BORIS and THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414 - [2020] WASAT 124

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   BORIS and THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414 [2020] WASAT 124
MEMBER:   MS D QUINLAN, MEMBER
HEARD:   25 AUGUST 2020
FURTHER SUBMISSIONS 1 OCTOBER 2020

DELIVERED          :   15 OCTOBER 2020
FILE NO/S:   CC 1579 of 2019
BETWEEN:   PATRICIA VIOLET BORIS
Applicant
AND
THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414
First Respondent
RODNEY RAYMOND LANE
Second Respondent
MARGARET ELIZABETH LANE
Third Respondent
BRIAN ROBERTS
Fourth Respondent
FRANCES MARGARET BRAND
Fifth Respondent
ALEXANDER WRIGHT
Sixth Respondent
SIOBHAN WRIGHT
Seventh Respondent
JOHN RODRICK MCDONALD
Eighth Respondent
JOHN PAUL ZADNIK
Ninth Respondent
NEIL SYDNEY PURSLOWE
Tenth Respondent
PAMELA ANNE PURSLOWE
Eleventh Respondent
WILLIAM STANLEY YEAMAN
Twelfth Respondent
JOCELYN KENNEDY YEAMAN
Thirteenth Respondent
ANNAMARIA SCAFFETTA
Fourteenth Respondent
JOHN QUINLIVAN
Fifteenth Respondent

Catchwords:

Strata Titles Act (as it was prior to 1 May 2020) - Residential strata scheme - Installation of retractable pergola on balcony - Erecting a structure on a lot - Structural alteration - Whether part of proposal constitutes an alteration to common property - Visible from outside the lot - Whether proposal not in keeping with rest of development - Whether approval should have been given to proposal - Whether strata company unreasonably withheld approval of proposal

Legislation:

Strata Titles Amendment Act 2018 (WA)
Strata Act 1985 (WA) (from 1 May 2020), Sch 5, cl 30
Strata Titles (General) Regulations 2019 (WA)
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 3, s 3C(1)(b), s 7, s 7(2), s 7(5), s 7(5)(b), s 7(5)(c), s 7B, s 7B(1)
Strata Titles General Regulations 1996 (WA), reg 31, reg 34, reg 34(1)

Result:

Proposal approved

Category: B

Representation:

Counsel:

Applicant	:	Mr J Park and Ms A Beckwith
First Respondent	:	No appearance
Second Respondent	:	In Person
Third Respondent	:	In Person
Fourth Respondent	:	In Person
Fifth Respondent	:	No appearance
Sixth Respondent	:	In Person
Seventh Respondent	:	In Person
Eighth Respondent	:	In Person
Ninth Respondent	:	In Person
Tenth Respondent	:	No appearance
Eleventh Respondent	:	No appearance
Twelfth Respondent	:	In Person
Thirteenth Respondent	:	No appearance
Fourteenth Respondent	:	No appearance
Fifteenth Respondent	:	No appearance

Solicitors:

Applicant	:	Kott Gunning
First Respondent	:	N/A
Second Respondent	:	N/A
Third Respondent	:	N/A
Fourth Respondent	:	N/A
Fifth Respondent	:	N/A
Sixth Respondent	:	N/A
Seventh Respondent	:	N/A
Eighth Respondent	:	N/A
Ninth Respondent	:	N/A
Tenth Respondent	:	N/A
Eleventh Respondent	:	N/A
Twelfth Respondent	:	N/A
Thirteenth Respondent	:	N/A
Fourteenth Respondent	:	N/A
Fifteenth Respondent	:	N/A

Case(s) referred to in decision(s):

Boris and The Owners of Observation Rise Strata Plan 24414 [2019] WASAT 112
Paterson and The Owners of 27 Purdom Road Wembley Downs Survey-Strata Plan 30555 [2019] WASAT 40
The Owners of Arbor North Strata Plan 67510 and Sun [2020] WASAT 28
Wholley and The Owners of Vivian's Corner Strata Plan 45979 [2020] WASAT 69

