Falconer v Brisbane City Council & Buck [2005] QPEC 58

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Falconer v Brisbane City Council & Buck [2005] QPEC 058 PARTIES: STEPHEN FALCONER Appellant v BRISBANE CITY COUNCIL Respondent And DIANN BUCK Co-Respondent FILE NO/S: Appeal No. 4167 of 2004 DIVISION: Appellate PROCEEDING: Adverse Submitter Appeal ORIGINATING COURT: Brisbane DELIVERED AT: 29 July 2005 HEARING DATE: 22 July 2005 JUDGE: Robin QC DCJ ORDER: Appeal dismissed CATCHWORDS: Adverse submitter appeal against Council’s approval of reconfiguration (by subdivision) of a lot in a community title scheme – whether consent of the body corporate (or of its members) was required – neither the Body Corporate and Community Management Act 1997 nor the Council’s requisitioning evidence of body corporate consent established any such requirement COUNSEL: Appellant, self-represented Miss KR Johnson, solicitor for Respondent Co-Respondent, self-represented SOLICITORS: Appellant, self-represented Brisbane City Council Legal Practice for Respondent Co-Respondent, self-represented -- 1 of 20 -- 2 REASONS FOR JUDGMENT [1] Mr Falconer (self-represented) appeals “against the decision of the Brisbane City Council (Respondent) to approve the application by Diann Buck (Co-Respondent) for a development permit for making a material change of use and for the reconfiguration of a lot subject to conditions in respect of land situated at 11C Scenic Rd, Kenmore, Queensland and described as lot 1 on SP145009 and common property CTS30012, Parish of Indooroopilly.” The Respondent was capably represented by Miss Johnston, for whose expert guidance the other parties and the court are grateful. Ms Buck was self-represented, with some assistance from a “McKenzie friend1 ”, Mr Ian Gordon. Her development application was for reconfiguration only, so that considerations relevant to any material change of use presently have no part to play. The Land [2] Lot 6 on RP 87134 Parish of Indooroopilly, County of Stanley was an axe-head shaped parcel of land whose street frontage to the northern side of Scenic Rd, Kenmore was represented by the narrow haft end. In 2002 the lot was cancelled, and there was registered a plan of lots 1-8 and common property. Lots 3-7 (whose areas ranged from 734 square metres to 781 square metres, except for lot 7 (1103 square metres)) lie side-by-side along the rear (northern) boundary of the original parcel. They are accessed via a cul-de-sac in the shape of a “T” whose stem extends to Scenic Rd, the cul-de-sac being common property for purposes of the group title arrangements established under the Body Corporate and Community Management Act 1997. The balance of the Scenic Rd frontage is occupied by lot 1, that is Ms 1 See McKenzie v McKenzie [1971] p.33 -- 2 of 20 -- 3 Buck’s property, which contains 1637m2 . Across the common property access described above is lot 8 (1282m2 ), which is roughly triangular in shape, any “frontage” it may have to Scenic Rd being limited to a point of the triangle. Lot 1 adjoins lot 2 (1929m2 ) for the full length of the latter’s northern boundary. Only lot 1 has any practical possibility of direct access to Scenic Rd. The reconfiguration under appeal divides it into its northern half (lot 10) and its southern half (lot 11) of which only the latter will enjoy any possibility of direct access to Scenic Rd. Lot 10’s access, like that of lots 2-8, will be via the common property. It may be observed that lot 1 would appear to be no less entitled to use common property for access than lots 2-8. Issues in the Appeal [3] The notice of appeal asserts that the “proposed development” conflicts with the Body Corporate and Community Management Act and sets out the terms of s 54(2), s 55(1) and s 56(1). It is asserted that “no consent has been given to record a new community management statement from the Scenic Pocket Body Corporate” and (correctly, as a matter of fact) that “the co-respondent has not sought an amendment to the current community management statement before seeking permission for subdivision from the Respondent.” On 8 July 2005 Judge Rackemann ordered that the issues in dispute be identified as those outlined in attachment “A”: “Council has an obligation to consider the opinion of the other owners before approving the subdivision of a lot in a community title scheme. Council failed to give due consideration to all the information before it before granting approval. In particular council did not give proper consideration to an objection to the proposed subdivision which indicated that the other owners were unanimously opposed to the subdivision.” -- 3 of 20 -- 4 The issue seems to resolve into whether the Council could give its approval to the proposed reconfiguration only if the Body Corporate consented and, if so, whether the Body Corporate had consented. Ms Johnston and Ms Buck (contrary to Mr Falconer) submitted that the second aspect was satisfied (whether or not there was any necessity that it be). Ms Johnston submitted that no consent was required. [4] The Body Corporate has taken no part in the appeal. Mr Falconer was not able to assert that he spoke for it (although he appears to be a committee member). For that matter, Mr Falconer established no entitlement to speak for any other lot owner, even lot owners who, like him, had lodged with the Council submissions in