WHITE and THE OWNERS OF 9 THE AVENUE CRAWLEY 6009 STRATA PLAN 27842
[2012] WASAT 183
•30 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: WHITE and THE OWNERS OF 9 THE AVENUE CRAWLEY 6009 STRATA PLAN 27842 [2012] WASAT 183
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 22 AUGUST 2012
DELIVERED : 30 AUGUST 2012
FILE NO/S: CC 479 of 2012
BETWEEN: LORNA MARY WHITE
Applicant
AND
THE OWNERS OF 9 THE AVENUE CRAWLEY 6009 STRATA PLAN 27842
Respondent
Catchwords:
Strata title - Installation of airconditioner on common property - Refusal of application - Was refusal unreasonable? - Relevance of new proposals made as a result of mediation or negotiation
Legislation:
Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA)
Strata Titles Act 1985 (WA), s 83, s 83(1), s 94, Sch 1 Bylaw 16
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1
The Owners of Millpoint Strata Plan 11391 and Ors [2007] WASAT 9
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The dispute concerned a decision by the respondent to refuse approval for the applicant to install the condensing unit of an airconditioner on common property.
The applicant contended that the approval had been withheld unreasonably. She says that she had identified the most appropriate location; that the expert evidence about the noise emanated by the airconditioner shows that it is within acceptable limits; and that the airconditioner would have minimal impact on the amenity and appearance of the common property wall and garden area.
The respondent contended that its decision to withhold approval was reasonable. It says that the applicant did not provide a sufficiently detailed plan; that the noise emanated by the airconditioner would impact on the neighbouring lots and the common property garden area; and that alternative locations for the installation of an airconditioner must be considered.
The Tribunal emphasised that its role is to consider whether the decision of the respondent was unreasonable. The question for the Tribunal is not whether, as Tribunal, it would have made the same decision as the respondent. The Tribunal also emphasised that it had consideration of the decision that was made at the strata council meeting held on 13 February 2012, and that subsequent options or alternatives discussed between the parties as a result of mediation were not the subject of the proceeding.
The Tribunal accepted that the respondent gave sufficient consideration to all the information before it, and that a decision to refuse approval was open to it and such a decision was not unreasonable. The respondent refused the application on the grounds of the visual and noise impact that the airconditioner might have on other lots and the common property courtyard; the lack of a detailed plan about the placing of the airconditioner and associated pipes; and the lack of consideration of alternative placing/s of an airconditioner.
The application was therefore dismissed.
Background
The applicant applied pursuant to Sch 1 Bylaw 16 of the Strata Titles Act 1985 (WA) (ST Act) for approval from the respondent to install an airconditioner on common property. The application was considered by the respondent on 13 February 2012. The application was refused when three owners voted in favour of and three voted against the resolution.
The applicant lodged an application with the State Administrative Tribunal (Tribunal) on 23 March 2012. The matter was referred for mediation but no agreement was reached. The hearing took place on 22 August 2012. The application is brought under s 83 of the ST Act.
The hearing commenced with a site inspection by the Tribunal. Both parties as well as the strata manager and another owner, Ms Seghezzi, were present at the inspection. Both parties made written and oral submissions and gave evidence. An expert in acoustics also gave evidence. The Tribunal took all of the information into account in coming to its decision.
Issue arising from the application
Was approval to install the condensing part of an airconditioner (Daiken FTX S35J) on common property unreasonably withheld?
Statutory framework
The application is brought pursuant to s 83(1) of the ST Act, which relevantly provides as follows:
The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the bylaws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company.
Schedule 1 Bylaw 16 of the ST Act provides as follows:
16.Airconditioning.
(1)Installation of Airconditioning Equipment.
(a)No proprietor shall install any airconditioning equipment on common property within the strata scheme without the consent of the strata company.
(b)An application for approval under this bylaw shall be made in writing to the council of the strata company and shall be accompanied by an installation proposal which will comply with all relevant statutory and local authority requirements. On receipt of such application, the council will circulate a copy of the application and installation proposal to every proprietor.
