THE OWNERS OF WENDOUREE COURT - STRATA PLAN 8003 and JUREWICZ
[2005] WASAT 9
•18 FEBRUARY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT :STRATA TITLES ACT 1985 (WA)
CITATION: THE OWNERS OF WENDOUREE COURT - STRATA PLAN 8003 and JUREWICZ [2005] WASAT 9
MEMBER: MR B DE VILLIERS (MEMBER)
HEARD: HEARD ON PAPER
DELIVERED : 18 FEBRUARY 2005
FILE NO/S: ST 106 of 2004
BETWEEN: THE OWNERS OF WENDOUREE COURT - STRATA PLAN 8003
Applicant
AND
KRZYSZTOF JUREWICZ
Respondent
Catchwords:
Real property Strata titles common property parking, installation of antenna and airconditioning equipment Strata plan 8003
Legislation:
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2005 (WA) s 1151
State Administrative Tribunal Act 2004 (WA) s 7, 2 11(1), s 95, s 95(1), s 167(4)(b)
Strata Titles Act 1966 (WA) s 15(2)
Strata Titles Act 1985 (WA) Div 116, Div 116A, Pt VI Div 1, Pt VI Div 2A, Sch 2 s 1, Sch 2 s 2, s 81, s 81(7)(c), s 81(7)(d), s 83(1), Sch 2 s 1 and Sch 2 s 2
Strata Titles Amendment Act 1995 (WA) Sch 1 by-law 14(7), Sch 1 by-law 14(8), Sch 1 by-laws 16-20
Result:
Orders in accordance with s 81 of the Strata Titles Act 1985 (WA) are:
1. The respondent must make an application within 30 days from the date of this order to strata company for retrospective permission to install the satellite dish and airconditioning system that have been erected over the external portion of lot 2 (s 81(3) of the Strata Titles Act 1985 (WA) and Sch 1 bylaw 20).
2. The respondent must refrain with immediate and on-going effect from using any parking area within the common property other than the two areas that have been allocated for his exclusive use (s 81(3) and Sch 1 bylaw 19)).
3. The respondent must remove with immediate effect from the common property any vehicle that is not specifically provided for in bylaw 19(b) of the strata company and not to cause any such vehicle to be parked within the common property area again without complying with the said bylaw (s 81(3) of the Strata Titles Act 1985 (WA) and Sch 1 bylaw 19(b)).
4. The respondent must take the necessary steps to ensure that his family and/or guests comply with these orders (s 81(3)).
5. In terms of s 81(4) of the Strata Titles Act 1985 (WA), the order sought in par 1(d)(iv), par 1(d)(v), par 2(b)(ii) and par 2(b)(iii) of the application is dismissed.
6. I declare that s 95(1) of the SAT Act, which deals with failure to comply with a decision, applies to these orders.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR B DE VILLIERS (MEMBER):
REASONS FOR DECISION
Issue
Parking on common property and the installation of antenna and air-conditioning system on rooftop.
Applicant
The applicant is "The Owners of Wendouree Court - Strata Plan 8003".
Application Transferred to the State Administrative Tribunal
The Strata Title Referee appointed in terms of Pt VI Div 1 of the Strata Titles Act 1985 ("1985 Act") 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 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 Act2004 ("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 8003 ("the Strata Plan") was registered on 27 August 1980 pursuant to the Strata Titles Act 1966 ("1966 Act").
In 1985, the 1966 Act was replaced by 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 situated at the corner Leach Highway and Wendouree Road, Wilson.
The development is known as "Wendouree Court" and, according to the Strata Plan, the address for service on the strata company is 149 - 153 Leach Highway, Wilson, 6107.
It is an 8-lot residential development.
Lots 1, 2, 3 and 4 are single-storey lots on four separate "stand-alone" buildings.
Lots 5, 6, 7 and 8 comprise, in each case, a ground floor and a first floor.
Lots 5 and 6 are in one building and lots 7 and 8 are in another.
By-laws
When the Strata Plan was registered, its by-laws were, pursuant to s 15(2) of the 1966 Act, the "standard" by-laws in the Schedule to the 1966 Act.
Pursuant to the transitional provision in Sch 3 and s 42(2), as amended by the Strata Titles Amendment Act 1995 ("Amendment Act"), the by-laws of the strata company are now the "standard" by-laws and Sch 1 and Sch 2, subject to any amendment, repeal or addition that may be recorded on the Strata Plan.
Notification I101536, noted on the Strata Plan on 10 May 2002, sets out a number of amendments and additions which involve the repeal and replacement of Sch 1 by-law 14(7) and by-law 14(8) and the addition of new Sch 1, by-laws 16 - 20, inclusive.
For the purposes of this application, the new Sch 1, by-law 19, relating to exclusive use of rights over car bays and by-law 20, relating to exclusive use of roof areas and installation of television and/or air-conditioning equipment, are relevant to and will be dealt with later in this application.
Orders Sought
The applicant has sought orders in the following terms -
"1. Orders sought pursuant to:
(a)s 83(1) of the 1985 Act;
(b)s 1 and s 2 of Sch 2 of the 1985 Act;
(c)r 1(a), r 1(b) and r 2 of the Rules of Wendouree Court duly passed at a Strata Council meeting on 29 March 2003; and
(d)by-law 19 in Notification I101536:
'(i) Krzysztof (Chris) Jurewicz ("Mr Jurewicz") the proprietor of Lot 5 on Strata Plan 8003 being the whole of the land contained in certificate of title volume 1572 folio 161 and his family desist from parking any of his or their motor vehicles within the strata group other than in two allocated exclusive use car parking bays;
(ii)Mr Jurewicz order any of his or his family’s visitors not to park any of their motor vehicles within the strata group other than in the two allocated exclusive use car parking bays;
(iii)Such order to apply immediately and thereafter indefinitely;
(iv)Mr Jurewicz pay all costs of and incidental to this application and the obtaining and any enforcement of this order;
(v)Division 116 and Div 116A of the 1985 Act apply in contravention of this order."
2. Orders sought pursuant to:
"(a)s 83(1) of the 1985 Act; and
(b)by-law 19 in Notification I101536:
(i)Krzysztof (Chris) Jurewicz (“Mr Jurewicz”) the proprietor of Lot 5 on Strata Plan 8003 being the whole of the land contained in certificate of title volume 1572 folio 161 immediately make an application in writing to the Strata Council for retrospective approval of the erection and installation of an air-conditioning system and satellite television receiver dish which have been installed and erected on the roof of the lot without the prior written consent of the Strata Council;
(ii)Mr Jurewicz pay all costs of and incidental to this application and the obtaining and any enforcement of this order;
(iii)Division 116 and Div 116A of the 1985 Act apply in contravention of this order."
I make the following comments on the orders sought -
(a)In relation to requested order 1(d)(iv) and O 2(b)(ii), I am prohibited by s 81 of the 1985 Act from making an order for the payment of costs in connection with this application except for particular circumstances as set out in s 81(7)(c) and s 81(7)(d) of the 1985 Act.
(b)Division 116 and Div 116A were repealed by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004, s 1151. However s 95 of the SAT Act deals with non-compliance of a decision.
(c)The second of the orders sought also refers to Sch 1, by-law 19 but it appears to have been intended to refer to Sch 1, by-law 20, to be quoted below).
The strata company’s Sch 1, by-law 20 includes:
"Exclusive Use – Roof Area
Each area of common property (hereafter called a "roof area") delineated on the plan attached to and forming part of this by-law is allocated for the exclusive use and enjoyment of the proprietor of each lot as indicated on the plan subject to the following terms and conditions:
(a)The stratum of each roof area extends from the under surface of the ceiling forming the upper stratum boundary of the lot to which it is allocated to a level 4 metres above that level;
(b)Each roof area includes all structural members and other components of the roof structure including eaves, soffits, flashings, gutters and downpipes;
(c)To the satisfaction of the Council of the strata company, each proprietor shall maintain his or her respective roof area in a clean, neat, tidy and structurally sound condition consistent with the aesthetic appearance and structural condition of other components of buildings within the scheme;
(d)Without the prior written consent of the Council of the strata company, a proprietor may not in any way whatsoever structurally modify a roof area;
(e)Without the prior written consent of the Council of the strata company, a proprietor may not install within a roof area any television, wireless, satellite communication equipment including antennae, aerials and dishes…".
