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[Nallyrt]

Hi We are new to this forum so if this is the wrong place to put this question, help please..
We are looking at buying property in Heathcote Victoria, we have been given a section 32 and have found that the property has a Environmental Significance Overlay - Schedule 3 on it. Does anyone know what difference this makes to the property. What can we not do. We are going to be bringing our business with us and are a bit worried that this may not be the right property for us. Any help would be appreciated. Thanks

[Michaelangelica]

Mark is our resident expert on matters Oz-planning.
Hopefully he will have time to see your post and advise
and
welcome

[ecodharmamark]

G'day Nallyrt

Welcome to the PRI Forum.

Hi We are new to this forum so if this is the wrong place to put this question, help please..
We are looking at buying property in Heathcote Victoria, we have been given a section 32 and have found that the property has a Environmental Significance Overlay - Schedule 3 on it. Does anyone know what difference this makes to the property. What can we not do. We are going to be bringing our business with us and are a bit worried that this may not be the right property for us. Any help would be appreciated. Thanks:nod:

Generally speaking, all property in Victoria (sans Commonwealth-owned land) will have some sort of predetermined land use legally attached to it. This attachment comes in the form of a land use zone (or zones). The zoning of an individual property prescribes what sort of land use and/or development can or cannot occur, with or without a planning permit, on any particular site. Therefore, it is to the zoning of the property that you should first direct your inquiry. The zoning of the property you are looking at should also be contained in the Section 32. Once you have determined the zoning of the property, together with the size (area) of the same, you can simply go to the appropriate ordinance (e.g. Farming Zone, Rural Living Zone, etc.) within the Greater Bendigo Planning Scheme in order to determine whether the property is the right one for your proposed use and development - i.e. construction of a dwelling, operating a business, etc. If the land use zone meets with your proposed plans for use of the said property, only then should you concern yourselves with addressing the planning requirements of any proposed development that may be affected by any accompanying overlays, in this case, the ESO Schedule 3.

More information on use and development, together with zone and overlay controls, can be found in Section 1 of the following:

DPCD (2008) Planning: A Short Guide

If you need a hand with any of the above, please provide me (via a private message, if you prefer) with the exact property address/location, and a brief proposal of what it is you propose to do with the site, and I'll provide you with a (free) preliminary statutory planning assessment/report.

Cheerio, Markos.

[Michaelangelica]

Mark does "old title" still exist? (as opposed to Torrens)
Am i right in thinking that old title would protect you from frackers and mineral extraction on your land?

[ecodharmamark]

G'day Michael

Mark does "old title" still exist? (as opposed to Torrens)
Am i right in thinking that old title would protect you from frackers and mineral extraction on your land?

In answer to your first question: Yes, 'old system' titles do still exist. As to whether the legitimate, bona fide possession of one (remembering that the burden of proof lies with the claimant) 'would protect you from frackers and mineral extraction on your land', I don't know. It's a legal minefield, if you'll pardon the pun.

The following document (in particular Section 2) provides a pretty good summary on the historical progression of land titles in Australia:

LPMA (2011) Old System Information and Search Guide

You'll note from your reading of the above, a couple of paragraphs supporting my view about it - 'proving' ownership of old system title - being a legal (read: expensive) nightmare (my emphasis in bold):

In theory, determining proof of title (and therefore ownership) is established by possessing and presenting all the deeds relating to the land from the time of its first granting from the Crown. In practice, this is often difficult to achieve as it requires the time consuming task of finding, collecting and examining numerous deeds. The Conveyancing Act recognises the difficulties inherent in proving ancient title and introduced (with certain exceptions) a cut off period of 30 years good root of title to prove ownership...

Old System also presents considerable problems for land owners when ... deeds have been lost. Problems can further be compounded if deeds have not all been registered. There has never been a statutory requirement to register deeds and distance, time and government fees dissuaded many people from doing so. This is despite the fact that registered deeds hold more weight in the civil court over a disputed land claim. Various attempts to void unregistered deeds over the years have all failed.

In short, Old System land title is complicated, expensive, uncertain and the title is not guaranteed by the State.

Sorry I could not be of more assistance. A search of all court decisions in order to determine if a precedent has been set would be the next point of call in answering your second question, and unfortunately I don't have the time.

Cheers Mate, Mark.

[Michaelangelica]

Seems not that bad, at least you own everything under your feet
"The Conveyancing Act recognises the difficulties inherent in proving ancient title and introduced (with certain exceptions) a cut off period of 30 years good root of title to prove ownership (see Good Root of Title section for more information)".
Many farms could have been in the same family for a couple of generations.

I noticed a geologist the other day who had bought old title in the middle of gemstone field!
Canny!

Does the Govt.(s) force Old Tittle into Torrens when a sale occurs?

[ecodharmamark]

G'day Michael

Does the Govt.(s) force Old Tittle into Torrens when a sale occurs?

Not necessarily (unless it is in dispute). But certainly they 'recommend' it in order to ('most likely') provide it with a future 'government guarantee'.

I'm not a property lawyer, so my understanding in these matters is limited. However, what little understanding I do have follows: It's all about the 'chain of deeds'. If you have every 'link' in that chain, then you are assured of ownership. However, if you have a 'missing link' in the chain, and at some stage someone else pops up and is in possession of that link, then they may have a strong case in contesting your claim of ownership.

Fun hey?

Cheerio, Markos

[Michaelangelica]

I'm not a property lawyer, so my understanding in these matters is limited. However, what little understanding I do have follows: It's all about the 'chain of deeds'. If you have every 'link' in that chain, then you are assured of ownership. However, if you have a 'missing link' in the chain, and at some stage someone else pops up and is in possession of that link, then they may have a strong case in contesting your claim of ownership.

Yes used to work at Registrar Genrals' DEp NSW
Torrens was always seen as preferable as a chain of ownership did not have to be proved for a hundred years
However that doc link you gave says a ownership-link is only needed for 30 years.

A far preferable title in my view and worth the extra legal costs ( if any) in my view