THE OWNERS OF 25, 27, 29, 31 PARRY STREET FREMANTLE STRATA PLAN 6413 and EFFICIENT BUILDING TEAM PTY LTD - [2023] WASAT 3

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   THE OWNERS OF 25, 27, 29, 31 PARRY STREET FREMANTLE STRATA PLAN 6413 and EFFICIENT BUILDING TEAM PTY LTD [2023] WASAT 3
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   7 NOVEMBER 2022 AND 8 NOVEMBER 2022
DELIVERED          :   2 FEBRUARY 2023
FILE NO/S:   CC 1960 of 2021
BETWEEN:   THE OWNERS OF 25, 27, 29, 31 PARRY STREET FREMANTLE STRATA PLAN 6413
First Applicant
ANTHONY ELTON ANDERSON
Second Applicant
ROSSKEEN PTY LTD
Third Applicant
PERTH RECRUITMENT SERVICES PTY LTD
Fourth Applicant
AND
EFFICIENT BUILDING TEAM PTY LTD
Respondent

FILE NO/S: CC 2028 of 2021
BETWEEN: ANTHONY ELTON ANDERSON
Second Applicant
THE OWNERS OF 25, 27, 29, 31 PARRY STREET FREMANTLE STRATA PLAN 6413
Third Applicant
ROSSKEEN PTY LTD
Fourth Applicant
PERTH RECRUITMENT SERVICES PTY LTD
Fifth Applicant
AND
EFFICIENT BUILDING TEAM PTY LTD
Respondent

Catchwords:

Strata Titles Act 1985 (WA) (as it applies from 1 May 2020) - Carport - Common property - Damage to common property - Written notice requirements for an alleged contravention of scheme by-laws - Enforcement of scheme by-laws - Removal of carports from common property - General duty of strata company to control and manage the common property for the benefit of all the owners - Claim for compensation - Resolution of scheme dispute - Tribunal proceedings - Discretion of Tribunal to make orders - Turns on own facts

Legislation:

Building Act 2011 (WA), s 112
State Administrative Tribunal Act 2004 (WA), s 9, s 15, s 29
State Administrative Tribunal Rules 2004 (WA), r 42A
Strata Titles (General) Regulations 2019 (WA), Sch 1, cl 5, Sch 2, cl 3(3)
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA) (from 1 May 2020), s 3, s 3(1), s 9, s 10, s 13(7), s 13(9), s 43, s 45(1), s 45(2), s 47, s 47(5)(a), s 91, s 91(1), s 112, s 123, s 140, s 197, s 197(2), s 197(4), s 199, s 199(3)(d), s 200, s 200(1), s 200(2), s 200(2)(m), s 200(2)(o), s 200(2)(o)(i), s 200(7), s 202, Sch 2A, cl 3AB, cl 3AB(3), Sch 5, cl 16, Pt 13
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 83(1)
Strata Titles Amendment Act 2018 (WA)

Result:

Applications partly successful
Orders made

Category: B

Representation:

CC 1960 of 2021

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Third Applicant	:	In Person
Fourth Applicant	:	In Person
Respondent	:	In Person

Solicitors:

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

CC 2028 of 2021

Counsel:

Second Applicant	:	In Person
Third Applicant	:	In Person
Fourth Applicant	:	In Person
Fifth Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Second Applicant	:	N/A
Third Applicant	:	N/A
Fourth Applicant	:	N/A
Fifth Applicant	:	N/A
Respondent	:	N/A

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

Efficient Building Team Pty Ltd and Rosskeen Pty Ltd [2021] WASAT 157
Efficient Building Team Pty Ltd and The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 [2021] WASAT 158
Erbrich and The Owners of 125 Herdsman Parade Wembley (Strata Plan 38066) [2020] WASAT 109
Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170
Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99
Pitsikas and Grimes [2009] WASAT 80
The Owners of Habitat 74 - Strata Plan 222 and Betteridge & Ors [2005] WASAT 25
Wong v Reid [2016] WASC 59

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Very broadly, in these proceedings the owner of Lot 5, Rosskeen Pty Ltd (Rosskeen), along with the owner of Lot 6, Mr Anthony Elton Anderson (Mr Anderson), and the owner of Lot 7, Perth Recruitment Services Pty Ltd (Perth Recruitment), together with The Owners of 25, 27, 29 and 31 Parry Street, Fremantle Strata Plan 6413 (strata company) (together the applicants) seek to:
a)enforce the scheme by-laws in circumstances where the respondent in these proceedings and the owner of Lot 8, Efficient Building Team Pty Ltd (Efficient) is alleged to have contravened:
i)Schedule 2 conduct by-laws 2(a), 2(b) and/or 2(d) concerning common property in relation to three carport posts of the carport that the previous owner of Lot 8 had erected (bylaws 2(a), 2(b) and/or 2(d));
ii)Schedule 2 conduct by-laws 2(a), 2(b) and/or 2(c) concerning damage to the common property where Efficient removed two carports (bylaws 2(a), 2(b) and/or 2(c)); and
b)resolve a scheme dispute concerning the removal by Efficient of two carports on the common property allegedly without the approval of the strata company.
The relevant strata titles scheme was created by the registration of strata plan 6413 on 12 December 1978 (strata plan) under the Strata Titles Act 1966 (WA). That Act was repealed and replaced by the Strata Titles Act 1985 (WA) (ST Act). The ST Act was significantly amended on 1 May 2020. In these reasons all references are to the ST Act as it applies from 1 May 2020, unless expressly stated otherwise.
The strata scheme comprises four brick, stone, galvanised iron and fibro single-storey commercial units, namely Lots 5, 6, 7 and 8 (strata scheme). On registration of the strata scheme the strata company was established.
The following statement reflects the position of the applicants in these proceedings:[1]
Prior to [Efficient] becoming an owner, the owners of this strata scheme had no problems or issues with parking, access or carport locations and got along harmoniously.
…
The [three] carport [posts of the carport] completely blocks/obstructs and prevents any other lawful owner using the common property driveway. It lacks any approval to be built on the common property.
…
In May 2022 without the knowledge or consent from the other owner (sic) the respondent [Efficient] wilfully and maliciously cut down two carports that were situated on the common property leaving the driveway in poor condition. The eight cut down carport posts and attached footings are unstable[.] The vehicle path over them cannot be avoided and all users risk damage from the sharp jagged edges left protruding above ground level[.]
[1] Exhibit 1 at page 95 and 177.
The following statement reflects the position of Efficient in these proceedings:[2]
The position of the applicants is untenable by seeking an order in CC1960 that the carport behind lot 8 be removed from common property notwithstanding it is fully approved and has caused no concern for 23 years yet are supporting that application by alleging it had no approval and is causing obstruction of common property, yet in CC2028 they are claiming compensation for the removal of two carports that obviously and completely obstructed the common property and which appear to have been built without planning or building approval and which after their removal the owners of lots 6 and 7 have immediately availed themselves of the benefits of their removal and consented to discontinue parking on common property and have built carports on their lots and registered a by-law allowing overhanging of their own carports into common property by 1 metre.
[W]hen [Ms Williamson] first got there they were very friendly and supportive; communicative, but from the day those carports came down it has been - [Ms Williamson] can't even go around during the day[.]
[2] ts 144, 8 November 2022 and Exhibit 1 at page 397.
For the reasons given below, the applicants' applications are successful in part. Orders are made that require Efficient to pay to the strata company $1,787.50 in relation to the repair of the common property. Otherwise, the applications are dismissed.

