THE OWNERS OF TOORAK GARDENS STRATA PLAN 10849 and CHRISTENSEN
[2006] WASAT 301
•29 SEPTEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: THE OWNERS OF TOORAK GARDENS STRATA PLAN 10849 and CHRISTENSEN [2006] WASAT 301
MEMBER: MS J HAWKINS (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 29 SEPTEMBER 2006
FILE NO/S: CC 655 of 2006
BETWEEN: THE OWNERS OF TOORAK GARDENS STRATA PLAN 10849
Applicant
AND
KIM CHRISTENSEN
Respondent
Catchwords:
Construction of garden bed, on common property without approval - Power of strata company to remove garden bed rockery
Legislation:
State Administrative Tribunal 2004 (WA), s 32(2)(b)
Strata Titles Act 1985 (WA), s 17(1), s 35, s 35(1)(b), s 35(1)(c), s 42(2), s 83(1), s 84, s 84(1), s 84(1)(b), s 85, Sch 1, Sch 2
Result:
Application successful
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
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant strata company sought an order under s 84 of the Strata Titles Act 1985 (WA) to refrain Ms Christensen from interfering with the removal of a garden bed and rockery that she recently constructed on common property. The garden bed and rockery was constructed by Ms Christensen in late 2005 without the approval of the strata company. The Tribunal found that the garden bed and rockery constructed by Ms Christensen was not a reinstatement of a garden bed that had been in existence immediately prior to its construction. Further, if a garden bed previously existed, the Tribunal found that it had not been in existence for a considerable period and at least since 1998.
At a strata company Extraordinary General Meeting held on 12 September 2006, the strata company resolved by majority that the garden bed and rockery should be removed and reinstated with lawn. The Tribunal was satisfied that the strata company is entitled pursuant to s 35 of the Strata Titles Act1985 to remove the garden bed and rockery constructed by Ms Christensen on common property and reinstate it with lawn. The Tribunal therefore granted orders sought by the strata company to refrain Ms Christensen from interfering with the strata company's removal of the garden bed and rockery and reinstatement of the area with lawn.
Introduction
The strata complex comprises nine lots on the corner of Williams and Toorak Road, Armadale. The respondent (Ms Christensen) owns Unit 1, which is located at the front of the strata complex that borders Toorak Road, Armadale. A dispute has arisen between Ms Christensen and the majority of other lot owners in respect to a garden bed and rockery she has constructed at the front of the strata complex outside her unit, and upon common property. Immediately prior to the construction of the garden bed and rockery by Ms Christensen, the area of the garden bed had been covered, to some extent, with lawn. Ms Christensen had removed the lawn to construct the garden bed and rockery. She did this without consultation or recent agreement with the strata company. This occurred in or about December 2005. A dispute thereafter arose between Ms Christensen and the majority of the strata company in respect to the removal of the garden bed and rockery. The owners of Toorak Gardens (strata company) have made application to this Tribunal to resolve the dispute pursuant to s 83(1) and s 84(1) of the Strata Titles Act 1985 (WA) (ST Act). Following an Extraordinary General Meeting (EGM) on 12 September 2006, it was resolved by majority that the application before this Tribunal be amended to seek orders that "the respondent refrain from interfering with the applicant removing the garden bed and rockery". At the same EGM, it was also resolved by majority that the strata company remove the garden bed and rockery on common property outside the carport of Unit 1 and lawn be installed in its place.
On 24 August 2006, the Tribunal granted the strata company leave to amend its application and notify the Tribunal and Ms Christensen on or by 14 September 2006. On 13 September 2006, the Tribunal received from the strata company a copy of its minutes of the EGM held on 12 September 2006. In a letter from the strata company dated 13 September 2006, it stated that a copy of the minutes of the EGM of 12 September 2006 was being hand delivered to Ms Christensen. Ms Christensen has also filed further documents in the Tribunal on 14 and 27 September 2006.
As the orders of this Tribunal made on 24 August 2006 have been complied with, the Tribunal will now determine the dispute on the basis of the amendment proposed by the strata company and passed by majority at the EGM held on 12 September 2006.
