Owners Of Kingsway Gardens Strata Plan 4 and Connelly - [2012] WASAT 236

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: OWNERS OF KINGSWAY GARDENS STRATA PLAN 4 and CONNELLY [2012] WASAT 236

MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)
MR J FISHER (SENIOR SESSIONAL MEMBER)

HEARD: 7 AND 8 AUGUST 2012

DELIVERED : 3 DECEMBER 2012

FILE NO/S: CC 155 of 2012

BETWEEN: OWNERS OF KINGSWAY GARDENS STRATA PLAN 4
Applicant
AND
SEAN COLLIN WILFRED CONNELLY
Respondent

Catchwords:

Strata titles Application for alteration to structure of individual lot by lot proprietor Section 7 of the Strata Titles Act 1985 (WA) No particular form of application required Inclusion of prescribed information Service of application on strata company Council of owner's obligation no general meeting convened Approval 'taken' to be given by strata company Section 7B of Strata Titles Act 1985 (WA) Vote by members of council of owners of no effect Strata company's application for reinstatement of structural works pursuant to s 103G of the Strata Titles Act 1985 (WA) dismissed.

Legislation:

State Administrative Tribunal Act 2004 (WA), s 24, s 47(1)(a)
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 7, s 7(2), s 7(5), s 7B(1), s 7B(3), s 7B(7), s 11, s 103F, s 103G, s 125, s 131, s 132, Sch 3
Strata Titles General Regulations 1996 (WA), reg 34

Result:

Dismissed

Summary of Tribunal's decision:

Mr Connelly made an application to make structural alterations to his lot. The application was made by email and sent to the chairman of the council of owners. The council of owners failed to convene a general meeting of the Owners of Kingsway Gardens Strata Plan 4. The council of owners instead purported to 'vote' on the application. The 'vote' was 'defeated' but no record of the result of the vote was recorded in the council minutes. Mr Connelly waited for more than 77 days after making his application to the Owners of Kingsway Gardens Strata Plan 4 and then commenced the structural alterations, having obtained a building licence to undertake the work from the City of Perth.
The Owners of Kingsway Gardens Strata Plan 4 made application for reinstatement of the structural alterations made by Mr Connelly and asserted that Mr Connelly had not had approval from the Owners of Kingsway Gardens Strata Plan 4. The Owners of Kingsway Gardens Strata Plan 4 relied on the council of owners 'vote' against Mr Connelly's application as being a valid refusal of his application. The Tribunal dismissed the application and concluded that Mr Connelly's application to the Owners of Kingsway Gardens Strata Plan 4 was 'taken' to have been approved by the Owners of Kingsway Gardens Strata Plan 4 pursuant to s 7B(7) of the Strata Titles Act 1985 (WA). The council of owners' vote was beyond the council's power and of no effect. The council of owners had misconceived of its duty to convene a general meeting of the Owners of Kingsway Gardens Strata Plan 4.

Category: B

Representation:

Counsel:

Applicant: Mr C Caine (Acting as Agent)
Respondent: Mr V Pelligra

Solicitors:

Applicant: N/A
Respondent: Gibson & Gibson

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

Ilich & Anor and Baystar Corporation Pty Ltd [2004] WASTR 25
Laurent and Commissioner of Police [2009] WASAT 254
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
The Owners of The Views, Strata Plan 6669 and Larralee Pty Ltd [2006] WASAT 126

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 31 January 2012, the applicant filed an application in the Tribunal whereby the applicant seeks the following action by the Tribunal against the respondent:
1)A finding pursuant to s 103(2) of the [Strata Titles Act 1985 (WA)] that the respondent is in breach of s 7(2) by removing 2 internal walls of Unit 88 [Lot 70] without the approval of the Strata Company.
2)An order pursuant to s 103G(1) and s 103G(b) of the Act that the respondent reinstate the walls.
3)Further and other orders pursuant to s 81(3) of the Act.
4)An order that the respondent pay the applicant's out of pocket expenses incurred in making this application.
The applicant's grounds are stated as:
1)The respondent is the owner of Unit 88.
2)Kingsway Gardens comprises 75 units within a 9 storey building constructed of load bearing materials.
3)The respondent has removed 2 load bearing internal walls of Unit 88, knowing that approval was required pursuant to the [Strata Titles Act 1985 (WA)] and knowing that he did not have such approval.
4)The respondent has thereby undermined the corporate governance of the Strata Company.
5)Further[,] the respondent has caused a detriment to the owners of the remaining units[,] particulars whereof shall be provided prior to the hearing of this application by way of an engineering report and assessment.
On 11 April 2012, the applicant filed in the Tribunal and served on the respondent its statement of issues, facts and contentions. The applicant does not identify any detriment in that statement in terms of the foreshadowed detriment to all owners referred to in paragraph 5 of the application. The applicant relies upon the failure to comply with the legislative scheme to obtain, and the failure to actually obtain, approval from the applicant for the structural modifications made by the respondent as the basis of the application. That is, the respondent's failure to comply with the statutory scheme alone is sufficient, in the applicant's case, for the orders sought to be made by the Tribunal. However, the applicant and respondent did engage at the hearing as to the affect of the modifications on the structural integrity of the whole building, and not just as to the support of the penthouse lot above Lot 70 and the roof of the whole building.

