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Building over Easement

Building over a Council stormwater drainage easement

You must apply for approval to build over an easement in your property. Council will assess a detail design plan and footing details of the proposed structure to ensure that all aspects of this meet the current guidelines and will not impact on any Council's assets that may be in the easement.

What is a drainage easement and why is there an easement in my property?

An easement is a defined area of land registered on a land title that gives Council and/or other authorities, access rights through your property. Typically Council uses these rights for the maintenance, installation, replacement or upgrades of essential drainage infrastructure. Other common examples of easements on properties are sewerage and carriageway easements. Easements are generally shown on your copy of Certificate of Title and may be at the rear of a property or down the side of the property. The easements may contain a Council and/or Melbourne Water drain and/or a South East Water sewer main or electricity supply/gas main or they may be empty and reserved for a future drain or sewer or power/gas supply.

Sometimes building over these easements is not permitted because access to the buried pipes may be required for maintenance or renewal.

As an easement is shown on your property title you will not be able to find out from the title if there are any physical assets located in your easement. One way to find out if any assets are present in the easement is to lodge a dial before you dig inquiry by calling 1100 or submitting an online application.

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If there are no assets in my easement will I automatically be able to build over the easement?

You must always apply for approval to build over an easement regardless of if there are any assets in the Easement. If there is no stormwater drain located in the easement Council will need to assess if there will be any future need to construct a stormwater drain in the easement and if the area is prone to flooding / in an overland flood path then Council may not grant approval to build over the easement or may approve the application subject to specific conditions.

The approval and condition requirements will depend on the type of structure that is being requested to be built over the easement.

What is an implied easement?

It is not uncommon to have a Council stormwater drain, another authority’s sewer asset or a private drain in a property not supported by a registered or recorded easement. Despite this, when a Council drain is not supported by a formal easement in favour of Council - because it performs a public function - is vested in and under the management and control of Council pursuant to section 198 of the Local Government Act 1989.

Do I require other Authority approvals to build over an easement?

If your title has an easement in favour of other Authorities i.e. a sewer easement or main drain then you must also obtain approval from that Authority to build over the easement and adhere to any conditions stipulated.
A copy of the Water Authority written approval is required to be submitted with your Build over Easement application to Council.

What structures can be approved to be built over an easement?

A detailed plan of the proposed structure including footing details must be submitted for approval of any structure. In general the following works will require a Build over Easement application:

  • Garage/Shed
  • Car Port
  • Swimming Pool Safety Fencing
  • Verandah / Pergola
  • Deck
  • Fence
  • Eaves
  • Balcony
  • Steps/Stairs
  • Changes in ground level
  • Retaining Walls

What structures cannot be approved to be built over an easement?

A detailed plan of the proposed structure including footing details must be submitted for approval of any structure. In general Council does not allow the following to be built over an easement:

  • Habitable Rooms or Class 1 Building
  • Basements
  • Swimming Pool/Spa
  • Sheds & Garages over 9m in length
  • Underground Car Stacker
  • Underground Rainwater Tank
  • Rainwater Tank greater than 3kL in size
  • Structures to be built over an easement containing a Council stormwater pipe greater than 450mm in diameter

What if the easement is clear and I want it expunged from my title?

Please note it is not always possible to remove an easement. Unused easements (i.e. without any assets/pipes) may provide overland flow paths or be required for future use. Council’s Engineers would need to check and assess if there are any plans to construct an easement drain in the future and/or the easement is required to be kept clear to provide an overland flow path.

One of the options to find out if any assets are present is to lodge a dial before you dig inquiry by calling 1100 or submitting an online application. If you have ascertained there are no assets contained within your easement you may apply to remove and/or vary the easement by lodging a Planning Application in accordance with Clause 52.02 Easements, Restrictions & Reserves of the City of Kingston Planning Scheme. Visit our Lodging Your Application page for more information on how to apply for a Planning Permit.

For more information on Clause 52.02 please refer to the Kingston Planning Scheme.

How do I apply to build over an easement and how long does it take?

The assessment timeframe for Build over easement application is generally up to 14 business days. The actual processing time is subject to the complexity of the application. Please note the application fee is not refundable if approval is denied.

Build over Easement consents are only valid for 12 months from the issue date.

What are the applicable fees involved to build over an easement?

The current fee to build over easement (Regulation 130 – Building Over an Easement) is $290.40 per application (until 30 June 2020 - subject to change on an annual basis).

Please note that applications that have a Council Stormwater Drain in the easement may be subject to additional fees as the condition of the asset may need to be checked prior to and upon completion of the works by CCTV monitoring the drain. This task would be arranged by Council but paid by the applicant. Depending on the condition of Council’s asset any maintenance works that may be required in order to sustain the proposed build over structure would also need to be carried out by Council prior to the commencement of any works if approval was granted.

CCTV monitoring and investigations can be in the order of $1,000 subject to the complexity of the situation and is subject to annual price increases by the companies that undertake these works.

What conditions are possible when consent is granted?

It’s possible that approval to build over the drainage easement may be granted but subject to certain conditions that need to be adhered to and all associated costs borne by the applicant. Possible conditions may include some or all of the following:

  • Pipe upgrade works if the pipe is under capacity and/or final stage of service life
  • Installation of additional drainage pits 
  • Protection works for Council drainage
  • Footing depth requirements
  • Protection works to neighbouring property assets
  • Protection works for vegetation

More Information

Download the Guidelines for Building over an Easement.

If you have read the above information and still have further questions in relation to building over an easement please contact Council’s Development Engineers on 9581 4131.