DELGA NOMINEES PTY LTD and THE OWNERS OF 5 GALE STREET BUSSELTON (STRATA SCHEME 25723) - [2025] WASAT 7

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   DELGA NOMINEES PTY LTD and THE OWNERS OF 5 GALE STREET BUSSELTON (STRATA SCHEME 25723) [2025] WASAT 7
MEMBER:   MS C CONLEY, MEMBER
HEARD:   28 AND 29 MARCH, 16, 17 AND 18 OCTOBER AND 4 DECEMBER 2023
DELIVERED          :   29 JANUARY 2025
FILE NO/S:   CC 105 of 2021
BETWEEN:   DELGA NOMINEES PTY LTD
Applicant
AND
THE OWNERS OF 5 GALE STREET BUSSELTON (STRATA SCHEME 25723)
First Respondent
DAVEREL PTY. LTD.
Second Respondent

Catchwords:
Strata scheme - Structural alteration of lot - Proposed construction of boatshed - Application to Tribunal to exempt boatshed from requirement to have the approval of all lot owners - Application for exemption granted
Legislation:
City of Busselton Local Planning Scheme No. 21
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8, Sch 2, cl 67
Planning and Development Act 2005 (WA), s 4(1), s 26
Property Law Act 1969 (WA), s 121
State Planning Policy 7.3 Residential Design Codes Volume 1, Pt 5, cl 5.4.3
Strata Titles (General) Regulations 2019 (WA), reg 32(1)(a), reg 32(1)(b), reg 32(2), reg 73, reg 74, reg 74(a), reg 74(b), reg 75, Pt 5
Strata Titles Act 1985 (prior to 1 May 2020), s 93, s 103F
Strata Titles Act 1985 (WA), s 3, s 3(1), s 7, s 8, s 9, s 13(4), s 13(5), s 13(6), s 13(7), s 33(1), s 33(4), s 39(a), s 61, s 62, s 63, s 64, s 86, s 87, s 87(2)(a), s 87(5), s 87(5)(a), s 87(5)(b)(i), 87(5)(b)(ii), s 87(5)(b)(iii), s 87(5)(c), s 89, s 89(3), s 90, s 90(1), s 90(2), s 90(2)(a), s 90(2)(b), s 90(3), s 90(3)(a), s 90(3)(b), s 90(3)(c), Sch 2A, cl 2, Sch 5, cl 2(1), Pt 5, Div 3, Pt 7, Div 2, Pt 8, Div 1
Strata Titles Amendment Act 2018 (WA), s 83
Transfer of Land Act 1893 (WA)
Result:
Application successful
Order granted
Category: B
Representation:
Counsel:

Applicant : Mr M Atkinson

First Respondent : N/A

Second Respondent : Ms C Meighan (16, 17 and 18 October 2023 and 4 December 2023) and Mr S McFarlane (28 and 29 March 2023)
Solicitors:

Applicant : Atkinson Legal

First Respondent : N/A

Second Respondent : Bugden Allen Graham Lawyers
Case(s) referred to in decision(s):
Bank of New Zealand v Greenwood [1984] 1 NZLR 525
Bathurst City Council v Saban [No.2] (1986) 58 LGRA 201
Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Kelly [2021] WASC 448
Blazey and Hunter [2020] WASAT 155
Boris and the Owners of Observation Rise Strata Plan 24414 [2020] WASAT 124
Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn CTS 1918 & Ors [2009] QSC 427
Cosentino v Peter Medich Properties Pty Ltd [2003] NSWSC 606
Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25
Hunter v Canary Wharf Ltd [1997] AC 655
Hutchison and Canciullo [2020] WASAT 22
JTA Le Roux Pty Ltd and The Owners of Bunker Bay Resort Strata Scheme 40074 [2023] WASAT 13
Kent and Johnson (1973) 21 FLR 177
Marsh v Baxter [2015] WASCA 169
McCall v Martin & Anor [2017] QCATA 103
Miles v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130
Norbury v Hogan [2010] QCATA 27
Onus v Telstra Corporation Limited [2011] NSWSC 33
Owners of 7A, 7B, 7C & 7D The Avenue Strata Plan 7644 and Basanovic [2014] WASAT 51
Owners of Strata Plan No. 58615 v Almin [2022] NSWCATCD 91
Platt v Ciriello [1998] 2 Qd R 41
Radford v The Owners of Miami Apartments, Kings Park Strata Plan 45236 [2007] WASC 250
Redset Nominees Pty Ltd and The Owners of Spinnakers Apartments Strata Plan 53824 & Ors [2021] WASAT 96
Robson and Leischke [2008] NSWLEC 152
The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161
The Owners of 5 & 7 Upton Place Langford Strata Plan 38498 and Swift [2020] WASAT 165
The Owners of 5 Thor Street Innaloo Strata Plan 72475 and Maul [No.2] [2020] WASAT 81
The Owners of Arbor North Strata Plan 67510 and Sun [2020] WASAT 28
The Owners of Strata Plan No. 2245 v Veney [2020] NSWSC 134
Tipene v The Owners of Strata Plan 9485 [2015] WASC 30
Vane and Owners of Carinya Court Rockingham Strata Scheme 25819 [2024] WASAT 40
Walsh and The Owners of Riverside Villas Strata Plan 27929 [2013] WASAT 184

REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1The applicant and the second respondent are the owners of adjacent lots in a 5-lot strata scheme located at 5 Gale Street, Busselton, Strata Plan 25723 (Strata Scheme).
2The applicant sought approval from the other lot owners in the Strata Scheme to build a storage boatshed (Proposed Shed) on its lot to house a boat (Boat) owned by one of the directors of the applicant. The lot owners, other than the second respondent, gave their approval.
3The applicant applied to the Tribunal for an order pursuant to s 90 of the Strata Titles Act 1985 (WA) (ST Act) to exempt the Proposed Shed (with either a flat roof[1] or a pitched roof) from the requirement to have the approval of all the other lot owners (Application).[2]
[1] The flat roof has a proposed pitch of 1.5 degrees, but this term is used to distinguish it from the pitched roof which has a pitch greater than 1.5 degrees.
[2] Exhibit 1 at pages 106 - 108.
4The second respondent has maintained its objection to the construction of the Proposed Shed.[3]
[3] Second Respondent's Response to the Application filed on 18 June 2021 (Exhibit 1 at pages 159 - 169); Second Respondent's Amended Response to the Application filed on 12 October 2021 (Exhibit 1 at pages 149 - 158); Second Respondent's Response to the Amended Application filed on 27 January 2022 (Exhibit 1 at pages 224 - 225).
5The proposed location of the Proposed Shed on the parcel of land which comprises the Strata Scheme (Parcel) is set out in the diagram below.[4]

[4] Exhibit 6 (prepared by the parties at the request of the Tribunal to show the lots and common property of the Strata Scheme on the Site Plan which forms part of the Approved Development Plan for the Proposed Shed).

6The first respondent (Strata Company) and the other lot owners in the Strata Scheme declined to participate in the Tribunal proceeding.[5]
[5] Order 3 of the Orders made by the Tribunal on 12 March 2021.
7For the reasons set out below, I have decided to make an order exempting the Proposed Shed with a flat roof from the application of Div 2 of Pt 7 of the ST Act.

Issues for determination
8The issues for determination by the Tribunal are as follows:
(a)whether the Tribunal has jurisdiction to deal with the Application;
(b)whether the construction of the Proposed Shed involves the structural alteration of a lot;
(c)if the answer to (a) and (b) is yes, whether the Proposed Shed is reasonable having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property; and
(d)if the answer to (c) is yes, whether the Tribunal should, in the exercise of its discretion, make an order exempting the Proposed Shed with either a flat roof or a pitched roof from the application of Div 2 of Pt 7 of the ST Act.

Legislative framework
9Division 2 of Pt 7 of the ST Act contains provisions governing the structural alteration of a lot in a strata scheme.
10Relevantly for present purposes, the owner of a lot in a strata scheme (other than a 2-lot strata scheme) cannot cause or permit the structural alteration of a lot except with the prior approval, expressed by resolution without dissent, of the strata company.[6]
[6] ST Act, s 87(2)(a).
11The owner of any other lot in the strata scheme may refuse to give approval to a structural alteration, but only on the grounds set out in s 87(5) of the ST Act and reg 74 of the Strata Titles (General) Regulations 2019 (WA) (ST Regulations).
12The Tribunal may, on the application of an owner of a lot in a strata titles scheme, by order, exempt a particular structural alteration to the lot from the application of Div 2 of Pt 7 of the ST Act.[7] However, such an order can only be made under s 90 of the ST Act if the Tribunal is satisfied:[8]
(a)that the structural alteration of the lot is reasonable, having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property; and
(b)to the extent that the structural alteration has already been carried out, it will not cause any significant inconvenience or detriment to the owners of other lots.
[7] ST Act, s 90(1).
[8] ST Act, s 90(3).

13At the outset, I make the following observations about s 90 of the ST Act:
(a)an order made under s 90(1) exempts a particular structural alteration from the application of Div 2 of Pt 7 of the ST Act, but does not exempt a person from having to obtain the necessary approvals for the structural alteration including planning approvals and building permits;[9]
(b)the Tribunal has the discretion to make an order under s 90(1) irrespective of whether or not the necessary approval for the particular structural alteration has been sought from the other lots owners under s 87 of the ST Act;[10]
(c)the Tribunal has the discretion to make an order under s 90(1) even if there has been a valid refusal to give the necessary approval to the structural alteration (namely, on the grounds set out in s 87(5) of the ST Act);[11]
(d)the word 'only' in s 90(3) operates as a limitation on the making of an order unless the Tribunal is satisfied of the matters in paragraph (a) and, where applicable, paragraph (b);
(e)paragraph (b) of s 90(3) applies only where the structural alteration has already been carried out. That paragraph does not apply where the structural alteration is merely proposed;
(f)the power of the Tribunal to make an order under s 90(1) of the ST Act is discretionary even if the Tribunal is satisfied of the matters in 90(3) of the ST Act;[12] and
(g)s 90 was inserted into the ST Act in 2018[13] and replaced s 103F of the ST Act. Section 90 is not drafted in the same terms as the provision it replaced.[14]
[9] Redset Nominees Pty Ltd and The Owners of Spinnakers Apartments Strata Plan 53824 & Ors [2021] WASAT 96 (Redset) [84].
[10] ST Act, s 90(2)(a).
[11] ST Act, s 90(2)(b).
[12] Vane and Owners of Carinya Court Rockingham (Strata Scheme 25819) [2024] WASAT 40 (Vane) [29].
[13] Strata Titles Amendment Act 2018 (WA), s 83.
[14] See Redset at [52] - [54] and Tipene v The Owners of Strata Plan 9485 [2015] WASC 30 [7] - [10].

Proceedings in the Tribunal
14A final hearing of the application was held on 28 and 29 March 2023, 16, 17 and 18 October 2023 and 4 December 2023 (Hearing).
15Each of the parties filed various documents which were compiled into a Hearing Book prepared by the Tribunal and taken into evidence as Exhibit 1. Other documents were taken into evidence during the Hearing.
16At the Hearing, the following persons gave evidence on behalf of the applicant:
(a)Mr Laurence Biagioni (registered builder and director of the applicant and GMF Contracting);
(b)Mr Michael Ricci (architectural draftsman and employee of GMF Contracting);
(c)Mr Dane Gaunt (town planner and director of Urbis Pty Ltd; and
(d)Mr Donald Eftos (a licensed valuer at PWE Property Consultants Valuers).

17At the Hearing, the following persons gave evidence on behalf of the second respondent:
(a)Ms Veronica Webb (Ms Webb) (a director of the second respondent);
(b)Mr Luke Hill (an arboriculturist);
(c)Ms Kathryn Exell (an architect); and
(d)Mr Damien Schifferli (a certified practicing valuer at Acumentis).

