Will the proposed wall and gate cause significant inconvenience or detriment to the other owners?

1. The applicant says that the proposed wall and gate will have a number of detrimental effects on the owners of Lots 1, 2 and 3, by way of noise transmission, loss of amenity, exclusive use of the driveway by the respondent and strata liabilities.

1. The applicant says that the operation of a manual or electric gate will add noise to the bedrooms of Lots 2 and 3 due to the close proximity of the proposed gate. The applicant says this would be further exacerbated by engine noise from idling vehicles waiting for the gate to open and in the case of a manual gate there is also going to be constant noise from vehicle doors slamming when occupants step out to open or close the gate. The applicant also says that a gate which is not properly secured or fitted during construction may impose permanent noise transmission to the bedrooms of Lots 2 and 3 during storms or otherwise by the wind. The applicant says that noise from a 'wavering gate' is simply unmanageable during the day or night and this will have a significant impact on sleep and rest for other owners and 'especially the Master bedroom of Lot 3'.

1. The applicant says that the construction of the proposed wall and gate will be solely of benefit to Lot 4, not the other owners, as it will create 'an enclave' for Lot 4 within the strata scheme, which 'is not in uniformity with the current design scheme'. The applicant says that the proposed wall and gate is 'an unnecessary form of fortification', which will impose on the 'already limited space'. The applicant says that the other owners bought into the strata complex as is, and do not wish to alter the look and layout of the strata complex. The applicant says that the narrow design of the strata scheme and common driveway does not allow for the construction of 'excessive structures' such as the proposed wall and gate. The applicant also says that the proposed gate will cause vehicles to bank up in the 'likely event' that two or more vehicles need to enter or exit the strata complex at the same time.

Exclusive use of the driveway by the respondent

1. The applicant says that the proposed gate will create 'a de facto exclusive use area over part of the common property driveway'. The applicant refers to the decision of the Tribunal in Robinson and Stevens [2009] WASAT 207 (Robinson) in support of that contention.
2. The applicant also says that the proposed wall and gate would impede the access of 'vital emergency services' along the common property driveway.

1. The applicant says that the proposed wall and gate will expose lot owners to various financial risks. The applicant says that includes a potential rise in insurance premiums in the event of damage to the proposed wall and gate, 'vehicle scrapes' and 'accidents on the common driveway and 'pedestrian injury'. The applicant says that also includes 'property devaluation' and that the strata complex will lose its appeal to future buyers due to the 'inconsistent design imposed by these structural alterations' and that Lot 3 would be more exposed to this risk, as the proposed wall will 'severely restrict the outlook from the master bedroom' and a noisy gate. The applicant also says that the proposal would leave the other owners open to liability for shared costs relating to the maintenance and up keep of the proposed wall and gate.

1. The respondent's submissions may be summarised as follows.

Should the matter be dealt with by the Magistrate's Court?

1. The respondent says that under s 9(1)(a) and (d) of the DF Act it is open to the Magistrates Court to determine the 'need for and the kind of fence to be constructed' if neighbours do not agree on that, as is the case here. The respondent says that if this matter is not heard in the Magistrates Court, then the respondent is deprived of the opportunity to make submissions as to the need for the 'proposed dividing fence'. The respondent says that if the Tribunal limits its inquiry to whether the proposed wall and gate will cause any significant inconvenience or detriment to the other owners for the purposes of s 103G(4)(b) of the ST Act, then she will be deprived of her right to be heard on the question of the need for the 'proposed diving fence'.
2. The respondent says that before an inquiry is made into whether the 'proposed dividing fence' (that is, the proposed wall and gate) can be characterised as a 'structure' for the purposes of s 7(2) of the ST Act, the first 'test' ought to be whether the proposed wall and gate is 'more specifically characterised' as 'fencing' for the purposes of s 123B of the ST Act. The respondent says that the proposed wall and gate can be specifically characterised as a fence for the purposes of s 123B of the ST Act.
3. The respondent says that any dispute in relation to the proposed wall and gate 'invokes' the jurisdiction of the Magistrates Court and submits that the Tribunal should refer this matter to the Magistrates Court.

