Part IVC Building development

(1) In this Part, unless the contrary intention appears:

common property means the common property of the building management corporation.

developer, in relation to a building development, means a person who is or was the registered proprietor of an estate in fee simple in, or a lease from the Crown of, all of the land to which a Building Development Parcel relates.

disclosure statement means a disclosure statement referred to in section 26ZI(3) and includes a disclosure statement as varied under this Part.

(2) In this Part, unless the contrary intention appears, a reference to the proprietor of a building lot includes a reference to the proprietors of units and common property into which a building lot is further subdivided under this Act and a reference to a building lot includes a reference to those units and common property.

(1) The boundaries of a building lot may be determined by reference to one or both, or a combination, of the following:

(a) walls, ceilings and floors of any building on the Building Development Parcel;

(b) land in the Building Development Parcel, whether or not the land is contiguous to any building.

(2) If the boundaries of a building lot are determined by reference to land, the vertical dimension is to be taken to be limited to the extent of any projections or encroachments (above or below the surface of the land) that are part of some other building lot or the common property.

(3) The boundaries of a building lot may be described by reference to the inside or outside of floors, walls or ceilings.

(1) Nothing in this Act prevents a lot being the subject of an application under this Part.

(2) In subsection (1), lot has the same meaning as in section 26N.

(1) Subject to subsection (2), the registered proprietor of an estate in fee simple in or a lease from the Crown of land may lodge with the Registrar-General a building development plan of subdivision.

(2) A building development plan of subdivision must involve the creation of not less than 2 building lots and common property.

(3) A building development plan of subdivision must comply with the prescribed requirements and must be accompanied by:

(a) a disclosure statement (in duplicate) in the prescribed form;

(b) the prescribed fee;

(c) a development permit or exceptional development permit issued under the Planning Act 1999 indicating:

(i) the consent of the relevant consent authority under that Act to the subdivision of the land in accordance with the building development proposal; and

(ii) that the determination to which it relates is conditional on the applicant's compliance with the terms of the disclosure statement;

(d) a schedule of building lot entitlements prepared in accordance with the Regulations; and

(e) any other information that may be prescribed to accompany the application.

(1) The Minister may, on advice from the Registrar-General, require a developer to lodge with the Minister a security.

(2) The Registrar-General must consider each application under section 26ZI and determine whether to advise the Minister to exercise his or her powers under subsection (1).

(3) The security:

(a) is to be in the form, for the amount, and from the person, that the Minister thinks fit; and

(b) is to be maintained as the Minister directs.

(4) The security may be used to pay damages to the proprietor of a building lot or a person who has contracted or contracts with the developer for the purchase of a proposed building lot in the building development in the event of the developer's failure to comply with this Act or his or her failure to complete the building development in accordance with the disclosure statement.

(1) A disclosure statement is to contain mechanisms for resolving disputes and for obtaining agreement to contentious issues.

(2) A provision of a disclosure statement that imposes an obligation that is unjust or oppressive on a prospective owner of a building lot or unit is not binding on, and cannot be enforced against, the prospective owner.

(3) A disclosure statement is to contain:

(a) the prescribed provisions; and

(b) provisions that relate to matters that are prescribed.

(4) A disclosure statement is to specify a procedure by which the disclosure statement may, subject to this section, be varied.

(5) A disclosure statement is to specify that there may be Regulations under this Act that apply to a variation of the statement.

(6) The Regulations may establish a procedure by which a disclosure statement may be varied other than under section 26ZM.

(7) The Regulations may provide that a procedure in the Regulations for the variation of a disclosure statement is to apply:

(a) in all cases, other than a variation under section 26ZM, whether or not the disclosure statement establishes a procedure for the variation of the disclosure statement; or

(b) if a disclosure statement does not establish a procedure for the variation of the disclosure statement and the variation is not a variation under section 26ZM.

(8) A variation of a disclosure statement under this section:

(a) is of no effect unless it is lodged with the Registrar-General; and

(b) is not to be registered by the Registrar-General unless the variation complies with the prescribed requirements, if any.

(1) Except as provided in this section, the Registrar-General must register a building development plan lodged under section 26ZI.

