How do easements and covenants affect a property in Victoria?

If you are house hunting around Melbourne or sketching plans for a renovation, two quiet notes on the title can shape everything you do. Easements and covenants do not make much noise. They sit on the plan and in the documents, then jump into the spotlight the moment you try to put a pool where a pipe runs or propose a second dwelling where only one is allowed. This guide explains what they are, how they work in Victoria, and how to read them with confidence before you sign a contract or lodge drawings.

What Are Easements and Covenants?

Easements are legal rights that allow someone other than the owner to use part of the land for a specific purpose. Think drainage, sewerage, electricity or shared access. You still own the strip of land, yet you must not block the right. On many Melbourne blocks you will see a narrow band along the rear or side fence reserved for underground services or a shared driveway serving a rear lot.

Restrictive covenants are different. A covenant is a restirction on the title that limits what can be built or how the land can be used. A common example across older suburbs is a single dwelling covenant. Others set minimum setbacks, control building materials or limit subdivision. These restrictions bind current and future owners until the covenant is properly varied or removed. A planning permit on its own does not cancel a covenant, so you need to know which rules you are dealing with before you plan anything ambitious.

Where to Find Easements and Covenants on Melbourne Properties

Start with three documents.

The title. This is the official record for the land. It will list any registered restrictions and may refer to instruments that contain the actual wording.
The plan of subdivision. This shows the lot boundaries and usually marks easements as hatched or shaded areas with labels like drainage, sewerage or carriageway. The notes on the plan often point to covenants created when the plan was registered.
The Section 32 Statement. When you buy, the vendor must disclose easements and covenants that affect the property. Read this carefully. If anything looks missing or unclear, ask questions early.

It helps to look at the plan like a map of fixed rules. If a one metre drainage easement runs along the back fence, treat it as a no-go zone unless the authority that benefits gives written consent. If the title points to a covenant instrument, obtain a copy and read the exact words. A single phrase can make or break a project.

Common Types of Easements in Victoria

Drainage and Sewerage Easements

These allow councils or water corporations to install, access and maintain underground pipes. You might not see anything on the surface. The right still exists. Building over or very close to these assets usually needs written consent and often special footing designs so the pipe remains accessible.

Service Easements in Favour of an Authority

Some easements benefit a utility directly. These are often called easements. They may relate to water, power, gas or communications. The label on the plan usually names the beneficiary. That is the organisation you must contact for consent.

Carriageway or Access Easements

These let vehicles or pedestrians cross one lot to reach another. They are common with battle-axe driveways and dual occupancies. Fences, gates and landscaping cannot obstruct the easement area, and heavy vehicles may be restricted to protect the surface or subsurface structure.

How Easements Affect Building and Development Plans

Easements narrow your buildable area and add steps to your approval process. The usual pattern is simple.

Identify the easement and who benefits from it. The beneficiary is often a water corporation or the local council.
Speak with that authority before you finalise plans. Many publish clear requirements for building over or near assets. Typical conditions include concrete encasement of pipes, pier and beam footings that span the easement, or a minimum clearance to maintain access.
Your building surveyor may also need to seek council report and consent to build over an easement under the Building Regulations. This is separate from the authority's approval, so allow time for both.

If you skip these steps, you risk a stop work notice or, worse, an order to remove the structure at your cost. Builders and designers who work regularly in Melbourne will factor easements in from day one. It is cheaper to design around a pipe than to move one.

Understanding Restrictive Covenants in Melbourne

Restrictive covenants vary, yet a few patterns keep turning up around Melbourne.

Single dwelling covenants prevent more than one dwelling on a lot. They often date from the mid-twentieth century and still carry weight. If you are planning townhouses, check for this first.
Materials covenants require certain finishes, such as brick or tile. You may need to adjust a lightweight or modular design to comply.
Setback or height limits sometimes appear in covenants and may be stricter than the planning scheme. The tighter rule wins.

Covenants are enforced by those who benefit from them. That might be neighbouring owners within the same subdivision or a particular lot identified in the instrument. Councils will also refuse a permit that would breach an existing covenant. The wording is everything, so get a complete copy of the instrument and read it line by line.

Section 173 Agreements: What Property Owners Need to Know

Section 173 Agreements are agreements between the landowner and council under the Planning and Environment Act. They are registered on the title and can control the use or development of land. They often secure conditions of a planning permit. Although they can feel similar to covenants, the legal source and the process to vary or end them are different. If your title lists one, read the terms carefully and talk with your conveyancer or planner about what it means for your project.

Property Due Diligence Checklist for Melbourne Buyers

Before you sign, complete a few practical checks.

Order a fresh title and plan. Do not rely on an old copy pulled from a previous sale. You want the current position.
Read the Section 32 Statement. Confirm every easement is shown, confirm any covenant instruments are attached, and check whether a Section 173 Agreement is recorded.
Walk the block. Look for inspection pits, manholes, power kiosks and stormwater grates. These often sit on an easement.
Measure your buildable area. Sketch a simple site plan with the easement shaded out. If your dream extension sits squarely inside that area, you know early that you will be seeking consent or reconsidering the design.
Ask a professional to review. A short pre-purchase check by a conveyancer can save months of rework later.

Step-by-Step Guide to Building Near or Over an Easement

Most owners follow a sequence that keeps risk down.

