| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : TRAN and THE GABLES STRATA PLAN 269 [2013] WASAT 109 MEMBER : MS NATASHA OWEN-CONWAY (MEMBER) HEARD : 26 JUNE 2013 DELIVERED : 12 JULY 2013 FILE NO/S : CC 375 of 2013 BETWEEN : DUNG SON TRAN Applicant
AND
THE GABLES STRATA PLAN 269
First Respondent
PETER CAREY
Second Respondent
LOUISE ROUND
Third Respondent
Catchwords: Application to undertake structural alterations to strata lot Not in keeping with development Whether alteration would likely be 'visible' from 'outside' altered lot Validity of dissent where alteration not likely to be visible outside altered lot Section 103F of the Strata Titles Act 1985 (WA) Application to make ancillary alterations and alterations for repair and maintenance to common
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property where it abuts altered lot Section 85 of the Strata Titles Act 1985 (WA) Legislation: Strata Titles Act 1985 (WA), s 7, s 7(2)(d), s 7(5), s 7(5)(b)(i), s 7(5)(b)(ii), s 7B, s 79(2), s 85, s 103F, s 103(2) Result: Orders granted
Summary of Tribunal's decision: The applicant proposed structural alterations to his lot on the ninth floor of the development. The alterations would result in a dissimilarity of his lot, where it opened to the balcony of his lot, when compared to other lots in the development. The applicant also proposed ancillary and remedial alterations to the common property where it abutted his lot. At a general meeting the applicant's application for approval to make the alterations to his lot and the common property did not achieve approval without dissent. The Tribunal concluded that, on the evidence, the dissimilarity of the applicant's proposed alterations to his lot would not likely be visible from outside his lot and the dissenting voters at the general meeting unreasonably withheld their consent and approval to the applicant's application. The Tribunal also concluded that the proposed alterations to the common property were necessary and ancillary to the applicant's alterations to his lot and that the dissenting voters at the general meeting unreasonably withheld their consent to the applicant's application. The Tribunal granted relief to the applicant pursuant to s 103F and s 85 of the Strata Titles Act 1985 (WA).
Category: B
Representation: Counsel:
Applicant : Self-represented
First Respondent : Mr H van Es (Acting as Agent)
Second Respondent : Self-represented
Third Respondent : Self-represented
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Solicitors:
Applicant : N/A
First Respondent : N/A
Second Respondent : N/A
Third Respondent : N/A
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
The application 1 On 27 March 2013 the applicant made application to the Tribunal for the following: Under [s] 103F(3)(a) approval should have been given under section 7 or [s] 7A as the case may be and (b) has been unreasonably withheld. Section 85(a) to the extent necessary the applicant and the applicants builder [sic] are given approval to to [sic] remove the common property brickwork so as to put into affect the alterations as outlined in the applicants [sic] proposal subject to receiving building approval from the City of Bayswater. 2 The applicant claims that at an extraordinary general meeting (EGM) of the lot proprietors of the respondent on 22 February 2013 there was a vote taken in relation to his application made pursuant to s 7 of the Strata Titles Act 1985 (WA) (ST Act) for approval of the proposed structural alterations to his lot (Lot 97) and ancillary alterations to repair the common property where it abuts Lot 97. The alterations are identified in that application made to the respondent. The applicant further asserts that at that EGM, 43 owners voted in favour of approval of his application and 10 voted against approval of his application. The applicant did not achieve approval as required by s 7(2)(d) of the ST Act, which is approval without dissent. He identified the basis of the dissention as being: The proceeding 3 The application was listed for an initial directions hearing on 2 May 2013 at which time orders were made for notified persons, within the meaning of that term as provided for by s 79(2) of the ST Act, to be informed of the proceeding and to facilitate their involvement and/or participation in the proceeding. The Tribunal received responses from Ms L Round (Lot 13), Mr P Carey (Lot 94), Mr W Kimber (Lot 87) and Ms A Balcombe (Lot 96). 4 Ms Round and Mr Carey voted to dissent from approval of the applicant's application at the EGM upon the basis that the proposed alterations may affect the structural soundness of the building (s 7(5)(b)(ii) of the ST Act) and also upon the basis that the proposed alterations will result in a structure that is visible from the outside of the (Page 5)
