Building Over Easements Policy

Adopted by Council on 6 March 2023

Background

Latrobe City receives formal requests under Regulation 130, Building Regulations 2018, to construct a building or structure over an easement that is vested in the interests of Council. Council’s delegated officer must decide these requests within 14 days of receipt of all information.

Decision making should be transparent, equitable and fair and the building over easements policy will guide Council’s delegated officer in the appropriate decision.

Consistency in the application processes is important and the building over easements policy will provide guidance to our delegated officer in the application of our processes.

Objectives

The policy has been established to protect public drainage infrastructure networks and drainage pathways.

Scope

This policy is designed to protect Latrobe City assets in easements vested in Council and the interest of the subject property owner. It describes how Council’s delegated officer will decide applications to building over an easement. In special circumstances, Latrobe City may conditionally approve an application to build over such easements.

Principles of Management

Applications to build over an easement that is vested in Council must be in writing pursuant to the requirements of the building regulations. The applicant must submit a consent and report form with the associated design documents, site plans, titles application fees and the like.

Applications to build over an easement will be assessed against the likely impact of the proposed development including:

The size and depth of the stormwater drain and the width of easement required to maintain/replace the drain,
Future needs to augment or enlarge the drain,
Impact of the development on access to other parts of the easement, and
Agreement from other parties with a legal entitlement to the use of the easement, (eg. Other lot owners and service authorities such as Gippsland Water).

Approval to build over an existing Council asset in an easement or an easement that is not currently used but may be required for future drainage will be refused to protect existing public and future infrastructure and allow for the maintenance of drains, future drainage construction, or to ensure the non-obstruction of a flood path.

Approval to build within the easement but not within 300 mm of an existing pipe but not normally over an existing pipe, may be approved subject to the landowner entering into an agreement to indemnify Council. The agreement will be recorded in Council’s corporate property system CI Anywhere, will require the owner to dismantle all or part of the building if access is required to that section of the easement reserve and protects Council against damages to the building from drainage assets. Any fee for drafting an agreement will be payable by the applicant and in accordance with Council’s annual fees and charges schedule.

Where in the particular circumstance, an easement that is vested in the Council is not in use and in the opinion of the Manager City Assets, it appears likely it will never be used, the Agreement may be negated.

Accountability and Responsibility

Accountability and responsibility for this policy is outlined below.

Council

Responsibility to ensure this Policy is consistent with Latrobe City Council Strategic Direction and other Latrobe City Council Policies
Responsibility for the decision to approve this Policy by Council Resolution

Chief Executive Officer

Overall responsibility for compliance with this policy
Overall responsibility for enforcing accountability
Overall responsibility for providing resources
Overall responsibility for performance monitoring

General Manager

Responsibility for compliance with this policy
Responsibility for enforcing accountability
Responsibility for providing resources
Responsibility for performance monitoring

Manager

Develop frameworks and procedures in compliance with this policy
Enforce responsibilities to achieve compliance with frameworks and Procedures
Provide appropriate resources for the execution of the frameworks and procedures

Employees, Contractors and Volunteers

Participate where required in the development of frameworks and procedures in compliance with this
policy.
Comply with frameworks and procedures developed to achieve compliance with this policy.

Evaluation and Review

This policy will be reviewed on request of Council, in the event of significant changes to legislation applicable to the subject matter of the policy or, in any other case, during each Council term (generally four years).

Definitions

Easements are reserved land, within a title, that have been set aside for the exclusive use of an authority or authorities and commonly contain drainage, sewage, gas, power, telecommunications and similar infrastructure. Almost all easements are created when the land was originally subdivided and are shown on the property title.
Agreement includes deeds of agreement, agreements pursuant to section 173 of Planning and Environment Act 1987, Section 163 Building Act 1993 and agreements that Council is directed to enter into with the property owner by the Building Appeals Board, Victorian Civil and Administrative Tribunal, a Magistrate or the like
Building includes structure, temporary building, temporary structure and any part of a building or structure. Building Act 1993 Section 3.

Reference Resources

Building Act 1993
Planning and Environment Act 1987
Building Regulations 2018
National Construction Code (Building Code of Australia) produced by Australian Building Codes Board
Building Practice Note BP-11: Report and Consent issued by the Victorian Building Authority

Appendices

None specified.