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By Murray Thornhill & Julia McCullagh
HHG Legal Group
Perth, Australia

With regular media reports filled with stories of residents’ shock at driveway access and front verge issues at their property, HHG Legal Group has pulled together some  answers to frequently asked questions which our property team lawyers are regularly asked about.

Do I own my verge?

No, you do not own your verge. The Local Government Act 1995 provides for local governments to care for, control and manage public land. Your verge is ‘crown land’ under the control of your local government.

Can the council control what I do with my verge?

The maintenance of a verge is the responsibility of the adjacent landowner or occupier. The Local Government Act 1995 gives powers to local governments to do certain things for the purpose of controlling and managing public land, this includes making local laws. What you can do with your verge is governed by the local laws of your local government and will vary depending on where you live.

What if I want to put up a swing or plant a garden?

Most local governments have lists of permissible “verge treatments,” which include planting gardens but have local laws preventing you from putting up “structures” without permission. Structures are generally considered to include built-up box gardens, swings and tree houses.

One reason why the local government may be reluctant to allow you to build swings and similar things on your verge is that (as the land is under their control, rather than private property) the local government is potentially liable for any injury.

Another reason that local governments may prevent you from putting up a structure on your verge is that they often have local laws aimed at protecting motorists’ lines of sight at intersections.

The rules and local laws are, however, not always the same. Your first stop should be to check your local government’s webpage. The City of Vincent, for example, recently adopted a policy that allows residents to attach ladders, swings, cubbies and platforms to street trees, as well as decorations and lighting, residents can also install raised garden beds, seats, logs, rocks and various forms of paving on their verge.

Do I need local government approval to build a driveway?

Yes, local government approval is needed for the construction of that section of a driveway that crosses the verge from the road edge to the property boundary. Each local government has different rules and requirements for driveways (such as how wide they can be and how close they can be to street trees).  There are penalties for property owners who construct a driveway without council approval. Potentially they could be fined up to $5000.  Local governments also have the power to require property owners to repair the driveway and to remove a driveway that is no longer being used.  However, a property owner would not be prosecuted for a driveway constructed by the previous owner without approval. The local government also does not have the power to force a property owner to remove and re-do a driveway that was constructed by a previous owner and which does not comply with the local government’s driveway rules.

My local government won’t let me put up a swing or put in the driveway that I want. What can I do?

Under the Local Government Act 1995, if you are a person affected by an unfavourable decision you have a right to lodge an objection with the local government within 28 days. This objection must be reviewed by the Council or a sub-committee of the Council (rather than an employee of the local government).  You also have a right to apply to the State Administrative Tribunal (SAT) for a review of the decision. You can apply to the SAT for a review if you have not lodged an objection with your local government or if your objection was rejected or you did not receive a response.