(c)The council shall consider the application and may take into account the appearance of the airconditioning equipment, its noise level, its load bearing, whether it is likely to cause damage to any part of the building, and any other relevant matter. The onus is on the applicant to demonstrate to the satisfaction of the council that no problem exists in respect of these matters.
(d)Any proprietor installing the airconditioning equipment shall connect to that proprietor's power source in accordance with this bylaw and shall be responsible for the cost of all power consumed.
(2)Airconditioning Operating Costs.
The costs of maintenance, operation, insurance, repair and replacement of any airconditioning equipment contained within the strata scheme shall be the responsibility of the proprietor of the lot to which the airconditioning equipment relates.
(3)Exclusive Use Rights Over Common Property Relative to Airconditioning Equipment.
In accordance with Section 42(8) of the Act, the rights of exclusive use and enjoyment over that volume of common property occupied by airconditioning equipment that services and relates to the airconditioning of a lot, are granted to the proprietor of the lot to which the airconditioning equipment relates,
PROVIDED THAT:
(a)the costs of any damage repairs or replacements to any part of the common property that may become necessary due to the installation, repair, maintenance, replacement, or relocation of any airconditioning equipment for which a proprietor is responsible shall be the responsibility of that proprietor;
(b)where in respect of roof maintenance and other maintenance to the building or common property it is necessary to temporarily relocate any airconditioning equipment for which a proprietor is responsible such relocation costs will be the responsibility of that proprietor.
(4)Access to Common Property for Maintenance of Airconditioning Equipment.
A proprietor shall have access to the common property at all reasonable times, subject to the bylaws, for the maintenance, repair or replacement of, or building repair that may be required in respect of, any airconditioning equipment that is the responsibility of that proprietor, provided that proprietor has first given reasonable notice, verbally or in writing, to the strata company that such access is required.
Contentions
The applicant contends that the approval to install the airconditioner was withheld unreasonably.
The submissions of the applicant can be summarised as follows:
a)there is no consistent placing of airconditioners in the scheme, with some being on the roof and another on a balcony;
b)placing the airconditioner in the front of her unit would require approval from the local authority, and it would be visible from the street;
c)the wall where the installation is proposed to occur faces the common property garden where the airconditioner would have the least impact on amenity and enjoyment of common property and lots;
d)the garden/courtyard area is not used regularly;
e)the expected noise to emanate from the airconditioner is within acceptable limits, as demonstrated by the expert report; and
f)a smaller airconditioner to the one proposed at the meeting can be installed, a protective shield to reduce noise could be installed, and the location can be changed so as not to damage plants, if that were to satisfy the respondent.
The respondent contends that the refusal to approve the installation of the airconditioner was reasonable.
The submissions of the respondent can be summarised as follows:
a)the decision was made on the basis of information provided to the council at its meeting on 13 February 2012;
b)the proposal had lacked sufficient details, as is evident from the efforts by the applicant since the meeting to change the size of the airconditioner as well as the proposed location of the airconditioner;
c)the proposed location would not only affect the amenity of the scheme, but will set a precedent that could lead to other airconditioners also being placed against the wall;
d)the noise that the airconditioner is expected to emanate is barely within acceptable limits;
e)the airconditioner would impact negatively on the amenity of the common property garden area, which had recently been updated to facilitate more use and enjoyment of the area by all residents; and
f)insufficient attention has been given to alternative options for the placing of the airconditioner.
An expert in acoustics, Ms Rebecca Ireland from Lloyd George Acoustics, says that if the airconditioner was placed at the ground level, the predicted noise levels at Units 3, 5 and 2 would be approximately 36, 27 and 35 37bB(A) at night time for the respective units, which is within the acceptable limit of 37dB(A). Ms Ireland did not propose what the predicted sound would be if the airconditioner were installed at the height as indicated by Ms White, or what the predicted noise in the courtyard area would be. Ms Ireland also suggested that a protective shield could be installed to prevent noise causing disturbance in the units adjacent. No specific proposal was, however, submitted at the meeting.
Consideration
The question in this proceeding is not whether the applicant is entitled to install an airconditioner. The respondent supports, as a matter of principle, the request to install an airconditioner. It was accepted during the hearing that the installation of an airconditioner in the climate of Perth is a reasonable and justified request. The dispute concerns the placing of the airconditioner on the common property, so as to minimise the impact thereof on other lots and those using the common property. The applicant contends that the refusal by the respondent is unreasonable. She says that she has done as much as could be done to accommodate the wishes of the respondent and that the ongoing refusal is unreasonable.
The Tribunal encouraged the parties throughout the proceeding to resolve the dispute by way of agreement. The matter was not only referred for mediation, the Tribunal also encouraged the parties during the site inspection on the day of the hearing to meet in private, so as to explore common ground. The Tribunal also explained to the parties that the decision that is the subject of these proceeding is the decision taken on 13 February 2012 to refuse the installation as requested by the applicant. The informal discussions the parties had in the meantime, and the possible alternatives proposed, were not formally put to the strata company and, therefore, the Tribunal cannot consider the merit of those discussions.
The Tribunal has emphasised in previous decisions that when the reasonability of a decision of a strata company is considered, the standard that applies is not merely whether the Tribunal might come to a different decision on the basis of the same facts. The test is whether, if all the facts are taken into account, the particular conclusion was open to the strata company, and if so, the Tribunal must be slow to interfere with the decisionmaking processes and autonomy of a strata scheme.
The following three cases are examples of the framework within which the Tribunal considers disputes of this nature.
In the matter of The Owners of Millpoint Strata Plan 11391 and Ors [2007] WASAT 9, the Tribunal, on an application under s 83 of the ST Act, examined a number of previous decisions in which the Tribunal had to deal with unauthorised alterations to common property. The Tribunal was influenced by the level of management of the strata scheme and the interest by owners in the proper and consistent governance of the strata company. The Tribunal observed that if it were to allow the alteration, it would set a precedent which could create considerable difficulties in the future management of the strata scheme.
In the matter of The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1, the Tribunal held that the strata company did not act unreasonably by refusing permission to install an airconditioner that was larger than the other units. The Tribunal further held that it has not been shown that the lot is incapable of use without the larger airconditioner, and as a result, s 94 of the ST Act did not offer relief. The cornerstone of the Tribunal's argument was, at [4], as follows:
The State Administrative Tribunal outlined the consistent approach taken in considering such applications that the management of a strata company be left to the strata company and that the State Administrative Tribunal should not too readily impose its own views of what is unreasonable. It was necessary to balance interests and views in order to reach a subjective view of whether a decision is unreasonable. It was stated that if the balance is delicately poised it will not be possible to conclude that the decision is unreasonable because it is possible for persons acting reasonably to come to opposite conclusions on the same set of facts. The task was for the State Administrative Tribunal to assess whether there was good sense or logic to support the dissenting view. It is not a Wednesbury standard of unreasonableness which is applied, so it is not necessary that a decision be regarded as so unreasonable that no sensible lot owner or number of lot owners could have come to that conclusion.
In regard to what test is to apply for reasonableness, the following standard, as set by Chief Justice Martin in regard to the test for reasonableness under the Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA), may be of benefit. In the recent decision of EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275, the principles that ought to guide the Tribunal were clearly set and summarised. The principles derive from the High Court decision in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd(1979) 144 CLR 596 at [204], which was described by Martin CJ as the 'leading High Court authority on the subject':
… First, the court should identify the reasons why the party refused consent at the time consent was refused. If, having identified those reasons, the court finds that they were objectively reasonable (in the sense that a reasonable person could refuse consent for those reasons), that they were relevant to the relationship between the parties to the agreement, and that it has not been established that the factual premises upon which the refusal was based were erroneous, that will be the end of the inquiry the other party will have failed to discharge the onus of proving that consent was unreasonably withheld. …
The Tribunal will first of all make known its finding, and then provide the reasoning for the finding.
The Tribunal finds that the application must be dismissed, since it is not satisfied that the applicant has shown that the refusal to grant approval for the installation of the airconditioner was unreasonable.
