November 13, 2017 in Property Law
At the time of purchasing property consideration should be given to what the intended use of the property will be as town planning schemes govern what is an acceptable use of property within certain areas. A due diligence clause should be included in the contract so there is an opportunity to investigate whether the current use of the property is lawful and if the proposed development will be considered accepted development, assessable development or prohibited development under the Planning Act.
Accepted development is development for which a development approval is not required, whereas, assessable development requires a development approval and will be either code or impact assessable.
If a due diligence clause has been included in the contract then investigations should be undertaken to ascertain whether the property is suitable for the intended use. Undertaking these enquiries will assist with having a greater understanding if the intended development or use will be consistent with the town planning scheme.
When undertaking due diligence enquiries certain factors should be considered such as:
- the current use of the property. This will have an impact on whether the current use is lawful and if the intended use will be considered development and be subject to the development approval process;
- if any development approvals/conditions attach to land. This may affect the future use or development of the Property. It may also reveal any compliance issues or outstanding items that have not been finalised which may incur additional expenses or affect plans for its intended use;
- the relevant zone that applies to the property (eg residential, rural, industrial). Each zone provides for different assessment criteria and outcomes when obtaining a development approval;
- the boundaries and size of the property. This is important as there are minimum requirements for land size for developments depending on what zone the property is located in. Any encroachments or registered easements may affect any plans for its intended use.
We encourage anyone who is unsure of what their obligations are under the Planning Act or requires assistance with undertaking due diligence enquiries to contact the Property Team at Creevey Russell Lawyers Team on 07 4617 8777 to obtain further advice tailored to your individual circumstances.
Whilst it is common knowledge that the major banks have tightened their investment lending criteria to unit purchasers in Brisbane, recent industry news has pointed to major banks tightening their lending rules further by applying more stringent conditions on properties located in certain postcodes, such as mandating that buyers have at least 20% equity in the property.
Therefore the finance clause becomes an important clause for both buyers and sellers of these properties.
Potential buyers will want to ensure that the finance clause is drafted in a manner that allows them the right to terminate should finance approval not be forthcoming, even if the finance condition date has passed. Otherwise buyers may be locked into a contract they cannot complete.
Alternatively, sellers may consider modifying the standard REIQ contract finance condition to allow finance to be deemed satisfied if the buyer has not terminated the contract by the finance due date.
Therefore the drafting of finance clause must be considered in light of the party’s position in the transaction and personal circumstances.
Creevey Russell Lawyers has extensive property experience throughout both its Brisbane and Toowoomba office, and can offer pre-contractual review and advice as part of the conveyancing process if you require.
Please contact Damian Bell or Daniel Birch at Creevey Russell Lawyers on (07) 4617 8777 for further information.
The security of land tenure in rural Australia is often on the mind of pastoralists. With the introduction of rolling term and perpetual leases, pastoralists were given greater security over their interest in the land. There have been further developments that give leaseholders the opportunity to have their interests converted to freehold title so that rural landholders can enjoy the most secure interest available to property owners.
Leasehold conversion is offered by the Department of Natural Resources and Mines (“DNRM”). Landowners can apply to DNRM for the conversion of their leasehold interests to freehold title. DNRM can then make an offer to the landowner often called an “Agreement to Offer a Conversion of a Lease” (“Offer”). These Offers are usually conditional which means that certain requirements must be satisfied before the conversion of land tenure will occur. Conditions will most likely include: payment of a deposit, signing of the Offer and satisfaction of any Native Title interests that may exist in relation to the land subject to the conversion.
Upon receiving an application for conversion, DNRM will research the tenure history of the land. If the land has never been held with exclusive possession, such as a previous freehold title, Native Title will need to be addressed as a condition to the conversion being made. This is a common requirement in rural pastoral areas where exclusive possession has not previously been granted.
Native Title interests can be addressed in a number of ways. These include: negotiating an agreement called an Indigenous Land Use Agreement (“ILUA”) with peoples that may hold an interest to the area, or by non-claimant applications to the Federal Court for a determination (decision) in regard to the native title interests in the area.
Once the conditions of the Offer have been satisfied, DNRM can then grant the conversion of leasehold interests to a freehold title.
