Easements represent one of the most significant yet frequently misunderstood constraints in Australian property development. A seemingly minor drainage easement might cost you 20% of your buildable area, while a major utility easement could render an entire project unviable. Understanding how easements work—and more importantly, how to work around them—may prove essential for protecting your development feasibility.
This comprehensive guide examines easements from a property development perspective, exploring what they are, how they vary across Australian states, what they typically cost, and how to navigate them strategically.
What Are Easements and Why Do They Matter?
An easement is generally understood as a legal right allowing one party to use another person’s land for a specific purpose. In Australian property law, easements typically create a relationship between what’s known as the “dominant land” (which benefits from the right) and the “servient land” (which bears the obligation).
What makes easements particularly significant for property developers is their permanence—they usually remain registered on title regardless of ownership changes and may bind all future owners unless formally modified or removed through legal processes.
Why Developers Should Care About Easements
Easements can fundamentally affect your development in several ways:
- Site coverage reductions: A 200-square-metre easement on a 1,000-square-metre site might effectively reduce your buildable area by 20% or more
- Design constraints: Easements often dictate where buildings can and cannot be positioned, potentially forcing less-efficient layouts
- Cost implications: Building around easements might add $20,000-$100,000+ in foundation modifications, while relocating services could cost $50,000-$500,000+
- Timeline delays: Authority approvals for building over easements may take 2-8 weeks, while easement modifications could require 6-24 months
- Reduced land value: Properties with significant easements typically sell at 5-20% discounts compared to unencumbered land
Understanding easements early in your acquisition and planning process could mean the difference between a profitable development and a marginal one.
Types of Easements Affecting Development
Different easement types impose different restrictions on development. Here’s what property developers typically encounter:
Drainage Easements
Drainage easements are among the most common constraints in development contexts, typically ranging from 3-6 metres in width. These easements generally allow stormwater infrastructure and overland flow paths across the property.
Common restrictions may include:
- Prohibition of permanent structures, pools, and significant landscaping
- Requirements to maintain unobstructed water flow
- Limitations on excavation or level changes
- Access requirements for maintenance
Drainage easements might distinguish between piped drainage systems and overland flow paths, with different requirements for each scenario.
Utility Easements
Utility easements serve essential infrastructure including water, sewer, electricity, gas, and telecommunications. Widths can vary considerably—from 3 metres for smaller reticulation sewers up to 60 metres for major transmission lines.
Water and sewer easements may typically allow limited building with authority approval, subject to:
- Minimum clearance requirements (often 600mm-1,000mm horizontal)
- Depth-based restrictions
- Foundation protection measures
- Maintenance access preservation
Electricity easements tend to impose stricter restrictions. For example, Ausgrid reportedly requires 4.5 metres of continuous unobstructed access along the entire easement length, with prohibitions on houses, outbuildings, storage sheds, swimming pools, and overhanging structures.
Access Easements
Access easements create rights of way or carriageway rights, which may be essential for properties requiring passage across neighbouring land. These typically range from 3-4 metres for pedestrian access to 8-11 metres for vehicle driveways.
Maintenance obligations for shared access easements might traditionally fall on the benefiting party under common law principles, though recent legislative reforms in some states have introduced provisions allowing maintenance terms to bind successor owners.
Party Wall Easements
Party wall easements may be automatically created in townhouse and terrace developments where boundaries pass through shared walls. These typically create reciprocal support rights and shared maintenance responsibilities.
In NSW, for instance, Section 88BB of the Conveyancing Act might automatically create these cross-easements when boundary plans show “party wall” or “proposed party wall” notations.
Conservation and Heritage Easements
Conservation easements may protect environmentally or historically significant properties, potentially restricting alterations, subdivision, or development rights entirely. These could impose the most severe constraints, sometimes preventing development altogether.
Registered vs Unregistered Easements
A critical distinction exists between registered easements (shown on title) and unregistered statutory easements. Some utility easements, particularly for electricity, telecommunications, and water infrastructure, might possess full legal force even when not appearing on title documents.
This is where services like Dial Before You Dig Australia become essential—they may identify statutory easements that wouldn’t necessarily show up in standard title searches.
State-by-State Legal Frameworks
Easement law varies considerably across Australian jurisdictions. Understanding your state’s specific framework could prove crucial for strategic planning.
New South Wales
NSW operates primarily under the Conveyancing Act 1919 and Real Property Act 1900. The state offers what’s generally considered the most established court powers for easement creation and modification.
