BORIS and THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414 - [2019] WASAT 112

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   BORIS and THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414 [2019] WASAT 112
MEMBER:   MS N OWEN-CONWAY, MEMBER
HEARD:   2 OCTOBER 2019
DELIVERED          :   15 NOVEMBER 2019
FILE NO/S:   CC 665 of 2019
BETWEEN:   PATRICIA VIOLET BORIS
Applicant
AND
THE OWNERS OF OBSERVATION RISE STRATA PLAN 24414
Respondent

Catchwords:

Application for approval to construct pergola on balcony part of lot - Dissent on basis of visibility from outside lot - Dissent on basis structure is not in keeping with lot - Unreasonably withheld approval - Reasonable use and enjoyment of lot - Views from lots - Design of development - Turns on own facts

Legislation:

Building Act 2011 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 29(2)
Strata Titles Act 1985 (WA), s 7, s 7(2), s 7(2)(d), s 7(4)(a), s 7(4)(b), s 7(5)(b)(i), s 7(5)(c), s 7(6), s 7B, s 7B(1), s 7B(6), s 7B(7), s 103, s 103F, s 103F(1), s 103F(2), s 103F(3), s 103F(3)(a), s 103F(3)(b)
Strata Titles General Regulations 1996 (WA), reg 30, ref 30(2), reg 30(3), reg 30(4), reg 30(5), reg 32(a), reg 34(1), reg 34(2)

Result:

The applicant is successful

Category: B

Representation:

Counsel:

Applicant	:	Mr J Park
Respondent	:	Mr D Phillips

Solicitors:

Applicant	:	Kott Gunning
Respondent	:	N/A

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

EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275
Owners of Kingsway Gardens Strata Plan 4 and Connelly [2012] WASAT 236
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596
Tipene and The Owners of Strata Plan 9465 [2016] WASAT 101
Tipene v The Owners of Strata Plan 94854 [2015] WASC 30

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 7 May 2019 Ms Patricia Boris, the proprietor of Lot 146 on Strata Plan 24414, made an application to the Tribunal for an order pursuant to s 103F(3) of the Strata Titles Act 1985 (WA) (ST Act). The respondent to her application is the Owners of Observation Rise Strata Plan 24414, being the strata company comprising all of the proprietors, from time to time, of lots and common property identified on Strata Plan 24414, registered on 26 May 1993 (Strata Plan) on that parcel of land comprised in Certificate of Title Volume 1951 Folio 922. The Strata Plan and built form development comprises 157 lots and common property.
The applicant seeks an order as follows:
[The respondent] is deemed to have approved the Applicant's Application dated 2 August 2018, the subject of the [respondent's] Annual General Meeting on 27 August 2018, under sections 7 and s 7B of the Strata Titles Act 1985 (WA).
The applicant wishes to erect a pergola on the large balcony of part of Lot 146 (large balcony). That action is prohibited by s 7(2) of the ST Act except where the applicant obtains the approval of the respondent in general meeting. The applicant applied to the respondent on 2 August 2018 for approval to erect the pergola on the large balcony (applicant's approval proposal).
On 27 August 2018, at an Annual General Meeting (AGM) of the respondent, the motion in favour of the applicant's approval proposal was voted upon. Thirty eight votes were cast against the applicant's approval proposal. Following the vote and in accordance with the vote, the respondent refused the applicant's approval proposal. In order for the applicant to have succeeded in obtaining approval from the respondent she required a resolution in favour of the same 'without dissent'. All thirty eight valid votes cast against the applicant's approval proposal are based on the same ground ‑ the structure (the proposed pergola) will be visible from outside Lot 146 and is not in keeping with the development.
The applicant wishes to proceed with the erection of the pergola on the large balcony, notwithstanding the respondent's refusal to approve the same, and has utilised the statutory procedure afforded by s 103F of the ST Act in applying to the Tribunal for the order sought as referred to above. Consistent with the vote taken on 27 August 2018, the respondent opposes the applicant's application to the Tribunal.

