By Jason O’Meara, Senior Associate
If you own property in a strata scheme and you want to make changes to it, it is important to know your rights and obligations regarding structural alterations. The Strata Titles Act 1985 (Act) sets out detailed rules about structural alterations to strata properties, and if you don’t follow them, it could cost you a lot of time, stress, and money.
Owners of lots in strata schemes must not cause or permit the structural alteration of their lot, unless it is approved by a resolution without dissent of the strata company, or there is written approval for the alteration from each lot owner within the strata scheme.
The Act sets out the method of obtaining approval for a structural alteration which must be strictly complied with by owners. If you get it wrong, you may have to remove your alterations or the strata company may remove the alterations itself.
What is a Structural Lot Alteration?
Not all alterations within a strata title lot are structural alterations. The Act defines a ‘structural alteration of a lot’ to mean:
- the erection of a structure within the lot; or
- an alteration of a structural kind to, or extension of, a structure within the lot.
The term ‘structure’ includes such things as a dwelling, shop, factory, commercial premises, garage, carport, shed or other building or improvement (whether free standing or annexed to or incorporated with any existing building on the lot):
- the construction or erection of which is required to be approved by the local government or any other authority; or
- the area of which is to be considered for the purposes of determining the plot ratio restrictions or open space requirements for the lot.
If your alteration does not involve a structure then you may not need the approval of the strata company.
You should get legal advice to determine whether an alteration could be considered a structural alteration. You should also check your Scheme By-laws to ensure they do not restrict the alteration you want to make.
Preparing an Application for a Structural Alteration to a Lot
When you apply to the strata company to make a structural alteration, make sure that all necessary information is included in the application.
Depending on the type of structural alteration being proposed, applications for structural lot alterations must set out the details of the proposal and other prescribed information.
It is important to consult any contractors, surveyors or other service providers involved prior to making an application, to ensure that all the required information is provided to the strata company. Regardless of when you submit your application, a strata company may say that it has not been properly made until all the required information has been received. This becomes important when calculating timeframes during the application process.
Serving the Application
Once your application is ready, the application should be addressed to the strata company and served by either personally handing it to a member of the council, sending it to the strata company’s address for service or leaving it in the letterbox provided by the strata company. Ask your strata manager or a council member if there is any doubt of the correct service address.
Voting on the Application
Within 35 days of receipt of your application, the strata company must provide all owners within the strata scheme the opportunity to either vote in favour or against your application. Ultimately, the strata company is responsible for ensuring that the vote opens within the prescribed timeframe and conducted properly. If a vote is not opened within the timeframe get legal advice.
Your strata company may choose one of two pathways for conducting the vote on your application. It may either conduct the vote inside a general meeting or outside of a general meeting. If a general meeting is called, the vote will be conducted by a show of hands at the meeting and left open for late votes for 28 days for absentee votes.
Alternatively, the vote can be conducted outside of a general meeting by email or post. Proper notice must be given and voting must still be opened for at least 28 days. Speak with your strata manager or council about your preferred voting method. Either way, it is unlikely that your neighbours will be lining up on a Saturday with a ballot paper and collecting a democracy sausage.
The outcome of the vote of the owners will dictate whether your application is approved or rejected by the strata company. Either way, the strata company must provide you written notice of the outcome of the vote within 77 days of you submitting your application. Subject to your application being submitted properly, your application is automatically deemed approved if the strata company fails to provide written notice of the vote outcome within 77 days.
What if your Application is Voted Against?
Despite many owners believing that they should be entitled to vote against any structural alteration application placed in front of them, an owner may only vote against your application on the basis that the proposed alteration:
- will result in a structure being visible from outside your lot and that the structure is not in keeping with the rest of the development;
- may affect the structural soundness of a building;
- may interfere with a statutory easement;
- will contravene a by‑law of the strata company; or
- may interfere with a registered easement or restrictive covenant affecting the parcel.
If another lot owner votes against your application but the vote is not properly based on at least one of the above grounds, the vote will likely be invalid. If this happens, the strata company should still consent to your application.
Legal advice should be sought if a refusal is received from the strata company.
If things go well, you should receive written consent to your application from your strata company within 77 days of you submitting your application.
Exemption from Approval
Another way to get your structural alteration through is to apply to the State Administrative Tribunal (SAT) for an order exempting an alteration from the above requirements for approval. You can apply to SAT even if approval has been validly refused by owners or by the strata company, but you can also apply directly to SAT without first applying to the strata company.
The Tribunal will look at the reasonableness of the application, having regards to its merits and the interest of all lot owners in the use and enjoyment of their lot. An application to SAT is useful where other lot owners have refused an application unreasonably or vexatiously.
McWilliams Davis Lawyers can assist lot owners and strata companies in applications for structural alterations to a lot, as well as exemption applications in the SAT. If you have any queries in relation to structural alterations within a strata scheme or wish to discuss any other property or strata matter, call us on (08) 9422 8999.
Disclaimer: This document contains a summary of relevant information or an opinion which is current at the date of publication. This document is not intended to constitute legal advice and does not take into account individual facts and circumstances. The reader must not rely on this document as advice.