Zaffino and the Owners Of 20 Kings Park Road West Perth Strata Plan 11161
[2017] WASAT 160
•21 DECEMBER 2017
ZAFFINO and THE OWNERS OF 20 KINGS PARK ROAD WEST PERTH STRATA PLAN 11161 [2017] WASAT 160
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 160 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1464/2017 | 19 DECEMBER 2017 | |
| Coram: | MS D QUINLAN (MEMBER) | 21/12/17 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to refrain from installing end of trip facilities | ||
| B | |||
| PDF Version |
| Parties: | ROSA ZAFFINO KEMOC PTY LTD THE OWNERS OF 20 KINGS PARK ROAD WEST PERTH STRATA PLAN 11161 |
Catchwords: | Strata Titles Application to set aside simple majority resolution End of trip and bike rack facilities on the common property Proper characterisation of works Whether falls within control and management Whether an improvement or maintenance Whether to the benefit of all proprietors |
Legislation: | Strata Titles Act 1985 (WA), s 35, s 35(1)(b), s 35(1)(c), s 83, s 83(1), s 84, s 85 City of Subiaco Town Planning Scheme No 4, cl 2.14 |
Case References: | Banning and The Owners of 106 Terrace Road Perth - Strata Plan 6289 [2006] WASAT 296 Hopkins and Clayton [2007] WASAT 255 Letizia and Owners of Fraser Court on Strata Plan 8456 [2009] WASAT 103 Neville and Anderson [2008] WASAT 275 Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 53 Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282 |
Orders | 1. In the absence of a resolution without dissent, the respondent is to refrain from proceeding with the installation of the proposed end of trip facilities, including the bike rack, within the common property. |
Summary | The owners of the two residential lots in a strata that also contained seven commercial lots brought proceedings in the Tribunal pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (Strata Titles Act). The residential lots owners opposed the simple majority resolution of the strata company which had approved the incurring of expenditure and ongoing maintenance for the installation of a proposed end of trip/shower and change room facility (proposed EOT) and bike rack in the common property located in the basement level of the building. The residential lot owners submitted that the proposed EOT could not be built on common property without their consent as it went beyond management and control of the common property and it was not to their benefit.,The Tribunal found as follows:,a) the simple majority resolution passed at the extraordinary general meeting (EGM) of the respondent on 4 July 2017 resolving to proceed with the installation of the proposed EOT is found to be contrary to s 35(1)(b) and (c) of the Strata Titles Act for the following two reasons:,i) the proposed EOT does not come within the obligation of the respondent to properly maintain as well as control and manage the common property as the Tribunal finds that the proposed EOT is an improvement and therefore requires approval by all the owners; and,ii) the proposed EOT cannot be found to be for the benefit of all the proprietors as the Tribunal finds that, whilst it benefits the seven commercial lots, it does not benefit the two residential lots; and,b) the simple majority resolution passed at the EGM of the respondent on 4 July 2017 did not include authority for the proposed bike rack.,The Tribunal ordered that in the absence of a resolution without dissent the respondent was to refrain from proceeding with the EOT, including the bike rack, within the common property. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : ZAFFINO and THE OWNERS OF 20 KINGS PARK ROAD WEST PERTH STRATA PLAN 11161 [2017] WASAT 160 MEMBER : MS D QUINLAN (MEMBER) HEARD : 19 DECEMBER 2017 DELIVERED : 21 DECEMBER 2017 FILE NO/S : CC 1464 of 2017 BETWEEN : ROSA ZAFFINO
- First Applicant
KEMOC PTY LTD
Second Applicant
AND
THE OWNERS OF 20 KINGS PARK ROAD WEST PERTH STRATA PLAN 11161
Respondent
Catchwords:
Strata Titles Application to set aside simple majority resolution End of trip and bike rack facilities on the common property Proper characterisation of works Whether falls within control and management Whether an improvement or maintenance Whether to the benefit of all proprietors
Legislation:
Strata Titles Act 1985 (WA), s 35, s 35(1)(b), s 35(1)(c), s 83, s 83(1), s 84, s 85
City of Subiaco Town Planning Scheme No 4, cl 2.14
Result:
Respondent to refrain from installing end of trip facilities
Summary of Tribunal's decision:
The owners of the two residential lots in a strata that also contained seven commercial lots brought proceedings in the Tribunal pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (Strata Titles Act). The residential lots owners opposed the simple majority resolution of the strata company which had approved the incurring of expenditure and ongoing maintenance for the installation of a proposed end of trip/shower and change room facility (proposed EOT) and bike rack in the common property located in the basement level of the building. The residential lot owners submitted that the proposed EOT could not be built on common property without their consent as it went beyond management and control of the common property and it was not to their benefit.