(2) If the parcel of land is crown leasehold, the Registrar-General must not register the building development plan unless it is accompanied by the written consent of the Minister administering the Crown Lands Act 1992 to the plan and any other documentation that is necessary in order for the leasehold interest to be converted into an estate in fee simple.

(3) The Registrar-General must not register a building development plan under subsection (1) unless it conforms to applicable development provisions, or an applicable interim development control order, under the Planning Act 1999.

(4) The Registrar-General must not register a building development plan under subsection (1) unless all documents and fees required under section 26ZI have been lodged.

(5) The Registrar-General must not register a building development plan under subsection (1) unless the security, if any, required under section 26ZJ has been lodged.

(1) A disclosure statement may be varied by:

(a) an agreement involving, as parties, the developer, the lot owners, persons who have contracted to buy a lot and persons with registered interests in the land; or

(b) the Minister acting in accordance with this Division.

(2) If a developer fails, or expects or is expected to be unable, to complete a building development in accordance with the disclosure statement and an agreement under subsection (1)(a) cannot be reached, anyone who may be a party to that agreement may apply to the Minister for the disclosure statement to be varied.

(3) The Minister may only allow the application:

(a) after consulting with those persons who will be affected by the variation; and

(b) if satisfied that it is not possible by agreement or legal process for the building development to be completed in an orderly way; and

(c) after considering advice from an arbitrator appointed under section 26ZN.

(4) A variation of a disclosure statement under this section:

(a) is of no effect unless it is lodged with the Registrar-General; and

(b) is not to be registered by the Registrar-General unless the variation complies with the prescribed requirements, if any.

(1) In the event of a dispute about a variation to a disclosure statement under section 26ZM or about any other matter involving the disclosure statement, or the rights and obligations of the parties, the Minister may, if permitted to do so by the disclosure statement, appoint, on the application of one or more of the parties, an arbitrator.

(2) The Minister may only appoint an arbitrator under subsection (1) if the disclosure statement contains an express statement permitting the Minister to appoint an arbitrator.

(3) An arbitrator appointed under subsection (1) may exercise the powers that are prescribed by the Regulations for resolving disputes having regard to the overall interests of the persons affected.

(4) The Minister may, by notice in writing to the parties to a dispute, specify that the costs incurred by the Minister in exercising his or her powers under section 26ZM or this section are payable in equal shares by:

(a) if the developer is a party to the dispute:

(i) the developer; and

(ii) all other parties to the dispute together; or

(b) if the developer is not a party to the dispute – each of the parties.

(5) The Minister and the parties to a dispute may agree about the following:

(a) the amount of the costs incurred by the Minister under this section or section 26ZM to be paid by the parties;

(b) the proportion of the costs incurred by the Minister under this section or section 26ZM to be paid by the parties.

(6) The Minister may only enter into an agreement under subsection (5) if he or she is satisfied that the determination of the amount of the costs and the proportion of the costs to be paid by a party to the dispute is equitable, having regard to the nature of the dispute and the financial capacities of each party to the dispute.

(7) If a notice is given under subsection (4) or an agreement is reached under subsection (5) in relation to a dispute, the costs payable by a party to the dispute are due and payable on:

(a) the date on which the notice is served or the agreement is made; or

(b) a later date specified in the notice or agreement.

(8) The balance from time to time outstanding of an amount due and payable under subsection (7) by a developer is an overriding statutory charge, within the meaning of the Land Title Act 2000, on any unit, building lot or other land, within the Building Development Parcel to which the dispute relates and of which the developer is a registered proprietor in fee simple or a registered proprietor of a lease from the Crown.

(9) The balance from time to time outstanding of an amount due and payable under subsection (7) by a party to a dispute other than a developer is an overriding statutory charge, within the meaning of the Land Title Act 2000, on any unit, building lot or other land, within the Building Development Parcel to which the dispute relates and of which the party is a registered proprietor in fee simple.

(1) If a developer fails to comply with a disclosure statement or to complete a building development in accordance with the disclosure statement, the proprietor of a building lot, a person who has contracted with the developer to purchase a proposed building lot in the building development or the owner of a unit within the building lot may, in addition to any other right that he or she may have at law or in equity, sue for and recover damages from the developer that the Tribunal thinks fit.

