In late 2020, the Queensland Planning and Environment Court dismissed an application by a lot owner to appeal the decision notice of Cairns Regional Council made under the Planning Act 2016 (Qld) (Act), to approve the conversion of an exclusive use area in the Aquarius Building – a residential community title scheme located in Cairns.
Although the Court held that the body corporate committee could consent to the development application, its critical in each case to determine whether the consent sought is a mere consent or one that changes rights of body corporate members. In the latter case, a resolution of the body corporate at a general meeting is required to provide consent, as the decision would be a restricted decision which the committee alone does not have power to make.
In Danseur Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 64 (Danseur), the owners of lot 83 in the scheme (the Second Respondent) made an application under the Act for a minor change to a historical permit, in order to change a roof top garden area to a “covered and partially enclosed patio area and associated lift”. The Act requires these applications to be accompanied by the written consent of the owner of the premises subject of the application. The Second Respondent sought the consent of the body corporate to the making of the application as it applied to the common property for the scheme.
The committee resolved to provide body corporate consent to the application, as the owner of the common property, by signing the relevant form and applying the body corporate seal.
The applicant submitted that the Council’s decision notice was void on the ground that, the body corporate committee resolution to consent to the lot owner’s minor change application to Council was unlawful. The basis of the applicant’s argument was substantially that the decision was a restricted decision for the committee and should have been decided by resolution of the body corporate at general meeting. Similar arguments have been unsuccessful in Rakai Pty Ltd v Body Corporate for “Inns Cairns” Community Titles Scheme 16010 [2012] QCA 306 (Rakai) and MTAA Superannuation Fund Pty Ltd v Logan City Council & Anor [2016] QPEC 34 (MTAA).
Section 35 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) describes that the lots owners in a scheme own the common property (as tenants in common) in proportion to the interest schedule lot entitlements of their lots. This ownership is inseparable from the owner’s interest in their lot however, under the Land Title Act 1994 (Qld), the Queensland Titles Registrar creates an indefeasible title for that common property in the scheme. Accordingly, the body corporate of the scheme is the registered proprietor of the indefeasible title for the common property and where the written consent of the owner of premises subject to an application under the Act is required, the body corporate is the owner of the common property.
The BCCMA provides that a decision of the committee is a decision of the body corporate, except for a decision on a restricted issue for the committee.1 The various regulations identify that a decision is a restricted issue decision for the committee if it is a decision “changing rights, privileges or obligations of the lot owners”. 2
The Courts have considered this term in the context of similar arguments and helpfully, in Rakaia Gotterson JA provided the following commentary (which was applied by Everson DCJ in MTAA):
“[40] ... 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. ... [it manifested] a consent to the making of an application for development approval ... 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.”
In Danseur, Morzone QC DCJ agreed that “the decision needed to itself effectuate a change of the substantive prescribed character” and in this case, the decision by the committee to consent to the Second Respondent’s application to Council was not a restricted decision under the regulation applying to the scheme as it was “mere consent and not one (a decision) to effect a change of rights”. The ultimate decision to allow or give effect to the change was vested in the Council as the planning body.
By ordinary resolution of the body corporate, bodies corporate should consider whether decisions to consent to a development application under the Act are restricted issues for the committee to decide, keeping in mind that any such resolution must be recorded in the body corporate register.3
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Footnotes
1 Section 100(2) Body Corporate and Community Management Act 1997 (Qld)
2 Section 52 (1) Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld)
3 Section 230 Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld)