THE OWNERS OF THE JAMES AT NORTHBRIDGE and KOBWELLS PTY LTD
[2005] WASAT 23
•11 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: THE OWNERS OF THE JAMES AT NORTHBRIDGE and KOBWELLS PTY LTD [2005] WASAT 23
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: DETERMINED ON PAPERS
DELIVERED : 11 MARCH 2005
FILE NO/S: ST 83 of 2004
BETWEEN: THE OWNERS OF THE JAMES AT NORTHBRIDGE
Applicant
AND
KOBWELLS PTY LTD
Respondent
Catchwords:
Real property - Strata titles - Common property - Structural alterations - external signage
Legislation:
State Administrative Tribunal Act 2004 (WA), s 11(1), s 47(1)(a), s 92(1), s 92(3), s 176(4)(b)
State Administrative Tribunal Rules (WA), r 22
Strata Titles Act 1985 (WA), Pt VI Div 1, Pt VI Div 2, s 7, s 7(2), s 7B, s 7(5), s 17(1), s 42, s 42(2), s 81(2), s 81(3), s 81(4), s 103G(3)(b)
Strata Titles General Regulations 1996 (WA), reg 30
Result:
The respondent is ordered to remove the external structure (storage shed) within 60 days of the date of this order (s 103G(3)(b)).
The respondent is ordered to refrain with immediate effect from using the fire escape in any way that may be in breach of fire regulations with immediate effect (s 81(3)).
The application to have any external signage removed is dismissed due to a lack of substance (s 81(4)).
The respondent is ordered to undertake within 60 days of this order or such longer period of time agreed to in writing by the strata company, all the necessary repairs so as to prevent fluids from escaping and/or penetrating the floor of lot 1 into the parking area (s 103G(3)(b)).
In terms of s 81(3) the respondent is ordered to take all steps that are reasonable to ensure that the occupier/s of the lot/s comply with these Orders in terms of s 42(7).
I declare that s 95 of the State Administrative Tribunal Act which deals with failure to comply with a decision, applies to Orders 1, 2, 4 and 5.
Category: B
Representation:
Counsel:
Applicant: Self Represented
Respondent: Self Represented
Solicitors:
Applicant: Self Represented
Respondent: Self Represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR B DE VILLIERS (MEMBER):
REASONS FOR DECISION
Issue
Additions and alterations to common property, alleged damage to common property, the display of external signage and use of fire-escape for unauthorised purposes.
Applicants and Respondent
The applicant is the "The Owners of The James At Northbridge –Strata Plan 31304".
The respondent of lot 1 is the registered proprietor and respondent is Kobwells Pty Ltd of 12 Twin Branch Rise, Leeming. At the time of application the occupier of lot 1 was trading as "Golden Century Seafood Chinese Restaurant".
Application transferred to the State Administrative Tribunal
The Strata Title Referee appointed in terms of Pt VI Division 1 of the Strata Titles Act 1985 (WA) originally received this application for investigation in terms of Pt VI Div 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. The matter was dealt with in full on the basis of these written submissions but the referee had not made a determination prior to the matter being transferred to the State Administrative Tribunal on 1 January 2005.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). On the same day, this matter was transferred to SAT in terms of s 167(4)(b) of the SAT Act for continuation.
The President of SAT nominated me in terms of s 11(1) of the SAT Act to constitute the Tribunal for purposes of determining this matter.
I have now considered the submissions and make the following determination.
Strata Plan and Relevant Act
Strata Plan 31304 ("the Strata Plan") was registered on 9 August 1996, pursuant to 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 a multi‑level mixed use development comprising 40 upper‑level residential lots and 2 ground floor restaurants plus 47 basement level car bays. It is situated at 203 James Street, Northbridge, although the strata company's address for service of notices is, according to the strata company's managing agents, ReMax Realmark, 191 James Street, Northbridge.
Lot 1 is operated as a Chinese restaurant under the name of "Golden Century Seafood Chinese Restaurant". The registered proprietor and Respondent is Kobwells Pty Ltd of 12 Twin Branch Rise, Leeming.
The applicant has not indicated whether or not the registered proprietor of lot 1 is also the operator of the restaurant business.
By‑laws
When the strata plan was registered, its by‑laws were, pursuant to s 42(2), the "standard" by‑laws contained in Sch 1 and Sch 2.
Notification G524519, recorded on the strata plan on 7 July 1997, contains amendments to Sch 1, by‑law 1(b) and Sch 2, by‑law 12(c). It also records the addition of a new Sch 1, by‑law 3(A), but those changes and that addition are not relevant to this application.