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 15 October 2019, the owner of Lot 146 located at 183 West Coast Highway, Scarborough (applicant) brought proceedings in the Tribunal pursuant to s 103F(1) of the Strata Titles Act 1985 (WA) (ST Act).
On 1 May 2020, significant amendments were made to the ST Act with the commencement of Part 2 of the Strata Titles Amendment Act 2018 (WA) (Amending Act) and the Strata Titles (General) Regulations 2019 (WA). Relevant to these proceedings, s 85 of the ST Act (prior to 1 May 2020) was repealed. However, the transitional provisions in cl 30 of Sch 5 of the ST Act (from 1 May 2020) provide that proceedings commenced before 1 May 2020 must be dealt with as if the Amending Act had not been enacted. Therefore, for the purpose of determining these proceedings, the ST Act applies in the form it existed when the application was lodged with the Tribunal on 12 October 2019.
The first respondent is The Owners of Observation Rise Strata Plan 24414 (strata company). On 20 December 2019, the Tribunal joined the second to fifteenth respondents to the proceedings (as amended by the inclusion of Mr Brian Roberts on 24 January 2020). As noted by the Tribunal in order 10 of its orders made on 20 December 2019, the strata company has elected to be neutral and not to participate in these proceedings.
The dispute which gives rise to these proceedings, relates to a proposal by the applicant to install a retractable pergola with other associated work on the balcony of Lot 146 (the proposal). On 26 August 2019 the strata company conducted its annual general meeting (AGM) where it considered the proposal. The proposal can only be approved by the strata company by a resolution without dissent. Under s 7(2) of the ST Act, the proposal was not approved as there was dissent from the proprietors of five lots, some of whom are respondents in these proceedings.
The second to fifteenth respondents strongly object to the proposal as they consider it will be visible from outside Lot 146 and is not in keeping with the rest of the development at Observation Rise.
At the final hearing of these proceedings, six of the respondents failed to attend (Ms Brand, Mr and Mrs Purslowe, Mrs Yeaman, Ms Scafefetta and Mr Quinlivan). However, all of those respondents had provided joint submissions and evidence with other respondents who were in attendance at the final hearing. The Tribunal determined it would proceed with the final hearing in their absence and take into account their joint submissions and evidence.
In closing submissions on 25 August 2020, in the alternative to the primary position of the applicant that the proposal does not involve an alteration to common property, counsel for the applicant made an oral application to amend the application lodged with the Tribunal on 15 October 2019 to include additional or ancillary approval being sought under s 85 of the ST Act. The Tribunal reserved its decision regarding the application to amend. On 28 August 2020, the Tribunal allowed the application to amend to include s 85 of the ST Act and made the following orders:
1.Upon oral application from the applicant made during the final hearing, relevant to whether the Tribunal makes an ultimate finding that the proposal includes affixing to the fascia is an alteration to the common property, the Tribunal orders that the applicant is granted leave to amend her application to include an application under s 85 of the Strata Titles Act 1985 (WA) (as it was prior to 1 May 2020).
2.The respondents have until 2 October 2020 to file any submissions or evidence in support of their case as to whether the Tribunal (if it finds that the affixing to the fascia is an alteration to common property) should find that the strata company has unreasonably refused to consent to that part of the proposal under s 85 of the Strata Titles Act 1985 (WA) (as it was prior to 1 May 2020).
3.The decision of the Tribunal will be reserved after 2 October 2020.

Exhibits in these proceedings

Following the conclusion of the hearing, on 26 and 27 August 2020 the Tribunal received three emails (the August emails) from Mr Yeaman. The August emails attach photographs (marked up presumably by Mr Yeaman) and provide further explanatory evidence from Mr Yeaman. The August emails were copied to some of the other respondents but not to the applicant. The applicant did not have the opportunity to respond to this further evidence by way of producing further evidence or submissions or crossexamine Mr Yeaman. The Tribunal will not be taking the August emails and photographs into account in this decision and they have not been marked as exhibits.
On 27 and 29 September 2020 the Tribunal received a further two emails from Mr Yeaman (the September emails) which were not copied to any other party in the proceeding. The September emails include further photographic and explanatory evidence from Mr Yeaman. The applicant did not have the opportunity to respond to this further evidence by way of producing further evidence or submissions or crossexamine Mr Yeaman. Further, the Tribunal's orders made on 28 August 2020 only permitted the respondents to provide further evidence or submissions regarding the issue identified under s 85 of the ST Act. The September emails did not address that issue. Therefore, the Tribunal will not be taking the September emails into account in this decision and they have not been marked as exhibits.
On 1 October 2020, Mr Roberts provided a further joint submission also on behalf of Mr Zadnik, Ms Brand, Mr and Mrs Yeaman, Mr and Mrs Wright, Ms Scafetta and Mr Quinlivan. This joint submission was provided as permitted by the Tribunal in its orders on 28 August 2020 and will be marked as an exhibit in these proceedings.
The following documents were marked as exhibits in these proceedings:
a)Exhibit 1 – applicant's bundle of documents dated 19 May 2020.
b)Exhibit 2 – submissions and evidence provided on 20 July 2020 by Mr Rodney Lane, the second respondent, on behalf of the third, eighth, tenth and eleventh respondents.
c)Exhibit 3 – submissions and evidence provided on 19 July 2020 by Mr Brian Roberts, the fourth respondent, on behalf of the fifth, ninth and twelfth to fifteenth (inclusive) respondents.
d)Exhibit 4 – submissions and evidence provided on 3 July 2020 by Mrs Siobhan Wright and Mr Alexander Wright, the sixth and seventh respondents.
e)Exhibit 5 – four photographs labelled 1(a) and 1(b), 2(a) and 2(b) provided at hearing by Mr Yeaman, the twelfth respondent.
f)Exhibit 6 – copy of Mr Yeaman's photographs 2(a) and 2(b) as sketched on Mr Phil Faigen in photograph 2(a).
g)Exhibit 7 – further submissions provided on 1 October 2020 by Mr Roberts, Mr Zadnik, Ms Brand, Mr and Mrs Yeaman, Mr and Mrs Wright, Ms Scafetta and Mr Quinlivan.

The strata scheme

Strata Plan 24414, otherwise known as Observation Rise, is a residential strata plan comprising 157 lots and common property and is located at 183 West Coast Highway, Scarborough in the State of Western Australia (strata plan).
The by-laws of the strata company are comprised of the statutory Schedule 1 and Schedule 2 By-laws as repealed, amended and added to by eight notifications registered on the Strata Plan (By-laws).

