MARCH 2000

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• Buying a Road
• Could you be living in a Heritage Building?
• Heritage Controls

This NEWSLETTER has been prepared by a number of individuals within our firm. Their initials follow the article they prepared. If any of our clients would like further information about any matter raised in this NEWSLETTER, we can quickly direct their call to the appropriate person.

Our principal, Leonie Kelleher has been asked to nominate as a candidate in elections to the Council of the Law Institute of Victoria. This is a great honour and, naturally, we are hoping she is elected.

Our clients, in their contacts, with other lawyers may wish to encourage their support for Leonie.

Buying a Road
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Land registered in the name of a private person may, in fact, be a road. It might be a road, even if no note appears on the Certificate of Title.

A public highway is created when:

- the registered proprietor, with the consent of any other person with an interest in the land, consents to dedicate the land as a public highway; and

- the public accepts the dedication.

Once a public highway is created, it remains so even if it is not used. A public highway vests in the local Council which may apply to become the registered proprietor.

The two processes - dedication and acceptance may occur without any notification to the Registrar of Titles or any change to the title.

Evidence of dedication can be difficult to obtain and cannot be assumed merely because access occurs across the land.

Similarly, evidence of public acceptance may also be required, but there are instances where public user alone will be regarded as sufficient to constitute acceptance.

Several years ago, a block of land in Brighton was purchased for full consideration. The contract did not mention that the land was a public highway and it did not appear to be a road.

When the new owner sought a town planning permit, the public highway status of the land emerged for the first time in response to neighbours' objections seeking rights of way over small portions of the site.

Once Council became aware of the public highway, it asserted its vesting rights and required the registered proprietors to re-purchase the land at full market consideration. No compensation applies whatsoever - quite the reverse.

Our clients need to be most careful in regard to roads and should never indicate that land might be a public highway without taking careful legal advice.

Councils have enormous powers in regard to roads and the Local Government Act 1987 defines a road to include a right of way, a passage, a footpath and the culvert or kerbing.

Could You Be Living In A Heritage Building?
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It is not only Registered buildings of State significance that are potentially affected by heritage controls. Many Councils are now undertaking Heritage Studies to update their local conservation study. As a consequence of the study, additional buildings and areas are frequently added to Overlay areas.

Careful attention must be paid to Council’s Planning Scheme amendments, especially in relation to heritage. A heritage site will not necessarily be easily identifiable and will not always be an attractive old building. Very simple buildings can have heritage significance. The site may not even contain a building. A most unlikely feature of the land may constitute its heritage significance eg a mullock heap, a pile of sawdust. the nails in the roof.

Vacant land may have botanical, zoological or scientific significance and so be subject to heritage controls. Similarly, the land beneath its surface may be controlled because it contains features of aboriginal, geological or archaeological significance. It may also include structures, parks, gardens or landscapes as well as places associated with pastoral expansion, gold mining and industrial development.

Heritage Controls
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The key heritage controls come via the new Heritage Overlay. The Heritage Overlay’s purpose is to conserve and enhance heritage places of natural or cultural significance and those elements that contribute to their significance.

However, attention also needs to be paid to the Significant Landscape Overlay. Within this Overlay, a permit is required not only to remove vegetation, subject to a number of exceptions, but also to undertake building or works.

In a heritage area, a permit is required for a significant number of developments including subdivision, works, demolition, construction of a building, signage, painting and, in certain cases, tree removal. No permit is required for repairs or routine maintenance.

Of relevance is the fact buildings with no heritage interest or only limited significance may be constrained in their development by their contribution to the appearance and significance of another heritage building- next door, across the road or down the street. This has led to the development of the concept of contributory buildings.

It may be well worth a visit to Council to discover whether your home is zoned as being of heritage significance.

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