The Tribunal found as follows:
a) the simple majority resolution passed at the extraordinary general meeting (EGM) of the respondent on 4 July 2017 resolving to proceed with the installation of the proposed EOT is found to be contrary to s 35(1)(b) and (c) of the Strata Titles Act for the following two reasons:
i) the proposed EOT does not come within the obligation of the respondent to properly maintain as well as control and manage the common property as the Tribunal finds that the proposed EOT is an improvement and therefore requires approval by all the owners; and
ii) the proposed EOT cannot be found to be for the benefit of all the proprietors as the Tribunal finds that, whilst it benefits the seven commercial lots, it does not benefit the two residential lots; and
b) the simple majority resolution passed at the EGM of the respondent on 4 July 2017 did not include authority for the proposed bike rack.
The Tribunal ordered that in the absence of a resolution without dissent the respondent was to refrain from proceeding with the EOT, including the bike rack, within the common property.
Category: B
Representation:
Counsel:
First Applicant : In Person
Second Applicant : Mr C Laughton (Acting as Agent)
Respondent : Mr J Donnelly & Mr C Hartz (Acting as Agents)
Solicitors:
First Applicant : N/A
Second Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Banning and The Owners of 106 Terrace Road Perth - Strata Plan 6289 [2006] WASAT 296
Hopkins and Clayton [2007] WASAT 255
Letizia and Owners of Fraser Court on Strata Plan 8456 [2009] WASAT 103
Neville and Anderson [2008] WASAT 275
Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 53
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
Introduction
1 The owners of Lot 8 and Lot 9 located at 20 Kings Park Road, West Perth (applicants) have brought proceedings in the Tribunal pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (Strata Titles Act).
2 The respondents are The Owners of 20 Kings Park Road West Perth Strata Plan 11161 (Strata Plan 11161).
3 Section 83 provides that the Tribunal may 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 under the Strata Titles Act. The power vested in the Tribunal under s 83 of the Strata Titles Act is discretionary.
4 The dispute which gives rise to these proceedings, in short, relates to proposed end of trip facilities (proposed EOT) that the seven commercial owners wish to install in the common property area of the basement and the two residential owners oppose. The background facts and proposed EOT will be detailed further later in these reasons.
Issue to be determined
5 The issue to be determined by the Tribunal in these proceedings was set out by Senior Member David Aitken in his orders dated 25 August 2017 as follows:
The issue to be determined by the Tribunal is whether the resolution passed at the extraordinary general meeting of the respondent on 4 July 2017 regarding end of trip facilities was contrary to s 35(1)(b) of the Strata Titles Act 1985 (WA) due to one or both of the following criteria not being satisfied:
(a) the proposal does not come within the obligation of the respondent to control and manage the common property; and
(b) the proposal is not for the benefit of all the proprietors.
6 I understand the issue for determination identified above, is whether the proposed EOT can properly be characterised as maintenance of the common property or an improvement to the common property and such issue also incorporates the obligation in s 35(1)(c) of the Strata Titles Act.
Legal authorities
7 In Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282 (Sisto) the Tribunal considered the issue as to what constitutes work that can be properly characterised as control and management of the common property. It is helpful to quote the reasoning of the Tribunal in Sisto at [25] [32] (paragraph numbers omitted):
For the new construction to be justified under s 35, it must comprise an element of the "control and management" of the common property. There is no clear dividing line between what constitutes works undertaken as part of the control and management of common property, and what comprises works which are improvements to the common property going beyond control and management. The latter type of works is outside the duty imposed upon the strata company by s 35. The Act is strangely silent as to the circumstances in which a strata company can affect improvements to the common property. Section 7 of the Act regulates the erection of structures by a proprietor on the proprietor's own lot, but the Act does not contain any similar provision in relation to erection of structures on common property by the strata company.
That issue does not arise in this case if the works proposed are within the concept of control and management under s 35(1). InRucci & Anor v The Owners of 95 Mandurah Terrace, Mandurah – Strata Plan 20610 [2002] WADC 33, Groves DCJ, in an appeal from the Strata Titles Referee agreed with the Referee that works undertaken to raise the height of a wall, and attach fence panels to it could reasonably be categorised as coming within the obligation to control and manage the common property where the additions were necessary on the grounds of safety and security.
