Absorption Easement means the right for a person authorised to do so to construct, maintain and drain over specified parts of another persons land for the removal of water and other surplus water as defined, but without doing unnecessary damage to the other persons land. See Absorption Drain.

SIMPLY:

This means that you cannot restrict the right of someone to construct and maintain pipes and drain to that portion of a title that is defined as 'Absorption easement', nor can you build a structure over such area. Absorption Easements usually relate to the right of another to dispose of effluent within the easement area.

HOW WE ASSIST:

We can determine the location of such an Absorption easement on the ground and on plan to allow the design and construction of structures that do not intrude on this right. 

An Access Way is similar to a Right of Way. A Right of Way has a pre defined interpretation as to its use and meaning on a Sealed Plan. An Access Way is similar but its 'interpretation' can be structured and defined by the creator of the right to mean definable uses (eg an Access Way means a right of carriageway for the local Fire Authority to pass.......)

Accretion means the gradual movement of a natural boundary along the seashore, a river or a stream. The movement must be natural in its course and progress and not be visible on a daily, weekly or monthly basis. Accretion can be by alluvion (the washing up of sand or soil to become firm ground) or by dereliction (where the usual water mark shrinks below the land).

Ad Medium Filum: Relates to Property Law concerning ownership adjoining non tidal waterways (and Roads but now has little effect with roads)

 

See our Blog at Ad Medium Filum

You will note when costings are given or estimated that there is a list of 'add ons' reflecting costs that cannot be predicted with any certainty. These add ons appear as follows:

Time and costs to date + {Search + time on Pre Field Calcs + SIO preparation (see web page)} + (out of pockets eg travel) + gst where applicable.

Taking each one in turn:

Time and Costs to date: This reflects time and costs that may be generated dealing with your matters prior to the issuing of your instruction to undertake a field survey. Most of the time it is minimal.

Search + Time on Pre Field Calcs:

Search is predicatable in 90% of cases. It usually runs to under $50 + time involved which usually runs to under $70. This search is then used to undertake Pre Field Calcs. These calcs can generate a need to purchase additional Search or Search from the Central Plan Office in addition to the Lands Titles Office. These searches are charged by the Department at time and costs. Assessment of Search information varies a lot depending on the age and complexity of the search but can be expected to be $120 to $250.

Pre Field Calcs are more difficult to predict. Read this Link, Pre Field Calcs. Age of information and difficulties with interpretation or intergratrion will effect this time. Such calcs are never less than $250 and can extend to $500 or more. It is sometimes necessary to take the initial field work back to the office and process there with the added facilities of a larger computer monitor and printers etc. These are termed Intermediate Calcs.

SIO Preparation needs to reflect what was done by the surveyor in the field to register work undertaken on your survey. Read SIO. Again never less than $250 and often $500 or more.

Equipment Hire, self explanatary as required.

Out of Pockets eg travel. This is simply travel time + a rate per kilometre + Incidentals such as Survey Pegs, Stakes and Steel Droppers. Further, Hire of Specialized Survey Equipment is often more cost effective than involving additional Field Hands at an hourly rate.

GST; we are all subject to this tax

Adhesion order means a planning instrument under the seal of a local council that joins two or more blocks of land together as a single parcel, the title that is subsequently created cannot be separated without further council approval.

SIMPLY:

A process where an owner makes application to Council, often as a result of planning approval that joins two or more adjoining titles together. It does not need field survey, is a simple and cheap process

HOW WE ASSIST:

We can organise the necessary documentation and lodgement with Council through to issue of the new title.

Adverse Possession

CLAIMING TITLE BY ADVERSE POSSESSION

See also Easement by Possession, Claiming of

Background

The requirements of adverse possession can be found in Part IXB of the Land Titles Act 1980 and allow a person to claim land they have been occupying for a long period of time, but don’t own, by applying to the Recorder of Titles for a vesting order to have the title registered in their name.

Occupation requirements

The occupation of the land must have been “as of right”, meaning open, peaceful and without the land owner’s permission.

An application cannot be made if the occupation has been secretive, by force, or by agreement with the land owner.

