FRASERS QUEENS PTY LTD and TAN
[2018] WASAT 73
•2 AUGUST 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: FRASERS QUEENS PTY LTD and TAN [2018] WASAT 73
MEMBER: SENIOR MEMBER D AITKEN
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 2 AUGUST 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 Whether an application can be made under s 103F of the Strata Titles Act 1985 (WA) in respect of only part of a proposal for which approval has been applied for but not obtained under s 7B of the Act The proper construction of s 7, s 7B and s 103F of the Strata Titles Act 1985 (WA) An application under s 103F of the Strata Titles Act 1985 (WA) falls within the review jurisdiction of the Tribunal
Legislation:
State Administrative Tribunal Act 2004 (WA), s 14, s 17, s 17(1), s 18, s 18(1), s 18(2), Pt 3 Div 3 subdivision 2, s 27, s 27(1), s 27(2), s 29, s 29(1), s 29(2), s 29(3), s 60(2)
Strata Titles Act 1985 (WA), s 3(2), s 3AC, s 7, s 7(2), s 7(2)(d), s 7(5), s 7(5)(c), s 7A, s 7B, s 7B(1), s 7B(2), s 7B(5), s 7B(6), s 7B(7), s 9, s 32(1), s 103F, s 103F(1), s 103F(2), s 103F(3)
Strata Titles General Regulations 1996 (WA), reg 31, reg 34
Result:
Preliminary issue determined
Category: B
Representation:
Counsel:
| Applicant | : | Mr T French |
| First Respondent | : | Mr J Wong (acting as Agent) |
| Second Respondent | : | Mr W Robinson |
Solicitors:
| Applicant | : | Minter Ellison |
| First Respondent | : | N/A |
| Second Respondent | : | Wotton + Kearney |
Case(s) referred to in decision(s):
Bakker and City of Nedlands [2005] WASAT 106
Clintway Pty Ltd and The Owners of Strata Plan 21805 [No 2] [2008] WASAT 294
Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211
Gay and City of South Perth [2017] WASAT 94
Maludra Pty Ltd & Ors and Owners of Windsor Towers & Ors [2012] WASAT 160
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
Pickford Holdings Pty Ltd and The Owners of 93 Hector Street Osborne Park [2008] WASAT 295
Tipene v The Owners of Strata Plan 9485 [2015] WASC 30
Tran and The Gables Strata Plan 269 [2013] WASAT 109
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This proceeding concerns an application (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'.
The strata scheme named Queens Riverside (Queens Riverside Strata Scheme) was created by the registration of Strata Plan 55728 (Queens Riverside Strata Plan) on 15 April 2016 under the ST Act.
The Queens Riverside Strata Scheme is situated at 1020 Adelaide Terrace, Perth and consists of 526 lots and common property.
The applicant, Frasers Queens Pty Ltd (Frasers) is the proprietor of Lots 525 and 526 (Lots 525 and 526) on the Queens Riverside Strata Plan and the first respondent, Ms Seok Ean Tan (Ms Tan) is the proprietor of Lot 456 on the Queens Riverside Strata Plan.
The second respondent, The Owners of Queens Riverside Strata Plan 55728 (Queens Riverside Strata Company) is the strata company of the Queens Riverside Strata Scheme under s 32(1) of the ST Act.
Frasers applied to the Queens Riverside Strata Company under s 7B of the ST Act for approval under s 7(2) of the ST Act of a proposal for 'alterations and fit out of cafe/restaurant premises situated within lots 525 & 526' (Proposal).
The Proposal was submitted by the Queens Riverside Strata Company to its annual general meeting on 30 January 2018, but the motion for approval was lost because Ms Tan voted against it. Under s 7(2)(d) of the ST Act the approval had to be given by resolution without dissent and the vote against it by Ms Tan meant that a resolution without dissent was not passed: see s 3AC of the ST Act.
