Step 1: You

What you need to know

You need an encroachment licence to build a structure on, over or under road reserve, including:

  • balconies
  • car decks, carports or car pads
  • covered access ways
  • decks
  • garages
  • gates and fences
  • retaining walls

 

Licence or Lease? 

An Encroachment Licence is required if there are any structures, or any form of public access restriction.

An Encroachment Lease is only available for structures above a road reserve or underground. If you need a something long-term and for a specific period of time leases can provide more certainty. 

 

Who needs to approve it?

The Council needs to be able to understand and assess the effects a proposed encroachment could have on other property owners.

That means that Council will want to know the views of property owners near the proposed encroachment who could be materially affected by it.

This is especially so in cases:

  • where an adjoining property owner believes their significant vistas and/or amenity values could be affected by a proposed encroachment
  • where the proposed encroachment covers another property owner’s legal road frontage.

It is the responsibility of the applicant of the Encroachment Licence to obtain written consent from all affected parties of the proposed encroachment. If written consent is not provided from an affected party, then Council will consider this party as not consenting to the proposed encroachment. This will be considered in the final decision on whether to approve the Encroachment Licence.

It is also the responsibility of the applicant to obtain written consent from any utility company that maintains, or is likely to maintain, services within the proposed encroachment area. If written consent is not provided from an affected utility company, then Council will consider this party as not consenting to the proposed encroachment. Without consent, an encroachment will not be approved

You will need to attach copies of written consents from affected parties and network utility companies with your application.

 

Fees you might expect

Encroachments
Council may collect costs incurred for rental assessments from the encroachment applicant on a case by case basis
Encroachment application fee $360.00
Hourly rate for encroachment applications in addition to the minimum set with the application per hour $120.00
Encroachment annual rental To be determined on a case by case basis

Step 2: You

Type

  • Leases provide the lessee with a legal interest in the airspace of subsoil.
  • Leases will be for the life of that building.
  • The Council may allow more permanent (meaning difficult to remove) structures into airspace above or subsoil below a legal road by issuing a lease for that airspace or subsoil.
  • Special conditions may be applied to an airspace or subsoil lease on a case-by-case basis.
  • An encroachment lease is only issued to a property owner, and can’t be transferred.
  • An encroachment lease may be revoked by the Council by giving three months’ notice to the lease holder.
  • When a property is sold, any encroachment structure is deemed to also be “sold,” and the new property owner becomes fully responsible for the maintenance of the encroachment.
  • Council must be notified about the change of ownership.
  • A new encroachment lease will be issued to the new owner following notification, provided there are no outstanding issues with the encroachment. This means that any structure should be in good repair, all fees should have been paid, the selling owner must not be in breach of the terms of the licence, and the licence does not have any special conditions (for example, special termination clauses).
  • Any encroachment license that is issued to a property owner will be recorded on the Land Information Memorandum (LIM) for that property.
  • The encroachment structure is not recorded on the Certificate of Title for the company.
  • Should an encroachment lease holder want to change the use of the encroachment, they must apply to the Council (as landowner) for written consent.
  • Other special conditions may be applied to a lease on a case-by-case basis.
  • An encroachment licence is only issued to a property owner, and can’t be transferred.
  • An encroachment licence may be revoked by the Council by giving three months’ notice to the licence holder.
  • When a property is sold, any encroachment structure is deemed to also be “sold,” and the new property owner becomes fully responsible for the maintenance of the encroachment.
  • Council must be notified about the change of ownership.
  • A new encroachment licence will be issued to the new owner following notification, provided there are no outstanding issues with the encroachment. This means that any structure should be in good repair, all fees should have been paid, the selling owner must not be in breach of the terms of the licence, and the licence does not have any special conditions (for example, special termination clauses).
  • Any encroachment license that is issued to a property owner will be recorded on the Land Information Memorandum (LIM) for that property.
  • The encroachment structure is not recorded on the Certificate of Title for the company.
  • Should an encroachment licence holder want to change the use of the encroachment, they must apply to the Council (as landowner) for written consent.
  • Other special conditions may be applied to a licence on a case-by-case basis.
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Step 3: Council

What happens next?

Application fee

Before your application is processed our team will reach out to confirm the cost and arrange payment of the application fee. 

Encroachment Licence/Lease Document

Subject to approval of the encroachment proposal, Council will develop an Encroachment Licence or Lease document.

Prior to submitting it to the applicant, Council may have the document reviewed by their legal representation. If the applicant requests any changes or edits to the agreement, then the cost associated with the changes (staff time, legal services) will need to be met by the applicant.

The applicant will be provided with the document and have an opportunity to seek their own legal review, prior to entering into the agreement.

Monitoring and Compliance

Each new Encroachment Licence that is issued to a property owner will be recorded on the Land Information Memorandum (or LIM) for the property and will also be captured within the encroachment register.

It is the responsibility of the property owner, who benefits from the encroachment, to apply for the Encroachment Licence. Failure to do so will result in Council requesting the property owner to resolve the encroachment, or Council removing the encroaching structure.

Each encroachment will be reviewed on a periodic basis to ensure the property owner continues to meet the conditions of the encroachment. The period of review will be determined on a case by case basis

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Last updated 8 November 2022