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Topic
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Hi
We have a right of way easement behind our building which allows pedestrians and cyclists access to streets either side of our block. In our certificate of title it states: “RIGHT OF FOOTWA’Y APPURTENANT TO THE PART OF THE LAND SHOWN SO BENEFITTED IN THE TITLE DIAGRAM AFFECTING THE LAND SHOWN SO BURDENED IN ….”
We have a problem with distortion of the footpath mostly due to large tree roots. We have had an arborist to inspect and have been informed that we cannot remove/replace the offending trees as council will not allow it. Our concerns are:
1. Are we responsible for upkeep of this walkway/cyclepath to avoid litigation should someone get injured?
2. If we are responsible then shouldn’t the council allow us to manage the trees so we do not have to pay out for constant repairs to the path? The last quote we received for correcting the 30 metres of damaged pavement was for around $3,500
3. Should we get a legal opinion regarding our liability?
Many thanks for any input.
regards
Leslie
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Replies
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Hi there,
I can’t comment regarding responsibility – but I did have a query. Have you personally checked with Council regarding removal of the trees? If they are posing a hazard to users of the path, then they may be flexible. Perhaps you should contact them and request someone meet yourself and the arborist onsite for a discussion. Even if you have to pay for an application fee to get this done, you might be able to side step some of the potential legalities if you can get Council to agree.
Some Council’s will allow tree replacement also, i.e. removal of the offending tree provided a replacement is planted. Perhaps this can be mentioned, and the arborist can recommend something with a less intrusive root system.
Who holds the title to the easement and what is the stated purpose and conditions of the easement?
For example, within our common property we have some easements through which the local utilities provider has some pipes. If something goes wrong with the pipes it is their problem to fix. In the case here it seems the purpose of the easement is to have a footpath (like a pipe for members of the public). So, I would guess that the local council has title to the easement and responsibility to maintain the path. However, I would also guess there are conditions around the easement. In our case we cannot do anything on the easement that would interfere with the pipes or prevent access to them if they need repair. Consequently there are certain structures we could build on that bit of our common property but not other structures. Among the things we could build, it is our responsibility to maintain them because they have nothing to do with the purpose of the easement.
It might be that it is your trees that are doing damage to the councils path and so you might be responsible to remove them. On the other hand, if the councils says you can not remove them, then the council will just have to repair the path and maintain it in spite of the trees.