The same approach was taken by the Strata Titles Referee in Velovski and The Owners of Hector Gardens – Strata Plan 6448 [2004] WASTR 12 which involved expenditure for the construction of a brick fence with metal gates, lighting and remote controls and some additional parking. The Referee observed in that case, that whether the proposed wall came within the powers to control and manage the common property is a question of fact, and although he did not decide the question in that case, he contemplated that where additions to the wall were necessary on the grounds of safety or security, then they could be categorised as coming within the obligation to control and manage the common property for the benefit of all proprietors. He observed, in that case that[:]
'If the proposal had been sufficiently detailed and the expenditure was contained in a budget accepted at the Annual General Meeting, then only an ordinary resolution would have been required to allow the works to proceed, if they could be properly categorised as coming within the power to control and manage the common property.'
We agree with the former Referee's observation.
Some of the owners who provided response statements suggested that the proposed refurbishments would provide added security. Ms Sisto, in her submissions to the Tribunal, maintained the firm view that the fence would provide no additional security given that it does not surround the complex, and has an open vehicular gate. It is obvious that the proposed works will not provide security of the type that might be achieved by a complete perimeter wall and lockable gates. The wall does however screen a section of the perimeter and car park from a public area. Although access can still be gained from that area through the driveway, the narrowing of the point of ingress and egress can have some benefit from the point of view of security. There is an element of improvement of security in the proposed development, although we find that that is an incidental, rather than a primary, purpose of the proposed works.
The thrust of most of the responses from other owners was that the common areas of the complex are somewhat run down and in need of general refurbishment in order to meet the standards appropriate to a development occupying, as this one does, a prime location near the river. In our view, the proper control and management of the common property, includes taking reasonable steps, possibly including the erection of new structures, to ensure that it is maintained and presented in a way which accords with the reasonable expectations of the proprietors as a whole. It is a question of fact and a matter of degree as to when the erection of new structures on the common property goes beyond control and management.
In this case there are aspects of the work which we consider to be comfortably within the ambit of control and management of the common property. The bin enclosure is one example. If the council of the respondent considers that rubbish storage and disposal is better facilitated by use of an enclosed space rather than the existing arrangement, then we have little difficulty in concluding that works undertaken to achieve that end are properly within control and management. Similarly, the resurfacing of parking areas and the driveway may come within that category, although those aspects of the work are also capable of being repairs or maintenance.
The wall at the Manning Terrace frontage is perhaps less clear, but, in our view, is properly categorised as work which maintains the common property to a standard consistent with the reasonable expectations of the proprietors, and can be categorised as falling within the control and management of the common property.
8 The Tribunal considered the issue as to whether certain proposed work could be said to be for the benefit of all the proprietors in Banning and The Owners of 106 Terrace Road Perth - Strata Plan 6289 [2006] WASAT 296 at [32] [36].
9 The Tribunal also considered the issue as to whether certain proposed work could be said to be for the benefit of all the proprietors in Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 53 (Seghezzi) and found at [30] that:
Accordingly, when a dispute arises, as in this case as to whether the control and management of the common property is for the benefit of all the proprietors, it is for the Tribunal to determine objectively whether or not that is the case. The requirement that the management and control of common property be for the benefit of all the proprietors is a good governance provision so that the effect of a proposal in the context of all rights and obligations relating to the scheme must be assessed: see Grant and The Owners of Rosneath Farm - Strata Plan 35452 [2006] WASAT 162 (Rosneath) at [100] [104] and Banning and The Owners of 106 Terrace Road Perth Strata Plan 6289 [2006] WASAT 296 (Banning) at [33] [36].
10 The Tribunal also found further in Seghezzi that the Tribunal is to consider whether any disadvantages which the applicant might suffer are sufficiently significant to result in a conclusion that the proposed work cannot be regarded as being for the benefit of all of the proprietors: Seghezzi at [38] and [44].
11 The respondent has referred the Tribunal to a number of decisions of the Tribunal made pursuant to the Tribunal's powers under s 85 of the Strata Titles Act, namely: Hopkins and Clayton [2007] WASAT 255; Neville and Anderson [2008] WASAT 275; and Letizia and Owners of Fraser Court on Strata Plan 8456 [2009] WASAT 103.
