Roystonia [2005] QBCCMCmr 14 (12 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0377-2004

ORDER OF A REFEREE

MADE UNDER PART V OF THE

BUILDING UNITS AND GROUP TITLES ACT 1980

Number of Scheme:	GTP 1769 and GTP 2504
Name of Scheme:	Roystonia and Colvillia
Address of Scheme:	C/- PO Box 451 SANCTUARY COVE QLD 4212 and C/- PO Box 156 SANCTUARY COVE QLD 4212

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

the Body Corporate for Roystonia GTP 1769 and the Body Corporate for Colvillia GTP 2504,

I hereby order that the application for the following orders – 1. "An order stopping Mulpha proceeding with the development of the Cypress Point residential development unless and until the Sanctuary Cove Resort Act is amended by Parliament in a manner which would make Mulpha’s Cypress Point residential development permissible under that Act. 2. An Order requiring Mulpha to provide to the appropriate governmental departments environmental impact studies and flood mitigation studies with respect to Mulpha’s plan to dam and shrink the lake in front of Roystonia, and to obtain approval from the appropriate governmental departments prior to changing the lake. 3. An Order requiring Mulpha to obtain a release from all existing homeowners adversely affected by the loss of views prior to commencing construction of the Cypress Point residential development," is dismissed for want of jurisdiction.

STATEMENT OF REASONS FOR REFEREE’S DECISION - REF 0377-2004

"Roystonia" GTP 1769 and "Colvillia" GTP 2504

The applicants, Roystonia and Colvillia bodies corporate, have sought the following orders of a Referee under the Building Units and Group Titles Act 1980 ("the BUGT Act") –

4. "An order stopping Mulpha proceeding with the development of the Cypress Point residential development unless and until the Sanctuary Cove Resort Act is amended by Parliament in a manner which would make Mulpha’s Cypress Point residential development permissible under that Act.

5. An Order requiring Mulpha to provide to the appropriate governmental departments environmental impact studies and flood mitigation studies with respect to Mulpha’s plan to dam and shrink the lake in front of Roystonia, and to obtain approval from the appropriate governmental departments prior to changing the lake.

6. An Order requiring Mulpha to obtain a release from all existing homeowners adversely affected by the loss of views prior to commencing construction of the Cypress Point residential development."

The applicants have also sought interim orders in respect of the orders sought, namely for Mulpha to be stopped from: proceeding with the development and marketing of Cypress Point; enjoining Mulpha from, filing a Proposed Use Plan, Plan of Survey or Boundary change with respect to the 16^th hole of the Palms golf course; and damming and shrinking the lake near the Roystonia parcel.


APPLICATION AND SUBMISSIONS:
Roystonia and Colvillia are both registered group titles plans under the BUGT Act and are subsidiary residential parcels of Sanctuary Cove Resort approved under the Sanctuary Cove Resort Act 1985 ("the SCR Act").

Under section 73(1)(c) of the BUGT Act, a copy of the application was supplied to Mulpha Sanctuary Cove (Developments) Pty Ltd ("Mulpha") as an affected party, with an invitation to make a submission to the application. It made a written submission and the applicants subsequently inspected the submission and made a written response.

I would point out that this application was lodged with the Commissioner for Body Corporate and Community Management on 7 June 2004 but has been delayed for a number of reasons including: advice (9 and 13 August 2004) from the applicants to hold the application pending the outcome of discussions with the respondent Mulpha; and a number of extensions by both the respondent to make a submission to the application, and the applicant to respond to the submission.

As I have dismissed the application on jurisdictional grounds, I need only refer briefly to the facts of the dispute.

The applicants state that Mulpha has taken steps in marketing, calling tenders, and some ground work, in a development known as "Cypress Point" which involves the use resort areas termed the "International Hotel Zone" and the "Golf Course Zone" for the building of apartment towers, multi-cluster villas and townhouses. This will involve, the applicants submit, changing the boundary of the Golf Course Zone and shrinking the lake situated near Roystonia. The applicants claim that the development will block or reduce relevant lot owners’ views of the golf course and Coomera River "bay" and reduce the amenity of the golf course, both of which will also adversely affect the value of those lots. There are other development features and consequences submitted by the applicants that I have not mentioned.

Mulpha purchased the Sanctuary Cove assets of Discovery Bay Developments Pty Ltd over two years ago. It does not intend to build any of its proposed 68 accommodation units on the Golf Course Zone but does intend to build within the International Hotel Zone which it claims it can lawfully do under the SCR Act. It does intend to change the boundaries of both zones but it claims these are only changes of a minor nature. Mulpha also addressed the other issues raised by the applicants but which have not been referred to in these brief facts.


JURISDICTION:
My order is to dismiss this application for want of jurisdiction - the dispute is a matter that should properly be brought before the Planning and Environment Court for determination. The applicants have themselves referred to the similarity of this and a matter involving proposed land use in Hope Island Resort (approved under the Integrated Resort Development Act 1987) in a decision by the court on appeal from the Planning and Environment Court.

