Supreme Court of South Australia
(Full Court)

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PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR

[2020] SASCFC 27

Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)

24 April 2020

APPEAL AND NEW TRIAL
REAL PROPERTY - STRATA AND RELATED TITLES - GENERAL MATTERS - NATURE OF STRATA TITLE - WHAT CONSTITUTES COMMON PROPERTY
REAL PROPERTY - STRATA AND RELATED TITLES - MANAGEMENT AND CONTROL - BYLAWS - EXCLUSIVE USE
Appeal against a decision of a Judge of the District Court brought by the appellants, a unit holder, seeking relief for the trespass of another unit holder. 
The subject property is a strata-titled industrial-commercial premises (the premises).  The first respondent is the registered proprietor of the common property of the eponymous strata plan registered with the Lands Titles Office.  The second respondent is the owner of Unit 1.  The second appellant is the registered proprietor of Unit 8, and the first appellant is its principal.  The second respondent allowed a monopole tower to be erected on his property, and into the airspace, above the height which belonged to the unit. 
The appellants brought an application in the District Court in which it contended that from above a height of three metres, the monopole occupied common property and sought consequential relief.  The Judge dismissed the application.
The appellants’ notice of appeal and the respondents’ notices of contention raise the following questions: 
1.  Was the airspace over the premises above the height of the unit subsidiaries and to the height of the monopole part of the real property of the first respondent, subject to any statutory provision to the contrary? 
2.  Did the second respondent exclusively occupy the space taken by the monopole or did it simply make reasonable use of that space in a way allowed to all unit holders? 
3.  If the monopole exclusively occupied that space, had the second respondent been properly authorised to take exclusive occupation pursuant to a unanimous resolution of the first respondent? 
4.  Are the appellants estopped from contending that the second respondent was not properly authorised to take exclusive occupation by reason of the position it took at a meeting of the first respondent and in its communication to the second respondent? 
5.  If it had not been so authorised, was there any other statutory basis upon which it could lawfully occupy that space?
6.  If there was no lawful basis for what is found to be an exclusive occupation, should declarations to that effect be made? 
7.  Should declarations be made that the first or second respondent have in any way contravened the provisions of the Strata Titles Act 1988 (SA) (the Strata Titles Act) or the articles of the first respondent in engaging in the conduct which led to the construction of the monopole? 
8.  What consequential orders should be made? 
Held per Kourakis CJ (Stanley and Bampton JJ agreeing), allowing the appeal: 
1.  Yes – the space from three metres above the ground level of the unit subsidiaries was common property. 
2.  The second respondent exclusively occupied the space taken by the monopole in a way which was inconsistent with the shared use of the common property by all unit holders. 
3.  No – the first respondent has not granted the second respondent an exclusive right to occupy the space taken by the monopole. 
4.  No – the appellants are not estopped from contending that the second respondent was not properly authorised.
5.  No – the second respondent has no other statutory right to exclusively occupy the space taken by the monopole. 
6.  Yes – a declaration should be made in accordance with the above answers. 
7.  Yes – a declaration should be made that the second respondent has trespassed against the common property of the first respondent and has breached Article 2(b) of the first respondent.  A declaration should be made that the first respondent has failed to discharge its duty imposed under s 25(a) of the Strata Titles Act by not taking steps to remove the monopole or secure a proportion of the rent paid by Optus for the benefit of all unit holders.  
8.  The parties are to be heard on consequential orders including costs. 

Piazza v Strata Corporation 10147 Inc [2019] SADC 38; Platt v Ciriello  [1998] 2 Qd R 417; Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479; Pickering v Rudd (1815) 4 Camp 219; Saunders v Smith (1838) 2 JUR 491; Commissioner for Railway v Valuer-General (1974) AC 328; Ainsworth v Albrecht (2016) 261 CLR 167, discussed.
Wandsworth Board of Works v United Telephone Co Ltd (1884) 13 QBD 904; Gifford v Dent [1926] WN 336; Anchor Brewhouse Developments v Berkley House (Docklands Developments) Pty Ltd [1987] 2 EGLR 173; London and Manchester Assurance Co Ltd v O & H Construction Ltd [1989] 2 EGLR 185; Janney v Steller Works Pty Ltd [2017] WSC 363, considered.

PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR
[2020] SASCFC 27

Full Court:	Kourakis CJ, Stanley and Bampton JJ

KOURAKIS CJ.

Introduction
1	The property at 65 Stephens Avenue, Torrensville, is a strata‑titled industrial‑commercial premises (the premises) comprising eight units within a single building.  This is an appeal against a decision of a District Court Judge dismissing an action brought by one of the unit holders seeking relief for the trespass of another unit holder who allowed a monopole tower to be erected on his unit and into the airspace above the height which belonged to the unit.   
2	Stephens Avenue runs north to south and the premises are on its western side.  Strata Corporation 10147 Incorporated (the Strata Corporation), the first respondent, is the registered proprietor of the common property of the eponymous strata plan which is registered with the Lands Titles Office (the strata plan).  The second respondent, JJADD Pty Ltd (JJADD) is the owner of Unit 1.  Unit 1 comprises a portion of the single-storey warehouse, the entirety of a two‑storey office block which is attached to the warehouse and appurtenant areas of land referred to as unit subsidiaries.  Both the single‑storey warehouse area of Unit 1 (the Unit 1 warehouse), and its two-storey office (the Unit 1 office block), are attached to the southern end of the building, but are separated by a yard.  That yard is one of the unit subsidiaries of Unit 1; the others are two carparks and a drive.  As we shall see, a unit subsidiary is a statutory construct of the Strata Titles Act 1988 (SA) (the Strata Titles Act).  Each of the other units of the premises is comprised of a portion of the warehouse, and a drive and carparks as unit subsidiaries.  
3	That part of the premises which is not included within the units is ‘common property’, another statutory construct of the Strata Titles Act.  The common property includes a shared driveway running along the western side of the premises.  Some of the carparks which are unit subsidiaries are located next to that driveway and others are on the Stephens Avenue frontage of the premises.  The strata plan defines the lower vertical limit of the unit subsidiaries as the existing ground level, and the higher level as three metres above that.  It follows that the space below and above the unit subsidiaries is common property.
