|You can view the original letter here|
Mr. Jarrod Bleijie
GPO Box 149
Brisbane QLD 4001
The Unit Owners Association Queensland (UOAQ) is becoming increasingly confused with Queensland Government legislation and the specific department or level of Government responsible for implementation and enforcement of sections of the Body Corporate and Community Management Act 1997 (BCCMA). The UOAQ has requested clarification from the Attorney General who is responsible for the BCCMA, and under standard protocols would be responsible for enforcement of legislation for which he is responsible. However, ·advice from the Attorney General places the responsibility with the Local Government authority.
The purpose of this letter is to request the Minister for Local Government to clarify the responsibility for enforcement of the requirements of the BCCMA and, or, advise Local Government of their responsibility to observe and enforce the requirements of the BCCMA. The UOAQ understands that this may require liaison with other Government Departments to establish the lines of communication and responsibility.
Under the Management Module for the building as defined in the BCCMA, the owners of the building (unit owners) are not given the opportunity to decide under which management module they want to live, or even if they want a resident caretaker/letting agent. ·The Management Module for a residential/ accommodation building may be either the Standard Module with a maximum 10 year Caretaking/Letting contract, or, the Accommodation Module with a maximum 25 year Caretaking/Letting contract.
The module to be assigned to the building is decided by the developer to a set of guidelines in the BCCMA that at first reading appear to be clear (s21); however, there is a small clause in the Accommodation Module that states: “the lots included in the scheme were intended to be predominantly accommodation lots”. This clause is vague and non-definitive and places the legislation in the realm of a person’s intent of mind. Accommodation Module Section 3(2)(b)(ii). ·This clause allows a developer to incorrectly classify a building, as the 25 year Accommodation Module instead of the 10 year Standard Module, thus maximising his return from the sale of the Caretaking and Letting agreement.
This situation appears to have become established through lack of legislation defining the responsibility of any Government Department or Agency to monitor and enforce the correct categorisation of buildings and their use. The BCCM module to be applied to a building is determined by the developer (original owner) as part of the first community management statement, and should align with the end use of the building as defined in the Building Application (BA). ·Naturally the developer will choose the module most advantageous to his purpose, and there is no responsible authority to ensure that the module is within the intent of the legislation.
BCCM Act Section 60(1) requires a “Local government management statement notation”; but Section 60(2) states: “In a community management statement notation a local government states only that the local government has noted the community management statement.”
The Registrar, under the Land Title Act, records the first community management statement establishing the scheme of management. The Land Title Act 1994 Section 54D allows the Registrar to examine the building management statement for its validity, but there is no obligation on the Registrar to so do. Thus the two government check points are reduced to ‘all care but no responsibility’.
Also there is no penalty on the developer for this transgression of the regulation. If a Body Corporate proves that they are under the wrong module, that is the Accommodation Module instead of the Standard Module, and the Module is changed from the Accommodation to the Standard, the body corporate is still encumbered with a 25 year contract, not the 10 year contract they should have been under.
The Sustainable Planning Act and Regulation
The UOAQ reading of the Sustainable Planning Act and Regulation relating to Building Applications fails to reveal any reference to Local Government being responsible for the correct BCCMA module being applied to the building.
We quote the Government guidelines:·“The Sustainable Planning Act 2009 (SPA) was amended by the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Act 2014 (SPICOLA 2014) that was given assent on 19 June 2014.
SPICOLA 2014 is the result of extensive consultation with local government, the development industry and community stakeholders and delivers on the government’s commitment to provide a local infrastructure charges framework that is equitable, certain and transparent, while supporting both local government sustainability and providing confidence to the development industry when planning and delivering projects. For further information on the SPICOLA 2014 refer to the Queensland Legislation website.
SPICOLA 2014 includes amendments to:
- • simplify, streamline and clarify the operations of the long-term infrastructure framework
- • provide certainty and consistency across a whole range of elements such as conditioning, offsets, refunds and the determination of necessary infrastructure
- • specify credits for existing use rights
- • improve the dispute resolution and infrastructure agreement processes
- • align the water distributor-retailer infrastructure charging and planning arrangements with the local government framework
- • simplify infrastructure conditioning arrangements for state agencies.
Sustainable Planning Regulation
- The Sustainable Planning Regulation 2009 (SP Regulation) commenced on 18 December 2009, and supports the operation of the Sustainable Planning Act 2009.