Is the proposed wall and gate a structure for the purposes of s 7 of the ST Act?

1. The respondent says that the proposed wall and gate cannot be characterised as a structure for the purposes of s 7(2) of the ST Act, based on how 'structure' is defined under the ST Act.
2. The respondent says that in s 7(6) of the ST Act, 'structure is defined as any prescribed improvement' and refers to reg 32 of the Strata Titles General Regulations 1996 (WA), as they were prior to 1 May 2020 (ST Regulations).
3. Regulation 32 of the ST Regulations states:

The improvements prescribed for the purposes of the definition of structure in section 7(6) are any dwelling, shop, factory, commercial premises, garage, carport or other building or improvement ­

(a) the construction or erection of which is required to be approved by the local government or any other authority; or

(b) the area of which is to be taken into account for the purposes of determining the plot ratio restrictions or open space requirements for the lot under section 7A,

whether free standing or annexed to or incorporated with any existing building on the lot.

1. The respondent refers to information on the website of the City of Stirling, which states that dividing fences of up to 1.8 metres in height do not require any approval from the council of the City of Stirling.
2. The respondent says that the proposed wall and gate cannot be characterised as a structure for the purposes of s 7 of the ST Act, because it does not need approval by the City of Stirling. The respondent says, to the extent a building permit would be required for the proposed wall and gate, that is a process which is separate from the development approval process.

Could approval for the proposed wall and gate be refused under s 7(5) of the ST Act?

1. The respondent says that if the Tribunal finds that the proposed wall and gate is a structure for the purposes of s 7 of the ST Act, there are no grounds upon which approval for it may be refused under s 7(5) of the ST Act. The respondent says that the only potential relevant ground in s 7(5) of the ST Act in this case is set out in s 7(5)(b)(i) of the ST Act, which is if the proposal 'will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development'. The respondent refers to the quote for the construction of the proposed wall and gate (Exhibit 1), which states 'Materials and labour to build brick and texture coated wall to match existing wall and slats at 5a Thor [Street] Innaloo'. The respondent says that the wall at 5a Thor Street Innaloo is the 'set-back fence' where Lot 1 on Strata Plan 72475 faces out onto Thor Street and the proposed wall and gate will plainly be in keeping with the rest of the strata scheme.

Will the proposed wall and gate cause significant inconvenience or detriment to the other owners?

1. The respondent refers to the decisions of the Tribunal in The Owners of Northwood Rise Strata Plan 50673 and Mill Point Financial Centre Pty Ltd [2019] WASAT 140 (Northwood Rise) and The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161 (Barker Road).
2. The respondent refers to the six 'factors' set out in [30] of Barker Road as being relevant to the consideration of whether the structure constructed on the lot in that case (a juliette balcony) had caused any significant inconvenience or detriment to the other lot owners in that strata scheme. The respondent addresses each of those six factors.
3. In the view of the Tribunal (as constituted for this matter) those 'factors' should not be regarded as an authoritative statement of the considerations which are applicable in relation to whether the erection (construction) of a structure on a lot in a particular case has or will cause significant inconvenience or detriment to the other lot owners in a strata scheme. Rather, the relevant considerations are to be determined in the particular circumstances of the case.
4. The applicant has stated in its submissions the particular circumstances which it says will cause significant inconvenience or detriment to the other owners in this strata scheme (the owners of Lots, 1, 2 and 3) if the proposed wall and gate are constructed.
5. Therefore, there is no need for the 'factors' stated in Barker Road to be considered in this matter. Rather, the circumstances stated by the applicant need to be considered.
6. The respondent says that while purported to have been made by the strata company, the applicant's submissions are entirely those of Ms Miduku, who is the owner of Lot 3, which adjoins the respondent's lot.
7. The respondent refers to the email dated 1 February 2020 which she sent to Ms Seubert (owner of Lot 1), inviting her to comment on whether the proposed wall and gate will cause any significant inconvenience or detriment to her, and Ms Seubert's email in response dated 3 February 2020, in which Ms Seubert says that the proposed wall and gate would not cause any significant inconvenience or detriment to her (Exhibit 9).
8. The respondent says that she sent the same email dated 1 February to Mr Egito (owner of Lot 2) and Mr Egito responded to her in person 'to the effect that [he] declined to participate in this matter'. The respondent also makes the point that Mr Egito did not attend the EGM held on 12 September 2019 at which the proposed wall and gate was considered, as noted in the minutes of the EGM (Exhibit 11).
9. Having made those points, the respondent responds to the submissions made by the applicant in respect of noise transmission, loss of amenity, exclusive use of driveway by the respondent and strata liabilities as follows.