opposition to the proposed reconfiguration, but who took no part in the appeal. [5] Ms Johnston’s approach may seem inconsistent with that advised to Ms Buck’s agent on receipt of the Form 1 Development Application IDAS contained in the Council’s letter of 5 July 2004: “Thank you for your development application lodged 30 June 2004. I wish to advise that the Council is unable to acknowledge this application as the common property was not included in the description of the land on Form 1A nor was resolution of the Body Corporate consenting to the lodging of the application submitted. As a consequence, the application will be held in abeyance until this information is submitted.” The first requisition was responded to by the provision of a replacement part A of the Form 1 development application adding to the original description of the land as set out in the Notice of Appeal “and common property of `Scenic Pocket’ Body Corporate CTS30012.” The requisition may have been made out of awareness of Australian International Language College Pty Ltd v Gold Coast City Council [1994] QPLR 102, in which the Appellant had argued that since no reference was made to common property over which rights of access would have to be exercised -- 4 of 20 -- 5 by those resorting to a particular unit, the application was defective. Judge Quirk considered that a “Pioneer” point about non-inclusion of all land within a development proposal was unsound. Also, he declined to require that the application be accompanied by the written authority of all the co-owners of the common property, considering that relevant provisions of the Building Units and Group Titles Act 1980 made it clear that common property did not exist as a separate and a distinct legal entity, but was appurtenant to the lots, and held by all proprietors as tenants in common. His Honour considered that provision of the written authority of the registered proprietor of the relevant lot was sufficient for purposes of s 4.1(2)(d) of that Act, the written authority of all the co-owners of the common property being unnecessary, as the proposed use did not involve an exercise of rights beyond those ordinarily appurtenant to the rights of ownership of that lot. It was not shown that his Honour’s views would not apply under the current legislation. [6] The Council’s second requisition contained in its letter was responded to by provision under cover of a letter of 8 July 2004 of a copy of minutes of the AGM of the Body Corporate held on 19 February 2004 (which the evidence shows were confirmed in due course at a subsequent meeting of the Body Corporate). Those minutes contained the following: “MOTION No 10 SUB DIVISION OF A LOT RESOLVED that the body corporate discuss the possibility of allowing the sub division of Lot 1 to create two separate titles within the scheme. Should the meeting consent to this the owner of Lot 1 will need to undertake all legal requirements at that owners cost to be lodged with the Dept of Titles. The prepared paperwork will need to be presented to the owners for final consent. Whilst this was an item of discussion a vote was taken from the floor and as all lots were represented no person was disadvantaged. The -- 5 of 20 -- 6 persons holding proxies determined that the proxies would not be used and as such were recorded as an abstaining vote. The meeting as such voted on allowing consent to Lot 1 to sub divide. The meeting also determined that a By-Law should be drafted and conditions set out in place as to the style, construction and development of the two lots to ensure that the completed fixtures are within keeping with the scheme and do not in any way detract from the overall intent of the scheme. Any proposed construction of development is to be placed before the committee for review as that will be defined within the proposed By-Law and conditions. By Ordinary Resolution VOTE FOR ALL PERSONS VOTE WITHOUT LOT 1 DUE TO THE AN INTEREST 4 YES 3 YES 2 NO 2 NO 2 ABSTAIN 2 ABSTAIN NOTE: The vote would be carried based on both circumstances” At the time of that meeting, Mr Falconer was the proponent of the notion of subdivision of lot 1 and also the owner of lot 1. He is presently the owner of lot 2, which had been retained by the developer, Intech Properties Pty Ltd. There has been an exchange of their lots by Intech Properties Pty Ltd and Mr Falconer. The Co-Respondent becomes involved [7] About March 2004, Ms Buck was looking to purchase a block of land “to subdivide and build two houses on. One to live in and the other to sell.” It is clear that she purchased lot 1 from Intech Properties Pty Ltd. Her solicitor’s search made shortly after the 14 day contract dated 17 March 2004 revealed that the property was registered at the time of search in the names of Mr Falconer and another. Ms Buck had been provided with a copy of the minutes of the AGM of 19 February 2004, obviously to provide her with assurance that her plans could be implemented in relation to lot 1. While different interpretations might be placed upon Mr Falconer’s apparent change of stance from apparently favouring subdivision of lot 1 -- 6 of 20 -- 7 to now opposing it, there is no basis shown for implicating him consciously in any scheme to deceive Ms Buck. He told the court that his own tentative proposals for lot 1 had proved (for financial reasons) not to be feasible. [8] Like others