The Owners of Habitat 74 - Strata Plan 222 and Betteridge and Ors
[2005] WASAT 25
•11 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA), s 83(1)
CITATION: THE OWNERS OF HABITAT 74 - STRATA PLAN 222 and BETTERIDGE & ORS [2005] WASAT 25
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: DETERMINED ON PAPERS
DELIVERED : 11 MARCH 2005
FILE NO/S: ST 82 of 2004
BETWEEN: THE OWNERS OF HABITAT 74 - STRATA PLAN 222
Applicant
AND
CHRISTOPHER BETTERIDGE
Respondent 1PATRICIA MARY BETTERIDGE
Respondent 2ALAN RAYMOND DUNCAN
Respondent 3
Catchwords:
Real property - Strata titles - Common property - Structures and additions - Strata plan 222
Legislation:
State Administrative Tribunal Act 2004 (WA), s 7, s 11(1), s 92(1), s 92(3),s 167(4)(b)
State Administrative Tribunal Regulations 2004 (WA), reg 28, reg 5(2)
State Administrative Tribunal Rules 2004 (WA), r 22
Strata Titles Act 1966 (WA), s 3, s 3(1), s 3(2), s 5(5)
Strata Titles Act 1985 (WA), Part VI Division 1, Part VI Division 2A, s 3(1), s 3(2), s 17, s 35(1), s 35(1)(a) and (b), s 42(1), s 42(2), s 42(8), S 42(9), s 81(4), s 84(2), s 83(1), s 84(2), s 95, Sch 3
Strata Titles General Regulations 1996 (WA), reg 5(2)
Result:
I make the following orders in terms of s 83(1) and s 84(2) Strata Titles Act in regard to the proprietor of lot 56 (unit B27) on Strata Plan 222:
Requested Order 1(a) seeking the removal of the gate structure is dismissed.
Requested Order 1(b) seeking the removal of the metal grille is made. The proprietor is to remove the said structure at his cost within 60 days after the strata company has notified him in writing of an acceptable alternative design to replace the existing grille.
Requested Order 1(c) seeking the removal of the air-conditioner unit is made. The proprietor is to remove the air-conditioner at his cost within 60 days of this order and make good any damage that may have been caused by the removal thereof.
I make the following orders in terms of s 83(1) and s 84(2) Strata Titles Act in regard to the proprietor of lot 60 (Unit B16) on Strata Plan 222 :
Requested Order 2(a) seeking the removal of the aluminium and glass structure is made. The proprietor is to remove the said structure from the common property at his cost within 90 days of this order and make good any damage that may have been caused by the removal thereof.
Requested Order 2(b) seeking the removal of the aluminium, glass and brick structure located within the balcony area is made. The proprietor is to remove the said structure from the common property at his cost within 90 days of this order and make good any damage that may have been caused by the removal thereof.
I make the following order in regard to requested Order 3 in terms of s 81(4):
The requested order is dismissed.I declare that s 95(1) of the State Administrative Tribunal Act which deals with a failure to comply with decisions, applies to Orders 1(i), 1(ii), 2,(i) and 2(ii)
Category: B
Representation:
Counsel:
Applicant: Self Represented
Respondent 1 : Self Represented
Respondent 2 : Self Represented
Respondent 3 : Self Represented
Solicitors:
Applicant: Self Represented
Respondent 1 : Self Represented
Respondent 2 : Self Represented
Respondent 3 : Self Represented
Case(s) referred to in decision(s):
Ratneiks v The Owners of Habitat 74, ST/2004-000003
Smouha v Flemin, unreported; SCt of NSW (Hodgson J; Library No 2773/96; 20 May 1997
Case(s) also cited:
Nil
DR B DE VILLIERS (MEMBER):
REASONS FOR DECISION
Issue
Structural and other additions to lots and common property.
Applicants
The applicant is "The Owners of Habitat 74 – Strata Plan 222" ("the Strata Company").
Application transferred to the State Administrative Tribunal
The Strata Titles Referee appointed in terms of Part VI Division 1 of the Strata Titles Act 1985 (WA) originally received this application for investigation in terms of Part VI Division 2A of the said Act.
The Referee invited submissions to the application and received written submissions from the applicants and respondents as well as from other interested parties. Written submissions were received but the Referee had not made a determination prior to the matter being transferred to the State Administrative Tribunal.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to section 7 of the State Administrative Tribunal Act 2004 (WA) ("SAT Act"). On the same day this matter was transferred to SAT in terms of section 167(4)(b) SAT Act for continuation.
The President of SAT nominated me in terms of s 11(1) SAT Act to constitute the Tribunal for purposes of determining this matter. In accordance with the transitional provisions of the State Administrative Tribunal Regulations 2004 (WA) (reg 28) the matter is therefore taken to have commenced in the Tribunal.
I have taken the submissions received into account in making this determination.
Strata Plan and relevant Act
Strata Plan 222 ("the Strata Plan") was registered on 27 April 1970 pursuant to the Strata Titles Act 1966 ("the 1966 Act"). In 1985, the 1966 Act was replaced by the Strata Titles Act 1985 ("the 1985 Act"), which continues to be the relevant Act.
In these reasons, unless otherwise specified, all references to sections and Schedules are, respectively, references to sections of and Schedules to the 1985 Act.
