Planning and Environment Update
Resolving strata title issues in the State Administrative Tribunal
20 November 2013
Authors
Craig Wallace
Partner
Tim Morgan
Senior Associa...
Alex McGlue
Solicitor


It is beyond doubt that the State Administrative Tribunal (SAT) is the most appropriate forum for resolving disputes in the context of planning matters.  The review of decisions in the context of land use planning is however only one aspect of SAT jurisdiction and SAT hears matter under numerous different bodies of legislation.

In particular, SAT provides multiple avenues for resolving issues that arise in relation to the Strata Titles Act 1985 (WA) (Strata Titles Act).  As a consequence, difficult strata issues may be capable of being resolved in a fast and cost-efficient manner by utilising the mechanism of SAT applications.  Some useful examples are outlined below.

General dispute resolution

Section 83 of the Strata Titles Act provides that a person may apply to SAT for an order to settle a dispute or rectify a complaint under strata by-laws.  SAT may make an order requiring a party to the dispute to do, or refrain from doing, some specified act to which the application relates.

A useful feature of the review power under s 83 of the Strata Titles Act is that it can be used by a wide variety of different persons.  For example, an application to SAT may be made by an “occupier” of strata premises, meaning that a tenant may commence SAT proceedings in circumstances where the strata company or a landlord has failed to address a particular issue relating to the strata by-laws.

Part VI Division 3 of the Strata Titles Act also contains a number of mechanisms for SAT review in relation to specific subject matters.  For example, applications may be made to SAT in relation to subject matters such as common property, insurance and strata company meeting procedure.

Reallocation of unit entitlement

Every strata or survey-strata lot will have a “unit entitlement” setting out the voting rights of the proprietor, the proprietor’s share in common property and the proportion of contributions payable by the proprietor.  Ordinarily, the reallocation of unit entitlements requires the strata company to pass a “resolution without dissent”, which essentially requires that every member of the strata company must vote in favour of the reallocation.  This will create difficulties where a particular member refuses to vote in favour of the reallocation.

Section 16 of the Strata Titles Act however provides that an application to reallocate unit entitlement may be made to SAT in circumstances where the strata company has passed a “special resolution”, which in most cases will be satisfied when more than 50 percent of the members of the strata company vote in favour of a resolution.  If SAT is satisfied that there are good reasons for a reallocation of unit entitlement, it may order that an amended schedule of unit entitlement be registered.  This may be a useful mechanism in circumstances where the existing schedule of unit entitlement no longer reflects the division of ownership within a strata development.

Local government and WAPC approvals

Section 24 of the Strata Titles Act provides that an application may be made to a local government for a preliminary determination as to whether a proposed strata development complies with the planning framework and complements the existing amenity of the relevant neighbourhood.  Such a determination will bind the local government for a period of two years.

Section 25 of the Strata Titles Act meanwhile requires a certificate from the Western Australian Planning Commission (WAPC) to be obtained for most strata plans and plans of resubdivision.  Such a certificate is obtained by making an application to the WAPC in the prescribed form.

A person may seek a review of a local government or WAPC refusal of an application made under ss 24 or 25 of the Strata Titles Act.  Such a review is brought to SAT in accordance with the review procedure set out in Part 14 of the Planning and Development Act 2005 (WA).

Lavan Legal comment

As strata developments become more and more common in Western Australia, it is important that proprietors and developers alike are aware of the applicant and the role of SAT under the Strata Titles Act.

Although the Strata Titles Act is a complex body of legislation, SAT is a fast and flexible forum for dispute resolution and should be utilised where possible to resolve issues that arise in the strata context.