Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2023
  4. Spice Apartments Residential Management Pty Ltd ATF SARM Trust v Brisbane City Council - [2023] QPEC 2

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Spice Apartments Residential Management Pty Ltd ATF SARM Trust v Brisbane City Council[2023] QPEC 2

Spice Apartments Residential Management Pty Ltd ATF SARM Trust v Brisbane City Council[2023] QPEC 2

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Spice Apartments Residential Management Pty Ltd ATF SARM Trust v Brisbane City Council [2023] QPEC 2

PARTIES:

SPICE APARTMENTS RESIDENTIAL MANAGEMENT PTY LTD ATF SARM TRUST

(Applicant)

v

BRISBANE CITY COUNCIL

(First Respondent)

BODY CORPORATE OF SPICE APARTMENTS CTS 49000

(Second Respondent)

FILE NO/S:

1881/2022

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

10 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2023

JUDGE:

Everson DCJ

ORDER:

Originating Application dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – whether development application was a properly made application – whether the development application must be accompanied by the written consent of the Second Respondent as owner of the common property in the buildings.

CASES:

Bartlett v Brisbane City Council [2004] 1 Qd R 610.

Ferreyra v Brisbane City Council [2016] QPELR 334.

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 501.

Savage & Anor v Cairns Regional Council [2016] QCA 103.

Trowbridge v Noosa Shire Council & Ors [2018] QPELR 501.

LEGISLATION:

Planning Act 2016

COUNSEL:

E J Morzone KC and D C Whitehouse for the Applicant

B D Job KC and M J Batty for the First Respondent

H M Stephanos for the Second Respondent

SOLICITORS:

Mahoneys Solicitors for the Applicant

City Legal for the First Respondent

Grace Lawyers for the Second Respondent

Introduction

  1. [1]
    The applicant operates a property management business.  Several owners of lots contained within the Spice Apartments Community Titles Scheme (“the CTS”) have appointed it to manage their individual lots in the CTS.  The second respondent is the body corporate for the CTS, which comprises two 15 storey buildings (“the buildings”) containing a total of 274 residential lots and common property located at 23-25 Bouquet Street, South Brisbane (“the land”).[1]
  2. [2]
    On 22 December 2020, the applicant submitted a development application on behalf of a number of lot owners seeking a development approval for a material change of use for Short-term accommodation over part of the land.[2]  An amended development application was subsequently lodged on 5  March 2021, seeking approval for 63 of the multiple dwelling units scattered throughout the buildings to be used for Short-term accommodation.[3]  On 3 June 2022, the first respondent issued an action notice in relation to the amended development application (“the Action Notice”).[4]  It stated that the application was not properly made and that for it to be deemed properly made, the applicant was required to provide the signed owner’s consent of the second respondent.[5]
  3. [3]
    In its amended originating application the applicant seeks declarations to the effect that the premises relating to the development application did not include the common property in the CTS, and that the development application complied with the requirements of s 51 of the Planning Act 2016 (“PA”) and was not required to be accompanied by the written consent of the second respondent as the owner of the common property in the CTS.  Further declarations are also sought to the effect that in making the decision to issue the Action Notice in the terms set out above, the first respondent made a decision that involved an error of law, or took into account an irrelevant consideration, or was a decision so unreasonable that no reasonable assessment manager could make it.  Thereafter, consequential orders are sought setting aside the Action Notice and requiring the respondent to proceed to assess and determine the development application.

Factual Background

  1. [4]
    The original development approval giving rise to the CTS dated 17 June 2014, was for Centre Activities - Multi-Unit Dwelling, Shop, Office and Restaurant.[6]  In the report which accompanied the application leading to the development approval, the activities the subject of the development approval as they were defined in the respondent’s planning scheme at the relevant time, are set out.  Relevantly, Multi-Unit Dwelling was defined as inter alia, “a use of premises as the principal place of longer term residence by several discrete households, domestic groups or individuals irrespective of the building form.”[7]
  2. [5]
    As noted above, the development application giving rise to the Action Notice sought a development application for a material change of use of Short-term accommodation which is defined in the respondent’s planning scheme as, inter alia the use of premises for “providing accommodation of less than 3 consecutive months to tourists or travellers”.  Examples include “Motel, backpackers, cabins, serviced apartments, accommodation hotel and farm stay”.  The term is expressed to not include “Hostel, rooming accommodation, tourist park”.[8]
  3. [6]
    The need for the development application resulting in the Action Notice is succinctly stated in the town planning report which accompanied it in the following terms:

