FRASERS QUEENS PTY LTD and TAN
[2018] WASAT 114
•5 NOVEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: FRASERS QUEENS PTY LTD and TAN [2018] WASAT 114
MEMBER: MS P LE MIERE (MEMBER)
HEARD: 20 SEPTEMBER 2018
DELIVERED : 5 NOVEMBER 2018
FILE NO/S: CC 718 of 2018
BETWEEN: FRASERS QUEENS PTY LTD
Applicant
AND
SEOK EAN TAN
First Respondent
THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728
Second Respondent
Catchwords:
Strata Titles Act 1995 (WA) - Effect of non-compliance with s 7B application pursuant to s 103F - Test to be applied in determining if consent unreasonably withheld for purposes of s 103F - Strata Titles General Regulations 1996 (WA) - Effect of technical non-compliance with reg 34 - Conditional approval pursuant to s 103F.
Legislation:
State Administrative Tribunal Act 2004 (WA), s 9, s 27(1), s 27(2), s 27(3), s 29
State Administrative Tribunal Rules 2004 (WA), r 15
Strata Titles Act 1985 (WA), s 3AC, s 7, s 7A(3), s 7B, s 7B(1), s 11, s 12, s 103(F), s 103(F)(1), s 103F(3)(b), s 107F
Strata Titles General Regulations 1996 (WA), reg 30, reg 31, reg 34
Result:
Approval Granted
Category: B
Representation:
Counsel:
| Applicant | : | Mr T French |
| First Respondent | : | In Person |
| Second Respondent | : | Mr W Robinson |
Solicitors:
| Applicant | : | Minter Ellison |
| First Respondent | : | N/A |
| Second Respondent | : | Wotton + Kearney Lawyers (Perth) |
Case(s) referred to in decision(s):
Frasers Queens Pty Ltd and Tan [2018] WASAT 73
Pickford Holdings Pty Ltd and The Owners of 93 Hector Street Osbourne Park [2008] WASAT 295
Tipene and The Owners of Strata Plan 9465 [2016] WASAT 101
Tipene v The Owners of Strata Plan 9845 [2015] WASC 30
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This proceeding concerns an application under s 103F(1) of the Strata Titles Act 1985 (WA) (ST Act) for an order by the Tribunal deeming approval to have been given under s 7(2) of the ST Act for the applicant's 'proposed structural alterations of premises situated within Lots 525 and 526 of Queens Riverside' (Application).
The applicant is the registered proprietor of Lots 525 and 526 on Strata Plan 55728, which are commonly known as being located at the Queens Riverside Development (Lots 525 and 526).
Strata Plan 55728 is commonly known as the Queens Riverside Strata Plan (Development); the Strata Council for Strata Plan 55728 is commonly known as the Queens Riverside Strata Council; and the Strata Company for Strata Plan 55728 is commonly known as the Queens Riverside Strata Company.
On 30 January 2018, at the adjourned Annual General Meeting of the Queens Riverside Strata Company (AGM) the applicant submitted an application under s 7 and s 7B of the ST Act for approval of proposed alterations within Lots 525 and 526 (Proposal). The Proposal is necessary for the fit out of a restaurant that is intended to be situated within Lots 525 and 526.
The Proposal was not passed because the first respondent voted against the Proposal on the recorded grounds that:
(a)the carrying out of the Proposal would result in a structure that is visible from the outside and that is not in keeping with the rest of the Development (referring to the proposed exhaust vents and louvres to be installed to the windows); and
(b)the carrying out of the Proposal would contravene Schedule 3 ByLaw 33.1.1 of the Queens Riverside Strata Company by-laws, which prohibits a commercial lot from being used as a fish and chip shop or similar fast food shop unless exhaust systems and services are provided to the satisfaction of the Queens Riverside Strata Company.
The first respondent says these are not the only grounds and that she disclosed further grounds pursuant to s 3AC of the ST Act.
There were no other dissenters to the Proposal at the AGM however a further objection was subsequently lodged.
On 10 April 2018, the applicant filed the Application with the Tribunal under s 103F(1) of the ST Act.
On 8 June 2018, Senior Member Aitken ordered that the following issue was to be determined by the Tribunal as a preliminary issue in the proceedings: 'Can an application be made under s 103F of the Strata Titles Act 1985 in respect of only part of a proposal for which approval has been applied for but not obtained under s 7B of the Act?'.
On 2 August 2018, Senior Member Aitken determined the preliminary issue in the affirmative and ordered that an application can be made under s 103F of the ST Act in respect of only part of a proposal for which approval has been applied for but not obtained under s 7B of the ST Act.
On 10 August 2018, Senior Member Aitken gave the applicant leave, under r 15 of the State Administrative Tribunal Rules 2004 (WA), to amend the Application (Amended Application):
The applicant now seeks deemed approval under s 103F of the ST Act for approval to make alterations of a structural kind as set out in the Amended Application.
The Queens Riverside Strata Company has stated to the Tribunal that it will not actively participate in the proceeding, leaving Ms Seok Ean Tan as the sole active respondent. I will refer to Ms Tan, the first respondent, simply as the respondent hereafter.
By order dated 18 May 2018 the respondent's son, Mr Jing Zhi Wong was given leave to represent the respondent in the proceedings and he represented the respondent at the hearing.
The respondent challenges the Tribunal's jurisdiction to determine the matter on the basis that the Amended Application does not fall within s 7(2) of the ST Act.
Further the respondent says in any event the Tribunal should not grant deemed approval for the proposed structural alterations for a number of reasons to which I will refer later.
Legislative framework
Section 7 of the ST Act applies as Lots 525 and 526 are not lots in a survey strata and the applicant does not have permission from each proprietor for the works.
