• March 3, 2017 in Agricultural Law, Commercial Law, Litigation, Personal Law, Property Law

    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.

  • March 1, 2017 in Agricultural Law, Property Law

    Agricultural Law : My Land, My Trees…Right?

    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.[1]

    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. Clearing requires a development approval, exemption, or self-assessable clearing code or area management plan notification.
    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:

    1. a Property Map of Assessable Vegetation (“PMAV”) is created[2]; or
    2. it is placed on the Regulated Vegetation Management Map (“RVMM”).[3]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:
    3. Codes
    1. 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.
    2. 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.
    3. 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.
    4. 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.

    Prosecution

    Once DNRM become aware of suspected clearing activities, they are required to institute proceedings within the following timeframes:

    1. 1 year after the commission of the offence; or
    2. 1 year after the offence comes to the complainant’s knowledge, but within 5 years after the offence is committed [4]

    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.

    Restoration Notices

    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

    Adelaide Davies
    Lawyer
    Agricultural Law Team
    Creevey Russell Lawyers
    Ph: 07 4617 8777
    e:

    [1] VMA ss 20AL, 20AM, 20AN, 20ANA, 20AO.

    [2] VMA s 20AK.

    [3] VMA s 20A.

    [4] VMA s68

  • January 27, 2017 in Personal Law, Property Law

    Commercial Law – ATO Deadline Extension for Self Managed Super Funds with LRBA’s

    The ATO has extended the 30 June 2016 deadline for SMSF trustees that have a related party loan under an LRBA (limited recourse borrowing arrangement) to ensure that the related party loan is on commercial terms or complies with the safe harbour guidelines.   The deadlines have been extended to 31 Jan 17 and we recommend that all LRBA’s be reviewed for compliance with these new guidelines.

    Under the practical compliance guidelines released by the ATO there are two methods to ensure that a related party loan in a LRBA is treated as commercial, known as the ‘safe harbour guidelines’:

    1. Ensure your terms and conditions of the loan align with the guidelines; or
    2. Re-finance the loan with a commercial financier.

    The ‘safe harbour’ guidelines have different terms depending on the nature of the asset being acquired under the LRBA.  The guidelines deal specifically with real property and listed shares or listed units in a unit trust and no other type of asset.  Further, these terms must be outlined in a written executed loan agreement.

    Safe harbour guidelines:

    Loan Condition Real Property LRBA Listed Shares or units LRBA
    Interest Rate RBA standard variable housing loan for investors 5.75% for 2015/16 RBA standard variable housing loans for investors + 2% = 7.75% for 2015/16
    Term of Loan Max 15 years Max 7 years
    LVR Max 70% (aggregate of all loans) Max 50%
    Security Registered mortgage Registered Charge
    Personal guarantees Not required Not required
    Type of repayment Principal + interest Principal + interest
    Frequency of repayment Monthly Monthly

     

    Compliance with these safe harbour guidelines is not mandatory.  However, to demonstrate your arrangement is commercial and consequently the income from the LRBA not treated as non-arm’s length income (NALI), you will need to have documentary evidence that related party loan terms and conditions are generally the same as those available from a commercial financier.

    Therefore all existing LRBAs with a related party loan should be reviewed and either:

    1. Comply with the ATOs safe harbour guidelines for the 2015/16 financial years (compliance will ensure that previous years will not be assessed as (NALI);
    2. Ensure that 2015/16 repayments meet the ATOs safe harbour guidelines and refinance with a commercial lender;
    3. Repay the related party loan in full; OR
    4. Have documentary evidence that the LRBA related party loan terms are equivalent to a commercial lender’s terms.

     

    For further information contact Creevey Russell Lawyers.

    Damian Bell
    Partner
    Creevey Russell Lawyers
    Ph: 07 4617 8777

  • January 17, 2017 in Property Law

    Property Law – eConveyancing Land and other Legislation Amendment Bill

    With the roll out of the national electronic conveyancing system (eConveyancing) the State Government is seeking to implement minor amendments to encourage the use of eConveyancing within Queensland. The Land and Other Legislation Amendment Bill makes the following key amendments:

    1. replacing the current ‘settlement notice’ with the nationally recognised ‘priority notice’. Additional features of a priority notice includes the ability to extend the notice by 30 days and the notice can apply to a wider range of transactions such as leases; and
    2. allowing the Registrar of Titles more discretion to dispense with the production of a paper certificate of title. (e.g. the Registrar of Titles can dispense with the need for a paper certificate of title to be produced if the Registrar is satisfied the legal practitioner holds the paper certificate of title).