1. The respondent says that the reference by the applicant to 'constant noise from vehicle doors slamming' is 'hyperbolic'. The respondent says that the proposed gate will be properly secured and fitted during construction and there are no grounds to presume otherwise and, therefore, the gate will not impose permanent noise transmission to the bedrooms of Lots 2 and 3 during storms or otherwise by wind, as contended by the respondent.

1. The respondent disputes that the proposed wall and gate would give her a 'sole benefit' as contended by the applicant because the owners of Lots 2 and 3 could obtain a 'front courtyard benefit' if they undertook similar 'fencing' on the boundary of their external part lot and the common property driveway. The respondent further says that, even if she does have a 'sole benefit' as a result of the construction of the proposed wall and gate, it does not follow that there would be an associated significant inconvenience or detriment to the other owners.
2. The respondent says that the proposed wall and gate would not diminish the physical space or size of Lots 1, 2 and 3 or the common property and that the other owners have no existing right to use any of the space that would be 'fenced in' by the proposed wall and gate (because that is part of the external area of the respondent's lot).
3. The respondent says that the outlook from the Lot 3 master bedroom is directly towards the common property driveway and the fence along the southern boundary of the strata scheme.
4. The respondent says that the proposed wall would not be higher than that boundary fence and would not restrict any view of the sky, the rooftops of the neighbouring dwellings or the common property driveway.
5. The respondent says that the proposed wall would only restrict the outlook from the Lot 3 master bedroom to a small part of the external area part of the respondent's lot, where the respondent parks a vehicle.
6. Therefore, the respondent contends that the proposed wall and gate would not cause a significant detriment insofar as the outlook from Lot 3 is concerned.
7. The respondent says that all the owners bought their lots in the strata complex on the basis that under the ST Act (and the DF Act) there is scope for the look and layout of the lots to be altered lawfully by the addition of structures such as fences and gates.
8. The respondent contends that for the applicant to describe the proposed wall and gate as an 'excessive structure' is hyperbolic, because it will only exist on the boundary of the respondent's lot and be the width of a typical house brick.
9. The respondent says that although it is possible that vehicles might 'bank up' if another vehicle or other vehicles were on the common property driveway at the time that the respondent's vehicle was waiting for the gate to be opened, this would only happen on rare occasions, for a matter of seconds and that whilst that might cause an inconvenience, it would be far from significant.

Exclusive use of the driveway by the respondent

1. The respondent says that the proposed wall and gate would only restrict the other owners from using the external area of the respondent's lot, which they have no right to use and the respondent already has 'exclusive use' of her lot.
2. The respondent also makes the point that the construction of the proposed wall and gate would not diminish the physical space or size of the common property driveway.

1. The respondent says that the entire strata complex is insured by GIO for a total 'building sum insured' value of $882,000, as stated in the certificate of insurance (Exhibit 7) and that amount is indexed upward by the insurer periodically to keep up with prevailing building costs.
2. The respondent says that the insurance coverage would extend to the proposed wall and gate and that she would notify the insurer of the proposed wall and gate if it is constructed.
3. The respondent says she contacted the insurer by telephone and was advised that the proposed wall and gate would not materially increase the total building sum and, therefore, would not impact insurance costs.
4. The respondent says that she consents to an order by the Tribunal requiring her to bear any associated increase in the insurance cost.
5. The respondent also says that once incorporated within the insurance policy, any public liability arising from the proposed wall and gate would be covered by the $20 million public liability cover already included in the insurance policy, as stated on the certificate of insurance (Exhibit 7).

