Bob Harrison President-Elect ISA-NSW

IDENTIFICATION SURVEYS - AN UP-DATE
08/08/2001

I am here today to talk about Identification Surveys. These are the jobs that many Technicians are often sent out to perform and yet the risk is a lot higher than a Plan of Survey where you usually close the work and have some sort of a check against other surveyors' plans and checks by the Land Titles Office.

I will make reference to
the imminent up-date of the Surveyor's Professional Manual
the experiences of the Survey Practice and Legislative Subcommittee
other bits and pieces that ACS have been exploring such as
Copyright issues
Insurance issues
Legal issues
Risk management

The two main areas of concern which prompted the review of the Manual are -
a) the need for "Risk Management"
b) the change in legislation

Our need to be "Risk Managers" is highlighted by the fact that NSW is now the second most litigious area in the world (per capita). We can only quote the Chairman of ACS Insurance Society who informs us that, "claims are on the increase. Whilst the number fell last year, the quantum grew". At the "Prac" Committee we receive about 20 complaints per year on Identification Surveys. The Ident has the opportunity for an uncheckable error to occur.

Any step we can take to reduce our exposure to a claim or a complaint is not only convenient it should also represent more money in our pockets. I'll try and give you a quick outline of the new manual.

Firstly, we've included a Definition of an Identification Survey, to remind us of our aim. In lay terms, an "Identification Survey" is to relate the legal description of the land with the improvements erected thereon, and in the context of surrounding features which could help a third party to identify the subject property. It may also make comment on affecting easements and covenants, and the compliance with certain legislative requirements.
Remember, we are the "eyes" and data-collectors for the other professionals (valuers, solicitors, lending authorities, building inspectors). Keep in mind the word IDENTIFICATION and

a) of the fact that the inspected property must equal the subject of the Contract
b) the address must equate to the Title reference. Some of the other professionals may never lay eyes on the site.
c) Our report must allow others to see the improvements with respect to the boundaries, albeit at times in diagrammatic form
d) The things which affect the security value are of interest to a lender viz. encroachments, defects in Title, encumbrances…
e) The minor issue of your livelihood
i) you want to get paid for your services
ii) you don't want to commit a "sin of omission" and be sued
iii) you don't want to commit a "sin of commission" or error and be sued

In regard to Item (i) you should get your instruction clearly, and in writing if possible, as to who is the instructing party, on whose behalf are they acting, AND who is responsible for the account.

ACS and the Institution have discussed the above with the Law Society to establish the protocol

(I) where an individual, the client, issues an instruction to a Surveyor that necessitates the subsequent presentation of plans, reports, etc, to the client's solicitor, the client is liable for any survey fees and as such any account for survey fees should be rendered to him/her and not to the solicitor.
(II) where a solicitor issues any instruction on behalf of a client, either of two conditions apply:

(a) The solicitor may advise that s/he is acting for a client, but does not intend to be responsible for the Surveyor's fee. S/he should then disclose the full name and address of his/her client. The Surveyor should then make contact with the client and form a contract with him/her.
(b) In any case a contract should be formed between the solicitor, as Principal, and the Surveyor. The Surveyor should then confirm the costs and terms of payment in writing so that the solicitor knows what to charge the client and can obtain an advance on the disbursement.

It would be unacceptable to delay payment to the Surveyor past the noted invoice date unless a specific agreement has been made between the Surveyor and solicitor regarding the payment of the account.

In regard to (ii) we will soon discuss what should be in a Report.

In regard to (iii) you will have to assess your field and office procedures to ensure you do not make a mistake. A simple checklist can be a start to solving some of the matters, which cause problems.

In regard to profitability, I can't tell you what to charge, but I can tell you that Risk Management covers O.H.& S. (consider what an on-the-spot fine will do to your profit margin). The time-cost of an employee injury or an argument over being right but the customer's instruction was different to what you did, can send your profits down the drain.

Payment - another dirty word (filthy lucre that money-stuff). Copyright to the report is yours. How you protect it is not clear, but a notification or threat is useful. But copyright is only ownership of the thoughts and information presented, NOT the Report itself. You only own the report whilst it is in your hands. Get paid before it leaves your hands.

Let's get back to the main topic of Idents and the Manual.

The second point is an outline of the Need for the survey by prudent members of the legal profession. I think we have already covered that point.

Thirdly, you can try to tailor the survey for your client. We acknowledge that there is the possibility to do a partial survey for mortgage purposes, or to deal with a particular property boundary, perhaps a survey of all improvements outside the land below a tidal limit which may be the subject of a Lease Application, or a full survey for a Certificate under the E.P. & A. Act or to accompany an application for Possessory Title.

Fourthly, we discuss the Nature of an Instruction and what the Surveyor should report on e.g.

1. The general identity of the land to which Title is intended to be given and any major discrepancies in dimensions disclosed by survey, as compared with the Title Deed.
2. The general identity of the improvements.
3. Any encroachments by buildings.
4. Any major encroachments by fencing or other occupations.
5. The position of buildings relative to the boundaries.
6. Any easements, apparent or otherwise, enjoyed by the property or to which it may be subject or appear to
7. Be subject.
8. The effect of any building or other Covenants, or Restrictions on the Use, to which the land and the Title may be subject, and whether the buildings comply with the Covenants. (A Report will be limited by the extent to which individual Covenants are within the Surveyor's area of expertise).
9. Any other matters disclosed by survey, or by the Surveyor's investigation, which may affect the property.

Fifthly, we discuss Searches. Obviously you should refer to the Title (as discussed in the Definition and Need) so you should get a copy and state in your Report the date of the Search, as subsequent registered Dealings may occur and expose you to action for apparent omission.

We also get a copy of the Charting Sheet in case our Searchers have missed information, which could affect boundary definition. That may be less of a problem in country areas.

Sixthly, we discuss the Nature of a Report - a private communication. Although the letter, or a copy, is often made available to subsequent purchasers, don't you encourage this by responding to a request for a copy of an earlier Report by a party other than the original client. It is a breach of confidence and could increase your liability.

Restricting a report is recommended because, under present legislation, Section 149A Applications only deal with buildings and information as to encroachments is not required. Superfluous information could encourage Council Officers to become involved in matters outside of their jurisdiction

We strongly recommend that the report should be in the form of a "confidential" letter (standard letterhead) rather than report form) to the client, only to be used in the matter which is clearly specified in the instruction and referred to at the beginning of the Report. This was recently confirmed by a Legal opinion obtained by ASCIS.

Ian Marler had an article in the Nov/Dec 2000 ACS news and the sample opening gambit of a report, which is recommended, is -

Dear Client,

RE : J.Smith & P.Jones - Mortgage to Greedy Bank

Thank you for your instruction to prepare an Identification Survey Report in the above matter. This Report has been prepared for identification purposes in connection with the purchase of the land and is for the use of John Smith and Peta Jones. This Report is not authorised to be used for any other purpose. Insofar as this Report is used in connection with the purchase of the land by Mr. Smith and Ms. Jones, the use of the Report by any other person does not create a contract between the Surveyor and that other person.

Remember also that your boundary definition is only your opinion of its location. This opinion can always be subject to scrutiny and cross-examination in a Court and having regard for the normal limitations of accuracy. A surveyor who does not make it clear that the contents of a Report are "opinions" could be said to be misleading the client. Trade Practices Action is next on the list. Four such matters are now afoot.

Seventhly, Reports on Old System, Qualified and Limited Titles. You could offer your opinion as to the availability of dimensions, and remember it could involve extensive (expensive) additional survey. Perhaps even a Plan of Survey needs consideration.

The Report may require a caution in the form "The location of boundaries is an opinion based on current available facts. No responsibility can be taken for changes in boundary locations due to lack of a registered Plan of Survey and subsequent surveys of adjacent lands."

