New or proposed easements
New easements should be identified on the face of the plan using alpha symbols only.
The heading and width of the easement should be consistent:
- in the statements panel on the administration sheet of the plan
- in the section 88B instrument, and
- on the face of the plan.
The plan must contain sufficient information to define the site of any:
- easement intended to be created as a consequence of the registration of the plan
- easement intended to be partially released as a consequence of the registration of the plan
- proposed easement or proposed variation or partial release of an easement, and
- where necessary, must also contain sufficient information to indicate the relationship of any such easement to the boundaries of any affected parcel or lot.
Note Profits à prendre, restrictions on use of land and positive covenants affect the entirety of the parcel unless listed as 'Part designated '......' on the plan' in the Schedule of Lots Burdened. No width is to be stated.
A new easement site should be shown on the plan in one of the following ways:
- the site can be created over the entirety of the parcel
- the site can be created as a strip of land of specified width or as land of variable width. In either case the width of the easement must be stated. The essential dimensions of the site of must be shown by bearing and distance Cl 18(4) Surveying and Spacial Information Regulation 2012. The dimensions should be sufficient to define the extent of the site of the easement:
- where it intersects a boundary of land held in different ownership, or
- where it terminates at a boundary, whether or not the adjoining land is held in different ownership.
- the site can be identified by the centreline traverse along, for example, the towers of electricity transmission line. The centreline should be fully dimensioned and connections to the centreline shown at each title boundary. The outside extremities of the easement should be shown (without dimensions). The width of the easement must be shown.
Note Only easements along a physical line of poles (or a line of pegs placed to locate the position of a future line of poles) may be defined by a centreline traverse.
- the easement can be created over an existing physical feature (e.g. track in use, storm water detention basin, open bore drain, significant tree etc.) referred to in the s.88B instrument. No width is required.
- a cross-easement to be created under s.48, s.88BB, or s.181B Conveyancing Act 1919 will require the site of the party wall to be defined by survey on the common boundary of the lots concerned. The party wall should be appropriately designated on the plan as follows:
'CENTRE 0.23 BRICK PARTY WALL'
- an easement can be created along a waterfront, river bank or other riparian boundary.
Easements with multiple widths
The creation of a single easement with multiple widths is acceptable however discretion is advised should this course of action be undertaken. For example, an Easement to Drain Water 2 wide, 3wide and 5 wide is being created by a S.88B instrument. The easement is for a single series of pipes, where the pipes become larger the further the water is drained through the pipes.
In this example a particular parcel of land may have the site of the easement shown as 2 wide within the lot on the plan. Therefore as a result of the way the easement has been created, the certificate of title for the lot will be endorsed with the notification 'Easement to Drain Water 2 wide, 3 wide and 5 wide affecting the part(s) shown so burdened in the title diagram'. This can create confusion for practitioners and land owners where not all of the designated widths of the easement apply to an individual parcel. However, creating the easement in this way is acceptable. See Easement plan example 1.
What should be avoided is when a single easement is created with multiple widths over a number of different sites within the same lot. For example, a plan designates easements sites within a large residual lot. The easement is created as a single easement however it is for three separate easement sites positioned hundreds of metres apart. Caution is advised when creating an easement by this method. Issues may be encountered when the residual parcel is subdivided. Numerous parties may need to consent to the release even though these parties cannot physically access the site of the easement. It can be an arduous task to obtain the consents of all the dominant tenements and other parties having an interest in the burdened land. See Easement plan example 2.
Note Notifications in newly created titles reflect the widths of the easements as specified in the Section 88B Instrument.
Easements affecting new roads
Where part of the land in a plan is being dedicated as a public road, road-widening or pathway and is burdened by an existing easement, the following procedures will apply:
- the easement site should be defined, and
- the statement of intention to dedicate the road endorsed in the statements panel on the administration sheet should be stated as being subject to the easement and the statement of intention should be accepted by the Authorised Person, General Manager of the Council or Accredited Certifier.
The parties in receipt of the benefit of the easement are not required to sign the plan.
Easements may also be created appurtenant to new roads dedicated in a deposited plan. This is a common stipulation for council's consent to the subdivision. Reference to the relevant street or road should be included in the schedule of lots benefited set out in the s.88B Instrument. The section of road that will have a dominant right over the easement should be clearly identifiable on the new plan.
Easements created over compiled residue lots
An easement can be created affecting the compiled residue lot in a new plan of subdivision. However, unless the new easement is for electricity purposes and defined by the centreline of an existing line of poles, the new site must be surveyed and appropriately marked in accordance with clause 18 Surveying and Spatial Information Regulation 2012. See also Compiled easement plans and Easements for physical structures (existing line of poles) pages.