concerned, Mr Falconer received notice of Ms Buck’s development application. Like a couple of other owners (Mr and Mrs Searls and also Mr Patten and Ms Abbondanza), he lodged an objection to the proposal with the Council, writing on 23 August 2004: “I am of the understanding, as are all the neighbours I have spoken to and the other members of the affected Community Title Development (Scenic Pocket CTS 30012) that the original subdivision (in 2002) of 11 Scenic Road into 8 lots was granted subject to the condition that the blocks that adjoined Scenic Road were to be retained as large blocks so that the character of the area would be maintained (see copy of attached plan). Permitting the subdivision is contrary to the intention and outcomes of retaining the larger blocks. I believe that allowing this development will have a significant impact on the aesthetic and visual amenity of the original development and of the neighbourhood in general. Approval of the subdivision will also have a negative impact on the property values of the existing blocks. Are financial impacts taken into consideration when council assesses an application? Most importantly the block in question is, as previously noted, a part of a community title development and the subdivision is not supported by the Body Corporate. I have spoken to Landmark Consulting and they were under the impression that the owners of the block had the support of the Body Corporate. I informed them of their misunderstanding and suggested they or the owner that they are representing contact the Body Corporate Manager (Peter Veal, at R. Jackson Pty. Ltd. 3862 1868) to clarify the matter. They are yet to contact Mr. Veal. The confusion regarding the position of the Body Corporate has arisen from the minutes of a meeting held on 19/2/04. At that time I was the owner of 11C Scenic Road and I wanted to clarify the position of the other members of the Body Corp regarding subdivision of the lot. What was resolved by vote was that the issue of subdivision be discussed, which it was. The minutes are perhaps poorly worded as it gives the impression a vote was taken to allow consent to the subdivision whereas what was decided was that consent would be considered given a significant range of conditions. I felt that it would not be possible for me to satisfy these conditions -- 7 of 20 -- 8 and therefore sold the block and purchased another in the development. I have also spoken to a solicitor who said the new owners of 11C would need to seek their own consent from the Body Corporate, and as far as I am aware they have made no attempt to discuss their proposal with the Body Corporate. I would have thought that a formal letter from the Body Corporate supporting the existing owner’s proposal would be required by Council as part of the development application.” [9] The planning report prepared by the Council’s officer contains the following: “PLANNING SCHEME AND PLANNING SCHEME POLICIES Emerging Community Area The intent of Emerging Community Area is to provide for residential development at some time in the future. The sites have scenic or environmental values and/or infrastructure requirements that may limit or influence the extent of development that is possible on the site. The development comprises infill development within an established residential subdivision all matters concerning infrastructure and environmental value have been previously investigated. This decision does not compromise the achievement of the desired environmental outcomes of the Emerging Community Area and it has been demonstrated that there are sufficient planning grounds to justify this decision. Subdivision Code It is considered that the development meets the performance solutions of the Code with respect to road design, provision of pedestrian and public transport, size of the lot and infrastructure provisions. Secondary Codes Council engineer undertook assessment of servicing requirements and has assessed the conditioned compliance with relevant secondary codes relating to services, stormwater and access. With the original subdivision no structure plan was requested and none appears to exist over the subject land. Given low-density residential nature of locality and established pattern of surrounding development a structure plan was not required to assess this subdivision’s suitability. -- 8 of 20 -- 9 SUBMISSIONS, REPRESENTATIONS AND PUBLIC CONSULTATION The Notice of Compliance has been submitted and 3 properly made and 1 late submission has been received. Summary of Submissions Objections/Concerns Response 1. Request that current building covenant and body corporate rules to be adhered to This is a matter for the existing Body Corporate to administer. 2. New driveway should be via Scenic Rd Driveway will only be allowed via existing common road. This strict requirement will be conditioned for vehicle safety. 3. Request that the positioning of new dwellings faces south Dwelling position is not controlled by subdivisional approach but via Building Approval. 4. Open fencing or no fencing at all. Not an issue identified in original subdivision, nor relevant to this application. Surrounding residential development has standard timber fencing. 5. Driveway not to be directly opposite existing driveway to avoid collisions. To be investigated by Council officers during driveway permit application. 6. Building envelope for Lot 11 to be 12m from front. No envelope required. Trees conditioned to be retained. Setbacks administered via Building Approval. 7. Building envelope for Lot 10 to be 6m from front. Setbacks to road controlled by Building Approval. 8. All costs to be incurred by the developer. This requirement is standard and will be conditioned. 9. Blocks to issued with half a body corporate vote. This is a matter for the existing Body Corporate to administer. 10. Modification of letter boxes at cost to developer. Existing letter box numbers will be retained. 11. Developer to proceed only when all properties have individual water meters. New meters to new lots, will be conditioned to be installed at cost to developer. 12. Proposal will destroy street appeal. The area is of post 1970 development with large brick housing. The addition of a single house within a recent subdivision will not destroy the streetscape of Scenic Road. Existing trees have been conditioned to be retained. 13. Cause traffic issues One new dwelling unit will not cause traffic issues onto Scenic Road. -- 9 of 20 -- 10 14. Cause environmental issues. Retention of existing trees on site. No significant environmental issues are apparent. 15. Existing services can’t cope with increases in use & consumption. All services existing to cope with service requirements. 16. Decrease value of land. Not a valid planning issue. 17. Owner consent has not been obtained. Misunderstanding with Body Corporate Minutes. Owner consent has been obtained by an ordinary resolution of the body corporate. [10] Whether or not the officer’s responses to the objections are wise or open to challenge, it appears that due consideration was given to the interests involved in the adverse submitter points, as required by Bartlett v Brisbane City Council (2003) 133 LGERA 340; [2003] QCA 494, whose headnote indicates what was decided: “(1) The purpose of s 3.2.1 of the IPA was limited. It simply identified the requirements for the first stage of the Integrated development Assessment System (IDAS) process referred to in Chapter 3 of that Act. (2) The respondents’ proposal was very significant to the use of the subject lot (Lot 28) but had no significance whatsoever to the use of the other lots. Each owner of the other lots would continue to have the same interest in the land constituted by the lot, and the same interest in the common property as that owner had prior to the application. (3) Any concerns on the part of another lot owner about the change in amenity or the integrity or aesthetics of the building were simply matters to be agitated in the decision process. They were not factors of use which determined the identification of the land. (4) To adopt the construction contended for by the Appellants would, in practice, have the effect of a lot owner in a large development rarely, if ever, being able to make a development application. One could not conclude that the legislature intended such a result. (5) Moreover, such a construction was only arrived at by a technical and strained application of the terms of the legislation with an undue focus on interests allied to lot ownership rather than the purpose of identifying the land itself. -- 10 of 20 -- 11 (6) The other lot holders and the body corporate each had the opportunity to have their respective interests considered through the submission process provided for by s 3.4.9 of the IPA. (7) The approach of the respondents of simply applying to the terms of s 3.2.1 the ordinary meaning of the words as contemplated by the statutory definitions, gave rise to no real difficulty. By this approach a construction of the section was arrived at which was functional and which did not interfere with the generally accepted rights of the owners of lots in a community title scheme. (8) This was so whether one was considering the position of the lot owner as an applicant for a development approval or as an owner entitled to notification. (9) There was no warrant for construing the terms of s 3.2.1 of the IPA as requiring the consent of other lot holders.” In the leading judgment, Jones J said: “[13] The second point is raised in support of that contention, by highlighting one of the characteristics of group or community titles schemes. Section 35 (formerly s 37) of the Body Corporate and Community Management Act 1997 provides that “(1) Common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common,...” and that “(3) An owner’s interest in a lot is inseparable from the owner’s interest in the common property”. Counsel for the appellant argues that, as a consequence, all owners have an interest in the maintenance of the appearance and in the integrity of the whole building with the result that all the lots fall within the scope of the land the subject of the application and this is why all the lot owners are, to use his words, “legally connected”. [14] The purpose of this section of BCCM is not to bring about a connection between separate lots of the scheme or between owners of such lots. Its function is to create interests in common property and to tie the ownership of those interests to the ownership of lots so as to make the interests indisseverable. Whilst this has the effect of linking those interests it does not, in my view, create interests for other lot owners in the lot of an individual owner. No part of the common