As the appropriate resolution of the matter required consideration of the issues raised in both sets of proceedings, the Tribunal addressed all matters in issue between the parties.

After consideration of all of the evidence and submissions on the legal issues raised, the Tribunal determined as follows.

1. The horizontal lower boundary of the lot was constituted by the concrete slab in all areas which had previously been carpeted, and in respect of the kitchen which had been previously tiled, was the upper surface of the tiles.

2. The installation of the timber flooring constituted an alteration to the lot in relation to all areas which were previously carpeted. In the kitchen, which had been tiled as at the date of registration of the strata plan, the evidence did not establish whether the surface of the new tiling was higher than the original tiling and consequently it could not be found that this work constituted an alteration to the lot.

3. In installing the timber flooring without the prior written consent of the strata company, the applicant was in breach of a number of by-laws relating to the making of alterations to the common property (in respect of the installation of the floor in the kitchen) and of a specific by-law requiring the strata company's approval before installing timber flooring.

4. Expert evidence established that the noise transmission through the timber flooring met all relevant standards, although a better performance could have been achieved if a thicker acoustic mat had been used and if the floor had been constructed as a floating floor.

5. The evidence of witnesses of fact failed to establish that noise transmission from the floor was likely to disturb the peaceful enjoyment of other proprietors.

6. The removal of the original carpeting, and tiling in the kitchen, did not destroy the boundary of the lot and therefore the lot had also not been destroyed.

The Tribunal further found that it was not open to it to grant the applicant the orders sought under s 83 of the Strata Titles Act 1985, as that section expressly precluded an order being made thereunder in respect of any matter referred to in any other section of Pt VI of that Act. As the installation of the timber flooring constituted an alteration to the lot, in all areas other than the kitchen, s 103F of the Strata Titles Act 1985 dealt with the same matter as that raised in the applicant's application.

Finally, the Tribunal concluded that having regard to the matters raised in both proceedings, the appropriate course, which would also recognise the strata company's good governance concerns, would be to dismiss both proceedings, but in the case of these proceedings, to expressly reflect that the orders seeking to have the strata company's decision set aside and for the application for installation of the timber flooring to be approved were dismissed, and that the order be lodged with the Office of the Western Australian Land Information Authority for registration on the strata plan. The Tribunal considered that this course would ensure the continued considerate behaviour on the part of the applicant, but would protect the strata company and other proprietors if noise transmission could be proved to be an issue at any later time.

Second Respondent : Mr T Smith (In Person and Acting as Agent for Mrs E Smith)

Third Respondent : Mr T Smith (In Person and Acting as Agent for Mrs E Smith)

Fourth Respondent : Mr B Skinner (In Person and Acting as Agent for Mrs L Skinner)

Fifth Respondent : Mr B Skinner (In Person and Acting as Agent for Mrs L Skinner)

Arasi & Anor and The Owners of Beverley Court [2005] WASAT 197

Commodore Homes (WA) Pty Ltd and Deegan [2007] WASAT 45

Groom v Baker & Ors (Strata and Community Schemes) [2008] NSWCTTT 924

Hamilton v Thompson [1999] 23 SR (WA) 41

Leo and The Owners of The Courthouse Apartments - Strata Plan 31754 [2004] WASTR 29

Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134

Proprietors of Strata Plan 225 v Bru BC 9607097 (unreported, 3 April 1996)

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Reader v Zena Glava Pty Ltd [2003] WADC 216

Reitmajer and Council of Owners of 14/16 Molloy Street Bunbury [2009] WASAT 63

Symes v SP 31731 [2001] NSWSC 527

The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1

The Owners of Mill Point Strata Plan 11391 and Fownes [2006] WASAT 30

The Owners of No 39 Sherwood Street, Maylands Strata Plan 19122 v Bradford [2004] WASTR 39

The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272

Tipene v The Owners of Strata Plan 9485 [2015] WASC 30

Triunfo & Anor v The Owners of Riviera Apartments SP 35851 [2005] WASAT 6

Venables and Owners of Cambridge Court Strata Plan 4879 [2012] WASAT 7

Zadnik and Bizzaca [2005] WASAT 333

1 The undisputed facts and our findings later in these reasons for decision reflect as follows.

2 The applicant (Mrs Topic) is the owner of Lot 25 on strata plan 48545, which is also known as Apartment E502, Raffles Waterfront (Raffles).

3 During the period from about the Australia Day long weekend in January 2014 through to approximately mid-February 2014, Mrs Topic caused the existing carpeting throughout the whole of the apartment, other than the wet areas and kitchen, and the tiling in the kitchen to be uplifted and replaced with timber flooring. Mrs Topic admits that she failed to comply with a by-law of the first respondent (strata company) which prescribes that a proprietor must not install any wood or tile flooring within the floor space within their lot without the prior written consent of the strata company.

4 Mrs Topic had made an application to the strata company for the necessary approval but had commenced the removal and installation of the flooring prior to any approval being obtained. The strata company rejected the application on 25 February 2014 after ascertaining that what had been installed did not accord with the application. In correspondence with Mrs Topic, the strata company required that the timber flooring be removed and that the floor be reinstated to its original condition. Thereafter, the strata company also received complaints about noise transmission from Mrs Topic's apartment.

5 Mrs Topic made a second application to the strata company for approval, on this occasion correctly identifying that the kitchen tiling had been replaced and attaching a report from a firm of acoustic engineers to support her contention that the timber flooring was not likely to be a cause of disturbance to other proprietors. The strata company also rejected this application, which resulted in Mrs Topic applying to the Tribunal in these proceedings seeking orders that:

1. the decision of the strata company dated 14 August 2014 rejecting her application dated 30 July 2014 and requiring the removal of the existing floorboards be set aside; and
2. the application dated 30 July 2014 be approved.

The above orders were sought under s 83 of the Strata Titles Act 1985 (WA) (ST Act). References hereafter to sections, Parts, Divisions or Schedules of legislation are references to sections, Parts, Divisions or Schedules of the ST Act unless otherwise expressly stated.

6 The strata company subsequently commenced separate proceedings in the Tribunal in matter CC 1001/2015 seeking:

1. an order under s 83(1), or alternatively, s 103G that, within 30 days of the making of the orders, Mrs Topic, at her own cost, remove all timber flooring and associated items installed in 2014 by her or on her behalf in or adjacent to Lot 25, reinstate the flooring previously in place and make good; and
2. an order under s 81(10) that the orders shall not cease to have force or effect upon the expiration of the period of two years that next succeeds the making of the orders.

7 Following a protracted attempt to resolve the matter by mediation, the matters were programmed to final hearing. The Tribunal's orders required that notice be given to interested parties and this resulted in Terence Edward Smith and Esther Smith (Mr and Mrs Smith) and Barry Skinner and Lesley Skinner (Mr and Mrs Skinner) being added as respondents to the proceedings commenced by Mrs Topic and as applicants to the proceedings commenced by the strata company. Mr and Mrs Smith and Mr and Mrs Skinner own and reside in lots which are on the floor below Mrs Topic and they were the source of complaints made to the strata company about noise transmission.

8 The Tribunal directed that the matters should be heard concurrently.

9 The final hearing took place over two days on 17 and 20 November 2015. The proceedings were effectively conducted as if they had been consolidated. The issues in both matters arise from exactly the same factual circumstances and it is necessary to have regard to both sets of proceedings in order to determine the appropriate resolution of both matters. Accordingly, in these reasons, the Tribunal addresses all matters in issue between the parties.

10 Both sets of proceedings will be determined by a resolution of the following issues:

1. Were the carpet and tiles in place prior to the works undertaken by or on behalf of Mrs Topic common property or part of Lot 25?
2. On either basis, is Mrs Topic in breach of the strata company by-laws (in addition to that in respect of which breach is admitted)?
3. By removal of the carpeting or tiles, has Mrs Topic destroyed the lower horizontal boundary of, and thereby destroyed, Lot 25?
4. What is the appropriate remedy to be granted in each matter, having regard to the Tribunal's determination in respect of the above issues?

We consider any conflicting evidence and make necessary findings of fact in the parts of the reasons which follow addressing each of the above issues. Before turning to the issues, we make some initial observations concerning the witnesses which have influenced our findings on factual matters.

11 Mrs Topic gave evidence and also called Mr Scott Clements, who installed the timber flooring on her behalf. Mr George Arthur Watts, a senior acoustic consultant employed by Herring Storer Acoustics, was called by Mrs Topic to give expert evidence relating to impact isolation testing and the acoustical performance of the timber flooring.

12 The strata company called the following witnesses of fact:

• Mr Gary Truss, a maintenance manager employed by the strata company;
• Mr Grant Menhennett, the chairman of the strata company; and
• Ms Jannette Marian Johns, the facilities manager for the strata company.

Dr Luke Zoontjens, a principal acoustics consultant, of SLR Consulting, was called by the strata company to give expert evidence in relation to the acoustic performance of the timber flooring installed by Mrs Topic.

