Part 4 Community development schemes

(1) A community development scheme consists of –

(a) a master plan for developing land involving two or more of the elements mentioned in subsection (2) or for combining two or more of those elements if no further development is intended whether in either case the elements are of the same kind or not; and

(b) a management statement that conforms with the requirements of this Part; and

(c) the constituent documents for the body corporate to be formed on registration of the scheme; and

(d) the by-laws of the body corporate.

(2) A community development scheme must include two or more of the following elements, whether of the same kind or not:

(a) a strata scheme;

(b) a sealed plan;

(c) some other form of land division;

(d) the establishment of a retirement village;

(e) a marina or water-based development.

(1) The master plan forming part of a community development scheme –

(a) must delineate the site and show the location of each element of the scheme; and

(b) must contain a sketch showing the expected appearance of the completed development; and

(c) must include a description of the general theme (if any) of the development, the architectural style and the nature of the landscaping; and

(d) must include a plan or description of land within the site that is not to be subject to private occupation and a statement of the extent to which it is to be available for the use and enjoyment of the owners and occupiers of lots and their invitees; and

(e) must contain any other information or material required by the Recorder.

(2) A management statement that forms part of a community development scheme must include –

(a) a warning in the form and terms required by the Recorder; and

(b) the name and address of the developer; and

(c) a description of the stages, and the sequence of stages, in which the development is to be carried out; and

(d) a description or plan of construction zones, access zones and the nature of the use that may be made of them; and

(e) a schedule of times for commencing and completing each element of the proposed development (which may be fixed by reference to the calendar, by reference to the completion of a previous element, by reference to progress in the sale of lots, or on any other reasonable basis); and

(f) a schedule of the working hours during which work is to proceed on the second and any subsequent stage of the proposed development; and

(g) the constituent documents for the managing body corporate that is to be formed on registration of the community development scheme; and

(h) if a body corporate or bodies corporate are to be constituted (otherwise than on registration of a strata plan) in relation to any elements of the scheme, the constituent documents for those bodies corporate; and

(i) a description of the amenities to be provided as part of the proposed development and a statement of –

(i) the purposes for which the amenities are to be provided; and

(ii) the extent the amenities are to be available for use by owners and occupiers of lots and their invitees; and

(iii) the arrangements for providing and maintaining the amenities and defraying the cost of their provision and maintenance; and

(j) any other information or materials required by the Recorder.

(3) The constituent documents for the managing body corporate are the documents setting out –

(a) the basis of membership of the body corporate; and

(b) the powers and functions of the body corporate; and

(c) how its affairs are to be administered.

(4) The powers of the managing body corporate may include the following:

(a) planning and developing the project;

(b) managing the project both during the development stage and afterwards;

(c) the making of by-laws for the project as a whole;

(d) the levying of contributions against owners of lots;

(e) the management and administration of property;

(f) insurance;

(g) powers reasonably incidental to any of those mentioned above.

(1) The developer under a community development scheme must apply to the council for the area in which the site is situated for approval of the scheme in principle.

(2) The application must be accompanied by –

(a) the proposed community development scheme; and

(b) any other document required by the council; and

(c) the prescribed fee.

(3) An application may be made whether the site is wholly undeveloped or partially developed.

(1) Before approving a proposed community development scheme in principle, the council may exercise either or both of the following powers:

(a) the council may require specified changes to the proposed scheme;

(b) the council may require the demolition or alteration of buildings on the site of the proposed scheme.

(2) The council may –

(a) approve the proposed community development scheme unconditionally; or

(b) approve the proposed community development scheme subject to specified conditions, which may include a condition requiring the developer to proceed with the proposed development work in accordance with specified time limits; or

(c) refuse to approve the proposed community development scheme.

(3) A condition imposed under subsection (2)(b) cannot require the developer to commence work earlier than 6 months after the date of the council's approval in principle.

(4) If the council approves the proposed community development scheme, the council must issue a certificate of its approval.

(5) Subject to subsection (6), an approval of a community development scheme does not obviate the need for permits, approvals or certificates required under this Act or any other Act in respect of the various elements of the development.

(6) An approval under this section may exempt the developer from the requirement for a permit, approval or certificate (which the council has power to grant under this Act or another Act) in respect of a particular element or particular elements of the development if stipulated conditions are complied with.

(1) The Recorder may, on application by the developer under a community development scheme, register the scheme.

(2) An application for registration of a community development scheme must be accompanied by –

(a) the community development scheme; and

(b) a certificate issued under the authority of the council for the area in which the site is situated certifying that the scheme has been approved in principle under this Division and stating any conditions subject to which the approval was granted; and

(c) the certificates of title to the land affected by the scheme; and

(d) the prescribed fee.

(1) The developer under a community development scheme is entitled to reasonable access to, and use of, the site for –

(a) the purposes of carrying out the proposed development; and

(b) for other purposes related to development stated in the management statement except subdivision of the common property.

(2) The rights of others in relation to the site (including rights in relation to lots and common property) are subordinate to the rights of the developer under this section.

(3) The by-laws cannot limit the rights of the developer under this section.

(1) The land subject to a community development scheme is to be progressively developed in accordance with the terms of the scheme.

(2) The council may refuse to approve the development of a particular stage of the scheme if an earlier stage of the scheme has not been completed as required under the terms of the registered scheme.

