Council archive · source document
14. Legal Advice regarding lodgement · MCU19/0117
SPM Noosa Pty Ltd
ACN 611 030 721
Your Reference:
Our Reference:
MS:CLH:180055
12 September 2019
Legal Practitioner Director:
Michael Sobey
Attn: Jack Lewis Senior Associate
Pivotal Perspective Andrew Markert
Associate
Amy Ryan
EMAIL: [email protected]
Dear Jack
PROPOSED DEVELOPMENT OF LOT 500, 90 BEACH ROAD, NORTH SHORE
I refer to our recent telephone discussion.
You have requested advice as to whether the body corporate is required to consent to any approval being
lodged with council. This may depend on the type of approval being applied for.
If the approval being applied for merely relates to construction of improvements on the lot then it is my view
that consent of the body corporate will not be required unless the application also provides for a use other
than residential. I base this on the following:
1. The Community Management Statement at By-law 15 indicates that the use of all lots is for residential
purposes only apart from Lot 91. This Lot 91 is intended to be the manager’s and caretaker’s lot and
they are entitled to operate a caretaking and letting business from the scheme.
2. As a consequence of this by-law any use which would be other than residential would require the
approval of the body corporate. The body corporate would be entitled to object to any proposed
business or commercial use to which any lot would be put. However, the body corporate would still be
required to act reasonably in relation to any application in this regard.
3. By-law 18 does state that no structural alteration shall be made to any lot without the prior permission
in writing of the committee.
However, it is my view that By-law 18 is intended to apply only to completely constructed lots.
4. This is supported by the provisions of Schedule D of the Community Management Statement. This
schedule sets out the details of the “progressive development” of the scheme. These provisions
include that the “original owner” may enter on the Scheme Land or any part of it to conduct works
“establishing utility infrastructure, utility services and future development of further lots and common
property which may include excavation and general earthworks, construction of common property
areas (including roads), the construction of common property infrastructure and utility services”.
Accordingly it is clearly intended that the land was to be progressively developed and there was to be
no interruption to this. Clause 1.6 of Schedule D states that the “Original Owner” would include “any
successor or assign of any undeveloped part of the Scheme Land”. This clearly applies to Lot 500 for
which the application is being made.
Liability limited by a scheme approved under professional standards legislation.
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Summary
Accordingly, based on the information provided to me that the application for construction of a detached
house and the associated lagoon would fall within the definition of residential use as contemplated under the
Community Management Statement and as such no consent of the body corporate would be required to
make the application.
Please contact me if you wish to discuss the matter further.
Yours faithfully
Michael Sobey
Legal Practitioner Director
SYKES PEARSON MILLER
Email: [email protected]
Copy to: Teatree Property Pty Ltd
Email: [email protected]
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