Entry onto Third Party Property

Transcription

1 1. Purpose The purpose of these guidelines is to help achieve a balance between: (a) (b) Sydney Water s statutory function of providing water and sewer services; and the common law rights of our existing customers who are affected by a development. 2. Scope These guidelines apply to all applicants and suppliers who are altering or extending Sydney Water s services and who need to enter someone else s property. 3. Definitions Act: the Sydney Water Act, 1994 and any regulations in force under it. Also known as the Act. Bond: money given to Sydney Water before the applicant meets Sydney Water s conditions. The money covers the cost of the construction of works and is usually in the form of a bank guarantee or cash. Certificate (also Section 73 Compliance Certificate): a certificate referred to in Division 9 of the Act. Consent authority: as specified in Section 69 of the Act. Development: any activity relating to land that needs approval as specified in Section 69 of the Act. Guideline: a Sydney Water document that sets out how a Sydney Water policy is applied. Maintenance structure: a structure on a sewer that allows access to the sewer for maintenance. Notice of Entry: a notice issued under Section 40 of the Act. Permission to Enter: a form that needs to be completed when an applicant wants to go on to another person s property (see Sections 38 to 40 of the Act). Policy: a Sydney Water document that sets out a plan of action for Sydney Water in a distinct area of its business. A Policy is read in conjunction with the related Guideline. 4. Guidelines 4.1 Agreement by Parties The applicant (or the person representing them) has to negotiate with the property owner and tenant by using Sydney Water s Entry Procedures (and related documents). They have to make sure that they identify and think about all of the important issues. They also have to make sure that those issues are documented properly. Authorised by: Manager, Planning, Reporting & Compliance Maintained by: Manager, Planning, Reporting & Compliance Page 1 of 5

2 4.2 Alternatives to Minimise Impact Alternatives If the works are going to make more than a slight impact, the applicant MUST think about whether there are different designs, construction work and operational methods that they could use instead. The idea behind this is to cause as little damage as possible and to help make sure there are no problems for the property owner and tenant Negotiated options If there is an alternative way of working, but the applicant does not want to use it, they can always compensate the owner for working the way they want to. (This is not classed as compensation under Section 41(2) of the Act - see ) Limitations to negotiated options If the applicant comes up with an alternative but it does not fit with Sydney Water s operating, maintenance and renewal objectives, we will not allow them use it. For example, an applicant would not be allowed to build extra structures or have an extremely long system Acceptance of no alternatives If a property owner or tenant does not want the applicant to enter the property the Development Services Representative has to look at all the options available. If none of those options is appropriate, the Representative has to agree to that fact in writing. 4.3 Compensation Statutory basis The applicant has to provide compensation and meet all of the obligations that are set out in the Act. The compensation can be in the form or reinstatement, repair, construction of works, or money. (This is based on Section 41(2).) Summary of compensation principles When it comes to compensation, the legal advice is that: (a) physical damage is usually compensated by restoring the damaged property. Disputes usually need to be resolved before Sydney Water will take over the works. (b) Sydney Water only has to PAY compensation for sewerage infrastructure where there is: (i) physical damage to a building or other structure on the relevant block of land not rectified by restoration; or (ii) a new maintenance hole or main ventilator. (This is based on Section 41 (3).) (c) the compensation for a maintenance structure or main ventilator depends on the property. Authorised by: Manager, Planning, Reporting & Compliance Maintained by: Manager, Planning, Reporting & Compliance Page 2 of 5

3 (d) there is no compensation for disturbance/inconvenience. There is also no compensation for the presence of a pipe, if there was as little damage as possible caused when it was fitted. To be sure that damage is kept to a minimum, applicants should follow Sydney Water s design and installation standards. Updated 10/02/ Dispute resolution Sometimes, the property owner/tenant may dispute a compensation offer. Here are the steps to resolve the dispute: (a) The applicant needs the registered valuer s valuation report that they used as the basis of the offer. (b) If the affected property owner/tenant wants to dispute this valuation then they will need to produce their own registered valuer s report. (c) If the two parties still cannot resolve the dispute then Sydney Water may decide to consult and pay another registered valuer to make an independent decision about the valuations. If we do not engage another valuer we will make a decision ourselves. Our decision will be based on how the two valuation reports meet the obligations and principles talked about in and above. (d) Sydney Water tells the applicant and affected property owner/tenant the result of the decision and asks the applicant to reimburse us for the costs of that decision. (e) The applicant then reimburses us as part of their Contract Administration charges. Notes: 1. The compensation process (including the reports) must be based on and above; and 2. Any property owner/tenant s valuation report that is not appropriate should be rejected. For example, it should not cover the presence of the pipe Timing of resolution Compensation issues should usually be resolved, as appropriate, before: (a) Entry; or (b) the work is accepted; or (c) a certificate is issued or a bond is released. Sometimes, there is a good reason why the compensation issues cannot be resolved quickly. If the applicant can show this, Sydney Water may decide that the dispute can be resolved after entry, after construction or after the certificate has been issued. The applicant may need to provide Sydney Water with security Assurance of rights If a compensation dispute is going to be resolved after entry, the affected property owner/tenant has to be assured they have a right to the compensation and that it is the Authorised by: Manager, Planning, Reporting & Compliance Maintained by: Manager, Planning, Reporting & Compliance Page 3 of 5

4 applicant s responsibility to deal with those issues. The issues should be finalised between the applicant and the owner to minimise any exposure to Sydney Water Sydney Water mediation Sydney Water may involve itself in a dispute if: (a) the consent authority (usually the council), has given development consent; and (b) the applicant has given us completed and signed Permission to Enter form/s and all of the supporting documents particularly in relation to any disputed items; and (c) the applicant has signed the form/s Issues of notice of entry If we have not been able to help the parties agree, we may either: (a) go back to the applicant. Sydney Water will do this if we think the applicant s offer is not good enough; or (b) resolve the issue by a Notice of Entry action. Sydney Water will do this if a Senior Manager thinks it is appropriate. 5. Responsibility Manager, Development Operations 6. Regulatory Context Sydney Water Act 1994 Sydney Water Corporation Operating Licence Sydney Water Customer Contract Independent Pricing and Regulatory Tribunal Act 1992 Environmental Planning & Assessment Act 1979 Sydney Water Corporation Operating Licence Sydney Water Customer Contract 7. Associated Documents Entry Onto Third Party Property (Policy) Entry Procedures Permission to Enter (Owner) form (March 04) Permission to Enter (Tenant) form (March 04) 8. Effective Date Unless otherwise noted, these guidelines are effective from and including the date of approval. Authorised by: Manager, Planning, Reporting & Compliance Maintained by: Manager, Planning, Reporting & Compliance Page 4 of 5

5 9. Endorsement and Approval Effective Date: 9 February 2009 Review Date: February 2011 File No: 2006/05123F Prepared by: Endorsed by: Bruce Hansard, Senior Development Services Representative Name: Paul Saxby Signature: P. Saxby (sgd) Position: Manager, Developer Asset Services Name: Steve Purcell Signature: S. Purcell (sgd) Position: Manager, Asset Integrity Services Approved by: Name: John Ethell Signature: John Ethell (sgd) Position: Manager, Development Operations Date: 10 February 2009 Authorised by: Manager, Planning, Reporting & Compliance Maintained by: Manager, Planning, Reporting & Compliance Page 5 of 5