LEGAL STRUCTURING

LEGAL STRUCTURING OF
INTENTIONAL COMMUNITIES
Reproduced for private study purposes by Ecological Solutions Pty Ltd.
David SPAIN
A. ADVISABILITY OF A LEGAL STRUCTURE.
Intentional communities are groups of people who deliberately settle an area (rural or urban) together. Their aim is to
enhance the material and social quality of life, at less cost to the biosphere, by sharing and by working together. This
co-operative activity may involve the self-regulation of group behaviour, efficiencies of group purchasing, joint labour or
division of specialist tasks, the establishment of a LETS' economy, or the communal creation & sharing of facilities such
as horse paddocks, a sawmill, a preschool or tennis courts. Intentional communities seek to redress the shortcomings of
modern fragmented, competitive & antipathetic 'dog-eat-dog' societies.
In a time of widespread structural unemployment, resource shortage, environmental damage and governmental
complexity, such a comparatively) low-impact, low-demand, self-managing lifestyle is integral to fashioning a sustainable
civilization. Rural land-sharing communities are actively 2 encouraged (by Labor governments) in NSW, which has
codified their development rights
Of course, traditionally peoples came to constitute what were, effectively, intentional communities, but they did so over
millennia of evolution rather than by choice and legal structuring. For them, the law (or lore), and the distribution or use
of land, was known & imbibed from birth and felt as inevitable. However, in this modern era of social fragmentation, high
mobility and specialization there is extensive estrangement from such certainties.
Experience shows that it is advisable for intentional communities to adopt, at the outset, a legal structure formally
documenting critical aspects of their inter-relationship. Failure to do so may result in confusion and injustice should trust
and idealism sour under the inevitable pressures of life. Inspiration, reason and comradeship are needed to interpret and
enliven the written constitution, but it is unwise to rely upon these alone: they can dissipate quickly once doubts and
bickering set in.
A strong & appropriate legal structure will assist settlers in focussing on primary and secondary aims, overcoming
obstacles and protecting individual rights & investments. It will regularize such matters as allocation of homesites and
farming areas, protection of private capital assets, rentals and sales of interests, decision-making, disciplining of deviants,
vesting of a member's interest on death and allocation of assets upon dissolution. Being a legal entity facilitates the
vesting of land title, permits contracting as a group and limits individual liability.
It may appear attractive, easy & enlightened to hark back to traditional societies and avoid written or verbal rules, but this
idealistic approach must be treated with caution. It tends to be unrealistic and bound to culminate in disappointment, and
due less to wisdom than to a knee-jerk reaction against authority or sheer laziness as regards rigorous thought and
responsibility. Many self-managing (anarchist) communities have adhered to a formal constitution. Eventually a
community may evolve spontaneously and reliably to share a high. Sensitivity, understanding and morality. formal rules
may then wither and die as irrelevant and unnecessary, but this stasis must be eventuated by gradual group attunement: it
cannot be pre-supposed.
Probably the biggest concern in an intentional community of striking a balance between privacy & .security (on the one
hand) and communal decision-making & obligations (on the other). In a typical Australia "cookie-cutter" suburb, with the
land fragmented in a formal & antiseptic way, it is quite possible for neighbours to live side-by-side and barely know each
other. They have absolute privacy in their surveyed lots and security against trespassers or for mortgaging purposes. Yet a
lot of the quality & potential of life is ousted. There is no obligation to co-operate with a neighbour, there is no persuasion
towards basically like-minded & co-operative communities and there a diminished impetus towards economic & social
etc. sharing.
State legislation invariably forbids subdivision without the necessary (expensive) town planning approvals and
registration of surveyed plans 4 , and imposes heavy penalties for default'. What constitutes a subdivision is defined as
(briefly) any division of land into parts so as to render different parts thereof 'immediately' [NSW only] available for
separate disposition or separate occupation. However, a lease for more than five years of part of a building (as distinct
from any land) does not constitute a subdivision 6 . A lease for any term not exceeding 5 years (now 10 years in
Queensland 7) without the right of renewal is exempted: an exemption which is theoretically capable of abuse, for instance
by the creation of successive independent leases couched so as to commence at future dates, or by blurring the right to
'separate occupation' e.g. on some days or times of the year, or by postulating some delay which makes the occupation less
than 'immediately available'. Caselaw has not explored such manipulations, which would be easy enough to explore in an
intentional community situation. All of this just shows the shortcomings of the law as an instrument of control.
