single Mum's Terrible Experience: council's missing documents
Jennifer Peace’s experience since 2017, when she bought a block of land at Manly to build a home for herself and her two girls highlight an issue that has recurred since the forced amalgamation of the Manly Warringah and Pittwater councils in 2016: – missing or out of date documents.
On Channel 9’s A Current Affair program this week, Ms Peace explained purchasing a 250 sq.m. block in Manly after doing her own ‘due diligence’. This included contacting Northern Beaches Council to ascertain if there were any restrictions applying to the land. After being informed there were not she went ahead and bought the land only to discover, on putting in a Development Application, that two council stormwater pipes run across the middle of her property.
Five years later, Ms Peace is still paying rent on top of her Manly property mortgage as Northern Beaches Council blocks her from building on the land due to the pipes.
She has now accumulated more than $100,000 in land tax fees, a state tax required for people who don’t build within the first four years of owning land, Ms Peace said.
To build, she would have to pay for the pipes to be removed herself and give up a portion of her land to the council, Ms Peace told a Current Affair.
“I know they made a mistake, and the price I’ve paid is way more than financial,” she said.
“It’s emotionally destroyed me. I don’t sleep and my children have grown up without a home.”
Yet, despite council objection, its mapping systems showed “no burdens or constraints”, leading Ms Peace to believe when she bought the site it was a clear block ready to build on.
“The council paperwork clearly state there are no issues with the land, yet when I try and build they tell me there are massive issues with the land,” she said.
Ms Peace stated she spoke with the council’s Chief Executive Officer who had assured her the issues would be resolved in two weeks, but two years later the only way forward would leave her with a bigger financial debt and less land space, she said.
“They said, ‘You can build if you take our pipes out and remove them and replace them and you pay to do that, and also we’re going to take approximately a quarter of your land off you as an easement’,” Ms Peace said.
“Who does that?”
Ms Peace’s lawyer Arthur Carney said the council had not disclosed the pipes on any documents.
“It’s a terrible affront to any kind of notions to decency or fairness,” Mr Carney told A Current Affair.
“It’s one of the worst I’ve seen in 40 years of practice.”
Ms Peace’s neighbours are supporting her in her battle to build her dream home, saying the process is “a joke”.
Ms Peace said she worked from 5am to 11pm seven days a week to support her two kids and just wanted to prove to them “you could do anything in this country”.
Her discussions with the council are ongoing.
Northern Beaches Council said they have done everything in their power to assist Ms Peace, fast tracking assessments of her development application, deferring her bond payment and writing to Revenue NSW to support her tax exemption application.
Northern Beaches Council’s Statement to A Current Affair re property in Manly (under Media Releases on their website) reads:
‘’Wednesday, 31 August 2022
The story which aired on A Current Affair last night did not reflect Council’s involvement with Ms Peace and our endeavours to support her to have her issues resolved. The following statement was provided to A Current Affair prior to the story airing:
Since becoming aware of Ms Peace’s situation, Northern Beaches Council has done everything in our power to assist Ms Peace including fast tracking the assessment of her development application, deferring her bond payment so she could obtain a construction certificate and writing to Revenue NSW to support her application for a tax exemption.
On a number of occasions Council has encouraged Ms Peace to submit a Claim for Compensation to cover the stormwater pipe relocation cost. The last correspondence with Ms Peace regarding this was in July 2021 where she was provided with, and encouraged to complete, a claim form and provide the relevant documentation.
To date Council has still not received this claim and we would again urge Ms Peace to submit it as soon as possible so her claim for compensation can be assessed.
It is noted that at the end of the A Current Affair story that Ms Peace said she is not willing to submit this claim unless the outcome is guaranteed. We cannot pre-empt the outcome of a compensation claim which we have not yet received.
However, over the past two years, Council has encouraged Ms Peace to submit the claim which could cover the stormwater pipe relocation cost and correspondence received from Ms Peace last year indicated she would do so. Again, we urge Ms Peace to submit her claim so it can be promptly assessed and the issue resolved.’’
My husband and I have been through a similar experience, wherein a neighbour complained about a building at the front of our property, which was in place when we bought well over 20 years ago. We then spent a decade going through the process to gain approval for the building, only to have a letter from Northern Beaches Council stating it was an ‘illegal’ dwelling, and giving us 14 days to respond. The letter had arrived just before that time elapsed. The impact of documents ‘misplaced’ when all three councils were forcibly amalgamated has not only featured in correspondence to this news service from residents it has been experienced first-hand!
The letter sent to us stated ‘A review of Council records is unable to locate any approvals for the development’ and ‘Under the Environment Planning & Assessment Act 1979 Council is empowered to serve Orders for the removal of the unlawful development at the premises without development approval or cease illegal land use’ and, in closing; ‘You may wish to seek your own private legal or planning advice in this matter’.
We felt intimidated by the letter, however, fortunately, no expensive legal or planning advice was needed as one of us keeps all HOUSE documents handy. The approval granted by Pittwater Council in 2012, after enormous expense accrued providing the documentation, forms part of that file. And thanks to the internet, we didn’t have to rely on Australia Post to get it back to the council – just in time.
It did make us wonder though – where are all the documents now? And although it’s worth bearing in mind our experience was only two years after the forced amalgamation and when the council must have been overloaded trying to move all these systems into one, Pittwater Council was fully digitised prior to being subsumed. Further, millions had already been spent by the NBC moving three systems into one.
