Walsh and the Owners Of Riverside Villas - Strata Plan 27929 - [2013] WASAT 184

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: WALSH and THE OWNERS OF RIVERSIDE VILLAS - STRATA PLAN 27929 [2013] WASAT 184

MEMBER: MS N OWEN-CONWAY (MEMBER)

HEARD: 27 SEPTEMBER AND 25 OCTOBER 2013

DELIVERED : 7 NOVEMBER 2013

PUBLISHED : 13 NOVEMBER 2013

FILE NO/S: CC 114 of 2013

BETWEEN: DESMOND WALSH
Applicant
AND
THE OWNERS OF RIVERSIDE VILLAS - STRATA PLAN 27929
Respondent

FILE NO/S :CC 1419 of 2013

BETWEEN :THE OWNERS OF RIVERSIDE VILLAS - STRATA PLAN 27929
APPLICANT
AND
DESMOND WALSH
RESPONDENT

Catchwords:

Strata Titles Act 1985 (WA) Section 7 alteration of a structural kind Approval Consent to alteration to lot visible from beyond the lot Consent Proof of meeting and resolution Turns on own facts

Legislation:

Strata Titles Act 1985 (WA), s 3AB, s 7, s 7(2), s 7(6), s 7B, s 7B(7), s 83, s 83(1), s 85, s 103G, Sch 2 Bylaw 14
Strata Titles General Regulations 1996 (WA), reg 32, reg 34, reg 34(2)(b)

Result:

Lot owner's application dismissed in part
Strata company's application for reinstatement of the applicant's lot prior to the structural alteration granted

Summary of Tribunal's decision:

The applicant alleged that he made an application to the respondent for approval for an alteration to Lot 16 Riverside Villas SP 27929. The applicant asserted it was not a structural alteration and the respondent in council was able to consent. The Tribunal found that the applicant had made an alteration to his lot of a structural nature and he had not applied for approval pursuant to s 7 and s 7B of the Strata Titles Act 1985 (WA). The respondent made application for the removal of the structural alteration which was granted.

Category: B

Representation:

CC 114 of 2013

Counsel:

Applicant: In person
Respondent: Ms K Arney

Solicitors:

Applicant: N/A
Respondent: N/A

CC 1419 of 2013

Counsel:

APPLICANT : Ms K Arney
RESPONDENT : IN PERSON

Solicitors:

APPLICANT : N/A
RESPONDENT : N/A

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

Owners of Kingsway Gardens Strata Plan 4 and Connelly [2012] WASAT 236
The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 29 January 2013 the applicant lodged an application against the respondent strata company pursuant to 'section 83(1)' of the Strata Titles Act 1985 (WA) (ST Act).
The applicant sought the following order:
To settle a dispute relating to the installation of Solar Panels at Lot 16 Riverside Villas SP 27929.
To settle a dispute relating to the installation of a concrete apron at Unit 16 Riverside Villas SP 27929.
To order that the Council of Owners stop the practice of using the reserve funds on the maintenance of private property at Riverside Villas SP 27929.
To order the Council of Owners to return the funds that were spent on private property to the reserve fund account of Riverside Villas SP 27929.
To order the removal of the communal light from Lot 16 Riverside Villas SP 27929.

Proceedings in the Tribunal

This matter, that is Mr Desmond Walsh's application CC 114 of 2013, came before the Tribunal on its initial directions hearing on 14 February 2013, and, in the interests of enabling the parties to resolve their own dispute as quickly as possible, the Tribunal ordered that the matter be listed for mediation on 28 February 2013. The mediation was adjourned a number of times and, although not terminated formally, the matter was relisted for directions before the Tribunal, constituted by myself, on 24 May 2013. At that time, directions were made to progress the matter through to a final hearing. The matter was listed for further directions on 29 July 2013 and on that day a directions hearing did take place and both parties were in attendance or represented.
At that time the parties informed the Tribunal, and the Tribunal made a consent order, that they had agreed that the respondent shall remove the light and the light post situated on the applicant's lot and reposition the same, or place a light and a light post on the common property, to illuminate the common property. That resolved one of the orders that the applicant had sought which was the order to remove the communal light from Lot 16 Riverside Villas SP 27929.
Further directions were made with respect to the remaining issues and the matter was again listed for a final hearing to commence on 27 September 2013.
The Tribunal made final orders on 7 November 2013 and gave oral reasons. These published reasons have been taken from the oral reasons with some modification for the purpose of publication.

