CARR and THE OWNERS OF 252 COSY CORNER ROAD KRONKUP SURVEY-STRATA SCHEME 55030 - [2024] WASAT 132

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   CARR and THE OWNERS OF 252 COSY CORNER ROAD KRONKUP SURVEY-STRATA SCHEME 55030 [2024] WASAT 132
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   4 SEPTEMBER 2024
DELIVERED          :   2 DECEMBER 2024
FILE NO/S:   CC 1359 of 2022
BETWEEN:   HELEN STEPHANIE CARR
Applicant
AND
THE OWNERS OF 252 COSY CORNER ROAD KRONKUP SURVEY-STRATA SCHEME 55030
Respondent

Catchwords:

Strata Titles Act 1985 (WA) - Survey-strata scheme - Unauthorised structural works including on common property - Limestone retaining walls - Driveway - Application for retrospective development approval - Scheme dispute - Whether strata company to give owner's consent under cl 62(1)(b) of the deemed provisions in local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) - Proposed exclusive use by-law - Tribunal proceeding - Consideration of factors to exercise statutory discretion to make orders to resolve dispute or proceeding under strata law - Whether Tribunal should order a resolution without dissent was passed

Legislation:

Planning and Development (Local Planning Schemes) Regulation 2015 (WA), Sch 2, cl 60, c 61(1), cl 62, cl 62(1), cl 62(1)(b), cl 62(2), cl 65, cl 76, Pt 7, Pt 8, Pt 9
Planning and Development Act 2005 (WA), s 167, s 255(1)
State Administrative Tribunal Act 2004 (WA), s 3, s 37(1), s 37(3)
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 7A, s 83(1), s 103F
Strata Titles Act 1985 (WA), s 3, s 10, s 12, s 14, s 43, s 44, s 44(2), s 45(1), s 45(2), s 47, s 83(1), s 87, s 90, s 91, s 123(2), s 123(3), s 135(1), s 197, s 197(1)(a)(iv), s 197(2), s 197(2)(a)(ii), s 197(4), s 200, s 200(1), s 200(2), s 200(2)(1), s 200(2)(m), s 200(2)(n), s 200(6), s 200(7), s 202, s 209, Pt 4, Div 4, Pt 13
Transfer of Land Act 1893 (WA), s 136, s 136C, s 136C(5)

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant	:	Mr C Wallace and Ms I Bartle
Respondent	:	In Person

Solicitors:

Applicant	:	Lavan
Respondent	:	N/A

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

Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167
Bendall-Harris v Aitken [2008] WADC 112
Brikmakers and Shire of Chittering [2017] WASAT 26; (2017) 91 SR (WA) 1
Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2024] WASAT 121
Coleman and The Owners of Peace Street Community (Survey-Strata Scheme 65005) [2020] WASAT 105
Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25
Erbrich and The Owners of 125 Herdsman Parade Wembley (Strata Plan 38066) [2020] WASAT 109
Giabeni Pty Limited and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105
Hapgood-Strickland and The Owners of 119 Doveridge Drive Duncraig (Strata Scheme 12286) [2024] WASAT 65
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Ms Helen Stephanie Carr, is the owner of Lot 13 on survey-strata plan 55030 (strata plan).
Ms Carr is in dispute with the respondent, The Owners of 252 Cosy Corner Road Kronkup survey-strata scheme 55030 (strata company). The strata company is the body corporate established under s 14 of the Strata Titles Act 1985 (WA) (ST Act) on registration of the relevant survey-strata scheme. The survey-strata titles scheme was registered by the Registrar of Titles on 30 June 2008 and comprises 16 lots of which one lot (Lot 16) is common property (survey-strata scheme) located in the City of Albany (City).
Ms Carr contends that the strata company has unreasonably refused two motions, put most recently at the Extraordinary General Meeting held on 8 July 2024 (EGM), which:
(a)required the strata company to sign the application for retrospective development approval (retrospective DA), as required by the City, in order for the City to assess her application for retrospective DA; and
(b)proposed an exclusive use by-law for Lot 13.
Because of the strata company's actions, Ms Carr submits that it is in the best interests of all of the members of the strata company (or all the lot owners) for the Tribunal to make an order under s 200(2)(n) of the ST Act that the strata company is to be taken to have passed a resolution without dissent at the EGM:
(a)giving consent to the lodgement of the application for retrospective DA; and
(b)giving consent to the associated exclusive use by-law (including the requirement for the strata company to lodge the exclusive use by-law with the Registrar of Titles for registration).
In response to the strata company's claim that Ms Carr is in breach of the ST Act and Sch 1 by-law 23 by having works (nibs, retaining walls and part driveway) done on Lot 13 without approval of the strata company, if such approval of the strata company is required, Ms Carr seeks an order from the Tribunal dispensing with the need for such approval by application of s 90 of the ST Act.
The strata company completely rejects Ms Carr's application.
It is the position of the strata company that Ms Carr knowingly and willingly built on Lot 13 and on the common property without approval of the strata company and thereby causing an unsafe hazard. Further, it is the position of the strata company that by building on 'Easement Area C' designated for water storage and supply, Ms Carr has effectively removed the safe access and prevents the firefighting services' ability to access the water tanks.
The proceeding comes within the Tribunal's original jurisdiction (s 209 of the ST Act).
In the following reasons for decision, I explain that in my view there is considerable strength in the argument that Ms Carr as a co-owner of the common property in the survey-strata scheme has effectively signed the application for retrospective DA as 'the owner' and has thereby herself given owner's consent to the lodgement of the application for retrospective DA as required by cl 62(1)(b) of the deemed provisions in local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions). However, it is common ground that the City refuses to assess Ms Carr's application for retrospective DA until the council[1] signs or affixes the common seal of the strata company to Ms Carr's application for retrospective DA. In my view, the council signing, or affixing the common seal of the strata company to the application for retrospective DA cannot be taken to mean, and does not mean that the strata company consents to, or supports in any way Ms Carr's application for retrospective DA. Rather, the affixing of the strata company's common seal on Ms Carr's application for the application for retrospective DA is simply a procedural step required by the City.
[1] 'Council' means the governing body of the strata company (see s 3 of the ST Act).
Importantly, the issue of whether or not the strata company must affix its common seal on an application for development approval (retrospective or otherwise) where common property of a strata titles scheme is involved, has not been judicially determined. In my view, this is a matter of wide significance in relation to planning and development in Western Australia, and therefore it is appropriate that, before the Tribunal expresses a concluded view on the issue, that notice be given to the Attorney General and the Minister for Planning so that the Attorney can consider whether to intervene under s 37(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the Minister can determine whether to seek leave to intervene under s 37(3) of the SAT Act in order to address the Tribunal.
In summary, Ms Carr's application to resolve the scheme dispute under s 197(4) of the ST Act is successful subject to the City approving her application for retrospective DA with or without conditions.

Relevant procedural history

On 21 September 2022, Ms Carr commenced the proceeding in the Tribunal under s 197(4) of the ST Act seeking the resolution of a scheme dispute.
Following extensive mediation sessions between the parties from April 2023 through to December 2023, including on site, which did not resolve the dispute, the Tribunal made its usual orders programming the matter through to a final hearing on 11 April 2024.
On 11 April 2024, the final hearing was vacated and the following orders, by consent of the parties, was made by the Tribunal:[2]
1.The applicant shall by no later than 2 May 2024 give to the respondent the following: An up-to-date Development Application for the signature of the respondents as representatives of the owners of the strata scheme, accompanied by a survey plan in which the structures located on common property are clearly marked. The application must include the wording of the resolution to be put to the owners at an Extraordinary General Meeting to be convened for purposes of consideration of the Application.
2.The applicant may by no later than 2 May 2024 also give to the respondent a proposed exclusive use by-law concerning the structures located on common property, including a survey plan in which the structures located on common property are clearly marked or the area sought for exclusive use is delineated, accompanied by any conditions proposed for the use and maintenance of the area of exclusive use.
3.The respondent shall by no later than 20 June 2024 convene an extraordinary general meeting to consider the applications sought pursuant to orders 1 and 2. The respondent shall ensure that the provisions of the Strata Titles Act 1985 concerning the convening of an extraordinary general meeting for purposes of consideration of a by-law to be adopted on the basis of a resolution without [dissent], are complied with.
4.The respondent shall as soon as possible after the outcome of the vote inform the applicant whether approval has been granted or refused.
…
[2] HB at page 295.
Following further programming orders, the matter was listed for a final hearing on 4 September 2024. Importantly, in the orders of the Tribunal made on 10 July 2024, it was ordered, by consent of the parties, that the hearing is to proceed pursuant to s 200(2)(n) of the ST Act.[3] That section provides:
(2)Without limitation, the orders that may be made by the Tribunal on an application under this Act include the following —
…
(n)an order that the strata company is to be taken to have passed or not to have passed a specified resolution required under this Act or the scheme by-laws as an ordinary resolution, special resolution, resolution without dissent or unanimous resolution.
…
[3] HB at page 298.
I heard the matter on 4 September 2024, following which I reserved my decision.

Evidence

As is usual with these types of matters before the Tribunal, all the documents filed with the Tribunal were taken into evidence (noting that submissions are not evidence). In making my decision for the Tribunal, I have had regard to the documents which at the final hearing, the Tribunal marked as exhibits as follows:
Exhibit 1Hearing book prepared by the Tribunal dated 30 August 2024 (301 pages) (HB);
Exhibit 2Residential Design Codes Volume 1 2024 Part B 5.3.7 Site works at page 32 and Part C 3.5 Site works and retaining walls at page 99 (two pages);
Exhibit 3Landgate aerial photographs of Lot 13 and surrounds on 21 January 2007, 18 January 2014, 5 February 2016, March-May 2016, 9 April 2020 and 7 May 2022 (six pages); and
Exhibit 4Photographs of Lot 13 and surrounds taken by the Local Government Compliance Officer, Mr Tom Wenbourne, in about December 2019 (six pages).
I had the benefit of the affirmed oral evidence of the following witnesses:
(a)Ms Carr who filed a witness statement dated 2 August 2024.[4] At the final hearing, Ms Carr confirmed the contents of her witness statement. Ms Carr gave evidence about Mr Peter Grant, licensed surveyor, attending Lot 13 to undertake a site survey, a partial re-establishment survey and to scale the exclusive use plan. Ms Carr also gave evidence that she instructed her legal representative to prepare the application for retrospective DA for 'limestone block retaining walls at sides of the northern driveway serving Unit 13';[5]
(b)Ms Zoe Richards a lot owner and a member of the council. Ms Richards filed a witness statement dated 31 May 2024.[6] At the final hearing, Ms Richards confirmed the contents of her witness statement. Ms Richards gave evidence that the strata scheme is zoned by the City for short stay holiday accommodation. Further, Ms Richards gave evidence that Ms Carr was cognisant that the crossover and the retaining walls prior to building required both the strata company and the City's approval but she intentionally went ahead without any approvals. Mr Richards gave evidence that she and other lot owners are concerned about the safety of the unapproved driveway which has a steep gradient, dropping 80 centimetres as visibility is limited when reversing down the incline at the crossover into the main entry way; and
(c)Ms Rigby a lot owner and a member of the council. Ms Rigby filed a witness statement undated but filed on 23 August 2024.[7] At the final hearing, Ms Rigby confirmed the contents of her witness statement. Ms Rigby gave evidence that the northern driveway is dangerous as vehicles are not able to turn around safely either end as the driveway is on a slope and the rear vision is very limited and it traverses onto the main thoroughfare at a 'dogleg' in the road. Further, Ms Rigby gave evidence that Ms Carr knowingly and wilfully built outside of her approved building application and on the common property without approval because it suits her needs. Ms Rigby is concerned that Ms Carr will be 'rewarded' for 'unintegral acts'.
[4] HB at pages 164 to 172.
[5] HB at pages 169 to 170.
[6] HB at pages 274 to 277.
[7] HB at pages 278 to 280.
Finally, I acknowledge both the oral and written submissions of counsel for Ms Carr which assisted me in determining this matter.

Issues

In closing written submissions[8] counsel for Ms Carr set out the following issues or questions that require determination:
[8] Counsel for Ms Carr closing written submissions filed on 19 September 2024 at page 2.

Issue 1: Whether the strata company has unreasonably opposed the motion put by Ms Carr at the EGM:
(a)directing the council (on behalf of the strata company) to sign/affix the common seal to Ms Carr's application for retrospective DA; and
(b)adopting the exclusive use by-law in favour of Ms Carr (Lot 13) and lodging the exclusive use bylaw with Landgate in accordance with the ST Act?

Issue 2: Whether the Tribunal should make an order under s 200(2)(n) of the ST Act that the strata company be taken to have passed a resolution without dissent at the EGM in respect of these motions?

The strata company disputes the issues set out above and say the following four issues arise:[9]
Issue 1: Whether Ms Carr is in breach of the ST Act and Sch 1 by‑law 23 by having works (nibs, retaining walls and part driveway) done without approval of the strata company?
Issue 2: Whether the works encroach the common property adjoining Lot 13?
Issue 3: Whether the works are dangerous with risk of injury or harm to people or property?
Issue 4: Whether allowing the structures to remain on Lot 13 and the common property will create a precedent allowing for the undermining of the ST Act and the by-laws?
[9] HB at pages 176 to 177.
Following the orders made by the Tribunal on 11 April 2024 (see above at [14]) and the orders made on 10 July 2024 (see above at [15]), the hearing proceeded pursuant to s 200(2)(n) of the ST Act. Therefore, the overarching issue, and on what the decision in this case turns, is whether or not orders should be made under s 200(2)(n) of the ST to resolve the dispute between Ms Carr and the strata company concerning the application for retrospective DA and the proposed exclusive use by‑law. It is important to restate here that as Ms Carr made her application under s 197(4) of the ST Act, the decision in this matter is ultimately determined under the ST Act and not under the Planning and Development Act 2005 (WA) (PD Act).

Regulatory framework

Grant of easement

On 26 October 1999 the then proprietor of the land being Lot 151 on Diagram 98830 and being the whole of the land (the grantor) created for the benefit of the owner of Lot 150 (the grantee) a right of carriageway and other rights on an area of land marked 'Easement Area D' and the right to maintain water tanks and water pipes on an area of land marked 'Easement Area C'.[10] The rights were created pursuant to s 136C(5) of the Transfer of Land Act 1893 (WA) (Transfer of Land Act). In relation to Easement Area C, the grantee is required to maintain, repair and replace the water tanks and water pipes and to enter upon that area for that purpose without notice it the case of emergency but in all other cases subject to written notice by the grantee to the grantor.

Survey-strata plan

[10] HB at pages 64 to 71.

On 30 June 2008, the Management Statement (by instrument K642172) along with the strata plan was registered by the Registrar of Titles. Each of the 16 lots (that was previously Lot 151) on the strata plan is encumbered with an easement burden (by instrument H304263) created under s 136C of the Transfer of Land Act for water storage and supply purposes and an easement burden created under s 167 of the PD Act for underground electricity purposes to the Electricity Networks Corporation (see above at [23]).
By way of notification (instrument K735580) there was a change of by‑laws with the repeal of Sch 1 by-law 22(3) (levy for corporate promotion). The notification was registered by the Registrar of Titles on 8 October 2008.
By notification (instrument M575699) there was a further change to the by-laws with the addition of Sch 1 by-law 32 (exclusive use of part of common property for Lots 1 to 12) and Sch 2 by-law 17 (debt collection). The notification was registered by the Registrar of Titles on 11 March 2014.
Finally, by notification (instrument O149871) there was a further change to the by-laws with an amendment to Sch 1 by-law 17(1) (appointment of a Manager). The notification was registered by the Registrar of Titles on 14 May 2019.

ST Act

Tribunal proceedings

Part 13 of the ST Act deals with Tribunal proceedings.
In proceedings under the ST Act, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding (s 200(1) of the ST Act). The types of orders that the Tribunal may make are set out in s 200 of the ST Act and include, for example, an order under s 200(2)(n) of the ST Act that the strata company is to be taken to have passed or not to have passed a specified resolution required under the ST Act or the scheme by-laws as an ordinary resolution, special resolution, resolution without dissent or unanimous resolution. In addition, the Tribunal may provide that the order is to remain in force for a specified period, until a specified event or until further order (s 200(7) of the ST Act).
It is also possible for the Tribunal to make a decision not to make an order. This is provided for in s 202 of the ST Act.
Section 200(6) of the ST Act provides that an order made by the Tribunal requiring the amendment of a scheme document[11] (such as the scheme by-laws):
(a)must specify the extent to which the amendment is subject to the obtaining of the approvals and consents that would otherwise be required under the ST Act; and
(b)does not take effect until the Registrar of Titles registers the amendment of the scheme document.

Principles in exercising the Tribunal's discretion to make an order

[11] Section 12 of the ST Act provides that a strata titles scheme is registered when 'scheme documents' which includes the scheme notice, scheme plan, schedule of unit entitlements and scheme by-laws are registered and incorporated in the Register.

The power of the Tribunal to make orders to resolve a scheme dispute or the proceeding under s 200(1) of the ST Act is a statutory discretionary power.
In Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25 at [34] to [43] the Tribunal's statutory discretionary power was explained as follows:
34The term 'discretion' was explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [200] HCA 47; (2000) 203 CLR 194 at [19] as follows:
'Discretion' … refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result".  Rather, the decision‑maker is allowed some latitude as to the choice of the decision to be made.  The latitude may be considerable … [or] it may be quite narrow[.]
35…
36… However, that is not to say that the statutory power is not without limitation.  As stated by French CJ in Minister for Immigration and Citizenship v Li[2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law.
37Legal reasonableness provides the boundaries within which a decision-maker such as the Tribunal has a genuine free discretion:  Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at [505] and Li at [23]. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order: Li at [67].
38The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes.
…
41Importantly, in exercising its statutory powers, the Tribunal must do so reasonably:  Li at [23]. The same was said in the earlier decision of Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1 where Brennan CJ stated at [36]:
[W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.]
42In other words, the statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably…
43…[T]he Tribunal in making its decision as to whether or not to exercise its statutory discretionary power to make an order, must ultimately take all considerations into account.
Most recently, in deciding whether to exercise the Tribunal's statutory discretion in Giabeni Pty Limited and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105 and Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2024] WASAT 121, I referred to Hapgood-Strickland and The Owners of 119 Doveridge Drive Duncraig (Strata Scheme 12286) [2024] WASAT 65 (Hapgood-Strickland) where the Tribunal was considering whether or not to exercise the statutory discretion in s 200(1) of the ST Act.
In Hapgood-Strickland, the Tribunal at [50] to [51] referred to Bendall-Harris v Aitken [2008] WADC 112 where Bowden DCJ held that for an order deeming a resolution to have passed as a unanimous resolution, the following four factors must be considered:
(a)any detriment to any lot owner and the extent (if any) to which it could be said to derogate from their proprietary rights;
(b)the extent of any costs to lot owners;
(c)the formalisation of longstanding informal arrangements; and
(d)creating certainty between lot owners and thus reducing disputes.
In considering whether opposition to a motion put to a meeting, for example an Annual General Meeting or an Extraordinary General Meeting is unreasonable, the following findings of the High Court in Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167 (Ainsworth v Albrecht) at [60] - [64] which concerned the Queensland strata legislation, reinforce that orders sought by a party are not to be made lightly by the Tribunal:[12]
(a)there is no requirement upon one lot owner to assist another, at least if it may reasonably be adverse to their own interest;
(b)opposition may not be unreasonable if for no other reason that a lot owner may expect something in return for giving up a right;
(c)there is no requirement that lot owners act altruistically or sympathetically at the expense of their own interest; and
(d)a reasonable apprehension of adverse effects to property rights is not unreasonable.
[12] Adopted in Hapgood-Strickland at [52].
I will apply the above principles in determining whether or not to exercise the Tribunal's statutory discretionary power under s 200(2)(n) of the ST Act to make the orders sought by Ms Carr to resolve a scheme dispute or the proceeding (see above at [4]).

Factual background

Many of the key facts are agreed by the parties, or are uncontentious facts. I make the following findings of fact which are relevant to determining the issues (see above at [22]).

