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austlii:qld/QBCCMCmr/2026/73
General information, not legal advice.
QBCCMCmr
2026-03-10
Original judgment source is linked above.
The Body Corporate for Macrossan House (respondent)
Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and (3)(a)
Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)
COMMITTEE MOTIONS / REASONABLENESS - where the applicant sought the body corporate's consent to lodge a development application with the local council - where the body corporate declined to provide its consent - whether the body corporate acted unreasonably.
[1] This application is about the refusal of the Body Corporate for Macrossan House to give its consent for the applicant to submit a development application with the local city council.
[2] Macrossan House CTS 15493 is situated in Port Douglas, Queensland. It is comprised of 22 lots and common property and is governed by the Accommodation Module.
[3] The applicant, C1 Pty Ltd, is the registered owner of Lots 20, 21 and 22 in the scheme. I understand these lots are commercial in nature and are currently configured as office space. The applicant wants to redevelop and reconfigure the lots so they can instead be used as residential accommodation.
[4] In order to submit a development application to the local city council for approval to redevelop and reconfigure the lots, I understand the applicant requires the body corporate's consent as the landowner of the common property in the scheme.
[5] The applicant says it sought the body corporate's consent and attempted to provide conditions to address the concerns it raised about the development application. However, the applicant says that despite addressing the body corporate's concerns, it has continued to refuse to provide its consent.
[6] The applicant now seeks the following orders:
(a) Conditional upon conditions A to G below, the Body Corporate for the Macrossan House Community Titles Scheme 15493 (Body Corporate and Scheme), must give its consent, as the landowner of the common property in the Scheme, to the owner of lots 20, 21 and 22 in the Scheme (C1) lodging with the Douglas Shire Council a development application in substantially the same form as that submitted with the Applicant's motion on 23 July, 2025 (Applicant's Motion) and marked "Development Application".
Condition A: The Body Corporate's consent to the making of the Development Application is not (and is not to be taken as) consent of the Body Corporate to the Council's approval of the application of the Body Corporate's consent to the works described in (or permitted by) the Development Application being carried out.
Condition B(i): If the Development Application is approved, C1 will bear the costs associated with constructing and installing the new lift proposed in the Development Application.
Condition B(ii): If the Development Application is approved, the costs of maintaining the new lift proposed in the Development Application will be borne by C1 (including any lots subdivided from those lots) in equal shares.
Condition C: If the Development Application is approved, C1 must seek from the Body Corporate all consents and approvals that are required by the By-laws or the Body Corporate and Community Management Act 1997. C1 shall be responsible for the cost of installing, servicing, maintaining and repairing the services and utility infrastructure associated with the new bathroom and toilets.
Condition D: If the Development Application is approved and any building code or planning issues become apparent after the approval, the Body Corporate be given the opportunity to consider those issues and, if necessary, obtain expert advice prior to approving any works to be performed. C1 will bear the reasonable costs associated with any such works and advice.
Condition E(i): If the Development Application is approved and the development approval requires C1 to purchase any Common Property, that purchase will first require a resolution without dissent.
Condition E(ii): C1 will bear all costs, taxes and duties that arise because of any purchase of Common Property.
Condition E(iii): If the Development Application is approved, the Body Corporate may change lot entitlements and contributions by reference to the size and impact of any new Lots, prior to approving any works to be performed, (subject to compliance with the Body Corporate and Community Management Act 1997).
Condition F: If any works authorised by the Development Application are subsequently approved by the Body Corporate, C1 must ensure that construction works are not to be undertaken in the evenings (after 5pm) or weekends, public holidays or at any time between 1 April and 31 October.
Condition G: If the Development Application is approved, C1 will at its cost prepare a new CMS, addressing (at least) any proposed changes to Common Property and Lots, and any additional rights to be conferred on the new Lots.
(b) Within 14 days of order, any two members of the Committee must execute the document circulated with the Applicant's Motion and marked "Landowner Consent Form" (Landowner Consent) and to attach (or direct the Body Corporate Manager for the Scheme to attach) to it the Body Corporate seal and to return an original executed copy to the Applicant.
(c) Any member of the Committee is authorised to do any act, including without limitation to sign or re-sign any document that is reasonably required to provide, confirm or perfect the Landowner Consent.
(d) Such further or other order(s) as may be determined to be just and equitable for the purpose of determining this dispute.
[7] The applicant bears the onus to establish that the orders it seeks are warranted in the circumstances.
[9] The applicant lodged this application for adjudication on 17 September 2025.
[10] The commissioner invited submissions from the body corporate committee and all other owners in the scheme. The committee and one other owner in the scheme made submissions in response.
[11] The applicant inspected the submissions made in response and submitted a reply.
[12] A dispute resolution recommendation was made referring the file to department adjudication.[3]
[13] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, about (relevant to this dispute): a claimed or anticipated contravention of the Act or the CMS, or about the exercise of rights or powers or performance of duties under the Act or the CMS.[4]
[14] I am satisfied I have jurisdiction to determine this matter under the legislative dispute resolution provisions.