The issues

The issues in this application are:
1)Whether the respondent's modification was in fact and in law unauthorised.
2)Related to that issue is whether the respondent's application to the council of owners of the respondent (Council) by email dated 8 April 2010 (email application) is taken to have been approved by the respondent pursuant to s 7B(7) of the Strata Titles Act 1985 (WA) (ST Act).
3)If the respondent's email application to the Council was not approved, whether the Tribunal should grant an order pursuant to s 103G of the ST Act to compel the respondent to reinstate the walls he has removed from his lot.
On 30 March 2012, the respondent filed an application in the Tribunal for an order pursuant to s 103F of the ST Act so as to authorise the structural modification for which he had applied to Council but had been refused. The application was consolidated in this proceeding. On 2 August 2012, the respondent also filed an application in the Tribunal for an order pursuant to s 103F of the ST Act following a general meeting of the applicant. The applicant raised a jurisdictional issue on these applications: that the respondent could not make such applications where he had not first made an application to Council and where he had undertaken the structural modification which required approval pursuant to s 7 of the ST Act. For the reasons referred to herein, it is unnecessary for the Tribunal to address these issues.

The strata scheme and the boundary of Lot 70

The strata scheme was first registered on 23 February 1968 pursuant to the Strata Titles Act 1966 (WA) (repealed) (1966 Act). Section 131 of the ST Act repealed the whole of the 1966 Act in 1985. The lot boundaries for lots within such strata schemes thereafter fall for consideration under the transitional provisions in s 132 and Sch 3 of the ST Act. As a consequence of the transitional provisions, the lot boundaries in such a strata scheme were, in effect, reset so that they were bounded by the surface of the boundary walls, floors and ceiling of the lot. In this proceeding, there is no issue that the work undertaken by the applicant was work to Lot 70, albeit that the surface of the ceiling of Lot 70 was detached from resting on two loadbearing brick walls and was temporarily and marginally lifted when laid to rest on load-transferring beams after the removal of the loadbearing brick walls.
The Tribunal is satisfied that the respondent's structural modifications were limited to the respondent's Lot 70.