Eighthly, how do you sign? The Registered Surveyor is the only person legally entitled to sign - not as a Company or Partnership, although you should indicate the identity of the practice. This could take the form -

"Nurks & Co. Pty Ltd
per Frederick J. Nurks, B.Surv.
Surveyor Registered under the Surveyors' Act 1929."

Ninthly, remember that Old System Reports should be requested at the time of instruction. They are a check on your work, reducing risk of a mistake, but they should never be up-dated. AND UNDER NO CIRCUMSTANCES SHOULD A SURVEYOR MAKE ANY NOTATION ON A SURVEY REPORT ISSUED BY ANOTHER SURVEYOR OR PRACTICE. It is unethical and dangerous.

Tenthly, what do you say about compliance? You could refresh your memory from the notice in ACS News in July 1999 (copy enclosed). Generally, think along the lines -

Only show a few relevant distances on the sketch and Report "Offsets of walls from boundaries are as shown upon the sketch."

If you are very sure that the building and all extensions were approved prior to the 1993 L.G. (Approvals) regulations, you might state -

" It would appear that the boundary clearance provisions of the Local Government Act in force at the date of erection have been observed."

This statement could be modified for the situation where you have seen the Council Approval for the building, have inspected the L.E.P. and have made all relevant inquiries as to the Council requirements for all alterations to the building since approval or erection. You can see that there are some slippery places to tread in this situation and many of these matters could be answered simply and accurately by making an application for a Section 149 Certificate under the E.P.A. Act.

Distances of Walls from Boundaries.

Bob Harrison
(assisted by John Monteath's 1998 paper)

There has been a de-facto legislative change relating to the rules relating to the location of dwellings which need to be considered by Surveyors when preparing an Identification Report.

Surveyors will remember that on 1st July 1998 the E.P. & A. Act 1997 amendments caused Building Certificates, previously issued under Sec. 172 of the Local Government Act 1993, to now issue under Sec. 149A of the E.P. & A. Act as amended. The (Savings and Transitional) Regulation had a sunset clause 44(3) which now causes those provisions to cease on 1st July 1999. The idea was that Councils had a year to amend their Planning Instruments to include specific requirements for boundary setbacks.

Some Councils have adopted appropriate planning instruments but the Department of Urban Affairs and Planning could not advise who had, and were concerned that many Councils had not, made arrangements. And not all arrangements may be uniform and in line with the old regulations. We are aware of zero setbacks and 1.5m setbacks in certain areas. If there is no new LEP or DCP since 1st July, 99 then no standards apply.

When these matters were stipulated by Government, Surveyors could be confident that their opinion as to whether or not a dwelling complied with a particular rule was soundly based. However, with the transfer of these rules to planning instruments adopted by individual Councils more variables are introduced. Instruments which can be readily varied by a Council for a particular application .

The present de-facto change emphasises the need to carefully word a report. Options include
1. Only state the distances from the boundary to the relevant wall and to the edge of any overhang either in the text of the report or on the diagram or both.
e.g. "Offsets of walls and roofs from boundaries are as shown upon the sketch."

This option is not preferred by Solicitors who seek to rely on a Surveyor's opinion rather than apply for a Building Certificate.

2. Ascertain the date of the Council's approval to the building plans and, if prior to the 1993 L G (Approvals) Regulations, apply the rules as gazetted.
e.g. "It would appear that the boundary clearance provisions of the Local Government Act in force at the date of erection have been observed".

3. If the approval postdated the 1993 Regulations, ascertain from the Council, the rule which applied to the particular case, and report appropriately.
e.g. "It would appear that the boundary clearance provisions contained in ...planning instrument... have been observed".

4. If an instructing party requires the surveyor's opinion in a report as to whether a residence complies with the appropriate rules, the surveyor should be specifically instructed and, wherever possible, provided with the date of construction, a copy of the Development Consent and a copy of the approved building plans.