Relevant procedural history and evidence

On 7 December 2021, the applicants commenced proceedings (matter CC 1960 of 2021) by an application under s 47(1)(b) of the ST Act alleging Efficient contravened by-laws 2(a), 2(b) and/or 2(d) in respect of three carport posts and by-laws 2(a), 2(b) and/or 2(c) in respect of damage to the common property. The applicants seek the following orders: [3]
1/Within 21 days of this order [Efficient], the owner of [L]ot 8, 25 Parry Street must move the car port located at the rear of its lot from off the common property.
[Efficient] are responsible for all and any cost incurred. Storage of all debris and materials to be on the private area of Lot 8.
2/Efficient to repair the damage to common property driveway. Repair work must remove the eight posts and footings that are now above ground level. The eight areas where the posts footings were are to be back filled with appropriate commercial driveway fill, compacted, levelled and paved with a like for like product then finished at the same height as the existing driveway. The work to commence within 21 days of this order and be completed within 3 business days.
3/Efficient to pay to the [strata company] all costs associated with gaining or acting on these orders. Funds to be evenly distributed to [the second applicant], [the third applicant] and [the fourth applicant].
4/Failure to complete order 1 will result in a daily penalty of $1,000 or $10,000 per breach payable to [the strata company] and distributed evenly to [the second applicant, third applicant and the fourth applicant].
5/Failure to complete order 2 will result in a daily penalty of $1,000 or $10,000 per breach payable to [the strata company] and distributed evenly to [the second applicant, third applicant and the fourth applicant].
[3] Exhibit 1 at pages 1-4, 94-95 and 187-191.
During the final hearing, Mr Timothy Kullack and Mr Anderson clarified that they are only seeking an order requiring Efficient to remove the three carport posts on the common property.[4] Further, Mr Kullack explained that repairs to the common property had been completed in or about May 2022 at a cost of $6,500 and the applicants are now seeking an order that Efficient pay its share of the cost, being $1,787.50 for what the applicants allege is a breach of the scheme by-laws. I gave leave for the orders sought by the applicants to be amended to delete the requirement for Efficient to repair the damage to the common property and instead require Efficient to pay $1,787.50 under s 47(5) of the ST Act for contravention of the by-law 2(a), (b) and/or (d).[5]
[4] ts 92, 8 November 2022 and Exhibit 1 at page 150.
[5] ts 9-10, 7 November 2022.
Separately, on 16 December 2021, the applicants commenced proceedings (matter CC 2028 of 2021) by an application under s 197(4) of the ST Act to resolve a scheme dispute concerning the removal of two carports on the common property.[6] The applicants seek the following orders:
1/Efficient and or its directors to pay [to] the strata company an amount specified by the Tribunal as compensation for the destruction of carports built on common property.
2/The amount paid be no more than replacement cost of $27,460.
3/The funds to be evenly distributed to the [strata company] or as specified by the Tribunal.
[6] Exhibit 1 at pages 208-210.
The Tribunal ordered that the proceedings for these two matters (CC 1960 of 2021 and CC 2028 of 2021) are to remain separate proceedings but are to be heard and determined together and evidence in one proceeding is to be evidence in the other proceeding.[7] These proceedings come within the Tribunal's original jurisdiction (s 15 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)).
[7] See order 1 of the orders made by the Tribunal on 4 November 2022 (Exhibit 1, at page 1329).
On 13 December 2021, the Tribunal delivered the following two decisions concerning the strata scheme:
•Efficient Building Team Pty Ltd and Rosskeen Pty Ltd [2021] WASAT 157 (for matter CC 1682 of 2020); and
•Efficient Building Team Pty Ltd and The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 [2021] WASAT 158 (for matters CC 1672 of 2020 and CC 1742 of 2020).
The above decisions were delivered by the Tribunal after the first of the two applications in these proceedings was filed by the applicants with the Tribunal on 7 December 2021 but before the second application was filed by the applicants on 16 December 2021.
Shortly after these proceedings commenced, Efficient sought to have the current matters (CC 1960 of 2021 and CC 2028 of 2021) dismissed. The Tribunal dealt with Efficient's application for the matters to be dismissed by way of a preliminary issue. In January 2022 the Tribunal ordered for the following preliminary issue to be determined for each matter:[8]
Whether the application in this matter is an abuse of process as a consequence of the Tribunal's reasons for decision in CC 1672 of 2020 and CC 1742 of 2020.
[8] See order 2 of the orders made by the Tribunal on 21 January 2022 and order 2 of the orders made by the Tribunal on 28 January 2022 (Exhibit 1, at pages 1309 and 1319).
The preliminary issue was listed for a final hearing on 24 March 2022. The parties, except for the strata company, filed written submissions and made oral submissions at the hearing.
On 7 April 2022 I handed down the final oral decision for the preliminary issue where I concluded that these proceedings (CC 1960 of 2021 and CC 2028 of 2021) were not an abuse of process as a consequence of the Tribunal's reasons for decision in the earlier matters of CC 1672 of 2020 and CC 1742 of 2020 which were delivered on 13 December 2021 (see above at [11]). Consequently, following further direction hearings programming the two matters (CC 1960 of 2021 and CC 2028 of 2021) to a final hearing, I heard the matters over two days on 7 November 2022 and 8 November 2022, following which I reserved my decision.
Ms Janet Williamson and Mr Geoffrey Chambers, for Efficient, attended the final hearing in person. Efficient called three witnesses. First, Dr William Alan Douglas, who is a retired clinical psychologist and the immediate previous owner of Lot 8. His witness statement is dated 19 July 2022 and was filed with the Tribunal.[9] Second, Ms Williamson, who is a registered builder and has qualifications in architectural drafting. Ms Williamson was previously a director of Efficient. Her witness statement is dated 24 July 2022 and was filed with the Tribunal.[10] Finally, Mr Chambers, who is the sole director of Efficient and described himself as having been a Certified Practising Accountant, and that he oversaw much of the commercial aspects of building and development projects that he and Ms Williamson undertook together and separately as well as having worked hands-on in all areas of construction including as a building supervisor. He filed two witness statements with the Tribunal. One is a summary and the other a detailed witness statement.^[11]
[9] Exhibit 1 at page 1239-1240.
[10] Ibid.
[11] Exhibit 1 at pages 1214 and 1216-1237.
Mr Kullack is the managing director of Perth Recruitment, which operates from Lot 7.
Mr Anderson is an accountant with the business, Anderson & Co, which operates from Lot 6.
No one from Rosskeen attended the final hearing. Mr Peter Stroud, a director of Rosskeen wrote to the Tribunal by email on 24 October 2022[12] stating that he would not be able to attend due to work commitments. Mr Stroud summarised his position in that email stating that Efficient should be ordered to remove the carport on the common property, that they pay their share of the cost to repair the brick paving on common property and they reimburse Mr Kullack and Mr Anderson for the cost of rebuilding their carports following the removal by Ms Williamson and Mr Chambers.[13]
[12] Exhibit 1 at page 344.
[13] Ibid.
The applicants called two witnesses. First Mr Kullack and then Mr Anderson. Messrs Kullack, Anderson and Stroud filed a joint written statement attached to an email filed with the Tribunal on 13 July 2022.[14]
[14] Exhibit 1 at pages 174-177.
In accordance with the Tribunal's usual practice in matters of this nature, the hearing was conducted on the basis that all the documents filed with the Tribunal would be regarded as being in evidence,[15] subject to any objection. No objection was made. At the hearing, the Tribunal marked the following documents, to which I have had regard for the purpose of my determination in these proceedings, as an exhibit:
Exhibit 1Hearing Book for CC 1960 of 2021 and CC 2028 of 2021 Volumes 1 and 2 prepared by the Tribunal dated 26 October 2022 (and issued to the parties on 28 October 2022) pages 1 to 1330.

Issues

[15] Although forming part of 'exhibits', the parties' contentions, and submissions in Exhibit 1 are taken to be submissions, rather than evidence.

At hearing, the parties agreed the main issues to be determined in these proceedings. [16] I have grouped the main issues under three broad headings as follows:
[16] ts 10-12, 7 November 2022.
Three carport posts - breach of scheme by-laws
Issue 1:         Did the strata company approve the erection of a carport which straddles the common property behind Lot 8? Did the strata company grant to the owner of Lot 8 an exclusive use, licence or other arrangement to use the common property?
Issue 2:         Are the three carport posts common property?
Issue 3: Did Efficient contravene by-law 2(a), 2(b) and/or 2(d)? If yes, what order should the Tribunal make under s 47(5) of the ST Act?
Repair of damage to common property - breach of scheme bylaws
Issue 4:        Did Efficient damage the common property on removal of the carports from the common property behind Lot 6 and Lot 7?
Issue 5: Did Efficient contravene by-law 2(a), 2(b) and/or 2(c)? If yes, what order should the Tribunal make under s 47(5) of the ST Act?
Removal of carports on common property behind Lot 6 and Lot 7 - resolution of scheme dispute
Issue 6:        Did the strata company approve the erection of two carports on the common property behind Lot 6 and Lot 7? Did the strata company grant to the owner of Lot 6 and Lot 7 respectively an exclusive use, licence or other arrangement to use the common property?
Issue 7:        Did the strata company approve the removal by Efficient of the two carports including eight carport posts and footings from the common property?
Issue 8:        Is Efficient required to pay the compensation, if any, claimed by the applicants?
Issue 9: Should the Tribunal exercise its discretion to make orders to settle the scheme dispute or proceedings? If yes, what orders should the Tribunal make under s 200 of the ST Act?
In their applications and during the course of the final hearing, the applicants raised the issue of claiming their costs in these proceedings. I explained during the hearing that a party may make an application to the Tribunal for their costs in these proceedings in accordance with the r 42A of the State Administrative Tribunal Rules 2004 (WA) which provides:
42A.Time within which costs application may be made
Subject to these rules, an application to the Tribunal for costs under this Division can be made within 21 days of the orders to which the application relates being made by the Tribunal.
The Tribunal has made the orders set out at [210] below. It is now open for an application to be made to the Tribunal for costs within the time period specified in the above rule.
I now turn to set out the regulatory framework and factual background against which the consideration of the above issues must be made.

Regulatory framework

The strata plan

As already noted, the strata plan was registered on 12 December 1978. The parcel and building are described as:
Four brick, stone, galvanized iron and fibro single-storey commercial units situated on Lot 123 of Diagram 2061, and having an address of 25, 27, 29 and 31 Parry Street, Fremantle WA 6160[.]

Notifications (by instruments F739080, F739077, F739081, F739078 and F739079) provided for the subdivision of strata Lots 1, 2, 3 and 4 and common property into strata Lots 5, 6, 7 and 8 and a portion of the common property included in each of strata Lots 5, 6, 7 and 8 was registered with Landgate on 25 November 1994.
A further notification (by instrument N844663) was registered with Landgate on 6 February 2018. That notification provided for the merger of buildings and land.
Finally, a notification (by instrument O752814) was registered with Landgate on 31 May 2021 which provided for the first consolidation of the scheme by-laws and which also included an amendment to the bylaws by the addition of Sch 2 conduct by-law 2(e) concerning vehicle parking.
There is no record of any 'exclusive use by-laws' of the kind allowed for by s 43 of the ST Act in relation to any of the common property.

ST Act

Major amendments to the ST Act came into operation on 1 May 2020 under the Strata Titles Amendment Act 2018 (WA) (ST Amendment Act). However, the coming into operation of the ST Act does not affect the continued existence of the strata scheme or the strata company, amongst other things (Sch 5 by-law 2(1) of the ST Act).
The applicants filed their two applications with the Tribunal after 1 May 2020. This means that the provisions of the ST Act, as they are after the amendments, apply to the determination of these applications (Sch 5 bylaw 30(1) of the ST Act).

Contravention of scheme by-laws

The strata company has the function of complying with the scheme bylaws and enforcing compliance with those by-laws by others to whom they apply (s 112 of the ST Act).
Section 47 of the ST Act provides for the enforcement of scheme by-laws. The strata company, the owner or an occupier of a lot may apply to the Tribunal for the enforcement of scheme by-laws.
In this case, in matter CC 1960 of 2021, the applicants seek orders under s 47(5) of the ST Act for the alleged breach or contravention by Efficient of by-laws 2(a), 2(b) and/or 2(d) in respect of the three carport posts on the common property allegedly without approval of the strata company and for the alleged breach or contravention by Efficient of bylaws 2(a), 2(b), and/or 2(c) in respect of the damage to the common property.
Where a written notice of the contravention of a scheme by-law is given, the requirements that must be complied with are set out in s 47(2) of the ST Act as follows:
(2)A written notice given by a strata company to a person alleged to have contravened the scheme by‑laws must —
(a)specify the particular scheme by‑law that is alleged to have been contravened; and
(b)specify the particular facts relied on as evidence of the contravention; and
(c)specify the action that must be taken or refrained from being taken in order to avoid a continuing or further contravention of the particular scheme by‑law; and
(d)contain an explanation of the effect of this section in terms set out in the regulations.
If the Tribunal is satisfied that a person has contravened the scheme bylaw, the Tribunal may require the person to do one or more of the following as set out in s 47(5) of the ST Act:
(a)pay a specified amount to the strata company by way of penalty for the contravention;
(b)take specified action within a period stated in the order to remedy the contravention or prevent further contraventions;
(c)refrain from taking specified action to prevent further contraventions.

Resolution of scheme dispute

Part 13 of the ST Act is headed 'Tribunal proceedings' and provides for the resolution of certain scheme disputes (s 197 of the ST Act) including:
(a)a dispute between scheme participants about —
…
(ii)the performance of, or the failure to perform, a function conferred or imposed on a person by this [ST] Act or the scheme by-laws; or
(iii)an alleged contravention of this Act (other than an offence); or
…
(vi)any other matter arising under this [ST] Act or the scheme by-laws[.]
The term 'scheme participants' in s 197 is defined in s 197(2) of the ST Act and includes the strata company and the owner or occupier of a lot in the strata titles scheme. Section 197(4) provides that an application may be made by a party to the dispute to the Tribunal for the resolution of a scheme dispute.
In proceedings under the ST Act to resolve a scheme dispute, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding (s 200(1) of the ST Act). The types of orders that the Tribunal may make are set out in s 200(2) of the ST Act and include, for example, an order under s 200(2)(o) of the ST Act requiring a party to the proceeding to pay to a person specified in the order compensation for any pecuniary loss or damage suffered. In addition, the Tribunal may provide that the order is to remain in force for a specified period, until a specified event or until further order (s 200(7) of the ST Act).
Instead of, or in addition to any order that the Tribunal may decide to make to resolve the dispute, s 199 of the ST Act provides that the Tribunal may make a declaration concerning a matter in the proceeding. An example of a declaration that the Tribunal may make is to declare that a resolution of the strata company is, or is not, invalid (s 199(3)(d) of the ST Act). It is also possible for the Tribunal to make a decision not to make an order or declaration. This is provided for in s 202 of the ST Act.
In this case, in matter CC 2028 of 2021, three of the four lot owners along with the strata company made an application to the Tribunal for the resolution of a scheme dispute which the applicants allege Efficient demolished the two carports on the common property without approval of the strata company. The applicants seek compensation in relation to the two carports.