[15] The applicant says Port Douglas has changed significantly since Macrossan House was established and there is no longer the demand for commercial office space. It says the same is not true for residential accommodation and it is therefore seeking to use its lots for residential purposes.
[16] The applicant explains it requires the consent of the body corporate to make the development application to the applicable council to seek approval to change the use of its lots. However, it says the body corporate has inexplicably refused to provide its consent for the development application. It asserts the body corporate is acting unreasonably in this regard.
[17] The applicant says on 17 December 2024, it wrote to the scheme's committee requesting that the body corporate provide its consent for the development application (first motion). It says the committee had 6 weeks to either decide the motion or request an extension of time in which to make a decision on the motion. The applicant says the committee failed to do either within the applicable timeframe and accordingly, the committee is deemed to have refused the first motion.
[18] The applicant says that on 4 February 2025, it wrote to the body corporate's lawyers noting the deemed refusal of the first motion and expressing that it considered the refusal to be unreasonable. The applicant requested that the body corporate provide its consent to the development application within 7 days.
[19] The applicant says that on 10 February 2025, the committee purported to pass a resolution refusing the first motion and the next day the body corporate's lawyers set out the reasons for the committee's refusal in correspondence to the applicant. However, the applicant says the time for the committee to make a decision on the first motion had already lapsed and the subsequent reasons it provided are irrelevant to whether the deemed refusal was unreasonable contrary to the section 94 of the Act.
[20] I understand the parties subsequently attended a conciliation session, but the matter could not be resolved. The applicant says that following conciliation, it sought to identify all the issues and concerns held by the body corporate to the development application. To this end, it circulated a table and asked the body corporate to respond to the various issues.
[21] The applicant says the body corporate took more than 6 weeks to respond to the table despite the applicant following up with its lawyers. The applicant says no changes were made to the issues identified in the table and the body corporate requested that it submit a new motion for consent to the development application.
[22] The applicant says it requested that the body corporate confirm its concerns are those limited to the table it had circulated or if not, to provide any amendments. It says the body corporate did not respond. The applicant says that in the absence of any response, on 23 July 2025 it submitted a further motion seeking the body corporate's consent to the development application (second motion).
[23] The applicant says that as of the date of filing this application for adjudication, the committee had not decided the second motion nor requested an extension of time to consider the motion. Accordingly, it says the body corporate is deemed to have refused the second motion.
[24] The applicant says that although the body corporate provided no reasons for refusing the second motion, it previously articulated 8 reasons for refusing the first motion. These included:
[25] The applicant says each concern raised by the body corporate was addressed in the second motion. It says the deemed refusal of the second motion was unreasonable contrary to section 94 of the Act.
[26] The body corporate says the applicant's development application is not only proposing significant alterations to the applicant's lots, but also significant changes involving the common property and lot boundaries.
[27] The body corporate says that consideration of the development application from a planning standpoint is ultimately a matter for the council to consider and decide however, the proposed development will impact the body corporate and owners in the scheme in ways which are beyond the scope of the council's decision making process. It says adjudicators have recognised that such considerations may be reasonably considered by a body corporate where its consent as a landowner is required for a development application.
[28] In addition, the body corporate says it must consider any proposal - including the applicant's development application - having regard to its statutory obligation to administer the common property in the interest of all owners. It says the body corporate holds genuine concerns that the development proposal will have a significant impact on the scheme's common property which is owned by all owners as tenants in common.
[29] The body corporate says it does not "inextricably oppose" the development application, but rather it has raised concerns about the inherent difficulties the applicant will face in obtaining the required authorisations to give effect to the significant changes proposed in the development application including disposals of common property which will require a resolution without dissent.
[30] As background for the decisions being challenged in this application, the body corporate explains that at the scheme's annual general meeting held on 30 April 2024, the applicant submitted a motion which sought:
(a) The body corporate's consent to lodge the development application;
(b) Approval for the draft building format plan proposed by the applicant; and
(c) Approval for the lodgement of a new community management statement incorporating the changes to give effect to the amended plan.
[31] The body corporate says the motion failed to pass with 1 vote in favour, 10 votes against and 5 invalid votes.
[32] The body corporate says the applicant subsequently submitted a motion regarding the development application for the body corporate's consideration at committee level. It says this was submitted in or around 17 December 2024. It explains that due to the Christmas holidays, it was not until 10 January 2025 that the body corporate was able to engage lawyers to obtain advice about this motion.
[33] The body corporate says that notwithstanding the 6 week decision period ending on 28 January 2025, the committee proceeded to reasonably consider the motion and on 10 February 2025 it decided not to provide its consent for the development application. The body corporate says it communicated its decision to the applicant on 11 February 2025, outlining its concerns and explaining its reasons for not consenting to the development application.
[34] The body corporate says the applicant alleges that these reasons are irrelevant to determining whether the committee acted reasonably in making the decision on the motion. However, the body corporate says that despite its correspondence being issued outside the expiry of the decision period, it still held the concerns outlined in the correspondence at the relevant time and they remain relevant insofar as determining whether the committee acted reasonably in reaching its decision on the motion.
