Carport over Drainage Easement

[s_t]

Recently got a contract on a property in Brisbane, that has a Drainage Easement on it. Wanted to check this out further so now have a copy of the Transfer of Easement. Wow, I see that it allows the property owner to grow grass and tend it carefully whilst the council can do whatever they want, whenever they want day or night, with no restrictions even use horses and carts along with all the lorries, trucks, cranes etc required.... Maybe this is standard easement stuff, but I'd not previously read one.

Anyway, it seems the carport is over this easement. Given the above, presumeably it isn't approved. Nor would we be likely to get approval for it. Which is a problem because there is no where else to put one, and I need a garage (was going to extend and enclose the carport). Or are councils (Logan in this instance) stupid and sometimes give building approvals in this kind of situation?

Our conveyancer is requesting info on carport from sellers, but I'm concerned they may take their time responding. Trying to work out whether we should just wait, or take/assume the carport as being unnapproved and take the necessary action now (crash contract during cooling off period, or some other clause - which I looked for in the contract but wasn't sure about the meaning of some things I was reading). Anyone been in similar situation?

 

[Aulyna]

Carport over easement should be fine... the ground might need to be dig up when drainage problem occurs... you need to bear the damage...

That's all I know...

 

[Fourex]

Hi,

I have needed to create a drainage easement with a neighbour. Basically it gave me permission to access the land to install a pipe then if required to maintain it. It would be possible for someone to place whatever they wanted over the top of it, but if needed I would have legal access to the pipe if required. If by chance the easement would be no longer needed (put in place for a building requirement then it fell over) then if both parties agree you could disolve the easement.

If the easement is active and the owner has not got coucil approval to build over it (approval given guessing maybe if they enclosed the pipe in concrete) then if at any stage they need to access that pipe (might never need to) then you would have to give them access to it.

If you are banking on building over that space and no approval shown to you from council I would be backing out (that is what the cooling off period/conveyancer is for).

Hope it works out for you.

Cheers,

Fourex.

 

[lizzie]

You can request a satisfactory council compliance certificate for the property as part of your contract (we have one on our house currently).

This means that council go out and notify you of anything about the property that doesn't comply - ie - unapproved works.

If something comes back, then it is up to you to negotiate with the vendor to either rectify, remove or reduce (price)

 

[s_t]

Hi Aulyna, except that if council become aware it is an unapproved structure they can force you to pull it down. A decent garage/shed, or place to put one, is a top 3 priority in our list of requirements.

Hi Fourex, is there such a thing as an inactive easement? It shows up on the title search. Btw, the drain must be a long way underground (looking at retaining wall heights etc), and there is a large manhole in the back corner of the yard.

Hi Lizzie, I see the logic in your good suggestiion, but the thought of council knowing everything wrong about the place you are buying it is a little scary. Would want to be sure that it would be either fully rectified or fully compensated (for whatever problems and costs council feel like throwing at us - which could be larger than expected), or walk away. Doesn't leave any options for a middle ground. Hmmmm.
What clauses in the contract are used in this sort of negotiation? Still in the cooling off period so want to be sure that there are other means to escape if we let that lapse.

One thing that confuses me is that Logan's online planning site lists a "Domestic - Shed & Carport" approval, though I don't have further details yet. There is a tiny shed out back which is probably just large enough to require approval. Not sure if the carport mention is a standard document title, or indicative that the carport might be approved somehow after all.

 

[s_t]

Been looking into it and going to do as you have suggested Lizzie - request they allow us to conduct a council inspection of the whole place to determine compliance, and also delay settlement and finance dates to allow time for it.

Drain itself all looks OK and in good order, so if the carport is approved and OK then it would seem to be low risk. Not sure what the outcome of any arguement about easement access vs council approved structure would be, if any work was required

It is one mother of a drain too. Here is a pic looking down the manhole - about 4.5m deep and at least 800mm in diameter. It is the bottom/deep offshoot/pipe that heads off down the side of the property.

 

[Fourex]

S_t,

Some examples of easements: Right to light, also called solar easement. Aviation easement, Railroad easement, Storm drain or storm water easement, Sanitary sewer easement, Electrical power line easement, Telephone line easement, Fuel gas pipe easement.

Termination of an easement might take place with the following:

Expiration: the easement reaches a formal expiration date.
Abandonment: the holder demonstrates intent to discontinue the easement.
Necessity: If the easement was created by necessity and the necessity no longer exists.

Hope that helps show what I mean by an inactive easement which from the looks of yours looks firmly in place.

Fourex.