An easement is a proprietary interest in land. It binds you from the moment you take title, and it usually cannot be removed without either the beneficiary’s agreement or a court order. Your lawyer reads the instrument and tells you what the words actually permit. Your surveyor tells you where the burden physically sits. Between them they decide whether the site carries a basement you cannot build, a Development Application (DA) that gets refused, a settlement you cannot fund, or an injunction from a neighbour halfway through the slab pour. There is a list of specific questions to put to each of them near the end.
The figures, section numbers and processes below were current at the time of writing and they do change. Every legislative and registry reference is linked to the primary source, and that source is where to confirm the current position before you rely on it.
What is an easement, and why does it matter on a development site?
An easement is a right for one party to use part of someone else’s land for a defined purpose, without owning or possessing it. The land carrying the burden is the servient tenement. The land taking the benefit is the dominant tenement. Land Use Victoria describes it plainly as a right held by someone to use land belonging to someone else for a specific purpose, with drainage, sewerage and carriageway being the common examples. Landgate in Western Australia uses a similar formulation: a right attached to a parcel of land which allows the proprietor of that parcel to use the land of another in a particular manner.
For a developer, the definition matters far less than three practical consequences.
The first is that easements generally run with the land. They are not personal arrangements between the current owners. They survive sale, they survive subdivision, and they bind you whether or not you noticed them during due diligence.
The second is that an easement carves a strip out of the part of your site you can physically build on, even though you still own the dirt, still pay rates on it, and in most jurisdictions still count it in your site area for planning purposes. That asymmetry is where the money hides. The land is in your feasibility at full price. The buildable footprint is smaller than the title suggests.
The third is that most easements over development land are held by a servicing authority rather than a neighbour, and those authorities have their own asset protection rules that operate independently of the planning system. A council may approve your Development Application (DA) while the water authority separately refuses to let you build within a metre of its main. Two approvals, two decision makers, two sets of criteria.
Easements are one species of encumbrance, and the wider set of title interests and physical encroachments that constrain a site is covered in the guide to encroachment and encumbrances. The practical question on any site is not “is there an easement” but “what does the burden do to the buildable envelope, and what would it cost in time and money to move it, work around it, or remove it”.
Which easements affect a site, and which ones are easiest to miss?
The registered ones are the easy half. The rest is where deals come unstuck.
Easements registered on the title
These show as notifications on the folio and are described in the referenced dealing or plan. In New South Wales, the Registrar General’s Guidelines set out how easements are recorded against both the burdened and benefited titles. Section 88(1) of the Conveyancing Act 1919 (NSW) requires an instrument creating an easement to identify the land burdened, the land benefited, the persons whose consent is required to release or modify it, and the persons entitled to release or modify it. Those four particulars are worth reading closely, because paragraph (c) tells you who has to sign if you ever want the easement gone.
In Queensland, section 82 of the Land Title Act 1994 (Qld) provides that an easement over a lot or part of a lot may only be created by registering an instrument of easement. That is a useful discipline for due diligence: on Queensland freehold land, if it is not registered, it is not an easement in the ordinary sense.
Easements created on a plan of subdivision
Many easements never appear as a standalone dealing. They were created when the estate was laid out. In New South Wales, section 88B of the Conveyancing Act 1919 (NSW) allows easements, profits à prendre and restrictions on use to be created and released by an instrument lodged with a plan. The section 88B instrument, not the title, is where the terms live. If your searches produce the title and the deposited plan but not the section 88B instrument, you have read roughly half the story.
Victoria works differently again. Section 12 of the Subdivision Act 1988 (Vic) allows a plan to provide that easements and rights are implied as a burden or benefit over land on the plan, covering the passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service. Those implied easements sit in addition to easements arising under section 98(a) of the Transfer of Land Act 1958 (Vic). A Victorian plan that appears to show no easement across a lot may still carry implied rights, and reading the plan’s notations is not optional.
Easements in gross held by authorities
An easement in gross has a burdened land parcel but no benefited land parcel. The benefit sits with a body, typically a water authority, an electricity distributor, a council or the Crown. Section 155 of the Law of Property Act 2000 (NT) and section 90A of the Conveyancing and Law of Property Act 1884 (Tas) both give statutory footing to easements in gross, and the Australian Capital Territory deals with their registration, transfer and extinguishment under section 103C of the Land Titles Act 1925 (ACT).