Even with this information, the surveyor may still need to conduct a search for any relevant Planning and/or Development Control Plan.

In giving this specific instruction, the instructing party would be acknowledging that additional searching and inquiry time could be incurred and also some additional costs.

5. Where the instructing party does not include the specific instruction detailed in para 4 above, the Surveyor's report will only state the distances from the boundary to the relevant wall and to the edge of any roof overhang either in the text of the report or on the diagram or both ( see para. 1).

PRELIMINARY REPORT

Of committee appointed by The Institution of Surveyors (Aust) Cumberland Group to investigate Ordinance 71 as it affects the practicing Surveyor.

This committee comprising:
R.N. Grinsell (Chairman)
W.G. Hunt
J. Menzies
B.A. Curtis
R.S. Lovegrove
J. Nelson
K. Burke

met on Wednesday 27th March and emerging from a lengthy discussion it became apparent that a major difficulty found by a practicing Surveyor confronted with interpreting Clause 48 of Ordinance 71 was his lack of historical knowledge of the relevant ordinances affecting the siting of buildings and allotments.

We therefore include as part of the report a chronological history of those ordinances. It is felt that if surveyors were more aware of the particular ordinance in force at the date of erection of the cottage concerned he is in a sounder position to use his judgment when reporting as to compliance or otherwise.

PROVISIONS UNDER THE LOCAL GOVERNMENT ACT OF 1906 & 1919 WITH REGARD TO THE DISTANCE OF WALLS, EAVES & GUTTERING FROM BOUNDARIES.

The first Ordinance with respect to distance of walls of dwellings from boundaries was proclaimed on 20th August, 1913, under the Local Government Act, 1906. It was Ordinance 70A, Clause 11, and read as follows :

"Every person who shall erect any dwelling house shall provide that every window or door therein opening to the external air shall be 3 feet at the least from any boundary other than the street boundary line of the allotment upon which such building is or will be erected."

On 11th November, 1921, Ordinance 70A (11) was replaced by Ordinance 71 Clause 48 under the Local Government Act, 1919.

Ordinance 71 was originally proclaimed in the NSW Gov. Gazette No. 167 on 11th November, 1921.

Section 48 was relatively simple and referred solely to distance of walls in which it is proposed to provide a window or door opening. No restriction whatsoever was placed on the width of eave and gutter or overhang.

2.

The original Section 48 read as follows:

Space outside windows on sideline.

48. If there be any side wall of a dwelling-house in which it is proposed to provide a window or door opening, that wall shall be set back (throughout its whole length) from the sideline of the allotment to a distance of 3 feet in the case of a dwelling of one or two storeys, or to a distance of 5 feet in the case of a dwelling of more that two storeys.

Note: This clause 48 remained in force until amended on 17th April, 1924.

In the NSW Gov. Gazette No.53 of the 17th April, 1924, the original clause was omitted and the following new clause substituted.

Ordinance No.71 is amended:
(a) by omitting clause 48 and inserting the following:

Space outside windows on side line.

48(a) A side wall of a dwelling in which any window or door is placed shall be at a distance from the side line of the allotment of not less thane 3 feet in the case of a dwelling of one or two storeys or of 5 feet in the case of a dwelling of more than two storeys: Provided that this sub-clause shall not apply in any case where the side line of an allotment is also the boundary of any public place.
(b) If part of a wall be set back to comply with this clause, such setting back shall extend and be maintained from the window or door to one end of the building, in order that, even though the next allotment of land be completely built upon now or hereafter, there shall be access (of the specified width of 3 or 5 feet) of light and air to such window from some open space in a horizontal direction from the window, as well as in a vertical direction:
Provided also, in each instance, that no eaves or hoods over window or any structure or attachment likely to obstruct that access of light and air may extend upon or over more than one-fourth the width of the space of such set back.
(c) A window in a recess in a side wall shall be deemed to be a window in a side wall for the purpose of this clause.
(d) In the case of proposal to alter any building which was erected before 20th August, 1913, the preceding provisions of this clause shall not be held to prevent the Council from granting approval to the construction of additional windows in a side wall if in the opinion of the Council any such additional windows are necessary to make a more healthy building.