lot and which is not in keeping with the rest of the development (s 7(5)(b)(i) of the ST Act). At the directions hearing held on 6 June 2013, Mr Carey and Ms Round maintained their objection to the applicant's application and they each applied to be joined as a party to the proceeding. The Tribunal ordered that Ms Round be joined to the proceeding as the second respondent and Mr Carey be joined to the proceeding as the third respondent. 5 Mr Kimber informed the Tribunal by his letter dated 28 May 2013 that he had dissented from approval of the applicant's application upon the basis that the addition of a door to the balcony (as opposed to a window) will not be in keeping with the rest of the development. The Tribunal infers that Mr Kimber's dissent is based upon s 7(5)(b)(i) of the ST Act. Ms Balcombe informed the Tribunal by her letter dated 29 May 2013 that she dissented from approval of the applicant's application based on the difference in the width of the proposed door (in place of the window). The Tribunal infers that Ms Balcombe's dissent is based upon s 7(5)(b)(i) of the ST Act. Neither Ms Balcombe nor Mr Kimber applied to be joined as a party to the proceeding. The Tribunal ordered that their letters of submission to the Tribunal referred to above would be taken into account at the final hearing of the proceeding. 6 At the final hearing Ms Round and Mr Carey withdrew their objection to the applicant's application for approval based upon the structural integrity of the building being affected by the applicant's proposed alterations. Mr Carey withdrew his objection based on the proposed alterations being visible from outside Lot 97 because, he reasoned, that the proposed wider sliding glass door in place of the window would not be visible from any viewpoint outside the applicant's lot. Further, Mr Carey withdrew his objection based upon the proposed door not being in keeping with the development because he acknowledged that the applicant had proposed a change to his application so that the proposed door frame (in place of the window) would be constructed from aluminium coloured aluminium rather than white coloured aluminium and therefore would not appear to be different from the window frames in the other lots of the development, in any event. 7 At the final hearing Ms Round withdrew her objection to the applicant's application based on the proposed door not being in keeping with the development, because she also acknowledged that the applicant had amended his application so that the proposed door frame would be aluminium coloured. However, Ms Round maintained her objection to the applicant's application based upon the width of the door being wider (Page 6)
than the original window had been, and wider than corresponding windows on other lots.
The issues 8 The only objection to the applicant's application to make structural alterations to Lot 97 before the Tribunal as at the final hearing was the objection referred to in s 7(5)(b)(i) of the ST Act. Section 7(5)(b)(i) of the ST Act relevantly provides: (5) The grounds on which approval may be refused are 9 The applicant sought relief by way of an order pursuant to s 103F of the ST Act, which provides: (1) A proprietor of a lot who has applied for but not obtained an approval under section 7B may apply to the State Administrative Tribunal for an order under this section. (2) An order under this section is an order declaring that the approval required under section 7 or 7A, as the case may be, is to be deemed to have been given by the proprietor or the strata company. (3) On the making of an application under subsection (1), the State Administrative Tribunal may make an order under this section if satisfied that the approval by the proprietor or the strata company. 10 At the final hearing there was no objection to the applicant's proposed alterations to the common property. The applicant sought relief pursuant to s 85 of the ST Act, which provides: Where, pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal considers that the strata (Page 7)
company for the scheme to which the application relates has unreasonably refused to consent to a proposal by that proprietor (a) to effect alterations to the common property; or (b) to have carried out repairs to any damage to the common property or any other property of the strata company, it may make an order that the strata company consent to the proposal.