18Mr Eftos and Mr Schifferli conferred on 1 April 2022 and provided the Tribunal with a joint expert report.[15]
[15] Exhibit 2.
19On 23 October 2023, a view of the Parcel (View) was undertaken by the Tribunal in the presence of Mr Biagioni, Ms Webb, Ms Elizabeth Webb and their legal representatives. At the time of the View, it was explained to the parties that the purpose of the View was to enable the Tribunal to understand the questions that were being raised, to follow the evidence and to apply it, but not to put the result of the View in place of the evidence. I found the View to be very helpful.
20The parties lodged closing submissions following the conclusion of the Hearing.[16] Unfortunately, there was a significant delay in the filing of closing submissions by the applicant.
[16] Second Respondent's Closing Submissions filed on 31 January 2024; Applicant's Closing Submissions filed on 23 August 2024; and Second Respondent's Responsive Submissions filed on 20 September 2024.

Evidence and findings of fact
Evidence of the witnesses
21It was not in dispute between the parties and, having regard to their qualifications and/or experience, I find that:
(a)Mr Hill is an expert in the field of arboriculture;[17]
(b)Ms Exell is an expert in the field of architecture;[18]
(c)Mr Gaunt is an expert in the field of town planning;[19] and
(d)Mr Eftos and Mr Schifferli are experts in the field of property valuation.[20]
[17] Exhibit 1 at page 282; ts 430 - 431, 17 October 2023.
[18] Exhibit 1 at pages 364 and 375.
[19] Exhibit 8 and ts 523, 4 December 2023.
[20] ts 271 and 274, 16 October 2023; 380 - 381, 17 October 2023.

22Mr Biagioni gave evidence about the applicant's use and enjoyment of Lot 5 and the construction of the Proposed Shed on Lot 5. I found Mr Biagioni to be a credible witness.
23Mr Ricci gave evidence about the drawings and plans for the construction of the Proposed Shed and the development approval application. I found Mr Ricci to be a credible witness.
24Mr Gaunt gave evidence about the town planning aspects of the construction of the Proposed Shed. I found Mr Gaunt to be a credible witness.
25Ms Webb gave evidence concerning the second respondent's use and enjoyment of Lot 6 and her views as to the impacts that the construction of the Proposed Shed would have on that use and enjoyment. Ms Webb was inclined to exaggerate those impacts (for example, that the Balcony would be unusable in summer and that nothing would grow in the front courtyard area (Courtyard)) and some of her beliefs about the construction of the Proposed Shed were incorrect (including, for example, her belief that the Proposed Shed would have no setbacks from the boundaries).
26Mr Hill gave evidence about the flora on Lot 6 and the impact of the construction of the Proposed Shed on that flora. I found Mr Hill to be a credible witness.
27Ms Exell gave evidence about the architecture of the buildings in the Strata Scheme and her views about the impacts on Lot 6 of the construction of the Proposed Shed. Ms Exell's evidence occasionally strayed outside her area of expertise and some of her evidence in relation to building and town planning matters was incorrect (setbacks, the deemed-to-comply requirements for outbuildings and the zoning). However, Ms Exell was quick to concede her errors. Otherwise, I found her to be a credible witness.
28Mr Eftos and Mr Schifferli gave evidence concerning the impact on the valuation of Lot 6 if the Proposed Shed is constructed. Mr Eftos also gave evidence concerning the valuation of Lot 5. I found them both to be credible witnesses.

General findings of fact
29The following facts were not in dispute between the parties and I find as follows:
(a)the applicant purchased the Parcel in 1985, constructed five townhouses and sold four of the five lots one by one;[21]
[21] Exhibit 1 at pages 4, 28 - 41; Exhibit 3; and ts 26, 62 - 73, 28 March 2023.
(b)each lot has a Unit number: Lot 5 is Unit 1; Lot 2 is Unit 2; Lot 3 is Unit 3; Lot 6 is Unit 5 and Lot 7 is Unit 4;[22]
[22] Exhibit 6; ts 31, 28 March 2023.
(c)the townhouses on each lot are constructed of a cream-coloured brick with a 2-course red brick running through each storey;
(d)each of the townhouses has a pitched tiled roof with red tiles. The townhouses have some eaves;
(e)four of the townhouses have first floor balconies, but Lot 7 has a verandah instead of a balcony;
(f)Lot 5 has a double garage whereas the remaining lots have a single garage. The garages are constructed of a cream-coloured brick with a 2-course red brick running through. The garage doors are cream in colour. The garages do not have eaves;
(g)the common property of the Strata Scheme consists of a driveway servicing each of the lots (Common Property Driveway);[23]
[23] Exhibit 6.
(h)there are three parking bays (Car Bays), which are part lots, in front of a grassed area (Grassed Area) and the Grassed Area is wholly within Lot 5;[24]
[24] Exhibits 6, 9 and 10.
(i)the applicant is the registered proprietor of Lot 5 in the Strata Scheme;[25]
[25] Exhibit 1 at page 4.
(j)Lot 5 currently consists of a two-storey townhouse, a garden area, a double garage, a paved area for parking (described on Exhibit 6 as 'Boat Access') and the Grassed Area;
(k)Lot 5 is used as a holiday home for Mr Biagioni, his parents and his children and is not rented out;[26]
[26] ts 32, 28 March 2023.
(l)the second respondent is the registered proprietor of Lot 6 in the Strata Scheme and purchased Lot 6 from the applicant in 2003;[27]
[27] Exhibit 1 at page 79; ts 30 - 31, 28 March 2023.
(m)the second respondent was established as an investment company for a trust for three siblings, Ms Webb, Ms Elizabeth Webb and Mr Damien Webb, each of whom is a director and shareholder of the second respondent;[28]
[28] ts 345, 16 October 2023.
(n)Lot 6 is to the east of Lot 5. Lot 6 consists of a two-storey townhouse, a garage, a garden area, the Courtyard and a parking bay in the Car Bays which is closest to Lot 6;
(o)there is a Norfolk Island Hibiscus Tree (Tree) in the Courtyard which is about 20 years old together with two bushes;
(p)the front of Lot 6 overlooks the Car Bays, Lot 5 (including the Grassed Area) and the Common Property Driveway);[29]
[29] Exhibit 6; ts 479 and 497, 17 October 2023.
(q)Lot 6 was used by the second respondent as long-term rental accommodation between 2003 and 2010 and a short-term rental accommodation and for family use between 2010 to 2023;[30] and, at the time of the Hearing, the second respondent planned a return to long-term rental accommodation for about 5 years;[31]
[30] ts 351, 498 - 499, 16 October 2023.
[31] ts 352, 499, 16 October 2023.
(r)Ms Webb, who lives interstate, visits the property two three times a year[32] but plans to spend more time at Lot 6 when she retires and she and her siblings plan to renovate the premises;[33]
[32] ts 351 and 360, 16 October 2023.
[33] ts 351 - 352 and 498 - 499, 16 October 2023.
(s)the second respondent does not intend to sell Lot 6 but plans to pass it on to the next generation;[34]
[34] ts 345 and 351, 16 October 2023.
(t)the other three lots in the Strata Scheme are to the south of Lots 5 and 6.[35] Lot 3 is permanent accommodation; Lot 2 is short-term rental accommodation which the owners use occasionally; and Lot 7 is holiday accommodation for the owners;[36]
[35] Exhibit 1 at page 10; Exhibit 6.
[36] ts 111, 28 March 2023.
(u)Mr Biagioni owns a number of boats and currently parks the Boat on the Grassed Area by reversing the Boat in on a trailer, but the applicant proposes to construct the Proposed Shed on the Grassed Area to store the Boat;[37]

[37] ts 33 and 36, 28 March 2023.
(v)on or about 4 November 2020, the applicant applied to the City of Busselton for approval of the construction of the Proposed Shed[38] and the applicant used Mr Gary Marocchi, a structural engineer, to prepare the engineering drawings for the Proposed Shed;[39]
[38] Exhibit 1 at page 8; ts 37 - 38, 91, 28 March 2023.
[39] ts 41, 28 March 2023.
(w)the building plans for the Proposed Shed, including the Site Plan; Plan Elevations; Ground Elevations; and Section Details (Plans) were submitted with the application for development approval;
(x)the Plans show that:
(i)the Proposed Shed would be erected on the Grassed Area;[40]
[40] Exhibit 1 at page 10.
(ii)the dimensions of the Proposed Shed are as follows: wall height 3.01 metres; width 4.91 metres; and length 7.43 metres;[41]
[41] Exhibit 1 at pages 21 - 26, 59 and 119 - 120.
(iii)the dimensions of the opening into the Proposed Shed are as follows: height of 2.572 metres and width of 3.97 metres;[42] and
[42] Exhibit 1 at pages 22 and 24 - 26.
(iv)the Proposed Shed would be constructed as follows: brick walls with face brick to match existing on site with feature brick band; panel lift door; square line gutter and flashing over external brick leaf; Colorbond roof sheeting;[43]
[43] Exhibit 1 at pages 10 - 12, 21 - 25; ts 50, 87 - 88, 28 March 2023.

(y)the Proposed Boatshed with a pitched roof would have a ridge height of 4.23 metres high and be constructed as follows: brick walls with face brick to match existing on site with feature brick band; panel lift door; square line gutter and flashing over external brick leaf; pitched tile roof;[44]
[44] Exhibit 1 at page 120.
(z)the Plans show that the Proposed Shed will have:
(i)a concrete slab and steel beams in accordance with engineer's drawings; and
(ii)eight tie downs with tie down rods to be in accordance with engineer's requirements.[45]

(aa)the Plans show that the Proposed Shed will have downpipe(s); a square line gutter and flashing over the external brick leaf and a soakwell;[46]
(bb)on 13 November 2020, the City of Busselton approved the Development Approval Application for the Proposed Boatshed with a flat roof[47] and the applicant was subsequently granted an extension of time to commence the works;[48]
(cc)the applicant does not have Development Approval for the Proposed Shed with a pitched roof but would do a development modification;[49]
(dd)at the Annual General Meeting of the Strata Company held on 22 January 2021 (AGM), the owners of each lot voted on a motion proposed by the applicant that the strata company approve, by resolution without dissent, an application by the applicant to carry out the works for the erection of the Proposed Shed (Motion);[50] and
(ee)at the AGM, the owners of Lots 2, 3 and 7 (Units 2, 3 and 4) voted in favour of the Motion. The second respondent voted against the Motion on the grounds that the proposal was not in keeping with the rest of the complex and would cause a nuisance to the owner or occupier of another lot.[51] The Chairperson declared the Motion lost.[52]
[45] Exhibit 1 at page 10 - 12.
[46] Exhibit 1 at pages 21 - 22.
[47] Exhibit 1 at pages 5 - 7; ts 51 and 90, 28 March 2023.
[48] ts 108, 28 March 2023.
[49] ts 95 - 96, 28 March 2023.
[50] Exhibit 1 at page 193; ts 44 - 47, 28 March 2023.
[51] Exhibit 1 at page 193; ts 45, 28 March 2023.
[52] Exhibit 1 at page 193; ts 46, 28 March 2023.