12 All three of those decisions can be distinguished as they have no application to the present case before the Tribunal. The present proceedings arise under s 83 not s 85 of the Strata Titles Act. Section 85 of the Strata Titles Act relates to circumstances where the Tribunal finds that the strata company has unreasonably refused permission to a proposal by a proprietor to effect alterations or repair to the common property at the expense of that proprietor. The proposals in those three s 85 cases were to be done at the expense of the individual proprietor and consideration was given as to whether the alterations or repairs would negatively affect the common property or the other lots. This is not the case in the present proceedings. The proposed EOT is proposed to be installed at the expense of all the proprietors within the common property, with different issues to be decided in these proceedings as to whether the proposed EOT falls within control and management of the common property and whether it is for the benefit of all proprietors.
Background facts
13 Strata Plan 11161 comprises a multilevel office and residential concrete, brick and iron building comprising nine lots in which two of those lots (Lot 8 and Lot 9) being residential lots with the remaining Lots 1 to 7 being commercial lots.
14 The building is made up of 4 levels which can be described as follows:
a) Basement Level common property with exclusive use areas for car parking bays and access and egress to the parking bays and all levels above the basement level;
b) Ground Floor Lot 1 (commercial use in common property);
c) Floor 1 Lots 2, 3, 4 and 5 (commercial use in common property);
d) Floor 2 Lots 6 and 7 (commercial use in common property); and
e) Floor 3 Lots 8 and 9 (residential use in common property).
15 Some of the common property in the Basement Level has been variously allocated for exclusive use for the creation of 31 undercover and 12 open car bays.
16 On 4 July 2017 the respondent convened an Extraordinary General Meeting (EGM) to consider the proposed EOT which can be described as follows:
a) located within a common property area of the Basement Level adjacent to the lift;
b) to occupy a small area of 2.425 metres by 2.575 metres; and
c) to include two showers and a change area.
17 The minutes of the EGM record as follows:
6 Special Business
6.1 End of Trip Facilities
6.1.1 Resolve, by majority resolution, to proceed with the attached quote for installation of End of Trip facilities for the complex. These will be common property and the Strata Company shall maintain them.
6.1.2 Resolve to utilise up to $27,000.00 of current Reserve Funds for item 6.1.1.
Lots 8 & 9 registered their dissent.
18 It emerged later as part of these proceedings in the Tribunal, that the proposed EOT apparently included installation of vertical hanging storage for up to five bicycles (proposed bike rack). The quote attached to the EGM minutes of 4 July 2017 did not include any amount for the proposed bike rack. However, the quote attached to the report of the respondent's valuer, Mr Shorten, includes an additional item 11 of $929 for '[s]upply and install 5x new wall mounted bicycle rack'.
19 Further, there appeared to be some factual dispute as to whether, or the extent to which, the proposed bike rack was to be secured. It is not readily apparent from the description of item 11 of the quote attached to Mr Shorten's report or the picture included that the cost quoted included any form of security or locking system. The respondent informed the Tribunal at the hearing that each of hanging spots on the proposed bike rack would be able to be locked individually.
The applicants' case
20 The applicants' case is that the proposed EOT was not validly authorised at the EGM on 4 July 2017 as the proposed EOT:
a) is not proposed for safety or security reasons;
b) nor does it arise in accordance with proprietors' reasonable expectations for the maintenance and presentation of the common property;
c) nor does it benefit all proprietors;
therefore the proposed EOT does not come within the obligations of the strata company to control and manage the common property and cannot be approved by simple majority vote of the strata company.
21 The applicants further submit that, being the owners of the only two residential lots which have their own ablution facilities contained within their own lots, they will derive no benefit from the proposed EOT but will incur a detriment in their contribution to its installation and ongoing cleaning and maintenance.
The respondent's case
22 The respondents' case is that the proposed EOT was validly authorised at the EGM on 4 July 2017 as the proposed EOT falls within the principle enunciated by the Tribunal in Sisto at [30] in that proper control and management of common property includes taking reasonable steps to ensure that the common property is maintained and presented in a way which accords with the reasonable expectations of the proprietors as a whole.
23 The respondent submits that there is an increasing expectation that EOT facilities will be included in residential and office/residential buildings and referred the Tribunal to the City of Perthpolicy Planning Policy Manual Part 1: Section 5.3 Bicycle Parking and End of Journey Facilities as well as cl 2.14: End of Trip Facilities in the City of SubiacoTown Planning Scheme No 4.