The proposal

The proposal is detailed in the application for approval made to the strata company and, in particular, the illustrations included in the expert report prepared by Mr Faigen. The proposal can be detailed further as follows:
a)installation of a structure on Lot 146, namely a retractable pergola which automatically retracts once wind speeds reach 48 kilometres per hour;
b)the pergola will be covered with a UV resistant and fire retardant fabric in a colour closely matching the shade fabrics already installed throughout the strata plan;
c)the northeast post will be anchored to engineer's specifications to the reinforced concrete wall forming the eastern boundary within Lot 146, the northwest post will be attached to one of the planter boxes and the southern pergola beam will be attached to the existing fascia; and
d)the structure will not be attached to, penetrate or interfere with the balcony tiles, waterproof membrane or the hollow core balcony floor but will only attach to the exposed vertical surface of the concrete wall forming the eastern boundary within Lot 146.
The proposal is illustrated in the drawings prepared by architect Mr Faigen and are attached to these reasons as Annexure A (see pages 229 to 232 of Exhibit 1).
In accordance with the Tribunal's finding later in these reasons as to whether the fascia forms part of the common property or part of Lot 146, the part of the proposal that relates to s 85 of the ST Act is the affixing of the pergola to the fascia.
The remaining part of the proposal relates to s 103F, as set out in s 7, of the ST Act as it constitutes the erection of a structure or any alteration of a structural kind, or extension of a structure occurring within Lot 146.

Previous Tribunal decision Boris No. 1

On 15 November 2019, Boris and The Owners of Observation Rise Strata Plan 24414 [2019] WASAT 112 (Boris No. 1) was determined by the Tribunal (differently constituted from these proceedings).
Boris No. 1 raised similar issues to these proceedings in relation to a proposal for a pergola on Lot 146. However that proposal was different to the present proposal before the Tribunal. Boris No. 1 informs the present Tribunal as to the relevant law to be applied under s 7 and s 103F of the ST Act and the relevant history to these proceedings. However, Boris No. 1 is a decision of the Tribunal in relation to a different proposal. Therefore, the Tribunal in these proceedings must assess the proposal under the ST Act with Boris No. 1 having no influence on the determination of the issues arising in these proceedings.

Statutory scheme

Section 103F of the ST Act provides that a proprietor may apply to the Tribunal for an order for a deemed approval to allow the erection of a structure or any structural alterations where the Tribunal is satisfied that the strata company should have given approval under s 7 or s 7A of the ST Act but has been unreasonably withheld. The power vested in the Tribunal under s 103F of the ST Act is also discretionary.
Section 103F of the ST Act relevantly provides:
103F.Order dispensing with approval under s. 7(2) or 7A(2)
(1)A proprietor of a lot who has applied for but not obtained an approval under section 7B may apply to the State Administrative Tribunal for an order under this section.
(2)An order under this section is an order declaring that the approval required under section 7 or 7A, as the case may be, is to be deemed to have been given by the proprietor or the strata company.
(3)On the making of an application under subsection (1), the State Administrative Tribunal may make an order under this section if satisfied that the approval
(a)should have been given under section 7 or 7A, as the case may be; but
(b)has been unreasonably withheld,
by the proprietor or the strata company[.]
Relevant to these proceedings, s 7(5) of the ST Act provides:
(5)The grounds on which approval may be refused are
(a)that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot ascertained in accordance with section 7A(3); or
(b)in the case of a lot that is not a vacant lot, that the carrying out of the proposal
(i)will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or
(ii)may affect the structural soundness of a building; or
(iii)may interfere with any easement created by section 11 or 12;
or
(c)any other ground that is prescribed.
Regulation 31 of the Strata Titles General Regulations 1996 (WA) (ST Regulations) provides that a prescribed ground for the purposes of s 7(5)(c) of the ST Act is that the carrying out of the proposal will contravene a specified by-law/s of the strata company.
Regulation 34 of the ST Regulations provides for the prescribed information for the purposes of s 7B(1) of the ST Act that the lot proprietor must serve of the strata company as part of an application under s 7 of the ST Act.
This Tribunal agrees with the process of reasoning set out in Boris No. 1 in determining applications under s 103F of the ST Act as follows:
28The process of reasoning to be adopted in such an applications is identified in Tipene and The Owners of Strata Plan 9465 [2016] WASAT 101 (Tipene) at [54] - [56]:
54The starting point in deciding whether approval should have been given under s 7 of the ST Act is to consider whether the Proposal falls within s 7(2). If the Proposal does not fall within s 7(2) then approval cannot be given to the Proposal under s 7 and the application for an order under s 103F must fail because the requirement of s 103F(3)(a) cannot be satisfied.
55If the Proposal falls within s 7(2) of the ST Act, then the next step is to consider whether the Approval Application complies with the requirements of s 7B(1). If the Approval Application does not comply with s 7B(1) then the application under s 103F must fail because s 7B(1) provides that the Approval Application shall set out details of the proposal and the prescribed information, which indicates that it is mandatory for those details and information to be provided.
56If the Approval Application falls within s 7(2) of the ST Act and complies with s 7B, then the next step is to consider whether the Strata Company should have given approval for the Proposal under s 7.
29In addition, of course, the Tribunal must be satisfied that the approval sought was 'not obtained under s 7B [of the ST Act]'. If a compliant application was served on a strata company but that strata company failed to follow the process prescribed by s 7B of the ST Act and in particular, if the strata company refused the application and did not serve on the applicant a notice of refusal resultant from the process prescribed by s 7B and which contains the detail identified in s 7B(6) of the ST Act within 77 days of the service of the application for approval, the sought approval is 'taken to have been given' (s 7B(7) of the ST Act; Owners of Kingsway Gardens Strata Plan 4 and Connelly [2012] WASAT 236).
30It is also to be observed that in considering an application made pursuant to s 103F(3) of the ST Act the Tribunal is exercising its review jurisdiction (Tipene v The Owners of Strata Plan 9485 [2015] WASC 30) and such a proceeding attracts the provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act) concerning reviews (s 17 of the SAT Act). Notably the purpose of the review is to arrive at the correct and preferable decision; is to be conducted by way of a hearing de novo and therefore a review on the facts and merits afresh; and may include additional information that was not before the respondent in a general meeting (s 27 of the SAT Act). The Tribunal may refuse or grant the application for an order made pursuant to s 103F(2) of the ST Act (see s 18 and s 29(2) of the SAT Act).
31Upon review, the Tribunal must examine the ground or grounds of dissent to decide whether on the balance of probabilities the approval sought pursuant to s 7 and s 7B of the ST Act should have been granted 'but was unreasonably withheld' by the respondent (s 103F(3)(a) and (b) of the ST Act), such as arriving at the decision arbitrarily or without logic or reason (EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 at [191] following Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596).
32Where the Tribunal is satisfied that is the case, the Tribunal has a discretion whether to 'make an order under this section [s 103F of the ST Act]'. The order that the Tribunal has the discretion to make is that identified in s 103F(2) of the ST Act - a declaration that the approval required under s 7 of the ST Act is deemed to have been given by the strata company.
Section 85 of the ST Act provides, where the Tribunal considers that the strata company has unreasonably refused to consent to a proposal by a proprietor to effect alterations to the common property, the Tribunal may order that the strata company consent to the proposal. The power vested in the Tribunal under s 85 of the ST Act is discretionary.

