Corella Rd Dev Pty Ltd v Body Corporate for Gympie Pines Fairway Villas CTS 36509 [2025] QCA 3

SUPREME COURT OF QUEENSLAND CITATION: Corella Rd Dev Pty Ltd v Body Corporate for Gympie Pines Fairway Villas CTS 36509 [2025] QCA 3 PARTIES: CORELLA RD DEV PTY LTD (applicant) v BODY CORPORATE FOR GYMPIE PINES FAIRWAY VILLAS CTS 36509 (respondent) FILE NO/S: CA No 171 of 2023 DC No 1431 of 2022 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane – [2023] QDC 152 (Kefford DCJ) DELIVERED ON: 31 January 2025 DELIVERED AT: Brisbane HEARING DATE: 6 June 2024 JUDGES: Mullins P and Boddice JA and Brown AJA ORDERS: 1. Leave to adduce further evidence by the applicant refused. 2. Leave to appeal refused. 3. The applicant pay the costs of the respondent of the applications. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – VARIATION, TERMINATION AND RENEWAL – OTHER MATTERS – where the applicant obtained development approval in respect of a material change of use of lot – where the applicant failed to provide notice of a change to a scheme to the respondent as required under s 29 of the Body Corporate and Community Management Act 1997 (Qld) – where the Magistrate found the applicant guilty of a contravention of the Body Corporate and Community Management Act 1997 (Qld) – where the applicant’s appeal to the District Court was reheard on the evidence and dismissed – where the applicant sought leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld) – whether the trial judge erred in relying on the Standard Planning and Development Certificate as evidence that the Preliminary Approval was in effect – whether there was a “current development approval for the scheme” under s 29 of the Body Corporate and Community -- 1 of 17 -- 2 Management Act 1997 (Qld) – meaning of “current development approval” Acts Interpretation Act 1954 (Qld), s 14A Body Corporate and Community Management Act 1997 (Qld), s 10, s 12, s 29, s 57, s 66, sch 6 Justices Act 1886 (Qld), s 223, s 225 Planning Act 2016 (Qld), s 88(2)(b), s 88(2)(c), s 265 Planning Regulation 2017 (Qld), s 71, sch 23 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited R v A2 (2019) 269 CLR 507; [2019] HCA 35, cited COUNSEL: P W Hackett for the applicant E J Morzone KC, with B P Strangman, for the respondent SOLICITORS: Small Myer Hughes Lawyers for the applicant Bugden Allen Graham Lawyers for the respondent [1] MULLINS P: I agree with Brown AJA. [2] BODDICE JA: I agree with Brown AJA. [3] BROWN AJA: The principal question for consideration on this appeal is what is the “current development approval” for a community titles scheme under s 29 of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), arising out of a private prosecution under that provision. [4] The Body Corporate for Gympie Pines Fairway Villas CTS 36509, the respondent, is the Body Corporate for a Community Title Scheme (the scheme) consisting of 54 residential lots and one undeveloped lot, being lot 101 on SP199607. Corella Rd Dev Pty Ltd, the applicant, is the owner of lot 101, having acquired it from the original developer in September 2019. The development the subject of the scheme was a progressive development which was to be developed over some years in five stages. The preliminary development approval for a material change of use, DA10463, had been granted in 2005 (Preliminary Approval). It provided that “any development resulting from this approval will be code assessable development with respect to a Material Change of Use (Multi-Unit Accommodation - 90 attached housing units)”. The last stage of the scheme to be completed was stage 3, which was the subject of development approval DA15262 granted in 2009. Stages 4 and 5 were contained within lot 101. [5] The applicant applied in 2020 for a development approval in respect of a material change of use of lot 101 for 21 single-storey dwellings, being 18 two-bedroom and three one-bedroom dwellings, which was granted in November 2020. Section 29 of the BCCM Act obliged notice of a change to a scheme in prescribed circumstances to be given to the body corporate of a scheme and buyers of a proposed lot in the scheme. It is uncontroversial that notice of the application was not given to the respondent by the applicant. The respondent filed a complaint and summons on 21 May 2021, pursuant to s 29 of the BCCM Act, and prosecuted the applicant as a result of the failure to give notice. -- 2 of 17 -- 3 [6] The applicant was found guilty of a contravention of s 29 of the BCCM Act by Magistrate Callaghan on 19 May 2022. It was fined $125,000 and ordered to pay the costs of the respondent amounting to $115,000. [7] The applicant appealed to the District Court. [8] The appeal was dismissed by Kefford DCJ. The appeal was conducted by way of re- hearing on the evidence before the Magistrate. No application was made to adduce fresh, additional or substituted evidence in that appeal. [9] One of the critical issues before the Magistrate which was then the subject of the appeal to the District Court was whether there was a “current development approval for the scheme” or whether it had lapsed. Leave required [10] The applicant has applied for leave to appeal to this Court. In order to obtain leave, the applicant typically needs to show a reasonable argument that there is an error to be corrected and that it is necessary to correct a substantial injustice to the applicant, it involves an important question of law, or a question of public importance is raised.1 If leave is granted, it is an appeal stricto sensu, where the sole duty of the Court is to determine whether error has been shown on the part of the court below.2 [11] In the present case the applicant contends that the grant of leave to appeal is necessary to correct a substantial injustice and an error. The respondent contends that leave should not be granted. Section 29 of the BCCM Act [12] Section 29 of the BCCM Act provides: “29 Notice about change of scheme being developed progressively (1) This section applies if— (a) a community titles scheme is intended to be developed progressively; and (b) the developer intends to change the scheme in a way that, if carried out— (i) would affect the nature of the development or 1 or more stages of the development; and (ii) would not be consistent with the current development approval for the scheme. (2) The developer must give written notice of the change as required under this section to— 1 McDonald v Queensland Police Service [2018] 2 Qd R 612 at 621 [27] and 625-6 [39] per Bowskill J (with whom Fraser and Philippides JJA agreed); Robertson v Robertson [2024] QCA 92 at [23] per Bond JA (with whom Crow and Crowley JJ agreed). 