Section 7 requires:
…
(2)The proprietor of a lot shall not cause or permit
(a)any structure to be erected; or
(b)any alteration of a structural kind to, or extension of, a structure,
on his lot except
(c)with the prior approval of the proprietor of the other lot in the case of a strata scheme in which there are not more than 2 lots; and
(d)in any other case with the prior approval, expressed by resolution without dissent, of the strata company.
(3)Where an application is made to a proprietor in accordance with section 7B the proprietor may refuse to give approval on any ground that is permitted by subsection (5), but not otherwise.
(4)Where an application is made to a strata company in accordance with section 7B
(a)notice of the general meeting to which the application is to be submitted shall contain or be accompanied by a statement, in the prescribed form, of the effect of paragraphs (c) and (d); and
(b)the chairman of the general meeting shall before a vote is taken on the application read out the statement referred to in paragraph (a); and
(c)a proprietor may vote
(i)against a resolution to approve the application; or
(ii)in support of a resolution to refuse approval of the application,
on any ground that is permitted by subsection (5), but not otherwise; and
(d)a vote referred to in paragraph (c) is of no effect unless the person casting the vote discloses as a ground for his vote one or more of the grounds permitted by subsection (5).
(5)The grounds on which approval may be refused are
(a)that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot ascertained in accordance with section 7A(3); or
(b)in the case of a lot that is not a vacant lot, that the carrying out of the proposal
(i)will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or
(ii)may affect the structural soundness of a building; or
(iii)may interfere with any easement created by section 11 or 12;
or
(c)any other ground that is prescribed.
(6)In this section
structure includes any prescribed improvement;
vacant lot means a lot that is wholly unimproved apart from having merged improvements within the meaning of that expression in the Valuation of Land Act 1978.
Regulation 31 of the Strata Titles General Regulations 1996 (WA) (Regulations) states:
The fact that the carrying out of a proposal will contravene a specified bylaw or specified bylaws of the strata company, is prescribed as a ground for the purposes of section 7(5)(c).
The requirements for the notice pursuant to s 7(4)(a) of the ST Act are contained in reg 30 of the Regulations.
Section 7B of the ST Act provides relevantly that:
(1)A proprietor who wishes to obtain an approval of a proposal that comes within section 7(2) or 7A(2) shall serve an application on the strata company or the other proprietor, as the case may require, and in the application shall set out details of the proposal and such other information as may be prescribed.
(2)Where an application is made to a strata company under subsection (1) the council of the company shall submit the application to a general meeting of the company convened for the purpose, or for purposes which include that purpose, within 35 days after the application is received (the allowed period).
(5)Notice in writing of the decision on an application shall be given to the applicant
(a)in the case of a twolot scheme, by the other proprietor within 42 days after the service of the application on him; and
(b)in any other case, by the strata company within 77 days after service of the application on the company.
(6)If an application made to a strata company or the other proprietor for approval under section 7 is not approved, a notice under subsection (5) shall show the ground or grounds
(a)disclosed by each proprietor who cast a vote of a kind referred to in section 7(4)(c); or
(b)on which approval is refused by the other proprietors,
as the case may be.
The prescribed information for the purposes of s 7B(1) of the ST Act is set out in reg 34 of the Regulations:
(1)The prescribed information for the purposes of section 7B(1) are plans and specifications for the construction of the improvements and the prescribed information specified in subregulation (2), (4), (5) and (6) as applicable.
(2)In the case of a strata plan the following information is prescribed, subject to subregulation (3)
(a)the plot ratio restrictions and open space requirements in relation to the parcel; and
(b)the pro rata entitlements of or requirements for the lot ascertained in accordance with section 7A(3); and
(c)if the application is approved, the area of the structure, including the area of all existing and proposed structures to be taken into account for the purposes of calculating the restrictions and requirements; and
(d)whether or not the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot ascertained in accordance with section 7A(3) and if it does the percentage and area by which such pro rata entitlement or requirement is exceeded; and
(e)the location and dimensions of the proposed structure upon its completion in relation to any existing structure on the lot or to the boundaries of the lot; and
(f)any contravention of the bylaws of the strata company, whether of a permanent or temporary nature, which is likely to occur during or as a result of the erection, alteration or extension of the structure, and any proposed manner of dealing with that contravention.
(3)Paragraphs (a) to (d) of subregulation (2) do not apply if the applicant supplies the statement described in subregulation (4) and the strata company or the other proprietor, as the case requires, does not request in writing that the applicant supply the information referred to in those paragraphs.
(4)If the area of the structure, upon its erection, alteration or extension, would not be required to be taken into account for the purposes of calculating the plot ratio restrictions and open space requirements in relation to the parcel, the prescribed information includes a statement to that effect and the reason why it would not be required to be taken into account.
(5)In the case of a lot on a strata plan that is not a vacant lot, as is defined in section 7(6), the following additional information is prescribed
(a)full details of the materials to be used in the structure or the alteration or extension of a structure; and
(b)the colours of those parts of the structure that will be visible from outside the lot; and
(c)the method of construction to be used in and an estimated work plan for the erection, alteration or extension of the structure; and
(d)any likely interruption to or interference with any easement created by section 11 or 12, whether of a permanent or temporary nature, and any proposed manner of dealing with that interruption or interference.
Where a proprietor has applied for but has been refused approval under s 7B he/she may apply for deemed approval pursuant to s 103F of the ST Act:
(1)A proprietor of a lot who has applied for but not obtained an approval under section 7B may apply to the State Administrative Tribunal for an order under this section.