1. The Tribunal will deal with the respondent's submission that the matter should be dealt with by the Magistrates Court and then determine the issues set out in [24] above.

Should the matter be dealt with by the Magistrate's Court?

1. The respondent's submission that this matter should be dealt with by the Magistrates Court under the DF Act and not by the Tribunal is futile, because this question was decided in the Preliminary Issue Decision.
2. In the Preliminary Issue Decision the Tribunal decided that:
   • Sections 7, 8 and 9 of the DF Act deal with the issue of the liability of an adjoining owner to either 'join in' or 'contribute' to the construction of a dividing fence if the other owner wishes to compel the adjoining owner to do so: [31] of the Preliminary Issue Decision.
   • The purpose of s 123B of the ST Act is to allow the issue of the liability of owners of adjoining lots in a strata scheme to contribute to the construction and/or repair of a dividing fence to be dealt with under the DF Act (in the Magistrates Court). There is no reason why that should preclude the Tribunal from exercising its jurisdiction under s 103G (or s 103F) of the ST Act where the construction of a dividing fence falls within s 7 of the ST Act: [35] of the Preliminary Issue Decision.
   • Section 123B(1) of the ST Act does not operate to exclude the jurisdiction of the Tribunal to deal with the application under s 103G(1) of the ST Act in this matter: [46] of the Preliminary Issue Decision.
   • The Tribunal has jurisdiction to determine this application under s 103G(1) of the ST Act: [47] of the Preliminary Issue Decision.

Is the proposed wall and gate a structure for the purposes of s 7 of the ST Act?

1. The definition of 'structure' in s 7(6) of the ST Act is not exhaustive, rather it is inclusive of the improvements prescribed by reg 32 of the ST Regulations, but it has a wider meaning than just those prescribed improvements.
2. Accordingly, the Tribunal does not accept the respondent's contention that the proposed wall and gate cannot be characterised as a structure, because they do not fall within the prescribed improvements set out in reg 32 of the ST Regulations. The applicant misstates the position in her submissions when she states that 'a structure is defined as any prescribed improvement'. Section 7(6) of the ST Act provides that 'structure includes any prescribed improvement' (Tribunal emphasis).
3. The Macquarie Dictionary Online (2020) defines 'structure', relevantly, to mean 'something built or constructed'.
4. The Oxford English Dictionary Online (2020) defines 'structure', relevantly, to mean 'something constructed'.
5. The Macquarie Dictionary Online (2020) defines 'construct', relevantly, to mean 'to form by putting together parts, build' and defines 'erect', relevantly, to mean 'to build, construct'.
6. The Oxford English Dictionary Online (2020) defines 'construct', relevantly, to mean 'to make or form by fitting the parts together, to frame, build, erect' and defines 'erect', relevantly, to mean 'to set on a foundation, construct'.
7. The proposed wall and gate will be built / constructed / erected by putting or fitting together the constituent materials (parts), such as the footing, the bricks, mortar, render and aluminium slats to form the wall and the footing, gate posts and gate.
8. The Tribunal has decided that, giving the word 'structure' in s 7 of the ST Act its ordinary meaning according to the dictionary definitions referred to above, the proposed wall and gate, when constructed / built / erected will constitute a structure for the purposes of s 7 of the ST Act.

Has the respondent demonstrated that the construction of the proposed wall and gate will not cause any significant inconvenience or detriment to the other owners?

1. In Northwood Rise, at [27] ­ [30] the Tribunal stated:
   1. Under s 103G(4)b) of the ST Act, the respondent carries the onus of demonstrating that there has been no significant inconvenience or detriment to the applicant: Uta Pty Ltd v Celenza & Anor [2002] WASCA 360 at [15] and [40] (Uta).
   2. Because the words 'inconvenience' and 'detriment' are not defined in the ST Act, they must be given their natural meaning and each case needs to be assessed on its merits as to whether or not they apply: see Hamilton v Thompson (1999) 23 SR(WA) 41 at [50] and [51] which was cited with approval in Uta.
   3. The Tribunal considered the meaning of the words 'significant inconvenience or detriment' in the decision of The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161 (Barker Road). The Tribunal stated at [29]:

'Inconvenience' necessitates a disadvantage and connotes something that is troublesome and impedes prosperity. 'Detriment' is ordinarily defined as damage, loss, harm, prejudice or a disadvantage. Section 103G of the Act refers to 'significant' and therefore the inconvenience or detriment cannot be immaterial or of no import; it must be material and of consequence.

