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[2016] WASAT 48
General information, not legal advice.
State Administrative Tribunal (WA)
2016-05-09
Original judgment source is linked above.
THE OWNERS OF 30 COMER STREET COMO STRATA PLAN 4115
Strata titles - Alteration of common property by a proprietor - Demolition of carport - Construction of new carport on a different part of the common property - Removal of concrete slab - New paving - What approval was required from the other proprietors and the strata company - Whether a declaration should be made under s 95(3)(a) of the State Administrative Tribunal Act 2004 (WA)
Strata Titles Act 1985 (WA), s 3(1), s 3AC, s 17(1), s 19, s 20, s 21Q, s 32, s 35(1)(b), s 35(1)(c) s 42(4), s 42(8), Sch 3
Order for removal of alterations and reinstatement of common property to its original condition
The applicants who are the proprietors of three lots in an eight lot strata scheme sought an order requiring Mr Renouf and Mr Busby, who are the proprietors of another two lots in the scheme, to remove alterations made to the common property and to reinstate the common property to its original condition.
The alterations (works) consisted of the demolition of a carport, the removal of a concrete slab, the construction of a new carport on a different part of the common property and the paving of both the original carport site and the new carport site.
The applicants contended that the works were not approved by the strata company. Mr Renouf and Mr Busby contended that the council of the strata company had given approval for the works by a vote of three in favour and two against. Mr Renouf and Mr Busby also raised a number of other contentions, including that the alterations had a positive impact on the strata scheme and had been arranged by Mr Renouf at his own cost.
The Tribunal considered the law regarding what approval was required for a proprietor to be able to effect alterations to common property and decided that a resolution without dissent is required.
The Tribunal decided that the works were carried out by Mr Renouf without being approved by a resolution without dissent and that he should remove the alterations and reinstate the common property to its original condition, and made an order to that effect. The other contentions raised by Mr Renouf and Mr Busby were not relevant.
The applicants also sought a declaration under s 95(3)(a) of the State Administrative Tribunal Act 2004 (WA) that s 95(1) of the Act applied to the order. The Tribunal decided that such a declaration was not warranted in the circumstances of the matter.
Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
Wong v Reid [2016] WASC 59
1 This proceeding concerns alterations to the common property of an eight lot strata scheme situated at 30 Comer Street, Como (strata scheme). The strata scheme was created by the registration of Strata Plan 4115 on 31 August 1976 under the Strata Titles Act 1966 (WA) (1966 Act).
2 The alterations (works) were the demolition of a carport structure (original carport) which was situated on common property (original carport site), the removal of a concrete slab (concrete slab) from the original carport site, the construction of a new carport structure (new carport) on a different part of the common property (new carport site) which was a grassed area and the paving of the new carport site and original carport site (new paving).
3 The 1966 Act was repealed and replaced by the Strata Titles Act 1985 (WA) (ST Act).
4 The proceeding was commenced under s 83(1) of the ST Act by Ms Meagan Ida Laffin (proprietor of Lot 1), Ms Kathleen Joan Haythornthwaite (proprietor of Lot 2), Ms Jeanette Lorraine Swift (proprietor of Lot 3) and Mr Steven Cripps and Ms Danielle Marguerite Chauveau (joint proprietors of Lot 8) against Mr David John Renouf (proprietor of Lot 4), Mr William Forrester Busby (proprietor of lot 5) and The Owners of 30 Comer Street, Como Strata Plan 4115 (strata company) seeking the following orders:
(1) An order under section 83(1) [of the Strata Titles Act 1985 (WA)] that the First and Second Respondents shall, within 14 days of the date of these orders:
(a) remove the steel and 'colorbond' clad carport structure erected on the common property at the rear of the driveway and make good the common property bringing it back to its former landscaped state;
(b) replace the carport structure referred to in order 1(a) with a carport structure that is in keeping with the rest of the development, in particular, the other carport structures in the scheme; and,
(c) replace the portion of the common property driveway which has been dug up and until recently paved not in keeping with the existing scheme, with pavers in keeping with the pavers which remain on the front half of the common property driveway.
(2) An order under section 83(1) [of the Strata Titles Act 1985 (WA)] that the First Respondent shall, within 14 days of the date of these orders, replace (not paint) the cream 'colorbond' fencing erected on the rear boundary along part of the parcel with fencing in keeping with the green 'colorbond' fencing later installed along part of the parcel and behind Lot 4.
(3) An order under section 83(1) [of the Strata Titles Act 1985 (WA)] that the First Respondent shall, within 14 days of the date of these orders, remove the seven pallets of pavers that are the property of the First Respondent and have been on the front verge (next to the entry) of the property for approximately 13 months.
