Council wants easement on my property...ADVICE SOUGHT PLEASE

Hello everyone... :)
I am new to this forum, and the reason I joined was to ask for advice from others who know way more about these particular situations than I do, so I'm hoping that I'm not out of line by posting here.

The situation:
The local Council has come to us requesting that we grant them a stormwater easement on our block. Standard size block, 1214m2 and they want to put a 500mm stormwater drain down the entire length of the block. The reason they want to do this is that next door (upstream) gets 3" of water in their building after any decent rain or intense storm, due to the current stormwater infrastructure being old and apparently inadequate (and fixing it will cost too much). Council has asked that we 'be good neighbours' and do this in 'the public interest'. Even though I am assured that their ideal outcome is negotiation for mutual satisfaction, the term 'compulsory accquisition" was mentioned in one of the face-to-face discussions with the Council engineer.

Have received the proposal/plans/lawyers dox in the mail (18/3), and the width of the easement on the plan is 4m in from the boundary. This will leave approx 1-1.5m between the easement edge and our building, where we live and work.

Simple so far. The issues start to be raised when the physical circumstances are addressed.

Issue 1: the area between the building and the boundary is populated with 6 huge mature trees. These trees have been there for 25+ years. They shade the entire western aspect of the building. This building is a galv tin shed in western QLD, where summer temps are over 40 most of the time, therefore I do not want to lose the shade. According to the legal documentation, Council will pay for SAPLINGS to replace any trees that die as a result of damage from the proposed works.

Issue 2: All the water lines and plumbing of the building also run down the western side. There is no written mention of replacing/repairing plumbing damage as part of the proposed works (although I had a verbal assurance that the plumbing would be taken into consideration), nor any written or verbal mention of any form of compensation for the fact that we will not have working hygiene amenities for the period of time the works will take to complete. No written/verbal timeframe for how long the works would take to complete.

Issue 3: I asked the local real estate agent whether these works would have a negative impact on the value of the property. The answer was yes, but not able to give a firm figure. Again, there is no provision in the legal docs about compensation for lost value. The verbal discussions touched on compensation, but nothing specific from either party.

There are a number of other semi-minor problems that will arise from these works being done, and there are no provisions (that I can ascertain from reading the paperwork) for anything other than "Council will do whatever it likes, regardless". It really is a horribly one-sided document.

So, my questions to the learned ones of this forum are:

1. are we within our rights as landholders to request compensation for immediate and future issues arising from these proposed works? What is considered reasonable forms of compensation?

2. if negotiations break down and agreement cannot be reached; where do we stand if we refuse to sign? What avenues does Council have to make us do this?

3. are there any precedents involving similar situations that can be viewed?

One further note:
I have limited recourse to legal help, as there is one firm of lawyers in town, and they act for the Council.
The only time I had initially spoken to them about this matter (just after the first visit by the Council engineer), I was billed $250 for a 40 minute one-sided conversation without any concrete action or resolution. Now that I've had my legal practice lesson, I'm not overly keen to go back for more.

I thank you for reading this post. Maybe someone will be able to advise us where to go from here.

Kind regards,
Meredith
 
I dont know the answer, but I'll say this:

if you have ANY say in the matter - you want to decline this. It will devalue the value of your land - as easements will restrict opportunities for development in the future.

edit: as for legal representation - dont go for the local guy in town - get an outsider.
 
Thanks laurencei....
I *really* don't want to see this happen, however the words "compulsory accquisition" don't thrill me either.
 
Easements

I work in Sydney as a drafty and I read the council DA conditions and normally if the client building the house wants an easement over an adjoining property it is generally 1m wide, not the 4m you advise they want.

If there are mature trees involved, Council put a condition in that no digging of the roots should be undertaken and that the pipe in put in place by underboring and this generally saves the trees.

Also, our clients always offer the neighbours a payment for the use of the easement over their land. If it weren't for the easement, they could not go ahead with the construction of the building.

Maybe a land surveyor could help you.
 
Thanks Jindaro (Sharon)...
This easement is for a 500mm stormwater pipe. The gap between the boundary and the side our our building is around 5m. Next door's building is about 1.5m from the boundary. Not a lot of room either way. On the plan that was submitted, the easement is marked as 4m wide. I was told that the actual trench would be 1m wide by 1.5m deep. How they're going to get a backhoe in there to dig is almost beyond my comprehension. It's still going to disturb the trees.
 
I think the mention of 'compulsory acquisition' is just bully boy tack ticks, as it wasn't written only mentioned verbally.

As already mentioned an easement on your block will markedly impact any future development of your block. I would suggest that the reason that the documents mention 4m is for the envelope necessary to access the pipe in the future.

Just think that basically they are wanting 4m x the length of your block for their personal use now and in the future.

I have a block of units which has an easement which is actually an asset of the council. Council is the owner on my title - yet when it blocked up neither the council not the block of townhouses wanted to unblock the drain which by now was running water all over my property. Apart from the lack of maintenance I have effectively lost over 200 meters from my block (3m x 65m). More so the likely next development of this block is one of those unit blocks that go from side boundary to side boundary with 6+ story's. To achieve this I would now have to accommodate a storm water pipe that they don't even want to maintain.

The other thing you mention is the reason for wanting this easement is the expense of fixing the alternative - so there is an alternative well let them quantify that and then make it more expensive to use an easement across your block.;)

Lastly - it is essential that you seek further legal advice from an independent. Maybe spend some time on the phone with some stock questions and phone various sollies for a quick interview to select the best candidate. Remember that you want somebody that can come across tough as obviously the council need a good shakeup.

Cheers
 
Thanks handyandy...
I assume that a Property Attorney/Conveyancing Solicitor is the sort of professional I should contact? Do you have suggestions for questions that should be asked initially? How do I know to choose the right representation? As evidenced, I am a complete newbie in this regard.
 
I would speak to an experience surveyor and town planner that has been down this road before. You might be able to get some free preliminary advice and they can assist you further, maybe ask the council if they are willing to compensate you?
 
You can say no.

If they wish to take an easement through the resumption process then they are able to under both S36 of the Local Government Act 1993 and the Acquisition of Land Act 1967. However, they will have to serve you with a notice of intention to resume and go through the legal process. You will be entitled to compensation.

A council is only able to resume as much land as they need to carry out the lawful purpose. There have been multiple cases where owners have had the land area taken reduced as the court has deemed the amount intended to resume as excessive. Can't think of the names of the cases off the top of my head. But there is precedent there for arguing.

However, with all of the above it will be expensive and you should use a planning lawyer, rather than a general lawyer if you wanted to fight this. $500/hr absolute minimum (distinct lack of planning lawyers at the moment and the new Sustainable Planning Act 2009, came into force Dec 10 will only make things worse).

Could you find a better location for the drainage easement? If you can and can negotiate with council to resolve the problem without going through the court system that would be better. As stated above, ultimately council has the right to acquire your land (including an easement), for the purposes neccessary to carryout their functions as a local govt authority, as long as you are fairly compensated and they are not taking more than they require.
 
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