13 Mrs Topic was not a good witness. Her evidence was, at times, vague and when pressed to provide certainty, she was not convincing. She ultimately conceded 'I can't remember exactly how and what I did' (T:22; 17.11.15). While that concession was made specifically with reference to why her application referred to only one sample of the acoustic underlay which was used, when she contended that she had given Ms Johns three samples, it is a concession which supports our view of her evidence that she had a poor recollection of any detail. Other examples of her confused and inexact recollection are referred to below in discussing the alleged breach of various by-laws.

14 There is some contest between the evidence of Mrs Topic and that of Ms Johns. Although Ms Johns also made a concession in her evidence that the evidence in her statement at paragraph 56 was incorrect to the effect that Mrs Topic's contractor (Mr Clements) had said that he had told Mrs Topic that the underlay was not of a high standard, her evidence was in all other respects clear and convincing. Accordingly, where there is conflict between the evidence of Mrs Topic and that of Ms Johns, we prefer the evidence of the latter.

15 All other witnesses gave evidence in a satisfactory manner. Their evidence is addressed to the extent necessary when dealing with the relevant issues below.

Were the carpet and tiles common property or part of the lot?

16 Strata plan 48545 was registered on 10 May 2006. Upon registration, the land forming the strata scheme becomes subdivided into lots, or lots and common property: s 4(1).

17 A lot in relation to a strata scheme (as opposed to a survey strata scheme) is defined as follows:

lot, in relation to a strata scheme, means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, plan of re-subdivision or plan of consolidation to which that strata scheme relates, being in each case, but subject to section 3AB, cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space except where -

(a) the boundaries of the cubic space are fixed under section 3AB; or

(b) the boundaries are not so fixed and that structural cubic space -

(i) has boundaries described in accordance with the regulations; and

(ii) is shown in that floor plan as part of a lot[.]

18 Section 3AB applies to single tier strata schemes which are schemes in which no lot or part of the lot is above or below another lot (but may include such a lot which has a permitted boundary deviation). The Raffles Waterfront Scheme is not a single tier strata scheme, as the strata plan shows that it includes an apartment building comprising 17 floors containing multiple lots.

(2) Except where section 3AB applies, the boundaries of any cubic space referred to in paragraph (a) of the definition of floor plan in subsection (1) -

(i) are in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition - the inner surface of that wall; and

(ii) are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space - the upper surface of that floor and the under surface of that ceiling;

(b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).

(a) a strata plan creates a boundary external to a building; or

the floor plan may include dimensions or survey information defining that boundary, in the prescribed manner, by reference to the parcel boundary.

(a) so much of the land comprised in a strata plan as from time to time is not comprised in a lot shown on the plan; and

(b) any leasehold interest acquired by a strata company under section 18; and

(c) the lot or lots shown on a survey-strata plan as common property[.]

21 In accordance with s 3(2)(b), each sheet of the strata plan showing a lot or part lot contains a note:

1. Under section (3)(2)(b) of the Strata Titles Act 1985 the boundaries of the lots or parts of the lots which are buildings shown on the strata plan are the inner surface of the walls, the upper surface of the floor and the under surface of the ceiling.

The boundaries so described are in effect exactly the same as the boundaries described in section 3(2)(a)(ii).

22 The determination of what part of the parcel constitutes part of the lot, or constitutes common property, is determined by the application of the above definitions to the state of the parcel as it existed on the date of registration of the strata plan: see Symes v SP 31731 [2001] NSWSC 527 (27 June 2001) (Symes) and The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272 (Seiwa) (4 October 2007) dealing with the corresponding provisions of the Strata Schemes Management Act 1996 (NSW) which are similarly worded and Venables and The Owners of Cambridge Court Strata Plan 4879 [2012] WASAT 7 (Venables).

23 A controversy arises between the parties as to the correct application of the definition of a horizontal boundary.

24 The strata company asserts, in effect, that whatever is the material which constitutes the floor is common property. In support of its contention, the strata company refers to: Leo and The Owners of The Courthouse Apartments ­ Strata Plan 31754 [2004] WASTR 29 (Leo); Triunfo & Anor v The Owners of Riviera Apartments SP 35851 [2005] WASAT 6 (Triunfo); Groom v Baker & Ors (Strata and Community Schemes) [2008] NSWCTTT 924 (Groom); and Venables; Symes and Seiwa, as referred to above.

25 Mrs Topic contends that the Tribunal should not adopt a strict, two-dimensional approach when defining the lot by reference to a horizontal plane and that a more reasonable and holistic approach should be adopted. Reference is made to decisions which it is submitted support that approach, namely: The Owners of No 39 Sherwood Street, Maylands Strata Plan 19122 v Bradford [2004] WASTR 39 (Bradford); Reitmajer and Council of Owners of 14/16 Molloy Street Bunbury [2009] WASAT 63 (Reitmajer); and a decision of New South Wales Supreme Court Proprietors of Strata Plan 225 v Bru BC 9607097 (unreported, 3 April 1996) (Bru).

26 The only cases above which examined in detail the issue of whether the surface of the boundary was included within the lot was Reitmajer and Venables, which adopted the reasoning in Reitmajer. Neither party has argued that Reitmajer is incorrectly decided, and we should follow it unless we consider it to be clearly wrong, on the basis that there should be consistency in decision-making, notwithstanding that the law of precedent does not apply in relation to a prior decision of the Tribunal: Commodore Homes (WA) Pty Ltd and Deegan [2007] WASAT 45; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

27 In Reitmajer, the Tribunal was concerned whether or not the respondent strata company was obliged to maintain the painting to the under surface of the ceiling. The Tribunal concluded that the ordinary meaning of 'boundary' conveyed that it formed a part of the lot, albeit the furthermost extension of it, and referred to a dictionary definition of a boundary as including something that indicates bounds or limits; a limiting or bounding line. The Tribunal considered that this interpretation was supported by the second reading speech of the Minister for Lands and Surveys, in respect of the Strata Titles Bill which ultimately became the ST Act: Legislative Assembly, Parliamentary Debates (Hansard), 16 April 1985 at 2018 and in particular at 2019, where the Minister stated:

The proposals in subclauses (2) to (4) of clause 3 of the Bill, following the New South Wales legislation, lay down detailed rules to enable a lot which is three-dimensioned to be defined on a two-dimensional plan. The relevant rules are described in paragraph 3.5 of the commission's report.

One interesting change which they will bring about is to make the inner surface of boundary walls, floors, and ceilings the boundary of the lot, unless there is a contrary indication on the plan. At present the general rule is that it is the centre line of the boundary wall, floor, or ceiling which constitutes the boundary of the lot - section 5(5). This change will not affect the right of the proprietor to make the normal use of the interior surfaces of his lot as by painting, wallpapering or otherwise decorating or affixing carpets, furniture, fly screens, locking devices, and other things to those surfaces. This right is specifically preserved by by-law 2 of the standard by-laws - see schedule 1, clause 42(2).

The Tribunal considered that the above passage made it clear that the pre-existing position that the proprietors had the right to do as he or she chose with respect to the interior surface of the boundary walls, floors and ceilings, constituting the boundaries of the lot would survive the change of boundary from the centre line of whichever structure was being considered to the inner surface of that structure. Further, reference was made to Sch 1 By-law 2, to which reference was made in the second reading speech above. The by-law provides as follows:

A proprietor may, without obtaining the consent of the strata company, paint, wallpaper or otherwise decorate the structure which forms the inner surface of the boundary of his lot or affix locking devices, flyscreens, furnishings, furniture, carpets and other similar things to that surface, if and so long as such action does not unreasonably damage the common property.

The Tribunal concluded that the provisions of the above by-law were entirely consistent with its construction of s 3(2) requiring that the inner surface of the boundary structures form part of the lot. Consequently, the Tribunal held that the application should be dismissed as being misconceived because it attributed to the strata company the responsibility to maintain the under surfaces of the ceilings. Reitmajer therefore drew a conceptual distinction between the actual surface forming the relevant boundary and the material of the structure below it.

28 It is submitted for Mrs Topic that on an application of Reitmajer, if the carpeting or tiling which was removed was originally affixed to the concrete slab structure at the date the strata scheme was registered, then it is part of the lot because it constitutes an inner surface of the structure which forms part of the lot's boundary. We do not accept this submission.

29 The true effect of Reitmajer is that it is only the surface of the relevant structure which is included within the lot. The structure above that surface in the case of ceiling, or below that surface in the case of a floor, is common property. The Bru decision is directly in point and, although it is a decision which is outside the Tribunal's appeal hierarchy and is not binding, it should be given great weight: Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134 at [36] - [40] and the authorities there cited. The case involved the removal of carpet from the floor of the unit and the installation of terracotta tiling. The strata company required Mrs Bru to remove the tiles and when she did not do so the matter was referred to the Strata Titles Commissioner. The strata company was unsuccessful and referred the matter to the Strata Titles Board. A Magistrate sitting on the Strata Titles Board published a determination adverse to the strata company. That decision was then appealed to a single judge of the Supreme Court.