4	A radio mast was affixed to the eastern wall of the Unit 1 warehouse, which abuts the yard before the premises were strata‑titled.  Guy wires attached it to the roof of the Unit 1 office.  On 26 July 1999, the Strata Corporation, by unanimous resolution, approved the use of the radio mast by Optus as a telecommunications tower.  JJADD gave Optus a lease over the first floor office to house the equipment associated with the use of the radio mast as a telecommunication tower.  The lease included an associated right to erect and maintain the tower.  In 2017, Optus built a monopole fixed to the ground in the yard, which is Unit 1’s subsidiary to function as its telecommunication tower.  It then removed the mast.  JJADD granted Optus leases similar to those granted for the operation of the radio mast with respect to the monopole.
5	It is expected that JJADD will receive the sum of $310,176.94 from Optus over the period 2016 to 2025 in accordance with the terms of the leases.
6	Piazza Pty Ltd is the registered proprietor of Unit 8 and Mr Piazza is its principal.  I will refer to them jointly as Piazza.  Piazza brought an application in the District Court in which it contended that from above a height of three metres the monopole occupied common property and sought consequential relief.  
7	The Judge dismissed Piazza’s application for the following reasons:
[43]	In this case, the use to which the airspace above the unit subsidiary could be put is restricted by s 5(4)(e) of the Strata Titles Act 1988, which provides that a unit subsidiary is for the separate use of the occupier of the unit. Accordingly, the ground and the first 3 metres of the airspace of the yard would not be available for use by any person other than JJADD. 
[44]	I find that there is no ordinary use to which the airspace 3 metres above the yard in Unit 1 may be put by other unit holders.
[45]	The tower which was the predecessor of the monopole was excluded from the common property because it was for the exclusive use of Unit 1 and was installed before the deposit of the strata plan. I find that at the time Unit 1 was created in Strata Plan 10147, the mast was not within common property. As a consequence, the airspace occupied by the mast was not common property. In addition to the airspace occupied by the original tower itself, the airspace occupied by the guy wires which supported the tower were not common property.
(Footnote omitted)
8	The appeal and the notices of contention raise the following questions:
1	Was the space over the Stephens Avenue site above the height of the unit subsidiaries and to the height of the monopole part of the real property of the Strata Corporation, subject to any statutory provision to the contrary?
2	Did JJADD exclusively occupy the space taken by the monopole or did it simply make reasonable use of that space in a way allowed to all unit holders?
3	If the monopole exclusively occupied that space, had JJADD been properly authorised to take exclusive occupation pursuant to a unanimous resolution of the Strata Corporation?
4	Is Piazza estopped from contending that JJAD was not properly authorised to take exclusive occupation by reason of the position it took at a meeting of the Strata Corporation and in its communications to JJAD?
5	If it had not been so authorised, was there any other statutory basis upon which it could lawfully occupy that space?
6	If there was no lawful basis for what is found to be an exclusive occupation, should declarations to that effect be made?
7	Should declarations be made that JJADD or the Strata Corporation have in any way contravened the provisions of the Strata Titles Act or the articles of the Strata Corporation in engaging in the conduct which led to the construction of the monopole?
8	What consequential orders should be made?
9	I would answer the questions as follows:
1	Yes – the space from three metres above the ground level of the unit subsidiaries was common property.
2	JJADD exclusively occupied the space taken by the monopole in a way which was inconsistent with the shared use of common property by all unit holders.
3	No – the Strata Corporation has not granted JJADD an exclusive right to occupy the space taken by the monopole.
4	No – Piazza is not estopped from contending that JJAD was not properly authorised.
5	No – JJADD has no other statutory right to exclusively occupy the space taken by the monopole.
6	Yes – a declaration should be made in accordance with the above answers.
7	Yes – a declaration should be made that JJADD has trespassed against the common property of the Strata Corporation and has breached Article 2(b) of the Strata Corporation.  A declaration should be made that the Strata Corporation has failed to discharge its duty imposed under s 25(a) of the Strata Titles Act by not taking steps to remove the monopole or secure a proportion of the rent paid by Optus for the benefit of all unit holders.  
8	I would hear the parties further as to consequential orders including costs.
Legislation
10	‘Strata scheme’ is defined by s 3 of the Strata Titles Act to mean:
(a)	the land comprised in a strata plan; and
(b)	the buildings and other improvements on that land;
11	Section 5 of the Strata Titles Act defines a ‘Strata Plan’ as follows:
(1)	A strata plan is a plan dividing land into—
(a)	units (of which there must be at least two); and
(b)	common property.
(2)	A strata plan must comprise the whole of one or more allotments.
(3)	A strata plan—
(a)	must define the units to be created by the plan in a manner that allows the boundaries of each unit to be ascertained; and
(b)	must assign to each unit a distinguishing number; and
(c)	must have annexed to it a schedule of unit entitlements in relation to the units; and
(d)	must delineate the boundaries of the land comprised in the plan; and
(e)	must delineate in relation to those boundaries the external lateral boundaries of all buildings on the land; and
(f)	must comply with any other requirements stipulated by the Registrar-General.
(4)	A unit—
(a)	must consist of, or include, the whole or a part of a building;
(b)	need not be wholly within one or more buildings;
(c)	may be below, on or above the surface of land;
(d)	may be wholly on one storey or level or partly on one storey or level and partly on another or others;
(e)	may include an area (a unit subsidiary)—
(i)	for the separate use of the occupier of the unit; and
(ii)	appurtenant to the portion of the unit designed for separate occupation.
(5)	Subject to any explicit statement to the contrary in a strata plan, the following principles apply to the definition of a unit by strata plan—
(a)	where a boundary is defined by reference to a wall or fence—the boundary is the inner surface of the wall or fence;
(b)	where a boundary is defined by reference to a floor—the boundary is the upper surface of the floor;
(c)	where a boundary is defined by reference to a ceiling or roof—the boundary is the under surface of the ceiling or roof.
(6)	The common property comprises—
(a)	any land or space that is not within a unit;
(b)	any pipe, cable, wire, duct or drain that is not for the exclusive use of a unit;
(c)	any structure that is not for the exclusive use of a unit installed before the deposit of the strata plan;
(d)	any structure installed by a strata corporation as part of the common property;
(e)	any other structure on the site committed to the care of a strata corporation as part of the common property.
(7)	Subject to any explicit statement to the contrary in the strata plan, a wall or fence between a building that forms part of a unit and a unit subsidiary to that unit is part of the common property.