Findings relating to town planning regime
30Mr Gaunt gave evidence concerning the town planning regime applicable in the City of Busselton. His evidence was not in dispute and based on Mr Gaunt's evidence, I find that:
(a)the local planning scheme for the City of Busselton consists of the documents set out in reg 8 of the Planning and Development (Local Planning Scheme Regulations 2015 (WA)[53] (PD Regulations): the scheme map (Scheme Map);[54] the text of the City of Busselton Local Planning Scheme No. 21 (LPS 21);[55] the provisions of Sch 2 of the PD Regulations not incorporated into the local planning scheme; and any supporting plans, maps, illustration and other material;
(b)State Planning Policy 7.3 Residential Design Codes Volume 1 prepared under s 26 of the Planning and Development Act 2005 (WA) by the Western Australia Planning Commission (RCodes) forms part of LPS 21;[56]
(c)the R-Codes apply across the State and deal with outbuildings[57] as does the City of Busselton Local Planning Policy No. 4.10 Outbuildings and Other Non-Habitable Buildings (LPP 410);[58]
(d)LPS 21 modifies the R-Codes;
(e)if a proposed structure does not meet the deemed-to-comply requirements for wall height or ridge height, an assessment against the design principles outlined in the RCodes and the matters listed under cl 67 of Sch 2 of the PD Regulations is conducted;[59] and
(f)clause 67(2) of Sch 2 of the PD Regulations sets out the matters to which the local government is to have regard when considering an application for development approval, including the compatibility of the development with its setting and the amenity of the locality.[60]
[53] Exhibit 13.
[54] Exhibit 14.
[55] Exhibit 12.
[56] Exhibit 12 at clause 4.2.1 and clause 4.3.
[57] ts 540, 4 December 2023; see also the evidence of Ms Exell at ts 132 - 133, 29 March 2023.
[58] Exhibit 11 at clause 4.1.
[59] ts 541, 4 December 2023.
[60] Exhibit 13.

Other findings of fact
31Other findings of fact made in relation to specific issues are set out under those issues.

Issue 1: does the Tribunal have jurisdiction to deal with the applicant's application?
32The first issue to be determined is whether the Tribunal has the jurisdiction to deal with the applicant's application. This issue has two parts:
(a)whether the Tribunal has jurisdiction under s 90(1) of the ST Act to make an order exempting the Proposed Shed from the application of Div 2 of Pt 7 of the ST Act; and
(b)whether the Tribunal's jurisdiction to make an order under s 90(1) of the ST Act is affected by alleged non-compliance with the requirements of s 89 of the ST Act.

The jurisdiction of the Tribunal to make an order under s 90 of the ST Act
33Section 90(1) of the ST Act provides that the Tribunal may make an order, on the application of an owner of a lot in a strata titles scheme, exempting a particular structural alteration from the application of Div 2 of Pt 7 of the ST Act.
34The term 'owner of a lot' in a freehold scheme, means, inter alia, a person who is registered under the Transfer of Land Act 1893 (WA) as the proprietor of an estate in fee simple in the lot.[61]
[61] ST Act, s 3(1).
35A 'strata titles scheme' means a strata scheme or a survey-strata scheme.[62]
[62] ST Act, s 3(1), s 7, s 8 and s 9.
36It is not in dispute and I find that the Strata Scheme is a strata titles scheme for the purposes of the ST Act. This is evidenced by the strata plan for the Strata Scheme which refers to the Strata Scheme being a strata scheme.[63]
[63] Exhibit 3.
37The Record of Certificate of Title for Lot 5 (Certificate of Title) refers to Strata Plan 25723 and shows that the applicant is the registered proprietor of that lot and has a share in the common property on the Strata Plan.[64] The Certificate of Title states on its face that it is made 'under the Transfer of Land Act 1893 and the Strata Titles Act 1985'. At the Hearing, Mr Biagioni confirmed that the applicant is the owner of Lot 5.[65]
[64] Exhibit 1 at page 4.
[65] ts 30, 28 March 2023.
38The Application, which was lodged with the Tribunal on 29 January 2022, was made by the applicant.[66]
[66] Exhibit 1 at pages 1 - 3.
39On the basis of the evidence referred to above in [36] - [38], I am satisfied and find that the applicant is the owner of a lot in a strata titles scheme for the purposes of the ST Act and that the applicant lodged the Application with the Tribunal under s 90 of the ST Act. Accordingly, the Tribunal has jurisdiction under s 90(1) of the ST Act to make an order exempting the Proposed Shed from the application of Div 2 of Pt 7 of the ST Act.

The relevance of alleged non-compliance with s 89 of the ST Act
40The second respondent contends that the applicant's application to the Strata Company for approval of the construction of the Proposed Shed (applicant's s 89 Application) did not comply with s 89 of the ST Act.[67] In particular, that the applicant's s 89 Application did not contain sufficient details of the proposal and the information prescribed in reg 75 of the ST Regulations. Further, that this failure on the part of the applicant meant that the other owners in the Strata Scheme were not fully informed of what they were voting on when they cast their vote.
[67] Exhibit 1 at pages 155 and 156.
41The applicant relevantly contends that:
(a)the applicant's s 89 Application complied with the substantive requirements of the ST Act and the ST Regulations;
(b)the applicant's s 89 Application contained information adequate to enable owners to make an informed decision about the substantive nature and impact of the Proposed Shed; and
(c)an application can be brought under s 90 even if no application under s 89 has ever been made.

42It is not necessary for the Tribunal to make a finding as to whether or not the applicant's s 89 Application complied with s 89 of the ST Act. This is because an order under s 90(1) of the ST Act can be made whether or not the necessary approval for the alteration has been sought and even if there has been a valid refusal to give the necessary approval,[68] provided that the Tribunal is satisfied of the matters contained in s 90(3) of the ST Act. Accordingly, the Tribunal's jurisdiction to make an order under s 90 of the ST Act is not affected by alleged non-compliance with the requirements of s 89 of the ST Act.
[68] ST Act, s 90(2). See also Vane [66] and [70].

Issue 2: does the construction of the Proposed Shed involve the structural alteration of a lot?
43The second issue to be determined is whether the construction of the Proposed Shed involves the 'structural alteration of a lot'.
44A 'structural alteration of a lot' means:
(a)the erection of a structure within the lot;[69] or
(b)an alteration of a structural kind to, or extension of, a structure within the lot.[70]
[69] The term 'lot' is defined in ST Act, s 3(1) and cl 2 of Sch 2A.
[70] ST Act, s 86.

45The term 'structure' includes 'anything classified as a structure by the regulations',[71] namely:
any dwelling, shop, factory, commercial premises, garage, carport, shed or other building or improvement (whether free standing or annexed to or incorporated with any existing building on the lot) —
(a)the construction or erection of which is required to be approved by the local government or any other authority; or
(b)the area of which is to be taken into account for the purposes of determining the plot ratio restrictions or open space requirements for the lot. [72]
[71] ST Act, s 86.
[72] Strata Titles (General) Regulations 2019 (WA) (ST Regulations), reg 73.

46In JTA Le Roux Pty Ltd and The Owners of Bunker Bay Resort Strata Scheme 40074 [2023] WASAT 13 (JTA) the Tribunal summarised the key principles surrounding the meaning of 'structure' for the purpose of s 87 and s 90 of the ST Act as follows:[73]
1)The definition of 'structure' in s 86 and reg 73 is inclusive rather than exhaustive.
2)The ordinary meaning of 'structure' applies - being something that is 'built up' in a manner similar to that of a building.
3)A 'structure' may but does not necessarily include something which impacts upon plot ratios of, or easements pertaining to, a strata scheme.
4)It is not necessary for a structure to be fixed to the ground.
[73] JTA [32].

47Further, in JTA, the Tribunal held that 'structural alteration of a lot does not mean only works which affect the physical integrity of existing structures'.[74]
[74] JTA [87].
48There have been a number of cases in the Tribunal concerning structural alterations to a lot. The Tribunal has found the following alterations to be structural alterations to a lot: a rendered masonry wall;[75] a brick wall;[76] a fence consisting of panels and metal posts;[77] a metal gate;[78] a concrete apron;[79] a retractable pergola;[80] a partially completed balcony enclosure;[81] a garage;[82] a temporary portable gazebo;[83] a lean-to store used as a garden shed;[84] an underground tank;[85] and an outdoor spa.[86]
[75] JTA.
[76] The Owners of 5 Thor Street Innaloo Strata Plan 72475 and Maul [No.2] [2020] WASAT 81 (Maul [No 2]).
[77] Blazey and Hunter [2020] WASAT 155 (Blazey).
[78] Blazey; Maul [No.2].
[79] Walsh and The Owners of Riverside Villas Strata Plan 27929 [2013] WASAT 184.
[80] Boris and the Owners of Observation Rise Strata Plan 24414 [2020] WASAT 124.
[81] Owners of 7A, 7B, 7C & 7D The Avenue Strata Plan 7644 andBasanovic [2014] WASAT 51.
[82] Redset.
[83] The Owners of Arbor North Strata Plan 67510 and Sun [2020] WASAT 28.
[84] JTA.
[85] JTA.
[86] JTA.
49I have found that the applicant proposes to construct the Proposed Shed to store the Boat.[87] On the basis of the Plans,[88] I find that the Proposed Shed is to be constructed as free-standing and within the boundaries of Lot 5 of the Strata Scheme.
[87] At [29(u)] and [233].
[88] Exhibit 1 at pages 10 - 26.
50I have also found that the applicant obtained development approval from the City of Busselton for the Proposed Shed with a flat roof[89] and that the applicant does not have, but would obtain, a development modification for, the Proposed Shed with a pitched roof.[90]
[89] At [29(bb)]; ts 36 - 41 and 95, 28 March 2023. See also Exhibit 1 at pages 5 - 27.
[90] At [29(cc)].
51The second respondent does not dispute that the Proposed Shed amounts to a structural alteration of the applicant's lot.[91]
[91] Second Respondent's Closing Submissions at para 6.
52I am satisfied on the basis of my findings at [29], [49] - [50], and the concession of the second respondent outlined at [51], and find that:
(a)the Proposed Shed is a 'structure' under s 86 of the ST Act and reg 73 of the ST Regulations because it is a free-standing shed the construction of which requires local government approval (from the City of Busselton) (irrespective of whether or not the Proposed Shed has a flat roof or a pitched roof); and
(b)the construction of the Proposed Shed constitutes a structural alteration of a lot because it involves the erection of a structure on land within the boundaries of Lot 5 on the Strata Scheme.

Issue 3: is the construction of the Proposed Shed on Lot 5 reasonable?
53The third issue for determination is whether the construction of the Proposed Shed on Lot 5 is reasonable having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property.
54The following sub-issues arise in relation to that determination:
(a)the relevance of the grounds in s 87(5) of the ST Act;
(b)what is meant by the 'merits' of a structural alteration;
(c)what are the 'interests' that lot owners have in the 'use and enjoyment' of their lots and the common property in a strata scheme;
(d)whether the 'interests' relate to the current lot owners or all persons who might own, occupy, or visit a lot from time to time; and
(e)whether there is difference between the interests of a lot owner which is a body corporate and the interests of a lot owner who is a natural person.

55Each of these issues will be examined in turn.

The relevance of the grounds in s 87(5) of the ST Act
56As noted above at [11], s 87(5) of the ST Act identifies the grounds on which approval to a structural alteration may be refused by a lot owner when another lot owner applies to a strata company under s 87 of the ST Act for the structural alteration of a lot.
57The applicant contended that the merits of any structural alteration should be considered against the grounds on which owners in any scheme can refuse an application for approval under s 87.[92]
[92] Applicant's Closing Submissions at para 17.
58The second respondent contended that the grounds in s 87(5) of the ST Act are relevant to the Tribunal's determination under s 90, but that they are not the only matters to be taken into account.[93]
[93] Second Respondent's Closing Submissions at para 29.
59When one examines the grounds in s 87(5) of the ST Act, it is apparent that some of those grounds relate to the merits of the proposed structural alteration, some relate to the interests of the owners of the lots in the use and enjoyment of their lots and the common property and some relate to both.
60Accordingly, in my view, the grounds in s 87(5) of the ST Act are relevant to the Tribunal's assessment under s 90(3)(a) of the ST Act as to whether or not the proposed structural alteration is reasonable.
61In Redset at [55] the Tribunal said:
Construing s 90(3)(a) and having regard to its legislative context within Pt 7 Div 2, it is apparent that the grounds identified in s 87(5) will be among the considerations relevant to - but insufficient to determine - a finding about whether a proposed structural alteration of a lot is reasonable. In considering those matters, the Tribunal must form its own views on the merits; it is not concerned with any prior assessment of those merits by the strata company or others.

