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  4. Wardle v Sanctuary Cove Principal Body Corporate GTP202 – Architectural Review Committee - [2015] QCAT 172

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Wardle v Sanctuary Cove Principal Body Corporate GTP202 – Architectural Review Committee[2015] QCAT 172

Wardle v Sanctuary Cove Principal Body Corporate GTP202 – Architectural Review Committee[2015] QCAT 172

CITATION:

Wardle v Sanctuary Cove Principal Body Corporate GTP202 – Architectural Review Committee [2015] QCAT 172

PARTIES:

Pamela Wardle

John Playel

(Applicants)

 

v

 

Sanctuary Cove Principal Body Corporate GTP202 – Architectural Review Committee

(Respondent)

APPLICATION NUMBER:

OCL065-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

27 April 2015

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

20 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application is dismissed.

CATCHWORDS:

CIVIL REVIEW MATTERS – Sanctuary Cove Architectural Review Committee – application of by-laws to lot – classification of lot – set-backs for building envelope

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 60.

Sanctuary Cove Resort Act 1985 (Qld), s 23, s 97, s 104B, s 104C

The Proprietors Cathedral Village Building Units Plan No. 106957 & Ors v Cathedral Place Community Body Corporate & Ord [2012] QSC 301

The Owners – Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536

The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207

REPRESENTATIVES:

APPLICANT:

Pamela Wardle and John Playel represented by Mr Christopher Garlick, of counsel

RESPONDENT:

Sanctuary Cove Principal Body Corporate GTP202 – Architectural Review Committee represented by Mr Nathan J Shaw, of counsel, instructed by Hynes Legal

REASONS FOR DECISION

  1. [1]
    This is an application made pursuant to s 104B of the Sanctuary Cove Resort Act 1985 (Qld) (‘SCR Act’), which permits QCAT to deal with a matter relating to the application of a developmental by-law. It is not disputed that the applicants, Pamela Wardle and John Playel, are permitted applicants under s 104B(2),[1] or that internal dispute resolution processes have been reasonably attempted prior to the making of the application, subject to s 104C.[2]
  2. [2]
    Ms Wardle, the registered owner of Lot 25 on GTP 1701 (‘Lot’), together with Mr Playel, have previously applied to the respondents seeking approval to undertake renovations to the residential building situated on the Lot.
  3. [3]
    Sanctuary Cove Resort Principal Body Corporate rejected the application on the advice of the Architectural Review Committee, on the basis that the Lot is characterised as a Controlled Aspect Lot. Controlled Aspect Lots are subject to minimum setback requirements under the Development Control By-Laws (‘By-Laws’) and the respondents’ proposed renovations contravened those By-Laws. The respondents had also made an internal appeal of this decision to the Principal Body Corporate, which was refused.

Relief sought by the Applicants

  1. [4]
    Ms Wardle and Mr Playel submit that the Lot is properly characterised as a Conventional Aspect Lot. Accordingly, they submit that the proposed renovations should be approved as they do not contravene the minimum setback required for a Conventional Aspect Lot.
  2. [5]
    In this regard, Ms Wardle and Mr Playel seek a declaration that the Lot is a Conventional Aspect Lot.[3] They do not seek review of the original decision made by the respondent.
  3. [6]
    The parties agree that should the Lot be classified as a Controlled Aspect Lot, that the proposed setback is insufficient.[4] The parties further agree that should the Lot be classified as a Conventional Aspect Lot, that the proposed setback is sufficient.[5] Therefore, the issue in question is the classification of the Lot.
  4. [7]
    The By-Laws provide that this classification is defined by reference to the Neighbourhood Plan (‘the Plan’).[6] The Plan was gazetted in 1987 and has not been updated since. On the Plan, the Lot is not subdivided from the Development Parcel. There is a key to the Plan whereby shaded sections are Controlled Aspect Lots and unshaded sections are Conventional Aspect Lots. The Development Parcel in question is unshaded, but also undivided, and is marked as a Development Parcel. Various common areas and parkland are also unshaded and undivided, as are other large Development Parcels.
  5. [8]
    While Ms Wardle and Mr Playel initially submitted that the lack of shading was evidence of an intention for the subsequently subdivided Development Parcel to be classified as Conventional Aspect Lots, it is highly unlikely that this was its purpose.

