THE OWNERS OF THE JAMES AT NORTHBRIDGE - STRATA PLAN 31304 and CHAIFEIYIONG PTY LTD

Case •

[2005] WASAT 44

•

4 APRIL 2005

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985

CITATION:   THE OWNERS OF THE JAMES AT NORTHBRIDGE - STRATA PLAN 31304 and CHAIFEIYIONG PTY LTD [2005] WASAT 44

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   DETERMINED ON PAPERS

DELIVERED          :   4 APRIL 2005

FILE NO/S:   ST 84 of 2004

BETWEEN:   THE OWNERS OF THE JAMES AT NORTHBRIDGE - STRATA PLAN 31304

Applicant

AND

CHAIFEIYIONG PTY LTD
Respondent

Catchwords:

Real property - Strata titles - Common property - Structural alterations without approval - Strata plan 31304 - Signage

Legislation:

State Administration Rules 2004 (WA),

State Administration Tribunal Act 2004 (WA), s 11(1), s 92(1), s 92(3), s 167(4)(b),
State Administrative Tribunal Rules 2004 (WA), r 22

Strata Titles Act 1985 (WA), Part VI Division 1, Part VI Divisoin 2A

Result:

  1. In terms of s 103G(3) and s 84(2) the respondent must within 30 days from the date of this order provide the strata company with confirmation that in regard to the external patio structure all statutory requirements have been met and approvals obtained and if such confirmation is not provided and the strata company does not agree in writing to an extension of time, for the structure to be removed within 60 days from the date of this order.

  2. The application to have the external signage removed is dismissed due to a lack of substance (s 81(4) and s 47(1)(a) of the State Administrative Act).

  3. The application in regard to alleged leakages is dismissed due to a lack of substance (s 81(4) and s 47(1)(a) of the State Administrative Act).

  4. I declare that section 95(1) of the State Administrative Tribunal Act which deals with failure to comply with a decision, applies to Order 1 above.

Category:    B

Representation:

Counsel:

Applicant:     Self Represented

Respondent:     Self Represented

Solicitors:

Applicant:     Self Represented

Respondent:     Mullins Handcock Lawyers

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

Nil

Case(s) also cited:

Nil

MR B DE VILLIERS (MEMBER)

REASONS FOR DECISION

Issue

  1. Alterations to common property, erection of structure and the display of signage.

Applicant and Respondent

  1. The Applicant is "The Owners of The James At Northbridge – Strata Plan 31304".

  2. The Respondent of Lot 2 is the registered Proprietor Chaifeiyiong Pty Ltd, c/ Mullins Handcock Lawyers at PO Box Z5035, St George's Terrace, Perth, WA 6831.  At the time of application the occupier of Lot 2 was trading as "Denpasar Moon Restaurant".

Application transferred to the State Administrative Tribunal

  1. The Strata Title Referee appointed in terms of Part VI Division 1 of the Strata Titles Act 1985 originally received this application for investigation in terms of Part VI Division 2A of the said Act.

  2. 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.

  3. The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to section 7 of the State Administrative Tribunal Ac 2004 ("SAT Act").  On the same day this matter was transferred to SAT in terms of s 167(4)(b) SAT Act for continuation.

  4. The President of SAT nominated me in terms of section 11(1) SAT Act to constitute the Tribunal for purposes of determining this matter.

  5. I have now considered the submissions and make the following determination.

Strata Plan and relevant Act

  1. 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 the relevant Act.

  2. 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

  1. 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 2 is operated as an Indonesian restaurant under the name of "Denpasar Moon Restaurant", although in these documents, the Applicant has referred to it as "Denpasar Moon Restaurant".

  2. The Applicant has not indicated whether or not the registered proprietor of Lot 2 is also the operator of the restaurant business.

By-laws

  1. 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.

  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

  1. The Applicant has sought orders in the following terms:

    "(1)That as no approval as per Section 7 was ever sort [sic] or given for the rear roof area structure that the water ingress through the slab [sic] and subsequently into the car park is repaired and if the roof structure is removed that the slab penetrations are returned to original condition.

    (2)That the tenancy signed [sic] external of the building are removed as no approval was sort [sic] on [sic] given as per schedule 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.]"

