The Owners Of St John's Court - Rivervale Strata Plan 6052 and Clark - [2010] WASAT 126

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: THE OWNERS OF ST JOHN'S COURT - RIVERVALE STRATA PLAN 6052 and CLARK [2010] WASAT 126

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 8 SEPTEMBER 2010

FILE NO/S: CC 1036 of 2009

BETWEEN: THE OWNERS OF ST JOHN'S COURT - RIVERVALE STRATA PLAN 6052
Applicant
AND
BEVAN CLARK
MARIJA CLARK
Respondents

FILE NO/S :CC 1672 of 2009

BETWEEN :BEVAN CLARK
MARIJA CLARK
Applicants
AND
THE OWNERS OF ST JOHN'S COURT - RIVERVALE STRATA PLAN 6052
Respondent

Catchwords:

Strata Titles Act 1985 (WA) Application for removal of airconditioner fixed to common property Declaration sought that s 95(1) of the State Administrative Tribunal Act 2004 (WA) apply Counterapplication for order that strata company consent to proposal to effect alterations to common property Whether consent unreasonably refused Order sought for grant of licence Whether lot incapable of reasonable use and enjoyment Whether application for removal of air-conditioner vexatious, lacking in substance or frivolous Application for costs

Legislation:

State Administrative Tribunal Act 2004 (WA), s 5, 87(3), s 87(6), s 88(3), s 91, s 95, s 95(1)
Strata Titles Act 1985 (WA), Div 2A, s 3(2)(a), s 18, s 19, s 35(1)(b), s 38(3), s 38(4), s 42, s 42(8), s 44, s 81(7), s 81(7)(a), s 81(11), s 83, s 84, s 85, s 94, s 103G(1), Sch 1, bylaw 1(2)(a), bylaw 16 23, Sch 2, bylaw 2

Result:

Application for removal of airconditioner granted
Counterapplication dismissed and costs refused

Category: B

Representation:

CC 1036 of 2009

Counsel:

Applicant: Mr M Atkinson
Respondents : Self-represented

Solicitors:

Applicant: Atkinson Legal
Respondents : Self-represented

CC 1672 of 2009

Counsel:

Applicants: Self-represented
Respondent: Mr M Atkinson

Solicitors:

Applicants: Self-represented
Respondent: Atkinson Legal

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Brosolo and Council of Owners of 25 St Leonards Strata Plan 352 [2008] WASAT 285
Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45
Crockett & Anor and Munroe & Anor [2006] WASAT 382
Duffy and Owners of Warrawong Strata Plan 7976 [2010] WASAT 113
Harold & Gladys Verryt and Ann Williams [2005] WASAT 101
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1
The Owners of Rosneath Farm Survey Strata Plan 35452 and Rowell & Anor [2007] WASAT 95
Western Australian Planning Commission v Dungey [2010] WASC 52

