SIMCOCK and THE OWNERS OF 48 AND 50 PARKIN ST ROCKINGHAM STRATA PLAN 8069

[2025] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   SIMCOCK and THE OWNERS OF 48 AND 50 PARKIN ST ROCKINGHAM STRATA PLAN 8069 [2025] WASAT 108

MEMBER:   MS R PETRUCCI, MEMBER

HEARD:   12 AUGUST 2025

FINAL WRITTEN SUBMISSION FILED 29 AUGUST 2025

DELIVERED          :   7 OCTOBER 2025

FILE NO/S:   CC 351 of 2025

BETWEEN:   CAITLIN JADE SIMCOCK

Applicant

AND

THE OWNERS OF 48 AND 50 PARKIN ST ROCKINGHAM STRATA PLAN 8069

Respondent

Catchwords:

Strata Titles Act 1985 (WA) - Application seeking resolution of scheme dispute - Common property - Exclusive use by-law - Patio/pergola - Flashings - Gutters - Downpipes - Structure - Finishes - Replacement brickwork - Mediation agreement - Expert evidence - Non-expert evidence - Discretionary powers of Tribunal to make declarations and orders

Legislation:

Building Act 2011 (WA), s 51
State Administrative Tribunal Act 2004 (WA), s 9, s 32
Strata Titles Act 1966 (WA) (repealed)
Strata Titles Act 1985 (WA), s 3, s 91, s 91(1)(c)(i), s 197(1), s 197(2), s 197(4), s 199(1), s 199(3), s 200(1), s 200(2), s 200(2)(n), s 200(4), s 200(7), s 209

Result:

Application successful
Declarations and orders made

Category:    B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167

Carr and The Owners of 252 Cosy Corner Road Kronkup Survey-Strata Scheme 55030 [2024] WASAT 132

Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2024] WASAT 121

Erbrich and The Owners of 125 Herdsman Parade Wembley (Strata Plan 38066) [2020] WASAT 109

Hopkins and Clayton [2007] WASAT 255

The Owners of Arbor North Strata Plan 67510 and Sun [2020] WASAT 28

The Owners of Mandurah Terrace Apartments Strata Plan 17113 and Russell [2009] WASAT 1

The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; [2007] NSWCA 207

Wong v Reid [2016] WASC 59

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Some 45 years ago, on 3 June 1980, Strata Plan 8069 (strata plan) was registered pursuant to the (then) Strata Titles Act 1966 (WA) (1966 Act)[1] and the strata scheme known as '48 & 50 Parkin St, Rockingham' was created.  The strata scheme comprises seven residential lots located close by the shores of Rockingham Beach.

   [1] The 1966 Act was repealed on 30 June 1985. 

2. Ms Simcock purchased Lot 1 on the strata plan in 2013.  It is her investment property.

3. On 26 May 2025, Ms Simcock commenced proceedings in the Tribunal under s 197(4) of the Strata Titles Act 1985 (WA) (ST Act)[2] seeking the resolution of a scheme dispute against The Owners of 48 & 50 Parkin St, Rockingham Strata Plan 8069 (strata company).

   [2] The ST Act replaced the 1966 Act.

4. In these proceedings, the parties are in dispute about a previous matter before the Tribunal (see below at [10] to [15]) in respect of the following two key issues (current application):

   (a)the patio installed in November 2024 in the exclusive use area of Lot 1 (current patio); and

   (b)the replacement brickwork on the external wall of Lot 1 where an air-conditioning unit was removed.

5. In short, Ms Simcock says she has done everything to comply with the mediation agreement (see below at [13]), and seeks orders from the Tribunal that the current patio is approved in its current form and that the replacement brickwork on the external wall of Lot 1 is structurally sound.[3]

   [3] Exhibit 1 at page 62.

6. In short, the strata company's position, as expressed by Ms Shirley Anne Tuffin (Ms Tuffin), the chairperson and secretary of the council,[4] is that Ms Simcock is in breach of the mediation agreement and urges the Tribunal to dismiss the application.[5]

   [4] The term 'council' is defined in s 3 of the ST Act. It is the governing body of the strata company.

   [5] Exhibit 1 at page 137.

7. The role of the Tribunal is not inquisitorial. That is, while the Tribunal may determine how to proceed with a hearing as provided for in s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it is not the role of the Tribunal to take the lead in the investigation of the facts.  Rather, the role of the Tribunal is to make a decision on the basis of the evidence presented to it and the usual practice is that the parties have the management of their respective case.  Therefore, Ms Simcock, as the applicant, bears the burden of proving her case, that is, persuading the Tribunal that she is entitled to the relief (orders) she seeks, being the civil standard of proof, being on the balance of probabilities.

8. Besides the addition of by-law 16 on 23 May 1997 (by notification G483466) which is discussed below at [95] to [101] there have not been any other amendments to the scheme by-laws.[6]

   [6] Section 3 of the ST Act provides that scheme by-laws are the by-laws registered for the scheme as a scheme document.

9. In the following reasons, I explain why, ultimately, I have exercised the Tribunal's discretionary powers to make declarations and orders in regards to the two key issues (see above at [4]).  The result is that Ms Simcock's application is successful.

Previous proceeding

1. In order to understand the current application (see below at [16] to [20), it is necessary to briefly set out the application and the resulting orders made by the Tribunal (differently constituted) in matter CC 1411 of 2023 (previous proceeding).

2. On 30 November 2023, Ms Simcock commenced the previous proceeding under s 197(4) of the ST Act seeking the resolution of a scheme dispute against the strata company concerning proposed works to the exclusive use area between the carport and the residence of Lot 1. In that application, Ms Simcock stated that she wanted to undertake the proposed works, which she described as being in a state of disrepair, in particular, that the timber beams were rotting, to a state of good repair at her cost in compliance with by-law 16 (which has to do with exclusive use area of lots).

3. There were several attempts at mediation.

4. On the last of those attempts, the parties reached agreement at mediation to settle the previous proceeding (mediation agreement).  The terms of the mediation agreement were set out by way of a lengthy note to the orders made by the Tribunal (differently constituted) on 11 June 2024.  Where necessary, in the following reasons, I will set out the clauses or parts of the mediation agreement that are the genesis of the current application.

5. The orders made by the Tribunal (differently constituted) on 11 June 2024 are as follows:

   In order to give effect to the agreed settlement, the Tribunal orders by consent:

   1.By no later than 30 September 2024, the applicant [Ms Simcock] shall have the existing lean-to structure removed from Lot 1 and the area where the lean-to was attached to the main building made good.

   2.The carport of Lot 1 is otherwise approved in its current configuration.

   3.The applicant [Ms Simcock] has leave to otherwise withdraw the proceedings pursuant to s 46(1) of the State Administrative Tribunal Act 2004 [WA] and the proceeding[ ] [is] otherwise withdrawn.

6. The parties disagree as to whether Lot 1 had a 'patio' or a 'pergola' installed in the exclusive use area of Lot 1.  I am informed that in order to reach agreement, the parties settled by using the term 'pergola' in the mediation agreement.  Nothing in this decision turns on whether what was installed is a 'pergola' or is a 'patio.'  Therefore, for the sake of convenience, in these reasons I have used the term 'patio' as that is the term that Ms Simcock has used in her current application.

Ms Simcock's current application

1. Not long after the parties signed the mediation agreement in the previous proceeding (see above at [10] to [15]), Ms Simcock filed the current application (see above at [3] to [4]).

2. In the current application, Ms Simcock sets out the following orders that she seeks against the strata company under s 200(2)(n) of the ST Act to resolve the dispute:[7]

   … that the strata company is taken to have passed the following resolution(s):

   1.Acceptance the [a]pplicant has faithfully met all requirements and/or actions allocated to them as part of the Mediation Agreement made on June 11, 2024 regarding matter # CC1411/2023.

   2.The Patio in the front exclusive-use area at Lot 1, between residential building and carport is approved in its current form.

   3.The brickwork on the external wall of Lot 1 is confirmed as structurally sound.  Any further repair work or cosmetic adjustments shall be at [the] [s]trata [c]ompany cost.

   4.Strata [c]ompany shall provide written confirmation to the [a]pplicant stating there are no outstanding issues regarding Lot 1.

   [7] Exhibit 1 at page 40.  Ms Simcock did not press for orders 1 and 4 at the final hearing.

3. Ms Simcock contends that the strata company is reneging on the mediation agreement by claiming that the current patio is not approved by the strata company and that the maintenance and repair of the external wall of the residence of Lot 1, where an air conditioner was removed is her responsibility.[8]

   [8] Ms Simcock's final closing submissions filed on 28 August 2025 at pages 1 to 2.

4. In addition, Ms Simcock states that the strata company's actions reflect:[9]

   [a] blatant disregard and disrespect of Tribunal proceedings and for not adhering to the [mediation agreement] made in good faith.

   [9] Ibid.

5. The strata company's position, as previously stated, and repeated here is that Ms Simcock has not met all the requirements of the mediation agreement and therefore urges the Tribunal to dismiss the current application.

Evidence

1. As is usual with these types of matters before the Tribunal, all the documents filed with the Tribunal were taken into evidence (noting that submissions are not evidence).  In making my decision for the Tribunal, I have had regard to the documents which at the final hearing, the Tribunal marked as exhibits as follows:

   Exhibit 1Hearing book prepared by the Tribunal dated 29 July 2025 (184 pages);

   Exhibit 2BA14 Building approval certificate dated 12 April 2024 (two pages) (BA14) and BA18 Certificate of building compliance dated 12 April 2024 (four pages) (BA18) handed up by Ms Simcock at the final hearing; and

   Exhibit 3Photograph of the front of Lot 1 taken in approximately March/April 2016 handed up by Ms Simcock at the final hearing.

2. I had the benefit of a site inspection immediately before the final hearing on 12 August 2025 (final hearing).  Ms Simcock, Mr Wayne Simcock, Mr Hayden Evans, Ms Tuffin and Ms Ingrid Tuffin (Ms Tuffin's daughter) attended the site inspection.