These are the easements developers most often try to move, and they are also the ones where the counterparty has a statutory purpose rather than a price. A neighbour can be negotiated with. A water authority has an asset renewal programme and a set of engineering standards.
Assets in the ground with no easement at all
Plenty of infrastructure sits under private land without a registered easement, particularly older sewer and stormwater lines laid before the current registration practice. The absence of an easement on title is not evidence that the ground is clear. It may simply mean the authority relies on statutory powers of entry rather than a registered interest, which can leave you with all of the constraint and none of the notice.
The trap here is that a title search alone is a weak due diligence tool. Asset location plans from each servicing authority, a dial-before-you-dig enquiry, and a survey that physically picks up pit lids, manholes and inspection openings will usually tell you more than the folio does.
Unregistered rights: prescription, necessity and long use
Some rights arise without registration. Easements of necessity, easements implied on the sale of part of a parcel, and prescriptive rights acquired through long use all remain live issues, though the extent to which they survive under Torrens title varies materially between jurisdictions. This is a question for your property lawyer on the specific title, not a general rule, and the answer can turn on whether the land has ever been outside the Torrens system.
Where the risk shows up in practice is a worn driveway track, a shared bin store, or a neighbour who has crossed the rear of the site for thirty years. None of those appear on a folio. All of them can turn into a claim once the fence comes down. A physical inspection with the survey, and a note of every visible line of use across the boundary, is cheap insurance.
How does an easement change what you can build?
It shrinks the buildable footprint, and on most sites the basement is where that shrinkage becomes expensive.
The surface footprint
The obvious effect. A three metre drainage easement running across the rear of a site removes that strip from the area you can put a building on. In practice the sterilised area is usually wider than the easement itself, because authority build-over rules commonly impose a clearance measured from the pipe, or a zone of influence measured from the invert level at an angle. The deeper the asset, the wider the practical exclusion at the surface.
The basement, and why it dominates the numbers
Basements are the single most cost-sensitive element on most infill sites, and they are also the least tolerant of an easement. A basement wants a rectangular, unbroken footprint with a single ramp. An easement running diagonally across a site, or clipping one corner, can force a smaller basement, a second level of excavation to recover the same car count, or a change of parking layout that loses a bay every few metres.
Losing car spaces matters more than the spaces themselves, because parking rates in most planning schemes tie the number of dwellings you can deliver to the number of spaces you can provide. A basement constraint can therefore convert directly into lost apartments, and lost apartments convert directly into lost gross realisation.
Setbacks, deep soil and landscaping
Easement land is generally poor landscaping land. Most authorities restrict planting over an asset to shallow rooted species, which sits awkwardly with deep soil zones, canopy cover targets and tree retention conditions that increasingly drive assessment outcomes. A site with a drainage easement across the only part of the block deep enough for a canopy tree can end up with a planning problem rather than an engineering one.
Access and vehicle crossings
A right of carriageway across your site can constrain where you put a driveway, how you manage waste collection, and whether you can gate the site. Conversely, a right of carriageway in your favour over neighbouring land may be the only reason a battle-axe or rear lot works at all, in which case its exact width, permitted use, and any restriction on the class of vehicle become load bearing assumptions in the feasibility.
Read the words, not the label. A “right of carriageway” granted in 1962 for the passage of persons and vehicles to and from a dwelling may not obviously extend to construction traffic, waste trucks servicing twenty apartments, or a permanent basement ramp. Whether it does is a question of construction of the instrument, and it is a common source of neighbour litigation.
Worked example: what a three metre drainage easement can cost
The arithmetic below is illustrative. Every input is an assumption chosen to show how the effect compounds, not a market figure. Real numbers would come from the servicing authority’s own quotation, the civil engineer’s design, and the quantity surveyor’s cost plan.
Take a 2,000 square metre infill site with a proposed basement of 1,800 square metres, delivering 45 car spaces at an assumed 40 square metres per space including circulation and ramp. The planning control is assumed to require 1.5 spaces per apartment, so 45 spaces support 30 apartments.
Now add a three metre wide drainage easement running 40 metres across the rear of the site, and assume the authority’s build-over rules require a further 1.5 metres of clearance either side of the pipe. The practical exclusion becomes six metres wide over 40 metres, or 240 square metres.