The proceeding in the Tribunal

The application was filed in the Tribunal on 8 May 2019 and the matter was listed for directions hearings on 31 May 2019. The Tribunal made orders for all lot proprietors to be notified about the proceeding and made orders to facilitate any notified person to be joined either as an applicant or a respondent. None of the other lot proprietors sought to participate in the proceeding pursuant to the Tribunal's directions. By 10 September 2019 the parties had filed all documents upon which they intended to rely. The final hearing took place on 2 October 2019.

The documents before the Tribunal

The relevant documents before the Tribunal comprised:
a)the application and in particular Annexure A being the grounds and the documents annexed thereto;
b)the Strata Plan attached to the application;
c)the by‑laws and changes to the by‑laws attached to the application;
d)PD (Phil) Faigen Architect, Building Consultant ‑ Responsive Report dated 5 April 2019 (Exhibit 1);
e)PD (Phil) Faigen Architect, Building Consultant ‑ Responsive Report dated 4 September 2019 (Exhibit 2);
f)expert witness statement of Frederick Charles Chaney ‑ dated 21 August 2019 (Exhibit 3);
g)Siobhan Wright ‑ email dated 23 September 2019 (Exhibit 4);
h)Mr and Mrs Gablikis ‑ email dated 23 September 2019 (Exhibit 5);
i)Mr John Quinlivan ‑ email dated 24 September 2019 (Exhibit 6);
j)Mr John Pauley ‑ email dated 28 September 2019 (Exhibit 7);
k)Mr Neil Purslowe ‑ email dated 25 September 2019 (Exhibit 8);
l)Mr R Lane ‑ email dated 1 October 2019 (Exhibit 9);
m)Mr and Mrs Wright ‑ email and attached photographs dated 26 September 2019 (Exhibit 10);
n)Mr John Quinlivan ‑ email dated 1 October 2019 (Exhibit 11).
Exhibits 4 ‑ 11 were provided to the Tribunal by the current proprietors of various lots within the strata development. None of these proprietors had applied to become parties to this proceeding so as to actively participate in the same. No application was made to become parties by any of these lot proprietors on the day of the final hearing. The documents were provided to the Tribunal by email without invitation to the authors and none of the emails was provided to the applicant or her solicitors. The respondent eschewed any participation in the production of the documents to the Tribunal by those lot proprietors. At the commencement of the hearing the applicant's solicitor agreed to read Exhibits 4 ‑ 11 and consider whether they could be put before the Tribunal without the necessity for an adjournment of the final hearing and a vacation of the date. The applicant's solicitor agreed to the documents being exhibited as they incorporated some photographs relevant to the visibility of the large balcony from other lots and otherwise referred to submissions. The photographs are attached to Exhibits 4, 10 and 11. As to Exhibit 11, it contains a zoomed in photographic view of the applicant's large balcony and market umbrella. The Tribunal does not accept that the view of the large balcony from Mr Lane's lot (which he does not identify) is as it appears in the photograph. The Tribunal does not accept that Mr Lane's lot is as close to the applicant's lot as would appear in the photograph attached to Exhibit 11. As to Exhibits 4 and 10, they suffer the same consequence as the photograph contained in Exhibit 11. The Tribunal considers that the various photographs taken at the greatest distance from the applicant's lots are the only relevant photographs because they provide a more accurate perspective of the view of the large balcony from various other lots. Exhibit 5 is not relevant as it rejects the notion that the respondent's decision can be considered by the Tribunal, which is plainly incorrect. Exhibits 6 and 7, save to the extent that they contain submissions about the design intention of the development, are not relevant and similarly eschew the Tribunal's jurisdiction to alter or interfere with the respondent's decision in the proceeding. Exhibits 8 and 9 are largely concerned with the costs associated with the Tribunal proceeding and are largely not relevant.