2 Fox v Percy (2003) 214 CLR 118 at 129 [32] per Gleeson CJ, Gummow and Kirby JJ; Bowskill J summarised the relevant principles in McDonald v Queensland Police Service [2018] 2 Qd R 612 at 625-6 [39]. -- 3 of 17 -- 4 (a) the body corporate; and (b) each person who has entered into a contract with the developer to buy a proposed lot in the scheme. Maximum penalty for subsection (2) —300 penalty units. (3) The notice must be given at least 30 days before the developer applies for development approval for the changed scheme.” The decisions below [13] In the original hearing of the matter, the Magistrate found the defendant, now applicant, guilty. The Magistrate identified the relevant, and uncontroversial, elements of the offence to be that: (a) the community title scheme is intended to be developed progressively; (b) the defendant is “the developer” of the Gympie Pines Fairway Villas Community Titles Scheme 36509 within the meaning of that expression in s 29 of the BCCM Act; (c) by reason of the defendant’s application for the development approval, the defendant intended to change the scheme in a way that, if carried out: (i) would affect the nature of the development or one or more stages of the development; and (ii) would not be consistent with the current development approval for the scheme; and (d) the defendant failed to give written notice of the change at least 30 days before the developer applied for the development approval for the changed scheme to: (i) the body corporate; and (ii) each person who has entered into a contract with the developer to buy a proposed lot of the scheme. [14] The Magistrate found all elements to be established. The question of whether there was a “current development approval for the scheme” was a matter the subject of extensive evidence and argument. The applicant contended that the approval of the development application identified by the respondent as the “current development approval”, the Preliminary Approval, had lapsed under the Sustainable Planning Act 2009 or its successor, the Planning Act 2016 (Planning Act), and therefore the third element above could not be established. [15] Notwithstanding that the respondent had particularised the “current development approval” to be the Preliminary Approval, which was amended on 27 March 2006,3 and sought to prove it was a current development approval on the basis of it being recorded as being “in effect” on the Standard Planning and Development Certificate tendered by the respondent as evidence, the respondent submitted in closing submissions that the word “current” did not refer to a current, not lapsed development approval under the Planning Act, “but rather relates to a development approval which 3 See Particulars filed 29 July 2021 at [1(i)]. -- 4 of 17 -- 5 is reflected in the current community management statement” for the Scheme which was relevantly the Preliminary Approval. [16] In adopting the respondent’s construction, the Magistrate reasoned that: “[24] The words “development approval” are defined in the BCCM to mean in part “a development approval under the Planning Act…” Part 6 of chapter 2 of the BCCM sets up a scheme of requirements providing that there be community management statements in respect of each community title and that there be a first community management statement for a community titles scheme. Existing statements for community titles schemes can’t be amended but new community managements statements can be recorded in place of the existing ones. A request to record a new community management statement for a community titles scheme must be lodged when a new plan of subdivision affecting the scheme (including affecting a lot in, or the common property for, the scheme) is lodged. The body corporate must give copies of the statement to the local government. And if there is to be a new community management statement in place of the existing statement then consent to the same must be given by each member of the body corporate in the form of a resolution without dissent. The community management statement in addition to identifying the scheme land, among other things, must identify the name of the scheme, the name of the body corporate, must include a contribution schedule, must include any bylaws that are not bylaws set out in schedule 4 of the GCCM and if the scheme is intended to be developed progressively (as this one is) and the development is not complete, it must explain the proposed development and illustrate it by concept drawings and state the purpose of any future allocations for the scheme and the stages in which the future allocations are to be made. [25] In my view, if one was to interpret the word current in the manner that is argued by the defendant it would mean that even if there was an existing development approval then a developer (either the original or a new developer who had purchased the same from the original) could cancel a development approval and then submit a new development approval without giving notice. If that were so, the purposes of S 29 of the BCCM, to allow the body corporate sufficient time to consider its position as an owner and to object to any application, would not be achieved. [26] I therefore find that the words “current development approval” where it relates to a progressive development is the development approval explained and illustrated in the current community management statement.” (footnotes omitted). [17] In the appeal to the District Court, the applicant contended that there were two errors in the Magistrate’s decision, namely: -- 5 of 17 -- 6 (a) that the Magistrate erred in the interpretation of s 29 of the BCCM Act and, in particular, the construction of the term “current development approval”; and (b) the Magistrate erred in finding the complaint was made out and the applicant was guilty of the offence. [18] As to the first ground, the applicant contended that the “current development approval” was not the development described in the community management