Orders Sought
The applicant has sought orders in the following terms:
"In accordance with s 83(1) -
That the Proprietor and Occupier of Lot 1 currently trading as Golden Century Seafood Chinese Restaurant.
1.Repair and maintain the lot, in particular the pipe/sewer penetrations through the slab which is causing water ingrossing into the basement car park with resulting damage to the slab and paint to vehicles
2.Cease to prop [sic] opening the Fire escape
3.Removal of storage shed build without approval as per s 7
4.That the tenancy signs external of the building are removed as no approval was sort [sic] or given as per scheme 2 bylaws item 7b."
Deficiencies in Application
"77B. Disputes procedures for scheme to be followed:
(1)An application for an order under this Part in relation to a scheme shall be accompanied by a certificate under subsection (2) given by the applicant.
(2)The certificate must state either —
(a)that there are no relevant provisions in the by‑laws of the strata company for the scheme that relate to the resolution of the matter in dispute; or
(b)that there are such provisions and the applicant has, so far as is possible, complied with them.
[Section 77B inserted by No. 58 of 1995 s. 68.]"
The application in this matter is defective because it has not shown which of those alternatives is applicable to the scheme and the "certificate" is undated.
However, having examined the strata company's by‑laws, I am prepared to proceed with my consideration of the application, despite that defect. I also note that in terms of s 92 (1) and s 92 (3) of the State Administrative Tribunal Act and rule 22 of the State Administrative Tribunal Rules2004 (WA).
Lot Boundaries and Exclusive Use Areas
Lot 1 comprises 344 m2 internal portion on the ground floor and an external portion of 390 m2. The external portion extends to 5 metres above the surface. Two basement car bays are situated below lot 1. The bays are part of common property.
The only other lot on the ground floor is lot 2 which comprises a 339 metre square internal portion on the ground floor, a 386 metre square external portion on the ground floor, covering most of the south‑eastern corner of the parcel, and two basement car bays situated below it.
There are no shared walls between the internal ground floor portions of lots 1 and 2. Those two portions are separated by a common property access way.
The external ground floor portion of lot 2 is separated from the external ground floor portion of lot 1 by a wall, as shown on the strata plan.
The strata plan contains the following notations
"•The external face of the walls defining the lot within the building are the boundaries except where the wall is common then the centreline of said wall is the boundary.
•The stratum of the part lots external to the building extends 5 metres above the floor level of the building in the respective lots except where covered."
On the basis of those endorsements, the internal portion of lot 1 extends out to the external surfaces of the walls surrounding that portion, and the external portion of lot 1 extends from the outer surface of the part of the building containing the internal portion of lot 2 to the centre plane of the wall dividing the external portions of lots 1 and 2 and to the south western and south eastern rear boundaries of the parcel.
The building's car parking bays are contained within the basement area below lots 1 and 2 and below parts of the ground floor and are part of common property.
Common Property
Pursuant to s 3(1) and s 3(2), as qualified by the endorsements referred to above, the lower boundary of the internal portion of lot 1 is the upper surface of the floor of the part of the building in which it is situated. The upper limit of that part is the under‑surface of the ceiling above that portion.
Ownership of Common Property
Section 17(1) provides:
"Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots."
Applicant’s Submissions
In its application, the applicant's "grounds in support" are not expressed in any detail but simply state:
"Minutes of AGM 27/11/2003".
The applicant has provided a copy of the minutes of the Strata Company's Annual General Meeting held on 27 November 2003 ("the 2003 AGM"). It appears that there had been an earlier attempt to hold the 2003 AGM but that there had not been a sufficient quorum. The minutes refer to the 27 November 2003 as "the adjourned 2003 Annual General Meeting". Those minutes include:
"Chinese Restaurant
Gerry Kenworthy gave an overview of the problems with the wet areas of the restaurant causing water and other liquid matter to seep through the slab and into the car park below.
Some residents have had damage to the paint on their vehicles.
Strata manager advised that the owners of the lot have been written to without any response what so ever. …
…
After some discussion, it was put that the matter should be referred to the Strata Titles Referee. …"
The minutes also include:
"Fire Door
The fire door adjacent to the Chinese restaurant is being propped open which is against fire regulations. This matter also to be referred to the referee.
…Signs
The signs for both restaurants do not have strata company approval and as such should be removed. Refer to the strata titles referee. …"
The applicant has provided me with a copy of pages 11, 12 and 13 of a report dated 5 June 2003 prepared by MJB Payne Consultants, Consulting Engineers. These pages deal with the matter the subject of this application. The report includes a number of photographs. The report also includes:
"…In the vicinity of the kitchen of the Chinese Restaurant there are several leaking pipes…photograph 23 is said to illustrate a tray placed under a leaking floor gully to catch drips."