Note: In sub-section (b) the distance for eave and gutter is specified as not "more than one-fourth the width of the space of such set back" i.e. Wall to boundary 4'0".. Eave to boundary 3'0".

This clause remained in force until amended in Gazette dated 14th May, 1926.

3.

In the NSW Gov. Gazette No.59 of the 14th May, 1926, clause 48 was again amended as follows:

Ordinance No.71 is amended by omitting therefrom clause 48 and inserting new clause 48 in lieu thereof as follows:

Space outside windows on boundary line.

48 (a) A wall of a dwelling in which any window or door is placed shall be at a distance from the boundary line of the allotment of not less than 3 feet in the case of a dwelling of one or two storeys or of 5 feet in the case of a dwelling of more that two storeys: Provided that this sub-clause shall not apply in any case where the boundary line of an allotment is also the boundary of any public place.
(b) If part of a wall be set back to comply with this clause such setting back shall extend and be maintained from the window or door to one end or across the rear of the building, in order that, even though the next allotment of land be completely built upon now or hereafter, there shall be access (of the specified width of 3 or 5 feet) of light and air to such window from some open space in a horizontal direction from the window, as well as in a vertical direction:
Provided also, in each instance, that no eaves or hoods over windows or any structure or attachment likely to obstruct the access of light and air may extend upon or over more than one-fourth the width of the space of such set back.
(c) A window in a recess in a wall shall be deemed to be a window in such wall for the purpose of this clause.
(d) In the case of a proposal to alter any building which was erected before 20th August, 1913, the preceding provisions of this clause shall not be held to prevent the Council from granting approval to the construction of additional windows in a wall if, in the opinion of the Council, any such additional windows are necessary to make the building a more healthy building. (5771)

Note: The previous provisions referred to side walls, whereas this clause now appears to refer to any wall and the boundary line as against the side line.

This clause remained in force until amended in Gazette of 1st August, 1930.

In the NSW Gov. Gazette NO.102 of 1st August, 1930 clause 48 was again amended and the amended clause at that time read as follows:

Space outside windows on boundary line.

48(a) A wall of a dwelling in which any window or door is placed shall be at a distance from the boundary line of the allotment of not less than 3 feet in the case of a dwelling of more than two storeys: Provided that this sub-clause shall not apply in any case where the boundary line of an allotment is also the boundary of any public place.

4.

(b) If part of a wall be set back to comply with this clause such setting back shall extend and be maintained from the window or door to one end or across the rear of the building, in order that, even though the next allotment of land be completely built upon now or hereafter, there shall be access (of the specified width of 3 or 5 feet) of light and air to such window from some open space in a horizontal direction from the window, as well as in a vertical direction.
(c) No eaves or hoods over windows or any structure or attachment likely to obstruct the access of light and air may extend upon or over more than one fourth of the distance of the wall from any boundary line or of the width of the space of any set back. (7109)
(d)(c) A window in a recess in a wall shall be deemed to be a window in such wall for the purpose of this clause.
(e)(d) In the case of a proposal to alter any building which was erected before 20th August, 1913, the preceding provisions of this clause shall not be held to prevent the Council from granting approval to the construction of additional windows in a wall if, in the opinion of the Council, any such additional windows are necessary to make the building a more healthy building. (5771)

Note: Proviso to clause (b) omitted.
New clause (c) added.
Clauses (c) and (d) renumbered to (d) and (e).

This clause remained in force until amended in Gazette of 25th August, 1933.

In the NSW Gov. Gazette No.131 of 25th August, 1933, this clause was further amended to read as follows:

Space outside windows on boundary line.