Key provisions may include:
- Section 88K: Might empower the Supreme Court to create easements where reasonably necessary for effective land use, provided the owner can be adequately compensated and the use isn’t inconsistent with public interest
- Section 89: May allow courts to modify or extinguish easements based on non-use, abandonment, or changed circumstances
- Section 88BA: Could allow maintenance obligations in easements to bind successors in title
Recent case law, such as Alramon Pty Ltd v City of Ryde Council (2022), has clarified that courts typically require easements to be necessary for the land itself, not merely for a specific building design. This might mean developers need to explore all alternatives before courts would consider imposing easements on neighbouring properties.
Registration is typically managed through NSW Land Registry Services, with fees that may range from around $175-$350 for standard easement registrations (2025/26 rates).
Victoria
Victoria’s framework under the Transfer of Land Act 1958 and Subdivision Act 1988 offers what might be a unique advantage for developers.
Unlike NSW and Queensland, Victoria may lack direct judicial power to modify easements comparable to Section 88K. However, Section 23 of the Subdivision Act combined with planning provisions could potentially allow easement removal or variation through the planning permit process without necessarily requiring beneficiary consent or compensation—a significant potential cost saving.
Building over easements in Victoria might require the most complex approval regime, potentially involving:
- Section 173 Agreements between councils and landowners
- Water Act 1989 Section 148 approvals for works within 5 metres of water authority assets
- Multiple authority consultations
Land Use Victoria manages registration through the LANDATA system, with fee-unit-based charges adjusted annually.
Queensland
Queensland’s Land Title Act 1994 governs registration, but the most significant recent change came with the Property Law Act 2023, which became effective from August 1, 2025.
The critical reform: Positive covenants in easements may now bind successors in title. Previously, maintenance obligations might not transfer to future owners; from August 2025, these obligations could automatically bind successors unless expressly stated as personal to original parties.
This fundamentally changes potential developer liability for ongoing easement maintenance in Queensland.
Section 180 of the new Act might codify court power to impose statutory rights of use (easements) where reasonably necessary, similar to NSW’s Section 88K. Section 182 reportedly abolished prescriptive easements entirely, potentially eliminating the risk of adverse claims based on long-term use.
Titles Queensland operates comprehensive online systems, with standard registration fees that may include around $238 for instrument lodgement and $476 base fee plus $35 per lot for survey plans (FY2025/26).
Western Australia
WA’s Transfer of Land Act 1893 and Land Administration Act 1997 create a dual system for freehold and Crown land.
A major 2023 reform introduced the significant change that easements in gross may now be transferable—previously a limitation for mining and industrial operations. This could enable transfer of easements with infrastructure like pipelines, potentially facilitating large-scale industrial development.
WA has a unique requirement that height limitations in easements must typically be expressed in metres above Australian Height Datum (AHD).
Landgate manages registration, with the state having transitioned to fully digital land titles (no duplicate certificates) since August 2023.
South Australia
South Australia operates under the Real Property Act 1886—Australia’s oldest property act still in operation. Schedule 5 may define “free and unrestricted right of way” while Schedule 6 might provide short forms of easements.
Land Services SA administers registration through the SAILIS online system. An important limitation: electricity, sewerage, water, and telecommunications utilities might not necessarily be listed on certificates of title, potentially requiring separate utility searches.
Tasmania
Tasmania’s Land Titles Act 1980 and Conveyancing and Law of Property Act 1884 create a dual-Act system.
Notably, the Building Act 2016 Section 74 might impose what’s considered one of the nation’s strictest building prohibitions—written consent from easement holders could be mandatory before performing building work over or within service easements.
The Recorder of Titles (Department of Natural Resources and Environment Tasmania) manages registration, with paper lodgment still required for many dealings.
Northern Territory
The NT’s Land Title Act 2000 and Law of Property Act 2000 may represent the most recent and simplified legislative framework.
Division 10.3 might govern easements, with Sections 103E (extinguishment) and 103F (variation) potentially requiring agreement of all parties or court order if disputed.
Critically, approximately 50% of NT land may remain Aboriginal land under the Aboriginal Land Rights Act 1976, which could require consideration for Crown land developments.
Australian Capital Territory
The ACT’s unique feature is that nearly all land might be Crown leasehold rather than freehold (except Jervis Bay). The Land Titles Act 1925 governs easements, with the territory having become fully paperless following 2020 electronic conveyancing amendments—potentially Australia’s most technologically advanced registry.