Final hearing 27 September 2013

Considerable material was filed by the parties prior to the final hearing on 27 September 2013. The hearing commenced on that day, and after a series of debates between the parties and the Tribunal, and the parties amongst themselves concerning the operation of the ST Act in this matter, the Tribunal made the following orders:
1.The applicant has leave to withdraw his complaint concerning the installation of solar panels to his lot and that part of his application [was thereby] withdrawn.
There was no opposition to that application for leave.
The Tribunal also ordered that the application be amended to include reference to the existing television antenna installed on the roof of the applicant's lot.
As a consequence, one of the other matters that the applicant sought, that is, an order to settle a dispute relating to the installation of solar panels at Lot 16 Riverside Villas, was resolved. However, a new matter was introduced concerning whether the applicant or his processors in title had formal approval for the installation of a television antenna to the roof of the applicant's lot.
As a consequence of the submissions that were made on the documents by the parties on 27 September 2013, the application concerning the applicant's installation of a concrete apron to the side garden of his lot and his application concerning the respondent's alleged misuse of reserve funds on the account were both adjourned to a further final hearing on 25 October 2013.
It was apparent from the applicant's submissions at the final hearing that he contended that the solar panel installation to his lot had been approved as a structural alteration pursuant to s 7 of the ST Act and possibly an alteration to the common property pursuant to s 85 of the ST Act. The applicant relied upon a purported resolution of the respondent's strata council dated 14 August 2012 said to have been recorded in minutes of the respondent's strata council on that day, which the applicant contended occurred at a meeting that was recorded and that the recording was transcribed.
With respect to the structural alteration, or the alteration to include the concrete apron to the front of the applicant's lot, it became apparent that the applicant sought to resolve the matter by relying upon an application to the respondent purportedly pursuant to s 7 of the ST Act which was approved by the strata council and the subject of the alleged resolution on 14 August 2013. The applicant also indicated that, to the extent that the Sch 2 Bylaw 14 of the ST Act required written consent from the respondent via the strata council, the resolution of 14 August 2012 evidenced that grant of consent.
The Tribunal also ordered that, in the event that the respondent commenced proceedings pursuant to s 103G or s 83 of the ST Act in respect of the concrete apron to the applicant's lot or the solar panels by 25 October 2013, the application could and would be heard together with Mr Walsh's application on 25 October 2013.

The respondent's application concerning the concrete apron

The respondent did file an application, but only in respect of the concrete apron, and that application became Matter No CC 1419 of 2013 which was linked to Mr Walsh's application. Although the respondent is the applicant in Matter No CC 1419 of 2013 and the applicant is the respondent in that matter, for ease of reference, the parties will be referred to by reference to their standing in Matter No CC 114 of 2013. The respondent made the application pursuant to s 83 of the ST Act which would be the relevant provision, if the addition of the concrete apron was a breach of Sch 2 By-law 14 of the ST Act and not also a breach of s 7 of the ST Act. In that application the respondent sought an order for the applicant, as the owner of Lot 16, to reinstate the garden at the side of his unit forming part of Lot 16 that was in place prior to him installing a concrete apron. The respondent also sought an order that the applicant clear/clean out the garage at Lot 16 so that two vehicles could be parked within the lot.

The solar panels

With respect to the solar panels, the applicant had asserted that he made an application pursuant to s 7 of the ST Act and complied with s 7B of the ST Act and reg 34 of the Strata Titles General Regulations 1996 (WA) (Regulations). As stated, that aspect of the proceeding was withdrawn by the applicant because there was an issue as to whether the respondent wished to proceed with any action to remove the solar panels and would need to apply to the Tribunal pursuant to s 103G of the ST Act. The propriety and correctness of the applicant's application to the respondent strata council, and compliance with s 7B of the ST Act and reg 34 of the Regulations, would be live issues in any such application. As at the date of the adjourned final hearing, the respondent indicated that it did not wish to advance a case under s 103G of the ST Act concerning the solar panels, but it wished to advance a case in respect of the concrete apron. For that reason the Tribunal shall order that the respondent's application against the applicant shall be amended to refer to s 103G of the ST Act in addition to s 83(1) of the ST Act.

The concrete apron

Moving then to the concrete apron and the remaining issue, the applicant asserts that at a meeting of the council of owners of the respondent (of which he was chairman at that time) on 14 August 2012, the Council did the following:
a)approved the installation of solar panels on the applicant's roof; and
b)consented to and approved the applicant's installation of the concrete apron to his lot.
A significant point arose in the proceedings, whether the applicant's application to the council to install the concrete apron was an application that should have been made pursuant to s 7 of the ST Act and dealt with in accordance with s 7B of the ST Act, or whether it was an application that could be made to the council of the respondent for consent to any alteration that was visible from beyond the lot pursuant to Sch 2 ByLaw 14 of the ST Act and thereby avoiding a breach of that By-law.
The applicant contended that the installation of the concrete apron to be used as a carpark at the front of his lot was not an alteration to his lot of a structural kind or nature. He said this was so because it did not meet the definition of 'structure' referred to in s 7 of the ST Act and reg 34 of the Regulations.
Section 7(6) of the ST Act defines 'structure' for the purposes of s 7 of the ST Act as '[including] any prescribed improvement'.
There was no evidence before the Tribunal that the construction of the concrete apron is not a prescribed improvement as defined by reg 32 of the Regulations. The applicant contended this resolved the matter in his favour, and that the alteration he made to his lot did not require application pursuant to s 7 of the ST Act and the calling of an extraordinary general meeting of the members of the respondent to resolve his application pursuant to s 7 of the ST Act. He reasoned further that his application did not need to meet the requirements of s 7B of the ST Act or reg 34 of the Regulations. Even if the construction of the concrete apron is not a prescribed improvement as contended by the applicant, the Tribunal does not accept the submission that the word 'structure' in s 7(2) of the ST Act is limited to prescribed improvements, because the definition provided for in s 7(2) of the ST Act is inclusive and not limited to prescribed improvements as defined by the Regulations.
The Tribunal finds that the alteration to the lot by the installation of the concrete panel by way of an additional carpark area to his lot is a structural alteration. The information provided by the applicant, particularly of the manner in which the apron had been constructed, established that the concrete was poured with reinforcement and is a permanent alteration to the lot and to the site of the applicant's lot.
The Tribunal is satisfied, therefore, that the applicant did make a structural alteration to his lot and he did so without the prior approval of the respondent in general meeting as required by the process of s 7 and s 7B of the ST Act.
The applicant contended that the application for alteration of a structural nature to his lot, insofar as he made it concerning the concrete apron, was made to the respondent's council prior to 14 August 2012 (although there is no documentation to establish when he produced the information or the request for approval to the respondent's council) and that the respondent's council failed to call a general meeting to grant him approval. The applicant contended that as the period of 77 days had passed from 14 August 2012 he has the benefit of the provision provided for in s 7B(7) of the ST Act which provides that if notice of the decision of the members in general meeting is not provided to the applicant within 77 days it is 'to be taken to have been given'.
This was the process which had application in the case of Owners of Kingsway Gardens Strata Plan 4 and Connelly [2012] WASAT 236.
However, the applicant is only entitled to the benefit of s 7B(7) of the ST Act if in fact he made an application to undertake the structural alteration that complies with s 7B of the ST Act and reg 32 of the Regulations. On this score, the applicant relied upon a purported resolution of the respondent's council dated 14 August 2012, and a document entitled 'Resolution and Minutes of a meeting on 14 August 2012'. The applicant maintains that the respondent's council agreed 2:1 to grant him approval to lay the concrete pavers or lay concrete to his front garden and did so upon the basis of the documents that he provided, which, he said, included a plan of the proposed concrete apron which he asserted rendered his application compliant with s 7B of the ST Act and reg 34 of the Regulations.
The only relevant regulation in such a matter, in the Tribunal's view, was the regulation referred to in reg 34(2)(b) of the Regulations, being the location and dimension of the proposed structure in relation to any existing structure on the lot or to the boundaries of the lot.
The applicant relied on a hand-marked plan to show the location and dimension of the proposed concrete apron. The question for the Tribunal was whether that document accompanied his application to the respondent council, which application took the form of a very short emailed letter.
The respondent cast doubt upon the veracity of the resolution and the calling of the meeting of the respondent council. The applicant provided a 'transcribed' version of the audio recording he took of the meeting on 14 August 2012 which, he advanced, showed that the or handmarked plan showing the proposed concrete apron was before the respondent council and that he had complied with s 7B of the ST Act and reg 34 of the Regulations. The applicant contended on the facts that the respondent council's failure to call an extraordinary general meeting to deal with his application had the effect of approving the application after the expiration of 77 days pursuant to s 7B(7) of the ST Act.
Further, the applicant also contended that if it was not a structural alteration - which the Tribunal has already found that it is - he had received written approval from the respondent council pursuant to Sch 2 Bylaw 14 of the ST Act consenting to this alteration to his lot which was visible from beyond the lot. He said this was also evidenced by the written resolution, which he relied upon, dated 14 August 2012.
Again, the respondent cast considerable doubt upon the veracity of the applicant's evidence of what took place at that meeting on 14 August 2012, and the truth of the contents of the minutes of the resolution of 14 August 2012.
The applicant provided an uncertified transcription of the meeting on 14 August 2012. The applicant was willing to and did indeed file an electronic copy of the recording of the meeting on 14 August 2012 for the Tribunal to listen to, so that the Tribunal might be satisfied that the transcribed version of the audio recording and the document purporting to be the minutes of the meeting recording the resolution on 14 August 2012, was indeed true and accurate as to its content.
The Tribunal has reviewed the audio recording and finds that there was no reference to a handmarked plan of the kind before the Tribunal marking the proposed concrete apron on the applicant's lot. There was a reference to a 'pretty picture' but there was no reference to whether that was the handmarked plan that was put before the Tribunal as the document that identified the location and dimension of the proposed concrete apron. There is no documentation that suggests that the handmarked plan was put before the Council either.
The Tribunal is therefore not satisfied that the applicant made an application to the respondent pursuant to s 7 of the ST Act, and in conformity with s 7B of the ST Act and reg 34 of the Regulations, such that the respondent council's failure to follow the process proscribed by s 7 and s 7B of the ST Act. That being the case, the applicant is not entitled to the benefit of s 7B(7) of the ST Act to be taken to have been given approval pursuant to s 7 of the ST Act. The Tribunal therefore finds that the applicant is in breach of s 7 of the ST Act.
As to the purported minuted resolutions, having listened to the audio file of the meeting of the respondent council, the Tribunal is satisfied that no motion in terms of the resolutions referred to in the minutes (solar panels and concrete apron alterations to the applicant's lot) was ever formally or coherently put to the respondent council meeting, and there was no vote taken by the members of the respondent council at that meeting held on 14 August 2012 to give rise to the purported resolutions referred to in the applicant's minutes of the meeting on 14 August 2012.
Even if the Tribunal is incorrect that the proposed concrete apron was an alteration of a structural kind to the applicant's lot and the Tribunal is incorrect in its view expressed above that the applicant was required to seek approval of the respondent in general meeting pursuant to s 7 and s 7B of the ST Act, the Tribunal concludes that there was no resolution by the respondent council granting the applicant approval or consent to construct the concrete apron pursuant to Sch 2 By-Law 14 of the ST Act, or at all. There was considerable discussion at that meeting of the issues, and there was one respondent council member who supported the applicant in the discussion. However, there is nothing in the audio recording that evidences that a motion was put and that a vote was taken on the applicant's application for approval or consent to install solar panels or construct the concrete apron to his lot. It is insufficient, in the Tribunal's view, for the applicant to conclude that a resolution was in fact passed as if it had been put and voted on when in fact it had never been put and voted upon at that meeting. It is fair to say that the audio recording does indicate that the applicant and one other respondent council member were in favour of the approval and that one, Mr Peterson, was not, but no vote was taken and no motion was carried.

