All Topics / Help Needed! / Building over an easement / council giving wrong info.

Viewing 8 posts - 1 through 8 (of 8 total)
  • Profile photo of tripledtripled
    Member
    @tripled
    Join Date: 2012
    Post Count: 3

    I purchased a property in NSW around 18 months ago that included a house that needed renovating and a 10m wide block of land ona seperate title .
    Before purchasing the property i visited the local council on three occasions and spoke to varoius member in the devolpment sector  to enquire about any building restrictions,the location of the sewer , stormwater etc . I was told that there was no stormwater easement present and that i would have to drain back to the street . I then accounted for the extra costs associated with building on bearers and joists  to allow me to drain back to the street , as the block slopes towards the rear.
    There is no easement registered under the title of the land
    After purchasing the property a friend pointed out that there was infact a stormwater drain that appeared to run through the block . At this point i went back to council insisting that there was a drain exsistant .After initially dismissing the possibility   he was able to do further research and locate a map of the stormwater easment which cut of the top 2/3 of the block .
    In conjunction with the building company  we decided i could build a double story home at the rear of the home that would completely miss the drain .
    At the stage where my plans are ready to be lodged into council the building company decided they needed to locate the exact poistion of the drain in case  it would inhibit building process . The plumber located the drain and found that it infact covers the entire block from corner to corner . 
    The building company then got in touch with the devolpment engineer ( who tried to argue the existance of the drain )at the local council who said it could not be built  over and i would have to relocate the drain at my expense , which would only leave me essentially a  6m wide area of which i could build and a hefty bill.
    what are my options ? council denies any responsibiltiy for thier mistakes 
    Research tells me that i wont be able to build over an easement in most cases  ,are the any exceptions ?
    Should council take responsibility ? or is the block worthless now ?
    HELP PLEASE !
    Thanks in Advance

    Profile photo of Scott No MatesScott No Mates
    Participant
    @scott-no-mates
    Join Date: 2005
    Post Count: 3,856

    Any easement should be noted on the title. who it benefits & who is burdened.

    Is the line a council drain, servicing neighbours or redundant?

    Can the line be moved to achieve falls without affecting the development?

    Profile photo of tripledtripled
    Member
    @tripled
    Join Date: 2012
    Post Count: 3

    The drain is council owned and services neighbours , can't really be moved due to the size of block
    Yes it should have been noted on the title though it wasnt
    Cheers

    Profile photo of Scott No MatesScott No Mates
    Participant
    @scott-no-mates
    Join Date: 2005
    Post Count: 3,856

    If an easement is not registered then it does not exist. speak to your solicitor regarding the remedies available eg: rip it out & plead ignorance, payment by neighbours to relocate, sue council for approval of losses due to inadequate control over subdivision etc.
    Is the line shown on the Dial Before You Dig?

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    hi

    I don't know much about easements. But they can be not registered and still valid.

    EG. s42(1)(A1) Real Property Act 1900 (NSW)

    REAL PROPERTY ACT 1900 – SECT 42 (NSW)

    http://corrigan.austlii.edu.au/au/legis/nsw/consol_act/rpa1900178/s42.html

    42 Estate of registered proprietor paramount

    (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except:

     

    (a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act,

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    You could make an application to the court to modify the easement – s89 Conveyancing Act NSW

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of tripledtripled
    Member
    @tripled
    Join Date: 2012
    Post Count: 3

    Thanks looks like a long road ahead

    mattnz
    Participant
    @mattnz
    Join Date: 2007
    Post Count: 574

    I am currently working around similar easements.

    An experienced builder recently advised that it is possible to encase the sewer line in concrete instead of moving it. This is likely to be a cheaper option.

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