THE OWNERS OF THE LINX AT NEXUS STRATA PLAN 47739 and MANGLES SMSF PTY LTD - [2018] WASAT 101

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   THE OWNERS OF THE LINX AT NEXUS STRATA PLAN 47739 and MANGLES SMSF PTY LTD [2018] WASAT 101
MEMBER:   MS H LESLIE (MEMBER)
HEARD:   26 SEPTEMBER 2018
DELIVERED          :   15 OCTOBER 2018
FILE NO/S:   CC 1058 of 2018
BETWEEN:   THE OWNERS OF THE LINX AT NEXUS STRATA PLAN 47739
Applicant
AND
MANGLES SMSF PTY LTD
Respondent

Catchwords:

Strata titles - Lot boundaries - Whether floor tiling constitutes common property or is part of lot - Whether removal of tiling destroyed boundary of lot - Conceded breach of law requiring prior consent for removal of tiling to part of floor - Whether applicant in breach of other strata by-laws - Appropriate remedy - Exercise of discretion by Tribunal

Legislation:

Strata Titles Act 1985 (WA), s 17, s 32, s 35, s 35(1)(b), s 35(1)(c), s 83, Sch 1, Sch 2

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Laffin and Renouf [2016] WASAT 48
Topic and The Owners of Raffles Waterfront Strata Plan 48545 [2016] WASAT 27

REASONS FOR DECISION OF THE TRIBUNAL:

The application

The application is made under s 83 of the Strata Titles Act 1985 (WA) (the Act) pursuant to which the Tribunal may make an order for the settlement of a dispute or the rectification of a complaint.
The applicant is the strata company known as The Owners of the Linx at Nexus Strata Plan 47739 (the Strata Company).
The relevant strata complex is a multi-story complex of 57 units constructed in three floors plus an undercroft (the Strata Complex).
The respondent company, Mangles SMSF Pty Ltd (Mangles) is the owner of Unit 57 in the Strata Complex which is situated on the third floor. The unit is an investment property which is tenanted.
The directors of Mangles are Mrs Annette and Mr Gregory Fennell.

Legal framework

Strata plan

Strata Plan 47739 (strata plan) was registered on 7 October 2009. The management statement bearing the same date was lodged with the strata plan and sets out the bylaws of the Strata Company that are to have effect upon registration of the strata plan. The management statement provides that the 15 standard bylaws set out in Sch 1 of the Act are repealed and are replaced by 56 bylaws provided for in a schedule attached to the management statement and described as 'Schedule 1 ByLaws'. The management statement further provides that the standard bylaws provided for in Sch 2 of the Act are repealed in total.

Legislative provisions

Section 17 of the Act relevantly provides that in a strata complex, common property is held by the proprietors as tenants in common in equal shares in proportion to the unit entitlements of their respective lots.
Section 32 of the Act provides that upon registration of a strata plan, the proprietors constitute a strata company which is a body corporate.
Section 35(1)(b) of the Act provides that the strata company shall control and manage the common property for the benefit of all proprietors.
Section 35(1)(c) of the Act provides that the strata company must keep in good and serviceable repair, properly maintain and, where necessary, renew and replace the common property.

