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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22322
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Hi We have a sewer line running through our property from

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Hi
We have a sewer line running through our property from 1 street to the other. There is no easement on our property title by the local council.
We are rebuilding and have to drive piles close to the sewer line.
The council has a lot of requirements for the repiling and wants to prepare a memorandum of encumberance on the property at our expense.
What are our rights?
Thanks John

christhelawyer : HiWelcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
christhelawyer : The council has the power to require this if the sewer is a public sewer. The powers are in the Local Government Act and the Resource Management Act.
Customer:

Did they have to have approval to put it there in the first place?

christhelawyer : you must be consulted and in the case of a new sewer you would have some compensation rights, but in this case if it was there before you bought the property then you have no compensation rights. They would have had the right to lay the drains and if you we're to search the council records and the plans you would be able to track the history of this pipeline. Typically they are laid as part of a subdivision so looking through the council records will find this.
christhelawyer : For your alterations, they are entitled to protect the pipeline and require safeguards. The encumbrance is not a difficult document and your lawyer should be able to draft and register this.
christhelawyer : The legal basis for this is in the Local Government act section 181 which says
christhelawyer : (1)A local authority may construct works on or under private land or under a building on private land that it considers necessary for—(a)the supply by territorial authorities of water by means of reticulated systems:(b)the supply of water through water races:(c)trade wastes disposal:(d)land drainage and rivers clearance.(2)A territorial authority may construct works on or under private land or under a building on private land that it considers necessary for sewage and stormwater drainage.(3)A local authority or a territorial authority, as the case may be, must not exercise the power in subsection (1) or subsection (2) unless it has—(a)the prior written consent of the owner of the land to the construction of the work; or(b)complied with the requirements of Schedule 12.(4)A local authority may enter the land to inspect, alter, renew, repair, or clean any work constructed under this section or under the corresponding provision of a former Act.(5)The power in subsection (4) must not be exercised without first giving reasonable notice of the intention to enter the land to the owner and occupier (if any).(6)This section applies subject to the Public Works Act 1981 as to compensation for injurious affection to land.Compare: 1974 No 66 s 708Section 181(1)(a): substituted, on 7 July 2004, by section 18 of the Local Government Act 2002 Amendment Act 2004 (2004 No 63).
Customer:

Thanks Chris.

Customer:

What say it has not had a) the written approval of the prior landowners or b) complied with requirements of section 12. ( I have read this is about public notices and objections)

christhelawyer : This does happen, but the remedy is usually to get the consents retrospectively or pay compensation. It is doubtful the pipeline could be removed.
Customer:

Okay that has been very clear thank you very much > I will do some digging at the council.

christhelawyer : they will hopefully have good files to check this, but don't always
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