Building Act 2011 Building Amendment Act 2012 WA Spatial Industry concerns – Part 2 Colin Stewart – SSSI WA Conference May 2013

Site Access 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 s, 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

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. 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 OBriens office & Building Commission. Reply from OBriens office containing legal advice from state solicitors office. Section 86(2)(a) does not allow Magistrates court to authorise an encroachment… which has the effect of permanently impairing the adjoining owners 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 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