Easements may restrict what you can build on your land, their location and the type of footings you can use when constructing. However,it is still possible to build over an easement. .
1. What is an easement?
An easement gives a thirdparty (not an owner of your land) the right to use part of your land for a specific purpose. The most common forms of easements are rights of way and easements for services, such as water, electricity or sewerage, shared driveways etc…The Council and Yarra Valley Water require easementsfor the purposes of repairing pipes that may be installed across the boundary of your land,
2. Identifying the easement
Most easements areregistered on your Certificate of Title. Common easements are positive rights such as allowing for the draining of stormwater along a particular strip of land. More rarely, there are negative easements, which prevent particular actions occurring on the specified lot, for example a right for a degree of light not to be diminished.
The Subdivision Act (1988) specifies that easements must be outlined in plans of a particularpiece of land, so that potential purchases are not buying blind and are aware of the easement and its implications.
3. Consent from relevant authority
It is possible to build on an easement if you have obtained the consent from your local council or from the party that the easement is registered in favour of. This usually requires submitting an application form to the relevant public utility provider or to the legal owner. For example;
Application to Melbourne Water authority must include:
- Structure type and specifications
- Structure location within the property
- General dimensions and clearances
- Footing details (type/depth etc)
- Survey plans of the property
4. Feasibility of consent
The terms of an easement, evident on the registered title will help determine whether your building plans would receive such consent. The relevant authority would want to ensure that they can continue to use the right (pipelines) and any ancillary needs for that right (access to pipelines). Application forms for consent also specify guidelines as to what sort of building plans will and will not be considered.
5. Application to modify or extinguish easement
If building over an easement would be detrimental to your building plans even with consent, then you may apply to the relevant council or authority to have the easement modified.
Alternatively, an application to modify or extinguish an easement may be made under s84 Property Law Act 1958 (Vic) or s73 of Transfer of Land Act 1958 (Vic) where the easement has been abandoned.
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