Apparently Ms Tan's grounds for voting against the Proposal were that:
•The carrying out of the Proposal will result in a structure that is visible from outside and that is not in keeping with the rest of the development, referring to the proposed exhaust vents not being in keeping with the development design; and
•The carrying out of the Proposal will contravene a bylaw of the Queens Riverside Strata Company which prohibits a commercial lot from being used as a fish and chip or similar fast food shop unless exhaust systems and services are provided to the satisfaction of the Queens Riverside Strata Company.
Frasers subsequently commenced this proceeding by filing the Application with the Tribunal on 10 April 2018.
Under s 3(2) of the ST Act, the boundaries of the lots or part lots in the Queens Riverside Strata Scheme which are cubic spaces within the buildings shown on the Queens Riverside Strata Plan are the inner surfaces of the walls, the upper surface of the floor and the under surface of the ceiling.
The wall between Lots 525 and 526 is common property and forms part of the boundary of each of those lots.
The Proposal included the removal of the majority of the wall between Lots 525 and 526.
Sections 7 and 103F of the ST Act do not permit any alteration or extension to a structure that affects the boundary of a lot: Tipene v The Owners of Strata Plan 9485 [2015] WASC 30 (Tipene) at [93].
After commencing the proceeding Frasers realised that the decision in Tipene means that it cannot seek an order under s 103F of the ST Act for the approval of the entirety of the Proposal.
At the directions hearing held on 18 May 2018 Frasers stated that it intends to deal with the proposed removal of the wall between Lots 525 and 526 by consolidating those lots under s 9 of the ST Act and it wishes to amend the Application to seek an order deeming approval to have been given under s 7(2) of the ST Act limited to the following parts of the Proposal:
(a)installation of full height walls;
(b)installation of ceilings 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.
Preliminary issue to be determined
Frasers' change of approach in the proceeding has given rise to the following issue, which the Tribunal has decided to determine as a preliminary issue:
Can an application 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?
The Queens Riverside Strata Company has stated to the Tribunal that it will not actively participate in the proceeding, leaving Ms Tan as the sole active respondent.
The Tribunal decided to determine the preliminary issue pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the basis of written submissions from Frasers and Ms Tan, which both have filed with the Tribunal.
The submissions by Frasers
The submissions by Frasers may be summarised as follows:
•When considering an application under s 103F of the ST Act the Tribunal exercises its review jurisdiction pursuant to s 17 of the SAT Act.
•On a proper reading of the ST Act the preferred construction is that it is permissible for a strata company at a general meeting to be able to consider a proposal made under s 7B of the ST Act either in whole or in part, and equally, issue approval or refusal for either whole or part of the proposal. Accordingly, it is also open to the Tribunal upon de novo review to consider the proposal in the same way because the Tribunal has the functions and discretions corresponding to those exercisable by the strata company pursuant to s 29 of the SAT Act.
•It is not consistent with the policy of the ST Act or the s 7 approval procedure of the ST Act, that an applicant be required to engage expert legal counsel each time a s 7B application is prepared to ensure that there are not any references or components in the application that do not fall within s 7.
•In Tipene Corboy J considered the jurisdiction of the Tribunal in the context of s 7, s 7B and s 103F of the ST Act and observed that discrete components of s 7 applications can be separately considered.
•It is permissible for an applicant to modify aspects of its proposal for the purposes of an application under s 103F of the ST Act. Frasers refers to the decisions of the Tribunal in Pickford Holdings Pty Ltd and The Owners of 93 Hector Street Osborne Park [2008] WASAT 295 (Pickford) and Tran and The Gables Strata Plan 269 [2013] WASAT 109 (Tran) as examples of the Tribunal allowing this.
•The Tribunal has power under its review jurisdiction to consider an amended version of what was originally proposed by the applicant, provided that the amendment does not cause the proposal to be different in essence to the original matter before the decisionmaker. Frasers refers to the decisions of the Tribunal in Gay and City of South Perth [2017] WASAT 94, Clintway Pty Ltd and The Owners of Strata Plan 21805 [No 2] [2008] WASAT 294, Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 and Bakker and City of Nedlands [2005] WASAT 106 as examples where the Tribunal has done this in its review jurisdiction, albeit that none of those decisions involved the review of a decision by a strata company under the ST Act.
The submissions by Ms Tan
The submissions by Ms Tan may be summarised as follows:
•In evaluating the preliminary issue it is necessary to characterise the nature of the Tribunal's jurisdiction under s 103F of the ST Act, which is its review jurisdiction pursuant to s 17 of the SAT Act.
•The answer to the preliminary issue rests upon whether the Proposal which was the subject of the application by Frasers under s 7B of the ST Act may be amended, to what extent, and whether the Tribunal has the power to do so.
•The ST Act is silent as to whether the Tribunal may consider an application made under s 103F of the ST Act in respect of only part of an original proposal.
•On construing the words of s 7 and s 103F of the ST Act, the application made under s 103F refers to the whole of the original proposal. The strata company as the decision-maker is only able to give approval or refuse to approve a proposal in its entirety and the Tribunal is limited to dealing with an application under s 103F on the same basis, otherwise the Tribunal's decision would be radically different from that of the options of decision the original decision-maker could make.
•If that construction of s 7 and s 103F of the ST Act is not accepted and the Tribunal finds that the original proposal can be amended and the proceeding can be brought under 103F in respect of part of an original proposal the extent to which the proposal can be amended is extremely limited.
•The observation of Corboy J in Tipene that discrete components of applications under s 7 of the ST Act can be separately considered was merely obiter dicta and the decisions in Pickford and Tran do not support the contention of Frasers that it is permissible for an applicant to amend parts of their original proposal by removing a particular alteration for the purposes of an application under s 103F of the ST Act.
•The proposed amendment by Frasers of the original proposal should be refused because it is 'different in essence' and substantially different from the original proposal, which the Tribunal has no power to hear.
•The proposed amendment by Frasers of the original proposal should be refused ‘in the name of equity and good conscience in which the Tribunal is bound to observe'.
•The Application before the Tribunal that arose from Frasers' original proposal is not a reviewable decision under s 17 of the SAT Act 'primo loco' and no proceeding should have been allowed to be brought in respect of that original proposal, and consequently any amendment of that proposal.
•The 'removal of party wall and toilet allocations' have always been in Frasers' proposals, whether in their original proposal, or in their proposed amended proposal. The amended proposal is worded in such a way so as to assume that the removal of party wall and toilet allocations are implied and are necessary for the carrying out of a restaurant on Lots 525 and 526.
An application under s 103F of the ST Act falls within the review jurisdiction of the Tribunal
Both Frasers and Ms Tan have submitted that an application to the Tribunal under s 103F of the ST falls within the review decision of the Tribunal and that is not in contention.
Under s 14 of the SAT Act the Tribunal has two types of jurisdiction; original jurisdiction and review jurisdiction.
An application under s 103F(1) of the ST Act is within the Tribunal's review jurisdiction under s 17(1) of the SAT Act because the Tribunal is required to review a decision by a strata company, notwithstanding that it is not easy to equate the procedures contained in Pt 3 Div 3, subdivision 2 of the SAT Act with a decision made by a strata company under s 7 of the ST Act: see Tipene at [138] and [139].
Section 18(1) of the SAT Act provides that in exercising its review jurisdiction the Tribunal must deal with a matter in accordance with both the SAT Act and the enabling Act.
Section 18(2) of the SAT Act provides that the enabling Act may modify the operation of the SAT Act in relation to the matter.
The enabling Act in this proceeding is the ST Act.
Section 27(1) of the SAT Act provides that 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 decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
Section 27(2) of the SAT Act provides that the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
Section 29(1) of the SAT Act provides that when dealing with a matter in the exercise of its review jurisdiction the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision, which in this case is the Queens Riverside Strata Company.
Section 29(2) of the SAT Act provides that s 29(1) does not limit the powers given to the Tribunal by the SAT Act or the enabling Act.