statement but the current development approval relevant to the Scheme under the Planning Act. It contended that the Preliminary Approval, was not a current development approval as it had lapsed. [19] Judge Kefford found that the Magistrate had erred in construing “current development approval” as being the development described in the community management statement. Her Honour found that, properly construed, “current development approval” is a development approval that is “valid and effective at the relevant time” under the Planning Act.4 [20] Her Honour, however, rejected the applicant’s contention that the Preliminary Approval had lapsed pursuant to s 88 of the Planning Act, which provides: “88 Lapsing of approval for failing to complete development (1) A development approval, other than a variation approval, for development lapses to the extent the development is not completed within any period or periods required under a development condition. (2) A variation approval for development lapses to the extent the development is not completed within— (a) if a development condition required the development to be completed within a stated period or periods—the stated period or periods; or (b) if paragraph (a) does not apply—the period or periods the applicant nominated in the development application; or (c) otherwise—5 years after the approval starts to have effect. (3) However, despite the lapsing of the development approval, any security paid under a condition stated in section 65(2)(e) may be used as stated in the approval or agreement under section 67 (to finish the development, for example).” [21] The applicant, in particular, had relied on s 88(2)(c) in contending that the Preliminary Approval had lapsed on the basis that it was the only relevant subsection. It was uncontroversial that five years had passed since the Preliminary Approval started to have effect by the time the Planning Act commenced on 3 July 2017.5 Her Honour, 4 Corella Rd Dev Pty Ltd v Body Corporate for Gympie Pines Fairway Villas CTS 36509 [2023] QDC 152 at [30] (Reasons). 5 Reasons at [33]. -- 6 of 17 -- 7 however, found that the applicant had not demonstrated that the Preliminary Approval had lapsed because it did not establish that the development application for the Preliminary Approval did not nominate a period within which the development would be completed, such that the approval could be shown to have lapsed under s 88(2)(b).6 [22] In reliance on a Standard Planning and Development Certificate from Gympie Regional Council for the land, her Honour found that the Preliminary Approval was in effect and was a current development approval. In that regard her Honour relied upon s 265 of the Planning Act and s 71 and sch 23 of the Planning Regulation 2017 (Qld). [23] Judge Kefford found that the applicant intended to change the community title scheme in a way that would not be consistent with that Preliminary Approval.7 Her Honour concluded that the applicant had not otherwise discharged its onus to set aside the conviction. The appeal was dismissed. Proposed Grounds of Appeal [24] The applicant seeks leave to appeal only the findings of her Honour in [33] to [36] of her reasons, namely that the Preliminary Approval was the “current development approval” and had not lapsed. It contends that her Honour erred in relying on the Standard Planning and Development Certificate as evidence that the Preliminary Approval was in effect and finding that an essential element of the offence was established beyond reasonable doubt. The applicant further contends that her Honour reversed the onus of proof for an essential element of the offence and denied procedural fairness in deciding the appeal on an issue, namely the application of s 88(2)(b) of the Planning Act, which was not subject of argument on appeal. [25] The applicant also seeks leave to adduce further evidence, namely the amended Preliminary Approval, to demonstrate that there was no nominated date for completion of the development within the meaning of s 88(2)(b) of the Planning Act. Given this appeal is stricto sensu, that could only be relevant to the question of whether substantial injustice will be caused if leave to appeal is not granted. [26] The respondent contended although the District Court judge had found error in the Magistrate’s construction, the finding that the relevant approval, being the Preliminary Approval, was current was correct including her reliance on the Standard Planning and Development Certificate which had been admitted without objection. It did not file any Notice of Contention to contend that the Magistrate’s construction of “current development approval” was correct. A question of construction [27] While it was not part of the applicant’s appeal and there was no notice of cross- contention, this Court raised with the applicant at the outset of the appeal the question of the correctness of the construction of the District Court judge, as opposed to the construction by the Magistrate, it being a matter of law. As a result of the Court raising this matter, the applicant and respondent were given leave to file further written submissions. 6 Reasons at [34]. 7 Reasons at [35]. -- 7 of 17 -- 8 [28] In its supplementary outline, the applicant submitted that the Magistrate’s construction, being an adoption of one proposed by the respondent in its closing submissions following the trial, was made without the applicant being given the opportunity to respond as the construction was articulated in the respondent’s written submissions after the delivery of the applicant’s submissions where no provision was made for submissions in reply. It contends that the respondent’s submissions in this respect departed from the Particulars provided and, as a result, the Magistrate denied the applicant procedural fairness by adopting a construction in relation to which the applicant could not respond as a matter of law or fact. [29] The applicant contends that the interpretation of “current development approval” adopted by the District Court judge was the correct construction. Schedule 6 of the BCCM Act defines “development approval” to relevantly include “a development approval under the Planning Act” and “Planning Act” is defined to mean “Planning Act 2016”. In the applicant’s submission, the construction adopted