Building Act 2011 Building Amendment Act 2012 WA Spatial Industry concerns – Part 2 Colin Stewart...
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Transcript of Building Act 2011 Building Amendment Act 2012 WA Spatial Industry concerns – Part 2 Colin Stewart...
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