20 April 2022
11 min read
#Property, Planning & Development, #Construction, Infrastructure & Projects
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In a change that many will welcome, building practitioners who, as part of a regulated design, propose to install a ground anchor under a neighbouring property will no longer be required to provide evidence of a registered easement. Certain other forms of documents evidencing a right are also acceptable (since 1 March 2022).
Last year, the Minister for Better Regulation and Innovation issued the Design and Building Practitioners – Particulars for Regulated Designs Order 2021 (Order) under section 5(3) of the Design and Building Practitioners Act 2020 (NSW) (Act). Schedule 2, clause 3 of the Order required that evidence of a registered easement over a neighbouring property, granting a right of installation for a ground anchor, must be included in a regulated design if any part of the ground anchor is extended onto neighbouring property.
The registration of an easement (whether negotiated or ordered under section 88K of the Conveyancing Act 1919 (NSW)) has many benefits, including that the easement is registered on a landowner’s title of the property, and the easement transfers with the title when the property is sold. However, the requirement of providing evidence of a registered easement created additional challenges for developers and builders. Where the land burdened by the easement had other interested parties, such as lessees or mortgagees, all interested parties must agree to the proposed easement. Even more cumbersome are situations where the easement is sought for burdened land subject to the Stata Schemes Development Act 2015 (NSW), which requires the owners corporation to pass a special resolution before an easement can be granted.
That position has changed under the Design and Building Practitioners Amendment (Miscellaneous) Regulation 2022, which took effect on 1 March 2022. The amendments (among other things) create a suite of provisions as Part 3, Division 3A of the Design and Building Practitioners Regulation 2021 for requirements for building work with ground anchors.
In hand with the new Division 3A, the Order has been repealed and replaced with the Design and Building Practitioners – Particulars for Regulated Designs Order 2022.
The changes introduce flexibility for the method to show that there is legal authority to place ground anchors on neighbouring properties, where any of a licence agreement, a deed or an easement will constitute a satisfactory ground anchor installation right document.
Where the neighbouring land is a public road, the requirement for consent under section 139 of the Roads Act 1993 (NSW) is maintained.
The changes also create different classes of ground anchors, namely encroaching, temporary encroaching and removable encroaching. Each of these classes has different requirements.
For removable encroaching ground anchors, building practitioners must:
For temporary encroaching ground anchors, building practitioners must:
Design practitioners are still required to provide particulars for regulated designs, such as specifications for ground anchors that are inclusive of the requirements set out by AS 4678, and provide plans that include information regarding the site boundaries, the location of all ground anchors, and any associated shoring or retaining wall system. The full list of particulars for ground anchors can be found here.
The introduction of the Order requiring building practitioners to provide evidence of a registered easement created a flurry of concern among market participants. The relaxation of this requirement is undoubtedly a relief to many.
Authors: Christine Jones & Lauren Boswell
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NSW
Bills assented to
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Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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