Section 29(3) of the SAT Act provides that the Tribunal may affirm the decision being reviewed, vary the decision being reviewed or set aside the decision being reviewed and either substitute its own decision or send the matter back to the decision-maker for reconsideration and, in any case, may make any order the Tribunal considers appropriate.
Section 103F(3) of the ST Act provides that in dealing with an application made under s 103F(1) the Tribunal may make an order under s 103F if the Tribunal is satisfied that the approval should have been given under s 7 of the ST Act but has been unreasonably withheld. Section 103F(2) of the ST Act provides that an order under s 103F is an order declaring that the approval required under s 7 of the ST Act is to be deemed to have been given by the strata company.
Clearly s 103F of the ST Act, as the enabling Act, modifies the operation of s 29(3) of the SAT Act in relation to the order which the Tribunal can make in accordance with s 18 of the SAT Act.
The Tribunal's approach to the determination of the preliminary issue
In the Tribunal's view the determination of the preliminary issue will depend on the proper construction of s 7, s 7B and s 103F of the ST Act.
Sections 7, 7B and 103F of the ST Act
Section 7 of the ST Act provides:
(1)This section does not apply to
(a)a lot in a survey strata scheme; or
(b)the erection of, alteration to or extension of a structure on a lot in a strata scheme if
(i)each proprietor of a lot in the scheme has in writing given approval to the erection, alteration or extension; and
(ii)that approval, if subject to conditions, is given by each proprietor subject to the same conditions; and
(iii)a copy of each such approval is served on the strata company.
(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.
Section 7B of the ST Act provides:
(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).
(3)If the council does not
(a)give notice of such a meeting, within 14 days after the application is served on the strata company, to each proprietor and registered mortgagee who has notified his interest to the strata company; or
(b)convene a general meeting of the company within the allowed period,
any proprietor may convene a general meeting, in the same manner as nearly as possible as that in which meetings are to be convened by the council, and submit the application to that meeting.
(4)Despite subsection (2), a council may submit an application to a general meeting convened by the council after the allowed period if that meeting is held before a meeting is convened by the applicant under subsection (3).
(5)Notice in writing of the decision on an application shall be given to the applicant
(a)in the case of a two lot 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.
(7)If notice of a decision is not given to the applicant in accordance with subsection (5) and, where applicable, subsection (6) the approval applied for is to be taken to have been given.
Section 103F of the ST Act provides:
(1)A proprietor of a lot who has applied for but not obtained an approval under section 7B may apply to the State Administrative Tribunal for an order under this section.
(2)An order under this section is an order declaring that the approval required under section 7 or 7A, as the case may be, is to be deemed to have been given by the proprietor or the strata company.
(3)On the making of an application under subsection (1), the State Administrative Tribunal may make an order under this section if satisfied that the approval
(a)should have been given under section 7 or 7A, as the case may be; but
(b)has been unreasonably withheld,
by the proprietor or the strata company.
(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.
The approach to statutory construction
In Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211 Buss JA, with whom Newnes JA agreed, at [160] stated as follows:
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision.
(Citations omitted)
What is the general purpose and policy of s 7, s 7B and s 103F of the ST Act?
Section 103F of the ST Act enables a proprietor who has applied for but not obtained an approval from a strata company under s 7B of the ST Act to make an application to the Tribunal, which can make an order declaring that the approval required under s 7 or s 7A of the ST Act, as the case may be, is deemed to have been given by the strata company.
Section 7 of the ST Act applies to the Queens Riverside Strata Scheme, not s 7A of the ST Act which only applies to survey-strata schemes.
Section 7(2) of the ST Act provides that a proprietor of a lot must not cause or permit any structure to be erected, extended or structurally altered on their lot without the prior approval of the strata company by way of a resolution without dissent.
However, s 7(5) of the ST Act limits the grounds on which approval can be refused. Those grounds are that the carrying out of the proposal:
•will breach plot ratio restrictions or open space requirements for the lot;
•will result in a structure which is visible outside the lot that is not in keeping with the rest of the strata development;
•may affect the structural soundness of a building;
•may interfere with any of the easements for support, provision of services and shelter created under the ST Act; and
•will contravene one or more of the by-laws of the strata company, which is the ground prescribed by reg 31 of the Strata Titles General Regulations 1996 (WA) (ST Regulations) under s 7(5)(c) of the ST Act.