(4) An order under section 95(3)(a) of the State [Administrative] Tribunal Act 2004 (WA) declaring that orders 1, 2 and 3 are orders to which section 95(1) of the State [Administrative] Tribunal Act 2004 (WA) applies.
5 Following a mediation conducted by a member of the Tribunal, the applicants withdrew their proposed orders 2 and 3.
6 At a directions hearing held after the mediation, the parties agreed that the remaining part of the matter would be determined on the documents and the parties were required to file written submissions and the documents on which they wished to rely. The applicants filed a joint submission and bundle of documents. Mr Renouf and Mr Busby filed separate submissions and documents. The strata company did not file any submissions or documents.
7 Mr Cripps and Ms Chauveau subsequently withdrew from the proceeding.
8 A further directions hearing was held to clarify the details of what the applicants were seeking in their proposed order 1(b) and proposed order 1(b) was amended to state as follows:
(b) construct a carport structure in the location shown on Strata Plan 4115 of the carports between Lot 4 and Lot 5 with materials and dimensions that are in keeping with the rest of the Strata Scheme and, in particular, the other carport structures in the scheme;
9 At that directions hearing, in response to a question from the Tribunal, Mr Renouf confirmed that it was only him who had arranged for the works to be carried out and that Mr Busby was not involved in that. Therefore, the Tribunal has decided that if the applicants are successful, the Tribunal will only make an order against Mr Renouf instead of against both Mr Renouf and Mr Busby.
10 The principal issue to be determined by the Tribunal is whether Mr Renouf had the requisite approval to carry out the works.
11 If the Tribunal decides that Mr Renouf did not have such approval and makes an order in accordance with proposed order 1 (as amended), then the further issue to be determined is whether the Tribunal should make a declaration under s 95(3)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in respect of that order.
12 The applicants' contentions may be summarised as follows:
13 Mr Renouf's contentions may be summarised as follows:
14 Even though the Tribunal has decided that if the applicants are successful, an order will not be made against Mr Busby, the Tribunal has considered his contentions since he is a respondent and he has filed submissions.
15 Mr Busby's contentions may be summarised as follows:
The relevant provisions of the ST Act concerning common property
16 The common property of a strata scheme is that part of the land (and improvements to it) which is not comprised in the lots on the strata plan; see the definition of 'common property' in s 3(1) of the ST Act.
17 Section 17(1) of the ST Act provides that common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their lots under the strata scheme.
18 Section 32 of the ST Act provides that upon the registration of a strata plan the proprietors constitute a strata company, which is a body corporate.
19 Section 35(1)(b) of the ST Act provides that a strata company shall control and manage the common property for the benefit of all the proprietors.
20 Section 35(1)(c) of the ST Act provides that the strata company must keep in good and serviceable repair, properly maintain and, where necessary, renew and replace the common property.
21 There is no provision in the ST Act which deals specifically with the erection, alteration or extension of a structure on common property. Section 85 of the ST Act provides that a proprietor may apply to the Tribunal for an order that a strata company consent to a proposal by a proprietor to effect alterations to common property on the grounds that the strata company has unreasonably refused to consent to that proposal. However, s 85 is silent regarding the manner in which a strata company can give such consent.
22 There are a number of provisions in the ST Act which enable a strata company to deal with common property, namely s 19, s 20, s 21Q and s 42(8). In each case, a 'resolution without dissent' (or unanimous resolution in the case of a two lot scheme) is required to enable the strata company to do so.
23 Under s 3AC of the ST Act a 'resolution without dissent' is a resolution passed by a strata company in accordance with the requirements of the ST Act, against which no vote is cast by a proprietor (resolution without dissent). If any proprietor votes against such a resolution then it is not a resolution without dissent.
24 Under s 42(8) of the ST Act the only manner in which exclusive use of common property can be given to a proprietor of a lot is by the making of an exclusive use by-law pursuant to a resolution without dissent. Section 42(4) of the ST Act provides that such a by-law must be registered and noted on the strata plan to have effect.
25 When the 1966 Act was repealed and replaced by the ST Act the rights of exclusive use of common property which had been created under the 1966 Act were preserved by cl 13 of the transitional and savings provisions set out in Sch 3 of the ST Act. However, subsequently cl 13A was added to Sch 3 by the Strata Titles Amendment Act 1995 (WA), which provided that such preserved rights were extinguished unless they were confirmed in an exclusive use by-law made pursuant to s 42(8) of the ST Act and registered and noted on the strata plan.
26 The Tribunal notes that whilst the strata plan in this matter shows a number of carports which are marked as 'for the use of' various lots, there is no exclusive use by-law registered and noted on the strata plan for those carports and therefore there is no exclusive use right in respect of any of those carports.