The occupation must have been continuous and to the extent that the land owner knew, or ought to have known of the adverse occupation.

There are other ownership and occupation requirements in the legislation that need to be addressed by an occupier when making application to claim land.

Periods of occupation

In broad terms, the Limitation Act 1974 provides that a title owner who is dispossessed from his or her land cannot recover that land after the expiration of 12 or 30 years.

An occupier must prove a period of 12 years’ continuous occupation against a title owner capable of defending his or her own land.

An occupier must prove a period of 30 years continuous occupation if the title owner is the Crown, is deceased or is under disability guardianship.

The payment of rates

An occupier cannot claim title to another persons land whilst the title holder has been paying rates on his or her land, therefore any period of time during which the Council rates have been paid by, or on behalf of, the title holder is to be disregarded.

This provision does not apply if the Council certifies in writing that it is unclear who has paid, or who is paying, the rates on the land under claim.

Supporting evidence

Adverse possession involves both the mental and physical control of another persons land, such that on a daily basis people would consider the occupier, by his or her actions on the land, to be the land owner.

At least one other independent person must produce evidence, usually in the form of a statutory declaration, to confirm the land has been occupied by an applicant over the period being claimed.

Plan of survey

An application for title based on long possession is to be supported by a plan of survey prepared by a registered land surveyor, unless the Recorder directs otherwise.Avoidance of sub-minimum lots

If the Recorder is unsure whether the granting of an application would result in the continuation or creation of a sub-minimum lot, the Recorder may require an applicant to produce a certificate from the local Council.

The certificate must confirm that the block is not sub-minimum, or if it is, that the Council consents to the application. This action ensures that the granting of an application will not be in contravention of a Council planning scheme.

Public notice

Before making an application the applicant must arrange with the Recorder to-

·        

Give notice in a locally published newspaper

·        

Give notice to any person with an interest in the title

·        

Give notice to any person with an unregistered interest lodged with the Recorder

·        

Post a notice on the land.

Caveat forbidding granting of an application

Any person with an estate or interest in the land being claimed by an occupier may lodge a caveat with the Recorder forbidding the granting of the application, should such an application affect their interest in the land under claim.

 

 

Aerobic Wastewater Treatment Systems (AWTS), or Package Treatment Plants:

There are a growing range of on-site wastewater treatment systems available today including the traditional Septic Tank system along with newer treatment systems such as Aerobic Wastewater Treatment Systems (AWTS), Wet Composting Systems, Sand Filtration Systems and Electro-flocculation Systems.

1) Traditional Septic Systems - Septic tanks have been used in un-sewered areas for many years as the most suitable form of primary treatment of sewage.

The septic tank is an underground watertight tank generally constructed of concrete or plastic which is usually divided into at least two compartments. The tank receives all sewage and separates the solid portion of the waste from the liquid portion. The liquid portion (effluent) passes out of the tank after approximately 24 hours.

The tank performs three functions:
 It acts as a settlement chamber for solid materials
 It allows some bacterial breakdown of waste materials to occur
 It acts as a storage chamber for undigested solid materials which must be removed periodically (usually every 4 years)

A number of problems can arise from their use and poor maintenance including:

 Sludge accumulating in the tank filling household pipes may become filled with sewage and clogging of the subsoil soil trench system solids.
 Effluent rising to the surface posing a risk to public health, particularly to children playing in the vicinity.
 Unpleasant smells emanating from the system.
 A breeding ground for mosquitoes
 After a number of years of use, some soakage systems may fail and require replacement.

2) Aerobic Wastewater Treatment Systems (AWTS)

An aerobic wastewater treatment unit is designed to treat septic tank effluent to a level suitable for surface irrigation within the site. The unit may incorporate a septic tank or it may be separate. Following primary treatment in the septic tank, the effluent is treated by a process of aeration, settling and disinfection and then pumped to a dedicated irrigation area as reclaimed water.

Aerobic wastewater treatment systems have a series of treatment processes such as aeration followed by clarification to breakdown and treat the wastewater, which is then disinfected, usually by chlorine, before pumping the treated effluent over the land.