by the Magistrate conflated “current development approval” with “development approval explained and illustrated in the current community management statement”. It contends that section 12 of the BCCM Act, which defines a “community management statement”, and s 66 of the BCCM Act, which sets out the requirements for a community management statement, do not refer to any requirement to explain or illustrate the current development approval. [30] The applicant contends there is no ambiguity in the words “current development approval”. Development approval is defined in sch 6 of the BCCM Act to include “a development approval under the Planning Act”, while “current” bears an ordinary meaning of present, which was also adopted by the respondent.8 The words differ from and were not intended to have the same meaning as different words used elsewhere in the BCCM Act, such as the “existing community management statement”, which is used in s 57 of the BCCM Act in the context of community titles intended to be developed progressively, or “existing statement”, which is defined in sch 6 of the BCCM Act. It contends the Magistrate’s construction treats the words as if they have the equivalent meaning in circumstances where ss 29 and 57 are enlivened in different circumstances. [31] The applicant contends that it is unnecessary to have regard to the explanatory note relevant to the introduction of s 29 of the BCCM Act and s 14A of the Acts Interpretation Act 1954 (Qld), because it is uncontentious between the parties that “current” means current at the time the developer intends to change the scheme, which is evident from s 29(1)(b) of the BCCM Act and the meaning is otherwise clear. The applicant submits that, the words “the current development approval for the scheme” bear their natural and ordinary meaning. The applicant also contends that the words “current development approval” have been used in other decisions in the way the applicant contends they should be construed, although not in relation to the BCCM Act. [32] The respondent contends that the development approval for the “scheme” in s 29 of the BCCM Act refers to the “community titles scheme”, as defined in s 10 of the 8 Although the District Court judge adopted a definition from Macquarie Dictionary, “passing in time, or belonging to the time actually passing”, the Oxford Dictionary includes as one of the definitions “Existing or occurring now; at this time; present” as well as “Of a law, writ etc: in force in a particular place or at a particular time”. -- 8 of 17 -- 9 BCCM Act, and should be construed to be the approval which affects all lots contained in the scheme and common property, not just one particular stage. [33] The respondent contends that this construction is consistent with s 10, which provides that: “10 Meaning of community titles scheme (1) A community titles scheme is— (a) a single community management statement recorded by the registrar identifying land (the scheme land); and (b) the scheme land. (2) Land may be identified as scheme land only if it consists of— (a) 2 or more lots; and (b) other land (the common property for the community titles scheme) that is not included in a lot mentioned in paragraph (a)…” [34] The respondent ultimately contends, consistent with the intended consumer protection of s 29, that “current development approval” for the scheme should be construed to mean the development approval under the Planning Act, which affects all the lots contained in the scheme and not just development approvals for each individual stage. It contends that “current development approval” for the scheme means the development approval under the Planning Act affecting all lots contained in the scheme, which was “current” at the time the community management scheme was recorded, particularly Schedule B of the existing community management statement. The community management statement is the document that is recorded on the Register and which is readily accessible by consumers and provides the intended consumer protection of the provision. It contends the construction is consistent with the fact that the community management statement must comply with s 66(1)(f) of the BCCM Act if a progressive development, which provides details of the development of the scheme. [35] The respondent contends that the Preliminary Approval, DA10463, is the only development approval that applies to the scheme as a whole. It created lot 2 on SP 177854 (which was later subdivided to create stage 1 to 3 lots and a balance development lot, namely lot 101), which formed the parcel of land in which the scheme exists and granted preliminary approval for the material change of use for multi-unit accommodation units. Proper construction of “current development approval” [36] While the applicant contends that it is unnecessary to have regard to the explanatory note in construing s 29 of the BCCM Act because of the plain words of the statute, that does not accord with the modern statutory approach. While one starts with the words of the statute in order to ascertain the meaning of a statute, one must also have regard to the context and purpose of the statute, even where the words are clear. As was recognised by Kiefel CJ and Keane J in R v A2, “It is now accepted that even -- 9 of 17 -- 10 words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete”.9 [37] Nor is s 14A of the Acts Interpretation Act 1954 (Qld) predicated on any ambiguity being found in the provision concerned. The Court is to prefer the interpretation that will best achieve the purpose of the Act.10 [38] There is, in any event, some ambiguity in s 29 of the BCCM Act by the use of “current” in combination with “for the scheme”. While “development approval”, is defined relevantly to refer to development approval under the Planning Act, the relevant phrase being construed in section 29(1)(b)(ii) is “current development approval for the scheme”. It does not therefore necessarily mean, as the applicant contends, the development approval under the Planning Act current at the time the developer seeks to change the scheme. [39] The words in the provision itself and the context of the provision in the BCCM Act as a whole provides some assistance to its construction. [40] The word “scheme” in s 29(1)(b) of the BCCM Act clearly refers to the community