  1. 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.

  2. However, having examined the Strata Company's by-laws and taking into account the correspondence that have been exchanged between the parties and the urgency of the matter in light of fire and health risks, I am prepared to proceed with my consideration of the application. 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 Rules I am empowered to grant relief from procedural requirements and in this matter I believe it is justified to continue regardless of non-compliance with some minor procedural requirements.

Lot boundaries and exclusive use areas

  1. Lot 2 comprises a 339m2 internal portion on the ground floor, a 386m2 external portion on the ground floor, covering most of the south‑eastern corner of the parcel, and two basement car bays that forms part of the common property.  The only other lot on the ground floor is Lot 1 which also comprises an internal portion and an external portion, and two basement car bays that forms part of the common property.

  2. 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.

  3. 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."

  4. On the basis of those endorsements, the internal portion of Lot 2 extends to the external surfaces of the walls surrounding that portion.  This means that the external surfaces of the part of the building on which Lot 2 is situated are part of Lot 2 and not part of the common property.  The external portion of Lot 2 extends from the outer surface of the building to the centre plane of the wall dividing the external portions of Lots 1 and 2.  It also extends to the south eastern and north eastern walls of the parcel.

  5. The external ground floor portion of Lot 2 extends 5 meters above the surface.

  6. The building's car parking bays are contained within the basement area below Lots 1 and 2 and are part of the common property.

Common property

  1. Pursuant to ss 3(1) and (2), as qualified by the endorsements referred to above, the lower boundary of the internal portion of Lot 2 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

  1. Section 17(1) of the Strata Titles Act provides:

    "Common property shall be held by the proprietors as tenants in common as shares proportional to the unit entitlement of their respective lots."

Applicant's submissions

  1. In its application, the Applicant's "grounds in support" are not expressed in any detail but simply state:

    "Minutes of AGM 27/11/2003"

  2. 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 the following reference in regard to the matter at hand:

    "… Unit 2 – Denpasar [sic] Moon Restaurant

    Allen Gianatti raised the fact that this restaurant either through the tenant or owner did not seek approval to install the roof decking at the rear of their premises and as such is an illegal installation.  No approval has ever been given the strata company [sic].  This area also has water ingress into the slab and consequently into the car-park.

    It was put that the matter be referred to the strata titles referee seeking an order that the owner and occupier be made to make good the current damage to the slab and should the roof structure ever be removed the roof penetrations be rectified and the area returned to its original condition …"

  3. The Minutes also include:

    "… Signs

    The signs for both restaurants do not have strata company approval and as such should be removed.  Refer to the strata titles referee …"

  4. The Applicant provided me on 10 November 2004 with photographs of the roof patio structure and external signage.

  5. The Applicant has also 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.  The report includes a number of photographs.  However while the report makes some references to Lot 1, there are no references to Lot 2.  The report is therefore of no relevance to the application under consideration.

  6. 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 contains references to Lot 1 but not to Lot 2.  The Minutes are therefore of no relevance to the application under consideration.

Response to application

  1. Several responses have been received in regard to the application.

  2. The proprietor of Lot 22 has supported the application, but without providing any grounds or other information relating to his support.

  3. The proprietor of Lot  9 has supported the application by stating:

    "… (1)The operators of the restaurant have built a roof structure over the rear 'al fresco' area without permission of the 'Owners'.  This construction has broken into the slab which has allowed further water penetration which runs through to the car park below.  This water corrodes the paint of cars below.

    (2)The external sign to the restaurant was also erected without permission.  Although this would be the most minor of the issues, the restaurant owners appear to be unaware of the operations of strata titled buildings.  They operate without any reference to the owners.  They need to be made aware of such operations."

  4. The proprietor of Lot 16 states as follows:

    " … In regards to the application before the strata referee in relation to Lot 1 and 2 on Strata Plan 31304, the following is applicable to both lots.

    There was no application to drill through the slab for the purpose of plumbing work.

    The slab has the potential, and indeed has, leaked in the past in areas where the slabs were damaged when the pipes were installed.

    Cars parked in my car bay (unit 16) and other car bays on the property have suffered damage from corrosive materials leaking on the vehicles.