Further, the applicant more recently has filed a document showing that the member of the respondent council who supported his application has retrospectively confirmed that the purported minutes relating to the alleged resolution of 14 August 2012 are true and correct. The Tribunal notes that the applicant is no longer the chairman of the respondent council and it is for the respondent council at its following or subsequent meeting to affirm any minutes of earlier meetings of the respondent council as being true and correct. No such confirmatory minutes of the subsequent meeting were provided by the applicant or the respondent. The Tribunal concludes that there was no subsequent meeting of the respondent council that affirmed the alleged minutes of the meeting of the respondent council dated 14 August 2012 relied upon by the applicant.
The Tribunal concludes in the alternative that the applicant did not receive the respondent council's consent to alter his lot by the construction of a concrete apron that is visible from beyond the lot.
For this reason, the application, insofar as it concerns the applicant's structural alteration to his lot, being the construction of a concrete apron, is dismissed, and the Tribunal finds that:
•the application that the applicant made was not a valid application pursuant to s 7 of the ST Act;
•there was no written consent given by the strata council pursuant to Sch 2 Bylaw 14 of the ST Act approving the installation of the concrete apron; and
•there was no operation of s 7B(7) of the ST Act so as to deem the applicant's application for alteration to his lot by the construction of the concrete apron in this particular matter.
As to the respondent's application, which has been amended to refer to s 103G of the ST Act, the Tribunal is satisfied on the evidence that the concrete apron is not in keeping with the visual appearance of the other lots in the strata development. The Tribunal considers that this, along with the subversion of the corporate governance by the respondent of the strata development, amount to sufficient detriment to justify the Tribunal's order in favour of the respondent that the applicant be ordered to remove the concrete apron from his lot pursuant to s 103G of the ST Act (The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161).
As to the antenna on the existing structure, the respondent conceded during the hearing on 25 October 2013 that the antenna preceded the resubdivision of the strata development, upon which resubdivision s 3AB of the ST Act applied, and by reason of which the existing television antenna was incorporated into the applicant's lot. Further, the respondent conceded that the existing television antenna (not to be confused with the Foxtel receiver) was not installed by the applicant but was installed by a prior owner at some considerably earlier point in time.
So to the extent that the application concerns the existing television antenna, the Tribunal concludes that the applicant's television antenna is lawfully installed upon the applicant's lot.
Insofar as the account is concerned, the respondent conceded during the hearing on 25 October 2013 that monies had mistakenly been paid for the benefit of lot owners in the past upon the basis that the prior managers of the respondent honestly believed that certain areas comprised the common property of the strata development.
The Tribunal has adjourned the application insofar as it concerns an account to a directions hearing mention on 29 November 2013 so that a final hearing on that issue can be listed.

Conclusion

As to the applicant's original application, the order that he sought to settle a dispute relating to the installation of solar panels was withdrawn. The order that he sought to settle a dispute relating to the installation of the concrete apron to his lot has been resolved by the Tribunal's orders. The Tribunal has adjourned the application insofar as it concerns an order that the respondent council return the funds that were spent on individual lots to a date to be fixed for mention. As to the order for the removal of the communal light, that was dealt with by way of agreement of the parties early in the proceedings as referred to above. As to the additional item of the television antenna, the Tribunal has concluded that the antennae is lawfully positioned upon the applicant's lot.
One other issue remains and that is the council of owner's application that Mr Walsh clear out or clean out the garage at his lot so that two vehicles can be parked within the lot. At the hearing on 25 October 2013 Mr Walsh indicated that he instructed his tenant to undertake that task and that in fact it had been undertaken. There was no submission by the respondent inconsistent with that statement, and the Tribunal shall dismiss that application on the basis that the work that the respondent sought to be done has in fact been done.

Orders

Matter No CC 114 of 2013

1.The applicant did not receive approval or consent for the alteration to Lot 16 Riverside Villas SP 27929 by the construction of the concrete apron at the front of his lot pursuant to s 7 and s 7B or Sch 2 Bylaw 14 of the Strata Titles Act 1985 (WA).
2.The applicant is in breach of s 7 and Sch 2 Bylaw 14 of the Strata Titles Act 1985 (WA).
3.The applicant's television antennae lawfully comprises part of Lot 16 Riverside Villas SP 27929.
4.The applicant's complaint concerning the use of strata funds for the benefit of individual lot owners is adjourned to a directions hearing on 29 November 2013 at 2 pm.

Matter No CC 1419 of 2013

1.Mr Desmond Walsh did not receive approval or consent for the alteration to Lot 16 Riverside Villas SP 27929 by the construction of the concrete apron at the front of his lot pursuant to s 7 and s 7B or Sch 2 Bylaw 14 of the Strata Titles Act 1985 (WA).
2.Mr Desmond Walsh is in breach of s 7 and Sch 2 Bylaw 14 of the Strata Titles Act 1985 (WA).
3.The application is amended to refer to s 103G of the Strata Titles Act 1985 (WA).
4.Mr Desmond Walsh shall reinstate the garden to the front of Lot 16 Riverside Villas SP 27929 that was in place prior to his installation of a concrete apron to his lot by 7 February 2014.
5.The application is otherwise dismissed.

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS N OWEN-CONWAY, MEMBER