Parcel
The parcel is known as "Habitat 74" and is situated at 62 - 64 Great Eastern Highway Rivervale which, according to the strata plan, is also the address for service of notices on the strata company.
The parcel's northern boundary originally extended to the bank of the Swan River but an area of 1118 m along that frontage has been resumed. The parcel's southern boundary extends to Great Eastern Highway but, on the strata plan, there is a notice of resumption of portion of the parcel along the southern boundary for road-widening purposes.
The scheme comprises 74 residential lots. The lots are contained in a number of buildings, some of up to three storeys.
By‑laws
The by‑laws of the strata company are, pursuant to s 42(2) and the transitional provisions contained in Sch 3, the "standard" by‑laws contained in Sch 1 and Sch 2.
There is no notification of any repeal, amendment or addition to the by‑laws recorded on the strata plan. In particular, there is no record of any "exclusive use or special privileges" by‑laws of the kind allowed for by s 42(8), in relation to any part of the common property and there are no submissions to suggest that the strata company has in accordance with s 95(1) "unreasonably refused" to make a by‑law in pursuance of s 42(8).
Orders sought
The applicant has sought orders in the following terms
"1.Within thirty (30) days of the date of this Order, the registered proprietor of Lot 56 on Strata Plan 222 is to remove:
(a)the gate structure located between that part of Lot 56 comprising an external balcony and the adjoining common property staircase;
(b)the metal grille structure located within and affixed to an archway in common property brickwork immediately adjacent to that part of Lot 56 comprising an external balcony; and
(c)an air‑conditioner installed within a window in the North Eastern wall to Lot 56 between the part of that lot located within the building and the part of the lot comprising the external balcony."
"(2)Within thirty days of the date of this Order, the registered proprietor of Lot 60 on Strata Plan 222 is to remove:
(a)the aluminium and glass structure located within or affixed to a portion of a common property wall being an archway to a balcony forming a part of Lot 60; and
(b)the aluminium, glass and brick structure located within or affixed to a rectangular opening to a balcony forming part of Lot 60."
"(3)No proprietor of a lot on Strata Plan 222 shall install or permit to be installed or, where prior to the issue of this order an item has already been installed, permit to continue to be installed within or affixed to common property any fixture or fitting unless such installation is the subject of a strata company by‑law registered on the strata plan and created by virtue of s 42(8) or s 95 of the Strata Titles Act."
The applicant has indicated that lot 56 is known as "unit B27" and that lot 60 is known as "unit B16".
The applicant has based its application on s 83(1) which includes a provision allowing a strata company to seek an order for settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by the 1985 Act or the strata company's by‑laws on, amongst others, a proprietor of a lot, or on a person having an estate or interest in a lot, or an occupier or other resident of a lot, in a scheme.
General applicability of application
The applicant's requested Orders 1 and 2 relate to lots 56 and 60 only. However, it appears that requested Order 3 may relate to those lots or to them and to some other lots, but I have no details of any particular items in respect of which that order is sought. Requested Order 3 lacks substance and detail to enable me to determine the matter as requested. There is a general requirement for proprietors and tenants to comply with the Act and by‑laws.
Applicant's submissions
The applicant's submission is that the respondents or their predecessors in title have made alterations and brought about additions to the area of common property without complying with the provisions of the Act and by‑laws.
The applicant's submissions refer to a "vinculum", which is a hook‑like or inverted "S" symbol used by surveyors to indicate that separate areas of land are within one title or one ownership. The submissions include:
(a)As to requested Order 1:
"4.1The balcony to Lot 56 is considered to be a part of Lot 56 by virtue of the vinculum linking the balcony to the lot located wholly within the building shown on the 2nd floor plan of the strata plan.
Located between the balcony and a common property staircase adjacent to the balcony is a metal gate consisting of two cross pieces and approximately 9 upright rods. The rods extend beyond the higher of the two cross members …
The gate is attached to common property external railing. No by‑law permitting such affixation has been registered.
The gate is considered unsafe in that the metal rods extending above the higher cross piece are capable of impaling a person attempting to climb over the gate …
The gate is also considered to be unsightly.
A proposal by the proprietors of Lot 56 to permit installation of this and similar gates was rejected by the strata company in general meeting on November 15, 2003 …
4.2Located within an archway within a brick wall is a metal barrier similar in construction to the gate the subject of item 4.1 above.
The metal barrier is located within the common property wall and affixed to that wall. No by‑law permitting installation or affixation of the barrier has been registered …
The same objections to the barrier as raised in respect of the gate in item 4.1 above are raised in respect of the barrier the subject of this item 4.2
In general meeting on November 15, 2003 the strata company resolved to remove 'all gates, fly screen doors, security mesh, bamboo blinds and fixed bars attached to common property walls' …
4.3An air‑conditioner has been installed within a window in the common property wall. By virtue of the definition of wall in s 3 of the Strata Titles Act, the window forms part of the wall and forms part of the common property …
No by‑law permitting installation of the air-conditioner in common property has been registered.
The air‑conditioner is of primitive design, noisy to operate, of unacceptable energy drainage and visually unattractive.
Similar air conditioners have been installed within the scheme by owners without strata company consent …
Air‑conditioning units such as this installed within common property in an unregulated manner are considered to be a blight upon the scheme.
Item 5.13 of the minutes of the strata company's general meeting of November 15, 2003 record a resolution requiring removal of the air‑conditioner the subject of this Application and all similar air‑conditioners.