Short term accommodation in the PC1 Principal Centre (City Centre) zone where the subject site is located is accepted development subject to requirements under the Brisbane City Plan 2014 (City Plan) and does not require Council approval, however the site is subject to Flood overlay mapping which triggers the requirement for a Code Assessable development application to be made to Council.[9]

  1. [7]
    The reasoning behind this trigger is explained in the Flood Risk Assessment which accompanied the development application.  Therein, it is stated that Short-term accommodation “is considered to be a difficult to evacuate use” and that a “flood risk assessment is required to satisfy PO10 of the Flood overlay code.”[10]  Subsequently, the Flood Emergency Procedure in the proposed Flood Emergency Management Plan contemplates a flood warden co-ordinating evacuation via means which include a loudspeaker announcement and door knocks in the event of the need to evacuate arising.[11]  It appears that the respondent considers Short-term accommodation a very different use from a flood safety perspective to the approved uses of the land.
  2. [8]
    It is clear on the evidence before me, that the applicant has been conducting a significant Short-term accommodation use from multiple dwelling units in the CTS for a lengthy period of time.  The unchallenged evidence of the chairperson of the second respondent, Bronwyn Price, is that the applicant or its agents have been conducting this use since August 2016.[12]  Ms Price then documents a number of respects in which the use of Short-term accommodation being conducted by the applicant is materially different in terms of its impacts upon the common property, to the approved uses.[13] 
  3. [9]
    These impacts arise from both the conduct of guests of lots used for Short-term accommodation in the buildings and the services required to service this use.  Firstly, there are impacts on vehicular access and parking facilities which include congestion on the driveway and in the car park, and Short-term accommodation guests parking in visitor car parks or car parks not assigned to them.  This use of the land also results in such guests loitering in the reception areas with their baggage.  It results in hallways being clogged with cleaning trolleys and temporary beds, which also causes damage the walls.  It results in the blocking of garbage disposal infrastructure.  This use also results in the pool area being regularly utilised for large, rowdy parties.  The unchallenged observations of Ms Price are confirmed by uncontested evidence given by Mr  Patterson, another resident.[14]  It appears that the First Respondent was at least aware of most of these impacts prior to issuing Action Notice.[15] 
  4. [10]
    I am satisfied on the facts before me that the conducting of the Short-term accommodation use by the applicant has resulted in not only a material intensification of the use of the common property but also damage to the common property in a way that is unlikely to have occurred had this use not been (apparently unlawfully) conducted on the land.  It is the Short-term accommodation use that attracts people in large numbers who bring luggage, and require clean linen for a brief period.   They are the people who may require extra beds in their units during their stay.  They appear to regularly include individuals who do not care where they park, how much noise they make and whether they upset residents of the buildings.  They are, on the evidence before me, a demographic regularly looking for a good time, in circumstances where they are not staying for a long time. 

Discussion

  1. [11]
    Pursuant to s 51 of the PA, a development application must be accompanied by the written consent of the owner of the premises relating to the application where the applicant is not the owner and the application is for a material change of use of the premises.[16]  It is uncontentious that the second respondent is the owner of the common property as defined in Schedule 2 of the PA as it would be entitled to receive the rent for the common property if it were rented to a tenant.  The term “material change of use” is defined in Schedule 2 of the PA as both “the start of a new use of the premises” and “a material increase in the intensity or scale of the use of the premises”.  As Bowskill QC DCJ (as Her Honour then was) observed in Ferreyra v Brisbane City Council proceedings, such as the originating application, which seek declaratory relief, are analogous to judicial review proceedings and the burden is upon the applicant to demonstrate the respondent’s decision was affected by jurisdictional error.[17]
  2. [12]
    The applicant submits that the consent of the second respondent was not required as the proposed use of Short-term accommodation only seeks to use the common property consistently with its ordinary use and established function in accordance with the already approved uses of the land.  It relies in particular upon two decisions of the Queensland Court of Appeal as authority for the argument it advances.  Firstly, in Bartlett v Brisbane City Council the Court of Appeal found, in circumstances where a lot owner in a building sought to fix laminated glass panels to enclose a balcony and reduce noise impacts, that “No part of the common property was involved or impacted upon by the respondents’ proposal”.[18]  In delivering the judgment of the Court of Appeal, Jones J relied upon the remarks of Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council in the following terms:

In any such scheme for the control of land use the two critical integers, land and use, each involves a question of definition, what land and what use? The intending user of land will, in his application for consent, have to specify these two integers, but it will be one of them, the integer of use, that will dictate the precise identity and extent of the other integer, the land the subject of the application.  That is a necessary consequence of the fact that the consent being sought is consent for a particular purpose.  The land is merely the passive object which is being used; the active integer, use, will determine its extent.[19]

Unsurprisingly, the Court of Appeal held that the consent of the body corporate as the owner of the common property in the building complex was not required under the equivalent provision of the Integrated Planning Act 1997 to s 51 pf the PA, which applied at that time.

