Knowledge · Planning and approvals
Easements and covenants,
the constraints on the title.
Before the planning scheme says anything, the title already constrains the job: the drainage easement the garage cannot sit on, the covenant that sets the minimum floor area, the right of way that fixes the driveway. This reference covers what easements and covenants are, how they surface in due diligence, how they shape siting, drainage and design, and how they interact with the approval pathway. General information, not legal advice; instruments are read by lawyers, not guessed at.
01 / Overview
What easements and covenants are
Easements and covenants are the constraints that live on the land's title rather than in the planning scheme. An easement gives someone else a defined right over part of the lot, to drain through it, pass over it, or run services across it, and it usually has a mapped location and width. A restrictive covenant is a recorded promise about what may be built on the lot at all, minimum sizes, materials, dwelling counts, commonly imposed by a developer across an estate. Both bind whoever owns the land, both outlast the sale that created them, and both sit outside the planning system: a council or certifier approval does not clear them.
For a residential builder they matter at two moments. Before design, they are due diligence: the searches that reveal them cost little, and every constraint found then is designed around for free. After commitment, they are expensive: the redesign, the build-over consent that arrives late, or the covenant breach discovered at sale all cost multiples of the search that would have surfaced them. This page is the reference for the concept and the workflow; the reading of any specific instrument, and any question of enforceability, variation or removal, is legal advice territory and treated as such throughout.
Where this sits in the pathway
This node is a spoke of the building approvals hub, sitting at the very start of the pathway: title constraints are assessed before, and alongside, the DA or CDC decision, and they flow into the siting, the drainage design, the specification (where covenants dictate materials) and the contract (where consents and estate approvals become somebody's named responsibility).
02 / The instruments
What shows up on a residential title
Six families cover most residential lots. The vocabulary and the instruments differ by state; the practical effects do not.
Drainage and sewer easements
Rights for stormwater or sewer to cross the lot, usually in favour of the council or the water authority, usually with pipes actually in the ground. The most common residential easement and the one that most often decides where the house cannot go. Building over or near one generally needs the asset owner’s consent, on its current terms.
Access and right of way easements
A right for someone else to pass over the lot (a shared driveway, a battle-axe access leg) or for this lot to pass over another. They fix geometry nothing else can move: the accessway cannot be built on, gated against the beneficiary, or quietly narrowed by a garage wall.
Service and utility easements
Electricity, water, gas or telecommunications infrastructure crossing the lot, with the authority holding rights of access and protection around its asset. Clearances and works-near-asset rules apply and are set by the authority, not by the builder’s judgement.
Restrictive covenants
Private restrictions recorded on the title that bind what an owner may build: minimum dwelling sizes, materials clauses, single-dwelling restrictions, height and fencing controls, common in developer estates. They operate alongside planning rules, and a DA or CDC approval does not erase them.
Positive covenants and other instruments
Obligations to do something (maintain a shared driveway or stormwater device), and related title instruments such as restrictions on use recorded under state land titles legislation. The vocabulary differs by state; the practical effect is the same, obligations that travel with the land.
The unregistered and the implied
Not every burden appears neatly on the title: some jurisdictions carry statutory or implied easements, and old subdivisions can carry instruments that take a title search and a lawyer to interpret. The rule of thumb is that absence from a quick glance is not absence.
03 / Process workflow
The due diligence, before design
Five steps, all of them cheaper than one design iteration. The output is a site plan with every constraint drawn on it, which is the document design should start from.
- 01
Pull the title and every instrument on it
The certificate of title lists the registered easements, covenants and other interests, each pointing to an instrument (in New South Wales commonly a section 88B instrument attached to the deposited plan; other states have their equivalents). The instruments, not the summary line, carry the actual terms.
- 02
Get the services and asset searches
Water authority and utility searches show the assets actually in the ground, including the pipe that predates the easement paperwork or sits outside it. On knockdown rebuilds and older lots, the dial-before-you-dig and authority searches routinely find what the title does not mention.
