What happens if i build on an easement

Typically, an environmental planning instrument provides that regulatory instruments which "impose restrictions on the carrying out of development" do not apply. There is tension between the cases which have looked at whether an easement "imposes restrictions on development".

In Doe v Cogente 94 LGERA , the court held that a provision made under section 28 of the EPA Act suspended the operation of a access way, so that an approved development could proceed on the burdened land. The court found that the instrument evidencing the access way did not impose restrictions on development, as the instrument actually conferred positive rights of ownership or use.

The court also argued that Doe v Cogente was wrongly decided. If an easement burdens the property you propose to develop, examine the scope of the easement and assess whether your proposed work will cause a material interference with the enjoyment of the easement.

You should also investigate whether the environmental planning instrument contains a provision suspending the easement. These issues are particularly relevant when carrying out your due diligence before the purchase of a property for redevelopment. We regularly help developers deal with this difficult issue. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision.

The content also is subject to change. Map: find out what's underground Standard easement terms Fact sheet: easements. Examples where you will need to seek approval: where the clearance from Unitywater infrastructure to a fence, building or other structure will be reduced to less than 1.

Good tip: If you're planning to put in a standard driveway over or near water or sewerage infrastructure, you do not need to apply for approval from Unitywater. Please include the Form 15 Design Certificate that your structural engineer will provide.

Please view our full FAQ section on easements and easement encroachment. Fences driveways sheds and existing structures. Key points You must not at any time erect any permanent buildings or structures other than residential fences and residential driveways upon the easement land or obstruct or interfere with Unitywater assets or infrastructure contained in the easement land without our written permission.

Unitywater may direct you to remove the structure at your cost. If you do not remove the structure, Unitywater may remove it and you will be liable for the cost. Approval for fences, driveways, sheds and other existing structures You do not need approval for the following structures within a Unitywater easement: Fences Driveways Small plants and shrubs Eaves three meters or over the vertical clearance from ground level to the underside of the overhang.

Good to know Land acquisition. There are utility easements that allow sewer and gas lines. There are sidewalk easements that allow the public to walk in front of your property if they stay on the sidewalk.

These easements allow the public, government agencies, and utility companies to have access to your property, although you still own the property. If you truly do own your house and land in full, how can someone lay claim to your property in perpetuity? Therein lies the core issue. Although you do own your property, due to a greater public good, you have agreed to allow access to part of your land in service of that good. A survey should have been provided when you closed on the purchase of your home.

It normally depicts easements and setbacks specific to your property. Title work provided during your purchase will also note the easements in the exceptions portion of the title report.

For example, although you may receive approval from the HOA to build a pool, if it encroaches on all or part of a utility or MUD easement, and an easement holder needs access, the easement holder has the right to access the easement. If that access involves removing all or part of your pool, the easement holder is NOT obligated to repair or replace any damage done to the pool.

The approval of one easement holder does not wave the rights of another easement holder. Know Before You Build! However, there are some cases where you may be permitted to build over an easement as outlined below and subject to strict conditions. If you propose to build over an easement, and Yarra Valley Water is the service authority, you must first apply to them for a permit. Where easements exist for other services for example gas, telecommunications, electricity , you must first get written consent from each of the relevant service authorities before we can give our consent.

After you gain approval, you must then apply to our Building Services Department for a Report and consent to build over an easement.

Generally the only types of buildings that we permit to be constructed over an easement containing drainage assets are:. Prior to lodging your application, please ensure you have all the required documentation including:.