property was involved in or impacted upon by the respondents’ proposal.” [11] Within the Body Corporate, steps have been taken with a view to ensuring that Motion 10 is not taken as a consent of the Body Corporate to subdivision of lot 1. The Body Corporate’s professional manager has generated correspondence, some of -- 11 of 20 -- 12 which went to the Council, asserting that Motion 10 embodies only discussion, no consent. A new motion was proposed for an EGM on 12 November 2004 as follows: “MOTION No 2 NO APPROVAL FOR SUBDIVISION Person Proposing: Committee Lot No: Not Applicable Resolution Required: Ordinary Resolution That the body corporate clarify that Motion 10 of Annual General Minutes dated 19/02/04 does not give approval for subdivision of lot 1. This motion was out of order and not able to be approved as all owners were not given the legislative requirement of 21 days to consider their voting options.” Purportedly Motion No 2 was passed; its validity may be doubted, given that Ms Buck (who took the point immediately) seems able to demonstrate that the requisite 21 days’ notice was not given in respect of Motion No. 2. It does not seem necessary or even appropriate at present to canvass the validity of Body Corporate resolutions, which is, one would think, something best resolved under the arrangements established by the Body Corporate and Community Management Act 1997. The Need for Body Corporate Consent [12] The authorities mentioned above, to which the court was taken by Ms Johnston, are suggestive that no consent of the Body Corporate or of the members of it is required. The proposed reconfiguration is development as defined in s 1.3.2 of the Integrated Planning Act 1997 (IPA), (d) of which is “reconfiguring a lot”. There is -- 12 of 20 -- 13 a definition of “lot” in s 1.3.5 as including “(a) a lot under the Land Title Act 1994”, schedule 2 of which, as noted in the IPA, provides: “Lot means a separate, distinct parcel of land created on – (a) the registration of a plan of subdivision; or (b) the recording of particulars of an instrument; and includes a lot under the Building Units and Group Titles Act 1980.” It appears that the Council’s task, by reference to the IPA, is to assess the application for reconfiguration. There is no indication in the IPA that reference need be made by Council as assessment manager to the Body Corporate and Community Management Act 1997, notwithstanding that it contains in part 6 Community Management Statements provisions that may have to be complied with in respect of subdivisions affecting a lot in, or the common property for a scheme. See s 56 in particular, and other references to subdivision, for example in s 57 and s 62. I set out in an appendix ss 55, 56, 57, 62 and 63, the last couple of which draw attention to the important matter of the costs of preparation and recording of a new community management statement, which subdivision of a lot may require. The members of the Body Corporate may wish to revise Motion No. 10 to fix Ms Buck with responsibility for certain costs. The ultimate incidence of such costs and other issues, such as the formulation of a new community management statement, which must deal with significant matters such as lot entitlements, may create real issues in a context like the present one. The court was told that the present lots are a single consumer of water. Unless there is separate metering introduced, there may be issues to do with the share of water charges to be borne by lots 10 and 11, as to whether they must pay one or two shares. The dispute resolution procedures included in the Body Corporate and Community Management Act 1997 may or may not be available to achieve resolution of issues here. The decision the court makes, -- 13 of 20 -- 14 however, is that there is no requirement that prior consent to subdivision of a lot be given by the Body Corporate or by the members of it. It is clear that subdivision of lot 1 will trigger obligations in respect of changing the community management statement. It does not follow that the Council should delay deciding on an application for reconfiguration until those obligations are wholly or partly attended to. There is no proscription against the Council’s granting approval in the absence of consent of the kind that is found in s 58 of the Standard Building Regulation 1993, for example. [13] Mr Falconer did not present any argument that any statutory requirement existed that consent of the Body Corporate or any of its members be forthcoming. It seemed he may have been relying on some kind of legitimate expectation of the kind desribed in Halsbury’s Laws of Australia in the section devoted to Administrative Law in [10-1880] and [10-1883]: “[10-1880] Legitimate expectation: representations In special circumstances, a legitimate expectation may be generated by an administrator’s having given an undertaking, which good administration requires ought to be honoured, provided that honouring the undertaking is not inconsistent with the administrator’s statutory duty.” “[10-1883] Legitimate expectations: regular practices and government policies As an extension of the notion that a representation may generate a legitimate expectation, the existence of a regular practice which the person affected could reasonably expect to continue may also give rise to a legitimate expectation that the practice will