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Application for Easement to drain water DA conditional on Easement being granted within 1 year of DA approval - Time is of the essence to act

24/09/2020

In late 2018 Watson & Watson received instructions to act on behalf of the Owner of land who received a DA approval in July 2018 for the construction of a home on land he purchased in 2014.

Development Consent was subject to a condition that the Owner obtained an Easement from the neighbours (3) to drain water over their land to connect with the Council drainage.  The Consent required that the Easement be registered before 31 July 2019. 

The Owner had engaged former solicitors to attempt to resolve the issue as to a drainage Easement with the 3 neighbours.

As it happened the Easement was critical for numerous reasons including that approval was obtained under difficult circumstances and having regard to a change in the zoning; approval for the same project, would not have been approved again.  As such, the Development Approval added considerable value to the land owned by our client. 

The solicitor engaged before we were instructed attempted to negotiate a resolution to allow the Easement however it was clear from those negotiations that the adjoining neighbours would not engage with the Owner seeking the Easement in part, having regard to the conditions offered by the Owner.

Prior to commencing proceedings and as part of the case, our client as the applicant Owner seeking the Easement needed to prove to the Court that there were attempts to negotiate an appropriate Easement with appropriate conditions. 

Firstly, one needs to know what are the appropriate conditions and secondly how to and commence proceedings to ensure an ability to obtain an appropriate Court Order within the time allowed by the Development Consent in the event that the matter was not resolved.  On receiving instructions we immediately engaged the appropriate Consultants to enable the matter to proceed expeditiously.  The matter was commenced in the Supreme Court of New South Wales and proceeded with some resistance from the Defendants from whom our client was seeking an Easement. 

As part of the process the Applicant needs to have his evidence in the appropriate form ready for Court at the earliest possible time.  One needs to weigh the cost and time of proceeding, the prospects of settlement and the consequences of failing to obtain an Easement either at all or within the time allowed by the relevant consent.  Council often allows for the deferred commencement condition namely, the obtaining of the Easement.  Some approvals allow period of 5 years, some allow 1 year and some allow 2 years from the original consent for the land owner to obtain and have registered the appropriate Easement failing which, the Consent will lapse.   Experience shows that one would usually need a period of more than 1 year to obtain the Order of the Court to allow registration of an Easement.

Once the evidence has been prepared on behalf of the person requesting the Easement (the Plaintiff), the Defendants have an opportunity to file their evidence in response. 

The evidence deals with issues in a particular case.  Most often evidence is required from an appropriate Hydraulic Engineer, Surveyor and a Valuer.  One issue is whether there is any other reasonable alternative available to the Owner of the land rather than the course that is being proposed.  Often there are various different alternative routes to enable the water to be drained and connected to the Council facilities.  A Hydraulic Engineer is often asked whether there is a more favourable alternative to the Owner of the land than the one that is being suggested by the Owner.  The Hydraulic Engineer on behalf of the Owner needs to consider each of the relevant alternatives.

Another issue that may arise is whether the Easement is required for the reasonable development of the land.

Once the evidence is prepared and filed in the Court, the usual course and often pursuant to an order of the Court, is for the parties to attend mediation in an attempt to resolve the matter.

In this particular case there were some delays in having the matter listed for mediation and it was clear that if the matter was not resolved at mediation the date for compliance with the deferred commencement namely, having the Easement registered before 31 July 2019 would expire.  In those circumstances we made an Application to the Council for an extension of time and that was granted for 1 year namely to 31 July 2020 to have the Easement registered. 

Fortunately at mediation the matter was resolved and Heads of Agreement were signed.

Unfortunately not all matters were resolved at the mediation in particular, the Construction Work Method Statement was not finalised.  The Construction Work Method Statement sets out the process to construct the works within the Easement.  In some cases these are easily agreed to between the parties.  However in others they are not easily agreed to.  As it happened in this case, there were significant delays after mediation and significant costs associated with finalising the agreement.

The matter was finally resolved and documentation lodged which allowed the registration to be effected shortly before the expiration of the period in which our client had to register the Easement.

Our client achieved his objective despite the difficult circumstances.

Further in our experience it is clear that the greater the delay the greater the costs will be for the person who is seeking the Easement.    Those costs will not necessarily benefit the person granting the Easement. Usually the delay has considerable cost consequences and in many cases, the delay in settling the cases will cost each party as each party has legal and other fees and costs.  Even though the usual position is that the person seeking the Easement will pay the cost of each party there is always some costs that are not reimbursed.  For example in the case the subject of this article, each party had to pay their own costs from the date of the agreement at mediation.  This reduced significantly the amount received by the neighbours who received some compensation.

In our experience one needs to attempt resolution as early as possible and on reasonable terms.  Watson & Watson are experienced Lawyers in negotiating and if necessary proceeding to obtain or defend a claim for an Easement so that we can assist you in achieving the desired outcome.  If you are in the circumstances of either requiring an Easement or having been requested to provide an Easement please contact Richard Watson Accredited Specialist Building & Construction or his Personal Assistant Shereen Da Gloria to discuss your matter and obtain timely and appropriate advice in relation to any Easement issues that arise.

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

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