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant strata company has sought orders from the Tribunal for the removal of an airconditioning unit installed on a common property roof by the respondents, without prior approval from the strata company.
The respondent lot owners commenced separate proceedings seeking an order under s 85 of the Strata Titles Act 1985 (WA) that the strata company consent to the proposal or an order under s 94 granting the owners a licence to use the common property for the airconditioning installation.
The applications were consolidated.
The owners also applied for orders that the strata company's claims be dismissed as frivolous or vexatious and on the basis that the strata company had enforced the legislation and strata bylaws in an inconsistent way. The Tribunal rejected the owners' contentions that the approval of the strata company was not required for the installation of the airconditioning unit because there was no express provision of the legislation to that effect. Reference was made to a number of examples in the legislation in which the use of common property by individual lot owners is controlled and in relation to which either a resolution without dissent, or a unanimous resolution in the case of a twolot scheme, must be obtained before dealing with the common property. Similarly, the standard bylaws restrict the use and enjoyment of common property, while s 35(1)(b) of the legislation specifically vests the control and management of common property for the benefit of all the proprietors in the strata company. Finally, both of the sections relied upon by the owners for relief from the Tribunal were predicated upon applications having first been made to the strata company but being unreasonably refused. The Tribunal held that it was therefore incumbent on the owners to apply to the strata company for such approval and that it therefore followed that the application by the strata company was not frivolous or vexatious.
The Tribunal examined the evidence and information provided by the parties in relation to the way in which the strata company had controlled the installation of airconditioners, and held that it had not been established that the strata company had applied either the legislation or bylaws in an inconsistent manner.
In relation to the application under s 85, the Tribunal made observations about the different mechanisms available under the legislation which might apply to the installation and maintenance of an airconditioning unit on common property. The Tribunal noted the need for a proper characterisation of the work to be carried out in order to determine whether any alteration to common property was merely incidental to the use of the common property. In the latter event, it might be more appropriate for the application to be made under s 94. In any event, the Tribunal concluded that it was appropriate to follow an earlier decision of the Tribunal, Duffy and Owners of Warrawong Strata Plan 7976 [2010] WASAT 113, which supported the strata company's contention that s 85 only applied to a proposal said to be unreasonably refused by the strata company, made prior to the carrying out of the work. The Tribunal also held that the strata company had not acted unreasonably in not consenting to the proposal which was put forward by the owners after installation of the airconditioning unit.
In relation to the s 94 application, the Tribunal found that the owners had made a compelling case for the need to aircondition the lot. However, the strata company had never disputed the need for airconditioning but maintained that it should be installed on the common property verandah of the lot, consistent with the approval given to many other owners. There was already a small airconditioning unit in this location and the owners had elected to install a small 1 horsepower airconditioning unit on the roof. In those circumstances, the Tribunal held that it was not demonstrated that the lot was incapable of reasonable use and enjoyment other than by installing an airconditioning unit on the common property roof for which the licence was sought.
The owners had also sought an order directed towards ensuring that the strata company addressed certain identified maintenance issues. The Tribunal dismissed this aspect of the application because of the inadequacy of the evidence to support the claims. The owners' application for costs was also dismissed as being misconceived in the face of s 81(7) of the Strata Titles Act 1985 (WA), and in circumstances where the only amendment to the proceedings had been at a very early stage, was of an entirely formal nature to properly identify the provisions of the legislation relied upon, and could not possibly have resulted in any wasted costs.
In all the circumstances, the Tribunal determined to exercise its discretion in favour of the order sought by the strata company that the airconditioning unit be removed from the common property roof and that the owners make good the common property. The Tribunal declined to make an order sought by the strata company that s 95(1) of the State Administrative Tribunal Act 2004 (WA) apply, making noncompliance with the decision of the Tribunal an offence. The Tribunal indicated that the practice was only to make such an order at the time when the decision was made where there was a prior history indicating a likelihood that the order would not be complied with, such as a consistent failure or refusal to comply with a clear obligation, often accompanied by a reluctance to participate in any meaningful way in the proceedings before the Tribunal. The Tribunal also declined to make an order that the strata company be entitled to carry out the work if the owners failed to do so, as the legislation gave an express right to the strata company to do so.

The Application and counterapplication

On 13 July 2009, the applicant strata company made application to the Tribunal under s 103G(1) of the Strata Titles Act 1985 (WA) (ST Act) seeking orders for the removal of an airconditioning unit installed on the common property roof and to make good any damage occasioned by its removal and that, failing compliance, the strata company be entitled to arrange for a contractor to carry out the required work at the cost of the respondents. The application was subsequently amended at an early directions hearing to rely on s 83 of the ST Act because s 103G relates to unauthorised erection of a structure within a lot and not to common property.
The grounds relied upon in support of the application were simply that the respondents had not sought or obtained the approval of the strata company to install the airconditioning condenser on the roof or other common property; that the strata company had written to the respondents on 26 February 2007 requesting that the condenser be removed and any damaged sheeting be replaced and that the respondents had not done so. The strata company took no further action prior to the commencement of the proceedings in July 2009.
The matter came before the Tribunal in the ordinary course for directions. In order that the Tribunal could deal with the substantial matters in dispute between the parties, the matter was adjourned to enable the respondents to formally apply to the strata company for permission for the airconditioning unit to remain. The respondents duly made that application which was refused. Consequently, the respondents issued their own proceedings, applying to the Tribunal for orders that the strata company consent to their application to approve the installation of the external airconditioning condenser and, in what must be considered as an order sought in the alternative, an order granting a licence to use the roof of the building to locate the external airconditioning condenser and associated components. Reliance was placed on a number of sections of the ST Act, including s 85 and s 94. In addition, orders were sought that an enforceable undertaking be provided, in effect, to undertake certain maintenance work. On the basis of an assertion that the proceedings constituted a minor proceeding under the State Administrative Tribunal Act 2004 (WA) (SAT Act), the respondents set out in the application an election that there be no legal representation and no appeal.
The application and counterapplication were considered together at a directions hearing on 19 November 2009. There was no concession that the proceedings constituted a minor proceeding. In any event, upon a consideration of the advantages of consolidating the matters, that the applicant was entitled to legal representation in respect of its application, and the practical difficulties in conducting the proceedings if they were not consolidated, the respondents revoked their election for their matter CC 1672 of 2009 to be dealt with as a minor proceeding. Orders were then made consolidating the proceedings and programming the matter for hearing in accordance with the Tribunal's usual procedures. The time periods were extended to allow the respondents (the applicants to the counterapplication) an opportunity to communicate with other lot owners to assess whether there was sufficient support to requisition an extraordinary general meeting (EGM) because the respondents were of the view that a majority of owners would be opposed to the action taken for the removal of the airconditioning unit.
The order made consolidating the proceeding directed that in the consolidated proceedings the applicant in the original proceedings, being matter CC 1036 of 2009, would be referred to as the applicant and the respondents in those proceedings, and applicants in matter CC 1672 of 2009 would be referred to as the respondents. The parties are referred to in the same way in these reasons for decision and all references to the provisions of any legislation are references to the ST Act unless expressly stated otherwise.

