SEARES and THE OWNERS OF MATILDA UNITS STRATA PLAN 33443
[2018] WASAT 75
•8 AUGUST 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: SEARES and THE OWNERS OF MATILDA UNITS STRATA PLAN 33443 [2018] WASAT 75
MEMBER: SENIOR MEMBER D AITKEN
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 8 AUGUST 2018
FILE NO/S: CC 2328 of 2017
BETWEEN: MARGARET SEARES
Applicant
AND
THE OWNERS OF MATILDA UNITS STRATA PLAN 33443
First Respondent
GREGORY THOMAS MELDRUM
Second Respondent
BARBARA JAN MELDRUM
Third Respondent
PATRICIA MARGARET SHALALA
Fourth Respondent
EDWARD JOHN THURLOW
Fifth Respondent
Catchwords:
Strata titles - Whether removal of a balcony balustrade which forms a boundary of part of a lot can be approved under s 7 or s 85 of the Strata Titles Act 1985 (WA)
Legislation:
State Administrative Tribunal Act 2004 (WA), s 14, s 17(1), s 38(1), s 60(2), Pt 3, Div 3, Subdiv 2
Strata Titles Act 1985 (WA), s 3(2), s 3AC, s 7, s 7(2), s 7(2)(d), s 7B, s 32(1), s 85, s 103F, s 103F(1), s 103G
Strata Titles General Regulations 1996 (WA), reg 34
Result:
Preliminary issue determined
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr P Wellington |
| First Respondent | : | Mr G Meldrum (Chairman) |
| Second Respondent | : | In Person |
| Third Respondent | : | In Person |
| Fourth Respondent | : | In Person |
| Fifth Respondent | : | Mr P Metzger (acting as agent) |
Solicitors:
| Applicant | : | Mr P Wellington |
| First Respondent | : | N/A |
| Second Respondent | : | N/A |
| Third Respondent | : | N/A |
| Fourth Respondent | : | N/A |
| Fifth Respondent | : | N/A |
Case(s) referred to in decision(s):
Council of Owners Strata Plan 8969 and CleaverWilkinson [2013] WASAT 196
Frasers Queens Pty Ltd and Tan [2018] WASAT 73
The Owners of 216 Barker Road Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161
Tipene v The Owners of Strata Plan 9485 [2015] WASC 30
Topic and The Owners of Raffles Waterfront Strata Plan 48545 [2016] WASAT 27
REASONS FOR DECISION OF THE TRIBUNAL:
The strata scheme named Matilda Units (Matilda Units Strata Scheme) was created by the registration of Strata Plan 33443 (Matilda Units Strata Plan) on 4 May 1998 under the Strata Titles Act 1985 (WA) (ST Act).
The Matilda Units Strata Scheme is situated at 1 Kings Park Road, Crawley and consists of 12 lots and common property. The location plan in the Matilda Units Strata Plan shows that there is an undercover parking building and a six level residential building. Each of the lots is comprised of two part lots. One part lot is a cubic space for parking within the undercover parking area on the ground floor (parking part lot) and the other part lot is a cubic space within the residential building (residential part lot). Each of the residential part lots includes a balcony area with a balustrade on the edge of the balcony.
Under s 3(2) of the ST Act the boundaries of the residential part lots are the inner surfaces of the walls, the upper surface of the floor and the under surface of the ceiling (as noted on the ground floor plan of the Matilda Units Strata Plan).
'Wall' is defined in s 3(1) of the ST Act to include 'a door, window or other structure dividing a lot from common property or from another lot'.
The balustrades on edge of the balconies of the residential part lots are 'walls' which divide the residential part lots from the common property of the Matilda Units Strata Scheme. The balustrades are part of the common property and the inner surface of the balustrades forms one of the boundaries of the residential part lots.
