Apply for consent to build over 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.

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

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.

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.

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).