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A ROC is listed on our title deeds and lays out the standard…

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A ROC is listed on...

A ROC is listed on our title deeds and lays out the standard to which it must be kept ( Section 88B ) ie. 'a clay soil road generally passable by two wheel drive vehicles '. It also gives the percentage maintenance costs each of the seven landholders are liable for to contribute towards its upkeep. The road at present is of a higher standard than what is the stated requirement. The dominant tenement at the end of this carriageway has had a DA approved to operate a Dog Boarding Facility but is insisting that all stakeholders share in the costs of upgrading the carriageway further , as well as widening its entry point, so as to satisfy council requirements for an amendment to the approval. Since this carriageway has been in existence since the original subdivision in 1996 (on which the council must have signed off before the blocks could be sold ), and has proven quite satisfactory so far , what is our position legally when it comes to works being carried out that are far in excess of the requirements stated in Section 88B ( ie. simply grading and rolling of the carriageway on a regular basis ) ?The conditions for the approval of the DA ,and an amendment , should have nothing to do with us but is a cost which they must bear to satisfy council. They are threatening legal action if we ( other stakeholders ) don't comply with their demands for payment of this upgrading and other works so the conditions set down by council can be met in order for them to legally begin operating their business. Where do we stand ? Regards XXXXX XXXXX --

Submitted: 9 years ago.Category: Australia Law

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11/19/2013

Solicitor: Leon, Solicitor replied 9 years ago

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,712

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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Good Morning

My name is XXXXX XXXXX I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.

To widen the ROC you need to council approval and if the others do not wish to do so they are not required to do so.

If council require the ROC to be improved so that the DA can be approved that is the DA applicants responsibility.

He cannot force you to pay.

You are not responsible of the upgrade it is his responsibility and before he lodged the DA he should have spoken to you all and obtained your consent.

When you received notification of the application did any of you complain to council?

Customer reply replied 9 years ago

Hi Leon ,

We all complained to the council and lodged submissions against the original DA in November last year. We attended the council meeting where it was discussed but to no avail as the council passed the application albeit with some conditions. We have now received another letter from council regarding an ammendment to this DA in which the applicants want to upgrade the ROC , widen the entrance to the road and seal it ( to comply with council to control dust ). The proposed sealant is a polymer based coating which the applicants say is the same as used by council but we have had advice that it only lasts a couple of months. On our title deeds it states that the ROC must be 6 metres wide only and of clay soil ( as mentioned previously ). I assume that this 6 metres would include the driveable surface and associated dish drains on either side of the carriageway.If the ammendment is approved do we have any obligation to pay for any maintenance works in the future, to keep it at the higher standard, other than that set out in section 88b which is to maintain a clay soil road or similar with addition of some gravel if desired?We are not necessarily against any upgrade ( of the surface only ) but if it goes ahead we feel that we should not have to contribute to maintaining it at this higher standard so that it complies with council . All this so that they can operate a business. Could you please clarify this. thanks

Fred XXXXXX

Solicitor: Leon, Solicitor replied 9 years ago

Good Morning Fred

You object to that upgrade and also to the expansion particularly if it encroaches into your lands.

They are making the application and what it approved is their responsibility. You do not have to consent to the amendment.

Unless you consent XXXXX XXXXXe in the ROC and the 88B cannot be registered. If they wish to by-pass you they have to get orders from the Court.

You are under no obligation to do more than the current 88B says you have to do.

If they take this to the Court then you and the others will have to defend it,.

You are under no obligation.

He cannot go ahead without your consent. Particularly if it means an amended of the Deposited plan and 88B instrument with the ROC bing wider.

Does this make sense?

Customer reply replied 9 years ago

If we are simply adherring to the conditions of section 88b in the instrument and as such do not have to agree with or approve any more than that stated , why should we have to defend ourselves? Should not the council be brought into this , rather than us stakeholders , as it is the council that is stipulating conditions that the applicants must meet ( to operate the business ) over and above what we are required maintain?Can the council stipulate that they MUST pay for any upgrading works AND put in writing that they , and any future owners of that property , will be responsible for maintaining the ROC to its new higher standard? In your answer please address each of these three questions.

regards

Fred XXXXXX

Solicitor: Leon, Solicitor replied 9 years ago

Good Morning Fred

That is all you have to do.

If he takes it to court, because you do not consent then the court will have to decide, In that case you have to defend the application otherwise it will be decided in your absence and solely on his evidence.

You have to agree and consent to any changes. Council cannot do anything without it. Any changes have to be registered on your land and your agreement is required or a court order.

They cannot update anything without the other owners agreement and consent.

Does this make it clearer?

Customer reply replied 9 years ago

No , this is not clear. Can we be made to pay for these upgrades even though we are not required to have a road of higher standard than what section 88b states and it is only a stipulation of their DA and for operation of their business?

Solicitor: Leon, Solicitor replied 9 years ago

Good Morning

Only if he gets a court order that approves the Amended 88B and it says that you are liable.

This is why I have said you have to defend the claim if he takes it to court.

You would argue he wants the upgrade for his business and you should not be liable.

The Council cannot approve anything without your consent so it will have to go to court.

IUs this a little clearer?

Customer reply replied 9 years ago

Yes thank you

Solicitor: Leon, Solicitor replied 9 years ago

Good Morning Fred

So do not consent to anything.

I wish you the best of luck

You are very welcome and thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards
Leon

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