titles scheme which is being progressively developed, which is referred to in s 29(1)(a). A scheme is defined in s 10(1) and is a “single community management statement recorded by the registrar identifying land” and “scheme land”. Section 10(4) of the BCCM Act provides that for each community titles scheme, there must be: “(a) at least 2 lots; and (b) common property; and (c) a single body corporate; and (d) a single community management statement.” [41] Under s 12 of the BCCM Act, “community management statement” is defined as being “basic to the identification of a community titles scheme”. [42] Section 66(1) of the BCCM Act provides that the “community management statement” for a community titles scheme, in addition to identifying the scheme land, must, amongst other things: “(f) if the scheme is intended to be developed progressively (including, for example, subdivision of scheme land to create further lots for the scheme or to establish a subsidiary scheme, or excision of a lot from, or addition of a lot to, scheme land) and the development is not complete— (i) explain the proposed development and illustrate it by concept drawings; and (ii) state the purpose of any future allocations for the scheme and the stages in which the future allocations are to be made; …” (emphasis added). 9 R v A2 (2019) 269 CLR 507 at 521 [32] per Kiefel CJ and Keane J. Similarly, see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 368 [14] per Kiefel CJ, Nettle and Gordon JJ. 10 Acts Interpretation Act 1954 (Qld) s 14A. -- 10 of 17 -- 11 [43] While s 66(1)(f) does not refer to the development approval, the details required to be provided would be derived at least in part from the development approval which applied to the scheme to explain the proposed development. [44] That existing statement for a community titles scheme cannot be amended but a new community statement may be recorded if the body corporate consents.11 A motion to change an existing community management scheme can generally only be submitted by the body corporate committee, the owner of a lot included in the scheme or a body corporate manager.12 [45] However, in the case of a progressive development, a developer is required to prepare a new community management scheme where a new plan for subdivision is proposed in circumstances prescribed by s 57 BCCM Act. This includes where the new subdivision plan is inconsistent with the existing community management statement for the scheme because the plan changes the scheme in a way that affects the nature of the development or one or more stages of the development as provided in s 57(3) of the BCCM Act. Section 57(5) of the BCCM Act requires that the developer prepare a new community management statement required under s 56(1) for the scheme and for it to be given to the body corporate to provide its consent. That does not, however, replace the requirement to give notice under s 29 of the BCCM Act. Section 57(7) of the BCCM Act provides that: “(7) However, if this section applies because of the circumstances stated in subsection (3), the body corporate is not required to endorse its consent on the statement unless— (a) the developer has— (i) given the body corporate a notice as required under section 29(2)(a); and (ii) obtained development approval for the changed scheme; and (b) the new community management statement is consistent with each development approval for the changed scheme; …” [46] As the applicant submits, ss 29 and 57 operate in different circumstances but are interrelated, with the s 29 statement being required to be provided before a body corporate is required to endorse its consent on the statement under s 57 of the BCCM Act. Section 29, however, operates at the stage of development approval being intended rather than having been made. [47] Section 57, however, makes clear that there is an interconnection between a development approval and the community titles scheme through the community management statement where there is a new plan of subdivision that is inconsistent with the community management scheme as provided in s 57(3) which largely combines the two requirements in s 29(1)(b). [48] It is evident that “current” refers to the development approval that is current as recorded under the community titles scheme and not “current” under the Planning Act 11 BCCM Act s 54. 12 BCCM Act s 55. -- 11 of 17 -- 12 and that it is a development approval “for the scheme” referring to the approval which governs the development of the scheme as a whole intended to be developed progressively, including in stages and is current at the time of the existing community management statement. That would, in a case such as this include the planning approval for the scheme relevant to its use and any approval for the development of the scheme which has required a new community management statement for the scheme under s 56 and s 57 of the BCCM Act as a result of a new plan of subdivision and is the subject of the existing community management scheme at the time the developer intends to change the scheme. In this case, that would be both the preliminary approval for the material change of use and the development approval for the latest stage current at the time of the community management statement executed on 19 March 2009. [49] I consider that this is the proper construction for the following reasons: (a) Section 29 is found in the part of the BCCM Act dealing with the “Establishment of Community Titles Scheme” with the other provisions referring to the establishment of the scheme and the changing of the scheme. (b) Even though development approval is defined to be a development approval under the Planning Act, the reference in s 29 is “current development approval for the scheme” in the context of a scheme being developed progressively. The words “for the scheme” indicate it is not merely reference to a development approval that is current under the Planning Act. The reference to the “scheme” plainly refers to the community title scheme being developed progressively which is referred to in ss 29(1)(a) and 29(1)(b). (c) Notice under s 29(2) is required to be given not only to the body corporate but to “each person who has entered into a contract with the developer to buy a proposed lot in the scheme”. The existing community management statement for the