Section 85 of the ST Act provides:
85.Order with respect to certain consents affecting common property
Where, pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates has unreasonably refused to consent to a proposal by that proprietor
(a)to effect alterations to the common property; or
(b)to have carried out repairs to any damage to the common property or any other property of the strata company,
it may make an order that the strata company consent to the proposal.
This Tribunal agrees with the process of reasoning set out in Paterson and The Owners of 27 Purdom Road Wembley Downs Survey-Strata Plan 30555 [2019] WASAT 40 (Paterson) in determining a proposal under s 85 of the St Act as follows:
94This proceeding arises in the Tribunal's review jurisdiction: Laffin at [21]-[33]; see also Corboy J's analysis in Tipene v The Owners of Strata Plan 9485 [2015] WASC 30 at [138] and [139]. The hearing is de novo and the purpose of the review is to make the correct and preferable decision: s 27 of the State Administrative Tribunal Act 2004 (WA).
95I commence my analysis by noting the comments of Member Hawkins (as her Honour then was) in Maber where she stated at [30] that:
The common property must be managed for the benefit of all proprietors. This is a good governance provision. It requires a balancing of interests to assess whether the applicants' proposal in the context of the scheme is for the benefit of all.
96I am also mindful of and agree with the analysis of (then) Senior Member Raymond in Russell in that what in effect I am required to do, in the context of an application involving common property is to resolve an impasse between the co-owners of CP Lot 3 by reviewing the basis of the second respondent's dissent. If I find that the second respondent's position is reasonable, then I should not intervene. In other words if, in the end, I find this is a matter over which reasonable minds may differ, I should uphold the Strata Company's decision.
97I also agree with Russell (at [60]) that the exercise under s 85 of the ST Act necessarily means that I must undertake an assessment that balances the interests and views of each proprietor and reach my own view of whether the decision the subject of the review is 'unreasonable' for the purpose of s 85 of the ST Act.
98In making a decision pursuant to s 85, the ST Act is to be read and construed in accordance with the ordinary principles of construction: Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186 at [63]-[65] (Buss JA, Mitchell J and Newnes AJA); Strzelecki Holdings Pty Ltd v Jorgensen [2016] WASCA 77 at [95] (Buss P, Murphy JA and Mitchell JA).
99The general rule is that words in a statute must be taken to have been used in their ordinary sense: Van Der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236 at [90] (Murphy J). Dictionaries may assist in ascertaining the commonly accepted meaning of words. However, it remains important 'to interpret the phrase as used in its context, assisted as it may be, but not necessarily bound by, one of a variety of dictionary definitions': Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 at [39] (BanksSmith J); Falconer v Pederson [1974] VR 185 at 187 (Anderson J).
100Consistent with Russell (at [61]) I find that the word 'unreasonable' in s 85 takes its ordinary and plain meaning. It is common ground that the second respondent's decision does not need to be legally 'unreasonable' (in the sense outlined in the seminal case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229) before I can intervene.
101The Australian Oxford Dictionary (2nd Edition) Oxford University Press, Melbourne (2004) (AOD) defines the adjective 'unreasonable' to mean:
1. 'going beyond the limits of what is reasonable or equitable'. 2. 'not guided by or listening to reason' (page 1415).
102The AOD defines 'reasonable' to mean:
1. 'having sound judgement …'. 2. 'in accordance with reason; not absurd' (page 1075).
103The question of what is unreasonable decision or otherwise, for the purposes of s 85 of the ST Act, will depend on the circumstances of each case. That is particularly so in the context of the ST Act which governs and regulates a wide range of strata developments; from very large complexes with multiple strata titles (and many owners) being located within the same building (or multiple buildings) through to two-lot survey strata schemes which look and appear as separate fee simple lots. The question of what is unreasonable in any given context is impossible to reduce to a set of rigid principles.

