This article about development offences in bodies corporate from owners has been supplied by Ben Seccombe & Ben Sandford, Mahoneys.
When a new building is approved by the local council, a package of conditions is prepared – that conditions package sets out the rules with which the owner (including any subsequent owner) of the land must comply. Additionally, every local council within Queensland maintains their own system of zoning and mapping overlays that either permit or exclude certain development activities in certain areas.
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Development that might be allowed in one suburb could be completely prohibited in another and vice versa. Development prohibitions can relate to activities that would not ordinarily be thought of as “development”; for example, clearing vegetation, short term letting, enclosing balconies and putting in retaining walls (if not properly approved) can all fall afoul of the Planning Act if the unlucky property owner doesn’t make enquiries first.
Under the Planning Act it is an offence to:
- carry out assessable development work without all necessary development permits in effect for the development; or
- contravene a development approval (i.e., the conditions of the development).
The above offences can carry hefty penalties – the current maximum penalty for contravening a development approval or carrying out assessable development without a permit is $587,475. If you carry out assessable development on a heritage listed, site the penalty can increase to up to $2,219,350.
It’s easy to comply when you know what the conditions are – if you built a house yourself, you’re unlikely to be taken by surprise by conditions that the council imposed on you. Where the difficulty can arise is when a subsequent owner assumes they have a right to do whatever they want in relation to a property that they own, and they don’t seek appropriate advice before they commence work.
This is particularly relevant to bodies corporate– the approval that applies to the development of the entire scheme also applies and is legally binding on, each of the lots.
The quintessential example is the enclosure of balconies. Many lot owners believe they have the right to do what they want to their balcony and don’t consider the possibility that they might need approval from the local council, or that their balcony may actually form part of the common property.
It’s important that both owners and bodies corporate get advice before they start (or in the case of a body corporate, approve) work. Both the lot owner (for carrying out the work) and the body corporate (for failing to comply with the conditions of approval) can be punished for a contravention of the Planning Act.
If you have concerns about proposed development or construction work in your body corporate it is better to be safe than sorry – contact us.
This post appears in Strata News #426.
Have a question about development offences in bodies corporate or something to add to the article? Leave a comment below.
Ben Seccombe & Ben Sandford
Mahoneys
E: bsandford@mahoneys.com.au
P: 07 3007 3722
Read next:
- QLD: Recovering Body Corporate Costs From Owners
- QLD: Records Management and Improvements to Common Property by Lot Owners
- NAT: Income from Body Corporate Common Property
This article has been republished with permission from the author and first appeared on the Mahoneys website.
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One of our owner’s for years has flouted DA approval, ie using his garage for storage and parking on the street, yet he used that argument at arbitration to have another owner be denied approval to convert their garage space for another purpose. The Management company assisted him with this process and is aware he is doing the same thing, yet nothing has been done.
For over a year the same owner has created a herb garden, social space in one of the DA approved clothesline areas. Again despite the DA Approval letter the management company is failing to act, until the local council, BCC were contacted last year. In May they finally contacted our Management company and advised that the area was being used in contravention of the DA Approval. The owner is choosing to ignore the request to move his items from the area saying you can still access the lines, not true. One has been taken down and the other has chairs, potting mix etc underneath. The Management company is again not doing anything.
Whilst council has said contact us within four weeks if he doesn’t comply. I fail to see why any resulting fine should be paid by all, due to one person not doing the right thing.
If I knew then what I know now, I would never have purchased anything other than a house.
The herb garden / socialising space is less than 2 metres from a bedroom window.
We have a unit in Cairns and found structures were built on top of the common property without approval of any sort really, even the invoices the body corporate paid had no description of the work. After being harassed because the owners who built the unlawful construction on the common property, owned the company that built the structures. So no DA , No certification no signed off of
engineered drawings and nothing on the BC records. This construction was built on the roof on a coastal belt of land.
What is even a bigger issue here in Cairns is the Cairns Regional council has destroyed all planning records up to 1996. So there are no planning records of houses and apartment blocks built to this date. So you ring council to see if you can get the plans for this apartment block and you can’t get anything.
Thanks for this article. Planning etc offences seems to be an emerging issue in QLD. Have had personal experience with a tower complex at Maroochydore where significant improvements had been made by a lot owner to their balcony, ie essentially turning a 45m2 open-aired balcony into 2 bedrooms.. BC had no record of either Council approval or BC approval. One thing lead to another, and the Council conducted an inspection of the complex and discovered a whole bunch of other problems. Council then issued a Show Cause Notice re a number of ‘developments’ by owners and/or the BC, eg construction of large boatshed, the aboveneoted balcony, non-compliant safety- barriers on the carpark roof-areas, installation of a concrete slab on top of the old carparks, replacement of a small timber portico with a much larger glass-roofed one, etc.
Importantly, the Council was concerned about the absence of both Planning Approvals AND Building Approvals (including Engineers Certificates.). The Committee was not aware that even if there is a Planning Approval,, Building Approval with Certification is also part of the construction compliance mix.
The 220 lot complex has a major hotel as a letting agent and during the final stages of the development, a hotel restaurant on a residential floor did not receive council approval. The restaurant is operating with this zoning. Many other abnormalities exist including charging of services, incorrect information (number of lots) supplied for the production of reports, sinking fund analysis, Insurance valuation and fire and safety with the latest insurance information listing the letting agent’s (hotel) lot as a vacant lot. Maintenance has been neglected for the spending of refurbishing/repainting for the expressed purpose of increased holiday letting income. Our committee consists of the non-voting hotel representative, 6 letting pool investors and one resident. Car parking spaces originally a condition of approval have been taken for hotel use (laundry, storage and garbage). Council has been made aware but will do nothing. Where does responsibility lie as the majority of owners vote in favour of the letting agent.
Hi John
There are a number of independent issues there, some of which ought to be dealt by different bodies.
The development and council approval concerns (including the car parking) should be addressed by the council. The issues related to the abnormalities and maintenance should be firstly addressed to the body corporate, and if that is not successful, to the Commissioner’s Office.