- 03
Plot everything on the site plan
Easements, their widths, the assets inside them and any covenant setbacks get drawn on the base plan before design starts. A constraint that exists as a paragraph gets missed; a constraint that exists as a hatched zone on the drawing designs itself around.
- 04
Read the covenants against the intended design
Materials clauses, minimum floor areas, single-storey restrictions and estate design guidelines get checked against what the client actually wants to build, before concept design, because the collision between a covenant and a dream is cheapest to resolve when nothing has been drawn.
- 05
Price and programme the consents
Building over or near an easement needs the asset owner’s consent process, with its own requirements (concrete encasement, access provisions, engineering) and its own timeline. Varying or removing a covenant is a longer road again. Both belong in the feasibility and the programme, not in the surprises column.
How the constraints then shape the job: easements mostly act geometrically, fixing where the footprint, the footings and the excavation cannot go, and where the stormwater must go, which makes them siting and drainage inputs. Covenants mostly act qualitatively, setting floors on size and standards on materials, which makes them design and estimating inputs; a materials covenant can move a facade allowance by itself. Both are exactly the kind of constraint that is trivial to honour at concept stage and progressively harder at every stage after.
04 / Common mistakes
Where title constraints catch builders
Every one of these is a sequencing failure. The searches, consents and readings all existed; they were just done after the decision they should have informed.
Designing before searching
The concept plan lands on the drainage easement, the client is in love with it, and the redesign is now a relationship cost as well as a fee. The title and services searches cost a fraction of one design iteration and belong before the first sketch.
Treating planning approval as covenant clearance
A DA or CDC assesses the proposal against planning controls; private covenants are a separate layer, and an approval does not extinguish them. A house approved by council and built in breach of a covenant is still in breach, and the neighbours who benefit from the covenant can act on it.
Building over the easement without consent
The slab edge, the garage corner or the footing zone encroaches on the easement without the asset owner’s consent, discovered at inspection, at connection, or worst, at sale. The remedies run from retrospective consent with engineering, to removal. The consent process existed the whole time.
Ignoring the asset, trusting the line
The pipe is not always where the easement says, and old assets exist without easements at all. Excavating on the drawn line rather than the located asset is how services get struck and how footings end up redesigned mid-pour week.
Missing the estate’s private approval layer
Developer estates commonly pair covenants with a design review process the covenant enforces. Builders who lodge with council but skip the estate’s approval build a compliant house that breaches its own title, and the developer’s remedies are contractual and real.
Assuming covenants expire quietly
Some covenants carry sunset dates; many do not, and old covenants can still bind. Whether a given covenant is enforceable, spent or removable is a legal question with a real answer, not a vibe, and the answer is worth buying before relying on it.
05 / Best practice
How experienced builders handle the title layer
The operator's observation is that easement and covenant problems are almost always inherited, not created: the block was bought, the concept was drawn, sometimes the contract was signed, all before anyone pulled the instruments, and the builder is the one standing closest when the constraint finally surfaces. The defence is a fixed intake habit: no concept design, and certainly no price, until the title instruments and services searches are in the job file and plotted on the site plan. Builders who hold that line spend an hour per job on it. Builders who do not, periodically donate a redesign, a delayed slab or a facade re-spec to a problem that was searchable for the price of lunch.
The second habit is making the consents explicit in the contract and the programme. If the design builds over or near an easement, the build-over consent is a named task with an owner, a cost and a duration, sitting on the critical path where it belongs, and the contract says whose job it is to obtain it. If the estate has a design review layer, its approval is a milestone before construction documentation. In VIABUILD the searches, instruments and consents live with the job's documents, and the consent tasks sit in the schedule, so the constraint found in week one is still governing decisions in week thirty. The reading of the instruments stays with the lawyers, where it belongs.
06 / FAQ
Common questions.