Background facts

On 31 July 2019 the applicant made an application to the strata company under s 7 and s 7B of the ST Act seeking approval of the proposal (application). The description of the proposal in the application referred on page 2 to attaching it to the existing fascia to the engineer's specification and on page 3 referred to incidental use of the common property. However, the application did not expressly refer to any requirement for approval to effect alterations to the common property under s 85 of the ST Act.
The application included extensive information about the proposal in addition to the information required under s 7 of the ST Act and prescribed under reg 34 of the ST Regulations 1996, as follows:
a)the plans and specifications;
b)a statement that installation would not breach the plot ratio restrictions or open space requirements for Lot 146;
c)a description of the location and dimensions;
d)a statement that the proposal would not interfere with the structural integrity of the building;
e)a summary of the strata company's By-laws that could be breached during installation and the applicant's suggested methods of managing those potential breaches;
f)the details of the materials to be used;
g)a description of the colour palette as would be visible from outside of Lot 146;
h)a description of the method of construction and a work plan; and
i)a motion under notice to be included in the agenda for the AGM at which the proposal would be considered (motion under notice).
On 26 August 2019 the strata company held its AGM. In accordance with the requirements in s 7B of the ST Act, the AGM agenda issued to lot proprietors included the motion under notice as well as other information to lot proprietors of the specific grounds upon which approval may be refused under s 7(5) of the ST Act. The motion under notice, the AGM agenda and the minutes all noted that approval by the strata company must be by resolution without dissent.
The minutes of the AGM state that the applicant's representative, Mr Calvin Payne, spoke about the reasons for the proposal followed by several questions.
The minutes of the AGM also state that the chairman read the prescribed notice to the AGM and confirmed there was a sufficient quorum in accordance with s 3C(1)(b) of the ST Act because 85 lot proprietors (or their proxy) were in attendance at the AGM with a total until entitlement of 5345.
The minutes of the AGM state that five lot proprietors dissented in relation to the resolution on the grounds that the carrying out of the proposal will result in a structure that is visible from the outside of the lot and that is not in keeping with the rest of the development.
On 4 September 2019, the Metropolitan Redevelopment Authority issued development approval for the proposal.
On 24 September 2019, the strata company issued a notice to the applicant confirming that the application was not successful because five lot proprietors dissented in relation to the application at the AGM on the grounds noted above.
On 15 October 2019, the applicant brought proceedings in the Tribunal pursuant to s 103F(1) of the ST Act.
On 28 August 2020 the Tribunal allowed the applicant's request to amend her application to include s 85 of the ST Act (as it was prior to 1 May 2020), relevant to whether the Tribunal makes an ultimate finding that the proposal includes affixing to the fascia consitutes an alteration to the common property.

Issues to be determined

There are three issues to be determined in these proceedings by the Tribunal.
The first issue is a preliminary issue as to whether that part of the proposal that includes affixing to the fascia is an alteration to the common property or is within Lot 146. If it does involve affixing, and therefore an alteration, to the common property the Tribunal has granted leave to the applicant to amend her application to include an application under s 85 of the ST Act (as it was prior to 1 May 2020).
Secondly, if the Tribunal finds in the preliminary issue that the fascia is common property, pursuant to s 85 of the ST Act, the issue is whether in the exercise of the Tribunal's discretion, the Tribunal considers that the strata company has unreasonably refused to consent to that part of the proposal to effect alterations to the common property, that being the affixing of the pergola to the fascia.
Thirdly, pursuant to s 103F of the ST Act, (the part of the proposal which constitutes the erection of a structure on, or a structural alteration to, Lot 146) the issues to be determined are whether:
a)approval should have been given to the proposal under s 7 of the ST Act;
b)approval has been unreasonably withheld by the strata company; and
c)the Tribunal should declare that the approval of the proposal is deemed to have been given by the strata company.
In practical terms, the principal issue in dispute to be determined in these proceedings under both s 85 and s 103F of the ST Act is whether the proposal is visible from outside Lot 146 and is in keeping with the development at Observation Rise.

The applicant's case

The applicant had one expert witness, Mr Faigen, architect and building consultant. Mr Faigen attended the hearing to provide oral evidence and be available for crossexamination by any of the respondents.
Mr Faigen provided an expert report dated 11 March 2019 in relation to the specific design details of the proposal and the extent to which the proposal is visible outside Lot 146 and in keeping with the rest of the development at Observation Rise: see Exhibit 1 at pages 208-244.
Relevant to the issues in dispute, the applicant relied on the expert evidence of Mr Faigen and submitted that the strata company should have given approval under s 7 of the ST Act. The applicant submitted that the strata company has unreasonably withheld approval because the proposal, whilst visible from outside Lot 146, is objectively in keeping with the development at Observation Rise.