48(a) A wall of a dwelling in which any window or door is placed shall be at a distance from the boundary line of the allotment of not less than 3 feet in the case of a dwelling of one or two storeys or 5 feet in the case of a dwelling of more than two storeys: Provided that this subclause shall not apply in any case where the boundary line of an allotment is also the boundary of any public place.
(b) If part of a wall be set back to comply with this clause such setting back shall extend and be maintained from the window or door to one end or across the rear of the building, in order that, even though the next allotment of land be completely built upon now or hereafter, there shall be access (of the specified width of 3 or 5 feet) of light and air to such window from some open space in a horizontal direction from the window, as well as in a vertical direction.
(c) No eaves or hoods over windows or any structure or attachment likely to obstruct the access of light and air may extend upon or over the distance of the wall from any boundary line or of the width of the space of any set back so as to encroach upon the specified width of three or five feet by more than one-fourth. (3022)

5.

(d)(c) A window in a recess in a wall shall be deemed to be a window in such wall for the purpose of this clause.
(e)(d) In the case of a proposal to alter any building which was erected before 20th August, 1913, the preceding provisions of this clause shall not be held to prevent the Council from granting approval to the construction of additional windows in a wall if, in the opinion of the Council, any such additional windows are necessary to make the building a more healthy building. (5771)

This amendment substitutes a new clause (c); this amendment is of the utmost importance as the term "width of the space of any set back" is omitted and "The specified width of three or five feet" is substituted.

This clause remained in force until amended in Gazette dated 25th August, 1939.

In the NSW Gov.Gazette No.4198 of 25th August, 1939, this clause was further amended by adding a proviso to subclause (c).

Clause 48 now to read as follows:

Space outside windows on boundary line.

48.(a) A wall of a dwelling in which any window or door is placed shall be at a distance from the boundary line of the allotment of not less than 3 feet in the case of a dwelling of one or two storeys or 5 feet in the case of a dwelling of more than two storeys: Provided that this subclause shall not apply in any case where the boundary line of an allotment is also the boundary of any public place.
(b) If part of a wall be set back to comply with this clause such setting back shall extend and be maintained from the window or door to one end or across the rear of the building, in order that, even though the next allotment of land be completely built upon now or hereafter, there shall be access (of the specified width of 3 or 5 feet) of light and air to such window from some open space in a horizontal direction from the window, as well as in a vertical direction: Provided also, in each instance, that no eaves or hoods over windows or any structure or attachment likely to obstruct the access of light and air may extend upon or over more than one-fourth the width of the space of such set back.
(c) No eaves or hoods over windows or any structure or attachment likely to obstruct the access of light and air may extend upon or over more than one-fourth of the distance of the wall from any boundary line or of the width of the space of any set back. (7109)
Provided that nothing in this subclause shall prevent a cornice or eave which projects not more than eighteen inches from returning along the sidewall for a distance not exceeding six feet.
(d)(c) A window in a recess in a wall shall be deemed to be a window in such wall for the purpose of this clause.

6.

(e)(d) In the case of a proposal to alter any building which was erected before 20th August, 1913, the preceding provisions of this clause shall not be held to prevent the Council from granting approval to the construction of additional windows in a wall if, in the opinion of the Council, any such additional windows are necessary to make the building a more healthy building. (5771)

This clause remained in force until amended in Gazette dated 25th May, 1962.

This clause was again amended in Gazette dated 25th May, 1962 and the clause as at 13th September, 1966 now reads:

Position in relation to boundary lines.