3. I also had the benefit of hearing the oral evidence given by the following witnesses at the final hearing.

Expert evidence

(a)Mr Hayden Evans who has been building patios for about 13 years and prior to that he was in construction for about 35 years.  Hallmark Australasia currently employs him.  Mr Evans gave sworn evidence that he has a practising certificate for working as a builder,[10] that he was engaged by Ms Simcock to design and install the current patio in accordance with the mediation agreement, and that improvements were made with regard to water delivery to the ground in two areas were one flows into the garden in normal rain conditions and the other flows off into the culvert in the common property.  Further, Mr Evans gave evidence about the approval process with the City of Rockingham for installation of patios, his installation of the current patio and a comparison of it to the other patios at the strata complex.

(b)Mr Wayne Simcock who is Ms Simcock's father.  Mr Simcock has qualifications as an occupational health and safety adviser and worked as a safety adviser for many years.  Mr Simcock also has formal training and practical experience with hand tools, power tools and building construction techniques.  Mr Simcock currently operates Waikiki Home Maintenance Services.  Mr Simcock gave affirmed evidence about the condition of the original patio, his removal of the original patio, his installation of the lean-to structure and then its removal, and his involvement in the previous proceeding.

Non-expert evidence

(a)Ms Simcock gave sworn evidence about the original patio, the removal of the original patio, the installation and removal of the lean-to structure, the installation of the current patio, the building inspector written report prepared by Mr Steve Flint of Home Integrity Building Consultants on 27 June 2024, information received from the City of Rockingham, her involvement in the previous proceeding, and the challenges she faced in trying to comply with the ongoing requests from the council.

(b)Ms Tuffin representing 135 Kent Pty Ltd gave sworn evidence about strata meetings and the inspection of Lot 1 on 23 February 2025 as well as emails sent both to Ms Simcock and to Mr Evans notifying them that approvals were required, the information she received from the City of Rockingham and her involvement in the previous proceeding.

[10] ts 22 - 23, 12 August 2025.

Issues

1. After considering whether the Tribunal has jurisdiction to determine Ms Simcock's application, I will turn to consider the two key issues which Ms Simcock expressed as follows:[11]

   (a)whether the current patio installed in the front exclusive use area of Lot 1, between the residential building and carport, is approved in its current form (current patio issue); and

   (b)whether the replacement brickwork on the external wall of Lot 1 is confirmed as structurally sound and that any further repair work or cosmetic adjustments are the responsibility of the strata company (replacement brickwork issue).

   [11] Ms Simcock's final closing submissions filed on 28 August 2025 at page 1.

1. It will be necessary for me to ultimately consider whether to exercise the Tribunal's discretionary powers under s 199 and s 200 of the ST Act to make declarations and/or orders or both in order to resolve each of the two key issues.

2. During the course of the hearing, a number of other issues arose.  I briefly comment on the other issues below at [154] to [156].

Consideration

Jurisdiction of Tribunal

1. Although not challenged by the parties, I am satisfied that the Tribunal has jurisdiction to determine the dispute.  This is on the basis that:

   •Ms Simcock and the strata company are each a 'scheme participant' as that term is defined in s 197(2) of the ST Act;

   •the 'scheme dispute' as that term is defined in s 197(1) of the ST Act comprises the issues (see above at [24]), that is whether the patio is of the same design and material as previously existed on Lot 1 prior to the installation of the lean-to structure subject to any necessary council approval being obtained and whether the replacement brickwork on the external wall of Lot 1 where the air conditioner was removed is structurally sound; and

   •Ms Simcock as the owner of Lot 1, made the application to the Tribunal under s 197(4) of the ST Act.

2. Finally, the dispute between Ms Simcock and the strata company comes within the Tribunal's original jurisdiction (s 209 of ST Act).

Current patio issue

Background

1. By way of background, Ms Simcock states that when she purchased Lot 1 in 2013 there was a wooden patio covered with Alsynite (fibreglass polycarbonate roofing sheets) spanning the distance between the residence and the carport and the length between the carport pillars (original patio).

2. Ms Simcock explained that between 2013 and about 2021 the strata complex was managed by a strata manger.  Ms Simcock described the overall feel of the strata meetings as 'good' and 'informal.'[12]  Ms Simcock said that everyone was friendly and generally happy and amenable to the needs of the owners and items put forward at the meetings.  Ms Simcock recalls the discussion that was had about patios at the strata meetings where she was told:[13]

   by [Ms] Nisha [McGeough] [strata manager] that '[i]t's your exclusive use area.  It's up to you.

   [12] ts 47, 12 August 2025.

   [13] ts 48, 12 August 2025.

3. Ms Simcock said she took what Ms McGeough said as 'gospel'.[14]

   [14] ts 48 - 49, 12 August 2025.

4. Further, Ms Simcock stated that everyone that was at the strata meeting, knew about the installation of the lean-to structure and no issue was raised.  It was only in 2021 that the lean-to structure became an issue which is when the strata complex no longer had a strata manager.[15]

   [15] ts 48, 12 August 2025.

5. It is the evidence of Mr Simcock that the original patio was rotting, dilapidated and had become a serious safety hazard after storm damage and deemed it to be unsafe.[16]  Mr Simcock described the original patio as follows:[17]

   The original structure that was there when [Ms Simcock] purchased [Lot 1], it had a fascia board which was bolted into the - you know, it's the fascia underneath the gutter.  And then there was jarrah support purlins heading towards the west.  They were nailed in from an angle on the side.  They were not supported by any recognised construction bracket.  So those nails were rusting, and the holes had opened up in the wood so they were - you could actually move them.  So I viewed them as being, you know, very, very poor construction.  And they were then attached to a bearer beam that was supported from the two main brick pillars in the carport, and those support beams were just angled brackets which were mild steel with no coating.  So they were very rusted.  So it was a hazard from its poor construction and its environmental degradation over the years.  It did have Alsynite on it, and the Alsynite sheeting didn't provide a lot of protection, but the water that did rain on it poured back into the carport.

   [16] ts 36, 12 August 2025.

   [17] ts 37, 12 August 2025.

6. Then in comparing the original patio to the current patio, Mr Simcock stated:[18]

   There are several differences, but they are differences of improved quality.  As far as the design, there is no - no difference.  It's still bearers, purlins, brackets.  The improvement are the fixture to the fascia of the unit which is now done properly and the addition of the guttering and the downpipes is the only real difference.  The other thing is it now has full covering of Alysnite from one end to the other and a proper protective coating.  So the differences are all positive improvements.

   [18] ts 37 to 38, 12 August 2025.

7. Mr Simcock testified that he removed the original patio in or about 2013 without first seeking the approval of the strata company.[19]  The reason Mr Simcock did not seek approval was because:[20]

   it was obviously a hazard that required a level of urgency to address.

   ...

   I think from a public liability perspective you can remove a hazard if you can demonstrate it was a hazard. 

   [19] ts 40, 12 August 2025.

   [20] ts 41, 12 August 2025.

8. Mr Simcock now recognises that it would have been prudent for him to have informed the strata company of the removal of the original patio.[21]

   [21] Ibid.

9. After removing the original patio, Mr Simcock installed what the parties refer to as the 'lean-to structure.'  Mr Simcock conceded that written approval of the strata company was not requested, however Ms Simcock had:[22]

   talked to the strata people and they said, [Ms Simcock], go ahead and build whatever you like unless it looks ridiculous.

   [22] Ibid.

10. Mr Simcock said he installed the 'lean-to structure' which 'would be safe' and 'in keeping with the appearance with the other [lots].  Fair enough the pitch was different, but it was certainly not an eyesore'.[23]

    [23] Ibid.

11. According to Ms Simcock, the initial catalyst for the changes to the patio from the original patio design, was the strata company's insistence that all water run off had to be away from the residence (rather than flowing into the gutter on the residence as it was previously).  Ms Simcock explained that the subsequent decision to include guttering and downpipes is directly related to this requirement of the strata company.  Finally, Ms Simcock said that in the hope of achieving an agreeable outcome with the strata company, the current patio was designed to pitch the roof away from the residence to allow water run off to be managed with the guttering and downpipes.

Whether same person removed the lean-to structure?

1. The mediation agreement required Ms Simcock to:

   (a)…. arrange for the same person who installed the lean-to structure at Lot 1 […] to remove the lean-to and make good the area where the lean-to was attached to the [residence].

2. It is common ground that the lean-to structure was removed.

3. Ms Tuffin for the strata company challenges whether the 'same person' who installed the lean-to structure also removed it as required by the mediation agreement.

4. Mr Simcock testified that he originally installed the lean-to structure and that he, though his business Waikiki Home Maintenance Services, removed the structure in about September 2024.

5. Ordinarily the noun 'person' means any human being or an artificial body of people, having rights and duties before the law.[24]  As a human being, Mr Simcock is a 'person.'  Similarly, Waikiki Home Maintenance Services is a 'person' as it is an artificial body with rights and duties before the law.  While at law Mr Simcock and Waikiki Home Maintenance Services are two different persons, I accept that Mr Simcock, is the same human being who installed the lean-to structure and then removed it.

   [24] Macquarie Dictionary Online.

6. I find that the requirements as set out in (a) of the mediation agreement (see above at [40]) were complied with in that Mr Simcock is the same the person who installed the lean-to structure and then removed it.

7. As previously set out, but repeated here, order 1 of the Tribunal (differently constituted) of 11 June 2024 required the following:

   1.By no later than 30 September 2024, the applicant shall have the existing lean-to structure removed from Lot 1 and the areas where the lean-to was attached to the main building made good.

8. The above order is inconsistent with what is provided in the mediation agreement (see above at [40]).  This is because there is nothing in order 1 that requires the 'same person' who installed the lean­to structure to remove it.  Rather, the order simply requires Ms Simcock to have the existing lean-to structure removed from Lot 1 and to have the area where the lean-to structure was installed to be made good by 30 September 2024. 

9. In this case, to the extent there is an inconsistency between what is provided for in the mediation agreement and order 1, the order of the Tribunal must prevail.  This is because, at best, the mediation agreement is an outline of the understanding between the parties to settle the previous proceeding.  It does not set out in any detail the rights and obligations of each party such as the scope of works for the removal of the lean-to structure and the installation of the current patio and what is to happen if there is a failure to comply with the mediation agreement.  Further, it is not clear from the mediation agreement if the parties intended to be legally bound by it.

10. In conclusion, Mr Simcock is the human being (being a person) who testified that he installed the lean-to structure and that he also removed it through his business Waikiki Maintenance Services.  This satisfies the requirement of the mediation agreement and it also satisfied order 1 as the lean-to structure has been removed.  Therefore, the strata company's challenge that the 'person' who installed the lean-to structure was not the 'same person' as who removed it, fails.