(8)	The plan must conform with any requirements of the regulations as to the design of the strata scheme.
12	A ‘building’ is defined by s 3 to include a fixed structure.
13	The following may be observed about the nature of proprietary interests in a strata scheme.  First, the nature of the proprietary interest in a unit, or common property, is not expressly defined.  However, a ‘unit holder’ is defined by s 3 as the registered proprietor of an estate in fee simple in the unit.  Section 3 also defines the word ‘owner’, in relation to land, to mean the proprietor of an estate in fee simple in the land.  That the interest is one in fee simple also follows from the fact that a strata title must comprise the whole of one or more allotments, which is defined by s 3 to be ‘the whole of the land comprised in a certificate of title’.  It follows that the estate in a unit, and in the common property, is one in fee simple.  That of course does not preclude the fee simple in a unit being divided into lesser estates, and the Strata Titles Act contemplates that that may be done. 
14	Secondly, a unit is primarily delineated by its volume.  Section 5(5) of the Strata Titles Act provides that subject to explicit provision to the contrary in a strata plan, only the surface of structures bounding the unit are included within it.  No such contrary provision has been made in the strata plan.
15	Thirdly, the only purpose for the distinction drawn by s 5(4)(e) of the Strata Titles Act, between a unit subsidiary and other parts of a unit, is found in s 5(7).  The purpose of s 5(7) of the Strata Titles Act is to retain as common property, subject to an explicit statement to the contrary in the strata plan, the wall or fence between the unit subsidiary or other part of the unit.  That is consistent with the position taken for walls or fences erected between units by s 5(6) of the Strata Titles Act.  
16	Fourthly, ‘common property’ is first defined by reference to that land and space which is not part of a unit.  It is a corollary of the finding of a unit’s boundary as the inner surface of any wall, that the structural elements of a building in which units are accommodated stand in space which is common property.  Section 5(6)(c) of the Strata Titles Act adds to the common property those structural elements, and subparagraph (b) adds the conduits for common services, and other shared structures, which lie within the space of a unit, whether or not they are fixtures.  Common examples are service conduits located within a unit, which might otherwise have been considered the property of the owner of that unit.  The conduit or other structure need not be shared by all of the units; it is sufficient that it is not exclusively used by one unit.  The purpose of that provision is to make the maintenance, removal or replacement of the conduit or structure the responsibility of all unit holders acting through the Strata Corporation.  On the other hand, as we shall see, the articles of the Strata Corporation impose a duty on unit holders to maintain their units in good repair.
17	Fifthly, in order to give s 5(6), a coherent operation, it is necessary to distinguish between the space which is included as common property by subparagraph (a) of s 5(6), and the structures referred to in the following paragraphs.  Insofar as the conduits and structures are common property, there is no inconsistency.  If, however, within space which is common property a conduit or structure is for the exclusive use of a single unit, that conduit or structure can only remain in place with the consent of the Strata Corporation.
18	Section 9 of the Strata Titles Act provides:
9—Easements
The following easements exist, to the extent required by the nature of the strata scheme, between the units and between the units and common property:
(a)	easements of support and shelter;
(b)	easements allowing for the establishment and maintenance of pipes, ducts, cables and other equipment so that—
(i)	a unit may be supplied with water, gas, electricity, heating oil, or air-conditioned air;
(ii)	a unit may be connected to the telephone or to a radio or television antenna;
(iii) 	a unit may be connected to sewerage, garbage, drainage or other similar services.
19	Section 9 of the Strata Titles Act is necessary to ensure the structural integrity of units, because the default position enacted by s 5(5) is that units do not extend beyond the inner surface of the structures containing them, and to ensure that all units have access to services.  Section 9 does not confer a right to support for structures which occupy space outside of a unit.
20	Section 10 of the Strata Titles Act vests the common property in the Strata Corporation in trust for the unit holders:
10—Common property
(1)	The common property is held by the strata corporation in trust for the unit holders.
(2)	An equitable share in the common property attaches to each unit and cannot be alienated or dealt with separately from the unit.
(3)	The extent of the share is proportioned to the unit entitlement of the unit.
21	Section 10 of the Strata Titles Act constitutes unit holders tenants in common of the equitable interest in the indivisible whole of the common property.  However, those interests may be regulated by the Strata Corporation exercising the powers of the legal title vested in it by s 10 of the Strata Titles Act as trustee of the shares of all of the unit holders in the common property. 
22	A strata corporation may also mediate the competing demands of unit holders pursuant to s 25 of the Strata Titles Act, which confers the following functions on strata corporations:
(a)	to administer and maintain the common property for the benefit of the unit holders and, to such extent as may be appropriate, other members of the strata community; and
(b)	to administer all other property of the corporation; and
(c)	to enforce the articles of the corporation.
Regulation of the use of common property
23	In Platt v Ciriello (Platt), the Court of Appeal of Queensland considered the uses allowed by unit holders of the common property in commercial premises under the Building Units and Group Titles Act 1980 (Qld) (the Queensland Act).  The appellants, who owned a majority of the lots (the equivalent of units), objected to the respondents and their tenants using the common property for various purposes, including placing display stands, tables, chairs, rubbish bins and pallets on it.  They also objected to the respondents erecting a sign claiming the exclusive use of certain car parking spaces which were on the common property, and to the attachment of an advertising hoarding on the roof.
24	Section 20(1) of the Queensland Act vested the common property of the strata plan in ‘the proprietors as tenants in common in shares proportional to the lot entitlements of their respective lots’.  Section 22(1) provided that the body corporate may, by resolution passed without dissent, lease part of the common property.  Section 27(3) of the Queensland Act provided that the body corporate ‘shall do all things reasonably necessary for the enforcement of the by‑laws and the control, management and administration of the common property’.  
25	Section 30(7) of the Queensland Act provided that the governing body corporate could, by resolution passed without dissent, confer on the proprietor of a lot the exclusive use and enjoyment of, or special privileges in respect of, the whole or any part of the common property.  Section 37(1)(a) imposed an obligation on a body corporate to control, manage and administer the common property for the benefit of the proprietors.  Section 51 of the Queensland Act provided that a proprietor of a unit shall not use or enjoy the common property in such a way or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of another lot.  
