Would we risk having part of our block resumed by council?

Discussion in 'Legal Issues' started by wylie, 24th Dec, 2018.

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  1. wylie

    wylie Moderator Staff Member

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    I'm curious to know if anybody has dealt with an issue like this one?

    We have a block in Brisbane that was surveyed last year due to a fencing dispute. I noticed something odd as part of that survey. Screenshot shows our block touches the road, but the survey peg sits on the grass about six inches in from the kerb.

    If we fenced the front yard, anyone walking on the footpath would have to step onto the road to get past. The front yard is not fenced, and I'm wondering if we ever decide to knock the current house down and rebuild, whether the council would insist on taking the corner of our block to ensure the footpath is walkable?

    Our plan is not to fence it, but there is a possibility we (or next buyer if we sold) would want to demolish this house and build up high to catch city views. I'm guessing this would be when BCC realises the footpath actually is part of our block, and would possibly take it back?

    The footpath at the bottom of the screenshot is quite narrow, nor normal width. Once past our house, it widens to a normal width.

    @RPI - any idea?


    fullsizeoutput_1601.jpeg
     
    wylie, 24th Dec, 2018
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  2. Marg4000

    Marg4000 Well-Known Member

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    The risk is high.

    The corner block next to my mum’s at Ashgrove was an irregular shape. Owner was told that any plan to extend or rebuild would mean land resumption to truncate the corner. As the block was only 24 perches, they would lose too much land. This was about 20 years ago, but the original house is still unaltered.
    Marg
     
    Marg4000, 24th Dec, 2018
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  3. wylie

    wylie Moderator Staff Member

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    Thanks @Marg4000. This is what I suspect might happen if any application goes in for a rebuild.
     
    wylie, 24th Dec, 2018
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  4. Westminster

    Westminster Tigress at Tiger Developments Business Member

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    I'd say the chances are high and from a personal situation I might have preference for it to happen now. Why? Because you have council infrastructure on private land and if someone falls and trips on the footpath and breaks a hip I'd hate to be sued.

    That is an extreme case but it would worry me.

    The council may buy the land off you which would be nice if you have to give up the land.

    Does the survey peg mark the boundary, ie 6 inches from kerb or is it an offset peg? Overlays like the picture above are not terribly accurate and your actual new survey would show it more accurately.
     
    Westminster, 24th Dec, 2018
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  5. lixas4

    lixas4 Well-Known Member

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    WM makes a very good point, surveyors often dont/cant mark the exact corner, so we place offset marks. For example, there may be a high fence on the boundary where the title corner is, so to mark that boundary we may come out a metre. This also allows the fence to be replaced and the mark wont be affected. Have a look at the survey plan, it should show the mark type placed and if its on the title corner or is offset from title.

    A friend had a similar situation to yours in black rock (vic), where the council footpath was built 1m into their land, and abutting properties along the street. As the houses along this street were developed council imposed a condition on their permits that they provide this land to council for free. But they would argue their minimum front setbacks to be calculated from the old title boundary, not the new one. If you had public open space requirements (not sure you have these in qld?), you would argue to offset the payments for the footpath land.
     
    lixas4, 25th Dec, 2018
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  6. Gavin Beard

    Gavin Beard Member

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    Interesting issue... I would not fence it as I suspect this is a survey error. Maybe contact Ian from Brisbane Survey Group at Kelvin Grove for his opinion. He is an awesome bloke.

    In my experience, Council owns the land next to the road and you may be looking at a possible easement rights (not in your favour) should you agitate the matter. There is also the possibility that at some stage in the past, Council widened the road. If that is the case, you have a claim for compensation. Funny that, I have a related matter on foot.

    This is a tricky one. Maybe you should do some more investigation as to the property boundary or request a lawyer to look into it.

    Best of luck buddy :)
     
    Gavin Beard, 23rd Jan, 2019
    #6