CITATION : THE OWNERS OF ST JOHN'S COURT - RIVERVALE STRATA PLAN 6052 and CLARK (No 2) [2011] WASAT 16

BETWEEN : THE OWNERS OF ST JOHN'S COURT - RIVERVALE STRATA PLAN 6052

THE OWNERS OF ST JOHN'S COURT - RIVERVALE STRATA PLAN 6052

Strata Titles Act 1985 (WA) ­ Original decision not in accordance with statute ­ Power of Tribunal to make fresh decision ­ Application for removal of air­conditioner fixed to common property ­ Declaration sought that s 95(1) of the State Administrative Tribunal Act 2004 (WA) apply ­ Counter­application for order that strata company consent to proposal to effect alterations to common property ­ Whether consent unreasonably refused ­ Order sought for grant of licence ­ Whether lot incapable of reasonable use and enjoyment ­ Whether application for removal of air­conditioner vexatious, lacking in substance or frivolous ­ Application for costs

State Administrative Tribunal Act 2004 (WA), s 60, s 95(1)

Strata Titles Act 1985 (WA), s 35, s 38(3), s 42(8), s 44(1), s 81, s 81(7), s 83(1) s 84, s 85, s 94, s 94(1), s 94(2), Sch 1, by­law 20

Applicant : Mr M Atkinson and later Ms K Richardson (Acting as Agent)

Applicant : Mr M Atkinson and later Ms K Richardson (Acting as Agent)

Respondent : Mr M Atkinson and later Ms K Richardson (Acting as Agent)

Respondent : Mr M Atkinson and later Ms K Richardson (Acting as Agent)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Duffy and Owners of Warrawong Strata Plan 7976 [2010] WASAT 113

Husic and Biancuzzo [2009] WASAT 192

Letizia and Owners of Fraser Court on Strata Plan 8456 [2009] WASAT 103

Merkel v Superannuation Complaints Tribunal (2010) FCA 564 (4 June 2010)

Minister for Immigration and Multicultural Affairs and Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1

The Owners of St John's Court ­ Rivervale Strata Plan 6052 and Clark [2010] WASAT 126 (No 1)

Vines v Djordjevitch [1955] HCA 19; [1955] 91 CLR 512

1 The applicant's strata company had sought orders from the Tribunal for the removal of an air­conditioning unit installed on a common property roof by the respondents, without prior approval from the strata company and related relief. The respondent lot owners commenced separate proceedings seeking an order under s 85 of the Strata Titles Act 1985 (WA) that the strata company consent to the proposal or an order under s 94 granting the owners a licence to use the common property for the air­conditioning installation.

3 On 8 September 2010, the Tribunal published a decision determining the proceedings. Shortly thereafter it was ascertained that the Tribunal had handed down its decision, based on the documents, without having regard to a further set of documents and statement of issues, facts and contentions filed and served by the respondent lot owners. On the authority of Minister for Immigration and Multicultural Affairs and Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 and Merkel v Superannuation Complaints Tribunal (2010) FCA 564 (4 June 2010) and with the consent of the parties, the Tribunal determined that it had power to make a fresh determination of the matter. The Tribunal went on to reconsider all of the issues raised in the consolidated proceedings.

4 The Tribunal rejected the owners' submissions that the proceedings should be dismissed as frivolous or vexatious on the grounds that approval of the strata company was not required for the installation of the air­conditioning unit because there was no express provision of the legislation to that effect. The Tribunal held that most of the criticisms raised concerning the governance of the strata company were not relevant to the applications before the Tribunal although some might have a bearing on the Tribunal's exercise of a discretion on whether or not to make an order to remove the air­conditioning unit.

5 In relation to the application under s 85 the Tribunal concluded that the strata company had not acted unreasonably in not consenting to the proposal which was put forward by the owners after installation of the air­conditioning unit. The Tribunal followed previous decisions of the Tribunal to the effect that a remedy could only be granted under s 85 if a proposal or application was made to the Tribunal prior to the carrying out of the work. In any event, the Tribunal characterised the work as involving an alteration to common property which was merely incidental to the use of the common property so that it was more appropriate for the application to be considered under s 94.

6 In relation to the s 94 application, the Tribunal found that the lot owners bore an evidential burden of satisfying the Tribunal that the lot was incapable of reasonable use and enjoyment unless the order sought was granted. The applicant had indicated that it would grant an approval for a single air­conditioning unit to be installed on the common property balcony. It was therefore held incumbent on the lot owners to establish that a single air­conditioning unit could not be used as opposed to maintaining a smaller existing unit on the balcony and installing another air­conditioning unit on the roof. The Tribunal held that the lot owners had failed to provide evidence to this effect and therefore had not satisfied the requirements of s 94.

7 The Tribunal also dismissed various maintenance claims advanced by the lot owners. Save in one respect, the claims were not established by the evidence. Maintenance was required to the nosing on a landing of the development but the Tribunal considered it inappropriate to afford the lot owners an opportunity to amend the claim in relation to one item. The Tribunal expressed the view that if there was a general concern about the lack of a maintenance program that was a matter to be addressed by proposing appropriate resolutions at a general meeting of the strata company. The owners' application for costs was dismissed as being misconceived in the face of s 81(7).

8 The Tribunal determined that the strata company was entitled to an order for the removal of the air­conditioning unit from the common property roof and that the owners make good the common property. The Tribunal declined to make an order sought by the strata company under s 95(1) of the State Administrative Tribunal Act 2004 (WA) and further declined to make an order that the strata company be entitled to carry out the work if the owners failed to do so.

9 On 8 September 2010, the Tribunal published its decision in the matter of The Owners of St John's Court ­ Rivervale Strata Plan 6052 and Clark [2010] WASAT 126 (No 1) (The Owners of St John's Court No 1) in which the Tribunal purported to determine the proceedings, the subject of this decision. The dispute involves an application by the strata company, The Owners of St John's Court ­ Rivervale Strata Plan 6052, for the removal of an air­conditioning unit installed by Mr and Mrs Clark. Mr and Mrs Clark in turn commenced proceedings seeking relief, on grounds dealt with more fully below, the effect of which was to enable the air­conditioning unit to remain in the position in which it had been installed, together with other relief, also dealt with more fully below. The proceedings were consolidated and in the consolidated proceedings, the strata company has been and will be referred to as the applicant and Mr and Mrs Clark have been and will be referred to as the respondents. All references to legislation are to the Strata Titles Act 1985 (WA) (ST Act) unless otherwise stated.

