WA: Air Conditioner Installation Refused: Timeframes and Your Rights Under WA Strata Law

Question: Our request for permission to install an air conditioner has been refused due to concerns about the overload on our MDF. Although the Council is looking into this, it’s been 3 months. How do we get this moving along?

We are the property managers for a unit in a WA strata scheme. The landlord would like to install a split system air conditioner in their lot. We’ve requested via the strata manager, approval from the Council of Owners for the installation of the air conditioner as the compressor has to be fitted on the outside wall of the unit.

The Council of Owners has refused approval because they think the main electrical distribution board may not cope with the extra load. There are other air con units installed by other owners and surely it is up to the Council of Owners to upgrade the MDF. Our request was submitted over 3 months ago and we are still waiting on a reply.

Recently, I emailed the strata manager giving her 7 days’ notice to reply with an update or we will take the issue to SAT. Her response was that the MDF hasn’t been assessed but the matter will be bought up at the next AGM. My landlords want a response now. Before we know it summer will be here and they risk losing our tenants due to the extreme heat, especially in the main bedroom.

Do we have a case if we go to SAT? Surely residents are entitled to have air conditioning in a unit, especially as other unit owners have been allowed to install air conditioning in theirs. What are reasonable timeframes for a request like this?

Answer: When a Strata Company receives an application for alteration, voting on the application must open within 35 days of the application being received.

This is a difficult question to answer as there are so many variables to be considered such as – is the external unit on common property or external part lot.

The concern that the electrical infrastructure may not be sufficient enough to support the addition is something faced by many schemes at this time, in particular surrounding the installation of EV charges. My advice would be to work with the strata company on this. I would encourage your strata company to devise a plan to facilitate an upgrade to the infrastructure so that there is a clear and reasonable plan and timeframe for this to occur. Such a plan should take into account estimated future electrical demand as well.

Given a recent State Administrative Tribunal Decision where the attachment of lattice was considered a structural alteration I suggest the air-conditioning installation is, in any case, a structural alteration. Understanding that, historically, it would most likely not have been treated as such. Case law now suggests otherwise but I disclose that I am not a lawyer and the advice given here is based on experience only. I recommend seeking legal advice in any case.

Assuming that you’re in a strata title scheme comprising of more than two lots, Section 87 of the ACT states that a resolution without dissent of the Strata Scheme is required to approve structural alterations unless you have the prior written consent of all owners in the scheme. In the case of having prior written approval from all lot owners, you would need to serve those approvals on the Strata Scheme.

In the case of such an application, an owner can only vote against the application if the reason for the vote against is one listed below. A vote against must provide the reason to be valid.

1. that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot; or
2. in the case of a lot that is not a vacant lot, that the carrying out of the proposal —
   
   1. will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or
   2. may affect the structural soundness of a building; or
   3. may interfere with a statutory easement; or
   4. that the carrying out of the proposal will contravene a specified by-law or specified by-laws of the strata company; or
   5. that the carrying out of the proposal may interfere with a short form easement or restrictive covenant or any other easement or covenant affecting the parcel that is shown on the scheme plan or registered against the parcel.

If you submit this application for alteration, the Strata Company must convene a general meeting for consideration of your application. Your application must contain certain information as provided for by Section 89(1) of the Act and Regulation 75 being:

1. For the purposes of section 89(1), the following information is prescribed —
   
   1. plans and specifications for the structural alteration;
      the additional information prescribed for the type of structural alteration concerned by this regulation.

2. The following additional information is prescribed for a structural alteration of a lot on a strata plan —
   1. the plot ratio restrictions and open space requirements in relation to the parcel;
   2. the pro rata entitlements of the lot;
   3. if the application is approved, the area of the structure, including the area of all existing and proposed structures to be taken into account for the purposes of calculating the plot ratio restrictions and open space requirements;
   4. whether or not the carrying out of the proposal will breach the pro rata entitlements of the lot and, if it does, the percentage and area by which the pro rata entitlements of the lot is exceeded;
   5. the location and dimensions of the proposed structure upon its completion in relation to any existing structure on the lot or to the boundaries of the lot;
   6. any contravention of the by-laws of the strata company, whether of a permanent or temporary nature, which is likely to occur during or as a result of the erection, alteration or extension of the structure, and any proposed manner of dealing with that contravention;
   7. any likely interruption to or interference with any statutory easement, short form easement or restrictive covenant or any other easement or restrictive covenant affecting the parcel that is shown on the scheme plan or registered against the parcel, whether of a permanent or temporary nature;
   8. whether the structural alteration of the lot changes the boundaries of the lot and whether the applicant has sought advice from a licensed surveyor about the effect of the structural alteration.

When a Strata Company receives an application for alteration, voting on the application must open within 35 days of the application being received. If it does not, the applicant can convene a general meeting as if it was being convened by the strata company and do as nearly as possible as if it were being convened by the Strata Company, understanding that the applicant may not hold all the same information about owners.

Regardless if the Strata Company has not, at the expiration of 77 days from receiving the application, made a written objection to the alteration or made a written objection that does not provide the grounds of the objection being one permitted for a vote against the application then the application becomes deemed approved.

This post appears in Strata News #620.

Luke Downie
WA Strata Consultant
E: Email
P: 0456 589 639