The respondents' case

The submissions and evidence provided by Mr Rodney Lane, the second respondent, on behalf of the third, eighth, tenth and eleventh respondents, case can be relevantly summarised as follows:
a)The applicant's balcony on Lot 146 is visible when looking west from the balcony on Lot 80 owned by Mr and Mrs Lane. The proposal does not block their view, however the top of the proposed pergola will be central to their overall outlook and they are concerned that it is not in keeping with the rest of the development. Mr and Mrs Lane are also concerned that the proposal would create an unsatisfactory precedent for other pergolas and balconies which may or may not block views.
b)Due to the elevation of the Reserve block where Mr and Mrs Purslowe own Lot 56, the applicant's balcony on Lot 146 is at about the same level as theirs on level 4. When looking south-west, Mr and Mrs Purslowe look directly onto the balcony of Lot 146.
c)The proposal is called a 'pergola' but is better described as an 'outbuilding' structure that is new to, and not in keeping with the remainder of, Observation Rise. There is no other structure of this kind in Observation Rise and for the past 27 years such a structure has been actively discouraged and never approved.
d)The proposal is not in keeping with the style or design of Observation Rise. At least the proposal approved in Boris No. 1 had a curved roof which was in keeping, unlike this proposal with its flat retractable roof.
e)Observation Rise, at 27 years old, is not ultra-modern but is a uniquely designed, and wellmaintained, luxury development. Apart from the lots having glorious views, the style of Observation Rise is uncluttered and spacious.
The submissions and evidence provided by Mr Brian Roberts, the fourth respondent, on behalf of the fifth, ninth and twelfth to fifteenth (inclusive) respondents, case can be relevantly summarised as follows:
a)There are 157 lots in Observation Rise and none have a permanent structure akin to a building extension of the nature of, or similar to, the proposal. There are no additional buildings or pergolas on balconies. The consistent approach for balconies at Observation Rise is for blinds, shade sails, retractable awnings or umbrellas.
b)The proposal is not in keeping with Observation Rise and contrary to the architectural ambience of this iconic building. The original architect of Observation Rise was of the 'firm opinion' that the proposal was not in keeping with the efficacy of the original architecture and that any approval will set a dangerous precedent leading to further erosion of the original architectural philosophy.
c)The applicant has now submitted two very different shade designs claiming that both are in keeping with the development at Observation Rise.
d)The photographs attached to the submission shows the proposal is clearly visible outside Lot 146 and looks like 'a tacked-on afterthought' on the marked-up version of the photograph.
The submissions and evidence provided on 3 July 2020 by Mrs Siobhan Wright and Mr Alexander Wright, the sixth and seventh respondents, case can be relevantly summarised as follows:
a)The proposal is 'wider and bulkier' than that approved in Boris No. 1 and has a direct negative impact on the outlook for Mr and Mrs Wright.
b)The proposal is a permanent structure which is not in keeping with the rest of the development at Observation Rise.
c)Whilst Mr and Mrs Wright do not agree with the decision in Boris No. 1, they have accepted it. When Mr and Mrs Wright compare the approved proposal in Boris No 1 with the current proposal, they find that it is 'totally wrong' and is not in keeping with the rest of the development at Observation Rise.
d)If the approved proposal in Boris No. 1 is so in keeping with the rest of the development why has the applicant sought approval for another proposal, is that because it is more in keeping with the rest of the development at Observation Rise?
e)If Mr Faigen is of the view that canopies and shade sails blend in and add harmony to Observation Rise, then how can he be of the inconsistent view that an intrusive and bulky permanent structure with a flat roof is in keeping with Observation Rise.
f)The proposal's flat roof is not in keeping with the curved nature of that approved in Boris No. 1 which might be consistent with the shade sails already installed throughout Observation Rise. Large umbrellas are also intrusive but are only used a few months of the year. The proposal is a permanent structure which will be permanently intrusive.
g)The proposal is not a pergola, but rather a 'substantial outbuilding' or 'extra room'.
h)The proposal includes large planters containing large trees and bushes which are 'gross embellishments' and should not be allowed.
Some of the respondents present at the final hearing provided further oral submissions, summarised as follows:
a)Mr Roberts submitted that none of the 157 lots have a building extension like the proposal. There are no pergolas. The owners in the complex have traditionally used umbrellas, retractable awnings and shade sales, but not the building extension proposed in these proceedings. There is 'no way' the proposal is in keeping and approval will create an adverse precedent.
b)Mrs Wright submitted she was concerned the proposal was not in keeping with the rest of the development as it was a permanent structure unlike the other shade options owners used. Any approval would set a dangerous precedent.
c)Mr Yeaman submitted that his photographs (Exhibit 5) show conclusively the proposal cannot be in keeping with the rest of the development as there is nothing presently there like the proposal.
d)Mr Lane submitted that Mr Faigen's report contained irrelevant material and did not compare like with like. Mr Lane also made submissions concerning what he considered to be unusual and unacceptable events from the applicant and her 'team' at the AGM which have shifted the balance of the legal process unjustly in favour of the applicant. However, Mr Lane conceded in his written submission that these conversations occurred at the AGM and are outside the scope of the Tribunal proceedings.
e)Mr Zadnik submitted that the proposal changes the efficacy of the building according to the original architect.
Finally, Exhibit 7, which contains the respondents' joint submission provided on behalf of nine of the respondents on 1 October 2020 in relation to the potential issue under s 85 of the ST Act can be relevantly summarised as follows:
a)The building fascia has been confirmed by the strata manager as common property.
b)The fascia is a purely decorative cosmetic feature installed at the top of the building consisting of a very thin (approximately 0.6 millimetres) pressed sheet metal and is not designed to be load-bearing. The fascia has insignificant shear stress resistance and is easily cut by handheld box cutters. For the most part there is a cavity behind the fascia except for the ends which are attached to a light metal frame by small rivets.
c)The fascia has been in place for 30 years and has never had anything fixed or connected to it due to it being cosmetic rather than load-bearing. Therefore, such an alteration to common property would be unsafe. The respondents have been advised by an engineer from the local council that the pergola's load-bearing connection would not be approved by the Council without a stress analysis report from a structural engineer. A stress analysis would be needed to ensure that such an alteration to common property would safely withstand the range of wind forces arising from typical coastal storms.

