This QLD article is about protecting Queensland apartment buyers.
On Thursday 19 May 2022, Corella Rd Dev Pty Ltd was found guilty of an offence under section 29 of the Body Corporate and Community Management Act 1997.
This is the first ever conviction under section 29, which was introduced in 2003, as part of a suite of consumer protection provisions aimed at protecting Queensland apartment buyers.
Section 29 applies to developers of community titles schemes that are intended to be developed progressively; that is, in stages.
Sometimes the developer of such a scheme will want to change the scheme in a way which, if carried out, would affect the nature of the development or one or more stages of it.
If that is the case, and the change is not consistent with the current development approval for the scheme, then the developer must give certain notices at least 30 days before the developer applies for the development approval required for the changed scheme.
The notices must be given to the body corporate and each person that has entered into a contract with the developer to buy a proposed lot in the scheme.
For a developer company, breach of section 29 can attract a fine of up to $206,775. This is the second largest potential fine that can be imposed under the BCCM Act.
In the case of Corella, the development lot is part of a community title scheme, together with 54 residential townhouses, adjacent to a golf course. The current community management statement for the scheme provides for 2 more stages of development, comprised of 36 single or double story dwellings, with one, two or three bedrooms. Those new lots were to be created by two new building format plans.
If this original development was carried out, the scheme would comprise 90 residential townhouses, each on a separate title on building format plans and all used as residential multiple dwelling units.
Corella applied for a development approval for 21 single storey dwellings, being 18 two bedroom and 3 one bedroom dwellings. The single bedroom dwellings were proposed to be occupied by ‘residential plan managers’ for the occupants of the two bedroom households. This was to provide an option for the dwellings to be offered as NDIS accommodation. All of the dwellings were to be built on the (currently vacant) development lot, and no new lots were to be created.
If this new development was carried out, the scheme would comprise 54 residential townhouses, each on a separate title on building format plans and all used as residential multiple dwelling units plus one standard format plan lot, with 3 clusters of 7 dwellings each, all of which could be used for (low care) NDIS accommodation.
Standard format lots and building format lots have different maintenance requirements, and arguably would also have different contributions to the joint expenses of the Body Corporate. That is, the body corporate levies would be different to what was originally proposed.
The developer applied for the development approval required, without giving notice to the Body Corporate. The Body Corporate found out about the development approval being given in the local newspaper.
The court held that the proposed changes to the scheme were inconsistent with the current development approval, as reflected in the community management statement for the scheme.
In consequence, and based on other key findings, Corella was found guilty of the offence.
The court is yet to decide a penalty.
Stratum Legal and Mr Ben Strangman of Counsel represent the Body Corporate in the prosecution.
Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280
This post appears in Strata News #571.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Have a question or something to add to the article? Leave a comment below.
EmbedRead next:
- QLD: Q&A Tenancy Agreements & the Body Corporate
- QLD: Q&A Boundary Fences in a Body Corporate
- QLD: Who’s Who in the Rental Zoo & What You Need to Do!
- QLD: Q&A Ins and Outs of Rental Pool Managers in Queensland Strata
Visit Renting / Selling / Buying Strata Property OR Strata Legislation QLD
Looking for strata information concerning your state? For state-specific strata information, take a look here.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.