A recent surge in residential apartment buildings throughout the city has changed the way of life for many residents. Despite the absence of a backyard, apartment dwellers remain subject to the impacts of nearby developments upon their amenity, through either increased traffic and car parking, overshadowing, loss of views, loss of breezes or increased privacy concerns. These impacts may provoke either the residents or their Body Corporate to lodge an objection with Council against nearby development. Lodging an objection by way of a properly made submission triggers a right of appeal to the Planning and Environment Court (the Court) in the event the proposed development is approved by Council.

For a Body Corporate that wishes to commence an appeal or join in an appeal with the Court, care must be taken to ensure that the two following steps have occurred:

  1. The Body Corporate must have lodged a properly made submission against the development application in accordance with the Sustainable Planning Act 2009 (SPA); and
  2. The Body Corporate must have passed a special resolution at a general meeting in accordance with s.312 (1) of the Body Corporate and Community Management Act 1997 (BCCMA) to ensure the Body Corporate is authorised to commence or participate in an appeal in the Planning an Environment Court.

Failure to pass a special resolution prior to the Body Corporate commencing an appeal with the Court, can result in delay and significant cost consequences. This issue has recently been explored in the decision of Body Corporate for Quay Terraces CTS 17468 v Brisbane City Council [2016] QPEC 12. A summary has been provided below.

Body Corporate for Quay Terraces CTS 17468 v Brisbane City Council [2016] QPEC 12

The Court recently handed down a decision striking out the Body Corporate’s appeal on the basis that it had not obtained a special resolution authorising the commencement of the appeal.

Background

On 29 January 2016, the Body Corporate of Quay Terraces (the Body Corporate) filed a Notice of Appeal to the Court (the Appeal) based upon objections made against a nearby development. The solicitors for the nearby development discovered that a special resolution had not been obtained by the Body Corporate to authorise the commencement of the Appeal and the solicitors sought to strike out the Appeal. The Body Corporate consequently called an Extraordinary General Meeting (EGM) on 16 March 2016 to pass a special resolution ratifying the commencement of the appeal. The application to strikeout the Appeal was heard by the Court on 8 March 2016, one week before the EGM.

Relevant Issues

The relevant issues before the Court were:

      • whether the Body Corporate’s appeal should be struck out; or
      • whether the Appeal should be adjourned to await the outcome of the special resolution at the EGM.

Findings

The Court struck out the Body Corporate’s Appeal and was not prepared to adjourn the matter until the EGM was held.

In relation to the striking out of the Appeal, the Court found it was plainly clear that the Body Corporate did not obtain a special resolution to commence the Appeal as required pursuant to s.312 (1) of the BCCMA. Therefore the Body Corporate did not have the power to commence proceedings.

The Court recognised that in some circumstances it can exercise its discretion to either:

          • adjourn the Appeal until the special resolution is held; or
          • extend the time to permit a notice of appeal to be filed out of time by way of an application with the Court.

In these circumstances, the Court found that it should “be reluctant to prejudge the outcome of mature consideration at the EGM” and did not adjourn the Appeal. Additionally, the Court found that the Body Corporate could make an application once the special resolution was obtained and that there was no injustice to the Body Corporate, “…by reason of having the appeal struck out, of having to apply for an extension of time to file an appeal after it has done what it should have done”. Therefore, as a result of the Body Corporate failing to pass the special resolution, the Appeal was struck out.

What does this mean?

This is an important reminder to Body Corporates that a properly made submission on its own is not enough to begin proceedings with the Court. A special resolution should be obtained before commencing proceedings, if not, the appeal is at risk of being struck out. Further, while the Court has discretionary powers to adjourn or allow an extension of time, the Court may not be prepared to exercise those powers. Therefore, to avoid what is a significant risk and potentially expensive mistake, a Body Corporate should always prepare in advance and resolve to have a special resolution passed before commencing appeal proceedings in the Planning and Environment Court.

If you have any queries in relation to the procedure for commencing proceedings in the Planning and Environment Court or preparing properly made submissions, please do not hesitate to contact our office.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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