Development Contracting

Many lift contractors maintain standard form terms and conditions which are out dated, have not kept pace with legislative changes and fail to recognise changing customer needs and procurement methods. Exclusion clauses and limitations of liability are a particular feature which require careful identification and risk management assessment.

Strong pressure on Sydney property prices and an acute shortage of suitable development sites has made it possible for neighbours acting together to achieve excellent prices for properties which in aggregate represent a suitable development site. This is illustrated by the recent sale of nine St Leonards houses, which were sold for more than $66 million to a Hong Kong based investor.

Option agreements are an increasingly common means by which developers secure development sites. There is good reason for that, as they provide developers with flexibility and assist with managing cash flow and liability.

Owners corporations and other property owners are often asked by the owner of an adjoining property, usually a developer, to allow access to their land. This can be temporary or permanent and can be for a variety of reasons, e.g. movement of workers, vehicles and/or materials to carry out works on the adjoining property, operation of a crane over the property to facilitate works on the adjoining property or running services and/or storm water under the property. Temporary access is generally granted by way of a licence, while permanent arrangements generally involve an easement. In either case, there are many complex legal and practical issues for an owner to resolve, about which legal advice is generally required and best obtained sooner rather than later.

Further to Bannermans article on Crane Airspace Licences, owners can be approached by a developer carrying out development on an adjoining site, requesting a licence to install scaffolding upon or rock anchors beneath their land.

Many land owners are faced with the issue of what to do with an encroachment. An encroachment can occur where part of a building from one piece of land overhangs or enters on to a neighbouring block of land.

According to the relevant Act in New South Wales (the Encroachment of Buildings Act (1922), “the Act”) “Encroachment” means “encroachment by a building and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil”.

Property owners proposing to carry out works may need access to an adjoining property. This can be temporary or permanent and can be for a variety of reasons, e.g. routing of storm water and services and carrying out works in areas not accessible from the owner’s own property.

Owners corporations are from time to time approached by developers carrying out developments on adjoining or nearby sites, requesting a licence to operate a crane over the owners corporation's property. It is common for developers to approach owners corporation representatives on-site, before legal advice has been obtained, seeking to have a licence deed executed by the owners corporation, which provides for little or no compensation and which fails to adequately address the safety, amenity and other issues involved.