62I agree with the views expressed in Redset. This is because s 90(3) of the ST Act does not confine the Tribunal to the grounds identified in s 87(5) of the ST Act when the Tribunal is deciding whether or not the proposed structural alteration is reasonable.
63To the extent that a matter involving the merits of the Proposed Shed or the interests of the lot owners in the use and enjoyment of their lots and the common property involves a consideration of a ground referred to in s 87(5) of the ST Act, that matter will be considered in my examination of the grounds in s 87(5).

Merits of the proposed structural alteration
64The word 'merits' is not defined in the ST Act and bears its ordinary meaning.
65The word 'merits' is defined relevantly in the Macquarie Dictionary Online as follows:
2.something that entitles to reward or commendation; a commendable quality, act, etc: the merits of a book; the merits of a play.

66Having regard to the dictionary definition of 'merits', it is my view that the requirement to have regard to the merits of the proposed structural alteration requires a consideration of the features and qualities of the proposed structural alteration including, but not limited to:
(a)the nature and design of the proposed structural alteration;
(b)the proposed location of the proposed structural alteration; and
(c)the utility or functionality of the proposed structural alteration and, in particular, whether the proposed structural alteration is fit for purpose.

Interests of the owners of the lots in the use and enjoyment of their lots and the common property
67The applicant submitted that the term 'interests' 'relates to the creation, exercise or impingement upon property rights broadly described'.[94]
[94] Applicant's Closing Submissions at para 37.
68The second respondent submitted that the term 'interests' encompasses legal interests, financial interests and other more general interests so long as they relate in a material and recognised way to the use and/or enjoyment of a particular lot.[95]

[95] Second Respondent's Closing Submissions at paras 49 - 68; and Second Respondent's Responsive Submissions at paras 4 - 26.
69The term 'interests' is not defined in the ST Act and bears its ordinary meaning.[96]
[96] The Owners of 5 & 7 Upton Place Langford Strata Plan 38498 and Swift [2020] WASAT 165 (Swift) [104].
70The term 'interest' is defined in the Macquarie Dictionary Online relevantly as follows:
7.any right of ownership in property, commercial undertakings, etc.
…
9.something in which one has an interest, as of ownership, advantage, attention etc.
…
11.benefit or advantage: to have one's own interest in mind.

71In Marsh v Baxter [2015] WASCA 169 (Marsh) at [251] McLure P said, in the context of an action in nuisance, that 'the concept of an occupier's interest in the use and enjoyment of land is broad and comprehensive and includes actual use of the land'. In my view, the term 'interests' in s 90(3)(a) of the ST Act is similarly broad and comprehensive and is not limited to property rights or proprietary rights but includes a benefit or advantage.
72However, for the purposes of s 90(3)(a) of the ST Act, the interests to which the Tribunal must have regard are confined to the interests of the lot owners in the use and enjoyment of their own lots and the common property.
73The starting point for determining the interests that a lot owner has in the use and enjoyment of their lot and the common property is the ST Act itself.
74Under the ST Act, a parcel consists of lots and common property. The common property in a strata titles scheme is that part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme and temporary common property.[97] In addition to the ownership of their lot, a lot owner has an undivided share of the fee simple estate in the common property (other than temporary common property) as a tenant in common with the other lot owners in the strata titles scheme, proportional to the unit entitlements of their respective lots.[98]
[97] ST Act, s 10.
[98] ST Act, s 13(4) - (7) and Sch 5, cl 2(1); and Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Kelly [2021] WASC 448 [23].
75A lot owner's ownership of their lot and their share in the ownership of the common property as outlined above at [74] gives rise to a lot owner's property rights.
76Section 83 of the ST Act provides:
The owner or occupier of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.

77It is no coincidence that s 83 of the ST Act is contained in Pt 7 of the ST Act, together with the provisions relating to structural alteration of a lot. It is clear that s 83 of the ST Act is inextricably linked with the latter provisions.
78It is not in dispute that Conduct by-law 2 in Sch 2 of the ST Act (Conduct by-law 2) applies to the Strata Scheme. Conduct by-law 2 provides:
An owner or occupier of a lot must —
(a)use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment of the common property by other owners or occupiers of lots or of their visitors; and
(b)not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to an occupier of another lot (whether an owner or not) or the family of such an occupier; and
(c)take all reasonable steps to ensure that the owner's or occupier's visitors do not behave in a manner likely to interfere with the peaceful enjoyment of an owner or occupier of another lot or of a person lawfully using common property; and
(d)not obstruct lawful use of common property by any person.

79It is apparent from an examination of s 83 of the ST Act and Conduct by-law 2, that a lot owner has a right to use and enjoy their own lot and a right to use and enjoy the common property, subject to the obligations and prohibitions contained in those provisions. Such proprietary rights arise as an incident of ownership and are implied by s 83 and Conduct by-law 2.[99]
[99] See Platt v Ciriello [1998] 2 Qd R 41 at page 127; Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn CTS 1918 & Ors [2009] QSC 427 [20]; Norbury v Hogan [2010] QCATA 27 [12]; Lin v Owners -Strata Plan No 50276 [2004] NSWS 88 [28] - [33] and [52].
80It has been said that a lot owner has a right to add amenity to their lot.[100] However, the right to add amenity is subject to the ST Act. The same may be said of the common property. I am also of the view that a lot owner has a corresponding interest in protecting the amenity of their lot and the amenity of the common property.
[100] Capcelea v Owners of Strata Plan No 48887 [2019] NSWCATCD [96].

Use and enjoyment of a lot and the common property
81The term 'use and enjoyment' is not defined in the ST Act. However, in Miles v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130 (Miles) at [130] the Tribunal said that 'use refers to utilising a lot for its normal purpose, and enjoyment is the pleasure or benefit derived from the lot'.
82In Hutchison and Canciullo [2020] WASAT 22 (Hutchison) at [43] - [44] the Tribunal said:[101]
43… Assessment of use and enjoyment is not confined to actual use by the current proprietor; it also includes the proprietor's right to use and enjoy the common property as permitted under the ST Act.
44… Assessing such use and enjoyment must include consideration of property rights and obligations. The proprietor in a strata scheme does not only own his or her individual lot. Under s 17(1) of the ST Act, the proprietor of a lot is also a proprietor of the common property as a tenant in common in shares proportional to unit entitlement. Being a proprietor of the common property, whilst not determinative of the question to be determined under s 99A(4) of the ST Act, does in itself carry with it a level of use and enjoyment that should not be overlooked.
[101] See also Swift [105].

83In my view, consistently with the decisions in Marsh, Miles and Hutchison:
(a)the 'use and enjoyment' of a lot means the actual use of, and the right to use, a lot for the purpose or purposes for which the lot exists (for example, residential, agricultural, commercial or industrial purposes as the case may be) and the pleasure which a person derives from use of that lot for that purpose or purposes; and
(b)the 'use and enjoyment' of common property means the actual use of, and the right to use, the common property for the purpose or purposes for which that common property exists (for example, driving on a driveway, parking in a car bay, taking a lift to another floor, swimming in a swimming pool, exercising at a gymnasium, sitting in a garden) and the pleasure which a person derives from the use of the common property for that purpose or those purposes.

84In Miles at [131] the Tribunal said that '[l]oss of value cannot be a loss of use or enjoyment of a lot' and that '[e]vidence of diminution in value of a lot may be relevant as to whether there has been an interference with use or enjoyment, but such evidence cannot of itself support such a finding'. I agree.

Interests of an owner which is a body corporate
85The applicant submitted that an assessment of the interests of the second respondent in the use and enjoyment of Lot 6 must pay regard to its primary use as an investment property because the owner of a lot is a body corporate.[102]
[102] Applicant's Closing Submissions at paras 63 - 64.
86The second respondent submitted that it is not relevant whether an owner of a lot is a body corporate at any one point of time because it is not only the purpose for which the company purchases the lot, or the use and enjoyment of the lot by its directors, that ought to be considered.[103]
[103] Second Respondent's Closing Submissions at paras 40 - 41.
87The rights relating to the use and enjoyment of a lot and common property arise as an incident of ownership and are conferred on a lot owner. The ST Act makes no distinction between a lot owner who is a natural person and a lot owner which is a body corporate. Whilst a lot owner which is a body corporate does not use and enjoy the lot and common property in the same way as a lot owner who is a natural person, the decision in Hutchison makes it clear that the Tribunal is to have regard not only to actual use and enjoyment but the right to use and enjoy.
88In this matter, the applicant and the second respondent are both bodies corporate. Accordingly, when considering the interests of the owners of Lot 5 and Lot 6, the Tribunal may take into account the actual use and enjoyment of Lot 5 as a holiday home by Mr Biagioni and his family and the actual use and enjoyment of Lot 6 as not only as a rental property but also as occasional holiday home for the directors of the second respondent, together with their actual use and enjoyment of the common property. Further, the Tribunal may take into account the rights of the applicant and the second respondent to use and enjoy each of their lots and the common property.

Whether the 'interests' relate to the current lot owners or all persons who might own or occupy a lot from time to time
89Section 90(3)(a) of the ST Act refers to the 'interests of the owners of the lots'. The definition of 'owner of a lot' is set out above at [34].
90The applicant submitted that s 90 of the ST Act prevents the Tribunal from having regard to the interests of people who might acquire a lot in the future because the language of that section necessarily directs the Tribunal to have regard to the interests of all the owners of the lots in the use and enjoyment of their lots and the common property at the time of its decision.[104] Further, the applicant submitted that the language of s 90 plainly mandates consideration only of the interests of owners and does not extend to the interests of occupiers, residents or visitors.[105]
[104] Applicant's Closing Submissions at paras 43 - 46.
[105] Applicant's Closing Submissions at para 45.
91The second respondent submitted that the matters to be considered under s 90 of the ST Act should be considered having regard to the intended use and enjoyment of the particular lots in the particular scheme by any owner from time to time having regard to the nature of the Strata Scheme as a whole.[106] Further, the second respondent submitted that if a lot owner is from time to time a company, it is not only the purpose for which the company purchases the lot that has to be considered, nor is it the use and enjoyment of the lot by its directors from time to time that ought to be considered but rather the use and enjoyment of all persons who might reside in the lots from time to time which is affected.[107]
[106] Second Respondent's Closing Submissions at paras 32 - 40.
[107] Second Respondent's Closing Submissions at para 41; and Second Respondent's Responsive Submissions at paras 27 - 33.
92In Radford v The Owners of Miami Apartments, Kings Park Strata Plan 45236 [2007] WASC 250 (Radford), the plaintiffs applied to the Tribunal for an order under s 93(3)(c) of the ST Act[108] that amendments to a scheme by-law be invalidated on the basis that the bylaw 'should not have been made having regard to the interests of all proprietors in the use and enjoyment of their lots or the common property'. The amendments were made at an annual general meeting which was held after the plaintiffs had agreed to purchase a lot in the strata scheme but before settlement. The Tribunal refused to make the order and the plaintiffs applied to the Supreme Court for leave to appeal. The Supreme Court held that the reference to 'proprietors' in s 93(3)(c) of the ST Act (which term has since been replaced in the ST Act by the term 'owner of a lot') was restricted to those persons who were proprietors at the time of the decision to make the amendments rather than future proprietors.[109]
[108] Section 93 of the ST Act was repealed on 1 May 2020.
[109] Radford [201] - [202].
93In Hutchison, the proprietors of three lots in a strata scheme applied to the Tribunal for an order under s 99A(4) of the ST Act[110] to provide for a method of fixing contributions that 'is fair to all proprietors having regard to their use and enjoyment of the common property and any building or other improvement.' The Tribunal rejected a submission that the Tribunal's consideration of use and enjoyment under s 99A(4) of the ST Act applied only to existing, not future, proprietors.[111]
[110] Section 99A of the ST Act was repealed on 1 May 2020.
[111] Hutchison [42].
94In my view, the decision in Radford is to be preferred to the decision in Hutchison because the decision in Hutchison was made without any reference to the decision in Radford. Therefore, in my view, the reference to 'the owners of the lots' in s 90(3)(a) of the ST Act is a reference to each person who is currently an 'owner of a lot' as that term is defined in s 3(1) of the ST Act. Further, the term 'owners of the lots' does not include a future lot owner, the occupier of a lot or a visitor to the lot.