(2)An order under this section is an order declaring that the approval required under section 7 or 7A, as the case may be, is to be deemed to have been given by the proprietor or the strata company.
(3)On the making of an application under subsection (1), the State Administrative Tribunal may make an order under this section if satisfied that the approval
(a)should have been given under section 7 or 7A, as the case may be; but
(b)has been unreasonably withheld,
by the proprietor or the strata company.
(4)If
(a)a proprietor has made an application to a strata company under section 7B; and
(b)the application has been considered at a general meeting at which no vote was passed against the application,
the proprietor may make a conditional application for an order under this section.
(5)The State Administrative Tribunal cannot make an order on a conditional application unless a proprietor, voting in accordance with section 3AC(2), casts a vote against the application referred to in subsection (4)(a) nor until the expiration of 35 days after the meeting.
Proceedings pursuant to s 103F of the ST Act are review proceedings. Review proceedings in the Tribunal are hearings de nova and the Tribunal may consider new material whether or not it existed at the time the decision being reviewed was made.
Section 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) sets out the nature of review proceedings:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Section 9 of the SAT Act sets out the objectives of the Tribunal:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
Section 29 of the SAT Act sets out the powers of the Tribunal in review proceedings:
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
(4)The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.
(5)The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision
(a)is to be regarded as, and given effect as, a decision of the decisionmaker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
(6)Without limiting subsection (5)(a), the decisionmaker has power to do anything necessary to implement the Tribunal's decision.
(7)Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision‑maker.
(8)Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision.
(9)To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision‑maker.
Issues
Does the decision in Frasers Queens Pty Ltd and Tan [2018] WASAT 73 (Frasers Queens) decide the issue as to this Tribunal's jurisdiction to determine the Amended Application and make orders?
Is the Amended Application before the Tribunal for deemed approval different in essence to the approval sought by the applicant at the AGM?
Does the Proposal fall within s 7(2) of the ST Act?
Does the Proposal comply with the requirements of s 7B(1) of the ST Act and reg 34 of the Regulations?
Should a declaration that the approval for the Proposal under s 7 of the ST Act be given under s 103F of the ST Act?
Jurisdiction
The respondent contends that Frasers Queens only decides if an application can be made under s 103F of the ST Act for part of a proposal for which approval has been applied but not obtained under s 7B of the ST Act but not whether the Tribunal can proceed to make a declaration under s 103F of the ST Act granting deemed approval.
Given the circumstances that gave rise to the determination in Frasers Queens it is nonsensical to distinguish between the Tribunal making a finding that an application could be made to the Tribunal and a finding that an application could be made and, following a determination, a declaration made by the Tribunal deeming approval.
At [69] of Frasers Queens the Tribunal said:
In this case, if Frasers is given leave to amend the Application and then succeeds with the amended Application and an order is made by the Tribunal under s 103F(2) of the ST Act, then it seems that it will be possible for Frasers to carry out the works on Lots 525 and 526 which are referred to in its proposed amendment to the Application, without the wall between Lots 525 and 526 first being removed.
There may be circumstances where a distinction can be made between the Tribunal making a finding that an application can be made to the Tribunal and a finding that the Tribunal has jurisdiction to determine an application. This is not one of them.
It is clear from the reasons for decision that the Tribunal made a finding that the Tribunal had jurisdiction to hear, determine and make orders under s 103F of the ST Act for part of a proposal for which approval had been applied but not obtained under s 7B of the ST Act.
Is the Amended Application different in essence to the Proposal before the AGM?
The respondent also submits that the Tribunal does not have jurisdiction to determine the Amended Application because it is different in essence to the approval sought by the applicant at the AGM.
The respondent says it is different in essence because the Amended Application before the Tribunal only deals with part of the Proposal that was before the AGM. Included in the Proposal before the AGM were matters that could not be included in an s 7B application namely the removal of a wall that was the boundary wall between Lots 525 and 526 the effect of which would be to destroy the lots[1] and the destruction of common property.
[1] Tipene v The Owners of Strata Plan 9845 [2015] WASC 30.
It is a question of fact whether the Amended Application to the Tribunal is different in essence to the Proposal put to the AGM.
The Tribunal finds that the Amended Application to the Tribunal containing only parts of the Proposal that was put to the AGM does not in these circumstances make the Amended Application different in essence from the Proposal that was put to the AGM.
The facts
On about 11 January 2018 notices of the AGM including the Proposal were sent to the Queens Riverside Strata Company.
On 30 January 2018 the AGM was held and the applicant moved a motion for approval of the Proposal.
As the Proposal included structures to be erected and/or alterations of a structural kind the application pursuant to s 7B of the ST Act was required to be passed without dissent.
The motion was not passed as the respondent voted against the Proposal.
The parties agree and it is not in dispute what information was provided to the Queens Riverside Strata Company at the AGM.
It is not in dispute that the grounds upon which a proprietor may vote against the Proposal are restricted to those matters set out in s 7(5) of the ST Act.
The parties do not agree on whether the information provided at the AGM satisfies the requirements set out in the Regulations and the ST Act.
It is agreed by the parties that approval for alteration to or destruction of common property or approval for the destruction of a boundary of a lot cannot be obtained under s 7 of the ST Act.