Strata complex

The strata complex is located within the City and comprises 16 lots of which one lot (Lot 16) is designated common property.
There are 12 joined apartments comprising Lots 1 to 12.
Ms Carr owns Lot 13. She has owned it since 12 June 2013. It comprises one single dwelling which is currently approved for Bed and Breakfast accommodation.
Lot 14 is an empty lot.
Lot 15 contains a storage shed and three water tanks.
The nature of the easement identified on the strata plan as 'Easement Area C' created, among other things, the right to maintain water tanks and water pipes on Easement Area C for the supply of water.

Original application for development approval

On 14 November 2014 a fire destroyed the dwelling previously on Lot 13.
Following the fire, Ms Carr lodged her application for development approval (original DA) with the City to construct a new dwelling and associated structures for use as a Bed and Breakfast accommodation.
On 4 June 2015, the City approved Ms Carr's original DA for the Bed and Breakfast accommodation and associated structures subject to various conditions.
In July 2015, Ms Carr obtained building approval and commenced construction on Lot 13 of the Bed and Breakfast accommodation and associated structures. The retaining walls have been in place since about October 2015.[13]
[13] HB at page 98.
In late 2018, Ms Carr was told that structural elements of the Bed and Breakfast accommodation on Lot 13 were not consistent with the original DA as a result, in part, by surveying work completed by a third party.
On 19 June 2019, Mr Graham Cook, of Graham Cook civil and structural design consultants, opined that he had inspected the limestone retaining walls in or about Lot 13 on 24 May 2019 and found them to be structurally adequate.[14]
[14] HB at page 103.
On 30 June 2021, the City issued three enforcement notices to Ms Carr. One of the notices (notice) concerned:[15]
(a)the unauthorised construction of limestone block retaining walls at the sides of the northern driveway serving Lot 13 and on the common property; and
(b)earthworks (fill spilling from Lot 13),
without planning approval contrary to cl 60 of the deemed provisions (the unauthorised works).
[15] HB at pages 85 to 87.
The notice required Ms Carr to demolish the limestone block retaining walls at the sides of the northern driveway serving Lot 13, remove the earthworks (fill spilling from Lot 13) and to restore the land as nearly as practicable to its condition immediately before those works were undertaken. As an alternative, the City informed Ms Carr that she could elect to submit an application for retrospective DA for the unauthorised works. This was on the proviso that the 'strata management' (which I take the City was referring to the 'strata company') 'sign the development application as 'owner' as the limestone block retaining walls are partly on the common property'.[16]

Application for retrospective development approval

[16] HB at pages 85 to 86.

On 30 June 2021, Ms Carr commenced a proceeding in the Tribunal (DR 157 of 2021) under s 255(1) of the PD Act seeking a review of the decision made by the City to issue the notice. That proceeding is yet to be determined by the Tribunal (differently constituted).[17]
[17] As at the date of delivering the reasons for decision in this proceeding, the other proceeding before the Tribunal (differently constituted) in DR 157 of 2021 is listed for a directions hearing on 20 December 2024.
I am informed by counsel for Ms Carr that through a mediation process in the other proceeding (DR 157 of 2021), the City agreed for Ms Carr to submit her application for retrospective development approval (retrospective DA) in respect of the unauthorised works.
Ms Carr made an application to the City for retrospective DA but it was rejected by Mr Wenbourne for the City on 7 April 2022.[18] This was because the City required it to be signed by 'all relevant landowners'.
[18] HB at pages 89 to 90.
Further, Mr Wenbourne stated:[19]
…
Please note that the detail on the plans for the retaining around the house is the original intended (and actually carried out) limestone block retaining. This will just need amending to the as constructed alignment. The reduced boundary setback of the carport will need to be annotated on the plans and the detail of other development can also be added to these plans.
Furthermore, you will note that the carport was to be 0.5m lower than the house level, but this area was filled without approval to give a more level access transition from the parking area to the house. Consequently, this fill necessitated the need to raise the driveway and the extent of fill beyond the carport to the west resulted in the retaining at that boundary[.]
[19] HB at page 89.
On 3 June 2022, Ms Carr wrote to the strata company seeking for the council to sign or to affix the common seal of the strata company to her application for retrospective DA so that she could again submit her application for retrospective DA to the City for their assessment.
On 11 August 2022 the strata company held its Annual General Meeting (2022 AGM). Both Ms Rigby and Ms Richards are recorded as being in attendance at the 2022 AGM. Ms Carr was not recorded as present at the 2022 AGM. No proxy was recorded for her.
Item 6.1 of the minutes of the 2022 AGM concerns a motion for the exclusive use of common property by the owner of Lot 13. It reflects the following:[20]
The meeting considered the proposal from the City of Albany to allow the owner of [L]ot 13 to have exclusive use which some owners did not agree with.
Suggestion that a resolution could be reached by all owners agreeing to allow exclusive use under the terms that the owner of [L]ot 13 discontinues all other legal matters.
The [s]trata [m]anager advised the meeting a lawyer should be appointed to advise the [s]trata [c]ompany on this matter.
K Rigby stated that the [s]trata [c]ompany will not change their mind as the owner of [L]ot 13 has illegally built on the common property which includes the fire access easement.
[20] Counsel for Ms Carr Bundle of Documents dated 2 August 2024, page 60.
On 21 September 2022, Ms Carr commenced the proceeding in the Tribunal under s 197(4) of the ST Act seeking the resolution of a scheme dispute or the proceeding. The application was the subject of extensive mediation sessions, including on site, over a period of eight months from April 2023 to December 2023. The dispute was not resolved. On 14 December 2023 the matter was programmed through to a final hearing for 11 April 2024.
With the consent of the parties, the final hearing, listed on 11 April 2024, was vacated and orders were made by the Tribunal on 11 April 2024 (as amended on 10 May 2024), inter alia for:[21]
(a)Ms Carr gives to the strata company an 'up-to-date' application for retrospective DA for the common seal of the strata company accompanied by:
(i)a current survey-strata plan in which the structures located on the common property are clearly marked; and
(ii)the wording of the resolution to be put to the council at the EGM;
(b)Ms Carr, at her discretion, to give to the strata company a proposed exclusive use by-law for Lot 13 concerning the structures located on the common property, including an appropriate survey plan which clearly marks the structures and the exclusive use area; and
(c)the strata company to hold the EGM, in accordance with the requirements of the ST Act, to consider the retrospective DA and the exclusive use by-law sought by Ms Carr.
[21] HB at page 295.
On 7 June 2024, counsel for Ms Carr requested that the strata company hold an (EGM) and gave notice to the strata company requiring it to table the following three motions at the EGM:[22]
(1)in accordance with s 135(1) of the ST Act, the strata company direct by ordinary resolution that the council sign the application for retrospective DA form, authorising Ms Carr to lodge the application for retrospective DA with the City for assessment;
(2)the strata company by resolution without dissent resolve to add the exclusive use by-law to Sch 1 of the by-laws; and
(3)in accordance with s 135(1) of the ST Act, the strata company by ordinary resolution direct that if motion (two) passes, that the council arrange for the exclusive use by-law to be lodged with Landgate for registration in accordance with the ST Act.
[22] HB at page 126.
In the same letter of 7 June 2024, counsel for Ms Carr made the following comments:[23]
15[T]his retrospective development application differs to that initially put to the [s]trata [c]ompany at the AGM held on 11 August 2022.
16In particular, this retrospective development application is made in respect of the development on the adjoining common property area CP16, being the limestone block retaining walls at the sides of the northern driveway serving [Lot 13] only.
17[T]he retrospective development application includes a current survey plan in which the structures located on common property are clearly marked. In addition, … included [is] an elevation of the development in question.
[23] HB at page 132.
The application for retrospective DA provides the following under the heading 'Proposed Development':[24]
Description of proposed works and/or land use:
Limestone block retaining walls at the sides of the northern driveway serving Unit 13.
Nature of any existing building and/or land use:
Existing bitumen driveway serving Unit 13.
Estimated time of completion: Completed (application for retrospective approval)
[24] HB at page 134.
On 10 June 2024, the strata manager issued a notice to all the members of the strata company for an EGM to be held on 27 June 2024. The notice and online ballot paper did not have the motions put forward by Ms Carr. This was corrected by the strata manager on 24 June 2024 and a new notice was issued for the EGM to be held on 8 July 2024 (2024 EGM).
Besides Mr Jayde Boucher from Emerson Raine, strata manager, who was the chairperson for the 2024 EGM, Ms Carr, Ms Richards, Ms Rigby, Mr Jeffrey John Dalesio and Ms Felicity Della Gola attended the 2024 EGM. Mr Dalesio was proxy for Lot 3. Mr Boucher was proxy for Lot 5. Ms Gola was proxy for Lot 7. Ms Richards was proxy for each of Lot 4, 6, 10, 12, 14 and 15. Ms Rigby was proxy for Lot 9. Ms Carr attended as the owner of Lot 13. There was no attendance or proxy for Lots 1, 2, 8 and 11.
Finally, at the 2024 EGM the three motions put by Ms Carr (see above at [62]) were considered and voted on. All three motions were defeated. No reasons as to why the motions were defeated are contained in the minutes of the EGM.

Consideration

Jurisdiction

Neither party challenged the jurisdiction of the Tribunal. However, I must be satisfied that the Tribunal has jurisdiction to resolve the dispute between Ms Carr and the strata company.
Ms Carr made her application to the Tribunal under s 197(4) of the ST Act seeking the resolution of a scheme dispute. Section 197 of the ST provides for the resolution of certain 'scheme disputes' including a resolution or decision of a strata company, or the council of a strata company (s 197(1)(a)(iv) of the ST Act).
I am satisfied that the Tribunal has jurisdiction under s 197(4) of the ST Act to determine the dispute between Ms Carr and the strata company. The 'scheme dispute' arises from the 2024 EGM where the council refused to sign or to affix the common seal of the strata company to Ms Carr's application for retrospective DA and to consent to the exclusive use by-law for Lot 13.
Ms Carr and the strata company are the 'scheme participants' as that term is defined in s 197(2) of the ST Act. This is because Ms Carr is the owner of Lot 13 in the strata scheme (and has been the owner since 12 June 2013). The strata company is expressly listed as a scheme participant in s 197(2) of the ST Act.
Finally, s 197(4) of the ST Act provides that an application to the Tribunal may be made by a party to the dispute for the resolution of a scheme dispute. I am satisfied and I find that Ms Carr is a party to the dispute and made the application to the Tribunal.
I now turn to consider whether to exercise the Tribunal's discretion to make orders under s 200(2)(n) of the ST Act to resolve the scheme dispute (see above at [70]). In order to do that, I will need to consider Ms Carr's application for retrospective DA and also the proposed exclusive-use by-law.