Unreasonable interference and nuisance
95The term 'interfere unreasonably' in s 83 of the ST Act and the terms 'in such a manner as not unreasonably to interfere' and 'nuisance' in Conduct bylaw 2 are not defined.
96In Miles,[112] the Queensland Civil and Administrative Tribunal (QCAT) gave consideration to the meaning of the terms 'interfere unreasonably' and 'nuisance' in s 167(a) and (b) of the Body Corporate and Community Management Act 1997 (Qld) (Qld ST Act).[113] The QCAT held at [39]:
a)the term 'nuisance' … carries the common law meaning of private nuisance;
b)the test for 'nuisance' under s 167 [Qld ST Act] is the same as the test for nuisance at common law …
c)the test for 'nuisance' is an objective one;
d)the phrase 'interferes unreasonably' … is to be construed according to the normal meaning of the words;
e)the test for 'unreasonable interference' does not involve any notion of substantiality;
f)the test for 'unreasonable interference' is an objective one.
[112] Upheld on appeal in Miles v Gough [2017] QCA 190.
[113] Section 167(a) of the Qld ST Act is substantially the same as Conduct by-law 2(b) and s 167(b) of the Qld ST Act is substantially the same as Conduct by-law 2(a).

97Further, in Miles, the QCAT held at [87] that compliance with local authority requirements may be a relevant consideration when assessing the objective reasonableness of a complaint of nuisance or unreasonable interference. I agree.
98In McCall v Martin & Anor [2017] QCATA 103 (McCall) at [58] the QCAT held that interference for the purposes of s 167(b) of the Qld ST Act is something less than nuisance and that unreasonable interference does not require substantiality.
99There have also been a number of authorities in New South Wales in which it has been held that nuisance within the meaning of s 153(1)(a) of the Strata Schemes Management Act 2015 (NSW), a provision which is substantially the same as Conduct by-law 2(b), is to be interpreted in accordance with the common law meaning of an actionable nuisance.[114]
[114] The Owners of Strata Plan No. 2245 v Veney [2020] NSWSC 134; Owners of Strata Plan No. 58615 v Almin [2022] NSWCATCD 91.
100In Marsh at [242] - [248] the Court of Appeal set out the following principles about nuisance:
(a)not every interference or detraction from the occupier's use and enjoyment of the land will constitute an actionable nuisance: the interference in private nuisance must be both substantial and unreasonable.[115] This is in recognition of the fact that the existence of communities depends on the principles of give and take, and live and let live;[116]
(b)the test of whether an interference is unreasonable is objective;[117] and
(c)in deciding whether interference is unreasonable, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant's activity; the hypersensitivity (if any) of the user or use of the plaintiff's land; the nature of established uses in the locality; whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.[118]
[115] At [245] and [767].
[116] At [245].
[117] At [247] and [770].
[118] At [248] and [770]. See also McCall and Fleming's The Law of Torts (10th edition) at pages 497 - 499.

101I agree with the tests as set out in Miles and McCall as they are consistent with the principles expressed in Marsh.

Nuisance and interference with a of view, air and light
102As a general rule, and subject to the relevant town planning regime, the owner of land may, without being liable in nuisance, construct a building on their land which interferes with a neighbour's view or which, in the absence of an easement, restricts the flow of air or light onto the neighbour's land.[119]
[119] Robson and Leischke [2008] NSWLEC 152 (Robson) at [86]; Hunter v Canary Wharf Ltd [1997] AC 655 at pages 686G-H, 699, 709A-C and H; 710-G, 720A, 721C-E, a722H and 727A-E.
103There have been some exceptions to the general rule. For example, in Onus v Telstra Corporation Limited [2011] NSWSC 33 the proposed installation by the defendant of a 35metre-high tower in close proximity to the plaintiff's private airfield was held to constitute both a public nuisance[120] and a private nuisance.[121] With respect to private nuisance, the Supreme Court of New South Wales held:[122]
The facts of the present case are markedly different to those that have given rise to unsuccessful actions of private nuisance such as the erection of structures that spoil a view or restrict the flow of air or take away light or interfere with the enjoyment of television signals. The tower presents a danger to the safety of aircraft operating into and out of the airfield. I do not agree with the defendant's submission that the plaintiff's case must be unsuccessful because there is no emanation from its site. I think that this is a special case where the 'mere' presence of the tower of the intended height at a close proximity to the airfield constitutes an actionable nuisance.
[120] At [108] - [138].
[121] At [139] - [154].
[122] At [149].

104Another example is to be found in Bank of New Zealand v Greenwood [1984] 1 NZLR 525. In that case, a two-storey shopping arcade had been constructed in Christchurch. The arcade had a glass verandah which reflected sunlight into south-facing windows of commercial buildings opposite. The glare was described as 'dazzling'. The court was required to consider whether the reflection of sunlight could amount to an actionable nuisance and whether an injunction should be issued. Hardie Boys J held:[123]
… It is not a normal or a reasonable consequence of the construction of a verandah for a dazzling glare to be reflected into premises opposite, and so create a nuisance there.
Further, whilst the construction of a glass verandah may be regarded in isolation as an ordinary and reasonable use of land, that use must be considered … having regard to the fact that there are neighbours; here, neighbours upon whose southern windows the verandah, located and set as it is, directs the glare of the sun.
It is therefore not enough for the defendants to say that it is a normal and reasonable thing to build a glass verandah. For that is not the point. The point is that the glass verandah was so built as to reflect the sun's diffused light across the street into the south-facing windows opposite. To build it in that way, so as to produce, albeit unwittingly, that result, is not in my opinion the kind of activity which the reasonable man should be expected to accept as part of the reciprocity of urban neighbourliness.

[123] At pages 534 - 535.

105Finally, in Cosentino v Peter Medich Properties Pty Ltd [2003] NSWSC 606, the defendant constructed a large wall made from a single slab next to the plaintiff's residential property. The plaintiff brought an action in nuisance against the defendant alleging that the construction of the wall had resulted in: a loss of his views of the city; a loss of sunlight; radiated heat; and the reflection of glare. Cripps AJ found that that the wall constituted a nuisance by reason of radiated heat and excessive glare.[124]
[124] At [41].

Nuisance and appearance of a building and unsightliness
106As a general rule and subject to the relevant town planning regime, the owner of land may, without being liable in nuisance, construct a building on their land which is unsightly, large or out of character with other buildings in the neighbourhood.
107In Bathurst City Council v Saban [No.2] (1986) 58 LGRA 201 the defendants had a junkyard in a residential area which was alleged to be unsightly, hazardous and a nuisance. The defendants' backyard, front yard, and verandah were piled high with scrap metals, bottles and the like. There were also two vehicles parked outside the property which contained receptacles for scrap metal. The Plaintiff sought an injunction to prevent the continuance of a public nuisance on the land. Young J granted injunctions only in respect of fire, smoke and smell. His Honour held:[125]
It certainly is the case that where the unsightliness is coupled with other factors such as, for instance, in a rubbish tip fumes or vermin emanating therefrom, the tip may be a nuisance, but this is for other reasons than unsightliness. The law appears clearly to be that unsightliness alone does not constitute a nuisance.
The reason why this is so is almost certainly an historical one. Affectation of land by vibration or by penetrating tree roots was closely akin to damage which could be suffered by direct trespass. Seeing that the common law never recognised the right to prospect or protected a decent view or gave protection against a horrid view, and because the common law permitted people to build what they liked on their own land, a person adversely affected by an eyesore suffered a damnum sine injuria. Although this century community standards may have changed, the way in which the legislature has tackled the problem is by town planning legislation which it has removed from the oversight of this court, and by specific powers given to councils in the Local Government Act. There is thus no warrant for this court extending the concept of nuisance to cover eyesores or to depart from such high and long standing authority.
[125] At page 206.

108In Kent and Johnson (1973) 21 FLR 177 there was a proposal to construct in the City of Canberra a multi-purpose telecommunications tower (of concrete to a height of 434 feet plus antennae) incorporating tourist and restaurant facilities. The tower was to be constructed on land at the summit of Black Mountain adjoining a public park on the mountain slopes. Residents of the City of Canberra brought proceedings to prevent the construction of the tower as, inter alia, an unlawful interference with the city's environment. It was contended that the construction of the proposed tower would constitute a public nuisance because, amongst other things, it would permanently disfigure the skyline of Canberra. Smithers J held:[126]
… I do not find in the common law any recognition of a right in anyone to control what another may build upon his land by reference to its interference with his line of sight or the beauty or lack of it in what is built, or its incompatibility with the historical quality or character of the neighbourhood.

and
… But it is going much too far to suggest that it might be a crime to construct a building which offends even a large majority of citizens in some locality by reason that it is considered to break a skyline, to be too large, too dominating, incompatible with the local traditions or the hitherto accepted principles of the planning of the locality. Prima facie it is lawful to erect what one pleases on one's own land (Rogers v. Rajendro Dutt)[.][127]
[126] At page 212.
[127] At page 212.

The parties contentions
109The applicant contends that:
(a)none of the other lot owners have opposed the construction of the Proposed Shed;[128]
[128] Applicant's Closing Submissions at para 15.
(b)the Proposed Shed will:
(i)utilise a vacant, mostly grassed part of Lot 5 that serves no useful purpose;
(ii)serve a useful purpose - undercover storage for the Boat (the parcel is close to a prime coastal recreational boating location);
(iii)be attractive and substantially in keeping with other buildings in the development;
(iv)be small and no bigger than needed for undercover storage for the Boat; and
(v)be a better and higher use of the land.[129]
[129] Exhibit 1 at page 138, Applicant's Closing Submissions at paras 5 - 14 and 16.

(c)the construction of the Proposed Shed:
(i)will not breach the plot ratio restrictions or open space requirements;
(ii)will be in keeping with the rest of the development;
(iii)will not affect the structural soundness of a building;
(iv)will not interfere with any statutory easement;
(v)will not contravene any by-law or by-laws of the Strata Company; and
(vi)will not interfere with any short form easement or restrictive covenant or any other easement or covenant as none are shown on the scheme plan or registered against the Parcel.[130]

(d)the alternate locations for the Proposed Shed are not viable;[131]
(e)the second respondent does not have any right to a view or a vista, uninterrupted light or air, nor a right not to be ever overshadowed or not to suffer a loss of amenity;[132] and
(f)the impacts of the construction of the Proposed Shed on the second respondent are overstated, not of substance, not supported by the evidence and, further, none of the impacts rise to the level of a nuisance.[133]
[130] Applicant's Closing Submissions at paras 20 - 34.
[131] Applicant's Closing Submissions at paras 55 - 57.
[132] Applicant's Closing Submissions at paras 65 - 69.
[133] Applicant's Closing Submissions at paras 70 - 80.