(2) Without limiting subsection (1), the proprietor of a building lot, a person who has contracted with the developer to purchase a proposed building lot or the owner of a unit within the building lot in the building development is entitled to recover any expected loss of capital appreciation of his or her building lot, proposed building lot or unit arising out of the failure (calculated to the date on which the building development was to be completed in accordance with the disclosure statement).

On the registration of the building development plan, the parcel is subdivided in the manner specified in the diagrams in the building development plan and the boundaries of the building lots and of the common property are to be ascertained in accordance with those diagrams.

(1) On the registration of the building development plan:

(a) the person who was the proprietor of the parcel becomes possessed of an estate in fee simple in each building lot; and

(b) the corporation becomes possessed of an estate in fee simple in the common property.

(2) On the registration of a building development plan creating common property, the corporation becomes possessed of an estate or interest evidenced by the certificate as to title comprising the land the subject of the building development plan freed and discharged from all mortgages, charges, writs and caveats affecting the land immediately before the registration of the plan.

(3) On the registration of a notice of conversion, the corporation becomes possessed of the estate or interest in any building lot converted into common property evidenced by the certificate as to title comprising the land the subject of the notice.

(4) Subject to subsections (2) and (3), the estate of which a person or the corporation, as the case may be, becomes possessed under this section:

(a) is subject to any mortgage to which section 8 of the Real Property (Unit Titles) Act 1975 relates; and

(b) is subject to, and has appurtenant to it, the easements created by section 25 and any easement referred to in section 8 of Real Property (Unit Titles) Act 1975.

(1) Subject to section 42B, the corporation holds the common property in trust for the persons who are for the time being the members of the corporation as tenants in common in undivided shares proportional to the building lot entitlements of their respective building lots, and, subject to Part IVB, is to afford those persons opportunity for the reasonable use and enjoyment of the common property.

(2) Subject to Part IIIA and section 42B, the estate in the common property held by the corporation is not capable, either at law or in equity, of being transferred, assigned or mortgaged.

(1) In this section:

proprietor, in relation to the common property, means the corporation.

tenement means a building lot, unit or the common property, as the case may be.

(2) On the registration of the building development plan, the proprietor of each tenement (the dominant tenement) is taken to have over each other tenement (the servient tenement) those rights specified in subsection (3) that are necessary for the reasonable use and enjoyment of the dominant tenement.

(3) The rights referred to in subsection (2) are:

(a) rights of support, shelter and protection afforded by the servient tenement at the time of the registration of the building development plan;

(b) rights for the collection, passage and provision of water, sewerage, drainage, garbage, gas, electricity and air, and other services of whatsoever nature (including telephone, radio and television services), through or by means of pipes, wires, cables, ducts, or other reasonable means; and

(c) any other ancillary rights that are necessary to make the rights referred to in paragraphs (a) and (b) effective, including rights of entry by the proprietor of the dominant tenement and his or her agents, servants and workmen at all reasonable times on the servient tenement for the purpose of:

(i) inspecting, maintaining or repairing the servient tenement; or

(ii) inspecting, maintaining, repairing, replacing, renewing or restoring any pipes, wire, cable, duct or other material.

(4) A right created by this section is to be taken to be an easement appurtenant to the dominant tenement in relation to which it is enjoyed.

(5) An easement created by this section subsists despite that the same person is the proprietor of both the dominant and servient tenements.

(6) A person exercising a right under an easement created by subsection (3)(b) or (c) is liable to make good any damage done in the course of exercising the right.

On and after the registration of the building development plan, an alteration of the schedule of building lot unit entitlement is not capable of being registered unless it is made in pursuance of an order of the Tribunal under Part VIII or in accordance with this Part.

(1) The owners of units to which a units plan relates may lodge with the Registrar-General a building development plan to convert all of the units to which the units plan relates into building lots.

(2) An application under subsection (1) cannot be made unless the written consent of all of the owners of the units to which a units plan relates has been obtained.

(3) Subject to subsection (4), sections 26ZI to 26ZT (inclusive) apply in respect of a building development plan lodged under subsection (1).

