QLD: Secure your rights before a developer starts construction

This article advises Queensland bodies corporate on securing their rights when a developer undertakes neighbouring construction, focusing on agreements for trespass issues like basement shoring and crane overswing, the importance of builder’s insurance, and seeking compensation for nuisance and costs.

Three things to know about neighbouring developments:

1. The simplest and cheapest solution is to do a deal with the developer
2. Make sure the builder has relevant insurance
3. Get your costs paid and talk to a lawyer about compensation

When a developer plans major construction next to an existing strata scheme, it’s important that the neighbouring body corporate secures its rights early.

If it’s a large build, the developer will typically need to negotiate agreements over a number of issues.

The first of those is if they’re digging a basement and potentially using your land to hold up the walls of their basement.

The second issue relates to a crane being erected and having the boom of that crane swing over your property.

Both of these scenarios amount to trespass if done without your consent.

In circumstances where the developer needs to shore up the wall of their basement as part of construction, or the crane boom swings over your property, they will need an agreement with you in order for that work to proceed.

In our experience, the path of least resistance with developers is to do a commercial deal to allow these works to occur. Your neighbour has avenues to apply to the Supreme Court to get orders to allow them to use your property reasonably in relation to these aspects, and that often yields a worse result than a commercial bargain (for everyone).

In doing that deal, there are some issues to be aware of.

1. Typically, you want as much as possible to make sure that the crane doesn’t overswing your property with load. This may be a requirement of the build, but the risk to you as the neighbour is significantly lessened if the crane weathervanes only.
2. Make sure the builder has appropriate insurance.
3. As a general rule, you are entitled to compensation. As part of this, you should be aware of the potential nuisance that can occur in relation to your property, and the work that might need to be done to fix that nuisance. This might include cleaning windows or concrete spoil, or cleaning air conditioning vents to ensure that any damage caused by the developer or its builder is made good.

How much compensation is a commercial arrangement depending on the level of impact they’ll have on the property and the duration that they’ll be requiring access to the property.

It is also important to make sure you get your costs paid on the way through. This isn’t your doing, so the legal costs associated with seeking advice should always be recovered from the developer.

We deal with these sorts of matters every day, so if you have any queries or a developer shows up on your doorstep wanting a deed signed, please reach out.

Rob Lalor
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #740.

This article has been republished with permission from the author and first appeared on the Hynes Legal website.

Read next:

• QLD: Don’t ignore the development next door
• QLD: Q&A Dealing with the Developer In a New Building
• QLD: Preparing an Ageing Scheme for Sale to Developers

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