Easement 101 I have one. Now what?

Easements are one of those features that are often misunderstood. They sometimes cause undue stress about their potential impact on a landscape design, of what can and can’t be included. Here at Orterra, it’s not usual for a client to say in the design brief process themes along the line of ‘we’d love a row of trees on that back boundary but there’s an easement,’ or ‘that easement along the side means we can’t xyz’.  There’s that undeniable sigh of relief when we tell them that their ideas for their space may not actually be limited by the presence of an easement.

There are a number of different types of easements with corresponding limitations and opportunities. Before we get into how they can impact on landscape architecture, let’s take a step back a smidge further and define what an easement actually is:

What is an Easement?

Put simply, easements give rights to use part of your land for a specific purpose OR gives other people/entities allowance to cross over your property in a defined manner.

We are based in Brisbane, Queensland and work with clients across Australia on managing easements on their property and so refer to the governing authorities in each location, as there are some minor differences in definitions and restrictions by locality. For example, In Queensland, easements are always listed on property titles as an ‘Encumbrance’ whereas in other states they can be known as a ‘Restrictive Covenant’.

Regardless, broadly speaking, easements as defined above represent the different purposes they solve. For example, an easement that uses part of your land would apply to essential services such as water lines, power or data. Hello, ‘dial before you dig!’ An access easement for example gives your neighbour the right to cross your property to access their own. An easement of support (usually) refers to a wall between properties that’s shared, and easements of light and air is about not allowing light or air access to be blocked by walls, buildings and in some cases foliage.

So, what does this actually mean? What’s the potential impact on a design?

Firstly, it is a misconception that if an easement is in place nothing can be built upon it or encroach upon it. This is simply inaccurate BUT as per above, refer to the authorities in your local area; we can’t stress this enough! That disclaimer out of the way, let us explain.

The type of easement will determine the level of restriction, as well as any other considerations to the property and the project. For example, if you share a driveway with a neighbour who lives behind you, obviously you can’t build a garage that blocks their access. Right-of-way easements means you may be within your rights to plant trees, but not in a way that blocks access. We heard recently of a property in an inner city urban area that, by stealth, claimed the rear lane (or dunny lane as one of our Dads calls them!) behind their property. They’d removed their rear fence and basically gated the two side boundaries, preventing their neighbours and the council from access. Obviously this is a big no-no!

If you have a sewerage easement along your side boundary, you can potentially create a garden room complete with pergola (with council approval if required), water feature and herb garden, but should avoid planting large trees with known invasive roots or installing structures that prevent access. For example, a deck is not irreversible and could allow access if pipes or infrastructure required maintenance or repair. A lot of our work is takes into account easements for essential services support so we’re well familiar with the rules and regulations around these, taking into account each location’s legislation, which is why working with a Landscape Architect is always a great idea! Hashtag shameless plug…

When it comes to the easements of light and air, the definitions and applications can start to feel a bit murky and ambiguous – although, many councils now request landscape plans with new developments that specify plantings that align to easements of light and air. Basically, this easement is all about view, and this is just as applicable to a row of hedging as it would be to a structure such as an extra-tall fence.

Easements are not a nicety – these are legal statutes that must be adhered to and taken seriously. Our process, regardless of the project is to take into account any easements upon properties and come up with solutions that align easement requirements with design and usage goals. And we love it! To find out more about our work please reach out.