4.4By letters dated the December 17, 2003, the Strata Company manager, acting on behalf of the Council, drew to the attention of the proprietors of Lots 56 and 60 the resolution of the AGM of November 15 …
4.5By letter dated 8 January 2004, the proprietors of Lot 56 objected to a proposal to seek removal of the air‑conditioner on the grounds that they installed it in accordance with their perception of "approved guidelines". (It is submitted that, in the absence of an appropriate, valid by‑law, no "approved guidelines" exist).
The same letter indicates that the gate and the metal barrier grille were installed prior to the purchase of Lot 56 by the current registered proprietors and that, indeed they purchased the items. (It is submitted that the purchase by the proprietors of invalidly and unlawfully installed fixtures does not validate the installation of such fixtures)."
(b)As to requested Order 2
"5.1The aluminium and glass structure in an archway … represent an enclosure of balconies forming part of the proprietor's lot by structures installed within or affixed to common property. No by‑law permitting such exclusive use or special privilege in respect of the portion of common property involved has been registered.
The two structures the subject of this Application … are not in keeping with the original appearance of the buildings within the scheme and depict a "tacked on" appearance. They are clearly in conflict with the architectural appearance of the buildings.
5.2By letter dated 8January 2004, the proprietor of Lot 60 indicated that the balcony "enclosures" were in place before he purchased his lot. Indeed, the existence of the enclosures effectively increased the number of bedrooms in the lot from two to three …
5.3The current owner of Lot 60 claims that a former council granted approval to a former owner of Lot 60 to enclose the balconies
It is submitted that the only approval for such an enclosure can come from a by‑law validly created pursuant to s 42(8) or s 95 of the Strata Titles Act. No such by‑law exists."
(c) As to requested Order 3
"… Over the three decades since registration of the strata plan, this uncontrolled scattering of fixtures installed within or affixed to common property has led to a situation where the appearance of the scheme has been adversely affected almost to "slum" proportions and, in some cases, to the physical detriment to the building.
One structural characteristic of the open balconies around the buildings is to assist in the drainage of rainwater collected in wall cavities and designed to discharge via weep holes onto the balconies and then onto the ground. Enclosing the balconies generally results in either or both of closing up purpose built weep holes and preventing water discharge over balconies onto the ground.
In almost all cases where balconies have been enclosed in this ad hoc manner, the strata company has encountered a water penetration problem within the building components (including into the interior of lots) immediately below and adjacent to the enclosed balcony …
The specific examples used in this Application (ie those relating to Lots 56 and 60 are typical of others around the scheme. An Order from the Referee to the effect that the proprietors are not to effect structural alterations to common property or to affix fixtures or fittings to common property surfaces without the authority of a properly prepared by‑law addressing all of the issues involved in such matters is required …"
There was no provision in the 1966 Act which allowed a part of a lot to be otherwise than entirely within a building. The 1985 Act made it possible, for the first time, for external areas to be part of a lot. Where, in relation to a strata plan or a strata plan of re‑subdivision registered under the 1985 Act, external areas are parts of a lot, each such external area must be defined as a cubic space by reference to a specified height above, and to a specified depth below, a fixed object, such as the upper surface of the ground floor level of the adjacent building. In the matter at hand no by‑law has been registered to the effect that an external area forms part of the lot.
Lot Boundaries
Each lot and each part lot within the scheme is a cubic space only. Pursuant to ss 3(1) and (2), the boundaries of each such part within a building are the upper surfaces of the floor, the inner surfaces of the perimeter walls and the under surfaces of the ceilings of the parts of the buildings in which they are respectively situated. Everything else within the scheme is common property and subject to the provisions of the Act and by‑law dealing with same.
Lot 56 is a second‑floor lot, above lot 35. It comprises two parts, one an internal portion and the other a balcony. The two parts are shown as separated by a broken line but linked by a vinculum.
Lot 60 is a second‑floor lot above lot 39. It also comprises an internal portion and a vinculum-linked balcony.
In each case, the broken lines referred to are solid masonry walls with an access door to, and windows facing onto, the adjacent balcony area. Each balcony is fenced with vertical metal bars.
In a supplement to the Reasons for Decision in the previous proceedings (ST/2004‑000003), the Strata Title Referee provided a clarification of his finding that an unroofed ground floor area with one un‑walled or un‑fenced side could not be part of the lot that was the subject of that application. Some of the contents of that supplement are incorporated in the following paragraphs for convenience.
Section 5(5) of the 1966 Act provided that‑
"Unless otherwise provided on the strata plan, the common boundary of a lot with another lot or with common property shall be the centre of the floors, wall or ceiling, as the case may be."
There is no notation on the strata plan that varied this provision.
Section 3 of the 1966 Act defined "common property" as so much of the land on a strata plan that was not comprised in a lot on the plan.
In its 1982 Report on the 1966 Act, the Law Reform Commission of Western Australia included the following in paragraphs 4.2, 4.3 and 4.4 of the Report:
"4.2In Western Australia at present a lot must be within a building or buildings shown on the strata plan …
4.3A significant drawback of the requirement that a lot must be within a building or buildings is that a strata title cannot be given to areas such as outdoor swimming pools and garden plots …
4.4The Commission agrees with the majority of those who commented on this issue in response to the working paper that it should be permissible for a lot to extend to include an area outside the building. The ability to provide for a strata title scheme in which boundaries of some or all of the lots extend beyond the building would be particularly useful in the case of single level or town house style developments where purchasers could thereby be assured of title to a patio, garden plot or parking space in the same way as they can be assured of title to the living area or a garage within a building."
In a footnote to those comments, the Commission stated:
"At present, the Titles Office in Western Australia will permit a proprietor's strata title to include a balcony where it is clear that its use will be restricted to the occupier of that lot. However, the legal basis upon which this is done is not clear."
Accordingly, any area that was not enclosed by walls on all sides and which did not have a floor and a ceiling, could not, in the absence of a specific endorsement on the Strata Plan to the contrary, have been included as a lot or as a part of a lot in a plan registered under the 1966 Act.
Section 3(1) defines "floor plan" as:
" … a plan, consisting of one or more sheets, which –
(a)defines by lines (in par (c) referred to as 'base lines') the base of each vertical boundary of every cubic space forming the whole of a proposed lot, to which the plan relates
(b)shows –
(i)the floor area of any such cubic space; and
(ii)where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot"
Section 3(2) provides:
"Except where section 3AB applies, the boundaries of any cubic space referred to in pargraph (a) of the definition of 'floor plan' in subsection (1) –
(a)except as provided in [b]
(i)are in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in [a] of that definition – the inner surface of that wall; and
(ii)are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space – the upper surface of that floor and the under surface of that ceiling; oror
(b)are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building)."
Section 3AB does not apply in the present case.
Section 3(2) must be read with reg 5(2) of the Strata Titles General Regulations 1996 (WA) which states‑
"All linear connections shown on a strata plan must be referred to a stated surface of a floor, wall, ceiling or permanent structural feature shown on the plan."
As indicated above, each of the internal portions of lots 56 and 60 has an adjacent balcony area which is linked to it by a vinculum.
The effect of a vinculum was considered in the Supreme Court of New South Wales in a 1997 case, Smouha v Flemin, unreported; SCt of NSW (Hodgson J; Library No 2773/96; 20 May 1997, in which Hodgson J commented that a vinculum is a "bond of union" that shows "some kind of union between two parcels of land, and the question is, what kind of union." His Honour then goes on to conclude that:
"It appears that the vinculum is not generally used to show union of ownership in deposited plans or like documents…."
The use of a vinculum is therefore not in itself conclusive that a balcony forms part of a lot for purposes of the Act. The use of a vinculum would only be given specific legal effect by further actions. For example if the broken line, over which the vinculum in respect of lot 56 is shown, was intended to indicate that the balcony area was part of lot 56, then the walls on the south‑western, south‑eastern and north-eastern sides of the balcony area would have also been part of lot 56, for which the proprietor of lot 56 was responsible – including being responsible for all painting, repair, maintenance and, where necessary, replacement. There would also be insurance issues to take into account. In that case, the transitional provisions in Sch 3 to the 1985 Act would not have had any effect on those walls, which would have continued to be part of lot 56. The same comments apply in respect of lot 60.
Responses to application
The proprietors of 8 lots have expressed support for the application, while the proprietors of 15 lots have opposed it. Of the 15 submissions received in opposition to the application 11 used the same template with only slight variations.
While it may not be necessary to repeat the submissions in favour and against the requested orders in full, the following provide a useful overview of arguments raised.
The submissions in support include
"•All owners agreed to carry out the scope of works proposed at the A.G.M. to bring the run down building up to some sort of normal appearance, and as explained to all the owners at the meeting, a lot of work had been done in previous years by owners, without permission, and actually a lot of what I have seen is dangerous, and ugly in appearance … "
"•We support the removal of metal gate structure and metal grille as it is has been added in an ad hoc manner without consultation and is not in keeping with the original style of the complex. It is our understanding that investigations into a new type of grille is underway which would complement the overall building structure. Owners who wish to avail themselves of new security panels when selected may do so.
We also support the removal of the old style air conditioner from the window, again to maintain a standard throughout the complex. Earlier this year the new inverter type split systems have been installed as per the 2003 AGM to those who wished to replace the old style. It was also agreed at this meeting that as the buildings were upgraded and repaired that all old style air cons would be removed. New air cons were offered as replacements.
With reference to items 2a and 2b, the removal of these aluminium, brick and glass structures is essential for a few reasons‑
They are completely out of place with the rest of the complex.
It was agreed at the 2003 AGM that they be removed.
The continued delay of the removal of these structures has prevented the contractors to finish the first stage of repairs to make the complex ready for painting.
This delay in finishing the repair and rejuvenation of what has become a slum tenement, is hindering owners from realising the true value of their investment ... "
"•… The two Lots in this notice, Lot 56 and Lot 60, are similar in case. The Strata Company has contracted an Engineer who has drawn up two Scope of Works (one for A Block and the second for B & C Blocks). Both Scopes state the balcony tiles are to be removed, the concrete beneath water-proofed, then the tiles re‑laid, all at the Strata Company’s cost. Due to large amounts of water ingress it was also agreed all units with concrete flower boxes will have these removed and a new hand rail installed prior to the tiling process. The Strata Company has completed the work on A and C Blocks to the point of preparation for painting and the owners/committee members thought it fair to complete work on B Block prior to raising more funds to paint. To date the roof has been replaced and the timber windows removed and replaced with aluminium ones the next stage is being held up by these two Lot owners. Time has arrived for the 2004 AGM and the Agenda includes a motion to raise money to commence the painting resulting in the renovations completion.