26	In Platt, the majority, McPherson JA and Ambrose J, held that s 51 impliedly conferred on lot holders a positive right to use the common property as they wished, subject only to the limitation that their use did not unreasonably interfere with its use by other lot holders.  I observe that that implication is consistent with the vesting of legal and beneficial title in the common property on the unit holders as tenants in common by s 20 of the Queensland Act.  Pincus JA, in dissent, held that ss 27 and 37 of the Queensland Act empowered the body corporate, by majority vote, to restrict even those uses of lot owners which were neither a nuisance nor an unreasonable interference.  Pincus JA held that that power was qualified only by the prohibition against granting a right of exclusive use, or special privileges, except by unanimous resolution.  
27	Pincus JA found that the affixing of the advertising hoarding, and the claim to exclusive use of the two car parks, were unlawful absent a resolution pursuant to s 30(7) of the Queensland Act, but that the use of the common property by placing objects on it was lawful:
It seems clear that some of the use complained of amounted to a unilateral claim to exclusive use of part of the common property.  This is undoubtedly so with respect to advertising signs affixed to the roof; they constitute an absolutely exclusive use of part of the common property consisting of the relevant area of the roof and part of the air space.  It appears to me that the same applies to the sign intended to take, without any lawful authority, exclusive use of two parking spaces.  As to impermanent placement of articles on the common property, such as tables and chairs, it appears to me that this is prima facie lawful; that is so because it does not amount to what would under the general law be called an ouster -  i.e. a taking of part of the common property for exclusive use.  Uses not constituting an ouster are under the control of the body corporate, subject to the right to go to a referee.  However, it seems to me clear that the referee would have no right to accord exclusive use (e.g. for advertising signs) of part of the common property to any proprietor; such a right depends entirely on the passage of a resolution in conformity with s. 30(7); I can find nothing in the Act which would permit the referee to grant such a use.
28	McPherson JA and Ambrose J held that the uses complained of were not necessarily exclusive uses requiring authorisation by a unanimous resolution.  Ambrose J observed that most uses of common property by one unit holder, at least temporarily, in an operational sense, excluded the contemporaneous use of the same property by another.
29	There are significant differences between the Strata Titles Act and the Queensland Act which combine to require a different conclusion to that of the majority in Platt under the former statutory regime.  First, the vesting of the legal title in the common property in the Strata Corporation by s 10 of the Strata Titles Act stands in stark contrast with the vesting of legal title in the lot holders themselves by s 20 of the Queensland Act.  
30	Secondly, the Strata Titles Act does not have the equivalent of s 51 of the Queensland Act in the body of the Act itself.  There is, as we shall see, a similar provision in the default articles found in Schedule 3, but strata corporations are empowered to amend or replace those articles.  Unit holders have no implied right under the Strata Titles Act to use the common property as they see fit, short of unreasonably interfering with the use of others.
31	Section 19 of the Strata Titles Act provides that the articles of a strata corporation are those set out in Schedule 3 unless the strata corporation, by special resolutions, adopts other articles.  The Schedule 3 articles govern the shared use of common property.  No other articles have been adopted in by the respondent Strata Corporation.  Section 19 of the Strata Titles Act empowers strata corporations to impose a penalty for contravention of an article.  Section 19A confers jurisdiction on the Magistrates Court to strike out an article which unfairly discriminates against a unit holder.  Section 20 of the Strata Titles Act provides that articles are binding on unit holders insofar as they affect the use of units or the common property.
32	Article 2 of Schedule 3 is the equivalent of s 51 of the Queensland Act.   It provides:
2	A person bound by these articles—
(a)	must not obstruct the lawful use of the common property by any person; and
(b)	must not use the common property in a manner that unreasonably interferes with the use and enjoyment of the common property by the other members of the strata community, their customers, clients or visitors; and
(c)	must not make, or allow his or her customers, clients or visitors to make, undue noise in or about any unit or the common property; and
(d)	must not interfere, or allow his or her customers, clients or visitors to interfere, with others in the enjoyment of their rights in relation to units or common property.
33	Article 2 regulates the shared use of the common property.  It contemplates that the common property will generally be available to all unit holders and their customers that is sufficient for those purposes.  That use is moderated by concepts of reasonableness and mutual respect for their reciprocal rights.  However, it is plain from the powers conferred by the provisions of the Strata Titles Act referred to in the preceding paragraph that a strata corporation may regulate the use of common property prescriptively, as well as proscriptively, and with a greater degree of particularity than in Article 2.
34	Article 5, which regulates car parking, is an example of a more particular proscription and prescription of the uses at common property:
5	A person bound by these articles—
(a) 	must not park a motor vehicle in a parking space allocated for others or on a part of the common property on which parking is not authorised by the strata corporation; and
(b) 	must take reasonable steps to ensure that his or her customers, clients or visitors do not park in parking spaces allocated for others or on parts of the common property on which parking is not authorised by the strata corporation.
(Emphasis added)
35	Article 6 regulates prescriptively what might otherwise be competing uses of common gardens:
6	A person bound by these articles must not, without the consent of the strata corporation—
(a) 	damage or interfere with any lawn, garden, tree, shrub, plant or flower on the common property; or
(b) 	use any portion of the common property for his or her own purposes as a garden.
36	The effect of s 25 of the Strata Titles Act, and the capacity to closely control use of the common property contemplated by ss 19, 19A and 20, is to substantially reduce the scope for conflicts between the unit holders as equitable tenants in common property over operational matters, by empowering the strata corporation to constrain the exercise of their rights over the undivided whole of the common property to the extent which is reasonably necessary to optimise its use by all unit holders.  As we shall see, a broad jurisdiction to review the acts of a strata corporation, and its articles, is conferred on the Magistrates Court to ensure that the powers are not used inequitably.  
37	Section 26 of the Strata Titles Act empowers a strata corporation to acquire or dispose of property, but that power is qualified by sub-ss (2) to (6):
(2)	A strata corporation cannot acquire property unless—
(a)	the property is reasonably required for the purposes of the corporation or for the use or benefit of the strata community;
(b)	in the case of real property, the property is a unit within the site or is adjacent to the site.
(3)	A strata corporation cannot acquire, deal with or dispose of real property unless authorised by unanimous resolution of the corporation.
(4)	The strata corporation may, if authorised to do so by unanimous resolution of the corporation, grant to a unit holder an exclusive right to occupy part of the common property for a specified period.
(5)	A strata corporation may only dispose of real property that has been held as common property if the property no longer forms part of the site.
