Sewage Pipes Missing From Easement

Hey everyone,

I have a question, but it may involve a bit of background info. We purchased a property in 2014 after part of it had been subdivided (numerous issues from the subdivision, but that's another story). The vacant land which was created has been sold twice, and the current owner is preparing to build on the land, despite 13 objections, and 2 VCAT hearings. Anyhow, we have now found out, a bit over 4 years after the subdivision was registered and finalised, that sewage pipes were never installed in the easement on our property to service the subdivided block, despite stormwater pipes being installed.

My confusion is this: the endorsed plan of subdivision states that the easement is "benefited/in favour of" South East Water, and there is nothing on the plan that says these pipes will be installed at a later date. South East Water are saying they are only just becoming involved now (despite being listed on the Plan of Subdivision) due to the "further subdivision" (which I believe is to create separate titles for units 1 and 2, despite council saying they have no knowledge of a further subdivision taking place), and are trying to gain permission to access the easement to install these. I understand that they have legal rights to access it, but why is it only happening now, and not when the subdivision was done? They are trying to tell me it is only being done now because construction is about to happen, but surely it should have been done when the easement was created, so that it didn't have to be dug up again and have these pipes installed at a later date, disrupting the occupants of our house?

We have been told that the process will take around a month, and since the easement runs alongside our swimming pool, and is on the same side as our main entertaining decking, it makes us feel uncomfortable going in the pool or entertaining while some stranger is laying these pipes, and part of the fence is removed for the access. Do we have any rights with this? Is there any compensation we may be entitled to for this?

To me, it seems a huge mess-up, and I don't see why we should just accept them doing what they need to do without some form of compensation. Am I wrong? We aren't trying to be greedy, just wanting to ensure we aren't being screwed over and are compensated for our "private open space" no longer being so private during that time.

Leigh

 

It's an easement. It was created with the subdivision. No compensation is payable.

Just because the easement was created doesn't mean that it contains a pipe. It simply grants a right to the benefitted land to install a pipe.

Your sewer diagram would indicate that there was a pipe through the easement, no plan means no pipe.

 

South East water aren't going to construct a pipe until they are paid. . . . or what is likely the pipe is laid by an approved SEW contractor who will be paid by the subdivider.

Usually with a subdivision the water authority will agree to a subdivision but the physical works are done by the developer who can delay them until they are ready to build.

It would appear you may have been poorly advised when you bought as it would have been better for the pipe to be installed before purchase.

 

Take hoots before any work is done.
Then make sure the easement is restored properly after excavation.
Marg

 

Is that a Scottish term for photos?

 

&$#$& autocorrect!
Marg

 

@Marg4000 - I thought "hoots" was the equivalent of "a Bex and a good lie down".

 

what Marg meant to say was:

take hoots afair onie wark is dain. then make sure th' easement is restored properly efter excavation. marg

creag an tuirc

 

Hahaha

Thanks guys ... so u are saying the only sort of compensation we can get is to do with the land being disturbed when laying the pipes?

I really need to find the website I found last month, which said there was a change to the Compensation Act (or something) to allow compensation to be granted in situations like this.

 

AFAIK you are not going to get any compensation for a utility company, or their contractor, using their legal right to access a registered easement to do works. The easement was in existence when you purchased. As @bashworth alluded to, your solicitor or conveyancer should have pointed out the ramifications of buying a property that had an easement on it. It is not uncommon.

 

Aye cudn't put eet betta miself.

 

I dint know if this makes a difference or not, but I think I forgot to mention that the stormwater pipes were laid at the time the easement was created. What I am not understanding is why the sewage was also not laid at the same time.

If this process was only going to take a day or two, i wouldn't really care, but it will take a month. That is where my concern is.

 

On. Nada. Zilch.

You got the land at a discount because it has the easement and the subdivider has put the easement on the land. You've got on say in the matter. If you've got structures, paving etc. they may even get you to remove them.

 

It makes no difference.

 

That's right. You should not be putting any structures over the easement. If you do and the utility company damages/removes them, you have no rights to get them re-instated or compensated for.

 

What do you mean by "you got the land at a discount"? We ended up having to pay more than the asking price because the real estate agent, and/or previous owner, screwed us over. The agent lied in the advertisement, the vendor (who is a builder) did illegal works to the property and didn't disclose ANY improvements in the Sec 32 (he even tried to include a clause saying he ISNT a builder, and to contract himself out of liability), our conveyancer did nothing right except transfer the title into our name, the council allowed the subdivision to go ahead in a way which left a mess behind for us to clean up (including a garage which was demolished illegally, causing damage to part of the property). I know this isn't exactly relevant to the easement, but it shows how badly things have been done. We have to spend over $50,000 fixing this mess because of loopholes.

As I said earlier, i KNOW I saw something online last month that talked about the Compensation Act (or some act) being amended so that compensation CAN be awarded when work is done to the easement. I'm not talking about repairs or updates, I'm talking about when the pipes are first laid. I just wish I could find that page, but my history has been cleaned by my Internet Security program ...

 

This one is from NSW, but here is an example of compensation being awarded for the easement: Neighbour’s Request for an Easement over your Property | Atkinson Vinden Lawyers

I will keep trying to find one that relates to VIC

 

@verucaboi - Compensation for the easement is paid by the owner which recieves the benefit when the easement is granted by the affected owner (burdened lot owner). The affected owner, was the developer or a previous owner(s). They sold the right to the adjoining property, the property that you bought has decreased in value (compared to other lots not affected by the easement) as some of the utility of the land has been decreased (ie you can still use the land but you have some other person having rights to run services through your land).

The easement affects all future landowners, without additional compensation being paid.

The fact that you paid more than you should have is more a reflection on yourself/the agent as to who was the better negotiator and who was ruled by emotion.

The cost of the easement should be reflective of the benefit that having the easement will give to the adoining land owner - that is if next door is zoned for multiple dwellings but cannot build them without the easement, then granting the easement will be worth $$$ to the developer and would be worth much more than the amount of land burdened by the easement if it were for another similar dwelling.

 

Compensation is for obtaining an easement over anothers land. Not for one that already exists. Or using the easement. They can rock up tomorrow and start digging a very deep trench and inconvenience you until its completed. And if you have any structure etc on the easement they can demo it OR ask you to demo it at your cost. They dont have to even consider digging under a slab for example. And it may be open for weeks and be noisy, messy and a hinderance.

Easements are forever.

 

When the developer originally did the subdivision that created your lot, south east water assessed the current, and future requirements for sewer and water in the vicinity. After that assessment they required the subdivision plan to create easements. So while the sewer pipe wasnt required at the time, they knew it would probably be needed sometime in the future, and here we are now.

It really isnt a big deal, they say a month, but chances are the actual 'construction' on your property will be only a few days of that month. Plus it means you now have another option for sewer connection, which could come in handy if you decide to develop your property in the future, especially if your block falls to the rear.