The issues for determination

In early December 2007, the respondents caused the condenser of an airconditioning unit to be installed upon the roof of their unit, No 7G, which is Lot 14 on Strata Plan 6052, registered on 17 May 1978. The strata company is The Owners of St John's Court Rivervale Strata Plan 6052 and the parcel, as described at the date of registration, comprised of 150 lots within five buildings, each being three storeyed blocks of brick and asbestos flats. The asbestos roofing has since been replaced with metal roofing. The parcel is at 66 Great Eastern Highway, Rivervale.
The orders sought by the respondents under s 85 and s 94 are premised upon the installation being upon common property, and that is accepted to be so by the applicant by reason of the application of s 3(2)(a), there being no description of the boundaries of the lots on a sheet of the floor plan.
On that premise, which is clearly correct, resolution of the following issues will be determinative of the proceedings:
1)Should the applicant's application be dismissed on any of the following grounds:
a)that the proceedings are frivolous or vexatious;
b)the council has not discharged its duty according to good governance principles and has endeavoured to enforce the ST Act and the strata bylaws in an inconsistent way.
2)Whether the council unreasonably refused to consent to the installation of the airconditioner under s 85.
3)Whether the respondents should be granted a licence to use the common property roof for the airconditioning installation, and, if so, upon what conditions?
4)Whether the applicant should be granted an order requiring the respondents to remove the airconditioner and make good any damage, and consequential orders if the respondents did not do so.
5)Whether the respondents should be granted an order against the applicant in relation to maintenance work alleged to be necessary.
6)Whether the respondents are entitled to costs.

Frivolous or vexatious

The respondents submit that the ST Act has no requirement for a lot owner to obtain approval for the use of common properties for the placement of plant and that it would be an error to imply that there is a requirement for an application or approval process within s 35(1)(b) of the ST Act.
The respondents are correct that there is no provision of the ST Act which sets out a mechanism for the obtaining of an approval from the strata company for the use of, or alteration of, common property by a lot owner. But the task of statutory construction requires that the language of the words of the statute must be interpreted, having regard to their context, legislative purpose or object, and inconvenience or improbability of result: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Western Australian Planning Commission v Dungey [2010] WASC 52 at [27] and following.
The ST Act has detailed mechanisms by which a lot owner must seek the approval of the strata company, or other lot owner in a twolot scheme, in order to carry out alterations to a lot. It would be improbable that the legislature would have so constrained a lot owner to effect alterations to his or her own property and yet allow a lot owner to do as he or she likes with common property held by the proprietors as tenants in common in shares proportional to the unit entitlement of their respective lots.
The essential feature of a tenancy in common is unity of possession, each of the tenants having the right to occupy the whole of the property in common with the others: Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 643; The Owners of Rosneath Farm Survey Strata Plan 35452 and Rowell & Anor [2007] WASAT 95 at [11] (Rosneath). At common law, all coowners are entitled to the use of each and every part of the land coowned but not to the exclusion of other coowners: Rosneath at [22].
There are many examples in the ST Act of the manner in which the use of common property by individual lot owners is controlled and the manner in which it is permissible to deal with common property. Section 18 and s 19 require that a resolution without dissent (or unanimous resolution in the case of a twolot scheme) be obtained in order to lease land which is to become part of common property, to surrender that land, or to transfer or lease common property to a third party. Similar resolutions are required in order to effect merger of common property under Div 2A of the ST Act. Importantly, s 35(1)(b) vests the control and management of common property in the strata company for the benefit of all the proprietors.
Thus, while an individual lot owner, as a tenant in common, is entitled to the use and enjoyment of any part of the common property, it is subject to the control and management of the common property by the strata company. That right of use does not enable the lot owner to exclude any other tenant in common from making use of the common property, unless by way of a resolution without dissent (or unanimous resolution in the case of a twolot scheme) a bylaw is passed granting exclusive use and enjoyment, or special privileges in respect of the common property or any part of it (s 42(8)).
The legislative intent is, therefore, that common property cannot be used to the exclusion of other lot owners, nor can it be dealt with in any of the above senses, unless the requisite resolution has been passed. The standard bylaws imposed by virtue of s 42, and which cannot be varied unless consistent with the legislation, restrict the use and enjoyment of common property in that it may only be used in a manner which does not unreasonably interfere with the use and enjoyment thereof by other proprietors, occupiers, residents or their visitors (Sch 1, bylaw 1(2)(a)). Nor may a proprietor obstruct lawful use of common property by any person (Sch 2, bylaw 2).
It is, therefore, clear that control and management of common property vests in the strata company and that any part of common property cannot be used to the exclusion of other coowners without their consent. That consent may be obtained in the above circumstances by way of the requisite resolution. The strata company may also deal with common property by way of a simple majority vote of members in general meeting where the proposal is sufficiently detailed and the expenditure is approved as part of the budget or where the nature of the proposal comes under the control and management of the common property: see Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282.
If any more were needed to conclude that on a proper construction of the ST Act, a lot owner must seek the approval of the strata company before using any part of the common property to the exclusion of other lot owners, it is selfevident from the very provisions on which the respondents rely, namely s 85 and s 94 which are predicated upon refusal of a consent, or licence, as the case may be.

