Easements, Covenants and Overlays

Legal and planning restrictions can significantly impact where and how you can build on your land.

Easements and Rights of Way

An easement is a section of your land that someone else has a right to use for a specific purpose. Most commonly, these are for utility providers to access sewerage pipes, drainage, or power lines. If an easement exists on your property, you are generally restricted from building any permanent structures over it, such as a garage or an extension of the house. You can find details of easements on the Plan of Subdivision in your Section 32 statement. It is critical to identify these before designing your home, as an easement across the middle of a block can severely limit your building envelope.

If you wish to build near or over an easement, you must seek permission from the relevant authority, such as the local water board or council. They may grant 'consent to build over an easement' under strict conditions, such as using lightweight materials or ensuring the structure can be easily removed. However, there is no guarantee that permission will be granted. If you build over an easement without approval, the authority has the legal right to demolish your structure to access their infrastructure, and they are usually not required to pay for the damage.

Covenants and Section 173 Agreements

Restrictive covenants are rules that limit how you can use or develop your land. They are often placed on titles by developers to maintain a certain standard or aesthetic within a new estate. For example, a covenant might dictate that you can only use certain types of roofing materials, forbid the construction of a shed in the front yard, or prevent you from subdividing the land. These rules 'run with the land', meaning they apply to every subsequent owner. It is vital to have your legal representative review the title to ensure you can build the specific home you have in mind.

A Section 173 Agreement is a legal contract between a landowner and the local council. These agreements are often used to enforce planning conditions, such as protecting native vegetation or requiring specific drainage management. Unlike a standard planning permit, a Section 173 Agreement is registered on the land title and is much harder to change. These agreements can impose ongoing obligations or costs, so you must understand the full implications before committing to a purchase. They are publicly available documents and should be included in the vendor statement.

Navigating Planning Overlays

Planning overlays are maps that identify specific characteristics of an area that the council wants to manage. Common overlays in Victoria include the Heritage Overlay, the Bushfire Management Overlay, and the Land Subject to Inundation Overlay. Each overlay comes with its own set of rules and may require you to obtain a planning permit even if the underlying zone normally wouldn't require one. For example, a Heritage Overlay might restrict the colours you can paint your house or the types of windows you can install. You can check the overlays for any Victorian address for free on the VicPlan website.

Overlays can add significant time and cost to your project. If your land is in an Environmental Significance Overlay, you might need to hire a consultant to prepare an arborist report or a flora and fauna assessment. These reports must be submitted to the council as part of your planning application. Failure to comply with overlay requirements can result in fines or a refusal of your building permit. Always factor in the cost of these reports and the potential for design changes when calculating your total budget and timeline.

• Check the Plan of Subdivision for easements
• Review the Section 32 for restrictive covenants
• Search VicPlan for planning overlays
• Verify if a Section 173 Agreement exists
• Identify building envelope restrictions on the title