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[2006] WASAT 382
General information, not legal advice.
State Administrative Tribunal (WA)
2006-12-12
Original judgment source is linked above.
ACT : STRATA TITLES ACT 1985 (WA)
CITATION : CROCKETT & ANOR and MUNROE & ANOR [2006] WASAT 382
Strata Titles Act 1985 (WA) - Application under s 95 for exercise of powers to make a bylaw in relation to fixture or fitting - Relief also sought that refusal of proposal to alter common property unreasonable pursuant to s 85
Strata Titles Act 1985 (WA), s 42(8), s 42(10), s 85, s 95, s 115(1)(b), s 115(2)
1 The applicants applied to the Tribunal for orders under s 85 and s 95 of the Strata Titles Act 1985 (WA) to obtain an approval for alterations to common property and for the making of a by-law, so as to permit the extension of a common property balcony, respectively.
2 Resolutions without dissent aimed at achieving the above failed to pass as a result of objection by one owner. Although there was some doubt as to whether that owner was entitled to vote, the Tribunal was satisfied that if precluded from voting at the meeting, the owner would have recorded an objection to the resolution within the 28-day period permitted, so that the result would have been the same. The Tribunal proceeded to deal with the substantial merits of the dispute and concluded there were no merits in any of the objections raised. Nevertheless, the Tribunal concluded that it could not make a by-law in the terms sought because s 95 of the Strata Titles Act 1985 permitted intervention only where the Tribunal concluded that the strata company had unreasonably refused to make a by-law with respect to any fixture or fitting to be attached to the common property, and the proposed works went beyond that and constituted an alteration to the common property. The Tribunal accordingly made an order under s 85 of the Strata Titles Act 1985 that the strata company consent to the alteration of the common property and made an additional order, exercising the powers of the strata company, to make a by-law in the appropriate and more limited terms.
3 The original applicant in these proceedings is Geoffrey Victor Crockett who is a proprietor as a joint tenant of Lot 3 on strata plan 5189. The other joint tenant, Elizabeth Ann Crockett, has been joined as an applicant to these proceedings. The body corporate which was established on registration of the strata plan on 28 July 1977, being the Owners of Sunningdale Strata Plan 5189, has also been joined as a respondent. Originally only Mr A Munroe was cited as a respondent.
4 The parcel comprises of 15 lots within a four-storey brick and tile building and common property. Exclusive use has been granted in relation to portions of the common property relating to garages, balconies, entry porches and stairways pursuant to Sch 1 by-law 19 as reflected in notification J749442AE registered on 18 May 2006.
5 In terms thereof, each proprietor is responsible for the property maintenance and keeping in a state of good and reasonable repair any portion of the common property in respect of which a proprietor has exclusive use and enjoyment under the by-law, but shall not carry out any works to or upon such common property other than of a maintenance or repair nature without first obtaining the consent in writing of the strata company.
6 Schedule 1 by-law 18 included in the same notification grants the applicants' permission to replace existing glass panels to the balcony in relation to which the applicants have exclusive use. The by-law contemplates the glass panels replacing a portion of the brickwork but ensuring that 700 millimetres of upright brickwork is maintained at either end of the porch. By-laws 18 and 19 to which I have referred were the subject of a resolution voted upon at an Annual General Meeting (AGM) of the strata company on 22 March 2006. As no subsequent dissenting vote was lodged, the relevant resolutions incorporating the then proposed by-laws became unconditional on 19 April 2006.
7 At the same general meeting a proposed resolution without dissent was voted upon covering the exterior of the common property balcony of Lot 3. The resolution was expressed in the following terms:
"That subject to the appropriate engineer's report and the appropriate permission from the City of South Perth, the owner of Unit 3 be given permission to extend the existing half balcony into a full balcony (retaining 700mm of upright brick at either end), with the width and height of the new section of balcony being the same as the existing balcony, but with the existing glass being replaced with new clear glass as per the attached quote i.e. stainless steel posts (glass supports), but with no top rail. Future applicants are permitted to extend their balconies provided that they conform to the above specifications and that stainless steel bolts are used in the affixing to the building."
8 The minutes of the AGM reflect that either in person or by proxy all attending or represented at the meeting, save for the respondent Mr Munroe, voted in favour of the resolution. The resolution therefore on its face failed. The basis of Mr Munroe's objection to the resolution is reflected in the minutes and is expanded upon in the response filed in these proceedings.