Photograph 24 is said to be of another leaking floor gully with tray beneath and photograph 25 is said to illustrate a puddle on the floor from a tray drain…
"In Photograph 24, white stains and stalactites can be seen on the concrete behind, indicating that long‑term leakage has occurred in this area of the kitchen in the past. However, no sign of present leakage was found and it may be that that the problem is now fixed …"
The report continues with comments about possible leakings through the floor gullies of the Chinese Restaurant operated on lot 1, but adds that:
"The damp stains and stalactites on the concrete, as seen on Photo 24, are of more concern because they indicate that water could still be leaking through concrete (perhaps from washing‑down of the kitchen floor?).
RECOMMENDATIONS:
•Break out kitchen floor to expose gullies.
•Ensure that gullies have puddle flanges (replace if necessary).
•Check pipe system for leaks.
•Check remainder of kitchen floor for leaks that may be causing stains in Photo 24. (Arrange for Engineer to be present).
•Repair floor around gullies by first priming the existing concrete and then filling the void with a polymer‑modified non‑shrink grout (pourable).
•Remove drip trays and clean remaining pipework.[sic]
•At the leaking pipes in Photo 26, ensure that the new membrane applied to the patio above is fully bonded to these pipes. …"
The Applicant has provided a copy of the minutes of a meeting of its Council of Owners that was held on 16 July 2003. The minutes include:
"… AREAS REQUIRING IMMEDIATE ATTENTION
Chinese Restaurant
The penetrations to the slab are allowing water seepage which in the long term has the potential to cause concrete cancer.
Also the operator has illegally connected the waste pipe from the washing machine into the storm drain. This has been done by removing brick paving and cementing in the pipe, adding to the water problems.
Also a down pipe at the rear of the storage area requires to be connected to a stormwater drain as it currently empties onto the paving area adding further to water seepage into the slab."
In a letter dated 25 July 2003 the strata manager wrote to the then proprietor Kobwells Pty Ltd to provide them with a copy of the MJB Payne report and to give 28 days notice for the problems to be attended to.
I was not provided with detailed information regarding the storage shed allegedly situated on the outside portion of lot 1. There is no reference in the minutes of meetings provided to me in regard to the matter. Mention is made in the minutes dated 27 November 2003 of the installation of "roof decking" by another tenant called Dempasar Moon Restaurant but that is not the subject of orders sought in this application. One respondent did however refer to the shed in support of it being removed. The respondent did not challenge the requested order relating to the removal of the shed.
Response to Application
The proprietor of lot 22 has supported the application, but without providing any grounds or other information relating to his support.
The proprietor of lot 41 has supported the application. He mentions in regard to Order 1 that the "water or whatsoever is causing us great concern" as it is damaging the vehicles and may also erode the concrete. In regard to Order 2 he observes that the illegal use of the fire escape is causing a hazard and "must be stopped". He does not offer any comments in regard to Orders 3 and 4.
The proprietor of lot 9 has supported the application by stating the following in regard to each order sought:
1.Holes have been cut in the slab floor when the restaurant was fitted out and the pipes that were installed were not properly sealed. As a result, water runs down alongside the pipes, not through them. "This water ends up running through the slab and into the car park." This in turn causes damage to cars, will contribute to concrete cancer problems and gives off an unpleasant smell.
2.The fire-escape door is being wedged by the restaurant to give staff access to the street without having to go through the restaurant. "As such, the fire escape is stained with oil, grease and graffiti."
3.The operators of the restaurant have built a storage shed on the rear patio "without permission of the 'Owners'". The shed contributes to drainage problems and presents poorly.
4.The external signage to the restaurant was "also erected without permission. Although this would be the most minor of issues, the restaurant owners appear to be unaware of the operations of strata titled buildings. They operate without reference to the owners. They need to be made aware of such operations."
No submission opposing the application has been received. However the Strata Manager Mr Brian Rulyancich in his submission dated 21 September 2004 indicated that although the Strata Company had not raised the concerns regarding the signage directly with the owner, the minutes of meetings had been circulated.
Section 7 and Section 7B
Section 7 provides, relevantly, that unless all the proprietors of lots in a strata scheme have given their approval in writing to a proprietor wishing to erect, alter or extend a structure on a lot, that proprietor must make a formal application to the strata company for approval to carry out the proposed works.
The procedures and requirements for such an application are set out in s 7(4) and s 7B, and reg 30 of the Strata Titles General Regulations 1996.
The approval of the strata company, by way of a resolution without dissent, must be obtained before such works are commenced. However, a proprietor who wishes to vote against the proposal is restricted by s 7(5) to a limited range of objections. A proprietor who casts a dissenting vote must specify the grounds for his or her dissenting vote.