[35] The body corporate says that despite the concerns it raised about the development application, the applicant elected not to engage with the body corporate or provide a revised proposal which aimed to address those concerns, but instead elected to lodge a conciliation application arguing that the giving of consent is a mere procedural step to the making of the development application. The body corporate says this ignores the purpose of section 51 of the Planning Act 2016 (Qld) and goes against the long line of adjudicator decisions which have found that a body corporate may turn its mind to the development application when determining whether to provide its consent for the same.
[36] The body corporate says that following conciliation, it again confirmed its concerns to the applicant in an updated 'issues table' which it sent to the application on 7 May 2025. It invited the applicant to submit a further motion which addressed the concerns including clarifying certain aspects of the proposed development application. It says the body corporate was attempting to narrow the issues in dispute. The body corporate notes it was more than six weeks later that the applicant submitted a second motion to the committee for consent to the development application.
[37] The body corporate says it still held reasonable concerns about the second motion, primarily being those concerns communicated previously to the applicant on 11 February 2025 and 7 May 2025. It says it communicated its concerns to the applicant about the second motion. However, it says the applicant made no attempt to correspond with the body corporate and instead filed this application for adjudication at the earliest opportunity.
[38] The body corporate says it has not made a decision to refuse the applicant's second motion. Rather it is a 'deemed refusal' as the decision period has lapsed. However, it says that if the applicant submits a revised proposal that sufficiently addresses the body corporate's concerns, it would have no objections to the same. However, it says the second motions fails to sufficiently address the concerns and the body corporate still holds reasonable and genuine concerns about the development proposal.
[39] The body corporate has provided a list of concerns. To summarise, the body corporate says:
[40] The body corporate says the applicant has not discharged the onus of proving that the body corporate's conduct or decision making on the challenged motions was unreasonable.
[41] Florence Road Investments Pty Ltd (FRI) is the owner of Lots 18 and 19 in the scheme. It explains that Lots 18 and 19 are located, along with the applicant's lots, in the smaller building at the front of the scheme immediately adjacent to Macrossan Street. It says these are referred to in the applicant's application as the 'other commercial lots'.
[42] FRI says it considers the conditions the applicant has proposed for the body corporate to provide landowner's consent for the development application are reasonable and appropriate. It says the orders sought by the applicant are just and equitable and that it supports the applicant's application.
[43] The applicant maintains the deemed refusals of the first and second motions were unreasonable. It says an actual evaluation of the known facts, circumstances and considerations was required during the decision-making period, which the body corporate failed to undertake. It says if all relevant matters had been taken into consideration and irrelevant ones left out, there is no rational basis for the committee to have refused giving the body corporate's consent to the development application.
[44] The applicant argues section 50 of the Accommodation Module is self-executing and had already taken effect on 28 January 2025. It says the committee was therefore functus officio on 10 February 2025 when it purported to defeat the applicant's first motion. The applicant says the committee's latent opposition to the applicant's second motion are also legally irrelevant because the motion had already been deemed refused once the decision-making period lapsed before the body corporate provided a response.
[45] The applicant says it is necessary to start with precisely identifying the consent it is seeking. It says it is not seeking the body corporate's consent to the approval of the development application, nor its consent to undertake any of the works approved under the development approval (if granted). It is merely seeking the body corporate's consent to lodge the development application which is a procedural requirement under the planning legislation.
[46] The applicant argues that the line of authority in this jurisdiction of Accent Place,[5] Tech Plaza[6] and Paradise Island Apartments[7] should not be followed because they conflate consenting to the making of an application with consenting to the subject matter of the application and are plainly wrong.
[47] The applicant refers to the authority of Danseur Pty Ltd v Cairns Regional Council[8] and says Morzone KC DCJ correctly held of giving landowner consent:
...the decision was of mere consent and not one to effect a change of rights; instead the decision to allow the change was vested in the council as the responsible entity.
[48] The applicant says landowner's consent is not a consent to the material change of use. It says the elision (the merging of the ideas) of consenting to the making of the development application and consenting to the approval of the development application is demonstrative of legal error.
[49] The applicant says if the council grants development approval, the applicant would require the body corporate's consent to undertake the approved works under the scheme's by-laws. It would be at this later stage that the body corporate would separately and rightly consider the impact of the approved works on the common property, amenity of other lots and any other considerations.
[50] The applicant says that until approval is granted, it will not be known, with certainty, what works are actually going to be proposed to be carried out. It says it is hypothetical and speculative for a committee to consider the impact of what might be constructed if the approval is granted. It says on the facts of this case, that is precisely what the committee has done.
[51] The applicant sets out what is considers to be the process to follow under the Planning Act 2016 (Qld) and the Development Assessment Rules. It argues the body corporate is seeking for the applicant to provide information which will not be known until a later stage (stage 5) and the information cannot be prepared without the development conditions being known.
[52] The applicant says this is putting the cart before the horse and accordingly, it is unreasonable for the body corporate to refuse to grant landowner's consent for the development application.
Response to the concerns raised by the body corporate
[53] The applicant responds to the concerns raised by the body corporate.