    The pipe work installed on the underneath of the slab is unsightly in my opinion.

    Signage needs to be applied for in the correct manner and should comply with the amenity of the building.

    The by‑laws of the strata company must be upheld for the benefits of all owners … "

  5. The Strata Manager in a letter dated 21 September 2004 provides further clarification to the application by explaining that the matters the subject of the application were raised at the AGM's of the previous years and included in the Minutes of those meetings.  Although from submissions it appears that the strata company approved for the erection of the outside patio structure in 1997, it seems unchallenged that the approval was conditional upon the necessary statutory approvals being secured.  In his letter dated 21 September 2004 the Strata Manager says it "was a condition of the approval" that statutory requirements would be complied with.  Thus far the condition has not been fulfilled.  The Strata Manager remarks however that "if the owners are prepared to take on the necessary work (by securing statutory approvals) the Strata Company will have no objections, however this time we will require concrete evidence that the work has actually been done."  

  6. There is one submission, by the respondent, in opposition to the application.  The solicitors acting for the respondent make the following points in regard to their client's position in a letter dated 10 September 2004:

    •No complaint had been received prior to the matter being lodged with the referee.

    •A copy of the Minutes of the AGM was not made available to the respondent.

    •The basis for the claim that "the area also has water ingress into the slab and into the car park below" is not motivated.  The report only refers to Lot 1 and not to Lot 2.

    •The Strata Company did give approval for the erection of the structure in a letter dated 6 November 1997.

    •The respondent intends to make an application to the strata company for erection of the signage.

    •The respondent is prepared to give an undertaking to the obtain the "necessary authority approvals to ensure both structures comply with the governing law and regulations".

    •The Referee does not have jurisdiction to make orders until such time as the approval's process has been completed.

  7. In a subsequent letter dated 30 September 2004 the legal representative of the respondent wrote to the City of Perth explaining that his client acquired the property on 12 February 2004 and since then has become aware that the "rear patio structure, erected on the premises in 1997, was built without the requisite building licence and without the requisite WA Fire Brigade Board approval."  The letter goes on to advise the City that a fire engineer had been retained to provide a report "with respect to works required to the rear structure in order to comply with WA Fire Brigade Board regulations."  A period of three (3) months (December 2004) was requested by the respondent to comply with Fire Brigade Board regulations.

  8. In a supplementary submission dated 14 October 2004 the legal representative of the respondent brought to attention of the then Referee the efforts made by his client to secure the necessary approvals for the patio structure.  He mentioned that a person has been retained to inspect the site "within the next 48 hours" with the view to provide a report that would "satisfy local authority and fire regulations".  Enclosed to his letter was a response received by the respondent from the City of Perth.  The City's Senior Building Officer Mr Barry Bennett responded on 7 October 2004 to the 30 September 2004 letter by the respondent.  For convenience I quote the following parts from the letter:

" … the options are to either demolish the structure or to engage a building consultant and fire engineer to investigate the possibilities of keeping the structure. The applicant will need to submit an application for building licence along with plans that meet all the requirements of the Building Code of Australia (BCA).

It is noted that your client has engaged a fire engineer to provide a report with respect to works required to the rear structure in order to address the issues raised by the Fire and Emergency Services Authority of WA (FESA).  The engineer will also need to report on compliance with the BCA or a separate building consultant will need to be engaged to fulfil that role. Satisfying FESA's concerns is only a part of the process as the City will require documentation which addresses the other requirements of the BCA such as structural sufficiency, safety, health and amenity.  (My emphasis)

Section 374 of the Local Government (Miscellaneous Provisions) Act 1960, does not allow a person to commence building work without an approved building licence.  The Council will not issue a building licence for the work at the above property as the works have been completed in contravention of Local Government (Miscellaneous Provisions) Act 1960.  (My emphasis)  However, if suitable certification is received, to the satisfaction of the City, and the building is found to be compliant for the purpose of building approval then the City will issue confirmation of the building's compliance."

  1. The letter goes on to provide the respondent with a period of 3 months (until January 05) to obtain all the necessary documentation for the project to be finalised.  The letter concludes that "this issue" has to be dealt with "as a matter of urgency".

