Corella Rd Dev Pty Ltd v Body Corporate for Gympie Pines Fairway Villas [2023] QDC 152

DISTRICT COURT OF QUEENSLAND CITATION: Corella Rd Dev Pty Ltd v Body Corporate for Gympie Pines Fairway Villas CTS 36509 [2023] QDC 152 PARTIES: CORELLA RD DEV PTY LTD (appellant) v BODY CORPORATE FOR GYMPIE PINES FAIRWAY VILLAS CTS 36509 (respondent) FILE NO/S: 1431 of 2022 DIVISION: Crime PROCEEDING: Appeal ORIGINATING COURT: Gympie Magistrates Court DELIVERED ON: 30 August 2023 DELIVERED AT: Brisbane HEARING DATE: 4 August 2023 JUDGE: Kefford DCJ ORDER: The appeal is dismissed. CATCHWORDS: MAGISTRATES - APPEAL AND REVIEW – where the appeal against conviction was brought pursuant to s 222 of the Justices Act 1886 (Qld) – whether the learned Magistrate erred in the interpretation of s 29 of the Body Corporate and Community Management Act 1997 – whether the learned Magistrate erred in finding the complaint was made out and the appellant was guilty of the offence – whether the Magistrate erred in the interpretation of the term “current development approval” – whether the change to the community management scheme affects the nature of the development or one or more stages of the development – whether the change would not be consistent with the current development approval for the community management scheme LEGISLATION: Body Corporate and Community Management Act 1997 (Qld), s 29 Planning Act 2016 (Qld), s 88 Justices Act 1886 (Qld), ss 222, 223, 225 -- 1 of 12 -- 2 CASES: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied Cutter v The Queen [1997] HCA 7; 143 ALR 498, applied Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied Graham v Queensland Nursing Council [2009] QCA 280, applied R v Willmot (No 2) [1985] 2 Qd R 413, applied Shambayati v Commissioner of Police [2013] QCA 57, applied Tierney v Commissioner of Police [2011] QCA 327, applied Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482, applied COUNSEL: P Hackett for the appellant B Strangman for the respondent SOLICITORS: Small Myers Hughes Lawyers for the appellant Bugden Allen Graham Lawyers for the respondent TABLE OF CONTENTS Introduction .......................................................................................................................... 2 What is the nature of the appeal? ......................................................................................... 3 What are the grounds of appeal? .......................................................................................... 3 What are the issues that require determination? ................................................................... 5 What were the learned Magistrate’s findings on the issues that require determination? ..... 7 Did Corella Rd Dev Pty Ltd intend to change the Scheme in a way that would, if carried out, affect the nature of the development or one or more stages of the development? ........ 8 Did Corella Rd Dev Pty Ltd intend to change the Scheme in a way that would, if carried out, not be consistent with the current development approval for the Scheme? .................. 9 Conclusion and order.......................................................................................................... 12 Introduction [1] Corella Rd Dev Pty Ltd owns vacant land in a community title scheme that is being developed progressively, namely Gympie Pines Fairway Villas CTS 36509 (“the Scheme”). It intends to develop the land for 21 single storey dwellings, being 18 two- bedroom and three one-bedroom dwellings, on a single lot. On or around 14 August 2020, Corella Rd Dev Pty Ltd applied to Gympie Regional Council for a development approval to facilitate that development. [2] The nature of development intended to be carried out by Corella Rd Dev Pty Ltd is different to the progressive development identified in the community management -- 2 of 12 -- 3 statement for the Scheme. The community title statement records that the vacant land was to form stages 4 and 5 of the development, each of which was to be developed for 18 lots. [3] Before applying to Gympie Regional Council for the development approval, Corella Rd Dev Pty Ltd did not give written notice to Body Corporate for Gympie Pines Fairway Villas CTS 36509 (“the Body Corporate”) of its development intentions. [4] The Body Corporate commenced a proceeding about the failure to provide notice in the Magistrates Court in Gympie. On 19 May 2022, Corella Rd Dev Pty Ltd was convicted of an offence under s 29 of the Body Corporate and Community Management Act 1997 (Qld). This is an appeal against that conviction. What is the nature of the appeal? [5] The appeal is to be conducted by way of rehearing on the evidence given before the Magistrates Court. It involves a review of the record of