WA: Q&A Utility services in a strata scheme

This Q&A article is about utility services in a WA strata scheme.

Question: For utility services in a WA strata scheme, can we create a by-law to ban smart meter installations, and if so, what voting requirement is needed?

Our small strata scheme has eight units, each with its old-style electrical meter in a common area. One owner wants to create a new by-law that prohibits the installation of smart meters. Is this possible, or would it conflict with the existing by-laws or regulations regarding WA strata scheme utility services? If such a by-law can be introduced, what voting requirement is necessary for the by-law’s approval?

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Answer: Whether the by-law complies with the Act or any other law will depend on the exact content of the by-law.

Damien Moran, EnergyTec:

We cannot reply regarding whether it can legally be introduced as a by-law. However, we recommend the owner does not pursue this as there are changes proposed to the Electricity Industry (Alternative Electricity Services) Amendment Bill 2023, which involves an Embedded Networks Code of Practice. This is set to become mandatory in 2025 and allows customers (i.e. lot owners) to request an interval (advanced) meter at the supply address. It is our understanding that any by-laws would not supersede this, and all embedded networks would have to comply with the new Code of Practice.

For more information, please refer to: Western Australian Government: Voluntary Embedded Networks Code of Practice

Jason O’Meara, McWilliams Davis Lawyers:

The basis for the owner’s opposition to smart meters being installed within the strata scheme and the content of a scheme by-law will be an important factor in determining the validity of the proposed by-law.

Under Section 63(4) of the Strata Titles Act 1985 (WA), a strata company must not interfere or permit interference with a utility service provided by means of utility conduits in a way that may prejudice the use or enjoyment of a lot or the common property, other than:

in the reasonable exercise of rights under a utility service easement of which it has the benefit; or

in the performance of its function of controlling and managing common property in the scheme.

Any interference by a strata company with a utility service provided by means of a utility conduit (which is likely to include the implementation of a by-law) must only be exercising the rights of a strata company under a utility service easement of which the strata company has the benefit or in the performance of its function of controlling and managing the common property in the scheme.

Whether such a by-law complies with Section 63(4) of the Strata Titles Act 1985 (WA) or any other law will depend on the exact content of the by-law.

There is a risk that such a by-law could be held to be invalid for various reasons, including:

that the by-law is inconsistent with the Strata Titles Act 1985 (WA) or another written law;

to the extent that the by-law purports to discharge or modify an easement; or

having regard to the interests of all the owners of the lots in the scheme and the use and enjoyment of their lot, that the by-law is oppressive or unreasonable.

An owner considering such a by-law (or a strata company that receives such a proposal) should obtain legal advice on the proposed by-law’s validity, as the individual circumstances of each strata scheme will apply and affect the outcome of any advice.

Damien Moran
EnergyTec
E: damien.moran@energy-tec.com.au
P: 08 9382 7700

Jason O’Meara
McWilliams Davis Lawyers
E: jo@mcwilliamsdavis.com.au
P: 08 9422 8910

This post appears in the October 2024 edition of The WA Strata Magazine.

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