Title Watch subscription service (reportedly around $30 per title annually) may provide fraud prevention monitoring, with Access Canberra’s ACTLIS system offering electronic lodgment and immediate online registration.
Building Restrictions and Design Constraints
Understanding what you can and cannot build over or near easements could prove essential for feasibility planning. Restrictions typically vary by easement type, infrastructure depth, and authority requirements.
Sewer Easements
For reticulation pipes (generally ≤300mm diameter), authorities might typically allow:
- Lightweight structures up to 25 square metres
- Residential dwellings with specific foundation requirements
- Pavements, driveways, and fences with appropriate clearances
- Swimming pools under strict conditions
Depth-based requirements commonly include:
- Pipes less than 0.45 metres deep: May require specialist assessment
- Pipes 0.45-2.5 metres deep: Could require concrete encasement extending 1 metre beyond building lines
- Pipes deeper than 2.5 metres: Might require pre-construction CCTV inspection with possible internal lining
Electricity Easements
Electricity easements tend to impose the strictest building restrictions. Ausgrid, for example, reportedly requires 4.5 metres of continuous unobstructed access along the full easement length.
Activities that might typically be prohibited include:
- Houses, outbuildings, and storage sheds
- Swimming pools and spas
- Overhanging structures up to 6 metres above the easement
- Flammable materials and explosives
- Concrete slabs and permanent paving
Generally permitted uses might include:
- Lawns and minor plantings
- Removable play equipment (trampolines, swing sets) at safe distances
Height Restrictions and Setbacks
For sewers, structures might need to maintain:
- Minimum 600mm horizontal clearance from pipes (or concrete encasement required)
- Vertical clearances varying by depth
- Consideration of the “zone of influence”—typically a 45-degree angle from pipe bottom to surface
For deeper infrastructure (over 1.5 metres), this zone could extend laterally, potentially requiring either pier/pile foundations below the zone or building relocation.
Development Density Impacts
Most planning schemes might treat easement land as unbuildable when calculating maximum site coverage, Floor Space Ratio (FSR), and building envelopes.
Example scenario: A 200-square-metre easement on a 1,000-square-metre site with 50% maximum site coverage could effectively reduce buildable area from 500 to 400 square metres—a potential 20% yield reduction.
Multiple overlapping easements might exponentially reduce development potential, potentially creating unusable fragments when easements bisect sites.
Financial Impacts on Development Feasibility
Easements can fundamentally affect project economics through multiple pathways.
Land Acquisition Pricing
Properties with easements typically sell at discounts compared to unencumbered land:
- Minor service easements: 2-5% reduction
- Moderate easements: 5-10% reduction
- Major transmission lines: 15-30% reduction
A property worth $1 million unencumbered might sell for $850,000-$900,000 with a 6-metre easement crossing 30% of the site—this $100,000-$150,000 discount could potentially offset compliance costs or represent lost opportunity if easement constraints reduce development yield.
Construction Cost Premiums
Working around easements might add:
- Redesign fees: $5,000-$20,000
- Foundation modifications: 20-60% premium on base costs (standard $30,000 slabs potentially becoming $45,000-$60,000 for pier/beam or suspended systems)
- Site works increases: $5,000-$15,000 for additional excavation care near services
- Multi-storey construction: 15-25% cost increase compared to single-storey alternatives
- Retaining walls: $300-$800 per linear metre
Authority Approval Costs
Building over easements might involve:
Application fees (varying by state and utility):
- Sydney Water: Potentially $220-$385 residential, $440-$770 commercial (2025/26)
- Melbourne Water: Could be $500-$2,000 depending on complexity
- Victorian councils: Might charge $325-$330 non-refundable application fees
Section 173 Agreements (Victoria) could add:
- Solicitor fees: $2,000-$5,000
- Council legal review: $1,500-$3,000
- Lodgment fees: $500-$1,000
- Total: $4,000-$10,000+
Engineering reports and certifications:
- Sewer assessments: $2,500-$5,000
- Stormwater: $1,500-$3,500
- Complex multi-utility scenarios: $5,000-$15,000
Timeline Delays and Holding Costs
Delays create substantial carrying costs:
- Building over easement approvals: 2-8 weeks
- Easement acquisition negotiations: 2-6 months
- Court applications: 6-24 months
- Construction extensions: 5-15% of project duration
Example: A 12-month project becoming 13.8 months (6% increase) with 6% interest on a $5 million acquisition loan could cost an additional $37,500 in holding costs. Three-month approval delays might cost $75,000, while 6-month court disputes could exceed $150,000 in interest alone, excluding legal fees.