Creevey Russell Lawyers have an experienced team that can assist you in the intricacies of these conversion applications. If you would like to discuss the conversion of leasehold interests, contact our Damian Bell on (07) 4617 8777.
On 3 July 2017, Queensland’s new property planning system commenced. The system was implemented by the Planning Act 2016 (Planning Act) to replace the previous system under Sustainable Planning Act 2009. The new system relies on various pieces of legislation, regulations and rules including the Planning Act and the Development Assessment Rules (DA Rules) that make up the development assessment framework.
The changes to the development assessment framework amends the categories of development which are now classified as ‘accepted, assessable or prohibited’ development. ‘Assessable’ development is now either code assessable or impact assessable and must be carried out with a development approval.
The IDAS system is replaced by the DA Rules which is now the new instrument used in the development assessment process for obtaining a development approval. The DA Rules consists of 5 parts to the development assessment process as follows:
- Information Request;
- Public Notification;
The DA Rules incorporates various changes to the development assessment process including the terminology and definitions used, the procedures for obtaining development approvals such as the ability to opt out of an information request, increasing the flexibility for the placement of public notices on premises, the removal of automatic time extensions and the ability to stop a current period for a maximum of 130 business days.
We encourage anyone who is unsure of their obligations under the Planning Act to contact the property team at Creevey Russel Lawyers Team on 07 4617 8777 to obtain further advice tailored to your individual circumstances.
Ph: 07 4617 8777
June 27, 2017 in Property Law
The Queensland Law Society and the REIQ have now released a revised standard form contract to be used for real property transactions (including residential and commercial property) that are entered into from 1 July 2017.
The revised contracts incorporate the Federal Government’s amendments to the Taxation Administration Act 1953 (Cth) for capital gains withholding, in particular:
- a reduction in the withholding threshold from $2,000,000 to $750,000; and
- an increase in the withholding rate from 10% to 12.5% if sellers do not obtain a ‘clearance certificate’ prior to Settlement.
With the threshold being lowered to $750,000 a greater percentage of sellers will be affected by the requirement to obtain a ‘clearance certificate’ prior to Settlement.
Any contracts entered into on or before 30 June 2017 will be subject to the existing threshold and rate.
We encourage anyone who is unsure of what types of assets the capital gains withholding tax rules applies to or their obligations to obtain a ‘clearance certificate’ to contact Creevey Russell Lawyers on 4617 8777.
Ph: 07 4617 8777
Queensland primary producers and their family members can apply for financial assistance to gain professional advice with farm related succession planning.
Creevey Russell Partner Damian Bell said the firm welcomes the launch of the Farm Management Grants Scheme by the Queensland Rural Adjustment Authority (QRAA).
“Creevey Russell Lawyers applauds the introduction of the QRAA scheme which offers a rebate of up to 50 per cent of the professional costs associated with seeking the advice for up to a maximum of $2,500 per financial year,” Mr Bell said.
To be eligible for the scheme you must be a primary producer, or a relative of a primary producer. The Grant allows eligible parties to offset the cost of succession planning.
“You have to be in the process of seeking professional advice in relation to the transfer or sale of the primary production enterprise including but not limited to the intergenerational transfers of farm businesses as part of a succession planning strategy,” Mr Bell said.
“The advice must come from a suitably qualified professional such as a lawyer, accountant and/or financial planner.”
The QRAA scheme is available until June 30, 2019. Please refer to QRAA’s website http://www.qraa.qld.gov.au/current-programs/farm-management-grants for further information or contact Damien Bell or Rachel Greenslade at Creevey Russell Lawyers on 07 4617 8777.
Creevey Russell Lawyers
Ph: 07 4617 8777
March 14, 2017 in Property Law
Indefeasibility of title is central to Australia’s system for recording land ownership. In Queensland any person who is involved in a land transaction can rely on the accuracy and validity of the land register as maintained by the Department of Natural Resources and Mines.
However, the land register is only accurate and valid to the extent of any exceptions as provided for in the Land Title Act 1994 (Qld) (‘the Act’). One example of an exception to the indefeasibility of the title rule is whether another person would be entitled to be the registered owner because that person is in ‘adverse’ possession of that land. Adverse possession is a claim where a person in possession of land owned by another entity/person may have a claim to be the registered owner.