The facts

The respondent's email application

On 8 April 2010, the applicant sent to Ms Sarah Mack (the respondent's then strata manager representative) and Mr Michael Stirling, the then chairman of the Council, an email in which he referred to the proposed modifications to Lot 70. The email broadly identifies the proposed modifications to Lot 70 and attached a detailed structural design report by Alliance Engineering Consultants Pty Ltd dated 1 April 2010 (AEC report), which includes detailed drawings, calculations and reference material. The author of the AEC is Mr Kazazi, a qualified civil and structural engineer who attended at the Tribunal to give evidence at the hearing of the application.
The respondent's email and the AEC report contains the full details of the materials to be used in the structure alteration and describes in engineering detail the structural alteration and modification proposed. The email application does not concern the plot ratios of Lot 70. To the extent that the email application indicates a change to the external appearance of Lot 70 (the addition of glass bifold doors to the balcony and the removal of the glass enclosure of the balcony), it indicates the manner, mode and materials to be utilised.
Mr Stirling gave evidence that he was, at the relevant time, the applicant's chairman. He gave evidence in his witness statement that the matter was put on the agenda for the Council meeting due to take place on 21 April 2010. Mr Stirling gave evidence that, at the meeting, the respondent spoke to his email application and it was then 'resolved' by the Council members that the respondent (who was also a member of the Council) should leave the Council meeting for the remaining members to consider the email application. He gave evidence that either he or the strata manager, Ms Sarah Mack, asked the respondent to leave so 'the strata council could discuss his email application'. He confirmed that the respondent left the room and that a 'vote' was conducted on the email application and it was 'defeated 32'. He said that Ms Mack told the meeting she would draft the minutes after taking 'legal advice' as to the manner in which the resolution should be recorded in the minutes of the Council meeting. Mr Stirling gave evidence that he believed, at that time, that the Council was authorised to decide the respondent's email application. He conceded, in evidence, that he was not fully aware of the operation of the ST Act and the obligation on the Council to call and convene a general meeting of the strata company to consider and vote upon the respondent's email application. Mr Stirling said he was not informed or advised by the strata company manager's representative (Ms Mack) that the Council was not entitled to 'vote' on the respondent's email application, give approval to the same or even consider the same. He stated he was not advised or informed that the Council's obligation was to convene a general meeting of the strata company.
The minutes of the Council meeting on 21 April 2010, tendered to the Tribunal, consists of an unsigned copy of the same which provides:
Alteration lot 70 Unit 88
The email received on the 8th April, 2010 from the Owner of Unit 88 (as distributed) was discussed. The Owner provided members with a brief overview prior to leaving the meeting.
It was agreed that Richardson Strata Management Services would draft the letter informing the Owner of the Council[']s decision after investigating the legalities involved.
This copy of the minutes of the Council meeting on 21 April 2010 does not record that there was any resolution or decision in respect of the respondent's email application. As will be seen, this did not take place and never took place. No decision at all was recorded in the minutes of the meeting of the Council on 21 April 2010.
It is common cause that the Council did not convene a general meeting of the applicant at any stage in respect of the respondent's email application pursuant to s 7 of the ST Act. It is common cause, in the evidence, that Ms Mack (who was not called to give evidence for either party) did not issue a letter on behalf of the Council or on behalf of the applicant to the respondent indicating that the Council had 'rejected' his email application. At a subsequent Council meeting on 2 June 2010, the matter seems to have been minuted as having been considered by the Council yet again. On that day, the unsigned minutes of that meeting provide:
Alteration to lot 70 Unit 88
The email received on [8 April 2010] from the Owner of Unit 88 (as distributed) was discussed and the Owner provided members with a brief overview prior to leaving the meeting.
Via majority the following was agreed:
Richardson Strata Management Services write to the Owner of Unit 88 regarding his request for modifications and air conditioner and advise him of the council members['] decision.
This document does not record any decision by the Council. As to this Council meeting, Mr Stirling said, in evidence, that he had no recollection of considering the respondent's email application at two Council meetings and he only recalls the issue being before the Council on one occasion, which was on 21 April 2010. He says that he ceased being a member of the Council sometime in early 2011.
The respondent's evidence, and Mr Stirling's evidence, at the hearing, coincided on the question of notice of the Council's 'decision' to the respondent. Mr Stirling and the respondent were acquainted and Mr Stirling told the respondent that he would be informed of the outcome of the Council's consideration of the respondent's email application by Ms Mack. The respondent gave evidence that he was told this by Mr Stirling. The Tribunal finds that this conversation took place and that the respondent was not told of the decision by Mr Stirling. Both witnesses were observed by the Tribunal to be truthful in giving their evidence. Further, and consistent with this conversation, the respondent sent an email to Ms Mack on 6 May 2010 and asked her to inform him of the outcome of the Council's consideration. There would have been little point at all in so doing if, in fact, Mr Stirling had already told the respondent of the outcome.
Mr Corrin Caine, the current chairman of the applicant and the applicant's representative at the hearing, made much of whether, when, how and by whom Mr Connelly was informed about the Council's decision. For the reasons that follow, the Tribunal considers this to be an irrelevant fact because the Council had no entitlement to consider the respondent's email application, let alone decide it. The decision by Council, whatever it was and whenever it was communicated, was ultra vires the power of the Council and had no effect on the parties' rights and obligations. It appears that the respondent did not get a response from Ms Mack.
On 13 July 2010, the respondent obtained a building licence from the City of Perth to undertake the proposed structural modifications to Lot 70, having applied for that licence some time earlier.
The respondent gave evidence under crossexamination that he did not attend Council meetings often, if at all, after 21 April 2010, as he is an engineer engaged by Woodside Petroleum and is often away in the northwest of this State. He stated that he believes that he commenced the modifications on or about 29 September 2010 and the structural aspects of the works are complete. The respondent said his state of mind was that Mr Stirling did not wish to tell him what the Council had done and Ms Mack refused to tell him what the Council had done. He said after 6 May 2010 he asked Mr Stirling for Ms Mack's mobile number, but Mr Stirling said he did not have it. The respondent's efforts to speak with Ms Mack had failed and he did not want to raise it again with Mr Stirling. He said he read the relevant provisions of the ST Act and, in particular, s 7 of the ST Act (and, it appears, s 7B of the ST Act). He concluded that having made an email application under s 7 of the ST Act in accordance with s 7B of the ST Act, he was entitled to take his email application as having been approved if, after 77 days from the date of that email application, he had not been notified in the correct form that his email application had been refused as required by those provisions. He concluded that he was entitled to commence the works in accordance with that 'deemed' approval and the building licence issued by the City of Perth. Under crossexamination, the respondent said he cannot recall attending Council meetings but recalls receiving minutes of a Council meeting dated 20 October 2010 from Ms Mack, in accordance with her ordinary practice of circulating the minutes of Council meetings a week or so after the meeting. These minutes were not before the Tribunal and there is no suggestion that they gave the respondent any information about his email application. In any event, the respondent said that by October 2010 he had already started the structural modification.
The respondent asserts that it was 17 March 2011 when Mr Caine told him that the works were unauthorised. He did not perform any further work after that date. There ensued a series of ever increasing heated email traffic from the applicant (see emails from 21 March 2011 and onwards). The applicant's position is, and was at all times, that the respondent was not authorised because Council had rejected the email application. At the hearing there was debate as to the statutory scheme and the applicant sought to move from that position slightly and also assert that, even if Council had failed to convene a meeting, the provisions of s 7B(7) of the ST Act did not operate so as to 'deem' the respondent's email application to be approved if the respondent did not take matters into his own hands and convene a general meeting. For the reasons referred to below the Tribunal rejects that proposition.
The respondent gave evidence that when he was in the process of demolishing the loadbearing walls to Lot 70, there was a loud noise and his neighbour from Lot 75 was concerned and startled. That is the only evidence at all of any immediate inconvenience to any neighbour.