The evidence
The applicant put into evidence the following documents:
•Annexure A Filed 170818
•A3 Copies of Pages 12 to 25 of Annexure A
•A3 Copy of Page 26 Annexure A
•A3 Copy of page 37 Annexure A
•Annexure B
•Booklet A3 Drawings Pages 44 to 49 of paginated bundle & copy of fitout plans
•Annexure C
•Annexure D Letter from Tony Watson
•Page 50 and 51 colour A3 photographs
•Bundle of A4 photograph of 15 colour photos
The respondent put into evidence the following documents:
•Sheet 17 & 19 Strata Plan & 2 pages Landgate showing some of the encumbrances
•Registered Instrument Number N29026AE
•Registered Instrument N750712AE
•By Laws as filed by Minter Ellison Schedule 1 and 2 bylaws
•Letter sent on 22/2/18 by 1st resp to applicant
•Letter from applicant to Strata Co & AGM
•Draft minutes of AGM 300118
•Letter from 1ˢͭ respondent to SAT and email dated 290518
The applicant did not formally call any witnesses. Ms Shelton, an employee of the applicant, orally provided explanatory information in respect of some matters to the Tribunal. Accordingly, Ms Shelton was affirmed and the respondent was provided with the opportunity to crossexamine her.
The applicant's submissions
The applicant's Amended Application seeks deemed approval under s 103F of the ST Act for limited components of the Proposal, namely:
(a)installation of full height walls;
(b)installation of ceiling and lighting;
(c)installation of mechanical services, including kitchen ventilation and air conditioning systems;
(d)installation of louvres for mechanical services;
(e)connection to existing grease arrestor; and
(f)installation of kitchen and servery including associated services.
The applicant says these items are all alterations of a structural kind or are erections of a structure and therefore are matters for which consent pursuant to s 7 of the ST Act can be given.
The applicant submits that the Proposal sent to the Queens Riverside Strata Company contained all information required by reg 34 of the Regulations.
The applicant also submits that none of the grounds upon which an application under s 7 of the ST Act could be opposed are made out or indeed could apply to the Proposal other than s 7(5)(b) of the ST Act.
Section 7(5)(b) of the ST Act allows for refusal on the grounds that the Proposal will result in a structure that is visible from outside the lot and that it is not in keeping with the rest of the development.
It is agreed that the only structures that will be visible from outside Lots 525 and 526 are the louvres which will be visible on the façade of Lots 525 and 526 and the air-conditioning unit(s) or its condenser(s) which will be in the carpark.
The applicant says the louvres are in keeping with the Development and referred to and provided photographs of the façade of the Development which has similar looking louvres on upper floors (Exhibit 1 pages 50 and 51).
A possible ground for refusal as set out in s 7(5) of the ST Act is if the alterations will breach the plot ratio restrictions or open space requirements for the lot(s). The applicant says this cannot apply because the alterations are all internal to the Lots 525 and 526.
The respondent's submissions
The respondent submits her objections to the Proposal are valid; her approval of the Proposal was not unreasonably withheld and therefore the Tribunal cannot declare that approval for the Proposal is deemed to have been given by the Queens Riverside Strata Company.
The respondent's position is that she validly refused consent for the reasons including those set out at s 7(5) of the ST Act namely:
a.The air-conditioning unit(s) or their condenser(s) and the louvres would be visible outside the structure and were not in keeping with the Development; and
b.no valid evidence was provided by the applicant to show works included in the Proposal would not affect the structural soundness of the building.
Visible structures not in keeping with the Development
The respondent says that the appearance of the louvres which are visible outside Lots 525 and 526 are not in keeping with the Development.
The respondent says that the installation of the air-conditioning condensers in the carpark area is also not in keeping with the Development. The respondent argues that as all the condensers for the air-conditioning units for the residential lots are on the roof then this is where the condensers should be placed.
The respondent also points to there being no specific details such as the brand and model number of the air-conditioning units proposed to enable the Queens Riverside Strata Company to make an informed decision.
Structural soundness of building
The respondent says she has reasonable and legitimate concern that the works the subject of the Proposal would render the structure of the building unsafe.
The respondent rejects the engineer's report at page 40 of Exhibit 1 as being a report that the applicant can rely upon as certifying the works would not alter the structural soundness of the building. The respondent says it refers only to the removal of the boundary wall and does not comment on the effect of drilling through internal walls for the provision of services.
Additional grounds for refusal
Further the respondent says her refusal to provide approval was not unreasonable because the Proposal is not something for which approval can be given pursuant to s 7 and s 103F of the ST Act as:
a.Parts of the Proposal includes matters for which approval cannot be given pursuant to s7 of the ST Act.
b.The requirements of reg 34 of the Regulations are mandatory and were not complied with.
c.The applicant engaged in misleading and deceptive conduct.
Review of parts of the Proposal
The respondent submits that the Tribunal cannot review part of the decision of the Queens Riverside Strata Company not to grant approval under s 7 of the ST Act and that is what it would be doing if it only considered those parts of the Proposal for which approval can be given under s 7 of the ST Act.
Requirements of s 7B and reg 34
The respondent says that the requirements of s 7B of the ST Act and reg 34 of the Regulations are not complied with because:
a.The respondent did not address whether the Proposal would breach the plot ration restrictions or open space requirements and therefore the applicant cannot know if it does;
b.did not provide information in relation to all by-laws that are likely to be contravened;
Plot ratio restrictions
The respondent alleges that the removal of the boundary wall between Lots 525 and 526 could breach the plot ratio restrictions for the Development as it will increase the floor area of the Development.
The respondent also suggest that the erection of full height walls could affect plot ratio restrictions and open space requirements.
In any event the respondent says as the applicant did not say why the Proposal would not affect the plot ratio or open space requirements it did not comply with reg 34(2)(f) of the Regulations.
Bylaw breaches
The respondent argues that the applicant did not provide information in the Proposal in regard to the likely breach of Schedule 1 Bylaw 1 and Schedule 2 Bylaw 9. Schedule 1 By-law identifies the use of Lots 525 and 526 as offices. Schedule 2 Bylaws 9 and 9.2.3 requires all proprietors to not allow the escape of odours or fumes likely to cause a nuisance.