A wide range of legal structures have been used by intentional communities, and in this essay each one is examined &
evaluated. The conclusion is that, from an idealistic point of view, the co-operative is best; however, from a practical
viewpoint the company is to be preferred.
B. BACKGROUND:
NSW'S STATE ENVIRONMENTAL PLANNING POLICY NO 15
- RURAL LANDSHARING COMMUNITIES
In NSW, active encouragement is given to the formation of intentional communities in rural areas. SEPP 15 has recently
been reintroduced by the NSW Labour government, after its removal by the previous Coalition government, as a planning
policy made pursuant to Environmental Planning and Assessment Act 1979. The initial incarnation of this policy began in
197910 and communities approved under it were known as "Multiple Occupancies": a term which still pertains. Such
communities are exempt from land tax". SEPP 15 does not stipulate what legal structure is to be used, but in most cases
one would expect the vehicle adopted to be a company or co-operative.
This Policy aims:
(a)to encourage and facilitate ' the development of rural land sharing communities committed to environmentally sensitive and sustainable
land use practices, and thus
(b) to enable:
(i) people to collectively own a single allotment of land and use it as their principal place of residence, and
(ii) the erection of multiple dwellings on die allotment and the sharing of facilities and resources to collectively manage the
allotment, and
(iii ) the pooling of resources, particularly where low incomes are involved, to economically develop a wide range of communal rural
living opportunities, including the construction of low cost buildings, mid
(c) to facilitate development, preferably in a clustered style:
(i) in a manner that both protects the environment and does not create a demand for the unreasonable or uneconomic provision of
public amenities or public services by the State or Commonwealth governments, a council or other public authorities, mid
(ii) in a manner that does not involve subdivision, strata title or any other form of separate land title, and in a manner that does not
involve separate legal rights to parts of the land through other means such as agreements, dealings, company shares, trusts or
time-sharing arrangements, and
(iii) to create opportunities for an increase in the rural population in areas that are suffering or are likely to suffer from a decline in
services due to rural population loss.
Any development of this nature requires a Development Application to the local council, but such applications can
basically be made upon any single allotment of rural land (10 hectares or above in size) anywhere in scheduled areas of
the state (basically rural areas excluding the western division), unless it is more than 25% prime crop or pasture land, or in
a water catchment or environmentally sensitive zone. Once approved, no subdivision is possible. The council must
consider the proposed distribution of land between dwellings and communal areas, public road access, water supply,
waste disposal, impact vegetation cover, the risk of flooding, bush fires, landslip or erosion, visual impact, Aboriginal
claims etc. An acceptable management plan must be submitted regarding these things. The permitted density of dwellings,
is capped by a formula geared to the area of the land: for instance if the land is in area ['"A"'] between 10 and 210 hectares
the formula (with fractions of 0.5+ being rounded up and those below rounded down) is:
4 + (A - 10)
4
Whilst it does not bluntly say so, SEPP 15 seems to envisage that the community may prescribe or allow certain rights to
privacy and for individual (as distinct from collective) agriculture in "home improvement areas", which are defined as the
area of land, not exceeding 5,000 square metres, around a dwelling. This term, although defined in SEPP 15, is only
mentioned in one other place12 , which deals with items a council has to consider and seems to juxtapose the area
proposed for community use with the area for residential accommodation and home improvement areas. However, SEPP
15 makes it clear that the definition of "home improvement areas" is intended to "designate the use of the area of land so
defined and not for the purpose of creating a separate entitlement". Clearly, whilst (in my opinion) SEPP 15 "by a nod & a
wink" wisely envisages rights to privacy & to reap where one sows (and even - under the internal contractual rules - to
exclusive possession, as against other shareholders at least?), there is no separate subdivision.
C. COMMUNITY TITLES LEGISLATION
Legislation enabling the subdivision of land into certain common areas held by a body corporate and other private areas
held by its members, exists in Victoria 13 , NSW14 and Queensland. In NSW this legislation was adopted relatively recently,
and there are some instances of broad-acre intentional communities incorporating under the Strata Titles Act, which is
intended for high-rise subdivision. In all these instances the vehicle becomes a body corporate empowered and regulated
under the relevant legislation: there is no need for any other common law or statutory form of structuring to be adopted.