30 The Court indicated that the issue was the proper construction of a by-law, which prohibited making any mark, painting or driving nails or screws or the like or otherwise damaging any structure that forms part of the common property. The strata company alleged that the fixing of the tiles constituted damage to common property and therefore contravened the by-law.

31 Without any analysis of the legislation, the Court held that it was perverse to suggest that the by-law had application to the inner surfaces of the floors, walls and ceilings of each unit, and that such surfaces did not constitute common property, but were the domain of each unit. In stating that conclusion, the Court held that the Magistrate's determination illuminated the illogical nature of the strata company's interpretation of the by-law, because the determination stated that otherwise the proprietor would require the body corporate approval to paint his or her unit or to hang pictures on his or her boundary walls, which is obviously ridiculous as well as being at odds with the function of the strata company, namely, the protection and management on behalf of the plan proprietors of those structures in the strata plan which belong to all of them collectively rather than any of them individually.

32 It will be noted that the Court gave no consideration to the possibility that there might be a distinction between the surface of the structure forming the boundary and the material itself. Further, as will appear below, the Bru decision is inconsistent with the joint views, albeit obiter, of the Court of Appeal in Seiwa, which would suggest that the issues raised in Bru would be likely to be decided differently at the current time.

33 In Seiwa, the issue raised in the appeal was whether, on a proper construction of the legislation, a notation on the floor plan defining the upper boundary on an open terrace affected what constituted the lower horizontal boundary of the terrace. The litigation had arisen because of water ingress as a result of the waterproof membrane below the tiling being defective which had caused damage to the unit below. At first instance, damages for loss of rent were awarded against the strata company. The strata company contended that the lower horizontal boundary was the upper surface of the concrete slab and it was therefore not liable for the defect in the waterproof membrane. The Court of Appeal rejected the strata company's submissions in relation to the effect of the notation defining the upper boundary of the terrace. The strata company had conceded that if that argument was rejected, the boundary would be the upper surface of the tiles which the Court of Appeal considered to be correct as a matter of common sense and common parlance. The Court of Appeal, at [27], expressly relied on aspects of the reasons given by the court at first instance and, in particular, a statement made to the following effect:

Similar provision is made by s 5(2) [Strata Schemes Management Act 1996 (NSW)] (parenthesis added) in relation to horizontal boundaries where any floor or ceiling joins a vertical boundary of the relevant cubic space. In such a case, it is the upper surface of the floor or the under surface of the ceiling which is the boundary of the lot so that again the material of the floor or ceiling is common property.

In this respect, the Court of Appeal decision is consistent with Reitmajer, but it did not decide whether the description of the boundary means that the surface is included in the lot, as was decided in Reitmajer.

34 We do not accept that the Bradford decision supports a conclusion that the boundary of the lot must necessarily include whatever flooring, be it carpet or tiling, was in place as at the date of registration. Bradford involved the replacement of tiling with other tiles. The delegate for the Strata Titles Referee held that it was not necessary for the lot owner to apply under s 7(2) for the consent of the strata company to effect an alteration to her lot. The reasoning for the decision was that the delegate did not consider that the replacement of one set of tiling with another constituted either an erection of a structure, alteration of a structural kind or an extension to a structure. Further, even if floor tiles constituted a structure, the delegate considered that the tiles were merely a replacement of the previous floor tiles. Without any reasoning being provided, the delegate stated that he did not consider that floor coverings in the nature of floor tiles constitute common property and that they were either a chattel belonging to the owner of the lot or were part of the lot. Accordingly, the delegate concluded that the procedure under s 7(2) did not apply. No attention was given to the definition of what constituted the boundaries of the lot, nor was there reference to any decisions on the issue.

35 We do not consider that Reitmajer wrongly decided that the surface which defines the boundary is part of the lot; to the contrary we consider the decision is correct. We accordingly proceed on the basis that whatever was the surface of the flooring as at the date of registration of the strata plan forms part of the lot. It should be noted that if we are wrong in this conclusion, our views which follow would be unaffected, based on the principles expressed in Seiwa.

36 The evidence of Ms Johns, Mr Menhennett and Mr Smith canvasses, amongst other issues, the state of the building at the time of registration of the strata plan. The effect of their combined evidence is to establish that at the time of registration of the strata plan, on the balance of probability, Mrs Topic's lot had been completed with tiling in the kitchen and all wet areas, and a taupe colour carpet in the remainder of the apartment as existed immediately prior to the carrying out of the works to which we have referred.

37 It will be recalled that the strata plan was registered on 10 May 2006. Ms Johns gave evidence that she commenced employment as the facilities manager with the strata company in September 2009. At the time of her employment she was provided with a folder from the builder with various records relating to the construction of the building. Extracted from that folder were plans of Mrs Topic's Lot 25, there described as Apartment E502, a copy of a plan relating to Mr Menhennett's Lot 41, then known as Apartment W501, and a schedule of finishes relating to each of these apartments. The date of the drawings and schedules predate that of the registration of the strata plan. The schedules reflect that, in both apartments, a taupe coloured carpet was to be installed. Details of the tiling to be installed were also provided.

38 Similarly, a schedule of finishes was provided in respect of the two lots owned by Mr and Mrs Smith, known as Apartments E404 and E405. In respect of Apartment E404, the schedule did not reflect any finish for carpets because Mr Smith advised that he had elected to select and install his own carpeting and timber. In respect of Apartment E405, there was provision for the apartment to be completed with the taupe coloured carpeting. Mr Menhennett and Mr Smith both confirmed that the carpet installed in their apartments was the same as the sample of carpeting (Exhibit C) which Mrs Topic identified had been provided from the carpeting she had removed. Both Mr Menhennett and Mr Smith took title to their apartments shortly after the registration of the strata plan, namely, 7 June 2006 in the case of Mr Menhennett and 8 June 2006 in the case of Mr and Mrs Smith. None of this evidence was challenged in any way by Mrs Topic.

39 We accordingly find that the carpeting and the tiling which were removed on behalf of Mrs Topic were in existence as at the date of registration of the strata plan.

40 In respect of strata plans (as opposed to survey strata plans), the ST Act contemplates that lines on plans and physical features of the building combine to identify each lot, its boundaries and common property. Under s 3(2)(b) where the boundaries are not so fixed, the boundaries must be described in the prescribed manner by reference to a wall, floor or ceiling in the building to which that plan relates, or to structural cubic space within that building. The dimensions of the lot are not fixed by reference to any fixed survey datum. The cubic space comprising a lot is therefore always defined by reference to some physical feature of the building. Schedule 1 By-law 2, which has been set out above, distinguishes between the structure which forms the surface of the boundary of a lot and the right of a proprietor, without obtaining the consent of the strata company, to paint, wallpaper or otherwise decorate that structure, or to affix locking devices, flyscreens, furnishings, furniture, carpets and other similar things to the surface of that structure, provided that the common property is not unreasonably damaged.

41 While there is flexibility under s 3(2)(b) to define what might constitute a boundary, under s 3(2)(a)(ii), the boundaries of the lot are formed by features which are part of the structure of the building. A carpet fitted to the floor is not part of the building itself. By contrast, tiling is permanently fixed to the structure of the building. As the evidence discloses in this case, the tiling could not be removed without the use of a tool which was described as being in the nature of a jackhammer. Almost every type of building designed for human occupation will incorporate tiling as part of the building in toilets, wet areas and otherwise depending on preference as a general form of floor. In our view, tiling forms part of the constituent parts of the building. The Australian Oxford Dictionary, 2nd Edition, defines 'structure' as follows:

Structure 1a a whole constructed unit, especially a building. b the way in which a building etc is constructed ... 2 a set of interconnecting parts of any complex thing[.]

This definition supports our view that an installation of a floor, be it constructed of tiling or timber flooring, intended to be part of the completed building, would form the structure, the upper surface of which would define the relevant horizontal boundary of the lot in a case to which s 3(2)(a)(ii) applies, and conversely, a carpet would not - assuming installation prior to the date of registration of the strata claim. In this case, as we have noted, s 3(2)(b) applies, not s 3(2)(a)(ii), but the boundaries described by notation on the strata plan pursuant to s 3(2)(b) are identical to those described under s 3(2)(a)(ii).

42 We accordingly find that the tiles removed by Mrs Topic formed part of the common property. The carpeting removed by Mrs Topic, on the other hand, was within her lot and its removal was permitted by Sch 1 By-law 2.

Is Mrs Topic in breach of the strata company by-laws?

43 A Management Statement was lodged with the strata plan and, in terms of that Management Statement, upon registration of the strata plan, standard Sch 1 by-laws remained operative and additional By-laws 16 to 29 as set out in the Management Statement apply. Further, the standard Sch 2 by-laws were repealed and new By-laws 1 to 37, as set out in the Management Statement, apply. The by-laws were subsequently further varied by the registration of five later notifications recorded on the strata plan.

44 Depending upon whether the carpet and tiles removed by or on behalf of Mrs Topic constituted common property or part of her lot, the strata company alleges that Mrs Topic is in breach of one or more of the following by-laws:

• Sch 1 By-laws 1(2)(a) and 1(2)(b); and
• Sch 2 By-laws 5(a), 5(c), 8(n), 11.1, 15.1, 17.1, 17.2, 17.3, 21, 22.1 and 38.1.

45 Although the strata company cited Sch 2 By-law 38.2 as a relevant by-law, it does not appear in its contentions to allege any breach of this by-law. No attention was directed to the issue during the hearing.

46 The by-laws referred to fall basically into three categories: those relating to interference with the enjoyment of other proprietors or occupiers, those providing that the strata company is responsible for common property and those requiring either prior notice or consent from the strata company before installing any structure, improvement or object to a balcony or external wall or surface of a building or installing any timber or tile flooring within the floor space within their lot.

47 As the case was conducted, the parties focused primarily on the alleged breaches of Sch 2 By-law 17. It is convenient to therefore address these alleged breaches first.

17.1 Excepting Proprietors of the Raffles Hotel, a Proprietor must ensure that all floor space within the Lot (other than that comprising the kitchen, laundry, lavatory or bathroom) is covered or otherwise treated to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of other Proprietors.

17.2 Excepting Proprietors of the Raffles Hotel, a Proprietor must not install any wood or tile flooring within the floor space within their lot (other than that comprising the kitchen, laundry, lavatory or bathroom) without the prior written consent of the Strata Company.

17.3 Excepting Proprietors of the Raffles Hotel, the Strata Company must ensure that the specifications for the fitting of the wood or tile flooring complies with the Australian Standards for acoustic and sound proofing requirements for high rise buildings.

49 In order to establish breach of Sch 2 By-law 17.1, the strata company must prove two matters:

1. that the noise transmitted from Mrs Topic's Lot 25 is of a nature likely to disturb the peaceful enjoyment of the proprietors of the lots situated on the floor immediately below, namely, Mr and Mrs Smith and Mr and Mrs Skinner; and
2. that the transmission of noise is caused by Mrs Topic's failure to cover, or otherwise treat, the floor space to prevent the transmission of noise.

50 The evidence of Ms Johns, which we accept, is that when she was given Mrs Topic's application for approval to install the timber flooring on 30 January 2014, Mrs Topic also gave her a sample of an acoustic mat underlay to be used, together with a brochure about flooring adhesive. Mr Clements confirmed in his evidence that the sample given to Ms Johns (Exhibit D) was a 5 millimetre acoustic mat.

51 The brochure provided to Ms Johns related to the adhesive being used in conjunction with a 5 millimetre thick acoustic mat.

52 Mrs Topic was uncertain as to what sample she had given to Ms Johns. Mrs Topic said she had been provided with three acoustic mat samples by the contractor, Mr Clements. Mrs Topic had advised Ms Johns that the floor she wanted to lay would be the best available to reduce noise transmission.

53 When Mr Clements gave evidence, he contradicted Mrs Topic, saying that he had given her two acoustic mat samples, being a 5 millimetre mat and a 3 millimetre mat, the latter being the mat which was actually used in the installation.

54 Mrs Topic's evidence was that she commenced to remove the carpeting after handing over the application on 30 January 2014. However, when pressed in cross-examination about complaints having been received because of noise emanating from her apartment over the Australia Day long weekend, and it was suggested that work had commenced during that weekend, Mrs Topic again became confused and stated that she could not remember (T:21; 17.11.15). Ms Johns' evidence was that she spoke to Mrs Topic on the Tuesday following the Australia Day weekend, that she raised the complaints which had been received, and that Mrs Topic advised her that she had come home from shopping and discovered her son had already hired a Kango hammer and was using it to lift up tiles in her apartment. She stated that she was going to install timber floors. It was then that she was informed by Ms Johns that she needed approval for timber floors and would need to make an application. Ms Johns stated that she printed off a strata company application form and provided it to Mrs Topic. We accept Ms Johns' evidence.

55 When the application form was provided on 30 January 2014, it referred only to the installation of timber flooring in the carpeted areas. No reference was made to installing timber flooring in the kitchen. The application included an attached plan showing the areas of carpeting to be replaced with timber flooring.

56 Mrs Topic stated that she had not intended to install flooring in the kitchen but that her son had broken a tile in the kitchen floor while removing the carpet and when she found that she could not match the tile, she had instructed her contractor to replace the tiled floor in the kitchen with a timber floor as well.

57 Mr Clements gave evidence that he only provided a quote for the works to be carried out on 3 February 2014. He could not say whether it was an oral quote or not, although he thought that he probably would have quoted by way of an email. He could not produce a copy of the quotation. He advised that he had quoted for 140m2 of flooring, which included the kitchen area. Mr Clements also stated that he had quoted on the use of 3 millimetre acoustic matting because that was the matting he usually used.

58 In her witness statement, Mrs Topic relates, at paragraph 8, that she was told by Mr Clements that the floorboards were 'Rolls Royce' and that their materials and construction were the best available timber floorboards for reducing noise transmission. She stated that she had a discussion with Mr Clements about the underlay and was informed that the combination of the glue with acoustic properties and the 3 millimetre mat that he would use was equivalent to, if not better than, the 5 millimetre mat in terms of reducing noise transmission.

59 We are prepared to accept that Mr Clements would most probably have informed Mrs Topic that the system to be installed by him, using the 3 millimetre underlay, would perform well. We cannot accept that he would have advised that a 3 millimetre underlay would perform better than the 5 millimetre underlay, particularly when the brochure he provided Mrs Topic claimed that up to a 17 decibel (dB) reduction could be achieved when using the adhesive with the 5 millimetre underlay. There was no written material suggesting a similar reduction using the 3 millimetre underlay. It is improbable that the cost of the two forms of underlay were not discussed, when the likely purpose of providing at the very least two samples of the matting was so that a decision could be made as to which should be used. We find that it is improbable that Mrs Topic would have agreed to use the 3 millimetre mat if there had been any suggestion that it might not be an effective means of reducing noise transmission. She was aware of complaints made some years previously by Mr Smith, which were settled amicably, relating to the noise of moving furniture on her balcony. That complaint had been resolved by ensuring that the feet of the furniture were adequately covered.

60 Prior to making the second application to the strata company on August 2014 for a retrospective approval of the installation, Mrs Topic obtained a report from Mr George Watts of Herring Storer Acoustics concerning the level of impact isolation between Apartments E502 (Lot 25) and the apartments below owned by Mr and Mrs Smith and Mr and Mrs Skinner. A copy of that report was provided with the second application. The report reflects that impact isolation testing resulted in the measurement of impact sound pressure levels of 47 dB in Apartment E406 and 48 dB in combined Apartments E404 and E405. This rating is considerably less than the 62 dB minimum standard required by the Building Code of Australia 2013 (Building Code of Australia) as incorporated in the National Construction Code (National Construction Code) and the 55 dB standard recommended by the Association of Australian Acoustical Consultants (AAAC).

61 On 14 August 2014, the strata company advised Mrs Topic by letter that her second application had been rejected and that she was required to remove the floorboards and reinstate the original flooring. The reasons given were that the underlay did not meet the 5 millimetre standard, the timber floor is not a floating floor, noise complaints had been received by neighbours, and the floor was installed without prior written consent.

62 The strata company subsequently commissioned its own expert report relating to the performance of the flooring (SLR report). The SLR report was provided by Dr Zoontjens of SLR Consulting Australia Pty Ltd. Dr Zoontjens' testing resulted in weighted standardised impact sound pressure levels of the flooring being measured to be between 47 dB and 51 dB which compares to four star performance (out of six stars) according to guidelines published by the AAAC. Dr Zoontjens opined that the original flooring consisting of loop pile carpet on underlay would have performed to around 40 dB or better, or to AAAC six star performance. Further, that a higher performance hard flooring system acoustic underlay other than the 3 millimetre product selected and perimeter detailing (which we understand is a reference to a floating floor) should have been used to minimise the change in noise impact. The SLR report reflects that the level of noise transmission is measured by impact testing and rating in accordance with Australian Standard AS 150 140.7, 717.2.

63 In accordance with the Tribunal's usual practices, Mr Watts and Dr Zoontjens were required to confer and provide a joint statement (expert joint statement).

