Winch and Anor and the Owners of Arcadia Court - Strata Plan 44936
[2005] WASAT 287
•1 NOVEMBER 2005
WINCH & ANOR and THE OWNERS OF ARCADIA COURT - STRATA PLAN 44936 [2005] WASAT 287
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 287 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:2288/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR T CAREY (MEMBER) | 1/11/05 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | 1. Application successful 2. Order that the strata company consent to the proposal subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | KAYE WINCH DAVID WINCH THE OWNERS OF ARCADIA COURT - STRATA PLAN 44936 |
Catchwords: | Strata titles – Permission for installation of awning on balcony refused by council of owners – Balcony part of lot – Factors relevant to exercise of council's discretion – Visual impact – Existence of similar modifications – Whether policy position adopted by strata company – Legitimate interests of applicants in approval sought – Strata Plan 44936 |
Legislation: | Strata Titles Act 1985 (WA), s 5C, s 83(1), s 85 |
Case References: | Nil Nil |
Orders | 1. Paragraph 1(a) of the order dated 25 August 2005 is vacated,2. The strata company do consent, and such consent is to be deemed for all purposes to have been given, to the proposal for the applicants to have an awning affixed to the existing beam directly above the balcony of the applicants' lot, subject to the following conditions:, (a) the strata company is to determine the colour and manufacture of the awning;, (b) the awning is to be fully retractable when not in use;, (c) the applicant is to maintain the awning in good condition and working order; and, (d) the applicants shall provide the strata company with an indemnity in respect of any damage caused by or associated with installation of the awning. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : WINCH & ANOR and THE OWNERS OF ARCADIA COURT - STRATA PLAN 44936 [2005] WASAT 287 MEMBER : MR T CAREY (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 1 NOVEMBER 2005 FILE NO/S : CC 2288 of 2005 BETWEEN : KAYE WINCH
- DAVID WINCH
Applicant
AND
THE OWNERS OF ARCADIA COURT - STRATA PLAN 44936
Respondent
Catchwords:
Strata titles – Permission for installation of awning on balcony refused by council of owners – Balcony part of lot – Factors relevant to exercise of council's discretion – Visual impact – Existence of similar modifications – Whether policy position adopted by strata company – Legitimate interests of applicants in approval sought – Strata Plan 44936
Legislation:
Strata Titles Act 1985 (WA), s 5C, s 83(1), s 85
(Page 2)
Result:
1. Application successful
2. Order that the strata company consent to the proposal subject to conditions
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Selfrepresented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicants, who own a lot in a residential strata complex, were denied permission from the council of owners to install an awning on the balcony of their lot. The council listed, as reasons for its decision, concerns about the need for integration of any awning with the rest of the complex and the preservation of uniformity in the event of more than one awning being installed.
2 The Tribunal identified and analysed a number of factors which were relevant to the council's decision-making powers, including the visual impact of the proposed modification and the applicants' legitimate interests. It found that approval should have been granted on conditions which effectively removed visual impact and uniformity as legitimate grounds of objection, and ordered the strata company to consent to the proposal subject to the conditions.
Introduction
3 The applicants are the owners of lot 71 in a strata development known as Arcadia Court comprising 99 lots. The strata plan was registered on 11 December 2003. The parcel is situated in Subiaco.
4 The applicants sought, on three occasions, permission from the council of owners of the strata company or the strata manager to install an awning over the first floor balcony forming part of the lot. According to a letter from an awnings provider produced by the applicants, any awning would be mounted to the rear of a timber beam spanning the front of the applicants' balcony. In the case of the applicants' lot, the balcony forms part of the lot. The permission has been refused on each occasion, and the applicants have come to the Tribunal seeking to have the council's decision in that regard overturned.
5 I pause here to comment on the correct basis for the application. The applicants originally applied to the Tribunal under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act), which deals with settlement of disputes or rectification of complaints, for an order for "permission to have outside blind fitted to balcony facing pool and west". However, at a directions hearing on 25 August 2005, they accepted my suggestion that the application be amended to an application under s 85 ST Act, concerned with consents affecting common property. The application was further amended to seek an order that the strata company consent to the proposal
(Page 4)
- for the applicants to have an awning affixed to the existing beam directly above the balcony of the applicants' lot.