Case law

As was held by the Tribunal in Laffin and Renouf [2016] WASAT 48 (Laffin) at [33]:
The law is clear. The common property of a strata scheme is owned jointly by the proprietors of all the lots. The strata company of the strata scheme has the power and duty to control and manage the common property and to keep the common property in good repair and properly maintained. Where works can be properly categorised as coming within the power of the strata company to control and manage the common property or to keep it maintained and repaired, then all that is required to enable the strata company to carry out those works, is for the cost of them to be included in the budget adopted at the annual general meeting of the strata company[.]
Referring to several other authorities, the Tribunal in Laffin went on to say:
… except where renewal or replacement is necessary to keep common property in good repair, no works for the demolition or alteration of any structure on the common property or for the erection of any structure on the common property can be carried out by a strata company or any proprietor unless a resolution without dissent is passed[.]
Floor tiling has been found by the Tribunal to be part of common property. (Topic and The Owners of Raffles Waterfront Strata Plan 48545 [2016] WASAT 27 (Topic) at [41]-[42]). This was a case about the removal of floor tiling. In it the Tribunal said:
… the boundaries of the lot are formed by features which are part of the structure of the building. A carpet fitted to the floor is not a part of the building itself. By contrast, tiling is permanently fixed to the structure of the building. … In our view tiling forms part of the constituent parts of the building. … [A] installation of a floor, be it constructed of tiling or timber flooring, intended to be part of the completed building, would form the structure … and, conversely, a carpet would not[.]
We accordingly find that the tiles removed … formed part of the common property.

Bylaws

The relevant strata bylaws are in evidence. Their content is not in dispute.
By-law 18 was drawn to the Tribunal's attention. It provides that:
18.1A proprietor shall not commence any structural alterations building or associated works of any kind to his lot before he has: (Tribunal Emphasis)
18.1.1obtained all the necessary approvals and permits of the local authority;
18.1.2obtained the consent of the strata company if the structural alterations are prescribed improvements within the meaning of section 7 of the Act;
18.1.3given to the strata company at least 14 days written notice of the proposed structural alterations and the date that work is to commence and true and complete copies of all relevant plans and specifications in respect thereto and the approvals and permits obtained from the local authority pursuant to bylaw 18.1.1 of the Schedule 1 Bylaws;
18.1.4indemnified the strata company in respect of any cost, expense or liability that may be incurred by the strata company consequent upon the proprietor undertaking the structural alterations, building or associated works which indemnity shall be in writing in a form reasonably required by the strata company and prepared and stamped at the cost of the proprietor.
For the reasons that follow, this bylaw does not apply to this dispute.
Bylaw 34 was also drawn to the Tribunal's attention. It provides that:
A proprietor shall ensure that all floor space within the lot (other than that comprising kitchen, laundry, lavatory or bathroom) is covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the proprietors of other lots.
There is no noise transmission issue in this dispute.
The applicant drew to the Tribunal's attention a copy of a so-called bylaw to which she had been referred by Landgate in May 2018 which provides:
2.Power of proprietor to decorate etc
A proprietor may, without obtaining the consent of the strata company, paint, wallpaper or otherwise decorate the structure which forms the inner surface of the boundary of his lot or affix locking devices, flyscreens, furnishings, furniture, carpets and other similar things to that surface, if and so long as such action does not unreasonably damage the common property.
It is to be noted that this 'bylaw' is extracted from the standard bylaws contained in Sch 1 of the Act which, as explained above, do not apply to this Strata Complex. Furthermore there is no equivalent to it in the replacement bylaws lodged with the strata plan.
To the extent that the current bylaws relevantly make reference to common property, it is as follows.
•Bylaw 25.2 obliges the Strata Company, consistent with its ownership of common property, to carry out repairs and renovations to common property as may be necessary.
•Bylaw 26 obliges proprietors to be responsible to the Strata Company for any damage caused to part of the common property by the proprietor or his invitees.
•Bylaw 17 obliges a proprietor to maintain his premises in a good state of repair and condition.
•By-law 19 relevantly provides a mechanism whereby the Strata Company may grant to a proprietor who signs a written consent as required by the Strata Company, exclusive use of the 'exclusive use property' relevant to the proprietor's lot. 'Exclusive use property' is defined within the bylaw to mean every portion of common property comprising (Tribunal emphasis):
decorative fixtures and fittings including but not limited to wall tiles, floor tiles, doors, door handles and locks, light fittings, windows and plate glass and screens which are appurtenant to a proprietor's lot[.] (Tribunal emphasis)
•Bylaw 19. 3 obliges a proprietor to maintain and repair any portion of common property to which he has been granted exclusive use by the Strata Company under bylaw 19.
•Bylaw 19.4 allows the Strata Company to enter premises to maintain and repair any such 'exclusive use property' if the proprietor fails to do so.