proceedings below, subject to the grant of leave to adduce fresh, additional or substituted evidence.1 No such leave was sought during the hearing of the appeal. [6] The central task of the Court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, although such an analysis may sometimes be helpful. The Court is to decide the case for itself.2 This involves conducting a real review of the evidence, weighing conflicting evidence and drawing inferences and conclusions.3 If there is some legal, factual or discretionary error in the Magistrate’s decision,4 then the Court is entitled and obliged to exercise its powers on appeal.5 However, in doing so, the Court must bear in mind the advantage the Magistrate had in seeing and hearing any witnesses.6 [7] The Court may confirm, set aside, or vary the appealed order, or make any other order that the Court considers just.7 If the Court sets aside the order, it may send the proceeding back to the Magistrates Court with directions of any kind for the further conduct of the proceedings.8 [8] Corella Rd Dev Pty Ltd bears the onus.9 What are the grounds of appeal? [9] Corella Rd Dev Pty Ltd appeals on two grounds, namely: (a) the Magistrate erred in the interpretation of s 29 of the Body Corporate and Community Management Act 1997 and, in particular, the construction of the term “current development approval”; and 1 Justices Act 1886 (Qld) s 223. 2 Graham v Queensland Nursing Council [2009] QCA 280 [69]. 3 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 124-9. 4 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. 5 Tierney v Commissioner of Police [2011] QCA 327 [53]; Shambayati v Commissioner of Police [2013] QCA 57 [23]. 6 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-7 [25]. 7 Justices Act 1886 s 225. 8 Justices Act 1886 s 225(2). 9 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. -- 3 of 12 -- 4 (b) the Magistrate erred in finding the complaint was made out and Corella Rd Dev Pty Ltd was guilty of the offence. What are the elements of the offence? [10] Section 29 of the Body Corporate and Community Management Act 1997 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— (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.” [11] To convict of this offence, the learned Magistrate had to be satisfied that: (a) the Scheme is intended to be developed progressively; (b) Corella Rd Dev Pty Ltd is the developer of the Scheme; (c) Corella Rd Dev Pty Ltd intended to change the Scheme in a way that would, if carried out, affect the nature of the development or one or more stages of the development; (d) Corella Rd Dev Pty Ltd intended to change the Scheme in a way that would, if carried out, not be consistent with the current development approval for the Scheme; and (e) Corella Rd Dev Pty Ltd failed to give written notice of the intended change to the Body Corporate at least 30 days before Corella Rd Dev Pty Ltd applied for the development approval. -- 4 of 12 -- 5 What are the issues that require determination? [12] There is no dispute that: (a) the Scheme is one that is intended to be developed progressively; (b) Corella Rd Dev Pty Ltd is the developer of the Scheme; and (c) Corella Rd Dev Pty Ltd failed to give written notice of the change to the Scheme to the Body Corporate at least 30 days before Corella Rd Dev Pty Ltd applied for the development approval. [13] The alleged errors in the Magistrate’s decision raise two questions for consideration: 1. Did Corella Rd Dev Pty Ltd intend to change the Scheme in a way that would, if carried out, affect the nature of the development or one or more stages of the development? 2. Did Corella Rd Dev Pty Ltd intend to change the Scheme in a way that would, if carried out, not be consistent with the current development approval for the Scheme? [14] With respect to those issues, the particulars relied on by the Body Corporate state: “i. The first development approval, for what was to become the Scheme, was a development approval given by Cooloola Shire Council by Preliminary Approval DA10463 on or about 21 June 2005. That development approval was amended on 27 March 2006 (Current Development Approval). That amended development approval is in effect for the Scheme Land and is a development approval for the Scheme … n. …the nature of the development and the individual stages contained within the development included: i. the development of the Scheme to occur in five stages; ii. Stage 1 would contain 14 building format plan lots, common property and a balance development lot; iii. Stage 2 would contain 20 building format plan lots, common property and a balance development lot; iv. Stage 3 would contain 20 building format plan lots, common property and a balance development lot; v. Stage 4 would