DEVELOPMENT APPROVAL CHANGES EXPLAINED
Recently, there was a request for some guidance on a not so common situation. A young scheme, only a year old and with everyone just settling in, the committee received a request to remove the palm trees. As with most new high value developments, the committee were new to body corporate and asked “What is the process in responding to this owner’s request?”.
The first place to start is the development approval document [DA] to assess if the local council requirements in relation to the Palm trees are a condition of the DA approval. Another reference document is the Community Management Statement [CMS], which contain by-laws specific to the scheme with respect to maintenance of common property. The reason for these conditions is that owners in a body corporate typically buy off the plan and are delivered the asset in the way in which the developer has been approved to deliver.
What are the body corporate’s options?
- If the DA conditions specify the specific topography and nature of the area, then;
- The owner can issue an owner motion prior to the Annual General Meeting [AGM] with either one quote or two quotes to remove the Palm trees, should the cost of removal be in excess of the committee spending limit;
- Depending on what the module the scheme is registered under and what the DA states, it may be a special resolution;
- Call the AGM within the required statutory timeframes;
- Vote and action outcome; and
- Should the outcome require the DA to be updated and relodged with council, ensure this is undertaken, noting that council requirements and the DA may or may not require this.
OR
- If the DA conditions are silent and depending on the cost to remove, then this will require a general meeting as it is an “improvement to common property” – even though it is removal;
- Depending on what the module the scheme is registered under and what the DA states, it may be a special resolution;
- Call the AGM within the required statutory timeframes; and
- Vote and action outcome
Dealing with owners motions and timing
At a committee level, owner’s motions are required to be decided on within a 6 week timeframe, or within a further 6 weeks on providing notice to the owner. If after the 12 week period, the committee has not responded, then the response is deemed to be a no, except in specific circumstances. Therefore, in this case, the committee can request the additional time and not provide a formal response.
However, if the owner submits the motion outside of the AGM and also provides a signed written request with over 25% of the remaining owners in favour of calling a general meeting on the remove, they have requisitioned the secretary to call an Extraordinary General Meeting. The owner must also provide the owners motion with relevant quotes.
Other considerations
- Who pays for the general meeting? As unlikely to be in the budgeted in the levies
- It may require legal advice and who is going to pay for this? As again it is unlikely to be budgeted in the levies
- Owners are only allowed 6 motions in a rolling 12-month period, and they cannot submit the same one within this period
- Committee code of conduct to act in the body corporate’s (not individual owners) interest
Article contributed by Nicky Lonergan, Managing Director, Archers the Strata Professionals
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