Undisputed factual matters

The respondent purchased Unit 57 on 8 February 2016 and settlement took place on 18 March 2016. This was the first experience of strata ownership for Mr and Mrs Fennell.
They were made aware in standard terms from the Form 29 provided to them by the selling agent that the respondent's right to deal with the lot and to use the common property is restricted because it is subject to the Act, the bylaws of the Strata Company and the management by the Strata Company.
They planned to renovate the unit prior to letting it.
On 1 March 2016, on behalf of Mangles, Mrs Fennell emailed the Strata Manager of the Strata Complex, Exclusive Strata Management, (ESM) in the following terms:
The property settlement is due on 18ͭʰ March, as the new owner I would like to have quotes and new floor coverings within the unit ASAP.
I am writing to seek permission to have new vinyl tile planks installed with a guaranteed Acoustic Rating of 62.
I would appreciate a prompt reply to have the trades and supplies ordered and ready to go on or about the 21ˢͭ March.
On 2 March 2016 ESM relevantly replied by email:
As long as you comply with bylaw 18 and 34 you may proceed with the installation. It's up to the owner of the lot to be confident that an acoustic rating of 62 will be sufficient not to transfer noise to any units below.
The Strata Company has not ever implemented a system of formally granting exclusive use of items of 'exclusive use property' as anticipated by bylaw 11. No written consents have ever been requested by the Strata Company or given to it by any proprietors.
The Strata Complex has operated on the basis of an assumption that, to the extent that items of common property such as those listed in the bylaws relate to a particular unit, the proprietors/occupants of that unit have and are entitled to exclusive use of those items.
It has never been an issue of contention.
Neither the respondent's email to ESM of 1 March 2016 nor the ESM reply made any reference to the removal of floor tiling prior to the laying of vinyl planks.
When purchased, the floors of Unit 57 comprised a tiled bathroom and toilet, a tiled kitchen including a short tiled open passageway adjacent to the kitchen leading from the lounge/dining area past the kitchen to the bathroom door (the kitchen area), carpeted bedrooms and lounge/dining area the latter including a small rectangle of floor tiling immediately inside the front door of the unit (the entrance area).
In March/April 2016, as part of the unit renovation, the respondent arranged for the removal of all existing carpets and the tiling in the kitchen and entrance areas and their replacement with vinyl planks. The tiling in the kitchen area and the entrance area were jackhammered off the concrete slab, the screed was removed and, after the removal of the carpets, the vinyl planks were professionally installed using an adhesive agent to affix the planks to the concrete slab and to each other (the floor works). A licensed plumber installed kitchen appliances including a dishwasher.
During the course of the work, a member of the then Strata Council Ms Janice McCann observed the tile removal work occurring.
It appears that, notwithstanding the content of the bylaws (particularly Bylaw 19) up until early in 2018, none of the proprietors involved in this matter were aware that the internal floor tiles within each unit form part of common property.
No resolution without dissent was ever passed by the Strata Company giving permission to the respondent to do the floor works; indeed no such request was ever put to a Strata Company general meeting.
The Strata Council minutes of 18 April 2016 note under the heading 'new business' that the Unit 57 'is undergoing complete renovation'. No other particulars appear.
In an email from the then Strata Council chairperson to ESM on 13 June 2016, the chairperson confirmed that the owners of Unit 57 'had been doing major works inside' previously.
Almost two years later, on 27 April 2018, the Strata Council Chairman Mr Cliff McCann wrote on behalf of the Strata Council to the respondent relevantly as follows (the demand letter):
During a recent audit of the Common property of Links at Nexus brought about by the recent SAT proceedings initiated by yourselves et al
It has come to our attention that as owners of Unit 57 on or about mid year 2016 you had cause to redecorate your unit as you are entitled to do. However it has also been brought to our notice that you have altered the common property of SP47739 possibly without the Council of Owner's Permission.
The common property being the Floor Tiles in the Kitchen area
Accordingly we would like to give you fourteen days (from the date of this letter) to "show cause" whereby you had the written permission and approval of the Council of Owners to carry out this alteration to the Common Property.
We also note there has been no lodgement by the Council of Owners ratifying this variation to the Common Property with Landgate.
Therefore to avoid further action we ask that you give this matter careful consideration and take advice and reply to the Council of Owners SP47739 through our Strata Managers[.]
There have been contentious issues between the Strata Council and the directors of the respondent for a period of time including many emails during 2018.
At the time of the demand letter, the Strata Council was in separate dispute with other parties concerning the external tiling within the Strata Complex. During the course of consideration of the Strata Company's position, including a review of the many emails received from the respondent regarding the Strata Company's obligations and duties, and including an audit of the then position regarding tiling more broadly (replacement of broken tiles, re-tiling of the balcony of Unit 50 requiring new tiles, stock take of tiles on hand et cetera), Ms McCann raised with the Strata Council her recollection of observing the removal of the floor tiling in Unit 57 back in 2016.
Notwithstanding the first paragraph of the demand letter set out above, it is not disputed that there has in fact been no formal 'unit by unit' audit of the common property items. Mrs Jennifer Reeve, current SecretaryTreasurer, however gave unchallenged evidence that in the course of the last few years she has been into every unit in the complex and able to say that in no other unit has the tiling in the entrance area or kitchen area been removed.
The matter was not resolved and on 23 May 2018, the present proceedings were instituted.

