MTAA Superannuation Fund Pty Ltd v Logan City Council
[2016] QPEC 34
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- MTAA Superannuation Fund Pty Ltd v Logan City Council[2016] QPEC 34
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MTAA Superannuation Fund Pty Ltd v Logan City Council[2016] QPEC 34
MTAA Superannuation Fund Pty Ltd v Logan City Council[2016] QPEC 34
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | MTAA Superannuation Fund Pty Ltd v Logan City Council & Anor [2016] QPEC 34 |
PARTIES: | MTAA SUPERANNUATION FUND (FLAGSTONE CREEK AND SPRING MOUNTAIN PARK) PROPERTY PTY LIMITED ACN 082 445 663 (appellant) v LOGAN CITY COUNCIL (respondent) and HOPE ISLAND CONSORTIUM PTY LTD ACN 117 045 735 (co-respondent) |
FILE NO/S: | 1787 of 2016 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court |
DELIVERED ON: | 22 July 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 July 2016 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – APPLICATION – Where the appellant seeks the determination of preliminary legal issues – whether the development application included the lawful consent of land owners – whether the assessment of the development application and any court proceedings consequential upon the making of the development application are futile. |
| Albrecht v Ainsworth & Ors [2015] QCA 220. Rakaia Pty Ltd v Body Corporate for “Inn Cairns” CTS 16010 [2012] QCA 306. Body Corporate and Community Management (Commercial Module) Regulation 2008 Body Corporate and Community Management Act 1997 Sustainable Planning Act 2009, 263 |
COUNSEL: | A Skoien for the applicant S Fynes-Clinton for the respondent J Houston for the co-respondent |
SOLICITORS: | HWL Ebsworth Lawyers for the applicant Colin Biggers & Paisley Pty Ltd for the respondent Corrs Chambers Westgarth for the co-respondent |
Introduction
- [1]This is an application seeking the determination of certain preliminary legal issues which is brought by the submitter appellant.
- [2]The appeal is against the decision of the respondent dated 2 March 2016 to approve subject to conditions a development application (“the Development Application”) for a Development Permit for a Material Change of Use – Shopping Centre (Expansion) on land located at 1-15 and 17-33 Bushman Drive, Jimboomba and more particularly described as Lots 0 and 6 SP 146553, Lot 8 on SP 198926 and Lots 155-157 on RP 848032 (“the Land”).
- [3]All of the Land is within the Body Corporate for Flagstone Village Community Titles Scheme 33183 (“the Body Corporate Land”) except for lots 155 and 156 on RP 848032 (“the Adjoining Land”). Of the Body Corporate Land, Lot 0 on SP 146553 is common property of the Flagstone Village Community Titles Scheme 33183 (“the Common Property”).[1]
- [4]Other land within the Flagstone Village Community Titles Scheme 33183 was not the subject of the proposed development. This included Lot 7 on SP 146553 which is owned by the appellant.[2]
- [5]The appellant seeks the determination of the following preliminary legal issues:
- (a)Whether the Development Application failed to include the consent of the owners of the Land;
- (b)Whether the Development Application properly identified all aspects of the proposed development; and
- (c)Whether the assessment of the Development Application is futile.
Was the consent of the owners of the land included?
- [6]In respect of the first issue for determination the appellant asserts that there was a failure to include the consent of the owners of the Land on two bases. Firstly it is alleged that the purported consent of the body corporate was void and of no effect because the Land included the Common Property. As a consequence the committee of the body corporate could not make a decision consenting to the Development Application. Secondly it is alleged that the purported consent was only consent to the making of a development application in respect of the Body Corporate Land and not the Adjoining Land and therefore the decision of the committee was not a decision to consent to the making of the Development Application.
- [7]The jurisdiction of the body corporate to make such a decision was recently considered by the Court of Appeal in Rakaia Pty Ltd v Body Corporate for “Inn Cairns” CTS 16010.[3] The Body Corporate and Community Management Act 1997 (“BCCMA”) governs how body corporates are constituted and function. The interrelationship between the owners of the lots in a community titles scheme and the body corporate is summarised by Gotterson JA in the following terms:
“[25] By virtue of s 35(1) in Part 3, common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the lot entitlements of their respective lots. An owner’s interest in the common property is inseparable from the owner’s lot interest.
[26] Notwithstanding that ownership of the common property resides with the lot owners as tenants in common, the body corporate is given a number of important attributes of ownership of it. It is the registered proprietor of the indefeasible title for the common property. It may enter into transactions affecting common property in its own name and may sue and be sued for rights and liabilities related to the common property as if owner of it.”[4]
- [8]Section 100 of the BCCMA confers a broad discretion on the committee of a body corporate. It is in the following terms:
“(1) A decision of the committee is a decision of the body corporate.
- (2)Subsection (1) does not apply to a decision that, under the regulation module, is a decision on a restricted issue for the committee.
- (3)Despite anything in a contract with the body corporate
(including the engagement of a body corporate manager), a decision of the body corporate manager is void to the extent that it is inconsistent with a decision of the body corporate’s committee.
- (4)If persons, honestly and reasonably believing that they are the committee for the body corporate, make a decision while purportedly acting as the committee, the decision is taken to be a decision of the committee despite a defect in the election of 1 or more of the persons.
- (5)The committee must act reasonably in making a decision.”
- [9]The appellant asserts that the committee of the body corporate did not have the power to pass the relevant resolution providing consent to the making of the Development Application on behalf of the body corporate because this was a decision on a restricted issue pursuant to s 100(2) of the BCCMA. The Body Corporate and Community Management (Commercial Module) Regulation 2008 (“the Commercial Module”) applied. Relevantly s 18 states:
“(1) A decision is a decision on a restricted issue for the committee if it is a decision –
(a) to change rights, privileges or obligations of the owners of lots included in the community titles scheme;”
- [10]In Rakaia the Court of Appeal considered the identically worded provision of s 42(1)(b) of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (“the Accommodation Module”). This was in the context of a challenge to the approval of the committee of a body corporate to consent to the making of a development application for a material change of use to the local government seeking a reclassification of the use rights attaching to Lot 36 and the consequential use rights with respect to carpark 36A in the community title scheme, which was part of the common property. Gotterson JA gave a restrictive meaning to the term “to change rights, privileges or obligations of the owners of lots”. He stated:
“[40] Turning first to the meaning of the expression – “decision to change”, I observe that it is necessary for the appellant to contend for an expansive meaning because, given its ordinary meaning, the expression means a decision which, of itself, effectuates a change. The resolution here did not effectuate a change to anything. What it did do was to manifest a consent to the making of an application for development approval for a material change of use of Lot 36 in so far as that application related to the exclusive use of Car park 36A. The only change in prospect was a material change of use of Lot 36. If that change was to be effectuated, it would be by approval of the Council and not by a decision of the body corporate or the committee.
…
[42] I agree that the purpose of Division 2 has been correctly identified by the appellant. However, to my mind, that purpose does not signify the expansive approach to interpretation urged by the appellant. The legislature has decided how decision making power is to be distributed between the body corporate in general meeting and the committee. It has chosen the language by which the distribution of power is expressed. That language ought to be given its ordinary meaning.
[43] Particularly, with regard to the description in (b), I am unable to see that that purpose would warrant applying it in a way which, in effect, substitutes for “to change” the very significantly different “to impact upon” or even “to impact potentially upon”, as the appellant would suggest. The appellant does not point to any aspects of text or context in Division 2 or in the BCCM Act as a whole, as signifying that a so significantly expanded and different scope of application for the description was intended. I am unable to accept the approach to interpretation of the expression “decision to change” advanced by the appellant.”[5]
- [11]The appellant seeks to distinguish the interpretation given to the relevant statutory wording in Rakaia, submitting that:
“Here, the effect of the provision of consent to the making of the Development Application was to immediately place the consequential limitation of rights and privileges then existing and the assumption of additional obligations beyond the control of the Body Corporate.”[6]
By way of elucidation the appellant submits thereafter that the provision of the consent was such that the body corporate was “immediately exposed to the risk that any subsequent development approval would be exercised over the Adjoining Land” and that exercise of the rights under such a development approval would “curtail (fetter) the rights and privileges in respect of the existing use of the Body Corporate Land” and “impose obligations upon all of the land that is the subject of the Development Approval…”.[7]
- [12]Putting to one side any concerns that these arguments appear somewhat fanciful, the appellant’s submission requires an expansive interpretation of the relevant legislative provision which is completely at odds with the interpretation in Rakaia which is binding upon me. To paraphrase Gotterson JA the only prospect of any such consequences would be as a result of an approval by the respondent not a decision of the body corporate. I find that the consent of the body corporate was not a decision on restricted issue pursuant to the Commercial Module.