(4) The Regulations may vary the application of a section referred to in subsection (3) and the section as varied applies accordingly.

(5) On the Registrar-General registering a building development plan lodged under subsection (1):

(a) the body corporate for the units is taken to be a body corporate constituted under section 28; and

(b) the units become building lots (that may be further subdivided in accordance with section 26ZV); and

(c) the management rules applying to building lots apply to the exclusion of any other management rules (except that decisions made before the conversion are to be taken to have been made under the management provisions applying to the building units).

(1) Subject to the Planning Act 1999, a building lot may be further subdivided under this Act into units and common property.

(2) A further subdivision of a building lot under this Act can only be in a manner that is consistent with the disclosure statement and the By-laws.

(3) If a building lot is further subdivided under this Act into units, the Registrar-General must note on the certificate as to title of each unit into which it is subdivided that the building lot comprising all the units and common property in that further subdivision has the relevant building lot entitlement for the purposes of this Act.

(4) The Regulations may prescribe how the relevant entitlement of each unit into which a building lot is further subdivided is to be determined and an entitlement so determined may be expressed as a number that is not a whole number.

For the purposes of imposing a restrictive covenant on the use of a building lot in accordance with the disclosure statement, the common property is to be taken to be the dominant tenement for the benefit of which the covenant is imposed (despite that no part of the common property may be contiguous to the building lot) and the burden of the covenant runs with the land comprised in the building lot.

(1) Each contract entered into by a developer for the sale of a building lot, proposed building lot or other interest in a building development is, in addition to any other condition to which it is expressed to be subject, to be taken to be subject to the condition that the developer will construct and complete the building development in accordance with the disclosure statement

(2) For the purposes of subsection (1), a person who is a successor in title to a building lot or unit or interest is to be taken to be the original purchaser from or contractor with the developer and may enforce the contract accordingly.

(3) For the purposes of subsection (1), the registered proprietor of a unit that was formed by the subdivision of a building lot or a proposed building lot is to be taken to be an original purchaser from the developer.

(4) A person is incapable of contracting out of the effect of subsection (1).

A developer has against the building management corporation of, and the proprietor of each building lot in the completed stage or stages of, a building development the rights in relation to the construction and access zones specified in the disclosure statement in respect of each stage of the proposed building development as are provided in the disclosure statement.

The Regulations may vary the application of Part V (other than Division 1) and Schedule 1 in relation to a building management corporation and the management of the affairs of the building development and the Part or Schedule, as varied, applies accordingly.

(1) A building management corporation may, by special resolution, in respect of its building development, make by-laws, not inconsistent with this or any other law of the Territory, relating to:

(a) the management, use and maintenance of the building development;

(aa) the health and safety of persons;

(b) the control of vehicles in areas that are not part of public roadways;

(c) the control of vessels;

(d) the control of wharfs and berths;

(e) the control of polluting substances and pollution control and clean-up;

(f) the imposition and collection of dues and other fees and charges incidental to the management, use and maintenance of the building development;

(g) noise and other nuisance control;

(h) the enforcement of the By-laws and prosecuting persons for offences against the By-laws;

(i) the duties of owners and occupiers of building lots; and

(j) any other matters that are necessary or convenient to be provided for by by-laws.

(2) By-laws relating to the further subdivision of a building lot under this Act cannot be inconsistent with the disclosure statement.

(3) The By-laws may prescribe penalties, not exceeding 100 penalty units, for a contravention of, or failure to comply with, the By-laws and, in addition, may prescribe a penalty, not exceeding one penalty unit, for each day during which the offence continues.

(4) A pecuniary penalty recovered on prosecution for an offence against the By-laws is payable to the building management corporation and may be recovered by it as a debt due to it.

(4A) Nothing in the By-laws limits or otherwise affects the operation of any other law of the Territory.

(5) Section 57 of the Interpretation Act 1978 does not apply to the By-laws.

(1) At any time before a building management corporation first meets after its incorporation the Minister may make a by-law on any matter that under section 26ZZA the building management corporation could make a by-law.

(2) A by-law made under subsection (1) may be revoked or amended by a by-law under section 26ZZA by the building management corporation.