Scenario Modelling Example
Let’s compare potential outcomes for a 1,000-square-metre site with a 200-square-metre sewer easement:
Option A: Build Around Easement
- Yield: 4 townhouses
- Revenue: $2 million
- Construction: Standard 18 months
- NPV: $450,000
Option B: Build Over with Piles
- Yield: 6 townhouses
- Revenue: $3 million
- Additional costs: $150,000 construction, $30,000 approvals
- Timeline: 22 months (4 months extra)
- NPV: $580,000 (optimal)
Option C: Relocate Sewer
- Yield: 6 townhouses
- Revenue: $3 million
- Costs: $120,000 relocation
- Timeline: 26 months (8 months extra)
- NPV: $490,000
This analysis might suggest that building over with piles could provide the best returns despite additional costs, while relocation may rarely prove optimal.
Due Diligence and Risk Identification
Comprehensive easement due diligence typically requires multiple information sources, as title searches alone might prove insufficient.
Title Searches
Title searches through state-specific platforms might cost $20-$50 with instant to 24-hour turnaround:
- LANDATA (Victoria)
- NSW Land Registry Services
- Titles Queensland
- SAILIS (South Australia)
- Landgate (Western Australia)
- LIST (Tasmania)
- ACTLIS (ACT)
Review items typically include:
- Certificate of Title showing registered easements, covenants, mortgages, and caveats
- Plan of Subdivision showing physical locations and dimensions
- Historical searches identifying past issues
- Caveat records revealing potential unregistered interests
Vendor Disclosure Statements
Requirements vary critically by state:
Victoria: Section 32 Vendor Statement might be mandatory before signing, containing title searches, planning certificates, water authority certificates, building permits, zoning, and all easements. Validity could be 3 months, with defects potentially allowing rescission.
NSW: May require Schedule 1 Prescribed Documents including title documents, drainage diagrams, and Section 10.7 Planning Certificates.
Queensland: Reportedly has NO mandatory vendor disclosure—caveat emptor might apply with buyers conducting their own due diligence.
South Australia: Could require Form One Disclosure Statements similar to Victoria.
Western Australia & ACT: Might require seller’s disclosure statements.
Northern Territory & Tasmania: May have NO mandatory vendor statements.
Dial Before You Dig
Dial Before You Dig Australia (www.byda.com.au or 1100) might provide free infrastructure searches identifying unregistered statutory easements for electricity, telecommunications, water, sewer, gas, and NBN.
Lodging enquiries 2 business days before work could generate plans from utilities showing underground and overhead infrastructure locations. This may prove critical as statutory easements could exist with full legal force even when absent from title.
Important note: Plans are typically indicative only—hand tools might need to physically expose services through “potholing” for accurate locations.
Council Planning Certificates
Planning certificates might disclose planning zones and overlays but typically NOT individual easements or utility infrastructure.
In NSW, Section 10.7(2) Certificates might show zoning, permitted uses, controls, and hazards, while Section 10.7(5) Certificates could add council-held information. Validity may run 6 months generally.
These certificates might show flooding and drainage overlays but may not be required to disclose specific sewers, water mains, or unregistered utility easements—separate utility searches could remain essential.
Survey Requirements
Professional surveys might include:
- Cadastral plans showing precise boundaries and dimensions
- Identification surveys verifying boundaries
- Feature/site surveys showing existing features and services
- Plans of easement for creating new easements
Costs could range from:
- Standard boundary surveys: $1,500-$3,000
- Interest Only Deposited Plans (WA): $2,000-$5,000
- Subdivision surveys: $12,000 base plus $600 per additional lot
Physical Inspections
Surface indicators to look for might include:
- Utility pits, manholes, water metre boxes
- Warning signs (“Caution underground services”)
- Utility markers and access tracks
- Concrete pads for transformers and valve chambers
- Different vegetation patterns (grass strips over pipelines)
- Paving changes over service trenches
- Electricity poles and pad-mounted transformers
- Fire hydrants and stormwater grates
- Sewer vent pipes
Red Flags
Factors warranting particular concern might include:
- Multiple overlapping easements exponentially reducing potential
- Easements bisecting buildable areas creating unusable fragments
- Wide easements (>6m) potentially indicating trunk mains with absolute prohibitions
- “Right of way at all times” access that could prevent gated communities
- Unregistered easements found late that might derail approved plans
- Easements near boundaries combined with setbacks potentially eliminating development area
- Deep infrastructure (>3m) creating wider zone of influence
- Heritage or environmental overlays combining restrictions
- Flood-prone easements creating combined constraints
- Vague descriptions like “general purposes” or unclear beneficiaries
Costs, Fees and Compensation
Understanding the full cost picture could be essential for feasibility modelling.
