The Western Australian State Administrative Tribunal recently held in Rechichi and Johnston [2021] WASAT 79 (Rechichi) that:

1. a Strata Company cannot approve under section 89 of the Strata Titles Act 1985 (WA) (Act):
   • any works that change the boundaries of a Lot; or
   • any works to Common Property;
2. section 90 of the Act does not give the State Administrative Tribunal jurisdiction to retrospectively approve or otherwise dispense with the approvals required under the Act for any work outside the boundaries of a Lot;
3. the Tribunal’s “broad” power to make Orders resolving Scheme Disputes under the Act is limited by any specific power granted or restriction imposed on the Tribunal under the Act; and
4. Part 7 Division 2 of the Act, is intended to “cover the field” of structural alterations to a Lot. Therefore, the Tribunal cannot exercise its “broad” discretionary powers under sections 197 and 200 of the Act to approve structural alterations “beyond a Lot”.

What does the decision in Rechichi mean for Strata Companies?

A Strata Company will be acting outside of its statutory functions and objectives if it approves any application made to it under section 89 of the Act which, if approved, would result in the structural alteration of Common Property.

Similarly, if:

1. a Strata Company is faced with an application by an Owner to the Tribunal under section 90 of the Act; and
2. the works the subject of the application are “beyond a Lot”, the Strata Company cannot because of the effect of the Act, accede to such an application or arguably fail or refuse to defend it in the Tribunal.

A Strata Company presented with an application under section 89 or 90 of the Act should take considerable care in its response to it and likely seek legal advice about whether any such application conforms with the requirements of the law and the necessary balancing of:

1. the restriction on its power to approve Applications made under section 89 of the Act, as confirmed by the State Administrative Tribunal in Rechichi; and
2. its statutory duty to consider the merits of each proposal put to it and the options that are reasonably available in any particular circumstances,
   to ensure that its response is timely, accords with the Act and is “balanced”.

What does the decision in Rechichi mean for Owners?

Owners must remember before making any structural alterations in or around their Lot:

1. to consider any impact the proposed structural alterations will have on Common Property;
2. that they cannot use section 89 of the Act to apply for, or obtain, the Strata Company’s approval to make structural alterations to Common Property;
3. that any approval the Strata Company gives under section 89 of the Act to any alterations affecting Common Property, whether in ignorance of the law or by “turning a blind eye” to any effect on Common Property, will be outside of the law and worthless;
4. the State Administrative Tribunal does not have power under the Act to “approve” any proposed or actual structural alterations to Common Property;
5. the Strata Company can and, considering its statutory obligations, must apply to the State Administrative Tribunal for Orders that any unauthorised structural alterations to any Lot or Common Property be removed; and
6. any local government approval of any structural alterations to a Lot or Common Property does not override any obligation to obtain approval under the Act and that limitation will likely be clearly stated on any such local government approval.

What can Strata Companies and Owners do?

To avoid the potential waste of time, money and energy, Owners and Strata Companies involved in proposals to make structural alterations to any Lot or Common Property should seek early legal advice about:

1. the position of the boundaries of Lots and Common Property within the Scheme;
2. the nature of any proposed structural alterations and particularly whether they will impact Common Property; and
3. the need to make or consider any Applications under sections 89 and 90 of the Act.

Alternatively, and proactively, in an endeavour to prevent or guard against errors, mis-descriptions, disputes or ignorance of the law, ask us now to provide to your Strata Company advice it can reliably use to ensure all Owners, including Members of the Council of Owners, know the:

1. law and how to apply and accord with it; and
2. Strata Company’s By-laws as applicable to section 89 applications.

Our goal is not to tell you what to do but to empower you to do the right thing by providing objective and correct advice to Strata Companies and Owners and making appropriate recommendations giving them the legal knowledge they need to proactively navigate the Act and avoid protracted disputes.

Ask us. We can help.