24 The respondent relied on the opinion of Mr Shorten in support of the respondent's submission that the proposed EOT and proposed bike rack would benefit all the owners. Whilst the respondent conceded that the benefits would be greater to the seven commercial owners rather than the two residential owners, nonetheless the respondent submitted all would benefit.
Consideration
25 Under the Strata Titles Act each proprietor has an undivided share in common property. An underlying principle of the Strata Titles Act (or perhaps better stated this is an outcome due to the silence of the Strata Titles Act in this regard) is that improvements to the common property can only be done if all owners agree.
26 Applying the usual principles of statutory interpretation to the Strata Titles Act, in particular s 35, in relation to the proper maintenance as well as control and management of the common property for the benefit of all the owners is an underlying principle of fairness. It is fair that all owners contribute strata levies for the control and management of the common property for all their benefit. If control and management work is done that is to the benefit of particular owners and not others, it would not be fair that particular owners contribute to such work that is not of benefit to them and that such work is done in the common property without the owners who do not benefit consenting to such work.
27 Section 35 of the Strata Titles Act requires that management and control of common property by the strata company is to be controlled and managed for the benefit of all of the proprietors, not a majority of the proprietors. Assessment by the Tribunal as to what constitutes for the benefit of all of the proprietors is an objective assessment.
28 The respondent referred the Tribunal to policies of the City of Perth and the City of Subiaco as well as other documents as to the merits of EOT facilities. The applicants referred the Tribunal to the same policies as to the requirements of EOT facilities to inform the Tribunal that the proposed EOT does not meet those requirements. The Tribunal finds that the policy framework is predominantly directed toward EOT facilities for commercial buildings in order to encourage the laudable policy objective of increasing cycling as a viable means of transport to and from the City for work related purposes. The Tribunal finds that this laudable policy objective highlights the obvious benefit of the proposed EOT to the commercial Lots 1 to 7 in Strata Plan 11161.
29 In order to persuade the Tribunal that the proposed EOT and the proposed bike rack benefitted all of the proprietors, in particular the residential lots, the respondent relied entirely on the opinion of Mr Shorten. The respondent submitted at paragraph 8 of its written submissions that his opinion is 'that the installation of the End of Trip Facility would be beneficial to all owners of the strata complex.' Mr Shorten's opinion was not as clearly articulated as the respondent submitted. The Tribunal finds that the respondent has mischaracterised or overstated Mr Shorten's opinion.
30 The Tribunal must reach a finding as to whether the proposed EOT and proposed bike rack would benefit all of the proprietors. In circumstances where it is clear and obvious that the proposed EOT would benefit the commercial lots, the real issue is whether the proposed EOT would also benefit the two residential lots in Strata Plan 11161. In that regard Mr Shorten's opinion is that the proposed EOT would primarily benefit the commercial occupants with the benefits to the residential occupants being of a more limited nature.
31 Mr Shorten stated:
…
• In our opinion, it is difficult to quantify any direct impact on the capital value of properties with the inclusion of end of trip facilities, with the primary benefit of such facilities considered to be directly associated with the improved saleability/rentability of such property as increasingly these end of trip facilities are seen as being standard facilities in larger scale commercial and residential buildings[.]
32 Mr Shorten opined that the proposed EOT would be of less direct benefit to the residential lots as he noted the provision of existing showers in their respective lots. Indeed, the Tribunal heard evidence from the applicants that the two residential lots each had two bathrooms.
33 Mr Shorten is of the view that the proposed bike rack would provide the ability for the occupants of the residential lots to avoid having to store them within the confines of their apartment. Mr Shorten notes, however, that if the occupants of the residential lots did not own a bike, that the benefit would be negligible.
34 Mr Shorten provided the opinion that the level of benefit that may be provided by the proposed EOT and proposed bike rack for both the commercial and residential lots is somewhat dependent on the activities and pursuits of the individual occupants.
35 An expert valuer can assist the Tribunal with an expert valuation opinion as to whether the installation of the proposed EOT and proposed bike rack would increase the value of individual lots in the building or increase the proprietors' ability to sell or rent. Such an opinion may assist the Tribunal in determining whether the proposed EOT and proposed bike rack would benefit all of the proprietors. It is not for the valuer to determine whether the proposed EOT would benefit all of the proprietors as this goes outside the expertise of the valuer to the ultimate factual and legal issue for the Tribunal to determine.
