Laneway sold - no access for adjoining owners

A recent sale of land in Tamworth has left multiple owners who adjoin the land with no right of access. Tamworth Council Sells Lane

A few issues to consider (though we are only privy to what has been journalised).

• Laneway was not a dedicated laneway
• Parcel of land still had a title
• There were no encumbrances for right of way for the adjoining land
• Buyer was an adjoining owner (who wants to develop units)

@bmc - IIRC, before council can sell the land they need to investigate if they own it, how it came to their possession, if they have paid for maintenance, review the plan of subdivision which created the lane (even looking for notations like "to be dedicated as roadway"), reviewing the roads act with regards to necessity for gazettal of a road closure (S38).

The parcel of land in isolation is too small to develop as it is only 100 m2 but if consolidated with an adjoining lot may provide an adequate size to build units (as intended by the buyer).

 

Im not a property lawyer, but there is such a thing as an equitable easement which might help those without access.

 

Thanks @Terry_w - I found this article (calling them implied easements) - Linky however I am yet to consider the wider application of the roads act or whether Council, by granting development consent of carports etc to the adjoining properties have by their actions granted implied easements (whether this is possible under the real property act or if it needs to be formally evidenced as it is a transfer of a right in the land).

The author does touch on it at the end of page 16.

 

Easements created by prescription - Registrar General's Guidelines

they need to seek some specialised legal advice although I think the horse has bolted.

I just did a quick search of the CRE. I note that the strip of land is lot 1 in DP1062671.

reiterating what you said. I would be searching back to how that strip of land came to be, Did Council claim the parcel of land, was it Old System or Torrens title. was it dedicated road or was it a left over access strip or Right of Way to a former Lot, which may not have been formalised in a transaction. (it happens).
As for getting the rights back for access, if it was Old System could they have grounds to claim the right of an implied easement by prescription, as you have suggested.
out of my depth, I haven’t seen a case like this.

 

In Sydney a hotel near me had a issue like this. Council gave them a short former laneway in exchange for some agreed deal that means council dont have to maintain a crappy piece of former roadway. Deal meant hotel has to build on the site and not leave it as open space. Price was low and reflects limited use for a tiny lot other than to adjoining premises.

Other neighbouring properties complained arguing they had a right of way access etc. L&E court held the council could do as it wished as council was the only party with rights to assert a roadway and close it ...and sell it. Others thought they had a right of access but L&E court held that it didnt exist and was never implied either. The former road was closed to vehicles in 1980s and at that time nothing was granted to any landowner to create a implied easement. L&E found that assuming a grant is not sufficient - something must have been given to support the implied position. Implied intentions require a contractual relationship to give that implied viewpoint or some such view. Council even produced evidence it had fined adjoining landowners and others for illegal parking on its former roadway. Apparently there is another implied easement - necessity but L&E rejected that immediately in hearing as the complaining landowners werent landlocked.

A guy I know owns the pub and had to wait while it went through L&E. I think I have explained it the way he told it. Neither he or I are lawyers.

 

But all 3 visit the pub (on business, of course).

 

A hotel owner, accountant and lawyer walk into a pub.
Two of them wont be paying for drinks. Which ?

A : The lawyer. He will bill the hotel owner for the time and include the drink and add a mark up. Unless its given to him free and then bill for time and travel time.