Confirm the easement type and beneficiary from the plan and title.
Contact the authority early with a concept sketch. Ask for their build over or build near policy and any standard conditions.
Revise the design to respect clearances and access needs. Common tweaks include raising a deck on posts, using removable pavers, or shifting a garage a small distance to clear the pipe.
Apply formally to the authority for consent. Expect to provide drawings, footing details and a site plan. Fees are common. The authority might require a CCTV inspection of the pipe before and after works.
Once the authority signs off, your building surveyor can seek council report and consent if required. Keep both approvals with your permit.

None of this is glamorous. It is solid, methodical work that protects critical infrastructure and keeps your project on track. The best designs account for maintenance access, so the pipe can be repaired in ten years without cutting through your new slab.

How to Change or Remove a Restrictive Covenant

Yes, although it is not automatic. There are two main routes in Victoria.

The planning pathway. You apply to council for a planning permit to vary or remove the covenant. Notice is given to those who benefit, and objections can be made. Councils assess whether the change would harm neighbours or the broader character. This route suits modest changes with limited external impact.
The Supreme Court pathway. You apply to the Court to modify or discharge the covenant under section 84 of the Property Law Act. The Court considers tests such as whether the restriction has become obsolete, whether it unreasonably impedes reasonable use without securing a material benefit for others, and whether those who benefit would suffer substantial injury. This is a technical process and calls for specialist legal input.

There is also a consent route in some situations. If every person who benefits from the covenant agrees in writing, a variation or release can be registered. The catch is identifying every beneficiary with certainty. The creation method matters. A covenant created on a plan of subdivision can operate differently from one created by a separate instrument. This is where tailored advice is worth its weight.

Creating, Varying or Removing Easements

Easements are often created when a plan of subdivision is registered. Proposed easements are shown on the plan and take effect on registration. They can also be created or varied by instrument, for example when an owner and an authority agree to realign a drainage easement to fit a new lot layout. Removal or variation usually requires the written consent of the beneficiary and the correct documentation with Land Use Victoria. In some cases a planning permit and certification process is needed before the titles office work can be done.

Real-World Melbourne Property Examples

A Brunswick Terrace with Rear Drainage Easement

You want a kitchen extension that touches the back fence. The plan shows a one metre drainage easement. The water authority is likely to insist on clear access and may require a raised floor on steel posts rather than a slab. Design with removable decking boards and a tidy access hatch above the inspection pit. The result looks clean and keeps everyone happy.

A Glen Waverley Corner Block for Dual Occupancy

The title reveals a single dwelling covenant from the 1960s. Your feasibility depends on two dwellings. You map out the options. Either pursue a planning permit to vary or remove the covenant with council or brief a lawyer about a Supreme Court application. You build the time, cost and risk into the numbers. If the numbers do not stack up, you keep looking for a site without that restriction.

An Essendon Side Access Easement

The neighbour has a right to drive along your side boundary to reach their rear garage. You plan a new front fence. Include a gate that opens freely in the easement area and avoid fixed landscaping that narrows the driveway. A simple design change prevents a dispute and keeps the easement functioning as intended.

A Point Cook Family Home with Service Pit

The kids want a plunge pool. The pit cover sits inside a sewer easement across the back. You explore two layouts. One keeps the pool outside the easement and uses a narrow lap shape. The other spans the easement with a raised deck and removable panels. The authority prefers the first option. You choose the lap pool and keep maintenance simple.

Frequently Asked Questions About Easements and Covenants

How do I check if my land has an easement or covenant? Order a current title and plan of subdivision, then read the instruments listed. If you are buying, the Section 32 Statement must disclose them.

Can I put a shed, deck or pool over an easement? You usually need written consent from the beneficiary authority and, for building work, council report and consent. Never assume a small structure is exempt.

Does a planning permit override a covenant? No. If a covenant stands in the way, you must vary or remove it through the correct legal pathway before the development can proceed.

Who can enforce a covenant? People who benefit from it, often neighbouring owners within the same subdivision. Councils will also refuse permits that would breach an existing covenant.

What is an easement in gross? An easement that benefits an authority directly rather than another parcel of land. A pipeline or power easement in favour of a utility is a typical example.

Essential Tips for Melbourne Property Owners and Buyers

Treat the title and plan as the rule book for your block. Find every easement and read every restriction before you sketch a design or make an offer.
Do not build over a service easement without written consent. Expect conditions that protect access to the asset and be ready for council report and consent.
Read the exact wording of any covenant. If your project depends on changing it, get advice on the planning pathway and the Supreme Court pathway early.
Section 173 Agreements sit in their own category. Understand the terms and how they are enforced before you plan works.

Getting Professional Help with Easements and Covenants

Easements and covenants are not there to trip you up. They exist to protect infrastructure, guide neighbourhood character and make sure land is used sensibly. Problems usually arise when they are ignored or misunderstood. Spend a little time up front reading the plan and title, and you will save a lot of time later. If you are uncertain, get a second set of eyes across your documents. Clear advice at the start can turn a nervous yes into a confident one.

For friendly, plain-English guidance that is tailored to your property, contact Pearson Chambers Conveyancing. We can review your Section 32 Statement for free, highlight any easements or covenants that matter, and help you plan the right next step.

Phone: 03 9969 2405
Email: contact@pearsonchambers.com.au