Build-over-easement consent: the timing risk developers miss
An easement is one of the quietest lines on a title, and one of the most expensive to ignore. It rarely stops a project outright. What it does instead is move the start date, and on a development site funded with debt, a moved start date is a financial event long before it is a construction one. Build-over-easement consent is the approval most often left until the builder is ready to pour, which is exactly the point at which it costs the most.
What a build-over-easement consent actually is
Most residential and infill development sites in Australia carry at least one registered easement: sewer, drainage, water, power, or a right of carriageway in favour of a neighbour. The easement gives another party a legal right over part of your land, usually to keep infrastructure there and to reach it. Building a structure over or immediately adjacent to that infrastructure requires the consent of the party who benefits from it. That is a separate consent from your planning permit and, in most cases, separate again from your building permit.
The parties involved are rarely just you and the council:
- The asset owner or referral authority. Usually the water corporation, or the council itself where the drain is a council asset. They assess whether your structure compromises access to, or the structural integrity of, their infrastructure.
- Council. Council may need to provide a report and consent under building regulations even where the asset belongs to someone else, and may hold its own drainage interest in the same corridor.
- Your engineer. A structural or civil engineer typically has to design and certify the solution: pier and beam footings, a bridging slab, a deeper founding depth, or relocation of the asset entirely.
- Neighbouring beneficiaries. Where the easement is in favour of an adjoining owner rather than an authority, their consent may also be required, and there is no statutory timetable that compels them to give it.
The consent is not a formality. The authority can refuse, or approve subject to conditions that change your footings, your slab level, your setbacks, or your yield.
Why it is discovered late
The sequence that causes the problem is common and entirely logical. A feasibility is run off a title search and a planning overlay. A permit is obtained on architectural drawings that show a building envelope, not a footing detail. Finance is arranged against the permitted scheme. Only when engineering drawings are issued for construction certification does anyone overlay the footing set-out against the easement, and only then does the build-over question become concrete.
An easement may also be shown on title but not accurately located on the ground, so survey and CCTV or potholing work is needed to establish its true depth and alignment. Authorities will generally not assess a build-over application on an assumed alignment. So the discovery of the problem and the start of the evidence-gathering happen at the same moment, at the worst possible point in the program.
How it collides with the drawdown schedule
Construction facilities are typically drawn progressively against certified works. Before a first construction drawdown, a financier will generally want the building permit, the executed building contract, a quantity surveyor's initial report, and evidence that the project as costed is the project that can lawfully be built. An unresolved build-over-easement application sits directly across that last requirement.
Three consequences can follow, and none of them are neutral:
- The facility remains undrawn while holding costs accrue. Land holding costs, rates, insurance and any existing site debt continue whether or not a slab is poured.
- The approved scheme changes. If a consent condition forces a redesign, the scheme that was credit-approved is no longer the scheme being built. Revised drawings, a revised cost plan and a re-assessment may be required, and a valuation prepared on the original scheme may need to be revisited.
- The contract price moves. A fixed-price contract is only fixed against a defined scope. Pier-and-beam footings, an asset relocation or a bridging slab are usually a variation, not an inclusion. That variation lands in the cost-to-complete calculation the financier relies on, and any shortfall is typically expected to come from borrower equity rather than an enlarged facility.
The builder's exposure is worth stating plainly. A builder who priced a conventional raft slab and cannot start has a program claim, a preliminaries claim, or both. Delay costs do not pause while a consent application is assessed.
Sequencing consent alongside approvals, not after them
The fix is not clever finance. It is ordering the work so the consent question is answered while other approvals are running, rather than after they finish. In practice that means:
- Order a feature and level survey with the easement located, and confirm the true depth and alignment of the asset, before design development is locked.
- Obtain the asset owner's build-over requirements at concept stage, and design the footing solution to those requirements rather than seeking consent for a footing already drawn.
- Run the build-over application in parallel with the planning permit or its request-for-further-information stage, treating it as a tracked workstream with a named owner and a schedule.
- Price the engineered footing solution into the head contract as a defined scope item, so the fixed price is fixed against the real ground condition.
- Disclose the application to the financier early. A known, scheduled, evidenced approval pathway is a materially different conversation from a surprise discovered at first drawdown.
That last point matters more than developers expect. A credit team is not primarily reacting to the easement itself. It is reacting to whether the borrower knew about it and had a plan for it.
What parallel sequencing looks like in practice
Our published fire-damaged site at Norlane is the clearest example we have of multiple blockers run in parallel rather than in series. That Geelong site carried a council Emergency Order and a build-over-easement application at the same time, and the two were sequenced together into a funded four-townhouse development rather than being worked through one after the other. The same discipline shows in the Baw Baw Shire RFI at Yarragon, where an arborist, gas abolishment and drainage request was run as a scheduled project with owners and dates, and in the Goulburn Valley Water referral objection at Shepparton, resolved with a single consolidated evidence package rather than an exchange of partial responses. Each is one past matter decided on its own facts, not a benchmark for what another site, authority or lender will do.
Authority approvals behave like a project, not a queue: dependencies, evidence requirements, a critical path. What cannot be scheduled is a consent nobody started.
If an easement has surfaced on a site you are funding or about to fund, talk to us before the drawdown schedule is set, or read how we structure around approval risk in development finance advisory.
This article is general information about business and investment-purpose property finance only. It is not financial, legal, tax, engineering or planning advice, and it does not take account of your objectives or circumstances. Easement, planning and building requirements differ by state, authority and site. Obtain your own legal, planning, engineering and financial advice before acting.