1. The grounds of refusal set out in s 7(5) of the ST Act are relevant in determining if there has been significant detriment to the applicant: The Owners of The Views, Strata Plan 6669 and Larralee Pty Ltd [2006] WASAT 126 at [20]. To disregard the grounds in s 7(5) of the ST Act would, in effect, encourage strata lot proprietors to by-pass the prescribed approval process and to 'get in the back door': Barker Road at [28]. One of the grounds in s 7(5) of the ST Act is whether the carrying out of the proposal will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development.

Consideration of the grounds of refusal set out in s 7(5) of the ST Act

1. As stated in Northwood Rise at [30] the grounds of refusal set out in s 7(5) of the ST Act are relevant in determining if there has been, or in this case will be, significant detriment to the other lot owners.
2. The Tribunal accepts the contention of the respondent that the only ground in s 7(5) of the ST Act which would be relevant in this case is set out in s 7(5)(b)(i) of the ST Act, which is whether the erection (construction) of the proposed wall and gate would result in a structure that is visible from outside the respondent's lot and that is not in keeping with the rest of the development.
3. Having conducted a view and considered the quote for the construction of the proposed wall and gate (Exhibit 1) the Tribunal finds that the proposed wall and gate would be visible from outside the respondent's lot, but the Tribunal accepts the respondent's contention that the proposed wall and gate will be in keeping with the rest of the development, because it would be constructed to match the wall across the street frontage of Lot 1.

The detrimental effects to the other owners which the applicant claims would be caused by the construction of the proposed wall and gate

1. The Tribunal accepts the contention of the respondent that the applicant's submissions are solely those of Ms Miduku (owner of Lot 3). In the email dated 3 February 2020 to the respondent from Ms Seubert (owner of Lot 1), Ms Seubert says that the proposed wall and gate would not cause any significant inconvenience or detriment to her (Exhibit 9). Also, there is no evidence before the Tribunal that Mr Egito (owner of Lot 2) has any concerns about the proposed wall and gate.
2. Nevertheless, the onus is on the respondent to demonstrate to the Tribunal that the construction of the proposed wall and gate will not cause any significant inconvenience or detriment to the other owners, including Ms Miduku.
3. The Tribunal will consider each of the detrimental effects to the owners of Lots 1, 2 and 3, which the applicant says will be caused if the proposed wall and gate are constructed. The applicant says that those detrimental effects will be noise transmission, loss of amenity, exclusive use of the driveway by the respondent and strata liabilities.

1. The Tribunal accepts the respondent's submission that the proposed gate will be properly secured and fitted and that it will not impose 'permanent noise transmission to the bedrooms of Lots 2 and 3 during storms or otherwise by wind'. The applicant's contention that the gate might not be fitted properly is pure speculation.
2. The Tribunal accepts the respondent's submission that any noise which would be generated by the operation of the proposed gate, vehicles idling for a short period while the gate is opened and closed, and the opening and closing of vehicle doors when the gate is opened and closed, would not exceed the noise level to be expected in a residential strata development and would not cause any significant inconvenience or detriment which would be material and of consequence.