6 In making the suggestion I did, I overlooked the fact that, unlike some other balconies that have been the subject of exclusive use by-laws, the applicants' balcony forms part of the lot, and was not common property. The suggestion was therefore inappropriate, and the application was brought under the correct section originally. As for the amended terms of the order sought are appropriate in the event that I ultimately decide that the strata council should have granted its consent to the applicants' proposal. The outcome is that I will make an order vacating paragraph 1(a) of the order dated 25 August 2005.
7 It is necessary, in order to determine the matter, to consider the following issues:
1. What factors are relevant to the exercise of the discretion of the council of owners (and the Tribunal effectively standing in its shoes) in reaching its decision?
2. What factual matters have been identified which go to the relevant factors?
3. What is the Tribunal's conclusion based on the application of the relevant considerations to the facts?
What factors should guide the exercise of the strata council's discretion?
8 The by-laws of the strata company of the scheme are contained in a management statement lodged at the time of the lodgement of the strata plan (see s 5C of the ST Act). By-law 34 of Sch 1 of the management statement governs improvements such as awnings to be installed or affixed to balconies. It states:
"34. Improvements to Balconies and External Walls
Notwithstanding any other by-law, a proprietor of a lot shall not install or affix any structure, improvement or object to a balcony or an external wall or surface of the building unless it has been approved in writing by either the managing agent or the council of owners."
9 No guidance is provided as to how the discretion of the managing agent or the council of owners should be exercised. However, in my view, the matters relevant to a consideration of whether approval should be given must include the visual and other impact the proposal would
(Page 5)
- have for the complex, the extent to which similar alterations already exist, whether there has been consultation among the members of the strata company about the issue and any policy adopted, and the legitimate interests of the applicants in having such an improvement.
What matters have been identified going to the factors relevant to the council's discretion?
10 The balcony forms part of the internal aspect of the building overlooking the pool and not overlooking the street. The applicants contend that the awning would be used for a maximum of about two hours each day for the purpose of protection from the sun in the mid to late afternoon when sitting on the balcony, and also to protect furnishings inside the lot. At the times when the awning was not in use it would be stored out of view from outside the lot. In acknowledgment of concerns about the desire to maintain uniformity, the applicants are content to leave to strata management the choice of fabric and colour.
11 In one of the letters rejecting the applicants' proposal, the council made reference to its recommendation that the doors and windows of affected lots be tinted. However, at the directions hearing, the Chairman of the council acknowledged that tinting was not an adequate response to the problem of exposure to the sun by people on the balcony during certain times of the day.
12 According to its formal response document filed in the Tribunal, the council of owners based its refusal on two grounds, namely:
1. Planning approval for any works including erection of awnings must be granted by the Subiaco Redevelopment Authority (the SRA). When the strata company approached the SRA in relation to storage of items in balcony areas and, relevant to this case, installation of sun and wind protection, it was informed that the SRA would not address individual applications, and that an overall concept for the strata company should be compiled.
2. By-law 2.1 prohibits a proprietor or resident, without the written consent of the strata company, from maintaining within the lot anything visible that, viewed from outside the lot, is not in keeping with the rest of the building. It was not likely that the strata council will approve any request for the installation of awnings, as this would open the flood-gates to various products and designs, which would detract from the appearance of the building, which in turn could have a negative effect on property values.
(Page 6)
13 The council's response emphasised the need for uniformity, pointing out that the applicants' lot is one of approximately 51 lots overlooking the pool area. Any approved installation must be of a design and colour to add enhancement to the environment, and variation in designs of units dictated that integration of any awnings was critical for the preservation of the architectural integrity of the complex.
14 The chairman of the council provided further information at the directions hearing regarding the strata company's dealings with the SRA. He indicated that no concept plan had been prepared for the SRA because the strata company (or the council of owners) was not in favour of any planning changes. Of course, the fact that there is no approval by the SRA to the alteration proposed by the applicants is not an answer to their application. Particularly where the SRA has indicated that it would not address individual planning applications for the strata scheme and instead required a concept plan, it follows logically that individual applications such as the applicants' should be first considered by the strata company prior to the seeking of planning approval from the SRA should that be necessary.
15 At the directions hearing, Mr Winch said that of the 51 units overlooking the pool area, only eight were in the alignment whereby the afternoon sun could cause the problems encountered by the applicants, and of those eight, four were in the shadow of another part of the complex and were thereby excluded from the problems. The chairman accepted this assessment.