Whether the current patio is of the same design and materials as the original patio?

1. The mediation agreement relevantly provides:

   (b)The [s]trata [c]ompany, as represented by the [c]ouncil […], will not object to the owner of Lot 1 installing a pergola of the same design and materials as previously existed on Lot 1 prior to the installation of the current lean-to structure, subject to any necessary [City of Rockingham] approval being obtained.  For the avoidance of doubt, this includes the pergola having polycarbonate roofing in the same manner as the previous pergola. 

2. Things got off to a bad start when on 7 August 2024, Mr Evans left a telephone and text message for Ms Tuffin and left his business card at her Lot 6.  The text message reads:[25]

   Before we get plans drawn up or do anything, I would like to meet with you on site and go over your concerns and share the design that I was discussing with [Ms Simcock] today.  I think you'll be rather happy with this concept and it will be very similar.  If not just about identical to the ones next door and further along towards your property. 

   Can we make a time this weekend morning or evening that best suits you?

   …

   [25] Exhibit 1 at page 147.

3. It is useful to start by setting out in some detail the correspondence concerning the current patio between Ms Simcock and Ms Tuffin/the council between August 2024 to November 2024 before turning to consider if the current patio is of the same 'design' and 'materials' as the original patio.

4. In reply to Mr Evans' phone call and text message, on 8 August 2024, Ms Tuffin answered as follows:[26]

   [26] Exhibit 1 at page 75.

   Further to your phone call on Wednesday 7 August 2024 property ownership at lot […] is as follows:

   •Strata [c]ompany 8069 owns external wall and doors, windows, ceiling, roof, concrete floor of the residential building; carport; front and back courtyards including garden and walls.

   •Front and back courtyards are [s]trata [c]ompany common property for the exclusive use of lot 1 owner.

   •A registered by-law states lot owner repairs and maintains exclusive use areas.

   •The registered by-law does not give ownership to lot 1 owner.

   •All matter pertaining to [s]trata [c]ompany and common property are determined by majority vote of the [c]ouncil […] unless a resolution without dissent vote is required as per the [ST] Act.

   To clarify the proposed structure at Lot 1 will be installed on [s]trata [c]ompany common property and once approved by [council] become the property of the [s]trata [c]ompany.

5. Ms Simcock immediately responded to Ms Tuffin on 8 August 2024.  She wrote in part:[27]

   …

   This (hopefully well-meaning) email has come across as intimidating and an assertion of power, rather than helpful.

   I am unsure how structure ownership came up as the latest discussion regarding approved paint colours?

   I have ensured the contractor [Mr Evans] they have not done anything wrong.  That once plans are ready they will be submitted for review and there is no foreseeable issues as we are building in accordance with the [mediation] agreement.

   The contractor has been engaged by [Lot] 1 owner for a new patio to be erected in the [e]xclusive [u]se [a]rea of [Lot] 1 following the current patio's removal, in accordance with agreements made in [the] SAT [m]ediation.

   These are initial discussions.  Once an agreement has been made the plans and request will be submitted for approval to both [the] [s]trata [c]ompany and Rockingham City Council.

   ….

   [27] Exhibit 1 at page 76.

6. The next correspondence was on 4 October 2024 when Ms Simcock emailed the council the following:[28]

   [28] Exhibit 1 at pages 76 to 77.

   …

   I hereby submit my intention to re-build the patio within the front common area of [Lot] 1 and am seeking [s]trata [c]ouncil approval to proceed.

   This is in accordance with item 2 of the […] Mediation Agreement which states:

   …

   Please find attached [hand drawn] graphic representation of the proposed patio, and outline by City of Rockingham concluding no council perimetry required for this work.

   Details as follows:

   •Patio to be along the same design as previous patio at [Lot] 1, and existing patios in complex

   •Materials:

   o   Wood Frame - painted Mission Brown

   o   Polycarbonate Sheeting on top

   •Patio to span gap between residence and Carport (approx. 8.m²)

   •Roof pitch to be 'flat' (slight pitch to allow water run off away from residence)

   •Roof height determined by residence eaves (<2.4m as per WA standard).

   This work will be conducted by Hallmark Australasia[.]

   Work currently planned to begin the first week of November (weather dependent).

   Please advise if there are any concerns with this proposal.

   …

7. Ms Tuffin replied on 14 October 2024 stating:[29]

   [29] Exhibit 1 at pages 78 to 80.

   …

   Please be advised your submitted plan is being reviewed by [the council].

   The process to date:

   At first glance the submitted plan appears to vary from the [mediation agreement][.]

   …

   Council of Owners concerns and questions received within timeframe given them:

   •For the avoidance of doubt, the [mediation] agreement [  ] is for a timber framed pergola with timber slatted permeable roof covered with removable polycarbonate clear sheeting (as was the design and materials of the original Lot 1 pergola).

   Any variation from the original structure will require a resolution without dissent vote by all lot owners.

   •Method of attachment of Gutters on the pergola.

   •Water run-off catchment, does this require a soak well?

   •Where is pergola being attached to residential building.

   •1. …

   •2. The submitted plan does not show how the polycarbonate roof is going to be attached to the pergola frame?  Will there be interior frame work for this to be attached to as this is not on the plan?

   •3. The water run off of a solid roof of this area is likely to be a future issue if not addressed and planned for correctly.  What is being put in place to accommodate the water run off of the polycarbonate roof and where is this excess water going to be re­directed to?  It appears by the plan the complete roof area is covered with a non-permeable product.

   Further process required

   •Your action is required to address all concerns and questions listed above and respond accordingly.

   •If plans differ to agreement made at [the Tribunal], [the] [c]ouncil [  ] will research obligations made in this agreement.

   •Legalities permitting from [the mediation] agreement plans may be taken to [the] City of Rockingham by [the] [c]ouncil [  ] for advice.

   •Proposed plan can be submitted to all Lot owners for resolution without dissent vote.

8. The following is Ms Simcock's reply to the council two days later on 16 October 2024:[30]

   [30] Exhibit 1 at pages 80 to 82.

   …

   I am very confused [as] to how the design of the patio is varying from what was expected?

   I am installing what was there before - a wooden patio with polycarbonate roofing, as agreed in the […] mediation.

   I want to ensure you all that I am committed to honouring what was agreed at [the] mediation in good faith and I want nothing more than an amicable outcome.

   I am not trying to vary anything at all from what the intention of the agreement was about.

   Responses to [c]ouncil [ ] questions:

   •For the avoidance of doubt, the agreement made at [the Tribunal] is for a timber framed pergola with timber slatted permeable roof covered with removable polycarbonate clear sheeting (as was the design and materials of the original Lot 1 pergola).

   •Any variation from the original structure will require a resolution without dissent vote by all lot owners.

   o   Firstly - the word 'permeable' was never part of the discussion at the […] mediation.

   o   Secondly - the word 'removable' was never part of the discussion at the […] mediation.

   o   The agreement is for a wooden frame with polycarbonate sheeting on top - as per previous installation.

   o   I have always referred to it as a patio - as by definition that is what it is.

   o   It was your and [Ms Linda Tion's] insistence that the word 'pergola' be used, which is why the mediator[s] ensured the additional information of polycarbonate sheeting on top was referred to.

   o   And so, the design is as agreed.

   •Method of attachment of [g]utters on the pergola

   o   Internal gutter within end run of polycarbonate

   o   Method = screw

   •Water run-off catchment, does this require a soak well?

   o   No soak well required - small m² area of roof

   •Method of attachment to carport and main building.

   o   Attach via barge board to facia.

   o   Attach to brick pillars

   o   Method = bolting

   •Where is pergola being attached to residential building

   o   Standard practice is to attach patio to the facia via barge board.

   •…

   •2.  The submitted plan does not show how the polycarbonate roof is going to be attached to the pergola frame?  Will there be interior frame work for this to be attached to as this is not on the plan?

   o   It will be screwed in to the wooden batons

   •3.  The water run off of a solid roof of this area is likely to be a future issue if not addressed and planned for correctly.  What is being put in place to accommodate the water run off of the polycarbonate roof and where is this excess water going to be re-directed to?  It appears by the plan the complete roof area is covered with a non-permeable product.

   I understand the timeframes associated with voting periods, which would be required if I was planning a structure outside the frame of what was agreed in the […] mediation.

   As the agreement stated there would be no objection.

   I will be forwarding this email to my builder for further confirmation to hopefully alleviate your concerns.

   …

9. Shortly thereafter, on 18 October 2024, Ms Tuffin replied to Ms Simcock, stating:[31]

   [31] Exhibit 1 at pages 82 to 83.

   …

   Yes, confirmation from the builder would be appreciated.

   The attached photos of Lot 7 pergola should clearly define the original design and material used.

   …

   It is to be noted that there was no mention of gutters being installed during mediation and there were no gutters on the original Lot 1 pergola hence the questions on all issues around the gutters - design, water volume [and] catchment, fixtures to the main structure.

   …

   It was not clearly shown on the design submitted the polycarbonate sheets will be attached on top of the wooden batons in the same manner of the previous pergola hence the questions of fixture of the polycarbonate sheets.

   City of Rockingham advice will be sought once we have the builder's responses on concerns of the proposed design.

   …

10. Ms Simcock replied to Ms Tuffin the same day, stating:[32]

    [32] Exhibit 1 at pages 83 to 84.

    …

    I received a phone call from the builder regarding this email query confirming my comments sent through to your queries are in line with the design and standard engineering practice. 

    As much as I would have liked confirmation from himself in writing, we can all appreciate building trades are stretched thin.

    I can assure you the design of the patio is in keeping with the original design of Lot 1.

    I cannot confirm that the original patio at Lot 1 was the same as Lot 7, I don't believe they were at all - apart from wood paint colour.

    Looking at the pictures of Lot 7, it seems there are a lot more overhead batons to Lot 7[']s pergola that what is seen in the partial pictures of Lot 1[']s patio - the ones we reviewed at [the] [m]ediation whilst making this agreement.

    Perhaps this is because Lot 1 had polycarbonate overhead and Lot 7 doesn't?

    Yes - the internal guttering is a modern feature that was not included on the original design, however, has been included for obvious reasons of water/drainage management.

    As my intentions are fully in line with the intention of the […] [m]ediation agreement I have no desire to wait at the mercy of the […] [c]ouncil voting.

    Voting is redundant as the agreement stated there would be no objection.

    …

    The work remains planned for execution first week in November.

    …

11. Mr Evans commenced installing the current patio on 16 November 2024 which resulted in the following email from Ms Tuffin to Ms Simcock:[33]

    …

    Strata [c]ouncillors have noticed a builder is on site building a pergola to have gutters.

    Please provide [s]trata [c]ouncil with:

    1.City of Rockingham building permit

    2.Builder[']s licen[c]e

    3.Builder[']s registration

    …

    [33] Exhibit 1 at pages 84 to 85.

12. On 17 November 2024, Ms Simcock replied to Ms Tuffin but addressed to the council stating:[34]

    [34] Exhibit 1 at pages 85 to 86.

    …

    Strata [c]ouncil has been made fully aware of the intention to re-build a patio at Lot 1 for some time, and was notified of the revised start date in an email sent 12/11/24.

    I was notified by my builder that you confronted them at the property on Sunday 17^th November claiming the work was not [s]trata [a]pproved.

    The build of the patio at Lot 1 is well within the bounds of the […] [m]ediation [a]greement[.]

    …

    You are trying to renege on this agreement.

    The addition of gutters to manage water flow has not wholly changed the patio design or intent of the structure that was agreed to.

    I have already provided adequate information to [s]t[r]ata [c]ouncil on the project plans and builder that are required for a project of this scale. 

    This work will be restarted as soon as arrangements [can] be made with the builder.

    If any further disruptions occur [s]trata [c]oucil will be liable for delay costs.

    …

13. Things then went quiet for a bit.  Then, on 3 February 2025, Ms Simcock wrote to the council informing that she had completed all aspects of the mediation agreement.  In addition, in that email Ms Simcock requested confirmation from the council that there are 'no active [s]trata issues relating to [Lot] 1'.[35]

    [35] Exhibit 1 at page 86.

14. This request from Ms Simcock resulted in Ms Tuffin sending the following email to Ms Simcock on 21 February 2025:[36]

    …

    To enable confirmation of Lot 1 issues as requested by Lot 1 owner, please be advised an inspection of work carried out on property owned by [the] [s]trata [c]ompany [  ] is necessary.

    The inspection will be undertaken by [the] […] council […].

    Inspection to be undertaken this Sunday morning.

    Inspection day and time: Sunday 23 February 2025 between 10am and noon.

    …

    [36] Exhibit 1 at page 87.

15. In summary, the strata company contends the current patio is 'non­compliant to the design agreed to'[37] in the mediation agreement.  This is because, according to Ms Tuffin:

    •design elements have been added since the mediation agreement was made on 11 June 2024;

    •the added design elements are not included in the patio descriptions/drawings submitted to the strata company by Ms Simcock;

    •the current patio is not the same design and materials as the original patio and other currently installed patios in the strata complex; and

    •the current patio is to span gap between residence and carport (approximately 8.2m²), roof pitch to be flat (slight pitch to allow water run off away from residence) and roof height determined by residence eaves (less than 2.4 metres).

    [37] The strata company's closing written submissions filed on 29 August 2025 at page 3.

16. In her email to Ms Simcock on 4 March 2025, Ms Tuffin states that the council:[38]

    … finds the newly installed patio at Lot 1 is not a replacement of the original design but is structurally different.

    [38] Exhibit 1 at pages 87 to 88.

17. In coming to this conclusion, Ms Tuffin wrote, in summary:[39]

    •Polycarbonate roof is higher than fascia level of main building and it was questioned whether water run-off would overflow into main building gutter.

    •Metal flashing patio ends hook over the main building gutter.  The concern was raised as to who would pay for removal and replacement of metal flashing to maintain or replace residential building gutter.

    •Water run-off from the downpipes enters directly into the carport which is the only access to the entrance of the residence at Lot 1, thereby creating a potential public liability risk for the [s]trata [c]ompany.

    •Water run-off from downpipes directs water to base of decking which is not flush with the ground allowing water seepage under the wooden decking, creating potential degeneration issues of the decking and main building brick wall.

    •There appears to be space to install a soak well within Lot 1.

    •The timber framework and polycarbonate sheeting are materials agreed to at […] mediation.  All other materials have been added since making [the mediation] agreement[.]

    [39] Exhibit 1 at pages 88 to 89.

1. Ms Simcock explained she did not reply to the email of 4 March 2025 stating that the email is a re-hash of questions that she has already answered and clarified previously.  Further, Ms Simcock contends that no matter what she does to comply with the seemingly endless requests from the council, in particular from Ms Tuffin, that the council will never be satisfied.[40]

   [40] Exhibit 1 at pages 90 to 91.

2. Turning to the expert evidence.  Mr Evans stated that the design of the current patio is 'very similar [i]f not just about identical to the ones next door and further along towards Ms Tuffin's property'.[41]  In giving evidence, Mr Evans' testified:[42]

   We proceeded to build the same patio which was permitted under that lot.  Just the pitch was changed.  And the pitch was basically taken from a way flowing back towards the house, where the strata [council] had concerns that that would overflow the gutters, even though we have witnessed today [at the site inspection] that most of the other patios there do have a lean on but are leaning back towards the gutter, which is in contrast to what was asked of [Ms Simcock] and what [Ms Simcock] showed me for the current patio that is built there.  So at his stage, the patio, as by direction of the strata [council] is now sloping away from the house.  It has gutters to prevent water and that running over the framework and causing rot and damage to the property.

   [41] ts 15, 12 August 2025.

   [42] Ibid.

3. Further, Mr Evans stated:[43]

   The patio that is currently there is of the same square metreage, same size, same material types as the – as the patio that is on this building permit [BA14 and BA18].  The only thing that is different to that is that – the pitch of the roof.

   [43] ts 25, 12 August 2025.

4. And further when Mr Evans was asked if a water plan was submitted to the City of Rockingham, he testified:[44]

   [The City of Rockingham] have never asked for one yet.

   [44] ts 28, 12 August 2025.

5. Mr Evans explained that he did not submit the building permit application to the City of Rockingham, rather Ms Simcock submitted the application, and that he installed the current patio per her set of plans.[45] 

   [45] ts 30 to 31, 12 August 2025.

6. Mr Evans testified the current patio is built to the current building code - the National Construction Code (NCC) where it is best practice to include guttering and downpipes.  In addition, Mr Evans gave evidence that gutters and downpipes on the current patio are necessary because the strata company required water run off from the patio to not flow into the gutter on the residence of Lot 1 (being the water run off course of the original patio) but rather away from the residence. 

7. Further, Mr Evans stated that in dealing with the City of Rockingham for the past 13 years, they give building approvals for patios but do not require information about gutters and downpipes.[46]

   [46] Ibid.

8. From a street view, Mr Simcock stated that the current patio looks the same as the original patio other than '[what] you have now is far superior'.[47]  In addition, Mr Simcock stated that the current patio covers the same square meterage as did the original patio, is made of wood, like the original patio, is painted mission brown and covered with polycarbonate sheeting like the original patio but with the following additions:[48]

   •metal flashings on the side bearers to protect the wood from the elements; and

   •gutters and two downpipes to manage water and run off directing the water towards its natural watercourse, being the stormwater drain in the common property.

   [47] ts 45, 12 August 2025.

   [48] Ibid.

9. The mediation agreement requires that the current patio have the same 'design' and 'materials' as the original patio. 

10. Ordinarily the noun 'design' means a preliminary drawing or sketch; a plan, outline, or model produced to show the look or function of a building, machine, or other object before it is made or built.[49]

    [49] Oxford Dictionary Online.

11. The noun 'materials' ordinarily means the matter or substance from which a thing is or may be made.[50]

    [50] Ibid.

12. The design of the current patio presented to the Tribunal is a hand drawn sketch or outline of what the current patio is to look like.[51]  It clearly shows guttering but does not show any downpipes.  Unfortunately, there is no design of the original patio before the Tribunal.  However, there is no contest between the parties that the original patio did not have guttering with downpipes.  This is because water run off from the original patio flowed into the gutter on the residence of Lot 1.

    [51] Exhibit 1 at page 78.

13. The parties appear to be at crossroads about whether water run off from the current patio had to be away from the gutter on the residence.  Ms Simcock and Mr Evans are clear that this is what the strata company required.  Ms Tuffin challenges this stating that water flowing back into the main gutter was not an issue, but it was with the lean-to structure because of the pitch of the roof.[52]  Unfortunately, there is nothing documented between the parties concerning this.  It is not necessary for me to resolve this difference, because later in these reasons I explain why it reasonable to exercise the Tribunal's discretionary powers to make a declaration and an order to resolve the dispute about the current patio which includes this difference.

    [52] ts 92, 12 August 2025.

14. For reasons set out later in these reasons (see below at [109] to [111]), I find the structure of the current patio does not include the finishings such as the flashings, guttering and downpipes.  Consequently, I find the current patio structure (that is apart from the finishings) is made of wood, painted mission brown and covered with polycarbonate sheeting.  This makes the materials of the structure (being the current patio but excluding the finishings) the same materials as the original patio.  Further, I find the design of the current patio is different from the original patio in that there are downpipes.

15. Finally, I find the design of the current patio is not the same design as the original patio and it could not be because the water run off from the original patio flowed into the gutter on the residence of Lot 1 but the water run off with the current patio flows away from the residence.  Further, although not clear from the hand drawn sketch, the pitch of the current patio is different from the original patio.  This was necessary according to Mr Evans to deal with the water run off.

16. In conclusion, while the design of the original patio is not before the Tribunal, it is uncontroversial that there were, at least, no downpipes on the original patio which there are on the current patio.  In circumstances where water run off is away from the gutter on the residence of Lot 1 and in accordance with the expert evidence of Mr Evans that it is best practice in accordance with the NCC to have guttering and downpipes on patios, latter in these reasons I explain why I exercise the Tribunal's discretionary powers to make a declaration and an order in respect to the current patio issue (see below at [157] to [170]).

Whether amended or updated building approvals required?

1. A building approval (BA14) and a certificate of building compliance (BA18) was issued by the City of Rockingham for a class 10a 'carport and patio' for Lot 1 on or about 12 April 2024.[53]  The BA18 refers to the following technical documents: 'All plans stamped 1.2024.851.1 - Expert witness structural inspection: Structerre Consulting'.  It is uncontroversial that these documents relate to the lean­to structure (that was removed in September 2024) and not the current patio.[54]

   [53] Exhibit 2.

   [54] ts 60, 12 August 2025.

2. Ms Simcock testified that she was informed verbally by an officer of the City of Rockingham that as the pitch of the current patio roof was only being altered, the previously approved permits (BA14 and BA18) remain valid for the current patio.  Unfortunately, Ms Simcock did not request the City of Rockingham to confirm this in writing.  However, Mr Evans corroborated Ms Simcock's evidence.  That is, Mr Evans testified that the current patio is covered by the previous BA14 and BA18 approved by the City of Rockingham because the current patio is of the same square meterage and with the same tie-in points as the previous lean-to structure.  Further, Mr Evans stated that the only change was the pitch which based on his experience with installing patios for over 13 years and dealing with the City of Rockingham did not require a new or amended BA14 and BA18.

3. In giving evidence that the removal of the lean-to structure and the installation of the current patio do not require an amended or new BA14 and BA18, Mr Evans explained:[55]

   If I take that patio that's still on the house, and I pull it off because I want to do the gutters, for example, and I put it back on, do I require a building permit?  The answer is no.  The same structure was identical, was there before.  Same.

   …

   So what I'm saying is if I pull one - if I put a gutter - if I put a new gutter on a house, and I think, '[t]hat gutter is not working very well.  I would like to extend it a little bit past there, where there was no gutter before', does not require a building permit.

   [55] ts 32, 12 August 2025.

4. Ms Tuffin for the strata company dismisses Ms Simcock's and Mr Evans' evidence and states the BA14 and BA18 are not valid for the current patio.  This is for the following two reasons.

5. First, according to Ms Tuffin, she and her daughter attended the offices of the City of Rockingham and spoke with an officer by the name of 'Jessica' who backs their claim that the current patio would not be approved.[56]

   [56] ts 79, 12 August 2025.

6. Second, Ms Tuffin submits that Ms Simcock provided no evidence of approval from the City of Rockingham or from the strata company for the current patio. In particular, Ms Tuffin says that as the BA14 and BA18 are dated on or about 12 April 2024, which predates the mediation agreement, is for a retrospective building approval under s 51 of the Building Act 2011 (WA) and for the construction of a building in 2017 and therefore are not for the current patio. Further, and in any event, Ms Tuffin says that no plans relevant to the BA14 and BA18 were ever provided to the council by Ms Simcock.

7. I do not accept Ms Tuffin's position for the strata company.  This is for the following reasons.

8. First, in giving evidence, Ms Tuffin was not able to provide any details of what Jessica's role at the City of Rockingham is, or what her expertise are.  Further, Ms Tuffin was not able to identify what information she provided to Jessica.  Because of this, I find Ms Tuffin's testimony unreliable in regards to her enquiry with the City of Rockingham.

9. I prefer the evidence of Mr Evans who testified that he has been dealing with the City of Rockingham for over 13 years in relation to installing patios.  Mr Evans' evidence corroborates the information Ms Simcock received from the City of Rockingham than an amended or new BA14 and BA18 is not required for the current patio.

10. Second, for reasons set out later in these reasons (see below at [109] to [111]), the structure of a patio does not include finishings (such as guttering and downpipes).

11. In conclusion, I find that Ms Simcock received approval from the City of Rockingham in the form of the BA14 and BA18 for the lean-to structure and that based on the expert evidence of Mr Evans there was no requirement for an amended or new BA14 and BA18 for the current patio as the only difference to the structure (which does not include the finishings) of the current patio is the pitch. 

12. If I am wrong, and an amended or new BA14 and/or BA18 is required, in this case, I would still exercise the Tribunal's discretionary powers to make a declaration and an order in regards to the current patio issue (see below at [157] to [170]).

Whether there is a breach of by-law 16?

1. On 23 May 1997, the Registrar of Titles registered a change of by­law (notification G483466) by amending the scheme by-laws to include a new by-law 16 as follows:

   16Exclusive use

   The registered proprietor of each lot will be entitled to the exclusive use enjoyment and will maintain and repair that part of the common property as marked on the attached sketch as being 'for the use of' each lot, respectively.

2. According to Form 1 of the strata plan, the areas and carports for exclusive use of lots are prefixed and numbered.  Each of the seven lots in the strata scheme has an exclusive use area.  In relation to Lot 1, the marking 'A1' and word 'carport' on the Form 1 is for the exclusive use of Lot 1.

3. Simply described, the current patio is located within the exclusive use area of Lot 1.  The strata company does not dispute this.

4. The proper construction of by-law 16 requires a consideration of the language of by-law 16, viewed in the statutory context of the sections of ST Act dealing with by-laws, and whilst recourse to surrounding circumstances may be permissible as an aid to construction it is necessary, particularly bearing in mind the public purpose of strata scheme by-laws, to exercise caution in going beyond the language of the by-law and the ST Act: The Owners of Strata Plan No 3397 v Tate(2007) 70 NSWLR 344; [2007] NSWCA 207.

5. In properly construing by-law 16, a reasonable person would understand the language of by-law 16 to mean that the owner is required to maintain and repair the common property which is designated the exclusive use area for the owner's lot.  This means, therefore, in relation to Lot 1 that Ms Simcock has:

   •the exclusive use and enjoyment of the area marked by way of cross hatching on Form 1 of the strata plan headed 'A';[57] and

   •the responsibility for the performance of the duty of the strata company under the ST Act to keep in good and serviceable repair, properly maintain and where necessary, renew and replace whether the damage or deterioration arises from fair wear and tear, inherent defect or any other cause, in respect of both the non­structural components of the exclusive-use area of Lot 1 which, as explained earlier in these reasons, include the flashing, guttering and downpipes as well as the structural components which include the steel columns, steel beams, joists and columns of the current patio.

   [57] Ibid.

6. Ms Simcock accepts that by-law 16 requires her to maintain and repair the exclusive use area where the current patio is installed (and she was required to maintain and repair any previous patio).  As the original patio was rotten and dilapidated, Ms Simcock had it removed in order to comply with by-law 16.  The strata company did not dispute this.

7. In conclusion, I find Ms Simcock's action in having the original patio, being rotten and dilapidated, and having the lean-to structure removed from the exclusive use area of Lot 1 as well as the installation of the current patio is not a breach of by-law 16.  It is, however, a requirement that Ms Simcock, as the owner of Lot 1 maintain and repair the common property area that is designated the exclusive use area of Lot 1 which includes both the structural and non-structural components of the current patio.

Whether a resolution without dissent is required?

1. As noted earlier in these reasons, but repeated here, Ms Tuffin, in her capacity as secretary of the council, emailed Ms Simcock on 4 March 2025.  In that email Ms Tuffin notes that an inspection of '[s]trata [c]ompany property of Lot 1' took place on 23 February 2025.  I understand that the inspection was of the exclusive use area of Lot 1 (inspection).

2. The following is reported about the inspection:[58]

   [58] Exhibit 1 at pages 58 to 60.

   Material used

   •Timber framework

   •Polycarbonate roof sheeting on top screwed to timber framework

   •Colorbond gutter along patio edge facing Bell Street

   •Colourbond downpipes x 2

   •Metal flashing patio ends x 2

   Patio design

   •Timber framework

   •Polycarbonate roof sheeting on top of timber framework

   •Gutters, downpipes and metal flashing patio ends are additions post SAT agreement.

   •Polycarbonate roof is higher than fascia level of main building and it was questioned whether water run-off would overflow into main building gutter.

   •Metal flashing patio ends hook over the main building gutter.  The concern was raised as to who would pay for removal and replacement of metal flashing to maintain or replace residential building gutter.

   •Water run-off from downpipes enters directly into carport, which is the only access to the unit entrance, creating a potential public liability risk for the [s]trata [c]ompany.

   •Water run-off from downpipes directs water to base of decking which is not flush with the ground allowing water seepage under the wooden decking; creating potential degeneration issues of the decking and main building brick wall.

   •It was observed there appears to be space to install a soak well within Lot 1.

   It is noted timber framework and polycarbonate sheeting are materials agreed to at SAT mediation.  All other materials have been added since making SAT agreement.

   The […] [c]ouncil finds the newly installed patio at Lot 1 is not a replacement of the original design but is structurally different.

3. Following that, Ms Tuffin set out the following actions that the council required Ms Simcock to undertake:[59]

   •Patio design as installed requires resolution without dissent vote as design changes have been made post […] [mediation] agreement.

   •Water run-off management to be addressed by Lot 1 owner.

   •Soak well installation is possible and installation to be at Lot 1 owner expense.

   [59] Exhibit 1 at page 90.

4. In giving evidence, Ms Tuffin explained that she (as chairman and secretary of the council), Ms Linda Tion (as treasurer of the council) and Mr Alan Knight (member of council) undertook the inspection to see if:[60]

   what was buil[t] aligned with what we agreed to [in the previous proceeding].

   [60] ts 74, 12 August 2025.

5. Ms Tuffin explained that neither she, nor Ms Tion nor Mr Knight have any qualifications in building or construction.  Ms Tuffin said she is retired; Ms Tion works in aged care and has done so for about 18 years and Mr Knight works in hydraulics and has done so for the past 15 years.[61]

   [61] ts 73, 12 August 2025.

6. Ms Tuffin said she came up with the idea of a soak well because she had water ingress into the kitchen area of Lot 6 and it was from water overflow from the gutters.[62]

   [62] ts 77, 12 August 2025.

7. Ms Simcock challenges the position of the strata company that a resolution without dissent of the strata company is required in regard to the current patio on the basis that the strata company contends that the current patio is 'not a replacement of the original design but is structurally different'.  This is because, according to Ms Simcock the only items not explicitly stated in the mediation agreement are the flashings, guttering and downpipes which, in her view, are not structural changes to the current patio.

Whether the current patio is structurally different?

1. The terms' 'structure' and 'structural' are not defined in the ST Act as explained in Erbrich and The Owners of 125 Herdsman Parade Wembley (Strata Plan 38066) [2020] WASAT 109 (Erbrich).  In that case, the Tribunal was considering whether timber floor decking boards and the timber pergola roof louvres were a 'structure.' 

2. In Erbrich the Tribunal held that the decking boards and louvres were not part of the integral structure of the building but rather were 'finishings.' The Tribunal explained at [49] to [54]:

   49As stated by the Tribunal in Sun[63] at [21], the term 'structure' is not defined in the ST Act apart from s 7(6) of the ST Act which provides that the term structure includes 'any prescribed improvement'.

   [63] The Owners of Arbor North Strata Plan 67510 and Sun [2020] WASAT 28.

   50This means that the ordinary meaning of 'structure' is to be used.  This was confirmed in the recent decision of The Owners of 5 Thor Street Innaloo Strata Plan 72475 and Maul [No 2] [2020] WASAT 81, where the Tribunal stated at [79] that the word 'structure' in the context of s 7 of the ST Act is to take its ordinary meaning.

   51Ordinarily the term 'structure' means built up as in a building.  This is supported by the decision in Sun where the Tribunal stated at [23]:

   The term 'structure' ordinarily means something which is constructed in the way of being built up as in a building.  In South Wales Aluminium Co Ltd v Assessment Committee for the Neath Assessment Area [1943] 2 All ER 587 Atkinson J stated at 592: ("Legal database - View: Cases: South Wales Aluminium Co Ltd v. Neath ...")

   …There is nothing to suggest here that the word 'structure' is not to be used in its ordinary sense … I suppose it means something which is constructed in a way of being built up as in a building; it is in the nature of a building.  It seems to me it is not in the nature of a building, or a structure analogous to a building, unless it is something which you can say quite fairly has been built up.  I do not think that is the only guide or the only test, but roughly, I think that must be the main guide: how has it got there? Is it something which you can fairly say has been built up[?]

   …

   53Whether a thing is a structure in any particular case is a mixed question of law and fact.  This was stated by the Tribunal in Sun at [26] as follows:

   Whether a thing is a structure in any particular case is a mixed question of law and fact having regards to the ST Act in context of which its meaning must be ascertained.

   54Giving the word 'structure' its ordinary meaning as set out in [51], the Tribunal finds that the timber floor decking boards and the timber pergola roof louvres are not structures but rather they are finishings. In other words, the Tribunal is of the view that the timber floor decking boards and the timber pergola roof louvres are not essential to the structure of the building but give a complete or finished appearance. 

   55In the Tribunal's view, it cannot be fairly said that the timber floor decking boards have been 'built up' in the way of being built up as in a building. The same is true for the timber pergola roof louvres, that is, they have not been 'built up' in the way of being built up as in a building. The mere fact that the timber floor decking boards and the timber pergola roof louvres are fixed to the building does not make them a part of the integral structure of the building. The timber floor decking boards and the timber pergola roof louvres cannot be equated to such items as the steel columns, steel beams, steel balustrades and timber joists that benefit the building which must be maintained by the strata company pursuant to its duty in s 35(1)(c) of the ST Act.

1. Following Erbrich, I find the flashing, guttering and downpipes attached to the current patio are not a structure but rather are finishings.  That is, the flashing, guttering and downpipes give a complete or finished appearance but are not part of the integral structure of the current patio.  In other words, the finishings have no structural elements and if they are removed, the 'building' (which include the steel beams, joists and columns of the current patio) would retain its structural integrity.

2. Earlier in these reasons (see above at [81]) I made the finding that the design of the current patio is not the same as the original patio as the pitch of the roof is different and there is at least two downpipes.  It is uncontroversial that there was no resolution put to a general meeting of the strata company with regard to the current patio, which the strata company contends is required. 

3. The mediation agreement does not expressly require Ms Simcock to obtain the approval of the strata company for the installation of the current patio in the exclusive use area of Lot 1.  Rather, the mediation agreement provides that the strata company 'will not object' to the installation of a patio of the same design and material as previously existed.  Ordinarily the process for seeking an 'approval' is different to the process for 'objecting'.

4. In any event, as stated by Beech J. in Wong v Reid [2016] WASC 59 at [22] an entitlement to exclusive use of land does not give rise to a right to construct or install. To be clear, without the written approval of all other owners and without the approval of the strata company, the current patio could not be constructed or installed on the common property unless it was of the same design and materials as the original patio (as provided for the in the mediation agreement).

5. Even though I have made the finding that the current patio is not of the same design as the original patio, in my view, it is not necessary to resolve this difference for the reasons set out below at [157] to [170] where I conclude that it is reasonable to exercise the Tribunal's statutory discretion to make a declaration and order to resolve the scheme dispute concerning the current patio.

6. The other issue that the council requires Ms Simcock to address, that of water run off management including installation of a soak well is considered in the next section at [117] to [121] below.

Whether water run off onto the carport concrete floor is of concern?

1. Both during the site inspection and in giving evidence, Ms Tuffin claimed that water run off on to the carport concrete floor of Lot 1 is a public liability risk for the strata company.  However, Ms Tuffin failed to provide any expert evidence to support her position.

2. During the site inspection, Mr Evans and Mr Simcock demonstrated where water disperses from the guttering and downpipes by pouring a bucket of water into the gutter.  Ms Simcock described the water dispersing in the following manner:[64]

   a.North downpipe dispersed onto the driveway [and] flowed out and away from the property towards existing storm water drains.

   b.South downpipe dispersed onto the driveway [and] flowed towards the garden bed at the South end of the carport.

   c.Any amount of water that makes its way under the existing deck drains freely away in the loose soil that exists under the deck[.]

   [64] Ms Simcock's closing written submissions filed on 28 August 2025 at page 8.

3. Mr Evans in giving evidence stated the following about what he described as the 'saga around water discharge':[65]

   The previous patio ran the water straight onto the area in question where the downpipes are.  It would have splattered and gone everywhere.  There could have been slip hazards or whatever.  At the moment, this general water from that downpipe runs down in a controlled manner.  But, and there's a big but, there's a big gap between the roof of the existing patio and the carport.  The water would bellow in there no matter what we put in there.  So we're arguing about nothing.  The gutters help.

   …

   Basically, in a nutshell, the gutters are an argument about nothing.   Doesn't require a building permit to put a gutter on a patio.

   [65] ts 32, 12 August 2025.

4. The openness of the carport of Lot 1 (as for other lots) is evident when looking at the photographs.[66]  Due to this openness when it rains, there will be water run off on to the carport's concrete floor.  Further, during the site inspection it was obvious that many, if not all, of the carports in the strata complex are exposed to the elements.

   [66] Exhibit 1 at pages 5 to 10.

5. In this case, I find that it was appropriate for Ms Simcock to have the current patio finished with guttering and downpipes in accordance with the expert evidence of Mr Evans.  Further, I find that the guttering and downpipes adequately capture the storm water and is dispersed as described by Ms Simcock (see above at [118]).

Whether aquaplaning is of concern?

1. Ms Tuffin claims aquaplaning is of concern to the strata company due to a mixture of water run off from the guttering and oil spots in the carport.  It is Ms Tuffin's evidence that she has seen aquaplaning happen before and that it is very 'scary.'[67]

   [67] ts 106 to 107, 12 August 2025.

2. Ms Simcock described Ms Tuffin's concern as 'nonsense' on the basis that aquaplaning is generally more likely to occur when a vehicle is driven at about 70 kilometres/hour and is subject to the tyre tread depth, tyre pressure and the amount of water on the road surface.[68]

   [68] Ms Simcock's closing written submissions filed on 28 August 2025 at pages 8 to 9.

3. Aquaplaning (also known as hydroplaning) occurs when a layer of water builds up between the tyres of a vehicle and the road surface causing a loss of traction and control.  In other words, vehicle tyres encounter more water than they can displace.  The water pressure lifts the tyres off the road surface, creating a thin layer of water between the tyre and the road surface.  This loss of contact with the road surface results in a loss of traction, making the vehicle difficult to steer, brake, or accelerate effectively.  Factors that contribute to aquaplaning include driving at higher speeds, worn or improperly inflated tyres with a shallow tread depth and the amount of water on the road surface.

4. The usual approach when driving a vehicle along the road surface into a carport would not be at high speeds.  Whether the vehicle has properly inflated types and suitable tread can only be determined on a case by case basis.  Finally, the amount of water on the road surface, in this case, the carport, as evidenced by where the water disperses from the downpipes during the on-site inspection does not appear to puddle within the carport but either travels to the culvert on the common property, under the wooden deck or into the garden.

5. In conclusion, apart from Ms Tuffin's view, which is not supported by any evidence, I find Ms Tuffin's concern about aquaplaning is without merit.

Conclusion - current patio issue

1. In conclusion, Ms Simcock remarked:[69]

   [T]he [s]trata [c]ompany want to have their cake and eat it too by not allowing [the] use of gutters [for water run off to flow into the gutters] on the residence and then not being satisfied with a separate gutter on the patio.

   [69] Exhibit 2 at page 4.

2. Ms Tuffin accepts that the patios in the strata complex are not all the same.  In giving evidence, Ms Tuffin said the pergola at Lot 5 had a polycarbonate roof, the pergola at Lot 6 had shade cloth and the pergola at Lot 7 had no roofing.[70]

   [70] ts 12, 12 August 2025.

3. In conclusion, I find the structure of the current patio is not of the same design as the original patio as there is the addition of finishings comprised of flashings, guttering and downpipes and the pitch of the roof is different. 

4. While Ms Simcock strongly asserts that it was the council that required for the water run off to be away from the residence of Lot 1,[71] and Ms Tuffin contends that water run off flowing back into the main gutter was only an issue with the lean-to structure because of its pitch,[72] this difference between the parties is resolved by exercising the Tribunal's discretionary powers to make a declaration and order (see below at [161] to [170]).

Replacement brickwork issue

Background

[71] ts 20, 12 August 2025.

[72] ts 92, 12 August 2025.

1. It is common ground that an in wall air-conditioning unit was removed from the external wall of Lot 1 in about June 2018 and replacement brickwork was undertaken to fill in the void left by the removal of the air-conditioning unit.  Further, the parties agree that the external wall of Lot 1 is common property.

2. It is also uncontroversial that approval of the strata company was not obtained by Ms Simcock at that time to remove the air-conditioning unit.  Further, it is common ground that the replacement bricks and mortar are not an exact match to the existing wall making the repair work easily visible as witnessed during the site inspection.

3. The mediation agreement requires:[73]

   (e)In respect of the replacement brickwork on the external wall of Lot 1 undertaken as a result of the removal of previous air­conditioning unit, the owner of Lot 1 shall at her expense have the replacement brickwork inspected by a registered building inspector to confirm whether the replacement brickwork is structurally sound and, if not, will pay for any remedial works identified by the building inspector.

What does the expert report say?

[73] Exhibit 1 at page 11.

1. Ms Simcock engaged Home Integrity Building Consultants to undertake the inspection.  Mr Steve Flint, a registered builder inspected the external wall of Lot 1 on 27 June 2024.  Mr Flint was not called to give evidence at the final hearing.  Rather, Ms Simcock relied on his 'Building Defect Inspection Report' dated 27 June 2024.  In that report, Mr Flint states that the purpose of the inspection was to:[74]

   check reported wall cracking and non-approved building work.

   [74] Exhibit 1 at page 29.

2. In his report, Mr Flint described the overall condition of the building as being average, that is consistent with buildings of roughly the same age and that there will be some building elements that require some repair and/or maintenance.  Further, Mr Flint reported that the occurrence and/or extent of defects in the building is as he would anticipate when compared to a comparable building of roughly the same age that has been maintained as expected.[75]

   [75] Exhibit 1 at pages 28 to 38.

3. In viewing the 'west elevation,' Mr Flint noted the previous brickwork remedial work is evident.  Mr Flint also noted the face bricks and mortar repair colour were evident giving a 'compromised finish'.  In referring to the guidance notes to the NCC regarding masonry repair work, Mr Flint noted that a perfect mortar colour match may not be possible and differences may diminish over time.

4. Mr Flint also noted the appearance of wall cracking in some areas to which he recommended maintenance/repair.  Mr Flint concluded the appearance cracking (crack width) to be a category '2' which is not a defect.  Mr Flint wrote that a category '2' crack is 'not structural'. 

5. In conclusion, Mr Flint made no recommendations (apart from maintenance/repair of wall cracking in some areas) and opined that no further inspection was required.[76]

   [76] Ibid.

6. On 4 March 2025, Ms Tuffin wrote to Ms Simcock following the council's inspection on 23 February 2025.  In her email, Ms Tuffin wrote:[77]

   On inspection of the external brick wall to main building [Lot 1] it is noted:

   •Appears poor workmanship used where air conditioner was removed and brickwork replaced.

   •Appearance of the external brick wall has been compromised due to poor workmanship as documented in building inspector report.

   •The external wall has several areas of cracking around the area where the air conditioner was removed.

   •The building inspector report documented external brick wall cracking is obvious and maintenance/repair is required.

   [77] Exhibit 1 at page 60.

7. Ms Tuffin concluded her email by stating that the 'external brick wall cracking around areas where air conditioner was removed is to be repaired at Lot 1 owner expense'.[78]

   [78] Ibid.

8. At the final hearing Ms Tuffin, for the strata company, initially did not accept Mr Flint's report.  Instead, without any independent building expert evidence, Ms Tuffin asserted that the brickwork cracking was structural and remedial work is necessary at Ms Simcock's expense.  When questioned, Ms Tuffin (correctly) conceded that Mr Flint in his report only 'recommended' rather than 'required' maintenance/repair of the wall cracking in some areas.  Ms Tuffin also (correctly) conceded that Mr Flint's report did not suggest the replacement brickwork was structurally unsound.

9. Notwithstanding the above, Ms Tuffin, for the strata company, refused to concede this issue, and therefore required the issue to be heard and determined.  In her written closing written submissions, Ms Tuffin refers to the guidance notes to the NCC included in Mr Flint's report which provides:

   Category 2 cracks should be monitored for a period of 12 months after appearing.  If, after the monitoring period, such cracking is rated as category 3, it will be considered a defect and will require rectification.

   to assert there is no evidence that Ms Simcock monitored the category 2 cracking to ensure the cracking is now not rated a category 3 and requiring rectification.[79]

   [79] Exhibit 1 at page 5.

10. Finally, Ms Tuffin in her closing written submission asserts that the strata company should not bear the cost of repairing the cracks in the wall where the air-conditioning unit was removed when Ms Simcock:[80]

    •did not seek strata company approval to remove the air­conditioning unit;

    •engaged family members to make alteration to the common property;

    •permitted poor workmanship to strata company property; and

    •has not been transparent with work being carried out at Lot 1.

    [80] Ibid.

11. While it would have been preferable for Ms Simcock to call Mr Flint to give evidence at the final hearing, Ms Tuffin failed to provide any expert building inspector evidence.  Rather, Ms Tuffin relied on her and the other council members, none of whom are registered building inspectors, builders or involved in the building industry, to carry out the inspection.  In such circumstances, I accept the independent building inspection report of Mr Flint and I find that, while the replacement brickwork may not be aesthetically pleasing as there is not a perfect brick and mortar colour match in view of the building's age and that there is the appearance of wall cracking in some areas, there is nothing structurally unsound about the replacement brickwork. 

12. Ms Tuffin's assertion that Ms Simcock failed to provide evidence of her monitoring the category 2 cracks for a period of 12 months was not put to Ms Simcock during the final hearing.  In any event Ms Tuffin's assertion is without merit for the following reasons.

13. First, the guidance notes to the NCC to which Ms Tuffin refers simply states that the cracking 'should' be monitored rather than 'must' be monitored.  While it may be prudent to monitor the cracking, there is no obligation on Ms Simcock to do so under the guidance notes.

14. Second, the mediation agreement only requires Ms Simcock to have a registered building inspector inspect the replacement brickwork and to confirm whether or not it is structurally sound, and if it is not to pay for the remedial works.  There is nothing in the mediation agreement which obligates Ms Simcock to undertake monitoring of the replacement brickwork or appearance cracking for any period of time. 

15. The other issue raised by Ms Tuffin that Ms Simcock should be responsible for cost of repairing the cracks in circumstances including that she did not seek strata company approval for the removal of the air­conditioning unit is not part of the mediation agreement. However, the external wall of Lot 1, which the parties agree is common property, is required to be maintained and repaired by the strata company in accordance with s 91(1)(c)(i) of the ST Act which relevantly provides:

    (1)A strata company must –

    …

    (c)keep in good and serviceable repair, properly maintain and, if necessary, renew and replace –

    (i)the common property, including the fittings, fixtures … used in connection with the common property; and

    …

    and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.

16. I find that Ms Simcock has complied with the mediation agreement in respect of the replacement brick work as set out in item (e) of the mediation agreement (see above at [133]).

Conclusion - replacement brickwork issue

1. Ms Simcock's position is that Mr Flint's report is clear that there is no structural concern regarding the external brick wall of Lot 1 where the air-conditioning unit was removed.

2. It appears from Ms Tuffin's closing written submissions that she seeks to require Ms Simcock to monitor the category 2 cracking for a period of 12 months.  Nothing in the mediation agreement requires this.  Further, nothing in the guidance notes to the NCC referred to by Mr Flint makes monitoring of cracking obligatory.  It would therefore be unreasonable for the strata company to require, in this case, that Ms Simcock as the owner of Lot 1 to continue monitoring common property and to repair it unless such was provided for in an agreement or there is in place an exclusive use by-law in regards to the external wall of Lot 1.  Neither is the case here.  In short, Ms Tuffin's assertions are without merit.

3. I find, following Mr Flint's report that he inspected the replacement brickwork on the external wall of Lot 1 and that he concluded that the replacement brickwork is structurally sound.  There was no objective evidence, such as from a building inspector, to the contrary from the strata company.

4. Further, I find the strata company must maintain/repair the category 2 cracking on the external wall of Lot 1 in accordance with its obligation under s 91 of the ST Act to keep in good and serviceable repair, properly maintain and, if necessary renew and replace the common property and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.

Other issues

1. It became apparent during the final hearing, as asserted by Ms Tuffin that there are 'changes made at Lot 1 that have not been put forward to [the] [s]trata [c]ompany for approval'.[81]

   [81] Exhibit 1 at page 160.

2. There are 17 items listed by the strata company in a letter dated 20 February 2023 to Ms Simcock's lawyers.[82]  Ms Tuffin appears to take particular issue with a ceiling manhole with an in-built ladder in the ceiling space of the living area and the paving of the back courtyard area.

   [82] Exhibit 1 at page 159.

3. Apart from the current patio issue and the replacement brickwork issue, which are dealt with in these reasons for decision, the other items are not before the Tribunal.  Consequently, in regards to the other issues as set out in the letter of 20 February 2023, in my view, it would be appropriate for the council to work through and resolve any differences with Ms Simcock, with the assistance of the new strata manager appointed on 15 August 2025, in order to avoid any further disputes and litigation.

Exercise of discretion

What are the principles in exercising the Tribunal's discretion to make declarations and orders?

1. The power of the Tribunal to make orders to resolve a scheme dispute or the proceeding under s 200(1) of the ST Act is a statutory discretionary power. Similarly, the power of the Tribunal to make a declaration under s 199(3) of the ST Act is a statutory discretionary power.

2. The Tribunal may make a declaration concerning a matter instead of an order or in addition to any order the Tribunal makes in the proceeding (s 199(1) of the ST Act).

1. In Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2024] WASAT 121, the principles and factors to consider in determining whether or not to exercise the Tribunal's powers under s 199(3) and s 200(1) of the ST Act are summarised at [60] to [67]. I adopt those principles and factors and have applied them in this case in my exercise of the Tribunal's discretionary powers.

2. Importantly, as stated in previous decisions of the Tribunal, including in Carr and The Owners of 252 Cosy Corner Road Kronkup Survey-Strata Scheme 55030 [2024] WASAT 132, the discretion conferred by s 200(1) of the ST Act to make an order is not limited by any mandatory considerations. I adopt the statements made in [138] to [140] of that decision.

Whether to exercise discretion - current patio issue?

1. In Hopkins and Clayton [2007] WASAT 255 it was held that the management of the strata company is best left to the strata company and that the Tribunal should not too readily impose its own views. However, in The Owners of Mandurah Terrace Apartments Strata Plan 17113 and Russell [2009] WASAT 1 it was held that where there is a deadlock between the members of the strata company who are the co-owners of the common property, the ST Act intends that there be a practicable means to break that deadlock.

2. There is of course no requirement for an owner to assist another owner or to assist the strata company, or that an owner acts altruistically or sympathetically at the expense of their own interests: Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167.

3. The orders sought by Ms Simcock (as set out above at [17]) were drafted without the assistance of legal advice.  However, it is clear that Ms Simcock urges the Tribunal to make an order that the strata company has passed a resolution without dissent approving the current patio on the common property which Ms Simcock has exclusive use of and is subject to by-law 16 in order to resolve the impasse between the parties.

4. In considering the interests of both Ms Simcock and the strata company (which has the responsibility to control and manage the common property for the benefit of all the owners), it is reasonable and necessary, in my view, to intervene to break the impasse between the parties. The intervention is by way of exercising the Tribunal's statutory discretionary powers to make a declaration under s 199(3) of the ST Act and an order under s 200(1) of the ST Act to resolve the current patio issue. The reasons for this are as follows.

5. First, there is a real issue concerning actions taken by the strata company which Ms Simcock testifies is not acting in the best interests of the strata complex.  The issue in respect of the current patio is a live issue and it is not a hypothetical or theoretical issue.

6. Second, Ms Simcock who seeks the order has a real interest in this matter.  This is because she has incurred cost to remove the lean-to structure and to install the current patio in an endeavour to comply with the mediation agreement. 

7. Finally, there is utility or benefit in making a declaration and an order as some real consequences must flow for the parties.  There is a real disharmony between Ms Simcock and the strata company - in particular with Ms Tuffin.  This disharmony has persisted since 2021 according to Ms Simcock and that the conflict continues with the consequence they are unable to agree a way forward.

8. Reflecting back on the orders sought by Ms Simcock, I will make the following declaration and order:

   (a)a declaration that the patio installed in the exclusive use area of Lot 1 in or about November 2024 which includes finishings including the flashings, guttering and downpipes complies with the requirements of paragraph (b) of the agreement reached by the parties on or about 11 June 2024; and

   (b)an order that the strata company is to be taken to have passed as a resolution without dissent the patio installed in the exclusive use area of Lot 1 (inclusive of the finishings including the flashings, guttering and downpipes) in or about November 2024 and that this order is taken to have come into effect in or about November 2024 and is to remain in force until the earlier of when the patio is removed or a further order is made by the Tribunal.

9. The order for the resolution without dissent will be taken to have been made in or about November 2024 when the current patio was installed and will continue until a further order is made by the Tribunal or the current patio is removed (s 200(4) and s 200(7) of the ST Act).

10. In conclusion, by making the above declaration and orders, this should create certainty between Ms Simcock and the strata company about the current patio and thus reduce any further disputes and litigation.

Whether to exercise of discretion - replacement brickwork?

1. The orders sought by Ms Simcock (see above at [17]) are that the strata company has passed a resolution that the replacement brickwork is structurally sound and that it is the responsibility for the strata company to maintain/repair the appearance cracking in the brickwork.

2. It is reasonable, in my view, to exercise the Tribunal's statutory discretionary powers to make a declaration under s 199(3) of the ST Act and an order under s 200(1) of the ST Act to resolve the replacement brickwork issue. The reasons for this are as follows.

3. First, there is a real issue concerning actions taken by the strata company which again Ms Simcock testifies is not acting in the best interests of the strata complex.  Again, this is a real issue concerning the replacement brickwork and it is not a hypothetical or theoretical issue.

4. Second, Ms Simcock who seeks the order has a real interest in this matter.  This is because she has incurred cost to engage Home Integrity Building Consultants to inspect and report on the replacement brickwork as to its structural soundness in compliance with the mediation agreement.

5. Finally, there is utility or benefit in making the declaration and order as some real consequences must flow for the parties.  In my view, a declaration and an order signals that the strata company's behaviour in respect of the replacement brickwork issue is not acceptable and is to be rectified promptly.  I will make the following declaration and order:

   (a)a declaration that the written report of Home Integrity Building Consultants dated 27 June 2024 which sets out findings, on the inspection of the replacement brickwork on the external wall of Lot 1 where an air-conditioning unit was removed, that:

   (i)it is evident there are different face bricks and mortar repair colour giving a compromised finish; and

   (ii)appearance cracking observed is considered a category 2 cracking, and not structural and recommends that maintenance/repair is undertaken;

   complies with the requirements of paragraph (d) of the agreement reached by the parties on or about 11 June 2024; and

   (b)an order that the respondent must undertake maintenance/repair of the external wall of Lot 1 where there is appearance cracking (category 2) and that this order is taken to have come into effect on 27 June 2024 and is to remain in force until a further order is made by the Tribunal.

6. In conclusion, by making the above declaration and order, this should create certainty between Ms Simcock and the strata company in regards to the replacement brickwork and thus reduce any further disputes and litigation.

Conclusion

1. Since about 2021, the strata complex has been self-managed.  That is, up to very recently (15 August 2025) there has been no strata manager.  This self-management, according to Ms Simcock, has created more disharmony, animosity and pure frustration than she had ever seen throughout the 12 years she has been the owner of Lot 1.[83]

   [83] Ms Simcock's closing written submissions filed on 28 August 2025 at page 13.

2. Ms Simcock says she is trying to appease the strata company:[84]

   … that is seemingly never satisfied […] [and] is no longer acting in the best interest of the [strata] complex but to its own self-gratifying need for power and control.

   [84] Ibid at page 4.

3. Ms Simcock asserts that despite the state of disrepair of other lots within the strata complex, the strata company is overreaching and is targeting action against her Lot 1.  Ms Simcock described the strata company as 'nit-picking' and appearing to 'revel in their position of power' including that it is only Lot 1 that required a building permit for the patio yet other lot owners in the strata complex do not have any building permit for their patios.[85]

   [85] ts 21, 12 August 2025.

4. Ms Tuffin for the strata company disagrees with Ms Simcock's view. 

5. Ms Tuffin described an 'ongoing usual behaviour' where Ms Simcock engages family members and associates to make changes to the common property without relevant approvals including Mr Simcock removing the original patio, installing the lean-to structure and decking without prior approval.  Ms Tuffin in her letter of 10 July 2025 was clear:[86]

   The […] [c]ouncil cannot give approval to [Ms Simcock's] patio as design elements have been added to the patio since the [mediation] agreement was made.

   … The added design elements could cause detriment to the [s]trata [c]ompany.

   …

   There were changes made at Lot 1 since purchased by [Ms Simcock] in June 2013 that have not been put forward to [the] [s]trata [c]ompany for approval.

   [86] Exhibit 1 at page 160.

6. It is concerning for the strata company that it does not know the extent of the alterations made to Lot 1 because according to Ms Tuffin, the information received from Ms Simcock is non-transparent or is misleading and requests for information is ignored.  The consequence, according to Ms Tuffin, is that it is impossible for the council to keep a true and accurate record of alterations to the common property (the exclusive use area) of Lot 1.[87]

   [87] Strata company's closing written submissions filed on 29 August 2025 at pages 6 to 7.

7. Finally, Ms Tuffin says that any attempts to request rectification of unapproved works at Lot 1 has created ongoing hostility from Ms Simcock and her associates towards the council which has resulting in the engagement of a strata manager from 15 August 2025.

8. I find that Ms Simcock took the mediation agreement seriously and endeavoured to satisfy its requirements in regards to the current patio issue and the replacement brickwork issue. 

9. On the other hand, I find the approach of the strata company was unreasonable and without merit in respect of the replacement brickwork issue.  The suggestion that Ms Simcock is required to monitor the external wall of Lot 1, which is common property, and to undertake maintenance and repair of it is without merit.

10. In regards to the current patio issue the parties reached an impasse which they could not resolve because the 'design' of the current patio is not the same as the original patio due to the pitch of the roof and the finishings which includes the downpipes.

11. No doubt Ms Simcock finds the council and in particular Ms Tuffin unreasonable in circumstances where the council is seeking to ensure all 'changes' to Lot 1 have the necessary approvals by the strata company.  Similarly, no doubt Ms Tuffin finds Ms Simcock as being unreasonable in circumstances where Ms Simcock says that she had to make the current application in order to get a decision from the Tribunal to 'clear the deck' and to ensure that 'there are no more instances of the [s]trata [c]ompany overreach of authority'[88] when she again attempts to sell her Lot 1.  It is unfortunate that the parties were not able to resolve their differences without the intervention of the Tribunal.

    [88] Exhibit 1 at page 62.

12. The Tribunal's objectives requires that it achieve the resolution of matters according to the substantial merits of the case with as little formality and technicality as is practicable (s 9 of the SAT Act).

13. Reflecting back on the findings that I made in relation to the two keys issues (see above at [4]), it is reasonable in all of the circumstances of this case, to exercise the Tribunal's discretionary powers under s 199(3), s 200(2), s 200(4) and s 200(7) of the ST Act to make the following declarations and orders, for all of the reasons explained earlier in these reasons (see above at [161] to [176]) including to create certainty for the parties and to minimise any further disputes and litigation.

Orders

I make the following orders:

The Tribunal orders:

1.Pursuant to s 199(3) of the Strata Titles Act 1985 (WA) the Tribunal declares:

(a)the patio installed in the exclusive use area of Lot 1 in or about November 2024 which includes the finishings comprised of flashings, guttering and downpipes complies with the requirements of paragraph (b) of the agreement reached by the parties on or about 11 June 2024; and

(b)the written report of Home Integrity Building Consultants dated 27 June 2024 setting out its findings of the inspection of the replacement brickwork on the external wall of Lot 1 where an air-conditioning unit was removed, that: (i) it is evident there are different face bricks and mortar repair colour giving a compromised finish; and (ii) appearance cracking observed is considered a category 2 cracking, and not structural and it is recommended that maintenance/repair is undertaken complies with the requirements of paragraph (d) of the agreement reached by the parties on or about 11 June 2024.

2.Pursuant to s 200(2), s 200(4) and s 200(7) of the Strata Titles Act 1985 (WA) the Tribunal orders:

(a)the respondent is to be taken to have passed a resolution without dissent that the patio installed in the exclusive use area of Lot 1 (inclusive of the flashings, guttering, downpipes and any other finishes) in or about November 2024 and that this order is taken to have come into effect in or about November 2024 and is to remain in force until the earlier of when the patio is removed or a further order is made by the Tribunal; and

(b)the respondent must undertake maintenance/repair of the common property external wall of Lot 1 including the appearance cracking (category 2) and this order is taken to have come into effect on 27 June 2024 and is to remain in force until a further order is made by the Tribunal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R PETRUCCI, MEMBER

7 OCTOBER 2025