Registration Fees (FY2025/26 estimates)
New South Wales:
- Transfer Granting Easement: Around $175
- Transfer including Easement: Approximately $350
- Abandonment cancellation: About $175
Victoria: Fee-unit based (adjusted July 1 annually):
- Standard easement registration: Potentially $200-$400
- Survey plans: Approximately $476 base plus $35 per lot
Queensland:
- Standard instrument lodgment: Around $238
- Survey plans: Approximately $476 base plus $35 per lot
PEXA electronic lodgment might add:
- Standard lodgment: $26-$35 plus statutory fees
- Multi-title instruments: $26 per related title (FY26)
Compensation Amounts
Based on reported court cases and market practice, compensation might range from 2-11% of unencumbered land value:
- Overhead-only lines: 2-5% (lower end)
- Poles and transformers: 5-11% (higher end)
- Per-square-metre rates: $125-$275 depending on location and impact
Real examples from reported cases:
- ABI-K Pty Limited v Frank Shi (2014): Developer offered $40,000, landowner demanded $250,000, court reportedly awarded $21,500 with landowner potentially paying developer’s costs for unreasonableness
- Rainbowforce Pty Limited v Skyton Holdings: Reportedly awarded $72,116 broken into flood zone ($10,500), PMF zone ($25,206), and flood-free zone ($36,410) components
Compensation Formulas
Methods commonly used might include:
Before-and-after valuation: Measuring diminished market value
Per-square-metre methods:
- Drainage: $50-$150
- Access: $50-$800 depending on factors
Percentage-of-value methods:
- Minor impact: 2-5%
- Moderate impact: 5-8%
- Significant impact: 8-11%
Components could include:
- Market value diminution: 70-85% of total
- Associated costs: 5-10%
- Amenity/insecurity factors: 10-20%
Professional Fees
Legal services might cost:
- Standard creation: $2,000-$10,000
- Section 88K court applications: $10,000-$50,000+
- Forced easements: $15,000-$75,000
- Court extinguishment: $25,000-$75,000
Surveyor services could include:
- Boundary surveys: $1,500-$3,000
- Interest Only Deposited Plans: $2,000-$5,000
- Subdivisions: $12,000 base plus $600 per lot
- Sketches: $200-$500
Valuation reports might cost:
- Professional easement valuations: $1,500-$3,500
- Expert witness testimony: $3,000-$10,000+ per day
Modification and Relocation Costs
Variation applications might involve:
- Legal fees for drafting: $3,000-$8,000
- Surveyor fees for amended plans: $2,000-$5,000
- Total (parties agree): $10,000-$25,000
- Court orders (disputed): $20,000-$100,000+ over 6-18 months
Service relocation could prove expensive:
- Sewer pipe relocation: $15,000-$50,000 per 50 metres
- Stormwater: $10,000-$30,000 per 50 metres
- Electricity underground: $50,000-$200,000 depending on voltage
- Water mains: $20,000-$80,000 per 50 metres
This typically makes removal impractical, with building around easements generally preferred.
Authority-Specific Fees
Sydney Water (published schedules):
- Section 73 Compliance Certificates: $66
- Build-over approvals residential: $220-$385
- Build-over approvals commercial: $440-$770
- Work as Constructed plans: $220-$385
Melbourne Water:
- Build near asset applications: $500-$2,000
- Building Agreements legal costs: $3,000-$8,000
Victorian councils (examples):
- City of Casey: $325 non-refundable
- Cardinia Shire: $329 (15 business day processing)
Ausgrid:
- Initial enquiry: Free
- Detailed assessments: $300-$1,500 depending on complexity
Budget Allowances
For development projects, typical allowances might include:
Small residential (1-5 lots):
- Minor compliance: $5,000-$15,000
- Major issues: $25,000-$75,000
- Easement creation: $15,000-$50,000
Medium development (5-20 lots):
- Minor compliance: $15,000-$40,000
- Major issues: $50,000-$150,000
- Multiple modifications: $100,000-$300,000
Large development (20+ lots):
- Comprehensive strategies: $100,000-$500,000
- Major infrastructure easements: $200,000-$1,000,000+
- Court contingency: $50,000-$200,000
Contingencies to consider:
- Minor issues: 5-10%
- Known significant easements: 15-25%
- Timeline allowances: 6 months minimum for complex negotiations
Authority Approval Processes and Timelines
Understanding authority consultation processes could help you plan realistic project timelines.