16 A number of responses from other proprietors has been filed. The responses are almost equally divided between support for and opposition to the application. The arguments advanced are reflected by the preceding discussion, according to whether the application was supported or opposed.
What is the Tribunal's conclusion after applying the relevant considerations to the facts presented?
17 The substantive question will be examined by reference to the factors identified earlier.
(a) The visual and other impact the proposal would have for the complex
18 There is no doubt that the awning would be visible from other parts of the complex, and in particular from the pool area and other lots with views which includes the applicants' lot. The issue raised by the opponents of the proposal on the visual impact question is more
(Page 7)
- specifically concerned with a desire to ensure that the applicants' awning should not appear out of place, and should be "integrated", with the building; and, on assumption that further requests for approval of awnings are made, that there be uniformity between all awnings installed.
19 The applicants have satisfied me that the impact for the rest of the complex will be minimal. The awning to be installed will be fully retractable and will not be visible outside the two hours' maximum each day when it is required for protection purposes. As for its appearance, style, and uniformity with any future approved awnings, the applicants have consistently indicated that they are content to leave these matters entirely to the strata company.
20 At the directions hearing, I directed the council of owners to file and serve a set of conditions which, in the event that the application is successful, it would seek to have placed on the strata company's consent, and for the applicants to file and serve their response to those conditions. The council duly filed a set of conditions, to which the applicants agreed in full. The conditions were:
• Colour;
• Manufacture;
• Fully retractable when not in use;
• Applicant to maintain awning in good condition and working order;
• Indemnity from applicants to the strata company for any damage caused by installation to the common property; and
• Identical conditions be imposed to lots 66-67 to maintain continuity should the owners of these lots apply for similar awnings.
21 In my view, the conditioning of the strata company's consent along the lines of these conditions would remove as a legitimate basis for outright refusal of the proposal concerns over appearance and uniformity between lots. As will be seen, I have included a similar set of conditions in the order, with two exceptions. The indemnity condition refers to possible damage being caused to the common property, which I suspect was a result of my own incorrect premise regarding ownership of the balcony. I have, in light of the applicants' consent to the condition,
(Page 8)
- amended the condition slightly to an indemnity for damage caused to the strata company arising from installation of the awning. The last condition would not be appropriate as binding lots not the subject of this application. There would, however, be no reason why the strata company might not impose the same conditions in the case of future applications for approval of balcony awnings. It might also consider amending its by-laws to include such conditions as pre-conditions for any future approvals.
(b) The extent to which similar modifications already exist
(c) Whether there has been consultation among the members of the strata company about the issue and any policy position has been reached
22 I can deal with these two factors together. There are no other similar modifications in existence, the applicants' proposal being the first of its type to be considered by the council of owners. It is, I think, fair to say that the applicants' proposal has itself prompted a discussion among the proprietors as to whether this type of alteration should be allowed, with the formal position having been reached which is reflected in the council's rejections of the proposal. It is however early days in the life of the strata company, no entrenchment of position or policy has yet occurred, and no other proprietor would have cause for a grievance based on the rejection of a similar proposal in the past arising from the applicants securing the approval they seek.
(d) The legitimate interests of the applicant in the approval being sought
23 The applicants have satisfied me that approval of their awning is necessary to permit the reasonable use and enjoyment of their lot. Even though on their own evidence the sun effect against which they desire protection is evident for a maximum of only two hours a day, it would in my view be a serious step to, in effect, banish the applicants from a particular area of their lot for such a period when the remedy of installation of an awning is so readily available. Such a step should be contemplated only when the impact of the remedy on the other proprietors would be of particular significance, and, as I have found, that impact would be minimal.
24 For all the above reasons, I consider that the strata company, through the council of owners, should have approved the applicants' proposal, and am prepared to make an order that it do so subject to the conditions which are agreed to the extent they are appropriate.
Order
25 The Tribunal makes the following orders:
(Page 9)
- 1. Paragraph 1(a) of the order dated 25 August 2005 is vacated.
2. The strata company do consent, and such consent is to be deemed for all purposes to have been given, to the proposal for the applicants to have an awning affixed to the existing beam directly above the balcony of the applicants' lot, subject to the following conditions:
(a) the strata company is to determine the colour and manufacture of the awning;
(b) the awning is to be fully retractable when not in use;
(c) the applicant is to maintain the awning in good condition and working order; and
- (d) the applicants shall provide the strata company with an indemnity in respect of any damage caused by or associated with installation of the awning.
- I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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