The Tribunal notes that s 7(2) of the ST Act only applies to structural works on a lot and, whilst s 7 provides that a proprietor must obtain prior approval from the strata company, the grounds on which that approval can be refused are limited.
Section 7B(1) of the ST Act provides that a proprietor who wishes to obtain an approval of a proposal that comes within s 7(2) of the ST Act must serve an application on the strata company of the strata scheme which sets out the details of the proposal and prescribed information. The prescribed information is set out in reg 34 of the ST Regulations.
Section 7B(2) of the ST Act provides that when an application is made to a strata company by a proprietor of a lot under s 7B(1) of the ST Act, the council of the strata company must convene a general meeting to consider the application.
Section 7B(5) of the ST Act provides that the applicant must be given written notice of the decision within 77 days of giving the application to the strata company. Additionally, s 7B(6) of the ST Act provides that if the application is not approved then that notice must show the ground or grounds on which approval was refused.
Section 7B(7) of the ST Act provides that if a notice of a decision is not given in accordance with s 7B(5) and, where applicable s 7B(6), the approval applied for is taken to have been given.
The Tribunal notes that s 7B of the ST Act requires that upon being given an application by a proprietor, which sets out the details of the proposed works and prescribed information, a strata company must take action to have it considered at a general meeting and notify the proprietor of the decision, including the grounds of refusal if it is not approved. Significantly, if the strata company fails to give notice of a decision to the applicant proprietor within 77 days then approval is deemed to have been given.
The Tribunal is of the view that 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 structural works on their lot if:
•the proprietor makes an application to a strata company setting out the details of the proposal for those works and the prescribed information; and
•those works do not breach plot ratio restrictions or open space requirements, do not result in a structure visible from outside the lot that is not in keeping with the rest of the strata development, do not affect the structural soundness of a building in the strata scheme, do not interfere with easements and do not breach the by-laws of the strata company of that strata scheme.
The proper construction of s 7, s 7B and s 103F of the ST Act
The nature of a lot in a strata scheme, the boundaries of the lot and which structures form part of the lot are not concepts which the average person can easily discern or understand. See Tipene at [60] to [73] and Maludra Pty Ltd & Ors and Owners of Windsor Towers & Ors [2012] WASAT 160 at [95] to [100] regarding those concepts.
It is easy to envision that a proprietor of a lot might devise a plan for the renovation or alteration of their lot which includes works which do not fall within s 7(2) of the ST Act (excluded works) for one or more of the following reasons:
•The excluded works might be proposed to be carried out on the lot, but not require approval under s 7(2) of the ST Act because they are not structural;
•The excluded works might be proposed to be on common property which adjoins the lot; or
•The excluded works might involve the destruction of a boundary of the lot.
It is not consistent with the general purpose and policy of s 7, s 7B and s 103F of the ST Act to deprive a proprietor of the right to seek an order under s 103F of the ST Act in respect of a part of a proposal which ought to have been approved by a strata company just because other works have been included in the proposal which do not fall under s 7(2) of the ST Act.
Also, if a proprietor of a lot were to serve an application on a strata company under s 7B(1) of the ST Act seeking approval for a proposal which includes works on common property and, by virtue of s 7B(7) of the ST Act, the approval applied for is taken to have been given, that cannot mean that the proposed works on common property are deemed to have been approved. It must be construed to mean only that any structural works on the lot which are included in the proposal, which are required to be approved under s 7 of the ST Act, are deemed to have been approved and no other part of the proposal.
The Macquarie Dictionary Online (2018) defines 'proposal', relevantly, to mean 'a plan or scheme proposed' and the Oxford English Dictionary Online (2018) defines 'proposal', relevantly, to mean 'a suggested or intended plan, scheme or course of action'.
