WALLACE and STANDBRIDGE
[2005] WASAT 64
•14 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985
CITATION: WALLACE and STANDBRIDGE [2005] WASAT 64
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: ON PAPER
DELIVERED : 14 APRIL 2005
FILE NO/S: ST 116 of 2004
BETWEEN: CAROLE WALLACE
Applicant
AND
SUSAN ALLICE STANDBRIDGE
Respondent
Catchwords:
Strata titles - Installation of garage door
Legislation:
State Administrative Tribunal Act 2004
Strata Titles Act 1986
Result:
The application is dismissed
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
DR B DE VILLIERS (MEMBER):
REASONS OF DECISION
Issue
The applicant seeks an order under s 83(1) of the Strata Titles Ac 1985 for the respondent to replace a recently installed garage door to conform with instructions by the strata company. The strata company had previously given permission for the installation of a garage door provided it was "in keeping" with existing doors. The respondent contends that there are no "standard" approved garage doors and that the words "in keeping with" are general enough to allow the existing door installed to remain.
Applicant and Respondent
The applicant is owner-resident of unit 2 Lilian Park, 7 Peach Street, North Perth WA. I note that the applicant is also the secretary of the strata company but from the application form it appears that she is acting in her personal capacity and not on behalf of the strata company in bringing the application.
The respondent is the owner-resident of unit 15, Lilian Park, 7 Peach Street, North Perth, WA.
The strata company is The Owners of Lilian Park Strata Plan No 8754 of Unit 2 Lilian Park, 7 Peach Street, North Perth.
Submissions were received from the applicant, respondent and several other owners with an interest in the matter. The strata company did not make a submission.
Application transferred to the State Administrative Tribunal
The application was lodged on 14 October 2004. 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 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 application for relief was lodged in terms of s 77 of the Strata Titles Act 1985. The applicant certified in terms of s 77B that the strata company had no by-laws to regulate the resolution of a dispute. In exercising its jurisdiction SAT deals with a matter in accordance with the SAT Act and the enabling Act which in this case is the Strata Titles Act 1985.
At a directions hearing that took place on 31 March 2005 Senior Member Raymond ordered that the matter be dealt with on papers under s 60(2) SAT Act. Submissions were received from the applicant, respondent and three other proprietors.
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.
Parcel
The strata complex called "Lilian Park" is situated on Lot 60 of part Swan Location 647 on Diagram 56374, strata plan 8754. The strata plan was registered on 8 December 1980 under the Strata Titles Act 39 of 1966. The complex comprises 18 units, each with an adjacent car park area for exclusive use. Each unit has one unit entitlement for purposes of decision-making.
Unit 15 was registered in the name of the respondent on 5 November 2003 together with one undivided eighteenth share in the common property therein.
Strata Plan and Strata Titles Act
The applicant certified as part of her application that in terms of s 77B of the Act there is no provision in the by‑laws for resolution of conflicts. The application can therefore proceed directly to SAT.
The Strata Plan was registered pursuant to the Strata Titles Act 1966 ("the 1966 Act").
In 1985, the 1966 Act was repealed and replaced by the Strata Titles Act 1985 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.
Two notifications of changes to the by-laws of Lilian Park were registered on 13 December 1996 (G351041) and 9 February 1999 (H22422) respectively. The nature of the changes is noted below.
The key provisions of the Strata Titles Act of relevance to the application are the following:
Section 17(1) "Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots."
Section 35(1) "A strata company shall –
a. enforce the by-laws;
b.control and manage the common property for the benefit of all the proprietors…"
Section 42(1)"A strata company may make by-laws, not inconsistent with this Act, for –
…
c.other matters relating to the management, control, use and enjoyment of the lots and any common property."
By-laws
The strata company registered two changes to the "standard" by‑laws contained in Sch 1 and 2.
Schedule 1 by-law 16(1) deals with the allocation of exclusive use of courtyards/gardens. This by-law is not of relevance to this application.
Schedule 1 by-law 16(2) deals with the allocation of exclusive use of carports. Due to the relevance of this by-law it is quoted in full:
"The common areas, as marked 'carports', on the attached plan shall be for the exclusive use of the registered proprietor of the respective lots to which they are adjacent and shown on the plan, as being Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18 shall be entitled to the exclusive use of the carports, as per the surveyors plan attached, and marked "CARPORTS" provided that the registered proprietor of the lot shall not allow the storage of any material within the allocated areas and shall keep the allocated area in a neat and tidy manner and provided further that the registered Proprietor shall only allow the parking of a private motor vehicle in the allocated area and no commercial vehicle, caravan, trailer, float or any other vehicle which is not compatible with the residential property shall be permitted unless written approval from the Strata Company is obtained.
No registered Proprietor shall erect or carry out any improvements in the allocated area without first receiving the written approval of the Strata Company, further a registered Proprietor shall not seek or apply for the WA Planning Commission, Local Authority or any other statutory authority for a change of use or occupancy, without first obtaining the prior written approval of the Strata Company.
Notwithstanding Section 42(8) the Strata Company will retain the responsibility to properly maintain and keep in a state of good and serviceable repair of these CARPORTS delineated on the attached plan."