Factual background

The key facts are not in any real dispute. I make the following findings of fact (in date order but otherwise in no order of importance) which are relevant to the issues to be determined in these proceedings:
a)Dr Douglas purchased Lot 8 (then Lot 4) in 1992.
b)Lot 8 as depicted on the ground floor plan, is a total of 176m² broken down into four parts with the biggest part being 104m², the second part being 53m², the third part being 15m² and the fourth part 4m².[17]
[17] Exhibit 1 at page 211.
c)Mr Anderson purchased Lot 6 (then Lot 2) in August 1992. He still owns Lot 6.
d)Perth Recruitment purchased Lot 7 (then Lot 3) on 21 August 2006. Perth Recruitment still owns Lot 7.
e)Rosskeen purchased Lot 5 (then Lot 1) on 29 August 2012. Rosskeen still owns Lot 5.
f)The owner of Lot 7 immediately prior to Perth Recruitment had a carport erected on the common property behind Lot 7 sometime before 1992.
g)In or about 1998, Dr Douglas had a carport erected on Lot 8 which straddles the common property.
h)On or about 5 October 2000, Mr Anderson applied to the City of Fremantle (City) for a carport to be erected. The plan dated 26 September 2000 depicts the proposed carport next to the carport for Lot 7 but does not show the common property. The City approved the application on 6 November 2000.[18]
[18] Exhibit 1 at pages 315 to 318.
i)No carports are shown on the strata plan.
j)Up to about 2015, by way of a long standing informal arrangement, vehicle access to the lots was by driving vehicles over Lots 5, 6 and 7 as there was two carports on the common property behind Lot 6 and Lot 7.
k)In November 2019 Dr Douglas sold Lot 8 to Efficient.
l)On 19 June 2020, following an application to the Tribunal by Efficient objecting to vehicles parking within the carports on common property, the Tribunal made the following order by consent of the parties (which did not include the strata company) in matter CC 644 of 2020:
By consent of the parties, the Tribunal orders:
1.The respondents [Mr Anderson and Perth Recruitment Services Pty Ltd] and their visitors and employees shall not park vehicles on the common property, or in a position on the respondents' lots which encroaches on to the common property in a manner that obstructs vehicle access and egress for the applicant's [Efficient] lot (lot 8) via the common property.
m)On 30 May 2020, Efficient removed the two carports that had been erected on the common property behind Lot 6 and Lot 7. The City did not issue a demolition order in respect of the two carports.[19]
[19] ts 103, 8 November 2022 and Exhibit 1 at page 319.
n)The debris from the removal of the two carports was left on Lot 6 before disposal by Efficient on or about 12 June 2020.[20]
[20] Exhibit 1 at pages 307 and 313-314.
o)On 18 August 2020 Strata Unit Underwriters declined to proceed with the insurance claim for the two carports that had been removed by Efficient on 30 May 2020.
p)On or about 21 August 2020, the City issued a Building Order under s 112 of the Building Act 2011 (WA) to the owners of Lot 7 and Lot 8 requiring the toilets on part Lot 7 and part Lot 8 to be either removed or restored.
q)On 31 May 2021 the scheme by-laws were consolidated and amended to include a new conduct by-law, Sch 2 by-law 2(e).
r)In or about June 2021 the owners of Lot 6 and Lot 7 had erected on their respective lots a new carport.
s)By late July 2021 the toilets on part Lot 7 and part Lot 8 were removed by the respective owner of the part Lot 7 and part Lot 8.
t)On 13 December 2021 the Tribunal published two decisions concerning the strata complex (see above at [11]).
u)On or about 20 December 2021 Efficient cut the metal posts of the carports they had removed and did work to reinstate the paving on the common property.
v)On or about 15 February 2022 Mr Kullack proposed to all the owners for the paving on the common property to be repaired as paving had become dislodged.
w)Works to repair the common property were done by Landscape A Lot on or about 13 May 2022. Perth Recruitment paid $6,500 to Landscape A Lot. Efficient has not paid anything.
x)In or about May 2022 the City received a development application from Efficient for a rear carport addition to Lot 8 where the plans propose a 1m² portion of the roof projecting over the common property.
y)The strata company does not have a bank account. The scheme by-laws have not exempted the strata company from performing the designated functions (such as having an administrative fund, maintaining accounts records and statement of account and keeping minutes of meetings as provided for in s 140 of the ST Act).
z)There is no record of any 'exclusive use by-laws' of the kind allowed for by s 43 of the ST Act in relation to any of the common property.

Parties' main contentions

The applicants' main contentions may be summarised as follows:[21]
[21] Exhibit 1 at pages 174-177.
•Three carport posts are on common property behind Lot 8 but they were not approved by the strata company.
•By demolishing the two carports that had been installed many years ago on common property behind Lot 6 and Lot 7, Ms Williamson and Efficient clearly do not permit any part of a carport to remain on common property.
•Ms Williamson has stated that she intends to remove the carport that the previous owner of Lot 8, Dr Douglas, had erected but to date has not done so. Further, she has recently applied to the City to have a new carport erected on Lot 8.
•The City does not and has never sought the approval of all lot owners for the erection of a carport.
•The two carports on the common property behind Lot 6 and Lot 7 were commissioned and paid for by the owners of Lot 6 (Mr Anderson) and Lot 7 (previous owner to Perth Recruitment) respectfully. They were approved by the City and had been in place for many years before Efficient purchased Lot 8 in November 2019.
•The strata company did not give approval to Efficient to demolish the two carports on the common property behind Lot 6 and Lot 7. The City was unaware of the removal of the carports and did not receive a request from Efficient to demolish the carports.
•The owners of Lot 6 and Lot 7 were not offered the opportunity to relocate or salvage the materials from the demolished carports.
•Efficient does not have authority to unilaterally decide to demolish and dispose of another owner's share of common property. This is what Efficient did when they demolished the carports.
•Efficient demanded the parking area on common property be used as an accessway/driveway.
•Efficient's removal of the protruding carport posts on the common property behind Lot 6 and Lot 7 after demolishing the carports caused stress to the paving which resulted in bricks shifting and rapidly deteriorating and unsafe. Works were required to repair the common property which is now used as the common driveway/accessway. Efficient was asked to provide a quote for the repair works but they did not. The total cost of the repair works to common property was $6,500 of which Efficient's share is $1,787.50. Efficient refused to pay. Mr Anderson and Perth Recruitment have together paid $1,787.50 which is owed by Efficient.
Efficient's main contentions may be summarised as follows:[22]
[22] Exhibit 1 at pages 360-381 and 383-397.
•The City approved the carport to be installed behind the office building on Lot 8 by building licence 8743 dated 6 July 1995. Efficient was again granted planning consent on 3 and 15 August 1998 by development application 481/98 and building licence 98032.
•No objection nor any action had been taken by the strata company nor any of the owners to have the carport removed or to challenge its legitimacy for the past 23 years.
•That part of the carport behind the office building on Lot 8 that overhangs beyond 1 metre past the boundary of Lot 8 is common property. This comprises three carport posts which support the carport and a part of the carport roof.
•The three carport posts that are on common property are common property and only that part of the carport, subject to conduct by-law 2(e), that is on Lot 8 is owned by Efficient.
•Previously Mr Kullack refused to allow Efficient to remove the carport on Lot 8.
•The two carports erected on common property behind Lot 6 and Lot 7 do not appear on the strata plan. Because of the two carports on the common property, vehicle access to Lot 8 was only possible by driving over the rear of the private lots (in particular Lot 6 and Lot 7). Such action is inconsistent with the proper control and management of the common property for the use and enjoyment of the common property by all the owners.
•The removal of the two carports on common property behind Lot 6 and Lot 7 has benefitted all the owners.
•The carport post bases on common property (which remained after the carports on the common property behind Lot 6 and Lot 7 were removed) were not unstable and did not reasonably need to be removed. In any event, Efficient was not obliged to remove them as they are common property.
•The common property driveway/accessway was not degraded enough to warrant any repair.
I now turn to address each of the main issues identified at [22] above.

Three carport posts - breach of scheme by-laws

It is useful to start by understanding when the previous owner of Lot 8, Dr Douglas, had the carport erected. To do so, it is necessary to briefly set out the history regarding Dr Douglas' extension of the office building on Lot 8.
In 1992 Dr Douglas purchased Lot 8 (formerly Lot 4). At that time Mr Anderson owned Lot 6 and continues to do so. The owners of Lot 5 and Lot 7 sold their respective lots in 2012 to Rosskeen and in 2006 to Perth Recruitment.
It is Dr Douglas' evidence that he approached the then three lot owners, which included Mr Anderson, to seek their consent for him to extend his office building onto 24m² of the common property. According to Dr Douglas, the then three owners agreed and signed the application form lodged with the City and the construction was completed by 1995.
Mr Anderson agrees that consent was given by the then lot owners to Dr Douglas to enable the office building to be extended behind Lot 8 onto common property. This is reflected in an email from Mr Anderson to Dr Douglas dated 16 November 2016 which stated in part:[23]
I recall discussing your request with [the then owner of Lot 7] at the time. The owners then consented to your request to extend your building onto common property, as had occurred with both my own building and that of [the then owner of Lot 7][.]
[23] Exhibit 1 at page 334.
In earlier statements of 21 September 2015 and 30 September 2015 the two other (then) owners also stated that the office building extension to Lot 8 was done with their approval.[24] One of those then owners specified that the office extensions that he consented to were done in 1994.
[24] Exhibit 1 at page 413.
There was a transfer of a portion of common property to each lot owner on 25 November 1994, that is after Dr Douglas purchased Lot 8 (formerly Lot 4) and with the carport on the common property behind Lot 7 (which was in situ from about 1985), as reflected by the following notation on the strata title:
Instrument No.         Nature                  Detail
F739080Transfer        Portion of common property
now including in Lot 5.
F739077Transfer        Portion of common property
now including in Lot 6.
F739081Transfer        Portion of common property
now including in Lot 7.
F739078Transfer        Portion of common property
now including in Lot 8.
F739079Application     Subdivision of Strata lots 1, 2, 3
and 4 and common property into
Lots 5, 6, 7 and 8.
According to Dr Douglas, a merger by resolution was required to merge the office building extension portion of some 24m² located on common property into Lot 8. Dr Douglas' evidence is that, following the consent of all the then owners, in 2003 he made an application to the then Department of Land Administration for the re-sub-division of Lot 8 and the common property. That application lapsed which meant the title was not in order. Subsequently, Dr Douglas set about in 2015 to obtain all of the owners' consent to the merger by resolution. This proved difficult for Dr Douglas as two of the owners had changed. He described the process as a 'conflict'.[25] Dr Douglas eventually achieved the merger resolution in 2018 for the building extension to become part of Lot 8 by financially compensating the two new owners for the part of the common property merged into Lot 8.[26] The merger was registered by Landgate on 6 March 2018 (by notification N844663). Dr Douglas eventually sold Lot 8 to Efficient in November 2019.
[25] ts 17-18, 7 November 2022.
[26] Exhibit 1 at pages 72 and 89.
Following the completion of the office building extension, sometime in 1998, Dr Douglas decided to have a carport erected behind the extended office building on Lot 8. Dr Douglas was granted a building licence by the City on 15 August 1998 authorising the construction of a steel frame and iron carport of some 30m². Nothing on the plan nor in the building licence indicates that part of the carport is proposed to be erected or affixed on the common property.[27]
[27] Exhibit 1 at pages 409-412.
It is Dr Douglas' testimony that the then lot owners, which included Mr Anderson, consented for the carport to be erected as the then owners signed or initialled the carport application lodged with the City.[28] It is Dr Douglas' understanding that the application required the initials or signatures of all the lot owners.[29]
[28] ts 16, 7 November 2022.
[29] ts 20, 7 November 2022.

Dr Douglas accepted that the application to the City did not show or state what part of the carport, if any, would be on the common property.[30] Further, Dr Douglas accepted that the carport plan, which was before the Tribunal, was signed by only one person, the (then) neighbour, because the carport was going to be erected against the common fence line.[31] Dr Douglas also accepted that the carport plan did not indicate what part of the carport, if any, was on the common property.[32]
[30] ts 29, 7 November 2022.
[31] ts 21, 7 November 2022 and Exhibit 1 at page 902.
[32] ts 29, 7 November 2022.
Unfortunately, the application to the City could not be located and is therefore not before the Tribunal. However, what is known is that the carport was erected in or about 1998 in a similar style to the carport that was erected on the common property behind Lot 7 which was in situ when Dr Douglas purchased Lot 8 in 1992.[33] It is also common ground that the strata title does not show any carport.[34] The parties also agree that the carport erected behind Lot 8 straddles the common property.[35]
[33] Exhibit 1 at page 1239.
[34] ts 28, 7 November 2022.
[35] Exhibit 1 at pages 110 and 191.
Mr Anderson stated that he does not recall being asked to give his permission for either Dr Douglas' carport for Lot 8 or for his own carport on the common property behind his Lot 6.[36]
[36] ts 20, 7 November 2022.
Similarly, Dr Douglas stated that he does not recall being asked to give consent for a building permit to the City for Mr Anderson's carport.[37]
[37] Exhibit 1 at page 432.
It is Mr Kullack's evidence that no approval was sought from the other owners for any of the carports in the strata scheme and that the application to the City is done by the carport installer and not the lot owner as was his recent experience in having a carport erected within his Lot 7.[38]
[38] ts 34, 7 November 2022.
During the hearing, Mr Chambers conceded that 'it is likely that the carport behind Lot 8 didn't have approval of the strata company'.[39]
[39] ts 200, 8 November2022.
It is common ground that Dr Douglas, the previous owner of Lot 8, undertook works to extend the office building in about 1994 and then for the erection of a carport in or about 1998. While all the then owners approved for Dr Douglas to extend the office building behind Lot 8 as reflected in Mr Anderson's email dated 16 November 2016 and the emails from the two other (then) owners in 2015, in my view, the same cannot be said about Efficient's contention that the then owners' including Mr Anderson approved Dr Douglas' carport, including for part of it to be on or straddle the common property. The reasons for this follow.
First, the carport plan is only initialled by the (then) next door neighbour. None of the owners signed or initialled the carport plan.
Second, Mr Anderson's testimony, who was an owner at the relevant time, is that he does not recall being asked for his permission either in regards to Dr Douglas' carport or for his own carport.[40]
[40] ts 111, 7 November 2022.
Third, the email from the City to Mr Kullack on 10 May 2022 stated that the City had received a development application for a rear carport addition to Lot 8 and in that email the City sought confirmation from the owners that consent was not required for the roof projection where the plan attached to the email is not initialled or otherwise signed by any of the owners. This lack of initials or signatures supports Mr Kullack's evidence that the owners' (the strata company) permission for the carports is not sought by the City.
Fourth, there is no evidence before the Tribunal that the then owners, which includes Mr Anderson, initialled the strata plan or any other document to give Dr Douglas approval for his carport, or any part of it (and in particular the three carport posts), to extend onto or to straddle the common property.
Fifth, the other two (then) owners in 2015 per their statements do not make comment about the carport (they only refer to the office building extension).[41] This correlates with Dr Douglas' evidence that the two previous owners only re-affirmed their consent to the building extension in 1995 and the subsequent re-subdivision.[42]
[41] Exhibit 1 at page 413.
[42] Exhibit 1 at page 432.
In summary, while I accept the City gave approval to Dr Douglas to erect the carport, the strata company did not approve the carport or for the carport to straddle the common property.
Having found that the strata company did not approve the carport, it is now necessary to determine if part of the carport, being the three carport posts, are 'common property' and if so, whether Efficient breached or contravened by-laws 2(a), (b) and/or (d) as alleged by the applicants.
Common property is property that is jointly owned by all owners in the strata titles scheme as tenants in common and is not contained within any lot. The term common property is defined in s 10 of the ST Act as:
10.Common property
(1)The common property in a strata titles scheme is —
(a)that part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme; and
(b)temporary common property.
(2)The common property includes, for a strata scheme, those parts of a scheme building that do not form part of a lot[.]
During the course of the hearing, the parties agreed that three carport posts are on the common property.[43] Mr Chambers described it this way:[44]
The carport behind Lot 8 is attached to the Lot 8 building itself at one end and at the other end is supported by two metal posts on the common property. The - there is a third metal post along the back edge of it, not quite but approximately in the middle support the back.
[43] Exhibit 1 at page 687.
[44] ts 171-172, 8 November 2022.
Whether the carport (including the three carport posts) in question is to be included in the boundary of Lot 8 must be determined in accordance with the definitions in the ST Act and the location on the strata plan and not by physical characteristics, utility or other factors.
Clause 5 of Sch 1 of the Strata Titles (General) Regulations 2019 (WA) (ST Regulations) provides that carports are not to be included as part of a lot (in this case Lot 8) unless they are shown on the floor plan which is defined in s 3 of the ST Act as the plan for the strata scheme consisting of one or more sheets. In this case as far as the strata plan is concerned, no carport is depicted, described or defined on the strata plan and therefore, in my view, cl 5 Sch 1 of the ST Regulations requires the carport to be excluded in determining the boundaries of the cubic space for Lot 8.
'Scheme building' is defined in s 3 of the ST Act as a building shown on a strata plan and by reference to which the boundaries of lots are defined. As noted earlier, the carport is not shown on the strata plan.
Clause 16 of Sch 5 of the ST Act provides that the clauses in Sch 2A (except those in Pt 1) are numbered as they were as sections in the body of the ST Act immediately before the commencement day of the current ST Act (that is, 1 May 2020) and anything done under any of those sections that may have effect after that day is taken to have been done under the corresponding clause. This means cl 3AB of Sch 2A of the ST Act applies in this case. It provides that the boundaries of the cubic space (referred to in the definition of floor plan in s 3(1) of the ST Act) are, regardless of the exact location of the lines:
(a)the external surfaces of the building occupying the area represented on that floor plan —
(i)including anything that —
(I)is attached to and projects from the building; and
(II)is prescribed by the regulations to be included as part of a lot;
but
(ii)excluding any thing that is prescribed by the regulations not to be included as part of a lot;
or
(b)despite paragraph (a), if 2-lots —
(i)have a common party wall, the centre plane of that wall; or
(ii)have buildings on them that are joined, the plane or planes at which they are joined.
However, clause 3AB of Sch 2A of the ST Act does not apply to a boundary of a lot or a part of a lot that is external to a 'building' (cl 3AB(3) of Sch 2A of the ST Act). The term 'building' is defined in s 3 of the ST Act to include 'structure'. The term 'structure' is not defined in the ST Act. In Erbrich and The Owners of 125 Herdsman Parade Wembley (Strata Plan 38066) [2020] WASAT 109, I stated the following regarding the term 'structure' under the former ST Act (citations omitted):
49As stated by the Tribunal in Sun 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'.
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], 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 Atkinson J stated at 592:
… 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[.]
In my view, the three carport posts are part of the structure of the 'building', in this case, the carport.[45] This is because the three carport posts are essential to the carport. The carport posts have been 'built up' in the way of being built up as in a building; they are part of the integral structure of the carport and benefit the carport. The consequence is that clause 3AB of Sch 2A of the ST Act does not apply and therefore it follows, in my view, that the three carport posts are common property and not part of Lot 8. This is so even though, the then owner of Lot 8, Dr Douglas, paid for the carport. This means that each lot owner has an undivided share in the common property as a tenant in common with the other owners proportional to the unit entitlement of their respective lots (s 13(7) of the ST Act) and therefore the owners must consent to any alterations to such common property or removal from the common property before it may occur (see further below at [80] to [82]).
[45] Exhibit 1 at pages 687 and 1074. The photographs show the three carport posts of the carport.
The effect or consequence of this is that an owner who has a carport erected partly on their lot and partly on the common property runs the risk that they may have to remove that part on the common property and make good any damage that has been caused to the common property. The fact that a previous owner had erected the carport without the proper permission of the strata company does not obviate the current owner's (in this case Efficient) accountability.
Having said that, in my view, there may be situations when a structure, such as a carport, may be located on common property, provided that the structure does not interfere with the access to and egress from a lot and that proper permission has been granted as required by the ST Act and scheme by-laws.
To be clear, under the ST Act each lot owner has an undivided share in the common property and therefore the owners must consent to alterations to such common property before they may occur. This is an underlying principle of the management and control of common property under the ST Act. All the owners must therefore consent for a structure to be located on common property (see Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99 at [29] and Pitsikas and Grimes [2009] WASAT 80 at [24]).
There is also an underlying assumption in the ST Act that owners must seek approval for a 'structure' to be located on common property prior to doing any works. The owner who fails to seek approval from all fellow owners by having a 'structure' located on common property may be required to remove the 'structure' and restore the common property. This occurred in Wong v Reid [2016] WASC 59 (Wong v Reid) where the Supreme Court dismissed Mr Wong's application seeking leave to appeal against the decision of the Tribunal requiring Mr Wong to remove a wall he had constructed on common property in a strata scheme without consent of all of the owners in the strata scheme and to arrange for the reconstitution of the garden on the common property.
The same applies to a new owner who purchases a lot where the previous owner has made alterations to common property. It is the responsibility of the new owner to ensure through due diligence that any 'structure' located on common property by the previous owner was done with the necessary approval of the strata company as required by the ST Act and scheme by-laws. If the new owner fails to do this, this does not obviate the new owner of accountability or liability to remove the 'structure' and to rectify any damage that may have been caused to the common property by any structure located on common property by a previous owner.
While Dr Douglas was successful in merging part of the common property into Lot 8, this did not occur in regards to that area of the common property on which there are three carport posts. Further, there is nothing before the Tribunal indicating that the area of common property on which there are three carport posts is the subject of a lease, licence or exclusive use by-law arrangement between the strata company and Efficient.
This leads to the question, whether Efficient is in breach or contravention of either or all of by-laws 2(a), 2(b) and/or 2(d) as asserted by the applicants.
The by-law relevantly provides:
2.Use of common property
An owner or occupier of a lot must —
(a)use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment of the common property by other owners or occupiers of lots or of their visitors; and
(b)not use the lot or permit it to be used in such manner on for such purpose as causes a nuisance to an occupier of another lot (whether an owner or not) or the family of such an occupier; and
…
(d)not obstruct lawful use of common property by any person.
Efficient's position is that given that the carport was built with all necessary approvals by the City and has been present for 23 years with no objection or any action taken to have it removed or to challenge its legitimacy, the Tribunal should conclude that the applicants' application is vexatious and is being made for improper purpose including to annoy, disadvantage and cause detriment to Efficient. This position is supported by Dr Douglas who stated that there have been no complaints about the carport or that it obstructed anyone's use of the common property during his period of ownership of Lot 8.
Mr Stroud in his email to the owners on 30 December 2020 requested a strata company meeting to deal with issues including the 'removal of structures owned by unit 25 [Lot 8] sitting on common property'.[46] This appears to be in response to Ms Williamson's email of 4 December 2020 to Mr Anderson where she states 'I would like to remove the carport at the rear of Lot 8'.[47] In addition, on 1 January 2021, Ms Williamson sent an email to Mr Stroud stating 'there are no structures owned by unit 25 [Lot 8] sitting on common property' and that as 'indicated previously I would like to remove and replace the carport but only as part of a holistic resolution of the parking access …'.[48]
[46] Exhibit 1 at page 658.
[47] Exhibit 1 at page 1057.
[48] Exhibit 1 at page 657.
According to the applicants, the three carport posts block a driver from using the common property as a driveway/accessway.[49] Mr Kullack's evidence is that the three carport posts on the common property are an obstruction as he cannot drive his vehicle on that part of the common property.
[49] ts 59-60, 7 November 2022.
Mr Kullack denied that the only reason the application has been made to the Tribunal was in retribution for the alleged unauthorised removal of the carports from the common property behind Lot 6 and Lot 7.[50] Rather, it is Mr Kullack's position that as owners they have all become much more aware of the by-laws and the duties of the strata company in recent times.[51] In Mr Kullack's view, it is clear that Efficient does not want anything on common property as they demolished the carports on the common property behind Lot 6 and Lot 7. During the course of the hearing, Mr Kullack stated that he would consent to Efficient moving the three carport posts off the common property, provided that Efficient pays for their relocation or removal.[52]
[50] ts 71, 7 November 2022.
[51] Ibid.
[52] ts 59, 7 November 2022.
In order for the Tribunal to make an order under s 47(5) of the ST Act for contravention of a by-law, as sought by the applicants, the Tribunal must be satisfied that Efficient has contravened either by-law 2(a), 2(b) and/or 2(d) as asserted by the applicants.
It is the evidence of Mr Kullack that written notice by way of email on various dates was issued to Efficient as follows.
First, on 24 June 2020 Mr Anderson emailed Ms Williamson. The email was addressed to 'The Owner of Lot 8 on Strata Plan 6413 - Efficient Building Team Pty Ltd'. It states in part:[53]
We, the owners of Lot 5, 6 and 7 on Strata Plan 6413 being three out of the four lots on Strata Plan 6413 and holding over 50% unit interest, have resolved that you be directed to remove the unauthorised carport at the rear of your building that is erected on common property.
[53] Exhibit 1 at page 628.
Second, on 8 November 2021 Mr Kullack emailed Ms Williamson. The email was addressed to 'The Owner of 25 Parry Street, Fremantle'.[54] Mr Kullack writes on behalf of what he describes as the 'body corporate' and includes his name, that of Mr Anderson and Mr Stroud at the end of the email. In no uncertain terms, the email tells Ms Williamson that she has 21 days to remove or relocate the 'carport from its situation on the common property' otherwise an application will be made to the Tribunal.
[54] Exhibit 1 at pages 166-167.
Finally, on 2 December 2021 an email is sent to Ms Williamson by Mr Kullack where he states that Efficient have failed to 'remove or relocate [the] carport from its situation on the common property' and that this is a breach of conduct by-law 2(d) which provides that an owner or occupier of a lot must not obstruct the lawful use of common property by any one person.[55] Mr Kullack notes in his email that Efficient/Ms Williamson had previously stated her intention to remove the Lot 8 carport from the common property by various emails including those of 28 June 2020, 4 December 2020 and 1 January 2021.
[55] Exhibit 1 at page 166.

Efficient did not challenge the validity of the emails to be a written notice for the purposes of s 47 of the ST Act.
I find that none of the emails meet the requirement to be a written notice for the purposes of s 47 of the ST Act. The reasons for this are as follows.
First, the email of 2 December 2021 specifies that bylaw 2(d) is alleged to have been breached by Efficient and sets out the action that Efficient must take in order to avoid a continuing or further breach of bylaw 2(d). However, there is nothing in that email or attached to that email which sets out the particular facts upon which the strata company relies on as evidence that Efficient is in contravention of by-law 2(d).
Second, apart from stating that an application will be made to the Tribunal, there is nothing in the email of 2 December 2021 setting out the effect of s 47 of the ST Act in the terms set out in Sch 2 of the ST Regulations. These requirements are mandatory requirements as set out in s 47(2)(c) and s 47(2)(d) of the ST Act. Consequently, in my view, the email of 2 December 2021 is not a written notice for the purposes of s 47 of the ST Act. For similar reasons the emails of 24 June 2020 and 8 November 2021 also fail to meet the requirement for a written notice under s 47 of the ST Act.
The strata company has a general duty under s 91 of the ST Act to control and manage the common property for the benefit of all the owners of the lots and to keep in good and serviceable repair, properly maintain and, if necessary, renew and replace the common property. In undertaking these duties, the strata company is required to enforce the scheme by-laws which includes conduct by-laws 2(a), 2(b) and 2(d). The persons to whom scheme by-laws may apply are listed in s 45(1) of the ST Act and, relevantly includes the strata company for the strata titles scheme and a member of that strata company (that is a lot owner). Pursuant to s 45(2) of the ST Act, each person to whom scheme by-laws apply must comply with the by-laws as if the by-laws were a deed (signed and sealed by each person to whom they apply) containing mutual covenants to observe and perform the matters set out in the by-laws.
As the outcome for a breach of a by-law may be substantial, for example the taking of a specific action within a period in order to remedy the contravention or prevent further contraventions or requiring the payment of a specified amount to the strata company by way of penalty (which must not exceed the amount fixed by the ST Regulations) for the contravention, in my view, the written notice must include the obligatory requirements as set out in s 47(2)(a), (b), (c) and (d) of the ST Act.
In my view, as two of the mandatory requirements for a written notice per s 47(2)(c) and (d) of the ST Act were not done, the notice does not comply with the requirements of s 47(2) of the ST Act. Therefore, in my view, the applicants' application for enforcement of scheme bylaws, where a written notice has been given, under s 47(1)(a) or s 47(1)(b)(iii) of the ST Act must fail.
However, s 47(1) provides three alternative ways for the strata company to enforce the scheme by-laws. The section relevantly provides:
47.Enforcement of scheme by-laws
(1)A strata company may —
…
(b)apply to the Tribunal under this section for an order enforcing scheme by-laws if —
(i)the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by-laws; or
(ii)the person has contravened the particular scheme by-law on at least 3 separate occasions; or
(iii)the person has been given notice under paragraph (a) and has contravened that notice.
Section 47(1)(b)(i) of the ST Act provides that a strata company may apply to the Tribunal where the contravention of a by-law (in this case by-laws 2(a), 2(b) and/or 2(d)) has had serious adverse consequences for a person other than Efficient.
The term 'serious adverse consequence' is not defined in the ST Act. It therefore takes its ordinary meaning.
The adjective 'serious' means:[56]
2.of grave aspect.
5.weighty or important: a serious matter.
6.giving cause for apprehension; critical: a serious illness.
[56] The Macquarie Dictionary Online.
The adjective 'adverse' means:[57]
4.opposite; confronting.
[57] Ibid.
The noun 'consequence' means:[58]
2.that which so follows; an effect or result.
[58] Ibid.
Ordinarily therefore, the term 'serious adverse consequences' means a serious unfavourable effect or result.
I do not accept the applicants' position that the carport posts on the common property without approval of the strata company has had serious adverse consequences for a person other than Efficient by the contravention of by-laws 2(a), (b) and/or (d). The reason for this is that, as testified by Dr Douglas, there has been no complaint made about the carport posts for the past 20 or so years up to the application being filed by the applicants. Further, while Mr Kullack stated that he cannot drive his vehicle on that part of the common property, he failed to explain why or how that has had serious adverse consequences for him.
Section 47(1)(b)(ii) of the ST Act provides that a strata company may apply to the Tribunal where it alleges that Efficient has contravened the scheme by-laws (in this case by-law 2(a), 2(b) and/or 2(d)) on at least three separate occasions. A contravention of by-law 2(a) requires a finding that the other owners or occupiers and/or visitors to that owner's lot have had their use and enjoyment of the common property unreasonably interfered with. Mr Anderson's evidence is that he does not go to that area where three carport posts are located and therefore, in my view, his use and enjoyment of the common property has not been interfered with. Neither Rosskeen nor Mr Stroud provided any evidence as to whether their use and enjoyment of the common property was unreasonably interfered with. Finally, I do not accept Mr Kullack's position that not being able to drive his vehicle in that area of common property has unreasonably interfered with his use and enjoyment of the common property in circumstances where Ms Williamson sought permission to remove the carport behind Lot 8 (including the three carport posts), before the final hearing, but Mr Kullack refused.
By-law 2(b) concerns the use of a lot. It is not relevant in this matter as the alleged contravention concerns the common property (and not a particular lot).
Finally, by-law 2(d) requires a finding that by having the three carport posts on the common property, Efficient or an occupier of Lot 8 has obstructed the lawful use of the common property. The applicants say that as the strata company has not approved the three carport posts to be on the common property and as Mr Kullack cannot drive his vehicle on that part of the common property Efficient has breached by-law 2(d). As noted, earlier Ms Williamson sought permission to remove the carport behind Lot 8. While Mr Anderson stated on 7 December 2020 to Ms Williamson[59] that she could do whatever she wanted with her carport, Mr Kullack refused her request. In circumstances where Mr Kullack has refused to allow Ms Williamson or Efficient to remove the carport (which includes the three carport posts on the common property), I am not satisfied that Efficient has obstructed the lawful use of the common property.
[59] Exhibit 1 at page 644.
In summary, even if the applicants had made their application to the Tribunal under s 47(1)(b)(i) or s 47(1)(b)(ii) of the ST Act, rather than under s 47(1)(a) or 47(2)(b)(iii) of the ST Act (where written notice is required to be given), in the circumstances of this case, I do not find that the three carport posts on the common property to have:
a)caused any serious adverse consequences for a person other than Efficient; or
b)unreasonably interfered with the use and enjoyment of the common property by other owners or occupiers of lots or of their visitors; and
c)obstructed the lawful use of that part of the common property in circumstances where Ms Williamson sought permission to remove the carport (including the three carport posts) but was refused by Mr Kullack.
At hearing, the applicants did not press that Efficient had contravened or breached Sch 2 conduct by-laws 3, 4 and 13.[60]
[60] ts 93-97, 8 November 2022.
Finally, in view of the above findings, it is not necessary for me to consider the other arguments raised by Efficient including that an easement exists between adjoining buildings for vertical and lateral support and that the removal of 'common property part of the carport' would result in the collapse of the part of the carport that is part of Lot 8.[61]
[61] Exhibit 1 at page 389.
In exercising the Tribunal's discretion to make an order under s 47(5) of the ST Act, I must be satisfied that the nature of the breach and the circumstances surrounding it, justify the making of an order. I find that the three carport posts on the common property were affixed on common property without approval of the strata company. Further, I find that Efficient, as the current owner of Lot 8 does not escape obligations under the ST Act for the carport posts on common property due to the fact the carport was erected by the previous owner, Dr Douglas without the approval of the strata company. The applicants seek to have the three carport posts removed from the common property under s 47 of the ST Act as an enforcement of the scheme by-laws. Efficient confirmed at hearing that it does not oppose removing the three carport posts from the common property. However, Ms Williamson challenged whether an order could be made against Efficient to remove the carport posts on the common property when all owners co-owned the common property. This challenge must fail, in my view because nothing in the ST Act precludes the strata company from requiring an owner to remove something placed on common property without approval of the strata company and to make good the common property (see for example, Wong v Reid).
In conclusion, in the circumstances of this case where Mr Kullack refused Ms Williamson's reasonable request to remove the carport behind Lot 8 (including the three carport posts), in my view, it is not appropriate to exercise the Tribunal's discretion to make an order under s 47(5) of the ST Act for the contravention of a scheme by-law, as sought by the applicants, because I am not satisfied that Efficient has contravened either by-law 2(a), 2(b) or 2(d).
Finally, by way of observation, had the applicants made their application under s 197(4) of the ST Act to resolve a scheme dispute, (rather than an application under s 47 for the enforcement of scheme by-laws) a different outcome may have resulted. For example, in The Owners of Habitat 74 - Strata Plan 222 and Betteridge & Ors [2005] WASAT 25 the Tribunal ordered for an airconditioner installed on common property to be removed on an application made under s 83(1) of the ST Act (as it applied before 1 May 2020).
Finally, I note that in Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170 the Tribunal, at [69], made the following general observation of the limited role in which the Tribunal plays in relation to the management of strata companies.
The scope for intervention by the Tribunal in the day-to-day internal management decisions of a strata company and its council is, under the ST Act, generally quite specific; usually quite limited; and often only available as a last resort[.]
I now turn to consider the alleged damage to common property.

Repair of damage to common property - breach of scheme by-laws

The applicants' claim under s 47 of the ST Act that Efficient, after removing without authority the two carports on the common property behind Lot 6 and Lot 7 (see below at [151] to [207]), damaged what is referred to by the owners as the 'common property accessway/driveway'.
At hearing, Mr Kullack explained that on behalf of the strata company Perth Recruitment paid $6,500 to Landscape A Lot in or about May 2022[62] to repair the paving on the common property accessway/driveway after Efficient demolished without authority the two carports that were on the common property behind Lot 6 and Lot 7 on 30 May 2020 and after failed attempts by Efficient to try to repair the paving where the two carports had been located. Mr Kullack said the common property accessway/driveway was left in a hazardous state by Efficient as evidenced by the photographs.[63] The reason for the degradation, according to the applicants, is that the original brick paving was not intended to be used as a driveway but rather for car parking. Mr Anderson in an email dated 17 February 2022 stated in part:[64]
The shifting of the paving bricks results from the increased use of the 'new' accessway created by [Ms Williamson's] actions. This wasn't a problem with the previous access and driveway as the bricks there are butted against the buildings and there was no turning wheel pressure on the court side paving.
[62] Exhibit 1 at page 696.
[63] Exhibit 1 at page 97.
[64] Exhibit 1 at page 791.
The parties agree that there was damage to the paving on the common property where the two carports were previously. However, Efficient questioned why no concern was raised regarding the paving or footings until one and half years after the carports were removed.
Mr Chambers said the damage to the common property was due to vehicle movements by the change in traffic flow.[65] However, Ms Williamson in her capacity as a registered builder, and Mr Chambers both denied that the common property accessway/driveway had degraded enough to warrant any repair.[66] This position is reflected in Ms Williamson's email to Mr Kullack on 9 March 2022.[67] Further, Ms Williamson, who is a building practitioner with over 16 years' experience as a builder submitted:[68]
[I]t is common and acceptable when removing structures such as posts of signs and buildings that are supported in concrete or paving to cut the post at the paving surface and leave the concrete below[.]
…
The paving generally in this strata scheme is of medium standard and have been laid on sand rather than road base and the edging has broken down due to being insufficiently installed in the first place. And is unrelated to the removal of the carports.
…
Any irregularity in the paving reflects the general condition and standard of how the paving was done in the first place and the wear and tear of many years of use, and is not in any way affected by or related to the removal of the carports[.]
[65] ts 195, 8 November 2022.
[66] ts 138 and 162-163, 8 November 2022.
[67] Exhibit 1 at page 104.
[68] Exhibit 1 at pages 390-391.
Efficient rely on Mr Chambers' submission that he had cut the posts and denied there were any sharp edges left, that the works are a 'maintenance' job and that the strata company has to recover that money through its proper process.[69]
[69] ts 195, 8 November2022.
Mr Kullack did not accept the view expressed by Mr Chambers and said he could not proffer a view as he is neither a tile paver or builder and that all he could say is that since the posts were removed within 12 to 18 months the pavers are clearly dislodged and are sitting up in the air.[70] Mr Kullack explained that the damaged paving had significant gaps of up to 60 millimetres wide which are a clear hazard.
[70] ts 77, 7 November 2022.
Mr Anderson testified:[71]
The history of the carport - that the driveways - each owner paved or sealed the common property in line with their buildings. They weren't done as one. …
It did degrade over time but since the owners no longer looked after the common property behind their property, when [Ms Williamson] insisted on common properties being common property and the driveways need repairs, and they certainly did degrade enough after the change of use. They badly needed repairs. I felt that all owners should pay for the common property repairs; and don't forget the degrading of the common driveways even included the small section at the entrance of Holdsworth Street, which don't appear in the photographs. But it just happens through time. It doesn't matter what caused it. They did degrade, they did need repairs.
[71] ts 112-113, 8 November 2022.
Mr Kullack explained that he obtained a quote for the repair of the common property accessway. Efficient responded by stating there was not enough detail to which Mr Kullack suggested they seek other quotes. In reply, Ms Williamson again stated that 'the paving is not unserviceable and is not deteriorating and although it would be nice for it to be tidied up it is only one of several issues that affect this scheme'.[72] Mr Kullack proceeded to have the repair works completed in or about April 2022. Mr Kullack stated the repair works could not wait because it was getting worse and worse, and it got to a point where there were gaps up to 60 millimetres in between the pavers. Mr Kullack said it was a safety hazard, particularly for elderly people with walking aids who attend Lot 5 which carries on a podiatry business.[73]
[72] Exhibit 1 at page 110.
[73] Exhibit 1 at page 113.
Mr Kullack stated that the owners, besides Efficient, agreed to pay an equal share towards the repair of the paving on the common property despite the repairs having been necessitated by the actions of Efficient.
In my view the photographs of the common property driveway show the paving was in disrepair and in a hazardous state and required prompt attention by the strata company.[74]
[74] Exhibit 1 at pages 118-120, 170-172 and 194.
The work carried out by Landscape A Lot required the lifting and stacking of 131m² of common property accessway/driveway, wheelbarrow in sand, compaction, screeding and relaying of paving, concrete edging of paving to the wall and to grout with white sand.[75]
[75] Exhibit 1 at pages 105 and 696.
Pursuant to s 91(1) of the ST Act, the strata company must renew and replace the common property whether the damage or deterioration to the common property arises from fair wear and tear, inherent defect or any other cause. In my view, it was necessary for the strata company, to have the common property driveway/accessway repaired in order to comply with its general duty under s 91(1) of the ST Act.
While Mr Chambers complained that the scope of works was 'entirely vague' and therefore there was no point in getting any quotes himself, there is only one invoice from Landscape A Lot before the Tribunal for the works carried out on the common property.[76] Having reviewed the invoice, in my view, the cost for the repair work to the common property accessway/driveway is reasonable. Efficient did not provide any quotes for the Tribunal to consider.[77] It is appropriate therefore, in my view, to accept the invoice for $6,500 as being reasonable for the work carried out to repair the common property accessway/driveway.
[76] Exhibit 1 at page 696.
[77] ts 163-164, 8 November 2022.
Mr Kullack and Mr Anderson stated that they have already paid Efficient's share of the $6,500 plus GST, that is $1,787.50 (for a 25 unit entitlement out of 100 units). The applicants seek an order under s 47(5) of the ST Act requiring Efficient to pay $1,787.50 for contravention of by-laws 2(a), 2(b) and/or 2(c).
The applicants rely on the same emails that they relied on in respect of the three carport posts (see above at [91] to [89]) as the 'written notice' for the purposes of s 47 of the ST Act.^[78]
[78] ts 95, 7 November 2022.
The email of 8 November 2021 provides in part:[79]
The owners of 27, 29 and 31 Parry Street, Fremantle representing the [strata company] are writing to inform you that you have 21 days to rectify the following.
...
2/Repair the damage to the common property and driveway caused by your demolition of the carports of Lots 6 and 7.
If not completed within 21 days the [strata company] will make application to SAT to enforce the order
[79] Exhibit 1 at page 167.

Having found that the erection of each of the two carports on common property behind Lot 6 and Lot 7 was not approved by the strata company, including that there was no exclusive use by-law for the owners of Lot 6 and Lot 7 and the occupiers to Lot 7 and it visitors to exclusively use the carports, I now turn to consider whether the removal of the two carports by Efficient on 30 May 2020 was approved by all the owners (the strata company) as asserted by Efficient but denied by the applicants and then I will turn to finally determine whether the compensation, if any, as claimed by the applicants is payable.
Efficient contends:[108]
The statement that the carports on common property behind Lots 6 and 7 were removed without knowledge or consent is totally false. Meetings were held prior to the removal of the carports and the respondent emailed everyone on 25^th May to say that she would do it on a weekend to minimise disruption. All lot owners agreed that the carports were a clear obstruction to accessing lots via the common property. On the 27^th May, Peter Stroud emailed to say that he and the other owners were in agreement with the proposal to remove carports in order to stop other lot owners driving across his private lot. No other owners responded to say that they objected to their removal. One on one discussions with applicants 1 and 2 in CC1960/2021, Tim Kullack and Tony Anderson, indicated full support for the carport removal. In fact the current applicants had also agreed with the previous Lot 8 owner as well that the carports should be removed, although that didn't go ahead. Tony Anderson indicated that he intended to build a replacement carport on his private lot which I had no objection to but did not realise that he later intended to request that the respondent pay for the improvement to his private lot. There were not emails to say they objected to their removal, between the time that the respondent notified them of their removal and their actual removal.
[108] Exhibit 1 at page 1281.
It is useful to start by setting out the emails identified by the parties concerning the removal of the two carports on the common property behind Lot 6 and Lot 7.
On 1 May 2020 Ms Williamson emailed the other owners and stated in part (added emphasis in bold):[109]
I have recently purchased 25 Parry Street [Lot 8] and after some informal chats with Tim [Mr Kullack] regarding the strata property as a whole I would be interested to hear what individual owners would think of me removing the car ports and rear toilets as part of the process of improving the value of the strata overall. Clearly the layout as per the attached lends to access and vehicle manoeuvring along the rear where the common property is and then for individual owners to have sole use of the areas directly to the rear of their own properties either for parking or courtyard. Tentatively I'd like to propose for us to meet at the back of 25 Parry Street [Lot 8] where I can put out some socially distant seating. Perhaps 4pm this coming Monday may suit? Please let me know if you can make it or suggest an alternative time/date that would suit?
[109] Exhibit 1 at page 920.
Ms Williamson says she put this proposal forward in order to establish a vehicle accessway along the rear of the common property.[110]
[110] Exhibit 1 at page 365.
On 2 May 2020, Mr Stroud replied:[111]
Yes your proposal sounds good at this stage[.]
[111] Exhibit 1 at page 921.
On 2 May 2020, Ms Williamson sent the following email to the owners:
Would 6:15pm on Monday be ok for you or maybe for following weekend? Please let me know. Otherwise if all are in agreement I can simply start the paperwork (with Fremantle Council) and come and see you individually as I will need signatures on the application form.[112]
[112] Exhibit 1 at page 919.
On 4 May 2020, Mr Anderson requested Ms Williamson to send him her proposals so that he could consider them.[113] In reply, Ms Williamson stated:
I am simply asking for carports and toilets to be removed so that car manoeuvring can be done on the common property in the back 6m rather than through private space to the rear[.]
[113] Exhibit 1 at page 932.
On 25 May 2020 Ms Williamson emailed the owners stating:[114]
Whilst refurbishing no 25 [Lot 8], I've been pondering the parking and access arrangements at the back of the properties.
The arrangement seems unusual as it relies on access for vehicles across the rear of the private lots.
This stands to complicate any future plans for the individual lots if future owners would like to enclose their back areas either as private courtyard for outside living or for parking for security. Any such impediment lowers the value of the lots from what might otherwise be their potential.
It seems to me that needs to be addressed at some stage and I wonder if now is not a good a time as any.
My suggestion is we remove the carports along the back so we can reinstate a vehicle access leg over the common property. There will be room for the existing parking on the private rear portions of the individual lots and even if there is a need for a little overhang into the common property there will still be room for access and manoeuvring as only 3m is required for an access leg (driveway). As some stage in the future it might make sense to reduce the common property from 6m wide to maybe 4m or 5m to put more space into the private lots. The lots will be more valuable this way.
Can you please share your thoughts on this. If you are agreeable for the carports to be removed I can arrange that on a weekend day so there is no disruption and would be prepared to do this at my cost[.]
[114] Exhibit 1 at pages 939-940.
In reply on 25 May 2020 Mr Anderson emailed the owners stating (added emphasis in bold):[115]
Whilst I can see your reasoning there are practical issues affecting your proposal.
Firstly, mine is an office and I have not need for a "private courtyard for outside living". I do however want the carport. Before I installed mine, I discussed what was broadly your suggestion with the previous owners of yours and Tim's properties. They were not agreeable to demolishing their toilets.
As long as I have had my property, over 28 years, and presumably long before, accessway has been where it is now, on what was then common property and presently on individual lots.
It's practical usage, not related to strata plan drawings, and council approved usage as well.
[115] Exhibit 1 at page 939.
On 29 May 2020 Mr Stroud emailed the other owners stating (added emphasis in bold):[116]
The other owner [of Lot 5] and myself are in favour, in principal (sic) of Janet's proposal to look at units 29 and 27 [Lot 6 and Lot 7] moving their carports allowing easy access to units 29, 27 and 25 without crossing through our property.
[116] Exhibit 1 at page 938.
On 30 May 2020 Ms Williamson emailed Mr Kullack after the carports had been removed stating:
I'm sorry if things moved a bit faster than you are expecting however everyone had agreed and even this week you came to me to discuss this and also discussed removing the old toilets and what paving should go down afterwards. The discussion included that the toilets were a local government matter and I'm sorry of (sic) you thought for a moment this morning I was going to demolish yours. The material for the carports is stacked on Tony's lot and if everyone would like I'll dispose of it to waste. The parking can now be on the private lots and the common property left clear for manoeuvring. I am also changing the parking on my lot the same and will need the rear corner of the common property kept clear for manoeuvring a three point turn to exist in a forward direction as required by the R-codes.
I am sorry that you were surprised but I thought I was doing everyone a big favour and once the dust settles I hope everyone sees this has freed up a significant complication for all sites[.]
On the same date, 30 May 2020, Ms Williamson emailed Messrs Anderson and Stroud to let them know the carports had been removed.[117]
[117] Exhibit 1 at pages 972-973.
On 31 May 2020 Ms Williamson emailed Mr Stroud stating in part:[118]
During our conversation at your office last week you mentioned there had been some consideration of removing both the carports and the toilets so as to reduce the common property access leg and merge the surplus common property into the private lots to increase the flexibility within the private lots.
I've drawn how this might look on a plan.
…
Can you let me know if this is what you had in mind and if you'd like to explore it further[.]
[118] Exhibit 1 at page 936.
On 31 May 2020 Ms Williamson replied to Mr Kullack's email stating in part:[119]
When you came to me during the week you went into considerable detail about your expectation for removing both the carports and the toilets. This was so detailed that you even expressed what your preference was for reinstating the paving once the toilet structures were removed. You asked my preference and expressed your own as being to match the existing brick paving.
Your email this morning amounts to a 180 deg about face from what was your clear preference throughout all that discussion.
There is however merit in the idea of removing the toilets so that the common property access leg can be reduced and the surplus common property merged into the private lots allowing each owner greater flexibility.
I've sketched this on a plan so (sic) show what it might look like. I've reduced the access leg to 4.5m which is about the minimum practical. A truncation is usually required at the street however at 4.5m width this may not apply. This will be sufficient to accommodate a carbay between your lot boundary and the rear addition on your property[.]
[119] Exhibit 1 at page 969.
On the same date, 31 May 2020 Mr Kullack emailed Ms Williamson stating that she did not have permission from him to remove the carport and asked for it to be replaced.[120]
[120] Exhibit 1 at page 321.
In response to Ms Williamson's email of 25 May 2020, on 2 June 2020 (after the removal had taken place on 30 May 2020), Mr Kullack emailed Ms Williamson stating:[121]
We have been OK with the car parking as it was and have had no objection to the users of #25 [Lot 8] crossing over our properties for access to yours.
We understand your proposal to change the parking and vehicle access arrangements but however have the following conditions.
The toilets be removed at your cost including demolition, removal, the making good of the driveway and any planning application required. The toilet removal is required to make vehicle access in and out of each parking bay practical for all owners.
Both carports be replaced. We will not incur any cost for the planning, removal and replacement of the carport structures.
If you do not agree to so we insist on the placement of the car parking, car ports and drive way use to remain as it was prior to 30^th May 2020.
[121] Exhibit 1 at page 944.
On 2 June 2020 Mr Anderson emailed Ms Williamson stating (added emphasis in bold):[122]
Not good. I made it clear I want my carport. I paid a lot for a sturdy steel carport and that's what I want.
Up to you to re-install it now. No more discussions about this. This is about to turn ugly.
[122] Exhibit 1 at page 979.
On 3 June 2020 Ms Williamson emailed the owners stating:[123]
[123] Exhibit 1 at page 942.
Thank you for your more detailed response to my proposal. It appears we may be headed to a constructive dialogue on a way forward.
Since taking ownership of lot 8 I've become slowly more appraised of some of the history of this strata although looking at the thick green folder Tim had this morning I wonder if there's perhaps a lot that I haven't been told.
At all of the chats I have had with each of you it was plainly clear that the essence of both proposals to reconfigure the parking had commenced well before I bought lot 8 and I had the strong impression it was simply a matter of 'when' as everyone indicated it should happen. This message was reinforced more than once with each of you and I really thought I was doing everyone a favour by progressing it so quickly and at my expense.
I wonder now if the information that I didn't know, and wasn't told, is that there was presumed an intrinsic link between the change to the parking and removal of the old toilets, and furthermore, the new arrangement would require the giving up of an exclusive right of occupancy over part of the common property that it was felt justified expecting the owner of lot 8 to bear all the cost.
From our discussion this morning it appears that both of you regard this exclusive use at the level of 'obvious' however I hope you might consider from my perspective, as the new kid on the block, all I have to go on is the strata plan that you all signed off on (sic) in 2018, and which the City approved, that shows no exclusive use rights, no easements over any land, and no carport structures.
I'm not to know whether this deficiency in the application was perhaps pre-emptive of the change that everyone regarded as a forgone conclusion.
Although this deficiency might be blamed on the surveyor who is obliged to show all improvements on the land, it is nonetheless an application by the respective lot owners and therefore prima facie their error amounting to a misrepresentation to Landgate.
Either way, the result is the current strata plan, which extinguishes all that it replaces, shows no carports, no exclusive use rights and no easements over common property or private land.
…
It is not for the City or any individual to decide unilaterally that because an access route is potentially available over private land that they are free to occupy the common property. Access must be available via the common property[.]
On 3 June 2020 Mr Anderson emailed Ms Williamson stating:[124]
In your long email you imply you may have been supplied with wrong or incomplete information. You mention deficiencies of the surveyor, errors in the strata plan, incorrect approvals granted by the City of Fremantle, "prima facie" errors and misrepresentation to Landgate by the owners and Tim's "thick green folder" that you think may contain information you should be privy to.
None of these has any relevance to the primary issue we have, which is your wilful and malicious damage to the carports.
Any issues relating to strata drawings, present and proposed access, use of common property or similar can easily be discussed and agreed to between all the owners.
Our issue is your removal and demolition of the carports carried out by you on a week end (sic) without any notification to us whatsoever and definitely without our consent and this is what must be resolved.
[124] Exhibit 1 at page 941.
On 9 June 2020 Ms Williamson emailed Mr Kullack and Mr Anderson explaining, inter alia, why access to Lot 8 needs to be via the common property.[125]
[125] Exhibit 1 at page 562.
In response, on 11 June 2020 Mr Anderson stated in part:[126]
Where I park was determined by the Council when they approved my carport. That was the only place a carport could be installed due to the existence of the toilets. Any other site would have obstructed the vehicle traffic to Tim's [Mr Kullack's] and your properties.
Where our cars are parked cause the least hindrance to access to your property[.]
[126] Exhibit 1 at page 561.
In response to Ms Williamsons' email of 28 June 2020, on 29 June 2020 Mr Stroud emailed Ms Williamson as follows:[127]
I did not agree in principle to you removing the car ports without the owners' permission and without agreement of all owners.
Not responding to your plans and emails in (sic) no way implying that I agree with what you do or plan.
[127] Exhibit 1 at page 322.
Mr Kullack explained that initially he requested for the carports to be reinstated on to the common property. However, when all owners agreed that the common property is to be used as an accessway/driveway, Mr Kullack stated that what he previously thought was relevant is no longer relevant.[128]
[128] ts 37, 7 November 2022.
Efficient contend that the applicants by agreeing to the order made by the Tribunal on 19 June 2020 by consent of the parties (which did not include the strata company) to not park vehicles on the common property, rather than seeking an order for the carports to be reinstated, deny the applicants have suffered any loss but rather the applicants have gained many and considerable benefits from the removal of the carports including:[129]
[129] Exhibit 1 at page 394.
i.Vehicle access to all lots no longer relies on carriage over the private lots for which no lot has a legally enforceable right and which potentially encumbered each lot.
ii.Each lot is no longer serving as access carriageway for other lots which although not an obligation would have caused considerable disharmony to terminate.
iii.Lots 6 and 7 previously had no parking spaces 'as a right'. They now have as many as three parking spaces each.
iv.The layout for parking and access for the scheme and for lots 6, 7 and 8 was inefficient and has now been vastly improved.
v.The value of any of lots 5, 6, 7 and 8 would have been negatively affected by uncertainty of legally enforceability of access and parking and the removal of the carports will have increased the property values of all lots considerably.
vi.The parking and access was not in accordance with the strata plan or the by-laws.
vii.Lots 6 and 7 have been able to establish parking immediately behind their buildings and build their own carports which was not possible under the previous layout.
viii.Each lot is free to extend to the rear with potential for a storey over the carpark whereas previously this would not have been possible.
Efficient rely on Ms Williamson's letter to Mr Anderson, attached to an email of 29 June 2020, where she stated in part:[130]
[130] Exhibit 1 at pages 758 to 762.
[T]he agreement for the removal of the carports is the sum of all discussion and prior actions on the matter and our conversations and your email. This adds up to you acknowledging the arrangement was unsatisfactory and needed to change. This, in the further context of the provision of the [ST] Act, whether your understood this or not – that parking on the common property is prohibited and obstructing lawful use of common property (which including using it for access) amount to recognition rather that the then existing arrangements was unsatisfactory and unlawful and had to change. This constitutes agreement that the carports needed to be removed.
…
What is now exposed is the expectation that by maintaining the unlawful occupation of the common property in a manner that obstructs access via the common property to lot 8, you (and others) intended to force the owner of lot 8 to provide you with a replacement carport on your lot and removal of the toilets.
This is revealed by your email setting out conditions that the toilets be removed and new carports be provided to yourself and Tim at my cost entirely.
…
The bottom line is that 'your' carport being on the common property was not a sustainable arrangement and you readily acknowledge that to be your position prior to when it was built, and for at least the past five years, and again just recently and even if you didn't understand the full extent of the unlawfulness of it being there, my removal of it was well intended and undertaken for the benefit of all members of the scheme and the scheme itself and was done at no charge as a favour. The arrangement was a 'dog's breakfast' and I've taken the first major step to resolving it for the benefit of all and done so quickly at no inconvenience to any other owners and at no cost to them.
…
Tony I repeat that I have no interest in all this other than to get in and get out of improving the property that I bought. None of you had a clue how to fix up the parking and here I've handed to you on a platter. You would be foolish to look a gift horse in the mouth[.]
….
It is a storm in a teacup with a simple solution that makes us all better off[.]