Mrs Christensen opposes the application.
The Tribunal ordered on 24 August 2006, that the proceedings be determined on the documents.
Legal framework
The strata plan was registered on 17 August 1984. The parties have indicated that the area covered by the garden bed and rockery falls within the common property of the strata complex. Section 35(1)(b) of the ST Act places an obligation on the strata company to control and manage the common property for the benefit of all proprietors. Section 83(1) of the ST Act allows this Tribunal to make an order for the settlement of the dispute upon an application of a strata company. Section 84(1)(b) also empowers this Tribunal to make an order that requires a party to the dispute to refrain from doing an act to which the application relates. Ms Christensen opposes the application, and has indicated she would like to apply for orders that:
1.The garden in front of Unit 1 be preserved.
2.People are not allowed to drive across the lawn and footpath in front of Unit 1, with a fine put in place for those who breach the order.
Ms Christensen has also asked the Tribunal to view the garden bed in order to judge whether a vehicle should be driving through the area and what benefits and risks exist. Although Ms Christensen has not issued a separate application, this Tribunal is empowered pursuant to s 32(2)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to act according to the substantial merits of the case without regard to technicalities and legal forms. The Tribunal's function is therefore to endeavour to resolve all disputes between the parties and will therefore also deal with the orders sought by Ms Christensen.
Section 17(1) of the ST Act provides that common property shall be held by the proprietors as tenantsincommon in shares proportional to the unit entitlements of their respective lots. Further, By‑law 3 in Sch 2 of the ST Act is deemed to be a by‑law of the strata company (see s 42(2) of the ST Act), provides as follows –
"3.Damage to lawns etc on common property.
Except with the approval of the strata company, a proprietor, occupier, or other resident of a lot shall not –
a)damage any lawn, garden, tree, shrub, plant or flower upon common property; or
b)use any portion of common property for his own purposes as a garden."
Issues
Upon considering the documents filed by both parties, the Tribunal considers the following issues need to be determined:
1.Whether the garden and rockery constructed by Ms Christensen is a reinstatement of a garden that previously existed on the strata complex.
2.If the garden bed and rockery is a reinstatement of a garden that previously existed on the strata complex, when did it cease to exist?
3.Was Ms Christensen authorised under the ST Act to construct the present garden bed and rockery on common property?
4.If a garden bed did not exist for a considerable period prior to the construction by Ms Christensen, can the strata company remove the garden bed and rockery, and replant it with lawn pursuant to its powers under s 35(1)(b) of the ST Act?
5.Can the Tribunal prevent "people" from driving on the lawn near Ms Christensen's unit?
Tribunal's findings
Issues 1 and 2
These issues require the Tribunal to determine, whether the garden constructed by Ms Christensen is a reinstatement of a garden that previously existed at the strata complex. Ms Christensen claims that a garden existed next to her unit prior to her constructing the present garden bed and rockery. Her response filed 17 May 2006, states that when she purchased her unit in August 1984, there was a garden located at the front of her property. She goes on to suggest that from 1984 to 1993, she paid for the lawn in front of her unit to be mowed. She also claims that in 1998, as a result of inappropriate behaviour of tenants of Unit 2 at that time, every plant surrounding her property was destroyed. She claims that, as a result, at the next strata meeting she requested that the strata company repair the damage to the common property and replace the garden. According to Ms Christensen, the strata company refused to do so. As a result, she asked if she could replace everything herself and was told to "go ahead". She claims that since then she has been replacing the plants, which has taken almost seven years. She suggests she is not trying to make the garden an exclusive use area for herself. She has filed statements from other parties to support her position, which are summarised as follows:
•Mr John Blundy – stated in a document, dated 6 May 2006, that he had previously been employed by Kim Christensen to mow the lawn and maintain the garden during the period 1988 to 1999. He does not state what garden he was required to maintain, nor does he particularly point out whether a garden was present in that period from 1988 - 1991, outside Unit 1.