(6)	If a strata corporation sells real property, any money received in respect of the sale must, after paying the costs of the sale and any associated expenses, be paid into the funds of the corporation and used to meet any outstanding administrative expenses or other liabilities of the corporation and any remaining balance may then, by unanimous resolution of the corporation, be divided between the unit holders in proportion to the unit entitlements of their respective units.
38	The following propositions may be stated about that section.  First, the Strata Corporation can only dispose of real property if it no longer forms part of the site, which is defined, by s 3, to mean the land comprised in a strata plan.  It follows that disposed land must be excised from the strata plan, and will no longer be part of the common property.  Disposal, for the purposes of s 26(5) of the Strata Titles Act, must, therefore, mean a permanent assignment of land.  Secondly, such a disposal, and any other, lesser dealings, such as leases, mortgages and encumbrances, must be authorised by a unanimous resolution in accordance with s 26(3) of the Strata Titles Act.  Finally, if authorised, unit holders may be granted, but only by unanimous resolution, a special property right described as ‘an exclusive right to occupy’ a part of the common property for a specified period.  How that right differs from a lease is not clear.  However, that exclusive property right must be distinct from, and a greater interest than, the reciprocal rights of use of the common property, which are exercisable in common with all other unit holders in accordance with the default articles set out in Schedule 3, or any other articles which might validly be made by ordinary motion, because a unanimous resolution is required.  
39	The requirement for a unanimous resolution to authorise dealings, disposals, or the grant of an exclusive right to occupy, calls attention to the procedure at general meetings of a strata corporation.  Section 34 of the Strata Titles Act relevantly provides:
(1)	Subject to this section, at a general meeting of a strata corporation, one vote may be exercised in respect of each unit on any matter arising for decision.
…
(2a)	A unit holder may nominate another person (a proxy) to attend and vote at meetings on his or her behalf.
(3)	A vote may be exercised as follows:
(a)	it may be exercised (subject to paragraph (b)) by the unit holder or a proxy of the unit holder;
(b)	if there are two or more unit holders in respect of the same unit, the following provisions apply:
(i)	if only one attends the meeting—the vote is exercisable by that unit holder;
(ii)	if two or more attend the meeting—the vote is exercisable by one of them on behalf of all in accordance with an agreement between them or, if there is no such agreement, by the unit holder whose name appears first on the certificate of title for the unit.
…
(4)	A unit holder may exercise an absentee vote on a proposed resolution by giving the secretary written notice of the proposed vote at least six hours before the time of the meeting.
…
(7)	Except where a unanimous resolution is required, a vote is not exercisable in relation to a unit unless all amounts due and payable to the strata corporation in respect of the unit have been paid.
(8)	Except where otherwise provided by this Act or by the articles of a strata corporation, the decisions of the corporation in a general meeting will be made by ordinary resolutions.
40	‘Unanimous resolution’ in relation to a strata corporation is defined in s 3 to mean a special resolution passed without any dissentient vote at a general meeting of the corporation.  A ‘special resolution’ is defined as follows:
special resolution in relation to a strata corporation means a resolution as to which the following conditions are satisfied;
(a)	at least 14 days’ written notice, setting out the terms of the proposed resolution and any other information of a kind prescribed by regulation, is given to the unit holders;
(b)	—
(i)	in the case of a strata corporation in which there are only 3 units and the owner of each unit is entitled to 1 vote in respect of his or her unit—the resolution is passed at a properly convened meeting of the strata corporation at which either no vote, or only 1 vote, is cast against the resolution; or
(ii)	in any other case—the resolution is passed at a properly convened meeting of the strata corporation at which the number of votes (if any) cast against the resolution is 25% or less of the total number of votes that could be cast at a meeting at which all unit holders are present and entitled to vote;
41	Regulations have prescribed that the reasons for the proposed resolution are to be provided with the requisite written notice.
42	Section 3(1) of the Strata Titles Act defines the following:
occupier in relation to a unit means a person who occupies the unit on a temporary or permanent basis (either solely or jointly with other persons) and includes a person who is unlawfully in occupation of a unit;
…
unit means an area shown on a strata plan as a unit;
43	I turn now to the use of common property affected by the erection of the monopole.  Unit holders in strata corporations are generally characterised as having a right to share common property in a way which is reasonable and, for that purpose, may make arrangements as between themselves as to the sharing of that space.  Plainly enough, multiple unit holders cannot occupy the same space at the same time unless acting jointly.  Occupation at any one point in time by one unit holder is not necessarily exclusive nor unreasonable.  Mobile items may be shifted to make room for others by agreement or unilateral action.  The limits on the rights of a tenant in common to act unilaterally against the use of another, and the delineation between ordinary uses and the taking of exclusive possession, or other acts of ouster, are fact sensitive.  However, I am in no doubt that the construction of the monopole goes well beyond a shared use.  Its construction, and the lease entered into by JJADD with Optus, precluded the Strata Corporation, or other unit holders, from entering into their own arrangements for the construction of a telecommunication monopole in that space.  Moreover, the construction of the monopole had the capacity to interfere with other uses.  Swinging a crane jib is one such use which, as we shall see, has received attention in the authorities.  Indeed, counsel for JJADD claimed that, on its erection, JJADD was entitled to occupation of the space around it.  
44	Removal of the monopole by another unit holder would be physically and legally fraught.  It would not be a simple engineering/dismantling project and would be a costly exercise.  Moreover, any unit holder who attempted it is likely to face a legal challenge from Optus.  The construction of the monopole is qualitatively different from conduct like leaving cars in the driveway, stacking goods, or depositing rubbish.
45	For the above reasons, this is much more than a case of the usual give and take necessary to allow the shared use of common property.  
Airspace
46	The Judge referred in his decision to a Latin maxim dating back to the 13th century, to the effect that the proprietor of land owns everything below and above it from the centre of the Earth to the heavens.  In Bernstein of Leigh (Baron) v Skyviews and General Ltd (Bernstein), Griffiths J held that that right did not extend to the airspace above Lord Bernstein’s Coppins Farm through which Skyviews and General Ltd (Skyviews) flew a Cessna light aircraft for the purpose of taking a photograph of his estate.  Skyviews was in the business of taking photographs of estates and offering them for sale to the registered proprietors.  Lord Bernstein’s action in trespass against Skyviews was dismissed.  The judgment of Griffiths J was supported by authorities dating back to the early 19th century.  In Pickering v Rudd, Lord Ellenborough doubted that it would be trespass to pass over a man’s land in a hot air balloon.  Shadwell VC later commented in Saunders v Smith that an action for trespass based on an ‘aerial wrong’ by floating over a person’s freeholding in a balloon ‘would be too contemptible to be taken notice of’.