- [13]The second basis on which the appellant alleges that there was a failure to include the consent of the owners of the Land is that there was no express mention in the consent of the Adjoining Land. The consent of the body corporate[8] was in the standard form provided pursuant to the Sustainable Planning Act 2009 (“SPA”).[9] It stated that the consent was:
“to the making of a development application under the Sustainable Planning Act 2009 by Colliers International Consultancy Pty Ltd on the premises described above for the purposes of Material Change of Use for Shopping Centre.”[10]
- [14]The obligation to provide the consent of the owner of the land is mandated in SPA in broad terms. Section 263(1) merely states that the consent of the owner of the land “the subject of an application is required for its making” if the application is for, inter alia, a material change of use of premises or reconfiguring a lot. There is no requirement that the consent of the owner of the land must make reference to land other than land it owns which is the subject of a development application. No particular form of words is required to be used and the official form suggests the description of the proposed development should be in general terms.[11]
- [15]Accordingly I find that the committee of the body corporate was not obliged to refer to the Adjoining Land in the consent it gave and that the consent was sufficient and lawful.
Did the Development Application properly identify all aspects of development?
- [16]The appellant submits that the Development Application did not identify or seek any approval for the necessary reconfiguration of lots which is ultimately necessary for the proposed development to occur. In the course of argument Mr Skoien, who appeared on behalf of the appellant, conceded that this could be made by a separate development application, and that he could not “point to any particular impediment to the assessment of the application for material change of use” in the absence of a development application for a reconfiguration.[12] Mr Skoien requested that “this issue of reconfiguration” be considered in the context of the futility point.[13] In the circumstances I consider the appellant to have abandoned its application for determination of the second preliminary issue. If I am wrong in this regard there was no merit in it in any event.
Is the assessment of the Development Application futile?
- [17]In order to give effect to any reconfiguration approval which is necessary for the proposed development to proceed there will need to be the passing of a resolution of the members of the body corporate without dissent. This is because it will be necessary to record a new community management statement which is reflective of the reconfiguration necessary to give effect to the proposed development.[14] The appellant submits that in circumstances where it has indicated that it will not consent to this nor will it consent in the future, there is no prospect of the passing of the resolution necessary to allow the proposed development to proceed. It is asserted that the appeal (although instituted by the appellant) is therefore a futility.
- [18]Courts are reluctant to accede to such arguments.[15] However the provisions of the BCCMA make such an argument extremely difficult to mount as they provide for an adjudicator with broad powers to resolve such a dispute.[16] A successful example of this process was evidenced in the recent decision of Albrecht v Ainsworth & Ors[17] where the Court of Appeal considered the remedies available under the BCCMA to resolve an impasse. Having regard to this, the appellant’s adoption of such an obstinate position cannot be said to bring about the consequence that the proposed development, and any court proceedings which need to be navigated in order for it to occur, are futile.
Conclusion
- [19]I find that the Development Application included the lawful consent of the owners of the Body Corporate Land. I further find that the assessment of the Development Application and any court proceedings consequential upon the making of the Development Application are not futile.
Footnotes
[1] Affidavit of Holly Michele Christmas Whitcroft filed 21 June 2016 and Ex 4.
[2] Ibid.
[3] [2012] QCA 306.
[4] Ibid at [25] – [26].
[5] Rakaia Pty Ltd v Body Corporate for “Inn Cairns” CTS 16010 op cit at [40], [42] and [43].
[6] Ex 1, para 2.10.
[7] Ibid, para 2.11.
[8] Ex “RJH-9” to the affidavit of Richard John Holmes filed 13 June 2016.
[9] Ex 5.
[10] Ex “RJH-9”.
[11] Ex 5.
[12] T1-15, lines 5 – 35.
[13] T1-16, lines 45-47.
[14] BCCMA s 62 and affidavit of Holly Michele Christmas Whitcroft filed 23 June 2016, Ex “HMW-10”.
[15] See for example Walker v Noosa Shire Council [1983] 2 Qd. R 86.
[16] BCCMA s 276.
[17] [2015] QCA 220.