The pergola and the applicant's approval proposal - s 7 and s 7B of the ST Act

The applicant's approval proposal to the respondent is comprised in the following documents:
1)letter dated 2 August 2018 by the applicant's agent Mr Ian Laird (Strata Titles Consultant) to the respondent;
2)attachment A thereto described as:
SECTIONS 7 AND 7B STRATA TITLES ACT 1985 (WA) APPLICATION;
3)document titled:
'Motion under notice – section 7 application';
5)Northern, North‑Western and South‑Western aspect 3D renders of the proposed pergola on the large balcony; and
6)a plan and elevation drawing of the proposed pergola on the large balcony.
The applicant sought approval for the erection of a steel and waterproof, UV protective and fire resistant cloth covered pergola on the large balcony. The large balcony is 93m² of a total of 282m² including car parking, storage, accommodation and a smaller balcony. The large balcony has no permanent shaded area. Lot 146 including the large balcony is positioned on the top floor (level 4) of the north‑western elevation of the north-western tower of the strata development as identified on sheet 28 of 38 of the Strata Plan. From that balcony the Indian Ocean and the shoreline of Scarborough Beach is visible through the tree tops. The large balcony is abutted to the east by a steel reinforced concrete parapet wall that extends above the large balcony floor tiles by approximately 1 metre.
The applicant's approval proposal contains the following information:
1)The pergola is to be constructed with:
a)three hot dipped galvanised powder coated low profile steel vertical sections (posts) secured at the eastern boundary of the large balcony and into the common property parapet wall;
b)three curved hot dipped galvanised powder coated low profile steel trusses secured to the vertical sections (posts) referred to in a), which trusses extend from east to west spanning 5,050 millimetres from the eastern boundary of the larger balcony represented by the inner surface of the common property parapet wall;
c)hot dipped galvanised powder coated steel frame positioned around the trusses with a width of 6,500 millimetres, a maximum height of the arch of the span from east to west of 2,550 millimetres;
d)waterproof ultra-violet and fire resistant fabric covering the trusses and sitting within the metal frame coloured to match the shade fabric installed elsewhere in the strata development 'such as over the pool capped wall … and besides the tennis court';
e)the vertical sections (posts) to be secured to the common property parapet wall abutting the eastern boundary of the large balcony by fixtures holding the vertical sections in place secured with Hilti Hit anchors or equivalent at three points along each vertical section (post);
f)'other fully engineered high quality materials as required to perform well in the marine coastal environment' are to be used in the construction of the proposed pergola;
2)the construction of the pergola to be subject to planning and development approval from the Metropolitan Redevelopment Authority and a building permit from the City of Stirling;
3)the vertical sections (posts) are not secured to the common property large balcony floor or tiles in any way and it is proposed that the vertical sections (posts) sit above the large balcony common property floor and tiles;
4)the construction of the pergola will not breach the pro-rata plot ratio constrictions or open space requirements for Lot 146 because the pergola would not be taken into account for the purposes of calculating the plot ratio constrictions and open space requirements in relation to the parcel (Lot 146 being significantly smaller than the parcel);
5)details of the materials to be used in the erection of the proposed pergola; the colours of those parts of the pergola that are visible from outside Lot 146; the method of construction to be used and an estimated work plan for the construction. There is no proposed interruption to any easements created by s 11 and 12 of the ST Act; and
6)details of the location and dimensions of the pergola in relation to all of Lot 146 and the relevant boundaries; the contravention of the by-laws of the respondent which are likely to occur during or as a result of the construction of the pergola and the manner in which any likely contravention will be dealt.
The proposed motion contained in the applicant's approval proposal identifies the resolution to be considered by the respondent in general meeting; the statutory grounds for dissent and that a vote against the applicant's approval proposal, without identification of a statutory ground for the dissent, is of no effect. This is the prescribed information sought to be included with the notice of the general meeting to be called and referred to in s 7(4)(a) of the ST Act and reg 30 of the Strata Titles General Regulations1996 (WA) (Regulations). This is also the motion and prescribed information that is to be read by the Chairman to the respondent in general meeting at the AGM held on 27 August 2018 (s 7(4)(a) and s 7(4)(b) of the ST Act and reg 30 of the Regulations).
The applicant's approval proposal was considered and put to a vote at the respondent's AGM. Although the Tribunal does not have the notice of the AGM before it, there is no issue between the parties that a proper notice of the AGM and agenda was issued to the lot proprietors in accordance with the ST Act, the Regulations and the by‑laws of the respondent. The minutes of the respondent's AGM record that Mr Laird, as a proxy for the applicant and also as a lot proprietor, put an approved amended motion to the AGM that it be resolved that:
[S]ubject to any required approvals or permits being provided by the Metropolitan Redevelopment Authority and the City of Stirling and provided to the strata company prior to commencement of any works, by resolution without dissent under s 7(2)(d) [ST] Act , the strata company approves the application by the proprietor of lot 146 (apartment E410) to carry out works on lot 146 as described in the application dated 2 August 2018 attached to the agenda and marked Attachment A (as amended)[.]
It is also noted in the AGM minutes and the Tribunal accepts, that at that AGM and prior to proceeding with a vote on that motion, the Chairman for the AGM read the information contained in the applicant's approval proposal referred to at par 12 above.
The AGM minutes record that there were thirty eight votes against the motion and consequently the respondent did not approve the same as required by s 7(2)(d) of the ST Act, in order for the applicant to construct the pergola on the large balcony.