community title scheme is one of the principal information sources for the buyer as to the nature of the development in which the buyer has bought a lot. (d) The explanatory note when the provision was introduced is consistent with a legislative intention that the “current development approval for the scheme” is the approval or approvals the subject of the latest community management statement. It stated that the provision “… provides for notice to be given to the body corporate where a scheme, that is a progressive or staged development, is to be changed by the developer from that already disclosed in the community management statement” (emphasis added).13 (e) Details of how the scheme is to be developed progressively is required to be contained in the community management statement by s 66(1)(f) of the BCCM Act. While that section provides for information to be given as to the nature of the development relevant to s 29(1)(b)(i), it is also relevant to s 29(b)(ii). The development would be the subject of a development approval obtained for a scheme and potentially for each stage of development within the scheme. The development approval would underpin the nature of the development and be relevant to the provision of information as to the nature of the development of the scheme required to be contained in the community management statement. 13 Explanatory Note, Body Corporate and Community Management and Other Legislation and Amendment Bill 2002 (Qld) at 15, noting that the provision was originally inserted as s 30A. -- 12 of 17 -- 13 The reference to the development approval in s 29(b)(ii) is not disconnected and separate from the information provided in the community management statement. (f) It best gives effect to the purpose of the Act which includes as the secondary objects “to provide an appropriate level of consumer protection for owners and intending buyers of lots included in community titles schemes” and “to ensure accessibility to information about community titles scheme issues”.14 Regardless of the currency of a development approval under the Planning Act, a departure from the development of scheme land outlined in the community management statement and the seeking of a new approval in different terms could affect intending buyers, including in the sense that the proposed development cannot occur as proposed because the relevant development approval is no longer current. No such corresponding notice is required to be given to a buyer under the Planning Act. That is consistent with the explanatory notes which stated the purpose of the notice requirement was three-fold:15 “Firstly it is to allow the body corporate sufficient time to consider its position as an owner who may object to an application under the planning process contained in the Integrated Planning Act 1997. Secondly, the notice must also be given to buyers of proposed lots, as they need to be informed as to whether any change may adversely affect them and therefore their ability to complete the contract to purchase. Thirdly, it puts developers on notice to be honest and open in development proposals and also to be aware of their obligations to the body corporate and future owners of the scheme.” [50] This is also supported in the context of the scheme as a whole, given s 57(7) of the BCCM Act acts as an additional safeguard for compliance with s 29 BCCM Act to the extent that it provides that a body corporate is not obliged to endorse its consent on the statement unless the developer has given the body corporate a notice as required under s 29(2)(a), obtained development approval for the changed scheme, and ensured that the new community management scheme is consistent with each development approval for the changed scheme. Section 57 also requires updated community management statements where there is a new subdivision plan which maintains the currency of what is proposed to be developed as part of a scheme. [51] Such a construction does not conflate ss 29(1)(b)(i) and 29(1)(b)(ii) or “current development approval for the scheme” with the “existing community management statement for the scheme”, as found in other sections in the BCCM Act, including s 57, or “existing statement” as defined in schedule 6. The proposed change to the scheme must refer to a change in how or the order in which a development is to be carried out which is not consistent with the development approval the subject of the scheme reflected in the community management statement for the scheme before any notice must be given. [52] As the District Court judge discussed, there is potential for some overlap between s 29(b)(i) and (b)(ii) insofar as the nature of the development for a progressive 14 See BCCM Act s 4(g)-(h). 15 Explanatory Note, Body Corporate and Community Management and Other Legislation and Amendment Bill 2002 (Qld) at 16. -- 13 of 17 -- 14 development will, to a certain extent, be explained in the community management statement given the requirements of s 66(1)(f), as opposed to the current development approval. However, construing “current development approval for the scheme” as referable to the development approval that is reflected in the community management statement does not mean that s 29(b)(i) and (b)(ii) have the same meaning or favour a construction whereby the currency of the development approval is to be determined according to the Planning Act. The nature of the development described in schedule B is not necessarily the full scale of the development for which development approval was given. Thus, the duality of the requirements before notice has to be given by the developer. Section 29(1)(b)(ii) provides for the possibility that the intended change by the developer, although it will affect the nature of the development or one or more stages of the development, may still fall within the scope of the current development approval relating to the work described in the community management scheme. That is consistent with the fact that s 57 requires a new community management statement where there is a new plan of subdivision affecting the scheme as set out in that section. The change to the development the subject of the scheme may be necessary in order to meet a condition of the development approval given. Thus, it would still be open as a defence to demonstrate that the proposed change by the developer to the scheme still falls within the scope of the development approval that was current at the time of the community management statement. [53] Section 29 of the BCCM Act is directed to changing the nature of the development of the scheme described in the community titles scheme through the community management statement and the commensurate development approval relevant to the development described and serves to provide information to owners of lots and potential buyers into the development the subject of the scheme. While the legality of the development and the currency of the approval to proceed with the development would be a source of concern, the legality of the development proceeding in accordance with the required development approval under the Planning Act is a matter which is addressed by the Planning Act. [54] A review of the cases referred to by the applicant in relation to decisions said to involve similar words in other legislation, not the BCCM Act, does not cast any light on the construction that should be adopted in relation to s 29 of the BCCM Act. [55] The District Court judge placed too much emphasis on the reference to “development approval” and not the words “for the scheme”. Those words in the context of the section and the BCCM Act as a whole indicate that “current” was referable to the development approval current for the scheme, which was to be determined by reference to the latest community management statement for the community titles scheme. The District Court judge also did not consider the significance of service of the notice on a buyer of a proposed lot and the explanatory note which was relevant to the context of the provision. “Current”, in its context, does not mean current under the terms of the Planning Act, albeit any development approval is granted and remains in force for the purposes of the development pursuant to the terms of the Planning Act. In finding that to be the case, the District Court judge erred in her construction of s 29 of the BCCM Act. Should Leave Be Given? [56] Given the proper construction of “current development approval of the scheme” is consistent with the construction adopted by the Magistrate, the question then arises -- 14 of 17 -- 15 as to how this construction should affect the present application, given that construction was not adopted in the District Court judgment on appeal, nor was it raised by the parties in the context of this application. [57] As a result of the construction adopted, the question of whether the Preliminary Approval, DA10463, had lapsed under the Planning Act is not the relevant question for this Court under s 29 of the BCCM Act. The further evidence which the applicant has sought to adduce before this Court to demonstrate that there is evidence supporting the fact that the Preliminary Approval had lapsed under s 88(2), contrary to her Honour’s finding, is therefore irrelevant to the construction of “current development approval” in s 29(1)(b)(ii). That application to adduce further evidence should be refused. [58] The applicant contends it did not have the opportunity to respond to the construction adopted by the Magistrate following the trial. According to the applicant the construction proposed by the respondent was only raised in its written closing submissions before the Magistrate and that was not consistent with the charge as particularised, and the applicant was not given the opportunity to respond to that proposed construction. It contended in oral submissions that if the Court adopted the construction of “current development approval” adopted by the Magistrate, the matter should be remitted back to the Magistrate so the parties can make submissions to the Magistrate in relation to that construction in terms of the effect of that construction on the prosecution of the applicant. [59] The respondent, however, submits that leave should not be given by this Court and the application should be refused. It contends that the applicant was not denied natural justice as its case at trial and before the District Court was that the Preliminary Approval was the “current development approval” for the purposes of s 29 of the BCCM Act and that “current” was determined by reference to what development approval was reflected in schedule B of the existing community management statement. It submits the applicant made a tactical decision to contend that the development approval had lapsed under the Planning Act and did not mount any substantial argument to respond to the respondent’s position. Rather, the applicant did not object to the admission of the Town Planning and Development Certificate and sought to contend that it was not reliable in a number of respects. It contends that the Particulars of the charge had identified the parts of the community management statement relevant to the offence in subparagraphs [1](a)-(h), (i) and (k) and that the applicant was sufficiently on notice as to the legal and factual basis of the complaint. Further, it had the opportunity to appeal to the District Court by way of rehearing under s 223 of the Justices Act 1886 (Qld) where the respondent’s position remained unchanged. Thus, any denial of natural justice could not survive the appeal to the District Court and the applicant’s choice to present the case as it did. [60] The respondent further contends that if the “current development approval” means the development approval for the scheme that was “current” at the time of the current community management statement for the scheme, the Preliminary Approval was explained in accordance with s 66(1)(f) of the BCCM Act in schedule B of the third community management statement and was in force at the time of the community management statement, which accorded with its case at trial. [61] The Particulars set out the proposed development for the scheme land derived from schedule B of each community management statement, including the third -- 15 of 17 -- 16 community management statement recorded on 19 March 2009. The “Current Development Approval” was defined as “Preliminary Approval DA10463” given by the Cooloola Shire Council on 21 June 2005 and amended on 27 March 2006. The Particulars stated, “That amended development approval is in effect for the Scheme Land and is a development approval for the scheme”. Part of the defence of the applicant at the trial was that that development approval was not “in effect” for the scheme land and had lapsed. In subparagraph [1](j), the particulars further identify the survey plans by which the land was reconfigured. In subparagraph [1](k), it specifies that the development of the scheme, and creation of lots and common property, was consistent with the “Current Development Approval”. They did not, identify DA15262 relevant to the development of stage 3 of the land the subject of the scheme, which presumably resulted in the third community management statement. However, the applicant conceded before the District Court judge that the Preliminary Approval was the only development approval relevant to stages 4 and 5 which are now lot 101 and the subject of the developer’s intended change to the scheme. [62] While the particulars did set out details of the development and proposed lots in each community management statement, they did not particularise the “Current Development Approval” to be the development approval current at the time of the existing community management statement, namely the third community management statement, at the time the developer intended to propose the scheme. Rather, the particulars only referred to the Preliminary Approval. On the basis of the particulars provided, the respondent’s case was not clear. [63] The respondent’s position as to the construction of “current development approval of the scheme” was made clear in its closing submissions, however, no provision was made for the applicant to reply to those submissions. In the context of a quasi- prosecution that is unsurprising, although it is surprising that the applicant did not make any application to the Magistrate to object to a case not particularised being relied upon by the applicant. [64] However, the applicant had the opportunity to raise the question of the denial of natural justice in the appeal before the District Court judge, which was by way of rehearing under s 223 of the Justices Act 1886 (Qld). A denial of natural justice was relevantly an error that could have been raised before the District Court judge who would have had the power to remit the matter back to the Magistrate under s 225 of the Justices Act 1886 (Qld). [65] While the applicant had asserted the denial of natural justice before the District Court judge on appeal as a result of the Magistrate adopting the construction proposed by the respondent which differed from particulars of charge before the District Court judge on appeal, the applicant did not contend that, if the construction of the Magistrate was correct, the case should be remitted back to the Magistrate for further submissions and potentially further evidence based on that construction, as a result of the denial of natural justice, although the Notice of Appeal was broad enough for it to do so. In oral submissions before the District Court judge, the applicant agreed that the Preliminary Approval was the only approval which related to stages 4 and 5 and that, if it had not lapsed, it was the current development approval her Honour should look to for the purposes of determining whether there was an intention to change the scheme that was inconsistent with the Preliminary Approval. -- 16 of 17 -- 17 [66] A review of the transcript before the District Court does show that the District Court judge raised with the applicant the position if the Preliminary Approval was found to be the current development approval. According to the District Court judge’s reasons, the applicant did “not challenge that the development the subject of its development application to Gympie Regional Council is not consistent with the Preliminary Approval”16 but contended that the Magistrate’s construction was in error and there was no “current development approval” at all. The applicant has not sought to contend in its proposed appeal that her Honour was in error in that regard. [67] The District Court judge found that the Magistrate was not in error in determining that the applicant intended to change the scheme in a way that, if carried out, would affect the nature of the development or one or more stages of the development under s 29(1)(b)(i). That finding is not the subject of challenge by the applicant in its proposed appeal for which leave is sought. [68] While there is substance in the applicant’s contention that it was denied natural justice in the Magistrates Court, given that argument was not pursued in the appeal before the District Court when it was open for it do so, any denial of natural justice could have been addressed at the time of the appeal. In any event, while the applicant had made detailed submissions before the Magistrate as to the chronology of the development approvals, it is evident on the basis of that chronology that, at the time of the third community management statement, the Preliminary Approval was current and would not have expired until 21 June 2009 if the “use” had not commenced beforehand. [69] The question of whether there would be an inconsistency between the proposed intended change of the scheme by the applicant and the current Development Approval was a matter canvassed by the applicant’s counsel before the District Court judge and her Honour recorded in her reasons the concession made, that there is an inconsistency and that proposed finding was not the subject of this proposed appeal. While the applicant chose to confine the appeal to the construction adopted by the District Court judge, it is evident that the gravamen of its defence was that the Preliminary Approval had lapsed, and it ran not only the trial but the appeal before the District Court judge on that basis. In the circumstances, I do not consider that any substantial injustice will be suffered by the applicant if leave is not granted. [70] Given that the applicant has been unsuccessful in both the application for leave to adduce evidence and for leave to appeal, costs should follow the event and the applicant pay the costs of the respondent of the applications. Proposed Orders [71] I would make the following orders: (a) Leave to adduce further evidence by the applicant refused; (b) Leave to appeal refused; (c) The applicant pay the costs of the respondent of the applications. 16 Reasons at [27]. -- 17 of 17 --