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[2025] QCA 3
The applicant was found guilty of contravening s 29 of the Body Corporate and Community Management Act 1997 (the Act) by failing to notify the respondent of a change affecting a community titles scheme prior to seeking development approval in relation to a new subdivision plan. An appeal by way of rehearing was dismissed by the District Court. A key issue in both hearings was whether there was a “current development approval for the scheme” under s 29 of the Act or whether it had lapsed. If there was not a “current development approval for the scheme” then no notice had been required. Her Honour, Brown AJA, delivering the Court’s reasons, found that in the circumstances of a progressive development the phrase “current development approval for the scheme” refers to the development approval that is current as recorded in the “community management titles scheme” and not “current” under the Planning Act 2016. “[I]t is a development approval ‘for the scheme’ referring to the approval which governs the development of the scheme as a whole intended to be developed progressively, including in stages and is current at the time of the existing community management statement.”
Mullins P, Boddice JA and Brown AJA
31 January 2025
The respondent is the body corporate for a Community Title Scheme consisting of 54 residential lots and one undeveloped lot; the applicant applied in 2020 for a development approval in respect of the undeveloped lot. [4]. Section 29 of the Body Corporate and Community Management Act 1997 requires that a notice is given to a body corporate of a scheme and buyers of a proposed lot in a scheme in prescribed circumstances. [5]. One of those circumstances is where a developer intends to change a scheme in a way that “would not be consistent with the current development approval for the scheme”.
It was uncontentious that no notice had been given by the applicant to the respondent in respect of the proposed development of the undeveloped lot. [5]. The applicant was ultimately found guilty of contravening s 29, and an appeal to the District Court by way of re-hearing on the evidence before the Magistrate was dismissed. [6]–[9].
The question dealt with by the Court of Appeal which arises for reporting is whether there was a “current development approval for the scheme” or whether it had lapsed. [9]. If the approval had lapsed, then the offence under s 29 could not be made out.
The meaning of “current development approval for the scheme”
The applicant contended that for the purposes of s 29 of the Body Corporate and Community Management Act 1997, the phrase “current development approval” referred to a development approval which was current under the Planning Act 2016. [29]. The respondent argued that the word “scheme” in the phrase “current development approval for the scheme” refers to the “community titles scheme” as defined in s 10 of the Body Corporate and Community Management Act 1997, and related to the approval affecting all lots contained in the scheme and common property. [32]. The respondent’s submission was, in effect, that the “current development approval for the scheme” should be taken to be the development approval affecting all lots contained in the scheme which was “current” at the time that the community management scheme was recorded by the relevant register in a community management statement. [34].
Rejecting the applicant’s suggestion that the Court should not have regard to explanatory materials in interpreting s 29, her Honour identified the community management statement as being “basic” to the identification of a community titles scheme. [36]–[41]. Her Honour concluded that the “current development approval” refers to the approval currently recorded under the community titles scheme and not, as the applicant had contended, to whether an approval could be considered “current” under distinct provisions of the Planning Act 2016. [48].
Her Honour considered this the proper construction for a number of reasons. These included: the location of s 29 within the Body Corporate and Community Management Act 1997 more broadly, the inclusion of the phrase “for the scheme” in the provision, and the purpose of the provision as set out in the explanatory note to the legislation which said that the intent was to provide notice to a body corporate where a scheme is to be changed by a developer in a manner which differs from what is disclosed in the community management statement. [49].
Her Honour distinguished the purposes of s 29 of the Body Corporate and Community Management Act 1997 from the Planning Act 2016 broadly, noting that the former is directed towards providing information to owners of lots and potential buyers into the development the subject of a community titles scheme, while the latter is concerned with whether a development proceeds in accordance with a development approval. [53].
Disposition
The appeal was dismissed.
B Wilson of Counsel