The applicant is the proprietor of Lot 8 on the Matilda Units Strata Plan, which is comprised of a parking part lot and a residential part lot on the third floor of the residential building. In these reasons, for simplicity, the residential part lot of Lot 8 is referred to as Lot 8.
The first respondent (Matilda Units Strata Company) is the strata company of the Matilda Units Strata Scheme under s 32(1) of the ST Act.
The other respondents are the proprietors of lots in the Matilda Units Strata Scheme who requested to be joined as respondents in the proceeding and were joined pursuant to s 38(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The application
This proceeding concerns an application (Application):
•under s 103F(1) of the 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 replacement of the current glass enclosures on the balcony within Lot 8 with updated glass and aluminium framing and the removal of the contiguous section of balustrade sitting behind the enclosures (Proposed Order 1); and
•under s 85 of the ST Act for an order by the Tribunal that the Matilda Units Strata Company consent to the applicant's proposed replacement of the balance of the balcony balustrade (Proposed Order 2).
The Application was originally made under s 85 of the ST Act, but it was subsequently amended to be under s 103F of the ST Act for Proposed Order 1 and under s 85 of the ST Act for Proposed Order 2 when it became apparent to the Tribunal during a directions hearing that the balustrade is part of the common property of the Matilda Units Strata Scheme.
The applicant applied to the Matilda Units Strata Company under s 7B of the ST Act for approval under s 7(2) of the ST Act of her proposal to replace the current glass enclosures on the balcony within Lot 8 with updated glass and aluminium framing, remove the contiguous section of balustrade sitting behind the enclosures and replace the balance of the balcony balustrade (Proposal).
The Proposal was submitted by the Matilda Units Strata Company to its annual general meeting on 22 August 2017, but the motion for approval was lost because the proprietors of five of the lots in the Matilda Units Strata Scheme voted against it.
Under s 7(2)(d) of the ST Act the approval had to be given by resolution without dissent and the votes against it meant that a resolution without dissent was not passed: see s 3AC of the ST Act.
The ground stated by all of the dissenting proprietors for voting against the Proposal was 'structural soundness' and an additional ground stated by one of the dissenting proprietors was 'building visual impact'.
The applicant subsequently commenced this proceeding by filing the Application with the Tribunal on 15 November 2017.
Preliminary issue to be determined
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].
The Tribunal decided to determine the following issue as a preliminary issue:
Do s 7 and s 103F of the ST Act apply to the proposed works the subject of this proceeding, considering the decision in Tipene?
The Tribunal decided to determine the preliminary issue pursuant to s 60(2) of the SAT Act on the basis of written submissions from the parties and the following documents, which the Matilda Units Strata Company filed with its response to the Application:
•Letter dated 4 July 2017 from the applicant to the Matilda Units Strata Company, which is an application under s 7B of the ST Act for approval of the Proposal (s 7B Application)).
•Letter dated 4 July 2017 from the applicant to Richardson Strata Management Services as the strata manager for the Matilda Units Strata Scheme, which sets out the information prescribed by reg 34 of the Strata Titles General Regulations 1996 (WA) (ST Regulations) for the purposes of s 7B of the ST Act.
•Notice and agenda dated 3 August 2017 for the annual general meeting of the Matilda Units Strata Company on 22 August 2017, with item 7 of the agenda setting out three motions on notice in respect of the s 7B Application.
•Minutes of the annual general meeting of the Matilda Units Strata Company on 22 August 2017, which record the result of the motions in respect of the s 7B Application.
The applicant filed submissions, which were subsequently replaced with amended submissions. The Tribunal will refer to those amended submissions as the applicant's submissions.
The respondents filed joint submissions, which will be referred to as the respondents' submissions.
The applicant's submissions
The applicant's submissions may be summarised as follows:
•The applicant has applied to the Matilda Units Strata Company for the approval of a replacement balustrade on the balcony to Lot 8.
•No demolition of the building is proposed, departing from the factual issues in Tipene.
•All changes in the applicant's proposal relate to replacing a non-structural fixture (safety balustrading and enclosure) where the replacement is in the same position as the existing balcony. City of Perth has given a building permit for the replacement balustrading.
•The proposed new balcony handrail is to replace the existing handrail and makes no change to the cubic space of Lot 8.
•In Tipene at [92] Corboy J held that 'a partial demolition that constituted an alteration was to be distinguished from the demolition of an entire building'. The applicant says that a partial demolition or an alteration does not destroy the cubic space that forms a lot.
•The proposal by the applicant is not for the demolition of an entire structure which was the case in Tipene. The applicant intends to replace a non-original and faulty balustrade and the replacement of the balustrade is an 'alteration' and not the 'demolition of the building' nor is it the 'destruction' of the 'cubic space'.
•The applicant refers to the decision of the Tribunal in Council of Owners Strata Plan 8969 and CleaverWilkinson [2013] WASAT 196 (CleaverWilkinson) as authority for the proposition that 'a handrail forming the boundary of a lot is incidental to any alteration to the common property and not a significant component of the structure as was the case in Tipene' and that to deny the applicant and upgrade of a defective handrail is 'unreasonable and wrongly decided'.
•The applicant refers to the decision of the Tribunal in The Owners of 216 Barker Road Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161 (Stirling Brass Founders) and submits that the alteration to the balcony as proposed by the applicant will not cause significant inconvenience or detriment to the other proprietors of lots in the Matilda Units Strata Scheme.
•The decision of the strata company under s 7(2)(b) of the ST Act not permitting the alteration of the balcony handrail was wrongly decided and the application brought under Tipene, which was for the demolition of buildings, is to be distinguished from the alteration of a handrail.
•The applicant refers to [138] and [139] of Tipene where Corboy J concludes that an application under s 103F of the ST Act falls within the review jurisdiction of the Tribunal and submits that the Tribunal has jurisdiction to review the decision that has been made by the strata company.
The respondents' submissions
The respondents' submissions may be summarised as follows:
•The applicant proposes to completely remove the common property balustrade which forms a boundary of Lot 8.
•On the basis of the decision in Tipene the demolition of the balustrade will result in the destruction of the cubic space of Lot 8 and the applicant's lot 'will have gone'. Therefore, s 7 and s 103F of the ST Act cannot apply to the proposed works and the Tribunal does not have jurisdiction to deal with the matter.
An application under s 103F of the ST Act falls within the review jurisdiction of the Tribunal
The applicant's submission that an application to the Tribunal under s 103F of the ST falls within the review decision of the Tribunal is correct.
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, Subdiv 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] and Frasers Queens Pty Ltd and Tan [2018] WASAT 73 (Frasers) at [23].
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 tructure 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.
Does the Proposal fall within s 7(2) and s 103F of the ST Act?
To come within s 7(2) of the ST Act, a proposal must be for the erection of a structure or a structural alteration to, or the extension of, a structure on a lot.
Clearly the Proposal involves the erection of structures on Lot 8, namely the new glass enclosures referred to in Proposed Order 1. However, clearly also, the Proposal involves the removal of the balustrade which forms one of the boundaries of Lot 8.
In Tipene, at [93], Corboy J states that s 7 and s 103F of the ST Act do not permit any alteration or extension of a structure that affects the boundary of a lot.
A crucial question which therefore arises in respect of the Proposal is: what effect will the removal of the balustrade have on the boundaries of Lot 8?
In Tipene at [73], Corboy J states:
A lot in a strata scheme is a statutory construct created in relation to a three-dimensional space. The dimensions of that space are fixed by the surfaces of the walls, floors and ceilings of a building or parts of a building or by other physical features of the building in the case of structural cubic spaces. A lot is not an abstraction defined, for example, by what is depicted or described on the floor plan forming part of the strata plan for a strata scheme. A floor plan merely describes the cubic space and does so by reference to the physical structures that bound the space. It is the space created by those structures that constitutes the lot in a strata scheme.