Application for Retrospective DA

The City identifies earthworks (fill spilling from Lot 13) and the limestone retaining walls work not included in the plans approved as part of the original DA. As such, the City requires:
(a)the unauthorised works (see above at [51]) to be removed and the land restored as nearly as practicable to its condition immediately before the works were done; or alternatively
(b)for Ms Carr to complete and submit an application for retrospective DA in respect of the limestone retaining walls where the application for retrospective DA is signed by the 'strata management' (which, as I noted earlier, I understand to mean the 'strata company').[25]
[25] HB at page 85 to 88.
Ms Carr's application for retrospective DA is provided at Annexure C attached to these reasons. This is the form that Ms Carr seeks the council to sign or to affix the common seal of the strata company as required by the City in order for the City to assess her application.
According to counsel for Ms Carr, the City has expressed no issue with the function of the northern driveway as it currently is, but that the retaining walls and earthworks require approval for their use and construction.[26]
[26] HB at page 58 and 89 to 90.
At the 2024 EGM:
(a)the motion requiring the strata company by its council to sign the application for retrospective DA (or to affix the common seal of the strata company), was defeated 10:1;
(b)the motion that the strata company resolve without dissent the exclusive use by-law for Lot 13 was defeated 9:1 with one owner abstaining; and
(c)the motion for the strata company to lodge the exclusive use bylaw for Lot 13 for registration by the Registrar of Titles was defeated 9:1 with one owner abstaining.
As stated earlier, and repeated here, I am determining this matter under the ST Act and not under the PD Act. However, in my view, it is necessary to understand some of the requirements under planning legislation, in particular the 'deemed provisions' and 'owner's consent' in the circumstances of this case where the City refuses to assess Ms Carr's application for retrospective DA until the council sign the application or affixes the common seal of the strata company to it.

Deemed provisions

As noted earlier in these reasons, the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) include what is often referred to as the 'deemed provisions' (see above at [9]).
Part 8 of Sch 2 of the deemed provisions is headed 'Applications for development approval'. That part comprises cl 62 to cl 65. Clause 62(1) of Part 8 of Sch 2 of the deemed provisions sets out the regulated form of application for development approval and relevantly requires the application to be signed by 'the owner of the land' as follows:
62.Form of application
(1)An application for development approval must be —
…
(b)signed by the owner of the land on which the proposed development is to be located[.]
(Tribunal's emphasis)

Owner of the land

Then at cl 62(2) of Part 8 of Sch 2 of the deemed provisions it is stated that for the purposes of cl 62(1)(b), a person or body may sign an application for development approval as the owner of freehold land if the person or body is one of the following:
(a)a person who is referred to in the definition of owner in respect of freehold land in clause 1;
(b)a strata company that —
(i)is authorised to make an application for development approval in respect of the land under scheme by‑laws registered under the Strata Titles Act 1985; and
(ii)if the land is held under a leasehold scheme, has the written consent of the owner of the leasehold scheme to make the application;
(ba)a community corporation for a community titles scheme that is authorised to make an application for development approval in respect of the land under scheme by‑laws registered for the community titles scheme under the Community Titles Act 2018;
(c)a person who is authorised under another written law to make an application for development approval in respect of the land;
(d)an agent of a person referred to in paragraph (a).
(Tribunal's emphasis)
The term 'owner' is defined in cl 1 of Part 1 of Sch 2 of the deemed provisions as follows:
owner, in relation to land, means —
(a)if the land is freehold land —
(i)a person whose name is registered as a proprietor of the land; and
(ii)the State, if registered as a proprietor of the land; and
(iii)a person who holds an interest as purchaser under a contract to purchase an estate in fee simple in the land; and
(iv)a person who is the holder of a freehold interest in land vested in an executor or administrator under the Administration Act 1903 section 8;
and
(b)if the land is Crown land —
(i)the State; and
(ii)a person who holds an interest as purchaser under a contract to purchase an estate in fee simple in the land;
(Tribunal's emphasis)

'Owner's consent'

The statutory basis for the requirement for 'owner's consent' on an application for development approval under the PD Act is set out in Coleman and The Owners of Peace Street Community (Survey-Strata Scheme 65005) [2020] WASAT 105 (Coleman) where the following is stated at [28]:
The signature on a development application by 'the owner of the land on which the proposed development is to be located', which is required by cl 62(1)(b) of the deemed provisions, is commonly known as 'owner's consent' to the making of the development application. The giving of owner's consent to the making of a development application is a condition precedent to the lodgement of the development application with the planning consent authority. Put another way, the planning consent authority cannot consider and determine a development application unless owner's consent to the making of the development application has been given on the development application form.
(Tribunal emphasis)
Because of this 'owner's consent', Ms Richards and Ms Rigby question, 'Why would one allow an application to be lodged [with the City] to then object to it?[27] Further Ms Richards and Ms Rigby are concerned that:
If the [s]trata [c]ompany give their signatures [or to affix the common seal of the strata company] for the retrospective development application, then they are deemed to have supported [Ms Carr's] development.

Procedure to assess the application for retrospective DA

[27] Closing written submissions filed by the strata company on 11 September 2024 at page 5.

It is clear that Ms Carr is the 'owner' of Lot 13 as she is the registered proprietor of Lot 13 on the strata plan per the Certificate of Title. If the application for retrospective DA only concerned a proposed development or works completed solely within Lot 13, it is clear that only Ms Carr is required to sign the application for DA or the application for retrospective DA form.
However, as is the case here, the unauthorised works were done partly on the common property adjacent to, or near Lot 13. It is clear that Ms Carr has a share in the common property as set out on the strata plan and is stated as such on the Certificate of Title for Lot 13. Ms Carr's share in the common property is per her unit entitlement (that is, Ms Carr's share in the common property is 100 units out of 845 units).
In my view, Ms Richards' and Ms Rigby's concerns (see above at [84]) are not warranted. This is because, importantly, the City on receiving an application for a DA or an application for retrospective DA must follow the procedure set out in Pt 9 of Sch 2 of the deemed provisions to decide if the application for DA or the application for retrospective DA, as the case may be, is to be approved (with or without conditions) or is to be refused. Then, if the application for DA or the application for retrospective DA, as the case may be, is approved by the City, an affected person (being the owner of land in respect of which an application for DA or the application for retrospective DA is made) may seek a review of a reviewable determination, being the development approval granted or development approval granted subject to conditions. Such request for a review of a reviewable determination must be made in accordance with cl 76 of Pt 9 of Sch 2 of the deemed provisions.
In other words, it does not follow, in my view, that if the strata company gives what is often referred to as 'owner's consent' by affixing its common seal to the application for DA or the application for retrospective DA as 'the owner of the land on which the proposed development is to be located' that the strata company approves or in any way supports the DA or the application for retrospective DA.

Signing or affixing the common seal of the strata company to the retrospective DA

Following Brikmakers and Shire of Chittering [2017] WASAT 26; (2017) 91 SR (WA) 1 at [44] to [54] (Brikmakers and Shire of Chittering), in my view, there is considerable strength in the argument that Ms Carr, as a co-owner of the common property in the survey-strata scheme, has effectively signed the application for retrospective DA as 'the owner' and has thereby given 'owner's consent' to the lodgement of the application for retrospective DA under cl 62(1)(b) of Part 8 of Sch 2 of the deemed provisions. On this view, the signature or the affixing of the common seal of the strata company is not necessary. However, the City's position is that the application for retrospective DA requires the strata company to sign or affix its common seal to the application for retrospective DA form before the City will accept it for assessment.
Because of the City's position, counsel for Ms Carr submit that rather than to seek to agitate the legal position as to whether or not the strata company is required to sign the application for retrospective DA form, that Ms Carr proceeds to seek 'owner's consent' from the strata company in the manner required by the orders made by the Tribunal on 11 April 2024 (see above at [14]) and the orders made on 10 July 2024 (see above at [15]), by consent of the parties, that the hearing is to proceed pursuant to s 200(2)(n) of the ST Act.[28] As previously stated, and repeated here, s 200(2)(n) of the ST Act empowers the Tribunal to make an order to resolve a scheme dispute by ordering that the strata company is taken to have passed a specified resolution required under the ST Act or the scheme by-laws as an ordinary resolution, special resolution, resolution without dissent or unanimous resolution.
[28] Counsel for Ms Carr closing written submissions filed on 19 September 2024 at page 6.
For completeness, I note that in Coleman, it was not necessary for the Tribunal to make a conclusive determination as to whether the registered proprietor (owner) of a lot in a strata scheme can give 'owner's consent' to the lodgement of a development application or a retrospective development application in relation to common property under cl 62(1)(b) of Sch 2 of the deemed provisions. This is because, the Tribunal in that case determined the dispute before it under s 83(1) of the ST Act as it was prior to 1 May 2020 (the Prior Act) which is similar in terms to s 197(4) of the ST Act and which is the provision Ms Carr has made her application to the Tribunal.
I have proceeded on the above basis, that is, to not determine if the strata company must sign or affix its common seal to the application for retrospective DA under planning law by reference to the deemed provisions, but rather to determine the matter under the strata law pursuant to s 200(2)(n) of the ST Act.
In my view, following Brikmakers and Shire of Chittering and Coleman, in order to resolve the scheme dispute, it is reasonable for the council to sign or affix the common seal of the strata company to Ms Carr's application for retrospective DA in order for Ms Carr to lodge the application for retrospective DA with the City (as required by the City) for their assessment.
To be clear, an order requiring the council to sign or to affix the common seal of the strata company to Ms Carr's application for the application for retrospective DA does not mean and cannot be taken to mean that the strata company consents to, or supports in any way, Ms Carr's application for retrospective DA. Rather, the signing or the affixing of the strata company's common seal on an application for retrospective DA is simply a procedural step, that in this case, is required by the City in order to assess the application.
The reasons for this are as follows. First, I am informed the City has refused to assess Ms Carr's application for retrospective DA without council signing it or affixing the common seal of the strata company. In my view, this position of the City may be incorrect under the PD Act. However, as stated earlier, and repeated here, I am not determining whether or not under planning law both Ms Carr and the strata company are required to give 'owner's consent' on the application for retrospective DA. Rather, I am determining a scheme dispute under the ST Act.
Second, by the council signing or affixing the common seal of the strata company to the application for retrospective DA, this will enable Ms Carr to submit her application to the City. The City must then assess the application for retrospective DA by following the procedures set out in Pt 9 of Sch 2 of the deemed provisions to decide if the application for retrospective DA is to be approved (with or without conditions) or is to be refused.
Third, if the application for retrospective DA is granted by the City, an 'affected person' (for example, the strata company being the owner of land in respect of which an retrospective DA is made is an 'affected person') may seek a review of a reviewable determination. Such request for a review of a reviewable determination must be made in accordance with cl 76 of Part 9 of Sch 2 of the Regulations.
I turn now to consider the proposed exclusive use by-law.

