Building and Construction – How to obtain an Easement to drain Water

16/01/2019

When a land owner wants to construct a building, the relevant planning authority will require the owner to have a plan to drain stormwater from the building and the surrounding land. The authority, (usually the local council), will generally insert that requirement into the Development Consent to ensure that the proper drainage of stormwater will become a condition to be complied with prior to the final approval or the construction of the building.

The problem that may arise at this point is that the owner in order to drain the stormwater, may have to tunnel under adjoining properties neighbouring properties to lay drainage pipes connecting to the stormwater mainline.  Usually the adjoining properties are owned by other person/s and the land owner is required to seek approval from the owners of those neighbouring person/s to proceed with the drainage pipes.

If the owner or owners of the neighbouring property consent, then the land owner will seek to have an agreement for various rights to lay the pipes and to maintain the pipes. This is as a consequence of the work required in laying drainage pipes which involves the land owner entering onto the neighbouring land to lay the new pipes and also possibly entering that neighbouring land at a later date, to repair or maintain those pipes. This agreement is reflected in an instrument which is attached to the land, called an Easement.

This Easement is embodied on the land title documents of both the land owner and the neighbouring owners’ land. The Easement enshrines the rights of the land owner to enter the adjoining land as required for the purpose of draining the stormwater.

However it often happens that the owner of the neighbouring does not agree for the land owner to lay drainage pipes across the neighbouring land.

The question is what the land owner can do to allow proper drainage to be constructed so the building can proceed.

The answer is found in section 88K of the Conveyancing Act, 1919 in New South Wales. Section 88K allows an owner to apply to the Supreme Court for an order imposing an Easement as long as various preconditions are met. Those preconditions are:

(a)       the Easement is reasonably necessary for the effective use or development of the owner’s land;

(b)       that the use of the owner’s land is not inconsistent with the public interest;

(c)       that the adjoining owners can be adequately compensated for any loss or disadvantage that will arise from imposition of the Easement; and

(d)       all reasonable attempts have been made by the applicant for the order to obtain the Easement but these attempts have been unsuccessful.

How these preconditions work in practice is that the land owner must demonstrate to the Court that he or she has approached the adjoining owners seeking agreement to lay drainage pipes onto the adjoining land. During that process of asking and seeking agreement from the owner of the neighbouring land, the land owner ought also to propose a fair amount of compensation for that neighbouring owner’s inconvenience and reduction in land value due to the easement.

If the approaches are rebuffed then the land owner can advise the Court about these approaches and about the compensation proposed.

The land owner also needs to provide evidence to the Court to establish the preconditions referred to above.  One is that the use of the land is not inconsistent with the public interest. This may be demonstrated by a council Development Consent which has a condition that the stormwater drainage be built. The approval of a building by the local council is often evidence in support of local public interest that the building be constructed.

The process under section 88K is that the land owner ought to file an application for an Easement at the Court. That land owner will then need to prove all the items in support of that application if there is any hearing.

Watson & Watson Solicitors are experts in building and construction law and can assist you in obtaining Easements and other regulatory items required for the construction of buildings.  If you propose to purchase land or propose to construct your home or to undertake a renovation/extension of your home you need to consider whether you will require an Easement.  Please contact Richard Watson Accredited Specialist Building & Construction or his Personal Assistant Shereen Da Gloria and seek advice without delay to address this common occurrence between neighbours and reach a resolution.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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