1. The Tribunal understands that Ms Miduku, as the owner of Lot 3, which adjoins the respondent's lot, wants the boundary between her external part lot and the respondent's external part lot and between the respondent's external part lot and the common property driveway to remain open as it is presently. However, the Tribunal does not accept the contention that because owners bought into the strata scheme as it currently is, they are not entitled to make alterations or additions to their lots if they satisfy all legal requirements in respect of any proposed alteration or addition.
2. It is not relevant whether the proposed wall and gate will 'create an enclave' and 'be of benefit solely' to the respondent. The relevant considerations in this proceeding are whether the construction of the proposed wall and gate would cause any significant inconvenience or detriment to the other owners, or whether approval may be refused under any of the grounds provided for under s 7(5) of the ST Act. The only ground which has been identified as possibly applicable, is that set out in s 7(5)(b)(i) of the ST Act, which is whether the proposed wall and gate would not be in keeping with the rest of the strata development.
3. The Tribunal does not accept the applicant's contention that the proposed wall and gate is an 'excessive structure' or 'an unnecessary form of fortification'. It would be the same height as the boundary fence along the southern side of the strata development and it would be in keeping with the rest of the strata development, because it would be constructed to match the existing wall at the front of the strata development, as stated in the quote submitted by the respondent (Exhibit 1).
4. The Tribunal accepts the contention of the respondent that the proposed wall and gate would not cause any significant inconvenience or detriment to the other owners in respect of the outlook from their lots, with the only change to that outlook being a change to part of the outlook from the bedroom of Lot 3 where part of the proposed wall would be visible, instead of the area where the respondent parks her vehicle on the external area part of Lot 4.

1. The applicant's contention that the proposed wall and gate would create a 'de facto exclusive use area' over part of the common property driveway for the respondent is misconceived. The proposed wall and gate would only be between the respondent's lot and the common property driveway and would not create any exclusive use area on the common property driveway.
2. In Robinson a gate and a fence had been erected on the common property driveway, but in this case the proposed wall and gate would be constructed on the boundary of the respondent's lot. Therefore, the proposed wall and gate would not impede or prevent access by the other owners or emergency services to any part of the common property driveway.
3. The Tribunal, therefore, does not accept the applicant's contention that there would be significant inconvenience or detriment to the other owners caused by the construction of the proposed wall and gate on the ground that it would create any exclusive use of the common property driveway by the respondent or prevent the other owners and emergency services having full access to the common property driveway.

1. The applicant has not provided any evidence to prove its contention that there may be a rise in insurance premiums payable by it which would be caused by the construction of the proposed wall and gate and the Tribunal considers that contention to be no more than speculation.
2. Although the respondent says that she consents to an order by the Tribunal requiring her to bear any associated increase in the cost of insurance, the Tribunal does not have the power under s 103G of the ST Act to make such an order.
3. The applicant has not provided any evidence to prove its contention that the construction of the proposed wall and gate would cause 'property devaluation' and/or that the strata complex will lose its appeal to future buyers and the Tribunal does not accept that contention.
4. The Tribunal does not accept the applicant's contention that the construction of the proposed wall and gate would leave the other owners open to liability for shared costs relating to the maintenance and up keep of the proposed wall and gate. The proposed wall and gate would be part of the respondent's lot, not part of the common property and the responsibility for the maintenance and up keep of it would sit solely with the respondent and any subsequent owner of Lot 4.
5. The Tribunal, therefore, does not accept the applicant's contention that there would be significant inconvenience or detriment to the other owners caused by the construction of the proposed wall and gate on the ground that it would expose the other owners to financial risks as a result of increased 'strata liabilities'.

1. The Tribunal finds that a breach of s 7(2) of the ST Act has occurred because the proposed wall and gate is a structure which has not been approved by a resolution without dissent of the applicant.
2. However, for the reasons given, the Tribunal is satisfied that the construction of the proposed wall and gate will not cause any significant inconvenience or detriment to the other owners and, therefore, the Tribunal will not make an order under s 103G(3) of the ST Act that the respondent not carry out the construction of the proposed wall and gate.
3. The Tribunal will, therefore, dismiss the application for an order under s 103G of the ST Act to prevent the respondent from constructing the proposed wall and gate.
4. Also, as already stated above, the Tribunal will also dismiss the application for an interim order.
5. That will leave the respondent in the position of being able to construct the proposed wall and gate, subject only to obtaining any approval and/or permit which may be required from the City of Stirling.

1. The application for an order under s 103G of the Strata Titles Act 1985 (WA) to prevent the respondent from constructing the proposed wall and gate is dismissed.
2. The application for an interim order under s 82(2) of the Strata Titles Act 1985 (WA) is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.