5. External side door/6 Screen door/7 White security screens

It is not clear from the photographs whether these screens are white, or cream as the applicants' shutters have been described to be. They do appear to be a lighter colour than the cream gutters. In my view, all of these items are consistent with the garage door and the security screens installed by the applicant on Lot 1. Once that colouring was introduced, having regard to the building as a whole, I consider that the white or cream coloured windows and doors installed by the respondent are in keeping with the rest of the building. While that is a subjective judgement, which I must make, I am fortified in my view by the conduct of the parties. In that regard, while the facts are in dispute, I accept the respondent's version of events and find that the applicant had consented to the installation and in particular to the colour used. There are a number of reasons as to why I prefer the respondent's evidence.

(i) The respondent dealt with the matters in a statement which was more detailed than that of the applicant. Furthermore, the respondent gave oral evidence confirming on oath her statement and was cross-examined thereon. She gave evidence in an entirely satisfactory manner.

(ii) Mr H Verryt was not called to give evidence and was not subjected to cross-examination.

(iii) The response schedule (exhibit A2) which the applicant relied upon to answer the respondent's statement is not signed and responded somewhat tersely to the matters raised. In some respects, it is more in the nature of a pleading but subject to the defect that on occasion bare denials only are made. At times, it is framed in terms in which it appears that the statement given is that of Mr D Verryt rather than Mr H Verryt - see for example the response to par 62 and par 81.

(iv) The correspondence, attached to the application, to which I have already referred, shows that the applicants' real concern was that the respondent might endeavour to change the colour of the roof. By that time, in November 2004, all of the works other than the gutters and downpipes, had been installed for some time, yet the applicants had done nothing about it.

(v) The manner in which this application has been conducted and the willingness of Mr H Verryt to intervene with contractors (see par 62 of the respondent's statement and the response schedule relating thereto) and the conduct of Mr H Verryt described in par 5 of the respondent's statement (which was not disputed) is inconsistent with Mr H Verryt having objected to any of the earlier works. If he had done so, and been ignored, it is unlikely he would have done nothing about the matters concerned at the time.

(vi) The delay in bringing forward any of the complaints, other than in relation to gutters, downpipes and the roof which were all recent events, is consistent with Mr H Verryt having advised the respondent that she could do whatever she liked as long as she did not build anything at the front of the applicant's residence. That was the point which he emphasised at his meeting with the respondent shortly after settlement of the respondent's purchase of Lot 2 (see par 5 and par 28 of the respondent's statement - the former which was not disputed).

It is clear on the respondent's evidence, which I accept, that there was never any intention to carry out repairs to the roof using a colour which was not matched as closely as possible to the existing. It may well be the case that Mr H Verryt genuinely believed that the respondent intended to use apply a yellow finish, but as soon as that matter was raised with the respondent, she informed the applicant that was not the case.

There is little doubt that this misunderstanding lies at the heart of the applicant's application for relief from the Tribunal. It is unfortunate that the respondent did not reply promptly to Mr D Verryt's initial correspondence because that, together with her willingness to repaint the security door and the gutters on the western and southern side of the house facing Halls Head Parade, might have avoided the need for this application.

In any event, the respondent's position is now patently clear, and that is that she seeks to have repairs carried out to the roof, which it is not disputed are necessary, and that she wishes to colour the roof as close as possible to the existing colour. The respondent is clearly entitled to follow that course.

Although the applicants originally contended that the asbestos fence had been painted a powder blue colour on both sides, it was clarified at an early stage that the colouring was only to the inside of the fence. The wooden fenceposts were painted the same colour.

The respondent's evidence, which I accept, was that this work had been carried out in March or April 2003, that Mr H Verryt had been present while the fence was being painted and had given his approval to the posts being painted in the same colour. Although my personal view is that the posts and fence have been painted in a colour which I would not regard as being in harmony with the building, for the reasons given above, it is for the proprietors of the strata company to determine the degree of uniformity or consistency required and consequently the standard by which a feature might be regarded as in keeping with the building, or not.

I accordingly find that the fenceposts, including the letterbox, and the asbestos fence painted in a blue-grey colour are in keeping with the rest of the building.

As I have already found above that portion of the fence, which is an asbestos fence, not a wooden one, and gate was painted cream prior to the respondent acquiring Lot 2. I find that the painting of the fence in a white colour has not materially affected its appearance, and, even if this were not the case, given the range of colours visible on the eastern side of the property, and the standard thereby set by the proprietors, I consider that this work is in keeping with the rest of the building.

66 For the above reasons, the only aspect of the application which has been successful has been in relation to the green coloured downpipes on the western and southern faces of the building comprising Lot 2. These downpipes should be repainted but in view of the commencement of the winter rainy season, I will allow an extended time for that work to be completed. The appropriate order to be made is therefore as follows:

1. On or before 30 June 2005 the respondent is to cause the drainpipes situated on the west and south faces of the building comprised within Lot 2 on Strata Plan 17152 to be painted in a mission brown colour paint.

67 At the conclusion of the hearing, I encouraged the representatives of the parties to meet in an endeavour to reach a satisfactory resolution of the matter on the basis that the parties were neighbours and that the determination of the matter by the Tribunal would do nothing to mend their relations.

68 I asked that I be advised as soon as possible whether the settlement negotiations had been successful or not. On the same day as the hearing, Mr D Verryt addressed a facsimile to me. The second paragraph advised me that the parties were not able to reach resolution and the introduction to the third paragraph stated the issues which were discussed, and then proceeded to list them. I did not read the list because I was concerned that I should not be made aware of the content of the parties' negotiations, and I noted that the commencement of the next paragraph contained a statement "in an attempt to bring the matter to resolution I suggested the following". It was not appropriate that I should be aware of the parties' without prejudice settlement negotiations, and I read the document no further.

69 On 22 March 2005, a letter addressed by the respondent's solicitor to the Executive Officer of the Tribunal was received and forwarded to me. The letter confirmed that the settlement negotiation had not resulted in any of the issues being resolved and objected to the contents of Mr D Verryt's above letter on the basis that it purported to record settlement negotiations that were conducted on a without prejudice basis. As stated above, except to the extent there indicated, the letter was not read for that reason.

1. On or before 30 June 2005 the respondent is to cause the drainpipes situated on the west and south faces of the building comprised within Lot 2 on Strata Plan 17152 to be painted in a mission brown colour paint.

I certify that this and the preceding 22 pages comprise the reasons for decision of the State Administrative Tribunal.

______________________

C Raymond

Senior Member