The hearing

The applicant was represented at the hearing in the absence of its Chairman by Ms Reeve, supported and assisted by Mr Jack Kneebone of ESM (the applicant's representative). Evidence was given by Ms Reeve and, to a limited extent, by proprietor/Strata Council members Ms Joy Fairclough and Ms Ann Roberts, by a proprietor/former Strata Council member Ms McCann and Mr Kneebone.
The respondent was represented by one of its directors Mrs Fennell who gave evidence.

The applicant's position

The applicant seeks orders that Mangles:
1)Replace the common property kitchen floor tiles with the same equivalent tile to those that were removed and replaced with a vinyl alternative on or about March May 2016.
2)Engage a suitably qualified person to draft an exclusive use bylaw that specifically assigns the exclusive use of the reinstated tiles to Mangles including but not limited to maintenance, replacement and ongoing liability.
3)Pay all costs associated with the drafting of, approval at a duly convened general meeting and subsequent lodgement with Landgate of the exclusive bylaw described at Item 2 above.
The applicant claims that the respondent is in breach of Bylaw 18.1.2 in that consent to the removal of the floor tiling was not obtained from the Strata Company.
The applicant representatives see this case as something of test case. They are anxious to set a precedent - to draw a line in the sand to prevent any further unilateral alteration to common property by residents. Mr Kneebone gave evidence that the Strata Council has not worked as well as it might have and has been very divided over the last few years; that issues have taken a long time; and that a concerted effort is now being made to regularise all matters. The applicant's representatives also seek to minimise any exposure that the Strata Company might have with their insurers in the event of a future claim, fearing that the insurers might refuse a claim given the alteration made by the respondent to the portion of common property that was the tiled kitchen area and tiled entrance area. They wish this matter to be resolved as part of the Strata Council's current attempts to resolve all issues at the Strata Complex relating to tiling. They take the position that, as a person who has undergone a community course in strata matters, Mrs Fennell knew or ought to have known that the floor works involved an alteration to common property. They dispute that the action taken against the respondent has been a punitive response to the position taken by her in other areas of dispute relating to the management of the Strata Complex. They assert that Mrs Fennell has at all times sought compliance with the rules by others and so should be judged by the same yardstick.