10 By letter dated 15 September 2010, the respondents wrote to the Tribunal raising their concern that from a reading of the decision it did not appear that reference had been made to their final statement of issues, facts and contentions and supplementary documents filed on 21 April 2010. By letter dated 22 September 2010, the Tribunal responded confirming that the Tribunal's records disclosed that a document had been filed on 21 April 2010, but that it had not been placed in the file and it was not before the Tribunal when the decision in The Owners of St John's Court No 1 was made. The Tribunal drew to the parties' attention the principles discussed in Minister for Immigration and Multicultural Affairs and Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 and Merkel v Superannuation Complaints Tribunal (2010) FCA 564 (4 June 2010) addressing the circumstances in which it may be open to the original decision­maker to proceed with the making of a fresh decision rather than having to resort to an appeal of the original decision. A directions hearing was convened on 30 September 2010 to enable the parties to make submissions concerning the ability or otherwise of the Tribunal to proceed with the making of a decision based on all the documents.

11 At the directions hearing, both parties adopted the position that the Tribunal was able to proceed to make a fresh decision. Further, both parties, and in particular the respondents, expressed the view that the matter should be determined by the Tribunal, as originally constituted by myself, notwithstanding that concluded views had been expressed in The Owners of St John's Court No 1.

12 With the consent of the parties, and in order to achieve certainty as to the remedies available, the Tribunal made a determination at the hearing on 30 September 2010 that it had power to make a fresh determination of the matter. That conclusion was reached for the following reasons.

13 The matter had originally been listed for a final oral hearing, but the parties had prevailed upon the Tribunal to determine the matter on the documents. The parties had obviously intended that to mean on all the documents filed with the Tribunal. Although filed late, the respondents final statement of issues, facts and contentions and supplementary documents, which they were granted leave to file and serve, had been filed with the Tribunal. The Tribunal staff contacted the applicant's strata manager who, at that stage, had taken over representation of the applicant, and confirmation was given that the documents had been served on the applicant. The Tribunal was informed that instructions would be sought from the applicant concerning whether or not to seek leave to file any further documents. The applicant did not do so.

14 In those circumstances, it was clear that the parties intended that the Tribunal should have regard to all the documents which had been filed, including the respondents' last statement of issues, facts and contentions. Section 60 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) enables the Tribunal to determine whether it is appropriate to conduct all or part of a proceeding entirely on the basis of all relevant, credible and significant documents without the parties or their representatives or any witnesses attending or participating in a hearing. When the Tribunal therefore makes an order for a matter to be determined on the basis of the documents, the statute contemplates, and the parties expect, that it will be determined on the basis of all of the documents filed before the Tribunal. Consequently, the determination that was made was not in accordance with the SAT Act and it did not constitute a determination as required thereby. The Tribunal had therefore not exercised its jurisdiction and it was open to the Tribunal to exercise that jurisdiction by a further decision.

15 Further, as the decision previously made was not based on any credibility findings, I am satisfied that I am able to arrive at a fresh decision in an impartial manner and that it is advantageous for the Tribunal to remain as originally constituted because I am familiar with the quite significant volume of material which has been filed. On that basis, the Tribunal issued orders on 30 September 2010 reflecting that it had determined that it has power to make a fresh decision and that the matter be determined on the documents.

16 Prior to making the last­mentioned order, the Tribunal raised a concern that it appeared that the respondents' case depended in some significant respects upon a view that there was an onus on the applicant to justify its decision. Further, that if the Tribunal formed a contrary view, and the material provided was insufficient to show that the premises could not be adequately air­conditioned by installing a single but more powerful air­conditioning unit with a condenser placed on the balcony of the unit, the respondents might fail because the opportunity to present expert evidence had not been taken up. After a short adjournment, in which the parties conferred, the Tribunal was advised that neither party wished to take the opportunity to produce any further evidence and that the matter should be determined on the material provided.

17 In the circumstances, all the material has been reviewed, particularly having regard to the respondents' last statement of issues, facts and contentions and the documents appended thereto filed on 21 April 2010.

18 The basis upon which the original application was made and upon which the respondents then made a counter­application, together with the basis upon which the issues were identified are set out in The Owners of St John's Court No 1 at [10] ­ [17] and should be read as if incorporated in these reasons for decision. The issues identified and which remain for determination are:

1. Should the applicant's application be dismissed on any of the following grounds:
   1. that the proceedings are frivolous or vexatious;
   2. the council has not discharged its duty according to good governance principles and has endeavoured to enforce the ST Act and the strata by­laws in an inconsistent way.
2. Whether the applicant unreasonably refused to consent to the installation of the air­conditioner under s 85.
3. Whether the respondents should be granted a licence to use the common property roof for the air­conditioning installation, and, if so, upon what conditions?
4. Whether the applicant should be granted an order requiring the respondents to remove the air­conditioner and make good any damage, and consequential orders if the respondents did not do so.
5. Whether the respondents should be granted an order against the applicant in relation to maintenance work alleged to be necessary.
6. Whether the respondents are entitled to costs.

19 The respondents contend that the applicant's application for removal of the air­conditioning unit is frivolous or vexatious because it is submitted that the ST Act has no requirement for a lot owner to obtain approval for the use of common property for the placement of plant. This raises a legal issue which is dependent upon the proper construction of the ST Act. There is nothing in the respondents' final statement of issues, facts and contentions which bears upon this issue.

20 In the circumstances, I repeat [19] ­ [27] of the decision in The Owners of St John's Court No 1 which should be read as specifically incorporated herein. The conclusion therein expressed is that it was incumbent on the respondents to apply to the strata company for approval, and it follows that the application by the applicant is not frivolous or vexatious.

21 A number of issues have been raised by the respondents with a view to demonstrating inadequacy or improper conduct in the governance of the strata company. These allegations are largely irrelevant save where that governance is evidenced by an inconsistent approach to the installation of air­conditioners or an inconsistent dealing with the respondents based on an ulterior motive or bias on the part of the chairman of the strata council. Insofar as the issue of governance and inconsistency is raised as a basis for a summary dismissal without the consideration of the merits of the application, the ground cannot be upheld. The Tribunal is bound to consider the relevant criteria for each of the applications and counter­applications before the Tribunal.

22 It suffices to say that there are matters raised in the respondents' last statement of issues, facts and contentions which are of concern relating to bias, or a perception of bias, in relation to the chairman of the strata council arising from other business dealings and an inconsistency in the way in which the strata council has dealt with the respondents' application to install a blind as a sunscreen on the verandah as opposed to the way in which other occupants or owners have installed blinds. They are matters to be addressed in considering whether or not the applicant acted reasonably in refusing the respondents' application for the air­conditioner to remain as currently installed.

