CHOICE membership

Council plays ping pong with 89 year old!

Monash City Council refuses to deal with it’s easement. So when a sinkhole opened up in front of the garage in the drive way, it was no surprise Grandma was not keen to drive the car any more. The one brick hole was reported to Council in 2015. From then till now, they tell us to go to their insurers, the insurer’s say go to council and back again. The ombudsman said that since we have a solicitor engaged (necessary because they engaged solicitors) that they can’t help us. They think we are looking for a big payout. We cannot fix the hole(s) because we do not own the easement.

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My understanding is that the whole block is ‘owned’ as such by the title holder - the easement simply grants rights to another party to use a the portion of the title covered by the easement without occupying it. The party granted rights under the easement does not own the land. Is this not the case in Victoria? or is there something different with this easement?

Have the actions or infrastructure of the party who has rights under the easement caused or contributed to the forming of the sinkhole?

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Some Council/Government easements are such that the landowner does not have the right to interfere with them, eg sewerage infrastructure, telecommunications cabling or other infrastructure but not limited to these types. In such cases the person may own the land but does not control it to the extent they can alter it.

The fact that the Council passes the case to their insurer rather than just saying it is the owner’s responsibility points to it perhaps being one of those types of easement issues.

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@draughtrider Yes Grandma owns the whole property, and yes MCC is granted the right to use the strip of land to lay their stormwater pipes. Yes, we believe that MCC has contributed to the forming of the sinkhole. We think it is a result of damage to and non-connection of the domestic stormwater system when they relined their pipe. She has spent thousands on independent reports, obtaining FOI and sending all this to Council, then sending to their lawyers at their request and then their Insurers and them referring back to Council. We just want them to fix their part, so we can close the hole which is now the width of the driveway.

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That’s correct. An easement gives another party rights to use the land for a particular purpose (e.g. power line, access, sewer etc. The owner of the underlying land still own’s the land and is generally responsible for its upkeep.

One needs to look at the terms and conditions attached to the easement to see where responsibilities and liabilities are.

Is the driveway within a registered easement or it is the local name given to the access driveways and the easement isn’t registered.

One can check if an easement is registered by doing a title search at the relevant State government land and title department. A registered easement appears on title.

What caused the ‘sinkhole’?

As you appear to have engaged legal advice, the following is not legal advice but experience with easements for both power lines and access.

Assuming that it is a registered easement, if the sinkhole for example was caused by a leaking pipe owned by Council within its easement, and the terms and conditions state (or silent in relation to) Council is responsible, then it is likely that Council will be responsible for making good any damage caused by the leaking pipe.

If the sinkhole was caused say by soft ground under the driveway causing subsidence…or say a private stormwater pipe from the roof to the street, then generally this won’t be Council’s responsibility but the landowner/driveway owner to fix. I say driveway owner as with units, this may be considered common property and the body corporate may be responsible for fixing.

The quickest way to get it fixed (assuming Council is ultimately responsible and this can be proven beyond doubt) would be to get your solicitor to send Council a letter stating it is there responsibility and why (with beyond doubt evidence), and say that they will be held liable for any any injury to any persons or damage to property which comes in direct contact with the ‘sinkhole’. Usually pushing liability to Councils can trigger action.

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