continue, or in any event that it will not be discontinued without the person affected being given a hearing.” (downloaded from www.lexisnexis.com on 22/07/2005). Authorities cited in Halsbury include Haoucher v Minister for State for Immigration and Ethnic Affairs (1990) 169 CLR 648. Although the court inquired, nothing was forthcoming to suggest that the Council has any relevant general practice. There is, however, specifically -- 14 of 20 -- 15 directed to the present development application, the Council’s letter of 5 July 2004. It was addressed to Ms Buck (or her agent); it is difficult to see how it could give rise to any legitimate expectation on the part of Mr Falconer. He was entitled to expect (and he got it) that his views and interests would be considered in the submission process. I am quite unable to see how the Council’s letter, by making a requisition that appears on examination to be without warrant (although doubtless made in a well intentioned attempt to discover the Body Corporate’s attitude), could place some additional hurdle in the way of Ms Buck’s development application. [14] I repeat an observation made during the hearing of the appeal, that, while the informality of Motion No 10, which seems to represent no more than a “straw poll”, may be noted, it would be undesirable for the Council to be required, where some expression of a Body Corporate’s views is called for, in circumstances like the present, to adopt any strict, legalistic approach, where a clear attitude is found apparently expressed. Doing so might compel inconveniences such as the holding of new meetings to achieve a resolution in some technically correct way. As for contests about such matters, they are surely better handled using the provisions and processes of the Body Corporate and Community Management Act 1997. -- 15 of 20 -- 16 APPENDIX 55 Requirements for motion to change community management statement (1) Subject to subsection (2), a motion proposing to change an existing community management statement for a community titles scheme may be submitted by only-- (a) the committee for the body corporate; or (b) the owner of a lot included in the scheme; or (c) the body corporate manager. (2) The body corporate manager may submit the motion if the body corporate manager may, under the regulation module applying to the scheme, submit the motion. 56 New statements and subsequent plans of subdivision (1) 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. (2) A request to record a new community management statement for a community titles scheme may be lodged, and the new statement may be recorded for the scheme, even though a plan of subdivision is not lodged, if all plans of subdivision relating to the scheme, and the new statement, will still be consistent after the new statement is recorded. 57 Other matters about new statements for schemes developed progressively (1) This section applies-- (a) only to a community titles scheme intended to be developed progressively; and Examples for paragraph (a)-- 1. The subdivision of scheme land to create further lots for the scheme or to establish a subsidiary scheme. 2. The excision of a lot from, or the addition of a lot to, scheme land. (b) if the circumstances stated in subsection (2) or (3) also apply to the scheme. (2) For subsection (1)(b), the circumstances are-- (a) a new plan of subdivision proposed to be lodged for the scheme-- (i) is consistent with all statements about proposed future subdivision contained in the existing community management statement for the scheme; or (ii) is inconsistent with the existing community management statement only to the extent the -- 16 of 20 -- 17 development of a stage is to be done out of order; and (b) the difference between the existing statement and a new community management statement required under section 56(1) is limited to ensuring that, after registration of the new plan of subdivision and recording of the new statement, the scheme's community management statement will-- (i) be consistent with all plans of subdivision for the scheme that are registered under the Land Title Act; and (ii) contain the statements about proposed future subdivision that are contained in the existing statement, changed only to the extent necessary to take account of the registration of the new plan of subdivision. (3) Alternatively, for subsection (1)(b), the circumstances are that a new plan of subdivision proposed to be lodged for the development 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 1 or more stages of the development. Examples of changes affecting the nature of a development for subsection (3)-- 1. A development for a scheme intended to be a resort is changed to a development comprising only standard format lots for residential purposes. 