Key Points

The Tribunal made an Order under section 90 of the Act exempting an Owner’s structural alterations including: 

1. “the structural alteration to roof beam and removal of two internal brick walls”
2. the “removal/cutout” of a Common Property boundary structural wall; and
3. the removal of ceilings,

from Division 2 of Part 7 of the Act.

The Second Respondent, the Owner of another Lot in the Scheme, objected to the structural alterations including on the grounds that the structural alterations were made to Common Property and not to a Lot in the Scheme.

The Tribunal overlooked that aspect of the Owners objection about structural alterations to Common Property and applied only the test under section 90(3) of the Act when deciding the application.

The Tribunal’s decision in Vane is inconsistent with the Tribunal’s earlier decision in Rechichi v Johnston [2021] WASAT 79 in which the Tribunal held that it had no power under the Act to approve Owners’ structural alterations to Common Property, either under section 90 or at all.

The legislation

Under the Strata Titles Act 1985 (WA) (Act), 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 without:

1. the prior written approval of the owner of each Lot in the Scheme; or
2. the prior approval of the Strata Company given by Resolution Without Dissent.

The Tribunal can, on the application of an Owner of a Lot in a Strata Scheme, make an order exempting a particular structural alteration to a Lot from the above described requirement if:

1. 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
2. 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.

Discussion

The Supreme Court of Western Australia held in Wong v Reid [2016] WASC 59 that an Owner cannot alter Common Property without the written approval of all Owners or the approval of the Strata Company given by Resolution Without Dissent.

Section 90 of the Act only applies to structural alterations to Lots and does not refer or apply to Common Property.

The Tribunal in Rechichi v Johnston [2021] WASAT 79 held that:

1. the Tribunal’s power to make an order under section 90 of the Act applied only to structural alterations to Lots and did not extend to Common Property; and
2. the Tribunal did not have any power under the Act to approve Owners making structural alterations to Common Property.

The Tribunal’s decision in Vane is inconsistent with both the Supreme Court decision in Wong v Reid and the Tribunal’s decision in Rechichi v Johnston because the Tribunal made an order under section 90 of the Act authorising the structural alteration of Common Property.

The Tribunal must follow decisions of the Supreme Court.

The Tribunal has also held that, although it is not required to, it should follow its own previous decisions unless the previous decisions were: “wrongly decided”.

The Tribunal in Vane did not appear to consider and, without explanation, did not follow Wong v Reid or Rechichi v Johnston.

Outcome

The Tribunal considered and accepted apparent expert engineering and building evidence relied on by the Applicant and made orders authorising the structural alterations to both Common Property and the Lot because:

1. the structural alterations were not visible from outside of the Lot;
2. the: “permanent and lasting structure” of the units will not be affected by the works;
3. the works would not cause any detriment or significant inconvenience to other Owners;
4. the works would not reduce other Owners’ use or enjoyment of the Common Property;
5. the structural alterations did not compromise the construction of the building;
6. the building works were carried out in a professional and competent manner;
7. the Owner of the Lot did not deliberately or knowingly abandon or seek to circumvent any of the requirements of the Act or the Scheme By-laws or set a precedent that any Lot owner can act in a similar manner;
8. there was no evidence before the Tribunal that the structural alterations would cause any financial detriment to any other owner; and
9. the structural alterations were reasonable, having regard to their merits,

despite not identifying any legal support that such considerations apply to Common Property.

Key Takeaways

The Tribunal’s decision in Vane helpfully sets out the circumstances in which the Tribunal will exercise its discretion to make an order under section 90 of the Act authorising structural alterations to Lots.

However, Owners and Strata Companies should not rely on Vane as authority for the proposition that the Tribunal can make Orders authorising structural alterations to Common Property because it is inconsistent with:

1. a plain reading of section 90 of the Act;
2. a plain reading of section 91 of the Act; and
3. earlier decisions of the Supreme Court which it is bound to follow and the Tribunal which it should have followed.

It is likely that any appeal of Vane to the Supreme Court would be successful and, therefore, it is unreliable because it is wrong at law.

Contact John Park or Abbi Beckwith if you require advice about the approvals required to undertake any works at a Strata Titles Scheme.