•Peggy Palmer of 18 Cownan Street, Armadale – states there was once a garden at the front of Unit 1, and that she recalled it existing in 1998.
•Don Caisley of 26 Toorak Road, Armadale – stated that there was once a garden next to the carport of Unit 1, and around Unit 1's retaining wall. Mr Caisley does not, however, specify when he last saw that garden bed.
•P Caisley – also of 26 Toorak Road, Armadale – states the same as D Caisley, but again there is no mention made as to when the garden last existed outside Ms Christensen's unit.
The strata company has also filed documents on the issue of when the garden bed last existed at the strata complex outside Unit 1. A summary of that information is summarised as follows:
•Diana Locke – owner and occupier of 9 Toorak Gardens, Armadale states – there has never been a garden with a rock edge established alongside the perimeter fence of Unit 1;
•Kerralie Pasfield – of Unit 4, Toorak Gardens, Armadale states – that when she took up residence in December 2001, there was no garden bed or rockery outside Unit 1, nor has there been until recently.
Ms Christensen has not placed before the Tribunal copies of the minutes of the strata company meeting, which she claims she attended in 1998, where she allegedly was given permission by the strata company to reinstate the plants destroyed outside Unit 1, as a result of vandalism by the then tenants of Unit 2. In contrast, however, in documents filed by the strata company in support of this application, the strata manager claims she has checked the records of the strata company and that no mention is made in the strata company minutes of the alleged agreement between Ms Christensen and the strata company, in respect of the reinstatement of plants destroyed by the then tenants of Unit 2 of the strata complex.
There is evidence that a garden bed may have existed near Unit 1 prior to the present garden bed and rockery having been constructed in 2005. Ms Christensen concedes that by 1998, as a result of vandalism, the garden was destroyed. None of the information filed by Ms Christensen supports a finding that such a garden bed existed beyond 1998. Further, there is evidence from Miss Kerralie Pasfield that upon her taking up residence in December 2001, no garden bed or rockery existed outside Unit 1, nor has there been such a garden bed or rockery until the recent construction of the garden bed and rockery by Ms Christensen.
On the basis of the abovementioned information, the Tribunal is therefore not satisfied that a garden bed existed adjacent to the front of Unit 1 for a considerable period prior to the recent construction of the garden bed and rockery by Ms Christensen. On the basis of Ms Christensen's evidence alone, the garden bed adjacent to Unit 1 has not existed since at least 1998.
Issues 3 and 4
It appears common to both parties that in order to create the present garden bed and rockery, Ms Christensen removed some lawn from the common property. She did so without obtaining recent prior approval of the strata company.
By-law 3 of Sch 2 of the ST Act prohibits a proprietor or occupier of a lot in a strata complex damaging any lawn, garden, tree, shrub, plant or flower upon the common property except with the approval of the strata company.
Ms Christensen has claimed that she had received strata company approval to replace plants that had been destroyed by the then tenants of Unit 2 of the strata complex in 1998. As previously stated, Ms Christensen has not placed before the Tribunal copies of any minutes of the strata company which indicate that she had been given permission by it to construct the garden bed and rockery. Again, as previously stated, the evidence from the current strata company manager suggests that the strata company minutes do not establish that such approval was given to Ms Christensen in or about 1998. Further, the majority of the strata company have made clear that they do not want the garden bed and rockery to remain. The Tribunal is therefore not satisfied that approval of the strata company was given to construct the current garden bed and rockery. Even had it been, there would be a serious question as to whether Ms Christensen could have relied upon it to justify actions taken by her at least seven years later.