This jurisdiction does not have the powers of a tribunal when determining matters relating to either the BUGT Act or under its primary legislation the Body Corporate and Community Management Act 1997 ("BCCM Act") , having no power to order costs (other than in respect of actual property damage or in applications found to be vexatious) or hear evidence on oath. Sections 228 and 276 of the BCCM Act provide for resolving disputes in the context of community title schemes that relate to contraventions and the exercise of rights and powers arising under the legislation and community management statements of bodies corporate, and certain technical matters. For more complex matters, such as the change of lot entitlements or contractual issues relating to relevant body corporate service providers, these are determined by Special Adjudicators. Other matters of a nature that either should be properly dealt with by the courts (eg defamation of a committee member) or because of their complex nature, may be referred to the appropriate court by the Commissioner (see section 250 of the BCCM Act). Neither are matters relating to title to land within jurisdiction.

In summary, disputes are limited to those that relate to rights and powers, and procedures (eg meeting procedures, breach of by-laws), of owners, occupiers and their body corporate, within the context of a community titles scheme (or parcel under the BUGT Act).

Disputes brought in respect of a specified Act (see section 326 of the transitional provisions of the BCCM Act) such as the SCR Act, provide particular problems that I have previous commented on in the rare occasions of having to deal with one. The problem issue is that being relied on by the applicants in bringing this application, namely that section 104A of the SCR Act (an amendment commenced on 4 March 2003) in referring to the rights and obligations of persons under this Act are not limited by matters that arise or can be dealt with under the BUGT Act, but extend to include those rights and obligations that are unique to the SCR Act and include, as claimed in this instance, land use for development, in particular the lawful use of declared zones, changing of zone boundaries, environmental impact issues, and others.

On 25 February 2004 I issued Interim Order 209-2003 in respect of another residential subsidiary body corporate of Sanctuary Cove Resort, "Bauhinia". While I had doubts, I accepted jurisdiction in that dispute to give effect to the intention of section 104A, however the dispute concerned the operation of a by-law and therefore fell within the context of matters able to be determined according to the provisions of the BUGT Act. The relevant comments are –

"I would also make the general observation that in regard to aspects of the operation of a body corporate under the SCR Act and the rights and responsibilities of persons (including the body corporate), it can be a difficult exercise to determine whether the provisions of the BUGT Act or the SCR Act apply in certain circumstances. I have commented previously on the unsatisfactory nature of the hybrid regulation of schemes coming under "specified Acts" when before the recent amendment I and a delegate Referee made several orders rejecting jurisdiction to determine applications by owners of lots in such schemes (see for example Order 141-2001). I would also comment that the amendment of 4 March 2003 (Section 104A) does not provide a satisfactory dispute resolution process for a number of reasons.

It is necessary to firstly state that, while it is not wholly clear from relevant legislation, residential bodies corporate under the SCR Act are regulated by the BUGT Act. The following amendment to the BUGT Act was introduced as a precursor to the introduction of the BCCM Act which brought all schemes ("parcels") registered under the BUGT Act under its jurisdiction, except for those approved under "specified Acts" (also see later) -

5A Limited operation of Act on commencement of ch 8, pt 1 of BCCM Act
(1) On and from the commencement of chapter 8, part 1 of the BCCM Act, this Act applies only for--

(a) the operation of a specified Act; and
(b) the registration of a future 1980 Act plan under the transitional provisions of the BCCM Act; and
(c) any other matter under the transitional provisions of the BCCM Act required to be effected under this Act.

(2) For anything not mentioned in subsection (1)(a), (b) or (c), the Acts Interpretation Act 1954, sections 19, 20 and 20A apply to this Act as if this Act had been repealed by the BCCM Act.
(3) In this section--
"BCCM Act" means the Body Corporate and Community Management Act 1997.
"specified Act" means--

(a) the Integrated Resort Development Act 1987; or
(b) the Mixed Use Development Act 1993; or
(c) the Registration of Plans (H.S.P. (Nominees) Pty. Limited)Enabling Act 1980; or
(d) the Registration of Plans (Stage 2) (H.S.P. (Nominees) Pty. Limited) Enabling Act 1984; or
(e) the Sanctuary Cove Resort Act 1985.

"transitional provisions", of the BCCM Act, means the provisions of the BCCM Act, chapter 8, part 1.

The BCCM Act, which commenced on 13 July 1997, contained transitional provisions including the following relevant transitional section 325(2) which provides, in part, as follows –

325 Approach adopted
(2) However, the 1980 Act continues in force for--

(a) building units plans and group titles plans registered under the 1980 Act, if their registration under the 1980 Act was for a specified Act; and
(b) building units plans and group titles plans registered after the commencement, if their registration is for a specified Act;

(Adjudicator’s Note: The "1980 Act" is the BUGT Act).