Proposed exclusive use by-law

The draft exclusive use by-law for Lot 13 that is proposed to be added to Sch 1 of the survey-strata scheme's by-laws (by-laws) is provided at Annexure B (proposed exclusive use by-law) which is attached to these reasons for decision.[29]
[29] HB at pages 139 to 141.
In addition, the 'Exclusive Use Plan' of the exclusive use area as set out in the draft exclusive use by-law for Lot 13 is provided for at Annexure A attached to these reasons for decision.[30] The Exclusive Use Plan was prepared by Mr Peter Grant, licensed surveyor from Naturaliste Land Surveys on or about 24 May 2024. The Exclusive Use Plan depicts an area of 57m² comprised of area 'A' which includes limestone retaining walls and bitumen driveway of 22m² and the additional area 'B' which extends to the main bitumen access driveway adding an additional area of 35m².
[30] HB at page 141.
The strata company challenges the proposed exclusive use by-law on the basis that it 'will not sufficiently work'.[31] It is the position of the strata company that:[32]
The ramifications of all [s]trata complexes would be disastrous and set precedence if … a lot owner was permitted, after the fact, to be allowed unauthorised constructions upon the common property. Particularly one that does not benefit the entirety of the [s]trata [c]omplex and one that is inherently dangerous.
…
We cannot allow by-laws to be undermined or understated. We must set an example. Our [s]trata is a complex for holiday makers, not residential living. Both our [s]trata and the adjoining [s]trata must work together to make this complex what it was designed to be. A [h]oliday [d]estination. We must work together for the benefit of our tourists not to our own agenda. It must be safe, and it must be coherent[.]
[31] Closing written submissions filed by the strata company on 11 September 2024 at page 4.
[32] Ibid at page 5 to 6.
It is useful to start at s 44 of the ST Act. It is the general by-law making power for a strata company. This section falls within part of Div 4 of Pt 4 of the ST Act which is headed 'Scheme by-laws', with Pt 4 headed 'Scheme documents'. The strata company may make 'governance by-laws' or 'conduct by-law' for the strata titles scheme, including by-laws that amend or repeal the by-laws it is taken to have made on the registration of the scheme (see above at [24] where the Management Statement was registered by the Registrar of Titles on 30 June 2008): s 44 of the ST Act.
By-laws are important because they may apply to various persons including the strata company and members of the strata company (s 45(1) of the ST Act). Each person to whom the by-laws apply, must comply with them as if they were a deed containing mutual covenants to observe and perform the matters set out in the by-laws (s 45(2) of the ST Act). Failure to do so, may result in enforcement action being taken under s 47 of the ST Act.

Governance by-law

The term 'governance by-laws' is defined in s 3 of the ST Act and relevantly means:
(a)… scheme by-laws dealing with —
(iii)exclusive use of common property in the scheme;
and
(b)includes the following —
…
(iv)exclusive use by-laws;
…
'Conduct by-laws' are also defined in s 3 of the ST Act and excludes 'governance by-laws'.
Counsel for Ms Carr submits that the proposed exclusive use by-law would be an exclusive use by-law that falls within s 43 of the ST Act. This is because the proposed by-law concerns part of the common property adjacent to Lot 13 and which confers exclusive use and enjoyment of that part of the common property to the occupier, for the time being, of Lot 13.
Common property is defined in s 10 of the ST Act. It includes the part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot. For example, on the strata plan, the area of 7,899m² and marked 'CP16', is common property. However, the proprietors (owners) of Lots 1 to 12 have exclusive use of the area highlighted on CP16 for their exclusive use pursuant to Sch 1 by-law 32 which was registered by the Registrar of Titles on 11 March 2014.

Exclusive use by-law

Section 43 of the ST Act is headed 'Exclusive use by-laws' and enables the strata company to make by-laws which confer exclusive use and enjoyment of, or special privileges over, the whole of the common property or over specified common property. The section provides:
43.Exclusive use by‑laws
(1)Exclusive use by‑laws of a strata titles scheme are scheme by‑laws that confer exclusive use and enjoyment of, or special privileges over, the common property in the strata titles scheme or specified common property in the strata titles scheme (the special common property) on the occupiers, for the time being, of a specified lot or lots in the strata titles scheme (the special lots).
(2)Exclusive use by‑laws may include the following —
(a)terms and conditions on which the occupiers of special lots may use the special common property;
(b)particulars relating to access to the special common property and the provision and keeping of any key necessary;
(c)particulars of the hours during which the special common property may be used;
(d)provisions relating to the condition, maintenance, repair, renewal or replacement of the special common property;
(e)provisions relating to insurance of the special common property to be maintained by the owners of special lots;
(f)matters relating to the determination of amounts payable to the strata company by the owners of special lots and the imposition and collection of the amounts.
(3)Subject to the terms of exclusive use by‑laws, the obligations that would, apart from this subsection, fall on the strata company under section 91(1)(c) in relation to the special common property fall instead on the owners of the special lots.
(4)An amount payable by a person to a strata company under exclusive use by‑laws must be paid (together with interest on any outstanding amount) and may be recovered by the strata company, as if the amount payable were an unpaid contribution levied on the person as a member of the strata company.
(5)Exclusive use by‑laws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot has given written consent to the by‑laws.
I am satisfied and I find that the proposed exclusive use by-law seeks to confer exclusive use and enjoyment of, or special privileges over part of the common property. It therefore falls in the category of governance by-laws. This type of by-law require a resolution without dissent as provided for in s 44(2) as follows:
(2)The resolution to make by‑laws must be —
(a)for governance by‑laws — a resolution without dissent; and
(b)for conduct by‑laws — a special resolution.
The definition of a 'resolution without dissent' for a strata scheme is found in s 123(2) and (3) of the ST Act. Where there are more than two lots, which is the case here, a resolution is a resolution without dissent if:
(a)14 days' notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and
(b)no vote attached to a lot in the scheme is cast against the resolution.
It is common ground that the proposed exclusive use by-law was not passed by the strata company as a resolution without dissent most recently at the 2024 EGM. The resolution to add the exclusive use by‑law to Sch 1 of the scheme by-laws at the 2024 EGM was defeated 9:1 with one owner abstaining from voting.[33] The 2024 EGM was a very short meeting, lasting a total of nine minutes which suggests there was little discussion on the four agenda items.
[33] HB at page 174.
It is not possible to glean from the minutes of the 2024 EGM as to the reason(s) owners voted against the proposed exclusive use by-law. This is because the rationale of owners dissenting is not recorded in the minutes of the 2024 EGM. It is therefore not possible to discern from the minutes if there was a sensible or reasonable basis for the dissent. However, Ms Richards and Ms Rigby in their respective witness statements and in the statement of issues, facts and contentions (SIFC) for the strata company set out their concerns about the exclusive use by‑law and why they voted against the resolutions at the 2024 EGM.

To avoid unnecessary repetition, I will consider Ms Richards' and Ms Rigby's main concerns about the proposed exclusive use by-law as set out in their respective witness statements and those of the strata company as set out in the SIFC later in these reasons when I consider whether to exercise the Tribunal's discretion to make orders under s 200(2)(n) of the ST Act to resolve the scheme dispute.
I now turn to consider the strata company's concern that Ms Carr's application for retrospective DA includes structural alterations to Lot 13 which do not have the approval of the strata company under Sch 1 by‑law 23 and/or s 87 of the ST Act.

Whether structural alteration to Lot 13?

Counsel for Ms Carr submit that the works sought to be approved by the application for retrospective DA are not structures for the purposes of the ST Act or the by-laws, in particular Sch 1 by-law 23 and s 87 of the ST Act. This in on the basis, according to counsel for Ms Carr, that the works are exempt for the purposes of the City's Local Planning Scheme No. 2 (LPS 2) - Table 6 Supplemental provisions to cl 61(1) of Sch 2 of the deemed provisions.[34]
[34] Closing written submissions filed by the strata company on 19 September 2024 at pages 11 and 13.
With respect, I do not accept counsel for Ms Carr's position that the works are not structures for the purposes of the ST Act simply because they are exempt for the purposes of the City's LPS 2. That is, it does not follow that because something is exempt under planning legislation that the same thing is automatically exempt under strata titles legislation.
If there is any doubt that the works are 'exempt', counsel for Ms Carr urges the Tribunal to exercise its discretion under s 90 of the ST Act to exempt the works, if they are found to be structural alterations to Lot 13, from the need for an application for approval from the strata company pursuant to s 87 of the ST Act. Such an order should be made, submits counsel for Ms Carr, in circumstances that:
(a)the structural alteration of Lot 13 is reasonable, having regard to the merits of the alteration and the interests of all owners in the use and enjoyment of their lots and the common property; and
(b)to the extent the structural alteration has already been carried out to Lot 13, it will not cause any significant inconvenience or detriment to the owners of the other lots.
The position of the strata company is that Ms Carr has disobeyed Sch 1 by-law 23 which she confirmed in giving evidence. Further, the strata company says that Ms Carr in giving evidence conceded that the reason for her failing to comply with the by-laws was because, in her view, the strata company is 'dysfunctional'.[35]
[35] Ibid at pages 2 to 3.
It is the view of the strata company that:[36]
… an attempt at requesting the appropriate approvals not only from the strata company but also from the City of Albany would have been favourable to Ms Carr and quite possibly could have prevented this negligence that has occurred. Instead however, Ms Carr took it upon herself to forgo these legal requirements and forge on with changes she deemed appropriate for her perceived needs of her property development.
[36] Ibid at page 3.
The works subject to the application for retrospective DA were done when the Prior Act was in force. Under the Prior Act, s 7A required approval of the strata company for structural alterations (including prescribed improvements) to a lot. It is the position of the strata company that approval from the strata company was not sought by Ms Carr either before the works commenced or after completion. Ms Carr did not challenge this.
Schedule 1 by-law 23 is part of the Management Statement (see above at [24]). It relevantly provides:
23.ARCHITECTURAL AND LANDSCAPE STANDARDS
The proprietor of a lot shall not construct, erect or install, or permit to be constructed or erected or installed on a lot -
…
(c)any building or building addition without the approval of the strata company obtained in accordance with sections 7A and 7B of the [Prior Act];
…
The starting point is to consider if the works subject to the application for retrospective DA are a 'structure' which requires prior approval by the strata company pursuant to s 7A of the Prior Act.

