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Rights of Way & Land Dedicated as Public Open Space

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Rights of Way & Land Dedicated as Public Open Space

When designing a development or similar it is quite often the case that one needs to grant an Access Way over land to be dedicated as Public Open Space on the Sealed Plan. For ease of explaination lets assume that this right relates to a driveway, an access way; a strip say 4.0 metes wide by, say 80 metres (this helps in understanding the discussion but any right can be in any shape desired).

When asked to register a Sealed Plan the Lands Titles Office sometimes has an issue (at this time, 2014) with this creation as it sees  a Right of Way (Private) as conflicting with the intention of land dedicated as Public Open Space.

It is unfortunate that there are two meanings to the term Public Open Space. The term on the one hand relates to Land dedicated for the Public Use on a Sealed Plan. On the other hand  it describes a land use (how the land is to be used) within a Planning Scheme. So, land shown as Public Open Space on a Planning Scheme does not mean that the public has rights of use over that land; it means that the registered owner must only use that land in accordance with the permitted uses for Public Open Space Zoning as defined within the Planning Scheme.

If land is shown (dedicated) as Public Open Space on a Title or Sealed Plan then it means that it is held in trust by the local authority for the public use. It then follows that the Planning Scheme relating to this locality will  then reflect this dedication as a zoning of Public Open Space when next upgraded.

It is my opinion that the Lands Titles Office should not enter into this issue (with this creation of a Right of Way (Private) conflicting with the intention of land dedicated as Public Open Space). In my opinion use is a zoning issue and not a Sealed Plan Titles Office registration issue.

However, at the moment that is the way they see it; they usually write to the local authority and seek their confirmation that this "conflicting use" is acceptable. Again, it is my opinion that the local authority can do little else than advise acceptability as they have already approved the development and issued a Permit that has generated the sealed plan now lodged at the Titles Office for registration.

If possible, if it is desired that a lot on a sealed plan have Rights (of Way or similar) over land to be dedicated as Public Open Space on that plan it may be wise to create such strip as part of the Lot and grant the public rights over this (access) strip. Note that it is not possible to grant "Public Rights" as such; one needs to achieve this end result by granting an Easement in Gross in favour of the Local Authority

That is, we grant the public access by means of an Easement in Gross over privately owned land, not the private owner rights over public land. To avoid any conflicts it may be necessary to have both the Private & the Council Right of Way subject to Conditions.