47	In Commissioner for Railways v Valuer-General, after observing that there was strong authority that an action in trespass would lie to protect mineral rights beneath the surface, and incursions in airspace by projections, animals or wires, Lord Wilberforce observed that the common law rejected ‘so sweeping, unscientific and unpractical a doctrine’ that ownership extended from the centre of the Earth to the heavens.
48	However, the airspace beneath the flight paths of balloons and planes, and into which earthbound structures might protrude, has long been held to fall within the title to land.  
49	In Bernstein, Griffiths J referred to the authorities upholding actions in trespass for ‘removing a wire placed at any height above [the] freehold’ and the erection of a sign almost five feet above the surface.  Griffiths J then concluded:
… I accept their collective approach as correct.  The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space.  This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public.
50	Since the decision of Griffiths J in Bernstein, actions in trespass have been upheld with respect to the swinging jibs of cranes over adjacent property in both England and Australia.
51	It is now well accepted that an interest in land extends to the space above it, and to the earth below the ground level, to the extent that that space is usable by conduct engaged in from the surface, or is necessary to enhance the use of the land at ground level.  The precise scope of those limits, and precisely how the test to delineate the vertical limits of an estate in law should be expressed, may in some cases be open to argument, but not in this case.  The very existence of the Optus tower and monopole and the notorious fact that communication towers of that height are commonly placed on privately-owned properties, particularly industrial‑commercial sites, show incontrovertibly that the space extending for the height of the monopole is part of the property of the strata community.
52	Moreover, the Judge was wrong to identify the height limit of the unit subsidiary by reference to the actual use to which the other units might have put it.  In Ainsworth v Albrecht, the High Court, in upholding the reasonableness of unit holders in a multi-storey apartment building to the bridging of two balconies of an upper level apartment, observed:
[55]	It is no light thing to conclude that opposition by a lot owner to a resolution is unreasonable where adoption of the resolution will have the effect of: appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners; altering the features of the common property which it exhibited at the time an objecting lot owner acquired his or her lot; and potentially creating a risk of interference with the tranquillity or privacy of an objecting lot owner.  In the circumstances of the case, the Tribunal was correct to hold that the adjudicator erred in law in reaching that conclusion; and the Court of Appeal erred in concluding otherwise.
…
[62]	It was also an error on the part of the Court of Appeal to proceed on the basis that it was a consideration tending to show that the opposition to the proposed modification was unreasonable that the common property airspace required to give effect to the proposed modification was of no use to anyone but the first respondent. A person with a property interest may reasonably insist on conserving that interest even if it is not presently being employed to that person’s material advantage. That is so, if for no other reason than that he or she may reasonably expect to be offered something in return for agreement to part with it to another lot owner.
(Footnotes omitted; Emphasis added)
53	In this case too, the Strata Corporation was entitled to insist on conserving its interest in the common property into which the monopole protruded, if for no other reason, than to extract a fee for its use.  
No unanimous special resolution
54	The evidence shows that there was no unanimous resolution authorising the exclusive occupation of common property by the monopole.  
55	The minutes of the 1998 Annual General Meeting (AGM) of the Strata Corporation noted ‘that there were no objections to the proposed use of the radio mast, which is the property of unit 1 being used for mobile phone transmissions’.  Plainly enough, that resolution granted no right of occupation to the common property into which the mast protruded.  All that can be said is that the unit holders did not turn their collective mind to the basis upon which the mast, that had been erected before the strata plan was registered, occupied the common property.
56	On 14 September 2015, Adcorp, the then managers of the Strata Corporation, gave notice of an AGM to be held on 30 September 2015.  The Agenda gave no indication that a special resolution might be put, nor did it make any reference whatsoever to the mast.  
57	On 20 September 2015, JJADD gave notice to the Strata Corporation of its intention to relocate the tower and to anchor it on the ground of the yard, being the unit subsidiary lying between the Unit 1 warehouse and the Unit 1 office.
58	On 22 September 2015, after the notice and Agenda for the 30 September 2015 meeting had gone out, a principal of JJADD wrote to an employee of Adcorp advising that Optus planned to remove the tower from the roof and place another tower on the ground in the internal car park of Unit 1.  Adcorp’s response was that that should not be a problem, but that it should be mentioned at the AGM.
59	Minutes of the 30 September 2015 AGM were prepared.  A copy was received into evidence.  The provenance of the minutes was not explored, but it appears to have been drawn up by the Adcorp representative.  Mr Piazza was present, but no representatives for Units 2, 3 or 5 attended.  It follows that no unanimous resolution could have been made.  There was an item for ‘Other Business’ on the posted Agenda, but it only related to the appointment of debt collectors, the levy of bank charges, and approval for email notice.  However, under the heading ‘Other Business’ in the minutes, the following is recorded:
Relocation of Telecommunications Tower
The owners of unit 1 advised the meeting that the telecommunications tower is to be moved from the roof of the warehouse of unit 1 and relocated in the car park at the rear of the offices in unit 1.  The tower will be approximately the same size and height as is presently case.
60	There is no record that any resolution was passed, or any recommendation adopted.  In any event, as I observed, no unanimous resolution, as defined by the Strata Titles Act, could have been adopted.
61	On 9 September 2016, Mr Piazza telephoned Mr John den Dryver, a principal of JJAD, and authorised him to be Piazza’s proxy at the next AGM of the Strata Corporation.  Mr Piazza did not give Mr den Dryver any particular instructions on the business of the AGM.
62	At the AGM held on 14 September 2016, Units 2 and 3 were not represented.  The minutes received into evidence record:
Mrs den Dryver advised the Body Corporate Manager in October 2015 that concerning the relocation of the telecommunications tower, it was incorrectly minuted that the tower would be approximately the same size, it is fact [sic – ‘in fact’] the same height but broader at ground level.  Mr den Dryver advised that council approval for the relocation of the telecommunications tower has now been received and the tower will be relocated as per the attached site plan.
