An easement is an acquired legal right over land benefiting the owner of other land or an Authority such as Council or a service provider. The site of an easement must be defined in a Deposited Plan or a plan annexed to a Real Property Dealing.
Another type of easement is a Restriction on the use of land. This is a restrictive covenant created by agreement between two or more parties that something will not be done on the land. The benefit of the restriction may be adjoining land, nearby land or the council. Typically, Restrictions on the use of land are created to restrict undesirable development and preserve the character of a neighbourhood (for example by limiting the height of buildings, building construction material and/or fencing type).
Positive covenants can impose conditions for the benefit of a prescribed authority requiring maintenance and/or repair of land, and must be in terms that require the owner of the land to do some positive action.
A Profit à Prendre is a right to use the produce of a parcel of land in the ownership of another person eg harvesting and removing produce (crop or livestock), taking soil, felling and removing timber etc.
Common easements that most developers should be aware of include:
Easement for Overhead Powerlines – an easement over proposed or existing overhead powerlines, benefiting the authority in charge of the lines (for example, Essential Energy). The width of these powerline easements is determined by the voltage carried in the lines. See here or here for further information on these easements.
Right of Carriageway – an easement granting the legal right for the owner of one piece of land to use part of another piece of land as an access way. A right of carriageway allows the owner of the land benefited to “go, pass and repass at all times and for all purposes with or without animals or vehicles or both over the land… [ burdened]”
Easement to drain water – an easement granting the legal right for a “body” (usually a public authority such as a local council) to drain stormwater, rainwater, spring water, soakage water or seepage water through the land burdened. The statutory form of this easement allows for the installation, maintenance and repair of pipes for the purpose, provided that as little disturbance as possible is made to the surface of burdened land and that the “body” restores the surface to as close to the original condition as possible.
Easement to drain sewage –an easement to drain sewage benefits a “body” and grants the legal right to drain sewage through the land burdened. In other respects, this form of easement is very similar to the easement to drain water above.
Other common easements can be found in the Conveyancing Act 1919 here.
There are several ways to create an easement:
- By registration of a Dealing, where the site of the easement must be indicated either on a sketch or a deposited plan.
- By Implied Grant or Reservation, which applies to Old System land only.
- By registration of a Deposited Plan – Section 88B of the Conveyancing Act provides for the creation of easements, profits à prendre, restrictions on the use of land and positive covenants by the registration of an instrument attached to the plan.
To create an easement by registration of a deposited plan requires two separate entities, the deposited plan, which can only be prepared by a registered surveyor, and the Section 88B instrument, which can only be finalised by a solicitor, although a registered surveyor may prepare a draft version.
The deposited plan can be prepared for another purpose, such as a subdivision, consolidation, or redefinition, or can be prepared purely for the purpose of creating the easement or easements. The plan can be either of survey or prepared by compilation, and will clearly delineate the extents of the easement/s. Plans of survey must connect to and place sufficient survey marks to comply with the Surveying & Spatial Information Regulation. The intention to create easements is noted on the plan.
The Section 88B instrument sets out the land burdened by each easement and the land or authority benefited by each easement. The conditions of easements are either set out in the Section 88B instrument, where custom requirements are to be specified, or if using a “prescribed form” of easement the definitions of which are set out in the Conveyancing Act 1919 and so are not defined in the Section 88B instrument. The Section 88B instrument must be signed by the owners of both the benefited and burdened land.
The Section 88B instrument is lodged with the plan for registration. When the plan is registered, the easement is created and noted on the Certificate of Title.
Care must be taken when creating easements, as they can be a significant burden on land and can have far reaching implications in the future. In examples of sharing a private water supply, for example, cost sharing must be carefully set out, and ideally an avenue for dispute resolution should be specified.
Doherty Smith & Associates Pty Ltd have a long history of creating easements and can provide advice in relation to the requirements for plans, sketches, and Section 88B instruments. Contact us for more information and specific advice.