General information, not legal advice. Consumer Affairs Victoria’s pages and the Sale of Land Act 1962 are the official places to check; a lawyer or licensed conveyancer can explain how a particular title is affected. All are listed at the foot of this page.
Three words on a title
Consumer Affairs Victoria’s glossary defines the terms a buyer meets first.
- Easement
- A right held by one person to use the land of another. Drainage and sewerage pipes are the glossary’s examples.
- Encumbrance
- A right of a third party that gets in the way of using or transferring a property freely. Easements, mortgages and caveats are all encumbrances.
- Restrictive covenant
- An obligation on whoever holds the title to do, or not to do, something. The glossary’s example: a covenant that no more than one dwelling may be built on the land.
For a buyer who means to build, that is the point. Consumer Affairs Victoria’s due diligence checklist warns that encumbrances on a title can prevent a buyer from developing the property, and that the section 32 statement is where to find them.
What the section 32 statement must say
Three provisions of the Sale of Land Act 1962 put the easements, and the way in, in front of the buyer before the contract is signed.
Section 32C(a)
The statement must contain a description of any easement, covenant or other similar restriction affecting the land (whether registered or unregistered)
, and particulars of any existing failure to comply with its terms.
Section 32C(c)
if there is no access to the property by road, a statement that there is no such access
.
Section 32I(a)
For land under the Transfer of Land Act 1958, a copy of the Register Search Statement must be attached, together with the document named in it as the diagram location, which identifies the land and where it is.
Two things in that wording are easy to miss. An easement does not have to be registered to belong in the statement. And the Act asks for the road-access line only when there is no access by road, so it is a line to look for, not one every statement carries.
Building beside a Melbourne Water easement
Melbourne Water runs sewers, drains, waterways and water mains across Melbourne. Most sit on its own land, but some run on or near private property. A building surveyor or council cannot issue a building permit for work near those assets until Melbourne Water has approved it in writing.
Its page sets out the order of things. Before applying to council for a planning or building permit, an owner must find out whether the property is near or within one of its easements or assets. The first check is the free Dial Before You Dig service, which gives an approximate location of underground assets; where an asset is close, Melbourne Water supplies its most detailed plans, usually design plans. Sometimes it asks for “as constructed” plans before approving work, and then a licensed surveyor is needed to prove where the asset actually lies.
| May be approved | Not allowed |
|---|---|
| Carports that can be removed, open on at least three sides with a flat roof | Habitable structures, such as a building or an extension |
| Concrete driveways and pavers | Swimming pools, above ground or in it |
| Wooden fences running alongside or across an asset | Permanent structures, and brick fences that cross an asset |
For homes in residential areas, Melbourne Water’s clearance conditions include these:
- a building, counting its footings and eaves, must stay outside the easement or at least five metres horizontally from the outside edge of the asset, whichever is greater
- a structure beside a drain needs at least five metres of horizontal clearance
- a small shed is considered only if less than four square metres of its floor sits within the easement, and only if overland flow allows
- private underground services may not be laid along an easement, though services crossing the asset may be allowed
- the asset must keep at least 850 millimetres of soil over it, and a domestic concrete driveway over it may be no more than 100 millimetres thick.
Industrial and commercial land is stricter: there Melbourne Water will not approve any building or structure inside an easement or within five metres of either side of one of its assets.
A worked example
Example only. The block and the pipe are invented to show the arithmetic.
A block is 15 metres wide and 40 metres deep: 600 square metres. A drainage easement 3 metres wide runs across its full rear width, so the easement covers 15 × 3 = 45 square metres, or 7.5% of the block.
Suppose the pipe in that easement belongs to Melbourne Water, and its outside edge lies 1.5 metres inside the easement’s front line. Five metres of clearance from that edge reaches 3.5 metres past the easement. The clearance is the greater of the two limits, so the house must keep 3 + 3.5 = 6.5 metres from the rear boundary: 15 × 6.5 = 97.5 square metres where the house cannot go, or 16.25% of the block.
Melbourne Water’s clearance rule is the one in the list above. Where the pipe really lies is a question for its plans, and sometimes for a licensed surveyor.
Creating or finding one
In Victoria, creating an easement over a property is one of the jobs the Surveyors Registration Board says needs a licensed surveyor. In Queensland, Business Queensland says an owner who needs information about an easement on their land can buy the easement documents and registered survey plans, or ask a registered surveyor.
Where the corners themselves are uncertain, start from Peg A, boundaries and surveys. The rest of the section 32 statement for a block of land is Peg F, the vendor statement for land.