Building permit denied. Resubdivide? Legal agreement with council?

Hi all.

I’ve been an occasional lurker on Somersoft and Property Chat for some time and I thank you all very much for sharing your knowledge and experience. What an awesome resource! Some recent pain with my own small development has been the catalyst for me to finally step up and post. Hoping I can tap into the problem solving skills of you kind people.

The short story is - I have recently had a building permit denied due to restricted access into my common property driveway, which is caused by a power pole on the verge.

The very long story below is how we got to this point….

Completed a small retain and build subdivision within the Cockburn Shire in WA last year. Titles issued, house plans and builder chosen, building permit applied for. This building permit has just been rejected due to restricted access into the common property driveway from a power pole. It seems a perfect storm of oversights from professionals I’ve engaged as well as my own inexperience has helped to cause it.

As a complete newbie I engaged a project manager to hold my hand throughout the subdivision process as I’m aware it can be a complete minefield and is not for the faint hearted.

Have known about this power pole since day one and western power have confirmed in writing it does not need to be moved.

Unfortunately now, due to incorrect lot design on strata plan, and required set back of .75 metres from power pole for crossover construction, there is no way a crossover can be constructed so someone can access the rear lot / common property driveway without driving over a tiny corner of the front lot.

I did raise my concerns about this power pole and driveway access with my project manager and surveyor back in August last year. Mostly questioning about it being a problem of being land locked in future. As I currently own both properties I didn't expect any issues now.

Surveyor acknowledged a potential problem and then enquired with WAPC about lodging an amended strata plan before titles issued. This was knocked back by WAPC saying the current plan was already conditionally approved so it would require a completely new planning application.

Found out it could potentially be resolved by lodging a "right of carriageway easement" with Landgate and have the easement plan drawn up by surveyor

Then find I legally cannot be the owner of both the “benefited and burdened lots” with this easement at the same time, so it could only be registered on the sale of one or both properties in future. Would have been fine if there were separate owners of the lots.

Was advised not to do anything and if problems with council building permit in future, just let them know easement would be registered on sale of property down the track.

This has obviously now all blown up in my face with the knock back by council.

My project managers did not pick up the issue. Believed lot design was fine as is and that a crossover could be constructed to suit. Wrong.

My surveyors did not pick it up or include a truncation on lot design to allow better access into driveway. They have admitted some fault. Blamed the fact they did not do the original contour & feature survey plus a marginal difference in the way boundaries are represented between the two surveyors.

Council provided clearances for the subdivision with the strata plan as it is. Their planning / engineering departments did not provide any conditions on common property design or details about construction of a crossover, yet have now denied my building application based on this same information.

And then me the complete newbie has just been trying to find my way through and follow the advice of the professionals I’ve paid for.

So we’ve been able to get all the way to titles before this issue has reared its ugly head. The only two solutions I'm aware of to resolve the situation are:

1. Completely new WAPC subdivision application with redesigned strata plan to widen entrance into the CP driveway, go through all delays, clearances, title issuing all over again. ($5-6k+ and 3 months or more of delays?)

2. Entering into a legal agreement with council where their lawyers (at my expense) would draw up a contract ensuring I register vehicle easement on sale of property in future. I am told this could be expensive and they would also want to put a caveat on both properties which I am not really keen on. ($??? )

So even though I've paid professionals to hold my hand throughout this process and manage project on my behalf, it's still all gone to tears. Fun fun fun.

If you've read this far I thank you. Just blurting this massive post out there in case talented forum users have experienced something similar or can possibly suggest another solution? Or even which of these 2 solutions you would opt for and why?

Thanks in advance. =)

 

Who told you this? I don't have direct experience, but I would be very surprised if it was true.

 

Hi thatbum,

This is the information I have received from my conveyancer, surveyor and also from speaking to one of the seniors at Landgate. Apparently I may have been able to get the vehicle access easement through if it was lodged before titles issued, but now that they have issued.... no joy. =(

 

Hint: Last time I looked, it cost about $30k to move the telegraph pole. How much will it add to the vale of either or both properties?

 

I'm hearing you. What underlines this is the power pole is a "T-junction" type which I'm told carries high voltage distribution so I don't think its going anywhere regardless of the massive cost to do so.

I don't think it could be moved closer to the centre of my property due to where the lines coming off at right angles are heading into the adjoining street. The only logical place if moved would be smack bang in the middle of my neighbours nice clear front yard. I'm not sure they would agree to this! And I don't feel the costs involved would make enough if any difference to the end values to justify.

At the end of the day I suppose I have already been presented with a solution that will cost me say $5-6k and a few months to resolve it. Just reaching out trying to find a solution to solve it faster and cheaper than this though I may just need to accept it and move on.

 

I would have said that too.
Source: Landgate Land Titles Registration Practice Manual- Edition 13.0 (page 351)

7.1.3 Essentials for the Registration of an Easement
An easement must contain certain essentials and the absence of any one essential will result in requisitions issuing to either correct the fault or refusal to register, should the fault be incapable of correction.
The essentials are:
• there must be a dominant tenement (which may be leasehold) ie: the land which enjoys the benefit of the easement
• there must be a servient tenement (which must be fee simple) ie: the land which is burdened by the easement
• the dominant and servient tenements must be distinct and in separate ownerships (with the exception of easements created on subdivisions under Part IVA of the TLA)​

http://www0.landgate.wa.gov.au/docvault.nsf/web-new/PS_PM/$FILE/LTPM.pdf

However, this applies to land in fee simple. Does that apply to a survey strata lot? I'm not sure. Ok, according to Landate it does

If the ownership of all lots in a strata/survey-strata scheme is identical to that of another parcel of land then the two parcels are held in the same ownership.

