QLD Taking the Developer to QCAT - Chances of Success?

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Samj

Active Member
23 May 2018
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Hi,

We have recently paid a deposit for a land in a new development. It was under construction by the time we signed the contract and we have got a disclosure plan that shows basic contour lines and three retaining walls.There was a half a meter fall across the lot and we didn't see a big issue with that. We have been working with a builder and even they didn't realized a big issue in this lot.

However, after they did the site inspection they found that we have an issue with that little fall over. There is a 7m filling in this lot and there are 3 retaining walls around the lot already. They all are over 1.5m high and they all are done just to current level of the lot. When we cut from the high side and fill the low side, we have to build two new retaining walls. Because we are not allowed to alter the existing ones, we have to build two new retaining walls closer to the existing ones. Because of the filling and building closer to the existing one, we have to build an engineer design retaining walls. This is not only very expensive but also we lose more than half a meter of our frontage.

Developer could have leveled the lot easily when they do the initial development. They claim they did it in this way for drainage purposes. But there is no way to build a house in this lot without building a retaining wall.

I have talked to a town planner and I was told normally there shouldn't be major ground work after they do the sub division. Unfortunately they have submitted the same levels in the plan of development. So there is nothing wrong they have done as the plan of development. But because of this poor development new buyers have to spend a lots of money for site costs.

I am just wondering if we have any ground to take this developer to QCAT?

Thanks
 

Rob Legat - SBPL

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It's too hard to tell without a thorough consideration of all the relevant facts. However, it's going to be hard to find grounds for taking action when the developer apparently had all the right approvals, didn't hide anything, and didn't give any warranties which they are in breach of.

There's a few factors that immediately jump out as requiring further consideration/investigation:

- You had the plans and saw what they consisted of. This makes it problematic unless the plans and specifications are wrong;

- Presumably you (and your builder) did a site inspection. If not, why not? If so, surely you must have noticed that level of fall and the retaining walls;

- Such a large change to ground levels would likely have involved Council consent. Maybe this should be checked out to make sure it's been done in compliance with the relevant approvals;

- Every Council is different, but if the retaining walls are higher than 1 metre they too are likely to have needed approval;

- I'm no builder, but there are ways to build houses on sloping lots. My house is on a sloping lot and is built of foundations with rendered brick to ground level the whole way around. The only slab is in the garage, but you wouldn't know it to look at it. What this will do to your cost, I don't know;

- Depending on block size, you might be able to do a small cut without having to fill and construct a small retaining wall without needing Council approval by placing the retaining wall close to the house and away from the other walls.
 

Rod

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And do not go for a waffle slab!
 

Samj

Active Member
23 May 2018
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31
We have signed a contract for this land in QLD and now it has gone unconditional. We were given the land disclosure plan for reference because the land was under construction. After paying the initial deposit we have noticed they are constructing a manhole at the rear corner of the lot.

So we asked the developer about it because there was nothing like that in the disclosure plan. We were told it's a storm water pit and it's just for our water. It was under the ground level and thought it's going to be under the ground. But recently they have put a big cap on it and now it's going to be on the top of the ground and as a result we can't fill and level the back yard.

It's a big rainwater drain, should the developer have indicated that in the disclosure plan? If they haven't what we can do now after we paid the 5% deposit?

Subdividing and selling land | Your rights, crime and the law | Queensland Government
 

Rob Legat - SBPL

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It's too difficult to tell what's going on without a proper review of the disclosures that were made. If the storm water pit is connected with an easement, for example, you might never have received approval to fill above it. Alternatively, you might be able to with a reconfiguration of the drainage. The question may then become whether you're liable for headworks charges to Council.

It could just be it's a collection point for topography purposes, which may be able to be worked in to the filling. Any change to grounds levels within the lot is going to need to take into account the issue of runoff - you don't want to end up with a swamp every time it rains.
 

Samj

Active Member
23 May 2018
5
0
31
It's too difficult to tell what's going on without a proper review of the disclosures that were made. If the storm water pit is connected with an easement, for example, you might never have received approval to fill above it. Alternatively, you might be able to with a reconfiguration of the drainage. The question may then become whether you're liable for headworks charges to Council.

It could just be it's a collection point for topography purposes, which may be able to be worked in to the filling. Any change to grounds levels within the lot is going to need to take into account the issue of runoff - you don't want to end up with a swamp every time it rains.

May I know who are the right professionals (lawyers, solicitors or conveyancers) can help us in this scenario please? My question is shouldn't they have to indicated that in the disclosure plan even though it is not an easement? It's a big storm water pit open to the ground surface which limits our options in this lot. Thank you.
 

Rob Legat - SBPL

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You'd need a lawyer to review it and give you some advice (solicitor or barrister, although I wouldn't be shelling out for a barrister at this stage). Conveyancers are not allowed to practice in Queensland, and wouldn't be the right person to use in any case as you need someone who is legally qualified to give you an advice (not to mention having the professional indemnity insurance to back it up).

It's entirely possible there is no need for what you've got to be put on the disclosure plan - and it depends on what your disclosure plan is off, as there's more than one type of plan that can affect a property. It could also be that the drainage pit is a Council development approval condition which came well after the disclosure plan.
 

Samj

Active Member
23 May 2018
5
0
31
You'd need a lawyer to review it and give you some advice (solicitor or barrister, although I wouldn't be shelling out for a barrister at this stage). Conveyancers are not allowed to practice in Queensland, and wouldn't be the right person to use in any case as you need someone who is legally qualified to give you an advice (not to mention having the professional indemnity insurance to back it up).

It's entirely possible there is no need for what you've got to be put on the disclosure plan - and it depends on what your disclosure plan is off, as there's more than one type of plan that can affect a property. It could also be that the drainage pit is a Council development approval condition which came well after the disclosure plan.

Thanks Rob.