Both of these Lot owners have refused the Strata Company entry to their balconies. As the renovation budget required all flower boxes to be removed at once, these two Lot owners are holding up the refurbishment progress in B Block and the completion of painting of the whole complex.
The overall decision at the AGM was to remove all irregular items on the grounds they were not in keeping with the original structure … "
The submissions opposing the application include‑
"•Referring to Order 1A & B, please see item 7.7 of the Applicant's attached AGM Minutes, dated 15 November 2003. Also, the gate and grille in the arch for Lot 56 were approved by a previous Council prior to this new Council. i.e. pre‑2001.
Referring to Order IC, the air conditioner installed at Lot 56 in the window off the balcony is inside the Lot and forms part of the Owner's private lot and therefore it they wish to install an air conditioner in this window they should have the right to do so … Referring to Order 2A & B, this balcony enclosure for Lot 60 was approved by previous Council. As far as we have gathered from a previous Chairperson of the Council, it was encouraged to do so as this would save on maintenance, as, once enclosed, the tiles and the inside of the balconies would not be exposed to water or any damage thereof (i.e. cutting down on maintenance and water damage to units that may be below them.)
In addition the particular Lot 60 in question is in a particular circumstance of backing onto an area which is an underground car park for up to 14 or so cars. The only way the fumes can escape is upwards past this balcony enclosure area and therefore warranting the previous Council's approval to have it enclosed plus others that also back onto that area to stop the fumes of the cars causing any possible health problems …"
"•… As to item 1, the metal grilles and gate have been there for many years to provide safety and security. My own balcony is completely enclosed by the same metal railing. I do not need a gate as I have access from a sliding door. If I did not have a separate front door I would require a metal grille and gate to protect my property. THESE PEOPLE HAVE HAD AN ATTEMPTED BREAK IN WHICH WAS REPORTED TO THE POLICE IN THE LAST YEAR. You should be allowed to protect your own property. Only one other unit owner out of the 73 units can see the metal grille and gate.
As to item 2 the structures mentioned are numerous and varied and should be dealt with individually. They have been approved by previous councils and erected over the years to cover a wide range of security, noise, pollution and privacy reasons …"
"•… Two of the items listed on this application (according to the minutes) were resolved at the AGM of 15th Nov 2003 in favour of the owners. I do not understand why the Strata Company is taking this action
1.Motion 7.7 Safety Gate – Motion Carried
2.Motion 6.21 air conditioner – A16 – Motion Carried … (I note however that the Motion 6.21 refers to the air-conditioner in A16 which is not the subject of this application.)"
"•The grounds for opposing the application put forward as the owners of Habitat 74 are as follows:
1.Lot 56 – Strata plan 222
a)the gate structure …
We find the style of gate quite acceptable and not at all unsightly as it was obviously designed to blend in with the surrounding railings. The example used for it being unsafe is quite immaterial as the unit is situated on the top floor of a stand-alone tower, connected to a separate block of units by an angled landing to the stairwell. In addition to this argument, the danger is more apparent to the owner's visitors and small children. if the gate wasn't in place, as thousands of people die or are seriously injured every year through falling down stairs.
Because of their location, the gate in question would not even be readily be seen by the casual observer, and the balcony only appears to be directly overlooked by one other unit. If we were in the same position, we would want a gate for security and safety, and we certainly wouldn't want to risk a litigation issue if any one were to fall down the concrete stairwell.
b)the metal grille structure
The metalwork located in the small archway has obviously been made to match the gate. As well as blending in with the surrounding railing, whoever organised its fitting would have been looking at the safety value and security aspect. It would be very difficult for anyone to gain access to the balcony without being seen, bearing in mind we live in a very high crime rate area.
c)the air conditioner
The air conditioner positioned on lot 56 is barely visible to anybody. As in the previous arguments relating to the gate and the archway metalwork, because of its location, it is virtually impossible to see, and certainly can't be heard, unless one were to go deliberately out of one's way, up three flights of stairs for that purpose.
2.Lot 60 Strata Plan 222
(a)the aluminium and glass structure …
It is difficult to comprehend why item 5.1, in the applicant's, "in the ground for support" relating to these items (2(a)(b) where the applicant states that "similar construction erected in an ad hoc manner through out the parcel are not in keeping with the original appearance of the buildings with the scheme and depict a "tacked on" appearance, they are clearly in conflict with the architectural appearance of the buildings." This is exactly what can be said of the "new style air conditioners" that have been "scattered" throughout the complex on common property. Some are sitting on brackets as high as the 2nd floor, with no concern to aesthetics, maintenance or economy of use. At least the enclosures appear to be within the owner's lot.
(b)the aluminium, glass & brick structure
The enclosure of the balcony on lot 60, like many others in this situation, is affixed to the inside of the lot. The enclosure of the balcony on lot 60, is in line with several others, backing on to the under cover car park "chimney". This chimney whilst allowing light into the utility areas of units, also allowed fumes and noise to enter the unit while the balcony doors are open. The logical progression has been to build in with glass partitioning to still allow light, but omits fumes and noise.