110The second respondent has maintained its objection to the construction of the Proposed Shed on the following grounds:
(a)the Proposed Shed lacks merit because the Boat is too big for the Proposed Shed and because there is an insufficient turning circle to manouevre the Boat into the Proposed Shed;
(b)the Proposed Shed is not reasonable, having regard to the interest of all of the lot owners in the Strata Scheme whose use and enjoyment of their lots and the common property will be significantly and adversely impacted by the Proposed Shed;
(c)the Proposed Shed is not in keeping with the development;
(d)there are alternate locations available for the construction of the Proposed Shed on Lot 5; and
(e)the Proposed Shed will create a significant nuisance to the owners and occupiers of Lot 6 from: heat; glare; overshadowing; loss of views and vista; destruction of the Tree; loss of amenity provided by the Courtyard and Car Bays; partial enclosure of Courtyard; proximity of the Proposed Shed to the Balcony; an unsightly accumulation of debris on the roof of the Proposed Shed; a reduction in the market value of Lot 6; and a reduction in the attractiveness of Lot 6 as a rental property.[134]
[134] Second Respondent's Response to the Application filed on 18 June 2021 (Exhibit 1 at pages 159 - 169); Second Respondent's Amended Response to the Application filed on 12 October 2021 (Exhibit 1 at pages 150 - 158).

111The second respondent also submitted that the Proposed Shed with a pitched roof will not mitigate any of the significant detriment that will be caused to the owner of Lot 6 or the significant negative impact of the scale, bulk and position of the Proposed Shed.[135]
[135] Second Respondent's Response to the Amended Application filed on 27 January 2022 (Exhibit 1 at pages 224 - 225).

Matters relating to the assessment of whether or not the construction of the Proposed Shed on Lot 5 is reasonable
112The matters raised by the parties which are relevant to an assessment of whether or not the construction of the Proposed Shed on Lot 5 is reasonable fall into three categories. First, matters relating to the grounds in s 87(5) of the ST Act. Second, matters pertaining to the merits of the Proposed Shed itself. Third, other matters pertaining to the interests of the lot owners in their use and enjoyment of their lots and the common property. I will deal with each of these categories in turn.

Grounds on which lot owner may refuse approval for structural alteration of lot
113I turn first to the grounds on which a lot owner may refuse to give their approval to a proposed structural alteration to a lot.

Will the carrying out of the proposal breach the plot ratio restrictions or open space requirements for the lot?
114The first ground on which a lot owner may refuse their approval for the structural alteration of a lot is that the carrying out of the proposal will breach the plot ratio restrictions or open space requirement for the lot.[136]
[136] ST Act, s 87(5)(a).
115The applicant contended that there was no evidence that the construction of the Proposed Shed would breach the plot ratio restrictions or open space requirements for the lot and that the report of Ms Exell was to the effect that the Proposed Shed would not impact the open space requirements and plot ratio restrictions.[137]
[137] Applicant's Closing Submissions at paras 20 - 23.
116The second respondent originally contended that the construction of the Proposed Shed would breach the plot ratio restrictions or open space requirements for the lot.[138]
[138] Exhibit 1 at page 156.
117In her reports, Ms Exell stated that:[139]
The allowable plot ratio under the R-Codes for R40 zoned sites is 0.6 with an open space requirement of 45%. This open space requirement includes side setbacks, driveway areas and uncovered parling areas.
With the available information, it is difficult to determine an accurate plot ratio for the broader strata development or individually Lot 1. However, given the size of the lot as shown in the development approval drawings and the relatively small size of the outbuilding in relation to the lot, it is unlikely that the new development will exceed the plot ratio required under the R-Codes or the 45% open space requirement.
[139] Exhibit 1 at pages 234 - 235 and 247.

118Ms Exell subsequently accepted that the zoning of the Strata Scheme was R30 but said that the requirements for R30 and R40 zones were the same.[140]
[140] ts 554 and 628, 4 December 2023.
119I do not accept the evidence of Ms Exell because she was not asked and, therefore, did not determine the plot ratio or open space requirements for Lot 5 which would appear to be a prerequisite for forming an opinion as to whether or not the construction of the Proposed Shed would breach the plot ratio restrictions or open space requirements for the lot. Other than the evidence of Ms Exell, there is no evidence before the Tribunal concerning whether or not the construction of the Proposed Shed will breach the plot ratio restrictions or open space requirement for the lot.
120Accordingly, I am satisfied and find that there is no evidence that the construction of the Proposed Shed will breach the plot ratio restrictions or open space requirements for Lot 5.

Will the proposed structural alteration result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development?
121The second ground on which a lot owner may refuse their approval for the structural alteration of a lot is that, in the case of a lot that is not a vacant lot, the carrying out of the proposal will result in a structural alteration that is visible from outside the lot and that is not in keeping with the rest of the development.[141]
[141] ST Act, s 87(5)(b)(i).
122The term 'development' has the meaning given in s 4(1) of the PD Act and means:
… the development or use of any land, including —
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies, any act or thing that —
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building;[142]
[142] Section 3(1) of the ST Act.

123The term 'in keeping with' is not defined in the ST Act and bears its ordinary meaning.
124The term 'in keeping with' is defined the Macquarie Dictionary Online to mean 'as befits' which term is also defined in the Macquarie Dictionary Online to mean 'to be fitting or appropriate for; be suited to'.
125Accordingly, in my view, to determine whether the Proposed Shed is in keeping with the rest of the development, it is necessary to determine whether or not the Proposed Shed fits in with the rest of the development.
126The applicant contended that the Proposed Shed is in keeping with the rest of the development whether it has a flat roof or a pitched roof.[143]
[143] Exhibit 1 at pages 139 - 140.
127The second respondent originally contended that the Proposed Shed was not in keeping with the development because it is significantly different in appearance from any other buildings within the Strata Scheme and that all of the buildings have pitched roofs, eaves and windows facing onto the Common Property Driveway.[144] Subsequently, the second respondent contended that the Proposed Shed with a flat roof is not in keeping with the Strata Scheme[145] and that the size, mass, scale and orientation of the Proposed Shed is not in keeping with the rest of the development.[146]
[144] See also Exhibit 1 at page 150 - 151.
[145] Second Respondent's Closing Submissions at paras 79 and 23; and Second Respondent's Responsive Submissions at para 20.
[146] Second Respondent's Responsive Submissions at para 20.
128It is not in dispute and I find that Lot 5 is not a vacant lot. This is apparent from the strata title plan and the Plans.[147]
[147] Exhibit 1 at page 10 and Exhibit 3.
129It is not in dispute and I find that the construction of the Proposed Shed will result in a structural alteration that is visible from outside Lot 5. [148] This is because the Proposed Shed is to be constructed on the Grassed Area which the Site Plan shows is visible from the Car Bays and the Common Property Driveway as well as some of the townhouses.[149]
[148] Applicant's Amended Response (Exhibit 1 at page 139); Respondent's Amended Response to Application (Exhibit 1 at page 151).
[149] Exhibit 1 at page 10.
130Ms Exell gave evidence that the existing development:[150]
… presents as a late twentieth century contemporary face brick and tile collection of townhouses, with hipped and gabled terracotta tiled roofs. Some portions of the roof elements have no eaves with cream coloured curved guttering and metal fascia. Where the roof element projects past the façade, there are exposed timber joists. The facades are cream face brick with a feature band of contrasting red bricks. There is no discernible pattern or arrangement to the fenestration for each townhouse, however the doors and windows are all cream-coloured aluminium frames.
[150] Exhibit 1 at pages 233 and 244.

131Ms Exell is of the opinion that the façade of the Proposed Shed,[151] being cream face brick with a contrasting course of red bricks, is in keeping with the rest of the development.[152] In her opinion, the lack of eaves on the Proposed Shed is in keeping with the adjacent double garage.[153] Further, Ms Exell is of the opinion that the lack of fenestration (that is, windows) to the side of the Proposed Shed is generally in keeping with the architectural style of the existing development, particularly the existing garage structures.[154]
[151] Ms Exell refers to the Proposed Shed as an outbuilding in her reports. For consistency, the term Proposed Shed will be used instead of outbuilding.
[152] Exhibit 1 at page 245; ts 550, 555 and 621, 4 December 2023.
[153] ts 556 - 557, 4 December 2023.
[154] Exhibit 1 at page 234; ts 237 - 238, 29 March 2023.
132Ms Exell is of the opinion that a flat corrugated roof with parapet wall is not in keeping with the predominantly hipped and gabled roof structures in the development.[155] However, in her opinion, a pitched roof with tiles would be in keeping with the development.[156] Ms Exell observed that there are patios and outbuildings on the Strata Scheme that have Colorbond roofing but the Proposed Shed is not a patio but presents as an actual building.[157]
[155] Exhibit 1 at pages 233 and 245; ts 177 - 178, 194, and 238, 29 March 2023; ts 555 and 628, 4 December 2023.
[156] ts 238, 29 March 2023; ts, 556, 628 - 629, 4 December 2023.
[157] ts 555, 4 December 2023.
133In his report, as outlined below at [253], Mr Gaunt expressed his opinion that the proposed colours and materials of the Proposed Shed with a flat roof and a pitched roof were generally consistent or compatible with the existing development. Further, that the construction of a single-storey structure of the bulk and scale of the Proposed Shed with either a flat roof or a pitched roof is consistent with the established build form within the Strata Scheme.[158]
[158] Exhibit 8 at page 10.
134Aerial photographs of the Parcel show that there are a number of flat roof structures on the Parcel with a light-coloured roofing material.[159] These flat roof structures are on each lot, other than Lot 6.
[159] Exhibit 1 at pages 57, 223 and 262.
135There was very little difference between the evidence of Mr Gaunt and Ms Exell with respect to whether or not the Proposed Shed was in keeping with the rest of the development except in relation to the Proposed Shed with a flat roof. I do not consider that their evidence is inconsistent because Ms Exell's focus was on consistency with other buildings whereas Mr Gaunt took into account other structures. Their evidence is also supported by the photographs of the buildings and structures in the Strata Scheme.[160]
[160] Exhibit 8, Exhibit 9 and Exhibit 10.
136On the basis of the evidence of Ms Exell, Mr Gaunt and the aerial photographs, I find that there are other flat roof structures on the Parcel.
137I accept the evidence of Ms Exell and Mr Gaunt and find that the Proposed Shed with a pitched roof is in keeping with the rest of the development.
138I prefer Mr Gaunt's evidence to Ms Exell's evidence in respect of whether or not the Proposed Shed with a flat roof is in keeping with the rest of the development. This is because the ST Act requires regard to be had to the 'development' not just buildings. Further, Mr Gaunt's evidence is consistent with the aerial photographs showing other flat roof structures on the Parcel. On the basis of Mr Gaunt's evidence and the aerial photographs showing the other flat roof structures, I find that the Proposed Shed with a flat roof is in keeping with the rest of the development.
139I also accept Mr Gaunt's evidence and find that the construction of a single-storey structure of the bulk and scale of the Proposed Shed with either a flat roof or a pitched roof is consistent with the established build form within the Strata Scheme. This is supported by the photographs of the townhouses, garages and other structures on the Strata Scheme.[161]

The market discounted Unit 4 by 8.07% because it didn't have the same open feel, had inferior views and was subject to shadowing from Unit 3.
Based on this sale I consider that the boat shed which will cause a similar detriment to Unit 5 as Unit 3 has done to Unit 4. However, the boat shed although a large building is smaller than Unit 3. I therefore consider the detrimental effect on Unit 5 to be 5%.
[371] Exhibit 1 at page 270 and Exhibit 2 at page 6.
[372] Exhibit 1 at page 270 and Exhibit 2 at page 6.