This legislation enables the horizontal & vertical subdivision of land into separate lots, held amidst common property, and
the disposition of titles thereto. This form of tenure allows a group to buy land and to subdivide it, with blocks not
necessarily contiguous, yet to retain control over lands held in common and over internal roads, rather than surrendering
such control to the local council. The council would exercise control over certain aspects of the development, including
e.g. firebreaks and road standards, at the Development Application stage. The standards applied would not necessarily be
less than those applicable to subdivisions. Every lot, and the commons, would be liable to land tax unless worth less than
the exemption ceiling (currently $160,000). For rating, land tax and resale purposes, the owner of each lot is treated as a
fee simple owner.
A very wide range of internal arrangements is possible, covering a minimum of public facilities to the most idealistic &
extensive set-up of communal facilities such as schools, halls and industrial sites. All sorts of factors could be accounted
for, including pets, noise levels, -.use of sprays, standards of construction and preservation of an environmental, political
or social theme An executive committee would be elected at an annual general meeting to manage the enterprise, as with
Strata Title developments. A system of by-laws and refereeing of disputes is envisaged.
This new form of subdivision is being pushed particularly by developers on the outskirts of cities and 'resort' developers
who wish to eventuate a series of semi-autonomous precincts (e.g. associated golf course, hotel, commercial, marina &
residential) within the one complex. However, this form of subdivision can be readily adopted to intentional communities,
both urban and rural.
The big 'plus', for an intentional community, is that individual home or business sites are owned, and can be mortgaged, as
freehold, but they exist within the broader framework of a highly regulated intentional community. This can adopt very
detailed by-laws regarding, say, which areas can be used communally for agistment of animals, or recreation, forestry or
growing fruit & vegetables. There can be huge cost-savings and huge increases in available amenities from such
processes, if they are correctly planned and executed with good will. Conversely, terrible messes can eventuate if this
planning is botched or ill-will sours. its execution. In this way the 'best of both worlds' may be achieved: that, is, privacy
& security within a precisely-defined territory and financial flexibility within the enriching context of a broader
community of like-minded people.
The 'negatives' are that local authority development approvals, subdivisional & legal costs (drafting complex internal rules
etc.) and registration expenses become very expensive. A quite different form of 'negative' relates to the ethos of this
legislation, at least so far as intentional communities are concerned. By surveying off private blocks, it is alleged, social
and geographical. fragmentation within the community is formalized and entrenched. A presumption is raised against the
social and territorial holism of the group: the emphasis is upon the parts rather than the whole.
Unless care is taken, community title may tend to enable mere speculators to buy in and parasitize upon the efforts of the
group to form a community, until such time as they can pocket an unearned, windfall capital gain. Settlers could,
however, bind themselves (in the management deed) to surrender their normal freehold rights and to accept only the value
of improvements upon resale. The value of improvements, as regards both material and labour, is something which can be
assessed by a trained valuer to within 5% of actual market sales.
My own opinion (which has reversed in the past decade) is that the privacy & security given by a community title
structure makes it a desirable vehicle if the additional capital is available to effect the necessary structuring & subdivision.
Others, whose opinion I respect (and which has been reversed in the contrary direction!) believe to the contrary. The jury
is still out.
D.THE COMPANY AS VEHICLE
The big advantage of structuring as a company is that they are quick and easy to set up. Cooperatives, by way of contrast,
are likely to take months of bureaucratic processing to register. A shelf company, with the desired name (if available) and
share structure can be purchased for about $900 within hours. This is a substantial reason why many intentional
communities adopt a company structure. Annual returns only cost $200.
The company enjoys 150 years of direct evolution, since 1844 when the Roman concept of corporatization merged with
that of extended partnership to enable the modem trading corporation to become the basis of commercial life. If shares are
being offered on the open market,' and if more than 20 shareholders are to be involved, then careful attention must be
given to drawing up a legal prospectus16. If more than 50 shareholders are involved the company must be public rather
than proprietary, but this makes little difference save for more expensive annual returns.