The respondent's position

The respondent's position is that she had, or reasonably believed that she had, the permission of the Strata Company through its agent ESM to remove the tiling and replace it with vinyl planking. In the alternative, in the event that she did not have permission, she asks the Tribunal to exercise its discretion in her favour and to not accede to the applicant's request that she be required to restore the flooring in the kitchen area and the entrance area to its original tiled state. She claims that at the time that the floor works were done, indeed even after she completed the community strata course, she was unaware that the floor tiles inside the unit formed part of common property. Her position is that she only became aware of this as a result of the demand letter. She claims to have not read the bylaws in detail. Her position is that she acted as she thought appropriately at the time the works were being done and sought permission from the strata agent. She claims that in bringing the action against the respondent, the applicant is motivated by her stance on other issues and is acting punitively. She points to the length of time that the vinyl planks have been down and to the fact that at least one member of the then Strata Council, Ms McCann, was aware of the floor works when they were done. She claims that the tiling in her unit was cracked in places and needed regrouting; indeed needed replacing to present to standard for tenanting.

Other common property alterations

Mrs Fennell further claims that the Strata Company is not acting consistently in relation to alteration and adjustments to common property. She says that she is being singled out in the way that the Strata Council is enforcing the rules.
Mrs Fennell points to the absence of a whole-of-complex audit of the internal common property.
Mrs Fennell also points to what she says are a number of other alterations that affect external common property which have not resulted in requests to the relevant proprietors to restore the common property to its original state. The examples that she points to, (photographs of which are in her bundle of documents), are as follows:
1)an electronic doorbell attached to the external surface of the building by double sided adhesive tape;
2)a key safe screwed into the external surface of the building;
3)a decorative feature item set adjacent to a unit front door and attached by a screw or hook inserted into the external surface of the building;
4)the replacement of a window in the wall of one unit with a window sized section of clear 'glass blocks';
5)the application to the outside surface of several windows of adhesive privacy film;
6)the installation on the balconies of several units of shade blinds screwed or bolted into the external surface of the building;
7)the installation on windows of at least two different units of roller shutters the pelmet housing and runners of which are screwed in or bolted into the external surface of the building;
8)the installation of non-standard door handles and additional locks on the external surface of the front doors of some unit;
9)the installation of privacy screening on at least one unit balcony where the screening is cable tied to the existing wrought iron balcony structure;
10)the internal erection of partitioning panels to create an additional room in one unit which panels have been bolted to the internal walls of the building; and
11)the installation on a number of units of external fly screen and/or security doors which are bolted into the internal walls of the building and which are not compliant with design parameters agreed to by the Strata Council.
These eleven alterations/installations are not disputed by the applicant. Save for Item 4, the applicant does not dispute that in none of the listed cases was a resolution without dissent passed by the Strata Company to allow the installation/alteration. The applicant does say that in relation to some of them, that the Strata Council is contemplating action, in particular Items 10 and 11. Save for Item 4, the applicant's representatives also seek to distinguish between the nature of the installations referred to, all being items which, the applicant's representatives say, are easily removable with screw or boltholes, or any damage from adhesive elements capable of easy remediation, unlike the respondent's substantial alteration by the destructive removal of the original floor tiles and underlying screed.
In relation to Item 4, the applicant's representatives adduced evidence that, to the best of the recollection of the owners present at the hearing, the relevant unit owner had sought and was granted permission to replace the window with glass blocks. They were unable to say whether or not that agreement was minuted. Certainly the minute book was not produced. Further, they were unable to say whether the matter went to a general meeting of the Strata Company as required or just to the Strata Council, nor whether, if it went to the Strata Company, the relevant resolution was passed without dissent as required.

Potential lot boundary destruction

No party has raised the issue of whether or not the removal of the tiles from the kitchen and entrance area has had any impact on the existence of the lot itself.