Structure

In Erbrich and The Owners of 125 Herdsman Parade Wembley (Strata Plan 38066) [2020] WASAT 109 (Ebrich) the Tribunal considered what a 'structure' is for the purposes of the Prior Act at [49] to [55] as follows:
49As stated by the Tribunal in Sun [The Owners of Arbor North Strata Plan 67510 and Sun [2020] WASAT 28] at [21]], the term 'structure' is not defined in the ST Act apart from s 7(6) of the ST Act which provides that the term structure includes 'any prescribed improvement'.
50This means that the ordinary meaning of 'structure' is to be used.  This was confirmed in the recent decision of The Owners of 5 Thor Street Innaloo Strata Plan 72475 and Maul [No 2] [2020] WASAT 81, where the Tribunal stated at [79] that the word 'structure' in the context of s 7 of the ST Act is to take its ordinary meaning.
51Ordinarily the term 'structure' means built up as in a building.  This is supported by the decision in Sun where the Tribunal stated at [23]:
The term 'structure' ordinarily means something which is constructed in the way of being built up as in a building.  In South Wales Aluminium Co Ltd v Assessment Committee for the Neath Assessment Area [1943] 2 All ER 587 Atkinson J stated at 592:
… There is nothing to suggest here that the word 'structure' is not to be used in its ordinary sense … I suppose it means something which is constructed in a way of being built up as in a building; it is in the nature of a building.  It seems to me it is not in the nature of a building, or a structure analogous to a building, unless it is something which you can say quite fairly has been built up.  I do not think that is the only guide or the only test, but roughly, I think that must be the main guide: how has it got there? Is it something which you can fairly say has been built up[?]
52The strata company (correctly) submitted that the decision in Sun is not relevant in the present case to determine whether the timber floor decking boards and the timber pergola roof louvres are a 'structure'.  This is because Sun concerned whether a gazebo (pergola) that was placed on the proprietor's lot without prior consent of the strata company was a structure in the context of s 7(2) and s 103G(2) of the ST Act. The current proceedings do not concern s 7(2) or s 103G(2) of the ST Act.
53Whether a thing is a structure in any particular case is a mixed question of law and fact.  This was stated by the Tribunal in Sun at [26] as follows:
Whether a thing is a structure in any particular case is a mixed question of law and fact having regards to the ST Act in context of which its meaning must be ascertained.
54Giving the word 'structure' its ordinary meaning as set out in [51], the Tribunal finds that the timber floor decking boards and the timber pergola roof louvres are not structures but rather they are finishings. In other words, the Tribunal is of the view that the timber floor decking boards and the timber pergola roof louvres are not essential to the structure of the building but give a complete or finished appearance.
55In the Tribunal's view, it cannot be fairly said that the timber floor decking boards have been 'built up' in the way of being built up as in a building. The same is true for the timber pergola roof louvres, that is, they have not been 'built up' in the way of being built up as in a building. The mere fact that the timber floor decking boards and the timber pergola roof louvres are fixed to the building does not make them a part of the integral structure of the building. The timber floor decking boards and the timber pergola roof louvres cannot be equated to such items as the steel columns, steel beams, steel balustrades and timber joists that benefit the building which must be maintained by the strata company pursuant to its duty in s 35(1)(c) of the ST Act.
In my view, the limestone block walls and the bitumen northern driveway serving Lot 13 as set out in Ms Carr's application for retrospective DA are not structures. This is because, like the timber floor decking boards and the timber pergola roof louvres in Ebrich, the limestone block walls and bitumen driveway serving Lot 13 are not essential to the structure of the building but give a complete or finished appearance.
If I am incorrect, and the limestone block walls and/or the bitumen northern driveway serving Lot 13 are structures for the purposes of the ST Act, then in my view, it is reasonable to exercise the Tribunal's discretionary power under s 90 of the ST Act to make an order dispensing with approval for a structural alteration to a lot or under s 197(4) of the ST Act to resolve the scheme dispute by making an order dispensing with the approval for any such structural alterations to Lot 13. My reasons are as follows.
First, it is common ground that Ms Carr did not seek approval of the strata company. Under s 103F of the Prior Act, a proprietor (Ms Carr) could not apply to the Tribunal for an order dispensing with approval required under s 7A of the Prior Act as she had not applied to the strata company for approval. However, the position under s 90 of the ST Act provides that an order may be made regardless of whether the owner (Ms Carr) had applied to the strata company for approval.
Second, while Ms Richards and Ms Rigby have raised their concerns that the unauthorised works are an 'unsafe hazard' based on their experiences at the strata complex, there is no expert evidence (for example, from a safety or hazards assessor or traffic engineer) to support that conclusion. Rather, the only expert evidence before the Tribunal is Mr Cook's written statement where he opined that he had inspected the limestone retaining walls on 24 May 2019 and found them to be structurally adequate.
In conclusion, in my view the limestone walls and the bitumen driveway serving Lot 13 are not structural alterations. Consequently, approval of the strata company under s 7A of the Prior Act (s 87 of the ST Act) was not required.

Whether the Tribunal should make orders under s 200(2)(n) of the ST Act?

The strata company alleges that the cause of the scheme dispute is that Ms Carr knowingly and wilfully breached the ST Act and by-laws to build on the common property without permission and her failure to comply with the original DA granted by the City.
Ms Carr disagrees with the strata company and says that the unauthorised works on the common property and other structural elements of her Bed and Breakfast on Lot 13 arose because of the negligent surveying works of a third party (who was the subject of separate proceedings before the Tribunal in VR 7 of 2021. There, the Tribunal (differently constituted) found proper cause exists for disciplinary action against that third party).
No doubt Ms Carr thinks that the strata company is being unreasonable and that the strata company thinks that Ms Carr is being unreasonable in circumstances were resolutions were put to the 2024 EGM but were defeated. As explained earlier, and useful to repeat here, is that this matter has had the benefit of numerous mediation sessions over an extensive period of time, but the parties were not able to resolve their differences. Therefore, in my view, this is a case which appears not to be capable of resolution without intervention of the Tribunal.
In The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1 (Russell), the Tribunal held that where there is a deadlock between the member of the strata company who is a co-owner of the common property and the strata company, the ST Act intends that there be a practicable means to break that deadlock.
Relevantly, the Tribunal stated in Russell at [59] to [61]:
In dealing with whether or not a strata company has unreasonably refused to do that which it allegedly should have done, the Tribunal has consistently taken an approach that the management of the strata company is best left to the strata company and that the Tribunal should not too readily impose its own views on what is unreasonable. … At the same time, the legislature has intended that there be a practicable means of breaking deadlocks between the members of a strata company who are co-owners of the common property, live often in close proximity, and who should desire to live in harmony with each other.
The Tribunal has fulfilled that role in circumstances where resolutions proposed to the strata company have failed whether due to the dissent of a single lot owner, or a majority of lot owners by examining the rationale for dissent to ascertain whether there is a sensible basis for dissent.
(Tribunal's emphasis)
There is of course no requirement for an owner to assist another owner, or that an owner acts altruistically or sympathetically at the expense of their own interests.[37]
[37] See Ainsworth v Albrecht at [60] to [64] and Hapgood-Strickland at [52].
However, in circumstances where a resolution proposed, such as the proposed exclusive use by-law put to the 2024 EGM, failed, or where the strata company refuses to give 'owner's consent' on the application for retrospective DA, orders of the Tribunal may be the only practicable means of breaking the deadlock between the member of the strata company who proposed the resolution and the strata company.
Ms Carr, like the applicant in Coleman, faces a 'roadblock' in circumstances where the City refuses to assess Ms Carr's application for retrospective DA unless it is signed by the council or the common seal of the strata company is affixed as 'the owner of the land on which the proposed development is to be located' under cl 62(1)(b) of the deemed provisions.
Earlier in these reasons (see above at [93] to [97]), I explained why, in my view, following Brikmakers and Shire of Chittering and Coleman, one way to resolve this 'roadblock' (or deadlock) under the ST Act is provided for in s 200(1) of the ST Act which enables the Tribunal to make orders to resolve or settle the scheme dispute between Ms Carr and the strata company. The types of orders the Tribunal may make are set out in s 200(2) of the ST Act.
Section 200(1) of the ST Act is general power that authorises the Tribunal to make an order to resolve a scheme dispute including with respect to taking specific action or to refrain from taking specified action in the performance or exercise of its functions. The precondition which enlivens the discretion conferred on the Tribunal to make an order under s 200(1) of the ST Act is that the Tribunal must be satisfied there is a scheme dispute or proceeding. Earlier, I determined that there is a scheme dispute between Ms Carr and the strata company (see above at [70]).
The discretion conferred by s 200(1) of the ST Act to make an order is not limited by any mandatory considerations. However, that is not to say that the statutory power is not without limitation. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order to resolve a dispute or proceeding. The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its Long title, the ST Act is to provide for, among other related purposes, 'for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes'.
In my view, the Tribunal's statutory task, as revealed by a consideration of the ST Act as a whole and, in particular, s 200(1) of the ST Act is that if the Tribunal finds that there is a scheme dispute then the Tribunal may make an order on the application, in this case by Ms Carr, as the owner of Lot 13, to resolve the scheme dispute or proceeding. Importantly, the Tribunal's statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably. Section 200(1) of the ST Act is to be construed accordingly.
In the following paragraphs I set out my consideration of whether it is reasonable in all of the circumstances of this case to exercise the Tribunal's discretion to make an order under s 200(2)(n) of the ST Act to resolve the scheme dispute between Ms Carr and the strata company in respect of the application for retrospective DA and the proposed exclusive use by-law. In doing so, I will consider the interests of both Ms Carr and the strata company, which has the responsibility to control and manage the common property for the benefit of all owners (s 91 of the ST Act).