[54] In respect of the cost of maintaining the lift, it says this is unreasonably putting the cart before the horse and the body corporate will have the opportunity to consider the proposed 'vehicle' for how the lift will be maintained at the time the applicant seeks approval to carry out the works. It says the proposed condition that the applicant will bear the cost of the maintenance is more than adequate at this stage.
[55] In relation to new connections, the applicant says the body corporate will have the opportunity to consider whether the appropriate arrangements have been made to ensure that the applicant bears all the costs of the new service at the time the applicant seeks approval to carry out the works. It says this is more than adequate at this stage.
[56] In relation to building code and planning issues, the applicant says this concern was not raised by the body corporate until shortly before it delivered its submissions in response to this application. In any event, the applicant says it consents to the addition of the words 'at the discretion of the body corporate' to condition D.
[57] In relation to the issues raised about common property, the applicant says this issue was also not raised with it until shortly before the body corporate delivered its submissions in response to this application. In any event, the applicant says it consents to the addition of the wording proposed by the body corporate in relation to condition E(ii).
[58] In relation to lots entitlements, again the applicant says the body corporate has only raised this issue at the last minute. In any event, it says it consents to incorporate amendments to the conditions to address these concerns.
[59] In relation to the swimming pool, the applicant acknowledges that the pool is the subject of an exclusive use by-law that will be unaffected by the proposed subdivision of the applicant's lots. It says changing the exclusive use by-law about the pool is a matter for lot owners at the time any motion is put to them. It says this concern can be readily addressed by appropriate conditions.
[60] In relation to fire exits and compliance, the applicant says these concerns were not raised until after the decision periods for the first and second motion had ended. It says the body corporate should provide its consent on the basis that any changes required to comply with safety or fire exists will be carried out by the owners of any lots created under the approval of the development application. It says it consents to incorporate amendments to the conditions to address these concerns.
[61] The applicant says its responses and agreement to amendments to the relevant conditions are a complete answer to the body corporate's concerns. It says there is no rational basis to continue to refuse to consent to the first and second motions. The applicant says it is just and equitable for the orders it has sought to be made (with the amendments to the conditions it has stipulated).
[62] The issue in this application is whether the committee acted unreasonably in refusing to provide the body corporate's consent for the applicant's development application. Except insofar as a decision is a restricted issue for the committee, a decision made by the committee is a decision of the body corporate.[9]
[63] As a preliminary point, I want to address the nature of the consent being sought from the body corporate. The applicant says the consent being sought is not approval for the proposed works or overall consent for the development application. It says the consent is merely a procedural requirement under the planning legislation which requires the body corporate's consent to the application as the landowner of the common property in the scheme.
[64] The applicant argues the adjudicators decisions in Accent Place,[10] Tech Plaza[11] and Paradise Island Apartments[12] should not be followed because they conflate consenting to the making of a development application with consenting to the subject matter of an application and are plainly wrong. The applicant also refers to the authority of Danseur Pty Ltd v Cairns Regional Council[13] and points to what Morzone KC DCJ held about the giving landowner consent (please refer to paragraph [47] above).
[65] I have carefully considered the cases referred to by the applicant. Firstly, I note the context of the quote noted by the applicant in Danseur Pty Ltd v Cairns Regional Council. The court was considering whether the decision to consent to a change of use application relating only to a lot was a restricted issue for the committee because it has the effect of changing the rights, privileges or obligations of the owners of lots included in the scheme. Morzone KC DCJ noted that to be a restricted decision, the decision itself needed to effectuate the change. He found that the decision at issue in Dansuer was of mere consent and did not, of itself, effect a change of rights.
[66] However, the question in the case before me is different. The question is not whether the committee can make the decision, but whether the body corporate has acted unreasonably in the circumstances in refusing to provide its consent for the applicant's development application. The applicant is arguing that providing consent to lodge the application is merely a procedural requirement, essentially a 'box ticking' exercise. It argues the body corporate has taken irrelevant factors into account in deciding not to provide its consent and has therefore failed to act reasonably in the circumstances.
[67] I disagree. In my view, it seems illogical for planning legislation to require a landowner's consent when submitting a development application and not expect landowners to turn their minds to whether or not they wish to provide their consent to an application.