Water Authority Approvals
Sydney Water: Tap In online system might route applications through:
- Immediate assessment for simple scenarios
- Water Servicing Coordinators (WSC) for 2-4 week review
- Complex “out of scope” matters: 42 days or longer
Requirements might typically include:
- Minimum 1-metre horizontal clearance
- No loading on assets
- Self-supporting structures if assets fail
- Concrete encasement or protective piling
- Maintenance access preservation
- Comprehensive plans and engineering drawings
Processing fees could range from:
- Simple: $200-$500
- WSC review: $1,000-$3,000
- Out of scope: $3,000-$15,000+
- CCTV surveys: $1,500-$5,000
Melbourne Water: Might require approvals under Water Act 1989 Section 148 for works within 5 metres of assets:
- Standard assessments: 4-8 weeks
- Complex matters: 12+ weeks
March 2024 updates from Yarra Valley Water, South East Water, and Greater Western Water reportedly harmonised requirements across Victoria.
Queensland Utilities: Urban Utilities and Unitywater might require Build Over Asset (BOA) approvals:
- Major Works design review: 4-6 weeks
- QDC compliance assessment by certifiers: Faster if applicable
Water Corporation (WA): BuilderNet systems might require:
- Asset Protection Risk Assessments (APRA)
- Standard processing: 2-4 weeks
- Major infrastructure: 6-12 weeks
Electricity Utilities
Ausgrid (Easement Enquiry): Might demand written approval BEFORE work:
- 4.5-metre continuous unobstructed access required
- Swimming pools face near-absolute prohibition
- Fences limited to 2.5 metres maximum depending on requirements
- Processing: 4-6 weeks standard, 8-12 weeks complex
Other distributors: Endeavour Energy, Essential Energy, Powerlink (QLD), Energex, Ergon Energy, Western Power (WA), SA Power Networks, ElectraNet, TasNetworks, AusNet, Jemena, Powercor, United Energy, and CitiPower might follow similar frameworks.
Telecommunications Carriers
Under the Telecommunications Act 1997 (Cth), licensed carriers might install low-impact facilities—underground cabling, small antennae, radio dishes, NBN equipment—without landowner permission, potentially requiring only:
- 10 business days notice (standard)
- 2 days for inspections
- Zero notice for emergencies
NBN Co: TIND Policy might require developers provide fibre-ready facilities with 6 months notice before occupancy.
Telstra: Relocation requests through 1800 810 443 might require developer-paid costs, with processes potentially running weeks to months.
Council Approvals
Planning permits might require:
- Standard: 60-day statutory processing
- Complex: 90-120 days
- VicSmart (VIC): 10 days for eligible applications
Process could typically include:
- Pre-application discussions
- Application preparation
- Lodgment
- Referral to authorities (28-day response)
- Public notice (14 days if required)
- Assessment
- Decision and conditions
Building permits might follow planning approval:
- Standard: 10-20 business days
- Complex: 4-8 weeks
Note: Surveyors may not be able to approve work over easements without authority consent.
Timeline Summary
Typical timelines you might encounter:
- Title searches: Instant-24 hours
- BYDA searches: 2 business days
- Vendor statements: 2-6 weeks to prepare
- Council planning certificates: 5-10 business days
- Water authorities: 2-12 weeks
- Electricity utilities: 4-12 weeks
- Telecommunications: 10 days notice to weeks-months for relocations
- Council planning permits: 60-120 days
- Council building permits: 10-20 days to 4-8 weeks
- Subdivision certification: 4-8 weeks post-works
Recommendation: Allow 25-50% contingency time and budget 3-6 months minimum for easement-constrained sites.
Practical Development Scenarios
Let’s examine common scenarios developers might encounter and potential solutions.
Scenario 1: Building Over Sewer Easements
This might be the most common scenario. Lightweight structures like carports, verandahs, and decks up to 25 square metres over reticulation sewers (≤300mm diameter) could potentially gain approval with depth-dependent requirements.
For pipes 0.45-2.5 metres deep, concrete encasement extending 1 metre beyond building lines might render pipes “maintenance free.”