Consideration

The Tribunal needs to determine as a preliminary issue whether that part of the proposal that includes affixing to the fascia is an alteration to the common property or is within Lot 146. If it does involve affixing, and therefore an alteration, to the common property it requires approval under s 85 of the ST Act (as it was prior to 1 May 2020).
Whether a component part of the strata plan is part of a lot or is part of the common property is a finding of fact and law. The fact that the strata manager views the part of the fascia relevant to these proceedings as part of the common property is not determinative of that legal and factual finding.
The definition of 'common property' in s 3 of the ST Act provides:
common property means
(a)so much of the land comprised in a strata plan as from time to time is not comprised in a lot shown on the plan; and
(b)any leasehold interest acquired by a strata company under section 18; and
(c)the lot or lots shown on a survey-strata plan as common property;

Lot 146 appears on Sheet No. 28 of 38 on Strata Plan 24414. The Strata Plan provides that '[t]he external part lots shown on this sheet extend to the edge of the concrete'. The fascia is not made of concrete, it has clearly been placed as a decorative (not structural) fixture to the outer surface of the concrete wall. Therefore, the Tribunal finds that the part of the fascia that sits directly above the 93m² balcony on Lot 146 is part of Lot 146. The proposal includes affixing the retractable pergola to the part of the fascia that the Tribunal finds is part of Lot 146, and not the common property.
However the Tribunal concurs with the submission made by many of the respondents that the fascia on its own appears to be structurally insufficient to attach a retractable pergola. It would seem a matter of common sense that the fixing of the retractable pergola might actually proceed through the fascia and into the concrete wall. Therefore, whilst incidental and ancillary to the proposal, the Tribunal finds that such a fixing into the concrete would constitute an alteration to common property and require approval under s 85 of the ST Act.
Similar to the situation the Tribunal found in Wholley and The Owners of Vivian's Corner Strata Plan 45979 [2020] WASAT 69 (Wholley), the application to the strata company on 31 July 2019 expressly referred to s 7 and s 7B of the ST Act. Whilst the application referred on page 2 to attaching it to the existing fascia to the engineer's specification and on page 3 separately referred to incidental use of the common property, the application did not refer to an application for approval to effect alterations to the common property. Just as the Tribunal found in Wholley at [38], the Tribunal similarly finds in these proceedings that a component of the application, whilst not express, did implicitly include seeking approval under s 85 of the ST Act. Section 85 does not have the same stringent application, notice and meeting requirements as s 7 of the ST Act and reg 34 of the ST Regulations. The Tribunal is satisfied, by the amendment to the application allowed by the Tribunal on 28 August 2020 to include s 85 of the ST Act, that it has jurisdiction under s 85 of the ST Act to consider the part of the proposal that involves an alteration to the common property.
The respondents have not has raised any procedural issues under s 7 or s 7B of the ST Act or reg 34(1) of the ST Regulations. Having heard all of the evidence, the Tribunal has also not found any such issues. The Tribunal finds it is satisfied that the procedural issues have been met in reg 34 of the ST Regulations as well as s 7B and therefore the Tribunal has jurisdiction to make orders concerning the proposal under s 103F(1) of the ST Act.
No party has submitted that the proposal on Lot 146 is not a structure to be erected or an alteration of a structural kind. The Tribunal finds that it is satisfied that the proposal is a structure to be erected under s 7(2) of the ST Act and therefore falls within its jurisdiction under s 103F of the ST Act: see The Owners of Arbor North Strata Plan 67510 and Sun [2020] WASAT 28.
The Tribunal accepts the grounds given for dissent at the AGM were only those allowed under s 7(5)(b) of the ST Act (as s 85 of the ST Act was not mentioned).
The respondents provided some photographs in support of their case, including photographs that were marked up by hand in order to indicate the location and scale of the proposal on Lot 146. Some of the respondents also provided their own evidence as to what they considered was in keeping, and what was not in keeping, with the development. None of the respondents provided an expert witness in architecture, design or planning who could provide an expert opinion as to whether the proposal was in keeping with the development. As to whether a proposal is in keeping with the rest of the development is an opinion. Such an opinion is commonly provided to the Tribunal by an expert in planning, architecture or design but is not the type of opinion that is the sole purview of experts. However, in order for the Tribunal to accept and rely upon any opinion, whether expressed by an expert or not, such an opinion needs to be reasonably held and supported by logic and proven facts.
The respondents clearly have very strongly held, and genuine, views objecting to the proposal. In considering all of the evidence presented, and undertaking an objective analysis of that evidence, the Tribunal does not share those views held by the respondents. The Tribunal finds that the respondents in these proceedings have provided no cogent or reasonable basis for their objection to the proposal or the original dissent to the proposal at the AGM.
The Tribunal finds that the respondents' submissions in relation to whether the proposal is in keeping with the rest of the development at Observation Rise, whilst genuinely held by them, are either misconceived or without proper factual foundation. The respondents' objections seem to commence from a starting proposition that a new structure could never be erected as it is not the same as what is presently there. That starting proposition misconceives the appropriate assessment to be undertaken as to whether the proposed structure is in keeping with the rest of the development. The respondents also appear to misunderstand it is reasonably and logically conceivable that more than one design can be considered to be in keeping with the rest of the development.
