McNamara & Associates have assisted Queensland property owners who discover that the structures on their property (including their house) have not been built within the legal boundaries of their property and are instead built on other land.
Many cases have involved structures built on land owned by the State of Queensland allocated for current or future road development. This article sets out the complicated process involved in rectifying this situation which includes navigation of complex legislative requirements under the Land Act 1994 and negotiating with the Department of Natural Resources and Mines (DNRM).
The process is complicated and we recommend that you obtain legal advice prior to commencing the application process.
Step One: applying for closure of the road
The first step is to apply to the DNRM to close the road under section 99 of the Land Act 1994. DRNM may reject your application if:
- the road is the only dedicated access to another person’s land; or
- the road is, or may be, used regularly by the public as a road or stock route; or
- the road provides continuity to a road network.
You also need to comply with a number of pre-application steps such as displaying a public notice on the proposed road and publishing the public notice in a newspaper published in the area of the road to be closed.
Once this has been done, you will need to sign a statutory declaration to confirm you have complied with all requirements of the Land Act 1994.
Step Two: amalgamating or subdividing the land
If DRNM are satisfied that the road can be closed, then the closed road can be subdivided on a lot on the plan or be amalgamated with your adjoining property under section 109(c) of the Land Act 1994.
If you amalgamate the land with your property an agreement needs to be negotiated and executed with DRNM for the permanent closure of the road and for you to purchase that land from DRNM (generally at fair market value).
Once such agreement is finalised a number of further steps need to be taken, including:
- payment of a deposit to DRNM;
- preparation and registration of a new plan and survey with DRNM in compliance with legislative requirements;
- preparation and signing of a Form 1 Transfer by the parties to give effect to the amalgamation;
- if you have a mortgage, obtaining your banks consent to the amalgamation;
- if there are any services running to the property, any existing easements may be affected or you may require new easements or agreements with service providers;
- finalisation of the matter by payment of the balance purchase price to DRNM.
There are strict time frames that apply throughout the process and if you do not comply then you may have to pay additional fees or start the process again, and incur the associated fees.
A similar process will apply in circumstances where land owned by the State of Queensland has not been allocated for a road; or the land is owned privately.
For more information about road closure and amalgamation of land, please contact Joshua Brown on 07 3812 2300.
By Joshua Brown of McNamara & Associates Solicitors