The shareholders elect directors at Annual General Meetings, and the directors are entrusted with the day-to-day running
of the enterprise. The constitution can be very flexible as regards what matters require approval by special resolution (a
2/3 vote, although this can be varied), or what proportion of directors must approve a board resolution. Some communities
seek to require unanimity, or a 99% consensus, or some other very high degree of agreement: 1 am dubious of this and
have seen it result in hopeless, frozen stand-offs which only an expensive Supreme Court decision might resolve. A guard
may be made against fraud of directors by adopting in the constitution a clause forbidding a transfer or mortgage of
community lands, and then registering a caveat against the title citing such constraint.
This structure has become highly sophisticated and flexible, and is governed by the federal Corporations Law Great
flexibility is permitted for internal organization and detailed rules for running the enterprise can readily be adopted in the
Constitution (previously termed Articles of Association). There is limited liability, so members are not individually liable
for debts of the group.
Intentional communities which have incorporated and organized themselves in this way, or intend doing so despite the
risks, should ' be aware of several further pitfalls which this method involves. The first is that, unless strict restraints are
placed upon share transfers, they are likely to lose any sense of community, since entry and exit becomes simply a private,
commercial matter without veto powers in the rest of the group. The second is that, if vendors of such shareholding
interests are entitled to capitalize upon increments in the value of the land then the group is open to the membership of,
and to exploitation by, mere speculators. Provisions in the Constitution can guard against such dangers.
E. THE CO-OPERATIVE AS VEHICLE
Co-operatives are self-help democratic organizations, giving equal voting rights to each member. Membership should be
available without social, political, racial or religious discrimination. Their prime aim is to provide members with services,
not profits. Co-operatives are linked by State and national federations, and internationally. This network provides' many
services, such as banking, development guidance and legal advice.
The law regarding the establishment and operation of co-operatives is contained in State legislation 17 which provides a
range of suitable objects and powers which can be tailored to meet the circumstances. The modern legislation in NSW no
longer distinguishes between kinds or types of co-operative, and does away with the old concept of ultra vires. However,
this is not the case in Queensland, where different types of co-operative (such as a trading co-operative, mutual buying
leagues or a community settlement society) are discerned. This last relates to acquiring land in order to settle or retain
people thereon, and of providing any community service or benefit, and is pertinent to intentional communities. A group
must not call themselves a cooperative, or sell shares in itself, until they actually achieve registration.
Co-operatives are expressly outside the Corporations Law'8, but this exclusion does not apply when securities (shares) are
being offered to the public 19 and care must be taken, when offering securities to the public, that an adequate prospectus is
available.20
Legislation regarding co-operatives also contains provisions ensuring proper financial administration, handling of
exigencies and appeal to the Registrar in some instances. There is thus a comprehensive statutory safety-net protecting
both co-operatives and their shareholders from common hazards. The ability of the Registrar to scrutinize the affairs of a
Cooperative, or to refuse to register an unacceptable rule-change, should not be viewed as an interference or danger: these
powers can only be exercised within defined situations and are aimed at protecting shareholders.
Everything can be done and achieved under the co-operative structure which can be done under other structures.
Co-operatives, like companies, are distinct legal entities, capable of suing and being sued, of contracting and of holding
land. Their members are protected from liability for the co-operative's debts. There is a ceiling (20%) on share-holding21 ,
however those with extra funds can loan them to the co-operative, perhaps by way of debenture issue.
The Rules may be amended usually by a 2/3 vote at an Annual General Meeting, and By-laws may be made under them
for the day-to-day operation of the community. These By-laws cover such aspects as the allocation and settlement of
house sites, territorial rights, the renting of premises, payment of annual levies (by cash or work), the settlement of
disputes and codes of behaviour. There are certain formal requirements for an Annual General Meeting (at which directors
are elected), and for annual returns to the Registrar.
Registration of a co-operative is achieved by contacting the local (State) Registry, which will provide model rules. The
Registrar must be satisfied that the proposed enterprise has a solid footing. It will be adequate if a sufficient number of
people (5 in NSW, 25 in Queensland 22) wish to form a co-operative, if they have an option to purchase land (or evidence
from the vendor that such an option will be granted) and if they can show that a Development Application for Multiple
Occupancy upon that land is likely to be successful. They should also work out carefully what their costs and funding will
be.