It may be trite to say, however, there are no property rights in views and outlooks from balconies. Further, the 'unsatisfactory precedent' concern raised by the respondents is unfounded. The only conceivable relevance of the impact of a proposal on views or outlooks is how it might impact on the Tribunal's consideration as to whether the proposal is in keeping with the rest of the development. However, in the facts and circumstances of this case, there is insufficient evidence before the Tribunal to make any such findings.
The respondents produced photographs of Observation Rise with two of them marked up to show an indicative placement of the pergola (Exhibit 5). The Tribunal finds that these photographs are an incorrect indication of the size and placement of the pergola within the balcony of Lot 146. Moreover, these photographs overstate the visibility of the proposal. In contrast the written and oral evidence of Mr Faigen as well as his marked up photograph in Exhibit 6 is entirely plausible, logical and reasonable. The Tribunal finds that it prefers and relies upon the measurements and photographs provided by Mr Faigen in his report and his marked up photograph in Exhibit 6.
The respondents have not provided any expert architectural, or any other expert design or planning evidence to form a reasonable basis for their submissions regarding the extent of the proposal's visibility from outside Lot 146 or that the proposal is not in keeping with the rest of the development at Observation Rise. Many of the respondents referred to an opinion expressed by the original architect of the development. However, no documentary evidence or witness was produced to substantiate the veracity of this opinion or to be crossexamined on such an opinion. In those circumstances, the Tribunal finds it can place no weight on the hearsay opinion of the original architect as stated by some of the respondents.
The Tribunal finds that the applicant has provided a sufficiently detailed proposal which satisfactorily addresses all reasonable issues, including the provision of an expert opinion from architect Mr Faigen. Mr Faigen attended the Tribunal to be asked questions by the Tribunal and be available for cross-examination by any respondent that availed themselves of that opportunity. The Tribunal finds the expert opinion of Mr Faigen expressed through his report and oral evidence was logical and reasonably based in fact. The Tribunal accepts and relies upon the evidence of Mr Faigen.
The Tribunal finds that it relies upon the opinion of Mr Faigen that the proposal is in keeping with the rest of the development at Observation Rise, in particular, his opinion at paras 4953 of his report that:
... in my opinion, this Proposed Pergola provides for simple, nonobtrusive structure that is completely compatible with, and in keeping, with the Development.
Any contrary visual impact to lot owners or passers-by alike will be virtually nil. Any impact is will be, in my opinion, complimentary in nature.
The complimentary aspects that likely arise are due to the skeletal nature of the structure giving an appearance of being extremely 'light'. This is achieved because of its colouring of white, off-white or beige will be identical with other elements in the Development.
The shade sail being laid almost flat will be far less obtrusive than any other umbrella or shade structure in the complex irrespective of viewer's position.
There are no offensive or decorative parts to the structure that could give rise to a distraction to the overall aesthetics and design of the complex.
Relevant to the proposal before the Tribunal is the consideration that, in assessing and balancing the interests of all lot proprietors, this exercise involves an acknowledgement that Lot 146 has a large balcony that will have improved usage for the applicant by the installation of the proposal. The Tribunal also finds that, in assessing and balancing the interests of all proprietors, the proposal causes no real or substantive detriment to the other lot proprietors.
Having considered all of the evidence presented in these proceedings and the Tribunal's findings in relation to that evidence, the Tribunal concludes the respondents have not substantiated to the satisfaction of the Tribunal any of their objections to the proposal under s 85 or s 7(5) of the ST Act.
In particular in relation to s 85 of the ST Act the Tribunal finds that, whilst it can be demonstrated that the affixing of the pergola through the fascia into the concrete wall on common property is to significantly benefit Lot 146 and not all other proprietors, the affixing of the pergola will not prejudice any other proprietors. Therefore, in following the same reasoning in Paterson at [138]-[139], the Tribunal finds that refusal to consent to the proposal as it relates to an alteration to the common property is unreasonable and the Tribunal should intervene.
In particular in relation to s 7(5) and s 103F of the ST Act the Tribunal finds that the proposal, whilst visible outside Lot 146 to other lot proprietors and to a smaller extent members of the public, the proposal is in keeping with the rest of the development.

Conclusion

Therefore, in accordance with these reasons and the issues so framed, the Tribunal concludes and finds that the decision of the strata company at the AGM on 26 August 2019:
a)in relation to the proposal as it pertains to the erection of a structure within Lot 146, that the strata company should have approved the proposal under s 7 of the ST Act and unreasonably withheld approval of the proposal; and
b)in relation to the proposal as it pertains to the affixing of the pergola through the fascia into the concrete wall within the common property, the strata company unreasonably refused to consent to the proposal.
Accordingly, the Tribunal finds that approval for the proposal should be granted in accordance with the particular requirements under each of s 85 and s 103F of the ST Act.

Orders

The Tribunal will order as follows:
1.Pursuant to s 103F of the Strata Titles Act 1985 (WA) (prior to 1 May 2020) (ST Act), the Tribunal declares that the approval of the proposal as required under s 7 of the ST Act is deemed to have been given by the strata company insofar as it relates to work to be done within Lot 146.
2.Pursuant to s 85 of the ST Act, the Tribunal orders the strata company forthwith to consent to the proposal insofar as it relates to the affixing of the pergola through the fascia and into the concrete wall thereby effecting an alteration to the common property.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
15 OCTOBER 2020

ANNEXURE A