Retirement village, aged care, over 55, Class 3: these labels come from different laws that are easily run together. Here is how Queensland’s planning, building, strata, retirement village, accreditation, discrimination and disclosure regimes fit together, and where a limit on who may occupy a lot actually comes from.
Bodies corporate for older unit complexes often ask a deceptively simple question: who is allowed to live here? Many of these schemes were built and marketed as being for aged residents, for pensioners, or for the over 55s, and committees understandably treat that character as a single rule. It is not. The character of these schemes is the product of a stack of different Acts, each with its own language, its own decision maker and its own consequences. Much of the confusion we see comes from running together labels that belong to different regimes, being aged, pensioner, retirement village, Class 2 or Class 3, and residential service, as though they were one and the same.
This article explains the regimes involved and, more importantly, how they fit together.
Planning and building: two different systems
The two most basic regimes, and the two most often confused, are planning law and building law. Planning law, under the Planning Act 2016, controls the use of land, meaning the activity that may lawfully take place on a site. Building law, under the Building Act 1975 and the National Construction Code, controls the physical building, meaning how it is constructed and what class it belongs to for safety and amenity.
The two are administered under different Acts by different decision makers, and they are not equal. Planning comes first: a building approval cannot be granted for a use that planning law does not permit (Building Act 1975, section 83). This matters because a building’s classification is often misread as a rule about occupancy. It is not. A Class 2 building is an ordinary building of self-contained units. A Class 3 building is residential accommodation for a number of unrelated people, such as a hostel, and it includes accommodation for the aged. Either way, the class describes the building. It is not a power to decide who may live in the units, and it operates subject to whatever the planning approval allows.
Where a restriction on who may live there actually sits
If there is an enforceable limit on who may occupy a lot, it will usually sit in one of three places, and working out which one is the single most important step.
The first is a condition of the planning approval. Some schemes were approved for a specific use, such as aged care accommodation, with a condition limiting the premises to that use. Where the limit lives in the approval it is a planning matter: it is enforced by the local Council, not by the body corporate, and using the premises outside the approved use is a development offence rather than a by-law breach.
The second is the scheme’s by-laws. Other schemes carry the restriction in an entrenched by-law, often expressed by reference to pension status rather than age, which the Council required the body corporate to make and keep in place. Here the tool belongs to the body corporate, and it is enforced through the processes in the Body Corporate and Community Management Act 1997, by a contravention notice and, if the breach continues, by conciliation and adjudication or proceedings in the Magistrates Court.
The third is the Retirement Villages Act 1999, which we come to next. The point to take away is that two schemes that both feel like over 55s complexes may be governed in entirely different ways: in one, the enforceable control is a planning condition policed by the Council, in the other, it is a by-law policed by the body corporate. That difference drives how any limit can be enforced, and how the scheme can honestly be described to a buyer.
The Retirement Villages Act, and the truth about “over 55”
The Retirement Villages Act 1999 contains the clearest lawful basis on which a residential scheme may limit residence by age. Section 26 provides that, despite the Anti-Discrimination Act 1991, it is not unlawful to limit residence in a retirement village to older members of the community and retired persons. Two points are commonly missed. First, that exemption is available only to a scheme that is actually registered as a retirement village under the Act. Being described as a retirement village in a planning approval, or simply operating like one, is not enough. Second, the Act fixes no particular age. The permitted criterion is being older or retired, and any specific figure, such as 55, is a matter for the individual village’s scheme, not something the Act supplies. A scheme that is not registered under the Act cannot rely on section 26, and even a registered village is given no statutory age of 55.
Whether a scheme falls within the Act at all is a separate question that turns on the substance of the arrangements, in particular whether residents pay an ingoing contribution for a right to reside under a residence contract. Many aged unit complexes that are sold as ordinary lots, with body corporate levies and no ingoing contribution or exit fee, sit outside the Act entirely.
Discrimination law sets the outer limits
Age and impairment are protected attributes in the area of accommodation under the Anti-Discrimination Act 1991 (Qld), and age is also protected under the Age Discrimination Act 2004 (Cth). Imposing an age restriction on who may be accommodated is, on its face, unlawful unless an exemption applies. The clearest exemption is the retirement village provision described above. Others may be available, including the welfare measures exemption for acts designed to benefit a group with a protected attribute, the exemption for acts done in compliance with legislation, and a specific exemption granted on application to the Queensland Civil and Administrative Tribunal.
Existing use rights: a lawful use is not easily lost
Because many of these schemes were approved decades ago, a common concern is that a later planning scheme has quietly changed their status. Usually it has not. A development approval attaches to the land and binds later owners and occupiers, and a use that was lawfully established continues: a change to a planning scheme cannot stop the use continuing, further regulate it, or require it to be changed (Planning Act 2016, sections 73 and 260). These existing use rights protect the use as it was lawfully established, read with the planning scheme definition in force at the time. They do not enlarge a use, and they do not convert an aged character into a fixed age criterion. How an old approval is read is itself a question of law, approached in the same way as the interpretation of legislation rather than as a private contract (Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147).
Accreditation as a residential service
Overlaying all of this, many aged complexes are also registered as a residential service under the Residential Services (Accreditation) Act 2002, which regulates accommodation provided to a number of residents together with services such as meals or personal care. Registration and accreditation are graded by level, from accommodation, to food service, to personal care, and the obligations fall on the service provider, which is not necessarily the body corporate. Whether a scheme is accredited for personal care, or only for accommodation and meals, is a useful indicator of whether it is really an independent living complex or a care facility, and it can bear on the planning use question.
Getting the disclosure right on a sale
The regimes come together sharply at the point of sale. Since 1 August 2025, a seller of land in Queensland must give the buyer a seller disclosure statement (Form 2), with the prescribed certificates, before the contract is signed. For a lot in a community titles scheme, the seller must also give a community management statement and a body corporate certificate (Property Law Act 2023, section 99; Property Law Regulation 2024). A scheme’s aged character, its approved use and its by-laws are matters a buyer will want disclosed, and what is disclosed must be accurate and confined to what the documents support. Stating that units cannot have kitchens for building classification reasons, that occupancy is limited to one person, or that there is a minimum age of 55, when the approvals and by-laws do not say so, is not merely wrong. It can mislead a buyer and expose the seller, and the body corporate, to risk.
How Milne Legal can help
The recurring lesson is that the answer to who may live here is rarely found in any single label. It is found by separating the regimes, being planning, building, body corporate, retirement villages, accreditation, discrimination and disclosure, and identifying where, if anywhere, the real restriction sits. Getting that right lets a committee enforce what it can actually enforce, avoid discrimination risk, and describe the scheme correctly to buyers.
Milne Legal advises bodies corporate, owners and developers on precisely these questions across Queensland. If your scheme carries an aged, pensioner or over 55 character and you are unsure what actually governs it, we would be glad to help.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.