In the premises, it was incumbent on the respondents to apply to the strata company for approval, and it follows that the application by the applicant is not frivolous or vexatious.

Governance and inconsistency

The respondents raise a number of allegations concerning whether a councillor is acting improperly and not paying rental for the use of a storeroom and whether or not the council showed poor judgment in failing to insulate the roof at the time of its replacement, in failing to install roof ventilation at the same time and in failing to develop a 'Management Statement' to establish appropriate use of common property and placement of airconditioners' and numerous like alleged failures. It is also alleged that the council had not received approval to incur the cost of retaining its legal representatives in these proceedings.
It is not necessary to list all of the allegations as they are all irrelevant to the determination of the substantive issues before the Tribunal. They are matters to be taken up, initially, through the democratic management of the strata company under which the councillors are accountable to the members of the strata company. If, thereafter, there is some identifiable wrong in relation to which this Tribunal or any other court has jurisdiction, then those matters need to be addressed by specific proceedings in the appropriate jurisdiction.
There are, however, allegations that the council has acted inconsistently in the way in which it has dealt with the existing airconditioners installed within the parcel. This is a matter clearly relevant to the exercise of the Tribunal's discretion.
The respondents have provided photographic evidence showing that there are a number of units or flats within the parcel which have airconditioners which are clearly visible from outside each lot. It is common cause that the applicant has not required any of these installations to be removed. The applicant says that some of the airconditioners were installed prior to registration of the strata plan. The applicant asserts that those airconditioners have been allowed to remain on common property and in accordance with exclusive use rights granted by Sch 1, bylaw 20. This bylaw purports to have come into effect pursuant to a notification of change of bylaws passed by resolution, without dissent, on 17 June 1998 and which became unconditional on 30 July 1998 in terms of which bylaws 16 to 23 were added to the standard Sch 1 bylaws. There is a question as to the validity of these additional bylaws.
The front sheet of form 21 shows that notification of the change of bylaws was received by the Registrar of Titles on 17 September 1998, which is one day outside the three month period within which notice must be given and within which the Registrar of Titles is required to make a reference to the amendment on the appropriate registered strata plan. The strata plan does not contain a reference to the additional bylaws. This is a matter which the applicant would do well to address because it has potential to create a great deal of uncertainty with regard to the exclusive use rights dealt with within the added bylaws.
In any event, it appears that the applicant has operated on the basis that bylaw 20 operates, and acknowledges that where items such as, amongst others, airconditioners are installed on common property prior to the registration of the strata plan, which is solely for the exclusive use of a particular lot, the cost of maintenance, repairs, servicing and replacement of the items shall be the responsibility of the respective proprietor.
Otherwise, in relation to most of the other airconditioners identified by the respondents, the applicant states that the airconditioners have been located within the exclusive use areas of the common property balconies and courtyards. While the grant of that exclusive use may now be open to some doubt, it does reflect a consistent approach taken by the applicant in that it has continued to grant airconditioning approvals provided they are so located. An example is given in respect of Lot 78. The respondents' evidence includes a photograph showing the airconditioner installed on the brick façade near a window. The applicant asserts that the correct lot number is Lot 54, and that the approval for the airconditioner was granted on the basis that it would be located with the motor (condenser) on the outside verandah (applicant's document 10). When it was discovered that the airconditioner had not been installed in this location, the matter was taken up with the agent for the owner of the lot by letter dated 5 February 2009, resulting in the airconditioner being relocated at ground level within the boundary of the concrete slab which constitutes the verandah of the unit (applicant's document 13).
Otherwise, the applicant asserts that it has also allowed proprietors to install airconditioners on other locations on the common property, in areas, for example, where the amenity of the scheme would not be seriously affected, for example, by using the internal service ducts.
The photographs provided by the respondents are consistent with the explanations given above by the applicant. There has been no evidence provided of any other airconditioning unit being installed on the roofs of the buildings within the parcel.
The applicant states that before the asbestos roofs were replaced, many proprietors had placed items on the roofs in an uncontrolled manner, which led to problems with the integrity of the roof structures and also contributed to the parcel having very poor visual amenity. Further, the applicant states that it has not allowed proprietors to haphazardly install items on the common property roofs. It is stated that the council resolved to ban any private installation on the roofs and agreed to pay for whatever 'master' antennae were required in each block to allow for continuation of free to air signal to all proprietors. Foxtel satellite dishes have been allowed but have been contained to the minimum number of dishes required to enable all proprietors to a block access to pay TV services.
There is no evidence of any other owner being permitted to install an airconditioning unit on the roof and, for the above reasons, it is not established that there has been inconsistency in approach by the council of the applicant in dealing with airconditioner issues.