When a claim for adverse possession has been made, various factors are considered including whether the person making the claim has had continuous possession of the land to the exclusion of the landowner for a period of at least 12 years.
An adverse possession application must be made in accordance with the requirements as set out in the Act. A person claiming to already own the land has the opportunity to dispute the application made by the adverse possessor by registering a caveat over the subject land within the prescribed time frame.
The Act restricts an adverse possession claim so it cannot relate to a:
- part of a lot;
- lot that may be created in the future by way of a subdivision;
- lot for which the registered owner is the local council or the State;
- lot subject of an encroachment where the adverse possessor claims possession of the lot to the extent of the encroachment.
Due to the complexities surrounding claims for adverse possession we recommend that you contact Creevey Russell Lawyers to obtain legal advice tailored to your individual circumstances.
Commercial & Property Lawyer
Creevey Russell Lawyers
Ph: 07 4617 8777
Property Lawyers Toowoomba
Property Lawyers Brisbane
Property Lawyers Roma
Press Release 14 March 2017
Regional Queensland towns are struggling through lack of services and support with all areas needing greater understanding from Government, says leading legal firm Creevey Russell Lawyers.
The firm’s Principal Dan Creevey has just completed a two-week regional road trip to offer free consultations with community members on any legal or other issue they may be experiencing.
Mr Creevey’s 3000klm tour stretched from Toowoomba to Middleton and back and included the Central West and Central Highlands communities of Roma, Charleville, Longreach, Winton, Barcaldine, Emerald, Rolleston, Moura and Taroom.
“Country towns are really struggling with lack of services and lack of support is extremely apparent,” said Mr Creevey, who plans to make the regional road trips regularly.
“They just want a greater understanding of their situation from authorities. Each area has its unique issues whether it be flood mitigation, prickly trees, bad roads or artesian water problems.”
Mr Creevey said clients and contacts were pleased to see a regional law firm in their town experiencing their situation first hand.
“We take great pride in the fact that Creevey Russell Lawyers is a rural and regional firm and we are always looking to give back to those communities,” Mr Creevey said.
“There is clearly a demand for us to be in our clients’ country and we will keep coming back. We can offer a wide variety of services to our clients, with expertise in areas of Agricultural Law, Commercial Law, Criminal Law, Property Law, Wills & Estates, Succession Planning, Family Law and Personal Law.
“It is no secret that many of the state’s regional communities have been doing it tough for many years due to a wide range of economic and environmental factors.
“The purpose of our regional tour was to connect with the people in these communities and listen to their concerns. We are already planning our next road trip for later in the year.”
If you would like to get in touch with Dan Creevey – [email protected] or call 07 4617 8777
Creevey Russell Lawyers
Dan Creevey’s Western Qld Road Trip – Photos from the road – Bringing Expert Legal Services to the Bush
Dan Creevey hits the road for 2 weeks to bring Expert Legal Advice to Western Queensland on his first Road trip. Travelling to Roma, Mitchell, Charleville, Augathella, Tambo, Barcaldine, Longreach, Winton, Emerald, Rolleston, Moura, Taroom, Wandoan and everywhere in between. Dan is offering no obligation discussions with anyone facing any legal issues in these areas. Call 07 4617 8777 if you think Dan can help you.
The Queensland Government has entertained various land clearing rules and regulations over the years in a bid to prevent people from clearing their land. A large portion of those impacted by these laws are farmers who rely on their land to run their enterprises. Making headlines in 2016 was the attempt by the labour government to implement laws reversing the onus of proof to landholders charged with tree clearing offences and also removing the defence of ‘mistake’.
Farmers were put on hold to discover the fate of those laws, which were subsequently rejected by parliament.
Although those laws have not passed, many people are still not sure of their rights under the current Queensland tree clearing laws.
I need to clear land on my property, where do I start?
All landowners should obtain their PMAV (property map of assessable vegetation). A PMAV is a property scale map that shows the boundaries of vegetation categories on the property, provided by the Department of Natural Resources and Mines (DNRM).
Land can be categorised as category A, B, C, R and X depending on the vegetation and previous actions taken towards the land.