The position of the parties

The respondent's position at the AGM and the final hearing is consistent ‑ the objection to the applicant's approval proposal is that the pergola:
a)would be visible from outside the relevant lot - Lot 146; and
b)would not be 'in keeping with the rest of the development'.
There is no dispute between the parties in respect of issue a) above and the Tribunal finds that the pergola would be visible from outside Lot 146. In particular, the pergola would be visible from the windows and balconies of some other lots of the strata development.
The respondent's ground of objection is one of only four permitted grounds that a lot proprietor at a general meeting may rely upon to object to an application to permit the erection of a structure upon a lot. Therefore, a lot proprietor's right to vote against such a proposal is limited. The statutory scheme dictates that only dissents that identify one or more of the specific statutory grounds are valid dissents.
In essence the respondent's proposition at the hearing was that the pergola will interfere with the views from the windows and balconies of other lots which views form an essential part of the development and design of each lot. Put simply, the respondent submitted that any interference therewith renders the structure out‑of‑keeping with the development.
The Tribunal notes that prior to the hearing, the respondent had filed and sought to rely upon the unsigned expert evidence witness statement of Mr F Chaney, Architect to establish that the decorative design detail of the trusses of the pergola were not in keeping with the development. The respondent did not call Mr Chaney to give evidence. At the hearing the Chairman of the respondent indicated that the respondent did not quarrel with the colour, design or shape per se of the proposed pergola but narrowed its objection to the fact that anything that interfered with the views of other lot proprietors amounted to 'not in keeping with the development' and that had consistently been the position of the respondent for many years.
The applicant's position was that the proposed pergola is intended to replace a large market umbrella that had been positioned in a similar place on the large balcony for a considerable period of time. The market umbrella was anchored at the post with a heavy base stand in which the pole of the umbrella is sheathed and tied down at the end of the ribs to prevent the umbrella being blown away. The market umbrella is not fixed to the large balcony or the common property boundary parapet wall. Further, the proposed pergola will be lower than the umbrella and will be more secure than the umbrella.
The applicant's wider argument was that 'there is no property in a view' and the respondent and other lot proprietors are not entitled to secure an unchanging view of the Indian Ocean or shore front from their lots. The applicant's counsel asserted that there was no evidence before the Tribunal that the views from the lots were an intended design of the development so as to identify what is 'in keeping with the development'. The applicant further contended that the large balcony is very large and totally exposed to the weather with no shade at all, as it is at the top of the north‑western tower of the development.