Whether the council of the applicant unreasonably refused consent for the airconditioning installation

Section 85 provides that where, pursuant to an application by a proprietor, the Tribunal considers that the strata company has unreasonably refused to consent to a proposal by that proprietor -
a)to effect alterations to the common property; or
b)to have carried out repairs to any damaged common property or any other property of the strata company,
it may make an order that the strata company consent to the proposal.
As already stated, s 42(8) enables a bylaw to be registered, granting a proprietor special privileges which may include the installation of an airconditioner on common property. It is feasible that the bylaw might also grant exclusive use of a particular area of common property for that purpose. As envisaged by the respondents, either s 85 or s 94 may provide a mechanism by which the right to install and maintain an airconditioner on common property may be granted. It would be necessary to examine the various mechanisms available in order to ensure a consistent application of the legislation. For instance, when regard is had to the manner in which a particular airconditioning unit is installed, should the installation be properly characterised as an alteration to common property, or is the work involved in altering the common property merely incidental to using the common property to support the equipment? In the former circumstances, an application under s 85 may be required, and in the latter circumstances an application under s 94.
But the applicant contends that s 85 contemplates a prospective operation so that application for consent must be sought before any work is carried out. There is some recent support for that proposition in the decision of Duffy and Owners of Warrawong Strata Plan 7976 [2010] WASAT 113 (Duffy) in which the Tribunal specifically held that an application under s 85 must fail because no proposal was put to the strata company prior to effecting the alterations in question. I should follow that decision unless I conclude that it is clearly wrong in order to maintain the integrity of the decisionmaking process: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639; Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45. The respondents are not legally represented and have not put forward any submissions on this matter. Without the benefit of any submissions, I am unable to conclude that Duffy is clearly wrong and it follows that the respondents are therefore not entitled to the order they seek under s 85.
In any event, the factual findings made, and the Tribunal's consideration in relation to s 94 below, have equal application to the determination of whether it might be concluded that the applicant has acted unreasonably, for the purposes of s 85, in refusing the proposal. For those reasons, I consider that the refusal of the proposal under s 85 was not unreasonable.