Then, at [92] in Tipene, Corboy J states that the demolition of, for example, a party wall that forms the boundary between two lots will 'destroy' one part of the structure that defines the cubic spaces that form the lots, and the lots would cease to exist as statutory constructs once the wall had been demolished.
It can be seen from that statement by Corboy J, that it is not necessary for a building to be demolished for a lot in a strata scheme to cease to exist; it is sufficient if a structure which forms one boundary of a lot is demolished.
In Tipene at [105], Corboy J states that it may be that lot owners can approve an alteration that temporarily affects the boundaries of a lot or lots under s 7 of the ST Act, although he did not have to decide that question in that proceeding.
An example of such an alteration was considered in Topic and The Owners of Raffles Waterfront Strata Plan 48545 [2016] WASAT 27, where the original floor tiling in the kitchen of a strata lot had been removed and replaced. The Tribunal decided that, in those circumstances, where only a section of the floor which formed the lower horizontal boundary of the lot had been affected, there had not been the destruction of that boundary.
The Proposal in this proceeding involves more than an alteration which temporarily affects one of the boundaries of Lot 8.
Part of the Proposal is the permanent removal of the section of the balustrade which is contiguous to the glass enclosures.
Also, although the applicant's submissions contend that the replacement of the section of the balcony balustrade which is not contiguous to the glass enclosures will be in the same position as the existing balustrade, the notes on the plan attached to the s 7B Application state that the 'new balustrade to replace current' is to be 'in line with enclosures inset 100 mm from slab edge approx'. Therefore, the Tribunal finds that even the proposed replacement section of balustrade is not an alteration that temporarily affects the boundary of Lot 8. That part of the Proposal also involves the permanent removal of the existing balustrade.
The removal of the balustrade which forms one of the boundaries of Lot 8 will destroy one part of the structure that defines the cubic space that forms that part of Lot 8, and that part of Lot 8 will cease to exist.
As Corboy J stated at [93] of Tipene, s 7 and s 103F of the ST Act do not permit any alteration or extension of a structure that affects the boundary of a lot and, hence, a part lot. Therefore, the Proposal does not come within s 7(2) and s 103F of the ST Act.
The Tribunal does not accept that the decisions in CleaverWilkinson and Stirling Brass Founders provide authority for the contentions made in the applicant's submissions. Cleaver-Wilkinson concerned an application made by a strata company under s 83(1) of the ST Act seeking an order for the removal of an unauthorised solar hot water system which had been installed on the common property roof of a strata scheme. Stirling Brass Founders concerned an application made by a strata company under s 103G of the ST Act seeking an order for the removal of the unauthorised construction of a Juliette balcony within a lot. Neither of those decisions has any relevance to the determination of the preliminary issue.
Conclusion
For the reasons given, the Tribunal has determined the preliminary issue in the negative.
Additionally, on the basis of Tipene, s 85 of the ST Act does not permit the Tribunal to order that a strata company consent to an alteration to common property that affects the boundary of a lot.
Accordingly, the Tribunal has decided that it does not have jurisdiction to make either Proposed Order 1 or Proposed Order 2 and the Application must be dismissed.
The removal of the existing balustrade on the edge of the balcony of Lot 8 is an integral part of Proposed Order 1, and therefore the Tribunal has decided the preliminary issue in the negative.
If the applicant wishes to seek an order from the Tribunal for approval to only replace the existing glass enclosures on the balcony of Lot 8, leaving the existing balustrade in place, then it is open to her to lodge another application under s 103F(1) ST Act seeking such an order: see Frasers at [70] to [72].
The Tribunal will make the following orders.
Orders
1.The Tribunal has determined, as a preliminary issue, that s 7 and s 103F of the Strata Titles Act 1985 (WA) do not apply to the proposed works the subject of this proceeding.
2.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
8 AUGUST 2018
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