  1. [13]
    The decision in Bartlett was applied in Savage & Anor v Cairns Regional Council.[20]  On the facts of that case, 24 unit owners in a block of 39 strata title units applied for approval for a material change of use from “Holiday Accommodation” to “Holiday Accommodation/Multiple Dwelling”.  The decision of the primary judge (Morzone KC DCJ) that the consent of the body corporate as the owner of the common property was not required under the equivalent provision of the Sustainable Planning Act 2009 which then applied, was upheld by the Court of Appeal.  His reasoning in this regard is quoted in the judgment of McMurdo JA in the following terms:

[103] The primary judge reasoned that the consent of the body corporate:

‘…was only required if the proposal involved the use of the common property for particular purposes other than the ordinary right of access to and from the lots.  The use of the common property for its established function providing access does not require its inclusion as part of the land.’

[104] His Honour distinguished this ‘from a case where parts of the common property are an important part of the proposed use or there is a material increase in the intensity or scale of the use of the common property.’[21]

  1. [14]
    On the facts before me set out above, the use of a significant number of the lots in the CTS, (apparently unlawfully) for Short-term accommodation, has led to a material increase in the intensity or scale of the use of the common property.  Unlike the situation considered in Trowbridge v Noosa Shire Council & Ors, the evidence goes way beyond mere “speculative assertions about the increased use of the common property and infrastructure in it”.[22]  The categorisation of whether there is a material increase in the intensity or scale of the use of the common property will always depend upon the facts before the decision maker. 

Conclusion

  1. [15]
    The applicant has not demonstrated any error on the part of the first respondent in deciding to issue the Action Notice.  The evidence before it at the relevant time and the evidence before me demonstrates no error in the assessment of the facts relating to the impacts of the proposed Short-term accommodation use on the common property, and therefore the need for the consent of the second respondent to the making of the development application.
  2. [16]
    The application is dismissed.

Footnotes

[1]Affidavit of Bronwyn Price, filed 27 September 2022, paras 1, 4 and 5.

[2]Ex. 1, p 2, para 1.

[3]Ex. 1, p 293 and pp 326 – 329.

[4]Ibid, p 2, para 4.

[5]Ibid, p 436.

[6]Affidavit of Benjamin Lee Sandford, filed 24 October 2022, Ex. “BLS-3”, pp 167 – 169.

[7]Ibid, p 31.

[8]Ex 2, p 199.

[9]Ex 1, p 128.

[10]Ibid, p 57.

[11]Ibid, p 64.

[12]Affidavit of Bronwyn Price, filed 27 September 2022, para 12.

[13]Ibid, paras 27 – 38, 43 – 48.

[14]Affidavit of Michael Alexander Patterson, filed 1 November 2022.

[15]Ex. 1, pp 681 – 683.

[16]Planning Act 2016, s 51(2).

[17][2016] QPELR 334 at 336, [5] and [6].

[18]Ibid, at 616.

[19](1980) 145 CLR 485 at 501.

[20][2016] QCA 103.

[21]Ibid at [103] - [104].

[22][2018] QPELR 501 at 508 [23].

Close

Editorial Notes

  • Published Case Name:

    Spice Apartments Residential Management Pty Ltd ATF SARM Trust v Brisbane City Council

  • Shortened Case Name:

    Spice Apartments Residential Management Pty Ltd ATF SARM Trust v Brisbane City Council

  • MNC:

    [2023] QPEC 2

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    10 Feb 2023

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
Bartlett v Brisbane City Council[2004] 1 Qd R 610; [2003] QCA 494
1 citation
Jump To
Cite 1 - [2004] 1 Qd R 610
Ferreyra & Ors v Brisbane City Council & Anor (2016) QPELR 334
2 citations
Jump To
Cite 1 - (2016) QPELR 334
Cite 2 - (2016) QPELR 334
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 C. L. R. 485
2 citations
Jump To
Cite 1 - (1980) 145 C. L. R. 485
Cite 2 - (1980) 145 C. L. R. 485
Savage v Cairns Regional Council [2016] QCA 103
3 citations
Jump To
Cite 1 - [2016] QCA 103
Cite 2 - [2016] QCA 103
Cite 3 - [2016] QCA 103
Trowbridge v Noosa Shire Council & Ors [2018] QPELR 501
2 citations
Jump To
Cite 1 - [2018] QPELR 501
Cite 2 - [2018] QPELR 501

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.