Easements

Many allotments have an easement registered on title in order to provide a necessary service to adjacent properties. Sewerage and drainage easements are particularly common.

Drainage easements are usually sited along the side or rear of the allotment and may contain drains which service a number of adjacent properties. Generally structures (building works) should not be sited over such easements as Council requires long term access for maintenance and the eventual replacement of the drain.

On occasion, due to site contraints, owners may desire to place some form of building work over an easement. The Building Regulations require that, in order to do this, Council must first issue a consent and report.

Consent of Council will only be issued if Council is assured that long term access to any drain remains viable and the foundations of the proposed structure cannot damage the drain. This limits the type of building work to which Council may consent.

Council may consent to the siting of lightweight structures such as carports or sheds over an easement. Council is unlikely to consent to siting of an extension to a dwelling, masonry garage, swimming pool or similar structure over an easement however.

Where Council agrees to consent to the building of a structure over an easement it is likely to include conditions designed to protect the long-term integrity of the drain.

Conditions may include the replacement of the existing old drain to a standard established by Council's drainage engineers at the owner's cost. This condition is often applied when the drain is known to be of an age or size which is likely to require replacement in the forseeable future. This assumes that the life of the new drain will outlast the life of the proposed structure.

Council may also require the owner to enter into a 'section 173 agreement' under Division 2 of Part 9 of the Planning & Environment Act. This is a legally binding agreement between Council and the property owner and subsequent owners which indemnifies Council from any claims should it need to access the easement in the future. The agreement is attached to the land title so that future owners are aware of it. The cost of establishing the agreement is borne by the owner.

Note Where an easement is shown as both a drainage and sewerage easement a separate consent is also required from the relevant water authority as sewerage easements are vested in the water authority for sewerage purposes.

Costs

The fee for an application for consent and report is $235. The usual legal fees for processing a standard agreement (if consent is to be given) are $870.50 plus $120 for administration.

To download an application form click our web page for consent and report fees and hit 'form for 'non-siting matters'.