Consideration

In relation to the issues of boundaries, the Tribunal does not propose to enter into a consideration of the question of the potential destruction of the lot given that it is not an issue that has been raised by either party, and also given the decision of the Tribunal in Topic. Suffice to say that, in that case, the owner caused the carpets in her apartment to be removed and the floor tiling in the kitchen of the apartment to be uplifted and both to be replaced with timber flooring. As in this case, the tiling in the bathroom (and laundry) was not disturbed. The Tribunal in Topic distinguished between the replacement of a whole floor and the removal of floor tiling in a section of the floor of a unit. It also distinguished between cases where the top surface of the replacement flooring did not exceed (in height) the surface of the previous tiling. In Topic the Tribunal took the view that such circumstances did not require it to examine the effect of a complete destruction of the lower horizontal boundary of the lot.
As was said in Topic at [112]-[114]:
There is therefore no reason in principle why evidence could not be used to establish the true location of a boundary after alterations having taken place. As will appear below, it is evident that the original horizontal boundary of the floor of the affected areas of [the lot] could be determined without undue difficulty. We expect this would be possible in most cases. Building materials and finishes are rarely precisely uniform. Walls are not necessarily precisely perpendicular nor are concrete floor slabs perfectly even and deviations are permitted in most structures within permitted tolerances as guided by either the Australian Standards or accepted industry practices. Consequently, the boundaries set by the surface of walls, floors or ceilings do not have the precision of boundaries set by fixed survey coordinates. It should therefore follow that evidence identifying the location of the boundary in a particular area need not be unduly precise.
… If it were necessary to do so, the grouting could be removed around one of the tiles in the laundry and the thickness of the tile determined … This would establish the location of the lower horizontal boundary of the lot in the kitchen with sufficient precision. A measurement of the respective heights of the ceilings in those rooms (assuming they have not been constructed at different levels) would also establish the lower horizontal boundary in the kitchen.
We accordingly find that the removal of the original carpeting and the tiling in the kitchen did not constitute a destruction of the lower horizontal boundary of the lot and therefore did not destroy the lot.
In my view, the same approach can and should be adopted in this case. With respect, the Tribunal adopts the reasoning of Curthoys J relating to this issue.
The applicant claims that the respondent is in breach of Bylaw 18.1.2 in that consent to the removal of the floor tiling was not obtained from the Strata Company.
As has already been pointed out, Bylaw 18 is not relevant for the purposes of this dispute. That is because Bylaw 18 relates to structural alterations made by a proprietor to his lot, not to common property. That being said, in the view of the Tribunal, the applicant is within its rights to complain about the actions of the respondent.
There can be little doubt that the respondent has interfered with common property. During the course of the hearing, Mrs Fennell conceded as much.
Mrs Fennell impressed as a truthful witness. The Tribunal accepts that at the time that the floor works were done, she was unaware that the tiling in the entrance area and the kitchen area constituted common property. It is accepted that her community strata course occurred at a time after the floor works were completed. Indeed the Tribunal accepts that it is not until very recent times that she became aware that the tiling constituted common property. To that extent, the fact that she may or may not have demanded compliance with various other strata rules by other parties in other circumstances is neither here nor there and is not a factor to be taken into account by the Tribunal.
It is true that her communication with the Strata Manager does not make reference to the alteration to floor tiling. The Tribunal does not see anything sinister in this. If her email to ESM is read assuming the aforementioned misunderstanding of the status of the tiling, in the view of the Tribunal to assume that the use of the expression 'new floor coverings' included the areas of tiling is not to draw too long a bow. It is noted that it was conceded by Mrs Reeve that she and other owners are and/or have been in the past not as familiar as they should be with the content of the bylaws and the legislative strata framework. The fact that no action was taken in relation to the floor works for over two years is an indicator of this. As previously mentioned, it is the impression of the Tribunal that in fact none of the relevant parties were aware until early 2018 when they were alerted to this issue by ESM that the floor tiles comprised common property. This is not surprising or unreasonable for persons without specific legal or strata training.
To that extent, the Tribunal accepts that Mrs Fennell acted in good faith, believing reasonably that she had the authority of the Strata Company through ESM to proceed with the floor works. It is of course however the case that she did not in fact have the mandated authority to effect alterations to common property.
The Tribunal must therefore determine whether or not to exercise its discretion in her favour or to grant the orders sought by the applicant.