[68] I am satisfied in these circumstances that seeking the initial consent for the application to council relating to the reconfiguration and use of lots involving a change to common property is more than a 'box ticking' exercise. Accordingly, in my view, the body corporate in this case is entitled to take factors which affect it into consideration before making the decision about whether to provide its consent for the development application. This is a view expressed by numerous adjudicators over the years and I do not agree that the decisions made in Accent Place,[14] Tech Plaza[15] and Paradise Island Apartments[16] are incorrect.[17]
[69] A body corporate has a duty to act reasonably when carrying out its general functions, including making, or not making, a decision.[18] Numerous judicial decisions have considered the test for reasonableness. The cases emphasise that what is reasonable is a question of fact for the decision-maker to determine, and what is required is a careful weighing up of all the relevant factors while not taking irrelevant factors into account.[19] The High Court has noted that the standard of reasonableness is objective and should take into account all the relevant factors which exist at the time the decision is made.[20]
[70] If I am satisfied the body corporate has failed to act reasonably in making its decision not to provide consent for the applicant's development application, I may make an order that the body corporate provide its consent to the same.[21] However, it is not my role as an adjudicator to take over the body corporate's decision-making function or to impose my own view on what the body corporate ought to have decided. I may only set aside the decisions on the disputed motions if I am satisfied the body corporate failed to act reasonably in coming to those decisions or if I consider that the decisions were legally unreasonable.[22]
[71] I note the applicant has argued that the body corporate failed to provide any reasons within the 6-week decision period for either of the disputed motions. Accordingly, it says any reasons the body corporate has since provided should not be taken into account in determining whether the committee acted unreasonably in refusing to provide the body corporate's consent for the applicant's development application. It argues the reasons now provided by the body corporate are irrelevant as they were not provided within the required timeframe.
[72] The body corporate acknowledges it did not respond to the motions within the relevant 6- week decision period. However, it says the reasons it had for ultimately declining to provide its consent for the development application were held at the relevant times. It says it is still appropriate to take the reasons it has provided into account in determining this application.
[73] Section 269 of the Act sets out that the adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application. It provides that when investigating the application, the adjudicator: (1) must observe natural justice; (2) must act quickly and with as little formality and technicality as is consistent with a fair and proper consideration of the application; and (3) is not bound by the rules of evidence.
[74] In addition to the above, I note the process followed for adjudication provides a respondent with the opportunity to submit a response to the application. And, section 271 of the Act further provides that when investigating an application, the adjudicator may require a party to the application to, (amongst other things), give the adjudicator a report or other information.
[75] Having carefully considered all the materials before me, I am satisfied, on the balance of probabilities, that the body corporate held the concerns it has argued in this case at the time it made both decisions to decline to provide its consent for the applicant's development application. Although these reasons were communicated to the applicant after the decision periods had ended, with the requirements set out at paragraphs [72] and [73] above in mind, I consider it appropriate to take into account the reasons the body corporate has provided for reaching its decisions.
[76] The applicant has provided a copy of the development application[23] and it proposes quite significant changes to lots and common property in the scheme. The proposal sets out the following 'key' changes:
Ground Floor Plan
Demolition and Building Alterations:
First Floor Pan
Demolition and Building Alterations:
The total difference between the land removed from Common Property and the land transferred into Common Property (Lot 0 BUP 105226) is:
[77] On the basis of such significant changes to common property being proposed by the development application, I questioned whether providing consent to the application would be a restricted issue for the committee.
[78] On 10 February 2026, I wrote to the applicant noting that in the executive statement of the development application it states the renovation works proposed will "result in changes to the existing tenancy and common property arrangements within the building which fronts Macrossan Street". And furthermore, that the summary goes on to express that this will include the removal of common property that presently provides pedestrian access to the first floor for inclusion within Lot 19 and the creation of a ground floor lobby which will need to be created as common property.
[79] I referred the applicant to section 44(1)(b) of the Accommodation Module which provides that a decision is a restricted issue for the committee if it is a decision about changing rights, privileges or obligations of the owners of lots included in the scheme. I explained that in my preliminary view, the committee for Macrossan House was unable to make a decision about providing body corporate consent for this particular development application because it proposes changes to the rights, privileges or obligations of the owners of lots included in the scheme. Accordingly, it seems the matter should have been put to a vote at a general meeting of the body corporate. I invited the applicant's comments.
[80] The applicant replied to my letter on 19 February 2026. It says the motions that are the subject of this adjudication application do not, if passed, change the rights, privileges or obligations of lots owners within the meaning of section 44(1)(b) of the Accommodation Module.
[81] The applicant says the disputed motions sought the body corporate's consent to the lodging of the development application to council, nothing more. It says the motions are not the necessary instrument of consent under the by-laws to any approved works being carried out and that this consent will be the subject of later resolutions if the council issues development approval for its application.
...rights, privileges or obligations of the owners of lots included in the scheme ought not be read literally as a reference to any right, privilege or obligation which a person who owns a lot in the scheme happens to have. That would ignore the context of the words, which necessarily implies a connection between the rights, privileges or obligations and the person's status as an owner of a lot included in the scheme.
When the plain meaning of the words is considered in context, the reference to an owner's rights, privileges or obligations is obviously a reference to the rights, privileges or obligations that arise in the person's capacity as an owner of a lot included in the scheme. That is, they are rights, privileges or obligations which derive from the fact of the person's ownership of the lot and not from some other source, for example, from a contractual agreement such as the Caretaking and Letting Agreement in this case."
[83] The applicant says no lot owner's rights, privileges and obligations are affected in any way by the body corporate giving its consent to a development application being made to council.