The evidence and findings 11 By way of background, the Tribunal notes that the previous owner of Lot 97, from whom the applicant acquired his title to Lot 97, had undertaken unauthorised structural alterations to Lot 97 including widening the window opening where the applicant now seeks to install an aluminium framed glass sliding door. Having purchased Lot 97, the applicant now seeks to rehabilitate the same. Lot 97 is on the ninth and penthouse floor of the building in Bayswater. 12 There is no doubt that the proposed alteration from a window to a door is not in keeping with the corresponding windows in the other lots. The question for the Tribunal is whether the proposed alteration from a window to a wider glass door and the dissimilarity is 'visible from outside the lot', as it is required to be for a valid objection pursuant to s 7(5)(b)(i) of the ST Act. 13 At this point it should be noted that the balcony to Lot 97 forms part of Lot 97. 14 It was conceded by Ms Round, Mr Carey and Mr H van Es, the respondent's strata manager, that an alteration from a window to a door at Lot 97 would not be visible from any vantage point outside Lot 97. It would only be visible within the lot that is, on the balcony of Lot 97, which balcony forms part of Lot 97. Mr Kimber does not deal with this point and Ms Balcombe asserts that the alteration will 'make visible structural changes to the external view of the property'. The balcony of Lot 97 (like all other lots) is bounded by a brick balcony upstand. The brick balcony upstand shields from view a great part of the balcony and the openings from Lot 97 to the balcony of Lot 97. In other words, because of the brick balcony upstand, the bottom of the proposed door would not be visible outside Lot 97. It would only be visible if a person was standing on the balcony of Lot 97. The Tribunal is satisfied from the submissions of Mr Carey, Ms Round, Mr van Es and the applicant that the alteration from window to door opening to the balcony of Lot 97, and the (Page 8)
dissimilarity to other lots would not be visible from 'outside' Lot 97 even if a person was level with Lot 97. 15 As to the width of the proposed door, the applicant's application shows that the opening is 1,810 millimetres in width. This is the width of the opening created by the previous owner who widened the window opening from its original dimension of 850 millimetres. The applicant asserts he can no longer find matching bricks to narrow the opening back to its original dimension of 850 millimetres. This assertion was confirmed by Mr Carey. These statements were not challenged by any other party. The proposed door width is more than double the windows in corresponding positions in other lots and is dissimilar to the width of the corresponding window openings of other lots. 16 The photographs of Lot 97 attached to the applicant's application to the Tribunal and filed in the Tribunal on 17 June 2013 and the drawings in the applicant's application show that the roof line of the building extends over the whole of the balcony of Lot 97. The top section of the wall of Lot 97 leading onto the balcony of Lot 97 is partially shielded from view by that extended roof line. As stated above, the brick upstand shields the bottom of that wall as well. That wall (separating the inside of Lot 97 from the balcony, in which wall the applicant proposes to install the proposed door) is well recessed from the balcony upstand (approximately 1 metre). The Tribunal is satisfied that very little of the openings from Lot 97 onto the balcony of Lot 97 (if any) can be seen unless a person were on the balcony of Lot 97. Mr Carey and Mr van Es agree with the applicant that the openings are not 'visible' from outside Lot 97 for this reason. 17 Further, they submit that because Lot 97 is on the ninth floor of the building there is no vantage point outside Lot 97 where the openings from Lot 97 onto the balcony of Lot 97 can be seen. Photograph 1 of the Structerre report dated 17 September 2012 appears to be taken from the ground floor near Guilford Road. The width of the proposed door opening is not visible in that photograph. Nor is it visible from the enlarged photograph attached to the applicant's documents filed on 17 June 2013. The applicant and the respondents submit therefore that an alteration from a window to a door of any width would not be 'visible' from outside Lot 97. 18 Mr Carey stated that there was one point whilst driving along Guilford Road where the balcony of Lot 97 is fleetingly visible, but he said that it was partially obscured by a heritage listed tree and was (Page 9)
