Apply to build over an easement

You don’t need this application for grass, turf and mulch

Build over easement approval is not required to place grass, synthetic grass, turf or mulch within an easement.

Who can submit the application

We recommend that the application be made by (or in consultation with) the relevant building surveyor.

The application can also be lodged by:

• the builder
• architect/draftsperson
• the owner
• any other properly authorised agent of the owner.

These are likely to be approved to build over an easement

These structures or works are likely to be approved to build over an easement if the application demonstrates there will be no impact on Council’s drainage assets.

• Excavation or earthworks
• Fill
• Eaves
• Fencing, including pool fencing
• Concrete path
• Retaining wall
• Hot water service.

These are NOT likely to be approved to build over an easement

Structures or works are NOT likely to be approved to build over an easement if there is a risk of works damaging Council assets and infrastructure.

Council will refuse permission to construct these structures over an easement:

• Permanent brick or weatherboard garage or shed
• Enclosed extension of garage
• Dwelling or habitable building
• Commercial or industrial building
• Dependent persons unit
• Swimming pool, spa or pond (above ground and in ground)
• Sauna

Structures or works that are likely to be approved to build over easement subject to a Section 173 agreement

Structures or works that are likely to be approved to build over an easement, subject to a Section 173 agreement, include:

• water tank
• garden shed
• pergola or veranda
• deck
• detached steel frame garage or shed.

About Section 173 agreements

S173 Agreement – 15 Step Process Info Sheet

• A Section 173 agreement is a contract between Council and a landowner placing restrictions on how the land is used. The agreement is registered on the Certificate of Title, so it transfers to any future owners of the property.
• When we receive your build over easement application, we will assess whether a Section 173 agreement needs to be put in place. If it does, we will need to contact Marcus Lane Group (Council’s preferred legal representative, or you’re your own legal representative, to commence the S173 process.
• Once finalised and executed by all parties, the Section 173 agreement will need to be lodged by Marcus Lane Group at Land Use Victoria (Titles Office) so that it can be registered on the property’s Certificate of Title. Once Land Use Victoria provides us with a dealing number, and confirmation of registration of the Agreement on the property Title, we can then grant your build over easement approval.
• The landowner/s must bear all reasonable costs and expenses (including legal expenses) incurred in drafting, reviewing and lodging of the Section 173 Agreement.

More info: Section 173 agreements – Planning Victoria website

IMPORTANT UPDATE FROM LAND USE VICTORIA

Recent information received from Land Use Victoria (Titles Office) advises that they will no longer be accepting paper lodgements for Section 173 Agreements from 4 March 2024, and all lodgements from this date will need to be lodged digitally via a Conveyancer or Lawyer.

There’s a drain on my property, but no easement. What do I do?

Please contact Council’s Development team on 1300 787 624.

If it’s a Council stormwater drain, you should treat it as though there is an easement and apply for consent using the build over easement application form.

Application fee

Council fees

$311.80 (GST not applicable).

You can pay using the online form below.

If a Section 173 Agreement is required

Full S173 process

$850 + GST - Drafting and lodgement of the S173 Agreement

$400 + GST (approx.) - Disbursements*

Lodgement Only process

$400 + GST - lodgement of the S173 Agreement

$400 + GST (approx.) - Disbursements*

*Disbursements include but are not limited to:

• Title searches
• Company searches
• Titles Office Fees

What you need to provide with your application

• A full copy of Title, including an approved plan of subdivision and any applicable restrictions covenants for the property. 
• Application brief, outlining in detail the reasons for seeking special consideration. You are encouraged to list every reason why you should be granted consent. 
• The 2023-2024 application fee of $311.80 (no GST) for each application.
  Please note this is an application fee, so it won’t be refunded if the application isn’t approved.

You will also need to provide prepared plans of the site and works, clearly demonstrating the proposal in terms of its appearance and construction, including:

• full dimensions
• plan and side elevation view
• material details
• footing type and design details
• offset from boundaries
• angle of repose from existing Council assets
• horizontal and vertical clearance complying with minimum requirements 
• if proposal is for site fill or a site cut, plans showing clear measurements of the amount of fill or depth of site cut.

Apply

Apply online 

Applying and paying online (this is a secure payment) is easier for you, and means we can process your application more quickly.  

Apply online 

Post, email or drop your application to us

Download the Apply to build over an easement printable form then post, email or drop your form to us. 

Pay

You can pay using the online form. If you have posted or emailed your form, you can pay over the phone or in person.

Pay over the phone

Call us on 1300 787 624 to pay with your credit card.

Pay in person

Council’s Customer Service Centre
20 Siding Avenue, Officer

Questions?

Contact our Engineering team

Phone: 1300 787 624
Email: mail@cardinia.vic.gov.au