The statutory scheme

Section 7 of the ST Act relevantly provides:
…
(2)The proprietor of a lot shall not cause or permit -
(a)any structure to be erected; or
(b)any alteration of a structural kind to, or extension of, a structure,
on his lot except -
…
(d)…with the prior approval, expressed by resolution without dissent, of the strata company.
(3)Where an application is made to a proprietor in accordance with section 7B the proprietor may refuse to give approval on any ground that is permitted by subsection (5), but not otherwise.
(4)Where an application is made to a strata company in accordance with section 7B -
(a)notice of the general meeting to which the application is to be submitted shall contain or be accompanied by a statement, in the prescribed form, of the effect of paragraphs (c) and (d); and
(b)the chairman of the general meeting shall before a vote is taken on the application read out the statement referred to in paragraph (a); and
(c)a proprietor may vote -
(i)against a resolution to approve the application; or
(ii)in support of a resolution to refuse approval of the application,
on any ground that is permitted by subsection (5), but not otherwise; and
(d)a vote referred to in paragraph (c) is of no effect unless the person casting the vote discloses as a ground for his vote one or more of the grounds permitted by subsection (5).
(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.
(6)In this section -
structure includes any prescribed improvement;
vacant lot means a lot that is wholly unimproved apart from having merged improvements within the meaning of that expression in the Valuation of Land Act 1978.

For the purposes of s 7(6) of the ST Act, 'structure' includes any 'improvement, the construction or erection of which is required to be approved by the local government or any other authority' (reg 32(a) of the Regulations). For the purposes of s 7(5)(c) of the ST Act, a contravention of a specified by‑law or law of the strata company constitutes one of four grounds that may be relied upon by a lot proprietor's vote against a proposal. For the purposes of s 7(4)(a) of the ST Act the details of the notice is identified in reg 30 of the Regulations.
.Section 7B of the ST Act, relevantly provides:
(1)A proprietor who wishes to obtain an approval of a proposal that comes within section 7(2) … shall serve an application on the strata company … and in the application shall set out details of the proposal and such other information as may be prescribed.
(2)Where an application is made to a strata company under subsection (1) the council of the company shall submit the application to a general meeting of the company convened for the purpose, or for purposes which include that purpose, within 35 days after the application is received (the allowed period).
…
(6)If an application made to a strata company … for approval under section 7 is not approved, a notice under subsection (5) shall show the ground or grounds -
(a)disclosed by each proprietor who cast a vote of a kind referred to in section 7(4)(c); or
(b)on which approval is refused by the other proprietors,
as the case may be.
For the purposes of s 7B(1) of the ST Act, the prescribed information includes the plans and specifications of the proposed structural addition on the lot and such of the information identified in reg 34(2) of the Regulations as is applicable (reg 34(1) of the Regulations).
Section 103F of the ST Act provides:
(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.
The 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.
In 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).
It 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).
Upon 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).
Where 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.

Does the applicant's approval proposal fall within s 7(2) of the ST Act?

There is no dispute in this proceeding that the applicant's approval proposal falls within s 7(2) of the ST Act. The applicant's approval proposal details that the pergola must be constructed on site to be erected on the large balcony. The applicant's approval proposal also notes that the construction of the pergola requires approval from both the local government and the Metropolitan Redevelopment Authority. The Tribunal concludes that the pergola meets the definition of a structure to be erected on the large balcony.

Does the applicant's approval proposal meet the requirements of and comply with s 7B of the ST Act?