27 Before deciding whether Mr Renouf had approval to carry out the works, it is necessary to decide what form of approval is required for a proprietor to be able to effect alterations to common property.
28 Mr Renouf has cited the decision of the Tribunal in Sisto as authority for his contention that only an ordinary resolution of the strata company is necessary to authorise him to carry out the works. Sisto concerned an application to the Tribunal by Ms Sisto seeking orders preventing the strata company of that strata scheme from carrying out certain works to the common property of the scheme. She contended that a resolution without dissent was required to authorise the strata company to undertake that work. The strata company relied upon the fact that an item of expenditure for that work was included in the annual budget which had been passed by an ordinary resolution of the strata company at its annual general meeting. The Tribunal determined that the work was properly characterised as work required for the control and management of the common property and in some aspects was repairs and maintenance of the common property. Therefore, it was open to the strata company to include the cost of those works in the budget and it was sufficient authority for that budget to be adopted by the passing of an ordinary resolution by a simple majority. The Tribunal therefore dismissed Ms Sisto's application.
29 The decision in Sisto is not applicable in the circumstances of this proceeding, because here it is not the strata company which has carried out the works as part of its duty to control and manage the common property or to keep it maintained and repaired. The works were carried out by the proprietor of Lot 4, Mr Renouf, who arranged for them to be done and paid for them, and the works significantly altered the state of the common property.
30 There are, however, two decisions which are applicable to the circumstances of this proceeding.
31 The first decision is Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99 (Maber), which concerned an application to the Tribunal by Mr and Mrs Maber, who were the proprietors of a lot in a 16 lot strata scheme, seeking an order to permit them to install a window on the common property balcony adjacent to their lot, to partially enclose that balcony. The Tribunal decided that for Mr and Mrs Maber to be permitted to carry out that work, a resolution without dissent of the strata company was necessary. Judge Chaney (as he then was) at [29] and [30] stated:
All proprietors have a proprietary interest in the common property. It is no doubt a recognition of those rights which underlies the requirement for a resolution without dissent in sections 19, 20, 21Q and 42(8) of the ST Act. It is consistent with an entitlement by a co-owner of property to prevent works being conducted on the property by another co-owner that a resolution without dissent should be required. It is also consistent with a recognition of the proprietary interests of the co-owners that a strata company which, although charged with the control and management of common property, is not the owner of it, should only deal with the common property on the authority of a specific statutory provision. The proposal by Mr and Mrs Maber is a proposal of the type contemplated by s 42(8). In the absence of any specific statutory authority enabling the strata company to carry out alterations and improvements to common property (beyond works encompassed within control and management) a by-law under s 42(8) is required.
Any other conclusion would lead to an absurd situation where a lot owner would require a resolution without dissent to make alterations or extensions to his or her own lot (s 7), but require only a simple majority to make alterations or extensions to common property. The absurdity would arise because the consent of all other lot owners would be required in relation to works on land in which they have no interest, but not in relation to works on land in which they have a proprietary interest. They would have a ground to object to work on a lot where it would result in a structure visible from the outside of the building, but not have the same rights in relation to structures or common property visible from the outside of the building.
32 The second decision is Wong v Reid [2016] WASC 59 (Wong), which concerned an application to the Supreme Court for leave to appeal against a decision of the Tribunal which required the proprietor of a lot in a four lot strata scheme, Mr Wong to remove a wall he constructed on common property and arrange for the reconstitution of a garden on the common property which had been removed to enable that wall to be constructed. One of the other proprietors, Mrs Reid had not consented to those works being carried out and she applied to the Tribunal for the order which the Tribunal made. In dismissing the application for leave to appeal against the order made by the Tribunal, Beech J at [22] stated that 'Mr Wong was not entitled to construct a fence or wall without the written approval of all other owners and without the approval of the strata company'.
33 The law is clear. The common property of a strata scheme is owned jointly by the proprietors of all the lots. The strata company of the strata scheme has the power and duty to control and manage the common property and to keep the common property in good repair and properly maintained. Where works can be properly categorised as coming within the power of the strata company to control and manage the common property or to keep it maintained and repaired, then all that is required to enable the strata company to carry out those works, is for the cost of them to be included in the budget adopted at the annual general meeting of the strata company; see Sisto at [27], [28], [36] and [43].
34 However, except where renewal or replacement is necessary to keep common property in good repair, no works for the demolition or alteration of any structure on the common property or for the erection of any structure on the common property can be carried out by a strata company or any proprietor unless a resolution without dissent is passed; see Maber at [29] and [30] and Wong at [22].