336During the Hearing, Mr Schifferli gave evidence that the prices of properties in Busselton had moved by a minimum of 30% since he prepared his valuation but his opinion as to a decrease in valuation remained constant.[373] Further, he stated that the demand for holiday accommodation in Busselton has significantly increased in the last 5 years or so and there is not a low season in Busselton any more.[374] In his opinion, the construction of the Proposed Shed would not impede the use of that property for rental accommodation or the rent that might be obtained for the property.[375]
[373] ts 427, 17 October 2023.
[374] ts 427, 17 October 2023.
[375] ts 428, 17 October 2023.
337Mr Eftos is of the opinion that the construction of the Proposed Shed will have a nominal or no impact on the value of Lot 6.[376] In his report, Mr Eftos stated:[377]
At present Lot 6 has a small front yard divided by a low lattice fence with an outlook over the grassed area of Lot 5, partially obscured by a tree.
This front yard area has minimal glimpses of the ocean at ground level between the northern side of the Lot 5 and the adjoining property through trees and vegetation, with the main ocean views being obtained in a northerly direction from the first level balcony overlooking the adjoining property.
The construction of the shed will create a screen wall approximately 3.97 meters wide to part of the front yard are which will effectively create a courtyard enclosure and screen wall for privacy for this area.
The proposed shed will comprise a wall being approximately 3 [metre] high with a flat roof and with a pitched roof the structure will have a total height of 4.23 meters at the top of the roof pitch.
Bearing in mind that the normal boundary fence is approximately 1.8 meters high and taking into account the scale of the proposed shed I am of the option that the shed wall with not have any significant effect on the enjoyment of the front yard once constructed.
…
Besides offering additional privacy to Lot 6 there is no loss of views in a westerly direction over the shed and Lot 5 which are already restricted by tree on the boundary of both lots. The main views from the balcony of Lot 6 are obtained over the adjoining property to the north west as previously stated.
Accordingly, it is my opinion that lot 6 will incur a nominal loss or no loss in value as a direct result of having the proposed boat shed constructed at the eastern end of Lot 5 both with a flat roof and a pitched roof.
[376] Exhibit 1 at page 71.
[377] Exhibit 1 at pages 64 - 65.

338Mr Eftos is of the opinion that there would be a nominal or no increase in value to Lot 5 if the Proposed Shed is constructed. He stated:[378]
The proposed shed as detailed earlier in this report will provide additional storage to Lot 5 which already has a double lock up garage and additional surplus land and a parking bay.
This additional structure could offer additional appeal to sectors of the market particularly those seeking additional storage space as a workshop or storing a small boat.
However our previous experience in dealing with such scenarios has shown that the market generally will look at a property on an overall basis encompassing all of its features and attributes. The most relevant features being the location and available views, age and quality of the improvements as well as the size of the accommodation provided.
Improvements such as sheds and alike carry less weight on determining the achievable price of a property at it may appeal to only sections of the market and can easily be added on later if required by a particular purchaser.
Accordingly taking all of these factors into account together with the age of the townhouse and the amenity it currently offers I am of the opinion that there would be a nominal or no change in value to Lot 5 if the shed were constructed with or without a pitched roof as per plans provided.
[378] Exhibit 1 at page 64.

339Mr Eftos did not agree with Mr Schifferli in relation to the loss of value for the reasons outlined in the joint expert report as follows:[379]
The proposed structure is not attached to unit 5 nor as substantial as the two-level townhouses in the complex.
Comparing the sale prices between unit 5 and 4 which are both two storey and attached to the subject case is not justified.
Whilst the units are a mirror image the position of unit 4 in the southeastern corner of the site limits its view availability to a greater extent than unit 5. Unit 5 is a better located unit with substantially better views.
Furthermore unit 4 has a substantial two-level townhouse directly in front of it with an attached carport which has a significant impact to its appeal and views.
The degree of the impact of an attached 2 level substantial townhouse cannot be compared to the impact caused by a detached single level boatshed/garage.
The difference in sale price between unit 5 & 4 of 8.07% appears justified bearing in mind the lesser appeal of unit 4 however this discredits the claim of a 5% loss in value in the subject case caused by a single level boat shed detached from the dwellings.
[379] Exhibit 2 at page 6.

340In their joint expert report both Mr Eftos and Mr Schifferli described Lot 6 and Lot 7 as 'mirror image'.[380] Mr Schifferli also said that Lot 6 and Lot 7 were mirror image being the same age, size, design, floor plan and having the same fixtures and fittings and land area.[381] Mr Eftos did not expand on what he meant by mirror image.
[380] Exhibit 2 at page 6.
[381] Exhibit 2 at page 6.
341The strata plan for the Strata Scheme shows that Lot 6 and Lot 7 are marginally different in size and that the ground floor and first floor plans are different.[382] Further, the photographs of the exterior of the townhouses show that Lot 6 has a balcony on the first floor and that Lot 7 has a verandah with a tiled roof instead of a balcony.[383] Aerial photographs of the Strata Scheme show that Lot 7 has some additional flat-roofed structures at the rear of the townhouse but Lot 6 does not.[384] During the Hearing, Mr Schifferli conceded that Lot 7 has a verandah and that Lot 6 has a balcony. Mr Eftos was not asked. Having regard to the strata plan for the Strata Scheme and the photographs of Lots 6 and 7 and the concession from Mr Schifferli, I find that unlike Lot 6, Lot 7 does not have a first-floor balcony but has a verandah with a pitched tiled roof. Accordingly, in my view, Lot 6 and Lot 7 are not mirror image to the extent described by Mr Schifferli.
[382] Exhibit 3; Exhibit 6.
[383] Exhibit 1 at pages 207, 214, 220, 326, 330, 331, 332 and 334; photographs attached to Exhibit 8; Exhibit 9 and Exhibit 10.
[384] Exhibit 1 at pages 57, 223 and 262.
342I prefer the evidence of Mr Eftos to that of Mr Schifferli in relation to the impact of the construction of the Proposed Shed on the valuation of Lot 6. This is because when Mr Schifferli used the comparative sales evidence relating to the sale of Lot 6 and Lot 7 in May 2003, he expressly referred to the each of the lots being the same size, design, floor plan and having the same fixtures and fittings and land area when clearly this is not the case. Although Mr Eftos also referred to the lots being mirror image in the joint expert report, he did not depart from the views expressed in his earlier expert report.
343Further, for the reasons identified by Mr Eftos, the difference in sale price between Lot 6 and Lot 7 does appear justified given the lesser appeal of Lot 7 (including the lack of a balcony) and given the significant difference in size between a single storey boatshed and a two-storey townhouse both in terms of height and the area of land occupied by each structure. Finally, Mr Schifferli's opinion is based in part on a number of other factual assumptions which are not supported by the evidence and which are contrary to the findings of the Tribunal: that there are ocean views as opposed to ocean glimpses from the ground floor; that ocean views from the Balcony will be restricted; that the Tree is not replaceable; that the height of the brick wall is 25% higher than the maximum wall height allowed of 2.4 metres; and that the Proposed Shed has no setbacks.[385] Accordingly, on the basis of Mr Eftos's evidence, I find that the construction of the Proposed Shed will have a nil or a nominal effect on the value of Lot 6.
[385] Exhibit 2 at page 4.
344I accept the evidence of Mr Schifferli in relation to the impact of the construction of the Proposed Shed on the use of Lot 6 as a rental property. This is because Mr Schifferli was the only valuer to give evidence in respect of this issue, his evidence was not challenged and the incorrect factual assumptions to which I have referred would have no bearing on this issue. Accordingly, on the basis of the evidence of Mr Schifferli, I find that the construction of the Proposed Shed will not impede the use of Lot 6 as a rental property or the rent that is obtained for Lot 6.
345I accept the evidence of Mr Eftos in relation to the impact of the construction of the Proposed Shed on the valuation of Lot 5. This is because Mr Eftos was the only valuer to give evidence in respect of this issue. Accordingly, on the basis of the evidence of Mr Eftos, I find that the construction of the Proposed Shed will have a nil or a nominal effect on the value of Lot 5.

The Car Bays
346It is not in dispute, and I find that the Car Bays are next to the Grassed Area. Each car bay in the Car Bays is a part lot for Lot 3, Lot 6 and Lot 7.
347It is also not in dispute, and I find that the Grassed Area would be lost if the Proposed Shed is constructed on it.
348There is no evidence that the construction of the Proposed Shed would prevent the owners or occupiers of Lots 3, 6 and 7 from parking in the Car Bays. Further, Ms Webb conceded that the construction of the Proposed Shed would not prevent her from parking in the car bay closest to Lot 6.[386]
[386] ts 502, 18 October 2023.
349Accordingly, I find that the construction of the Proposed Shed will not prevent, or unreasonably interfere with, the use of the Car Bays owned by the owners of Lot 3, Lot 6 and Lot 7 in the Strata Scheme.
350The second respondent contended that if the Proposed Shed is constructed there would no longer be a view of the Grassed Area from the Car Bays.
351I have found that the Proposed Shed will be constructed on the Grassed Area. Accordingly, I also find that if the Proposed Shed is constructed on the Grassed Area, there would no longer be a view of the Grassed Area from the Car Bays or the Common Property Driveway.

Significant inconvenience or detriment to the owners of other lots
352The second respondent contended that it would suffer significant inconvenience and detriment if the Proposed Shed is constructed.[387]
[387] Second Respondent's Amended Response to the Application filed on 12 October 2021.
353Section 90(3)(b) of the ST Act provides that an order can only be made under s 90 of the ST Act if the Tribunal is satisfied, to the extent that the structural alteration has already been carried out, it will not cause any significant inconvenience or detriment to the owners of other lots.
354In The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161 at [30], the Tribunal held that one of the factors relevant to a consideration of 'significant inconvenience or detriment' was whether the alteration would result in financial detriment to another strata lot proprietor either by the devaluing of their property, the strata complex in its entirety or by restricting the use of common property.
355However, s 90(3)(b) of the ST Act does not apply to this matter because the Proposed Shed has not been constructed. Accordingly, to the extent that the second respondent contended that it will suffer inconvenience or detriment if the Proposed Shed is constructed, the Tribunal cannot take that inconvenience or detriment into account under s 90(3)(b) of the ST Act in deciding whether or not the construction of the Proposed Shed is reasonable.
356A lot owner's financial interest in the use and enjoyment of a lot or the common property can, in my view, be taken into account under s 90(3)(a) of the ST Act.

Conclusion in relation to whether or not the construction of the proposed Shed is reasonable
357The applicant wants to build the Proposed Shed on Lot 5 to provide safe and secure accommodation for the Boat on that lot. This is so that Mr Biagione does not have to tow the Boat to and from Busselton anymore when he and his family visit their holiday accommodation because Mr Biagione is finding it more difficult to tow the Boat as he gets older. I have found that the construction of the Proposed Shed will result in safe and secure accommodation for the Boat on Lot 5.
358The second respondent does not have a problem with the applicant having a boatshed, but they do not want the Proposed Shed to be constructed on the Grassed Area.[388] This is because of the negative impacts that the second respondent says the construction of the Proposed Shed on the Grassed Area will have on Lot 6.
[388] ts 479, 17 October 2023.
359I have found that the construction of the Proposed Shed will result in the following impacts on Lot 6:
(a)a loss of ocean glimpses from the ground floor;
(b)an impact on visual amenity and openness to the extent that the Proposed Shed will replace the Grassed Area;
(c)an impact on light amenity due to loss of sunlight into the habitable rooms on the ground floor during the mid to late afternoon in the winter months;
(d)increased shadowing in the late afternoon during the winter months;
(e)increased shading of the Courtyard;
(f)the loss of the Tree and some heat and glare associated with the loss of the Tree;
(g)some glare from the flat roof of the Proposed Shed; and
(h)some leaf debris on the flat roof of the Proposed Shed.