Whether the council unreasonably refused consent to the installation of the air­conditioner under s 85 of the SAT Act

23 It is convenient to set out what was said in The Owners of St John's Court No 1 at [39] ­ part of [41].

Section 85 provides that where, pursuant to an application by a proprietor, the Tribunal considers that the strata company has unreasonably refused to consent to a proposal by that proprietor ­

1. to effect alterations to the common property; or
2. to have carried out repairs to any damaged common property or any other property of the strata company,

it may make an order that the strata company consent to the proposal.

As already stated, s 42(8) enables a by­law to be registered, granting a proprietor special privileges which may include the installation of an air­conditioner on common property. It is feasible that the by­law might also grant exclusive use of a particular area of common property for that purpose. As envisaged by the respondents, either s 85 or s 94 may provide a mechanism by which the right to install and maintain an air­conditioner on common property may be granted. It would be necessary to examine the various mechanisms available in order to ensure a consistent application of the legislation. For instance, when regard is had to the manner in which a particular air­conditioning unit is installed, should the installation be properly characterised as an alteration to common property, or is the work involved in altering the common property merely incidental to using the common property to support the equipment? In the former circumstances, an application under s 85 may be required, and in the latter circumstances an application under s 94.

But the applicant contends that s 85 contemplates a prospective operation so that application for consent must be sought before any work is carried out. There is some recent support for that proposition in the decision of Duffy and Owners of Warrawong Strata Plan 7976 [2010] WASAT 113 (Duffy) in which the Tribunal specifically held that an application under s 85 must fail because no proposal was put to the strata company prior to effecting the alterations in question. I should follow that decision unless I conclude that it is clearly wrong in order to maintain the integrity of the decision­making process: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639; Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45. ...

24 In the respondents' last statement of issues, facts and contentions, the respondents refers to a number of prior decisions of the Tribunal concerning the manner in which it is submitted that the Tribunal should approach the process of determining whether or not the strata company has acted unreasonably in refusing to consent to a proposal by a proprietor to effect alterations to common property. Reliance is placed on Letizia and Owners of Fraser Court on Strata Plan 8456 [2009] WASAT 103 (Letizia) to submit that the members of council would have difficulty discharging their duty to represent owners' interests without consulting owners to ascertain where their interests lie. With respect, the Letizia decision does not support that submission, although the opinion is expressed at [27] that if the decision is based on sound judgment, if an opportunity was given for all views to be heard, if the strata company can show that it took proper account of all the facts and if it can be shown that the individual and collective interests were taken into account, the Tribunal will generally be hesitant to impose its views on the strata company. The statement should read as illustrative of the circumstances which are likely to satisfy the Tribunal and certainly does not go so far as to convey an obligation to consult. What is required will depend on the facts of each case. In some instances, the issue may be debated in a general meeting, in others it may not. Sight should not be lost of the right of the council under s 44(1) to perform the functions of the strata company, subject only to the ST Act and any restriction imposed or direction given at a general meeting. Of course, when councillors make a decision, they must do so in accordance with their duty under s 35 of the ST Act to control and manage the common property for the benefit of all the proprietors. While councillors must act in good faith in making that judgment, the Letizia decision should not be read as prescribing the manner in which councillors may inform themselves for the purposes of making decisions. It must also be borne in mind that Letizia did not address the issue of the onus, or the evidential burden on a party to satisfy the Tribunal that the strata company has unreasonably refused to consent to a proposal of the kind referred to in the section. In that case, evidence was given by both parties and it was in that context that reference was made to what the strata company might show.

25 In any event, prior decisions of the Tribunal concerning the manner in which s 85 of the ST Act should be exercised cannot assist the respondents, unless they are able to address satisfactorily the conclusion reached in Duffy and Owners of Warrawong Strata Plan 7976 [2010] WASAT 113 (Duffy) in which the Tribunal held that it could not deal with a retrospective application under s 85 of the ST Act. The respondents have referred in their last statement of issues, facts and contentions to Husic and Biancuzzo [2009] WASAT 192 (Husic) and submit that it is not novel for the Tribunal to consider 'ex post facto' cases under s 85. In context, this must, I think, be understood as submitting that an application can be dealt with under s 85 even if the alterations sought to be carried out, as in this case, were carried out prior to the application being made to the strata company. Husic does not stand for the proposition contended for by the respondents. In Husic an application had been made by the strata company under s 83 [of the ST Act] where an order that the respondent remove alterations which she had made to the common property without the prior approval of the strata company. The respondent had not made any application under s 85 either before or after carrying out the work in question. Although the Tribunal indicated that the respondent could have applied for relief under s 83(1), s 85 or s 94 of the ST Act, it was clearly stated at [28] that s 85 envisages that a proprietor must seek approval from the strata company for the alteration of common property prior to the work being done. The decision in Duffy is entirely consistent with the reasons for decision in Husic.

26 It should, however, be recognised that the criteria under s 85 will usually be relevant to the Tribunal's exercise of a discretion under s 83 when a strata company applies for unauthorised alterations to be removed. Although it may be too late to make an application under s 85, the same factors may be relevant as a basis for determining that the orders sought by the strata company for the removal of the offending works should not be made.

27 In any event, as far as the determination of this issue is concerned, even if the respondents could overcome the retrospectivity issue, contrary to my conclusion above, as I alluded to at [40] of The Owners of St John's Court No 1, it is necessary to make a characterisation of the manner in which a particular air­conditioning unit is to be installed to determine whether it is intended to be dealt with under s 85 as an alteration to common property, or whether the work involved is merely incidental to the use of common property, so that it is necessary either to make an application under s 94 or to have an exclusive use by­law passed under s 42(8). In this case, the alteration to the common property appears to be minimal and on the limited evidence before me, if it were necessary to determine this aspect of the matter, I would hold that s 85 is not available to the respondents so that if any remedy is available to them in the current proceedings, it lies under an application of s 94 of the ST Act.

28 It is apposite to repeat what was said in The Owners of St John's Court No 1 as set out in [43] ­ [49], which is not affected in any way by the respondents last statement of issues, facts and contentions.

(1) Pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal may, subject to this section, order that the applicant, and any occupier or other resident of the lot of which the applicant is the proprietor, may use specified common property in such a manner, for such purposes, and upon such terms and conditions, if any, as are specified in the order.

