LANDLORD AND TENANT – AGREEMENT FOR LEASE – VOID UNDER PLANNING LEGISLATION – SUMMARY PROCEEDING FOR RECOVERY OF LAND
Whether purported lease arrangement void as subdivision without planning consent – subdivision includes division of land by lease into parts available for separate occupation or use – exception for leases for a term of not more than 12 years – exception for leases of part of a building – not lease arrangement for part of a building – severance of options to renew to bring below 12 year threshold not available – order for possession made.
Planning Act (NT), s 2, s 3, s 5, s 30, s 33, s 35, s 36, s 44, s 46, s 63, s 162 Supreme Court Rules (NT), O 53
Butt, Peter, Conveyancing Practice and the Law: Leases and Subdivisions (2002) 76 Australian Law Journal
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Centrecorp Aboriginal Investment Corporation Pty Ltd v Memorial Bowls Club Alice Springs Inc [2018] NTSC 39
Case
[2018] NTSC 39
Decision Date
CaseChat Overview and Summary
In the Federal Circuit Court, Centrecorp Aboriginal Investment Corporation Pty Ltd initiated proceedings against Memorial Bowls Club Alice Springs Inc concerning the validity of a lease agreement for a portion of land in Alice Springs, Northern Territory. The plaintiff, Centrecorp, is the owner of Lot 9914, Town of Alice Springs, which includes an outdoor bowling green, a concourse walkway, fixed seating, fixed shade stands, a clubhouse, and a shed. The defendant, Memorial Bowls Club, sought to lease a section of this land to continue its lawn bowls club operations. The central issue was whether the lease arrangement was void under section 63 of the Planning Act (NT), which prohibits certain land subdivisions without planning consent.
The court had to determine if the lease arrangement constituted a subdivision of land without planning consent, as per section 63 of the Planning Act. A subdivision, for the purposes of the Act, includes the division of land by lease into parts available for separate occupation or use. However, exceptions exist for leases with terms of no more than 12 years and for leases of part of a building. The lease in question was for five years with two options to renew, totalling 17 years, and did not involve a part of a building but rather various outdoor and outdoor/indoor components of the land. The court needed to assess whether the lease fell within any exceptions and if the severance of renewal options could render it compliant with the Act.
The court held that the lease arrangement constituted a subdivision under the Act, as it divided the land into parts for separate use, namely the outdoor areas for the bowling green and walkway, and the indoor areas for the clubhouse and shed. Given the lease's total term of 17 years, it did not fall under the 12-year exception. Furthermore, the lease did not pertain to a part of a building, thus the second exception did not apply. The court ruled that the lease arrangement was void under section 63 of the Planning Act and granted Centrecorp an order for possession of the land.
The court ordered that Centrecorp Aboriginal Investment Corporation Pty Ltd recover possession of the land from Memorial Bowls Club Alice Springs Inc, deeming the lease arrangement void due to its violation of the Planning Act. The court found that the lease constituted a subdivision without planning consent, as it divided the land into separate parts for distinct uses, and did not meet the exceptions provided by the Act. The total term of the lease, including options to renew, exceeded the 12-year limit, and the leased areas did not qualify as parts of a building. Consequently, the court upheld Centrecorp's claim for possession of the land.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The issue for determination is whether a purported lease arrangement between the plaintiff and the defendant is rendered void by operation of s 63 of the Planning Act (NT).Facts The plaintiff is the registered owner of Lot 9914, Town of Alice Springs situate at 127 Todd Street, Alice Springs in the Northern Territory of Australia (the Land). The Land was previously owned by an incorporated association which operated a community club on the Land. The previous owner also allowed other parties to use and occupy parts of the Land for the conduct variously of a hairdressing business, a health and fitness business and a lawn bowls club. The defendant is an incorporated association which operates the lawn bowls club. The arrangement between the previous owner and the defendant was informal in nature, under which the defendant’s members had use of the community club’s facilities and the defendant was responsible for the maintenance and upkeep of the bowling green. The previous owner of the Land was placed into voluntary administration in March 2012 and ceased operation of the community club. The previous owner of the Land was subsequently placed into liquidation and the Land was offered for sale. The plaintiff purchased the Land on 29 August 2013. Following that purchase a new association was incorporated to operate the community club (Memo Club Inc). The plaintiff subsequently granted a lease of part of the Land to the Memo Club Inc and the community club recommenced operation on 16 June 2014. At or about the same time, the plaintiff sought to formalise the use and occupancy arrangements with the hairdressing business, the health and fitness business and the lawn bowls club. As part of that process, on 11 June 2014 the plaintiff and the defendant executed a document which purported to grant a lease of part of the Land to the defendant for the purpose of continuing its operation of the bowls club. Both parties were represented by solicitors in that transaction. The lease document provided for a five year term commencing on 1 June 2014 with two options to renew of five years each. The lease document provided for rent in the amount of one dollar per annum, and for the defendant to pay 19.07 percent of the municipal rates levied in respect of the Land. The part of the Land purportedly demised under the lease document includes an outdoor bowling green constituted by natural turf; a lined concrete ditch around the perimeter of the bowling green approximately 15 centimetres deep and 20 centimetres wide, the outside wall of which rises approximately 25 centimetres higher than the turf surface of the bowling green; a concourse walkway constituted variously by concreted and grassed areas up to two metres in width running around the perimeter of the bowling green; fixed seating; and fixed shade stands. That part of the Land described in the lease document also includes part of a building which is used as a clubhouse and toilets, and part of a shed used to store equipment.