Development offences in bodies corporate

15 September 2020

In Queensland the Planning Act (2016) provides the framework under which all residential development work is performed.

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.

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.

by Ben Seccombe & Ben Sandford