Regulation 34(2)(f) of the Regulations requires information to be provided of any likely contravention that may occur of all the by-laws during or as a result of the erection, alteration or extension of the structure and any proposed manner of dealing with that contravention.
The respondent also says that the failure to refer to Schedule 1 Bylaw 1 and Schedule 2 Bylaw 9 is a failure to comply with reg 34 (2)(f) of the Regulations.
No particulars as to the exhaust system using the louvres is provided. Therefore, the respondent submits the Queens Riverside Strata Company and the Tribunal cannot be satisfied the Proposal will not breach Schedule 2 Bylaws 9 and 9.2.3.
The respondent says Schedule 1 By-law mandates the use of Lots 525 and 526 as offices and does not permit them to be used as a restaurant. The respondent argues that allowing the alterations to Lots 525 and 526 such that they may be used as a restaurant would breach the bylaw.
Misleading and deceptive conduct
The respondent sets out the principles she says apply to the duty owed by the applicant to provide clear and concise information to the Queens Riverside Strata Company that is fulsome and not misleading.
The respondent asserts that including in the Proposal matters for which approval cannot be given to pursuant to s 7 of the ST Act is misleading and deceptive.
Further, informing the members of the Queens Riverside Strata Company (the proprietors) that the only grounds for refusing the Proposal were set out in s 7(5) of the ST Act when the Proposal could have been objected to because it did not fall within s 7 of the SAT Act was '… so as to deceive the proprietors, trick them into not dissenting to their proposal, so that they can easily get what they want'.
Further the respondent asserts that the applicant sought to mislead and deceive the proprietors by not including in the Proposal all the bylaws that the Proposal may contravene.
Other proprietors seeking to be enjoined
The respondent claims other proprietors wished to be added as parties to the proceedings but were not permitted to do so.
Abuse of process
The respondent's submissions also allege that because the purpose of the alterations or 'fit out' is to enable Lots 525 and 526 to be used as a restaurant the applicant is seeking a declaration that the lots may be used as a restaurant. As the Tribunal cannot make such a declaration under s 103F of the ST Act making this Amended Application under s 103F of the ST Act is an abuse of process.
Respondent's specific objections to item of works in the Proposal
Installation of full height walls
The respondent at hearing questioned the installation of the full height walls but appears to accept the applicant's explanation that what is being sought is approval to install what is in effect a lining to walls that are currently bare concrete walls. The installation would be to the internal side of the walls.
Ceiling and lights
The respondent asserts that the installation of the ceiling and lights requires the removal of the boundary wall between Lots 525 and 526 which the Tribunal cannot approve and therefore the Tribunal cannot give deemed approval for the installation of the ceiling and lights.
The basis for the respondent's assertion that the installation of the ceiling and lights requires the destruction of the boundary wall is because the plans that were attached to the Proposal showed the boundary wall between Lots 525 and 526 being removed and the ceiling extending over Lots 525 and 526.
The respondent also correctly asserts that the destruction or removal of the boundary wall would involve interference and destruction of common property.
Louvres
The respondent asserts that the removal of panes of glass and the installation of the louvres in their place involves structural alterations to common property and therefore consent cannot be given pursuant to s 7 and s 103F of the ST Act for their installation.
The respondent also says that the appearance of the louvres is not in keeping with the Development and the use of them as an exhaust system means they are 'not in keeping with the Development olfactorily' and may cause a nuisance for the occupiers of the lots above the exhaust louvres.
The installation of the louvres involves the removal of glass panes of windows, the outside surface of which, is common property and the boundary of the lot(s) and therefore requires the destruction of common property and the boundary of lot(s).
Further the respondent asserts air-conditioning and or exhaust louvres are not visually in keeping with the Development.
Mechanical services, kitchen ventilation and air-conditioning systems
The respondent opposes the installation of any item that will interfere with the common property and repeats that the approval pursuant to s 103F cannot be given if the installation of that item will do so.
The respondent also opposes the installation of the airconditioning units or its condensers in the carpark as they will be visible outside of Lots 525 and 526 and are not in keeping with the Development.
All residential air-conditioning units or condensers are currently located on the roof and the respondent maintains that this is where any air-conditioning in relation to Lots 525 and 526 should also be placed.
Grease arrestor
At hearing the applicant clarified that all that was intended was the installation of some piping and anything else that was necessary to join Lots 525 and/or 526 to the grease arrestor that is installed within the building.
The respondent at hearing objected to the joining of Lots 525 and/or 526 to the grease arrestor as it would require piping going through the wall of Lots 525 and 526 and therefore possibly through common property. The grease arrestor is common property and therefore joining into it would also result in altering common property.
Kitchen and associated services
The respondent maintains that approval should not and cannot be given for the installation of a kitchen and associated services because it breaches the bylaw that only permits Lots 525 and 526 to be used as offices and that the installation of a kitchen is inconsistent with such use.
Consideration
The respondent accepts that the only grounds on which it can object to the Proposal, if the Tribunal accepts that the approval for the Proposal can be sought under s 7 and s 103 of the ST Act, are those in s 7(5) of the ST Act and relevantly those set out in s 7(5)(b)(i)(ii) and (iii) of the ST Act.
The respondent asserts the Proposal will result in a structure visible from outside Lots 525 and 526 that is not in keeping with the Development, may affect the structural soundness of the building and consent to the Proposal was not unreasonably withheld.
The respondent accepts that the only items that will be visible from outside the lot(s) are the air-conditioning/condenser unit(s) and the louvres.