The alterations

It is necessary for the reasons referred to below to consider the modifications and the lot itself. Lot 70 is described on the plan as being 807 square feet. It is a subpenthouse apartment. The building licence granted by the City of Perth on 13 July 2010 shows that the kitchen of Lot 70 was comprised of an enclosed room bounded by a wall and a door to the central passage and a wall and hatch/servery to the lounge/dining room. The applicant's building licence authorised the applicant to remove part of the wall and the whole of the hatch that separated the lounge/dining room from the kitchen, and part of the wall and the door that separated the kitchen from the passage. A small length of wall was to remain between the kitchen and lounge/dining room. A larger length of wall was to remain between the passage and the kitchen. The effect is to open up the lounge/dining and kitchen areas into one large area which leads to a balcony. Further, the respondent was authorised to remove the glass enclosures to the balcony and replace the sliding door from the lounge/dining area to the balcony with glass bi-fold doors. There was no information in the material presented by the parties that suggested that this alteration would be noticeable from outside the lot (it being on the 8th floor), or that there was an issue about the alteration to the balcony. The Tribunal concludes that there was no dispute about this part of the alteration in respect of how it might be viewed from beyond Lot 70.

The respondent concedes that the two walls to be removed are loadbearing walls. The engineering report relied on by the respondent in support of the application for a building licence to the City of Perth states:
The owner's proposal is to remove a total length of 3.5 [metres] of single leaf brickwork centred about a corner of the kitchen. Due to the relatively short spans involved, a system of shallow steel beams (2 off) plus one column is proposed to support the loads from the above apartment.
In preparing a design to facilitate the structural modification sought by the respondent, the respondent's engineer 'sourced copies of the original calculations and drawings from the Perth City Council for review by AEC' (the respondent's engineer).
AEC's quote included detailed design calculations of new steelwork, checks of increased bearing capacity on existing brick walls, construction methodology and site supervision of the work. The AEC report included detailed fabrication sketches, reference drawings and load calculations to support the engineering design proposed and advanced by the respondent in his application to the City of Perth for a building licence. All the pages of the engineer's report are stamped with the City of Perth's approval, formal respondent's building licence and signed by the principal building surveyor and form part of the building licence. This AEC report is the same that was provided by the respondent to the applicant in the email of 8 April 2010.
In short, the single leaf brick walls that separated the kitchen from the passage and the lounge/dining room, and which partially supported the penthouse apartment above Lot 70 (Lot 75), were to be removed and replaced with supporting steel lintels/beams. There was to be no permanent structural alteration to the ceiling to Lot 70. The ceiling to Lot 70 and the floor of Lot 75 were to rest on steel beams and not on a brick wall. All of the work to be undertaken was within Lot 70, and none of the work was to affect the common property (that is, the balance of the ceiling to Lot 70, save for the face).

Structural integrity

The City of Perth was satisfied with the structural integrity of the proposed modification to Lot 70. Had it not been, the building licence dated 13 July 2010 would not have been granted.
The applicant, however, maintained at all times that the greater load was placed upon the corner of the bathroom wall in Lot 70 where it intersected with the larger part of the wall between the kitchen and the central passage, which transferred the load of the penthouse apartment and roof all the way down to the ground floor. Mr Caine, the chairman of the Council of owners who represented the applicant, asserted that if all lot proprietors beneath Lot 70 undertook the same work, the structural integrity of the whole building was jeopardised. Mr Caine broadly submitted that, whilst the City of Perth may be concerned with the structural modification proposed by the respondent, the strata company was concerned with the impact of the modification of Lot 70 in relation to the whole building and the impact of any future modifications by other lot proprietors. He sought to persuade the Tribunal that the fact that a building licence was granted based upon the respondent's engineer's report, was not sufficient to persuade the Tribunal, or the strata company in the first place, of no structural impact of the modification undertaken by the respondent. Mr Caine complained at an earlier directions hearing that the respondent had not provided the applicant with the building licence. By Tribunal order dated 10 May 2012, the respondent filed in the Tribunal and served on the applicant, a copy of the building licence dated 13 July 2010, issued to the respondent by the City of Perth in respect of the modifications (referred to above), notwithstanding that the respondent was not obliged to provide the respondent with a copy of the same at any stage. As to Mr Caine's assertions that the considerations of the City of Perth were not as broad as the applicant's, the assertion was made without any foundation. Any work that any other lot proprietor were to undertake would have to be the subject of a building permit and that the application for that permit would be assessed taking into account the modifications made by the respondent which the City of Perth will be aware of, having granted the respondent the building licence referred to. The applicant did not advance any evidence or material to support this broad proposition.
The applicant called Mr Britt Payne to give evidence of the detriment suffered by other lot proprietors and to show that the modification has affected the structural soundness of the building as a whole.
The respondent called Mr Kazazi, the author of the AEC report, to give evidence on behalf of the respondent. In its Section 24 Bundle of Documents, the applicant provided the Tribunal and the respondent with Mr Payne's letter dated 27 February 2012. In its supplementary Section 24 Bundle of Documents, the respondent provided the Tribunal with a copy of Mr Payne's letter dated 9 July 2012. Mr Kazazi referred to his curriculum vitae, the certificate of completion, his letter dated 1 August 2012, and the AEC report, all contained in the respondent's supplementary Section 24 Bundle of Documents.
Mr Payne gave evidence in chief, and his evidence and the statements made in his two reports may be summarised as follows:
a)The AEC report and the proposed modification are structurally adequate to support the load of the penthouse apartment above Lot 70 (Lot 75) and the roof load above that.
b)The work that has been undertaken by the respondent to date is structurally adequate.
c)The design and the construction of the design have not overloaded any element of the building, including the supporting walls in the apartment immediately below.
d)The modifications have resulted in the redistribution of the load of the apartment above Lot 70 (Lot 75) and the roof above that, such that the corner of the bathroom wall in Lot 70 is now carrying more load than it did prior to the modification.
e)Because of the internal walls of each apartment being located under one another, the increase of load on the corners of all bathroom walls below Lot 70 now extends all the way to the ground floor. However, the load distribution is minimal or incremental.
f)The load on the ground floor is distributed differently to the other floors above the ground floor and through reinforced beams to other sections of other walls to the ground floor, so that the load from the floors above are distributed to the ground floor walls generally and not to any one particular wall or area of the ground floor.
g)As a general comment, every wall of the whole building has a structural function.
h)If each apartment below Lot 70 were to undertake the same modification, there would eventually be an overloading of the bathroom walls below the apartments where the modifications are made.
i)Only three or four apartments below Lot 70 could undertake the same modifications before there would be an overload on the bathroom corner wall to the lots below.
j)All other lots below Lot 70 would have to engage greater engineering complexity and cost, and building cost, to achieve the same modification as made by the applicant because of the respondent's structural modifications.
k)The internal walls to the lots provide lateral stability in the event of high winds and earthquakes.
l)The applicant must keep a record of the internal changes to lots so that modifications can be considered in approving future modifications.
m)The applicant will have to exercise extreme caution in granting approvals to future modifications.
n)There was no cracking in the penthouse apartments above Lot 70 or signs of any stress in those apartments.
Under crossexamination, Mr Payne stated and conceded the following:
a)Lot 75 (immediately above Lot 70) is a larger lot than Lot 70 without the same supporting walls.
b)Mr Caine informed him that there was no cracking in the penthouse apartments above Lot 70 and that was the basis of his statement that there was no stress and no cracking in the penthouse apartments above Lot 70.
c)He concluded that there had been a redistribution of load by making some form of preliminary calculation, a copy and record of which is not before the Tribunal and was not provided to the respondent.
d)As to his statement that if several apartments in the same wing carried out the same modification, unacceptable loads would be reached on the bathroom walls of the apartments below, he made that statement based upon some preliminary calculations, a copy and record of which is not before the Tribunal and was not provided to the respondent.
e)As to the maximum of four subjacent lots in a wing performing the same modification before the bathroom walls below would be structurally compromised, he conceded that the assessment was subject to assessing or testing the compression strength of the bricks and materials used in the original construction on the original walls beneath.
f)As to the requirement for care in the future, he stated he would always advise on relying on two engineers to independently calculate the loadbearing spread on the remaining walls.
g)He stated that if other subjacent lots were to perform the same modification, there would be a need to consider other factors from an engineering perspective to design a method by which the modification could take place, but he stated it would be more 'difficult' and more 'expensive'.
h)As to the assertion that future similar alterations would be more expensive and more difficult, he conceded that more engineering details and an alternative method of distribution of the loads of the apartments above would have to be utilised, and possibly at greater cost.
i)As to the 'extreme caution' he recommended for the strata company to adopt for any future modifications, he conceded that it would require careful structural evaluation by two independent engineers who independently calculated the modification load spread.
In short, Mr Payne confirmed that the building was structurally sound with the modifications to Lot 70. His evidence was that greater cost, engineering detail and need for caution would be visited upon any other subjacent lot proprietor who undertook the same type of modifications because of the modifications by the respondent.
Mr Kazazi's evidence in chief and the AEC report may be summarised as follows:
a)He prepared the engineering design and he supervised the respondent undertaking the building work to his design and he prepared the completion certificate to certify to the City of Perth that the work performed by the respondent was undertaken in compliance with his design.
b)The modifications made to Lot 70 will have no, or only negligible, impact on the need for a subjacent lot proprietor to have different, or possibly greater, engineering detail in any modifications made in the future.
c)Regardless of the modifications made by the respondent to Lot 70, the apartments beneath Lot 70 and all lower floor apartments down to the ground, bear ever increasing loads of the weight of the apartment and the roof above.
d)Regardless of any modification made to any of the apartments towards the top of the building, the lower floor apartments would always require different and more complicated engineering detail and more complicated and possibly more expensive methods of altering the lot, so as to spread the loads from any removal of loadbearing walls thereto, simply because they were lower in the tower and were already designed to carry the weight of the upper floors.
e)The modifications of the kind undertaken by the respondent to Lot 70 were far easier to undertake towards the top of the tower than they were towards the bottom of the tower, regardless of who had undertaken any structural alterations in the past.
f)The brickwork to the tower is very good.
g)To remove the beams and replace the walls now will cause some difficulty because grouting to the space between the top of the brick wall and ceiling is difficult to achieve.
h)It is not physically easy to remove the preloaded steel beams and to replace the same with a loadbearing brick wall that is fully and properly grouted to the underside of the ceiling so as to transfer the load from the beams back to the brick wall.
i)It is imperative to make sure that any loadbearing brick wall is constructed from bricks with the correct compressive strength and that the mortar used in the construction of the loadbearing brick walls, when constructed, provides sufficient compressive strength to take the load of the floor above and the roof.
Under crossexamination, he agreed and concluded that:
a)The spring loaded beams installed by the respondent could be kept in place and brick wall infills could be constructed where the previous loadbearing brick walls had been situated to give the appearance of no change.
b)Even a stud wall would be capable of being constructed beneath the beams.
c)However, the beams are wider than the brick wall infill would be and may have an impact aesthetically.
Mr Payne was recalled to give evidence. He disagreed that the regrouting of the wall to the underside of the ceiling of Lot 70 would be difficult if new loadbearing walls were to be constructed to replace the beams installed by the respondent, but agreed some risk would be introduced if this course were to be adopted.

Current position of the work to Lot 70

It is not in dispute that the respondent has completed the structural modifications to Lot 70, but is yet to complete the construction work concerning the finishing of the modified areas. It is not in dispute that the respondent himself undertook the structural modifications as he was authorised to do so by the building licence granted to him as an owner/builder by the City of Perth on 13 July 2010. The respondent gave evidence that he stopped any further work that is, to finish the apartment until the position was resolved with the applicant.

Statutory framework

The approval process

The ST Act does not contain a total prohibition against a lot proprietor making structural alterations within and to that lot proprietor's lot in a strata scheme. Instead, the ST Act provides for a process to be commenced by the lot proprietor who wishes to make the structural modifications to the lot for consideration and approval of the strata company in general meeting. The ST Act does not confer on the strata company in general meeting an unfettered right to vote against approval of any application for structural modification to a lot. A vote against approval of any such application at a duly convened and conducted general meeting for consideration of that application must specify the basis of the vote against the application. It is to be disregarded unless the voter identifies the basis of the dissent, and that basis is one permitted by s 7(5) of the ST Act. The ST Act therefore confers a limited right to vote against any such application. In this proceeding it is relevant to note that the forum for voting is the general meeting of the strata company and not the Council. The Council is given a limited, but mandatory, direction in the process that is, to convene a general meeting as prescribed.
If the applicant is not notified in writing of the resolution of the strata company in general meeting within a specified period of time, the strata company's approval to the application is 'taken to be given'. This is so whether the application was, in fact, approved or not approved by the strata company in general meeting within the time specified, or whether the process following the application was subverted or failed to take place as prescribed. Further, if the process results in a resolution that does not approve the application, the strata company's mandatory notice in writing must disclose the grounds upon which each proprietor cast a valid vote against the application. If it does not contain that information, the strata company's approval is 'taken to be given'.
Section 7 of the ST Act relevantly provides:
…
(2)The proprietor of a lot shall not cause or permit
(a)any structure to be erected; or
(b)any alteration of a structural kind to, or extension of, a structure,
on his lot except
…
(d)in any other case with the prior approval, expressed by resolution without dissent, of the strata company.
...
(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);
(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);
(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);
(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;
(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; [and]
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.
(Tribunal emphasis)
Section 7B of the ST Act relevantly provides:
(1)A proprietor who wishes to obtain an approval of a proposal that comes within section 7(2) … shall serve an application on the strata company … and in the application shall set out details of the proposal and such other information as may be prescribed.
(2)Where an application is made to a strata company under subsection (1) the council of the company shall submit the application to a general meeting of the company convened for the purpose, or for purposes which include that purpose, within 35 days after the application is received (the allowed period).
(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
…
(b)… by the strata company within 77 days after service of the application on the company.
(6)If an application made to a strata company … for approval under section 7 is not approved, a notice under subsection (5) shall show the ground or grounds
(a)disclosed by each proprietor who cast a vote of a kind referred to in section 7(4)(c)[.]
…
(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.
(Tribunal emphasis)

There is no doubt that the applicant was required to consider the respondent's application in a general meeting (see s 3AC and Sch 1 bylaws 11 and 12 of the ST Act). It can be seen from the language adopted by the legislature that the s 7 and s 7B ST Act process prescribed for the strata company in general meeting to apprise the general meeting of the purpose of the meeting (that is, in the prescribed written statement to accompany the notice of the general meeting of the strata company and the prescriptive direction by the chairman to the strata company in general meeting), the limited right to vote against the application and prescriptive requirement that any lot proprietor who votes against the application is compelled to elect which of the statutory grounds he or she relies upon to cast that vote, that the legislature intended that process to be strictly complied with. This interpretation is supported by the consequences that follow, where the statutory process is not complied with as provided for by s 7B(7) of the ST Act.

Tribunal powers s 103G of the ST Act

The application by the applicant has been brought pursuant to s 103G of the ST Act, which provides:
(1)An application to the State Administrative Tribunal for a finding and an order under this section may be made
…
(b)… by the strata company.
(2)A finding under this section is a finding that the proprietor of a lot in the scheme has committed a breach of section 7(2).
(3)An order under this section is an order that the proprietor
(a)stop carrying out any work or any specified work in breach of subsection (2) of section 7; or
(b)within a specified time, pull down, remove, or alter anything or any specified thing that is in place as a result of work done in breach of that subsection,
or an order under both of those paragraphs.
(4)On the making of an application under subsection (1), the State Administrative Tribunal shall
(a)make a finding under this section if satisfied that a breach of section 7(2) has occurred; [and]
(b)make an order under this section unless satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors.
(Tribunal emphasis)
In order to exercise the power conferred upon the Tribunal by s 103G(3) of the ST Act, the Tribunal must first make a finding that the respondent in this case has committed a breach of s 7(2) of the ST Act. If the Tribunal makes such a finding, it is directed to make an order 'under this section' (being an order identified in s 103G(a) and/or s 103G(b) of the ST Act) 'unless' it is satisfied that the 'work' done or to be done in pursuit of the structural modification 'will not' cause any 'significant inconvenience or detriment' to the other proprietors.
Where the Tribunal finds that the respondent has committed a breach of s 7(2) of the ST Act, it remains necessary for the Tribunal to consider the second aspect whether the work already done or to be done will or will not present a significant inconvenience or detriment to the other lot proprietors. In considering inconvenience and detriment to the other proprietors for the purpose of s 103G(4)(b) of the ST Act, the Tribunal may have regard to the grounds for dissent referred to in s 7(5) of the ST Act in the context of whether the work done or to be done will cause significant inconvenience or detriment. However, the Tribunal's task under s 103G(4)(b) of the ST Act is not limited to the factors identified in s 7(5) of the ST Act: see The Owners of The Views, Strata Plan 6669 and Larralee Pty Ltd [2006] WASAT 126.

Secion 7B of the ST Act and prescribed information

Regulation 34 of the Strata Titles General Regulations 1996 (WA) (ST Regulations) identifies the prescribed information for the purposes of an application made in accordance with s 7B(1) of the ST Act. Regulation 34(1) requires the application include a plan and specification for the construction of the improvements and the prescribed information specified in reg 34(2), reg 34(4), reg 34(5) and reg 34(6) of the ST Regulations. Regulation 34(2) is largely concerned with plot ratios, and as there is no alteration to the plot ratio of the lot, it has no application. The email application (comprising the AEC report and the respondent's email of 8 April 2010) contains all of the information prescribed by reg 34(5) of the ST Regulations materials, colours in respect of those parts visible from outside the lot (that is, glass bifold doors), method of construction and work plan (hours to operate are included) and likely interruption of statutory easements. The statutory easement created by s 11 of the ST Act (subjacent and lateral support) is the subject of the AEC report in detail.

The Tribunal's consideration

Has the respondent committed a breach of s 7(2) of the ST Act?