9 The applicants seek an order expressed in terms simply that Mr Munroe's veto of the proposed by-law be overturned and that the relevant resolution be passed. Originally the application was brought under s 95 of the Strata Titles Act 1985 (WA) but subsequently it was amended also to rely upon s 85 of that Act.
10 The minute of the AGM reflects the names of the owners who were present and those who were represented by proxy. Mr A Munroe is reflected as having attended as the owner of unit 12 or Lot 12. The strata roll which was filed in accordance with the Tribunal's directions reflects that the owners of unit 12 are Mr A and Mrs V Munroe. This raises some doubt as to the validity of the vote against the resolution by Mr Munroe. By notification of change of by-law number F30780 registered on 5 November 1992, the strata company adopted the standard Sch 1 and 2 by-laws under the Strata Titles Act 1985.
11 Schedule 1 by-law 14(7) provides that co-proprietors may vote by proxy jointly appointed by them and in the absence of such a proxy are not entitled to vote on a show of hands, except when a unanimous resolution of proprietors is required by the Strata Titles Act 1985. If it is the case that Mr Munroe is a joint proprietor, the chair of the meeting should not have permitted him to vote. If that had occurred, it may be inferred that Mr and Mrs Munroe would have voted against the motion within the subsequent 28-day period which is permitted. The same outcome would therefore have resulted. Consequently, any error in allowing Mr Munroe to vote, as he did, does not affect the Tribunal's consideration of the matter.
12 In the circumstances, the Tribunal will proceed to determine the substantial merits of the application. If Mr Munroe's objections are considered reasonable, the Tribunal will not grant the relief sought and the outcome that the resolution failed will stand. The basis of Mr Munroe's objection is set out in his response statement and is motivated under six headings. The Tribunal will examine each of those headings and the motivation provided.
13 The thrust of the objection is that there is no requirement placed upon the other eight lot owners who could carry out similar alterations to actually do so. They may extend if they wish and at whatever time they wish. The observations made are correct. The effect of those observations is dependent on the other related grounds of objection.
2. Time frame of construction and impact on appearance
14 Mr Munroe objects that there is no time frame for the construction to be undertaken should all the owners eventually decide to extend, which will jeopardise the future appearance of the building. It is submitted that the current design forms and architectural pattern with only the units on the third level having balconies that extend the full width of the unit, the effect of the alteration which the applicants seek to carry out is obviously that their balcony would also extend the full width of their unit.
15 A coordinated construction, Mr Munroe submits, would see this third level linear pattern, as he refers to it, being repeated at the second and fourth levels and would present a very smart development, whereas an uncoordinated construction would see the loss of the architectural pattern with no guarantee of it ever being regained.
16 The Tribunal conducted an inspection of the building on 27 October 2006. The front north-facing side of the building on which the balconies are situated does not present a uniform overall appearance. It is perhaps for this reason that Mr Munroe referred to this elevation having "an architectural pattern". It is doubtful that phrase is apposite. On the ground floor some of the units have sliding doors, where others have smaller windows which do not extend to the ground. One of the by-laws incorporated in the notification of change of by-laws, J749442AE, registered on 18 May 2006, being Sch 1 by-law 21, reflects that a plan for an alternative window or glass door design for any proprietor who may now or in the future choose to make such alteration was adopted. This will further affect the degree of uniformity in presentation of this face of the building. It is for the body corporate acting within its powers to decide whether there will be uniformity in the external appearance of the building either in total or in particular respects. The authority for that is Harold & Gladys Verryt and Ann Williams [2005] WASAT 101 at 14.
17 At the AGM on 22 March 2006, as I have already indicated, 10 of the 11 lot owners represented at the meeting voted in favour of the resolution to permit the alteration to the balcony of Lot 3 or unit 3. Within the following 28-day period none of the remaining four owners lodged a dissenting vote. It was at that meeting that a resolution was also passed, as reflected in the above notification of change of by-laws, permitting an alternative window or glass designed to be installed by any proprietor who then in the future chose to make such an alteration.
18 If the strata company had proposed to carry out such alterations to the common property and had sought approval as part of the budgetary process, such approval would have required no more than a simple majority, assuming that the alterations accorded with the reasonable expectations of members as a whole. The authority for that proposition is Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282. It is reasonable to make that assumption, which the Tribunal does in this case, having regard to the manner in which the votes were cast at the AGM.