In attaching the plans and specifications details, the proposal meets the requirement of reg 34(1) of the Regulations. The details of the size and position of the pergola are included and the details concerning any contravention of the by‑laws and manner of dealing with the same is addressed in the applicant's approval proposal. The plot ratio issue is not relevant in this proceeding (reg 30(2), (3) and (4) of the Regulations). The application identifies all of the materials to be used in detail; the colours of the vertical members (posts), trusses, frame and fabric and details the time to construct and the method of the proposed work plan (reg 30(5) of the Regulations). The applicant's approval proposal also attaches the order sought, the details of the prescribed information that is to accompany the notice of a general meeting to be called by the Chairman of the respondent (see reg 30 of the Regulations and s 7(4)(a) of the ST Act). Further there is no issue that the applicant's approval proposal was served on the respondent as required by s 7B(1) of the ST Act. The Tribunal concludes that the applicant's approval proposal meets the requirements of and complies with s 7B of the ST Act.

Was the approval sought by the applicant but not obtained pursuant to s 7B of the ST Act?

The Tribunal notes that the minutes of the AGM record that the chairman complied with the s 7(4)(b) ST Act requirement that the prescribed information be read to the general meeting. The Tribunal is satisfied that the notice of the AGM was accompanied by the applicant's application proposal which included a notice of both the motion to be put and the prescribed information as identified in reg 30 of the Regulations and called for by s 7(4)(a) of the ST Act. The evidence establishes that the general meeting was called as required by s 7B of the ST Act and that the votes were recorded correctly and only those who dissented with disclosed statutory grounds were recorded as valid dissents. The Tribunal is also satisfied that the notice of refusal was served on the applicant in compliance with s 7B(6) of the ST Act on 1 October 2018 as admitted in the applicant's grounds of the application to the Tribunal dated 7 May 2019 and as identified in the annexure PVB(7) thereto. The Tribunal concludes that the applicant's approval proposal was not obtained pursuant to s 7B of the ST Act.
The Tribunal is satisfied therefore that the applicant meets the criteria identified in s 103F(1) of the ST Act and she is entitled to make the Tribunal application in this proceeding.

The issues

As stated in Tipene at [12], for an order pursuant to s 103F(2) of the ST Act:
The issues to be determined by the Tribunal are:
1)Should approval have been given to the Approval Application under s 7 of the ST Act?
2)Has approval been unreasonably withheld by the respondents?
3)If both of the above issues are determined in the affirmative, should the Tribunal make an order under s 103F(2) of the ST Act, or does it have the discretion not to do so?
The answer in each case is 'yes' upon review.