The Tribunal finds that the alterations proposed by the respondent in his email application were entirely to his lot Lot 70. The Tribunal finds that those alterations were to a structure or structures in the lot such that s 7 of the ST Act is relevant.
The respondent asserts that the email of 8 April 2010, along with the AEC report, comprises an application made to and served on the respondent in compliance with s 7B of the ST Act.
As to the form of the application pursuant to s 7B of the ST Act, there is no prescribed form for any such application. As to the service of the application, the Tribunal is satisfied that although the email may not comply with service of documents for the purposes of s 125(2) of the ST Act, as at 21 April 2010, the Council had at least one hard copy of the email application, as the email application was discussed at that Council meeting. The applicant did not at any stage take issue that the email application was not served in accordance with s 125(2) of the ST Act so as to challenge the validity of the respondent's email application. The applicant did challenge the substantive validity of the email application. Section 125(2) of the ST Act is not prescriptive as to the manner of service, as it provides that a document (other than a document falling within s 125(1) of the ST Act) 'may' be served on the strata company in the manner provided for by s 125(2)(a) and s 125(2)(b) of the ST Act: see Ilich & Anor and Baystar Corporation Pty Ltd [2004] WASTR 25. In this case, the email application was provided in an electronic form to the chairman of the applicant.
The Tribunal is satisfied that, although not served in the manner allowed for in s 125(2) of the ST Act, the email application was served on the then applicant's chairman in the sense that the applicant's officer was fully aware of the email application on 8 April 2010 or at the latest on 21 April 2010. Having brought the email application to the applicant's chairman's attention and notice, the email application was served in accordance with s 7B of the ST Act.
The Tribunal also finds that the AEC report and the respondent's email of 8 April 2010 contain all of the relevant information as prescribed by reg 34 of the ST Regulations.
The Tribunal concludes that the respondent's email application was made in accordance with s 7B of the ST Act for the purposes of s 7 of the ST Act.
The Tribunal considers that on a proper construction of s 7 and s 7B of the ST Act referred to above, the Council was obliged to call for and convene a general meeting of the applicant for the purposes of considering and voting upon the email application pursuant to, and strictly in accordance with, s 7 of the ST Act. The Tribunal finds that the Council did not call or convene a general meeting of the applicant as required and in accordance with s 7 of the ST Act. The Tribunal finds that the Council's consideration of the respondent's email application on 21 April 2010 and/or 6 June 2010 was beyond the Council's power and any resolution made was void and of no effect.
The applicant sought to raise at the hearing that the respondent was obliged to call a meeting pursuant to s 7B(3) of the ST Act. The Tribunal rejects that submission entirely. Section 7B(3) of the ST Act confers a discretion on the respondent to convene a meeting himself, but he is not obliged to. The Tribunal finds that there was no obligation on the respondent to convene a meeting in the time allowed by s 7B(3) of the ST Act. Further, he was not aware at any stage in the period of time provided for by s 7B(5) of the ST Act (that is, 77 days) that the Council had failed to convene a general meeting of the strata company for the members to consider and vote upon the respondent's email application.
The Tribunal concludes that the respondent's email application is taken to have been approved by the applicant on 26 June 2010, pursuant to s 7B(7) of the ST Act, by the passage of 77 days from the date of the service of the email application on the applicant. The respondent's email application was, as a matter of law, approved by the applicant.
The Tribunal concludes that the respondent has not breached s 7(2) of the ST Act. For this reason, the application pursuant to s 103G is dismissed.

Significant inconvenience or detriment

Even if the Tribunal is incorrect in its view that the respondent is not in breach of s 7(2) of the ST Act, the Tribunal is satisfied that the modifications made to date and the balance of the work to be undertaken to complete and finish the building work to Lot 70 will not cause any significant inconvenience or detriment. The Tribunal considers that the only instance of immediate inconvenience suffered by a neighbour was when the brick walls were demolished which caused a loud noise and possibly some momentary alarm to the neighbour; the Tribunal considers that it not significant inconvenience. The Tribunal finds that there is no inconvenience suffered by any other lot proprietors or any detriment caused by the respondent's modifications. The Tribunal has found that the additional care, cost of building and cost of engineering work involved in subjacent lot proprietors undertaking structural modifications is not contributed to significantly (if at all) by the respondent's modifications. Any additional care, cost and work required by those subjacent lot proprietors is as a consequence of the lots bearing greater load, in any event.
Significant time was taken up in this proceeding with irrelevant matters. The applicant proceeded in this matter upon the erroneous basis that the Council was empowered to determine the respondent's email application. That premise led the applicant into error, as it was for the Council to call and convene a general meeting of the applicant and for the members to vote on the email application, bearing in mind there were limited bases to vote against approval.
In Laurent and Commissioner of Police [2009] WASAT 254, Pritchard J held (citing State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (Rabel) at [108] and [109] (per Ormiston JA)) at [23]:
... the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact.
The applicant misconceived of its obligations in April 2010 and, as a consequence, failed to call and convene the general meeting of the applicant to consider and vote upon the respondent's email application. As a consequence of that misconception of the law and the applicant's obligations in this matter, the applicant's application, made pursuant to s 103G of the ST Act, to the Tribunal is misconceived because the respondent's email application was approved for the reasons referred to herein on 26 June 2010. For this reason the application is dismissed pursuant to s 47(1)(a) of the SAT Act.

Other matters

As stated above, the respondent's application, made pursuant to s 103F of the ST Act on 30 March 2012 (formerly referred to as CC 512 of 2012), had been consolidated into this proceeding. In making orders in this proceeding, the consolidated proceeding is disposed of. However, the applicant's application, made on 2 August 2012 (CC 1224 of 2012), was not consolidated in this proceeding. The order made in this matter renders the proceeding in CC 1224 of 2012 futile, as the Tribunal has held herein that the respondent's email application, pursuant to s 7(2) of the ST Act, is taken to have been approved and there is no need for the respondent to now apply for orders pursuant to s 103F of the ST Act. The disposal of CC 1224 of 2012 shall be the subject of separate orders.

Orders

1.The application is dismissed pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA).

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
Amended pursuant to s 83(1)(a) of the State Administrative Tribunal Act 2004 (WA)
DATE:
___________________________________
MS NATASHA OWEN-CONWAY, MEMBER