Cross easement on boundary

Hi all

I'm looking to extend my property to the side boundary (allowable under Council rules subject to overshadowing, FSR, etc). Unfortunately the neighbour has got an ugly and long stormwater pipe traversing right on the boundary to the street.

Have checked their title (and mine) and NO cross easement is registered on our common boundary.

Does that imply that I am within my rights to insist that they take that pipe down and have them find some other way to get their stormwater to the street? In fact, they have a cross easement on the other side of their house ie not my side so not sure why they're not doing that already.

 

G'day @Lacrim
I assume the "cross easement" you are referring to relates to a common party wall. The cross easement notation refers to reciprocal rights of support generally over a brick party wall as in the old semi-detached or terraced dwellings. It does not cover a drainage right or stormwater pipes. (see conveyancing act). (Something different all-together.)

Interpreting your explanation, it seems that the adjoining building is built close to your common boundary. Firstly you will need to determine how close that building is to the boundary.
is it clear or is it built on the boundary line ?
a Registered Surveyor can determine this for you.
If the adjoining building is lets say 150mm clear it may leave enough clearance for the pipe to not encroach.?
But If the building sits on the boundary then the pipe may be technically an encroachment without a drainage easement. (that is for torrens title land)

if it is Old System Title there is an allowance for a easement created by prescription, but im jumping the gun a bit on this without reviewing all your deeds. and it can get complicated.

maybe speak with your local Surveyor or the Titling Registra of your state.

i'm a NSW Surveyor and sometimes laws are different between states.

 

Thanks @bmc, the party wall is right on the boundary....their stormwater pipe either sits directly on the boundary/just encroaching on my block. Photo below.

Yes, I could get a survey done but assuming the pipe is encroaching my property (and they don't have it registered), am I within my right to say 'please remove'? And if so, how does that directive get enforced?

 

Hi @Lacrim
i agree its not pretty, but that wall doesnt look like a typical scenario for a party wall to me.
Just to clarify, a party wall (easement for support for another term) is gererally required when two adjoining buildings need the common wall to support other common structures like trusses, beams, roof etc.
therefore i would assume that this wall of your neighbour is owned entirely by him. BUT it would require a Survey to determine its position relative to the boundary.

However If it is found that the pipe does enchroach into your land and there are no provisions for an easement to drain water over your property then i would treat it as an encroachment.
it would then require some persuasive negotiation skills with your neighbour to arrive at a solution.

But the dark side,
there is a provision in sec.88K of the Conveyancing Act (NSW) that provides Courts a statutory power to compel the grant of easements against unwilling landowners, but i have never known it to be granted over a pipe like shown in your photo.

 

Thanks very much for the reply. So I guess I need a survey done if we proceed with this project, together with the prospect of butting heads with the neighbour.

 

you will probably need a detail survey for your DA. Most councils and certifiers are now requesting the boundaries are defined at this time and all details shown on the plan are relative to the boundary and not just diagramatic. This is an extra cost initially and recommended so you know your accurate clearances.
keep us updated.

 

If it's on/over the boundary, next door may have a little problem discharging their stormwater.

 

Well on their title (I got theirs too), seems they have a cross easement with the neighbours on the other side.

One solution I was thinking of was, as a byproduct of extending our property, Council will most definitely insist on us installing a rainwater tank.

Would it be a crazy/feasible/risky idea to redirect their pipe directly into MY rainwater tank? The tank would be situated pretty close to where their stormwater pipe originates from (at the rear).

I'd rather not have to deal with their water runoff but I don't have dollars to spare for a legal battle ( I may lose) and destroy neighbour relations along with it...because we'll be living in the property.

 

First things first.
You need a survey to discover exactly where the boundary of your property lies.
Marg

 

in this instance you would need an easement to drain water burdening your property to benefit the neighbour

 

Lol ok. Might come at a $ price to the neighbour.

 

What will you use for a clothes line if the pipe is removed

 

@bmc Whats the charge for a surveyor in NSW to draw up the fence line?

 

do you mean peg a boundary line
or draw up a lot plan
or survey and draw a detail plan

 

@bmc survey and draw a detail plan i guess is what I am after so that a new fence (no current fence in this spot) can be erected in the right place.

 

Hi @neK
In NSW we call this a Boundary Marking Survey.
Where we would place marks to define the property lines, together with a Sketch and Report showing the nature and location of all marks placed.

the cost can depend on a few things like the age of the area and availability of plans in Dept Lands, (recent deposited plans etc). steep, mountainous, obstructed, clear line of sight, Old System or Torrens and size of the land parcel etc.
most of the time (and the hard part) is re-establishing the boundary position. Banging a peg in is the easier part.
if i throw out a blind price it will most likely be wrong.
if you PM me your Lot and DP i can review the cadastre chart and provide you an estimate

 

Just to make it clear, this is currently an IP. We wouldn't be living that messily.