(2) The State Administrative Tribunal shall not make an order under subsection (1) unless satisfied ­

(a) that the lot of which the applicant is proprietor is incapable of reasonable use and enjoyment by the proprietor, occupier, or other resident of the lot unless the order is made; and

(b) that the strata company has refused to grant a licence to use common property in such a manner, for such purposes, and upon such terms and conditions as would enable that proprietor or such an occupier or other resident reasonably to use and enjoy that lot.

(3) An order under subsection (1), when recorded under section 115, has effect, subject to any order with respect thereto made by a superior court, as if its terms were a by­law.

The respondents made an application by letter dated 13 August 2009 to the council of the applicant 'seeking approval of the installation of the external air­conditioning condenser upon the roof of unit 7G/66 Great Eastern Highway, Rivervale' pursuant to s 85 and s 94. Attached to the letter was a further letter of the same date, setting out in full a motivation for the application.

The application did not propose any particular conditions be applied to the approval which was sought. When that point was taken by the applicant in its statement of issues, facts and contentions, the respondents proposed terms and conditions by way of a facsimile dated 18 November 2009 addressed to the applicant's solicitors. Those terms incorporated that the respondents would be responsible for repair and maintenance of the air­conditioning system and would repair at their cost any damage to the common property on which the unit is situated, caused by and directly attributable to components of the air­conditioning system being located on common property.

Some issue was made about whether or not it was incumbent on the respondents to propose such terms and conditions, or whether they, or other conditions, could have been imposed by the applicant. Nothing turns on that because if the Tribunal considers that it is otherwise appropriate to grant a licence, it would be on such terms and conditions as the Tribunal considers necessary. It is not as if the respondents have refused to accept responsibility for maintenance or any other conditions.

It must be said that the motivation set out by the respondents makes a compelling case for the need for air­conditioning and it is readily apparent that the lot is incapable of reasonable use and enjoyment without air­conditioning. The most significant factors justifying this conclusion are that the applicant changed the roof from asbestos to a metal roof. The respondents' assertion that asbestos is a poor conductor of heat and that metal is a good conductor resulting in greater transmission of heat into the lot has not been disputed. In addition, the applicant took it upon itself to remove a large tree to the west of the respondents' unit, removing shade which would otherwise have been provided during the heat of the afternoon. The lot is west­facing and therefore is exposed to the worst of Perth's summer heat. The temperature inside the unit was recorded as being as high as 54 degrees centigrade during summer. Further, when the roof was replaced, the applicant did not take the opportunity of installing any installation into the ceiling.

The applicant does not dispute any of the above and makes it clear that it would approve the installation of an air­conditioning unit on the verandah of the respondents' lot which has the capacity to cool the whole unit. The respondents already have a smaller air­conditioning unit in this location which, it appears, has been in place for some time.

In 2007, after replacement of the roof and removal of the tree, the respondents' then tenant threatened to vacate because of the excessive heat within the unit. The respondents reacted quickly to this threat by installing a small 1 horsepower air­conditioning unit, the condenser of which was placed on the common property roof. Also attached to the respondents' application to the applicant is a report from an air­conditioning contractor dated 8 August 2009, setting out the reasons why the roof was the only practical location for this second air­conditioner. None of the reasoning advanced in that report is disputed by the applicant. It is accepted that the most practical place for the location of the second air­conditioning condenser is the roof.

29 Based on the above, the conclusion was reached in the earlier decision that it was not possible for the respondents to demonstrate that the lot is incapable of reasonable use and enjoyment, in effect, without evidence addressing whether it was feasible to install an air­conditioning unit on the verandah with sufficient capacity to cool the whole unit.

30 The applicant has stated that no other proprietors have asserted to the strata company that their lot is incapable of reasonable use and enjoyment unless they are allowed to install an air­conditioner on the common property roof. The applicant then asserts that a single standard domestic 3.5 'HP' (presumably horse power) air­conditioner would be sufficient to adequately cool Lot 14. The respondents criticise that the applicant has not cited any expert source for this assertion. They then state that if the applicant is referring to the air­conditioner used by Lot H7, her submission (attached to their earlier statement of issues, facts and contentions), notes her intention to install a second air­conditioner and that therefore it 'would be inappropriate to claim that her current air­conditioner would be sufficient to adequately cool our lot when the owner has stated that it isn't sufficient to cool her lot'.

31 The reference to the submission from the owner of Lot H7 is a reference to the form devised by the respondents which they forwarded to all lot owners. It appears at page 49 of the respondents' bundle of documents filed with their earlier statement of issues, facts and contentions on 2 February 2010. The owner, Ms Kathleen Stewart, supported the respondents' opposition to the applicant's application for removal of the air­conditioning unit. She stated:

I live in 7H and have the same problem. Please feel free to call me about this matter. It is [removed (by the respondents) for privacy]. I have put air­con in with the system on my balcony. It took months to find someone to install the way that the strata wanted. It cost $1,000 to have my $900 split system installed. I ended up getting someone in who was recommended by someone on the strata committee at the time ([Mr] Alan Paed). I total[ly] agree with the heat problem and found it unbearable without the air­con. I am now in the process of wanting to install another one in my second bedroom, so I am interested to see how this goes. Please feel free to call me[,] Bevan.

32 The applicant has included in its bundle of documents, filed on 16 March 2010, the application made by Ms Stewart for the installation of the air­conditioner (document 7). Attached to her application is product information apparently provided by the manufacturer. The application reflects that the air­conditioner is a 3.50 KW wall­mounted split system. There is no reference to the horse power (HP) of the unit.

33 Neither party has provided any evidence to the Tribunal which relates the horse power of an air­conditioning unit to its kilowatt capacity or usage.

34 In the respondents' last statement of issues, facts and contentions, and by way of reply to para 63 and para 67 of the applicant's replying statement of issues, facts and contentions lodged on 16 March 2010, it is stated that the installation of a 3.5 HP air­conditioner is not required and that to install it would require the respondents to decommission and dispose of an operational window wall air­conditioner. Reference is made to the need for the hole created to be glazed. It is then stated that a new circuit needs to be run for all units over one horse power and that the circuit board would need to be upgraded as there are no spare poles. Reference is made to Appendix 2, picture 2 attached to their last statement of issues, facts and contentions. It is further stated that the design of the apartment is such that a multi­head split would need to be used with one head in the main bedroom and one in the lounge, and that an air­conditioner of that size would need to be an inverter as the draw of electricity at start up would excessively tax the unit's 30 plus year-old power supply. It is stated that the skillion roof is at its minimal clearance at the balcony and that the respondents would not be surprised if the ceiling and roof is attached to the joist giving a zero clearance around the balcony area. Consequently, it is said that it would be difficult to pass electrical cable and copper pipe through the roof space considering the clearance and lack of manhole. The respondents say that they were not in a financial position to afford to purchase a larger air­conditioning unit, that it would have been prohibitively expensive and, in the above circumstances, unnecessary.