Consideration

Although Mr Chaney did not sign the copy of the witness statement before the Tribunal (Exhibit 3) filed by the respondent on 6 June 2019 and notwithstanding that Mr Chaney was not called by the respondent to give evidence the respondent sought to rely on the same. Mr Chaney stated that in his opinion the proposed pergola:
… based on a curved steel frame with some decorative bracing of the curved beam … [is a] concept [that] relates loosely to some curved and vaulted forms found in other parts of the development[.]
Mr Chaney stated, however, that the proposed pergola is not:
… an appropriate form that is in keeping with the generally simple geometry and form of the development.
His reasoning is not persuasive as he stated:
… the various, vaulted forms, including the entry canopy are the most 'dated' elements of the apartment complex and are likely to be replace over time by more simple forms in any future refurbishment.
There is no evidence or information before the Tribunal that the respondent intends or is contemplating replacement of these elements at any particular time in the future or at all. Mr Chaney's opinion about an event in the future has no factual basis and there is no evidence he was asked to assume the same. The issue before the Tribunal is whether the proposed pergola is in keeping with the rest of the development as it stands currently. What may occur in the future is entirely speculative and Mr Chaney's opinion in that circumstance is not relevant. Otherwise, his opinion is that the design features of the pergola bear some shared elements with these found in the development and, to that extent, the Tribunal finds that the proposed pergola design is in keeping with the rest of the development.
Mr Chaney also stated that he was asked to provide his opinion on the matter of whether the proposed pergola:
… will create reduced visibility for other lots and therefore would not be in keeping with the rest of the development, where the architectural aim was to maximise the views of other lots.
The Tribunal observes that the respondent's solicitor's instruction stated that the proposed pergola will 'reduce the visibility for other lots'; will not be in keeping with the rest of the development 'where the architectural aim was to maximize the views of other lots'. This statement was made in conjunction with the statement that the respondent's solicitors 'expect the architect … took into account various factors including the view by other lots in the complex'. The letter of instruction to Mr Chaney did not seek Mr Chaney's opinion on any of these propositions. Although the letter of instruction did not specifically ask Mr Chaney to assume those propositions to be correct, Mr Chaney in his report, appeared to assume those propositions to be correct and merely restated the conclusion identified by the instructing solicitor's letter. There is no evidence that Mr Chaney attended the site and examined any views, plans or any photographs of the development. His report indicated that he had the applicant's approval proposal, the strata plan and little else diagrammatically or photographically.
The Tribunal places little weight upon the statements by Mr Chaney about the architectural issues and the importance of views 'of other lots' in the development and no weight upon his assessment that the proposed pergola will impinge on other lot proprietor's views. On this point, Mr Chaney's report constituted the stated opinion evidence of the solicitor who drafted the letter instruction and as such amounts to no more than a submission in the absence of reliable expert opinion evidence.
On the other hand and although the applicant's counsel asserted that there was no evidence that the outlook from the various lots in the development was intended to be maximised by the design of the development and therefore is relevant to the issue before the Tribunal, the applicant's own expert, Mr Faigen in his report dated 5 September 2019 (at par 27) lent support to the contention that the design of the development has maximised the views of the various lots and the common property to the 'extent possible'. Mr Faigen's opinion was that, as is ordinarily the case, there are a number of factors that must be balanced in a development including maximising the number of lots that can be constructed, landscaping of the common property and landscaping on contiguous land, the existence of other developments and the event of new developments in surrounding locations. Broadly speaking the Tribunal accepts that the design of the development, with larger balconies and larger windows constructed facing the ocean, streetscape of the foreshore, the common property pools, common property tennis courts or common property gardens, intended for the outlook from the lots to be a factor in the design of the development. Further, where lots are able to provide views of the ocean and the beach front, the Tribunal finds that the provision of that view is a design element of the development. However, that does not mean that the view or views from a lot must not be interrupted or that the view or views are of primary or even significant consideration in the design of the development. The enjoyment of the lots, whatever their individual features, is a significant consideration in the design of the development. The fact that a lot offers a view or views therefrom, does not mean that the reasonable use and enjoyment of the external living areas of other lots, such as the large balcony are to be restricted. Given that the large balcony has no shaded area at all, it could not have been reasonably intended, as evidenced by the design of the development, that the erection of shading thereon was not within reasonable contemplation of the design. Such a restriction would render a large section of Lot 146 unusable for most of the time ‑ when there is rain or hot sun. Further, Mr Chaney's statement noted that the addition of a structure, such as a pergola to provide shade on the large balcony is understandable and to be expected. At par 12 of his statement he states:
It is inevitable, that is, that the owners of an apartment with a large terrace will require some form of shade to that external space and, given the extreme winds experienced along the Perth coastline, a form of framed canopy is an appropriate, structurally sound and therefore safe design solution to the problem.
The Tribunal concludes that a pergola structure per se on a large balcony to provide shade and facilitate the reasonable use and enjoyment of that part lot is in keeping with the development, even if it were to impinge upon the views of other lot proprietors to some extent. The extent is obviously important.
Turning to the size, bulk and scale of the proposed pergola, Mr Faigen's report dated 5 September 2019, provided a comparison with the existing market umbrella positioned on the large balcony. The information in this report is compelling and is accepted by the Tribunal. This information established that the height of the proposed pergola is lower than the height of the existing market umbrella. The photographs taken by Ms Wright (Exhibit 4), a lot proprietor positioned behind Lot 146 establishes that the market umbrella impinges slightly on the view from the balcony and windows of that lot. However, it is minor and does not impinge as much as the tree tops positioned on either the common property or the land close by to the development. Although the pergola would be wider than the market umbrella the impact of the proposed pergola on the views of the ocean and the shorefront is minimal. The impact of not having shade on the large balcony, however, is to significantly restrict the use and enjoyment of Lot 146.
The Tribunal finds that the size, bulk and scale of the proposed pergola does not interfere with the views of the lot proprietors as a whole and does not interfere with the design of the development in respect of views from more affected lot proprietors in a significant way. Further, where the proposed pergola is visible it has little or no impact on the use and enjoyment of those lots and specifically it will have minimal impact on the views from those lots. By comparison, the impact on the use of Lot 146 and particularly of the large balcony is significantly curtailed by the lack of safely secured shading on the large balcony.
The Tribunal also finds that the materials and colours proposed by the applicant are consistent and in keeping with the development. The colour of the cloth in particular is similar to the front entry canopy, the canopy over the walkway above the pool and shade sails fitted to some lower levels and the common property tennis court umbrellas. Further, the method and manner of construction and the details of the materials used, along with the obligation on the applicant to obtain a building permit from the City of Stirling to construct the proposed pergola, minimises the risk that the structure will decay in the extreme environmental conditions of the large balcony. As Mr Chaney noted:
I would emphasise the importance of long-term structural integrity … as well as the importance of maximising the rust resistance of any steel framing and components of new structures[.]
The Tribunal concludes that objectively on the evidence and information before the Tribunal, the proposed pergola is in keeping with the development, the dissenting voters objectively have no basis to object on the grounds that they did to the applicant's approval proposal and approval should have been granted by the respondent.
As stated, the reasonable use and enjoyment of the large balcony is fettered unreasonably by the denial of approval to erect a safe and secure structure to provide some shade on the large balcony. The Tribunal concludes that it would be entirely in keeping with the development and to the extent that a limited number of lot proprietors would be able to see the pergola and it will have an impact on their outlook, it is minimal. The restriction on the reasonable use and enjoyment of the large balcony is not a factor that seems to have been considered by the dissenting voters at all. The Tribunal concludes that the approval was unreasonably withheld because of the lack of evidence to support the statutory objection relied upon by the dissenting voters.

