Buying & property restrictions / VICTORIA
Easements, covenants & Section 173 agreements
Find the restriction behind your title entry, check the separate consent pathways and send one clear proposal to the right person.
Get the full document behind the title entry
Attach the instrument and one marked sketch. Ask the person who can resolve the specific restriction or consent question.
Prepare title questions →An easement does not automatically mean you can never build there. It means someone else has rights you must account for. A covenant or Section 173 agreement can restrict development even when the planning scheme otherwise allows it. Start with the document and the proposed work, before paying for detailed drawings.
A planning map cannot answer all three questions. Obtain a current title search, the referenced plan and the full instrument behind each relevant entry. Land Use Victoria explains the difference between title and instrument searches.
Can I build over an easement or near a pipe?
First identify the right and the physical asset—not just a distance. Obtain the title, plan of subdivision and any registered easement, covenant or section 173 instrument. Separately request available utility/drainage asset plans and record their date, scale and uncertainty. A title without an easement is not proof that no pipe or drainage asset crosses the land. The registered beneficiary and physical asset owner may be different people or authorities.
| Record or clue | What to ask and who to contact |
|---|---|
| Sewer main or water-service plan | Ask the named water corporation to confirm asset identity/location evidence and its works-near-assets consent pathway, using the dated concept and footing/excavation details. |
| Council drain or pit | Ask Council drainage/building staff who owns the drain, for location evidence and whether its building-over-easement process applies. |
| Melbourne Water asset, flood or drainage corridor | Ask Melbourne Water which asset and consent process applies; existing flow paths and easements are separate questions. |
| Access easement benefiting another property | Have a conveyancer identify the instrument, benefited land and rights; do not assume an asset authority can release private rights. |
| Restrictive covenant, section 173 agreement or owners corporation rule | Send the exact instrument and proposal to the appropriate legal adviser/Council or owners corporation; each route may require a different decision. |
| Visible pipe, drain or service with no title notation | Ask who owns and locates it; a blank title or unverified plan does not establish a safe construction corridor. |
Fictional example: an owner wants deck concept B and has an old sewer plan showing a line “about 1.2 m from the drawn centreline”, not surveyed, with no footing depth known. The useful enquiry preserves that exact wording, attaches the plan and drawing revision, and asks the named asset owner what location verification and consent process it requires. No clearance result or permit approval is generated. Use the existing project brief tool and its optional asset-enquiry helper.
Three restrictions, three different questions
| What you found | What it can affect | The useful next question |
|---|---|---|
| Easement | Access or use rights over a defined area, often for services or a driveway. The wording and beneficiary matter. | Who holds the rights, where do they extend, and what consent does this proposal need? |
| Restrictive covenant | Limits in a registered instrument, such as one dwelling, materials or a building envelope. | Would this proposal breach the actual wording, and is a separate variation or removal needed? |
| Section 173 agreement | Planning obligations that can bind later owners, including requirements linked to an approved development. | Which obligation applies now, and has it been satisfied, amended or formally ended? |
Check the pipe as well as the easement
A title plan and an asset plan answer different questions. A pipe can affect the works even where no easement appears on the title. Mark the proposed footprint, excavation and known services on the same sketch; label a plan-based position as unconfirmed.
| Authority or process | Published starting point | What to do with it |
|---|---|---|
| South East Water | Approval is required to build over its easements or within one metre of its water, sewerage or recycled-water assets. | Use its asset information and Build Over Guidelines, then lodge through PropertyConnect. Being outside one metre is not a universal design clearance. |
| Council easement or drain | Mornington Peninsula requires consent before building over or near the easement or Council drain. | Use the Council Build Over Easement application and identify the affected asset. |
| Building Regulation 130 | A building-permit application to construct over an easement vested in a service authority needs that authority’s report and consent; implied easements under the Subdivision Act are excluded from this regulation. | Ask the building surveyor which authority’s consent must accompany this application. |
South East Water requirements · Council application · Building Regulations, regulation 130.
If Melbourne Water assets may be affected, use its public asset-consent process. It publishes a five-metre consent trigger for works near its assets. Treat that as a reason to contact the authority, not a footing design or a finding that this site is buildable.
A planning permit does not cancel a covenant
Under section 61(4) of the Planning and Environment Act, a permit for a proposal that would breach a registered restrictive covenant cannot simply be granted while the covenant remains unresolved. The necessary removal or variation must also be dealt with. DTP’s covenant guidance.
For example, an owner considering a second home should have a single-dwelling covenant interpreted before ordering the building. A planning-permit exemption does not remove that private restriction. Give the solicitor the complete instrument and the proposed use, rather than asking whether “granny flats are allowed”.
Section 173 needs its own process
Read the agreement’s ending provisions and any later amendments. An old agreement is not necessarily finished because the original development is complete. Where a change is required, the Act provides agreement-based routes and an application process under sections 178A–178H. Council’s agreement in principle is part of that application process; approval is not assured. DTP’s guide to amending or ending agreements.
Send a focused enquiry
- Attach the title search, plan and full instruments; keep their reference numbers.
- Mark the proposal, known asset positions and affected area. Distinguish measured distances from estimates.
- Include existing permits, endorsed drawings and earlier consents, with dates and revision numbers.
- Name the decision: interpretation of a restriction, asset consent, or whether a design change would avoid the issue.
“The attached instrument is [reference]. We propose [work] in the marked area. Which part of the instrument applies, what fact remains unconfirmed, and which consent or change would be needed before detailed design?”
Use a conveyancer or solicitor for the legal instrument, the asset owner for its consent, and the designer or building surveyor for the proposal and building approval. AI can organise the records and draft questions; it cannot establish a pipe’s position, interpret disputed rights conclusively or grant consent.
Get the full document behind the title entry
Attach the instrument and one marked sketch. Ask the person who can resolve the specific restriction or consent question.
Prepare title questions →Check the official sources
- Land Use Victoria: title and instrument searches ↗
- LANDATA title services ↗
- DTP: restrictive covenants and section 61(4) ↗
- DTP: Section 173 agreements ↗
- South East Water: work near assets and easements ↗
- Council: building over easements ↗
- Building Regulations 2018: regulation 130 ↗
- Melbourne Water: public asset-consent process ↗