Was a resolution without dissent passed to give approval for the works?
35 Mr Renouf contends that the construction of the new carport was approved by the council of the strata company by a vote of three members in favour to two members against. However, Mr Renouf has not filed a copy of the minutes of any meeting or resolution by the council of the strata company to prove that contention. In any event, even if such a resolution was proved to have been passed, it would not be a resolution without dissent in accordance with s 3AC of the ST Act.
36 Mr Renouf has filed a copy of the minutes of the annual general meeting of the strata company held on 12 February 2015, which record the passing of a resolution (by a vote of four proprietors in favour and two proprietors against) that the carports for Lots 4 and 5 be re-located to the rear of the complex between Lots 4 and 5, one metre from the fence line. Those minutes also record the passing of a resolution that the proprietor of Lot 4 to investigate options for constructing the carports and forward those options to the council of the strata company for its consideration and approval prior to proceeding. Those minutes also record the passing of a resolution that the issues regarding the removal of carports and rear area of complex paving be resolved by discussion and negotiation as a first step, leaving the option of commencing a proceeding in the Tribunal as a last resort. None of those resolutions was a resolution without dissent in accordance with s 3AC of the ST Act.
37 Mr Renouf has also filed a copy of planning approval dated 18 June 2015 and a building permit dated 3 July 2015, both issued by the City for the construction of the new carport and a copy of a letter dated 26 May 2015 to the City from Exclusive Strata Management, as the strata manager, giving approval on behalf of the council of the strata company for Mr Renouf to erect the new carport as per his application for development approval. That letter is consistent with Mr Renouf's contention that the council of the strata company approved the construction of the new carport. However, none of those approvals constitutes a resolution without dissent in accordance with s 3AC of the ST Act.
38 On Mr Renouf's own admission, at least two proprietors opposed his proposal to erect the new carport.
39 Mr Renouf has not provided any evidence of a resolution without dissent being passed to give approval for him to demolish the original carport, to remove the concrete slab, to erect the new carport or to carry out the new paving.
40 The Tribunal has decided that the works were carried out by Mr Renouf without being approved by a resolution without dissent in accordance with s 3AC of the ST Act. Accordingly, Mr Renouf should remove the alterations he made to the common property and reinstate the common property, as nearly as is practicable, to its original condition. The Tribunal will therefore make the order sought by the applicants in their proposed order 1 (as amended), but in view of the work which will be necessary to be done under the order, the Tribunal will allow Mr Renouf a period of 90 days to comply with the order.
41 The contentions of Mr Renouf and Mr Busby regarding the amount of parking provided by the new carport, the alleged plans submitted by Ms Swift to the last annual general meeting (to which there is no reference in the minutes of that annual general meeting), the alleged positive impact on the strata scheme of the new carport, the alleged poor state of the grassed area on the new carport site, the alleged need for repair of the driveway and the alleged unsightliness of the concrete plinths of the original carport, are not relevant. As has been stated above, it is the strata company, not individual proprietors, which has the power and authority to maintain and repair the common property if that is necessary and no works for the demolition or alteration of any structure on the common property or for the erection of any structure on the common property can be carried out by any proprietor, unless a resolution without dissent is passed.
Should a declaration be made under s 95(3)(a) of the SAT Act?
42 In proposed order 4, the applicants are seeking a declaration under s 95(3)(a) of the SAT Act that s 95(1) applies to proposed order 1.
43 Neither the applicants nor Mr Renouf nor Mr Busby filed any submissions regarding this.
44 The Tribunal has decided that a declaration under s 95(3)(a) of the SAT Act is not warranted in the circumstances of this matter. Whilst the Tribunal has decided that Mr Renouf did not have the necessary approval to carry out the works, he has put a genuine, although misconceived, argument that he did have the necessary approval. Mr Renouf has participated in the proceeding and there is nothing in his conduct during the proceeding which indicates that he might refuse or fail to comply with the order made pursuant to the decision of the Tribunal. If that happens, then it is open to the applicants to make an application to the Tribunal under s 95(3)(b) of the SAT Act for a declaration to then be made that s 95(1) applies to the order.
(a) remove the steel and 'colorbond' clad carport structure erected on the common property at the rear of the driveway and make good the common property bringing it back to its former landscaped state;
(b) construct a carport structure in the location shown on Strata Plan 4115 of the carports between Lot 4 and Lot 5 with materials and dimensions that are in keeping with the rest of the strata scheme and, in particular, the other carport structures in the scheme;
(c) replace the portion of the common property driveway which has been dug up and until recently paved not in keeping with the existing scheme, with pavers in keeping with the pavers which remain on the front half of the common property driveway.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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