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WA Local council wants to restrict our park access

Discussion in 'Property Law Forum' started by Loui, 21 July 2014.

  1. Loui

    Loui Member

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    Hi folks, I'm so glad I found you, I'm really hoping you can give me some advice.

    I live in a strata title community in Perth, and our common property borders the local park. We always assumed that the alleyway through the middle of our complex was for public access to the park - there is a water corp building in the park, and as we have easements for water stuff we'd assumed there'd be something similar for our park access. Many members of the public also use the alleyway as it is near the local bus stop, in the 7 years I've been here I've never heard of any problems.

    Unfortunately some other residents have decided they want to keep the park to themselves, and have trumped up tales of miscreants using the alleyway to abscond after criminal acts. They've managed to persuade the local council to install a fence blocking off the park from our alleyway.

    Now if the alleyway does not allow us to freely access the park then that large section of common property becomes a dead space, of no use to us, whatsoever, and will only be liable to attract the dumping of refuse and other antisocial activity. Surely the council can't negatively impact our use of our land, our amenities, if you like, without any community consultation whatsoever?

    Thanks for reading :)
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Loui,

    - Do you know who owns the alleyway, and separately, the park?
    - Is the alleyway the only access to the park?
    - How long have you been using the alleyway, and separately, accessing the park?

    The water company may have an easement or licence to access the land and/or use the land for the purposes of providing water to the complex. However, this interest is given to the water company and is not related to any residents or users of the water company's services.

    You may contact your local council and enquire as to why the fence was built, who owns that particular block of land, and whether any notices were in fact put in place for nearby residents to object. Without knowing who owns the land, or who has power to manage the land, it is difficult to assist you further.
     
  3. Loui

    Loui Member

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    Hi Sarah, the alleyway is owned by our strata company - the "body corporate", but the park is owned by the local council. The park is open to the street on the other side, but the alleyway has been used by the public for at least 20 years with no problems, it's a shortcut to the bust stop for some.
     
  4. Loui

    Loui Member

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    Well I'm hoping that I've found my answer in the Local Government Act 1995 (WA). Section 3.52 para 2 states :
    "Except to the extent that it is authorised by law to close them or restrict their use, a local government is to ensure that public thoroughfares are kept open for public use. "(Source http://www.slp.wa.gov.au/pco/prod/F...ernment Act 1995 - [06-d0-01].pdf?OpenElement)

    Our footpath has been used by the general public for nearly 20 years, so I think it should be a de facto public thoroughfare, no?
    But even if it isn't a thoroughfare for the general public, it is certainly a thoroughfare for the portion of the public that live in my strata community - after all a thoroughfare is defined as a transportation route from one location to another - namely our community and our park - it would not seem appropriate that this thoroughfare was defined as a transportation route from our community to the edge of our common property.

    Please let me know what you think!
     
  5. Sarah J

    Sarah J Well-Known Member

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    Hi Loui,

    There are a few possible options you can take:

    1. You can look into Easements by Prescription

    An easement by prescription is an easement (or right of way on another person's land) created through long use. The period of time is generally 20 years or more. This means that the landowner (Body Corporate of the Strata Company) (i) knew about the use of the path by people in the area, (ii) did not grant permission for the use, (iii) but did not prevent the use either, (iv) for a continuous period of 20 years or more (collectively known as acquiescence). When all four elements are there, there may be an easement created by prescription. Where this happens, the owners of the land using the right of way, and their successors in title, gain an interest in the land. This interest allows them to the right to use the path as they had previously done so for the past 20 years or more. An easement by prescription is a common law principle (ie. not created by legislation) and is applicable in Victoria and Western Australia, amongst other states:
    Di Masi v Piromalli (1980) WAR 57.

    You can read up more about easements by prescription in this document. As mentioned above, the rules in Western Australia are very similar to that in Victoria: VLRC report on easements (start at page 50).

    2. You can try speaking with your body corporate. A Body Corporate is supposed to manage the property as well as represent the interests of the co-owners of the land/building. There is generally a way to bring matters to the attention of the Body Corporate, perhaps through the Manager. Body Corporates of a Strata Company situation will have their own dispute resolution procedure. You can look into that and bring up the matter through this procedure. If the matter is still unresolved, you may bring the dispute up with the Western Australian State Administrative Tribunal: lodging a complaint with SAT. However, it is recommended that you try the internal dispute resolution procedure first.

    3. If you are unhappy with the decision of your local council, you may separately lodge a complaint against the Council through Ombudsman Western Australia. It is free to call them, make enquiries, lodge complaints and use their dispute resolution procedure. Note that OWA has limited jurisdiction so it is best to enquire beforehand.
     
  6. Sarah J

    Sarah J Well-Known Member

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    In response to your question above, the Local Government Act 1995 (WA) provision in relation to public thoroughfares may not apply because the land is not public land. Rather, it is private land owned by the Body Corporate of a Strata Company.

    I believe what you are arguing here is more resembling of an easement by prescription.
     
  7. Loui

    Loui Member

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    You're awesome Sarah, thanks so much for thinking of this, it looks exactly like the info I need. Thank you very much and have a great weekend!
     

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