The reasons for this finding are as follows:
a)The decision of the strata company not to approve the application to install the airconditioner was taken at a properly constituted meeting, during which extensive discussion occurred and a site inspection about the proposed placing of the airconditioner took place. The reasons for the refusal were explained in detail to the Tribunal during the hearing as well as in submissions leading to the hearing. There is no suggestion that the refusal was unreasonable, or that the meeting at which the decision was made, was not proper. The Tribunal accepts that the applicant may be unhappy with the decision, but that does not constitute unreasonableness on the part of the respondent.
b)The Tribunal notes the ambivalence that has characterised the application in regard to the size and placing of the airconditioner. In the original application that was submitted to the respondent for purposes of the meeting of 13 February 2012, a handdrawn sketch was provided of where the airconditioner would be installed indicating it would be at the ground level on a brick course and that the brand would be a Daiken Model FTX S35 J. At the hearing, however, the applicant proposed that the airconditioner be placed about 1.2 metres above ground no exact specifications were provided, but ribbons were pasted against the wall for purposes of the site inspection and the brand was identified as Daikin FTX S25. Although the model proposed during the hearing was therefore smaller than the one proposed at the meeting, the proposed location of the airconditioner changed from the proposal submitted at the meeting. The Tribunal cannot be requested to review the reasonableness of negotiations of parties, or changes that may take place in their positions as part of ongoing negotiations. The decision under review is that of the meeting that took place on 13 February 2012. The airconditioner proposed at that meeting was the Daikin Model FTX S35 J and the proposed placing of it was on the ground. The respondent was not unreasonable for rejecting the proposal, due to the possible impact the unit may have on the plants; the noise that would emanate; and the precedent it may set for other units that may also want to affix airconditioners against the same wall.
c)The Tribunal does not find any unreasonableness in the request of the respondent that proper consideration must be given to all alternative options for the placing of the airconditioner. A proper assessment of all options may, in fact, suggest that the side wall is the most appropriate location. The respondent's concern that, once an airconditioner is placed against the proposed wall, other lots may wish to do the same, is reasonable. It is incumbent, pursuant to Sch 1 Bylaw 16 of the ST Act, for the applicant to demonstrate to the satisfaction of the respondent that all issues, such as appearance, noise level, load bearing and any other relevant matters, are adequately addressed in her proposal. The applicant could not show that any other option was considered at a level of detail sufficient to consider serious consideration. Her reasoning for resisting placing the airconditioner at the front of her unit was that it would require approval from the local authority; the conduit piping may have to go through thick glass; and the conduit piping would be unsightly inside her lot. None of these concerns were, however, the subject of expert evidence to show that possible options for the placing of the airconditioner had been thoroughly investigated.
d)The expert report provided to the Tribunal at the hearing and the evidence given by Ms Ireland were of great value to the Tribunal. The evidence, however, serves to affirm the finding of the Tribunal that the respondent was not unreasonable when it refused approval. First, the expert evidence was based on a different model than the model the subject of a decision on 13 February 2012; secondly, the expert report assumed the external condenser to be placed at ground level, while the applicant had changed her position by requesting it to be affixed about 1.2 metres above the ground; thirdly, the noise prediction of the model that was the subject of the expert report showed borderline compliance with the minimum standard of 37 dB(A) at night, while the model that was proposed at the meeting would emanate more audible noise; and fourthly, the expert report did not provide a noise prediction for the area of common property which had recently been renovated for use at day and night by the owners.
e)The Tribunal does not find it unreasonable for the respondent to be concerned about the noise factor in the area of common property that had recently been upgraded. The airconditioner would face the common property area directly, and the noise it emanates could be a serious consideration that influences the use and enjoyment of that area. The Tribunal does not accept the contention of the applicant that, since the courtyard is not being used extensively at this stage, the noise factor is therefore not material. It is apparent from the inspection that the area of common property had been upgraded so as to encourage use by residents, and the noise of the airconditioner may impact negatively on such use.
In summary, the Tribunal, for the reasons set out above, is not satisfied that the applicant has demonstrated that the refusal by the respondent on 13 February 2012 to approve the airconditioner was unreasonable.
The application must therefore be dismissed.
Order
The Tribunal makes the following order:
The application is dismissed.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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