  2. The applicant wrote to the Referee on 16 December 2004 requesting for the application to the urgently dealt with as the application had been lodged "6 months ago".

Sections 7 and 7B

  1. 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.

  2. The procedures and requirements for such an application are set out in s 7(4) and s 7B, and regulation 30 of the Strata Titles General Regulations 1996.

  3. 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

  1. 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

  1. 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."

Considerations

  1. There are three issues that arise from the application – the erection of the patio structure on the external part of Lot 2, the possible damage that may have been caused to the floor whereby leakages occur to the parking bays underneath Lot 2, and the presence of external signage.

  2. I will deal with each of these in the individually.

  3. The information provided in regard to the erection of the outside patio is relatively scant.  It is not clear to me exactly when the structure was erected and whether at the time, the strata company gave approval for the construction.  Neither of the parties has challenged the assertion of the strata manager that the strata company did indeed give conditional approval but I have not been provided with a copy of a letter or Minutes of a meeting to that effect.  However I accept that on the basis of the unchallenged information, such conditional approval was given.  The conditions apparently imposed by the Strata Company included compliance with statutory building and fire requirements prior to the structure being erected.

  4. The respondent acquired the premises in early 2004 and several letters have been exchanged in which he has confirmed his awareness of his legal obligations and undertakings have been given to secure the necessary approvals.  The City gave the responded until January 2005 to obtain the necessary approvals for the project to be finalised.  However at the time of writing this decision the respondent has not yet complied with the conditions.  No information has been provided to me to demonstrate that the respondent has complied with the undertakings he gave in the letter dated 14 October 2004 or the directive by the City dated 7 October 2004.

  5. The photograph submitted shows that the structure is substantial in size and covers a large part of the open area.  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) that no structure is erected without certain requirements been met.

  6. The applicant has reason to be concerned that conditions that were put for the structure to be erected have not been met, that the necessary statutory approvals have not been obtained and that the structure may increase the fire and health risks not only to Lot 2 but also to the entire complex.  Non‑compliance with statutory requirements may have serious implications to the strata company and the respondent.

  7. The representative of the respondent has given several undertakings in regard to compliance with statutory requirements but from the information available to me the situation has not changed materially since October 2004.

  8. In regard to the possible leakages from Lot 2 into the common property parking area below, I have not been provided with sufficient information to come to a conclusion that the activities on Lot 2 have indeed caused or contributed to such leakages.  The excerpts of the report provided to me refer to possible causes arising from Lot 1 but that is not the subject of this application.

  9. In regard to the external signage I have been provided with a photograph to show the nature of the signage. 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 or the predecessor in title 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. I conclude that in terms of section 81(4) this matter lacks substance. I also refer in this regard to section 47(1)(a) of the State Administrative Tribunal Act that empowers me to dismiss an application that lacks substance.

Conclusion

  1. My conclusion is therefore as follows:

    1.In regard to the erection of the external patio I find in terms of ss 103G(2) and (4) that the respondent has not complied with ss 7(2) and 7B and Schedule 2 by‑law 13 and by‑law 14.  I am hence empowered in terms of section 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 (section 81(2))

    2.In regard to the possible leakages that may have been caused or contributed to by the activities on Lot 2, I find that the application lacks substance and must therefore be dismissed.

    3.In regard to the erection of external signage I find that the application lacks substance and must therefore be dismissed.

Order

  1. My Order is that -

    1.In terms of s 103G(3) and s 84(2) the respondent must within 30 days from the date of this order provide the strata company with confirmation that in regard to the external patio structure all statutory requirements have been met and approvals obtained and if such confirmation is not provided and the strata company does not agree in writing to an extension of time, for the structure to be removed within 60 days from the date of this order.

    2.The application to have the external signage removed is dismissed due to a lack of substance (s 81(4) and s 47(1)(a) of the State Administrative Act).

    3.The application in regard to alleged leakages is dismissed due to a lack of substance (s 81(4) and s 47(1)(a) of the State Administrative Act).

    4.I declare that section 95(1) of the State Administrative Tribunal Act which deals with failure to comply with a decision, applies to Order 1 above.

I certify that this and the preceding 14 pages comprise the reasons for decision of the Tribunal.

DR B DE VILLIERS

Member

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