In accordance with common law principles, easements and restrictive covenants can only be created when the dominant and servient tenements are in separate ownership. Easements or restrictive covenants created on subdivisions under Part IV A of the TLA or section 5D of the STA are statutory exceptions to that principle.​

http://www0.landgate.wa.gov.au/docvault.nsf/web/PS_STPM/$file/STPM.pdf

Considering you have already gone to title, this seems high for a plan of resubdivision. For a 2 lot survey strata with common property, the fee should not be more than $3,045. If the rest is surveyor fees, you could ask for a no fee or reduced fee based on them making an error in the first plan. Still, this might be a more certain outcome than messing around with a legal agreement. I would check with WAPC but it should not take 3-4 months for a re-subdivision of a Survey Strata Plan.

 

Can you get it over the line by creating an exclusive use by-law?

 

I would look down this route first. It should be cheaper and a lot quicker going this way. Ask your council for a price.

On your next development, look at going built strata so you can build first, and receive building permit before using $$ and time subdividing only to be left in this position.
Your project manager should have suggested this route when you have an unknown like big power pole in your way.

Post up your survey or lot plan showing power pole and driveway etc. There might be another option.

 

Well that's a high quality response if ever I've received one! Perthguy, thank you for taking the time to look into this properly and reference the relevant policies. Much appreciated.

Regarding my rough estimates of cost and time to resubdivide - yes that was including a reduced rate from surveyor to do the work.... which you're right I should push for it to be free of charge. I figured $3-3.5k for WAPC fee (I never actually saw this figure as was all bundled into surveyor fees) plus any potential lodgement, clearance, revaluation fees etc that I might face.

Yes the three or more months of delays may not be completely accurate (my initial WAPC application was approved within 3-4 weeks) but I figured they could take up to that long especially when considering other parties involved if I need to go through all of the clearances again? (not sure), bank consent, titles issuing etc etc. This solution appeals most to me so far as a more solid fix, as I don't know enough about caveats etc and what pain they may cause me in future if I had to offload quickly for some reason. The time lost to do it hurts a bit though.

 

Scott No Mates, thank you for the great suggestion. Unfortunately this one has already come up in conversation and to my knowledge has been shut down as an option. The response I received was....

"You couldn’t register an exclusive use over lot 1 in favour of lot 2. This would be considered a conflict of use and would be unlikely to be allowed to register. While you could put exclusive use over the entire of the common property this doesn’t resolve the issue as it is the requirement to cross lot 1 where the problem occurs."

Cheers

 

Hi HD_ACE,

I have enquired about entering into a legal agreement with council. I spoke with the law firm who represent them a good couple of weeks ago to explain the situation and request pricing. Despite my follow up emails and phone calls, I still have not heard back from them yet.

I was led to believe this option could still run up a bill similar to resubdividing though we will see.

Can you see any downsides to going down this path? I don't know much about caveats or how easy they are to remove when it comes time. My conveyancer is advising to avoid if at all possible. I intend to hold both properties for the foreseeable future. If for some reason in future I had to sell in a hurry would these caveats complicate and delay everything?

The reason I didn't go built strata was due to my financial position. This is my first ever property and I needed to access equity in the newly created lot to be ready for construction finance. I'm told that subdividing first was my only option in this case. For the next project (if i ever recover from this one!) I certainly intend to make it quicker and easier for myself and will hopefully be in a position to do so. It has all been a solid learning experience to date that's for sure.

Please find attached the WAPC application sketch showing lot design and location of power pole. Thanks very much for your help with this.

 

Could you change over to built strata so that you can construct now and not have to wait the 3mths or so?
I think a new lot design is best to reduce future concerns and if you did it Built Strata then you don't have to do titles until the end.
Edit: sorry just saw you post above about not going built strata

 

Looking at your plans I agree that the 2.9m at the front of the common property is totally inadequate. I would widen that out to 4 or 5m towards the crossover area.

 

Well if I was in your position then I would probably resubmit an amended plan of subdivision with a wider driveway and crossover. That way all the unknowns are out of the picture and the problem is solved. Just means a bit of lost time and some extra coin.

It should just be a stamp jobby as all the clearences etc have already been provided and with a bit of luck not take the whole 3 months.

Good luck.

 

Titles are issued so now you have equity. Apply for the construction loan and do built strata.

 

I'd submit the amendment to WAPC, and have peace of mind. Who knows how the legal agreement stands up later, and more hassle having to reengage the lawyer when you need the caveat checked or removed.

While waiting for the WAPC approval, can you submit the building permit based on proposed subdivision amendments? Could save a bit of time council side.

 

@Spear, I think this is worth following up with council. Not sure how they will react but it's worth asking.

 

Big Daddy, thanks for the suggestion. I have very limited knowledge in this space and got excited there for a minute but I'm hearing that going down this path could add extra layers of complexity, time and costs. May have to go through process of amalgamating the already divided lots before a building license would be granted to move forward with built strata. And I guess with amalgamation of the lots my new equity would disappear so all gets a bit messy.

 

Fantastic suggestion thank you Soggy. I did ask the question with council on Friday after reading this and waiting to hear back them. They may still require a legal agreement from me to guarantee I follow through with the amendments though. Either way, I'm hoping my applications can be processed quickly under the circumstances.

I'm definitely now favouring this plan amendment path rather than going for legal agreement with caveats. Still hold out hope for a magic fix but looking less and less likely....

Very much appreciate the opportunity to table this problem and hear all of your ideas. Thank you.

 

@Spear, any progress on this?