[84] The applicant also refers to the Court of Appeal decision in Rakaia Pty Ltd v Body Corporate for "Inn Cairns" Community Titles Scheme 16010.[26] It refers to paragraph [40] which provides the following:
Turning first to the meaning of the expression - "decision to change", I observe that it is necessary for the appellant to contend for an expansive meaning because, 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. What it did do was to manifest a consent to the making of an application for development approval for a material change of use of Lot 36 in so far as that application related to the exclusive use of Car park 36A. The only change in prospect was a material change of use of Lot 36. 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.
[85] The applicant says accordingly, the proposition that the decision to provide consent to the development application is a restricted issue for the committee is incorrect.
[86] For the reasons I have set out below, this application ultimately did not require me to make a finding on this issue. However, I will make the observation that, in circumstances where significant changes to the common property have been proposed, it may be arguable that the decision to consent to such a development application being made would be a restricted issue for the committee.
The committee's decision to refuse consent for the development application
[87] The committee says it has several issues with the applicant's development application and these include the following: (1) wording of the development application; (2) cost of the proposed lift; (3) cost of the proposed new connections; (4) building code and planning issues; (5) proposed transfer of common property; (6) clarification about lot entitlements; (7) construction issues; (8) entitlement to use the swimming pool; and (9) cost of the new fire exits and compliance.
[88] This is an issue the body corporate raised in respect of the first motion put to the committee. The body corporate explains that it considered that the wording of the development application implied that the body corporate was not only consenting to the lodgement of the development application, but also to the changes it proposed and that it supported the proposed changes.
[89] I understand the applicant has since confirmed that it is only seeking the body corporate's consent for the development application to be lodged and that the wording of the development application has been amended to reflect this. The parties agree this is no longer an issue in dispute.
[90] However, at the time the committee made its decision, the wording of the proposal was a relevant factor. I do not consider the committee failed to act reasonably by taking issue with wording which implied it was supporting the development application. Thus, I am not satisfied the body corporate failed to act reasonably by not passing the first motion and effectively declining to provide its consent for the development application.
[91] The body corporate says it has concerns about the cost of the proposed lift. It says the lift will be a significant cost to the body corporate both in terms of installing and maintaining it. It says from the materials presented by the applicant, it is unclear who will bear the cost of constructing, installing and maintaining the lift. It says it is not enough for the applicant to say it will bear the cost of maintaining the lift in equal shares. The body corporate says the applicant needs to articulate the vehicle which will guarantee that the body corporate will not be exposed to liability for the cost and maintenance of the lift.
[92] The body corporate says the first motion put to the committee did not in any way address its concerns about the lift. And, the conditions the applicant included in the second motion about the lift did not satisfactorily address the body corporate's concerns.
[93] The applicant says this is an unreasonable opposition because the body corporate will have the opportunity to consider the proposed 'vehicle' at the time the applicant seeks approval to carry out building works to install the lift. It says that if the body corporate does not consider the proposed vehicle gives it adequate certainty, it will be reasonable for it to refuse approval for those works until certainty is provided.
[94] I have carefully considered all the submissions made by both parties on this issue. It is clear the body corporate wants more certainty about the proposed developments prior to giving its consent for the applicant to seek development approval for those developments. The applicant on the other hand, argues the details can be worked through once development approval has been given at the time approval for the works is being considered by the body corporate.
[95] While I can understand that the body corporate's position on this issue may be frustrating for the applicant, I have not been persuaded it was unreasonable for the body corporate to want clarification about the issues it has raised about the lift prior to providing its consent for the development application. The applicant's development application is proposing significant changes to the common property and various lots. In the circumstances, I do not consider it unreasonable for the body corporate to want further clarification about how the applicant is proposing to build and maintain the proposed new infrastructure before it provides its consent to the development application.
[96] I note the applicant says, in any event, it agrees to amend the conditions it has put forward to reflect that it will bear all the costs of installing, maintaining and repairing the proposed lift. It says this amendment can be reflected in the draft orders it is seeking. However, this concession does not assist the applicant in its contention that it was unreasonable for the body corporate to take this factor into account in coming to its decision to refuse its consent for the development application when the committee was deciding the first and second motions.
[97] The body corporate says it has concerns about the proposed new connections and utility infrastructure which will service the bathrooms and toilets in the new lots which have been outlined in the applicant's development application. It says its concerns are similar to those raised about the proposed new lift.
[98] The body corporate says the first motion put to the committee did not in any way address its concerns about the new connections. And, the conditions the applicant included in the second motion about the new connections did not satisfactorily address the body corporate's concerns.
[99] The applicant says that again, the body corporate will have an opportunity to consider whether appropriate arrangements have been made to ensure the applicant will bear all the costs for the new services when the applicant seeks approval to carry out the building works. It says if the body corporate does not consider the proposal put forward at that time achieves this outcome, it would be reasonable for it to refuse approval for those works. The applicant says the conditions it has put forward to the body corporate are more than adequate to confirm that the applicant will bear all the costs in relation to the proposed new connections.
[100] As I set out above for the proposed lift, I do not consider it unreasonable for the body corporate to want further clarification about how the applicant is proposing to build and maintain the proposed new infrastructure before it provides its consent to the development application. In the circumstances of such significant changes, I am not persuaded it is unreasonable for the body corporate to want to understand, prior to giving its consent, the mechanism by which the applicant is intending to ensure that the body corporate will not become liable for maintaining and repairing the proposed new infrastructure.