For pipes deeper than 2.5 metres, pre-construction CCTV inspection with potential internal lining but no encasement could be required.
Foundation options might include:
- Pier/pile construction below zone of influence with non-displacement bored piles maintaining 900mm minimum clearance
- Bridging slabs spanning over pipes with 50mm compressible material designed for future excavation access
Scenario 2: Dealing with Electricity Easements
Electricity easements typically impose the strictest constraints with 4.5-metre continuous access, absolute prohibitions on buildings and pools, and strict clearances.
Options might include:
- Redesigning layout to avoid easement entirely
- Using easement area for driveways, landscaping, or open space
- Multi-storey construction to compensate for reduced footprint
- Value engineering to determine if service relocation proves worthwhile
Relocation possibilities might exist for distribution infrastructure but rarely for transmission lines, with property owners potentially bearing full costs of $50,000-$500,000+.
Scenario 3: Shared Access Easements
For multi-unit developments, shared driveways might require cross-easements (rights of carriageway) shown on deposited plans.
Key considerations:
- Reciprocal rights for all owners
- Maintenance obligations (may fall on benefiting parties)
- Width requirements (8-11 metres for vehicles)
- Keeping access unobstructed
Common disputes might involve parking issues, blocked access, and maintenance responsibilities. Clear easement terms could help prevent future conflicts.
Scenario 4: Drainage Easements and Stormwater
Drainage easements might distinguish between overland flow paths and piped drainage, with different requirements for each.
Building restrictions could generally prohibit:
- Structures, improvements, or landscaping within or near boundaries
- Modifications that impede natural flow
- Excavation or level changes
Solutions might include:
- Integrated landscape design creating rain gardens and bioswales
- Pier/pile foundations below zone of influence
- Using drainage areas for permeable paving or amenity
Scenario 5: Party Walls in Townhouse Developments
Party walls might automatically create cross-easements when boundaries pass through shared walls.
Development requirements could include:
- Council party wall consent (distinct from landowner consent)
- Dilapidation surveys before works
- Structural engineer certification
- All works within property boundaries
- Vertical extensions possible with Form 11R requests
Scenario 6: Easement Relocation
While feasible for reticulation infrastructure, relocation might rarely prove practical for trunk mains or transmission lines.
Success factors typically include:
- Technical feasibility demonstration
- No adverse service delivery impacts
- Equivalent or better asset protection in new locations
- Suitable new alignments
- Addressing maintenance access
- Compliance with codes and standards
Negotiation might emphasise fair compensation and cooperation, with costs potentially ranging from $20,000-$100,000 for water/sewer to $50,000-$500,000+ for electricity.
Strategic Solutions and Best Practices
Pre-Acquisition Phase
Comprehensive due diligence combining multiple searches could provide substantial risk mitigation:
- Title searches ($20-$50)
- Dial Before You Dig searches (free)
- Vendor disclosure documents (state-dependent)
- Council planning certificates ($50-$150)
- Cadastral survey reviews ($1,500-$5,000)
- Physical site inspections
Budget $10,000-$30,000 for thorough investigation—this investment might enable informed acquisition decisions and prevent costly surprises.
Development Application Strategy
Following the reported CKDI v Ku-ring-gai Council (2023) decision, securing easement agreements BEFORE DA lodgment might now be required when easement works form part of applications (particularly in NSW).
Best practices might include:
- Early engagement with water authorities, electricity distributors, and councils during pre-DA stage
- Pre-lodgment meetings to identify constraints early
- Budgeting 6-16 weeks minimum for authority approvals
- Adding 25-50% contingency time
Design Optimisation
Positioning buildings to avoid easement areas entirely where feasible could prove most efficient. Where building over easements proves necessary, consider:
Foundation solutions:
- Pier/pile construction below zone of influence ($20,000-$100,000+ additional)
- Bridging slabs with compressible material
- Concrete encasement for pipes 0.45-2.5m deep
Layout strategies:
- Concentrating development on unencumbered portions
- Using easement areas for driveways and landscaping
- Battle-axe configurations with handles over easements
- Cluster development grouping buildings on developable areas
- Multi-storey construction compensating for reduced footprints
Cost-Benefit Modelling
Before committing to a strategy, model multiple scenarios:
- Building around easements: Reduced yield, standard construction, shorter timeline
- Building over with protection works: Higher yield, increased costs, extended timeline
- Service relocation: Higher yield, relocation costs, significantly extended timeline
Calculate Net Present Value for each scenario, considering:
- Land discount received
- Construction cost increases
- Approval costs and timeline
- Holding costs during delays
- Lost development potential
Negotiation Approaches
For private easements, consider:
- Obtaining professional valuations upfront ($1,500-$5,000)
- Offering reasonable compensation based on before-and-after land values
- Documenting all negotiation attempts thoroughly
- Considering alternative easement routes
- Engaging planning lawyers early ($5,000-$15,000 initial consultations)
- Maintaining flexibility to redesign if negotiations fail
The reported ABI-K v Shi case demonstrates that unreasonable refusal could have consequences—landowners demanding excessive compensation when courts award moderate amounts might potentially face paying developer’s legal costs.
