Hynes Legal: Don’t Ignore The Development Next Door

Three things to know about neighbouring developments:

  1. The courts will likely favour the developer, so you are better off negotiating access
  2. A body corporate is entitled to payment for surrendering some rights
  3. Any agreement requires approval at a general meeting of lot owners

Dealing with adjoining developments and disturbance

When a developer proposes to build next door to a strata scheme, the body corporate needs to take care when considering any impacts that could flow from the development.

Because what you’re going to have is disturbance.

It is not uncommon for the owner of an adjoining construction site to need something from a body corporate as their development progresses.

That might simply be access to swing a crane over a building, or it might be to install rock anchors under a building to make sure that their own building stays up while it’s being constructed.

They may need access to part of your common property for a period of time to allow them to construct what they need to construct.

There are many aspects with any development, and the reality is from a not-in-my-backyard perspective, the courts will generally not allow someone to refuse access for those purposes when a construction is taking place.

What are a body corporate’s rights regarding a neighbouring development?

For a body corporate, you are far better off negotiating with the developers to agree an outcome that protects everyone. What type of crane is it going to be? What’s the swing plane that it’s going to use? What’s the area of property that we’re talking about and what are the disturbance costs for that?

What about dilapidation reports? What does the building look like when the work starts and when it finishes? Is the developer going to wash down the building, because inevitably a side issue with construction is dirt and dust.

The body corporate is certainly entitled to be paid in exchange for giving up its rights.

One of the difficulties is that you can’t really control amenity. But you can control to a degree things such as risk.

That can be by way of securing some sort of cash bond from the developer or a bank guarantee or evidence that they’re insured in relation to the risk that they’re going to expose you to.

And then there’s also potentially disturbance to individual commercial lots that might need to be negotiated by those individual owners.

What you can do

There are many moving parts in any adjoining development. How an agreement is negotiated depends to a degree on what the developer needs from the body corporate and the approach the body corporate takes in response.

Whatever is agreed should be documented, should be locked down, and should be approved at a general meeting. If the body corporate is going to give away rights in relation to common property, that’s a restricted issue from a committee perspective which needs the approval of owners.

We’ve negotiated our way through dozens of these agreements over the last couple of years, so if you need any help with one, just reach out.

Author: Hynes Legal 

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