contain 18 building format plan lots, common property and a balance development lot; vi. Stage 5 would contain 18 building format plan lots and common property; and vii. Each Stage would be created by way of registration of a Building Format Plan and recording of a new Community Management Statement. -- 5 of 12 -- 6 o. Stages 1, 2 and 3 were completed by the registration of SP177855 (12 February 2007), SP191296 (4 April 2008) and SP199607 (19 March 2009) respectively, along with the recording of their associated community management statements. p. The balance development lot, from which Stages 4 and 5 were intended to be developed, is Lot 101 on SP199607 (Lot 101). … r. As the owner of Lot 101, the Defendant was, by definition contained in Schedule 6 of the Body Corporate and Community Management Act 1997 (Qld), the developer. s. As of 11 September 2019, when the Defendant became owner of Lot 101, the remaining stages of the development of the Scheme, being Stages 4 and 5, were intended to be developed by: i. the construction of 9 attached buildings across Stages 4 and 5, containing 36 residential dwelling units; and ii. the reconfiguration of Lot 101 into 36 building format plan lots and associated common property. t. On or about 24 June 2020 the Defendant lodged an Application for Development Approval with the Gympie Regional Council, the successor to the Cooloola Shire Council whom had issued the Current Development Approval. u. The Defendant’s lodgement of an Application for Development Approval provided for the Defendant’s intention to, if carried out, affect the nature of the development or 1 of more stages of the development (the Changed Scheme), by: i. the construction of National Disability Insurance Scheme accommodation (or similar) comprising 3 one-bedroom dwellings for ‘residential plan managers’ each having 6 surrounding two bedroom units, resulting in a total of 21 detached dwellings; and ii. no further reconfiguration of Lot 101, such that it would remain a standard format plan lot, (the Changes).” [15] The primary focus of Corella Rd Dev Pty Ltd’s attack on the Magistrate’s decision related to the Magistrate’s interpretation of the term “current development approval”. However, at the hearing of the appeal, Corella Rd Dev Pty Ltd also argued that there was no intention to change the Scheme in a way that would, if carried out, affect the nature of the development or one or more stages of the development. -- 6 of 12 -- 7 What were the learned Magistrate’s findings on the issues that require determination? [16] In respect of whether Corella Rd Dev Pty Ltd 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, the learned Magistrate found: “[29] …The current community management statement was lodged on 19 March 2009. By that point stage three had been completed and the statement indicates that stages one two and three comprised 54 lots. The document goes on to provide: “(7) Stage 4 will contain 18 lots, common property, and a balance development for lot (for future stages). (8) Stage 5 will contain 18 lots and common property (9) each stage will be created by way of a building format plan and a new community management statement” [30] Schedule B goes on to set out the development of the scheme which is depicted in concept drawings attached to it. The drawings are there for extra illustrative purposes only and do not accurately fix or specify the location of buildings or boundaries of buildings or common property. The concept plan is annexure “CP”. … [32] The defendant’s application 2020-1282 sought and was granted approval for 21 multiple dwellings single story dwellings being 18 two-bedroom dwellings and 3 one-bedroom dwellings … [33] Also, the approval is for all of those 21 lots dwellings to be included on the one lot within the community titles scheme. Mr Goodman acknowledged that this was a significant difference … These are significant differences.” (emphasis added) [17] In respect of whether Corella Rd Dev Pty Ltd intended to change the Scheme in a way that would, if carried out, not be consistent with the current development approval, the learned Magistrate found: “[21] The complainant argues that the word “current’ where is appears in s29 of the BCMM does not relate to a current, not lapsed development approval, but rather relates to a development approval which is reflected in the current community management statement. [22] I agree with the argument of the complainant in this regard. The word “current” is not defined in the BCCM and in absence of a definition it should be given its ordinary meaning and interpreted in a manner that would best achieve the purpose of the BCCM. -- 7 of 12 -- 8 [23] It is accepted that the word current means “present”. … [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. … [31] The 36 dwellings of stages 4 and 5 were to be single and double story and either one, two or three-bedroom dwellings if it was to be consistent with DA10463.” [18] In convicting Corella Rd Dev Pty Ltd of breaching s 29 of the Body Corporate and Community Management Act 1997, the learned Magistrate found: “[34] I am satisfied beyond reasonable doubt that the seeking of such approval would, if carried out, affect the nature of the development in stages four and five of the development and I’m satisfied beyond reasonable doubt that the seeking of such approval, if carried out, would not be consistent with the current developmental approval for the scheme. … Conclusion For the above reasons I am satisfied beyond reasonable doubt that: This community titles scheme for Gympie Pines Fairway Villas is a scheme that is intended to be developed progressively; and The defendant being the developer of stages four and five of the scheme, intended with its application for DA 2020-1282 to change the scheme in a way that if carried out; Would affect the nature of the development namely the nature of stages four and five of the development Would not be consistent with the current development approval (DA 10463) for the scheme; The developer failed to give written notice of the change to the body corporate at least 30 days before the defendant applied for development approval DA2020-1282.” Did Corella Rd Dev Pty Ltd intend to change the Scheme in a way that would, if carried out, affect the nature of the development or one or more stages of the development? [19] As stated above, the learned Magistrate found that Corella Rd Dev Pty Ltd intended to change the Scheme in a way that would, if carried out, affect the nature of the development or one or more stages of the development. -- 8 of 12 -- 9 [20] The word “intention” carries its ordinary meaning.10 In ascertaining Corella Rd Dev Pty Ltd’s intention, the court can draw an inference from facts which are established by the evidence.11 The intention to be proved is an actual subjective intention to achieve the result as distinct from awareness of the probable consequence of any actions.12 Intention may be inferred or deduced from the conduct of Corella Rd Dev Pty Ltd before, at the time of, or after it made the development application, but the relevant intention must be one held at the time that the offence is alleged to have occurred. [21] Corella Rd Dev Pty Ltd concedes that the nature of the development in the Scheme is that which is recorded in the community management statement. The community management statement records that the future development of the vacant land is to involve 36 building format plan lots and common property. As stated above, Corella Rd Dev Pty Ltd intends to construct 21 dwellings on a single lot instead. [22] Despite the differences, Corella Rd Dev Pty Ltd contends that there is no evidence that it intended to change the Scheme. It says that even if Corella Rd Dev Pty Ltd constructed 21 dwellings on a single lot, the nature of development recorded in the community management statement could still be achieved. This is because the 21 dwellings could be demolished. [23] Corella Rd Dev Pty Ltd’s contention that it could simply demolish the 21 buildings and make a development application to build what is otherwise recorded in the community management statement is beside the point. That is not Corella Rd Dev Pty Ltd’s intention. It can be reasonably inferred from Corella Rd Dev Pty Ltd’s conduct in making the development application that the intention at the relevant time, being the time of the alleged breach, was to change the Scheme. That change, being the construction of 21 dwellings, affects the balance of the stages recorded in the community management statement. If carried out, it would affect the nature of one or more stages of the development. [24] As such, it was reasonable and open for the learned Magistrate to find that Corella Rd Dev Pty Ltd 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. There is no legal, factual or discretionary error in the learned Magistrate’s finding with respect to this element. Did Corella Rd Dev Pty Ltd intend to change the Scheme in a way that would, if carried out, not be consistent with the current development approval for the Scheme? [25] For the hearing before the learned Magistrate, in its particulars the Body Corporate identified that the “current development approval” on which its case was founded was the first development approval for the Scheme, which was Preliminary Approval DA10463 given on or about 21 June 2005 (“the Preliminary Approval”).13 10 R v Willmot (No 2) [1985] 2 Qd R 413, 418. 11 Cutter v The Queen [1997] HCA 7; 143 ALR 498, 648. 