35 It is necessary to consider the effect of s 94(2) on the obligation of a party to provide evidence to satisfy the requirements of the section. Section 94, unlike s 85, is not dependent on the Tribunal finding that the strata company concerned has acted unreasonably: see The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1. The Tribunal is free to come to an independent decision on whether or not the licence should be granted. It is a broad discretion which may be exercised taking into account all relevant factors, which will obviously include whether or not there is a sensible basis for the strata company's decision, but the exercise of the discretion is subject to two preconditions. By virtue of s 94(2), the Tribunal shall not make an order under s 94(1) (granting a licence) unless satisfied:

1. that the lot of which the applicant is proprietor is incapable of reasonable use and enjoyment by the proprietor, occupier or other resident of the lot unless the order is made; and
2. that the strata company has refused to grant a licence to use the common property in such manner, for such purposes, and upon such terms and conditions as would enable the proprietor or such an occupier or other resident reasonably to use and enjoy that lot.

36 Where a statutory remedy or claim is provided, the allocation of the burden of proof is a matter of express or implied legislative intent: Vines v Djordjevitch [1955] HCA 19; [1955] 91 CLR 512, The Laws of Australia, Thompson Reuters, Vol 16, Chapter 2, para 7. The intent within s 94 is clear. If no evidence is provided addressing whether the lot is incapable of reasonable use and enjoyment, the applicant for the licence (the respondents in this case) must fail because the Tribunal is precluded from granting the order.

37 The question is therefore whether, in each case, sufficient evidence has been provided to the Tribunal to enable it to be satisfied in relation to the two matters set out above. In this case, the evidence clearly establishes that the strata company (applicant) has refused to grant a licence to use common property in the manner sought by the respondents and therefore the resolution of this aspect of the matter turns solely on whether the evidence is sufficient to satisfy the Tribunal that the lot is incapable of reasonable use and enjoyment unless the order sought by its respondents is made.

38 The respondents have provided expert evidence explaining why the installation of a second air­conditioner could be installed only on the roof. The expert evidence does not address why a larger air­conditioning unit could not have been placed on the common property balcony in substitution for the smaller air­conditioning unit currently installed in that location. The respondents have made assertions concerning the difficulty of doing so. One can accept that it will be necessary to replace some of the glazing and that it would involve decommissioning and disposing of the original existing air­conditioner. It cannot be accepted that the circuit is incapable of supplying a larger air­conditioning unit in the absence of expert evidence, nor that it is impracticable to install a larger unit on the balcony, which the applicant has made plain it would approve.

39 In discharge of its obligations to properly manage and control the common property in the interests of all proprietors it is, on the face of it, a legitimate position for the council to have adopted that it did not wish air­conditioning units to be installed on the common property roofs. Although the general governance and attitude of the council to the respondents will be addressed further below in relation to whether the Tribunal should exercise its discretion to order the removal of the air­conditioning unit, the Tribunal is satisfied that the council has consistently endeavoured to keep the roofs clear of unnecessary fixtures subsequent to the installation of the new roof now in place. The applicant's bundle of documents includes sample correspondence with various lot owners reflecting the attempt to limit satellite dishes to the minimum. The only evidence before the Tribunal of any air­conditioning unit on the roofs is that which is the subject of these proceedings, namely, that the only air-conditioner condenser on the roofs is that installed by the respondents.

40 Once it is established that the council is concerned about allowing the installation of air­conditioning units on the roofs it became appropriate for the strata company and essential for the Tribunal to be satisfied that there was no other alternative other than an installation of an air­conditioning unit on the roof. The respondents have been to a great deal of trouble in opposing the application for removal of the air­conditioning unit and in seeking an appropriate order from the Tribunal permitting it to remain. It is surprising, in those circumstances, that they have not gone to the additional effort of obtaining a report from an appropriate expert establishing that it would not be feasible for a single air­conditioning unit to be installed which is capable of cooling the entire lot.

41 In the absence of such evidence, the Tribunal cannot be satisfied that, unless a licence is granted permitting the air-conditioning unit to remain on the roof, the lot is incapable of reasonable use and enjoyment, and no order to that effect can be made.

42 It is again apposite to insert part of the reasoning on this issue set out in The Owners of St John's Court No 1 from [52] ­ [58], because to that extent the respondents' last statement of issues, facts and contentions does not affect those conclusions.

The applicant's case is simple, that the respondents needed the consent of the applicant in order to install an air­conditioning unit upon the common property roof, and they did not seek that approval until after commencement of these proceedings by the applicant.

The applicant contends that it has adopted a consistent policy of not allowing unnecessary installations on the roof in order to enhance the aesthetics of the parcel. That approach has been taken since the replacement of the asbestos roof by a metal roof. Further, there is no other air­conditioning unit installed on the roof and if the respondents are permitted to retain the air­conditioner as installed, it will set a precedent because some of the owners may wish to follow suit.

The Tribunal has a discretion whether or not to settle a dispute of this nature by making an order for the removal of the air­conditioner pursuant to s 83 of the SAT Act.

In the exercise of that discretion, the Tribunal should be slow to interfere with the management decisions of a strata company but it will intervene where the strata company acts unreasonably: The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1 at [58] and following. Although the commentary is there concerned with the refusal of consent to a proposal, the subject of a s 85 application, it applies equally to other aspects of decision­making by a strata company.

In this case, the respondents contend that the strata council is not representative of the owners and that the issue has never been taken to a general meeting of the applicant. It is contended that it is a common practice in both commercial and residential buildings for air­conditioning units to be installed on roofs. That may be so, but it is a matter for the strata company acting within its powers, to decide on the degree of uniformity in the external appearance of the development, either in total or in particular respects: see Harold & Gladys Verryt and Ann Williams [2005] WASAT 101; Crockett & Anor and Munroe & Anor [2006] WASAT 382.

The initial proceedings were specifically adjourned to enable the respondents to seek support of other owners and, if need be, to requisition an EGM of the strata company. The respondents were unsuccessful in gathering the support of 25% of members to enable that course to be followed. Nevertheless, a standard form was devised by the respondents and sent to all owners. Lot owners were asked to respond to a number of questions relating to the use of strata levies to cover the cost of the proceedings and any possible appeal. The most pertinent question to these proceedings was one seeking the owner to state that he or she did not authorise the strata company to proceed with the application before the Tribunal. Sufficient support in relation to that question would have reflected that owners were not concerned about air­conditioners being installed on the common property roof. The respondent received only 28 responses from the 150 lot owners. Only nine of those responses indicated that the owners did not authorise the strata company to proceed with the application.