(1) The developer under a registered community development scheme may apply for the variation of the scheme.

(2) The application is to be made in the first instance to the council for the area in which the site is situated.

(3) The application must indicate how the scheme is to be varied.

(4) The application must by accompanied by –

(a) the written consents of all present and prospective owners of lots in the scheme; and

(b) the prescribed fee.

(5) The council may dispense with the consent of a present or prospective owner if –

(a) the council is satisfied that the owner would not be adversely affected by the variation; or

(b) the council is satisfied that the whereabouts of the owner or prospective owner is unknown to, and not reasonably ascertainable by, the applicant; or

(c) if less than 25% of the present and prospective owners have refused or failed to consent – the council is satisfied that consent has been unreasonably withheld.

(6) The council may –

(a) approve the variation unconditionally; or

(b) approve the variation subject to conditions; or

(c) refuse to approve the variation.

(1) The Recorder may, on application by the developer under a community development scheme, register a variation to the scheme.

(2) An application for registration of a variation of a community development scheme must be accompanied by –

(a) the proposed scheme as varied indicating the variations; and

(b) a certificate issued under the authority of the relevant council certifying that the council has approved the proposed variation and stating any conditions subject to which the approval was granted; and

(c) the certificates of title to any land not formerly within the scheme that is affected by the variation; and

(d) the prescribed fee.

(1) The Supreme Court may, on application by an interested person, make an order for variation of a community development scheme if satisfied that it is impossible or impracticable to complete the scheme as proposed in the master plan.

(2) Each of the following is an interested person:

(a) the developer;

(b) each owner and each prospective owner of a lot;

(c) the Recorder;

(ca) the council in the municipal area of which the relevant land is situated;

(d) any other person who has, in the opinion of the Supreme Court, a proper interest in the matter.

(3) The applicant must give notice of an application under this section to all other interested persons.

(4) A person entitled to notice under this section may appear and be heard in the proceedings.

(5) The Supreme Court may make an order –

(a) deferring the time for completion of a particular stage or stages of the scheme; or

(b) changing the order in which the various stages of the scheme are to be completed; or

(c) varying the scheme in other ways to ensure (as far as practicable) its successful completion.

(6) An order under this section may also –

(a) provide for the payment of compensation in addition to, or instead of, damages or compensation to which a person would be otherwise entitled; and

(b) vary rights and obligations arising under this Act in relation to the scheme; and

(c) make any other provision the Supreme Court considers just and equitable.

(7) The Supreme Court may, on application by an interested person, vary or revoke an order under this section.

(8) A copy of an order under this section (including an order varying or revoking an earlier order) must be served on the Recorder.

(9) The Recorder must register the order and on registration it becomes part of the scheme.

(1) The Supreme Court may, on application by an interested person, grant a mandatory injunction requiring the developer under a community development scheme to complete the scheme in accordance with the terms of the scheme.

(2) The following are interested persons:

(a) an owner or prospective owner of a lot;

(b) a body corporate for the community development scheme;

(c) a body corporate for a strata scheme within the community development scheme;

(d) the council for the relevant area.

(1) The developer under a community development scheme warrants to any person who purchases a lot or a proposed lot in the scheme that the development will be carried out in accordance with the scheme.

(2) A warranty under subsection (1) –

(a) is enforceable in the same way as a contractual warranty; and

(b) cannot be limited or excluded by contract.

(3) Without limiting the damages that may be recovered for breach of the statutory warranty, the owner of a lot may recover damages for the loss of a reasonably expected capital appreciation of the lot that would have resulted from completion of the development in accordance with the terms of the scheme.

(1) If a developer has given a security for due completion of the scheme, an owner of a lot who has suffered a loss as a result of the developer's failure to complete the development in accordance with the terms of the scheme may apply to the Supreme Court for an order under this section.

(2) On an application under this section, the Supreme Court may order that the whole or part of the amount of the security –

(a) be applied as directed by the Court towards completion of the scheme; or

(b) be distributed among owners of lots who have suffered loss on a basis determined by the Court.

A person who acquires title to land subject to a registered community development scheme that is yet to be developed in accordance with the scheme becomes bound to develop the land in accordance with the scheme.

If the owner of land subject to a registered community development scheme proposes to sell or dispose of land subject to the scheme –

(a) the owner must give written notice of the proposed transaction to the council for the area in which the site is situated; and

(b) the person who is to acquire title to the land in consequence of the transaction must –

(i) give to the council a written undertaking to develop the land in accordance with the registered scheme; and

(ii) give the council any security required by the council, within 28 days after notice of the transaction was given to the council, for the development of the land in accordance with the scheme.

(1) A dealing for the sale or disposal of land subject to a registered community development scheme takes effect on registration.

(2) When submitted for registration, the dealing must be accompanied by –

(a) a copy of the undertaking to complete the development in accordance with the registered scheme; and

(b) a statutory declaration to the effect that the council has made no requirement under this Division for security for completion of the development in accordance with the registered scheme or that such a requirement has been complied with; and

(c) the prescribed fee.

On registration of a dealing for the sale or disposal of land subject to a registered community development scheme, the rights and obligations of the developer under the scheme, so far as they relate to land subject to the dealing, pass to the person who acquires title to the land.