Applicant submissions
The main elements of the submission by the applicant, supported by excerpts of correspondence from the strata company can be summarised as follows:
a.In an email dated 8 October 2003 the respondent wrote to the applicant requesting permission to install a garage door "that will be keeping with the others on the property".
b.The strata company manager wrote to all the owners on 9 October 2003 requesting their decision on the application. The strata manager put various conditions to which the installation would be subject to including "the alterations be in keeping with the visual aesthetics of the development and that materials used within the existing development only be used." Permission on these terms was subsequently given and conveyed to the respondent per email on 23 October 2003.
c.On 26 November 2003 the strata company manager wrote to the respondent noting that the garage door she had installed did not match the existing doors. She was therefore requested to replace the door with one that matches the others in the complex.
d.In a letter dated 11 December 2003 the respondent was instructed to obtain the approval of the Council of Owners before the door is replaced in order to ensure that the new door is "as close as possible to being visually in line with the other doors in the complex".
e.On 19 December 2003 the strata company manager wrote to the council members seeking their decision to a request dated 16 December 2004 by the respondent that the strata company shares the installation costs of a new door on a 50/50 basis. The respondent proposed to replace the door with a different type and to move the existing door to the back of the garage.
f.In a letter dated 23 January 2004 the strata manager wrote to the respondent to advise that permission had been granted for her to replace the door with one as proposed provided it has a "smooth" finish and for the existing door to be moved to the back of her garage.
g.On 9 June 2004 a reminder was sent to the respondent to advise that she has to replace the existing door by not later than 31 July 2004. Another reminder was sent on 10 August 2004.
Respondent submissions
The respondent opposes the application. The main elements of the submission by the respondent and excerpts of correspondence provided can be summarised as follows:
a.In an email dated 16 December 2003 to the strata company, the respondent raised the following concerns about the instruction for her to replace the newly installed garage door:
a.The door she installed was "in keeping with the others" in that it is of the same colour and the latest model.
b.It would have been "beneficial" had the strata company provided clearer guidelines at the outset.
c.The request by the strata company to approve the actual door only came at 11 December 2003 which is several months after the original approval had been given and installation had occurred.
b.Several photographs were provided to show that some garages do not have any doors and of those that do have doors there is no consistency of design. For example the garage door of unit 14 differs from unit 18. The colours scheme seems to be consistent.
c.The words "in keeping with" cannot be taken to mean "exactly the same" as appears to be suggested from the reasoning of the strata company. It is an oversight by the council of owners not to have requested the respondent to provide them with images of the door prior to its installation.
d.There is no standard design of garage doors in the complex.
e.If she is required to replace the door, the strata company should be ordered to pay half of the cost as the problem arose due to their oversight by giving permission without having seen the actual design.
f.In a supplementary submission dated 6 April 2005 the respondent retracted her offer to pay half of the costs for replacing the door. She repeated that what she did was "in keeping with" the other designs. She concluded that "if the council of owners wanted the exact same garage door as others in the complex, that they could have provided a list of suppliers from which to purchase ..."
Other submissions
Three other submissions were received from owners. All of the submissions oppose the application.
The submissions can be summarised as follows:
Mr I Blackburn (owner unit 17): The original approval by the strata company was for the door to be installed subject to it being "in keeping" with the others. The complex already has different type doors so there is no consistent style to be complied with in exact form. No specific instructions as to "form" or "colour" was given to the respondent. The application should be dismissed.
Mr R Hudson (owner unit 13): The door installed by the respondent "does not warrant a second look" as the only difference is that it has a pressed squares pattern on it whereas the others have lines but the colour is consistent with the other doors. Unit 15 also has no street frontage which means that it would not affect the appearance of the complex. The application is "mean spirited" and should be dismissed.
Ms C Cocks (owner unit 3): To replace the existing door will be unnecessarily onerous on the respondent. The door she installed is "attractive" and "inoffensive". The phrase "in keeping with" is vague and non‑specific. There are at least 3 different garage door styles in he complex and a variety of shades. "In my interpretation this means it is 'in keeping' with the other doors."
Consideration
The amended Schedule 1 by-law 16(2) requires from a proprietor to obtain permission from the strata company to carry our improvements to the carport-area. It would appear from the submissions that prior to the application for permission by the respondent, several other proprietors were given permission to install garage doors. These doors are not of exactly the same style although it seems that they are of similar colour. Some carports are without a door. The strata company did not provide me with a submission that it had approved a fixed style of door, colour or provider for purposes of garage doors.
It therefore appears that prior to the respondent's application, no detailed policy existed in regards of installation of garage doors and as a consequence the respondent was left to her own devises to work out what the strata company meant by "the alterations (must) be in keeping with the visual aesthetics of the development and that materials used within the existing development only be used."
The approval given to the respondent is vague and open to misunderstanding and different interpretations. The strata company did not at any stage prior to the installation of the door require from the respondent to submit the exact door for approval or inspection. If there is no standard policy and if different units have installed different style doors, what is the meaning of "in keeping with"? The best conclusion is that in general the style and colour of the door must blend with other doors. However there is no requirements for its to be exactly the same as the other doors – especially in light of the fact that the others doors are not consistent with one another.
The new requirement by the council of owners in December 2003 for the door to be removed and replaced by a door that it approves, is unreasonable and inconsistent with its previous decision.
Finding
The respondent did not act in breach of Schedule 1 by‑law 16(2). She obtained permission from the strata company and acted on the basis that the newly installed door had to be "in keeping" with the other designs. The respondent cannot be required to pay for the oversight of the strata company to be more specific in approving her application.
The application must therefore be dismissed under s 81(4) of the Strata Titles Act.
It may be in the interest of the strata company to develop a detailed policy regarding the installation of garage doors to prevent the recurrence of a situation where a vague approval leads to different interpretations. The adoption of such a policy may assist the parties in resolving internal disputes amicably.
Orders
The application is dismissed.
I certify that this and the preceding 9 pages comprise the reasons for judgment of the State Administrative Tribunal.
_______________
B De Villiers - Member
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