Descriptions for each category are listed briefly in the below table:
CATEGORY DESCRIPTION REQUIREMENTS A Compliance areas, environmental offset areas and voluntary declaration areas Clearing requires a development approval, exemption, or self-assessable clearing code or area management plan notification. B Remnant vegetation areas Clearing requires a development approval, exemption, or self-assessable clearing code or area management plan notification. C High-value regrowth areas Clearing requires a development approval, exemption, or self-assessable clearing code or area management plan notification. R Regrowth within 50m of a watercourse in the priority reef catchment areas. X Areas not regulated under the Vegetation Management Act 1999 No permit or notification required on all but certain state land tenures.
Land get categorised when:
- a Property Map of Assessable Vegetation (“PMAV”) is created; or
- it is placed on the Regulated Vegetation Management Map (“RVMM”).Once the information specific to your property has been obtained, you will need to determine the clearing activity and the requirements for the category of land on which you intend performing those activities. You may need to first advise DNRM of your intentions to perform tree clearing activities before start. A failure to notify DNRM or to perform unauthorised activities can incur significant penalties. Land clearing activities will ordinarily fall into the following categories:
- Clearing exemptions. These exemptions apply to a range of routine property management activities. No approvals by DNRM are required to clear under a clearing exemption.
- Self-assessable codes. These codes apply to activities such as thinning and weed control and will outline what activities can and can’t be carried out on each category. There are codes specific to each region and the code will apply depending on the category of land you intend to clear. In order to perform work under a self-assessable code, DNRM must be notified before any of that work is performed. The codes are available for download via the Queensland Government website here.
- Area management plans (“AMP”). These are essentially an alternative approval system for vegetation clearing. They list the purposes and clearing conditions that have been approved for areas covered by the plan. In order to clear under an AMP, DNRM must be notified before any of that work is performed.
- Development Approval. If none of the above matters apply, then you may need to consider making an application for a development approval. Further information can be found here.
What happens if I do not comply with land clearing laws?
DNRM utilise the Queensland Globe tools to perform searches of properties. Those tools can see minute detail down to tracks left after a property has been mechanically cleared. DNRM then compares those images to historical images of the property to identify the suspected cleared areas.
Once DNRM become aware of suspected clearing activities, they are required to institute proceedings within the following timeframes:
- 1 year after the commission of the offence; or
- 1 year after the offence comes to the complainant’s knowledge, but within 5 years after the offence is committed 
If you are charged with a tree clearing offence under the Sustainable Planning Act 2009, the maximum penalties of $202,963.50 (1665 penalty units) apply and the offence will be dealt with in the Magistrates Court.
In addition to the financial penalty, the land allegedly cleared can then become “Category A” land. The affect of Category A, is that the land is effectively ‘locked’ until it can regenerate, which restricts any proposed use over that land.
DNRM not only have the option of prosecution available, but also the power to issue a ‘restoration notice’ and prepare a restoration plan. A restoration notice is a notice issued to a landowner who DNRM suspect has committed a tree clearing offence.
A restoration plan will follow the restoration notice and be implemented (either based on an agreed resolution between DNRM and the landowner, or by their own application in the absence of consent from the landowner). Restoration plans last 15 years and are recorded on property’s title.
Ordinarily, DNRM will not send out restoration notices without first discussing with the landowners and either giving them the opportunity to respond or to negotiate a restoration plan.
As a practical guide, in order for DNRM to resolve matters, they usually require areas of land equal to 150% of the cleared area to be agreed as ‘restoration areas’. For example, if you clear 100 acres, DNRM will want to implement a restoration plan for 150 acres of your property in order to deter future unauthorised clearing.
The benefit of negotiating a resolution with DNRM is that the negotiations could result in the land being categorised as category B, less intrusive than Category A.
What should I do?
If you are wanting to clear any part of your property, we recommend obtaining legal advice from someone who knows this area of law. The risks of not following correct procedure are so high and the losses (not only financial) can impact many landowners significantly.
If you would like more information, please contact Adelaide Davies at Creevey Russell Lawyers
Agricultural Law Team
Creevey Russell Lawyers
Ph: 07 4617 8777