19 It is apparent that the vast majority of owners in the strata scheme do not require that uniformity in appearance of the building be maintained to any significant degree, or even, if any architectural pattern can be identified, that it be maintained. In these circumstances, the Tribunal concluded that the proposed works when completed would be in keeping with the rest of the building.
3. Time frame of construction and impact on valuation
20 Mr Munroe contends that the value of all units could be impacted negatively by a piecemeal approach, presumably a reference to other owners carrying out similar alterations at different times. He contends that uniformity of construction will maintain the architectural integrity of the building and a pleasing street appeal. For the reasons already given, I do not accept this contention and there is no evidence provided to support it.
21 The thrust of Mr Munroe's objection under this heading is that he contends that owners have not fully appreciated the extent of the work involved, nor what it is likely to cost when alterations are carried out on the fourth floor. These were arguments which could have been put to the AGM. All that the minutes reflect is that Mr Munroe advised that he was in favour of the project in principle but did not agree with the half balconies being extended in a piecemeal fashion and that he was in favour of uniformity.
22 In the Tribunal's view, it should have been patently obvious that substantial works would be required to extend a concrete balcony which would effectively be doubled in size. The extent of work involved in using glass balcony panels and stainless steel posts was sufficiently clear from the information provided, which included a quotation for the glass balcony panelling which identified the particular design to be used. Commonsense would suggest that those owners on the top floor would realise that the construction costs for them to carry out similar alterations would probably be higher. For those reasons, the Tribunal does not accept the contentions advanced by Mr Munroe under this heading.
23 Under this heading Mr Munroe asserts that owners have to be fully informed as to the degree of impact the construction would have on them. For the reasons already given, the Tribunal does not consider that there is merit in this basis of objection.
24 Under this heading Mr Munroe refers to his knowledge that prior to extensive waterproofing works being carried out, all of the large balconies on the third level leaked into the units. There is no reasonable basis, in the Tribunal's view, on which to infer from this that construction works properly carried out to extend the existing balconies would result in leaking.
25 Mr Munroe's criticism that there is no requirement to undertake the construction at all was something which also must have been obvious to owners when voting on the resolution. The issue really is subsumed in the argument that the extensions will not be in keeping with the appearance of the building, which the Tribunal rejects for the reasons given.
26 Notwithstanding this conclusion, the Tribunal considers that the applicants are not entitled to an order permitting the registration of a by-law in the terms of the resolution in question. Even if it is assumed, without deciding, that the by-law, if passed at the AGM, is a by-law relating to the grant of special privileges in respect of the common property, the Tribunal's powers under s 95 do not extend so far.
27 Section 95 restricts the Tribunal's ability to make a by-law under s 42(8) to those circumstances where it concludes that the strata company has unreasonably refused to make a by-law with respect to any fixture or fitting to be attached to the common property. The resolution and therefore the proposed by-law goes further than that in providing for permission to extend the existing half balcony. The proposed alteration is an alteration of a structure while part only of the works relates to the affixing of fixtures and fittings, namely, the fixing of glass panels and stainless steel posts.
28 It was as a result of the above concern that the Tribunal raised with the then applicant that the application should be amended to include "seeking relief under section 85", which enabled the Tribunal to make an order that the strata company consent to a proposal to effect alterations to the common property which has been unreasonably refused. The Tribunal regards the resolution in question as such a proposal which, on the above findings, has been unreasonably refused.
29 While as a result of a combination of orders under s 85 and s 95 of the Act effect can be given to the resolution which was sought to be passed, some further amendments will be incorporated in the orders. This is necessary because an alternative resolution was put to the general meeting in the event that the resolution in question was not passed, which resolution granted permission for the replacement of existing glass panels and has been registered as a by-law under notification J749442AE registered on 18 May 2006.
30 At the conclusion of the Tribunal's delivery of its oral reasons for decision on 12 December 2006, which were as set out above subject only to minor editing, to put the reasons in a form suitable for publication, the Tribunal issued the following orders:
"Subject to the appropriate engineer's report and the appropriate permission of the City of South Perth the owner of unit 3 be given permission to install glass and stainless steel posts (glass supports) with no top rail as described in Sch 1 by-law 18 to any extension to the existing half balcony and future applicants are permitted to install glass panels and stainless steel posts of the same description to any similar future extension of their balconies."
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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