Detriment

The strata company says that Ms Carr knowingly and wilfully built on the common property causing an unacceptable and unsafe hazard. Ms Richards and Ms Rigby explained that safety arising from the raised level of the driveway is a major concern. They each gave evidence that vehicles exiting the northern boundary do so by reversing down the northern driveway, which is very unsafe and places at risk the drivers on main thoroughfare, the residents and visitors or other persons attending the strata scheme. Ms Richards and Ms Rigby contend that the removal of the northern driveway will allow for a better design that can incorporate and satisfy the building development conditions that were placed on the land.
It is the position of the strata company that the removal of the limestone retaining walls may save a person from physical injury and also reduce the number of complaints made by Ms Carr to delivery drivers, bus drivers and others who use that the northern driveway to turn around their vehicles.
The strata company is also concerned that the proposed exclusive use by-law effectively withdraws access to multiple areas of the common property, including access to another lot and access ways used by visiting tourists.
Originally, the strata company's position was that Ms Carr knowingly and wilfully built on Easement Area C for water storage and supply and thereby removed safe access for the supply and storage of drinking water. However, at the final hearing, Ms Richards and Ms Rigby did not press this stating that the water tanks on Easement Area C were now used for fire mitigation.
The strata complex is not available for residential living and is part of a holiday complex which has multiple accommodation businesses. This means that many people to the strata complex will be visitors or tourists who are unfamiliar with the surroundings. This is evident from the evidence given by Ms Richards and Ms Rigby that people use the northern driveway to turn around their vehicles, and who may have received a complaint from Ms Carr from doing so.
While it is appropriate for Ms Rigby and Ms Richard to raise concerns about safety, there is no expert evidence before the Tribunal in the fields of traffic engineering and traffic safety or hazards to support their concerns.
The strata scheme was registered in 2008 under the Prior Act. When Ms Carr purchased Lot 13 she purchased proprietary rights. Ms Carr's proprietary rights include an interest in the common property per her unit entitlement. Form 3 on the strata plan reflects Ms Carr's unit entitlement as 100 units out of an aggregate of 845 units. The other lot owners also have an interest in the common property per their respective unit entitlement. If Ms Carr is granted an exclusive use of part of the common property her unit entitlement does not change. Similarly, the unit entitlement of the other lot owners will not change if Ms Carr is granted an exclusive use by-law for part of the common property. Similar to the conversion of a strata title scheme to a survey-strata scheme, this does not appear to derogate from either Ms Carr's or any other owner's proprietary interests if the proposed exclusive by-law is passed as a resolution without dissent.

I am satisfied and I find that the northern driveway's encroachment on the common property, as shown on the Exclusive Use Plan (attached as Annexure A to these reasons), is small by reference to the layout of the common property area. Further, I am satisfied and I find that the limestone retaining walls that encroach on the common property, as shown on the Exclusive Use Plan (attached as Annexure A to these reasons), do so in a small way and the only time someone encounters these limestone retaining walls are if they are using the northern driveway to access Lot 13 but may include visitors or other persons who may be lost or turning around.

Costs

By reference to the proposed exclusive use by-law, Ms Carr seeks to assume responsibility for all future costs and liability associated with the northern driveway and the limestone retaining walls on the common property. It follows that the strata company will not be required to contribute to any of the costs to maintain the structures sought to be approved by the application for retrospective DA and that part of the common property that is proposed to be for the exclusive use of the occupiers, for the time being, of Lot 13.
The strata company is concerned that nothing in the proposed exclusive use by-law excludes Ms Carr from seeking reimbursement for costs including the cost of the northern driveway. In support of this, the strata company says Ms Carr has sought to pass on many costs to the strata company including a request for payment of $6,000 for the driveway on the common property and then threatening legal action if not paid. Further, according to the strata company, Ms Carr has attempted to make a claim on the common property insurance as well as claiming payment of $1,450 for Mr Graham Cook, $1,200 for drafting services of Mr Michael Phillips, $3,300 for re-surveying Lot 13, and $11,020 for landscaping. Besides making these statements, details of these costs were not provided to the Tribunal. It is not clear if these costs relate to the unauthorised work or for other works. Because of this, I am not able to consider these costs any further in this matter. Having said that, it would be disingenuous, in my view, for Ms Carr to seek reimbursement of costs from the strata company in respect of costs that she has incurred in regard to the unauthorised works including in making her application for retrospective DA.
In regards to the proposed exclusive use by-law (see Annexure B attached to these reasons for decision), cl 1.3.1 requires Ms Carr as the owner of Lot 13, at her own cost, to keep in good and serviceable repair, properly maintain and where necessary renew and replace the two retaining walls which are shown on the Exclusive Use Plan (as attached as Annexure A attached to these reasons) and the exclusive use area including any items added (such as pot plants) in accordance with clause 1.2.2(b). In my view, it is appropriate that Ms Carr be responsible for these costs. This is similar to Sch 1 by‑law 32 where the owners of Lots 1 to 12 are required to pay for the cost to repair and maintain all property within the designated exclusive use area including the gardens, bitumen driveways, water tanks, sewerage system and laundry room.
Clause 1.3.1 of the proposed exclusive use by-law requires Ms Carr as the owner of Lot 13 to indemnify and keep indemnified the strata company against any loss, claim, damages or costs incurred for damages to property, injury to person or loss of life arising from any person accessing the exclusive use area set out in the proposed exclusive use by‑law. This clause, while it cannot prevent an injury, is intended to indemnify the strata company from any loss, damages or costs incurred for damage arising from the use of the exclusive use area. In my view, it is reasonable that the owner of Lot 13 provides such an indemnity.
I am satisfied and find that the proposed exclusive use by-law for Lot 13 is not unusual in the context of this strata scheme where the owners of Lot 1 to 12 have exclusive use of a large part of Lot 16 (common property) by way of Sch 1 by-law 32. Importantly, the proposed exclusive use by-law does not give or transfer ownership of any part of the common property (Lot 16) to the owners or the occupiers, for the time being, of Lot 13.

Formalising longstanding informal arrangements

For the purposes of the requirements for development approval, an exemption that is supplemental to the provisions of cl 61(1) of the deemed provisions, is set out in Sch A Table 6 of the LPS 2 to include:

Exempted Item No

Column 1 Works

Column 2 Conditions

         26.

         Earthworks — cut and fill

     (1) [in circumstances that] [t]he works involve the cutting or filling of land not exceeding 500mm.

     …

Ms Carr concedes that the level of the works at the boundary of Lot 13, and in particular in the location of the northern driveway are approximately 500 millimetres but may incorporate levels that are slightly higher than 500 millimetres. Because of this, Ms Carr accepts that approval of the City for her application for retrospective DA is required in order to regularise any non-compliance with the approved plans incorporated with the original DA issued by the City dated 4 June 2015.[38]
[38] HB at pages 72 to 75.
Counsel for Ms Carr says the only change in the construction of the northern driveway contemplated by Ms Carr's application for retrospective DA relates to the increase in the level at the boundary by about 0.5 metres and the level of the driveway as it connects to the main common property thoroughfare is unchanged.[39]
[39] See Exhibit 4.
The strata company rejects that there are any longstanding informal arrangements with Ms Carr. Rather, the strata company says it seeks to have the structures removed and make good the land in compliance with the notice from the City. Ms Rigby and Ms Richards say they had already organised for the necessary trades to undertake the works which was stopped when Ms Carr filed her application with the Tribunal.
In given their oral evidence, Ms Richards and Ms Rigby raised concerns that someone could get injured. According to Ms Richards and Ms Rigby, if the northern driveway is not removed, being the most dangerous part of the driveway, an accident is likely to occur which is just outside the exclusive use area on the common property main thoroughfare. However, there is no expert evidence before the Tribunal to support this view. Further, neither Ms Richards nor Ms Rigby were able to identify any incidents resulting in property or personal damage to people attending the strata scheme, as a result of the northern driveway and the limestone retaining walls. Without directing the City as to what it is required to do in assessing Ms Carr's application for retrospective DA, it would be pertinent, in my view, for the City to consider relevant expert evidence including traffic engineering and traffic safety.
I am satisfied and find that the current form of the northern driveway was completed in about 2015 and has been in place for almost 10 years. Further, I find that the limestone retaining wall was constructed as a result of a change in levels created at Lot 13 during the construction of the Bed and Breakfast accommodation and associated structures and has been in place for at least three years.
In summary, in my view, subject to approval by the City of Ms Carr's application for retrospective DA, it is reasonable to formalise the arrangements that have been in place for some time.

Creating certainty

There is a real and substantial disharmony between Ms Carr and the strata company. This disharmony has persisted, according to Ms Carr, in relation to the management, maintenance and improvements of the common property over a substantial period of time and that this conflict continues.
Counsel for Ms Carr submit that disputes between the parties have occurred over time which has resulted in a level of anxiety and frustration for both parties with the consequence that they are unable to agree on Ms Carr's application for retrospective DA and the proposed exclusive use by-law. It is the view of counsel for Ms Carr that the relationship between the parties is exceedingly poor such that the strata company cannot operate effectively or at all in relation to dispute between Ms Carr and the balance of the members of the strata company.
Ms Carr asserts that in the absence of a favourable resolution, her use and enjoyment of the northern driveway serving her Lot 13, including the maintenance and liability associated with the area will continue to be the subject of dispute between the parties.
Ms Richards and Ms Rigby reiterate the strata company's concern that if council sign or affix the strata company's common seal to Ms Carr's application for retrospective DA, that the City will take this as the strata company having no issues with Ms Carr's plans, which is absolutely not correct.
The strata company says that once the unauthorised structures are removed, maintenance will be minimal, and complaints will cease as Ms Carr already has access to two driveways into and out of Lot 13.
I am satisfied that if the council signs or affixes the common seal of the strata company to Ms Carr's application for retrospective DA this will create some certainty between the parties. This is because the City will be able to proceed to assess Ms Carr's application for retrospective DA either favourably or otherwise and that the City's decision will thereby reduce any further disputes about Ms Carr's application for retrospective DA.
Finally, I do not accept the strata company's concern that if orders are made by the Tribunal that this will create a precedent allowing for the undermining of the ST Act and the by-laws or be seen to be rewarding Ms Carr for her actions. The reason for this is because the Tribunal must in considering whether or not to exercise its statutory discretionary power to make orders under s 200 ST Act, it must do reasonably taking all considerations into account (see for example, Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd at [43]). In other words, the Tribunal must consider and determine the matter before it on its own merits.

