maccas update - carriageway easement advice

I have received many emails and verbal questions regarding the status of the carriageway easements at both 1527 and 1529 Burwood Hwy, Tecoma.  

I can advise that advice has been sought in relation to the status of this land and rights of access.

A carriageway easement is not the same as a road and therefore access rights depend on the specific nature of the easement and those that are defined as beneficiaries.  A carriageway easement is an encumbrance of privately owned land and is not public land.

There are existing east-west carriageway easements over the rear of 1529 and 1531 Burwood Highway (former Hippie Haven and Saffron Cottage) and over 1535 Burwood Highway (Video store), but not over 1533 Burwood Highway.   There is however a requirement of the planning permit for the McDonalds proposal to create a carriageway easement over 1533 Burwood Highway to create a continuous carriageway easement.

The Council has signed a plan for the creation of the easement over 1533 Burwood Highway, but as of 12 August 2013 the plan had not been registered with the titles office. This must be registered on title before construction can commence as per the permit conditions. 

The existing carriageway easements are in favour of the Council and the public at large is entitled to utilise the land for access.

Legal advice received is that a carriageway easement can be used to traverse the relevant land, not to set up and remain on that land.

As the carriageway easements in this instance are created for the benefit of the Council, it is for the Council (and its staff via delegated powers) to determine when and on what conditions the east-west easement might be blocked for health, safety or other reasons.

A carriageway easement is also in place between 1527 (group of shops) and 1529 Burwood Highway running north-south.  This easement is registered for the mutual benefit of the owners of the adjoining land parcels.   

Half of this easement (3.4 metres wide on 1529 Burwood Highway) is also an easement in favour of the Council (and general public).

Invitees/customers of those two owners (1527 and 1529) of land are entitled to use the north-south easement unless they are excluded.  Such exclusion would require agreement of the Owners Corporation at 1527, the owner of the McDonalds development site and the Council.

Council’s staff have been in ongoing contact with representatives of the McDonalds development regarding access around the site.  It is understood that WorkSafe and the Police have also had involvement to ensure safety for the community and contractors working on the site.  This has led to restrictions of access.

From recent discussion with representatives of McDonalds it is understood that with the demolition works now nearing completion, temporary barriers and hoarding in Burwood Highway will be shifted to allow pedestrian access along the footpath in Burwood Highway.  Part of the footpath may still be obstructed, however Council staff will give guidance to the representatives of McDonalds as to temporary works that cater for this.

Concerns have been raised with McDonalds representatives by both Council staff and the community over restricted pedestrian access in the vicinity if the works.  McDonalds consultants have then relayed this to the builder for the project advising of actions that should be taken to ensure community safety.

Council staff are maintaining contact with representatives of McDonalds as the project continues to ensure that appropriate safety measures are in place. If you have any concerns at all please contact the shire on 1300 368 333.