The exercise of discretion - relevant criteria

Insurance

In relation to the insurance issue, the evidence from the applicant's representatives was that no enquiry had been made of the strata insurers as to the impact of the floor works on any future insurance claim. Their concerns stem from their extrapolations from what are said to have been comments made in relation to other insurance enquiries. It is said to have been suggested in that context and hypothetically, that claims might be refused if there were evidence that an owner or occupier had, for example, interfered with shower wall tiling. Mrs Reeve gave this evidence. It may be that there is an insurance issue here but the Tribunal did not have before it any direct evidence from the strata insurer as to any negative consequences of the floor works for insurance purposes. It would have been easy for and was open to the applicant to have produced that evidence. It did not do so. This is a relevant factor for the Tribunal to consider in the exercise of its discretion.

Consistency and precedent:

Whilst the stated intent of the Strata Council to get its house in order in relation to common property issues and to seek to approach issues in a uniform and consistent way going forward is laudable, in the view of the Tribunal it is appropriate for it to have regard, in the exercise of its discretion, to the way in which the Strata Council and the Strata Company has in fact approached questions of interference with common property historically.
It is clear that the rule requiring resolution without dissent of a general meeting of the Strata Company has never been imposed on any alteration to common property made by an owner or occupier in the 10 years that the Strata has existed. The Tribunal does not accept that the rule was imposed in relation to Item 4 above, there having been no minuted resolution put into evidence.
There is no argument regarding the floor works in relation to uniformity and the external aesthetic of the Strata Complex. As much is conceded by the applicant's representatives. In any event, it is clear that the Strata Council and the Strata Company have not in the past insisted on the management of the external common property in a way that mandates uniformity. Owners and occupiers have been allowed to make many different sorts of additions to the property, as can be seen from the list of items above. Most, it is accepted, are in the nature of specific purpose installations rather than major destructive alterations but almost all have required at least some degree of destructive drilling into the external surfaces of the building, that is, into the fabric of the common property, for the installation of fixings relevant to the various installations. To that extent, they are alterations of common property. Although potentially less significant in degree than the floor works, they are the same in nature. All (save for Item 9 and possibly Item 1) would need remediation work done if the installations were required to be taken down. The Tribunal rejects the applicant's submission that they should be considered differently to the floor works.
It is accepted that none of these installations or alterations were approved by resolution without dissent in general meeting. All are therefore unauthorised alterations. Although it has flagged potential future action in relation to several of them, the Strata Council has not required compliance with the approval processes in relation to the listed alterations.
Item 4 is clearly a more significant modification. It qualifies as a significant destructive alteration in that the previously existing window and window frame has been removed and discarded, and an alternate translucent medium has been installed. The glass blocks have been cemented into the window opening in place of the window. As did the window and the window frame before it, the glass block structure in the view of the Tribunal, forms part of the common property in that it, to use the wording from Topic at [41], 'is permanently fixed to the structure of the building' and is 'intended to be part of the completed building' and 'would form the structure'. The applicant did not seem to disagree to any substantial extent with the proposition that Item 4 would constitute an alteration to common property. It sought to rely on what it said was the previous approval given to the alteration.
The Tribunal is not satisfied that there was the required approval given to the item for alteration. This issue was clearly raised by the respondent on the papers and the applicant was on notice as to this matter. If indeed there was a resolution without dissent made in a general meeting by the Strata Company to approve Item 4, then it is incumbent upon the applicant to produce the minuted resolution in evidence. The applicant did not do so. The Tribunal therefore takes the view that Item 4 also is an un-authorised alteration. The Tribunal is not satisfied that the Strata Council has required compliance with the approval processes in relation to the Item 4 alteration.
It can be seen from the above that there has not been a consistent insistence by the Strata Company through its Strata Council that owners or occupiers obtain the appropriate approvals before making alterations to common property. This is a relevant factor to be considered by the Tribunal in exercising its discretion.