The council members are democratically elected. Section 44 empowers the council to perform all the functions of the strata company, subject to the provisions of the ST Act and any restriction imposed or direction given at a general meeting, and, of course, under s 35(1)(b), the strata company is charged with the control and management of the common property for the benefit of all of the proprietors.

43 It should, however, be noted that in the last sentence of [56] it should have stated that only 19 of the responses indicated the owners did not authorise the strata company to proceed with the application.

44 As indicated above, the respondents have raised issues concerning the governance of the strata company. To the extent that the respondents can demonstrate that the applicant has not acted consistently in relation to its application for approval of the air­conditioning unit remaining in place, or has in some other way acted improperly in dealing with that matter, there may be a basis for refusing to make an order for the removal of the air­conditioning unit.

45 In the respondent's earlier statement of issues, facts and contentions, the respondents recounted that their tenants had requested blinds be installed on the balcony. Reference was made to an application to the application for permission to install the blinds which was refused without any reason being given. A second application was made to which the respondents received no response. At that point, the facts stated appeared to be relevant only to demonstrate the need for the unit to be air­conditioned. However, in the last statement of issues, facts and contentions filed by the respondents, they outlined that the company which employs Mr Clark had a business relationship with a chemical supply company by which the chairman of the strata council is employed. Following an injury to an employee related to the weight of chemical packages, the particular chemical supply contract was not renewed. This was based in part because an alternative supplier could provide smaller packages. The submission is made by the respondents that this may be a factor influencing the actions of the chairman of the strata council.

46 Appendix 2 to the last filed statement of issues, facts and contentions consists of a number of photographs, which included photographs of various blinds as they then existed within the strata complex. The notations to the photographs contain comments reflecting that the respondents are of the view that the applicant is not applying a fair and consistent approach and that they feel discriminated against. Certainly, the photographs reflect that there is a range of different blinds which are in use. It is therefore somewhat mystifying as to why the respondents' application to install blinds was rejected. It should be noted that the applicant asserts that the respondents were informed that the blind application was refused because of its impact on the amenity of the Scheme. No particulars of how that advice was communicated are given. There is no documentary evidence to support the assertion.

47 On the other hand, the applicant's bundle of documents does include samples of correspondence with various owners requiring the removal of blinds installed without the permission of the applicant. The chairman is an employee of the company concerned, being described by the respondents as the state manager. It is therefore unlikely that he has any personal interest or suffered any personal loss as a result of the business decision made by Mr Clark's employer. This of course does not remove the possibility of bias but it is a tenuous basis on which to form a belief the chairman, and importantly the council, have made decisions based on an ulterior motive as some sort of pay back for the loss of business suffered by the chairman's company. I bear in mind that it is stated by the respondents that a somewhat heated discussion occurred when the respondents met with the council in order to discuss their proposals to allow the air­conditioning unit to remain. The applicant denies that the chairman was aggressive. Even if the discussion was heated, there could be many reasons for that, and councillors may well have been frustrated by the respondents' persistence in opposing removal of the air­conditioning unit in circumstances in which they believed it should be removed. It is noted that the respondents did not call on the chairman to recuse himself from any of these meetings. Allegations which impugn the propriety of an individual should not be lightly made, and no positive finding adverse to the chairman can be made, because it would be wrong to do so on the inexact and speculative evidence put before the Tribunal: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

48 The respondents have demonstrated that there is a variety of ways in which air­conditioning units have been installed within the strata development. There is, however, evidence that the council has endeavoured to adopt a consistent approach. An attempt has been made to prepare strata rules governing the installation of air­conditioners (applicant's documents filed 16 March 2010 document 15 pages 63 and 64). Those rules reflect that all compressor units must be mounted on the floor within the confines of a balcony. All piping must be mounted on the walls within the confines of the balcony. Piping and compressors must not be mounted on any common wall, when installed on a first or second level balcony, and the compressor unit must not be visible from outside the unit. Compressor units should not be mounted on the window, unless it is out of sight, below the balcony wall. Compressors that are visible must be a soft cream or wheat colour. Sample photographs attached endeavour to illustrate what is intended.

49 The respondents have provided photographic evidence showing that there are a number of lots which have air­conditioners which are clearly visible from outside each lot. It is common cause that the applicant has not required any of these installations to be removed. The applicant says that some of the air­conditioners were installed prior to registration of the strata plan. The applicant asserts that those air­conditioners have been allowed to remain on common property and in accordance with exclusive use rights granted by Sch 1, by­law 20. There is some doubt as to the validity of those by­laws: see the discussion in The Owners of St John's Court No 1 at [31] and following.

50 Otherwise, in relation to most of the other air­conditioners identified by the respondents, the applicant states that the air­conditioners have been located within the exclusive use areas of the common property balconies and court yards. It is evident that the applicant took steps to require the owner of Unit C4 to remove an air­conditioner which had not been installed on the ground floor verandah as approved by the applicant. The unit had been installed on the external wall which forms part of the common property. By letter dated 5 February 2009 (applicant's document 13) the lot owner was required to move the air­conditioning unit so that it was to be installed off the ground on the wall within the verandah area.

51 The applicant points out that although the air­conditioning unit (the condenser) has been moved it has not been relocated to within the verandah area. That contention seems to be supported by the photographs included within the applicant's documents (document 13 pages 58 ­ 60).

52 In the absence of any further response from the applicant, it appears that while an attempt was made to enforce compliance with the terms of approval of the air­conditioning unit, that effort has not been carried through. This, the respondents contend, reflects an inconsistency in the approach towards the installation of air­conditioning units on common property. To a degree, the respondents are correct. However, it is evident that there is a variety of ways in which air­conditioning units have been installed on the external façade of the building. The applicant contends this is explicable by reason that air­conditioning units were installed prior to registration of the strata plan and have been replaced pursuant to the Sch 1 by­law 20, to which reference has been made. Consequently, the positioning of air­conditioning units appears somewhat haphazard in relation to the vertical faces of the building.

53 In any event, the situation with the air-conditioning installed at Unit C4 does not detract from the applicant's basic position that it has endeavoured to avoid the proliferation of fixtures upon the new roof and that there are no other air­conditioning units installed on the roofs.

54 The respondents have brought this situation upon themselves by not making application to the council of the strata company before installing the air­conditioning unit. I am satisfied that the applicant has in recent years endeavoured to approach applications for the installation of air­conditioning units in a consistent manner. If the respondents were permitted to retain the air­conditioning unit in its current position on the roof it would not assist any attempt to improve the governance of the strata company and it would make it difficult to refuse applications for similar installations. It may be that a good case can be made out that similar installations are necessary in order to achieve an adequate level of air­conditioning for the top floor units but that can only be established through acceptable evidence that a single air­conditioning unit located on the balcony of the respective units is incapable of providing an adequate cooling of the lots in question. It is unfortunate that the respondents did not avail themselves of the opportunity, raised at the directions hearing on 20 September 2010, to procure expert evidence on this issue.

55 I conclude that the applicant is entitled to, and should be granted, orders for the removal of the air­conditioning condenser and that the respondents make good any damage occasioned by that removal. The precise terms of the orders sought are set out in a minute of revised orders filed on behalf of the applicant on 16 December 2009. The orders there set out with one exception, are consistent with those originally expressed in the application. The orders sought include an order that if the respondents failed to comply with the order for removal, it be declared that the strata company may carry out the work pursuant to s 38(3) of the ST Act. That aspect of the matter and the order sought by the applicant pursuant to s 95 of the SAT Act were dealt with in The Owners of St John's Court No 1 and it is appropriate to adopt what was there said in [60] ­ [62] as set out below.

A declaration that the strata company is entitled to carry out the work is not necessary because s 38(3) expressly permits the strata company to carry out the work where a proprietor, relevantly, fails to comply with an order of the Tribunal. The ST Act grants no express power to make a declaration and under s 91 of the SAT Act, only a judicial member is empowered to make a declaration. If it were necessary to grant a declaration in order for the relief sought to be effective, the Tribunal could be reconstituted for that purpose. But the applicant's rights are not advanced by the declaration, given the statutory entitlement for it to carry out the work in the stated circumstances. Where it does so, s 38(4) of the ST Act permits the strata company to recover the cost of so doing as a debt in a court of competent jurisdiction.

The one order sought in the minute of revised orders that was not previously claimed is an order pursuant to s 95 of the SAT Act to the effect that the section applies. The effect of such an order is that a person who fails to comply with a decision of the Tribunal commits an offence for which a penalty of $10,000 may be imposed. Section 95 can, however, also be made applicable without an order issuing at this stage that it applies to the decision if, after a person fails to comply with the decision, the Tribunal then makes an order to the effect that s 95(1) applies and the failure continues after notice of that order is served.

The practice of the Tribunal is only to make an order declaring that s 95(1) applies to the decision at the time when it is made in circumstances where it appears likely that the person concerned will not comply with the order. Usually that is because of a prior history indicating that likelihood, such as a consistent failure or refusal to comply with a clear obligation often accompanied by a reluctance to participate in any meaningful way in the proceedings before the Tribunal. This is not such a case. The respondents have a genuine and heartfelt grievance with the manner in which the strata company is being managed. Apart from the initial letter already referred to in February 2007, requiring removal of the air­conditioning, there was no follow­up until these proceedings were commenced. The respondents have acted in a responsible way in opposing the application for removal and in advancing their own counter­application to enable the air­conditioning unit to remain in place. An order declaring s 95(1) to apply is not warranted on the evidence before the Tribunal.

Orders relating to performance of maintenance obligations

56 The respondents seek an enforceable undertaking that the applicant rectify, in a timely manner, the issues titled Damp, Brick­Work, Ceiling Failure, Locked Service Area, Trip Hazard, Landing Nosing, Going Nosing identified in an email titled 'Re: Meeting 9.30 Friday 7G/66 Great Eastern Highway, RIVERVALE.' In addition, a similar undertaking is sought in relation to the rectification of damage said to be caused by the damp within 20 working days.

57 In relation to the damp it is not disputed by the respondents that the applicant has obtained a report which indicates that the source of the damp has been eliminated. The applicant complains in the latest statement of issues, facts and contentions that they have been left with a damaged wall for the last nine months and the strata manager has not authorised the plasterer and painter to rectify the damage. The respondents indicate that they would be happy to organise the trades people but require the strata manager to authorise the expenditure or to lodge an insurance claim. A plumbing report provided by the applicant dated 30 November 2009 reveals that the plumbing to a 'common laundry' adjoining the bedroom of the respondents' lot had been disconnected and that although there was evidence of water damage to the bedroom wall, it was totally dry at the time of inspection. The conclusion was expressed that, at some stage, water leakage had occurred from the common laundry. Whatever maintenance was required to be performed by the strata company has been carried out. The true characterisation of the respondents' claim is one for damages as a result of an apparent failure to maintain the plumbing to the adjoining laundry. There is no obligation on the strata company to carry out work within the lot. If the applicant is not willing to arrange and bear the costs for remedial work to the wall of the bedroom, which may only involve preparation and painting, the respondents may consider carrying out the work and commencing proceedings in a court of competent jurisdiction, or before this Tribunal, bearing in mind the limited jurisdiction the Tribunal has to make an order for payment of money under s 84.

58 Similarly, in relation to the brick work, an engineer engaged by the applicant has reported that the common property wall adjacent to Lot 14 is structurally adequate and there was nothing requiring immediate work. The respondents appear to be satisfied about this issue.

59 In relation to the ceiling complaint, the applicant contended that the respondents had not allowed access to Lot 14 for the purposes of inspecting the alleged ceiling problem and reference is made to a report obtained from a contractor engaged by it, Reva Commercial. The email reflects in somewhat vague terms that the manager, Mr Castledine, had called the owner several times, although it is then indicated, he could not get through initially and believed that he 'got the owner twice later'. The respondents have been precise in their outlining of what occurred and that reference is only to one telephone discussion at 5 pm on a Friday afternoon. It is apparent that the contractor assumed he could gain access at short notice and had little regard for the rights of the tenants. The contractor was not prepared to make a specific appointment.

60 This, not withstanding, there is no evidence before the Tribunal that the ceiling is damaged. The respondents request was initially merely to have the ceiling examined. There is not even a description in the relevant email of what has caused the respondents to be concerned. In these circumstances, it is not appropriate to consider granting the respondents any form of relief. The respondents need to provide the applicant with some description or photographs indicating some basis for a belief that the ceiling may be failing. Once they have done so, the strata company will be under a duty to inspect and carry out any necessary repairs. In order to do that, the applicant, or its contractors, must make arrangements on reasonable notice for that inspection to occur. If the applicant then fails to fulfil its obligations, that is a matter which can be the subject of further application to the Tribunal.