2. A stage of a development comprising standard format lots for residential purposes and a marina is changed to a stage comprising only standard format lots for residential purposes. (4) For subsection (2)(a)(ii), the development of a stage is done out of order if it is not consistent with the order of the development of the stages stated in the development approval or existing community management statement for the scheme. (5) The developer must-- (a) prepare the new community management statement required under section 56(1) for the scheme; and (b) give the new statement to the body corporate. (6) The body corporate must, within 30 days after receiving the new statement, endorse its consent on the statement. Maximum penalty--50 penalty units. (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 the development approval for the changed scheme; and -- 17 of 20 -- 18 (c) the local government has endorsed a community management statement notation on the new community management statement. (8) The developer must, within 30 days after receiving the endorsed statement, lodge a request to record the statement. Maximum penalty for subsection (8)--300 penalty units. (9) Within 14 days after the new statement is recorded, the developer must give to the body corporate-- (a) a copy of the new statement; and (b) evidence of its recording. Maximum penalty for subsection (9)--300 penalty units. (10) The developer is responsible for the costs of preparing and recording the new community management statement. 62 Body corporate to consent to recording of new statement (1) This section provides for the form of the consent of the body corporate for a community titles scheme to the recording of a new community management statement for the scheme in the place of the existing statement for the scheme. (2) The consent must be in the form of a resolution without dissent. (3) However, the consent may be in the form of a special resolution if the difference between the existing statement and the new statement is limited to the following-- (a) differences in the by-laws (other than a difference in exclusive use by-laws); (b) the identification of a different regulation module to apply to the scheme. (4) The consent to the recording of a new community management statement need not be in the form of a resolution without dissent or special resolution if the new statement is different from the existing statement only to the extent necessary for 1 or more of the following-- (a) compliance with a provision of this Act under which the body corporate is required to lodge a request to record a new statement for a purpose stated in the provision; (b) compliance with the order of an adjudicator or the District Court made under this Act for the lodging of a request for the recording of the new statement; (c) changing the community titles scheme to give effect to an approved reinstatement process; (d) changing the community titles scheme to reflect a formal acquisition affecting the scheme; (e) recording the details of allocations of common property or body corporate assets made under an exclusive use by- law; (f) implementation of development proposed under the existing statement or under the provisions of a community management statement to which the existing statement is subject; -- 18 of 20 -- 19 (g) showing the location of a service easement for the community titles scheme by including a services location diagram; (h) amalgamating or subdividing lots included in the community titles scheme; (i) reproducing the existing statement without any change of substance. (5) However, subsection (4)(h) applies only if the associated plan of subdivision-- (a) does not affect the common property; and (b) does not change-- (i) the contribution schedule lot entitlements, or interest schedule lot entitlements, for lots included in the scheme (other than the lots being amalgamated or subdivided under the plan); or (ii) the total of the contribution schedule lot entitlements for the lots included in the scheme; or (iii) the total of the interest schedule lot entitlements for the lots included in the scheme. (6) Also, the consent to the recording of a new community management statement need not be in the form of a resolution without dissent or special resolution if the consent is required to be endorsed under section 57. (7) A consent to which subsection (4) or (6) applies must be given by ordinary resolution if, under the regulation module applying to the scheme, the body corporate has engaged a body corporate manager to carry out the functions of a committee, and the executive members of a committee, for a body corporate. (8) In this section-- “associated plan of subdivision”, for a proposed new community management statement, means the plan of subdivision proposed to be lodged with the request to record the statement. 63 Responsibility for preparing, and for costs of preparing, new statement (1) This section applies if the body corporate for a community titles scheme consents to a new community management statement, other than a statement to which section 57 applies, being recorded for the scheme. (2) The new community management statement must be prepared by- - (a) if the body corporate manager may, under the body corporate manager's engagement, prepare the statement-- the body corporate manager; or (b) if paragraph (a) does not apply to the scheme--the committee for the body corporate. -- 19 of 20 -- 20 (3) The body corporate is responsible for the costs of preparing and recording the new community management statement, unless this Act provides otherwise. (4) Despite subsections (2) and (3), if the difference between the new community management statement and the existing statement is limited to changes to reflect a formal acquisition affecting the scheme, the constructing authority for the acquisition-- (a) must prepare the new statement; and (b) is responsible for the costs of preparing and recording the new statement. -- 20 of 20 --