The main thrust of the respondent's submissions appear to be that the Proposal is not one for which approval can be given because it does not comply with the requirements of the ST Act and Regulations.
Structures visible outside the lot
I will deal with the respondent's submissions on this point when addressing the respondent's submissions on the individual items.
Structural soundness of building
The respondent says she has reasonable and legitimate concern that the works the subject of the Proposal would render the structure of the building unsafe.
The reasons she gives for these concerns are that the Proposal includes drilling into the internal walls of the lots and the engineer's certificate does not refer to these matters.
The purpose of s 7, s 7B and s 103F of the ST Act is to provide a process for a proprietor of a lot in a strata scheme to obtain permission for works within and to their lots.
The various sections are designed to ensure sufficient information is provided to the other proprietors of the strata scheme to understand what is proposed and the likely affect it might have on their lots or unit entitlements.
The intention of these sections is not to require a proprietor who wishes to carry out an alteration or to erect a structure, in every circumstance, to obtain an engineer's report stating the proposed works will not affect the structural integrity of the building.
There needs to be something about the proposed alteration or erection that would lead a reasonable person to believe the proposed works might affect the structural integrity of the building.
A reasonable person would not have concerns that drilling a relatively small hole in the wall for services such as electric cables or light fittings et cetera is likely to affect the structural integrity of the building.
The Tribunal is not persuaded that the Proposal should be refused on the basis that it may affect the structural soundness of the building.
What is the test the Tribunal applies under s 103F of the ST Act?
The respondent appears to misapprehend the basis of review proceedings in ST Act matters.
The test is not, given the respondent's understanding of the situation at the time of the AGM, whether her approval was unreasonably withheld.
The Tribunal is required to come to the correct and preferable decision as to whether approval should be given for the Proposal taking into account all the information the Tribunal has before it at the time of the review.
The wording of s 103F of the ST Act does not sit comfortably with the nature of review proceedings. It is clear however that the Tribunal is required to determine what is the correct and preferable decision.
If the Tribunal was constrained by s 103F(3)(b) of the ST Act to only consider the position of the respondent with the information/evidence in relation to the Proposal at the time the approval was refused and focus on whether the respondent's refusal was unreasonable it would prevent the Tribunal from determining the correct and preferable decision.
The determination as to whether approval was unreasonably withheld is an objective decision based on what is now before the Tribunal and the Tribunal's findings.
Can the Tribunal review and give deemed approval for parts of the Proposal?
It is not in dispute that parts of the Proposal contain matters for which approval under s 7 of the ST Act cannot be given.
The respondent submits that the Tribunal cannot review part of the decision of the Queens Riverside Strata Company not to grant approval under s 7 of the ST Act and that is what it would be doing if it only considered those parts of the Proposal for which approval can be given under s 7 of the ST Act as sought in the Amended Application.
This same submission was made by the respondent and not accepted by the Tribunal in the Frasers Queens. The Tribunal specifically found that approval can be given to a motion under s 7B of the ST Act that contains some matters for which approval can be given and matters for which approval cannot be given.
Does noncompliance with the requirements of reg 34 of the Regulations make an application under s 7 of the ST Act invalid?
The respondent submits that compliance with reg 34 of the Regulations is mandatory and a failure to comply means an application pursuant to s 103F of the ST Act must fail.
The general purpose and policy of s 7, s 7B and s 103F of the ST Act is to provide a process for a proprietor of a lot in a strata scheme to be permitted to carry out works including the erection of a structure, any alteration of a structural kind or an extension of a structure.[2]
[2] Frasers Queens at [49].
I do not consider Tipene and The Owners of Strata Plan 9465 [2016] WASAT 101 (Tipene) as authority for the proposition that if the Proposal does not strictly meet the requirements of s 7, s 7B and reg 34 it cannot be approved.
The comments in Tipene have to be taken in context. I understand Member Aitken (as he was then) to be saying that the failure of an application for approval to meet the requirements of s 7, s 7B and reg 34 of the ST Act, such that you could not tell what was being applied for, would be good reason not to approve an application.
The degree of the failure to comply with the requirements of s 7, s 7B and reg 34 of the ST Act has to be considered. The absence of compliance with a requirement of reg 34 of the Regulations that does not have any significant or relevant effect on an application would not necessarily mean the application for approval has to fail.
Has the applicant complied with s 7 of the ST Act and reg 34 of the Regulations?
The respondent alleges the applicant has not complied with s 7 of the ST Act and reg 34 of the Regulations as it did not address whether the Proposal would breach the plot ration restrictions or open space requirements.
The applicant did state (first page of Exhibit 1 at the paragraph numbered 2) that the carrying out of the Proposal would not breach the plot ration restrictions or open space requirements.
Regulation 34(4) states that if the area of the structure upon its erection, alteration or extension would not be required to be taken into account for the purposes of calculating the plot ration and open space requirements a statement to that effect is required.
Regulation 34(4) also states that in addition to the statement referred to above the applicant is required to include in the statement the reason why it would not be required to be taken into account.
The applicant merely states that the plot ratio restrictions and open space requirements would not be breached by the works the subject of the Proposal as ascertained under s 7A(3) of the ST Act (applicant's statement).
The applicant argues that it could not nor does not breach the requirements because the works are all internal to Lots 525 and 526 and therefore could not affect the plot ratio restrictions or open space requirements as ascertained pursuant to s 7A(3).
I accept that it is arguable that the applicant's statement did not fulfil the requirement of reg 34 of the Regulations.
However when the work the subject of the Proposal is considered there appears to be nothing that could cause a change to, or breach of, the open space and plot ratio restrictions. The works are all essentially internal to Lots 525 and 526.