The effluxion of time

The passage of time is another matter that requires consideration. The Tribunal is satisfied that, until quite recently, none of the participating parties were in fact aware that the floor works constituted an alteration to common property. That perhaps explains why, notwithstanding the 2016 observations of Ms McCann, no action has been taken until this point. In the view of the Tribunal, the fact that the vinyl planks have now been in place for in excess of two years is a factor for the Tribunal to consider in the exercise of its discretion.

The effect on other residents or on the integrity of the building

The floor works occurred in March/April 2016. They are internal to the unit and to that extent did not impact visually on any other owner or occupier.
There is no evidence that the installation of the vinyl planks in place of floor tiles in the relevant areas has caused any ill effect on any other resident or occupier from an acoustic point of view or in terms of any water leakage or other damage affecting the units below or in any other way.
There is no evidence that the floor works has had any deleterious effect on the integrity of the building notwithstanding the presence within the kitchen of water sources such as the sink, the dishwasher and any washing machine. It is noted that Mrs Fennell's evidence is that the installation work on those items was all done, to good effect it seems, by a licensed plumber. In any event, in the view of the Tribunal, there is no evidence to support the notion that any potential water spillage, seepage or leak would produce any greater risk on a vinyl surface professionally installed using adhesive beneath and between the individual planks, than on a tiled floor given that the grout between tiles is porous. Both sorts of floor material are laid directly onto the concrete slab. There is no evidence of either being laid on a waterproof membrane.

Motivation of the Strata Council

It is unfortunate that the individuals concerned in this dispute are in dispute about other things and that the relationships have deteriorated. The Tribunal accepts the explanation given by the applicant's representatives as to the timing and the reasoning behind the bringing of the application, the context being a newly acquired awareness of the status of the internal floor tiling as common property and a general desire to regularise and resolve all of the issues in the complex that relate to tiling, both internal and external. The Tribunal accepts Mrs Reeve' evidence that there is no punitive intent behind the application although it understands how it might appear that way to Mr and Mrs Fennell, particularly given the first two lines quoted above of the demand letter, which, the Tribunal accepts, have a slightly 'tit for tat' tone.

Bona fides of the respondent:

As has been noted above, the Tribunal accepts that Mrs Fennell at all times in the arranging of the floor works acted in good faith albeit in error concerning the applicable strata requirements.

Conclusion

The exercise of the Tribunal's discretion is a question of balancing the matters raised by both sides. The Tribunal does acknowledge the desirability of residents and proprietors respecting the common ownership of common property and of them seeking the appropriate approvals before they make any alterations to that property. It acknowledges the desirability of the Strata Council on behalf of the Strata Company policing such matters in a consistent way in the interests of all residents and occupiers.
Ultimately, however, the Tribunal has reached the view that, notwithstanding that the respondent did not have the required approval by resolution without dissent of the Strata Company to do the floor works, it would not, given the particular criteria referred to above and in all the circumstances, be reasonable to now require the respondent to uplift the vinyl planking in the entrance and kitchen areas and reinstate the areas of tiling previously removed with a like product.
Accordingly, the first order that the applicant seeks is refused. The following two orders thereafter fall away. In the circumstances, in the view of the Tribunal, the appropriate order is that the applicant's application is dismissed.

Orders

The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS H LESLIE, MEMBER
16 OCTOBER 2018