64 The expert joint statement reflects that there is no disagreement between the expert witnesses. In oral evidence before the Tribunal, Dr Zoontjens indicated that the use of the 5 millimetre acoustic matting might have resulted in a 1 dB improvement in the test results which would result in a reduction of transmission of higher frequency sounds, which would be more noticeable than lower frequency sounds. It is evident from the evidence outlined above in relation to the specification of materials to be used during the construction of the building that the proprietors had a choice whether to have carpeting or timber flooring installed. Mr Smith's evidence is that in one of his apartments, he chose to have timber flooring in some areas. The purpose of Sch 2 By-laws 17.2 and 17.3 is to permit the installation of timber or tiled flooring. The SLR report and the expert joint statement reflect that it is not possible to achieve the same level of noise transmission reduction with timber flooring as in the case of the good quality carpeting originally provided.

65 While Dr Zoontjens did express a view that a better performance could be expected of the floor if a 5 millimetre acoustic mat had been used and if the floor had been installed as a floating floor, this does not mean that the current performance of the floor is likely to cause disturbance to the peaceful enjoyment of other proprietors.

66 In circumstances in which the expert evidence is not conclusive, it is necessary to pay particular regard to the evidence of persons complaining about noise transmission. In doing so it must be borne in mind that the change from carpeting to timber flooring would necessarily involve some increase in noise transmission.

67 Ms Johns testified to the complaints which had been received by the strata company concerning noise transmission from Mrs Topic's apartment. The complaints were made by email and appear at pages 251 to 254 of the bundle of documents (Exhibit L). All of the complaints were made by Mr Smith.

68 The first complaint is dated 25 April 2014. It refers to Mr and Mrs Smith regularly hearing the occupants above walking across their timber floor. It is stated that during the last night (24 April 2014), 'their footfalls kept us awake until at least midnight even though the noise seemed like they were walking barefoot and not wearing shoes'. The next complaint is dated 25 May 2015. In that complaint email, Mr Smith complains of suffering unreasonable noise from above and that it continues unabated. He stated that he had previously noted dampened foot traffic noise of people walking without shoes, but that on a few occasions, the noise had been a lot louder when traversing the floor with shoes on. Mr Smith stated that the noise was negatively affecting the ambience of their tenure and he enquired as to what the management system was doing to achieve a remedy. The next complaint is dated as having been received by Ms Johns on 7 July 2014. Its contents reflect that it was written on Sunday morning, 6 July 2014, and that Mr Smith complained that he and his wife had been putting up with foot traffic from above for over three hours. A degree of exasperation is shown by his statement that 'God knows what they are up to in that apartment - marching practice?' The email notes that Mr Smith understood that the legal process was on hold until Mrs Topic returned from Croatia. Mrs Topic's witness statement reflects that from June to September 2014, her daughter lived in the apartment.

69 The next complaint is dated as having been received on 18 August 2014. In that email, Mr Smith states that the noise levels prior to the timber floor being installed above were, by and large, tolerable, but are no longer so, now that the carpeted areas have been substituted for a hard timber floor with an inadequate insulating barrier. He advised that he and Mr Skinner were contemplating what formal action to take. This complaint reflects that there was a level of noise transmission when the carpeting was in place which was a source of annoyance to Mr and Mrs Smith.

70 Mr Skinner provided a joint witness statement signed by both himself and his wife. As Mrs Skinner was not able to attend the hearing for medical reasons, the statement was treated as being the statement of Mr Skinner alone. Mr Skinner had been provided with copies of the emails from Mr Smith and fully agreed with their content. He went on to state that in recent times, the noise issue had been noticeably less because Mr and Mrs Topic for intermittent periods have not been there and also, when they have been there, it appeared there had been a conscious effort to tread carefully. Mr Skinner stated that irrespective of any undertaking by Mr and Mrs Topic to mitigate sound transfer between their timber floor and his and Mr Smith's apartments, the problem would persist should they sell their apartment and new owners take over.

71 Mr Smith, who is a former chairman of the strata company, also gave oral evidence at the hearing. He was a measured witness, very careful to be accurate in his answers, and was entirely fair in the way in which he did so. He had ceased to keep any diary of incidents which had occurred because the problems experienced seemed to have abated to a substantial degree, which he attributed to the litigation before the Tribunal. He had difficulty giving particulars of any recent difficulties. When pressed about what noises were being transmitted that were disturbing, he readily conceded that it was not the sound of pulling out a chair under a table in itself. He stated that 'what's tolerable is not the odd noise but consistency of it' (T:71; 17.11.15). He gave no details of what type of noise that might be. When asked whether Mrs Topic paced around a lot, he responded 'not any more' (T:71; 17.11.15). He went on to state that Mrs Topic had stopped pacing around a lot when these hearings started. He said that was approximately one year ago.

72 Mrs Topic's witness statement reflects that she always walks about in bare feet in the apartment and asks visitors to remove their shoes. Further, she stated that her furniture has rubber stoppers under the table and chairs and that she is willing to comply with any reasonable request to reduce sound.

73 What is evident is that, with the care being exercised by Mrs Topic, the present levels of sound transmission are not causing a disturbance affecting the peaceful enjoyment of the proprietors living below Lot 25.

74 The evidence, such that it is, is not of the standard required to enable the Tribunal to find that the nature of the timber floor installation is not sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of other proprietors. In this regard, see the type of evidence required by the Tribunal in Arasi & Anor and The Owners of Beverley Court [2005] WASAT 197 (Arasi) at [37].

75 The allegation of the strata company that Mrs Topic is in breach of Sch 2 By-law 17.1 is therefore not proven.

76 Mrs Topic is in breach of Sch 2 By-law 17.2 as she admits is the case.

77 Mrs Topic is clearly not in breach of Sch 2 By-law 17.3, which requires compliance with the Australian Standards for acoustic and sound-proofing requirements for high rise buildings. The joint expert statement of Mr Watts and Dr Zoontjens, and Dr Zoontjens' initial report, reflect that the flooring easily meets the noise impact testing of requisite standards of the National Construction Code (incorporating the Building Code of Australia) and AAAC Guidelines as measured in accordance with the applicable Australian Standard, as discussed above.

78 We turn to consider the other by-laws which it is alleged have been breached by Mrs Topic.

79 Schedule 1 By-laws 1(2)(a) and 1(2)(b) provide as follows:

The proprietor, occupier or other resident of a lot shall -

(a) use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other proprietors, occupiers or residents, or of their visitors;

(b) not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier.

80 In our view, Mrs Topic is not in breach of Sch 1 By-law 1(2)(a), which is intended to apply so as to control behaviour in areas of common property which all proprietors are entitled to use, or to common property in relation to which an owner has been given exclusive use privileges. The material of the common property structure, the upper surface of which forms the boundary of the lot, can hardly be said to be used in a manner which interferes with the use and enjoyment of common property by other proprietors and is incapable of use by other proprietors. There may be criticism of the effectiveness of the acoustic mat which forms part of the common property in the tiled kitchen area and possibly of the manner in which the timber flooring has been installed as it is not a 'floating floor', but that has nothing to do with the manner in which use is made of the common property itself. We do not consider that this by-law has any application to the noise transmission complaints.

81 We also do not consider that a breach of Sch 1 By-law 1(2)(b) is established.

82 Mr Smith's initial complaint was in respect of conduct on 24 April 2014 which simply related to what he thought was barefoot walking about the apartment. This could not be regarded as undue noise, even though it may have been a cause of annoyance. The next complaint related to an incident on 25 May 2015 which Mr Smith described an unreasonable noise from above which he distinguished from the previous dampened foot traffic noise of people walking without shoes. Mrs Topic's evidence is that from June through to September 2014, her daughter was in occupation of the apartment. The conduct complained of is inconsistent with the manner in which Mrs Topic testified she walked about the apartment in bare feet and her insistence that visitors did likewise. Mrs Topic's evidence concerning detail has been the subject of some criticism by us. But, on this occasion, it is to her benefit, because we are not satisfied that this incident necessarily related to Mrs Topic. There was no exploration of the incident during the hearing before us. No particulars of the complaint have been furnished and we are not prepared to simply accept Mr Smith's characterisation of it as being an unreasonable noise, nor are we prepared to find that it was necessarily caused by Mrs Topic. We expect that evidence to establish breach should be more exact than the evidence relating to this incident.

83 All of Mr Smith's subsequent complaints relate to periods when Mrs Topic's unchallenged evidence is that her daughter was in occupation of the apartment and there is nothing to suggest Mrs Topic permitted the conduct of which complaint is made.

84 Schedule 2 By-laws 5(a) and 5(c) provide as follows:

(a) The Strata Company shall at all times be responsible for the maintenance, repair and replacement of all buildings, structures, utilities, services, landscaping, recreational facilities, fixtures and fittings, plant and equipment, chattels and other improvements located within the Common Property on the Parcel.

(c) The Strata Company shall at all times be responsible for the maintenance, repair and replacement of buildings or parts of buildings that are Common Property.

