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Byron Shire
December 9, 2023

Developer terminates 38 Bogangar apartment purchase contracts just weeks before settlement

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Tweed Shire Mayor Chris Cherry addresses apartment purchasers following the developer terminating their contracts of sale. Photo Aslan Shand

Following Tweed Shire Council’s decision to reject a development application (DA) for a thirty-eight (38) lot strata subdivision at No. 41 Tweed Coast Road, Bogangar at their planning meeting on 4 August the 38 purchasers were informed by the developer that they were having their purchase contracts terminated mere weeks before they were expecting to exchange contracts and move in.

Not surprisingly this left people who had given up rentals, sold former homes and had the expectation of taking possession of their properties in mere weeks highly distressed and suffering ‘sleepless nights’.

Tweed Councillors came together with apartment purchasers on Thursday afternoon to discuss the options moving forward.

Car parking

The issue is the allocation of car parking spaces and the potential subsequent impact on the local community and retail businesses in the area if extra cars end up parking on the surrounding streets if there is not the correctly allocated parking.

The original DA (21/0983) for the mixed-use development comprising commercial, retail and residential accommodation was approved in 2009 by the NSW State government with the strata subdivision being applied for in early November 2021.

The recommendation of the Tweed Council planning staff the DA was refusal based on the failure to meet the required allocation of car parks Tweed Development Control Plan (TDCP) 2008 that requires a minimum of 1.5 car spaces for every two-bedroom apartment and one car space for every one-bedroom apartment.

The development had been sold off the plan with ‘1 car space to 7 of the 2-bedroom apartments and 2 car spaces to the remaining 9 2-bedroom apartments’, according to the staff report.

The report notes that ‘The original approval accepted a 2-car space shortfall in visitor spaces, as the number of units and the unit mixed originally proposed generated a requirement for 10 visitor spaces.’

The Council sought a legal resolution of the issue noting in their report that ‘the proposal could achieve compliance if the residential car spaces (excluding visitor and disabled) are all noted on the strata plan as being Common Property (CP). Car parking allocations could then be part of the Body-Corporate Strata By-Laws’.

Not their fault

According to the developer Cabarita Beachside pty ltd, who has been involved with the DA since 2018, in a letter to Tweed Councillors and interested parties ‘It is an appalling set of circumstances and incomprehensible but not of our doing and beyond our control. Misleading and deceptive commentary and correspondence has and is being issued by Tweed Shire Councillors. Certain councillors are pedalling a false narrative slanderous to our reputation, conduct and credibility and we reserve our rights.’

They say the car park was approved in 2009 and ‘in the consent conditions there is no reference to any car park deficiency or common property approval for the car park’.

Developers and Council negotiate

Distressed calls and action on behalf of the apartment purchasers has led to the developer agreeing to ‘reinstate contracts if Tweed Shire Council process under a suitable mechanism and approve the draft approval as provided to us on June 30th 2022 with no additional/unsatisfactory conditions’.

Council suggested that the developer put in a ‘section 8.2 determination review under the Environmental Planning and Assessment Act’ which they did on Thursday 25 August.

Six of the seven Tweed Shire Councillors met with apartment purchasers to discuss the situation and the negotiations between council and the developers.

While the developers demanded that the process be ‘set out and determined for approval by no later than Friday 3rd September’ Council has been clear of the legal process required for the review of the determination.

‘Council is required to give 14 days’ notice of the review in line with its obligations under the regulations and letters are being sent to neighbouring properties,’ they have stated in a press release.
‘The 14-day consultation concludes on Friday 9 September, with an Extraordinary Meeting to follow on the evening of Monday 12 September.’

The development application can be viewed on Council’s DA Tracker.

Submissions in writing can be provided through the exhibition period.

Mayor of Tweed Shire Chris Cherry said it was important the issue was resolved as soon as possible to provide certainty for the 38 unit owners who had had their contracts terminated.

‘Council is pleased to learn that the proponent is working to reinstate all previous purchasers’ contracts and we thank the proponent for this,’ Cr Cherry said.

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