Q: I live in a block of 5 townhouses in Victoria. Three townhouses access their properties via a shared, common area driveway to the right of Lot 2. Lot 2 has a driveway in front of their garage which is part of their Lot, immediately alongside the shared driveway. Due to the design of the driveway and placement of the mailboxes/brick bin corral to the right, vehicles (particularly large vehicles) slightly encroach (a few mm) on Lot 2's driveway to gain access to the shared common driveway. Lot 2 erected a shade sail with permanent steel poles and bars in front of their garage. The shade structure is up to their Lot boundary, in the airspace above. When large vehicles such a delivery truck or removalist vehicle access the shared common driveway, the angle of entry requires access up to or just over the boundary of Lot 2. There have been a number of incidents when the shade sale pole (located approx 3m above the ground) has been hit and damaged by trucks attempting to access the shared driveway. There have been instances when Lot 2 owner has abused driver's of large vehicles accessing the shared driveway. Lot 2 did not seek permission from the OC when they erected the shade structure approximately 10 years ago. Lot 2 does not have a council permit for the shade sail structure. The Lot 2 owner refuses to discuss the matter in a reasonable manner. Our OC Manager has been unable to advise on the legality of lot owners 'right of access' or an 'implied easement'. The distance between the shade structure pole and the brick letterbox/bin corral wall is 3m. When large vehicles attempt to access the driveway, they do not see the shade structure pole in the airspace above. The design of the common driveway entry is slightly curved, requiring a slight turn to drive down the common driveway to Lots 3, 4 and 5, thus requiring access up to or slightly over the boundary of Lot 2. What right of access do Lot owners 3, 4 and 5 have, specifically in relation to large vehicles, such as a removalist truck? What legal rights do we have and how might we exercise our legal rights through our Owner's Corporation? Our OC manager has been unable to advise regarding rights, legalities and action (if any) we might take to ensure freedom of access to our Lots via the common area driveway.
A lot owner did not seek permission from the OC when they erected their shade structure approximately 10 years ago. They do not have a council permit and refuse to discuss the matter in a reasonable manner. What legal rights do we have and how might we exercise our legal rights through our Owner’s Corporation? – Susan, VIC
A: This may be a case that is best taken up with VCAT.
You may want to gather evidence of how the shade structure affects other owners, and that there were no permission/special building rules attained when it came to the erection of this shade sail. Usually, any renovations that are undertaken without permission and proper processes require them to be reverted back to their original condition. In this case, the shade sail will have to be taken down and removed as that would be the original condition of the lot.