Scheme A, no easement
- Basement footprint: 1,800 square metres
- Car spaces at 40 square metres each: 45
- Apartments at 1.5 spaces each: 30
Scheme B, easement retained and built around
- Basement footprint: 1,800 less 240, so 1,560 square metres
- Car spaces at 40 square metres each: 39
- Apartments at 1.5 spaces each: 26
Four apartments have gone. At an assumed $850,000 each, that is $3,400,000 of gross realisation. Assume selling and marketing at 4 per cent of that figure, or $136,000, and assume marginal construction and professional cost of $450,000 per apartment, or $1,800,000. The contribution foregone is $3,400,000 less $136,000 less $1,800,000, which is $1,464,000.
Scheme C, easement relocated
Assume the authority accepts a deviation of the main around the perimeter of the site, quoted at $600,000 all in for design, authority approval, construction and reinstatement, and assume it adds nine months to the programme before you can start the basement. On assumed land of $4,000,000 held at an assumed 8 per cent a year, nine months of holding cost is $240,000. Total cost of the relocation route, on these assumptions, is $840,000.
On those numbers the comparison is $1,464,000 of contribution against $840,000 of cost and delay, before contingency. That does not tell you what to do. It tells you where to spend your due diligence budget: a quotation from the servicing authority and a programme impact from the civil engineer are worth obtaining before you exchange, not after. It also tells you why an easement that looks like a minor title annotation can be the difference between a scheme that works and one that does not.
Change one input and the answer flips. If the easement runs down a side boundary rather than through the middle of the basement box, the sterilised area may cost you two spaces rather than six. If the apartments are $1,400,000 rather than $850,000, the contribution foregone roughly doubles while the relocation cost stays the same. If the authority will not permit a deviation at all, the relocation column disappears and the only question is what the constrained scheme is worth. This is the sort of variable that belongs in the feasibility as a tested scenario rather than inside a general contingency line.
Can you build over an easement?
Sometimes, with consent, and the consent comes from the beneficiary rather than the council.
For a private easement, you generally need the agreement of the person or persons entitled to it. For an easement in gross, you need the authority’s approval under its own asset protection policy, and that is a separate process from the planning approval and the building approval.
In New South Wales, Sydney Water requires written approval before you build over or adjacent to its assets, and its position is that no temporary or permanent building works are permitted on, above or below easement land without approval. The practical rule of thumb across most water authorities is similar in shape: lightweight, removable or easily demolished structures may be considered, while permanent load bearing structures over an asset generally are not, and anything that would prevent machine access for maintenance is unlikely to succeed.
In Victoria, the consent typically sits with the council for a council drain and with the relevant water corporation for a water or sewer asset, and it is usually a precondition of the building permit rather than something you resolve afterwards.
In Queensland, the equivalent consent comes from the distributor-retailer or the local government depending on the asset. In South Australia and Western Australia the pattern is the same: the asset owner has a published build-over policy and a formal application.
The important sequencing point is that build-over consent is usually not a matter for the planning authority, and a planning approval that assumes a structure over an asset is worth very little if the asset owner then refuses. Where a scheme depends on building over or immediately adjacent to an easement, it tends to be safer to test that with the authority at concept stage, before the design is committed and before the Development Application (DA) is lodged.
The other point worth flagging is that authority consent to build over an asset is commonly conditional. Conditions often include structural design to protect the asset, a deed or positive covenant obliging you and your successors to pay for removal and reinstatement if the authority ever needs access, and sometimes a requirement to encase or relocate the asset at your cost. Those obligations run to the owners corporation and eventually to your purchasers, which makes them a disclosure issue as well as a cost issue.
How do you get an easement removed or modified?
There are broadly four routes, and which are available depends on the state. The parallel question for a restrictive covenant, which is a different interest with its own removal tests, is covered in the guide to restrictive covenants.
By agreement with the beneficiary
The simplest and usually the cheapest. The persons identified in the creating instrument as entitled to release or modify the easement execute a release or a variation, which is then registered. Section 88(1)(c) and (d) of the Conveyancing Act 1919 (NSW) is the reason it pays to identify those persons early: if the easement benefits fourteen lots in an old subdivision, you may need fourteen signatures, and the last one tends to be expensive.
Where the beneficiary is an authority, agreement is usually conditional on the asset being relocated first, at your cost, to a standard the authority specifies. The release follows the works rather than preceding them, which has real programme consequences.
By court order
Most jurisdictions give a court power to modify or extinguish an easement.