61 The respondents have provided some further information and photographs relating to the alleged trip hazard, the landing nosing and going nosing. Appendix 2, photograph 17 is understood to be a photograph of the single unmarked step said to constitute a trip hazard. The photograph shown in Appendix 2, photograph 18 is understood to be reference to the missing anti­slip stair nosing on the landing of both stairs to G block. There does not appear to be a photograph showing the going nosing on the stairs between F block and G block. Opinions might differ in relation to whether the single stair constitutes a trip hazard. There is no report from any expert, and Mr Clark, who provided the above information, stresses that he does not provide advice outside of his work capacity which is as a safety, health and risk manager, but that a professional would recognise the defects in the stairs immediately and would be the appropriate person to provide advice. In the contentions of the last statement of issues, facts and contentions, the respondents submit that an order should be made that the stairs be assessed by a qualified person and that rectification works be completed in a timely fashion. This is yet a further shift in the orders sought which reflect that an enforceable undertaking be furnished as outlined above. In the contentions, the respondents now also request an order for the reinstatement of the anti­slip landing nosing.

62 It is patently obvious from photograph 18 that repair is needed to the landing nosing as contended by the respondents.

63 In the respondents' latest statement of issues, facts and contentions nothing is added in relation to the complaint concerning the lot service area. The complaint in relation to that matter, as set out in the email dated 30 September 2009, concludes with a query as to whether the lock as been removed. There is nothing to indicate that the issue remains an ongoing one.

64 It has been submitted for the applicant that the Tribunal does not have jurisdiction to make the orders sought for the provision of an enforceable undertaking requiring work to be carried out. Under s 81 of the ST Act, the Tribunal may make an order in terms which differ from the orders sought, so long as it does not differ in substance from the order sought. The seeking of an undertaking as opposed to an order for work to be carried out is clearly different in substance. However, if it were appropriate, the respondents would be provided with an opportunity to amend the application. The applicant may wish to oppose that application. The only matter in relation to which it might be appropriate to make an order is that relating to the landing nosing. It is, however, such an isolated issue, that given the history of the matter and general concerns raised about the maintenance of the strata scheme, it is not considered appropriate to follow that course. The maintenance complaints raised by the respondents are all relatively minor and the applicant contends that a maintenance program is in place to deal with repairs and maintenance in an orderly fashion. The fact that the respondents' complaint in relation to the landing nosing, which does raise an obvious safety issue, was made on 30 September 2009 and has apparently not been addressed raises some doubt about the effectiveness of any such program. The respondents attached as an appendix to their latest statement of issues, facts and contentions a letter from Mr C Tan, the owner of Lot 16, which raises a number of maintenance issues, although of a minor nature.

65 If there are genuine concerns about the standard of maintenance of the strata development that is a matter which should be raised by concerned owners at a general meeting of the strata company and notice should be given of proposed resolutions to ensure that an appropriate program is in place and is properly implemented. The Tribunal might well be expected to intervene when it can be demonstrated with appropriate evidence that a strata company is not discharging its maintenance responsibilities.

66 In the above circumstances, the Tribunal declines to grant any relief in relation to the above issues.

67 There is nothing contained in the applicant's latest statement of issues, facts and contentions which affects in any way what was stated in The Owners of St John's Court No 1 in relation to the respondents application for an order for costs and [68] ­ [71] of that decision are accordingly repeated below.

The respondents have sought an order for the recovery of costs. The costs claimed are not specified. Reliance has been placed on s 81(7)(a) and s 81(11) of the ST Act and s 87(3), s 87(6) and s 88(3) of the SAT Act.

The respondents' application for costs is misconceived. By virtue of s 5 of the SAT Act, in the event of any inconsistency between it and the enabling legislation under which the Tribunal exercises jurisdiction, the provisions of the enabling Act apply. Accordingly, none of the cost provisions of the SAT Act have any application in the face of s 81(7) of the ST Act which provides that the Tribunal cannot make an order for the payment of costs in connection with an application except in two particular circumstances. The second of these clearly has no application as it applies where an order is sought for a variation of unit entitlements which is unreasonably opposed. The first exception could potentially apply, as it operates when an applicant is allowed to amend the application, to compensate persons for time unnecessarily spent in connection with the application.

The applicant has made no substantive amendment to the application. At one of the earlier directions hearings on 13 August 2009, the Tribunal noted in its order made on that day that the application was amended to reflect that the applicant relies on s 83. That amendment was necessary because the application had originally been brought under s 103G(1) which relates to unauthorised work carried out to a lot, rather than to common property as in this case. That did not in any way change the substance of the case and could not possibly have resulted in any wasted costs.

The Tribunal declines to make any costs orders in favour of the respondents.

68 Through no fault of the respondents this decision is being published at a time when Perth usually faces its hottest weather. The applicant will suffer no prejudice in the event that the Tribunal's order provides an extended period for the removal of the air­conditioner. Consequently, the order will provide for the air­conditioning unit to be removed on or before 30 April 2011.

69 If the respondents had provided acceptable evidence that it would not be possible to air­condition their lot in a satisfactory manner by using a larger single air­conditioning unit located on the common property balcony in substitution for the two units currently in use, the Tribunal would have granted the respondents a licence under s 94 subject to suitable conditions in relation to maintenance and the provision of an indemnity. It would be an exercise in futility for the applicant to require the respondents to remove the air­conditioning unit if that evidence can now be obtained but that is a matter entirely for the applicant. Unless the applicant waives compliance with the Tribunal's order, the respondents are bound to comply with it. On the other hand, if the respondents remove the air­conditioning unit and then make a fresh application to the applicant, based on such new evidence, for a licence to install the air­conditioning unit on the roof, any adverse decision by the applicant will be capable of review by the Tribunal. Obviously if such evidence is not available, the requirements of s 94 cannot be satisfied in circumstances in which the applicant is prepared to grant permission for the installation of a larger single air­conditioning unit to be installed on the balcony.

70 For the above reasons, the Tribunal will issue an order as follows:

1. In respect of matter CC 1036 of 2009:
   1. On or before 30 April 2011, Bevan Clark and Marija Clark, as proprietors of Lot 14, must remove the air­conditioner mounted on the common property roof and all associated cabling and ducting and make good all the common property affected by such removal, at their cost.
   2. The application is otherwise dismissed.
2. In respect of matter CC 1672 of 2009:
   1. The application is dismissed.

I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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