WHITTICK and RIDLEY
[2005] WASAT 134
•14 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: WHITTICK and RIDLEY [2005] WASAT 134
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: ON PAPERS
DELIVERED : 14 JUNE 2005
FILE NO/S: CC 134 of 2005
BETWEEN: JOHN & LYNNE WHITTICK
Applicant
AND
DAVID RIDLEY
Respondent
Catchwords:
Strata titles - Removal of airconditioner
Legislation:
State Administrative Tribunal Act 2004 (WA)
Strata Titles Act 1986 (WA)
Result:
Application 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 FOR DECISION
Issue
The applicant, who is the proprietor of unit 17, seeks an order under s 83(1) of the Strata Titles Act 1985 (WA) for the respondent who is the proprietor of unit 23, to remove an air‑conditioner that was installed in the window of unit 23.
The applicant contends that the air-conditioner was installed without written permission of the strata company and that it is noisy. Unit 17 is immediately below unit 23. According to the applicant the air‑conditioner is causing the tenant of unit 17 ongoing discomfort. It also impacts on the appearance of the building. It is alleged that by having installed the air‑conditioner without written permission, the respondent had breached the requirements of the Sch 2 by‑laws Pt 13 and Pt 14.
The respondent contends that verbal permission was given by the strata manager for the installation of the air‑conditioner and that in the absence of any formalised policy for dealing with such applications, the respondent acted in good faith. The respondent also points out the presence of several other air‑conditioners of different designs in the complex and contends that all of those had been installed without written authorisation.
Applicant and respondent
The applicants are tenants in common of unit 17 of Killawarra on Strata Plan 8092, 69 Peet Cres, Trigg, 6029. The applicants are represented by Mr John Williams, Strata Manager, Units West. I note that the submissions by Mr Williams are made on behalf of the applicants and not the strata company.
The respondent is the owner of unit 23 on Strata Plan 8092, of PO Box 103, North Beach, 6020.
Submissions were received from the applicants, respondent and the occupiers of units 3 and 17. The strata company did not make a submission.
The submissions made respectively on behalf of the applicants and respondent were confusing as to the identity and authorisation of the persons signing the submissions. It would appear that Mr Williams who is the strata manager had authority to make submissions on behalf of the applicants but they did not provide the Tribunal with confirmation of such authorisation. I am willing to proceed however on the basis that some informal arrangement between the applicants and Mr Williams exists to the effect that Mr Williams acted on their behalf. However, it may be advisable in future for Mr Williams as strata manager to be clear as to when he acts for a proprietor and when he acts for the strata company as confusions can arise in regard to his authorisation.
In the case of the respondent a submission was received on 10 February 2005 signed by Ms Carole Paterson. No explanation is offered as to what authority she has to make a submission on behalf of the respondent. In a later submission dated 13 April 2005, Ms Sara Carter signed the letter. As with the previous letter by Ms Paterson, the Tribunal did not receive any notification from the respondent that Ms Carter is authorised to act on his behalf. I am willing to proceed however on the basis that some informal arrangement exists between the respondent and Ms Paterson and Ms Carter respectively to the effect that they could sign submissions on behalf of the respondent.
Application lodged with State Administrative Tribunal
The application was lodged with the State Administrative Tribunal ("SAT") on 25 January 2005.
The SAT was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act2004 (WA) ("SAT Act").
The application for relief was lodged in terms of section 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.
The application was referred for mediation pursuant to s 54 of the SAT Act. Mediation was unsuccessful. The matter is now determined on the papers under s 60(2) SAT Act following an order made by senior member Raymond on 16 May 2005.
The President of SAT nominated me under 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 "Killawarra" is situated on the corner of 35 ‑ 37 North Beach Rd and 9 Odo Street, North Beach on a parcel of land described as portion of Swan location 1137, Lot 47 on Diagram 57873, City of Stirling. It is registered as Strata Plan 8092. It is described as a single and double storey brick residential complex comprising 23 units, each with a unit entitlement of one.
It is shown on the floor plan that unit 23 is immediately above unit 17.
Strata plan and Strata Titles Act
The applicant certified that in terms of section 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 (WA) ("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.
A notification of change of the by-laws was registered on 9 October 1996. The change relates to exclusive use areas of units 1 ‑ 23. This by‑law is not directly applicable to this application.
