We are looking at obtaining DA for small block of apartments including an underground basement car park. Before we purchased the site we checked that there were no easements – from all our initial checks it appeared clear… or so we thought!?! The council are now saying that there is a drain at the back of the site and therefore there is an "implied easement" stretching across the entire site…. even though there are no documents indicating easements or any other planning controls. This "implied easement" of couse jeapodises our basement car park and development as a whole.
Can the council do this? What are my rights to address / resolve it? Suggestions?
Any help would be much appreciated particularly if you have faced this problem before.
Hi Jman – a prescribed easement, while not common, does exist in some instances. It's an easement necessary to provide passage for or provision of a service over land or buildings. To the best of my knowledge there must still be a reference to the existence of the easement, but it is specified in words, not dimensions, in a plan of subdivision or title.
I would have your conveyancer check the title and/or plan of subdivision (which may be very old), as well as the contract you signed, to ensure that some reference to it exists. Obviously, the regulations relating to implied easements may vary from state to state and I don't know which state you're in, but I would imagine that the case law and common law practice would be similar (if not identical) in all states.
It may be an idea for you to check the contract yourself too, because if the conveyancer missed seeing some reference to it then you may have a case against him.
Hope this helps and good luck.
You haven't stated which state or territory you are in. In NSW it is quite common for pipes such as sewer mains to go through land without an easement showing on the title. For my PPOR we have a sewer main running at the rear of our property. No easement is registered on the title nor is there any reference to it on the title.
I would suggest your steps are as follows:
a. find out what type of drain it is and what the rights of the council are. I'd start by asking the Council in a very non-aggressive way, just seeking information so you can understand
b. once you find that out investigate what your options are eg can the drain be moved etc etc what and how can you build
c. investigate what your solicitor/conveyancer made inquiries for and what responses were received
d. your rights, if any, and who, if anybody you have rights against, are going to depend upon when various things happened eg should this have been disclosed in the contract
e. what instructions did you give your solicitor/conveyancer; was the property advertised as being suitable for development
f. once you've got a handle on this you need to consider whether you can develop and amke a profit even if different to what you ahd hoped; whether you can resell as is. Look at what provides the best solution for you – this might mean that even if you have an arguable legal case against someone the time, money and stress of taking action means you miss out on other opportunitiesThanks for your replies, we have continued with the investigation and found a couple of options which are 1.) suspending the 300mm pipe in the basement or 2.) re routing drainage to new 300 mm pipes. Both sound pretty expensive though.
On the legal side as no indication of the pipe was given in the s32 we could technically withdraw from the purchase (we haven't settled yet) although we would rather not because there is still profit to be made.
We have other plans and contingencies to protect us, its just that there may be something we are missing.
We are in Victoria, if anyone else has specific suggestions to enlighten us it would be great to hear from you.
I will have to keep the old implied easement trick in mind so how do you know 100% the piece of land you want to develop does or dosent have easements or overlays that could affect your development?? Usually the easements are run on along the fence line.
Hi James007, the lesson for me is that its not enough to search for easements on title or s32 or planning maps (although it should be enough). You actually have to call the drainage department at the local council and even the local water authority before you sign any contract and get them to check for any drains / sewers / pipes etc particularly if you see any kind of drains on site or in close proximity off site.
In our case the drain was concealed in the cross over of the site. (The land surveyor didn't even spot it.)
This would be applicable for any developments that involve some kind of basement of significant excavation. For ordinary town houses it may not matter as much but it is adviseable to know what issues could be on site beforehand.
As noted above, find out what it is, then control it. Ie work out how much of the land will be affected, can you work with it? If you can work with it, can you design around it – eg leave it in the ground, undisturbed – a minimal cost option. You can then work up an advantage on your competitors in the market by seeing something that they don't.
Thanks all. Well I now have in my possession endorsed plans with design that worked around it at minimal cost.
It didn't look possible at first however getting the right designers and people in the room with council to discuss possible solution ultimately lead to a design around the problem.The design solution involved allowing a one metre wide easement that allowed clear ground floor access to the drain pipe. In the basement a section of the roof was "indented" which contained the drain pipe.
Working through the problem with the team, brainstorming and discussing with council got us home in the end.
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