Section 42
Section 42 includes:
"(5)A lease of a lot or common property shall be deemed to contain an agreement by the lessee that he will comply with the by-laws in force.
(6)Without limiting the operation of any other provision of this Act, the by-laws for the time being in force bind the strata company and the proprietors and any mortgagee in possession (whether by himself or any other person) or occupier or other resident of a lot to the same extent as if the by-laws had been signed and sealed by the strata company and each proprietor and each such mortgagee, occupier or other resident respectively and as if they contained mutual covenants to observe and perform all the provisions of the by-laws."
Relevant By-laws
The strata company's Sch 2 by‑laws include:
"13.Notice of alteration to lot -
A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by‑laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
14.Appearance of lot
A proprietor, occupier or other resident of a lot shall not, without the written consent of the strata company, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building."
Finding
I find the following in regard to the submissions made:
1.The submissions by the applicant in regard to the structure (storage shed) are lacking detail regarding the nature, structure and location of the shed. However in the absence of any submissions by the respondent I accept the information provided to me by the applicant and the submission made by the proprietor of lot 9 namely that the shed was erected without the necessary approval as required by s 7(2). The strata company has a statutory duty in terms of s 35(1) to ensure that by-laws are enforced, and in terms of s 7(2) to ensure that no structure is erected without certain requirements being met. I conclude therefore that the respondent has acted in breach of s 7(2) and s 7B and Sch 2 bylaw 13 and bylaw 14 in erecting the storage shed.
2.The respondent has undertaken structural works and installations within the kitchen area of lot 1 in breach of s 7(2) and s 7B of the Act and Sch 2 by-law 13. This has caused or contributed to leakages into the car park area with resultant damages to structure and other property. The respondent has not challenged the submissions made by the applicant and other parties who support the application. I therefore find in terms of s 103G(4)(a) that a breach of s 7(2) by the respondent has occurred by the undertaking of such works. I am hence empowered in terms of s 103G(3)(b) to specify a time within which the works and installations have to be removed and for any consequential orders such as the repair of damage that may have been caused by the erection of the structure and/or the removal thereof to be remedied by the respondent (s 81(2)).
3.The respondent uses the fire escape in a manner that is in breach of safety and security requirements that regulate the use of fire escapes. The respondent has not challenged the submissions made in regard to the unauthorised and improper use of the fire escape. I am empowered in terms of s 81(3) of the Act to order a proprietor or occupier of a lot "to refrain from doing a specified act with respect to a parcel" and hence to order the respondent to comply with immediate effect with all safety and health regulations affecting the use of a fire escape.
4.The respondent has erected external signage in breach of s 7(2) of the Act and Sch 2 by-law 14. From the submissions it would seem that no application to erect the signage had been submitted. However it also appears that the strata company did not query the respondent in regard to the erection of the signage at any stage until the application was lodged to the Referee. Although the minutes of meetings had according to the applicant been circulated to all proprietors, I would expect the applicant to at least engage a proprietor to bring a concern to his attention, prior to referring a matter to the Tribunal. Account must be taken of the fact that the premises is used for operating a restaurant and that some form of external advertising would seem reasonable. In fact one of the submissions (by lot 9) made it clear that the question of advertising is not really a major matter. I conclude that, in terms of s 81(4) this matter lacks substance. I also refer in this regard to s 47(1)(a) of the State Administrative Tribunal Act which empowers me to dismiss an application that lack substance.
Orders
In accordance with s 81 of the Strata Titles Act I order as follows:
1.The respondent is ordered to remove the external structure (storage shed) within 60 days of the date of this order (s 103G(3)(b)).
2.The respondent is ordered to refrain with immediate effect from using the fire escape in any way that may be in breach of fire regulations with immediate effect (s 81(3)).
3.The application to have any external signage removed is dismissed due to a lack of substance (s 81(4)).
4.The respondent is ordered to undertake within 60 days of this order or such longer period of time agreed to in writing by the strata company, all the necessary repairs so as to prevent fluids from escaping and/or penetrating the floor of lot 1 into the parking area (s 103G(3)(b)).
5.In terms of s 81(3) the respondent is ordered to take all steps that are reasonable to ensure that the occupier/s of the lot/s comply with these Orders in terms of s 42(7).
6.I declare that s 95 of the State Administrative Tribunal Act which deals with failure to comply with a decision, applies to Orders 1, 2, 4 and 5.
I certify that this and the preceding 14 pages comprise the reasons for decision of the Tribunal.
_________________________________
BERTUS DE VILLIERS
MEMBER
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