Secondly the matter of the fire hose that was minuted as being relocated, Mrs den Dryver advised this was not the case, as it had not been relocated.
Minutes of the last AGM were accepted as a correct record.  UNANIMOUS.
63	The ‘Unanimous’ resolution adopted in the 2016 minutes was just that,  a resolution adopting the minutes of the 30 September 2015 meeting.  As I have already observed, those minutes do not record the making of any resolution at all, let alone a unanimous one approving the construction of the monopole or the exclusive occupation of common property.  In any event, the discussion concerning the size of the monopole does not appear to have been by way of an amendment of the 2015 minutes; it was merely a correction of the information provided to the 2015 AGM.  
64	Mr Piazza did not attend the 2016 AGM, but had given his proxy to Mr John den Dryver.
65	On 12 October 2016, Adcorp advised Optus that the Strata Corporation had approved the relocation of the tower.
66	Optus erected the monopole on or about February 2017.  The tower is 29.31 metres in height, reaching the same height as the former mast and aerial which had been affixed to the warehouse.  The photograph attached as Appendix A to this judgment shows the original tower on the left, and the upper portion of the monopole on the right.  The photograph attached as Appendix B shows the monopole in its entirety.  
67	On 17 February 2017, 16 June 2017 and 3 November 2017, Extraordinary General Meetings of the Strata Corporation were held.  It is not necessary to go into the details of those meetings, save to note that Mr Piazza objected to the construction of the monopole, or at least its encroachment on common property unless the Strata Corporation received a portion of the remuneration paid to JJADD.  
68	At the meeting on 16 June 2017, the Corporation resolved by six votes to two that it would not seek any recompense from Unit 1 or Optus for the construction of the monopole. 
69	At the AGM held on 12 September 2017, the minutes of the 2016 AGM and the minutes of the Extraordinary General Meeting held on 17 February 2017 and 16 June 2017 were accepted as a correct record.  Units 2 and 3 were not present at the 2017 AGM.
70	It follows that there was no unanimous resolution granting JJADD a right to exclusively occupy the common property in which the monopole stands.  I would also hold that Piazza is not estopped by its conduct from denying JJAD’s authority to erect the monopole.  There was no representation to that effect, expressly or by implication from a failure to object earlier.  Nor did Piazza and JJAD deal with each other in any relevant way on the basis of an assumption that JJAD was authorised to erect the monopole.  The Strata Corporation was not estopped for the same reasons.
No other statutory basis
71	The second respondent’s primary alternative contention put in support of the judgment below relied on s 5(6)(c) of the Strata Titles Act.  The major premise of the argument is that the space occupied by the monopole above the height of three metres is not common property because the monopole is for the exclusive use of Unit 1.  That premise is not supported by a proper construction of the subparagraph.  Section 5(6)(c) of the Strata Titles Act excludes from the common property of the Strata Corporation any pre-existing structure that is exclusively used by a single unit holder.  However, the exclusion relates to the structure itself and not the space it occupies.  The Judge erred in conflating the structure and the space it occupied, in paragraph [45] of his Honour’s reasons.  The purpose of s 5(6)(c) of the Strata Titles Act is to relieve the strata corporations from any obligation to maintain a structure which is exclusively used by one unit holder.  That is to be contrasted with a structure which serves more than one unit holder, in which case it is necessary for the strata corporation to take responsibility for its maintenance to avoid individual disputes between unit holders, and to provide a process through which these matters could be resolved.  The error in the construction contended for is all the more manifest in this case in that to preserve the effectiveness of the monopole as a telecommunications tower, counsel for JJADD submitted that not only the space occupied by the monopole above a height of three metres, but also a penumbra of space around it to ensure that no structure which interfered with its functionality was built close to it, was excluded from the common property.  On no construction of s 5(6)(c) of the Strata Titles Act can that result be achieved.  
72	The minor premise of the argument is that the monopole anchored into the yard was the same structure as the mast which had been installed on the site of the Unit 1 warehouse before the strata plan was registered.  The minor premise must also be rejected.  
73	In support of that argument, the second respondent, JJADD, put the following submissions:
The Mast and its successor were not part of the common property.
30.	It follows, it is submitted that the mast (with its accessories and guy lines), being a ‘structure’ for the exclusive use of a unit’ (Unit 1), and having been ‘installed before the deposit of the strata plan’, was not part of the common property.
31	It is impossible to contend that the monopole, as successor to the mast, does not fall within the exclusion in paragraph (c) of s.5(6).
32.	It is submitted that the exclusion in s.5(6)(c) would not to [sic] cease to apply in any of the following circumstances:
32.1.	The mast and guy lines are modified, as in 1999;
32.2.	The mast and guy lines are renovated, as in 2006;
32.3.	The guy lines have to be replaced (for safety reasons);
32.4.	The guy lines have to be re-located (for better stability);
32.5.	The mast has to be repaired because of the onset of rust and decay;
32.6.	A portion of the mast has to be replaced (for operational and safety reason);
32.7.	The whole mast has to be replaced;
32.8.	The factory to which the mast is attached requires roof repairs, wall repairs and/or other modifications, which, in turn requires the mast to be relocated further north to the meeting point of the western and northern roof lines, and the guy lines have to be relocated accordingly;
32.9.	The mast has to be relocated to that new position because the guy lines have to be re-located to allow for maintenance, repairs or alterations to structures where they had been anchored;
32.10.	As for 32.8 and 32.9 above, but the new position is on the eastern roof alignment of Unit 1;
31.11.	As for 32.10 above, but for safety and operational reasons, the mast has to be supported not only by the structure to which it is attached, but as well by a pole attached to the ground, and running up the outside of the wall to the underside of the mast;
32.12.	As for 32.11 above, but the mast is replaced instead by a free-standing monopole (which requires no guy lines).
(Footnotes omitted)
74	The argument so put raises, in a different form, an old philosophical debate.  That debate is based on a thought experiment in which the ship in which Theseus sailed into Athens is, over time, maintained by replacing those of its parts which have deteriorated with a new part in precisely the same form as the old, until all parts have been replaced.  The question which has vexed philosophers is whether the ship is then the same ship in which Theseus sailed and, if it is not, when did it cease to be so?  Various solutions have been suggested, including the resolution of the paradox by adding a time dimension to the question.  Fortunately, and necessarily, the law is much more pragmatic than philosophy.  The common lawyer’s response must be that the answer turns on the ordinary meaning of the words ‘Theseus’s ship’, and that, at least by the time that all parts have been replaced, the ship is not Theseus’s ship but a replica of it.