The key provisions of the Strata Titles Act 1985 (WA) 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 85:
"Where, pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates to has unreasonably refused to consent to a proposal by that proprietor –
(a)to effect alternations 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."
Section 94:
"(1)Pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal may, subject to this section, order that the applicant, and any other occupier or other resident of the lot of which the applicant is a proprietor, may use specified common property in such a manner, for such purposes, and such terms and conditions, if any, as are specified in the order."
By-laws
The by‑laws provide the following in regard to the application under consideration:
Schedule 1 s 1(2):
"A proprietor, occupier or other resident of a lot shall –
(a)use and enjoy the common property in such a manner as not unreasonably interfere with the use and enjoyment thereof by other proprietors, occupiers or other residents, or of their visitors;
(b)not use the lot or permit it to be used in such a manner or for such a purpose as causes a nuisance to any occupier of another lot …"
Schedule 2 s 13:
"A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by-laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before the commencement of the alteration, a written notice describing the proposed alteration."
Schedule 2 s 14:
"A proprietor, occupier or other resident of a lot shall not, without the written consent of the strata company, maintain within the lot anything visible from the outside that, viewed from the outside of the lot, is not in keeping with the rest of the building."
State Administrative Tribunal Act 2004 WA
Section 9 states as follows:
"The main objectives of the Tribunal in dealing with matters within its jurisdiction are –
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case …"
Applicant's submission
The following paragraphs provide a summary of the main elements of the submission by the applicant:
(a)The air‑conditioner was installed without permission from the strata company. This is in breach of the Strata Titles Act 1985 and the by‑laws thereto.
(b)The air‑conditioner causes constant noise and thus leads to sleep deprivation for the tenant of unit 17. The bedroom of unit 17 is immediately below the window where the air‑conditioner has been installed.
(c)The air‑conditioner impacts on the appearance of the building.
(d)The applicant provided two photographs of the air‑conditioner. It appears as if the photographs were taken from unit 17 facing upwards towards unit 23.
(e)An alternative location for installation of the air‑conditioner has been submitted and costed by the strata manager.
(f)The strata manager Mr Williams disputes that he gave verbal permission for the installation to occur.
(g)The respondent must remove the air‑conditioner without any cost to the applicant or the strata company.
Respondent's submission
The following paragraphs provide a summary of the main elements of the submission by the respondent:
(a)Several air‑conditioning units had been installed in the complex over a period of time and none received written approval. There are to date seven air‑conditioners in the complex. Several photographs were enclosed to the submission to illustrate the presence and location of the other air‑conditioners.
(b)The recent effort by the strata manager in a letter dated 5 April 2005 to grant retrospective "blanket approval" for previously installed air‑conditioners confirms that (a) previously there was no formal application or written approval process and (b) the respondent is being discriminated against.
(c)Verbal approval was given by the strata manager, Mr Williams, for the air‑conditioner to be installed. The air‑conditioner was installed in 2003 and the first objection was only made in June 2004.
(d)The tenant in unit 23 suffers from a medical condition and she requires the comfort of an air‑conditioner.
(e)The wall against which the air-conditioner is placed faces bushland and therefore has a minimal impact on the appearance of the building. The pergola in front of unit 17 would also in due course assist to minimise the noise that may emanate from the air‑conditioner as it shields the veranda from the air‑conditioner.
(f)The strata manager, Mr John Williams, attended a meeting on 1 December 2004 to acquaint himself with the noise level of the air‑conditioner and did not find it to be excessive.
(g)Alternative locations for the air‑conditioner have been proposed by the respondent but the applicant rejected same.
Other submissions
Two other submissions were received.
The owner/occupier of unit 3/37 North Beach Road, Mr David McKnight opposed the application for the following reasons:
(a)The strata manager is acting in an arbitrary manner without support from the management committee.
(b)The tenant who occupies unit 23 requires air‑conditioning due to her medical condition.
(c)The air‑conditioner is new and runs quietly.
(d)It is installed in a window as is "common practice" in unit dwellings.
(e)The application is nothing but a neighbour being "troublesome".
The tenant of unit 17, Ms Shirley Marshall, explains that although she gave access to the unit for the installation of the air‑conditioner to occur, she assumed that proper permission had been obtained. She only realised that permission had not been granted when the applicant visited the property and expressed surprise when he saw the air‑conditioner mounted on the wall above the bedroom. The noise made by the air‑conditioner makes it difficult to sleep as it runs day and night. It also restricts the use of the outside patio.