Conclusion

For the reasons expressed above, and on the evidence before the Tribunal, the Tribunal concludes that the s 7(5)(b)(i) of the ST Act ground for objecting to the applicant's approval proposal was not reasonably open to the dissenting lot proprietors at the AGM on 27 August 2018. Instead, the respondent should have approved the applicant's approval proposal at that meeting. The Tribunal also observes that the relevant development approval has been obtained and that lawful construction of the pergola is subject to the applicant obtaining a building permit from the relevant permit authority pursuant to the Building Act 2011 (WA). The Tribunal concludes that the withholding of the approval is unreasonable for that reason.
Accordingly, the Tribunal makes orders pursuant to s 103F(2) of the ST Act.
The Tribunal is satisfied that the erection of the proposed pergola is reasonable to allow the lot proprietors and occupiers to put the large balcony to their reasonable use and enjoyment. Further, such a proposal, in the environment of the large balcony, was inevitable. As there is no reason to consider that the materials and method of construction will not be appropriate and certified as being compliant with the relevant building regulations, the Tribunal is satisfied an order pursuant to s 103F(2) of the ST Act should be made in this proceeding.

Orders

1.Upon review, the Tribunal declares that the approval required under s 7 of the Strata Titles Act 1985 (WA) is deemed to have been given by the Owners of Observation Rise Strata Plan 24414 on 27 August 2018 to Patricia Violet Boris' application made under s 7 and 7B of the Strata Titles Act 1985 (WA), in respect of her proposed construction and erection of a pergola on the part Lot 146 comprising the large balcony, as amended at the Annual General Meeting on 27 August 2018 and recorded in the minutes of the same.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N OWEN-CONWAY, MEMBER
15 NOVEMBER 2019