Private Right of Way Closures Information Package

PRIVATE RIGHT OF WAY CLOSURES INFORMATION PACKAGE

1. INFORMATION/ CLOSURE PROCEDURE

2. APPLICATION FORM

www.swan.wa.gov.au /CityofSwan /cityofswanwa PRIVATE RIGHT OF WAY CLOSURES SECTION 52 LAND ADMINISTRATION ACT 1997

General Information

Contrary to popular opinion, most private Rights of Way are not owned by Local Government or the Crown (State) but are privately owned. Private Rights of Way were generally created at the time of subdivision of an area to provide alternative access to adjoining lots. Whilst new Titles were issued for the resultant lots and those lots on-sold, most private Rights of Way remained on the original Certificate of Title and in the ownership of the owner of the land at that time (often now deceased), or his/her beneficiaries. The Transfer of Land Act 1893 specifies that the neighbouring owners who have legal entitlement to use the private Right of Way are those whose adjoining lots were created on the same Plan or Diagram of Survey as the private Right of Way. This generally (but not always) applies to all lots which adjoin the private Right of Way. Section 52 of the Land Administration Act 1997 provides a means for closing private Rights of Way.

Local Government - Responsibility

• Local Government’s responsibility in respect to private Rights of Way is legally very limited bearing in mind that the land is privately owned. Its role is to act as a facilitator in the closure process (set out under the Land Administration Act 1997) and, under the Local Government Act 1995 (as amended), has the power to order that any person who obstructs or prejudicially affects a private Right of Way which endangers anyone using it remedies the situation. As privately owned land, Local Government is not responsible for the maintenance of private Rights of Way, nor does it have any legal power to enter the land. The responsibility for maintenance lies with the owner of the private Right of Way or his/her beneficiaries. In reality, as most of the original owners of private Rights of Way are deceased and their beneficiaries difficult to trace, it is generally accepted that it is in the interests of the adjoining owners, who are the only parties who have a legal right to use the private Right of Way, to maintain it themselves. • Council’s role in the closure process is to advertise the proposal for residents’ input, to consult with relevant government authorities and utility service providers, to consider any submissions lodged and to resolve whether or not it supports the closure of the private Right of Way*. If closure is supported, Council would recommend the manner of disposition of the land based on a plan showing its proposed distribution provided by and agreed to by the adjoining owners whilst at the same time taking into account the location of any services. Sometimes, the location of utility services within a private Right of Way can determine that the land can only be disposed of to one side or the other – not divided equally between owners on opposite sides of the private Right of Way. • An application to close a private Right of Way cannot proceed without the support of Council and the Department of Planning, Lands and Heritage (DPLH) (Planning Division). • If Council supports closure, it makes this recommendation to the DPLH (Lands Division) with the ultimate decision resting with the Minister for Lands. *It should be noted that Council, at its meeting of 1 December 1999 resolved not to support the closure of any private Rights of Way unless all owners who, under the Transfer of Land Act 1893 have a right to use the private Right of Way, are in agreement with closure. Council may consider closure of a portion of a private Right of Way where it does not affect access to any other property, providing all owners have no objection. DPLH (Lands Division) - Responsibility

• The DPLH (Lands Division) considers the proposal, obtains valuations, negotiates with prospective purchasers and service authorities and makes a recommendation to the Minister for Lands. • If the Minister for Lands agrees to close the private Right of Way, the land content is transfered into Crown ownership and is disposed of by the DPLH (Lands Division) to nominated owners at a cost to be determined by the DPLH’s Valuation Services (generally market value). It is understood the market value is generally determined on the basis of the benefit the extra land would provide to the individual lot acquiring it.

Applicant(s) - Responsibility

• An application form for a private Right of Way closure must be lodged with the City of Swan which contains the signatures of all owners whose properties adjoin and have a right to use the private Right of Way. The City’s Council has resolved not to support closure of private Rights of Way if not all adjoining owners are in agreement with the proposal. The application form provides a space for owners to give a preliminary indication of whether or not they would be interested in acquiring a portion of the private Right of Way if it is closed. • Payment of a non-refundable application fee of $600 is required as a contribution towards the City’s administration and advertising costs to carry out the closure process. • All adjoining owners should be given the opportunity to read this information and must be made aware that those wishing to acquire land from the private Right of Way (if closed) in addition to the purchase price of the land, will also be responsible for their share of the costs of survey, preparation and lodgement of legal documents (ie. easements for utility service providers to enable continued rights of legal access to the land if required), relocation or modification of utility services (if required), relocation of fences, and any other costs related to the closure. Preliminary costings for the land will be sought from the DPLH (Lands Division) based on the land distribution indications given by owners on the application form. • Once the location of services is known, the applicant will be responsible for providing a plan, which is agreed to in writing by all adjoining owners, showing which lots will acquire the land from the private Right of Way if it is closed, subject to final costings.