Whether a licence should be granted

Section 94 provides as follows:
94. Order granting certain licence
(1)Pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal may, subject to this section, order that the applicant, and any occupier or other resident of the lot of which the applicant is the proprietor, may use specified common property in such a manner, for such purposes, and upon such terms and conditions, if any, as are specified in the order.
(2)The State Administrative Tribunal shall not make an order under subsection (1) unless satisfied
(a)that the lot of which the applicant is proprietor is incapable of reasonable use and enjoyment by the proprietor, occupier, or other resident of the lot unless the order is made; and
(b)that the strata company has refused to grant a licence to use common property in such a manner, for such purposes, and upon such terms and conditions as would enable that proprietor or such an occupier or other resident reasonably to use and enjoy that lot.
(3)An order under subsection (1), when recorded under section 115, has effect, subject to any order with respect thereto made by a superior court, as if its terms were a bylaw.
The respondents made an application by letter dated 13 August 2009 to the council of the applicant 'seeking approval of the installation of the external airconditioning condenser upon the roof of unit 7G/66 Great Eastern Highway, Rivervale' pursuant to s 85 and s 94. Attached to the letter was a further letter of the same date, setting out in full a motivation for the application.
The application did not propose any particular conditions be applied to the approval which was sought. When that point was taken by the applicant in its statement of issues, facts and contentions, the respondents proposed terms and conditions by way of a facsimile dated 18 November 2009 addressed to the applicant's solicitors. Those terms incorporated that the respondents would be responsible for repair and maintenance of the airconditioning system and would repair at their cost any damage to the common property on which the unit is situated, caused by and directly attributable to components of the airconditioning system being located on common property.
Some issue was made about whether or not it was incumbent on the respondents to propose such terms and conditions, or whether they, or other conditions, could have been imposed by the applicant. Nothing turns on that because if the Tribunal considers that it is otherwise appropriate to grant a licence, it would be on such terms and conditions as the Tribunal considers necessary. It is not as if the respondents have refused to accept responsibility for maintenance or any other conditions.
It must be said that the motivation set out by the respondents makes a compelling case for the need for airconditioning and it is readily apparent that the lot is incapable of reasonable use and enjoyment without airconditioning. The most significant factors justifying this conclusion are that the applicant changed the roof from asbestos to a metal roof. The respondents' assertion that asbestos is a poor conductor of heat and that metal is a good conductor resulting in greater transmission of heat into the lot has not been disputed. In addition, the applicant took it upon itself to remove a large tree to the west of the respondents' unit, removing shade which would otherwise have been provided during the heat of the afternoon. The lot is westfacing and therefore is exposed to the worst of Perth's summer heat. The temperature inside the unit was recorded as being as high as 54 degrees centigrade during summer. Further, when the roof was replaced, the applicant did not take the opportunity of installing any installation into the ceiling.
The applicant does not dispute any of the above and makes it clear that it would approve the installation of an airconditioning unit on the verandah of the respondents' lot which has the capacity to cool the whole unit. The respondents already have a smaller airconditioning unit in this location which, it appears, has been in place for some time.
In 2007, after replacement of the roof and removal of the tree, the respondents' then tenant threatened to vacate because of the excessive heat within the unit. The respondents reacted quickly to this threat by installing a small 1 horsepower airconditioning unit, the condenser of which was placed on the common property roof. Also attached to the respondents' application to the applicant is a report from an airconditioning contractor dated 8 August 2009, setting out the reasons why the roof was the only practical location for this second airconditioner. None of the reasoning advanced in that report is disputed by the applicant. It is accepted that the most practical place for the location of the second airconditioning condenser is the roof.
It may well have been the least expensive option for the respondents to install a small airconditioning unit to supplement that which was already in use. But it is not possible for them to demonstrate that the lot is incapable of reasonable use and enjoyment other than by permitting the course which they followed. If they had properly appreciated the need to obtain the consent of the applicant, and had ascertained what was likely to be permitted, they may well have chosen to replace the existing airconditioning unit with one having sufficient capacity to service the entire lot.
In these circumstances, the respondents are not entitled to an order granting a licence to use the common property roof for the airconditioner as installed.

