Easements and positive covenants created over roads
A Roads Authority under the Roads Act 1993, or Crown Lands on behalf of the Minister Administering the Crown Lands Act 1989, may grant an easement (e.g. private right of way, right of carriageway and/or right of footway) over a public road or Crown public road respectively in a new deposited plan by Section 88B Conveyancing Act 1919 see ss.88B(1) and (2)(a) Conveyancing Act 1919. The validity of the easement will not be questioned provided the Roads Authority or Crown Lands, have signed the plan and Section 88B instrument accordingly.
Care must be taken by the consenting authority to ensure that the roads being dealt with are not roads enclosed for cultivation under s.72 Crown Lands Act 1989 where public access is restricted at certain times to facilitate cultivation of the land.
Not withstanding their statutory obligations, the Roads Authority or Crown Lands NSW may create a positive covenant for maintenance and/or repair of a public road or Crown public road under ss.88BA(1) and (3) Conveyancing Act 1919, burdening the owner(s) of a lot or lots in a new deposited plan even though s.138 Roads Act 1993 states that a person must not dig up, disturb or otherwise interfere with a public road without consent of the appropriate Roads Authority. The land being the subject of the positive covenant must be clearly defined on the plan.