The respondent's suggestion at hearing that the width of the walls may make a difference to the plot ratio is not sensible.
I find that the applicant did provide a reason why the Proposal would not breach plot ration restrictions and open space requirements.
If I am wrong in that regard I am satisfied that the failure to comply with that requirement given the nature of the works proposed is not a material failure and not sufficient to make the Proposal invalid and noncompliant with reg 34 of the Regulations.
Did the applicant provide notice of the likely breach of bylaws provided in the Proposal?
The respondent submits that the applicant did not provide notice of all by-laws likely to be breached by the Proposal and therefore did not comply with reg 34 of the Regulations.
The respondent alleges the by-laws that are likely to be breached and to which the applicant has not given notice are Schedule 1 By-law 1 and Schedule 2 By-law 9.
Schedule 1 By-law 1 is a by-law that defines various items including what is a:
a.Bar and Restaurant Lot
b.Commercial Lot
c.Food Lot
d.Office Lots and Residential Complex
A Bar and Restaurant Lot is defined to mean any lots in the Development used as a bar and restaurant.
A Commercial Lot is defined as meaning the Retail Lots and the Office Lots.
Office Lots are defined to include Lots 523 to 527 inclusive on the Strata Plan.
A Food Lot is defined as any Commercial Lot if it is used as a café, kiosk, brasserie, and restaurant or take away premise where food is prepared sold or consumed.
A 'Food Lot' is any Commercial Lot that is used as a restaurant therefore any Office Lot or Commercial Lot becomes a Food Lot if it is used as such. The only qualification is By-law 33.1.1 that requires that a Food Lot is not be used as a Food Lot or fish and chip shop or similar fast food outlet unless exhaust systems and services are provided to the satisfaction of the Queens Riverside Strata Company.
There is nothing in the bylaws that would suggest a Commercial Lot cannot be used as a Food Lot.
The Tribunal is not persuaded that as Lots 525 and 526 are designated as Office Lots it would breach the by-laws to use them as a restaurant.
In any event it is not the use of the lot following the works the subject of the Proposal that is relevant for the purposes of reg 34(2)(f) of the Regulations.
Regulation 34(F) refers to a contravention of by-laws that is likely to occur as a result of the 'erection, alteration or extension of the structure' that is the actual work(s) themselves that are likely to cause a contravention of a bylaw.
The respondent does not point to any bylaw of which notice has not been given that is likely to be breached by the erection of the internal walls, the installation of the ceiling and lights and mechanical services et cetera.
Schedule 2 Bylaw 9 relates to nuisance and requires proprietors to not allow or cause a nuisance to other proprietors by the escape of noise and noxious odours et cetera from their premises.
The applicant deals with the likely breaches of Schedule 2 Bylaw 9 (Exhibit 1 second page).
The Tribunal is not persuaded that the non-inclusion of details of the particulars of the exhaust system such as brand names and model numbers of the devises proposed to be used means the respondent, the Queens Riverside Strata Company or the Tribunal cannot be satisfied as to the likelihood of the Proposal breaching the bylaw.
The Tribunal is satisfied the Applicant provided information on the likely contravention of by laws that may occur as a result of the Proposal and any proposed manner of dealing with that contravention.
Abuse of process
The Tribunal does not accept the respondent's proposition that the applicant is seeking a declaration that Lots 525 and 526 may be used as a restaurant. There is no basis in law for the respondent's submission on this matter or that the Amended Application to the Tribunal is an abuse of process.
Misleading and deceptive conduct
The issue of the Proposal containing matters outside of the scope of s 7 of the ST Act has been dealt with in Frasers Queens. The suggestion that the applicant sought to mislead the respondent or the Queens Riverside Strata Company by not including a reference to bylaws it could not reasonably be expected to consider would be likely to be breached is not well made.
Other proprietors seek to be enjoined
The respondent does not say how this is relevant to the Tribunal's determination of the matter.
Respondent's specific objections to item of works in the Proposal
Installation of full height walls
The respondent at hearing questioned the installation of the full height walls but appears to accept the applicant's explanation that what is being sought is approval to install what is in effect a lining to walls that are currently bare concrete walls. The installation would be to the internal side of the walls.
The respondent did not assert approval could not be given by the Tribunal for the erection of the walls based on any reasonable objection.
Ceiling and lights
The respondent asserts that the installation of the ceiling and lights requires the removal of the boundary wall which the Tribunal cannot approve and therefore the Tribunal cannot give deemed approval for their installation.
The plans that were attached to the Proposal showed the boundary wall between Lots 525 and 526 being removed and the ceiling extending over Lots 525 and 526.
The respondent correctly asserts that the destruction or removal of the boundary wall would involve interference and/or destruction of common property and the boundary of the lots.
The applicant accepts that approval for the removal of the boundary wall cannot be given be s 7B of the ST Act. Its application before the Tribunal does not include the removal of the wall between Lots 525 and 526. The applicant has informed the Tribunal it will either take the ceiling up to either side of the wall or seek approval for the removal of the wall at another time.
The applicant has referred the Tribunal to authority for the proposition that approval for the Proposal can be given by the Tribunal subject to conditions.[3]
Louvres
[3] Pickford Holdings Pty Ltd and The Owners of 93 Hector Street Osborne Park [2008] WASAT 295.
The respondent correctly asserts that the removal of panes of glass and the installation of the louvres in their place may involve alterations to common property.
The Tribunal is not persuaded that the removal of the panes of glass which are relatively small compared with the wall in which they are in would also result in the destruction of the lot.[4]
[4] Tipene v The Owners of Strata Plan 9485 [2015] WASC 30 at [105].
The respondent asserts air-conditioning and or exhaust louvres are not in keeping with the Development.
It is clear from the photographs the Tribunal was shown of the building that there are other much larger louvres on higher floors of the building that are very similar to or of the same design as the louvres proposed in the Proposal.
There is no evidence that the use of the proposed louvres as an exhaust/air-conditioning system would result in odours escaping from the lots. The applicant has stated in its Proposal (Exhibit 1) that the exhaust fumes will be pre-treated by an Electrostatic Precipitator/Ozone Injection System that complies with Australian Standards.
The Tribunal is not persuaded that the installation of the louvres as set out in the Proposal is not in keeping with the Development.
The respondent submits that the placing of the condensers of the airconditioning units proposed for Lots 525 and 526 in the carpark are not in keeping with the Development.
There is evidence that these condensers will be positioned such as to not cause any interference with traffic entering or leaving the carpark.
They will likely not be visible from outside the Development or if they are only by a person looking directly through and close to the gates of the carpark. As the respondent points out they will however be visible by other residents of the building in the carpark area.
The respondent maintains that they should not be positioned in the carpark and should be placed on the roof where all the residential units are.
There was some evidence from Ms Shelton that suggested it may not be possible to place the commercial air-conditioning/condenser units as outlined in the Proposal on the roof however Ms Shelton is not an expert who could authoritatively speak to the matter.
Lots 525 and 526 do not currently have any air-conditioning and it is apparent it was never intended when the Development was built that these lots or indeed the other commercial lots should be part of the residential airconditioning system and would always need their own systems.
The Tribunal cannot be satisfied that the only possible option available for the air-conditioning system for Lots 525 and 526 is for the condensers to be positioned in the carpark.
The issue however is whether placing of the condensers in the carpark would be not in keeping with the Development not whether they should be placed elsewhere.
The Tribunal finds that they are unlikely to be seen outside the Development.
The Tribunal is not persuaded that the proposed placing of the airconditioning unit/condensers as set out in the Proposal is not in keeping with the Development.
Grease arrestor
After some clarification at hearing as to the position and current nonuse of the grease arrestor the respondent's main concern appears to be that it will be necessary to drill through walls part of which will be common property to join the Lots 525 and/or 526 to the grease arrestor.
The Tribunal accepts that this is likely but is not persuaded this is a reason not to grant approval for the installation subject to the appropriate approvals being obtained.
Kitchen and associated services
The respondent's basis for objecting to these installations is that the lots may not be used as a restaurant as it would breach the by-laws.
I have dealt with this submission earlier.
Conclusion
To decide if approval should be given under s 7 of the ST Act the Tribunal first needs to determine whether the Proposal falls within s 7(2) of the ST Act and if it complies with the requirements of s 7B(1).
For the reasons stated above the Tribunal finds that the Proposal does fall within s 7(2) of the ST Act and complies with the requirements of s 7B(1).
Being satisfied that the Proposal falls within s 7(2) of the ST Act and complies with the requirements of s 7B(1) of the ST Act the Tribunal must determine if deemed approval for the Proposal should be given under s 103F of the ST Act.
The grounds upon which the Tribunal could not grant deemed approval are those set out in s 7(5) of the ST Act.
For the reasons stated above the Tribunal is not persuaded that:
a)the carrying out of the Proposal will breach the plot ratio restrictions or open space requirements for the lot(s);
b)the louvres and the air-conditioning units/condensers that will be visible outside the lot(s) are not in keeping with the Development;
c)the carrying out of the Proposal may affect the structural soundness of the building; or
d)may interfere with any easement created by s 11 or s 12 of the ST Act.
As none of the grounds upon which a proprietor may refuse to give approval are made out the Tribunal is satisfied approval for the Proposal should be given and has unreasonably been withheld.
A number of the items for which deemed approval is sought involve alterations to or interference with common property. There is also the possibility of the destruction of a boundary wall if the applicant sought to have the ceiling and lights extend through what is now Lots 525 and 526.
The Applicant put the whole of the Proposal before the AGM and sought approval for the most significant or contentious parts of the Proposal which required approval under s7 of the ST Act. There is nothing inherently unreasonable in proceeding in this manner.
The objectives of the Tribunal include to review decisions, fairly and according to the substantial merits of the case and to act as speedily and with as little formality and technicality as practicable, and minimise the costs to the parties.
The Tribunal would not be acting in accordance with its objectives to deny deemed approval because other approvals might be required when approval on condition may be granted.
In acting in accordance with its objectives therefore the Tribunal finds that approval for the matters the subject of the Amended Application should be given subject to the applicant obtaining the request approval for the additional or supporting works to enable the matters for which approval is given to be undertaken.
Orders
Subject to the applicant obtaining approval from the appropriate persons or body for any work that may affect common property or the boundary of the lots 525 and 526:
1.Pursuant to s 103F of the Strata Titles Act 1985 (WA), the Tribunal declares that approval under s7 of the Strata Titles Act 1985 (WA) is deemed to have been given by the Strata Company for Strata Plan 55728 for the applicant's proposed alterations to premises situated within Lots 525 and 526 of Strata Plan 55728 presented at the reconvened Annual General Meeting for Strata Plan 55728 on 30 January 2018 as amended agenda Item 15 and limited to:
(a)installation of full height walls;
(b)installation of ceiling and lights;
(c)installation of mechanical services, including kitchen ventilation and air-conditioning systems;
(d)installation of louvres for mechanical ventilation services;
(e)connection to existing grease arrestor; and
(f)installation of kitchen and servery including associated services.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
5 NOVEMBER 2018
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