SIMPLY:

There are now a number of acceptable options available including the traditional septic tank.

HOW WE ASSIST:

We are closely aligned with professionals who can advise and assist with the design and construction of an acceptable waste water system. 

Agent or Agency An agency is the lawful relationship that exists between two (or more) people where one (the agent) is authorised to act on behalf of the other (the principal) to do certain things that involve third parties. For estate agents, they represent their vendor or property owner/landlord (principal) in presenting property to third parties (buyers or tenants) and negotiating a sale between seller and buyer on behalf of the seller or a lease between property owner and tenant on behalf of the property owner. In most States, laws governing estate agents requires that agents must always be appointed in writing to legally have a claim on the principal for the payment of commission. 

See

Strata Title; Amendment to a Strata Title

 

Note on the second sheet Page 2 of the "S" listing in Glossary

Appeal:Many decisions made by local councils in respect to planning applications, and orders made by the Recorder of Titles in respect to strata title dispute resolution, are subject to appeal. Depending on the decision made, an appeal may be made to the Resource Management and Planning Appeal Tribunal or the Supreme Court. 

The Resource Management & Planning Appeal Tribunal issued the following guide to the Public:

YOUR GUIDE TO THE RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

APPEALING TO THE TRIBUNAL

The Tribunal hears appeals under the following Acts:
· Land Use Planning and Approvals Act 1993.
· Environmental Management and Pollution Control Act 1994.
· Cultural Heritage Act 1995.
· Living Marine Resources Management Act 1995.
· Marine Farming Planning Act 1995.

Those Acts state what decisions can be appealed and who may appeal.

LODGING AN APPEAL

To appeal a decision, complete and lodge a ‘Notice of Appeal’ with the Tribunal. Forms are obtainable from the Tribunal office.

Notices of Appeal under the Land Use Planning and Approvals Act 1993 must be lodged with the Tribunal within 14 days from the date Council’s decision was posted to you or otherwise served on you, or in the case of appeals under other Acts named above, within 14 days from the relevant decision.

A $50.00 fee applies on lodgement of your appeal.

JOINING AS A PART TO AN APPEAL

You may apply, in writing, to join as a party to an appeal if your interests are affected by the decision appealed against. You may be restricted to arguing only those points directly raised by the original appellant.

Apply to join before the directions hearing; if you do so later it may cause cost and delay.

DIRECTIONS HEARING

A directions hearing is a preliminary meeting of the parties either before the Registrar or a Tribunal member. It is usually held within two weeks of lodgement of the Notice of Appeal.

Directions will be given as to the supply of all evidence to each party and the Tribunal prior to the full hearing.

At this hearing you may request documents from the other parties to assist in structuring your own case. Directions will be given as necessary.

One purpose of the directions hearing is to see whether the appeal can be resolved by mediation or whether it will need to go to a full hearing.

MEDIATION

Mediation conferences are conferences with the Registrar to allow all the parties to find their own mutually acceptable solution to an appeal, instead of having one imposed upon them by the Tribunal.

Appeals and directions hearings are advertised in the public notices section of your local newspaper so that others whose interests are affected can attend and/or join as a party.

PREPARING FOR A FULL HEARING

In preparation for a full hearing, all evidence you wish to present in support of your case must be in written (proof) form.

PROOF OF EVIDENCE

A proof of evidence is a written statement of the evidence of any witness, including any expect witness.
* Ensure that your expert witness(es) include in the proof of evidence their relevant qualifications.

Evidence in support of your case may include photographs, video/audio tapes, plans or maps, and documents.

As a general rule evidence which has not been given as directed to all other parties is not allowed at the full hearing.

FULL HEARING

SEQUENCE OF PRESENTATION BY PARTIES:

· Firstly, the developer or active party · Secondly, the planning authority (Council) or decision making authority · Finally, any other parties to the appeal.

GIVING EVIDENCE

**IMPORTANT**
Each witness MUST be present at the hearing so that their evidence can be tested by cross-examination from opposing parties. Without the witness being present the proof of evidence may be disregarded.

As all parties and Tribunal members have been given the opportunity to read all the evidence prior to the hearing, there is no need for it to be read aloud at the hearing.

Each witness states their full name, address and occupation and then confirms (and if necessary corrects) their proof of evidence.

CROSS-EXAMINATION

Following the evidence of each witness, the Chairperson invites opposing parties’ representatives and Tribunal members to ask questions of that witness.

*ONLY AS QUESTIONS - DO NOT MAKE STATEMENTS*

When asking questions directly of the witness, it is best to keep the questions short, relevant and concise and give ample time for a response. If you have photographs, a statement or any other evidence which directly contradicts what the witness has stated or was in his/her proof of evidence, you may present these to the witness and then ask him/her questions about that evidence.

WHEN CROSS-EXAMINING YOU SHOULD NOT

make comments or statements, there will be an opportunity to make these comments when summing up your case; ONLY ASK QUESTIONS;

question the witness on matters which are outside his/her scope of knowledge;

question a witness on matters which are not relevant to the issues before the Tribunal, such as how/why the Councillors may have acted;

ask more than one question at a time;

feel that you have to cross-examine. Often other parties may ask a question that you were going to ask the witness. Don’t ‘flog a dead horse’.

RE-EXAMINATION

Following cross-examination the party who called the witness is invited by the Chairperson to re-examine the witness. Re-examination of the witness enables clarification of issues raised during cross-examination, not new matters.

FINAL SUBMISSIONS

Final submissions enable parties to summarise their case to the Tribunal. The Chairperson will direct the order of final submissions. If there is insufficient time the Chairperson may request that the final submissions be given in writing.

INSPECTION OF THE SITE

In most cases the Chairperson and Tribunal members inspect the site, generally without the parties.

THE DECISION

The Tribunal usually reserves its decision and posts it to the parties in approximately 14 days. The Tribunal must hear and determine an appeal within 90 days of it being lodged. Once the Tribunal has handed down its decision, it has no further jurisdiction and, subject to certain exceptions set out in the relevant Act, cannot enter into any correspondence with the parties in relation to the decision.

Can I appeal the decision of the Tribunal? You may appeal to the Supreme Court from a decision of the Tribunal, but only on a question of law, not of fact. The Tribunal will not be involved in that appeal as a party.

APPLICATION FOR COSTS

Parties may make an application for cost* within 14 days from the date of the decision. Factors the Tribunal must take into account when deciding whether one party should pay another’s costs are;

· the result of the appeal, · whether frivolous or vexatious issues have been raised, · whether the appeal hearing has been unnecessarily or unreasonably prolonged or its costs increased, and · the capacity of parties to pay any order for costs.

* ‘Costs’ are the professional fees and expenses directly incurred in the conduct of the appeal, not the cost of parties’ lost time.

OTHER HELPFUL INFORMATION

Should I be represented by a lawyer, planner or other person?
To help you decide, consider whether you are able to present your case from beginning to end (from the completion of the Notice of Appeal to the full hearing). If there are any areas where you care unsure or need clarification it may assist you to seek some advice.

The Tribunal has established a register of professional experts who are prepared to provide advice in the area of their expertise on a first consultation basis without charge. Should this be sought please contact the Tribunal staff.

Who will be conducting the hearing? For a full hearing the Tribunal is normally composed of a Chairperson and two other members. The Chairperson is usually a legal practitioner and the remaining members are specialists with knowledge in a particular field, for example architects, engineers, town planners.

How should I address the Chairperson, Tribunal members or Registrar and should I stand?
When addressing the Chairperson or Tribunal Members it is not necessary to stand. The Chairperson should be addressed as “Mr/Madam Chairperson” or “Sir/Madam”. Tribunal members should be addressed as, ‘Sir/Madam’, or alternatively, by the title and surname. The Registrar should be addressed as ‘Registrar’.

Civil Enforcement Proceedings Please refer to the relevant brochure.

