Strata company wins over an enclosed balcony with no building licence and no fire separation (SAT, 2026)

What happened

The strata scheme was registered in 1968 and covers 75 residential lots in a 10-storey block of brick home units in West Perth, with two decks of car parking. A lot owner once queried whether the building complied with fire requirements. That question led to a wider review of the balconies across the scheme, and by July 2021 thirty-seven balconies were identified as not complying with the building standards that applied.

The council of the strata company (the committee that runs the strata company's affairs) recorded in March 2025 that every owner except the owners of one first-floor lot had either completed work to make their balcony comply or had given an undertaking to do so. The balcony of that lot had been enclosed with windows and sliding doors by earlier owners before the current owners bought in March 2015. The strata company said that despite extensive searches there was no record of approval for that work from either the strata company or the City of Perth.

A building surveyor gave expert evidence that the original open concrete balcony met the building rules of the time, that he was not aware of any building licence for the enclosure, and that from ground level the aluminium glazed enclosure did not meet the vertical fire separation requirements that apply to apartment buildings of three or more storeys without a sprinkler system. The scheme's insurer, CHU Underwriting Agencies Pty Ltd, had indicated through the broker BMS Risk Solutions Pty Ltd that it would not renew cover unless all balconies complied. Insuring the scheme's insurable assets is a duty the strata company must meet under the Strata Titles Act 1985 (WA).

The case began in March 2025 as an application by another lot owner. At the first directions hearing the Tribunal removed that owner and substituted the strata company as the applicant. Two other lot owners who had been joined took no real part, did not file anything and did not attend the hearing; one had said his purpose was to have a seat at the table at mediation. Mediation in June 2025 did not resolve or narrow the dispute, and the matter was heard on 11 February 2026 with final written submissions filed on 20 May 2026.

What each side wanted

The strata company asked for orders that the lot owners give an irrevocable undertaking within 14 days to bring the balcony up to the National Construction Code (the national set of minimum building standards, referred to in the case as NCC C2.6, renumbered C3D7) and complete the work within 90 days; or, in the alternative, that they reinstate the balcony to its original condition at their cost within 90 days. It also asked that if they did not comply, the strata company could have the work done by its own contractors and recover the amount its contractors charged, and that the owners pay its legal costs. The owners argued they were not responsible for the cost, saying the strata company had dealt with the balcony work at the time, had instructed an architecture firm to draw plans and had approved the work; they also argued the Tribunal had no power to hear the case because there was no "scheme dispute", that the strata company was not authorised to bring or continue the case because a 2023 annual general meeting motion to go to the Tribunal had failed, that the strata company had changed its case at the hearing, and that the strata company should be held to a statement made to the insurer that the council had agreed to pay for the rectification work.

What the tribunal decided

The Tribunal found the application successful. It decided it had power to hear and decide the dispute, that the strata company was authorised to continue as the applicant, and that the two lot owners who had taken no part should be removed as parties. It rejected every objection the lot owners raised about the scope of the strata company's case and about the Tribunal's power.

The Tribunal also noted that costs were not dealt with in the main decision. Under the State Administrative Tribunal Rules 2004 (WA) a party may apply for costs within 21 days after the orders the application relates to, and the strata company had proposed that costs be decided after the substantive application.

Why the tribunal decided it that way

On power to hear the case, the Tribunal worked through section 197 of the Strata Titles Act 1985 (WA). An application to resolve a "scheme dispute" needs a dispute of a kind listed in section 197(1), between "scheme participants", brought by a party to the dispute. The Tribunal found the dispute had two parts: the strata company's claim that the enclosure did not comply with the code and was an alteration not authorised under the Act or the scheme by-laws, which put the insurance the strata company must hold at risk; and the owners' claim that the cost of fixing it should come out of the strata company's administrative or reserve fund. Both fell within section 197(1)(a)(vi), "any other matter arising under this Act or the scheme by-laws", and nothing in section 197(3) took them out. The strata company and each lot owner are scheme participants, so the application could be brought.

On authority, the Tribunal held that a strata company is a body corporate and so a "person" who can be joined under section 38(1) of the State Administrative Tribunal Act 2004 (WA). Joining it was reasonable because it ought to be bound by, or have the benefit of, the decision. Section 135 of the Strata Titles Act then makes the council the body that performs the strata company's functions, including running the case. The Tribunal also noted a later annual general meeting in November 2025 voted 52 to 3 against stopping the case, which confirmed the members supported continuing. It added that the challenge to authority could have been raised about twelve months earlier instead of in final submissions.

On the insurer, the Tribunal read the broker's emails in full. The broker had written that the council had agreed to pay "if CHU confirm they'll cover renewal". That was a clear condition, so the owners' claim that the strata company had promised to pay without qualification was not correct. The Tribunal also rejected the complaint that the case had changed at the hearing: references to by-laws, to sections of the Act and to fire spread supported the strata company's consistent position rather than creating a new one, and none of these objections had been raised at the hearing itself. It noted the application was not an application to enforce by-laws, which would be made under section 47.

The Tribunal recorded that the strata company carried the burden of proving its case on the balance of probabilities, and that the Tribunal's role is not to investigate the facts itself but to decide on the evidence put before it. The published text available here stops partway through the section on where the lot boundary sits, so the full reasoning on the balcony, the building licence, who must pay, and the final orders is not in it.

What this means if you are in a similar position

If you are in a similar position, this decision shows how a strata dispute about work done to a lot gets into the tribunal at all. The question is whether the disagreement fits one of the categories of "scheme dispute" in the strata legislation. A disagreement about whether unapproved work on a lot complies with building standards, and about whether the strata company's funds should pay to fix it, can fit the broad category covering any other matter arising under the Act or the scheme by-laws.

It also shows some practical points about how these cases run. Objections to the other side's case are normally raised at the hearing, not for the first time in closing submissions. A single lot owner can start a strata dispute as a scheme participant, and the tribunal can substitute the strata company as the applicant where it is the body that ought to be bound by the result. Statements made to an insurer are read in their full context, including any condition attached to them. And a party joined to a case is expected to take part; owners who filed nothing and did not attend were removed.

In disputes like this, the step most people take first is a written notice to the other party that sets out what is said to be wrong, what is required to fix it and a deadline to do it, often after a request through the strata manager. If that is ignored or refused, the next step is usually an application to the tribunal.

How to apply: our step-by-step guide to a SAT application. More decisions: SAT cases and strata and body corporate.

Source: The Owners of Kingsway Gardens (Strata Scheme 4) and Wilkinson [2026] WASAT 94 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.