New South Wales. Section 89 of the Conveyancing Act 1919 (NSW) allows the Court, on the application of any person interested in the land, to modify or wholly or partially extinguish an easement. The grounds are worth quoting rather than paraphrasing. The Court must be satisfied that by reason of change in the use of the benefited land, or in the character of the neighbourhood, or other material circumstances, the easement “ought to be deemed obsolete”, or that its continued existence “would impede the reasonable user of the land subject to the easement … without securing practical benefit to the persons entitled”, or that the persons entitled have agreed or may reasonably be considered to have abandoned it, or that the proposed modification or extinguishment “will not substantially injure the persons entitled”. Section 89(1A) adds that an easement may be treated as abandoned if the Court is satisfied it has not been used for at least 20 years before the application is made.
Queensland. Section 181 of the Property Law Act 2023 (Qld) enables the court to modify or wholly or partially extinguish an easement. The Property Law Act 2023 (Qld) commenced on 1 August 2025, replacing the Property Law Act 1974 (Qld), so older commentary citing the 1974 Act’s section numbering may no longer align.
Victoria. Victoria does not use a general court extinguishment power in the same way. The principal route for a developer is section 36 of the Subdivision Act 1988 (Vic), covered below, alongside removal by plan under section 23 of the same Act, which engages clause 52.02 of the planning scheme and therefore a planning permit.
Western Australia. Section 129C of the Transfer of Land Act 1893 (WA) allows the court, on application of any person interested in land burdened or benefited, to wholly or partially extinguish, discharge or modify an easement, where the persons entitled have agreed or abandoned it, or where the proposed extinguishment will not substantially injure them.
South Australia. Section 90B of the Real Property Act 1886 (SA) provides for variation and extinguishment of easements, and includes a Registrar-General pathway where consents cannot practicably be obtained, subject to gazettal and notice requirements, and where the proprietor of the dominant land has ceased to exercise the rights conferred.
Tasmania. Section 84C of the Conveyancing and Law of Property Act 1884 (Tas) provides for discharge or modification of overriding interests, which is the Tasmanian analogue of the New South Wales section 89 jurisdiction.
Northern Territory. Section 177 of the Law of Property Act 2000 (NT) deals with modification or extinguishment of easements and covenants.
Australian Capital Territory. Extinguishment is dealt with under the Land Titles Act 1925 (ACT), with the registry process run through Access Canberra. The ACT planning authority publishes general guidance on how easements affect a block.
By plan, or by the registrar
In several jurisdictions an easement can be released or removed as part of registering a new plan, rather than by a separate dealing. In New South Wales that is the section 88B mechanism working in reverse. In Victoria it is a plan lodged under the Subdivision Act 1988 (Vic). These routes are procedurally cleaner but they still require the underlying consents unless a statutory power dispenses with them.
By abandonment
Non-use can support extinguishment, but it is rarely as simple as it sounds. In New South Wales the 20 year threshold in section 89(1A) is a gateway, not an automatic result, and evidence of the beneficiary asserting the right at any point tends to defeat the argument. Treat a long-unused right of way as a live encumbrance until a court or the beneficiary says otherwise.
Can you force an easement over land you do not own?
In several jurisdictions, yes, if you can satisfy a court that it is reasonably necessary and that the burdened owner can be adequately compensated. This is one of the least understood tools available to a developer, and it is the mechanism behind a good number of otherwise impossible infill sites.
New South Wales: section 88K
Section 88K of the Conveyancing Act 1919 (NSW) provides that “the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement”.
The gateway conditions in section 88K(2) are cumulative. The Court must be satisfied that use of the benefited land “will not be inconsistent with the public interest”; that the owner of the burdened land and each other person with a registered interest in it “can be adequately compensated for any loss or other disadvantage”; and that “all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful”.
That third limb is the one applicants most often stumble on. A single letter to the neighbour is unlikely to be treated as all reasonable attempts. A documented negotiation, with offers, over a realistic period, generally is. The practical implication is that the negotiation you are having now is also the evidence you will rely on later, and it should be conducted and recorded with that in mind.
Two further features of section 88K matter commercially. Section 88K(3) allows the Court to specify the nature and terms of the easement and provides that “the terms may limit the times at which the easement applies”, which is what makes a temporary easement, for example for crane oversail or scaffolding during construction, capable of being framed. Section 88K(5) provides that “the costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary”. You pay the compensation under section 88K(4) and, as a starting position, both sides’ costs. Budget accordingly, and get an estimate from your lawyer before you commit, because on a small site the total can exceed what the easement is worth to the scheme.