3.No proprietor of a lot …
The understanding of this application is that as at the date of this notice received from the Strata Referees office, is that everything prior to that notice, and everything that has been installed since that notice, to common property without a by-law should be removed. Does this mean that all the "new style" air conditioners, new gates/divider, are to be removed? …
… The information supplied by the applicant in the application is incorrect; the following comments are made in this regard.
The applicant has stated in 'grounds for support' 4.1 an incorrect submission
1)that the gate is attached to common property external railing. The gate is inside the lot.
The applicant has stated in 'ground for support' 4.1 an incorrect submission
This item does not need to be argued as the amended motion 7.7 clearly give approval for the gate.
The applicant has stated in 'grounds for support' 4.2 as incorrect submission
The applicant has included lot 56 gate, in motion 5.10, this is not the [sic] so. Photograph 4 page 24 clearly shows only the metal work within the archway. This motion has no bearing on the gate … "
•"… (1 a& b) I oppose the application for the following reasons –
The said fittings were already installed when the property was purchased by the present owners of B27 (Lot 56) and must therefore have been original fittings or approved fittings by a previous Strata Council and must therefore be considered to be legal. I have been a resident owner since November 1981 and have not found the fittings to be unsightly, blending in as they do with external railing …The metal fitting in the small archway provides additional security against burglars.
(2 a & b) I oppose the application for the following reasons –
The aluminium and glass structure in the balcony of Unit B 16 (Lot 60) is not visible other than to users of the parking bays that the balcony overlooks and therefore cannot be said to be in conflict with the architectural appearance of the buildings. None of the balconies overlooking this parking area are visible in a general view of the complex. The resident/owner is entitled to be protected from the fumes emitted during the movement of vehicles in the partly enclosed area. The unit was sold to the present owner as a three bedroom unit incorporating the two enclosed balconies. The original owner had committee approval to enclose the balconies. The enclosing structures must therefore be considered to be legal.
This application is invalid because it has been submitted by a person who is not the secretary of the Strata Company..."
"•…I oppose the application for the following reasons.
1. I purchased the property (i.e. Lot 62) as a THREE BEDROOM unit …
2. The original owner obtained permission from the council in 1970 to have the balcony enclosed both ends. The application was minuted at that time. The owner at the time of the application was HEATHER SMITH.
3. For the past 18 months I have been trying to obtain minutes from the strata manager, Richardson Strata Management Services for the period 1970 to 1975 inclusive. This has caused me a great deal of stress and I have become seriously ill.
4. When the opportunity arose to sell the property, it ground to a halt when I could not give a written guarantee that the enclosure would stay, which added to my stress ...
5. Other factors leading to this outcome includes phone calls from Real Estate Sales people advising me recently the cost of removing the enclosure would be deducted from their client's offer.
6. Finally, fumes from the under croft parking bays would be funnelled through my balcony and into my unit through open windows as they went up the chimney formed by our units. This I feel would add to my health woes which are lung related and can be substantiated by my Doctor…"
"•… Attachment (1) photographs taken at the time of purchase. When we purchased lot 56, eight years ago, in Dec 1996, the gate was a prime consideration. In our estimation it is a safety gate, as it isolates our balcony from the stairs. Our thoughts were, (and still are) that any visitors with small children, the children would not be at risk of falling down the concrete stairwell. We purchased our lot, in good faith, and were given no reason from the council or any party to suggest that it was illegal.
This item should not need to be argued as the amended motion 7.7 clearly gives approval for the gate, as there is no intention to add or alter the structure. We have included Attachment (2) (referred to in the applicant's submission as Annexure 'B') (because although it was referred to, it wasn't included in the applicant's submission,) it clearly shows our gate as motion 7.7.
The discussion around this motion at the AGM also indicated that no alterations were to be made until the committee offered an acceptable alternative. None of this discussion was minuted.
Attachment (3) The original motion put forward by us to the strata managers states quite clearly 'Safety Gate'. The draft sent to the committee Attachment (4) states quite clearly "Safety Gate" yet it went out to all 74 owners on the Agenda as short! Gate, with what we feel it's obvious intended bias.
Still in the same vane (sic), attachment (5) ref a set of motions That were faxed 11/8/04 to the strata managers for the AGM dated 15th Sept 04. Item 2 states quite clearly that an amount of ($660,000.00 approx) is to be included. Yet is has been completely omitted, and quite clearly changed the intent of the motion, which was to inform recent buyers into the complex that we had already paid that amount into the strata fund, and obviously to question further levies. Another question was raised to the strata manager's attachment (6) asking them to confirm if GST was included in the proposed levy of contributions. We are still waiting for a reply.
(b)the metal grill (sic)structure
Interestingly, see enclosure (7) This extract refers to the Council Minutes dated 20th July 04 – AGM item 8.13 Small archways security issue – Council member to investigate!!!!! We assume from this, that somebody on the council has other plans for our small archway metal work.
(c)an air conditioner ……
The said air conditioner is part of the offer and acceptance dated December 1996, (enclosure) The Air conditioner window type, were installed as per 'THE OWNERS OF HABITAT 74 STRATA PLAN 222 GENERAL GUIDELINES OF OWNERSHIP AND/OR TENANCY" PRINTED 1972 – REPRINTED NOV 1992 Page 5, (2) Paragraph 3, and complies with the four installation requirements…"
Considerations
The essence of this application revolves around the right of a strata company to enforce compliance with the Strata Titles Act and by‑laws by ensuring that common property is used in a prescribed manner.