So as to minimize the likelihood of excessive bureaucratic delay when seeking registration, it is best to adopt the standard
constitution, or that of an al ready-established co-operative community, without seeking novel alterations. Applications of
this latter sort tend to get lost in the "too hard basket. It is important for the spirit and unison of ' the "sustainable lifestyle"
movement that the co-operative structure, with its democratic idealism, potentials for formal federation and international
fraternity, be fostered.
F. SUNDRY MARGINAL LEGAL STRUCTURES.
Tenancy in Common
Where land is held by tenancy in common then all the names of those who own the land together are entered upon the
register and each tenant-in-common is entitled to a separate and distinct Certificate of Title 23 . This will express them as
holding shares of a particular proportion, which need not be equal. There is a statutory presumption that 24 where names
appear together on the Certificate of Title then they hold as tenants in common
All tenants- in-common are entitled to use the land, or to equal shares in the rent. No one tenant-in-common has a right to
possession of any particular part of the property, however the owners can lease portions for periods less than five years
[which in practice would tend to be renewable] so as to keep within the anti-subdivision laws . These leased areas need
not formally be surveyed -- a good sketch is enough for the Registrar-General. Tenants in common are jointly and
severally liable for council rates, but as between themselves they are only liable for that part of the rates proportionate to
the interest held. There is no limited liability for debts incurred as owners or contracted in the group name.
Tile land cannot be sold or mortgaged unless all co-operate. A building erected by one party, being a fixture on the land,
belongs to all the tenants in common and one tenant cannot (in the absence of a specific contract) recover from another
any share of the money spent making improvements etc. If the tenants cannot agree then partition, or sale in lieu, of the
property can be forced by a court (which may appoint a trustee)26 , however inconvenient or disadvantageous this might
be, or a financial adjustment may be ordered.
Members may enter into a management contract with each other, regulating aspects of their relationship, but breaches of
the subdivision code remain illegal and internal 'deeds, contravening same, whilst they may be fine as establishing a
consensus between the tenants-in-common, are ultimately unenforceable insofar as they give exclusive possession of
separate portions for periods in excess of 5 years.
Each member is free to dispose of an interest as s/he pleases, but the internal rules of the group may regulate this (e.g. by
requiring that the share be offered to the remainder first). Such a contractual regulation will not prevent a disposition
contrary to it: only give a right of suit for breach of contract. The interest may be devised by will, or, if not, passes
according to the normal rules of intestacy. If, due to death or a sale, any alteration must be made to the names on the
Certificate of Title then a formal transfer must be recorded at the Registrar-General and stamp duty paid, so expense is
incurred. There is no exemption from land tax unless approval as an MO has been obtained.
Tenancy in common is far from an ideal structure for an intentional community. It has no inbuilt democratic constitution
for decision-making, no major group ideals or financial controls and no history as a multi-faceted group vehicle. Even
with a well-developed internal arrangement. there will be extra costs and risks to face. Surprisingly, many Multiple
Occupancy settlements (usually the smaller ones) hold their land in this way 27. It is possible for such groups, if non profit,
to form a co-operative and transfer the land to is without attracting stamp duty28.
Joint Tenancy
A Joint Tenancy is similar to, a Tenancy in Common except that the rule of survivorship applies and upon the death of
one Joint Tenant ' the interest passes to the other(s), whatever any Will might say. In NSW a Joint Tenancy is severed,.
and becomes a Tenancy in Common. whenever one party transfers his (her!) interest. However, in Queensland it is
necessary to make an application to the Court under the Property Law Act in order to enable a sale to go ahead. This
arrangement of title is only suitable for a permanent couple relationship and should be avoided in an intentional
community, however small the number of settlers.
Partnership
Partnership is the relation which exists between persons carrying on a business in common with a view of profit'9. A
partnership name (unless it is simply their own names) must be registered at the Department of Consumer Affairs Office.
The death of one partner dissolves the partnership, but another partnership may spring up just by continued business
endeavour amongst the survivors.
Thus, an intentional community settling land together with a view to making profit by joint enterprise (for instance by
running a dairy herd) may find themselves unwittingly deemed to be a partnership by force of law. In a partnership there
is no limited liability. The partners are liable, jointly and severally, for all the debts of the partnership and recourse can be
had against their private possessions. Partners are presumed to be agents for the other partners in any transaction
connected to their business. If there are more than 20 partners then they must incorporate.30
Usually partnership agreements are written, but they may spring into existence and become legally binding simply by
acting and trading in association together. They come under the Partnership Act unless it. is expressly excluded. A
partnership might be construed from the circumstances, as may an implied trust, and this possibility. could save some
settlers who have been so unwise or blinded by naive idealism as to have invested upon the land of another, without any
formalization of affairs, only to find themselves threatened with expulsion. In such a case, the elements of a partnership
must be shown: the enterprise must have been carried on for material gain, with a continuity of business transactions and a
sharing of profit or loss.
Partnership is not recommended for a sustainable community. It can be a very messy relationship, especially when there is
no written deed. It may have a place where the group is relatively small and stable, trusting, with their relations detailed in
writing and where their interests are commercially inclined. However, such folk would be much better advised to form a
company or co-operative.
Trusts
Under a trust one person, group or (preferably) corporation holds the legal title for the benefit of others. These others (the
beneficiaries) can be an unincorporated association, but if so they should take care to ensure that their membership is well
defined. Merely using the word "Trust" has no legal effect. everything depends upon the terms of the Trust Deed. Some
kind of Trust may however, be construed from the circumstances, even where nothing is written or express. This may be
the case where various people have donated or worked towards the purchase and maintenance of land held by another
person.
Being, or calling oneself, a Trust gives no advantages above being a company or co-operative and there are several
disadvantages. Any change to the name(s) of trustees, e.g. upon death or alteration, involves amendment of the Certificate
of Title and consequent cost. Legal control over the operation usually rests with the trustee, who may be remote fro ' m the
actual settlers and difficult & expensive to call to account. Settlers may not be well protected under the Trust Deed and
may lose years of investment and effort when the trustee forces legal power upon them. There are no income tax
advantages. The insertion of a 'second tier' of control has no advantage', save perhaps where idealistic objects (e.g.
permaculture or a certain religious lifestyle) are the core of the enterprise, and even then it would be better to use as
vehicle a company limited by guarantee with those objects enshrined as its purpose.
Unit Trust
The unit trust is a revival of traditional legal arrangements made for dividing high-rise buildings before the passage of the
Strata Titles Act. Its revival and application to broad-acre properties enables illegal subdivisions and contravenes
opposition by the Department of Environment and Planning to freehold fragmentation of rural land. In motivation, the
unit trust was partly a smart entrepreneurial attempt to cash in the hard-won Multiple Occupancy policy for the benefit of
land developers and small-scale speculators, and partly an attempt by genuine, community-minded settlers to assure
themselves (as individuals) substantial legal rights.
Under this legal structure the land is held in trust by a company, from which the settlers as shareholders hold leases over
their blocks. In an attempt to avoid being struck down 'as illegal subdivisions, these leases were usually disguised as
short-term (for a period of less than five years), but renewal if the settler obeyed certain covenants, or were not to vest
immediately (but rather after a day or two). These arrangements and disguises have been advised by Queen's Counsel to
be mere legal fictions and to constitute illegal subdivisions. Consent authorities are likely to inspect internal legalities and
to reject defective Development Applications.
Incorporated Association
This legislation 31 permits the incorporation (for a small fee) of more than 5 (NSW) or 7 (Qld.) people for any lawful
purpose, provided the association does not have trading, or securing pecuniary gain, as an objective. Incorporation grants
limited liability, perpetual succession, capacity to sue and be sued etc. There are certain statutory requirements (such as
holding AGMs and preparing accounts). Incorporation may be refused if it would be inappropriate by reason of the scale
or nature of the activities or property, or the extent of dealings with the public. Superficially, this cheap and easy structure
might be appropriate to intentional communities wherein the individuals look after their own income, however it is
generally inappropriate since capital may not be divided into shares or stock held by members, nor may members have a
disposable interest in its property, even on winding up. To some extent, members might secure themselves by lending
their money to ail incorporated association, upon such terms as they frame, thereby enabling it to purchase the land.
However, in the last analysis this structure is intended more for sporting & social clubs, community groups (e.g.
environmentalists) and the like, not intentional communities.
Extended Family
The case of Dempsey v South Sydney Municipal Council32 has potentially revolutionary implications. This case decided
that people need not be related by blood to constitute a family. If they think of themselves as a family then they are one,
and the major objective test is whether they eat together. Existing planning instruments everywhere permit a family home
upon each rural lot, and indeed some planning instruments expressly envisage a 'home' consisting of units which are not
under one roof. Defining when a detached 'unit' is in fact a separate 'home' approaches legal impossibility: certainly if it
contains its own bathroom & kitchen facilities it may have gone too far, but what constitutes a ' kitchen? Probably
hard-wiring of refrigerators and stoves is necessary, and merely a few plug-in appliances will fall short. Theoretically,
then, it would be possible for any number of people, constituting such an [extended] family, to build a single huge,
rambling house and settle land together without getting development approval as a multiple occupancy..
However, this approach is not particularly recommended. Individual settlers, should they become estranged from the
family, would find it hard and expensive to define any their contribution and gain some refund. There would need to be
very strict guidelines on behaviour and decision-making. There would be no exemption from land-tax. The construction
of, or extensions to, the central house would need Local Council building approval in the normal way.
G. CONCLUSION
There is a great potential for intentional communities, both in the countryside and in urban areas. Probably there is no
other way to create self-management efficiencies and to tackle the structural unemployment accompanying modern
technological advances. The jury is out on whether Community Titled communities have an inherent warp against truly
communing, or whether in fact. the increased security they supply can provide -at a stiff financial price - a much firmer
foundation for communing. If no community titling is effected, in most instances the preferred vehicle for legal
structuring should be the company or co-operative.
© David Spain (B. A; LL.B.. Hons.) Solicitor, Supreme Courts of NSW & Qld. 16.09.98
References:
1. Local Employment Trading System. This is simply a small local economy whereby goods & services are traded
at agreed rates, in a cashless economy, the trades being registered on computer by a central clearing house.
2 State Environmental Planning Policy 4 15 gazetted 09.04.1998.
3 See, for instance, an extensive study of such internal constitutions in Gaston Leval, Collectives in the Spanish Revolution
(Freedom Press, 1975).
4 See e.g. Part 12 of the Local Government Act (NSW, 1919).
5 S.339 Local Government Act (NSW, 1919)
6 Re Lehrer & the Real Property Act (1961) SR (NSW) 365.
7 Section 1.3.5 Integrated Planning Act (Qld. 1998) - this Act terms subdivision
"reconfiguring a lot".
8 S. 1.4 Local Government (Planning & Environment Act (Qld. 1990); s.4 Local Government
Act (NSW, 1919).
9 By State Environmental Planning Policy No 42-Multiple Occupancy of Rural I-and (Repeal)
10 State Environmental Planning Policy # 15 (1979).
11 S. 10(rl) Land Tax Management Act (NSW 1956).
12 Clause 9(1)(c)
13 Cluster Titles Act (Vic. 1974).
14 Community Land Development Act (NSW 1989) and Community Land Management Act
(NSW 1989).
15 Body Corporate and Community Management Act (Qld. 1997). This was previously the
Building Units andGroup TillesAct.
16 Under Part 7 of the Corporations Law.
17 E.G. Co-operatives Act (NSW 1993); Cooperative and Other Societies Act (Qld. 1967); Cooperatives Act (Vic. 1996).
18 S. 41(1) Co-OperativesAct (NSW 1993); s.8(1) Co-Operatives Act (Vic. 1996).
19 S. 41(3) Co-Operatives Act (NSW 1993).
40 See Part 7 of the Corporations Law.
21 S.289 Co-Operatives Act (NSW 1993)
22 S.27(1) Cooperative and Other Societies Act (Qld. 1967)
23 Real Properly Act (NSW 1900) s. 100(2).
24 Conveyancing Act (NSW 1919) s. 26(1).
25 Especially ss. 323, 339 of the Local Government Act (NSW 1919).
26 Conveyancing Act 66G (NSW, 1919);
27 Evidence of John Weller, solicitor, to Commission of Enquiry into Multiple Occupancy in
the Tweed (1986).
28 Cooperatives Acts. 14 (NSW, 1993)
29 Partnership Acts. 1 (NSW 1892).
30 Corporations Law (Cth., s. 112).
31 Each state has an Associations Incorporation Act.
32 35 LGRA 432.