In brief

The case of MTAA Superannuation Fund (Flagstone Creek and Spring Mountain Park) Property Pty Limited v Logan City Council & Hope Island Consortium Pty Ltd [2016] QPEC 34 concerned an appeal in the Planning and Environment Court by MTAA Superannuation Fund against the decision of the Council to approve a development application for a material change of use - shopping centre (expansion) over land at Bushman Drive,

Jimboomba, which was relevantly partly freehold land and land owned by a body corporate.  
MTAA Superannuation Fund made an application to the court requesting that it determine the following preliminary legal issues prior to the merits hearing progressing to a hearing and determination by the Court:

(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
(c)           whether the assessment of the development application was futile

The preliminary legal issues raised by MTAA Superannuation Fund involved matters of planning and property law.

The Court found that the consent of the owners of the land was properly provided by Hope Island Consortium

MTAA Superannuation Fund contended the following:

(a)            Hope Island Consortium did not obtain the consent of the body corporate to the making of the development application, as:
 
(i)             such consent would be required to be given by way of a resolution of the members of the body corporate without dissent, as the decision to consent to the making of the development application was a restricted issue under section 100(2) of the Body Corporate and Community Management Act 1997 (BCCMA) and 18(1) of the Body Corporate and Community Management (Commercial Module) Regulation 2008 as it would change the rights, privileges or obligations of the owners of the lots included in the community titles scheme; and 
(ii)            MTAA Superannuation Fund was a member of the body corporate and did not provide its consent (first issue).
 
(b)           The proposed consent of the body corporate was the only consent to the making of the development application over the body corporate land and not the adjoining land (second issue).

In relation to the first issue, Hope Island Consortium contended that the decision of the body corporate to consent to the making of the development application was not a decision on a restricted issue. In this regard, Hope Island Consortium sought to rely on the case of Rakaia Pty Ltd v Body Corporate for "Inn Cairns" Community Tittles Scheme 16010 [2012] QCA 306, in which the Court of Appeal was required to determine whether or not a resolution of the committee to approve a lot owner to make a development application to the Cairns Regional Council to convert its lot and car park (which was located on common property) from holiday accommodation to a multiple dwelling unit was a decision on a restricted issue. The Court held that the meaning "decision to change" should be given an ordinary meaning and accordingly held that the resolution passed by the body corporate did not effectuate a change to anything. Rather, the decision was only to consent to the making of the development application. 

The Court relied on the case of Rakaia in determining that the consent of the body corporate was not a decision on a restricted issue.

In relation to the second issue, the Court noted that a broad approach is to be taken in considering the obligation to provide the consent of the owner of land. In this regard, the Court noted that section 263(1) of the Sustainable Planning Act 2009 provided that the consent of the owner of the land the subject of the application was required for its making and there was no requirement that the consent of the owner of the land must make reference to land other than land the owner owned. 

The Court was subsequently satisfied that the body corporate was not obliged to refer to the adjoining land in the consent it gave and the consent was sufficient and lawful.  

The Court found that the development application did properly identify all aspects of the development

MTAA Superannuation Fund contended that the development application was deficient as Hope Island Consortium did not identify or seek an approval for a development application for reconfiguring a lot.  
Over the course of the hearing, MTAA Superannuation could not point to any particular impediment to the assessment of the development application in the absence of a development application for a reconfiguration of a lot.  Accordingly, the Court considered that MTAA Superannuation Fund had abandoned this point and in the event that it did not, the Court was of the view that there was no merit in this point.
The Court found that the assessment of the development application was not futile
MTAA Superannuation Fund contended that the assessment of the development application was futile as:

(a)            in order for an approval of the development application to be implemented, it would require the passing of a resolution of the members of the body corporate without dissent;

(b)            MTAA Superannuation Fund was a member of the body corporate and would not provide its consent

Hope Island Consortium contended that despite MTAA Superannuation Fund not providing its consent, the assessment of the development application was not futile as Hope Island Consortium was able to refer the matter to an adjudicator under the BCCMA and following that the Court, both of whom have broad powers to resolve such a dispute.

The Court found comfort in the case of Albrecht v Ainsworth & Ors [2015] QCA 220 which dealt with a similar issue and was consequently not persuaded by MTAA Superannuation Fund and found that the assessment of the development application was not futile. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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