Joseph B Pty Ltd v Brisbane City Council

[2005] QPEC 86

[2005] QPEC 086

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No BD729 of 2005

JOSEPH B PTY LTD	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 29/08/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.5.23(3),s 4.1.5A - application to extend currency period for a development approval not accompanied by consent in writing of the owner of affected land, which was a body corporate - consent subsequently obtained - court applied s 4.1.5A

HIS HONOUR: The appellant applied under section 3.5.22 of the Integrated Planning Act 1997 (IPA) for extension of the currency period of a development approval which in real terms will permit the construction of additional apartments or lots on a development site where in the recent past nine lots had been developed. The Council rejected the application for extension on the merits, whereupon the appellant instituted its appeal.

In the course of considering its attitude to the appeal the Council has changed its view about the merits, but identified a deficiency in the application - which failed to contain the owner's consent as required by section 3.5.22(3) on the basis that the land affected by the proposed development is common property, in which event, of course, the Body Corporate's consent is required.

There appears to be some confusion regarding the status of the land.  The Body Corporate's position is spelled out in the chairman's letter of 19th of August 2005 addressed to the Council: 

"On 19 September 2004, Joseph B Pty Ltd lodged a request to extend the currency period for the development permit previously issued by you in respect of the land situated at 35 Windsor Road, Red Hill and described as Lot 1 on BUP 6709 (Formerly Lot 47 on
RP 197358) on 21 January 2000 ("the Application").

The land comprises of common property owned by the Body Corporate.

Although the company did not attach the written consent of the Body Corporate with its application, it has held the Body Corporate's consent in respect of the application at all times.
We understand the company was required to attach the Body Corporate's consent with the application, and that in failing to do so it has not complied with Section 3.5.22 of the Integrated Planning Act 1997.

In light of the Body Corporate's past and continuing position in respect of the Application, we request you consider granting approval of the Application to the company."

Whereas it asserts that the land is common property, Mr Barakat's affidavit, to which the letter is an exhibit, asserts that "At all material times the appellant ... was the owner of the land."  Perhaps that is describing an historical situation, because the deponent goes on. 

"The appellant required the consent of the Body Corporate to develop part of the common property in accordance with the approval."

It is common ground that the consent of the Body Corporate was required in that it was the owner of some, if not all, of the relevant land.

The importance of obtaining Body Corporate consent where it is the owner for purposes of section 3.5.22(3) seems to me obvious. Changes in the membership of a Body Corporate may well result in changes of view within the Body Corporate about the desirability of a proposed development. It cannot be the case, particularly when the concept of currency periods is part of the planning environment, that a Body Corporate's consent is taken to last indefinitely.

I understand from Ms King that her client is in the fortunate situation of owning sufficient numbers of lots in the scheme still so that it dominates, even if it does not totally control the Body Corporate. Although there have been some hiccups along the way with an earlier edition of the letter quoted rejected by the Council as inappropriate because it was undated and did not clearly speak of a current period, the appellant has had no difficulty in producing the requisite consent. It may well be spared the potential difficulties which a cursory reading of the Body Corporate and Community Management Act 1997 suggests may complicate obtaining new management statements and the like for staged developments. It is to be hoped that the processes of that legislation may lead to solutions being available where feuding interests within a Body Corporate cannot agree on a conclusion.

I reiterate the view I expressed in Falconer v. Brisbane City Council [2005] QPEC 058 that practical considerations indicate that an assessment manager such as the Council ought to be able to rely on a communication of the kind set out without, at least where there is no notice of an issue, having to confirm that all "i"s have been dotted and "t"s crossed from the point of view of the Body Corporate formulating its attitude.

There is still a need for the appellant to obtain relief from the Court under section 4.1.5A of the IPA because of the deficiency in its section 3.5.22 application which has now been revealed. The Body Corporate's consent should have been part of the application. No interests outside the Body Corporate have been affected. Public notification is not required in this situation. Every consideration points to the Court acting under section 4.1.5A which it will do.

The extension of the currency period is time-limited by condition 2 of the development approval conditions included in the development approval package attached to the Court's order.  The extension runs for 12 months from the date of the Court's approval which, of course, comes from today's order.  There will be an order in terms of the initialled draft.

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