Background
Council received a complaint regarding vehicle use associated with one of the two walks in Lauderdale, seeking reinstatement of timber bollards that were previously in place (now cut off at ground level). Council officers initially wrote to residents (letter dated 20 July 2021) advising that the posts would be reinstalled.
Following council’s initial advice, several residents contacted council expressing concern that access to each walk would be restricted. Initial enquiries revealed that two or three caravans and trailers were being stored by residents in the walks, and that some residents used the walks to access their properties to deliver materials such as garden materials. Residents also raised the narrow width of Seamist, Longview and Sanddune Courts as a reason for needing access to their properties via the relevant walk.
The General Manager and Deputy Mayor met with four local residents on 8 August 2021 to hold an initial discussion regarding the operation of the title conditions and the process for amendment. While there were some differing views on a way forward, there was general agreement that a survey of property owners was an appropriate first step.
The petition seeks consultation prior to any decision to block vehicular access to each walk.
The original subdivision plan (circa 1973) was based on the ‘Radburn’ design. Review of the original subdivision file indicates that there is considerable correspondence between council, the developer’s solicitor, the Land Titles Office and the Town Planning Commission regarding the intent of the subdivision and how lots were to be accessed.
The land titles relating to each walk vests with council and include easements giving effect to how the walks may be used. A copy of one of the land titles is provided on this page. The upshot of the easements is that, aside from service vehicles, no other vehicles are permitted to use the walks as a means of access to a property or for any other purpose. This means there is no legal option for residents to drive their vehicles up either walk, nor is there any option to park a vehicle, caravan or trailer in the relevant walk.
To amend the easements would require a Petition to Amend process to be undertaken. There is no other option available. To gauge whether there is support for such a change, and the extent of any preferred change, it was suggested that a survey of property owners that abut either Seamist or Longview Walks be undertaken. A survey of property owners (as opposed to residents) was suggested given that a Petition to Amend process deals with changes to land titles, which vest with property owners. Some residents may not be the property owner, and therefore do not have a sufficient interest in the land within this context.
What is the process for a Petition to Amend?
In simple terms, the Petition to Amend process is as follows:
- A person who has an interest in the sealed plan, that is someone who has an estate or interest at law (ie an owner or a mortgagee) (“the applicant”) makes application to council requesting that a sealed plan be amended.
- The applicant has to notify all interested parties on the sealed plan with a copy of the application.
- An interested party has 28 days to indicate if they object and wish to be heard in respect to the application.
- If there are no objections, council may proceed to amend the sealed plan.
- If there are objections, council must hold a hearing to hear those objections. There is a hearing fee of $1000 which must be paid for by the applicant.
Council has policy and procedures for applications to amend sealed plans which is provided in the documents section of this page.