    The Bill has now been referred to the Infrastructure, Planning and natural Resources Committee for consideration and is due to report back to Parliament by 7 March 2016.

    Cameron Hagan
    Commercial & Property Lawyer
    Creevey Russell Lawyers
    Ph: 07 4617 8777

    www.creeveyrussell.com.au

    Commercial & Property Lawyers Toowoomba

  • January 10, 2017 in Agricultural Law, Commercial Law, Litigation, Personal Law, Property Law

    Dan Creevey – Western Qld Legal Road Trip

    Bringing Legal Services to the Bush

     

    27 Feb to 13 March 2017

    Our firm is coming to YOU.

     

    ROMA  – INJUNE – CHARLEVILLE

    LONGREACH – WINTON  – BARCALDINE

    EMERALD – ROLLESTON – MOURA – TAROOM

     

    Creevey Russell Lawyers is a trusted, professional and local firm.

    We are bringing legal services to the bush. Dan Creevey, founding partner at Creevey Russell Lawyers, is known for his experience, tenacity and honesty. Dan is hitting the road on a Western Road Trip and providing services for any legal matter you may be experiencing.

     

    To meet with Dan for a no – obligation discussion about your legal matter, please call 07 4617 8777 or email

    At Creevey Russell Lawyers, we’ll listen, we’ll understand and we’ll look after you.

     

    Lawyers Brisbane
    Lawyers Toowoomba
    Lawyers Roma

  • January 5, 2017 in Commercial Law, Property Law

    Property Law : Land and Other Legislation Amendment bill summary of amendments

    The Queensland Government has introduced the Land and Other Legislation Amendment Bill (the Bill) to Parliament with the objective to make a series of minor amendments to various pieces of legislation that administers the land titling system in Queensland.

    Amendments contained in the Bill include:

    1. ensuring registered owners lodge caveats appropriately during a dispute with a mortgagee;
    2. clarifying who pays compensation for the improper use of a caveat;
    3. simplifying how road licences are issued by the Minister;
    4. removal of the requirement for the Minister to approve the transfer of a road licence in certain circumstances; and
    5. the recognition of a beneficiary under a will where the deceased person’s estate has been granted probate in jurisdictions outside of Queensland such as the UK, New Zealand and other states and Territories in Australia.

    The Bill has now been referred to the Infrastructure, Planning and natural Resources Committee for consideration and is due to report back to Parliament by 7 March 2016.

    Cameron Hagan
    Commercial and Property Lawyer
    Ph; 07 4617 8777
    email:

    Property & Commercial Lawyers Brisbane
    Property & Commercial  Lawyers Toowoomba
    Property & Commercial Lawyers Roma

  • August 2, 2016 in Property Law

    Property Law update – What do the Proposed overhaul of unit development regulations in Toowoomba mean?

    Unit Development in Toowoomba is set for a major overhaul with the Toowoomba Regional Council (‘TRC’) announcing proposed changes to the planning scheme that further regulates the location and types of development in residential areas throughout the Toowoomba region. This announcement is in response to community concerns and frustration over the past years with the type and volume of units and small block developments that were being developed throughout residential zones.

    In response to community feedback TRC is proposing amendments to the planning scheme to help better plan for the region’s growth. Examples include:-

    1. Identifying certain areas within the region that are located in close proximity to certain services and facilities such as major non-industrial employers, shopping centres, parks and major uses including the University of Southern Queensland.
    2. Within these Nodes unit/small lot developments will be encouraged provided the development meets code requirements;
    3. Impose stricter requirements on the types of development that will occur outside a Node;
    4. Proposed Small Lot Housing Design Code that will address certain issues such as parking, privacy and fencing; and
    5. Impose stricter requirements for the development of Hatchet Lots (also known as battle axe lots).

    The changes as proposed by TRC are open to public consultation until 9 September 2016. Should you require advice regarding the proposed changes and how it will affect you or wish to make a submission in response to these proposed changes Creevey Russell Lawyers would be pleased to assist you.

    Cameron Hagan
    Lawyer
    Creevey Russell Lawyers
    ph: 07 4617 8777
    Email:

     

    Property Law Brisbane
    Property Law Toowoomba
    Property Law Roma

  • July 1, 2016 in Agricultural Law, Property Law

    Rural Property Law update – How do Primary Producers Benefit from Legislative Changes?

    Legislation passed by both the Queensland and federal governments offers some important benefits for primary producers, according to leading legal firm Creevey Russell Lawyers.

    Creevey Russell Principal Dan Creevey said changes introduced by federal parliament have allowed for a significant increase in farm management deposits, which help to protect farm income and cash flow during lean years.

    “The farm management deposit scheme is a risk mitigation scheme which allows for primary producers to make tax deductable deposits – usually during the prosperous years – and then redraw them during the less prosperous times,” Mr Creevey said.

    “From July 1, 2016, the maximum amount that can be held in a farm management deposit account has increased from $400,000 to $800,000. The deposit must be held for at least 12 months, and the income is taxable when the money is withdrawn from the scheme.

    “In addition, if producers are affected by a rainfall deficiency for six consecutive months, and the deposits have been held for at least six months, they can access those deposits without losing the claimed tax deduction.”

    Mr Creevey said another bonus for primary producers was the Queensland parliament voting to relax primary production duties from July 1, 2016.

    “Amendments brought in by the Duties and Other Legislation Amendment Act 2016 have removed the need for the transfer of property to be by way of gift, if the property is used to carry on particular family businesses of primary production,” he said.

    “Therefore, if the land or business assets are subject to a mortgage, the mortgage no longer needs to be discharged in order to obtain the duty exemption.

    “We see this as a relaxation of a rule that has prevented many families from attending to proper business succession and estate planning.”

    Creevey Russell and the team in Rural Property Law, have wide experience in advising primary producers, especially in relation to business succession and estate planning and understands the needs and desires of its rural clients.

    Dan Creevey
    Partner
    Email:
    Ph: 07 4617 8777

    Rural Property Law

    Toowoomba Rural Property Law

    Roma Rural Property Law

     

  • June 14, 2016 in Commercial Law, Property Law

    What does the Toowoomba Planning Scheme mean to you?

    Toowoomba is experiencing a strong buzz of economic activity as major new projects are under construction within the Toowoomba region including the Wellcamp Airport precinct, the QIC Grand Central development, the Second Range Crossing and the Railway Parkland to name just a few. All of this economic activity in our much loved ‘Garden City’ has led to a greater demand on housing and industrial development throughout the Toowoomba region.

    Read More >

  • March 10, 2016 in Commercial Law, Property Law

    Property Law : Have you recently received a land valuation? What does it mean to you?

    The Queensland Valuer-General as of the 2nd March 2016 commenced issuing statutory land valuations (land valuations) to land owners. The new land valuations will be effective from 30 June 2016 and is the basis for determining the land owner’s liability for land tax, local government rates and land rental for leasehold land.

    In addition to other factors as outlined in the Land Valuation Act 2010 (the Act) the Valuer-General will determine the value of rural land and non-rural land as follows:-

    • The Unimproved Value for Rural Land will be determined by the Valuer-General based on a bona fide sale that excludes both Site Improvements and Non-Site improvements on the land; and
    • The Site Value for Non-Rural Land will be determined by the Valuer-General based on a bona fide sale that includes only the Site Improvements to the land.

    For the purposes of the Act Non-Site improvements includes work done, including materials used, to the property that is not considered Site Improvements. Site Improvements include clearing vegetation on the land, improving soil fertility or soil structure, works to manage or remedy contamination, underground drainage or other works necessary to prepare the land for development.

    If land owners are not satisfied with their land valuation then the Act allows for land owners to lodge an objection with the Department of Natural Resources and Mines (‘DNRM’), provided the land owner:-

    • supplies sufficient information to demonstrate that the valuation is incorrect; and
    • includes all relevant information as required by the Act; and
    • submits their objection within 60 days from the date of issue of the valuation notice.

    Land owners must have ‘acceptable grounds’ when lodging an objection with DNRM. The Valuer-General will be more likely to consider objections if the landowner has not based their objection on unsubstantiated and general statements. The Valuer-General considers sales evidence, the constraint on the use of land and the physical characteristics of the land as some examples that would be considered as ‘acceptable grounds’ to object.

    It is recommend that landowners lodge their objections prior to the deadline as extensions will only be granted by DNRM in extraordinary circumstances.

    Another factor land owners should consider is the impact of their land tax liabilities to the State Government. Land owners in Queensland are liable to pay land tax should the total taxable value of  land be in excess of the tax free threshold of $350,000.00 for Companies, Trustees and Absentees or $600,000 for Individuals. There are exemptions that land owners can claim depending on the legal entity that owns the land, including but not limited to, home and transitional home exemption, primary production exemption and charitable institution exemptions.

    If you require advice in relation to your recent land valuation notice or if you are considering acquiring land or making changes to the ownership of your land Creevey Russell lawyers would be pleased to assist to ensure your ongoing tax liabilities are managed.

    Cameron Hagan

    Property Law
    Creevey Russell Lawyers
    07 4617 8777

    Property Law Brisbane

    Property Law Toowoomba

    Property Law Roma