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Encroachment by a structure on to a council road 2009/4

Issued October 2009

It has come to the attention of NSW LRS that a number of local councils have implemented a policy whereby the registered proprietor of a parcel which has the residence, garage or front fence encroaching onto the road, has been requested to create a formal lease or easement over the encroachment. As a consequence, the landowner has engaged a surveyor to prepare a new plan of survey to define the extent of the encroachment.

Examination of these plans has identified a number of problems in the titling of the Council owned roads:

In areas subdivided before the commencement of the Local Government Act 1919 (1 January 1920) a public road was not dedicated simply by means of a statement being endorsed on the subdivision plan. Unless the road was dedicated to the public by a subsequent gazettal, ownership of the road remains with the original subdivider (and his/her heirs and assigns). In these circumstances the creation of a lease or easement in favour of the council is not possible as the council is not the registered proprietor of the land comprising the road.

Even where the road has been dedicated to the public, the fee may not be Torrens Title and a certificate of title (either current or cancelled road remaining) may not exist for the land comprising the road. In order for the new easement or lease for encroaching structure to be registered it is necessary for a new plan to be lodged in NSW LRS defining the section of road affected and a new computer folio created. The plan must be accompanied by the appropriate document(s) to enable NSW LRS to create the title a Statement of Title Particulars (Old System Title) or CL45-11 Form (Crown Title land)

Title to an Old System road that has not been dedicated to the public may be obtained by the preparation by the adjoining landowner of a Primary Application (with suitable evidence) claiming by possession that part of the road affected by the encroachment. Alternatively, the council may dedicate the road to the public by publishing a notice in the Government Gazette pursuant to Sections 16 & 17 Roads Act 1993. Another alternative is for the council to require the preparation of a Positive Covenant (registered on the title for the adjoining land) directing the proprietor to undertake appropriate maintenance, upkeep and repair of the encroaching wall or building.

Consequently, it will be necessary for the surveyor to undertake a thorough search of the titling particulars of the land comprising the road to establish whether or not the road has been dedicated to the public and which title system applies for that individual parcel of road. As each situation may well be different it is only at the completion of this search that the surveyor will be able to correctly advise the client as to what action (road closure, possessory claim etc) will be required.

Procedure in NSW LRS

Any new plan defining the site of an encroachment on to the road must be one of survey. Depending on circumstances the encroachment may be defined either as a lot in a new plan or as an easement site.

Torrens

The fee of the road is usually (but may not be) comprised in the certificate of title that was cancelled road remaining by the issue of titles for lots in the subdivision. The status of the road (as being dedicated to the public) will depend on the date of the survey and whether or not a road dedication statement is included on the face of the plan. The charting map must also be inspected to establish whether the road was dedicated by means of a later gazettal. Once it is confirmed that the road has indeed been dedicated to the public a new plan defining the site of the easement covering the encroachment may be registered. The new affecting easement notification will be endorsed on to the cancelled certificate of title.

Old System

A proposed easement over a road comprising Old System title will require the preparation of a new deposited plan. The new plan must define as a single lot the entirety of the road between the nearest cross-streets together with the site of the proposed easement covering the encroachment. Any plan that defines part of a road constitutes a subdivision and will require a completed subdivision certificate. The fee of the road will be converted to Torrens Title by means of a Statement of Title Particulars based on the gazettal that dedicated the road to the public. The new title created for the lot will be endorsed with a notification relating to the proposed easement. Only the boundary affected by the encroachment need be surveyed, all other boundaries of the new road lot may be compiled from adjoining plans provided it complies with all requirements specified in the NSW LRS Compiled Plan Guidelines.

Crown Title

Many roads in older built-up areas constitute original Crown portion and reserved roads which have never been converted to Torrens and/or Old System title. In these instances the charting map must be inspected to establish whether or not the road has been dedicated as public road by means of a notice in the government gazette. The lodging party should then contact Crown Lands in order that a decision can be made as to whether to close that part of the road subject to the encroachment or to create an easement for encroaching structure over the site. In either alternative it will be necessary to define the section of road in a plan of survey (either as a lot or as an easement site) and lodge it for registration in NSW LRS. The plan must bear consent from Crown Lands Division and either be accompanied by a completed CL45-11 document requesting the Registrar General to create a Crown First title for the parcel or an attached Section 88B Instrument creating the easement pursuant to Section 52 Crown Lands Act with the road listed as the servient tenement.

In all cases the plan examiner must confirm the fee of the road (Torrens, Old System or Crown) and whether or not it has been dedicated as public road by gazette.

 

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