Building Act 2011Building Amendment Act 2012WA Spatial Industry concerns – Part 2

Colin Stewart – SSSI WA Conference

May 2013

Site Access

Work Affecting Other Land

http://www.buildingcommission.wa.gov.au/industry/work-affecting-other-land

When consent may be required (but not required for a permit to be issued)

Point 6: Building workers accessing adjoining land for the work or conducting a survey in relation to the work.

Form BA20A – To be used when points 3 to 6 above apply and consent is required, after the building permit is granted.

If proposing to build a boundary structure or accessing adjoining land, consent can also be in the form of an exchange of letters or emails, however this must contain all the information prescribed on the form. This includes a clear description of the works proposed, how the land will be affected and when, and details of the person responsible for the work.

Site Access

Site Access

http://www.buildingcommission.wa.gov.au/industry/work-affecting-other-land

What if the builder starts work prior to obtaining consent?

Local governments can enforce non compliance with these requirements. If consent is not obtained affected owners should contact their local government. A penalty of up to $25,000 applies under the Act.

http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_12333_homepage.html

Building Act 2011 – Part 8 – Enforcement

Local Government

Building Commission – Fee

Designated Authority

Must be registered and carry a photo ID

Land Encroachment

SSSIWA CIG & Member concerns

Sections 76, to allow encroachments;

With consent

With court order

It is only minor

It is a ‘prescribed circumstance’ – which are yet to be determined

Section 77, to allow adverse affect;

Section 78, to allow protection structures;

Section 79, to allow work to party walls;

Section 80, to allow access and/or remove fencing;

Section 81, to allow access in an emergency and;

Section 82, to allow access to remove any encroachment that does manage to occur.

Section 86, restricts and applies conditions to the above

Land Encroachment

SSSIWA CIG & Member concerns

The concern;

No requirement to record these encroachments / court orders against title

May enable adverse possession / Property Law land claims

Agreements by court order / parties / individuals

Agreements between parties not land parcels

Land Encroachment

The Story

SSSIWA CIG & Member concerns

Letter campaign with Minister O’Briens office & Building Commission.

Reply from O’Briens office containing legal advice from state solicitor’s office.

‘Section 86(2)(a) does not allow Magistrates court to authorise an encroachment… which has the effect of permanently impairing the adjoining owner’s land rights.’

‘… consent to an encroachment given by an adjoining owner under section 76 of

the Act does not impair their land rights.’

My apologies for misleading

Land Encroachment

SSSI Course of Action;

May suggest caveats / timed easements

Section 86(3)(b) – reasonable alternative

Record Encroachments in your Field Notes

Add court decisions

Add letters of agreement

Add references to what parts of the Act is being applied

Add a copy of the Ministerial Letter?

Land Encroachment

SSSI Course of Action;

Record events to establish amount & severity

SSSI to create an email address and standardised form

Detail: Surveyor

Permission to use as example or for numbers

Location (optional)

Date

Description of issue

Description of solution

Copy of field notes / diagrams / sketches (as comfortable)

Present future findings & trends to SSSI

Advise Govt. if applicable