Conclusion

In my view, having taken into account all considerations, as set out above, it is reasonable and necessary in this case to intervene to break the 'deadlock' between Ms Carr and the strata company in order to create certainty for the parties and thereby reducing any further litigation and dispute concerning Ms Carr's application for retrospective DA.
Reflecting on the orders sought by Ms Carr to resolve a scheme dispute (see above at [4]), in my view, it is reasonable taking into account all considerations in this case, to make orders under s 200(2) of the ST Act.
The first order provides that the strata company is taken to have passed as a resolution without dissent that 'owner's consent' is given to Ms Carr's application for retrospective DA. Further, the first order will require the strata company, when requested by Ms Carr to give that 'owner's consent' by the council signing or affixing the common seal of the strata company to Ms Carr's application for retrospective DA form (as set out in Annexure C attached to these reasons). As previously stated, and repeated here, the affixing of the common seal of the strata company to Ms Carr's application for the application for retrospective DA, does not mean that the strata company consents to, or otherwise supports Ms Carr's application to the City. All the Tribunal's order under s 200(2)(n) of the ST Act does is to facilitate the lodgement by Ms Carr of her application for retrospective DA with the City and thus enable it to be assessed and determined by the City. The City must go through a process to assess the application for retrospective DA which may require expert evidence including from suitably qualified engineering and traffic safety experts.
If, and only if, the City notifies Ms Carr that her the application for retrospective DA is granted (or is granted with condition), then the second order provides that the strata company will be taken to have passed as a resolution without dissent the proposed exclusive use by‑law as it appears in Annexure B attached to these reasons. Further, the order will require the strata company to lodge the exclusive use by‑law with the Registrar of Titles for registration in accordance with the requirements of the ST Act. Importantly, pursuant to s 200(6) of the ST Act, the exclusive use by-law will not take effect until the Registrar of Titles registers the amendment.
If the City refuses Ms Carr's application for retrospective DA then the proposed exclusive use by-law does not apply. In other words, the proposed exclusive by-law cannot be lodged with the Registrar of Titles for registration if the City refuses Ms Carr's application for retrospective DA. The City may issue a further enforcement notice similar to the notice previously issued on 30 June 2021 for the unauthorised works (see above at [51] to [52]).
In conclusion, in my view, the orders are reasonable to break the 'deadlock' between Ms Carr and the strata company in order to resolve the scheme dispute and provide some certainty for the parties and thereby reducing any further litigation or dispute concerning Ms Carr's application for retrospective DA.

Orders

The Tribunal notes:
(a)the lodging by a lot owner with the relevant local government authority (for example, City of Albany) an application for development approval or an application for retrospective development approval which involves works on part of the common property of the strata titles scheme, does not mean the strata company agrees with, or otherwise supports the application when the strata company gives 'owner's consent' by the council signing or affixing the common seal of the strata company to the application; and
(b)the issue of whether or not the council must sign or affix the common seal of the strata company on an application for development approval (retrospective or otherwise) where common property of a strata titles scheme is involved, has not been judicially determined. It is a matter of wide significance in relation to planning and development in Western Australia, and therefore it is appropriate that, before the Tribunal expresses a concluded view on the issue, that notice be given to the Attorney General and the Minister for Planning so that the Attorney can consider whether to intervene under s 37(1) of the SAT Act and the Minister can determine whether to seek leave to intervene under s 37(3) of the SAT Act in order to address the Tribunal.

The Tribunal orders:
1.Pursuant to s 200(2)(n) of the Strata Titles Act 1985 (WA) the respondent is taken to have passed as a resolution without dissent giving 'owner's consent' to the applicant's application for retrospective development approval and must, when requested by the applicant, to give that 'owner's consent' under cl 62(1)(b) of the deemed provisions in local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) by the council signing or affixing the common seal of the strata company to the applicant's application for retrospective development as attached in Annexure C so that the applicant can lodge Annexure C with City of Albany to be assessed per the procedure set out in Part 9 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
2.Pursuant to s 200(2) of the Strata Titles Act 1985 (WA) the applicant must, within seven days of receiving written notification from the City of Albany of the outcome of the applicant's application for retrospective development approval, provide a copy of that notification to the respondent (the notification).
3.Subject to order 2, if the City of Albany's notification approves the applicant's application for retrospective development approval (with or without conditions), then on the date the respondent receives the notification:
(a)the respondent shall be taken to have passed as a by-law of the survey-strata scheme, the exclusive use by-law (attached to this order as Annexure B), as a resolution without dissent pursuant to s 200(2)(n) of the Strata Titles Act 1985 (WA); and
(b)the respondent must attend to lodging Annexure A along with Annexure B with the Registrar of Titles for registration of the by-law in accordance with the requirements of the Strata Titles Act 1985 (WA).

Annexure A - Exclusive Use Plan

Annexure B
Proposed exclusive use of retaining walls and driveway for the benefit of Lot 13

Exclusive Use of retaining walls and driveway for the benefit of Lot 13
1.1In this by-law:
1.1.1Exclusive Use Plan means the exclusive use plan attached at Annexure A.
1.1.2Exclusive Use Area means that area of common property identified on the Exclusive Use Plan as area "A" and "B" being for the exclusive use and enjoyment of the Special Lot.
1.1.3Retaining Walls means the two (2) retaining walls which are in Exclusive Use Area "A" as shown on the Exclusive Use Plan.
1.1.4Special Lot means lot 13 on survey-strata plan 55030.
1.2The Special Lot owner shall have:
1.2.1 exclusive use of the Exclusive Use Area shown on the Exclusive Use Plan; and
1.2.2the special privilege of:
(a)keeping the Retaining Walls in Exclusive Use Area "A"; and
(b)altering the Exclusive Use Area to add pot plants, lighting, signage and traffic control products, including items such as reflective caution strips and rubber wheel stoppers.
1.3The Special Lot owner must:
1.3.1at their own cost, keep in good and serviceable repair, properly maintain and where necessary renew and replace the Retaining Walls and the Exclusive Use Area, including any items added to the Exclusive Use Area in accordance with by-law 1.2.2(b); and
1.3.2agrees to indemnify and keep indemnified the strata company against any loss, claim, damages or costs incurred for damage to property, injury to person or loss of life arising from any person accessing the Exclusive Use Area.
1.4If the Special Lot owner breaches this by-law, the strata company may give the Special Lot owner a breach notice (Breach Notice):
1.4.1requiring that the Special Lot owner comply with this by-law (Exclusive Use Duties);
1.4.2specifying what the Special Lot owner is required to do in order to comply with the Exclusive Use Duties; and 1.4.3 providing the Special Lot owner with at least 14 days to comply with the Exclusive Use Duties.
1.5If the Special Lot owner fails to comply with the Breach Notice:
1.5.1the strata company and if necessary, a licensed contractor may access the Exclusive Use Area and do any of the things required in the Breach Notice at the cost of the Special Lot owner;
1.5.2the strata company may reinstate and restore the Exclusive Use Area at the cost of the Special Lot owner; and
1.5.3the council of the strata company is empowered to:
(a)to include the amount of the costs incurred by the strata company in performing the tasks specified in sub bylaws 1.5.1 and 1.5.2 (Rectification Costs) in the amounts to be raised for the purpose of section 100(1)(a) of the Strata Titles Act 1985; and
(b)to raise the amount of the Rectification Costs by levying a contribution for those Rectification Costs solely on the Special Lot owner in accordance with section 100(1)(c)(ii) of the Strata Titles Act 1985.

Annexure C

Application for retrospective development approval - form

Owner Details
Name:	The Owners of 252 Cosy Corner Road, Kronkup Strata Scheme 55030
ABN(ifapplicable):
Address:	252 Cosy Corner Road, KRONKUP WA 6330
Hometelephone:	Work telephone:
Mobile:	[REDACTED]		Fax:
Emailaddress:	[REDACTED]
Contactpersonforcorrespondence:		Helen Carr
*Signatures of all land owner(s) or authorised signatory for a Company is to be as per the City's rates records
Signature:	Date:
Signature:	Date:

The signature of the owner(s) is required on all applications. This application will not proceed without that signature(s). For the purposes of signing this application, an 'owner' includes the persons referred to in the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 clause 62(2).

Applicant Details

Name:

Lavan

ABN(ifapplicable):

47 488 578 158

Address:

Level 18, 1 William Street, PERTH WA 6000

Hometelephone:

Work telephone:

08 9288 6000

Mobile:

Emailaddress:

[REDACTED]

Contactpersonforcorrespondence:

Isabel Bartle

The information and plans provided with this application may be made available by the local government for public viewing in connection with the application (Please note that the 'Yes' box is required to be selected for the application to proceed).

✔ YES

Signature:

Date:



PropertyDetails

LotNo:

CP16

House/Street No:

252

Location No:

DiagramorPlan No:

55030

Certificate of Title Vol. No:

n/a

Folio:

n/a

Title encumbrances (e.g. easements, restrictive covenants):

Easement burden created under s 136C of the TLA for water storage and supply purposes and right of carriageway (H304263)

Streetname:

Cosy Corner Road

Suburb:

KRONKUP

Neareststreetintersection:

Coombes Road

Proposed Development
Natureofdevelopment:	✔ Works		Use		Works and Use
Is an exemption from development claimed for part of the development?			Yes*		✔ No
*Ifyes,istheexemptionfor:			Works		Use
Description of proposed works and/or land use: Limestone block retaining walls at the sides of the northern driveway serving Unit 13.
Description of exemption claimed (if relevant):
Nature of any existing buildings and/or land use: Existing bitumen driveway serving Unit 13.
Approximate cost* of proposed development: (market value)*				$
Estimatedtimeofcompletion:		Completed (application for retrospective approval)

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
2 DECEMBER 2024