Of particular relevance is the right of a strata company to deal with alterations and/or installations and/or structures (referred to henceforth as "alterations") to common property that were made some time ago – be it by a previous proprietor or the current proprietor – without a by-law being registered as required by the 1985 Act to authorise such alterations. To complicate the matter a proprietor may have erected an installation on the basis of what he believed was proper authorisation by the strata company.
A strata company would usually have no difficulty dealing with applications for future alterations regarding the use of common property. However a strata company may find itself in an unenviable position regarding previously erected alterations brought about without the necessary approval being given or registered in a manner required by the Act or by‑laws.
I can fully understand the surprise and frustration of a current proprietor who is directed by the strata company to remove an alteration that has been in place prior to the acquisition of the lot. On the other hand I can also appreciate the dilemma in which the strata company finds itself where it is responsible for the maintenance of common property and where a part of the common property had been altered in a manner with the design of the complex or where a part is being exclusively used in a manner that is not registered in accordance with the Act and by‑laws. Such unauthorised use of common property may not only impact on the value of individual lots, it may also have serious consequences for the strata company – for example insurance liability, health and security issues, ability to undertake maintenance and calculation of levies.
If the strata company allows an unauthorised alteration on common property or the unauthorised use of common property to continue unchallenged or unremedied, the strata company would not be discharging its duties as set out in section 35(1) of the Act namely to –
(a)enforce the by‑laws;
(b)control and manage the common property for the benefit of all the proprietors;
(c)keep in good and serviceable repair, properly maintain and, and where necessary, renew and replace -
i.the common property, including the fittings, fixtures and lifts used in connection with the common property; and
ii.any personal property vested in the stata company,
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause;"
On the other hand if a strata company directs for an alteration that had been erected without approval to be removed, or for the exclusive use of a common area to be discontinued, it may be perceived as acting harsh and unsympathetic – especially if a structure had been erected many years ago by a previous proprietor or if the exclusive use has been ongoing for a some period.
The submissions received in the application explore the two sides of the dilemma faced by the strata company.
The submissions in favour of the application highlight the following:
•Legal requirements for alterations on and use of common property and the registration thereof as a by-law must be complied with. The Act and by‑laws apply to past and future actions.
•Uniformity and consistency in appearance of the complex is essential for the general benefit of all owners.
•Ongoing upgrading of the complex requires uniform standards to be complied with by all proprietors.
•Caution is required to prevent a slum-look appearance with all types of unauthorised alternations erected over a period of time defacing the complex.
•It is the duty of the strata company to enforce the by‑laws consistently to ensure fairness to all proprietors and tenants.
•Uninterrupted access is required to common property for maintenance, security, health and repair purposes.
The submissions opposing the application in turn highlight the following‑
•The previous proprietor made some of the alternations years ago and the lot was purchased in good faith that all approvals had been secured.
•The previous council or chairman gave permission albeit not registered as a by‑law.
•The AGM held on 15 November 2003 endorsed some of the alterations such as the gate structure.
•Alternations are out of view of other residents/visitors and the general public.
•No permission was required at the time when alterations were made and proprietors were therefore at liberty to take their own initiative.
•Security and health concerns necessitated the alterations.
•The strata company is acting heavy handed and causing division and conflict within the complex.
•The application was brought by a person not duly authorised.
The strata company is required by law to comply with the provisions of the Act, to enforce the by‑law and to control and manage the common property for the benefit of all proprietors ss 35(1)(a) and (b).
The following are some of the key provisions of the Act relating to the use of common property that must be complied with by the strata company in the discharge of its duties:
i.Sections 3(1) and (2) determine that each lot of a scheme is a cubic space only having as its boundaries the upper surface of the floor, the inner surface of the perimeter walls and the under surface of the ceiling of the part of the building in which it is situated. Everything else is common property. I explained earlier the status of the balcony area as being part of the common property unless otherwise endorsed on the Strata Plan or exclusive use being determined by a by‑law. The existence of a vinculum in itself does not mean a balcony forms part of a lot or that a proprietor of a lot has exclusive use over a common area unless it is endorsed on the strata plan or given such effect by the by‑laws.
ii.Section 5(5) of the 1966 Act provided that "unless otherwise provided on the state plan, the common boundary of a lot with another lot or with the common property shall be the centre of the floors, wall or ceiling, as the case may be." As has been explained by the Strata Titles Referee in matter Ratneiks v The Owners of Habitat 74, ST/2004-000003 any area that was not enclosed by walls on all sides and which did not have a floor and a ceiling, could not, in the absence of a specific endorsement on the strata plan to the contrary, have been included as a lot or as a part of a lot in a plan registered under the 1966 Act. No such endorsement had occurred in regard to the lots 56 and 60.
iii.Section 17 determines that common property shall be held by all the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots. All proprietors therefore have an interest in actions that may impact on the use of common property.
iv.Section 35(1) determines that the strata company is responsible to control and manage the common property and to enforce the by‑laws.
v.Section 42(1) enables the strata company to make by-laws not inconsistent with the Act. And the s 42(2) sets out the manner in which by‑laws can be amended, repealed or added.
vi.Section 42(8) enables a strata company pursuant to a resolution without dissent, to make a by‑law in respect of conferring on the proprietor of a lot the:
"exclusive use and enjoyment of, of special privileges in respect of, the common property or any part of it upon such terms and conditions (including the proper maintaining and keeping in state of good and serviceable repair of the common property or that part of the common property, as the case may be, and the payment of money by that proprietor to the strata company) as may be specified in the by‑law and may, pursuant to a resolution without dissent (or unanimous resolution, in the case of a two lot scheme), make a by‑law amending or repealing any by-law made under this subsection."
vii.Section 95 enables the State Administrative Tribunal to make certain by‑laws pursuant to a refusal by the strata company to act in accordance with s 42(8).
viiiSchedule 2 by‑laws 13 and 14 deal with alterations and appearances of a lot and the permission required by a proprietor prior to altering the appearance of a lot.
Finding
In applying the Act to the application and submissions at hand I make the following findings in response to the Orders sought:
1.In regard to lot 56 (also referred to as B27) on Strata Plan 222 I find as follows:
a.The gate structure between the external balcony and adjoining staircase is permitted to remain as per a decision recorded in paragraph 7.7 of the AGM held on 15 November 2003.
b.The metal grille structure located within and affixed to an archway in common property brickwork immediately adjacent to that part of lot 56 comprising an external boundary, was erected without the necessary strata company approval and must be removed as per the decision recorded in paragraph 5.10 of the AGM held on 15 November 2003. The fact that the grille had been in place when the current owner acquired the lot does not obviate the requirements of the Act and by‑laws regarding installations on or alterations to the common property. However in light of concerns raised regarding security of the unit it would make sense and be reasonable to delay the removal of the grille until such time as the strata company has agreed on an acceptable alternative design to replace the existing grille.
c.The air‑conditioning unit was installed without the necessary approval of the strata company and must be removed as per the decision recoded in paragraph 5.13 of the AGM held on 15 November 2003. The GENERAL GUIDELINES OF OWNERSHIP (1972) makes it clear in [D](2) that the installation of air‑conditioners has to be approved by the council. The issue is therefore not whether the air‑conditioner is "old" or "new" style but rather if the installation thereof had the approval of the strata company in a manner that complies with the Act and by‑laws and in particular Schedule 2 by‑laws 13 and 14.
2.In regard to lot 60 (also referred to as B16) on Strata Plan 222 I find as follows:
a.The enclosing of the balcony is regulated by the requirements of s 42(8). Although the respondent has made submissions stating that the "previous owner had committee approval" for the balcony to be enclosed, I have not been provided with any documentation to substantiate the purported permission nor has a by‑law to that effect been registered. The Act is unequivocal that in order for any common area to be set aside for the exclusive use of a lot, certain approval processes have to be followed and the outcome recorded in the form of a by‑law. The submission that the current or a previous proprietor have acted in the assumption that proper permission had been granted for the alternations to occur or on the belief that no approvals were required, are not convincing and cannot be used as basis to circumvent the requirements of the Act and by‑laws. Section 42(9) is therefore not available to remedy the situation. The structures that had been erected would therefore have to be removed.
b.The same reasoning and finding in (a) above applies to (b).
3.In regard to the requested order 3 no details of any particular items were provided in respect of which the order is sought. I have already pointed out in the above the general duties of a strata company to enforce by‑laws.
4.In regard to the question of authorisation I am satisfied that the application was duly authorised by the Council of Owners at the meeting held on 18 May 2004. I also note that in terms of s 92(1) and (3) of the State Administrative Tribunal Act and rule 22 of the State Administrative Tribunal Rules I may wave certain procedural requirements. In this application I am satisfied that the person bring the application was duly authorised regardless of any technical uncertainty as to who the secretary was at a specific point in time.
Orders
1.I make the following orders in terms of s 83(1) and s 84(2) Strata Titles Act in regard to the proprietor of lot 56 (unit B27) on Strata Plan 222 :
i.Requested Order 1(a) seeking the removal of the gate structure is dismissed.
ii.Requested Order 1(b) seeking the removal of the metal grille is made. The proprietor is to remove the said structure at his cost within 60 days after the strata company has notified him in writing of an acceptable alternative design to replace the existing grille.
iiiRequested Order 1(c) seeking the removal of the air‑conditioner unit is made. The proprietor is to remove the air‑conditioner at his cost within 60 days of this order and make good any damage that may have been caused by the removal thereof.
2.I make the following orders in terms of s 83(1) and s 84(2) Strata Titles Act in regard to the proprietor of lot 60 (Unit B16) on Strata Plan 222:
i.Requested Order 2(a) seeking the removal of the aluminium and glass structure is made. The proprietor is to remove the said structure from the common property at his cost within 90 days of this order and make good any damage that may have been caused by the removal thereof.
ii.Requested Order 2(b) seeking the removal of the aluminium, glass and brick structure located within the balcony area is made. The proprietor is to remove the said structure from the common property at his cost within 90 days of this order and make good any damage that may have been caused by the removal thereof.
3.I make the following order in regard to requested Order 3 in terms of s 81(4):
The requested order is dismissed.
4.I declare that s 95(1) of the State Administrative Tribunal Act which deals with a failure to comply with decisions, applies to Orders 1(i), 1(ii), 2,(i) and 2(ii).
I certify that this and the preceding 30 pages comprise the reasons for direction of the Tribunal
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B DE VILLIERS
MEMBER
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