Authority Engagement
Understanding authority priorities could help build productive relationships:
- Asset protection is typically paramount
- 24/7 emergency access requirements
- Minimising customer service disruption
- Risk management and liability concerns
- Long-term maintenance access over 50-100 year horizons
Present win-win solutions such as:
- Improved access arrangements
- Better asset protection than current situations
- Upgraded infrastructure as development components
- Alternative easement locations meeting utility needs
- Buffer zones or enhanced landscaping around infrastructure
Interstate Differences
NSW developers might need to:
- Budget compensation in Section 88K applications
- Budget both parties’ legal costs for contested matters
- Attempt negotiation before court (requirement)
- Consider public interest arguments
- Use Section 89 for redundant easement removal
Victoria developers could potentially:
- Prioritise planning process for easement removal (Section 23, potentially no compensation)
- Engage early for Section 173 Agreements
- Factor $4,000-$10,000+ agreement costs
- Consider VCAT route (Section 36) for subdivision easements
- Note lack of direct court power like NSW/QLD
Queensland developers should understand:
- NEW Property Law Act 2023 (effective August 1, 2025)
- Key change: positive covenants may NOW bind successors
- Review maintenance obligations carefully
- Plan compensation in Section 180 applications
- Utilise comprehensive Land Title Practice Manual
- Benefit from no prescriptive easement risk (Section 182 abolition)
WA developers might leverage:
- 2023 reforms enabling transferable easements in gross
- Dual TLA/LAA systems for freehold versus Crown land
- Fully digital Landgate system since August 2023
Contingency Planning
Include in your project budgets:
- 10-20% buffer for easement-related issues
- Alternative development layouts prepared
- Section 88K application budgets ($50,000-$150,000) for landlocked sites
- Service relocation feasibility assessments ($50,000-$500,000+)
- Extended timeline allowances: 3-6 months minimum
Properties with known significant easements might warrant 15-25% contingencies.
Key Takeaways for Property Developers
Easements represent one of the most significant constraints in Australian property development, but with proper understanding and strategic planning, they can typically be navigated successfully.
Essential principles to remember:
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Early identification is critical: The $10,000-$30,000 investment in comprehensive upfront investigation might prevent delays, cost overruns, or project failure
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Title searches alone prove insufficient: Combine title searches with Dial Before You Dig, vendor statements, surveys, and physical inspections
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State frameworks vary significantly: Victoria’s planning-based removal without compensation could differ substantially from NSW’s court-based system requiring compensation
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Building over is often possible: With proper approvals, foundation design, and authority coordination, many easements might accommodate development
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Cost-benefit analysis is essential: Model multiple scenarios (build around, build over, relocate) before committing to strategies
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Timeline planning requires buffers: Authority approvals might take 2-12 weeks, negotiations 2-6 months, and court processes 6-24 months
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Professional advice pays dividends: Legal, surveying, and engineering professionals could help navigate complex requirements
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Recent legal changes matter: The 2023 CKDI decision, Queensland’s 2025 Property Law Act reforms, and state-specific updates could significantly affect development strategies
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Feasibility modelling must account for easements: Land discounts, construction premiums, approval costs, and timeline delays all impact Net Present Value
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Strategic solutions exist: From pier/pile foundations to planning-based removals to integrated landscape design, multiple pathways might overcome easement constraints
Using Feasly for Easement-Impacted Development
When easements affect your development, accurately modelling their financial impact becomes essential. Feasly could help you:
- Model reduced site coverage and development density
- Account for additional construction costs (piling, encasement, bridging)
- Factor approval costs and timeline delays into holding costs
- Compare multiple scenarios (build around vs. build over vs. relocate)
Whether you’re evaluating an acquisition with easement constraints or optimising an existing project design, comprehensive feasibility modelling might prove essential for protecting your returns.
Further Resources: