VIC – HENDRY building surveyors advise that it is important to determine very early in a design phase process what requirements will apply when contemplating a design that includes some part of the construction to be places on or over an easement. Easements are usually an encumbrance mentioned on the title however implied easements also exist and are a factor to be considered when a building subdivision has occurred. Additionally, easements in the past have been created under common law by grant or by reservation or implied under law in unusual situations.

It is a standard requirement to provide a current copy of the title when lodging an application for a building permit. The title will show ownership, land dimensions and the encumbrances such as easements which have been expressly created. Easements can be created for a number of purposes and can vest in the interest of the land owner, another land or an authority.

Electrical, drainage and sewerage easements for example vest in the related authority having access and control which means any construction on or over the easement requires the consent of that authority.

Drainage easements are vested to the council whose engineering section will assess the implications of the proposed construction.

The Building Regulations 2006 (Reg 310) require applicants to get a report and consent of a service authority before a building permit is allowed to be issued.

Most Councils have policies in place to deal with construction over easements. Typically, council policies will permit the evaluation or minor work or structures over an easement but those that fall out of that category will not be allowed to be places on or over an easement.

In some cases, councils will require an agreement to be registered on title pursuant to section 173 of the Planning and Environment Act as a necessary feature of the approval. Similarly, a service authority also will have policies in place.

Therefore it is important to establish requirements almost as a first step when proposing to building on or over an easement and to allow sufficient time for the process to be managed to a conclusion. It may also be necessary to limit the form of construction to minor works such as portable or relocatable buildings, fences, masts or poles, eaves, earth fillings, paving and other temporary type structures.

In the case of implied easements under a Section 12 of the Subdivision Act, in particular for a building subdivision, it may be necessary to relate and compare the subdivision plan to the final working drawings of the building before the implied easements can be identified.

It will also be necessary to liaise and obtain the consent of the Owners Corporation and all title holders in the plan of subdivision as implied easements may not always be in common property are not normally delineated on the plan of subdivision. It is usual that the plan will contain a statement invoking the implied easement provisions of the Act.