85 Schedule 2 By-laws 5(a) and 5(c) reflect the strata company's statutory obligation under s 35 to carry out the maintenance, repair and replacement of common property. By virtue of s 42(6), the by-laws bind the strata company and the proprietors, any mortgagee in possession, occupier or other resident of the lot, to the same extent as if the by-laws had been signed and sealed by the strata company and each of such persons, and as if they contained mutual covenants to observe and perform all the provisions of the by-laws.

86 Section 85 empowers the Tribunal, on an application by a proprietor, to make an order that the strata company consent to a proposal by the proprietor to effect alterations to the common property.

87 Although it is therefore not expressly stated in the Act, it is implicit that a proprietor does not have the right to carry out alterations to common property without the consent of the strata company.

88 In this context, we consider that a by-law which imposes an obligation on the strata company to repair and replace parts constituting common property necessarily implies that a proprietor cannot do so without the consent of the strata company.

89 Mrs Topic admits that the tiling, which we have found to be common property, was removed by her and installed prior to her obtaining any consent from the strata company. We consider she is therefore in breach of By-laws 5(a) and 5(c). The removal of the carpet, on our finding that it constituted part of the lot, is not a breach of By-laws 5(a) and 5(c).

A Proprietor and Proprietors' Invitees shall not:

(n) alter the structure of the Lot or gas, electrical, water or sewerage installation except as may be permitted or provided under the act and bylaws and in any event shall not alter the structure of the lot, or gas, electrical, water or sewerage installation without giving to the strata company not less than fourteen days written notice describing the proposed alteration before commencement of the alteration.

91 We do not consider that the application of 30 January 2014 constituted the giving of any notice of an intention to carry out an alteration to the structure. It was an application for consent for the installation of timber flooring to replace carpeting in the context of the provisions of By-law 17, which prescribed that timber flooring could not be installed without prior consent.

92 Schedule 2 By-law 8(n) operates in respect of alterations to the structure of the lot itself and to the particular named installations.

93 The installation of the timber flooring potentially constitutes an alteration to the structure of the lot if the surface of the new flooring is higher than the original tiling in the kitchen. There is no evidence that such is the case. Although in Mrs Topic's replying statement of issues, facts and contentions in matter CC 1008/2015 she asserts that the 'New Slab Cover' is approximately 4 millimetres higher than the 'Original Slab Cover', no evidence was adduced to prove the assertion. The term 'Original Slab Cover' was used by the strata company in its statement of issues, facts and contentions as a term to refer to the carpet and tiles in place between the date of registration of the strata plan and January 2014. The strata company used the term 'New Slab Cover' to refer to the timber flooring installed by Mrs Topic. It is therefore, in any event, not clear whether the assertion refers to the height of the original carpet or the height of the original tiling.

94 On the other hand, for the reasons given above, the installation of timber flooring is an alteration of a permanent nature. It is part of the structure of the building and is, in itself, a structure. In the areas which were previously carpeted all of the timber flooring is within the lot and constitutes an alteration to the lot.

95 We accordingly find that Mrs Topic is in breach of Sch 2 By-law 8(n) in the above respect.

1. IMPROVEMENTS TO BALCONIES AND EXTERNAL WALLS

11.1 A proprietor, occupier or other resident of a lot shall not install or affix any structure, improvement or object to a balcony or an external wall or surface of a building unless the Strata Company or a nominee of the Strata Company has approved of it in writing.

97 We do not consider that Mrs Topic is in breach of Sch 2 By-law 11.1. The reference in the by-law to affixing any structure, improvement or object to a balcony or an external wall or surface of a building must be read as referring to an external surface of the building. Standard Sch 1 By-law 2 permits the decoration and affixing of locking devices, flyscreens, furnishings, furniture, carpets and other similar things to the surface boundaries of the lot itself.

(a) Make undue noise in or about any Lot or Common Property;

(b) Use its Lot or any plant or machinery on its Lot so as to unreasonably constitute a nuisance or disturbance to the other Proprietors or Proprietors' Invitees due to noise, vibration, odours or otherwise.

99 For the reasons given above in relation to Sch 1 By-laws 1(2)(a) and 1(2)(b), we do not consider that it is established that Mrs Topic is in breach of this by-law.

The facilities, amenities, services and Common Property included in the original construction plans and building specifications approved by the Local Government Authority will not be changed or altered in any manner and the Strata Company will ensure that all such facilities, amenities, services and Common Property are properly maintained and where necessary replaced should their proper function be beyond repair.

The effect of this by-law is to provide that facilities, amenities, services and common property included in the original construction plans and building specifications will not be changed or altered, but will be properly maintained and where necessary, replaced by the strata company. For the same reasons as given above in relation to By-laws 5(a) and 5(c), we find that the by-laws necessarily imply that a proprietor cannot alter the common property without the consent of the strata company. Mrs Topic altered the common property by removing the tiling in the kitchen. It therefore follows that she is in breach of Sch 2 By-law 21.

1. Damage to Common Property and payment of a security bond

22.1 If a proprietor or a Proprietor's Invitee causes any damage to any part of the Common Property, then the Proprietor shall be solely responsible for the costs of making good such damage.

102 We do not consider that Mrs Topic is in breach of this by-law. The obligation imposed under the by-law is to bear the costs of making good damage to common property caused by the proprietor or his or her invitee. It is the responsibility of the strata company under By-law 5 to repair the common property and By-law 22 gives the strata company the right to recover that cost. That situation has not arisen.

38.1 A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by-laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than fourteen days before commencement of the alteration, a written notice describing the proposed alteration;

38.2 The Council of Owners may establish policies and/or guidelines in relation to applications from Proprietors for the approval by the Strata Company for additions or alterations within their Lot.

104 We do not find that Mrs Topic is in breach of By­law 38.1. The installation of the carpeting did not constitute an alteration to the structure of the lot and is a permitted act under Sch 1 By-law 2. The installation of the timber flooring potentially constitutes an alteration to the structure of the lot if the surface of the new flooring is higher than the original tiling, but, as we have found above, there is no evidence establishing that this is so.

105 Where we have found that Mrs Topic is in breach of the by-laws, the effect of those findings will be considered when determining the appropriate remedies to be granted, if any.

By removal of the carpeting or tiles, has Mrs Topic destroyed the lower horizontal boundary of Lot 25 and thereby destroyed Lot 25?

106 Counsel for the strata company informed the Tribunal that this issue was raised with little enthusiasm, but that in the light of the decision in Tipene v The Owners of Strata Plan 9485 [2015] WASC 30 (Tipene), he was duty bound to raise the issue.

107 In Tipene, the parcel incorporated nine townhouses within two separate buildings. The proprietors of the lots within one of the buildings proposed to demolish the entire building and construct new townhouses. The strata company refused consent and application was made to the Tribunal under s 103F. The Tribunal dismissed the application, holding that it did not have jurisdiction to authorise demolition. The Tribunal went on to observe that the District Court would have jurisdiction in circumstances where the building shown on the registered plan is damaged or destroyed under s 28. The Tribunal's decision was appealed on the ground that it was asserted that the presiding senior member had erred in law when construing s 7 and s 103F. Justice Corboy dismissed the appeal holding that regardless of how s 103F is read with s 7(2)(a) or s 7(2)(b), the demolition of a building that forms the boundaries or parts of the boundaries of a lot, which his Honour referred to as a 'Boundary Building', will obliterate the cubic space that constitutes a lot, and the lot will be destroyed with the building so that there is nothing in respect of which title can subsist. Consequently, his Honour held that there is nothing that could be the subject of the approval processes provided for by s 7B and s 103F. As his Honour stated:

It is not just that there would be a vacant lot following demolition, as the respondents feared; rather, the lot as depicted by the strata plan and which is the subject of the strata scheme, with its boundaries defined by the structures of the buildings that have been demolished, would no longer exist.

108 Mrs Topic removed all of the carpeting and the tiling from the kitchen. The effect of this was to leave unaffected only the original tiling in the ensuite bathroom, a second bathroom, the laundry and a separate toilet.

109 The principles discussed in Tipene apply clearly in the context of a destruction of a 'Boundary Building'. It was not necessary to determine in Tipene, and consideration was not given to, whether the replacement of some of the material of the structure, the surface of which forms part of one of the boundaries of the lot, would be regarded as the destruction of a 'Boundary Building' in the sense in which that term was used. The Court, in Tipene, did consider the effect of incremental alterations resulting in demolition of an entire structure at [96] - [104] and concluded that if the result is a change in a boundary, that would require a new strata plan to be registered because the change would amount to a re-subdivision within the strata scheme. Given that the Court had earlier found that the appeal had to be dismissed because demolition of the whole building would destroy the lots comprised in the building, and that there was no lot in existence which could be the subject of an application for approval to make an alteration to it, the statement above relating to incremental alterations is obiter and not binding, although great weight must be given to the views expressed: see Match Projects. The Court had not been referred to the New South Wales Court of Appeal decision in Seiwa.

110 In Seiwa, the Court of Appeal stated, at [39]:

However, if at the date of registration a tile or timber floor has been laid over and affixed to the concrete slab, then the boundary will be the upper surface of the tiles or timber flooring. If that upper layer of flooring is later removed and replaced by tiles or timber flooring the upper surface of which is higher than the surface as at the date of the registration of the strata plan, it is the level of the original surface which remains the lower horizontal boundary, not the level of the new surface, the boundary remains fixed; it is not ambulatory.

The same principle applies to the determination of the upper horizontal boundary being the ceiling to the relevant cubic space as well as to a vertical boundary of that space being a wall.

111 We have found above that the carpet, which was removed, was part of the lot. Accordingly, the only work which has affected the lower horizontal boundary is that involved in removing and replacing the kitchen floor tiles. We are not dealing with the replacement of a whole floor, but only a section of flooring which is within the kitchen. It is therefore not necessary to examine the effect of a complete destruction of the lower horizontal boundary.

112 It is evident from decisions such as Symes (at [52]) and Seiwa (at [18]) that evidence will usually be required of the state of the building as at the date of registration to determine the location of the boundaries of a lot. There is therefore no reason in principle why evidence could not be used to establish the true location of a boundary after alterations have taken place. As will appear below, it is evident that the original horizontal boundary of the floor of the affected areas of Lot 25 could be determined without undue difficulty. We expect this would be possible in most cases. Building materials and finishes are rarely precisely uniform. Walls are not necessarily precisely perpendicular nor are concrete floor slabs perfectly even and deviations are permitted in most structures within permitted tolerances as guided by either the Australian Standards or accepted industry practices. Consequently, the boundaries set by the surface of walls, floors or ceilings do not have the precision of boundaries set by fixed survey co-ordinates. It should therefore follow that evidence identifying the location of the boundary in a particular area need not be unduly precise.

113 Both the 30 January 2014 and 30 July 2014 applications for approval of the flooring installation included floor plans of Mrs Topic's lot. The kitchen as shown has a floor area of approximately the same size as the laundry. It is a relatively small area of tiling between counter areas on both of the longer sides of the kitchen. The schedule of finishes for Mrs Topic's apartment, which was provided by the builder, appears at page 207 of the bundle of documents (Exhibit L). It reflects that the same tiles were installed in both the laundry and the kitchen, being ceramic tiles named Bianco Natural Matt and having dimensions in length and width of 600 by 300 millimetres. If it were necessary to do so, the grouting could be removed around one of the tiles in the laundry and the thickness of the tile determined, which could then be compared with the new tiles installed in the kitchen. This would establish the location of the lower horizontal boundary of the lot in the kitchen with sufficient precision. A measurement of the respective heights of the ceilings in these rooms (assuming they have not been constructed at different levels) would also establish the lower horizontal boundary in the kitchen.

114 We accordingly find that the removal of the original carpeting and the tiling in the kitchen did not constitute a destruction of the lower horizontal boundary of the lot and therefore did not destroy the lot.

115 Mrs Topic seeks an order under s 83(1) that in settlement of the dispute between the parties, the Tribunal make an order setting aside the decision of the strata company reflected in the letter dated 14 August 2014 and ordering that the application dated 30 July 2014 be approved.

116 During the course of several directions hearings that were held in the matter, it became apparent that consideration needed to be given to whether the application had been brought under the correct section of the ST Act, given that the controversy between the parties raised issues about whether or not there had been an alteration to either the common property or the lot. The Tribunal made a specific order on 27 May 2015 that by the date of the next directions hearing, the applicant was to have decided under which section of the ST Act the application should proceed. On that date, the directions hearing was adjourned to 10 June 2015 and that hearing was later further adjourned to 1 July 2015.

117 Notwithstanding the strata company commencing the proceedings in matter CC 1001/2015 specifically raising issues of whether the alterations were made to common property or to the lot, Mrs Topic has elected to maintain her position that s 83 will empower the Tribunal to make the orders sought by her.

118 Part VI deals with the resolution of disputes. Division 3 of Pt VI sets out orders which may be made by the Tribunal.

119 Section 83 sets out the general powers of the Tribunal to make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by the ST Act or the by-laws in connection with the particular scheme. However, s 83(6) specifically provides that an order in respect of any matter referred to in any other section of the Part shall not be made under s 83. Thereafter, s 85 expressly empowers the Tribunal to make an order that the strata company consent to a proposal to effect alterations to common property where the proposal has been unreasonably refused by the strata company.

120 Sections 103F and 103G apply to circumstances in which a proprietor of a lot is required to apply to a strata company, or to the other proprietor in a two lot scheme, for approval to erect any structure, or carry out any alteration of a structural kind to, or the extension of, a structure, on his or her lot. In particular, where such an application has been made but approval has not been obtained, a proprietor may apply under s 103F for an order declaring that the approval required is deemed to have been given.

121 It is therefore evident that an order cannot be made under the Tribunal's general dispute resolution powers bestowed under s 83(1), in respect of any matter referred to in s 85 or s 103F.

122 It is submitted for Mrs Topic that s 83 has been applied in similar circumstances and reference is made to Zadnik and Bizzaca [2005] WASAT 333 (Zadnik); Arasi; and Reader v Zena Glava Pty Ltd [2003] WADC 216 (Reader).

123 These cases are, however, all distinguishable. In none of them were issues raised about whether orders could have been made under s 85 or s 103F. Arasi was a matter in which a proprietor sought an order requiring the strata company to enforce the by-laws relating to flooring. In Zadnik and Reader, the proprietor sought an order directly against another proprietor attempting to enforce the by-law relating to floor covering. In none of the cases were orders sought that a decision of the strata company refusing approval to install flooring be set aside and that the application for approval be granted.

124 As we understand Mrs Topic's contentions, it was not necessary to make an application as referred to in s 7 because the installation of the tiling did not constitute the erection of a structure, or any alteration of a structural kind to, or extension of, a structure. Further, it was submitted in the written closing submissions made on behalf of Mrs Topic that arguments about the application of s 7 were not open because Sch 2 By-law 17.2 provides the procedure for approval of a timber floor. The first issue is therefore whether the installation of the timber flooring in place of the carpeting and the tiling in the kitchen constituted the carrying out of works as contemplated under s 7.

125 We have held above that if tiling is installed prior to the registration of the strata plan, the tiles constitute common property, because they are a part of the whole constructed building and were to be distinguished from the decoration and additions referred to in Sch 1 By­law 2: see also Seiwa at [39] where the same view was expressed in relation to timber flooring and tiling. The installation of timber flooring is work which constitutes an alteration of a structural kind to the original structure of the building. Timber is cut to fit the dimensions of the particular room and will generally be installed with the intention that it be a permanent fixture. In this case, Mr Clements gave specific evidence that the acoustic mat was glued to the floor and that the flooring was then glued to the mat. The timber flooring installed in all areas which were previously carpeted clearly encroach into the lot and constitute an alteration to the lot.

126 Consequently, we consider that Mrs Topic was obliged to make an application to the strata company for approval. Such an installation is a significant undertaking and is the very type of work which should be specified in the manner contemplated under s 7 read with s 7B. The grounds for objection to such an application are limited but include any prescribed ground which, under reg 31 of the Strata Titles General Regulations 1996 (WA) (Regulations), includes that the proposal will contravene a specified by-law or by-laws of the strata company. This brings into play by-laws governing the use of common property so as not to interfere with the reasonable use of other proprietors. An example of this would be the use of the lift to supply materials. By coincidence, the evidence establishes that a lift used by Mr Clements became stuck because it was overloaded with materials for the job, which well demonstrates the utility of such approval being required.

127 We do not accept the submission that s 7 and s 7B can be replaced by any particular by-law, in this case Sch 1 By­law 17.2. A by-law which is not consistent with the ST Act is invalid: see s 42(1) read with s 93(3). Accordingly, By-law 17.2 must be read so as to operate in a manner consistent with s 7 and s 7B. The strata company may have to give consideration to whether the application form used by it for the approval of timber flooring, and the consideration of such an application is satisfactory, having regard to this finding.

128 We therefore find that the application for the installation of the flooring should have been the subject of an application under s 7 read with s 7B. As the order sought by Mrs Topic that the decision of the strata company be set aside and that the application for approval dated 30 July 2014 be approved is effectively a matter which could be the subject of an order under s 103F, we do not consider that it is open to grant relief under s 83, as sought by Mrs Topic. Under s 103F, a proprietor of a lot who has applied for but not obtained an approval under s 7B may apply to the Tribunal for an order under this section. The approval sought under s 7B is an approval which, when read with s 7, must be obtained prior to carrying out the alteration concerned. Mrs Topic would therefore be unable to succeed with an application under s 103F but this does not alter our conclusion that s 83 cannot be used as a source of power for the relief sought. The matter referred to in s 103F is the same matter, in substance, as that relied on by Mrs Topic for seeking an order under s 83.