ANY FURTHER ENQUIRIES

If you have any further enquiries you are welcome to telephone the office of the Tribunal. The Registrar and staff will assist you in procedural matters but are unable to give legal advice or to advise upon the merits or prospects of success of an appeal.

The Appeal Tribunal is located on the 3rd floor of the TGIO building, 144-148 Macquarie Street, Hobart

Our telephone number is: (03) 6233 6464
Our facsimile number is: (03) 6224 0825

SIMPLY:

Take advice on whether you should be represented or not, try to mediate.

HOW WE ASSIST:

We can advise whether you need expert witnesses to assit your case and source such professionals for you.

Appeal In the context of this glossary, an appeal lodged against a condition or conditions in a subdivision permit issued by a local Council
ie
you have rights of appeal under Sections 61 & 62 of the Land Use Planning and Approvals Act 1993 (as amended), that relates to appeals. These provisions should be consulted directly, but the following provides a guide as to their contents.

Planning Appeals shall be instituted by lodging of a notice of appeal with a Clerk of the Resource Management and Planning Appeal Tribunal.
Planning Appeals shall be instituted within the 14 days of date the corporation who served the notice of the decision on the applicant.

Below is an example of a standard Appeal Format that can be used to lodged an appeal:

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL LAND USE PLANNING AND APPROVALS ACT 1993 NOTICE OF APPEAL

TO: The Resource Management &
Planning Appeal Tribunal
G.P.O. Box 2036
HOBART TAS 7001

I/WE
of (Residential Address)
Hereby appeal against the decision of the (insert name of planning authority)
in relation to Application No:
of which decision notice was given to me by (state method of notice, eg. letter, advertisement etc).
on (date)
being:
1. A refusal to grant a dispensation from a provision of an interim order (S.61(1));
2. The granting of a dispensation from a provision of an interim order (S.61(2));
3. A requirement by a planning authority for additional information (S.61(3));
4. A refusal to grant a permit (S.61(4));
5. The grant of a permit subject to conditions or restrictions (S.61(4));
6. The grant of a permit (the appellant being a person who has made representation) (S.61(5));
7. The failure of the Planning Authority to determine the application within the period applicable under S.59 of the Land Use Planning & Approvals Act 1993, to grant planning approval. (S.59)
*Delete whichever is not applicable

____________________________________________________________________________ LOCATION & DESCRIPTION OF DEVELOPMENT OR USE
NO ROAD/STREET

TOWN/LOCALITY

LOT NO. (If available)

SEALED PLAN NO (If available)

NAME OF APPLICANT

ADDRESS OF APPLICANT

DESCRIPTION OF DEVELOPMENT OR USE

GROUNDS OF APPEAL
This appeal is in respect of the conditions of the permit identified below for the reasons stated.

The Appellant is a person who has made representation in respect of a Planning decision. See appeal in our Glossary

Market Appraisal (Appraisal of Value) An opinion by a real estate agent who is not a registered valuer of the potential selling price. 

An As-Constructed Survey is usually a Permit condition placed on a development by the Local Authority or the Water Authority. It is a survey locating all new services (pipes, manholes, valves, turrets, poles, stop valves etc), pipe sizes, depths, descriptions, grades, joints and the like. The requirements are at present being re-written (March 2013) and consequently associated costs are unclear. What is clear is that a large amount of additional work (the cost of which must eventually be passed onto the client) is required by the Consulting Engineer, and/or surveyor and/or contractor to conform with these new requirements. Importantly, titles will not issue until the Water Authority issues its compliance certificate, which will not occur until the As-Constructed survey complies and is accepted.

Assent means: a transfer by way of assent is where the personal representatives of a deceased person vests that deceased person's real estate interests and estate into the name of the beneficiary as set out in the terms of the will.

Assets Physical belongings (including land) which have a value in monetary terms and which can be owned or possessed.

Auction: A marketing option where you list your home without a price supported by very intensive marketing, and leading buyers to an auction day and time where they must bid against each other to successfully purchase your home, usually unconditionally. (see Reserve Price) 

Auctioneer: Person holding an Auctioneer's Licence enabling them to conduct and call auctions.