The strata company's Sch 1, by-law 19 includes:
"19. Exclusive Use – Car Bays
Each area of common property (hereafter called a "car bay") delineated on the plan attached to and forming part of this by-law is allocated for the exclusive use and enjoyment of the proprietor of each lot indicated on the plan subject to the following terms and conditions:
(a)…
(b)Without the prior written authority from the Council of the strata company to the contrary, a car bay may only be used for the parking of licensed motorcars, boats, trailers or pushbikes;
(c)Any dispute of the use of a car-bay allocated pursuant to this by-law shall be referred in the first instance to the Council of the strata company and, in the event that such referral does not result in the resolving of the dispute, the matter shall be referred to a general meeting of the strata company and any decision of such meeting in respect of the matter in dispute shall be binding upon the parties to the dispute…;
(d)Should a proprietor default in the performance of any term or condition of this by-law and should such default continue for 10 days after service by the secretary (or the manager appointed pursuant to Sch 1 by-law 16) upon that proprietor of notice of such default, then the strata company through its agents, employees or contractors may enter upon or within a car bay allocated under this by-law and make good such default. All costs and expenses incurred by the strata company in the issue or service of a notice of default and in the making good of such default shall be borne by the proprietor in default."
Applicant's Submissions
The applicant has provided copies of correspondence addressed to the respondent, complaining about his misuse of car bays and common property driveways over a long period of time.
For example, on 6 December 2002, the strata company's strata manager, on behalf of the applicant, wrote to the respondent. This letter included:
"… Over recent weeks, we have received from several scheme residents persistent reports that you are parking motor vehicles in common property other than areas allocated for your exclusive use.
Such parking is proving to be an obstruction to other vehicles using the driveway and, of course, prevents genuine visitors to the scheme from using the visitors’ car parking bays.
Your co-operation in ensuring that all vehicles under your control are parked only in areas allocated to you would, I am sure, be appreciated by all other residents…".
The strata manager wrote to the respondent on 14 April 2003, advising, in part:
1."… You have a motor vehicle permanently parked in the visitors’ car bay near the entry to the common driveway. That vehicle is to be removed from the common property with seven days of the date of this letter.
2.Vehicles belonging to, or used by, occupiers of your unit are to be parked only within the two car bays allocated to your lot. The visitors’ car bay in the common driveway is to be used for short-term parking by bona fide visitors only.
3.Other than in the two bays allocated to your lot, you are not to place your motor vehicles within the common property. Genuine visitors to your unit may use the visitors’ car bays for short duration car parking … .
In addition to the above, it has further been reported that, during the past few days, you have installed a satellite communications dish within or attached to common property, being the balcony area attached to your unit.
Such installation constitutes a breach of the strata company's by-laws.
The Council of the strata company requires you to arrange the immediate removal of the satellite communications dish.
Should you wish to re-install the satellite dish, you will need to make application to the Council of the strata company in accordance with the strata company's by-laws. The Council will then consider your application… ."
A letter from the strata manager to the respondent on 1 July 2003 included a complaint that an occupier of the respondent’s lot:
"has recently recommended regular occupation of the visitors’ car bay".
In relation to the television installation, the letter stated:
"… Council has noted that you have not responded to the request contained within my April 14 letter to remove the Foxtel dish and associated apparatus installed in common property outside your lot…
You may note from the letter to Foxtel that the Council would be prepared to entertain an application from you from the correct authority to install the Foxtel equipment at a different location within the strata scheme land parcel.
Some individual members of the Council (but not necessarily the whole Council) have indicated that they would have no objection to installation of the equipment to the rear (laneway side) of your unit. Those members of the Council would prefer that location to the current, conspicuous position adjacent to the main entry driveway…".
On 3 July 2003, the strata manager reported to the applicant that:
1."… They do not have a Foxtel dish. The dish is from another company. They use it to receive Polish TV programmes. This may provide some minor embarrassment for me with my letter to Foxtel. (Such is life!) Irrespective of who supplied the dish, however, it still remains an unauthorised and unsightly fixture within common property. Mr J says that the dish cannot be installed in the back (laneway) yard as this will destroy the line of vision to the satellite. Mounting on the roof would not apparently destroy the line of vision, though.
2.They say that they are parking an extra vehicle in lot 6 car bay with approval of lot 6. They say someone else in the scheme (they do not know who) parks every night in the visitors’ bay…".
The minutes of the strata company's annual general meeting, held on 13 March 2004, included:
"… Discussion ensued on parking difficulties arising from the parking on common property of motor vehicles associated with the proprietors of lot 5. Several proprietors tendered photographs illustrating instances of problems caused by parking.
All proprietors represented at this meeting expressed a view that the parking of vehicles on common property presented a problem in terms of inhibiting vehicular access for other persons as well as representing an untidy appearance to the scheme…".
The applicant has provided more than 100 photographs of vehicles parked on common property. Each photograph is dated and is accompanied by a sketch plan showing the location of the vehicles in respect of the photographs. I am satisfied that the applicant has exhausted mediation options prior to submitting the application for determination.
Responses to Application
The proprietors of three lots have supported the application.
The respondent is the only proprietor who has opposed it.
One of the proprietors supporting it has stated:
"… I, Nola Ann Stubbs, support the application as I live in a residential area not an industrial area. The truck does not appear to be used on a daily basis and has been parked at unit 5 for many months. Apart from the truck being parked there, unit 5 also have a large campervan which is also permanently parked in one of the visitor parking bays alongside the truck, and the family car is parked in their car port. The parking bays are allocated to each unit, not three. I have no objection to the satellite dish or air conditioner…".
Another has reported that:
"…The owner of Unit 5 (Mr Jurewicz) had not lived in the unit for many years (he purchased it in 1985) but the unit was occupied at various times by either members of his family and on a couple of occasions by tenants. Mr Jurewicz and his family returned from Europe in June 2002 and has lived in the unit since.
One prior occupant of the property (I believe a friend of the owner’s brother) regularly parked his truck in the complex. It was pointed out to him on a number of occasions that he was not permitted to park a truck in a residential zone but this fell on deaf ears and ultimately resulted in that person threatening to kill me and my cat. It was not a pleasant experience…
When Mr Jurewicz and his family returned from Europe in 2002 he brought with him a campervan and a BMW. The campervan is his and his family’s prime means of transport. It still has European number plates and does not have a current Western Australian registration sticker. I am concerned that the vehicle may be unlicenced and/or uninsured but is being driven on our roads. The other vehicle a BMW is unlicenced and remains parked in the carport…".
The respondent has advised that, because of his limited understanding of English, he did not realise that he had to seek permission to add the satellite installation and air-conditioning. He claims that he spoke to the strata manager who agreed to "do all the paperwork for me to get the permission" but he claims nothing was done in that regard.
In relation to the parking issues he has submitted that:
"… When this is about the parking, my unit has two parking spaces which are used all the time by my cars, my daughter, who lives here and also has her own car and also needed to park the car somewhere so she used the neighbours parking, unit 6, with permission from unit 6.
My daughter is 23 years old and has a boyfriend, which came every day to her, also had to park his car somewhere so he used the visitor parking. So for that purpose are those parking's and the neighbours don’t use them at all. My older sun also has a car and needed somewhere to park so he sometimes used the visitors parking, and there is nowhere a public parking and you can’t park on the road also.
At one meeting, Wendouree Court Body Corporate had a major discussion about the parking, after the discussion they told us that we are aloud to park on the visitors parking and we can keep the satellite and the air-conditioning.
Sometime when there was nowhere to park then we parked the car next to our unit and no one had problems to drive through the space which is at least 4 m to the other units…".
Finding
I find that the respondent has acted in breach of the 1985 Act, and s 19 and s 20 of the Sch 1 by-laws of Wendouree Court, Strata Plan 8003 for the following reasons:
The respondent has installed an external structure in the form of a satellite dish and air-conditioner system on the roof of Lot 5 in breach of Sch 1, by-law 20(d) and by-law 20(e) of the strata company. The respondent did not seek nor obtain the necessary permission for the installation to occur and although he might have had difficulty in understanding the procedures and requirements due to his limited knowledge of English, it does not place him outside the ambit of the Act or by-laws of the strata company. I also note that the strata company attempted over a long period of time to secure the respondent's compliance with the by-laws. I therefore find that the respondent has breached Sch 1 by-law 20(d) and by-law 20(e) by erecting the satellite receiver dish and installing the air-conditioning system without permission. I am therefore empowered in terms of s 81 of the 1985 Act to make an order to deal with the matter.
The respondent has over a period of time used parking areas other than the two parking bays allocated for his exclusive use and therefore acted in breach of Sch 1 by-law 19 of the strata company. The respondent has also allowed other persons such as members of his family and visitors to use parking bays other than those allocated for his exclusive use. The strata company has initiated several actions to encourage the respondent to refrain from the unauthorised use of parking areas. I am hence empowered in terms of s 81 of the 1985 Act to make an order to deal with the matter.
The respondent has used a car bay/s for the parking of vehicles other than those listed in Sch 1 by-law 19(b) of the strata company. The respondent has also allowed other persons such as members of his family and visitors to use a car bay for the parking of a vehicle other than those listed in Sch 1 by-law 19. I am hence empowered in terms of s 81 of the 1985 Act to make an order to deal with the matter.
The orders sought by the applicant in par 1(d)(iv) and par 2(b)(ii) do not fall within the powers of the Tribunal due to s 81(7) of the 1985Act. Section 81(7) explicitly precludes from my power an order to make an order in the manner sought by the applicant except as provided for in the subsection. Those conditions do not apply to the current application. Division 116 and Div 116A have been repealed. Section 95 of the SAT Act deals with failure to comply with a decision of the Tribunal. It is however not appropriate for me to make an order regarding a hypothetical situation where the respondent may in future fail to comply with an order. However, s 95(1) of the SAT Act deals with failure to comply with a decision, and I will declare that the subsection applies to the orders.
Orders
My orders in accordance with s 81 of the 1985 Act are that:
1.The respondent must make an application within 30 days from the date of this order to the strata company for retrospective permission to install the satellite dish and air-conditioning system that have been erected over the external portion of lot 2 (s 81(3) of the 1985 Act and Sch 1 by-law 20 of the Amendment Act.
2.The respondent must refrain with immediate and ongoing effect from using any parking area within the common property other than the two areas that have been allocated for his exclusive use (s 81(3) of the 1985 Act and Sch 1 by-law 19).
3.The respondent must remove with immediate effect from the common property any vehicle that is not specifically provided for in by-law 19(b) of the strata company and not to cause any such vehicle to be parked within the common property area again without complying with the said by-law (s 81(3) and Sch 1 by-law 19(b)).
4.The respondent must take the necessary steps to ensure that his family and/or guests comply with these orders (s 81(3)).
5.In terms of s 81(4), the order sought in par 1(d)(iv), par 1(d)(v), par 2(b)(ii) and par 2(b)(iii) of the application is dismissed.
I declare that s 95(1) of the SAT Act which deals with failure to comply with a decision, applies to these orders.
I certify that this and the preceding 14 pages comprise the reasons for decision of the Tribunal.
______________________________
Mr B De Villiers
Member
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