You have found what looks like the perfect spot for a backyard studio. It is at the back of the garden, away from the house, and there seems to be plenty of room for a private retreat.
Then you look at your property plans and notice a strip running through the backyard.
It is marked as an easement.
Suddenly, that perfect spot might not be so simple.
If you have never dealt with an easement before, you might wonder whether you can actually build your studio there.
The short answer is: sometimes, but not always.
An easement gives another party certain rights over part of your property. In Victoria, easements are commonly used for sewerage, stormwater drainage, utilities or access. You still own the land, but there may be restrictions on what you can build within that area.
The first thing to understand is what the easement is for and who has rights over it. From there, you can work out whether you should build around it or investigate building over it.
What is an easement?
An easement is a legal right attached to part of a property. It allows another person, organisation or authority to use or access that part of the land for a particular purpose.
You still own the property. The easement does not mean that someone else owns that strip of your backyard.
The difference is that they may have certain rights over it.
A common example is a sewer pipe running underneath a backyard. The relevant authority needs to be able to get to that pipe if it needs to inspect, repair or replace it. The easement provides the legal right to access the area.
Easements can also relate to:
- Sewer pipes
- Stormwater drainage
- Gas or electricity services
- Other utilities
- Access to another property
You can normally find an easement on your Certificate of Title and Plan of Subdivision. These documents can show where it is located and what it is intended to be used for.
That is the information you want before deciding where your studio is going to go.
Can you build a backyard studio on an easement?
Sometimes, yes. But you cannot simply build over it because you own the property.
If you want to build a backyard studio on an easement vested in a service authority, Regulation 130 of the Victorian Building Regulations 2018 requires the relevant authority’s report and consent as part of the building permit process.
So the next question is not just whether there is an easement. You also need to know who controls it and what they will allow.
The answer can vary from one property to another.
An authority may accept one proposal but have concerns about another, depending on the infrastructure underneath the site, access requirements and the way the building is designed.
If the studio you want would sit directly over the easement, it is worth checking this before you spend too much time finalising the design.
Why sewer and drainage easements can be tricky
Sewer and stormwater easements deserve particular attention because there may be infrastructure underneath the ground.
Think about a sewer pipe running underneath the spot where you want your studio.
Everything might be fine today. But what happens if the pipe needs to be repaired or replaced several years from now?
The authority may need to get workers, equipment and machinery into the area. In some cases, it may need to excavate the ground to reach the pipe.
A permanent studio sitting directly over that area can make the work much more difficult.
This is why councils and service authorities can place conditions on construction over easements. They may look at the foundations, excavation, access points and the position of underground services before deciding whether the proposal can go ahead.
Some councils also take a very cautious approach to habitable buildings. Baw Baw Shire, for example, states that it does not allow habitable or commercial buildings over an occupied or required easement.
Other councils and authorities may have different requirements, so you need to check what applies to your property rather than relying on what happened somewhere else.
What if the easement only runs through part of the studio?
This is where the position of the studio can make a big difference.
Let’s say you have a 6-metre-wide studio planned for the back of the garden, but the easement cuts through one corner of the proposed building.
You may not have to abandon the idea of having a studio there.
If the site gives you enough room, you might simply move the studio so that the whole building sits outside the easement.
That can be a much easier solution than trying to get approval to build over it.
This is something worth looking at early. When you are still choosing the location, moving a studio a little can be relatively simple. Once the design and foundations have been worked around a particular position, changing it can become much more complicated.
How do I know if my property has an easement?
Start with your property documents.
Your Certificate of Title and Plan of Subdivision should show registered easements affecting your property.
You may find an easement running along the side or rear boundary, or one crossing part of the backyard. The documents should also give you information about its purpose.
For example, it could be a drainage easement running through the garden.
If you are not sure how to read the plan, do not guess. Ask your building professional or building surveyor to help you understand what it means and how it affects the proposed studio.
It is much easier to sort this out while you are still deciding where the building should go.
Who gives permission to build over an easement?
That depends on the easement.
There is no single authority in Victoria that deals with every type of easement. A council may have rights over one easement, while a water authority or another service provider may be responsible for another.
You first need to identify who has rights over the particular easement on your property.
There can also be situations where more than one authority has an interest in an area, which may mean more than one approval is needed.
Your building surveyor or another qualified building professional can help you work out who needs to be involved.
What information will they need to build over an easement?
If you want to build a backyard studio on an easement, the relevant authority needs to understand exactly what you are proposing.
Depending on the circumstances, you may need to provide:
- A current Certificate of Title
- The Plan of Subdivision
- A site plan showing the easement
- Floor plans
- Elevations and sections
- Details of the proposed foundations
- The position of the studio in relation to the easement and underground services
The exact requirements vary.
This is one of those things that is much easier to deal with at the beginning of a project. You do not want to design the entire studio around a particular location and then discover that the proposed foundations cannot be approved there.
Does an easement mean you cannot build anything there?
No. An easement does not automatically make the whole area unusable.
What you can do depends on the rights attached to that particular easement and what is underneath or within it.
A permanent building with substantial foundations may raise very different concerns from a structure that does not interfere with underground services.
For a backyard studio, the foundations are particularly important. They need to support the building while avoiding damage to services and still allowing the relevant authority to access its infrastructure when necessary.
So seeing an easement on your property plan does not, by itself, tell you whether your studio can be built there. You need to look at the actual easement and the proposed construction together.
What if the studio is beside the easement?
This is often worth considering before trying to build directly over it.
For example, an easement might run along the back of your property while leaving enough usable space beside it for your studio.
If you can keep the building outside the easement, you may avoid one of the more complicated parts of the approval process.
Of course, the easement is only one part of the site.
You also need to consider things such as setbacks, site coverage, overlooking, access and the practical requirements of getting the studio into the backyard.
This is why it helps to look at the whole site before deciding where the building should go. An easement may be a major problem on one property but barely affect another.
Do I need a planning permit for a backyard studio?
Possibly.
A planning permit and a building permit deal with different parts of a project.
A planning permit relates to land use and development under the applicable planning scheme. A building permit deals with the construction itself and whether the proposed building meets the relevant building requirements.
Whether your backyard studio needs a planning permit depends on your property, what you are proposing to build and the planning controls that apply to the site.
Building over an easement is another issue that may require additional consent.
So even if you receive approval to build over an easement, that does not necessarily mean you have every approval needed to start construction.
A common backyard studio scenario
Let’s say you have a typical suburban block in Victoria and want to put a studio at the back of the garden.
You check the Plan of Subdivision and find a 1.5-metre-wide drainage easement running across the backyard.
Now you need to decide whether you can work around it or whether you need to investigate building over it.
Move the studio
If there is enough usable space, you could position the studio outside the easement.
This is often the simpler option. Rather than designing the building around conditions for construction over the easement, you can choose a location that avoids it altogether.
Investigate building over it
Sometimes that is not practical.
The easement might take up a large part of the backyard, or moving the studio could leave you with a poor location for the building.
In that case, you can investigate whether the relevant authority will allow construction over the easement.
Your plans may need to show the easement, proposed foundations and the relationship between the studio and any underground infrastructure.
The authority can then assess the proposal and determine whether the required consent can be given.
The main thing is to find this out before construction starts. You do not want to discover after the design is finished that the location cannot be used.
What should you check before choosing your studio location?
If you are planning a backyard studio on an easement, start by finding out exactly where the easement is and what it is for.
A good place to start is your property title.
1. Check your Certificate of Title
Look for registered easements and then check the Plan of Subdivision to see where they sit on the property.
2. Find out what the easement is for
A sewer or drainage easement can create different issues from an access or utility easement.
3. Find out who has rights over it
Once you know what the easement relates to, you can identify the authority or organisation that needs to be involved.
4. Look at your possible studio locations
Before settling on one position, see whether the studio can sit completely outside the easement.
5. Talk to your building professional
If avoiding the easement is not practical, your building surveyor or another qualified professional can help determine what approvals and information are required.
6. Get the necessary approvals
Make sure the required consent is in place before construction begins.
So, can you build a backyard studio on an easement?
Sometimes. It depends on the easement, the authority involved and the proposed building.
An easement does not mean that you no longer own that part of your backyard. It means another party has certain legal rights over it, often so it can access and maintain infrastructure.
Start by checking your Certificate of Title and Plan of Subdivision. Once you know what the easement is for and who has rights over it, you can decide whether it makes more sense to position the studio elsewhere or investigate building over the easement.
In many cases, moving the studio outside the easement will be the simpler option. If that is not practical, there may still be a way forward.
Either way, find out before you commit to the final design.
