Due to schemes often being in high density residential zones, it is common for the Committees to be approached by developers of neighbouring land seeking rights for cranes to pass over the common property to facilitate a development.
Can a Committee just refuse?
The Property Law 1974 empowers the Supreme Court to impose rights of use in respect of land including oversail rights if satisfied the owner of the land over which the rights would be imposed can be adequately compensated. The Act also empowers the Court to order costs be paid by the owner of the land over which the rights would be imposed in “special circumstances” which could be expected to include where a request for oversail rights was not considered or refused without good reason.
Good reasons may include a refusal by the developer to pay fair compensation, or to pay the Body Corporate’s costs of negotiating the requested rights and costs of putting the request to Lot owners to vote on, as required by legislation.
Does the Committee have power to grant the rights?
No. Oversail rights are in nature of a licence over the common property and the Body Corporate and Community Management Act 1997 mandates that such rights must only be granted in the way authorised under the regulation module applying to the scheme. Usually that means a special resolution is required for the Body Corporate to grant oversail rights.
Can the Developer be asked to pay costs as well as compensation?
Yes. The Body Corporate can reasonably require payment of all costs incurred in granting the rights, including legal and extraordinary general meeting costs, in addition to compensation for the grant of the rights. In additional to compensation, we have also assisted bodies corporate to obtain benefits such as the cost of a building wash down and new fences.
Are there risks?
Though rare, accidents happen.
In 2012 the motor of a crane on a construction site at the University of Technology Sydney caught fire resulting in the collapse of the boom into the construction site.
In 2016 the motor of another crane on a construction site in St Kilda Road, Melbourne caught fire similarly resulting in the collapse of the boom of the crane.
Katherine (08) 7919 7019
2/46 Chardon St