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Building Over Easements

If you intend to build over an easement you must:

  1. Obtain consent from any service authorities who have rights to your easement
  2. Obtain a building permit for the project

Regulation 130 (1) of the Building Regulations 2018 states ‘the report and consent of the relevant service authority must be obtained to an application for a building permit to construct a building over an easement vested in that service authority’.

It is Councils intent to preserve its rights to use easements created in its favour while also allowing reasonable use of the easement by the landowner.

Application Form

What is an easement?

An easement is a section of land registered on your Property Title that gives Council, or other nominated authorities, access rights through your property.

Council will typically use these rights for the installation, upgrade and maintenance of stormwater drainage infrastructure. Easements should appear on a copy of your properties certificate of title, although in some instances where an asset exists in the ground and no easement exists on title, an implied easement will exist.

Easements vary in width depending on their intended function and the type of assets that are contained within them. A typical drainage easement is 3.0m, however wider and narrower widths are not uncommon and a flood way easement can be much wider.

Swan Hill Rural City Council requires continual access to easements in order to ensure that its existing drainage network continues to provide reliable service and to connect new and existing developments to constructed drains.

What is an implied easement?

If a Council Drain has been constructed within your property but there is no easement on your title at the same location, an Implied Easement exists around the drain.

“An implied easement is enforced where there is no easement reserved on the property title and provides the same level of protection and rights of access for maintenance purposes as an easement on title. “

Regardless of whether the drain has been constructed within an easement, Council has the same rights of access to its assets for maintenance and operations, and Council must approve of any proposed works near or over it drains.

What is a build over easement agreement?

An agreement between Council and the property owner is entered into upon the consent to build over an easement to protect Council’s continuance right of access. This can be a standard build over easement agreement or a Section 173 agreement that records the same agreement onto the property title.

Council’s objectives

  • To meet out obligations in the Building Act 1993 and the Building Regulations 2018 as a “service authority”
  • To ensure access to junction pits is maintained
  • To ensure no additional load is placed on pipes
  • To ensure Council’s interests will be protected by way of agreements binding on current and future property owners

What factors are considered?

  • What is in the easement
  • Size of pipe
  • Type of structure proposed

Approved structures: Minor and Major

Council classify approved structures into two categories: Minor and Major

  • Minor works and structures : The owner is required to enter into a standard Build Over Easement Agreement.
  • Major works and structures : The owner is required to enter into a Section 173 agreement with Council that contains appropriate terms and conditions that ensures the ongoing protection of Council’s interests and assets in an easement. Where a Section 173 agreement is required the owner is to bear all costs for drafting the agreement and for registering the agreement on title. This is a lengthy and expensive process.

Minor works and structures

  • Timber fences
  • Brick fence perpendicular to easement provided no load is transferred to Council’s drain.
  • Internal Services i.e. down pipes, sewer pipes.
  • Standalone outbuildings of lightweight materials and steel frame with a floor area of less than 20 square metres such as steel shed.
  • Cut or Fill – Minimum 400mm cover to overt (top) of pipe.
  • A simple open carport i.e. with a flat steel roof, flat frame and steel or timber posts.
  • Simple timber decking structure on timber stumps.
  • Eaves where there is a minimum height from ground level of 2.2m.
  • Rain water tank (not concrete) provided that load is not transferred to Council’s drain i.e. must be on a structural platform.
  • Minor retaining walls i.e. not requiring a building permit only where it is unavoidable and the full impact on the effect on the Council drain is determined.
  • Paving, concrete or asphalt for pedestrians and vehicles.
  • Pool surrounds provide it is not part of the pool structure.

Major works and structures

  • Standalone outbuildings of lightweight materials and steel frame such as a steel shed.
  • Major timber structures that don’t fall within the minor category.
  • Any structure over a Legal Point of Discharge (LPOD).
  • Above ground swimming pools.

Non-permissible structures

Council will not permit the following in any easement whatsoever:

  • Any part of habitable dwelling.
  • Any structure under the same roofline as the habitable dwelling.
  • In ground Swimming Pools.
  • Structures containing sewerage fixtures within the easement.
  • Industrial buildings.
  • Any structure over or within 1m of a stormwater access pit.
  • Strip footings, only pad footings are allowed.
  • Brick garages, workshops or outbuildings.

Permissible structures

All structures or works over an easement require build over easement approval. Generally approved structures are portable and light weight.

The removal of such structures and their reinstatement shall be at the cost of the landowner, regardless of whether they or Council removed the structure for Council to gain access to the easement.

If there are no assets in the easement and the easement is not required for future use some exemptions as to what is approved may be considered.

Construction conditions

Major and minor structures must all comply with the following requirements and will be reviewed as part of the application process.

  • Any proposed buildings, works or structures are designed and constructed in a manner which protects the structural integrity of the drain e.g. no loads transferred to the drain. This may require deeper footings than structurally required to satisfy the angle of repose.
  • Any part of the building, structure (including footings) or works is kept at least 300 mm clear of the underground drain.

Formal approval is required by Council prior to works over a drainage easement. The images provide a quick visual guide as to what Council will allow.

Approval for any structures is only issued as long as certain requirements can be met, including but not limited to:

  • Footings must be offset at least 600mm from the drain.
  • Stormwater drains must remain covered by at least 600mm of soil.
  • Structures must not transfer their load to the drain, which is shown by using the angle of repose (see diagram below).
  • If the easement is designed to allow overland flow, the flow must not be obstructed.
  • If footings are required near a Council drain and the exact location of the drain is not confirmed, the property owner must uncover the drain at their cost.
  • The structure can moved or easily disassembled.
  • The structure is not placed over a pit or the Legal Point of Discharge

The following diagram shows how to calculate minimum footing depths to satisfy angle of repose requirements:

The following is a list of structures which may be approved, provided all other conditions are

  • Fences
  • Small sheds – less than 20m2, made of lightweight materials
  • Outbuildings – less than 20m2, made of lightweight materials
  • Water tanks
  • Timber decking
  • Retaining walls – minor enough to not require a building permit
  • Eaves – provided the height is at least 2.2m

What if the easement is clear and I want it expunged or I want to divert the pipe and easement?

This would no longer be a build over easement application. It can be assessed through an application to create, vary or remove an easement other than a right of way. It is not always possible to remove an easement.

You will need to complete and lodge a Planning permit application to create, vary or remove an easement.

Unused easements may provide overland flow paths or be required for future use. Diversions may not have alternative options or work hydraulically, all costs go to the developer which can be prohibitive (it is more likely to be considered for large developments.

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