Considerations

If an application for closure of a private Right of Way is received, Council must also take into account: • the comments of the DPLH (Planning Division); • the concerns/requirements of various utility service providers who may have infrastructure contained within the private Right of Way; • the concerns of any of the adjoining owners; • the location of any rear access points onto the private Right of Way, especially in the case of partial closure; • any submissions for or against the proposal lodged in response to advertising; • whether future planning for the area may necessitate the retention of the private Right of Way. Process for Considering Applications for Closure

1. Application (signed by all adjoining owners) received and fee paid. 2. a) Where necessary, a probate search must be undertaken to determine ownership of the private Right of way. b) Confirmation of ownership of all adjoining lots undertaken. c) Preliminary costings sought based on the information provided by the adjoining owners on the application form. d) Advertisement of the proposal to be placed in a local newspaper. e) Notifications to be placed on the City’s noticeboards, at its Administration Centre and at all its Libraries (30 day advertising period). f) Letters advising of the proposal and seeking comments to: i) Utility service providers and relevant government authorities. ii) All adjoining owners and the owner/beneficiaries of the owner of the private Right of Way (if contactable).

3. At the close of the advertising period, the proposal (including submissions) is presented to Council for its consideration.

4. If Council does not support the application, closure cannot proceed.

5. If Council supports closure, it makes this recommendation to the DPLH (Lands Division) who, in turn, obtain firm costings for the land and, subject to negotiations with the owners who indicated they wish to acquire the land, forward their recommendation to the Minister for Lands for a decision on the proposal.

6. If the Minister agrees to closure, the land from the private Right of Way is transfered into Crown ownership before being on-sold and amalgamated by the DPLH (Lands Division) to adjoining owners at the agreed value. APPLICATION FOR ABN 21 086 180 442 2 Midland Square, Midland WA 6056 Ph (08) 9267 9267 Fax (08) 9267 9444 CLOSURE OF A PRIVATE [email protected] RIGHT OF WAY www.swan.wa.gov.au

I/We, the undersigned, being the owner(s) of adjoining land, request Council to consider closure of the private Right of Way which runs between:

...... and �� (name of street) (name of street) (suburb) for the following reasons: (list reasons for requesting closure)

My/our application fee is enclosed or credit card details are provided �� Copy all details from your card into the space below. Card type (please tick the appropriate box)

Card No: CVN:

Cardholders name: Card expiry date:

By my/our signatures below, I/we acknowledge that: 1. I/We have read the procedures required to be undertaken to close a private Right of Way. 2. I/We understand that all owners of land adjoining the private Right of Way must agree to its closure. 3. An advertising fee of $600.00 is payable by the applicant(s). To this end: • I/We attach my/our cheque, or credit card details, for $600.00 with this application �� • I/We attach my/our cheque, or credit card details, for $200.00 and request that initial costings to close the right of way, based on the information below, be sought and understand that should I/we choose to proceed, that the balance of $400.00 will be payable prior to advertising. �� 4. All costs associated with closure, including land content, survey, preparation of legal documentation (if required), relocation or modification of services (if required) and relocation of fences etc. will be borne by those owners receiving land. APPLICATION FOR CLOSURE OF A PRIVATE RIGHT OF WAY (CONT)

Owner’s Name / Street No / Street Name Lot No. Possible Interest in Acquiring Signature of affected property (please print) a portion of Right of Way* yes no

yes no

* This is a preliminary indication only. Final disposition of the land will only be able to be determined once service locations are known. At that stage owners will need to decide amongst themselves who will acquire the land, subject to final costings to be provided by the Department of Planning, Lands and Heritage.

LODGING PARTY

Lodged By: �� (Please print name) (Signature) �� (Please print mailing address) Contact No: ...... Date: ��

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