Whether an order should be made for removal

The applicant's case is simple, that the respondents needed the consent of the applicant in order to install an airconditioning unit upon the common property roof, and they did not seek that approval until after commencement of these proceedings by the applicant.
The applicant contends that it has adopted a consistent policy of not allowing unnecessary installations on the roof in order to enhance the aesthetics of the parcel. That approach has been taken since the replacement of the asbestos roof by a metal roof. Further, there is no other airconditioning unit installed on the roof and if the respondents are permitted to retain the airconditioner as installed, it will set a precedent because some of the owners may wish to follow suit.
The Tribunal has a discretion whether or not to settle a dispute of this nature by making an order for the removal of the airconditioner pursuant to s 83 of the SAT Act.
In the exercise of that discretion, the Tribunal should be slow to interfere with the management decisions of a strata company but it will intervene where the strata company acts unreasonably: The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1 at [58] and following. Although the commentary is there concerned with the refusal of consent to a proposal, the subject of a s 85 application, it applies equally to other aspects of decisionmaking by a strata company.
In this case, the respondents contend that the strata council is not representative of the owners and that the issue has never been taken to a general meeting of the applicant. It is contended that it is a common practice in both commercial and residential buildings for airconditioning units to be installed on roofs. That may be so, but it is a matter for the strata company acting within its powers, to decide on the degree of uniformity in the external appearance of the development, either in total or in particular respects: see Harold & Gladys Verryt and Ann Williams [2005] WASAT 101; Crockett & Anor and Munroe & Anor [2006] WASAT 382.
The initial proceedings were specifically adjourned to enable the respondents to seek support of other owners and, if need be, to requisition an EGM of the strata company. The respondents were unsuccessful in gathering the support of 25% of members to enable that course to be followed. Nevertheless, a standard form was devised by the respondents and sent to all owners. Lot owners were asked to respond to a number of questions relating to the use of strata levies to cover the cost of the proceedings and any possible appeal. The most pertinent question to these proceedings was one seeking the owner to state that he or she did not authorise the strata company to proceed with the application before the Tribunal. Sufficient support in relation to that question would have reflected that owners were not concerned about airconditioners being installed on the common property roof. The respondent received only 28 responses from the 150 lot owners. Only nine of those responses indicated that the owners did not authorise the strata company to proceed with the application.
The council members are democratically elected. Section 44 empowers the council to perform all the functions of the strata company, subject to the provisions of the ST Act and any restriction imposed or direction given at a general meeting, and, of course, under s 35(1)(b), the strata company is charged with the control and management of the common property for the benefit of all of the proprietors.
It can be fairly inferred in these circumstances that the majority of owners are satisfied with the course which has been adopted by the council on behalf of the applicant. There is no sufficient basis upon which to find that the council, and therefore the applicant, is acting unreasonably in ensuring that airconditioning units are not installed on the roof and that other installations, such as satellite dishes and aerials, are kept to a minimum. The applicant is entitled to, and will be granted, orders for the removal of the airconditioning condenser and that the respondents make good any damage occasioned by that removal. The precise terms of the orders sought are as set out in a minute of revised orders filed on behalf of the applicant on 16 December 2009. The orders there set out, with one exception, are consistent with those originally expressed in the application. The orders sought include an order that if the respondents fail to comply with the order for removal, it be declared that the strata company may carry out the work pursuant to s 38(3) of the ST Act.
A declaration that the strata company is entitled to carry out the work is not necessary because s 38(3) expressly permits the strata company to carry out the work where a proprietor, relevantly, fails to comply with an order of the Tribunal. The ST Act grants no express power to make a declaration and under s 91 of the SAT Act, only a judicial member is empowered to make a declaration. If it were necessary to grant a declaration in order for the relief sought to be effective, the Tribunal could be reconstituted for that purpose. But the applicant's rights are not advanced by the declaration, given the statutory entitlement for it to carry out the work in the stated circumstances. Where it does so, s 38(4) of the ST Act permits the strata company to recover the cost of so doing as a debt in a court of competent jurisdiction.

The one order sought in the minute of revised orders that was not previously claimed is an order pursuant to s 95 of the SAT Act to the effect that the section applies. The effect of such an order is that a person who fails to comply with a decision of the Tribunal commits an offence for which a penalty of $10,000 may be imposed. Section 95 can, however, also be made applicable without an order issuing at this stage that it applies to the decision if, after a person fails to comply with the decision, the Tribunal then makes an order to the effect that s 95(1) applies and the failure continues after notice of that order is served.
The practice of the Tribunal is only to make an order declaring that s 95(1) applies to the decision at the time when it is made in circumstances where it appears likely that the person concerned will not comply with the order. Usually that is because of a prior history indicating that likelihood, such as a consistent failure or refusal to comply with a clear obligation often accompanied by a reluctance to participate in any meaningful way in the proceedings before the Tribunal. This is not such a case. The respondents have a genuine and heartfelt grievance with the manner in which the strata company is being managed. Apart from the initial letter already referred to in February 2007, requiring removal of the airconditioning, there was no followup until these proceedings were commenced. The respondents have acted in a responsible way in opposing the application for removal and in advancing their own counterapplication to enable the airconditioning unit to remain in place. An order declaring s 95(1) to apply is not warranted on the evidence before the Tribunal.

