VANE and OWNERS OF CARINYA COURT ROCKINGHAM STRATA SCHEME 25819 - [2024] WASAT 40

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   VANE and OWNERS OF CARINYA COURT ROCKINGHAM STRATA SCHEME 25819 [2024] WASAT 40
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   6 MAY 2024
FILE NO/S:   CC 1365 of 2023
BETWEEN:   LINDA VANE
Applicant
AND
OWNERS OF CARINYA COURT ROCKINGHAM STRATA SCHEME 25819
First Respondent
MARK GREGORY CLAY
Second Respondent

Catchwords:

Strata Titles Act 1985 (WA) - Structure - Structural alteration of lot - Whether necessary approval for alteration sought - Whether valid refusal to give necessary approval - Grounds on which approval for structural alterations may be refused - Application to dispense with the requirement for approval of structural alteration of lot - Tribunal proceedings - Whether structural alteration reasonable - Whether structural alteration causes significant inconvenience or detriment to lot owners - Discretion of Tribunal to make orders - Turns on own facts

Legislation:

State Administrative Tribunal Act 2004 (WA), s 9, s 46(1)
State Administrative Tribunal Rules 2004 (WA), r 42A
Strata Titles (General) Regulations 2019 (WA), reg 73, reg 74, reg 75, Pt 11
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 81(7), s 103G, Sch 1, Sch 2
Strata Titles Act 1985 (WA), s 3(1), s 86, s 87, s 87(2), s 87(5)(c), s 88, s 89, s 90, s 90(1), s 90(2), s 90(3), s 120, s 197(4), Pt 7, Div 2, Sch 5
Strata Titles Amendment Act 2018 (WA)

Result:

Application granted
Order made

Category: B

Representation:

Counsel:

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

Solicitors:

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

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

Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25
The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL:

Background

This proceeding concerns an application by a lot owner seeking an order dispensing with approval for structural alterations to their strata lot.
On 15 June 1994, strata plan 25819 was registered (strata plan) pursuant to the Strata Titles Act1985 (WA) (ST Act) and the strata scheme known as 'Carinya Court' was created. The strata scheme is a 18-lot scheme in the City of Rockingham comprising 18 residential units of three floors and of brick, concrete and iron construction.
On 14 April 2023 a 'Notice of an Outside Meeting Resolution' along with an application by the owner of Lot 17, Mrs Linda Vane, to alter her lot per attached plans and specifications (proposed resolution) and a voting paper was issued to all the owners in the strata scheme. Voting opened on 3 May 2023 and closed on 2 June 2023.
The proposed resolution was for the renovation of the kitchen of Lot 17. The nature of the building works as set out in the building permit issued by the City of Rockingham (City) on 27 June 2023 was for 'structural alteration to roof beam [and] removal of 2 x internal brick walls' (structural alterations).
By mid to late June 2023, the building works to Lot 17 commenced.
On 2 August 2023 Mr Mark Gregory Clay (the second respondent in this proceeding) filed an application (CC 1054 of 2023) with the Tribunal seeking the resolution of a scheme dispute under s 197(4) of the ST Act. Included in his application, Mr Clay requested the Tribunal to make an interim order against Mrs Vane to stop the building works that had commenced at Lot 17.
On 3 August 2023 the parties agreed to adjourn Mr Clay's application (CC 1054 of 2023) for an interim order and to refer both matters to mediation.
At the mediation held on 14 August 2023, at the request of Mr Clay, the Tribunal gave leave under s 46(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for Mr Clay to withdraw his application for the interim order (CC 1054 of 2023). Further, at that mediation, the parties agreed that by 15 August 2023 Mrs Vane issue a fresh 'Notice of an Outside Meeting Resolution' concerning the proposed resolution to be voted on by the lot owners. Voting opened on 1 September 2023 and closed on 29 September 2023.
In his substantive application (in CC 1054 of 2023), Mr Clay seeks the following orders:
Subject to the discretion provided to the Tribunal by s 90(1) of the Act if satisfied by the matters set out in s 90(3) of the Act:
1.That the purported s 120(3)(b)/(4) proposed resolution by the Respondent Lynda Vane, as owner of Lot 17 Carinya Court Rockingham (Lot 17) for approval of a structural alteration under s 89(1) of the Act that was sent within a notice attached to an email sent 14 April 2023 to the owners/members of Carinya Court Rockingham ("the Proposed Resolution" and "the Notice") was then and remains invalid.
2.Further and alternatively, if the Proposed Resolution was or is valid, that the vote of the Applicant communicated to all owners including the Respondent on 1 June 2023 against the Proposed Resolution was a valid vote against the Proposed Resolution such that the Proposed Resolution failed.
3.That within such reasonable period as this Tribunal determines, the Respondent shall reinstate Lot 17 and the common property walls and ceilings that bound Lot 17 to the state and condition that they were in on 14 April 2023 prior to the demolition, construction and renovation works envisaged by the Proposed Resolution that have commenced on Lot 17 since in or about midJune 2023.
4.That the Respondent pay the Applicant's reasonable expenses and disbursements of this Application.
On 29 September 2023, the Tribunal referred Mr Clay's application (CC 1054 of 2023) to a further mediation on 30 October 2023. The matter did not resolve.
In between the mediations of Mr Clay's application (CC 1054 of 2023), on 10 November 2023, Mrs Vane commenced this proceeding (CC 1365 of 2023) in the Tribunal under s 90(1) of the ST Act. Mrs Vane seeks the following order:[1] [2]
That the Tribunal exempt the structural alterations to Lot 17 from the application of this Division (Division 2 Structural alteration of lots) of the [ST Act] as amended 2018.
[1] All documents filed by the parties in this proceeding have been included in Exhibit 1 (pages 1 to 201) prepared by the Tribunal on 12 April 2023 to which I have had regard for the purpose of my determination in this proceeding.
[2] Exhibit 1 at page 25.
At the first directions hearing on 24 November 2023, the respondent, the Owners of Carinya Court Rockingham Strata Scheme 25819 (strata company) informed the Tribunal that it would abide by the decision of the Tribunal.
Following the usual programming orders for these types of strata scheme matters including requiring the strata company to give to each of the owners of the lots in the strata scheme (each a notified person) a copy of the Tribunal's orders and a copy of Mrs Vane's application and her supporting documents filed with the Tribunal, Mr Clay, a notified person, as the owner of Lot 18 on the strata plan, sought to be joined as a respondent in this proceeding.
At a directions hearing, on 5 December 2023, the Tribunal joined Mr Clay as the second respondent in this proceeding.
Following further programming orders, the Tribunal referred this matter to mediation on 15 December 2023 (along with Mr Clay's application CC 1054 of 2023). The matters did not resolve at mediation. Subsequently, on 15 December 2023 the Tribunal made the following order in regards to Mr Clay's application (CC 1054 of 2023):
This proceeding [CC 1054 of 2023] is stayed pending the resolution of matter CC 1365/2023 or until further order of the Tribunal.
On 15 March 2024, the Tribunal ordered for Mrs Vane's application (CC 1365 of 2023) to be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
In the reasons which follow, I explain why Mrs Vane's application under s 90(1) of the ST Act, for an order dispensing with approval for the structural alteration to her Lot 17, is successful.

Issues

The following three principal issues arise for determination in this proceeding:
(1)Did Mrs Vane cause or permit structural alterations to her lot, Lot 17, without the prior approval expressed by resolution without dissent of the strata company?
(2)If 'yes', are the structural alterations to Lot 17:
(a)reasonable; and
(b)not causing any significant inconvenience or detriment to the other lot owners?
(3)Should the Tribunal exercise its discretion to make an order exempting the structural alterations to Lot 17 from the requirements of Division 2 of Part 7 of the ST Act?
I will now set out relevant provisions of the ST Act including Division 2 of Part 7 of the ST Act and Part 11 of the Strata Titles (General) Regulations 2019 (WA) (Regulations). Following that, I set out the principles to be applied in exercising the Tribunal's statutory discretionary power to make an order under the ST Act. Then, I will then make relevant findings of fact and set out the parties' main contentions. Finally, I will address each of the three principal issues for determination in turn.

Legal framework

ST Act

A strata scheme is the manner of division of a parcel of land into lots, or lots and common property, under a strata plan, and the manner of the allocation of unit entitlements among the lots, and the rights and obligations as conferred or authorised by the ST Act, between the owners, others having proprietary interests in, or the occupants of, the lots and the strata company.[3]

Strata plan

[3] Definition of 'strata scheme' in s 3(1) of the ST Act.

In this matter, the strata plan was registered on 15 June 1994. The parcel and building are described as:
The Building the subject of this plan is a group of 18 residential units, of 3 floors and of brick, concrete and iron construction, known as CARINYA COURT and situated on portion of Rockingham Sub lot 1 and being lot 1 on Diagram 30305.
A notification of change of by-laws (by instrument G335294) was registered with Landgate on 25 November 1996. The notification amended the by-laws in Sch 1 to the ST Act (as it was prior to 1 May 2020) by the addition of a new by-law 16 to do with exclusive use of carports. A further notification to the by-laws (by instrument M519310) was registered with Landgate on 13 January 2014. That notification added a new Sch 1 by-law 17 to do with debt recovery costs and amended Sch 2 to the ST Act (as it was prior to 1 May 2020) by the addition of a new by-law 15 to do with penalty for breach of bylaws and by-law 16 to do with breach of by-laws for damage to common property.

Amendments to 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, the strata company, or its council, amongst other things (Sch 5 by-law 2(1) of the ST Act).
In this case Mrs Vane filed her application 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 this application (Sch 5 bylaw 30(1) of the ST Act).

Division 2 of Part 7 - Structural alterations to lots

Part 7 of the ST Act is headed 'Lot owners and occupiers'. Division 2 of Part 7 of the ST Act is headed 'Structural alterations of lots'. It comprises five sections. It is useful to set out all five sections as Mrs Vane in her application seeks an order from the Tribunal under s 90 of the ST Act to dispense with the requirement for approval of structural alterations to Lot 17.
Division 2 of Part 7 of the ST Act provides:
86.Terms used in this Division
In this Division —
structural alteration of a lot means —
(a)the erection of a structure within the lot; or
(b)an alteration of a structural kind to, or extension of, a structure within the lot;
structure includes anything classified as a structure by the regulations.
87.Structural alteration of lot in strata scheme
(1)The owner of a lot in a 2‑lot scheme that is a strata scheme must not cause or permit the structural alteration of the lot except with the prior written approval of —
(a)the owner of the other lot; and
(b)for a leasehold scheme, the owner of the leasehold scheme.
(2)The owner of a lot in a strata scheme, other than a 2‑lot scheme, must not cause or permit the structural alteration of the lot except —
(a)with the prior approval, expressed by resolution without dissent, of the strata company and, for a leasehold scheme, the prior written approval of the owner of the leasehold scheme; or
(b)if —
(i)the prior written approval to the structural alteration has been given by the owner of each lot in the scheme, and, for a leasehold scheme, the owner of the leasehold scheme; and
(ii)all approvals are either unconditional or are subject to the same conditions; and
(iii)a copy of each approval is served on the strata company.
(3)If an application is made under this section for approval for the structural alteration of a lot, the owner of any other lot in the strata scheme or the owner of the leasehold scheme may refuse to give approval on a ground permitted by subsection (5), but not otherwise.
(4)If an application is made to a strata company under this section —
(a)notice of the proposed resolution on the application must contain or be accompanied by a statement, in the approved form, of the effect of paragraphs (c) and (d); and
(b)if a vote on the resolution is taken at a general meeting, the chairperson must, before the vote is taken, read out the statement referred to in paragraph (a); and
(c)the vote for a lot may be cast —
(i)against a resolution to approve the application; or
(ii)in support of a resolution to refuse approval of the application,
on a ground permitted by subsection (5), but not otherwise; and
(d)a vote referred to in paragraph (c) is of no effect unless the person casting the vote discloses as a ground for the person's vote 1 or more of the grounds permitted by subsection (5).
(5)The grounds on which approval may be refused are —
(a)that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot; or
(b)in the case of a lot that is not a vacant lot, that the carrying out of the proposal —
(i)will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or
(ii)may affect the structural soundness of a building; or
(iii)may interfere with a statutory easement;
or
(c)any other ground specified in the regulations.
88.Structural alteration of lot in survey‑strata scheme
(1)The owner of a lot in a 2‑lot scheme that is a survey‑strata scheme must not cause or permit the structural alteration of the lot if, on completion of the work, the structures on the lot will not conform to plot ratio restrictions or open space requirements for the lot, except with the prior written approval of —
(a)the owner of the other lot; and
(b)for a leasehold scheme, the owner of the leasehold scheme.
(2)The owner of a lot in a survey‑strata scheme, other than a 2‑lot scheme, must not cause or permit the structural alteration of the lot if, on completion of the work, the structures on the lot will not conform to plot ratio restrictions or open space requirements for the lot, except with —
(a)the prior approval of the strata company, expressed by resolution without dissent; and
(b)for a leasehold scheme, the prior written approval of the owner of the leasehold scheme.
89.Approvals and objections to structural alterations
(1)An application for the approval of the structural alteration of a lot must set out details of the proposal and such other information as may be prescribed.
(2)If an application is made to a strata company under subsection (1), voting on the application must open within 35 days after the application is received (the allowed period).
(3)If voting on the application does not open as required by subsection (2), the applicant may convene a general meeting, in the same manner as nearly as possible as that in which meetings are to be convened by the council, and submit the application to that meeting.
(4)Despite subsection (2), a council may submit anapplication to a general meeting convened by the council after the allowed period if that meeting is held before a meeting is convened by the applicant under subsection (3).
(5)The owner of a lot or the owner of a leasehold scheme is taken to have approved the structural alteration of a lot as set out in an application for approval served on the owner if —
(a)the owner serves on the applicant written consent to the alteration; or
(b)the owner has not, at the end of 42 days after being given the application, made a written objection to the alteration; or
(c)for a strata scheme, the owner has made such an objection but the objection does not specify the grounds of the objection or the grounds specified are not grounds on which the owner may object under section 87.
(6)A strata company is taken to have approved the structural alteration of a lot as set out in an application for approval served on the strata company if —
(a)the strata company serves on the applicant written consent to the alteration expressed by resolution without dissent; or
(b)despite section 87(2) —
(i)the strata company has not, at the end of 77 days after being given the application, made a written objection to the alteration; or
(ii)for a strata scheme, the strata company has made such an objection but the objection does not specify the grounds of the objection or the grounds specified are not grounds on which members of the strata company may object under section 87.
90.Order dispensing with approval for structural alteration of lot
(1)The Tribunal may, on the application of an owner of a lot in a strata titles scheme, by order, exempt a particular structural alteration to the lot from the application of this Division.
(2)An order may be made under this section —
(a)whether or not the necessary approval for the alteration has been sought; and
(b)even if there has been a valid refusal to give the necessary approval.
(3)An order can only be made under this section if the Tribunal is satisfied —
(a)that the structural alteration of the lot is reasonable, having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property; and
(b)to the extent that the structural alteration has already been carried out, it will not cause any significant inconvenience or detriment to the owners of other lots.

Regulations

Part 11 – Lot owners and occupiers

Part 11 of the Regulations is headed 'Lot owners and occupiers'. That part comprises three regulations 73 to 75 which includes the definition of 'structure' for the purposes of s 86 of the ST Act; the grounds on which an approval may be refused for the purposes of s 87(5)(c) of the ST Act; and finally information that is prescribed for a structural alteration of a lot on a strata plan.
Part 11 of the Regulations provides:
73.Term used: structure
For the purposes of the definition of structure in section 86, the things classified as a structure are any dwelling, shop, factory, commercial premises, garage, carport, shed or other building or improvement (whether free standing or annexed to or incorporated with any existing building on the lot) —
(a)the construction or erection of which is required to be approved by the local government or any other authority; or
(b)the area of which is to be taken into account for the purposes of determining the plot ratio restrictions or open space requirements for the lot.
74.Grounds for refusal of structural alteration
For the purposes of section 87(5)(c), the following are grounds on which an approval may be refused —
(a)that the carrying out of the proposal will contravene a specified by‑law or specified by‑laws of the strata company;
(b)that the carrying out of the proposal may interfere with a short form easement or restrictive covenant or any other easement or covenant affecting the parcel that is shown on the scheme plan or registered against the parcel.
75.Application for approval of structural alteration
(1)For the purposes of section 89(1), the following information is prescribed —
(a)plans and specifications for the structural alteration;
(b)the additional information prescribed for the type of structural alteration concerned by this regulation.
(2)The following additional information is prescribed for a structural alteration of a lot on a strata plan —
(a)the plot ratio restrictions and open space requirements in relation to the parcel;
(b)the pro rata entitlements of the lot (calculated as provided for by regulations 7 and 8);
(c)if the application is approved, the area of the structure, including the area of all existing and proposed structures to be taken into account for the purposes of calculating the plot ratio restrictions and open space requirements;
(d)whether or not the carrying out of the proposal will breach the pro rata entitlements of the lot and, if it does, the percentage and area by which the pro rata entitlements of the lot is exceeded;
(e)the location and dimensions of the proposed structure upon its completion in relation to any existing structure on the lot or to the boundaries of the lot;
(f)any contravention of the by‑laws of the strata company, whether of a permanent or temporary nature, which is likely to occur during or as a result of the erection, alteration or extension of the structure, and any proposed manner of dealing with that contravention;
(g)any likely interruption to or interference with any statutory easement, short form easement or restrictive covenant or any other easement or restrictive covenant affecting the parcel that is shown on the scheme plan or registered against the parcel, whether of a permanent or temporary nature;
(h)whether the structural alteration of the lot changes the boundaries of the lot and whether the applicant has sought advice from a licensed surveyor about the effect of the structural alteration.
(3)Subregulation (2)(a) to (d) do not apply if —
(a)the area of the structure, upon its erection, alteration or extension, would not be required to be taken into account for the purposes of calculating the plot ratio restrictions and open space requirements in relation to the parcel; and
(b)the application for approval includes a statement to that effect and the reason why it would not be required to be taken into account; and
(c)the strata company does not request in writing that the applicant supply the information referred to in subregulation (2)(a) to (d).
(4)The following additional information is prescribed for a structural alteration of a lot on a survey‑strata plan —
(a)the plot ratio restrictions and open space requirements in relation to the parcel;
(b)the pro rata entitlements of the lot (calculated as provided for by regulations 7 and 8);
(c)if the application is approved, the area of the structure, including the area of all existing and proposed structures to be taken into account for the purposes of calculating the plot ratio restrictions and open space requirements;
(d)whether or not the carrying out of the proposal will breach the pro rata entitlements of the lot and, if it does, the percentage and area by which the pro rata entitlements of the lot is exceeded;
(e)the dimensions of the proposed structure upon its completion;
(f)any likely interruption to or interference with any statutory easement, short form easement or restrictive covenant or any other easement or restrictive covenant affecting the parcel that is shown on the scheme plan or registered against the parcel, whether of a permanent or temporary nature.

Principles in exercising the Tribunal's discretion to make an order

If the Tribunal reaches the conclusion that the requirements of s 90(3) of the ST Act are satisfied, then the Tribunal may make an order under s 90(1) of the ST Act. The power of the Tribunal to make an order under s 90(1) of the ST Act is discretionary.
In Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25 at [34] to [43] the Tribunal explained the Tribunal's statutory discretionary power as follows:
34The term 'discretion' was explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [200] HCA 47; (2000) 203 CLR 194 at [19] as follows:
'Discretion' … refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Rather, the decisionmaker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable … [or] it may be quite narrow[.]
35…
36… However, that is not to say that the statutory power is not without limitation. As stated by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law.
37Legal reasonableness provides the boundaries within which a decision-maker such as the Tribunal has a genuine free discretion: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at [505 and Li at [23]. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order: Li at [67].
38The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes.
…
41Importantly, in exercising its statutory powers, the Tribunal must do so reasonably: Li at [23]. The same was said in the earlier decision of Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1 where Brennan CJ stated at [36]:
[W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.]
42In other words, the statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably…
43…[T]he Tribunal in making its decision as to whether or not to exercise its statutory discretionary power to make an order, must ultimately take all considerations into account.
I will apply the above principles in determining whether or not to exercise the Tribunal's statutory discretionary power under s 90 of the ST Act.
I turn, next, to set out the relevant facts.

Facts

The following facts are uncontroversial. I make the following findings of fact:
(a)Mrs Vane is the owner of Lot 17 on strata plan 25189 together with a share in common property as set out in the strata plan.
(b)Mr Clay is the owner of Lot 18 on strata plan 25189 together with a share in common property as set out in the strata plan.
(c)On 11 April 2023, Mr Ross Bradley, a consulting civil and structural engineer wrote to Mrs Vane's builder, Zenecon Pty Ltd where he stated that he was 'satisfied there are no structural issues for the Beam and Post arrangement'.
(d)On 14 April 2023, the strata manager issued to the owners a 'Notice of Vote Outside a General Meeting' giving notice under s 120(4) of the ST Act that a proposed resolution without dissent is to be determined outside a general meeting of the strata company for an application made by Mrs Vane under s 87(2) of the ST Act for structural alterations to her Lot 17.
(e)By email on 1 June 2023, Mr Clay sent notice that he voted against the proposed resolution including reasons for opposing Mrs Vane's proposed resolution for structural alterations to her Lot 17.
(f)Sometime after 2 June 2023, a document headed 'Outcome of resolution outside a general meeting' recorded that there were three votes in favour of the proposed resolution and one vote against. The motion was declared 'carried' and the 'resolution without dissent has become unconditional'. The following notation was made:[4]
[4] Exhibit 1 at page 101 to 102.
The Owner of Lot 18 has not provided his vote as so required under point 1) How the votes will be conducted – as no voting paper has been submitted; in addition, no valid grounds to vote against the motion were provided as the owner proposing the alteration has provided structural certification that the alteration will not be causing any structural issues. Further, by carrying out the proposal, no specified by-law will be contravened. Therefore, the vote cast by the Owner of Lot 18 has not been tallied.
The Owner of Lot 12 provided his consent to the proposed alteration to Lot 17 however a voting paper truly singed by the owner has not been provided. Therefore, the vote cast by the Owner of Lot 12 has not been tallied.
(g)On 27 June 2023, the City issued to Zenecon Pty Ltd a building permit (BA4) for Lot 17 for:[5]
[5] Exhibit 1 at pages 99 to 100.
structural alteration to roof beam and removal of 2 x internal brick walls[.]
(h)The estimated value of the buildings work to Lot 17 per the building permit was $15,000.[6]
[6] Exhibit 1 at page 99.
(i)On 10 August 2023, Mr Bradley stated in a letter that the works involved for Lot 17 is the:[7]
[7] Exhibit 1 at page 83.
… removal of two (adjoining) full height brick walls which support rafters and the existing steel universal beam.
(j)Further, Mr Bradley set out the schedule of works as:[8]
[8] Ibid.
1.'existing brickwork' has been removed, the kitchen walls being supporting walls for the roof structure.
2.bricks are to be removed/cut out in the common property south boundary structural brick wall so that the timber beam can be inserted into that wall.
3.ceilings have been removed; and
4.the support for the existing roof construction is being altered, including specifically the support by an introduced steel structural universal beam (180UB),[9] which is a critical part of the existing roof support and construction, and for 3 rafters.
[9] This was corrected on 18 December 2023 to reflect the introduced beam was a 240 x 63 timber structural beam as shown on the plan.
(k)Mr Bradley concluded that:[10]
[10] See above n 7.
The works do not compromise the existing brickwork construction, the existing roof construction nor the existing floor of this uppermost unit located to the south-east corner of the building.
Consideration has been applied to the age of construction of the units, February 1964 and the construction has achieved a permanent and lasting structure that will not be affected by the proposed minor works at Unit 17.
I again repeat my previous conclusion that I am satisfied there are no structural issues for the Beam and Post arrangements.
(l)On 15 August 2023 the strata manager issued a new 'Notice of Vote Outside a General Meeting' in respect of the same structural alterations to Lot 17. Mrs Vane's application provided:[11]
[11] Exhibit 1 at page 49.
This application under section 89(1) of the Strata Titles Act 1985 (Act) is for approval under section 87(2) of the Act to structurally alter Lot 17 on Strata Plan 25819 in accordance with the proposal specified below (Proposal).
The prescribed information required under section 89(1) of the Act and regulation 75 of the Strata Titles (General) Regulations 2019 (Regulations) relating to the Proposal for approval to undertake the lot alteration to structurally alter the Designated Lot is detailed below:
The plans and specifications for the construction of the structural alteration to the Designated Lot in accordance with regulation 75(1) (a) of the Regulations are contained in Annexure A below (Plans).
2The following is a statement in accordance with regulation 75(3) of the Regulations: The area of the structure created by the Proposal for the Designated Lot, upon its construction, would not be required to be taken into account for the purposes of calculating the plot ratio restrictions and open space requirements in relation to the parcel because:
2.1open space requirements will not be affected by the Proposal because the Proposal does not reduce the open space of the Designated Lot or the parcel.
2.2the Proposal will not affect the plot ratio restrictions in relation to the parcel because the Proposal does not change the plot ratio of the Designated Lot or the parcel.
3The location and dimensions of the proposed structure upon its completion in relation to any existing structure on the Designated Lot or to the boundaries of the Designated Lot is detailed in the Plans in accordance with regulation 75(2) (e) of the Regulations.
4There will be no contravention of the by-laws of the strata company, whether of a permanent or temporary nature, which is likely to occur during or as a result of the construction of the Proposal.
5There will:
5.1be no likely interruption to or interference with any statutory easement, short form easement or restrictive covenant or any other easement or restrictive covenant affecting the parcel that is shown on the scheme plan or registered against the parcel, whether of a permanent or temporary nature as a result of the construction of the Proposal.
6The construction of the Proposal will not result in changes to the boundaries of the Designated Lot and the Applicant has:
6.1not sought advice from a licensed surveyor about this.
Applicant
7This application is made by the owner(s) of the Designated Lot.
(m)On 14 September 2023, Mr Clay wrote to Mrs Vane noting that some owners had informed him that they intended to vote against her proposed resolution for reasons including:[12]
[12] Exhibit 1 at page 143.
…that the 90mm x 90mm tubular steel pillar that is/will be providing support for the structural steel roofing beam/roof structure has replaced two walls that joined at 90° at the point where the steel pillar is now located but which are/were supported by a vastly greater area of the concrete floor slab and substructures.
I note that the thickness of the concrete floor is only 4''. That is by today's construction standards very thick in contrast to the thickness required in multilevel residential complexes today.
(n)On 26 September 2023, Mr Clay by email to Mrs Vane stated, amongst other things, that he would vote against her proposed resolution.[13]
[13] Ibid.
(o)On 28 October 2023, Mr Bradley wrote:[14]
[14] Exhibit 1 at page 92.
… this is to confirm the works involved are the removal of a nib full height brickwork wall and the provision of a Beam and column to support three (3) existing rafters to facilitate a new kitchen area. I have requested Engineering Plans pertaining to the floor and amended plans for the proposed construction[.]
(p)Further, on 22 November 2023, Mr Bradley wrote:[15]
[15] Exhibit 1 at page 105.
Further to my letters of 11^th April and 28 October 2023, and site inspection of Wednesday 2^nd August 2023 this is [to] confirm all works have been carried out as per engineering specifications[.]
(q)On 15 December 2023, Mr Clay by email to Mrs Vane, stated, amongst other things, that he is:[16]
[16] Exhibit 1 at pages 148 to 149.
… generally supportive of the renovations Mrs Vane is seeking approval for. However, I wish to ensure that documentation and issues relevant to potential structural safety issues for our complex flowing from the renovations are properly put before SAT for its consideration before it makes a decision[.]
(r)On 18 December 2023, Mr Eric de Haan, a registered builder for Zenecon Pty Ltd and Mr Bradley provided a two page statement to all the owners stating that the building works completed for Lot 17 were done in compliance with all building permit requirements and engineering specifications. Messrs de Haan and Bradley stated:[17]
[17] Exhibit 1 at pages 162 to 163.
1.The Structural steel column supporting the existing steel beam, and the new timber beam has been welded to an appropriately sized baseplate designed to withstand the weight of the roof and ceiling structure. The baseplate, although not specifically mentioned in the correspondence related to the building permit, is a standard and essential part of the column structure designed to spread the load which the column supports, and to enable the column to be fixed to the concrete floor in a manner that prevents the movement of the column and is also designed to prevent uplift of the roof structure from negative pressures. The specifications and size of the components of the steel column and baseplate were personally inspected by the engineer during a site visit, and after taking into consideration the location of the baseplate in relation to supporting walls under, and the thickness of the slab was deemed to be compliant with all engineering requirements and specifications.
2.The base plate has been affixed to the concrete slab by means of 4 x 12mm diameter x 75mm long steel bolts which have been chemically anchored into the slab. The age, thickness, and condition of the concrete slab was taken into consideration, and it was decided not to use Dynabolts which exert a lateral force to hold the bolts in place, but to use chemical anchors which when installed, harden to a degree which is much stronger than concrete and almost as strong as the steel bolts themselves. These chemical anchors also bind the concrete together and thus prevent any cracking, and do not compromise the strength of the existing concrete slab in any way.
3.The length of the steel column, whilst estimated at 2.7m at the time of building permit application, was increased by 85mm to fit the exact measurement between the existing steel beam and the concrete floor. This measurement was unable to be determined prior to works starting, without undertaking destructive and invasive inspection by removing a section of ceiling and removing carpets and underlay. The engineer has taken this extra length of the column into account and has determined that the existing size of the column will not be compromised by this extra length, and that the column comfortably meets engineering requirements and specifications.
4.The current roof structure has not been increased in height by the installation of the Structural steel column, and thus there is no requirement for the plans to be either re-submitted or amended plans provided to council to meet the requirements stipulated in the building permit.
5.The engineer has inspected the steel column and baseplate prior to the works being covered up in accordance with the strata requirements stipulated. Photographic evidence dated 18th August 2023 was also provided by the builder once site welding had been completed, and the engineer confirms that the works have carried out in a professional and competent manner in compliance with engineering standards and specifications.
6.Previous correspondence from engineer dated 10th August 2023 mistakenly referred to "an introduced steel structural universal beam (180UB). The introduced beam is a 240x63 Timber structural beam as shown on the plan. We apologise for any confusion that this statement has caused.
(s)On 11 December 2023, Mr Clay filed with the Tribunal a document headed 'Issues Relevant to Applicant's s 90 Application' wherein he raised numerous concerns about Mrs Vane's application and other associated matters.[18]
(t)On 21 January 2024, Mr Clay filed a further document with the Tribunal. This document is headed 'Second Respondent's Statement of Position'. In this document Mr Clay states having had regard to information and statements made by Messrs de Haan and Bradley in their joint written statement of 18 December 2023 that the issues previously raised by him and the owners of Lots 9 and 10 in the papers filed with the Tribunal have been addressed. In conclusion, Mr Clay states:[19]
I do not oppose the Tribunal determining the matter under s 90 of the [ST Act] (save with respect to costs) entirely on the documents as contemplated by paragraph 3 of the Order made [by the Tribunal on] 15 December 2023.
[18] Exhibit 1 at pages 145 to 147.
[19] Exhibit 1 at pages 171 to 172.
Next, I set out the position of each party except for the strata company as they informed the Tribunal that they will abide by the decision of the Tribunal.[20]
[20] Exhibit 1 at pages 195 and 201.

Mrs Vane's position

Mrs Vane's position may be summarised as follows:
(a)She proceeded with the structural alterations to Lot 17 being the renovation of the kitchen.
(b)On 10 August 2023 she received an engineering report and the building permit from the City of Rockingham (City).
(c)On 14 August 2023 the parties agreed that a fresh 'Notice of Outside Meeting Resolution' be issued to seek approval for the proposed structural alterations to Lot 17.
(d)The structural alterations to the kitchen of Lot 17:
(i)are reasonable and will not cause any significant inconvenience or detriment to the owners of other lots;
(ii)are not visible from outside of the building;
(iii)do not encroach into the common property; and
(iv)have been certified by a structural engineer that the alteration made will not affect the structural soundness of the building and the City provided a building permit for the building works.

Mr Clay's position

Mr Clay's position may be summarised as follows:
(a)On 12 August 2023, he emailed the owners stating, amongst other things:[21]
[21] Exhibit 1 at pages 39 to 40.
… The information contained in these two documents is far more comprehensive, accurate and reliable than the information owners were provided earlier this year …
… on the basis of the information contained in these two documents … I am willing to support an order by SAT to approve the works.
(b)On 13 August 2023, he emailed the owners stating, amongst other things:[22]
[22] Exhibit 1 at page 39.
I have made it clear to the owner of Lot 17 that I will support her renewed proposal supported by the amended and far more comprehensive Plans, Specifications and Consulting Engineer's letter because the amendments address their prior inadequacies and the structural concerns that I had with her original proposal.
This will not stop the owner of Lot 17 from continuing the work that she has already commenced on Lot 17, but until the fresh proposal is passed, the work will not have any valid approvals. My SAT application will remain on foot until there is a valid approval.
(c)The 'Notice of Vote Outside a General Meeting' issued on 14 August 2023 is invalid because:[23]
[23] Exhibit 1 at page 29.
•The Notice states that it has been issued "on 15/08/2023 at the direction of the Council of the Strata Company" in circumstance where the members of the council of the strata company never gave such direction: the members being Brian Tucker, Dale Trewenack (Treasurer), Keyrise Pty Ltd, and [Mr Clay] (Chairman and Secretary).
•The Notice states that "email votes will be conducted by email to the strata company's email address which is [email address]" in circumstances where the strata company does not have an email address and that is not the email address of the secretary of the strata company.
•The Notice falsely states that co-owners and corporate owners must provide a proxy if they wish to vote in circumstances where under the Act and in law co-owners can jointly sign their voting form and corporate owners may submit their vote signed by a director(s) or under seal in the manner authorised in the company's constitution.
•The Notice contains further false statements in relation to completing and submitting proxies on page 2 of the Notice, in asserting false addresses that the proxies must be sent to and falsely asserting that proxies must be submitted before voting opens, a statement that is inconsistent with the statement contained in the 'Voting Paper' which requires the proxies to be sent with the voting paper.
•The voting form contained in that notice fails to comply with the requirements of the Act for the submission of votes against the proposed resolution in failing to allow for or provide adequately for compliance with s 87(5) by owners.
•The email address, "[email address]" asserted in the notice to be the email address of the strata company is not the email address of the strata company nor is it the email address of the strata secretary.
•The postal address stated in the notice for the strata company is not the registered address of the strata company[.]
(d)The application and proposal by Mrs Vane are defective and invalid because:[24]
[24] Exhibit 1 at page 29.
•They do not comply with Regulation 75(2)(f) by falsely stating there "will be no likely interruption to or interference with any statutory easement … whether of a permanent or temporary nature as a result of the construction of the Proposal" in circumstances where the works do interfere with statutory easements in that the proposal involves cutting and removing a portion of a boundary wall and a ceiling which each form part of the common property of the strata company and not a part of the Designated Lot.
•The application refers to an "Attachment B: Approved Form", but no "Attachment B: Approved Form" is attached to the Application and no "Attachment B: Approved Form" has been sent to owners.
(e)On 26 September 2023, he objected to Mrs Vane's proposed resolution sent to all owners on 15 August 2023 because:[25]
[25] Exhibit 1 at page 28.
(i)they will or may interfere with statutory easements constituted by the concrete slab forming part of the common property, being the ceiling of Lot 11 and the floor of Lot 17;
(ii)they will or may interfere with statutory easements constituted by the common property structures in the roof space above Lot 17 designed to support the roof and roof structures for the benefit of all lots;
(iii)they will or may effect the structural soundness of the building and the ability to maintain building insurance at reasonable rates.
(f)In his document, headed 'Issues relevant to Applicant's s 90 Application'[26] filed on 11 December 2023 he asserts that:
•Mrs Vane has not filed all documents that are or ought to be in her possession that are relevant to the decision that the Tribunal is being asked to make pursuant to s 90 of the ST Act;
•the errors in Mr Bradley's letters raise questions of his care and competence that may be relevant to the decision that the Tribunal is being asked to make;
•the building permit issued by the City for the works undertaken rely on the submitted plans and was conditional on the works proceeding in accordance with those plans, but there is evidence that the works were varied such that the works were not authorised by the building permit that was issued;
•the asserted height change of the new structural support relative to the height disclosed in the plans and specifications may have changed the roof architecture and load characteristics, the impacts of which do not appear to have been subjected to expert analysis, expert consideration or local government building approval; and
•the load being carried by the concrete slab at the base of the new structural support is on the available evidence very substantial.
(g)On 21 January 2024, having read the new information and joint written statement made by Messrs de Haan and Bradley dated 18 December 2023, he is now satisfied that the issues he previously raised along with the owners of Lots 9 and 10 are now resolved. He therefore does not oppose the Tribunal determining Mrs Vane's application under s 90 of the ST Act (save with respect to costs) entirely on the documents.
[26] Exhibit 1 at pages 145 to 147.

Finally, I now address each of the issues identified at [18] above.

Consideration of the issues

Did Mrs Vane cause or permit structural alterations to her lot, Lot 17, without the prior approval expressed by resolution without dissent of the strata company?

It is common ground that alterations have been made to Lot 17.
There is no controversy that Lot 17's kitchen renovation is a 'structural alteration' as that term is defined in s 86 of the ST Act. The building permit (BA4) issued by the City to Zenecon Pty Ltd provides that the alterations are internal to the building being: 'structural alteration to roof beam and removal of two internal brick walls'.[27]
[27] Exhibit 1 at pages 99 to 100.
Photographs before the Tribunal show the building works at various stages including the kitchen before and after the structural alterations were completed.[28]
[28] Exhibit 1 at pages 32, 93,103, and 166 to 169.
According to the document headed 'Outcome of resolution outside a general meeting', the following conclusions were reached following the voting period 3 May 2023 to 2 June 2023:[29]
[29] Exhibit 1 at pages 101 to 102.
The following votes are counted in favour of the motion:
Voting paper: Lot 3, 8
Email: Lot 12
Total in favour: 3
The following votes are counted against of the motion:
Voting paper: 0
Email: Lot 18
Total against: 1
The Owner of Lot 18 has not provided his vote as so required under point 1) – How the votes will be conducted – as no voting paper has been submitted; in addition, no valid grounds to vote against the motion were provided as the owner proposing the alteration has provided structural certification that the alteration will not be causing any structural issues. Further, by carrying out the proposal, no specified bylaw will be contravened. Therefore the vote cast by the Owner of Lot 18 has not been tallied.
The Owner of Lot 12 provided his consent to the proposed alteration to Lot 17 however a voting paper truly signed by the owner has not been provided. Therefore, the vote cast by the Owner has not been tallied.
The Motion was declared Carried.
The Resolution without Dissent has become unconditional.
Mr Clay challenges the conclusion reached that his vote is to be excluded from being tallied.
In my view, it is not necessary for me to determine whether Mr Clay's vote is, or is not valid, because the parties, decided to undertake the whole process again. This occurred on or about 14 August 2023.
According to the document headed 'Outcome of Resolution outside a General Meeting' the following conclusions were reached for the voting period 1 September 2023 to 29 September 2023:[30]
[30] Exhibit 1 at pages 36 to 38.
The following votes are counted in favour of the motion:
Voting paper: Lot 2, 3, 8, 12, 14, 17
Total in favour: 6
The following votes are counted against of the motion:
Voting paper: 9, 10
Email: Lot 18
Total against: not determined
The Owner of Lot 18 has not provided his vote as so required under point 1) – How the votes will be conducted – as no voting paper has been submitted; further the grounds stated the alteration has a detrimental effect to the structural soundness to the building are currently being in front of SAT due to proceedings commenced by the owner of Lot 18, hence whether the grounds are valid reasons to vote against the resolution have not been determined. At this stage the vote has not been tallied.
The Owner of Lot 10 has provided a No vote via the voting paper however, no Proxy form was sent in due to the lot owned by co-owners; therefore, the vote [has] not been tallied.
The Owners of Lot 9 has provided a No vote via the voting paper stating a reason same as alleged by the Owner of Lot 18 which has not been determined yet. At this stage the vote has not been tallied.
Since the application made by the owner of Lot 17 is being determined with the State Administrative Tribunal, the motion cannot be declared as carried or lost at this stage.
The outcome of the [Tribunal] proceedings will be recorded once known to these minutes.
In my view, as the parties were not given the opportunity to file evidence or make submissions as to validity or otherwise of either or both of the 'Notice of Vote Outside a General Meeting', the proposed resolutions put by Mrs Vane and Mr Clay's vote including the alleged failure of Mr Clay to submit the voting paper, I am not able to conclude whether either of the Mrs Vane's proposed resolutions achieved a resolution without dissent of the strata company.
However, and in any event, in the reasons below (see [65] to [77]), I conclude that the Tribunal should exercise its discretion to make an order exempting the structural alterations to Lot 17 from the requirements of Division 2 of Part 7 of the ST Act. Because of this, is not necessary for me to conclude here whether Mr Clay's vote was invalid.

Are the structural alterations to Lot 17 reasonable and not causing any significant inconvenience or detriment to the other lot owners?

The crux of this matter, and on which the decision turns, is whether or not the structural alterations made to Lot 17:
(a)are reasonable, having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property; and
(b)to the extent the structural alterations have already been carried out, the alterations will not cause any significant inconvenience or detriment to the owners of other lots.
The above two requirements are set out in s 90(3) of the ST Act.
The terms 'significant inconvenience' and 'detriment' are not defined in the ST Act.
In The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161, the Tribunal considered the phrase 'significant inconvenience and detriment to other proprietors' when determining a matter under the former s 103G of the ST Act (as it applied prior to 1 May 2020) as follows:
26The usual course when a proprietor of a strata lot wishes to cause or permit an alteration of a structural kind to, or extension of, a structure to his lot, is to obtain prior approval without dissent of the strata company (s 7(2) of the Act).  The grounds on which approval may be rejected are set out in s 7(5) of the Act.  This procedural requirement prescribed by the Act is to ensure that, inter alia, structural works, alterations, additions and the like are not undertaken which may affect the structural soundness of a building, are visually not in keeping with the commonality of the general appearance of a strata complex, or interfere with easements.  This legislative approval mechanism is intended to protect the rights and interests of all proprietors in a scheme.
27Section 103G(4) of the Act comes into play where s 7 has been breached and the lot proprietor may, nevertheless, not be required to remove/restore the works which resulted in that breach. This allows the Tribunal to therefore exercise a discretion in otherwise finding in favour of the strata company by acknowledging that the works, although done without approval without dissent by the other lot proprietors, will not cause any significant inconvenience or detriment to them.
28However, the concept introduced in that section must be fashioned or influenced by the grounds of refusal set out in s 7 of the Act (see: The Owners of The Views, Strata Plan 6669 and Larralee Pty Ltd[2006] WASAT 126 at [15]). In approaching the consideration of s 103G(4) of the Act without due regard to s 7, or in isolation, would, in effect, encourage strata lot proprietors to bypass the prescribed approval process in that section and, in effect, attempt to 'get in the back door'. Such approaches must be discouraged and it should be emphasised that the two sections are interrelated such that if the grounds for refusal of the proposal are evident pursuant to s 7 of the Act and are such that the presence of those factors are likely to cause a significant inconvenience or detriment, they are persuasive.
29I turn to the meaning which should be attributed to the words 'significant inconvenience or detriment'.  The law in this regard is well settled and the words should be given their natural meaning (see: Hamilton v Thompson (1999) 23 SR (WA) 41 at [50] [51] which was cited with approval in Uta Pty  Ltd  v Celenza & Anor[2002] WASCA 360). 'Inconvenience' necessitates a disadvantage and connotes something that is troublesome and impedes prosperity. 'Detriment' is ordinarily defined as damage, loss, harm, prejudice or a disadvantage. Section 103G of the Act refers to 'significant' and therefore the inconvenience or detriment cannot be immaterial or of no import; it must be material and of consequence.
30The question therefore to be determined is whether the juliette balcony which has been constructed by the respondent has and will continue to cause any significant inconvenience or detriment to the other strata lot proprietors.  Some of the factors deemed relevant to this consideration include the following:
1)Whether the alteration/works/addition is not in keeping with the rest of the development such that a significant inconvenience or detriment is suffered by the strata lot proprietors.  For example, the works create an eyesore, create an unkempt or untidy appearance, degradate from the commonality, harmonious or high standard presentation of the building such that it may result in a diminution of property values.
2)Whether the alterations/works/addition may affect the structural soundness of the building.  If this risk is established on the evidence it cannot be a question of degree as in most, if not all cases, it would as a matter of course result in a significant detriment being suffered by the strata lot proprietors.
3)Whether the alteration/works/addition may interfere with any easement created by s 11 or s 12 of the Act. For the purposes of s 103G(4) of the Act the interference would need to be significant or material.
4)Whether the circumstances surrounding the decision to carry on the works in question has the effect of undermining the corporate governance of the strata lot and/or constitutes a deliberate and knowing abandonment of the requirements of the Act and Regulations/bylaws such that it sets a precedent that any strata proprietor may act in a similar manner with disregard of the legislative regime.
5)Whether the alteration/works/addition will result in a significant interference with the quiet enjoyment of the strata lot of any other proprietor or of the common property.  Although this is not a reason upon which the works could be refused pursuant to s 7 of the Act, this is an issue which squarely falls within consideration of what constitutes a 'significant inconvenience'. Therefore, if there is evidence of a material interference with the quiet enjoyment of a proprietor's lot or the common property as a result of the works which materially impedes their ability to use or enjoy that property (including the ability to rent or sell the premises), then those factors should be considered as part of this determination.
6)Whether the alteration/works/addition would result in financial detriment to another strata lot proprietor either by the devaluing of their property, the strata complex in its entirety or by restricting the use of common property (it should be noted that this factor overlaps with the others referred to above).
31The above list is not intended to be exhaustive, but illustrative only. In addition, the above list evidences that there remains an interrelationship between the operation of s 7 and s 103G(4) of the Act.
While Mr Clay raised concerns (for example, see above at [36(e)]), the only expert evidence before the Tribunal is that of Mr Bradley and Mr de Haan.
By 21 January 2024, Mr Clay was of the view that issues that he and the owners of Lots 9 and 10 had previously raised were addressed by Messrs Bradley and Mr de Haan in their joint written statement of 18 December 2023.
I accept the evidence of Messrs Bradley and Mr de Haan in full.
In my view, both requirements set out in s 90(3) of the ST Act are satisfied. The reasons are as follows.
First, the structural alterations are all internal to Lot 17 and are not visible from outside the lot.
Second, even though the age of construction of the Carinya units is reported by Mr Bradley to be February 1964 (well before the parcel of land was strata titled in 1994),[31] Mr Bradley opines that the permanent and lasting structure of the units will not be affected by the minor works to Lot 17.
[31] Exhibit 1 at page 83.
Third, while bricks were removed or cut out in the common property south boundary brick wall, in order for a timber beam to be inserted in that wall, no detriment or significant inconvenience to the other owners of lots has been suggested. Further, there is no suggestion before the Tribunal that the relevant area of common property on the south boundary where bricks were removed or cut out has reduced the other owners' use and enjoyment of their lots or the common property.
Fourth, Mr Bradley opined[32] that the structural alterations to Lot 17 do not compromise the existing brickwork construction, the existing roof construction nor the existing floor. There is no contrary civil and structural engineer evidence before the Tribunal.
[32] Exhibit 1 at page 83.
Fifth, Mr Bradley certified that the building works have been carried out in a professional and competent manner in compliance with engineering standards and specifications. There is no contrary evidence before the Tribunal.
Sixth, any concerns Mr Clay had concerning a structural steel column including its length, the affixing of a base plate to concrete slab, and the height of the roof structure and reference to an introduced steel structural universal beam were allayed by Messrs de Haan and Bradley's in their joint written statement of 18 December 2023.
Seventh, Mrs Lane sought approval of the strata company for the proposed structural alterations to her Lot 17. Sometime after 2 June 2023 (when voting closed on Mrs Vane's first proposed resolution), the notation on the document headed 'Outcome of resolution outside a general meeting' recorded that the motion was declared 'carried' and that the 'resolution without dissent has become unconditional'. Following this the building works commenced by mid to late June 2023. This was well before before Mr Clay filed his application (CC 1054 of 2023) with the Tribunal on 2 August 2023. In this context, I find that Mrs Vane did not deliberately or knowingly abandon or seek to circumvent any of the requirements of the ST Act including the scheme by-laws and the Regulations or set a precedent that any lot owner may act in a similar manner with disregard of the legislative regime.
Finally, there is no evidence before the Tribunal that the structural alterations to Lot 17 have or will result in a financial determinant to the other lots in the strata scheme.
In conclusion, I am satisfied that the structural alterations made to Lot 17 are reasonable, having regard to the merits of the alterations and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property and that the structural alterations will not cause any significant inconvenience or detriment to the owners of other lots.
I turn, finally to consider whether I should exercise the Tribunal's statutory discretionary power to make an order under s 90(1) of the ST Act.

Should the Tribunal exercise its discretion to make an order exempting the structural alteration to Lot 17 from the requirements of Division 2 of Part 7 the ST Act?

Mrs Vane, as the owner of Lot 17 made application to the Tribunal seeking an order to exempt the structural alterations completed for Lot 17 in regards to the kitchen renovation, from the application of Division 2 of Part 7 of the ST Act. In other words, Mrs Vane seeks an order not requiring a resolution without dissent of the strata company in respect of the structural alterations completed for Lot 17 in regards to the kitchen renovation.
Section 90(2) of the ST Act provides that the Tribunal may make an order whether or not the necessary approval for the alteration has been sought. Further, that section provides that an order may be made by the Tribunal even if there has been a valid refusal to give the necessary approval.
The precondition which enlivens the discretion conferred on the Tribunal to make an order under s 90(1) of the ST Act is that the Tribunal must be satisfied of two requirements. First, the structural alterations to Lot 17 are reasonable having regard to the merits of the alterations and the interests of all the owners of lots in the use and enjoyment of their lots and the common property. Second, to the extent the structural alterations have been carried out, that they will not cause any significant inconvenience or detriment to the owners of the other lots.
The discretion conferred by s 90(1) of the ST Act to make an order is not limited by any mandatory considerations. However, that is not to say that the statutory power is not without limitation. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order.
The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its Long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes.
The Tribunal's statutory task, as revealed by a consideration of the ST Act as a whole and, in particular, s 90 of the ST Act is that if the Tribunal finds that the two requirements in s 90(3) of the ST Act are met then the Tribunal may make an order on the application of the lot owner to exempt the particular structural alteration to the relevant lot from the application of Division 2 of Part 7 of the ST Act. In other words, the exemption does not require there to be prior approval of the structural alteration of a lot by a resolution without dissent of the strata company. Importantly, the Tribunal may make the order whether or not the necessary approval for the structural alteration has been sought or even if there has been a valid refusal to give the necessary approval (s 90(2) of the ST Act).
Therefore, it follows that in making an order under s 90(1) of the ST Act, the Tribunal must determine if the requirements or conditions set out in s 90(3) of the ST Act are met. In other words, the Tribunal must make findings of fact. In making the findings, the Tribunal is obliged to have regard to any matters relevant to forming the requisite opinion prescribed by s 90(3) of the ST Act.
The Tribunal's statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably. Section 90(1) of the ST Act is to be construed accordingly.
For reasons given earlier (see above at [47] to [63]), I am satisfied that the two requirements or conditions in s 90(3) are met.
I note that Mrs Vane had twice sought to obtain approval for the structural alterations to her Lot 17. The first occasion was before any building works commenced and the second occasions was after the building works had commenced.
Mr Clay's position is that he voted against the proposed motion for various reasons. However, most recently per his document titled 'Second Respondent's Statement of Position' filed on 21 January 2024, Mr Clay stated that the new information and the statement by Messrs de Haan and Bradley of 18 December 2023 'satisfy to [his] mind the issues raised by [him] in the papers that [he has] filed in this matter and by the owners of Lot 9, Lot 10 and [him] as set out in our votes against the second defective s 120 proposed resolution put to owners[.]'[33]
[33] Exhibit 1 at page 171.

Whether or not the necessary approval for the structural alterations was sought and even if there was a valid refusal to give the necessary approval those considerations do not prevent me exercising the Tribunal's discretion to make the order sought by Mrs Vane.
Ultimately, take all considerations into account, I am of the view that I should exercise the Tribunal's discretion to make the order sought by Mrs Vane.

Costs

Mr Clay in the document headed 'Second Respondent's Statement of Position'[34] stated that he did not oppose the Tribunal determining Mrs Vane's application on the documents, save for costs. In that document, Mr Clay sets out his position with respect to costs. In short, Mr Clay seeks for Mrs Vane to be ordered to pay the out-of-pocket expenditures of himself and the strata company and their reasonable legal costs (if any).
[34] Exhibit 1 at pages 171 to 172.
Under s 81(7) of the former ST Act (which only applies up to 1 May 2020), a party to proceedings in the Tribunal was prohibited from making an application for costs, other than in very limited circumstances. Such prohibition no longer applies under the ST Act. This means a party may make an application to the Tribunal for their costs in this proceeding 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.

Conclusion

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 and to minimise the costs to the parties (s 9 of the SAT Act).
In summary, reflecting back on the order sought by Mrs Vane (see above at [11]), and the findings reached in respect of the three principal issues in this proceeding (see above at [18]), I make the following orders.

Orders

The Tribunal orders:
1.Pursuant to s 90(1) of the Strata Titles Act 1985 (WA), on application by the applicant (the owner of Lot 17 on strata plan 25819), the structural alterations to Lot 17 completed in or about 2023 are exempt from the application of Division 2 of Part 7 of the Strata Titles Act 1985 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
6 MAY 2024