48(a) A wall of a dwelling shall be at a distance from the boundary line of the allotment of not less than 3 feet in the case of a dwelling of one or two storeys or of 5 feet in the case of a dwelling of more than two storeys: Provided that this subclause shall not apply in any case where the boundary line of an allotment is also the boundary of any public place:
Provided also that where two or more dwelling attached to each other such as are commonly known as semi-detached or terrace buildings are erected on two or more separate parcels of land and are separated from each other by party walls; the provisions of this subclause shall not apply to such party walls.
(b) Notwithstanding the provisions of subclause (a) of this clause.
(i) where the Council is satisfied in the case of a single dwelling that compliance with the provisions of such subclause would be impracticable by reason of the levels or width of the allotment or other exceptional conditions of the site, the Council may, by resolution in the individual case, permit the erection of a wall or part of a wall in which no windows or doors are placed, at a less distance from the boundary line of the allotment than 3 feet or 5 feet, as the case may be;
(ii) in the case of a shop and dwelling combined which is to be erected on an allotment considered by the Council to be within an established shopping locality, a wall or part of a wall in which no windows or doors are placed may be erected at a less distance from the boundary line of the allotment than 3 or 5 feet as the case may be.
(c) No eaves or hoods over windows or any structure or attachment likely to obstruct the access of light and air may extend upon or over the distance of the wall from any boundary line or the width of the space of any set back so to encroach upon the specified width of three or five feet by more than one-fourth.
Provided that nothing in this subclause shall prevent a cornice or eave which projects not more than eighteen inches from returning along the sidewall for a distance not exceeding six feet.
(d) A window in a recess in a wall shall be deemed to be a window in such wall for the purpose of this clause.

7.

(e) In the case of a proposal to alter any building which was erected before 1st August, 1962, the preceding provisions of this clause shall not be held to prevent the Council from granting approval to the construction of additional windows in a wall if, in the opinion of the Council, any such additional windows are necessary to make the building a more healthy building.

---------------------------------

Among common problems confronting surveyors to-day are the many cases involving the construction of garages as an integral part of the cottage and generally under the same main roof and where the wall of the garage is erected at a lesser distance than three feet from the boundary.

It was shown that a great diversity of opinions exist among Councils as to whether such a building complies with the provisions of Ordinance 71 Clause 48(a) or (c).

The Department of Local Governments' opinion is that a wall of a garage is a wall of a dwelling and as such should comply with Clause 48(a) or 48(b)(i) if Council has given approval for the wall to be built at a lesser distance than three. It should be pointed out that all local Councils are autonomous and the opinion of the Local Government Department is only a guide to Councils. Clause 48(b)(i) gives Councils the power to approve of such buildings by a 'RESOLUTION IN THE INDIVIDUAL CASE".

This places the surveyor in a position where he finds a wall of a building, which on its site appears to be an infringement, has in fact been erected in accordance with approved plans and therefore in compliance with Ordinance 71 Clause 48(b)(i) but does not and cannot be said to comply with Clause 48(a) and/or (c).

From the aforesaid it appears that surveyors should check the building approval for cottages under construction when an infringement with Clause 48(a) and/or(c) appears to have been committed. By so doing he will then be in a position to determine and report on whether the building complies with Clause 48(b)(i). The committee is of the opinion that although most approvals involving the use of Clause 48(b)(i) are made under delegated authority Councils do have the power to grant such approvals.

It is
further to the opinion of this committee that Clause 48(b)(i) should be amended to delete the words "By resolution in the individual case" and so remedy the situation common to all Councils to-day where building plans are approved under delegated authority and not "By resolution in the individual case".

Members should also be aware that discussions are currently being held between all State Departments of Local Government with a view to bringing about uniform building regulations throughout Australia. This will mean a completely new format for building regulations when implemented.

8.

The committee also desires to draw members attention to a recent summons laid by Sutherland Shire Council against a building company in the Court of Petty Session at Sutherland alleging a breach of Sec. 317 of the Local Government Act in that the cottage as erected did not conform to the approved building plans, which showed that the building was to be erected 3' 0" from the side boundary. The company pleaded guilty and was fined $40.00 plus costs. (The wall was erected 2' 10" from the boundary).

The committee wishes to acknowledge its grateful appreciation to Mr.W.G. Hunt for his kind permission to reproduce herein a precis prepared by him of the building ordinance.