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kmslaw, Solicitor
Category: Australia Law
Satisfied Customers: 210
Experience:  I have 15 years legal experience behind me and I graduated from the University of Sydney with First Class Honours in Arts/Law.
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I live in South Australia and have a Council street drainage

Customer Question

I live in South Australia and have a Council street drainage easement across our driveway that the Council laid back in the early 1980s. They raised our driveway above the pipe approx. 150-170mm which now creates a problem with new cars unable to clear the "speed hump". I spoke to the Council and they told me it is my problem to correct it yet a friend told me that in laying an easement it should not in any way alter the lay of the land, is this correct. I have looked at many easement sites on the net but cannot find any 'rules' covering construction guidelines. Hope you can help.
Shane F.
Adelaide. Sth Australia
Submitted: 2 years ago.
Category: Australia Law
Expert:  kmslaw replied 2 years ago.

Hi there Shane. My name is ***** ***** I am a solicitor in NSW who can help you with your inquiry.

I'm doing a few things for Court at the moment but I should be able to help you at around 1.00pm Sydney time today. Would that suit you?

Customer: replied 2 years ago.
That would be fine...Thanks
Expert:  kmslaw replied 2 years ago.

Hello Shane. I'm just looking at this question for you now. I'll get back to you in a few moments. Kylie

Expert:  kmslaw replied 2 years ago.

Hello Shane.

Have you had a look at the actual easement document lodged by the Council in respect of the land? It would be held by the Land Titles Registration Office in your State.

Once you have a copy of that, you can read it to determine what the original easement was that was agreed between the parties in the 1980s and the Council, if there was any agreement at all.

If the easement has been created, however, not by the lodgement of a certificate of easement but by some other legislation creating the easement, you may have a better chance.

The reason for this is that under the Real Property Act 1886 (SA) section 86, if the public (i.e. the public via its Council) has an easement IN the land, (as opposed to over it or on it or along it or across it) then you have no rights to alter that public use:

So the only solution I can think of is if the easement itself as registered with the Land Titles Registration office refers to some other legislation that gives the easement its validity, we could then search that legislation to see whether it overrides this provision or conflicts with it, in order to argue your case.

If you would like further service, namely, I could search the title to the property to unveil any registered easement or reference to other legislation, I will offer you additional service so you can get me to do that and advise you further.

I hope that has helped you today.

Customer: replied 2 years ago.
Kim,thanks for your time on this. My problem is not with the easement itself but with the way the council built it. I own a late model (VE) commodore and the driveway is now difficult to use when entering or leaving without damaging either the front bumper or the floorpan. My friend who is a land valuer and assessor tells me the Council should not have raised the land for the easement above what the land originally was. They had the storm water passing across our front yard to a creek that passes down the side of our property but they needed to enlarge the system to take an expected larger volume. The original easement was not registered as an easement at that time and so needed to have this done when carring out the enlarement. I do have some copies of plans and paper work from the council to the previous owners but not sure if this is what you were talking of. I have requested copies of the original agreement from the Land Title Offices and will have those copies late tomorrow morning. Thanks, Shane
Expert:  kmslaw replied 2 years ago.

Well you had better go back to the valuer and ask him why he thinks that they shouldn't have raised the land for the easement above what the land originally was. What makes him/her think this? Has he/she got access to documents you don't have? If so, they should provide them to you. It will still come down to what the easement authorised and whether it is protected by section 86 or whether another Act overrides that section to allow you to claim Council is at fault for the raised bump. So my answer does not change.

I understand you are concerned with the way Council has built it, but if the easement authorises that public access in and over the land, there is nothing you can do under section 86 unless there is another Act that overrides it.