difficult to see without binoculars or other visual aids. Ms Round did not necessarily concede this point but did not challenge it either. The Tribunal was not provided with any photographs of Lot 97 from this vantage point. The Tribunal does not consider that this fleeting view, possibly with the need for binoculars, renders the width of the proposed door opening to be 'visible' from outside Lot 97 for the purposes of s 7(5)(b)(i) of the ST Act. 19 The Tribunal noted that, short of being elevated to correspond with the ninth floor, there was no real prospect of any person being able to see the proposed alteration from a window to a wider door so as to perceive of any dissimilarity to the openings of Lot 97 to the balcony of Lot 97, when compared with the corresponding windows of the other lots. The photographs of the building taken from ground level indicate that it is unlikely that any person could see anything other than the roof line and the balcony upstand of Lot 97 from the ground floor. 20 The Tribunal is not satisfied that any alteration from a window to a wider door to Lot 97 leading onto the balcony of Lot 97 would be visible from outside Lot 97. The Tribunal is satisfied that, on the evidence and information before the Tribunal, it is more probable than not that the alteration would not be visible outside Lot 97. For this reason the Tribunal concludes that the dissent by Mr Kimber, Ms Round, Ms Balcombe, and any other lot proprietors at the EGM based on s 7(5)(b)(i) of the ST Act is not a valid dissent, and their consent to the applicant's application for approval of his structural alterations to Lot 97 should have been given at the EGM but instead was unreasonably withheld. 21 The applicant's proposed alterations to the common property involve ancillary alterations in the way of new fixings and repairs to damaged fixings near the door/window openings and the balcony of Lot 97. The applicant's engineering reports show various existing bolts and fixings that show signs of structural stress and wear that require the fixings to be replaced. There was no objection by any person to these ancillary and apparently necessary alterations to the common property, which are largely in the nature of repairs to the common property where it abuts Lot 97. There is no submission or evidence before the Tribunal that any of the owners at the EGM refused to consent to the applicant's proposed alterations to the common property. However, those who dissented from approval of the applicant's application at the EGM did withhold their consent to the applicant's proposal to make the alterations to the common property. In light if the nature of the alterations and in particular that they (Page 10)
are ancillary to the proposed alterations to Lot 97 and were remedial in nature the Tribunal concludes that the dissenters unreasonably withheld their consent to the applicant's application.
Conclusion 22 To the extent that the dissenters withheld their consent at the EGM on 22 February 2013 based upon s 7(5)(b)(i) and s 7(5)(b)(ii) of the ST Act, their dissent is not valid, and they unreasonably withheld consent to the applicant's application, made pursuant to s 7 of the ST Act, to make structural alterations to Lot 97. To the extent that the dissenters withheld their consent at the EGM on 22 February 2013 to the applicant's application to make alterations to the common property where it abuts Lot 97, they unreasonably withheld their consent. The Tribunal is satisfied that the applicant is entitled to an order pursuant to s 85 and s 103F of the ST Act.
Other matters 23 The respondent's representative raised the issue of whether a decision for all times could be made by this proceeding. Mr van Es commented that the costs associated with an application to the Tribunal for orders pursuant to s 103F of the ST Act could, in a large strata development, become onerous, as the respondent is required to respond to that application even when, as in this case, relatively few lot proprietors dissented at the EGM. Of course, any decision made by the Tribunal in this proceeding cannot bind any other lot proprietor or the respondent. The ST Act requires than an application be made pursuant to s 7 of the ST Act by each lot proprietor who wishes to advance structural alterations to their lot and that it be put to the respondent in a general meeting in accordance with the process referred to in s 7 and s 7B of the ST Act. Section 7(5) of the ST Act identifies the specific valid objections that may be made by lot proprietors who wish to object and withhold their consent at such general meeting and which are considered to be a reasonable basis for any voter to withhold consent to such an application. Each application to the general meeting and then to the Tribunal pursuant to s 103F of the ST Act, will turn on its own facts as to the nature of the proposed alterations and, in the case of s 7(5)(b)(i) of the ST Act, whether the proposed alteration is in keeping with the development or not, and if not, whether it is visible from outside the lot being altered. Therefore, no decision by the Tribunal on the facts of any one such application in a strata development can bind all lot proprietors and the respondent for all times. (Page 11)
Order 1. Pursuant to s 103(2) of the Strata Titles Act 1985 (WA), the consent of the respondent is deemed to have been given to the applicant's application for approval to undertake structural alterations to Lot 97 made pursuant to s 7 of the Strata Titles Act 1985 (WA) considered at the Extraordinary General Meeting of the owners on 22 February 2013. 2. Pursuant to s 85 of the Strata Titles Act 1985 (WA), the consent of the respondent is given to the alterations and repairs and maintenance to be carried out by the applicant to the common property as provided for in his application considered at the Extraordinary General Meeting of the owners on 22 February 2013. |