75	In the Theseus’s ship thought experiment, a paradox is dramatically illustrated by imagining that each deteriorated part which had been removed is separately restored or repaired and then put back together in exactly the same way.  The philosopher then ponders whether there are now two ships of Theseus and, if so, on which one did he sail into Athens?
76	That very same paradox confronts JJADD’s minor premise.  The photograph, Appendix A, shows both the monopole anchored to the yard and the radio mast fixed to the side of the warehouse existing at the same point in time.  Only one of them can be the mast fixed to Unit 1 before the strata-titling of the premises, and it is not the monopole.  Nor can the monopole magically become the ‘mast’ when the original is removed.
Remedies
77	The plaintiff at trial sought the following relief:
1.	A declaration pursuant to s 41A(9)(da)(ii) that the erection of the Tower in the unit subsidiary of Unit 1 was unlawfully obtained; and
2.	An order that a special resolution be put to the members of Strata Corporation 10147 in the following terms:
2.1.	that the erection of the Tower in the unit subsidiary of Unit 1 and extending into common property in 2016 be retrospectively approved; and
2.2.	that such proportion that the Court considers just and reasonable of the rent derived by the owner of Unit 1 in respect of the erection of the Tower since the date of its erection onwards be paid into the sinking fund of Strata Corporation 10147.
3.	An order that if the special resolution in paragraph [2.2] is not passed unanimously in accordance with the Act, that such proportion of that the Court considers just and reasonable of the rent derived by the owner of Unit 1 in respect of the erection of the Tower since the date of its erection onwards be paid into the sinking fund of Strata Corporation 10147.
...
In the alternative:
6.	An order that such proportion that the Court considers just and reasonable of the rent derived by the owner of Unit 1 in respect of the erection of the Tower since the date of its erection onwards be paid into the sinking fund of Strata Corporation 10147.
In the further alternative:
7.	A declaration that the Tower infringes on common property.
8.	A declaration that the first Defendant has breached its obligations under the Strata Titles Act 1988 (SA); and
9.	Such relief as the Court deems appropriate as against the First and/or Second Defendant pursuant to s 41A of the Strata Titles Act 1988.
78	Section 41AA of the Strata Titles Act confers on the owner or occupier of a unit the right to apply for relief to the Magistrates Court, or by permission to the District Court, for relief pursuant to s 41A of the Strata Titles Act.
79	The claims which may be brought are: 
(a) 	that a breach of the Act or of the articles of a strata corporation has occurred; or
(b) 	that the applicant has been prejudiced, as occupier of a strata unit, by the wrongful act or default of the strata corporation of some other member of the strata corporation; or
(c) 	that a decision of the strata corporation is unreasonable, oppressive or unjust; or
(d) 	for the settlement of a dispute between a strata corporation and a member of the corporation, or between two or more members of a strata corporation, in relation to any aspect of the occupation or use of a strata unit. 
80	The court hearing the application must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit. 
81	The available relief is extensive.  A court may: 
(a) 	attempt to achieve settlement of the proceedings by agreement between the parties;
(b) 	require a party to provide reports or other information for the purposes of the proceedings;
(ba) 	order a party to have any accounts audited or to reimburse any person for the costs of having any accounts audited;
(c) 	order that a party take such action as in the opinion of the court necessary to remedy any default, or to resolve any dispute, and is specified in the order;
(d) 	order that a party refrain from any further action of a kind specified in the order;
(da) 	make a declaration as to the validity of—
(i) 	any articles or purported articles of the corporation; or
(ii) 	any decision or purported decision of the corporation;
(e) 	by order—
(i) 	alter the articles of the corporation; 
(ii) 	vary or reverse any decision of the corporation, or of the management committee of the corporation;
(ea) 	vary, avoid or terminate a contract entered into (whether before or after the commencement of this paragraph) between a strata corporation and either of the following: 
(i) 	the body corporate manager; 
(ii) 	an associate of the body corporate manager;
(f) 	give judgment on any monetary claim;
(g) 	make orders as to costs;
(h) 	make any incidental or ancillary orders. 
…
(16)	This section does not limit or derogate from any civil remedy at law or in equity.
…
82	Section 46 of the Strata Titles Act empowers the Supreme Court or the Magistrates Court to declare effective a resolution which, although required to be unanimous, attracts voting support which is sufficient to pass a special resolution.
83	The first point to make about those extensive powers of review is that the enactment of those safeguards supports the conclusion that the Strata Corporation is empowered to control the use of the common property, and that a unanimous resolution is required for the exclusive use of the kind effected by the erection of the monopole. The second point is that the powers amply support the orders sought by Piazza.
84	To give effect to my conclusion in [43] above, a declaration should be made that, by procuring Optus to construct the monopole in the Unit 1 yard, JJADD exclusively occupied and trespassed on the common property of the Strata Corporation, being the space which it occupied from three metres above the ground level of the yard.  A declaration should also be made that JJADD has breached Article 2.
85	The Strata Corporation failed to administer and maintain the common property for the benefit of its unit holders when it did not, in the absence of a unanimous resolution passed pursuant to s 26(4) of the Strata Titles Act, object to the construction of the monopole.  However, in the exercise of the Court’s discretion, I would withhold declaratory relief with respect to the Strata Corporation’s conduct at times when no objection was raised by any unit holder.  I would declare that the Strata Corporation breached the obligation imposed by s 25(a) of the Strata Titles Act only from 17 February 2017 when Piazza objected to the failure to seek recompense for the exclusive use of the common property.
86	I would hear the parties on any consequential orders.  In particular, I would hear the parties on whether an order should be made that they enter into mediation with respect to the making of any resolution pursuant to s 26(4), or to the making of an article, to govern the occupation of common property by the monopole, and the fee to be charged for that occupation by the Strata Corporation.  
87	STANLEY J:	I would allow the appeal.  I would make the declarations proposed by the Chief Justice and I agree with his reasons.  I would hear the parties on any consequential orders.   
88	BAMPTON J:		I agree with the reasons of the Chief Justice and would allow the appeal.  I would make the declarations proposed by his Honour and hear the parties on any consequential orders.
Appendix A

Appendix B