[101] The applicant says, in any event, it agrees to amend the conditions it has put forward to reflect that it will bear all the costs of installing, maintaining and repairing the proposed new connections. It says this amendment can be reflected in the draft orders it is seeking. However, just as I found for the lift above, this concession does not assist the applicant in its contention that it was unreasonable for the body corporate to take this factor into account in coming to its decision to refuse its consent for the development application when deciding the first and second motions put to the committee.
[102] The body corporate says it has concerns about whether the development application would result in building code or planning issues which may require works to be undertaken at the cost of the body corporate. The body corporate says the first motion put to the committee did not in any way address this concern.
[103] In terms of the second motion, the body corporate notes the applicant included a condition in the second motion which provides as follows:
If the Development Application is approved and any building code or planning issues become apparent after the approval, the Body Corporate be given the opportunity to consider those issues and, if necessary, obtain expert advice prior to approving any works to be performed. C1 will bear the reasonable costs associated with any such works and advice.
[104] However, the body corporate says the wording of the condition provides the applicant will bear the reasonable costs associated with any works and any 'necessary' advice. It says this is ambiguous and does not sufficiently protect the body corporate's entitlement to obtain advice if it considers it reasonable to do so. The body corporate says it has subsequently sought for the wording in this condition to be amended to allow it to obtain expert advice 'at the body corporate's discretion'.
[105] The applicant says this issue was only articulated shortly before the body corporate delivered its submissions in response to this application. It says, in any event, the applicant consents to the proposed amendment to the wording of the condition and that the updated wording can be reflected in the orders it is seeking.
[106] I have carefully considered this issue. I reiterate that the applicant's development application proposes significant changes to the common property and to several lots in the scheme. In my view, it was not unreasonable for the body corporate to be concerned that the proposed works may trigger building code or planning issues and require expert advice to navigate. I do not consider it unreasonable for the body corporate to decline to pass the first motion where it was unsure who would bear the cost for expert advice if it became necessary due to the proposed works.
[107] Furthermore, I do not consider it unreasonable for the body corporate to have held concerns that the condition proposed by the applicant in relation to this issue did not adequately address its concerns that it would become liable for seeking such advice. I have not been persuaded that the body corporate acted unreasonably in taking this factor into account in making the decision not to provide its consent for the development application in terms of either the first or the second motion.
[108] The applicant has agreed to amend the wording of the condition to reflect the request of the body corporate. However, as I set out above, this does not assist the applicant in its case that the body corporate acted unreasonably in this regard.
[109] The body corporate says it has concerns that no explanation has been provided to identify any consideration for the proposed transfer of the common property and who will bear the cost associated with the transfer of the same. It says the first motion did not in any way address this issue.
[110] The body corporate notes the applicant submits that such concerns are speculative at this stage and if development approval is granted which requires the transfer of common property, a motion can be put to the body corporate to deal with the precise acquisition, consideration and costs at that time. The body corporate says this issue is not speculative as the development application contemplates the removal of 23 square metres of the common property and this is what is being proposed.
[111] The body corporate says the applicant's failure to include any conditions in the second motion about its intention to acquire common property, for its benefit, is a reasonable concern. The body corporate suggests amended conditions which provide that the applicant will bear all the costs, taxes and duties which may arise because of the purchase of common property (irrespective of whether the purchase is ultimately approved).
[112] The applicant says this issue was not raised until after the commencement of these proceedings. It says it consents to incorporate the amendment proposed by the body corporate and to reflect this in the orders sought.
[113] Firstly, I note that this concern was raised by the body corporate in a letter from its lawyers to the applicant's lawyers dated 11 February 2025.
[114] Having considered all the materials before me, I agree with the body corporate that the issues it has raised about the common property are not speculative at this stage. While it is still not certain what the council will decide about the development application, the applicant has clearly proposed a number of significant changes to the scheme's common property. In the circumstances, I have not been persuaded that it was unreasonable for the body corporate to have held concerns about the proposed transfer of common property and what consideration the applicant would be offering to acquire the common property and who will meet the costs of the transfer if it were to go ahead.
[115] The applicant has agreed to amend the wording of the condition to reflect the request of the body corporate. However, as I set out above, this does not assist the applicant in its case that the body corporate acted unreasonably in this regard when deciding either the first or second motions put to the committee.
[116] The body corporate says it has concerns with the proposed changes to lot entitlements. It says that no explanation has been provided to identify whether any changes are proposed to lot entitlements and whether there will be any impact on budgets. It says this concern was not addressed by the applicant's first motion and the conditions put forward in the second motion did also not allay the body corporate's concerns in this regard.
[117] The body corporate says the applicant's second motion failed to clarify who is responsible for obtaining the evidence required to propose a change in the lot entitlements and it appears to burden the body corporate with the obligation to address any required updates to the lot entitlements which arise as a result of the applicant's development application. The body corporate says it considers it would be reasonable for the applicant to bear responsibility for any necessary changes to the lot entitlements if they become necessary as a result of the development application.
[118] The applicant says the concerns raised by the body corporate about the lot entitlements are all new concerns which were not raised previously. It says this issue can easily be addressed by appropriate conditions. The applicant says it consents to orders being made which incorporate the amendments to address the body corporate's concerns in this regard.
[119] Firstly, I note that this concern was raised by the body corporate in a letter from its lawyers to the applicant's lawyers dated 11 February 2025.
[120] Given the nature of the development application I do not consider it unreasonable for the body corporate to have held concerns about the proposed changes to lot entitlements and how this might affect the overall operation of the body corporate in terms of budgets. I have not been persuaded that the body corporate acted unreasonably in taking this factor into account in making the decision not to provide its consent for the development application.
[121] The applicant has agreed to incorporate a condition that the applicant will bear responsibility for any necessary changes to the lot entitlements if they become necessary as a result of the development application. However, as I set out above, this does not assist the applicant in its case that the body corporate acted unreasonably in this regard when deciding either the first or second motions put to the committee.
[122] This is an issue the body corporate raised in respect of the first motion put to the committee. The body corporate explains that the first motion provided no detail about the anticipated construction period for the proposed building works or the impact those works might have on the common property or other lots in the scheme.
[123] I understand the applicant has since included conditions which have allayed the body corporate's concerns in this regard and the parties agree this is no longer an issue in dispute.
[124] However, I do not consider it was unreasonable for the body corporate to have taken account of this factor in deciding not to pass the first motion seeking the body corporate's consent for the development application.
[125] The body corporate says it has concerns that the development application is made on the basis that the applicant's lots (the new residential lots as contemplated in the development application) will have access rights to the common property swimming pool. However, it says the scheme's CMS grants exclusive use of the pool to Lots 1-17. It says accordingly, the applicant's lots do not have access rights to the pool.
[126] The body corporate says that accordingly, it holds reasonable concerns that the applicant's development application will be made and considered by the council on the basis that the lots in question will have rights to use the scheme's common property swimming pool. It says the applicant's lots do not currently have rights to the pool and it is unclear how the applicant intends to obtain such rights.
[127] The applicant acknowledges that the pool is the subject of an exclusive use by-law. However, it says the by-law will be unaffected by the subdivision of the applicant's lots and changing the exclusive use by-law is a matter for the body corporate to decide on at the time a motion seeking a change to it is put to the body corporate. It says in any event, this concerns can be readily and appropriately addressed by conditions. It says it consents to amend the proposed conditions to address this issue.
[128] I have carefully reviewed the applicant's development application, and it seems to imply that the proposed new residential lots will have access to the common property pool. In the circumstances, I do not consider it unreasonable for the body corporate to have held concerns that the development application would be considered on this basis. I have not been persuaded that the body corporate acted unreasonably in taking this factor into account in making the decision not to provide its consent for the development application.
[129] The applicant has agreed to incorporate further conditions to address the body corporate's concerns about the swimming pool. However, this does not assist the applicant in its case that the body corporate acted unreasonably in this regard when deciding the first or second motions put to the committee.
[130] The body corporate notes the development application proposes the removal of common property stairs which may compromise the body corporate's fire safety requirements. In addition, it says the development application proposes the creation of new lots and this may require additional fire safety measures to be implemented by the body corporate. The body corporate says the applicant's second motion did not address who will be responsible for ensuring compliance with the relevant fire and safety requirements and the costs associated with maintenance of the same.
[131] The applicant says these concerns were not raised until after the decision period for the first and second motion had already ended. It says the body corporate should provide its consent to the development application on the basis that any changes to the scheme's fire safety will be carried out and maintained by the owners of the new lots. It says it consents to such a condition being incorporated into the orders sought.
[132] Given the significant changes contemplated by the applicant's development application, I do not consider it unreasonable for the body corporate to have held concerns about the how the changes will affect fire exists and compliance with fire safety measures. I have not been persuaded that the body corporate acted unreasonably in taking this factor into account in making the decision not to provide its consent for the development application.
[133] The applicant has not persuaded me that the committee failed to act reasonably in deciding not to pass either the first or the second motions submitted to the committee seeking the body corporate's consent for the development application. I have accordingly dismissed the applicant's application.
[134] Notwithstanding the above, it appears from the materials before me that the parties are moving closer to finding a position which would make it agreeable for the body corporate to provide its consent to the development application. It remains open to the applicant to submit a fresh motion to the body corporate seeking its consent for the same.
[2] Conciliation certificate issued 11 March 2025
[4] Section 276(1)(a) and (b) of the Act
[9] See section 100(1) and 100(2) of the Act
[17] Also see Surfers International [2005] QBCCMCmr 561
[19] Luadaka v Body Corporate for The Cover of Emerald Lakes [2013] QCATA 183 applying Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342
[20] Per Nettle J in Ainsworth v Albrecht [2016] HCA 40 (12 October 2016) at paragraph 101
[21] See Item 24 in Schedule 5 of the Act
[22] See Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177