Crouching Tiger, Hidden Crane (QLD)

Former Queensland Premier Sir Joh Bjelke-Petersen’s “crane index” has shot through the roof in South-East Queensland. But what happens when a Developer wants to swing a crane through your Common Property airspace?

The short answer is they can’t swing that crane without Body Corporate consent. Most Bodies Corporate will grant consent, once the right deal is struck.

Typically crane access is granted for the expected construction period and recorded in a Deed. As the access is temporary, it’s usually expressed to be in the form of a (non-exclusive) licence of common property air space. For most Bodies Corporate granting that licence takes a special resolution and therefore an EGM.

A well-drafted Airspace Access Deed will deal with issues such as the duration and limits of access, if and where ‘live’ loads are permitted to swing through the airspace (which is unusual), the developer’s promise that no harm will come to the owners or occupiers of the Community Title Scheme, the consequences if that promise is broken and who pays the Body Corporate’s costs of and arising out of the Deed.

Having negotiated both airspace access, and subterranean access before, a typical approach taken by developers can be:

1. To only ask for access when it suits the developer – typically after the project plans have been worked out, the development approval has been obtained, and only when the issue of the most cost effective construction methodology is being decided;
2. To request a Body Corporate to grant access within unreasonable time-frames – because the developer’s on a time limit and ‘time is money’;
3. To sign off on access without appropriate indemnities – some developers will object to giving any sort of meaningful indemnity in relation to any harm that their activities can cause, despite that being one of the most important issues for Bodies Corporate; and
4. They use the speed of (i.e. lack of) Body Corporate decision making processes against the Body Corporate – some developers will simply barge ahead and commit a temporary trespass, safe in the knowledge that they will be fully ensconced by the time the Body Corporate takes any meaningful steps to protect is rights.

In a recent example we represented a Body Corporate where the developer of the neighbouring lot wanted to build a new retaining wall on the common boundary. In the midst of negotiating subterranean access, the developer decided to simply call in the excavators. Within the space of 3 days he had removed support to the scheme land including a retaining wall, put in place temporary supports and erected a safety fence on the common property.

Some developers are truly the ‘crouching tigers’ of the property sector – ready to pounce. If you see a tiger, don’t freeze (like some prey species!), put on a defensive display. Call a General Meeting and pass resolutions:

1. That the Body Corporate is prepared to negotiate with the owner of the development site and the developer, provided that any agreement is recorded in an Access Deed which adheres to the following key principles:

(i) The developer and/or owner must pay all of the Body Corporate’s costs;

(ii) The developer and owner will promise not to cause any harm to the scheme land, body corporate assets, any owner, occupier or visitor;

(iii) The developer and owner indemnify the Body Corporate, the owners and the occupiers in respect of any breach of that promise;

(iv) The developer and / or owner take out insurance against the risk of a breach of their promises; and

(v) The access is for a stated period of time to a defined area.

2. That the Committee is authorised to negotiate a grant of access on those terms, with the assistance of the Body Corporate’s lawyer; and
3. That in the event of the developer or owner trespassing upon the common property, or it appears likely to the committee that will happen, the Body Corporate authorises the bringing of proceedings to restrain the trespass.

By passing those sorts of resolutions any developer ‘tiger’ will think twice about doing the wrong thing. Well advised developers know that they don’t have carte blanche to trespass and that if they are hauled into court they will likely lose. Better still, the developer will also get a clear message about the terms that the Body Corporate is prepared to negotiate on.

Of course, in our view it’s much better to flush out the ‘hidden crane’ if you can.

As soon as a Body Corporate becomes aware that development of an adjacent site is likely to take place, reach out to the owner and start the conversation: what is being developed? when? and, will you be asking for access? If you don’t get answers be persistent and smart; grab a copy of the development approval (usually available on line). Once you have it make it clear you won’t be granting access unless an agreement is reached.

By doing that you will flush out the developer and then the Body Corporate will have much more time to do what it needs to do, not only to protect itself, but also to simply pass the motions it needs to grant access lawfully, if it chooses to do so.

This article was contributed by Michael Kleinschmidt from Stratum Legal.