360I am satisfied that construction of the Proposed Shed with either a flat roof or a pitched roof on Lot 5 is reasonable having regards to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property. This is for the reasons which follow:
361First, the plans for the Proposed Shed were drawn up by a structural engineer and no issue is taken with their suitability as plans for the construction of a boatshed.
362Second, the Proposed Shed has setbacks and would be set back from the southern, northern and eastern boundaries of Lot 5 by 45 millimetres, 200 millimetres and 50 millimetres respectively.
363Third, the Plans include adequate measures for drainage from the roof as required by the Notation.
364Fourth, whilst the wall height of the Proposed Shed exceeds the maximum wall height under LPS 21 and LPP 4.10, the ridge height of the Proposed Shed with either a flat roof or a pitched roof does not exceed the maximum ridge height under LPS 21 and LPP 4.10. However, I also find that notwithstanding that the wall height exceeds the maximum wall height under LPS 21 and LPP 4.10, the Plans have been approved by the City of Busselton which means that the Proposed Shed has been assessed to meet the design principles outlined in the RCodes and cl 67 of Sch 2 of the PD Regulations.
365Fifth, the construction of the Proposed Shed is consistent with the residential zoning of the Parcel and there is no evidence that the Grassed Area is not a suitable location for the Proposed Shed.
366Sixth, there are no other viable options for the storage of the Boat elsewhere and no viable alternatives for the location of the Proposed Shed.
367Seventh, the Proposed Shed is fit for purpose. That is, the Proposed Shed is large enough to accommodate the Boat with a collapsible canopy and the Boat can be manouevred into the Proposed Shed.
368Eighth, the Proposed Shed is no larger than is required to accommodate the Boat with a collapsible canopy on a trailer.
369Ninth, there is no evidence that the construction of the Proposed Shed will prevent, or unreasonably interfere with, the use or enjoyment of the common property, or obstruct use of the common property. This is because the Proposed Shed will be constructed wholly within the boundaries of Lot 5 and be set back from the north, south and east boundaries of that lot and will not impact on the use of the Common Property Driveway. Further, the change in view from the Common Property Driveway and the Car Bays (from the Grassed Area to the Proposed Shed) would, in my view, have little if any impact on the enjoyment of the Common Property Driveway.
370Tenth, the impacts referred to at [358] are not sufficient to give rise to an unreasonable interference with the use and enjoyment of the lots by the lot owners or a nuisance (that is, a substantial and unreasonable interference with the use and enjoyment of the lots by the lot owners). In particular:
(a)there is no evidence that the construction of the Proposed Shed will have any impact on the use of any of the lots for residential purposes by the lot owners;
(b)the construction of the Proposed Shed will not have any impact on the use of the Car Bays by the lot owners; I do not consider that the loss of a view of the Grassed Area from the Car Bays would unreasonably interfere with the enjoyment of the Car Bays by the lot owners. This is because I consider it unlikely that a lot owner in the Strata Scheme would spend much time sitting in their vehicle in one of the Car Bays looking over the Grassed Area;
(c)whilst there will be a reduction in the amount of light on Lot 6 during the winter months due to overshadowing, the overshadowing meets the deemed-to-comply provisions of the R-Codes and there is no expert evidence that construction of the Proposed Shed will cause a substantial or unreasonable loss of light;
(d)whilst there will be a loss of ocean glimpses from the ground floor, the ocean glimpses from the ground floor do not have the same significance at the ocean views from the Balcony which will not be impacted by the Proposed Shed. Further, and in any event, the ocean glimpses could at any time be obscured by buildings or trees on neighbouring properties which are between Lot 6 and the ocean;
(e)whilst there will be some glare off the flat roof of the Proposed Shed, there is no expert evidence that construction of the Proposed Shed will cause a substantial or unreasonable glare;
(f)whilst there will be some impact on the Courtyard in terms of overshadowing and light amenity, the Courtyard is an inhospitable area since flora currently struggles to grow in the Courtyard and the Courtyard appears to have been neglected since Lot 6 was purchased. Further, the loss of the Tree will increase light in the Courtyard;
(g)whilst the loss of the Tree is unfortunate, the Tree is encroaching on Lot 5 and the applicant is within its right to abate the nuisance. Finally, the Tree can be replaced and the applicant has offered to do so at his own cost;
(h)whilst the loss of the Tree will cause an increase of light, heat and glare on Lot 6, this is attributable to the encroachment of the Tree and the removal of the Grevillea Bush prior to the Hearing.

(i)the second respondent does not have the benefit of a light or air easement under the ST Act;
(j)whilst the roof of the Proposed Shed will be higher than the Balcony, the Proposed Shed will be set back from the boundary between Lot 5 and Lot 6 and the Courtyard will be located between the Balcony and the Proposed Shed. Further, the Proposed Shed will be located to the right of any person on the Balcony; and
(k)whilst it is likely that some leaf debris may accumulate on the flat roof of the Proposed Shed, the amount of leaf debris is likely to be less than that which currently accumulates in the Courtyard given that there are few trees on the Strata Scheme, the Grevillea Bush has been removed and the Tree will not survive the construction of the Proposed Shed.

371Eleventh, the construction of the Proposed Shed will enable the applicant to provide a safe and secure place on Lot 5 to accommodate the Boat so that the Boat can be left on that lot between visits. This is consistent with the long-term use of Lot 5 by Mr Biagione and his family as holiday accommodation in a coastal location. The construction of a boatshed in a coastal location is an ordinary and reasonable use of the Grassed Area.
372Twelfth, to the extent that the second respondent will lose the view or vista of and over the Grassed Area, this matter relates more to the enjoyment of the Grassed Area by the second respondent rather than its owner (the applicant).
373Thirteenth, the owners of Lots 2, 3 and 7 did not object to the proposed structural alteration at the AGM and neither the First Respondent nor the owners of Lots 2, 3 and 7 participated in the Tribunal proceeding. Accordingly, the majority of the lot owners in the Strata Scheme do not object to the construction of the Proposed Shed.
374Fourteenth, there is no evidence that the construction of the Proposed Shed:
(a)breaches the plot ratio restrictions or open space requirements for the lot;
(b)may affect the structural soundness of any building within the Strata Scheme;
(c)may interfere with a statutory easement;
(d)will interfere with a short form easement or restrictive covenant or any other easement or covenant affecting the parcel that is shown on the scheme plan or registered against the parcel; or
(e)will contravene a specified by-law or specified by-laws of the Strata Company.

375Fifteenth, whilst the Proposed Shed with a flat roof will result in a structure that is visible from outside Lot 5, that structure is in keeping with the rest of the development.
376Sixteenth, while the Proposed Shed with a pitched roof will result in a structure that is visible from outside Lot 5, that structure is in keeping with the rest of the development.
377Seventeenth, the construction of the Proposed Shed will have no impact or a nominal impact on the value of Lot 6 and hence will have little or no impact on Lot 6 as an investment property. Further, and in any event, the second respondent does not intend to sell Lot 6. Finally, the Proposed Shed will not have no impact on the ability of the second respondent to rent out Lot 6 or the rental value of Lot 6.
378Eighteenth, the construction of the Proposed Shed will either have no impact or a nominal impact on the value of Lot 5.

Issue 4: should the Tribunal exercise its discretion to make an order exempting the construction of the Proposed Shed on Lot 5 from the requirements of Div 2 of Pt 7 of the ST Act?
379I am satisfied that the construction of the Proposed Shed on Lot 5 is reasonable having regard to the merits of the structural alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property. Accordingly, the prerequisite to the making of an order under s 90(1) of the ST Act has been met.
380However, s 90(3) of the ST Act confers a discretion on the Tribunal to make an order under s 90(1) of the ST Act.
381In Vane at [29], the Tribunal said:
If the Tribunal reaches the conclusion that the requirements of s 90(3) of the ST Act are satisfied, then the Tribunal may make an order under s 90(1) of the ST Act. The power of the Tribunal to make an order under s 90(1) of the ST Act is discretionary.

382In Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25 (Efficient) at [34] to [43] the Tribunal explained the Tribunal's statutory discretionary power 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

383I agree with the principles set out in Vane and Efficient concerning the Tribunal's exercise of discretion in respect of s 90(3) of the ST Act.
384I am of the view that I should exercise the Tribunal's discretion to make the order sought by the applicant in respect of the construction of the Proposed Shed with a flat roof rather than a pitched roof. This is for the following reasons.
385First, the parties are part of a strata community and the second respondent is the only lot owner out of the five lot owners who objects to the construction of the Proposed Shed. Therefore, the majority of the lot owners do not object to the construction of the Proposed Shed.
386Second, Mr Biagioni did try to obtain the consent of all of the other lot owners to the construction of the Proposed Shed under s 87 of the ST Act prior to seeking the intervention of the Tribunal by lodging his Application with the Tribunal.
387Third, Mr Biagioni has attempted to come up with a proposal for the construction of the Proposed Shed that accommodates the concerns of the other owners and, in particular, the owners of Lot 6. This is reflected in: his consideration of the choice of materials for a flat roof which will reduce glare;[389] his submission to the Tribunal of an amended application concerning an alternate proposal for the Proposed Shed with a pitched roof instead of a flat roof;[390] his offer at the Hearing to replace the Tree with another mature tree;[391] and Mr Biagioni's evidence that he would do anything that he could not to inconvenience the Webbs,[392] had 'tried to do everything',[393] and that he had taken into account their objections.[394]
[389] ts 87 - 88, 28 March 2023.
[390] Exhibit 1 at pages 106 - 108.
[391] ts 89 and 107, 28 March 2023.
[392] ts 88, 28 March 2023.
[393] ts 107, 28 March 2023.
[394] ts 81, 28 March 2023.
388Fourth, the Proposed Shed is no larger than is needed to accommodate the Boat and the applicant intends to have the canopy of the Boat modified to make it collapsible or hinged so that the Boat will fit into the Proposed Shed on a trailer.
389Fifth, the second respondent has enjoyed the Grassed Area for over 20 years, but the Grassed Area is owned by the applicant and has been owned by the applicant since 1985.
390Sixth, although Mr Biagioni gave evidence that the other lot owners had indicated that they would prefer a pitched roof,[395] and he would prefer a pitched roof,[396] the applicant has already obtained development approval from the City of Busselton in respect of the Proposed Shed with a flat roof. Although that approval has expired, the Proposed Shed with a flat roof must, given the grant of development approval, be taken to have complied with the requirements of the City of Busselton relating to the construction of such a building. The Proposed Shed with a pitched roof had not been approved to date. It is noted, in any event, that the applicant will be required to obtain all necessary approvals for the construction of the Proposed Shed.
[395] ts, 97 and 108, 28 March 2023.
[396] Ts, 50 and 107 28 March 2023.
391Seventh, the Proposed Shed with a flat roof will have less impact on some of the areas of concern raised by the second respondent.

Conclusion
392I am satisfied, for the reasons set out above, that the construction of the Proposed Shed on Lot 5 of the Strata Scheme is reasonable, having regard to the merits of the structural alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property.
393I am also satisfied, for the reasons set out above, that I should exercise my discretion to make an order exempting the Proposed Shed with a flat roof from the requirements of Div 2 of Pt 7 of the ST Act.

Proposed orders
394Subject to hearing from the parties as to the precise terms of the order, I propose making the following order:
1.Pursuant to s 90(1) of the Strata Titles Act 1985 (WA), the construction of a boatshed with a flat roof on Lot 5 of Strata Scheme 25723, in accordance with the plans given development approval by the City of Busselton on 13 November 2020, is exempt from the application of Div 2 of Pt 7 of the Strata Titles Act 1985 (WA).

Orders
The Tribunal orders:
1.The proceeding is to be listed for a hearing of 1 hour on a date and time to be fixed for the parties to make submissions about the precise terms of the order pursuant to s 90(1) of the Strata Titles Act 1985 (WA).
2.The parties are to provide their unavailable dates for the months of February and March 2025 within 7 days of this decision being published.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
29 JANUARY 2025

Applicant	:	Mr M Atkinson
First Respondent	:	N/A
Second Respondent	:	Ms C Meighan (16, 17 and 18 October 2023 and 4 December 2023) and Mr S McFarlane (28 and 29 March 2023)

Applicant	:	Atkinson Legal
First Respondent	:	N/A
Second Respondent	:	Bugden Allen Graham Lawyers