36 The Tribunal notes that Mr Shorten found it difficult to quantify any direct impact on the capital value with the inclusion of the proposed EOT with the primary benefit considered to be improved ability to sell or rent. Mr Shorten points to various factors which support his opinion in this regard.
37 The Tribunal finds that Mr Shorten's opinion, at best, supports the respondent's submission that there may be possible and negligible benefits to the residential lots. However, in circumstances where Mr Shorten is unable to quantify any tangible increase in value of the residential lots, the Tribunal finds that the proposed EOT cannot be found to have an objective benefit to the residential lots when it is weighed against the initial and ongoing cost that the residential lots must bear for the proposed EOT. Whilst Mr Shorten is clearly aware of the cost of the proposed EOT, the Tribunal notes a glaring omission within the reasoning of Mr Shorten's opinion as he does not attempt any form of cost benefit analysis to the residential lots. The Tribunal finds that the absence of any weighing up of costs and benefits to the residential lots undermines Mr Shorten's opinion that there is even a possible or negligible benefit to the residential lots.
38 Both parties as part of their respective cases, sought to persuade the Tribunal as to the merits or otherwise of the proposed EOT. The merits of the proposed EOT and proposed bike rack are not material to these proceedings. The critical issue, or issues, which arise for determination is whether the proposed EOT, as proposed in the common area and to be installed at the cost of all proprietors, is to the benefit of all proprietors and whether the proposed EOT can be properly characterised as coming within the power to control and manage the common property or keep it properly maintained.
39 The Tribunal finds that the proposed bike rack was not included in the quote at that time and therefore was not considered at the EGM on 4 July 2017.
40 In following the principles enunciated above from Banning and Seghezzi, I consider that the proposed bike rack is to the benefit of all proprietors. There are obvious and clear benefits to all the proprietors that it is encouraged that bikes are stored in the basement and are not brought into the lift as has occurred in the past.
41 The Tribunal also finds that the proposed EOT is for the benefit of the commercial lots but is not for the benefit of the residential lots and therefore it is not for the benefit of all the proprietors.
42 However, the Tribunal does not accept the respondent's submission that the proposed EOT or proposed bike rack were validly authorised at the EGM on 4 July 2017 as they both fall within the principle enunciated by the Tribunal in Sisto at [30] in that proper control and management of common property includes taking reasonable steps to ensure that the common property is maintained and presented in a way which accords with the reasonable expectations of the proprietors as a whole.
43 The Tribunal finds, in the circumstances of this case, as a matter of fact and degree that the proposed EOT and the proposed bike rack go beyond control and management into the realm of improvements to the common property that all proprietors must consent to in order for both to occur.
44 The Tribunal finds that the proposed EOT and the proposed bike rack are properly characterised as improvements to the comment property that go beyond management and control or maintenance.
45 Due to the Tribunal's two principal findings which determine these proceedings in the applicants' favour, there is no need to make any further findings regarding the applicants' grievance about whether the proposed EOT can be funded from the reserve fund.
Conclusion
46 Therefore, in accordance with these reasons and the issues so framed, the Tribunal concludes and finds as follows:
a) the simple majority resolution passed at the EGM of the respondent on 4 July 2017 resolving to proceed with the installation of the proposed EOT is found to be contrary to s 35(1)(b) and s 35(1)(c) of the Strata Titles Act for the following two reasons:
i) the proposed EOT does not come within the obligation of the respondent to properly maintain as well as control and manage the common property as the Tribunal finds that the proposed EOT is an improvement and therefore requires approval by all the owners; and
ii) the proposed EOT cannot be found to be for the benefit of all the proprietors as the Tribunal finds that, whilst it benefits the seven commercial lots, it does not benefit the two residential lots; and
b) the simple majority resolution passed at the EGM of the respondent on 4 July 2017 did not include the proposed bike rack.
Orders
47 Accordingly, in the exercise of the Tribunal's discretion pursuant to ss 83 and 84 of the Strata Titles Act 1985 (WA), the Tribunal will order as follows:
1. In the absence of a resolution without dissent, the respondent is to refrain from proceeding with the installation of the proposed end of trip facilities, including the bike rack, within the common property.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D QUINLAN, MEMBER
7
2