Council easements issues :(

Hi there,
Background:
We submitted plans to council for 3 dwelling development 18months ago.
Our property slopes downward (slightly) 5-10 degrees.Initially the council engineers were happy with charged system to pump out to the street. We designed as we were required plans submitted. Happy days. (Or so we thought)

Now council has new engineer and she is unhappy with charged system and has asked us to investigate easement. The neighbour directly behind would we optimal choice, he however is unresponsive( rented property) no reply to many emails or correspondence.

We approached all four properties surrounding and all have chosen to DENY easement.
We already paid for Valuation for easements made 4 offers well above market valuation, all denied.


Council still wants to to do a survey for the easement, Common sense would mean no survey until one or more owners accepts no?Council has given us 12 weeks to sort this out, What should I do???

p.s.I am contemplating getting my solicitor to write to them.

Suggestions/Help/ advice all welcome

Thanks.

 

No idea of which state the property is located.

 

Hi Scott,

The IP is located in SW Sydney, NSW.

Has any had any experience in dealing with easement issue before?

Best Regards

 

After you've exhausted all avenues, you may like to read S88 of the NSW Conveyancing Act,

Section K may be of some interest however you'll need to go to the L&E Court.

 

Since it appears you have done all that reasonably be expected , maybe request a meeting with the section manager at council to discuss the issue? As Scott No Mates says, next stop may be LEC.

 

I couldnt help but chuckle reading your post

A few on here have experience but to be perfectly honest they have all been very expensive experiences to learn and not many will be willing to share it for free.

Anyway, when you met with the council and they gave you advise, was it at a pre-lodgement meeting? is there any way you could prove to them that you were advised in this way by them?

You really have two options, either approach the tenant you mentioned earlier, ask them who is the managing agent or the property owner and tell them you need to urgently speak to the owner (or write a letter and get them to give it to the agent). If not an appropriate solicitor should be able to do a search find the owners and write to them. In NSW, if you are not impacting their future development of their site, the Supremecourt is likely to rule in your favour under section 88k of conveyancing legislation. However you need to satisfy a certain criteria i.e you had no other option but to seek easement and you are adequately compensating them etc etc. Its a rather longer process.

Another option you have is find a really good planner and engineer, try with the council again based on what you mentioned they have advised you (The non-easement option) lodge it as a DA, let them refuse you. Then you can request a review via an ihap panel.

The second option is a bit more risky than the first but considering your circumstance it may be faster and cheaper.

Good luck dealing with council, you are gonna need it.

 

Thanks for all the responses. I wish i could also enjoy chuckle.

We had a pre-lodgement meeting many moons ago and they happily accepted our plans to drain to the street via a charged system. I do believe that the site behind may also be earmarked for development, which confuses me as to why they would ask to seek easement. If indeed it impacts their site??

I am meeting with Council today. Hopefully more questions than answers, this time.

Thanks for the advice.

 

Hey mate sorry to hear about your issues.

3 dwelling development as in townhouse/villa or subdivision detached dwellings?

5-10 degrees is not insignificant in hydraulic terms. My own golden rule is never assume Council will accept any sort of fall when it comes to new developments. Charged systems with Council are ok for single dwellings but when it comes to subdivisions or villas/townhouses developments or even secondary dwellings it is a deal breaker for me personally and I always tell everyone assume you need an easement.

Not to say I haven't wriggled my way out of it. First thing that comes to mind and I know it sounds obvious and would be dependent on your site is to see where the majority of the fall on the site is, can a small fill be used to level out where the indicative envelope will be?

Also another saving grace might be that the street stormwater pipe is located very deep and although the natural ground level is located below the street you can still achieve downhill slope of your OSD to this deep drain has your hydraulic engineer looked into this?

 

@Gavin1985 - great points to overcome gravitational disadvantage (if you can).

 

Been there, done that, similar council and I feel your pain and intense ( wanna get a bat and smash **** up) frustration. All I can say is good luck mate. Took me 12 months to get a LPoD and subsequent easement from council (they were my neighbour) and its a very painful process as you are experiencing. Sound like it may be one for the LEC and tbh it may be your best bet. Hydraulic engineers at council are f'ing clueless from my experiences with them. Wanted me to put in an additional street drain which would cost 10s of thousands and god knows how long in time, however there was no such condition in my DA. I sent them a letter from my solicitor and they dropped that **** quick smart.

Dan murphy's will be your best friend in the interim.

 

Balsy, but I fear it will waste more time and money.

 

Depending on the council, the issue isn't so much whether you can "find a way" that works as majority of issues with council are political rather than logical.

I actually had a similar issue recently and my engineer found a good way that worked perfectly fine and was within their DCP etc etc. In fact running the easement, would have endangered two large native and protected trees. So there was every logical reason for the council to let us drain to the street rather than making us run the easement.

But, they insisted that they wont approve anything other than easement (obviously through many back and forth) and their only reason was that our proposed system didnt deal with 1 in 100 year flood. This is while the property was not even in the flood zone.

So I would say, to the OP, pick your poison.

If you can "prove" that they actually accepted your method of draining to the road but later changed their mind, then you can stick to your gun. Either submit the DA, let them reject you and take the rejection to a ihap review (obviously get a good planner and engineer to put together a strong argument) or go to court.

OR hammer away at the neighbours, either directly or through solicitors and dance around the fact that you need easement.

 

Hi guys, Thanks for all the response.
Spoke to council , they seem willing go forward aslong as we formalize our approach to the neighbours & redesign our charged system for gravity.

I have engaged solicitor and hopefully the accept our best attempts

@Gavin1985 great points about the gravity infill, council echoed this.
@Leo2413 dan murphy's sounds great haha

Merry xmas all, will update in the New year

 

Just an update: DA approved: We engaged a property lawyer to satisfy council in regards to non-reply from some neighbours. We did some minor alterations in regards to plans and got what was "mutually agreed at the start" Even though it took 8 months longer

tl:dr: My tip is assume the worst always and be prepared to engage professionals to exert more pressure. Process reminded me of this quote:

"Logic, like whiskey, loses its beneficial effect when taken in too large quantities"

@Gavin1985 @Leo2413 @Tenex appreciate the tips

 

Further update: We have received an offer for the property with DA approval, but we are currently in initial stages of organising CC.

Should we continue with CC or let the developer/purchaser do this on their own?

I have spoken with Council and they estimate 3/4 months for CC( but i take this with huge grain of salt)

Any advice would be welcome, Cheers.

 

You've done the hard yards to achieve the DA. Will gaining CC add any value in a falling market or be just costing you $ in additional expense, lost opportunities and timing?

Take the money and run If you're not going to complete the development.

 

Thank so for the advice.

Thanks for the advice Scott. This is precisely what we have decided.