Hi everyone, my name is Tom from OMB Solicitors and today I wanted to have a quick topic talk about material change of use applications in bodies corporate.
I’ve been getting a few queries about these material chains of use applications which are coming obviously from owners within bodies corporates who want to lodge an application to the local council for a material change of use of their lot. So as you may expect, most commonly these are for short term living changes, but we’ve also seen some other schemes that are wanting to change or owners are wanting to change the use of their lot. And I think that might be partly factor to the current market situation and circumstances that we’ve had and some effects from COVID.
And with that request from those owners or the owners’ desire to put a material change of use application to council, if it’s in a body corporate, it actually needs approval or consent from the body corporate which can be given depending on the circumstances, either by a committee resolution or ultimately a general meeting resolution of all owners.
Now the reason that there is a requirement for an owner to get that initial consent is because obviously material change abuse application for a lot in the body corporate may ultimately have an impact on current property. Now that’s not to say that it definitely will. What’s most interesting about this is the lot owners’ request usually to the body corporate for its consent is simply a consent by the body corporate to agree to the owner lodging its application with local council.
So that’s just the starting point for the owner to actually lodge its application to Council. So the first notification to cancel that the owner ever wants to consider a change of its use of the lot. Now bodies corporates quite commonly have been quite opposed to giving the consent to those material change of use applications, mostly because they might not be that supportive of what that lot has been changed to be useful, such as short term letting, which is always a topical topic on its own. But unfortunately, when bodies corporates have been withholding its consent to those requests by those owners to that application, adjudicators when it’s gone to the Commission’s office, have decided against the body corporate and overturned those decisions by either the committee or the owners at a general meeting. And the main reason for that is because the adjudicators in the adjudicators view the request for consent by the owner is simply that it’s just allowing the owner to actually lodge its application initially with Council.
So in actually determining the application to change the use of the lot and all of those factors that go into that, that is a matter within the jurisdiction of local council only and not one that the body corporate can have a say or restrict on.
And that’s consistent obviously with our legislation and usually the bylaws which were by a bylaw cannot actually lawfully affect the dealing with a lot. So in other words if an owner does lodge a material change of use application and Council approves that application that’s the decision by Council and that’s in the jurisdiction of Council to make that decision not the body corporate.
However, that doesn’t mean that if there are further requests and decisions to be made by the body corporate regarding the use of that lot that the owner is no longer bound by the legislation required to get the consent from the body corporate for those other changes and an example of that is let’s say the owner had to improve their lot and part of those improvements would impact common property so an improvement to common property, that would then obviously require another consent from the body corporate at a general meeting likely or if there was a buyer talking about renovations of lots then the owner would obviously have to comply with that by law and get the body corporate consent in that situation too.
So I guess in summary and to wrap up this topic is when those applications come across all those requests to bodies corporates to give its consent to those applications whilst everything needs to be examined on a case by case basis, they’re usually just a request to allow the owner to lodge its application and remembering that it’s ultimately a decision for local council as to whether or not that application is going to be approved usually with significant conditions or denied but that does not mean that the body corporate loses any right in the future to have a say as an objecting to the application once it’s launched or of course if there are any further requests that are required by the body corporate such as improvements that the body corporate will obviously have the ability to make a decision on.
So a very interesting topic and one that seems to be coming about a lot but of course if there are any questions on that topic we’ll or any other body corporate matters, please do not hesitate to contact me.