Orders relating to performance of maintenance obligations

The respondents seek an enforceable undertaking that the applicant rectify, in a timely manner, the issues titled Damp, BrickWork, Ceiling Failure, Locked Service Area, Trip Hazard, Landing Nosing, Going Nosing identified in an email titled 'Re: Meeting 9.30 Friday 7G/66 Great Eastern Highway, RIVERVALE.' In addition, a similar undertaking is sought in relation to the rectification of damage said to be caused by the damp within 20 working days.
There is little evidence to support these claims. The applicant has produced evidence demonstrating that it has not been granted access to inspect the ceiling complaint. In relation to the brickwork, an engineer engaged by the applicant has reported that the common property wall adjacent to Lot 14 is structurally adequate and that there was nothing requiring immediate work. In relation to damp, the applicant arranged for a plumber to inspect water damage to a bedroom wall in the respondents' unit. A report from the plumber dated 30 November 2009 reveals that the plumbing to a 'common laundry' adjoining the bedroom had been disconnected and that although there was evidence of water damage to the bedroom wall, it was 'totally dry' at the time of inspection. The conclusion was expressed that at some stage water leakage had occurred from the common laundry. Whatever maintenance is required to common property has been carried out. The true characterisation of the respondents' claim is one for damages as a result of an apparent failure to maintain the plumbing to the adjoining laundry. There is no obligation on the strata company to carry out work within a lot. If the applicant is not willing to arrange and bear the cost for remedial work to the wall of the bedroom, which may only involve preparation and painting, the respondents may consider carrying out the work and commencing proceedings in a court of competent jurisdiction, or before this Tribunal, bearing in mind the limited jurisdiction which the Tribunal has to make an order for payment of money under s 84.
In relation to the remaining claims, there is insufficient information provided to the Tribunal to enable the claims to be properly assessed. In relation to the locked service area, complaint is made about the area being padlocked and the email, dated 30 September 2009, concludes with a query as to whether the lock has been removed. There has been no attempt to place more current evidence before the Tribunal in relation to the alleged trip hazard, landing nosing and going nosing complaints. There is reference in the first instance to a single unmarked step, a reference to an antislip stair nosing on the landing of both stairs to G Block being missing and needing to be replaced, and to the nosing on the going of the stairs between F and G Blocks giving access to the car park being badly damaged and needing to be fixed or replaced. There is no photographic evidence and no report from a building consultant or other person qualified to express a view about the complaints. The strata company of course has an absolute obligation to maintain the common property but in a parcel of this size, one would expect that there would be a program for that to occur and for work to be prioritised. It is asserted for the applicant that the strata company has the common property regularly inspected.
It appears likely that there is maintenance of some form or other required in each of the locations of which the respondents complain. The Tribunal will intervene to ensure that an adequate maintenance program is in place and that necessary repairs are undertaken, but it will only do so on the basis of satisfactory evidence to establish that the strata company is in breach of its obligations: see Brosolo and Council of Owners of 25 St Leonards Strata Plan 352 [2008] WASAT 285; and in circumstances in which there is sufficient detail to make orders clearly identifying the work to be undertaken. It is not appropriate that the Tribunal should intervene on the strength of mere assertion that particular work requires to be done without sufficient information to enable the Tribunal to ensure that any order it might make is certain and enforceable. The Tribunal declines to make orders in relation to these further complaints.
It should be mentioned that the applicant's counsel has submitted the Tribunal does not have jurisdiction to make the orders sought which are framed in terms requiring an undertaking for work to be carried out. That submission is strictly correct, but if there was merit in the substance of the complaint, the Tribunal would afford the respondents an opportunity to amend the application to claim relief in an appropriate form.

Cost orders

The respondents have sought an order for the recovery of costs. The costs claimed are not specified. Reliance has been placed on s 81(7)(a) and s 81(11) of the ST Act and s 87(3), s 87(6) and s 88(3) of the SAT Act.
The respondents' application for costs is misconceived. By virtue of s 5 of the SAT Act, in the event of any inconsistency between it and the enabling legislation under which the Tribunal exercises jurisdiction, the provisions of the enabling Act apply. Accordingly, none of the cost provisions of the SAT Act have any application in the face of s 81(7) of the ST Act which provides that the Tribunal cannot make an order for the payment of costs in connection with an application except in two particular circumstances. The second of these clearly has no application as it applies where an order is sought for a variation of unit entitlements which is unreasonably opposed. The first exception could potentially apply, as it operates when an applicant is allowed to amend the application, to compensate persons for time unnecessarily spent in connection with the application.
The applicant has made no substantive amendment to the application. At one of the earlier directions hearings on 13 August 2009, the Tribunal noted in its order made on that day that the application was amended to reflect that the applicant relies on s 83. That amendment was necessary because the application had originally been brought under s 103G(1) which relates to unauthorised work carried out to a lot, rather than to common property as in this case. That did not in any way change the substance of the case and could not possibly have resulted in any wasted costs.
The Tribunal declines to make any costs orders in favour of the respondents.

Orders

For the above reasons, the Tribunal will issue an order as follows:
A.In respect of matter CC 1036 of 2009:
1.On or before 8 October 2010, Bevan Clark and Marija Clark, as proprietors of Lot 14, must remove the airconditioner mounted on the common property roof and all associated cabling and ducting and make good all the common property affected by such removal, at their cost.
2.The application is otherwise dismissed.
B.In respect of matter CC 1672 of 2009:
1.The application is dismissed.
2.The application by Bevan Clark and Marija Clark for costs is refused.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER