This week’s blogpost is contributed by Mark Atkinson, legal specialist in Strata Law. Visit Atkinson Legal for more information or to make contact.
This was the issue in Tipene v The Owners of Strata Plan No 9495 [2013] WASAT 186 and the Tribunal’s answer was: No. Section 7 Strata Titles Act 1985 requires that before an owner erects, alters or extends a structure within their lot, they must first obtain the approval of the strata company or all other owners in the strata scheme.
The owners of four units in a nine unit lot complex applied to the strata company for approval to demolish and construct four new units. This was not given. The owners seeking to demolish applied to the State Administrative Tribunal for an order under section 103F Strata Titles Act that approval should have been given but had been ‘unreasonably withheld.’
The Tribunal considered whether the word “alteration” in section 7(2) can include demolition. The Tribunal was satisfied:
“that on the facts of this case, a plain reading of the word ‘alteration’ in s 7(2) of the Strata Titles Act does not include ‘demolition’ when the structure in question is an entire building which is part of the strata scheme.”
Taking into account sections 28 to 31, it further held that:
“where a building is to be demolished and the proprietary interests of owners in respect of their lots or their share of the common property may be affected, jurisdiction to deal with or interfere with those interests resides solely in the District Court.”
The Tribunal was therefore unable to make an order under Section 103F dispensing with approval under section 7(2).
It is not clear how the Tribunal considered that the District Court would have jurisdiction to approve demolitions, nor whether owners would first need to apply to the Court in respect of the demolition and, if successful, then also apply to the Tribunal in respect of the erection of the new structure.
An alternative, but controversial, view of the legal situation might be that the Strata Titles Act does not require approval for an owner to demolish a structure within their lot.
If this interesting case is supported by subsequent Tribunal decisions, it may present serious challenges for owners in the future, particularly if they want to demolish and rebuild the entirely of their lot within a strata development. Early legal advice as to the right to do so is advisable.