Hope Island Resort Principal Body Corporate [2010] QBCCMCmr 38 (2 February 2010)

Last Updated: 23 March 2010

REFERENCE: 0944-2009

ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Plan:	Hope Island Resort Principal Body Corporate
Address of Building or Parcel:	QUEENSLAND

TAKE NOTICE that pursuant to an application made under section 77 of the Building Units and Group Titles Act 1980 by Andreas Muhlbauer, the co-owner of Lot 12 in subsidiary body corporate Magnolia Gardens North GTP 101709

I order that the application for orders – “that a part of the development approval granted to Lot 13 of Magnolia Gardens North GTP 101709 by the PBC ... on 7th July 2009, namely the bamboo screening fence extension between Lot 12 and Lot 13... be revoked and an order for the removal thereof be issued” ; and “that the minutes of the Architectural Review Authority (ARA) Committee Meeting be corrected accurately to reflect the correspondence of the Proprietor of Lot 12 to the ARA Committee.” is dismissed for want of jurisdiction.

STATEMENT OF REFEREE’S REASONS FOR DECISION - 0944-2009

“Hope Island Resort Principal Body Corporate”

APPLICATION

This is an application dated 2nd October 2009 by Andreas Muhlbauer, (the Applicant) co-owner of Lot 12 in body corporate Magnolia Gardens North GTP 101709 (MGN) against the Hope Island Resort Principal Body Corporate (the PBC) for orders as follows-

1. “that a part of the development approval granted to Lot 13 of Magnolia Gardens North GTP 101709 by the PBC ... on 7th July 2009, namely the bamboo screening fence extension between Lot 12 and Lot 13... be revoked and an order for the removal thereof be issued.
   
2. that the minutes of the Architectural Review Authority (ARA) Committee Meeting be corrected accurately to reflect the correspondence of the Proprietor of Lot 12 to the ARA Committee.”
   

JURISDICTION

The Applicant is a proprietor in “Magnolia Gardens North” GTP 101709, a group titles plan established as part of Hope Island Resort which is governed by the Integrated Resort Development Act 1987 (IRDA), (a “specified Act” under the Body Corporate and Community Management Act 1997) and the Building Units and Group Titles Act 1980 (BUGTA) as amended.

MGN is a subsidiary scheme and residential precinct in Hope Island Resort Principal Body Corporate. By section 139(3) IRDA, MGN is a member of the Principal Body Corporate.

The dispute provisions under Part V of BUGTA apply generally for the operation of IRDA for a dispute “about the operation of [IRDA] or the rights and obligations of persons under [IRDA]” unless otherwise provided by IRDA. (Section 179A IRDA)

Section 179A IRDA in full says –

179A Dealing with particular disputes under Building Units and Group Titles Act 1980

(1) Subject to subsection (2), a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5.

(2) However, this section—

(a) does not apply to a dispute or matter mentioned in section 175W, 175X or 179B; and

(b) is subject to section 179C.

Section 179B IRDA referred to at section 179A(2)(a) IRDA, says –

179B Dealing with matter relating to development control by-law

(1) QCAT may deal with a matter relating to—

(a) the application of a development control by-law for an approved scheme to a person mentioned in subsection (2)(b) or (c); or

(b) a contravention or alleged contravention of a development control by-law for an approved scheme.

(2) Each of the following persons may apply to the QCAT, as provided under the QCAT Act, to deal with a matter under subsection (1) if the person has standing to make the application—

(a) the principal body corporate for the approved scheme;

(b) a subsidiary body corporate of the principal body corporate;

(c) a proprietor or occupier of, or a person having an estate or interest in, a lot in a residential precinct in the approved scheme.

(3) For subsection (2), a person has standing to make the application if the person is directly and materially affected by the matter to which the application relates.

Example—

A proprietor of a lot in a residential precinct in an approved scheme alleges the amenity of the lot has been, or will be, adversely affected by development authorised under a development control by-law in an adjoining residential precinct in the scheme.

(4) This section is subject to section 179C.

Section 179C IRDA requires either the Referee or QCAT as appropriate to consider what attempts at self resolution of the dispute have been made.

The amendments to IRDA were made by the Resorts and Other Acts Amendment Act 2009 and came into effect on 11th August 2009.

It therefore seems to me that the Commissioner’s Office has no jurisdiction to assess a dispute “relating to the application of a development control by-law to a... proprietor or occupier of... a lot in a residential precinct...” or a dispute “relating to a contravention or an alleged contravention of a development control by-law...” .

SUBMISSIONS

On perusing the Applicant’s submissions, it is clear that the Applicant’s case is as follows –

• that the bamboo fence extension erected by his neighbour George McDonald and apparently given retrospective approval by the ARA violates several development control by-laws and guidelines of the PBC, in particular, but not only, Development Control By-laws 1.05.4 (maximise view opportunities); and 3.02.4 (preservation of views);
• that the ARA’s interpretation of the Development Control By-laws is incorrect and unreasonable, and in breach of the general tenor of the Development Control By-laws and guidelines generally;
• the approval given was not consistent with other approvals and/or conditions given by the ARA for development;
• that the approval given by the ARA was unclear;
• that the Applicant’s concerns were not addressed sufficiently, or at all, by the ARA in making its decision to approve the fence extension;
• that there was insufficient response by the ARA to the Applicant’s subsequent correspondence to the ARA about the decision made on 7th July 2009.
  

The PBC’s submission included the following remarks –

• that “various aspects of the development do not comply with the Development Control By-laws” ;
• that the Development Control By-laws do not have specific provision for fencing between lots in GTPs;
• that the ARA always interprets the Development Control By-laws concerning views as being “from the rear boundary projecting forward”;
  

Mr McDonald’s submission included the following assertion-

• that the development control by-laws quoted by the Applicant are not applicable to Magnolia Gardens North.
  

DETERMINATION – WANT OF JURISDICTION

The Applicant is seeking an order to overturn a decision of the PBC’s Architectural Review Authority Committee made on 7th July 2009. He also seeks an order for the removal of the bamboo screening fence extension erected by the owner of Lot 13; and to correct the minutes of an ARA meeting.

I am of the view that the dispute concerning the ARA’s decision and the removal of the extension, “relates to” the application of a PBC development control by-law or by-laws to the Applicant and to Mr McDonald; and also “relates to” an alleged contravention of PBC development control by-laws.

As such, without commenting on the merits of this application in any way, I am of the view that I have no jurisdiction to resolve this dispute pursuant to section 179B IRDA.

Whilst the Applicant also seeks an order to correct minutes of an ARA meeting which do not “relate to” the application of development control by-laws or “relate to” an alleged contravention of development control by-laws, I am of the view that the application should be dealt with in its entirety by one tribunal, and that there would be no benefit to the parties to separate an order sought in the application which apparently falls within this jurisdiction.

I therefore dismiss this application. This application should be assessed by the Queensland Civil and Administrative Tribunal (QCAT) or other competent tribunal pursuant to section 179B IRDA.