- Since the commencement of the SP Regulation there have been a number of amendments made which are detailed below. Please note any amendments to the SP Regulation initiated and led by other state agencies are not necessarily listed below.
- Amendments commencing 4 July 2014
- The Sustainable Planning Regulation 2009 was amended on 3 July 2014. These amendments take effect on 4 July 2014.·The amendments are as follows:
- Schedule 20 Court Fees and Schedule 21 Building and development committee fees have been increased in line with the Government indexation rate.
- The amendments under Sustainable Planning (Infrastructure Charges) and other Legislation Amendment Act 2014 have been made. This includes new fees relating to the Building and Development Committees and the publication date and name of the new Statutory Guideline (03/14) Local Government Infrastructure Plans.
- The publication date of the Statutory Guideline (02/14) Making and Amending Local Planning Instruments has been updated to 11 June 2014.
- The existing exemptions in Schedule 3, 18 and 24, to provide that Priority Development Area (PDA)-related operational work and PDA-related development is exempt from state assessment have been clarified.
- The trigger for self-assessable aquaculture has been amended to reflect the recent update of the code for self-assessable development for low impact aquaculture by the Department of Agriculture, Forestry and Fisheries (DAFF).
- The referral trigger for development on land adjoining a declared fish habitat area has been removed.
- The level of assessment for development on contaminated land has been changed from code assessment to compliance assessment. This is as a result of a review undertaken by the Department of Environment and Heritage (DEHP).
- The publication date for the State Development Assessment Provisions (version 1.4) (SDAP) has been updated to 20 June 2014.
- The need for referral of development applications for Class 1 (houses), and sole occupancy units in Class 2 and 3 and Class 4 buildings, where an interconnected smoke alarm is installed, has been removed.
- The following provisions have also been amended in the SP Regulation, and will commence on 4 August 2014.
- New development assessment fees and provisions are prescribed in Part 3, Division 3 (Fees) and Schedule 7A for State Assessment and Referral Agency (SARA) development assessment fees. The new fees were determined following a review of fees charged by the state government for assessing a state interest triggered under Schedules 6 and 7 of the SPR, and for Brisbane core port land under section 283ZP of the Transport Infrastructure Act 1994 (TIA).
Materials currently available
- ·• IDAS forms and checklists
- • Interactive versions of IDAS forms and checklists
- • Building and Dispute Resolution Committees forms and guidelines
- • Compliance assessment state planning policy and fact sheets
- • Fact sheets about the Sustainable Planning Act
- • Development assessment process and IDAS flow charts
- • Queensland Planning Provisions
- • Public notification forms and guides
- • Sustainable planning forms and templates (excluding IDAS forms)
- • Standard conditions for deemed approvals and fact sheet
- • Statutory guidelines
- • Local government infrastructure plans
- • Infrastructure charges resolutions, PPI index and factsheets
- • State planning regulatory provision (adopted charges) 2012
State Assessment and Referral Agency
- Again, UOAQ reading of Government published information fails to reveal any reference to the requirements of the BCCMA or responsibilities of Local Government for compliance with allocation of the correct BCCMA module for the end use of the building.
- The State Assessment and Referral Agency (SARA) commenced on 1 July 2013. SARA provides a coordinated, whole of government approach to state development assessment for applications lodged under the Sustainable Planning Act 2009 (SPA).
- IDAS forms
- For development applications lodged from 1 July 2013, the forms provided on this page are the effective version and must be used.·For all development applications, you must:
- • complete application details – IDAS form 1
- • complete any other forms relevant to your application
- • provide any mandatory supporting information identified on the forms as being required to accompany your application. A response to the relevant state code(s) of the State Development Assessment Provisions (SDAP) is mandatory supporting information from 1 July 2013.
- • lodge the development application, including the relevant forms, with the relevant assessment manager (generally the relevant local government). Although the state can be the assessment manager in some instances.
The IDAS forms are the approved forms under SPA and must be used when making an application.·Schedule 3 assessable development checklists are available below.
As can be seen from the foregoing, there appears to be no specific delegation to any Government Department for enforcing the requirements of the BCCMA in relation to the correct allegation of the BCCMA module for the building. In view of this deficiency, developers are being allowed to mis-allocate modules for their own financial advantage and disadvantage of Queensland unit owners.
The UOAQ reiterates the request to the Minister as outlined in the opening paragraph of this letter.