The By-Laws must be given a purposive approach

  1. [9]
    The literal application of the Plan is that the lot is still a Development Parcel, which is subject to the same minimum setback requirements as a Conventional Aspect Lot.[7] However, the Tribunal agrees with the submissions of the respondent that this is clearly outdated and that a purposive approach must be utilised in the application of the By-Laws.[8]
  2. [10]
    The By-Laws should be interpreted objectively by what they would convey to a reasonable person and that which is consistent with its statutory context. The statutory context may be departed from where to do so is authorised by the governing statute and if that intention also appears plainly in the terms of the by-law. However, caution should be exercised in going beyond the language of the by-law and its statutory context to ascertain its meaning.[9]
  3. [11]
    The respondent submits that the statutory context arising from the SCR Act is typical of integrated resort schemes. In this regard, the SCR Act develops of a principal body corporate to oversee maintenance and enforcement of by-laws relating to the development and design of residential zones.[10]
  4. [12]
    The By-Laws provide for categorisation of certain types of lots based on uniformity of size, structure, quality and appearance of the lots.[11] According to the By-Laws, the minimum setback requirement for structures not exceeding 5m in height is 3.0m for a Controlled Aspect Lot,[12] and 1.5m for a Conventional Aspect Lot.[13]
  5. [13]
    The existing residence directly abuts the eastern border of the Lot and has a setback of 1.5m from the eaves and 2.5m from the most protruding external wall from the ‘other side boundary’.

Lot 25 is a Controlled Aspect Lot

  1. [14]
    The respondent submits that building directly on the side boundary in this way is characteristic of a Controlled Aspect Lot, as the property directly abuts a Controlled Aspect Boundary.[14] Ms Wardle and Mr Playel submit that the existing residence cannot be categorised as a Controlled Aspect Lot, because the minimum distance from the outermost projection of the principal structure must not be less than 3.0m,[15] and the residence currently has an outermost projection of 2.5m.
  2. [15]
    The respondent further submits that to construe the allotment as retaining characteristics of both a Controlled and Conventional Aspect lot would be absurd and repugnant to the objects of the By-Laws and SCR Act. The Tribunal agrees with this conclusion, and finds that a purposive approach to the application of the By-Laws results in Lot 25 on GTP 1701 being classified as a Controlled Aspect Lot.

Orders

  1. The application is dismissed.

Footnotes

[1] SCR Act.

[2] Ibid.

[3] Pursuant to Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 60.

[4] In accordance with cl 2.7.1 Development Control By-Laws.

[5] In accordance with cl 2.7.4 Development Control By-Laws.

[6] Development Control By-Laws cl 1.2.

[7] Ibid cl 2.7.1(a).

[8] The Proprietors Cathedral Village Building Units Plan No. 106957 & Ors v Cathedral Place Community Body Corporate & Ord [2012] QSC 301 at 33-34.

[9] The Owners – Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536 at 53, citing The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 at 71.

[10] SCR Act, s 23, s 97.

[11] Part 2 Development Control By-Laws.

[12] Ibid cl 2.7.4(a).

[13] Ibid cl 2.7.1(a).

[14] Ibid cl 2.7.3.

[15] Ibid cl 2.7.4(a).

Close

Editorial Notes

  • Published Case Name:

    Pamela Wardle and John Playel v Sanctuary Cove Principal Body Corporate GTP202 – Architectural Review Committee

  • Shortened Case Name:

    Wardle v Sanctuary Cove Principal Body Corporate GTP202 – Architectural Review Committee

  • MNC:

    [2015] QCAT 172

  • Court:

    QCAT

  • Judge(s):

    Member Cullen

  • Date:

    20 May 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536
2 citations
Jump To
Cite 1 - [2014] NSWSC 1536
Cite 2 - [2014] NSWSC 1536
The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207
2 citations
Jump To
Cite 1 - [2007] NSWCA 207
Cite 2 - [2007] NSWCA 207
The Proprietors Cathedral Village Building Units Plan No. 106957 v Cathedral Place Community Body Corporate [2012] QSC 301
2 citations
Jump To
Cite 1 - [2012] QSC 301
Cite 2 - [2012] QSC 301

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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