An easement is a right someone else holds over part of the land: to drain water or sewage across it, to pass over it, to run and access services through it. It usually has a location and a width, and it constrains where and how you can build in that zone. A restrictive covenant is a promise recorded on the title about what the owner will or will not build: minimum sizes, materials, dwelling counts, heights. The practical difference for a builder is geometric versus qualitative: easements mostly decide where the building can sit, covenants mostly decide what may be built at all. Both travel with the land, bind subsequent owners, and sit outside the planning system, which is why an approval does not clear either. This is general information, not legal advice; interpreting a specific instrument is a lawyer’s job.
Sometimes, with the consent of whoever the easement benefits, on their terms, and the answer varies with the asset and the authority. Water authorities and councils have formal build-over processes for their drainage and sewer assets, commonly involving engineering requirements (protection or encasement of the asset, access arrangements, footing design that keeps loads off the pipe) and a fee and assessment timeline. Some assets and zones are effectively non-negotiable. The two reliable rules: no structure over or near an easement without the asset owner’s written consent obtained through its current process, and the consent belongs in the programme and the price before contracts are signed, because it takes time and can shape the footings. The processes differ by state and authority and change, so confirm the current requirements with the relevant authority.
Through the title search and the instruments it references, plus the services searches that show what is actually in the ground. The certificate of title lists registered interests; each points to an instrument that carries the terms, in New South Wales commonly the section 88B instrument attached to the deposited plan, with equivalent instruments in the other states’ land titles systems. Alongside the title, the water authority and utility searches and dial-before-you-dig responses show the assets themselves, which matter as much as the paperwork. On anything beyond the routine, the conveyancer’s or lawyer’s reading of the instruments is the authoritative one, and for a builder the practical output is a site plan with every constraint drawn on it before design begins.
They can, in both directions, and the detail is jurisdiction-specific. Fast-track complying development pathways assess a proposal against fixed standards, and site constraints, including what easements make unbuildable and what covenant-driven design outcomes are sought, can affect whether the proposal fits inside those standards or needs the merit pathway. Separately, covenants are not extinguished by either pathway: a CDC that approves a dwelling in breach of a covenant leaves the covenant problem fully intact. Some jurisdictions have provisions under which certain planning approvals can override certain restrictions in defined circumstances, but that is exactly the kind of specific that must be confirmed against the current rules for the state rather than assumed. The pathway trade-offs generally are covered in the DA vs CDC reference.
Sometimes, through routes that differ by state: with the agreement of everyone who benefits from it, through the land titles processes, or by application to a court or tribunal under the state’s property legislation, with planning-scheme mechanisms existing in some jurisdictions for defined cases. What all the routes share is that they are slow, uncertain and cost money, which is why the practical advice runs the other way: identify the covenant in due diligence, and either design within it or resolve it before anyone is contractually committed to a design that breaches it. A build programmed on the assumption that a covenant will be removed is a programme with a lawsuit on its critical path. Specific covenants and removal prospects are squarely legal advice territory.
07 / Terms
Glossary for this topic
Easement (a right someone else holds over defined part of the land), benefited and burdened land (the lot that enjoys the right and the lot that carries it), restrictive covenant (a recorded restriction on what may be built), positive covenant (a recorded obligation to do something), section 88B instrument (the New South Wales instrument commonly creating easements and covenants on subdivision, with equivalents in other states), build-over consent (the asset owner's approval to build over or near its easement), title search (the search revealing registered interests), dial before you dig (the national referral service for locating underground assets). The wider vocabulary lives in the construction glossary.
The natural next reads are the DA vs CDC reference for the pathway decision these constraints feed, and the building approvals hub for the rest of the road to site.
08 / Keep reading
Related knowledge, guides and features
09 / Further reading
Primary sources
- The state's land titles office and its guidance on titles, plans and instruments, and the actual instruments on the title for the lot, which are the operative documents.
- The relevant water authority's and council's current build-over and works-near-asset processes, for what consent over an easement actually requires in that jurisdiction.
- A conveyancer or property lawyer, for reading instruments, advising on enforceability, and any variation or removal question. This page is general information only.
Find it in week one, not week thirty.
VIABUILD keeps the title searches, instruments and consents with the job and the consent tasks on the programme, so the constraints found in due diligence keep governing the build.