RECHICHI and JOHNSTON - [2021] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   RECHICHI and JOHNSTON [2021] WASAT 79
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   9 MARCH 2021
DELIVERED          :   1 JUNE 2021
FILE NO/S:   CC 1339 of 2020
BETWEEN:   TERESA RECHICHI
Applicant
AND
IAN JOHNSTON
First Respondent
LISA GANNON
Second Respondent
ANOUSHKA WALSTER
Third Respondent

Catchwords:

Jurisdiction under Strata Titles Act 1985 (WA) - Four-lot single tier strata scheme - Owner of one lot wanting to erect second storey to dwelling - Application to exempt proposed works from need to obtain strata company approval - Proposed removal and relocation of boundary structure into common property air space - Not 'structural alteration of a lot' - Tribunal lacks jurisdiction to make orders

Legislation:

Strata Titles (General) Regulations 2019 (WA), reg 6(1), reg 6(4), reg 73, reg 74, reg 75, reg 75(2)(h)
Strata Titles Act 1985 (WA) (post 1 May 2020), s 3, s 3(1), s 3(2), s 3(2)(b), s 3(2A), s 10, s 12, s 14(8), s 27, s 27(a), s 28, s 28(5), s 35, s 35(3), s 86, s 87, s 89, s 89(1), s 90, s 90(2), s 90(3), s 166, s 183, s 197, s 197(1)(b), s 199, s 200, s 204(b), s 209, Pt 4, Pt 7, Div 2, Pt 13, Sch 2A, cl 1, cl 2, cl 3, cl 3AB, cl 21A,
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 7, s 7A, s 28, s 83(6), s 86(1), s 103F
Strata Titles Amendment Act 2018 (WA)

Result:

Tribunal lacks jurisdiction to make the orders sought
Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A
Third Respondent	:	N/A

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A
Third Respondent	:	N/A

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

Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
HapgoodStrickland and Watson [2021] WASAT 15
Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99
Tipene and The Owners of Strata Plan 9465 [2016] WASAT 101
Tipene and The Owners of Strata Plan No 9495 [2013] WASAT 186
Tipene v The Owners of Strata Plan 9485 [2015] WASC 30

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In broad terms, this dispute concerns the proposed construction of a second storey to the applicant's residence (Proposed Works) in a four lot single tier strata scheme. The owners of the other lots in the Scheme, who are the respondents, object to those works being carried out. The applicant seeks orders from the Tribunal that would have the effect of authorising the Proposed Works without the respondents' approval, and facilitating the registration of any necessary amendments to the strata scheme.
Specifically, the orders sought by the applicant (Proposed Orders) are set out in the application lodged with the Tribunal on 16 October 2020, as follows:
SAT Order 1
SAT Order to be made under Section 90(2) (b) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read RECHICHI and JOHNSTON and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] WASAT 79
Decision Date

CaseChat Overview and Summary

The case of Rechichi and Johnston involved a dispute regarding the boundaries of a lot within a strata scheme. The matter was heard in the Supreme Court of Western Australia. The central issue was determining the precise boundaries of Lot 1 within the strata scheme, which included identifying the boundaries of four part lots within that lot. The dispute arose from differing interpretations of the strata plan and the relevant legislation, specifically the Strata Titles Act 1985.

The court was tasked with interpreting the statutory definition of a "lot" within the strata scheme, determining how the boundaries of a lot should be ascertained. This involved examining the interaction between the strata plan, the Strata Titles Act, and any relevant regulations. The primary question was whether the boundaries of the lot should be determined by the external surfaces of the building or by the floor plan, as well as how to interpret the boundaries of the four part lots within Lot 1. The court also had to consider the application of specific clauses within the strata scheme and the implications of the scheme being an "existing small strata scheme" under the legislation.

The court concluded that the boundaries of the lot and its part lots should be determined by the external surfaces of the building, as prescribed by the relevant clause in the strata scheme. This interpretation was consistent with the statutory provisions and the scheme's registration as an existing small strata scheme. The court emphasised that the floor plan was intended to depict certain physical features that define the cubic space but does not constitute the definitional features of the space. The court's reasoning was based on the primacy of the boundary description and the specific provisions of the strata plan and legislation.

The final orders of the court confirmed the boundaries of Lot 1 and its part lots as determined by the external surfaces of the building, in accordance with the strata plan and the relevant statutory provisions. The court also clarified the application of the specific clause within the strata scheme, ensuring that the interpretation aligned with the legislative framework and the scheme's status as an existing small strata scheme.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Taking the above wording into account, in my view the following observations made in the Tipene Decisions apply with equal force to the present application:a)a lot in a strata scheme is a statutory construct created in relation to a three-dimensional space. The interest of a lot owner is, in addition to a shared interest in any common property,[18] an interest in the cubic space comprising the lot rather than in land per se;[19] b)further, a lot may comprise a number of cubic spaces, as opposed to being a 'single super cube';[20] andc)certain features of the land (physical structures or surveyed boundaries)[21] define the cubic space of each lot or part lot. A floor plan is intended to depict certain of the (physical) features that define a cubic space; it does not constitute the definitional features of the space.[22] In this instance, Sheet 1 of the floor plan on the Strata Plan (annexed) shows Lot 1 having a total floor area of 288m2, comprising four part lots which, when interpreted with the Summit Drawings, are:a)the existing single storey dwelling, occupying a floor area of 96m2 (Dwelling Part Lot);b)a walled front yard (facing onto Caledonian Avenue) with a floor area of 56m2 (Yard Part Lot);c)a paved driveway area of 62m2 which is partly covered by a car port (Driveway Part Lot); andd)a narrow 12m2 area running along the south-eastern side of the residence (Path Part Lot). As appears from the definition of 'lot' in [31] above, the precise boundaries of each of the four constituent part lots of Lot 1 are ('subject to cl. 3AB'[23]) to be ascertained: a)in the case of vertical boundaries, by reference to the floor plan; andb)in the case of horizontal boundaries, in accordance with s 3(2). This in turn provides (at s 3(2)(a)(ii)) that, if a floor or ceiling joins a vertical boundary of a cubic space, then the horizontal boundary of that cubic space is the upper surface of that floor and the under surface of that ceiling.[23] As to the application of cl 3AB, the Scheme, being a four lot strata scheme registered before 1 January 1998, is an 'existing small strata scheme' within the meaning of cl 21A. Following the reasoning in HapgoodStrickland and Watson [2021] WASAT 15, at [21]-[24] and [53]-[65], cl 3AB applies to the Scheme. Given the primacy of the Boundary Description (see [45-[47] below), it is not worth repeating that analysis here in full. Clause 3AB relevantly provides that:(1)If this clause applies, the boundaries of a cubic space referred to in paragraph (a) of the definition of floor plan in section 3(1) are, regardless of the exact location of the lines referred to in that paragraph (a)the external surfaces of the building occupying the area represented on that floor plan (i)including any thing that (I)is attached to and projects from the building; and(II)is prescribed by the regulations to be included as part of a lot;but(ii)excluding any thing that is prescribed by the regulations not to be included as part of a lot;or(b)despite paragraph (a), if 2 lots (i)have a common or party wall, the centre plane of that wall; or(ii)have buildings on them that are joined, the plane or planes at which they are joined.…(3)Nothing in this clause applies to a boundary of a lot or a part of a lot that is external to a building.(4)If this clause applies it (a)displaces the operation of section 3(2)(a); but(b)does not affect the operation of section 3(2)(b).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.