tecoma maccas and the easement

Council has received a few emails querying access arrangements to the easement running along the rear of the Tecoma McDonalds construction site.

Below is an extract of council’s response to these emails:

“….Under the provisions of the Building Act 1993, a Private Building Surveyor (PBS) may issue building permits and has significant statutory powers and responsibilities regarding compliance with his or her permits and safety issues on the building sites to which those permits relate (for example, pursuant to regulation 604[1]).  Whilst some of those powers and responsibilities are concurrent with those of the Municipal Building Surveyor (MBS), an MBS will generally not interfere with a PBS’ discretion unless there is a powerful reason to do so.

The PBS for the construction works at the subject site (and not Council or the MBS) has seen fit to require hoardings on the title boundaries of the land at 1527 and 1533 Burwood Highway Tecoma.  For the reasons that follow, and as things currently stand, neither Council nor the MBS see any reason to question the PBS’ decision.

Prior to the current development, an easement in Council’s favour included the land at 1527 and 1535 Burwood Highway, Tecoma but did not include the land at 1533 Burwood Highway.  It was a condition of the current planning permit for the current development that an easement be granted in Council’s favour which includes the land at 1527, 1533 and 1535 Burwood Highway, Tecoma. 

The easement is in Council’s favour, not the public’s favour.  It is a matter for Council whether or not it enforces its right to the easement.  Council sees no need to do so during construction works and, in particular, when the PBS has seen fit to require hoardings.

The entirety of the subject site is a building site until the current building work is completed and the PBS issues a Certificate of Occupancy.....It is safe to assume that in requiring the hoardings the PBS was mindful of the protection of the safety and health of the public (as required by section 4 of the Building Act 1993).  It is self-evident that serious risks exist if persons without the appropriate training and approval in relation to occupational health and safety issues enter any building site.  Those risks continue until construction works are completed and a site ceases to be a building site.....”