A recent surge in residential apartment buildings throughout the
city has changed the way of life for many residents. Despite the
absence of a backyard, apartment dwellers remain subject to the
impacts of nearby developments upon their amenity, through either
increased traffic and car parking, overshadowing, loss of views,
loss of breezes or increased privacy concerns. These impacts may
provoke either the residents or their Body Corporate to lodge an
objection with Council against nearby development. Lodging an
objection by way of a properly made submission triggers a right of
appeal to the Planning and Environment Court (the
Court) in the event the proposed development is
approved by Council.
For a Body Corporate that wishes to commence an appeal or join
in an appeal with the Court, care must be taken to ensure that the
two following steps have occurred:
The Body Corporate must have lodged a properly made submission
against the development application in accordance with the
Sustainable Planning Act 2009 (SPA);
The Body Corporate must have passed a special resolution at a
general meeting in accordance with s.312 (1) of the Body
Corporate and Community Management Act 1997
(BCCMA) to ensure the Body Corporate is authorised
to commence or participate in an appeal in the Planning an
Failure to pass a special resolution prior to the Body Corporate
commencing an appeal with the Court, can result in delay and
significant cost consequences. This issue has recently been
explored in the decision of Body Corporate for Quay Terraces
CTS 17468 v Brisbane City Council  QPEC 12. A summary
has been provided below.
Body Corporate for Quay Terraces CTS 17468 v Brisbane City
Council  QPEC 12
The Court recently handed down a decision striking out the Body
Corporate's appeal on the basis that it had not obtained a
special resolution authorising the commencement of the appeal.
On 29 January 2016, the Body Corporate of Quay Terraces (the
Body Corporate) filed a Notice of Appeal to the
Court (the Appeal) based upon objections made
against a nearby development. The solicitors for the nearby
development discovered that a special resolution had not been
obtained by the Body Corporate to authorise the commencement of the
Appeal and the solicitors sought to strike out the Appeal. The Body
Corporate consequently called an Extraordinary General Meeting
(EGM) on 16 March 2016 to pass a special
resolution ratifying the commencement of the appeal. The
application to strikeout the Appeal was heard by the Court on 8
March 2016, one week before the EGM.
The relevant issues before the Court were:
whether the Body Corporate's appeal should be struck out;
whether the Appeal should be adjourned to await the outcome of
the special resolution at the EGM.
The Court struck out the Body Corporate's Appeal and was not
prepared to adjourn the matter until the EGM was held.
In relation to the striking out of the Appeal, the Court found
it was plainly clear that the Body Corporate did not obtain a
special resolution to commence the Appeal as required pursuant to
s.312 (1) of the BCCMA. Therefore the Body Corporate did not have
the power to commence proceedings.
The Court recognised that in some circumstances it can exercise
its discretion to either:
adjourn the Appeal until the special resolution is held;
extend the time to permit a notice of appeal to be filed out of
time by way of an application with the Court.
In these circumstances, the Court found that it should "be
reluctant to prejudge the outcome of mature consideration at the
EGM" and did not adjourn the Appeal. Additionally, the Court
found that the Body Corporate could make an application once the
special resolution was obtained and that there was no injustice to
the Body Corporate, "...by reason of having the appeal struck
out, of having to apply for an extension of time to file an appeal
after it has done what it should have done". Therefore, as a
result of the Body Corporate failing to pass the special
resolution, the Appeal was struck out.
What does this mean?
This is an important reminder to Body Corporates that a properly
made submission on its own is not enough to begin proceedings with
the Court. A special resolution should be obtained before
commencing proceedings, if not, the appeal is at risk of being
struck out. Further, while the Court has discretionary powers to
adjourn or allow an extension of time, the Court may not be
prepared to exercise those powers. Therefore, to avoid what is a
significant risk and potentially expensive mistake, a Body
Corporate should always prepare in advance and resolve to have a
special resolution passed before commencing appeal proceedings in
the Planning and Environment Court.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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