Consideration
The Strata Titles Act 1985 contains several provisions that are relevant to this application. The main provisions of the Act are quoted above.
In summary, the Act provides that common property is held in common by all proprietors; the strata company has to control and manage the common property for the benefit of all owners; a resident may not use the common property in a manner that causes a nuisance to others or unreasonably interferes with their enjoyment of the common property; a proprietor may not without the written consent of the strata company alter the structure that is not in keeping with the rest of the building.
The respondent in this application does not dispute that the outside wall of unit 23 is common property. The provisions of the Act dealing with common property are therefore applicable to the installation of the air‑conditioner. The respondent also does not dispute that permission is required for an air‑conditioner to be installed. The respondent contends however that he sought and obtained verbal permission from the strata manager. The strata manager disputes that he gave permission.
It appears from the submissions that other than the air‑conditioner of unit 23, several proprietors had over years installed air‑conditioners without having obtained written authorisation. It would seem that in some instances verbal permission was given while in other cases installation occurred without any approval.
The strata manager therefore admits in his letter dated 5 April 2005 that "over the last 25 years several air‑conditioners have been attached to various units and I do not have any written permission for their existence".
The photographs submitted to the Tribunal show that air-conditioners of different design and placed in different locations have been installed in the complex. There seems to be no consistency in regard to the preferred design of the air‑conditioners or the location where they are to be installed on the common property. The strata company also does not have a policy that guides proprietors in this regard.
The strata company did not make a submission to set out its response to this application nor did the strata manager provide me with information about the approval process that had regulated the installation of those air‑conditioners that preceded the installation of the air‑conditioner in unit 23.
It therefore appears that prior to this application, the approval process, if any, for installing an air‑conditioner was informal, verbal and rather haphazard. Although the Act requires written authorisation, it appears that the strata company and strata manager over a period of time accepted that verbal authorisation or no authorisation whatsoever was sufficient for the installation of air‑conditioners. This gives credibility to the submissions by the respondent that there was no consistent approach by the strata manager in dealing with these matters and particularly that the strata manager had given verbal permission for the air‑conditioner to be installed in unit 23.
In the absence of a clear and consistent approach by the strata manager and strata company, it is to be expected that misunderstandings will arise from verbal communications.
The letter dated 5 April 2005 by the strata manager Mr John Williams in which he says "it is my intention to grant [retrospective] permission" to the proprietors of eight units for the installation of their air‑conditioners, raises three serious questions:
(a)it is not clear why the strata manager decided to exclude unit 23 which is the subject of this application, from the list of air‑conditioners that are identified for retrospective approval;
(b)it is not clear on what authority the strata manager acted in making the decision; and
(c)the strata manager fails to explain why approval for air‑conditioners other than those that he listed, would require written permission from the strata company.
The letter from Mr Williams adds further credibility to the submissions by the respondent of unfair treatment directed towards them.
In making a decision the Tribunal is obliged by the SAT Act to achieve a resolution "fairly and according to the substantial merits" of the case (s 9(a)). I believe it would be grossly unjust to expect the respondent to remove the air‑conditioner in light of the fact that the strata company and strata manager had allowed other proprietors to install air‑conditioners without permission or based on verbal permission. No explanation is offered as to why unit 23 is excluded from the list of air‑conditioners that are granted retrospective approval.
The Tribunal respects the effort by the strata company to improve its internal procedures by requiring written permission prior to the installation of air‑conditioners in future. Regardless, the strata company must also act in fairness and in an even‑handed way to all those who have already installed air‑conditioners.
Finding
The application should be dismissed under s 81(4) of the Strata Titles Act 1985 due to the inconsistent way in which the strata manager and strata company are seeking to enforce the Act and by‑laws.
I note that the respondent has proposed alternative locations for the installation of the air-conditioner. I would like to encourage the parties to pursue their discussions in order for this matter to be dealt with in an amicable way in future.
It may be in the interest of the strata company to develop a detailed policy regarding the approval process for applications to install air‑conditioners as well as the design and location of air-conditioner to prevent the recurrence of a situation where a vague verbal approval leads to conflicting 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 11 pages comprise the reasons for decision of the Tribunal.
______________________________
B De Villiers, Member
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