HOPKINS and CLAYTON [2007] WASAT 255 (8 October 2007)

21 Mr Clayton contended firstly that the proposed patio effectively constitutes an alteration to Lot 1 and should therefore be treated as a de facto merger of common property into Lot 1. He relied on the matter of The Owners of Millpoint Strata Plan 11391 & Ors [2007] WASAT 9 par 43 in support of his contention. The Tribunal does not accept this contention. There is no comparison between the proposal submitted by Mr Hopkins and the facts in the Millpoint matter. In the Millpoint matter an owner had enclosed a common property balcony into his lot. Mr Hopkins is not proposing to enclose the patio or to do anything that would in effect make the patio part of his lot. It is clear from the drawings that, if the patio is approved, it would be attached to the lot (building) from a structural perspective, but would for all practical purposes remain separate from it and part of the common property. The mere adding of the patio over a portion of common property does not change the legal status of it as being common property. Senior Member Raymond observed in the Millpoint matter as follows:

23 Mr Clayton contended secondly that an owner who seeks to effect alterations to common property, must do so by means of an exclusive use by-law pursuant to s 42(8) ST Act. He relied on the matter Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99 (par 29) in support of his contention. The essence of his submission is that the type of alteration proposed is to grant exclusive use rights to Mr Hopkins; that it does not fall within the general powers of the strata company pursuant to s 35 ST Act; and that the application should therefore be dealt with by way of a by-law. The Tribunal does not accept the contention of Mr Clayton. The facts in the Maber matter were such that the applicants sought to enclose a balcony in a manner that would have constituted nothing short of giving them exclusive use of the area and making it effectively part of their lot. That is not what Mr Hopkins is proposing. It must also be noted that, in the Maber matter, Deputy President Chaney specifically commented as follows on the availability of s 85 of the ST Act for purposes to effect alterations to common property:

34 In the matter of Burns and The Owners Of Observation Rise Strata Plan 24414 [2006] WASAT 17 (par 34 and par 35) the Tribunal found that a strata company had unreasonably refused permission for an air-conditioner to be installed. The Tribunal observed as follows: