WA Easement Dispute - Who is in the Wrong?

[SimonWheeler]

Hi,

I am a beneficiary of an easement registered in a title (a right of way not a crown easement) that is being terminated by a development (20 units) adjacent to our property.

The Council (City of Stirling) have told us that this is a `civil matter` and that we would have to take the developer to court if we are to stop the encroachment.

I understand that if we brought this matter up after the development was complete that this would be our only recourse, however we brought this issue to Council prior to the building certificate being issued (against plans that clearly show the encroachment). Everyone accepts that we have rights re the easement but everyone tells me it can only be addressed via Supreme Court Action.

This was a certified application for an opt-in JDAP approved development (the approval noted the existence of the easement).

Q1. Who is doing the wrong thing here? The builder, the Council or whoever signed the certificate of Design Compliance? (all 3 are/were fully aware of the existence of the easement)

Q2. The building commission say that the Certified Surveyor does not have to take into account work affecting other land yet I am sure the Building Act 2011 says it does and I was under the impression that they have to work under the constraints of that act.

It's annoying because so many references note how well protected in law easements are, yet I am finding the opposite.

Any ideas or input much appreciated.

 

[Victoria S]

Generally an easement can only be extinguished by agreement, abandonment by a non-user, alterations made to the dominant tenement, unity of seisin and by statute. If I were you I would get some proper advice from a reputable property / planning & environment lawyer and see what they say because you are not going to stop a development this size without a court order.

In reality if you were going to bring an action in the Supreme court you would probably join all parties as defendants.