that meeting due to work commitments, but the meeting was not rescheduled. The respondent had nominated Mrs Brazell, the owner of unit 21 as his proxy. The minutes of the EGM held on 9 March 2004 suggest that after approval had been granted to the respondent to relocate his glass sliding door and frame, he was unable to obtain the correct size door and applied to the strata council for permission to change the aluminium frames to a wooden bi-fold glass door. According to the minutes, the strata council approved the modification but has since been advised that the approval should have been granted at a general meeting. Accordingly, the respondent was requesting retrospective approval for the modification. A proposal was put to that meeting to request the respondent remove the wooden bi-fold doors and replace it with aluminium sliding glass doors and if that did not occur for the matter to be referred to the Strata Titles Referee. It is not clear from the minutes how many of the lot owners were for and against that proposal.
9 Submissions have been filed in respect to the installation of the wooden bi-fold doors, and are summarised as follows:
a) Mr and Mrs D Ryan – owners of Lot 10 – filed submissions indicating that there were against the wooden bi-fold doors remaining. Mr and Mrs Ryan have indicated that they purchased their property on the basis that the general look of the building was well maintained and uniform and considered that the wooden bi-fold doors as
- opposed to aluminium bi-fold doors leading to the balcony detracted from uniformity.
- b) Deon and Peter Harris – owners of Lot 22 – filed submissions against the proposal for the wooden bi-fold doors to remain. Again, like the Ryans, they suggested, that the wooden doors were not in keeping with the appearance of the rest of the units and were concerned that allowing the wooden bi-fold doors to remain would be setting a precedent for owners to make unauthorised changes in the future and could lead to the uniformity of the complex being compromised.
c) Desmond J Nattress – filed a submission that he would prefer the alteration to the door was carried out in a matter agreed at the AGM on 4 October 2003.
d) GA and RA Heuchan – owners of Lot 8 – indicated that they were happy to abide the consensus of all owners.
e) GP Brazell – owner of Lot 21 – supported the installation of the wooden bi-fold doors and suggested that the modification did not detract from the overall uniformity of the building.
f) Richard Van Provone – owner of Lot 16 – indicated that he had no objection to the modification.
g) Karen Arnold – indicated that she was not in agreement to the modification, but did not object to a fold back door if it was a silver aluminium frame. It is understood that Ms Arnold is no longer a lot owner.
h) Mrs DG Staines – owner of Lot 2 – was supportive of the modification.
i) Dean Cooper - was supportive of the modification.
10 As can be seen from above, the support for and against the modification was evenly divided. As a result, the Tribunal thought it necessary to undertake a site visit. On the site visit the Tribunal viewed the relevant lot from the ground. The development is a three-storey high development and the relevant balcony is on the top floor. The balcony has a steel mesh balustrading and a roof over the balcony. From the ground floor it is extremely difficult to see the bi-fold doors. It is only when viewed from a considerable distance that it can be perceived that Lot 18 has wooden bi-fold doors rather than an aluminium window overlooking the balcony.
(Page 6)
Consideration
11 This application is made pursuant to s 103G of the ST Act. Section 103G(1) and (2) provides as follows:
"(1) An application to the State Administrative Tribunal for a finding and an order under this section may be made ¾
(a) …
(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 section 7(2)."
12 Section 7(2) of the ST Act states:
"(2) The proprietor of a lot shall not cause or permit ¾
(a) any structure to be erected; or
(b) any alteration of a structural kind to, or extension of, a structure,
on his lot except ¾
(c) …
(d) in any other case with the prior approval, expressed by resolution without dissent, of the strata company."
(Page 7)
- "32. Improvements prescribed for purposes of section 7(6)
The improvements prescribed for the purposes of the definition of 'structure' in section 7(6) are any dwelling, shop, factory, commercial premises, garage, carport or other building or improvement ¾
(a) the construction or erection of which is required to be approved by the local government or any other authority; or
(b) the area of which is to be taken into account for the purposes of determining the plot ratio restrictions or open space requirements for the lot under section 7A,
whether free standing or annexed to or incorporated with any existing building on the lot."
15 However, this application was originally made pursuant to s 83 of the ST Act. That provision states that this Tribunal, on the application of the strata company, may make an order for the settlement of a dispute in respect to the duty or function conferred or imposed by the Act or by the by-laws. The strata company's by-laws contain the "standard" by-laws contained in Sch 1 and 2 of the ST Act. The relevant by-laws are by-laws 13 and 14 which read as follows:
"13. Notice of alteration to lot
A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by-laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
(Page 8)
- 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."
17 It appears in this case that the respondent gave appropriate notice to the strata company in respect to the alterations to be made to the lot, and understood he had received the relevant approval to go from using an aluminium sliding door to a wooden bi-fold door when he obtained the strata council's approval. However, there is some issue as to whether or not the strata council was able to provide that approval without it being voted upon at a general meeting of the strata company. In those circumstances it is not clear that there has been any breach of by-law 13.
18 That leaves the question of whether or not the modifications carried out by the respondent are in breach of by-law 14. The important words within that by-law are that a resident of a lot is not to maintain within the lot anything that is visible outside the lot and that when viewed from outside the lot, is not in keeping with the rest of the building. As referred to earlier, support for the modifications was evenly divided amongst the other owners and following a site visit by the Tribunal, the Tribunal is not satisfied that this ground has been made out.
19 The changes made to modify Lot 18 were to remove an aluminium window and replace it with a wooden bi-fold door. The wooden bi-fold door leads on to a balcony which has a roof upon it and a cream coloured metal screen balustrading. The lot is on the third storey. When standing close to the building it is extremely difficult to see into the balcony area of Lot 18 from the ground level. It is not unless the balcony area is viewed from a considerable distance from the building that the wooden bi-fold doors are undiscernable.
20 The Tribunal is not satisfied therefore, that the modification is in breach of by-law 14. The change has been made to an area that fronts on to one of the top balconies of the building which overlooks a council reserve and the Tribunal is not satisfied that the modification, when viewed from outside the lot, is not in keeping with the rest of the building.
(Page 9)
Order
21 The Tribunal orders that the application be dismissed.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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