Section 88B instruments

A section 88B instrument is the part of a deposited plan which upon registration:

  • creates easements, profit à prendre, restrictions on use of land, and positive covenants. [cl.35 Conveyancing (General) Regulation 2008]
  • releases easements and profits à prendre. [cl.36 Conveyancing (General) Regulation 2008]

Note  Restrictions on use of land and positive covenants cannot be varied or released by a s.88B instrument.

The instrument must be drawn in accordance with Approved Form 10 Section 88B Instrument (PDF 28KB) and must be lodged as part of the plan. Stamp Duty is not payable.

Where a section 88B instrument, includes height limitations to define the stratum of an easement, profit à prendre, restriction on use of land or positive covenant, the accompanying deposited plan must comply with cl.13 & 62 Surveying and Spatial Information Regulation 2012.

Note: Easements cannot be created in an acquisition or resumption plan that has not been activated at time of registration. Such easement sites should be designated "Proposed".

Preparation of a s.88B instrument

A Section 88B instrument comprises three parts:

Part 1: Identifies each easement, profit à prendre, restriction on use of land or positive covenant to be created.

Note  Each easement, profit à prendre, restriction on use of land or positive covenant must be separately created. An easement and/or a restriction on use of land and/or a positive covenant can not be combined into a single notification.

Part 1A: Identifies each easement or profit à prendre to be released.

Part 2: Sets out the terms and conditions of easements profit à prendre, restrictions on use of land or positive covenants referred to in Part 1 (if required). Part 2 may not be required if statutory terms are adopted.

See sample s.88B easement plan (GIF 19KB)

Creating easements by s.88B instrument

Terms and conditions required

An easement created for any purpose other than the statutory easements mentioned below must show terms and conditions in Part 2 of the s.88B Instrument.

Note  In some circumstances multiple easements (e.g. Right of Carriageway and Easement for Support) may be created in a s.88B Instrument. These are not regarded as statutory easements and consequently the requisite terms should be included in Part 2 of the Instrument.

Terms and conditions not required

In order to simplify the creation of easements, the statutory form of easements may be used. Statutory easements adopt the terms and conditions specified in Schedule 4A (easements in gross) and Schedule 8 (easements having a dominant tenement) Conveyancing Act 1919.

There is no provision to nominate a person with the right to release vary or modify the easement see s.88(1)(c) Conveyancing Act 1919.

Persons whose consent to a release, variation or modification of the easement is stipulated for may be nominated see s.88(1)(d) Conveyancing Act 1919.

Following is a list of statutory easements (referred to as short form easements) set out in each of the Schedules. These statutory easements do not require terms and conditions to be repeated in Part 2 of the instrument:

Schedule 4A Easement in Gross

Right of Carriage Way
Right of Foot Way
Easement to Drain Water
Easement to Drain Sewage
Easement for Repairs
Easement for Drainage of Sewage
Easement for Drainage of Water
Easement for Electricity Purposes
Easement for Services
Easement for Water Supply
Right of Access

Schedule 8

Right of Carriage Way
Right of Foot Way
Easement to Drain Water
Easement to Drain Sewage
Easement for Repairs
Easement for Batter
Easement for Drainage of Sewage
Easement for Drainage of Water
Easement for Electricity Purposes
Easement for Overhang
Easement for Services
Easement for Water Supply
Easement to permit Encroaching Structure to remain
Right of Access
Easement for removal of support

Note 1  A right of way or drainage easement may adopt the statutory terms specified for a right of carriage way / foot way and an easement to drain water / sewage respectively - see s. 181 Conveyancing Act 1919.

Note 2  The use of these expressions does not prevent (if so desired) the inclusion in Part 2 of variations to the terms and conditions specified in the Schedules. Such variations may be by way of addition, exception, qualification or omission.

Creating restrictions / positive covenants by s.88B instrument

Terms and conditions of restrictions on use of land / positive covenants must always be shown in Part 2 of the s.88B Instrument. Person(s) having the right or whose consent to release, vary or modify the restriction or positive covenant may be nominated see s.88(1)(c) and (d) Conveyancing Act 1919.

Releasing easements by s.88B instrument

Section 88B Conveyancing Act 1919 provides for the release of easements by the registration of a plan. The identity of the easements to be released must be set out in:

  • Part 1A of the instrument, and
  • the statement of intention panel of the plan.

Signatures and consents

Where an easement, profit à prendre, restriction on use of land or positive covenant is being created, the plan and s.88B instrument must be signed by:

  • the registered proprietor, including statutory authorities
  • mortgagee
  • chargee, and/or
  • covenant chargee.

Note  If the terms of an easement or restriction as set out in a Section 88B instrument impose an obligation on a prescribed authority or the owner of the dominant tenement to maintain or repair (or contribute to the maintenance or repair) the easement or restriction, the authority or owner must execute the instrument - see Schedule 9 Part 8 (c) Conveyancing (General) Regulation, 2008.

Written consents must be furnished by any:

  • caveator
  • lessee, or
  • judgement creditor under any writ,

in accordance with s.195D Conveyancing Act 1919. See also Signing and witnessing page.

Note  Written consents may be dispensed with if the caveator, lessee or judgement creditor signs the plan and instrument.

Where an easement or profit à prendre is being released

The signatures and consents of all the parties relating to the dominant tenement together with any authority specified in the creating instrument or dealing as having the right to release, vary or modify the easement or profit à prendre must be furnished.