Under s 35(1)(c) of the ST Act, where necessary, the strata company is to "replace" the common property, whether the damage or deterioration arises from fair wear and tear, inherent defect or any other cause. In this case, the majority of owners of the strata company have resolved, at an EGM held on 12 September 2006, that they do not want the garden bed, constructed by Ms Christensen, to remain. It is accepted by both parties that the garden bed falls within the common property of the strata complex. The strata company has resolved by majority that it is prepared to remove the garden bed and rockery and reinstate it with lawn. Such a resolution was not required under the ST Act to be "unanimous or without dissent". As the resolution was by majority, it was a valid resolution (see By‑law 11(1 and 2) and By-Law 12(6) of Sch 1 of the ST Act). Acting on that valid resolution, the strata company is empowered, therefore, to remove the garden bed and rockery and replace it with lawn at the cost of the strata company, in accordance with s 35(1)(c) of the ST Act.
Ms Christensen has submitted that the strata company, in managing the common property, must do so for the benefit of all proprietors. It is true that a strata company is obliged, under s 35 of the ST Act, to manage the common property for the benefit of all proprietors. However, this does not mean that all proprietors must agree on every decision taken by the strata company in discharging its obligation. Where, as was the case here, a resolution has been passed by the requisite majority relating to a particular aspect of management, the strata company is authorised, indeed obliged, to carry the resolution into effect. In a letter to the strata company dated 13 February 2006, Ms Christensen advised:
"If anyone attempts to remove, destroy, or vandalise the garden in any way[,] that person will be held liable for such damage[,] and legal action will be taken to compensate for the cost of repairing the damage and/or replacement of the garden."
For the reasons explained earlier, the strata company is entitled to take steps to replace the rock garden with lawn. In light of Ms Christensen's attitude shown by her letter dated 13 February 2006, an order refraining Ms Christensen, under s 84(1)(b) of the ST Act, is warranted.
Issue 5
Ms Christensen has sought an order that "people" be prevented from driving across the lawn and footpath in front of Unit 1, and to impose a fine for those who breach the orders. Section 84(1)(b) of the ST Act only empowers the Tribunal to make an order refraining "a party" to the dispute from doing some specified act to which the application relates. The Tribunal is not empowered under the ST Act to make orders refraining any person who is not a party to the dispute from doing an act to which the application relates. It is not open, therefore, for this Tribunal to make orders as sought by Ms Christensen.
Further, Ms Christensen has maintained throughout that she constructed the garden bed and rockery due to her concerns about the driving and parking of vehicles on the area now covered by the garden bed. At a recent EGM of the strata company on 6 August 2006, it was resolved that various signs be placed at the front of the strata complex, including near Ms Christensen's unit, prohibiting vehicle access. Ms Christensen has requested that the Tribunal attend the strata complex to view the area where the garden bed and rockery exist in order to judge whether a vehicle should be driving through the area, and what benefits and risks exist in allowing this. The Tribunal has had the benefit of viewing numerous photos of the area in question as filed by the parties. It does not, therefore, consider it necessary to visit the strata complex.
Ms Christensen has stated that the garden bed and rockery should be preserved as this reduces the possibility of vehicles driving and parking near her unit. She raises these issues on the basis of safety. She has sought to make out that her concerns have been ignored by the strata company. Although not specifically stated, she could be said to be raising a complaint under s 85 of the ST Act, under which the Tribunal is empowered to consider whether a strata company has unreasonably refused to consent to a proposal by a proprietor, including a proposal to effect alterations to the common property.
As stated above, these concerns were the subject of an EGM held on 6 August 2006. Ms Christensen had the opportunity to put her case to the strata company, and by the democratic processes recognised under the ST Act, the majority of the strata company resolved to deal with her concerns by placing four signs at various locations around the strata complex, including near Ms Christensen's unit, to indicate a speed limit and to prohibit vehicle entry. In the circumstances, the Tribunal is satisfied that the strata company has not unreasonably refused to consent to Ms Christensen's proposal that the garden bed and rockery remain for safety reasons.
Orders
The Tribunal therefore orders as follows:
1.The respondent be and is refrained, pursuant to s 84(1)(b) of the Strata Titles Act 1985 (WA), from interfering with the removal of the garden bed and rockery by the strata company, and replacement of the garden bed and rockery by the strata company with lawn, in accordance with the resolution of the strata company dated 12 September 2006.
2.The orders sought by the respondent be dismissed.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER
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