Property - Strata titles - Settlement of a dispute - Setting aside part of common property for parking

Strata Titles Act 1986 (WA), s 42(2), s 83(1), Sch 1 by­law 1(2)(d), Sch 2 by­law 2

1 Mr Anastos sought orders under s 83(1) of the Strata Titles Act 1985 (WA) (the Act) for:

(a) a parking area to be set aside in front of his carport (unit 4); and

(b) to revoke the decision by the strata company to set aside parking for unit 5 on grounds that it causes an obstruction to access to unit 4.

2 Mr Anastos alleged that the respondent has acted in breach of the Act, by setting aside parking on common property for unit 1, unit 2, unit 5 and unit 6 but excluding unit 4.

3 The respondent opposed the application contending that all its actions are in compliance with the Act and by-laws.

4 The respondent noted that at the Extraordinary General Meeting, held on 18 July 2005, authorisation was granted for a parking area to be set aside in front of the carport of unit 4. The respondent also noted that the authorisation to set aside areas of the common property for visitor parking, is subject to s 42(2) of the Act, Schedule 1 by-law 1(2)(d) and Schedule 2 by-law 2 that regulate the unobstructed use of common property and matters related thereto. The respondent therefore contended that the issue that gave rise to the application of Mr Anastos has been resolved and the application should be dismissed.

5 It appears from the submissions made by the parties and the comments made during the site inspection, that conflict between Mr Anastos and some of the other residents has been building up for some time. It is not for me to comment on what might have caused the conflict or the merit thereof.

6 I note that the layout of the strata complex is such that some manoeuvring may be required for vehicular access to unit 3, unit 4 and unit 5. Given the limited area to manoeuvre, one can therefore expect some controversy if areas of common property are set aside for visitor parking. However, the only alternative is for visitors to park in Labouchere Road, which is very busy and also poses risks. Another option might be to remove some of the shrubs along the common driveway, but it is for the strata company to consider it.

7 Senior Member Raymond ordered on 4 August 2005, that the application be dealt with on the papers unless I determine otherwise. I decided to personally inspect the complex to familiarise myself with the layout thereof. During the site inspection, I met with Mr Anastos, as well as with Messrs Barry Fairhead and Tony Morgan. They explained to me their respective views in regard to the application. Mr Anastos also invited me to park my vehicle in the carport of unit 4 and to manoeuvre it from there, by reversing in the direction of unit 5 before proceeding towards the exit.

8 During the site inspection, Mr Anastos submitted a written request for a hearing to be convened to determine the application. I considered the motivation offered by Mr Anastos, but concluded that little can be gained by a further hearing, as the issues have been clearly spelt out in submissions and during the site inspection. It is apparent that a hearing would merely repeat what has already been submitted to the Tribunal, and it could also exacerbate the conflict between Mr Anastos and other residents and be detrimental to Mr Anastos' health.

9 My finding is as follows:

1. The strata company has complied with the request of Mr Anastos, by authorising short-term parking in front of unit 4 on similar conditions as is the case with unit 1, unit 2, unit 5 and unit 6.

2. There are no grounds to set aside the decision by the strata company to authorise short-term parking in front of unit 5.

3. A person reversing from the carport of unit 4 has two options to exit the carport - to reverse to the left towards unit 3, or to the right towards unit 5. If the visitor parking of unit 5 is clearly marked, it should not place an undue burden on a person exiting from unit 4, to reverse towards unit 5, prior to proceeding down the common driveway.

4. The strata company should clearly mark out the area in front of the respective carports where parking may occur. That would assist in keeping the main areas of common property free from obstruction.

5. The use of a part of the common property for parking is subject to s 42(2) of the Act and Schedule 1 by-law 1(2)(d) and Schedule 2 by-law 2.

1. The decision by the strata company to authorise short-term parking for one vehicle in front of unit 1, unit 2, unit 4, unit 5 and unit 6 is affirmed.

2. The application to set aside the decision by the strata company to authorise short-term parking for one vehicle in front of unit 5, is dismissed.

3. The strata company must, within 30 days from the date of these orders, clearly mark out in front of the respective units, the area of common property that is set aside for short-term parking.

I certify that this and the preceding [10] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

DR B DE VILLIERS, MEMBER