12 Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [55]. 13 See paragraph [14] above. -- 9 of 12 -- 10 [26] The learned Magistrate was satisfied beyond reasonable doubt that the development approval that Corella Rd Dev Pty Ltd sought would change the community title scheme in a way that would not be consistent with the current development approval. In the conclusion, the learned Magistrate identified that the relevant “development approval” was the Preliminary Approval. The Magistrate was of the view that the development approval was “current” as it was reflected in the current community management statement. [27] Corella Rd Dev Pty Ltd does not challenge that the development the subject of its development application to Gympie Regional Council is not consistent with the Preliminary Approval. However, it contends that the learned Magistrate erred in the interpretation of the term “current development approval”. It says that: (a) the relevant development approval particularised by the Body Corporate is the Preliminary Approval; (b) the term “current development approval” does not call for identification of a development approval that is presently referred to in the community management statement, rather it is a development approval that is valid and effective; (c) the Preliminary Approval is no longer “current” as it lapsed on or before 3 July 2017; and (d) as such, it cannot be considered the “current development approval” for the community titles scheme as required for a successful prosecution under s 29 of the Body Corporate and Community Management Act 1997. [28] The Body Corporate and Community Management Act 1997 does not define the term “current development approval”. It defines “development approval” as a development approval under the Planning Act 2016 (Qld). [29] I agree with the learned Magistrate that “current” should be given its ordinary meaning. The Macquarie Dictionary defines “current” as: “passing in time, or belonging to the time actually passing.”14 [30] However, I do not accept that, properly construed, the “current” development approval is the development described in the community management statement. The nature of development described in the community management statement is the focus of s 29(1)(b)(ii) of the Body Corporate and Community Management Act 1997. To construe the reference to “current development approval” as a reference to that same description would mean s 29(1)(b)(i) of the Body Corporate and Community Management Act 1997 is otiose. Properly construed, “current development approval” is a development approval that is valid and effective at the relevant time. Such a construction sits comfortably with the need to apply for a development approval. [31] This then begs the question: is the Preliminary Approval valid and effective? 14 Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au. -- 10 of 12 -- 11 [32] Corella Rd Dev Pty Ltd’s contention that the Preliminary Approval lapsed is founded on the operation of s 88 of the Planning Act 2016. That section 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).” (emphasis added) [33] As is observed by Corella Rd Dev Pty Ltd, the Preliminary Approval did not contain a development condition requiring the development to be completed within a stated period or periods. In those circumstances, Corella Rd Dev Pty Ltd says that, under s 88(2)(c) of the Planning Act 2016, the Preliminary Approval lapsed five years after it started to have effect. It says the five years had passed by the time the Planning Act 2016 commenced on 3 July 2017. [34] It is uncontroversial that, by 3 July 2017, it was more than five years since the Preliminary Approval had started to have effect. Despite that, Corella Rd Dev Pty Ltd has not demonstrated that the Preliminary Approval lapsed. This is because it has not established that the development application for the Preliminary Approval. did not nominate a period within which the development would be completed. [35] Having regard to the Standard Planning and Development Certificate from Gympie Regional Council for the land,15 I am satisfied that the Preliminary Approval is in effect. It is a current development approval. Corella Rd Dev Pty Ltd intended to change the community title scheme in a way that would not be consistent with that Preliminary Approval. 15 Pursuant to s 265 of the Planning Act 2016 and s 71 and sch 23 of the Planning Regulation 2017, a standard planning and development certificate must include a copy of every decision notice for a development approval in effect for a premises. -- 11 of 12 -- 12 Conclusion and order [36] For the reasons provided above, Corella Rd Dev Pty Ltd has not discharged their onus, and the appeal is dismissed. -- 12 of 12 --