129 The order sought by the strata company for the removal of the timber flooring has been expressed to be sought under s 83(1) but alternatively under s 103G. For the reasons given immediately above, any relief which might be granted may only be granted under s 103G.

130 Section 103G applies where there is a finding that the proprietor of a lot in the scheme has committed a breach of s 7(2). In support of its submission that orders should be granted as sought by the strata company, reliance is placed on the need for consistent governance of the strata company. The strata company has referred to the decision of Hamilton v Thompson [1999] 23 SR (WA) 41 (Hamilton) in support of the order sought. In Hamilton, there had been a flagrant and deliberate breach of the strata company's by-laws requiring prior approval before carrying out alterations. The strata scheme was a large one which was well regulated. The same can be said of the strata company in this case. Both Mr Menhennett and Ms Johns gave evidence of the importance of good governance, the need to ensure that proprietors complied with the by-laws and the procedures in place for considering applications under Sch 2 By-law 17.

131 Mrs Topic proceeded with the works knowing she needed prior consent from the strata company and deliberately proceeded without that consent. Her lack of attention to accuracy in making the initial application was deplorable. We find she advised Mr Clements that approval had been obtained when she knew it had not. She did so in breach of Sch 2 By-laws 5(a), 5(c), 8(n), 17.2 and 21.

132 We accept that there is a risk that if proprietors consider that they can achieve their end by going ahead with work, as Mrs Topic did, without first obtaining the strata company's consent, it can lead to this course being followed by others. In a well-managed, large scheme, which is the case in this instance, compliance with the by-laws is important. The Tribunal has followed Hamilton on many occasions in the past: see, by way of example, The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1. In Hamilton, notwithstanding that the alterations were essential for the health of the offending proprietor, the court ordered the removal of the works under s 103G.

133 There are counter-weighing factors in this matter.

134 We do not consider that Mrs Topic had any idea that she might be breaching Sch 2 By-laws 5(a), 5(c), 8(n) and 21.

135 Mrs Topic would have had no appreciation that she may have been altering common property contrary to Sch 2 By-laws 5(a), 5(c) and 21. Whether she had done so or not was open to considerable doubt and became a significant issue for determination in these proceedings. After the need to obtain strata company approval was discussed with Ms Johns, an application form for consent was given to Mrs Topic and there was no suggestion any other action was required even though, according to Mrs Johns' evidence, which we accept, Mrs Topic mentioned then that she was replacing the tiling in the kitchen.

136 Similarly, Mrs Topic was not informed by Ms Johns that she would be required to give 14 days notice prior to commencing the works once approval to carry out the works had been granted by the strata company.

137 The real culpability for Mrs Topic's conduct lies in the breach of Sch 2 By­law 17(2). We do not accept Mrs Topic's evidence that she was advised by Ms Johns well prior to handing over the completed application for approval on 30 January 2014 that there would be no difficulty in getting approval, but we consider that Mrs Topic probably held a belief that approval would be forthcoming.

138 While Mrs Topic was an unreliable witness, it was because her recollection was genuinely poor, which she readily admitted. It is improbable that she would have applied for approval if she did not consider it likely approval would be granted, particularly when it is clear that she needed assurance from Mr Clements, which she obtained, that the flooring would perform well, as she was conscious of the risk of noise transmission complaints.

139 According to the Herring Storer acoustics report prepared by Mr Watts, the Building Code of Australia requires a weighted standardised impact sound pressure level with a spectrum adaption term of not more than 62 dB. While that is a construction standard, as has been recognised in many decisions of the Tribunal, the ST Act has a very different and arguably higher test in mind, namely, the peaceful enjoyment of a unit. It is therefore quite possible that the building standard is complied with, but that the requirements under the ST Act are not. Under the ST Act, the standard Sch 2 By­law 10 applies, which is in terms much to the same effect as the Sch 2 By­law 17.1 applying to this particular strata scheme: see The Owners of Mill Point Strata Plan 11391 and Fownes [2006] WASAT 30.

140 Further, according to the Herring Storer acoustics report, the Australian Acoustics Society (AAS) and the AAAC recommend a more demanding impact test result of 55 dB. The testing carried out by Mr Watts resulted in measurements of 47 dB in Apartment E406 and 48 dB in the combined compartments E404 and E405. Testing carried out by the strata company's expert, Dr Zoontjens, resulted in measurements of between 47 dB and 51 dB. The results therefore were compliant with the more exacting standard set by the AAS and the AAAC. As we have found above, the evidence of Mr Smith and Mr Skinner is insufficient to show that the actual performance of the floor is likely to disturb the peaceful enjoyment of other proprietors, having regard to the standards set by the Tribunal in previous decisions such as in Arasi.

141 On our findings above, it is not possible for Mrs Topic to comply with the approval processes required under s 7, s 7B and Sch 17(2) because she proceeded to install the flooring prior to obtaining consent.

1. make a finding under this section if satisfied that a breach of s 7(2) has occurred; and
2. make an order under this section unless satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors.

143 On the evidence before us, we find there has been a breach of s 7(2), but the flooring has not caused any significant inconvenience or detriment to other proprietors, and there is no reason to believe that it will do so. The expert acoustic evidence reflects that the performance of the floor exceeds the standards to which the acoustic experts referred, and the evidence of Mr Smith and Mr Skinner did not establish noise transmission to a level likely to disturb peaceful enjoyment. For reasons further discussed below, we are confident that Mrs Topic will continue to exercise care in the manner in which she uses the apartment. We accordingly find that the work done will not cause any such inconvenience or detriment. We therefore have a discretion as to whether or not to make an order for the removal of the work: see Hamilton.

144 Mrs Topic's evidence is that it cost her $19,500 to install the timber flooring. This expense would be completely wasted and additional costs incurred if removal of the timber flooring were to be ordered. Such an order would do little to help future relations between the parties. Mrs Topic is more likely than not to then apply for permission to install another timber floor, and may well not show the consideration she is currently showing in the use of the apartment.

145 At the same time, we consider the strata company's good governance concerns can be adequately addressed by the course we have decided to take, as set out below.

146 We have concluded that the best course is to dismiss both the application by Mrs Topic and the application by the strata company. The dismissal of Mrs Topic's application will be expressed in terms showing that the Tribunal has refused to give consent to the installation of the flooring, and will require that a copy of the order be lodged with the Western Australian Land Information Authority so that the Registrar of Titles records the order on the registered strata plan.

147 This course should ensure that Mrs Topic continues to exercise care in the use of the apartment because, if she does not do so, it will be open to the strata company, or Mr and Mrs Smith, or Mr and Mrs Skinner, to apply at any time for an order that the flooring be removed because it does not comply with Sch 2 By-law 17.1, based on the evidence then available. The effect of registering the order on the strata plan is that any purchaser will have notice that the timber flooring has been installed without consent and will therefore take on the risk that if there is sound transmission likely to disturb the peaceful enjoyment of other proprietors, an order may issue for the removal of the flooring.

148 At the same time, there will be nothing to prevent Mrs Topic, or a subsequent purchaser, from applying to the strata company for formal approval so as to remove what might otherwise be seen as an impediment to any dealing with the property. If there has by then been a sufficient history to demonstrate that the flooring can be safely regarded as properly performing, the strata company may be prepared to grant approval. On our findings, any such consideration of the matter will not be subject to review by this Tribunal.

149 Should this outcome prove unsatisfactory to Mrs Topic for whatever reason, there would also be nothing to prevent her from making application to the strata company for approval to remove the existing flooring and to substitute it with a system which is capable of better performance and which is likely to be acceptable to the strata company. The evidence of Mr Clements establishes that the floor installation is not what is known as a 'floating floor'. Dr Zoontjens' evidence is that an improved acoustic mat could be used and that a floor installed as a 'floating' floor would result in better performance. If Mrs Topic follows this course it will be because she has chosen to do so, rather than having been forced to do so, and that is also more likely to result in better relations between the parties.

150 For the above reasons, the Tribunal will cause an order to issue in these proceedings as follows and will issue an order in matter CC 1001/2015 as foreshadowed above.

1. The applicant's application for orders that:
   1. the decision of the strata company dated 14 August 2014 to reject the application of the applicant dated 30 July 2014 requiring her to remove the existing floorboards at Unit E502, Raffles Waterfront, be set aside; and
   2. the application of the applicant to the strata company dated 30 July 2014 be approved

1. Pursuant to s 115(1)(d) of the Strata Titles Act 1985 (WA), the applicant must within 14 days of this order lodge a copy of the order certified by the Executive Officer of the Tribunal as a true copy in the Office of the Western Australian Land Information Authority together with the prescribed fee, so as to enable the Registrar of Titles to record this order on registered strata plan 48545.
2. This order is not to cease to have any force or effect upon the expiration of the period of two years that next succeeds the making of the order.

I certify that this and the preceding [150] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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