Corner of confusion

by Toby Ward
7th March 2016

THERE is risk of a precedent being set in the Manningham Green Wedge after a section of land in Warrandyte was controversially awarded as a new title, abandoning usual processes.

In 2010, Brad and Eve Hatfield purchased land at 294 Tindals Road and were told soon after that a corner of their land, about 1000m2, was subject to a claim of adverse possession submitted by their then neighbour.

According to the titles office – now known as the Department of Environment, Land, Water & Planning (DELWP) – adverse possession is a legal principle that “enables the occupier of a piece of land to obtain ownership if uninterrupted and exclusive possession of the land for at least 15 years can be proven”.

Having successfully obtained the piece of land from the Hatfields, the neighbour sold the property. However, the regular laws of subdivision were bypassed and the piece of land acquired through adverse possession became its own title.

“We moved on from the adverse possession claim and thought the property had been sold as one piece of land only to find out there was a new title,” said Brad.

“It was like another kick in the teeth. We bought the property to build our dream home and we’ve lost a corner of it where someone could potentially build a house, looking out across our land. It’s shocking and it’s changed all our plans.”

Manningham councillor Geoff Gough said DELWP had circumvented the normal subdivision procedures.

“The fact that subdivision or small lots can be created via this [process], and that they’re separate titles and not added to one title, is a real issue for the future of the Green Wedge,” Cr Gough said.

“I think the ultimate issue is with the titles office being able to create titles without council or anybody knowing and creating a brand new lot smaller than the minimum lot size.”

Within the Manningham Green Wedge zone, properties can not be subdivided below eight hectares. Former Manningham mayor Bob Beynon argues that if an application to subdivide the property was submitted to council, it would have been rejected.

“Council could refuse a permit to build on the title. But if your application meets the requirements of the zone provisions, it’s possible it could be taken to VCAT and have the council’s decision overturned,” he said. “I became involved in this because I believe it sets a worrying precedent,” Beynon said. “Although council aren’t culpable, it’s in their best interest to start making inquiries as to what council’s role could be in the event that people may try to pull the same sort of stunt.”

Teresa Dominik, director of planning and environment at Manningham council, said the correct procedures had been followed in the case of adverse possession and that DELWP had created a new title without informing council.

“The Land Title Office confirmed that the granting of the adverse possession application followed the necessary legislative requirements and processes prior to the granting of the application and creation of the new Folio,” she told the Diary.

“This was done by the Land Title Office and the process did not require any notification to council. The parcel of land is 1088m2 in size and officers were surprised it wasn’t sold with the main property.”

Eve Hatfield said her family could not move on from the case while the neighbouring title poses so many uncertainties.

“It’s just been a constant battle to keep the dream going,” she said. “Our fight continues with the intricate issues surrounding this small parcel of land and what the owner proposes to do with it.”