Ms Williamson and Mr Chambers thought by a combination of emails and discussions they had with the other three owners that Efficient had the approval by the strata company for Efficient to remove the two carports on the common property. As already explained, the underlying principle of management and control of common property according to the ST Act is that the owners must collectively consent to erections, alterations or removal of structures on the common property before they may occur. This is in recognition that the strata company is responsible for managing and controlling the common property for the benefit of all owners (s 91 of the ST Act).
In my view, the owners were still in the process of discussing the carports but had not arrived at a concluded view where they collectively agreed for the carports to be removed. At best, on 29 May 2020, Mr Stroud was in favour 'in principal (sic) … to look at …. moving their carports…' but he had not yet agreed for the carports to be removed. Mr Anderson was very clear on 25 May 2020, when he stated, 'I do however want my carport', that is, not just a carport but his carport. Similarly, the responses from Messrs Kullack and Anderson after 30 May 2020 were very clear that they had not given Efficient permission to remove the carports.
Other than in the case of an emergency, which is not the case here, it is usual that when an owner wants to alter or remove a structure on the common property that a resolution is put to the strata company (that is, the other owners) with sufficient time for all owners to consider and vote on the resolution. This is so, even if the removal is of a 'minor nature' as described by Ms Williamson.[131] That was not done in this case. What happened here was there were a number of conversations between Ms Williamson and/or Mr Chambers with various lot owners but not at the same time and various emails which went to and fro Efficient and various lot owners. No resolution was put by Efficient to the strata company seeking approval to demolish the carports. The owners collectively were not given the opportunity to vote on Efficient's proposal to remove the carports. Efficient did not inform the other owners in advance that they would be removing the carports on 30 May 2020 and that they would leave the debris on Mr Anderson's lot to be recovered or otherwise disposed of. It is no wonder, in my view, that the owners (apart from Efficient) were taken by surprise, when on 30 May 2020, they found or were told the carports had been removed.
[131] ts 148, 8 November 2022.
In conclusion, while Ms Williamson stated that as a builder her job is to improve a property, hopefully make a profit and to move on,[132] in my view, in circumstances where the City had not issued a demolition order (unlike the situation with the toilets on the part Lots),[133] Efficient, unilaterally removed the carports on the common property without approval of the strata company. This leads me to the final issue of whether the compensation, if any, claimed by the applicants is payable by Efficient to the applicants.
[132] ts 151, 8 November 2022.
[133] ts 103 and 162,8 November 2022.
In terms of compensation claimed, the applicants are seeking $27,460 for the two carports erected on Lot 6 and Lot 7.[134] This is the adjusted combined amount Messrs Kullack and Anderson paid for the carports erected on their respective lots on what Mr Kullack described as a 'like for like' basis.
[134] Exhibit 1 at pages 324 to 325.
Mr Chambers gave evidence that the carports on the common property behind Lot 6 and Lot 7 were between 20 to 30 years-old and the galvanising was breaking down and rusting. Further, according to Mr Chambers the roof sheeting was in extremely poor condition and not reusable. It is Mr Chamber's view that taking in account the cost of dismantling, transport to and from, galvanising and the cost of galvanising, the practicalities of storage, costs of one-off structural redesign and certification of design compliance, re-supply of unsalvageable components including roof sheeting and posts, reinstallation including fixings and site welding, it would not have been economic or aesthetically satisfactory to attempt to reinstall the existing structures in another location.[135]
[135] ts 139, 8 November 2022.
Mr Chambers said they disposed of the carport debris when Mr Anderson said he had no use for the debris.[136]
[136] Exhibit 1 at page 979 and ts 113 and 140, 8 November 2022.
Efficient's unilateral action to remove or demolish the carports on the common property cannot be condoned. It was totally inappropriate for Efficient to demolish the carports on the common property behind Lot 6 and Lot 7 without the proper approval of the strata company. If such approval was not forthcoming it was open for Efficient to make an application to the Tribunal under s 197(4) of the ST Act seeking to resolve a scheme dispute by an order for the carports on the common property to be removed. Having said that, in my view, in the circumstances of this case, it is not appropriate to exercise the Tribunal's discretion to make an order under s 200(2)(o) requiring Efficient to pay to the applicants any compensation sought for pecuniary loss or damage suffered. The reasons are as follows.
Neither the current nor the previous owners of Lot 6 and Lot 7 had approval of the strata company to erect a carport on the common property. It was therefore open for the strata company to require the owners of Lot 6 and Lot 7 to remove their respective carports on the common property at the cost of the current owner. While Messrs Kullack and Anderson 'don't think it's right that [they] should have to pay for a second carport',[137] as they had incurred cost for the carports erected on the common property, that does not obviate the obligation to obtain approval from the strata company for the carports to be erected on the common property. It is the responsibility of the current owner to ensure through due diligence that any structure located on the common property by the previous owner was done with the necessary approval of the strata company as required by the ST Act and the scheme by-laws. Finally, it is not necessary for me to consider whether the applicants benefited from the removal of the carports as suggested by Efficient (see above at [196]). This is because the applicants are seeking compensation for pecuniary loss.
[137] ts 107, 8 November 2022.
In conclusion, in my view, in all of the circumstances of this case and for the reasons set out above, it is not appropriate to exercise the Tribunal's discretion to require Efficient to pay any of the compensation sought by the applicants under s 200(2)(o)(i) of the ST Act. The appropriate order is for the applicants' application for compensation to be dismissed.

Conclusion

It is unfortunate that the individuals concerned in these proceedings have been in dispute about many things concerning the strata scheme and that the relationships have deteriorated.
The Tribunal's objectives require 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).
Reflecting back on the orders sought by the applicant (refer above at [7] to [9]), and the findings reached in respect of the issues before me, I make the following orders.

Orders

CC 1960 of 2021
The Tribunal orders:
1.The applicants are given leave to amend the application and the application is amended by substituting order 2 sought (to repair damage to common property driveway) with the order sought at the final hearing on 7 November 2022 that the respondent pay $1,787.50 (for repair works completed).
2.Pursuant to s 47(5)(a) of the Strata Titles Act 1985 (WA), the respondent shall pay $1,787.50 to the first applicant within 14 days of this order for contravention of Sch 2 conduct by-law 2(a).
3.The application is otherwise dismissed.

CC 2028 of 2021
The Tribunal orders:
1.Pursuant to s 200(1) of the Strata Titles Act 1985 (WA), the application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
2 FEBRUARY 2023