NSW Council - What Type of Lawyer Should We Engage?

[Elena Tovar]

We bought a land in March 2016. The real estate agents disclaimed the no-pool was ought to be built in the land and that there was already an approved DA to build a house. The real estate sent all docs for the the approved DA, except for the DA consent. We did the deal, got a conveyancer to do it all for us.

May 2016

Looking for contractors to build the house already approved in the DA, no contractor was going to do it as there were some footings on the land from previous owner.

July 2016

We engaged with a construction company which will remove footings, etc. All good

February 2017

Got a new the DA approved for a totally different house to start construction, but it had a constraint that said that "in order to have access to the land/house, and for council to grant occupation certificate, the road from the last pavement place needed to be built all the way to the access of our land".

March/April2017

We engaged with engineers to submit the development of the road. Then we engaged with contractors to build the road with quotes from 75 to 92k! We do not have that money at all!

May 2017

We started digging for information on why do we need to do this. Going to council website we found out the previous owner had the same constraint on his DA consent, which curiously we never got and he submitted an I-96 form to request for the change on that constraint. So he knew what this constraint represented. But this was never disclosed to us at the time of purchase.

We thought that should have been our conveyancer duty, but reviewing at all our documentation he placed a paragraph that says.

“Further, we advise that the scope of our retainer is limited to the conveyance and does not include any issue dealing with the DA and ancillary documentation and/or the ability to construct on the land. We note that you are required to liaise and satisfy various other parties requirements so that construction can continue and as such this is beyond the scope of our retainer.

In addition, based on the documentation and information received to date, you are satisfied as to your ability to continue construction that has already substantially commenced on the land.”

So now we do not know what to do. Should we go to fair and trade to report our conveyancer despite the previous statement? Should we go to fair and trade after the real state agent since he was using a DA as a sales tool and did not review the consequences? Should we seek legal advice to go after the previous owner for withholding important information that would have influence the purchase of the land and if so what type of lawyer?

We have called fair and trade, lawacess, lawrefferal but no one knows what type of lawyer we should engage. or if we should go with fair and trade. But fair and trade does not seek land and property purchasing contracts.

Can anyone please point us in the right direction?

Thanks in advance

 

[Rod]

Your conveyancer is probably in the clear. Your situation is exactly the reason why conveyancers should not be used for land transfers. Many people look to save a few hundred dollars when they have tens or hundreds of thousands of dollars at risk.

Lawyers look beyond a simple transfer of land and include the legal risks around the transfer. What you need now is a property lawyer to investigate on your behalf. There may be a cause of action against the former owner and or the real estate agents but you need a property lawyer to look at all the facts to see if there is any action that can be taken, or whether this is a case of buyer beware.

 

[Ruben]

Just build the road then send the bill to the council

 

[Rod]

With a cost of up to $100K that's a very risky move and still leaves the OP liable to pay the contractor regardless of what the council does. Not a recommended course of action.

 

[Rob Legat - SBPL]

I don't practise in NSW, but may be able to help with some insight. When you say the realestate agent provided all the DA documents except the DA Consent, what did they send you exactly?

 

[Elena Tovar]

I don't practise in NSW, but may be able to help with some insight. When you say the realestate agent provided all the DA documents except the DA Consent, what did they send you exactly?

Hi Rob, thanks for your reply, when we contacted the real estate agent he told us that a DA was granted and current so he sent us via regular post a CD with all the documentation. Received the disk on the 5th March 2016.

The disk contained a 308 page Statement of Environmental Effects Report and had a lot of supporting documentation such as flora fauna studies, tree surveys, etc. No DA number or receipt of DA submission was contained on it.

10 March 2016

When we queried if the DA was still valid, we were sent an Inspection Report from a private certifier. This contained the DA number. This private certifier stated that construction was commenced. The real estate agent said the previous owner had done all the footings. So once construction has started the DA is valid until completion.

Now that we are building.. guess what.. no footings... just chunks of solid cement here and there. which was good for us. but what we were told at the beginning was a lie. When we got the documents and since we had never build before we did not know that there should have been a DA Consent.

We found out about this when we got ours for the new DA submission we made and realized this documents was not given to us when "all" the documentation was sent us. we then looked into council records and found out the have the same constraint as us and the the previous owner submitted to council a request to change that.. By the way did I mention the previous owner apparently works or used to work for council?

Thank you so much in advance for your guidance we really need to know the correct way to address this.

 

[Rob Legat - SBPL]

Okay, effectively you've got a situation where you bought a property for which you had some information that there was a current DA, but you weren't aware of the conditions of that approval. Your conveyancer also (probably rightly) disclaimed anything regarding the DA, but didn't specifically advise you to get advice regarding it.

So, that opens several questions:
(1) Did you read the correspondence from the conveyancer at the time, or after settlement? If it was before, what did you do about it?
(2) Did you engage anyone professionally in respect of the development of the property, and what did they do with respect to the DA?

 

[Tripe]

What I gather is, you are unhappy that you need to spend money on the access road? but having the access road is conditional to council issuing the final completion notice on you home.

I don't really see your grievance with the previous owner or conveyancer, if the site was a complete new "Greenfield site" council would require an access road, its obviously a council requirement in your area, it's no different to council requiring you to have sewerage connected to a septic tank etc or having your house built to the standards of the BCA.

If the council needs an access road for the final completion notice, you will need to have this box ticked for the final completion signoff.

It's up to you to do your homework on council requirements for a potential house build.

Caveat emptor

 

[Elena Tovar]

Okay, effectively you've got a situation where you bought a property for which you had some information that there was a current DA, but you weren't aware of the conditions of that approval. Your conveyancer also (probably rightly) disclaimed anything regarding the DA, but didn't specifically advise you to get advice regarding it.

So, that opens several questions:
(1) Did you read the correspondence from the conveyancer at the time, or after settlement? If it was before, what did you do about it?
(2) Did you engage anyone professionally in respect of the development of the property, and what did they do with respect to the DA?

Hi thanks for your reply again
As per your questions

1. – We read the correspondence before settlement but were under the assumption that the conveyancer would have reviewed the DA and reported anything unusual back. The disclaimer in his correspondence we (again) assumed was that if anything changed with the Council regarding this DA, he was not responsible. We agreed to this before settlement.

Well before settlement, we reviewed the 208 page document and asked the selling agent were there any other material items that we should be aware of before settleing. No response was provided.

(2) We engaged a couple of private builders after settlement to see if they could work on the plans that the approved DA were for. Most were uncomfortable proceeding as they had not laid the pierings themselves.

 

[Rob Legat - SBPL]

You might have some grounds to take action against the agent for failure to disclose if you could prove that they were intentionally withholding the DA from you, or ought to have known about it. If so, the fact that they remained silent when you asked the question may give rise to a negligence claim. The fact that they gave you other materials should help establish that they had, or at least assumed, a level of duty of care. This will be contrasted against you not seeking your own advice, however.

The long and short of it is, however, that it doesn't look like you're going to get out of the requirement to build the road.