Queensland: statutory right of use
Section 180 of the Property Law Act 2023 (Qld) empowers the court to impose a statutory right of use, which may take the form of an easement or a licence. The court may make the order where satisfied, among other things, that the statutory right of use is reasonably necessary for the effective use and development of the benefited land, that it is consistent with the operation of the Planning Act 2016 (Qld), that the use or development of the benefited land is consistent with the public interest, that each person with an interest in the burdened land can be adequately compensated, and that the applicant has made reasonable attempts to obtain the easement by agreement.
The Planning Act 2016 (Qld) consistency limb is a Queensland-specific addition worth noting: the planning merits of the proposed development are relevant to whether the court will impose the right, which tends to reward applicants who bring a well-progressed scheme rather than a concept sketch.
Northern Territory and Tasmania
Section 164 of the Law of Property Act 2000 (NT) allows the Court to impose a statutory right of user where it is necessary for using land in a reasonable manner, provided the proposed use is reasonable, it is in the public interest, and the servient owner can be adequately recompensed in money. Section 84J of the Conveyancing and Law of Property Act 1884 (Tas) provides a Tasmanian statutory rights of user jurisdiction.
Victoria: the Subdivision Act route
Victoria approaches the same problem from the planning end rather than the property law end. Section 36 of the Subdivision Act 1988 (Vic) applies where a council or a referral authority states in writing, when considering a planning scheme amendment, a permit application, or in a permit condition, that it considers the economical and efficient subdivision, consolidation, servicing of, or access to the land requires the owner to remove a right of way, or to acquire or remove an easement over other land in the subdivision or in the vicinity, and that doing so “will not result in an unreasonable loss of amenity in the area affected”.
Where that statement is given, the owner may apply to the Victorian Civil and Administrative Tribunal (VCAT) for leave to remove the right of way, or to acquire or remove the easement compulsorily. Section 36(1A) allows the Victorian Civil and Administrative Tribunal (VCAT) to give leave subject to any conditions it thinks fit. If leave is given, the Land Acquisition and Compensation Act 1986 (Vic) applies to the acquisition or to compensation claims on removal, with section 36 operating as the special Act and the owner standing in the position of the acquiring authority.
Two consequences follow for a Victorian developer. First, the route begins with the council or referral authority, not with the Tribunal, so the written statement under section 36(1) is the item to secure early. Second, you become the acquiring authority for compensation purposes, which is a different and generally more structured exposure than a negotiated payment.
The other jurisdictions do not all offer a directly equivalent power to compel a new easement, and where the position is unclear it is a question to put to a property lawyer in that state rather than to assume from the position elsewhere.
What does compensation actually cover?
The statutes speak in terms of adequate compensation for loss or other disadvantage, and leave the quantification to valuation evidence. In practice the argument tends to run across the diminution in value of the burdened land, any injurious affection to the balance of it, disturbance, and in some cases a share of the additional value the easement creates for the applicant. How much weight that last element carries is contested and fact-specific, which is precisely why both sides usually engage valuers and why the costs exposure under provisions like section 88K(5) can dominate a small application.
What happens to easements when you subdivide?
Subdivision is the point at which easements get created, and it is usually the authority rather than you deciding how many.
In New South Wales, easements benefiting and burdening the new lots are typically created by a section 88B instrument lodged with the plan, and the terms are fixed at that moment. In Victoria, section 12 of the Subdivision Act 1988 (Vic) governs what the plan must show and what is implied. In Queensland, easements are created by registration under section 82 of the Land Title Act 1994 (Qld).
For a developer selling lots, the terms of those easements are a product decision as much as a legal one. Reciprocal drainage easements between adjoining lots, a right of carriageway over a common accessway, easements for services in a battle-axe handle, and party wall and support easements in a terrace product all shape what your purchaser can build and what their conveyancer will say about the title. A poorly drafted easement schedule shows up later as a slow settlement run.
It is also the moment to fix anything you have inherited. If you are extinguishing or relocating an existing easement, doing it as part of the plan is generally cleaner and cheaper than doing it as a separate dealing after titles issue. Your registered surveyor is the person who sequences that, and it is worth asking them to walk the easement schedule with you before the plan is lodged rather than after. If you are subdividing in Victoria specifically, the interaction between the plan, clause 52.02 of the planning scheme and the Subdivision Act 1988 (Vic) is covered further in the guide to subdivision in Victoria.
Easements and construction: airspace, anchors and oversail
Construction generates its own easement problems, and they arrive late, when the programme is least forgiving.
Crane jibs oversail neighbouring airspace. Ground anchors for a basement retention system frequently extend under adjoining land. Scaffolding and hoardings sit over the boundary. Façade access equipment swings past it. Each of these is, in principle, a trespass unless you have a right to do it, and a neighbour who knows that is in a strong bargaining position at exactly the wrong moment.
The commercially useful point is that section 88K(3) in New South Wales expressly permits the terms of a court-imposed easement to “limit the times at which the easement applies”, which is what makes a time-limited construction easement conceptually available where negotiation fails. That is not a quick fix. Proceedings take time, section 88K(5) puts the costs on the applicant, and a court application started after the tower crane is on site is a poor negotiating position.
The trap is sequencing. Oversail and anchor rights are cheapest to secure before the neighbour understands the programme depends on them, which means during due diligence, not during the early works package. Where the neighbouring owner is a strata scheme, add time: the decision may need an owners corporation resolution, and that has its own notice periods.
Easements in New Zealand
The framework is different in structure and similar in effect.
Easements are created and varied under the Land Transfer Act 2017, with easement instruments registered under section 108 and variations under section 112. On subdivision, section 243 of the Resource Management Act 1991 provides that where a subdivision consent is granted subject to a condition that specified easements be granted or reserved, the territorial authority must not approve the survey plan unless a memorandum of easements is endorsed on it showing, for each easement, the dominant and servient tenement or, for an easement in gross, the proposed grantee. The Registrar-General of Land must then refuse to register a transfer of an allotment on that plan unless satisfied the specified easements have been or will be granted or reserved. In practice that means the memorandum of easements is a gate on your title issue, and therefore on your settlements.
Implied terms matter more in New Zealand than most Australian developers expect. Section 297 of the Property Law Act 2007 provides that every grant of a vehicular right of way contains the implied covenants in Schedule 5 unless they are negatived, varied or extended by the instrument, a written memorandum, or a registered easement or easement variation instrument. Maintenance and contribution obligations for a shared accessway are commonly governed by those implied covenants, so the question of who pays to resurface a shared drive in a six-lot development may already be answered by the schedule rather than by anything you drafted.
For removal, section 317 of the Property Law Act 2007 allows a court to modify or extinguish an easement or covenant, wholly or in part, where satisfied it ought to be modified or extinguished because of a change since its creation in the nature or extent of use of the benefited or burdened land, or where its continuation in its existing form “would impede the reasonable use of the burdened land in a different way or to a different extent from that which could reasonably have been foreseen by the original parties”. The court may order reasonable compensation.
For access, sections 326 to 331 of the Property Law Act 2007 allow the owner or occupier of landlocked land to apply to the High Court, and section 328 of the Property Law Act 2007 empowers the court to grant reasonable access by vesting other land in the owner of the landlocked land or by granting an easement for its benefit, subject to exclusions including national park land, public reserves and railway lines.
Land Information New Zealand publishes the registration guidance for creating, surrendering, varying and removing easements.
One structural caveat: the Resource Management Act 1991 is in the process of being replaced, and the subdivision consent framework that sits above section 243 may look different by the time a current project reaches survey plan approval. New Zealand developers may want to confirm the position at the time rather than relying on a settled description of it.
Due diligence: what to check before you exchange
The purpose of the checklist below is to convert a title annotation into a number in the feasibility before the contract binds you.
Order the instruments, not only the title. A folio tells you an easement exists. The section 88B instrument, the plan, or the registered dealing tells you its width, its purpose, who benefits, and who must consent to release it. In Victoria, read the plan notations for implied easements under section 12 of the Subdivision Act 1988 (Vic).
Get an identification survey that picks up services. Registered easements can be mapped from the plan. Assets can only be located on the ground. A survey that records pit lids, manholes, inspection openings and any visible line of use is the document your civil engineer will design from.
Ask each servicing authority for asset location plans. Water, sewer, stormwater, gas, electricity and telecommunications each hold their own records, and the records are not always consistent with each other or with reality.
Establish the build-over position early. If any part of the scheme sits over or beside an asset, put the concept to the authority and ask what it would and would not consent to, and on what conditions. A preliminary answer before exchange is worth a great deal more than a formal answer after.
Price the deviation. Where relocation is a live option, get an order-of-magnitude figure and a programme estimate. This is a discrete cost line, not something that belongs inside a general contingency.
Check the planning certificate and the planning scheme. In New South Wales, the section 10.7 planning certificate will not describe private easements but will pick up matters that interact with them, including drainage and flood-related controls. In Victoria, check whether clause 52.02 is engaged by anything you intend to do to an easement.
Check for competing interests on title. Easements often travel with other encumbrances. A caveat on the title may signal a claimed right that never made it to registration.
Test the scheme both ways. Run the feasibility with the easement retained and with it removed, and treat the difference as the maximum you would rationally spend on removal. That is the number that should drive whether you negotiate, apply, redesign, or walk. Where a site’s realistic capacity is genuinely in question, the highest and best use analysis needs to run on the constrained footprint, not the title area.
How does an easement land in the feasibility?
In four places, and only one of them is obvious.
Yield. The constrained scheme is the scheme, until and unless the easement moves. Modelling the unconstrained yield and treating the easement as a risk note tends to produce a feasibility that looks better than the deal is. Where an easement affects saleable area or car parking, the effect flows through to gross floor area and saleable area, and from there to gross realisation.
Cost. Relocation works, authority application fees, structural design to protect an asset, encasement, and reinstatement are discrete construction cost items. Legal costs, compensation, and the applicant’s exposure to the other side’s costs under provisions like section 88K(5) sit in professional fees and acquisition costs rather than construction.
Programme. Authority approvals for asset relocation and court applications for extinguishment or imposition both run on timelines you do not control. The holding cost of that delay is usually a larger number than the works themselves on a land-heavy site.
Risk. An easement whose removal is uncertain is a scenario, not a base case. Where the deal only works if the easement goes, that is worth knowing before exchange, and a condition precedent in the contract of sale is generally a cheaper way to manage it than an option to litigate later.
What to ask your property lawyer
- Read me the easement instrument. What exactly does it permit, and does that language extend to the use my scheme requires?
- Who must consent to a release or variation, applying the particulars in the creating instrument, and how many separate parties is that in practice?
- Is there a realistic argument for extinguishment on the facts, whether on obsolescence, no practical benefit, no substantial injury, or abandonment, and what evidence would we need?
- If we need to impose an easement over the neighbour’s land, what does the “all reasonable attempts” limb require in this state, and how should I run the negotiation now so it supports an application later?
- What is a realistic range for compensation and for both sides’ legal costs on an application of this type, and at what point does that exceed what the easement is worth to the scheme?
- Are there any unregistered rights on this land, whether by necessity, implication or prescription, and does the answer change because of the title’s history?
- Should the contract of sale be conditional on the easement outcome, and what would that condition look like?
- If we build over the asset under an authority deed, what obligations pass to purchasers or to the owners corporation, and what do we have to disclose?
What to ask your registered surveyor
- Where does the easement physically sit relative to the proposed building envelope and basement box, and does the as-built asset actually sit within it?
- Do the plan and the section 88B instrument, or the Victorian plan notations, disclose anything the title does not?
- What is the practical sterilised width once the authority’s clearance rules are applied, as distinct from the registered width?
- If we are subdividing, what easements will the plan need to create, and can any existing easement be extinguished or relocated as part of the same plan?
- Are there visible lines of use across the boundaries that suggest an unregistered claim?
What to ask your civil engineer and quantity surveyor
- Can the asset realistically be deviated, and what would the authority require by way of design, capacity and access?
- What does the deviation cost, what does it add to the programme, and what has to happen before we can start the basement?
- What does the constrained basement layout actually deliver in car spaces, and what is the marginal cost per space of going deeper instead of wider?
- If we build over or adjacent to the asset, what structural measures are required, and what does that add to the cost plan?
- What contingency is appropriate specifically for the easement works, as distinct from the project contingency?
The short version
An easement is a small line on a title with a large effect on a buildable envelope. The registered width is rarely the sterilised width. The consent you need usually comes from an authority rather than a council. Removal generally requires either every beneficiary’s signature or a court order, and creating a new easement over land you do not own is possible in several jurisdictions but comes with compensation and, as a starting position, your own and the other side’s costs.
The work that pays for itself is done before exchange: order the instruments, survey the assets, ask the authority what it would consent to, price the deviation, and run the feasibility on the constrained footprint as well as the unconstrained one. The difference between those two numbers is the honest measure of what the easement is worth to you, and it is the number that should drive every decision that follows.