A few years back, when trees were removed at Bilgola Beach that the council promised to retain, more documents appeared to be missing. A few emails to the editor became an avalanche, with some correspondents even opining that records from Manly and Pittwater Councils were now ‘dumped’.
Ms Peace’s case also brings up the issue that pipes installed and easements made can, in some cases, date back to the first subdivisions of lands in this area. For instance, research for an upcoming history page on Mona Vale’s Black Swamp area, on the present site of Mona Vale Golf Course, had runs of water into the Mona Vale Beach flat area under the hill. The land sales illustrated in lot after lot the pipes those streams were encased in and the easements built into those lands sales – some over one hundred years ago.
Ms Peace’s block came up for sale in May 2017, obviously soon after the council amalgamation. Did this mean all the paperwork for the whole area and three councils was thrown into the air, and council could not provide the required and on title information to save her years of heartache, financial loss and mental stress?
When a resident outlays $1.5 million on a block of land because they have been informed by the council it’s good to build on, and then finds that council that council blocking from doing so, it’s understandably distressing. It’s also ridiculous to require part of the land be handed to it as an ‘easement’, which would then preclude the block from development due to it being smaller than the 250 sq.m site required in NSW for a development, not to mention requiring the owner to upgrade council’s pipes at their own expense and then ‘apply for compensation’. You can understand 5 years of this is too much and why Ms Peace was driven to ‘go public’ with her experience.
A specialist in this area states;
‘When it comes to things like pipes through people's land, it is the same. If council or any other authority wants to have an easement through your land, they must pay for it and put it on title. They cannot just point to an old pipe and say “well, it’s already there, and it’s our pipe, so that’s tough luck to you”. In most cases it will amount to a trespass, to be using someone else’s (land) without permission. And to lay your infrastructure in someone else’s land without having their permission – and not having any interest recorded on title – is no exception. This is why we have a system under Australian Property laws of registering easements on title – so that future landowners can be aware of what exactly they are buying, and whether there are any encumbrances or other restrictions on the full and free use of the land.’’
‘I’m an expert in this area of law and in my 20-year career, I’ve only seen it come up a few times, and I think that has been because of a lack of understanding by property owners that they have rights in this regard, that councils or government authorities cannot just insist that they be granted free easements over private property, or that development projects be redesigned to avoid these existing council pipes that are not registered on title. I believe many landowners simply put up with being told that they have no rights in these scenarios.’’ Retrieved from: https://www.stellenconsulting.com.au/stellen-blog/2020/4/13/more-yield
Apart from Council not having the correct documents accessible at the time of the sale, why didn’t those who subdivided the land, ready to sell, know? Why didn’t the real estate agent selling the lot know?
Under the Australian Consumer Law (ACL), both vendors and agents are legally required to disclose known information or material facts, which is crucial to a person (buyer) when deciding whether or not to purchase a property.
According to Fair Trading NSW - reforms that commenced on March 23rd 2020 - an agent could still be in breach of the law for failing to disclose a fact even though they didn’t know about it.
In NSW, sellers are required to provide or disclose the following by law;
- A contract of sale including a copy of the title documents, drainage diagram and a current Zoning Certificate issued by the local council.
- If the property for sale has a swimming or spa pool, the seller needs to give a copy of a valid certificate of compliance, a valid occupation certificate, and evidence that a pool has been registered or a valid certificate of non-compliance.
- If the property has been subject to flooding from a natural event or bush fire in the last 5 years.
- If the property is subject to significant health and safety risks.
- If the property is listed as containing loose-fill asbestos insulation that is required to be maintained.
- If the property was the scene of a murder or manslaughter within the last 5 years.
- If the property was used for manufacture, cultivation, or supply of prohibited drugs in the last 2 years.
- If the property has any external combustible cladding, even if there is the intention to rectify it.
- If the property has been lodged under the ⦁ Environmental Planning and Assessment Act 1979 for rectification of the building regarding external combustible cladding.
- If the property is under a building work rectification order, prohibition order or a stop work order.
Sellers are obligated to disclose whether an easement exists, whether it is listed on a title search or not. If an easement exists, you should disclose it.
Every single easement, or encumbrance must be disclosed in the Contract.
Easements come up very commonly in situations including;
- Services – where drainage, sewerage, electricity, or water infrastructure runs across your property for the benefit of a neighbouring property, or for an Authority like Energex, Unitywater or the local Council. This easement allows the services to run across your land, and allows the Authority to maintain the infrastructure.
- Access – where a neighbour’s driveway to the street runs across their neighbour’s land.
- Stormwater – in low-lying or sloping properties, it is common for Councils to require that stormwater be able to run over part of a property – the easement is usually in favour of Council, and the owner is not allowed to build on the easement area. Retrieved from fclawyers.com.au/sellers-disclose-easements
Thousands of people have sent messages of support to Jennifer Peace. But that won’t help her meet the huge financial burden she is facing or mitigate what she states she has experienced in her dealings with Northern Beaches Council, over the ‘easement’ issue.
Although it looks like yet another abysmal paperwork fail from the outside, this has created years of problems for this woman and impacted on her own and her girls lives. It would appear, from the reference above, that it is not up to residents to ‘seek compensation’ after they’ve done the council’s work or hand over land for easements. There is a process and laws, especially around the relocation of a stormwater pipe or handing over land to create an easement.
Should this matter proceed to court it will not be good for Ms Peace, the council or the ratepayers who will foot the bill, again.
For those who missed the A Current Affair report, 'We have no home': Woman claims Aussie council ruined her life', is available online here