Do you have an easement on your property? Are you planning to do some landscaping work in your garden? Would you like to know what kind of landscaping work, if any, is allowed on the easement section of your property?
In the past 30+ years, we've designed and landscaped new gardens for literally hundreds of clients who have easements on their property. So we're very conversant with the rules that apply to easements.
We also understand some of the "tricks and traps" of dealing with the authorities who generally have the final say about what can and can't be done on an easement.
If you'd like to know the answers to all your questions about easements, please read on. You should have them all answered by the end of this article.
What is an easement in a Melbourne residence?
"An easement is a right held by someone to use land belonging to someone else for a specific purpose. Common examples of easements are drainage, sewerage and carriageway easements." - Land.Vic
In practical terms, an easement is a section of your land that is designated for such things as sewerage or water pipes to run through. These are public assets that exist for the benefit and use of the whole community.
Your easement may have both sewer and water pipes running through it or it might have only one of each type. It may even have no pipes in it because the land was designated as an easement. However, no pipes have yet been laid there (usually meaning they decided not to lay them but they still retain it as an easement). In newer suburbs with underground power, there may be an easement for power lines too.
It is most common to have an easement run along the rear boundary of your property. But sometimes an easement can also run down the side of your property. In very rare cases it may run across the front of your property.
Who owns the easement on my property?
The simple answer is that if you own the property on which the easement is located then you still own the land that makes up the easement.
However, unlike the rest of your property where you are pretty much free to build whatever you like on it, (within reason and what building permits allow), there are some very definite restrictions on what you can and can't build on an easement.
While the land is yours, the fact that there is often an underground asset running through the easement which belongs to say a water authority makes things complex. Because the relevant authority has rights to access that asset, like a sewer main for example, in order to repair, maintain or replace it, then you often can't build things that might affect those underground assets or prevent the authority from gaining access to them.
This is a very practical right because a sewer main for example exists for the benefit of the entire community, including you and it would be selfish to deny that authority the right to gain free access to it to ensure it continues to be of benefit to the community.
How large is a residential easement generally?
One of the most common sizes of an easement in say the Eastern suburbs of Melbourne would be a strip of land running up to 1.8m off the rear fence. However, they can be larger, up to 3 or even 4 metres.
If your easement runs down the side of the property it may be quite different in width to a rear easement.
Here is an example of an easement drawn on our landscaping plans for a client.
What can you freely landscape over an easement?
The whole decision-making process concerning building over an easement is generally related to whether or not the authority believes your works may damage the pipes below ground or if you may prevent them from accessing the pipes when they need to.
So for example, if you are planning to plant some lawn and a few small shrubs in the easement that should not be a problem. Trees can also be OK up to a point, but large trees with invasive root systems would not be acceptable as the roots can damage the pipes.
Some small structures that sit on the ground, are not too heavy and could be easily moved if necessary are also generally fine. So a cubby house for example could be OK as would a trampoline for example.
Do I need approval to build over an easement?
"If you’re planning to build over or near any of our easements or underground assets you’ll need to get our consent before starting any work." Melbourne Water
This statement from the Melbourne Water website about approval for building over an easement would be similar to what other authorities would say. You might also find a similar statement on local council websites for easements with assets they own. If two different authorities own assets in your easement you will need to get approval from both of them.
Note: one of the traps in this whole area of approval is that statement saying "over or near" an easement. You may find yourself saying that your plans for a pool for example will not encroach on the actual easement but if they are near the easement then approval may be required.
As you can see in the plans below, a pool house in North Balwyn we were planning to build was up against an easement but not over it. Still, all details of the sewer had to be noted on our plans and approval sought.
What generally needs approval in an easement?
When it comes to landscaping over an easement, these are some of the most common reasons we've had to apply for approval on behalf of our clients:
- Retaining walls
- Decking
- Pergolas
- Fences
- Basketball/tennis courts, etc
You may find other examples where you will need to apply for approval but generally, these are the most common landscaping elements we find we have to apply for when are working over an easement.
Now there can be several items in a new landscaped garden that require approval even if they are going to be constructed near to but outside the easement. For example, a retaining wall may require deep footings that could potentially damage the pipes underground. Or a pergola or other structure may also require deep footings and this can be assessed as being a risk to the pipes.
What might not be approved to build over an easement?
Generally speaking, any major structures would not be approved to be built over an easement for obvious reasons thatthey would damage the pipes and/or completely block access to the pipes for maintenance.
A swimming pool for example is just not going to be approved. A pool house next to a pool is also not likely to be approved. A large garden shed or garage may not be approved even if it does not have deep footings.
Generally speaking, the fastest way to get an idea of whether or not something is going to be approved is to make a quick call to the relevant authority and have a brief discussion to gauge possible acceptance or disapproval of your plan.
What's involved in the approval process for easements?
When you apply for approval to do anything over an easement, generally the relevant authority will want to know two things. First, they will want to know what will be sitting on or above the ground. But more importantly, they will want to know about any structural elements that are planned to go into the ground. ie footings.
Your formal application will need to include any and all relevant information to be well documented in a clearly defined format so that all plans can be clearly understood.
At Whyte Gardens, we typically draw up very detailed plans for all elements in a garden, including any engineering drawings required that provide exact specifications for how something might be constructed.
This allows the relevant authority to then clearly see how the planned garden element might possibly impact the easement.
Note that it is NOT uncommon for an authority to say to you, "We have no precise record of exactly where the pipes are laid in your easement, so you will need to hire a plumber to conduct an inspection to discover exactly where the pipes are laid and at what depth."
Where the pipes sit in the easement is also a factor due to there often being a minimum distance that footing needs to be from a pipe.
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We hope you have found this article on easements useful and informative. Should you have any more questions in regards to easements or other related subjects please feel free to contact us and we will be happy to answer them. Please contact us by phone or email:
