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Don’t get bitten by a Zombie DA

April 26th, 2018

A recent High Court case has highlighted that development approvals are not dead and buried once a development is substantially complete.

In Pike v Tighe, some land was subdivided pursuant to a development approval which included a condition requiring an easement to be granted over part of one lot (lot 1) in favour of another (lot 2) for access, on site manoeuvring, services and utilities.  The development approval was issued in May 2009, and an easement was lodged with the council along with the plan of subdivision, but it did not comply with the condition because it did not provide for on site manoeuvring or connection of services and utilities.  Despite this, the council sealed the plan and the easement and plan were registered.  Lot 1 was sold to the Tighes in 2011.  Lot 2 was sold to the Pikes in 2012.

A dispute evidently arose between the two lot owners about whether the Pikes were entitled to an easement which included rights to manoeuvre and connect to services and utilities, and whether the council could force the Tighes, as the owners of lot 1, to grant such an easement.

Section 245 of the Sustainable Planning Act (which was then in force) provided that a development approval attaches to the land and binds successors in title and any occupier of the land.  A similar provision can now be found in section 73 of the Planning Act 2016.

The High Court ruled that the condition of a development approval obtained by the original developer did bind the current owners of the land, despite the site having since been subdivided, and the present owners (the Tighes) could be forced to grant the easement.  By failing to comply with the condition of the development approval within a reasonable time after they had become the owners of the property, they committed a development offence.

The case was somewhat unusual in that the council involved had sealed the plan without the condition having been properly complied with, but this can occur from time to time for a variety of reasons.  It is not uncommon for a property owner or occupier to have failed to comply with development conditions.  For example, this can be the case where there is a material change of use approval, and the council has no “hold point” such as plan sealing to ensure compliance before the use starts, or perhaps the condition was originally complied with but circumstances have since changed so that the property is no longer compliant.

Development conditions for commercial properties in particular can have a substantial impact on the owner of the property by, for example, requiring a substantial easement to be granted over the land, or requiring the owner to upgrade the road providing access to the property.  It is certainly worth having your lawyer check the planning position out thoroughly as part of your due diligence process before you complete a purchase.  If you do not, an approval which you thought was finished off by a previous owner or occupier might just come back to bite you.

For more information about this issue and all commercial property matters please contact our partner and accredited property law specialist, Nigel Hales on 07 4036 9700.

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Beware Before Consenting to Development Approvals

April 24th, 2018

In a recent case, a property owner was stuck with a $400,000 infrastructure charges bill because he consented to a development application without paying proper attention to the possible consequences.

An infrastructure charge is something which councils can impose for new development.  They are usually triggered by a development application, and become payable when the rights under the development approval are exercised, such as when the change of use occurs.   Although the planning legislation in its various recent forms has not specified that infrastructure charges run with the land, it has for some time said that they are recoverable as rates.

In the case, an owner consented to a tenant making a development application to use his land as a refuse transfer station.   The use had actually already, unlawfully, commenced.  The application was approved by the council, and council issued an infrastructure charges notice to the tenant (not the owner) for $356,718.84.  The tenant did not pay it, and presumably was insolvent because it was not joined in the proceedings.  Four years later the council issued a rates notice to the owner for $400,574.94, which included the infrastructure charges.   Ultimately the Court of Appeal held that council could do this, and the owner had to pay.

In my experience property owners are often fairly flippant in granting consent to tenants, purchasers and option holders to enable them to make development applications.  Often in the case of contracts and options, there is no real description of what it is that the owner is required to consent to  – just a development application of some sort.  It is worth remembering though that development approvals, and their conditions, run with the land and so will bind the owner.  As this case shows, infrastructure charges are treated similarly.  Owners should be cautious about what they are consenting to, especially if there is a prospect of the development commencing while they are still the owner of the land, thus triggering the need to comply with conditions and pay infrastructure charges.

For more information, please contact Partner, Nigel Hales.

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Lauren Doktor joins QLS Early Career Lawyers Committee

April 24th, 2018

Congratulations to Lauren Doktor on becoming a member of the QLS Early Career Lawyers Committee

 

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Natural Disaster Assistance Loans

April 17th, 2018

Following the disaster of last month’s flooding, the Queensland Rural and Industry Development Authority have announced two types of low interest loans to assist small businesses and primary producers in Far North Queensland.

The Natural Disaster Assistance loans are available to eligible businesses and primary producers who were affected by the flood event of 6 – 10 March in North Queensland. Small businesses are also able to apply if they were affected by flooding associated with Severe Tropical Cyclone Nora in the period 24 – 29 March.

Eligibility for these loans is assessed on a case by case basis. Local regional area manager Sam Spina is available to aid in eligibility and application enquiries. More information can be obtained from the government’s website at www.qrida.qld.gov.au or by phoning 1800 623 946 and booking an appointment with Sam.

This initiative is a joint Queensland and Commonwealth assistance program. Further enquiries should be directed to the website or phone number above.

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National Advance Care Planning Week – Plan for tomorrow, live for today

April 16th, 2018

Australia’s first ever Advance Care Planning week begins today, to raise awareness and encourage Australians, young and old, to engage in conversation about their preferred health care, if they were too sick to speak for themselves.  Advance care planning ensures that your voice is heard if medical decisions have to be made for you.

Figures show that less than 15% of Australians have an advance care plan in place.  In Queensland, an advance health directive is a document where you can record your wishes and directions regarding your future health care for various medical conditions, in the event you were incapable of making those decisions for yourself.  Having an advance health directive in place reduces stress for your loved ones as it allows your family, friends and doctors to understand what is important to you and what is an acceptable outcome for your life.

The first step to an advance care plan is talking to your friends and family about your wishes.  We encourage you to join in the conversation.

For more information about Advance Care Planning week visit www.advancecareplanning.org.au or contact our Wills and Estates Solicitor, Bianca Stafford on 07 4036 9700.

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Choosing a Guardian for your Child

April 12th, 2018

Choosing a guardian to care for your child in the event of your passing is a tough decision to make as a parent.  No one will seem like the perfect match – simply because they are not you.

Although it may feel unnatural, appointing a guardian who you choose and trust is so important.  By not exercising this right, you are essentially leaving it up to the Court to decide who the most appropriate person is to take on this role.

To help you with the decision making process, I have compiled three steps to assist you in choosing the right guardian for your child:

1.  Make a list of your values and beliefs and the people who align with those values and beliefs

  • What are your moral, religious and spiritual values? For example, you may wish that your child grows up understanding the importance of being polite, respectful and kind to others.  Who possesses those traits and would instil these values in your child?
  • What matters to you most? Consider your child’s upbringing. Is education most important to you?  Is your child creative and expressive, or a budding athlete?  Who understands your child and would help them reach their full potential?
  • What is their parenting style? Is it similar to yours?
  • Remember, a guardian doesn’t necessarily have to be a family member.

2.  Be realistic – consider the suitability of your proposed list of candidates

Your mum may have similar values as you, but if she is retired and enjoying a simpler, quieter pace of life, is she really the most appropriate person to care for your child?

Good questions to ask yourself include:

  • Are they physically, emotionally and financially capable of caring for your child? Consider their age, status in life, mobility, stamina.
  • Do they themselves have children? Would your child fit within their family?
  • Where are they located? Can they accommodate your child into their lives with housing, transportation and other basic needs?
  • Will your child be close to other family members and friends? How would relocation affect your child?  What are the schools like in that area?
  • What is your child’s relationship with the proposed candidate? Will their personalities clash?

3.  Have a conversation

Once you have picked the ideal person (or at least narrowed down the list), you should then have a chat with the proposed guardian about the appointment.

Openly discuss what your wishes are.  This will also give you an idea of whether or not they are on the same page as you.

It is important to give the proposed guardian the opportunity to consider the appointment and how it may impact on their own life.  The last thing you want is to appoint someone who has not been consulted, is unhappy with the appointment, and carries out the role as a mere obligation.

Once you have decided on a suitable person to be guardian (and they agree to take on the role), it is time to record your wishes and I would be happy to guide you through the process of preparing a will.

I can also assist you with preparing a guardianship plan, which is a guideline setting out how you wish for your children to be raised.  My clients often find comfort in having a guardianship plan prepared.  The plan can include your wishes about where your children live, people who are to be involved in your children’s lives, standard of living, lifestyle, education and family cultural/traditional values.

I understand that choosing a guardian is a difficult decision for a parent to make and hopefully this helps you with the decision making process.  The most important thing to remember is that your child is depending on you to plan ahead and do all that you can to ensure that they continue to have a bright, happy and secure future, if you are not around.  Having a will in place, appointing a guardian who you choose and trust, is the best way to ensure this.

If you would like to know more about guardianship, or to review your estate planning, please contact me.

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Crackdown on Unpaid Child Support

April 10th, 2018

A parent who owes the other parent money for child support can be prevented from leaving the country with Departure Prohibition Orders.

The latest statistics from the Department of Human Services (Child Support) (“the Department”) reveal that in the 2016/17 financial year, the Department recovered close to $10 million dollars in child support debts from approximately 1,800 parents through the use of Departure Prohibition Orders.

The Department has the ability to prevent a parent who has a child support debt from leaving Australia without either first fully repaying the debt, or making satisfactory arrangements to fully repay the debt.

In December 2017, the Department recorded  the largest single discharge of a child support debt after one parent repaid a debt of $350,000.00 in full at the airport, when he was prevented from leaving the country by border force.

Other examples include one parent making full payment of a $22,000.00 debt at the Sydney Airport in order to leave the country.  Another parent who owed $100,000.00 to their former partner for child support repaid $20,000.00 at the Perth Airport, followed by the balance of the debt on their return to Australia.

The Department has reported that, in the previous seven months alone, the Government has recovered some $6 million dollars from 700 child support debtors attempting to depart from Australia.

With this in mind, those who are owed a child support debt may want to learn more about when a Departure Prohibition Order will be made.

The criteria for making a Departure Prohibition Order are set out below:

  1. there must be a child support debt owed;
  2. there are no satisfactory arrangements in place to repay the debt in full;
  3. there has been a persistent failure to pay the debt without reasonable excuse. The Department will consider whether the parent has taken deliberate steps to avoid repaying the child support debt and/or whether there has been a long history of non‑payment; and
  4. it must be desirable to make the order.

It is a criminal offence to attempt to leave Australia without a Departure Authorisation Certificate whilst a Departure Prohibition Order is in place.

If you would like more information on Departure Prohibition Orders or recovering a child support debt, please contact our family law team today on 07 4036 9700.

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