While there is no specific provision in the SCR Act that generally imports the provisions of the BUGT Act for the regulation of the residential bodies corporate, a principal body corporate or a primary thoroughfare body corporate, the foregoing provisions strongly suggest that is the case. This seems to at least to have been the intention in respect of the residential bodies corporate as at page 2192 of the second reading speech to the Sanctuary Cove Resort Bill, the then relevant Minister (the Hon. Russ Hinze) refers to the residential developments being established under the provisions of the BUGT Act with their own group titles plan which, upon registration, will have its own body corporate as required by the BUGT Act.

Accordingly, in determining this application I do so on the basis that "Bauhinia", as a residential body corporate comprising lots registered under a group titles plan, is regulated by the BUGT Act.

The situation regarding the legislative provisions for the hierarchical bodies corporate, of which "Bauhinia" is a subsidiary body corporate, is a difficult area. In brief, the SCR Act sets out in Parts 3 and 5 respectively, particular provisions relating to the principal body corporate ("PBC") and the primary thoroughfare body corporate ("PTBC"). While I have not examined all of the relevant provisions (it is not necessary to do so to determine this dispute), it seems that variously in regard to both the PBC and the PTBC, the BUGT Act provisions would apply (from the generality of sections 5A of the BUGT Act and section 325(2) of the BCCM Act quoted previously) except where they are specifically excluded, or where there are inconsistent provisions then the SCR Act provisions apply. For example, the principal body corporate for the residential precinct imports some of the BUGT Act provisions by reference (see for example section 27(5) to (5C)), but also sets outs its own provisions regarding such common matters as insurance, voting, determining financial contributions, etc., paralleling those in BUGT Act. In section 19(2) of the SCR Act, sections 19(2) and (3) of BUGT Act are excluded. This hybridisation results in anomalies such as where the means of determining a special resolution for a principal body corporate (under section 22 of the SCR Act) varies from how it is determined under the BUGT Act for its subsidiary residential bodies corporate! This is because the definition adopted in section 22 is how a special resolution was defined in the BUGT Act before it was altered in October 1988.

Also, the relevant Minister under the SCR Act has inappropriate powers, for example, only the Minister can provide for the holding of the first body corporate meeting out of time or changing the body corporate address for service (see sections 27(6) and section 30 respectively), both being matters of minor importance that should be subject of a Referee’s order as for residential bodies corporate. In my view the legislation, at least so far as it concerns the management functions of the body corporate and the dispute resolution provision, as well as the other specified Acts which have similar deficiencies, need a total review and amendment.

Returning to the application before me and the question of jurisdiction, while the amendments of 4 March 2003 allow a Referee to deal with SCR Act matters, each dispute must be considered against the specific powers of a Referee to determine whether the dispute is one within a Referee’s power to determine. There is provision under section 77 of the BUGT Act, on the application of an owner, for a Referee to make orders against a body corporate to resolve a dispute with respect to "the exercise or performance of a power, authority, duty or function conferred or imposed by this Act in connection with that parcel". This is the general provision for a Referee to make orders; the specific heads of power for a Referee to make certain orders are set out in sections 79 to 94B (including section 90 to declare invalid by-laws beyond power, relevant to this dispute). However, to give effect to the amendment of 4 March 2003, the reference in section 77 to the power, authority etc., conferred or imposed by this Act (see my underlining) which refers of course to the BUGT Act, must be taken to also refer to the exercise or performance of a power, authority, duty or function conferred or imposed by the SCR Act as well, so as to be able to deal with matters relating to the PBC and the PTBC, as well as when and where the BUGT Act applies.

It follows that I agree with the submission by the respondent Mulpha that section 104A merely calls up the dispute resolution procedure contained in Part 5 of the BUGT Act and the scope of jurisdiction is identified by reading the section with the part, being limited to disputes that arise in relation to some aspect of the management, operation or use of lots within a building units plan or group titles plan under the SCR Act, including common property within such a plan.

I do not believe that it was the intention of s104A to extend the power of a referee under the BUGTA Act to reach beyond the determination of disputes relating to the rights, powers and procedures included in the BUGT Act in reference to a group titles plan (reflected in the BCCM Act and the powers of Adjudicators to deal with similar matters under that Act) to include matters relating to land-use and developmental issues under specified Acts, such as the issues raised here in respect of the SCR Act.

The dispute here relates to the use of land that is not part of a building units plan or group titles plan but is freehold land regulated in that respect by the SCR Act, and concerns whether a proposed development of that land is lawful within the planning provisions of that Act.

Accordingly, I have dismissed the application for want of jurisdiction under section 78(1)(c) of the BUGT Act. If the applicants wish to ursue the matter then they should bring it before the Planning and Environment Court for determination, and it is somewhat surprising this was not done initially.