Giving the word 'proposal' its ordinary meaning in s 7B(1) and s 7(5) of the ST Act means that it may include works which, in the case of nonstructural works on a lot, are not required to be approved under s 7(2) of the ST Act and, in the case of works on common property, are not able to be approved under s 7(2) of the ST Act.
Accordingly, the term 'an approval of a proposal that comes within s 7(2)' in s 7B(1) of the ST Act should be construed to refer to an approval of the part of a proposed renovation or alteration of a lot which requires approval under s 7(2) of the ST Act and which has not been obtained by a proprietor under the process set out in s 7 and s 7B of the ST Act.
Section 103F(1) of the ST Act provides that a proprietor who has applied for but not obtained an approval under s 7B of the ST Act may apply to the Tribunal for an order under the section.
The term 'an approval under s 7B' in s 103F(1) of the ST Act should be construed to mean approval of structural works on a lot which come within s 7(2) of the ST Act.
Therefore, s 103F of the ST Act should be construed to apply to only an approval for structural works required under s 7(2) of the ST Act, which has been the subject of an application under s 7B of the ST Act and which has not been obtained under the process provided in s 7 and s 7B of the ST Act.
Accordingly, if the strata company for the strata scheme has approved some but not all of the proposed structural work on a lot, or if the proposal contains proposed works which fall outside s 7(2) of the ST Act then, on its proper construction, s 103F(1) of the ST Act allows the proprietor to apply to the Tribunal for that part of a proposal which falls within s 7(2) of the ST Act but has not been approved.
The reviewable decision for the purposes of s 27 and s 29 of the SAT Act
It follows from the above that the reviewable decision under s 103F of the ST Act, for the purposes of s 27 and s 29 of the SAT Act, is not necessarily the decision regarding the entire proposal in respect of which a proprietor has made an application under s 7B of the ST Act.
If the proposal included works which do not fall within s 7(2) of the ST Act then they were not works which could be the subject of an application under s 7B of the ST Act, and therefore a decision by a strata company not to approve those works does not fall within s 103F of the ST Act.
The reviewable decision under s 103F of the ST Act is limited to the decision of the strata company not to approve works which fall within s 7(2) of the ST Act.
In the Tribunal's view the submissions of Frasers and Ms Tan which refer to the question of whether or not the Proposal can be amended are misconceived.
The question to be decided to determine the preliminary issue is not whether the Proposal can be amended, but whether an application can be made under s 103F of the ST Act for an order declaring that approval is deemed to have been given for part of the Proposal.
The wall between Lots 525 and 526 is common property and is not a structure on Lots 525 and 526. Therefore the proposed removal of the majority of that wall does not fall within s 7(2) of the ST Act. If Frasers consolidate Lots 525 and 526 into one lot under s 9 of the ST Act, then that wall will be part of the consolidated lot and Frasers will then need to obtain approval under s 7(2) of the ST Act to be able to remove it. If Frasers applies for that approval under s 7B of the ST Act and does not obtain that approval then Frasers can make a further application to the Tribunal under s 103F(1) of the ST Act in respect of that proposal.
The situation here is very different to that in Tipene.
In Tipene the proposal was to demolish the existing building and then erect new structures, with the consequence that if the existing building was demolished the lots would be destroyed and there would be no lots on which the new structures could be erected. Consequently there would be nothing that could be the subject of s 7(2) of the ST Act and the approval process provided by s 7B and s 103F of the ST Act: see Tipene at [87].
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.
Conclusion
For the reasons given the Tribunal has determined the preliminary issue in the affirmative.
This conclusion is consistent with the view of Corboy J, albeit obiter, expressed in Tipene at [137] to [141].
The Tribunal will make the following orders.
Orders
1.The Tribunal has determined, as a preliminary issue, that an application can be made under s 103F of the Strata Titles Act 1985 (WA) (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.
2.The proceeding is listed for a further directions hearing at 10 am on 10 August 2018 at 565 Hay Street, Perth, Western Australia to deal with the applicant's request to amend the application and to make programming orders for the matter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
2 AUGUST 2018
2
9
3