Information about Easements

---

 

What is an easement?

An easement is a legal right (encumbrance) over the title of the parcel of land which allows the use and/or control of your land by a third party for the provision of utilities such as sewerage or power, or for one entity gain access across the land to another parcel.  An easement over the land is a registered title with the Titles Office of the Department of Natural Resources.  Copies of easement documents are available to be viewed or purchased from Department of Natural Resources by phoning 4938 4600.

What does an easement document look like?

An easement consists of the Easement  document (Form 9) and the “terms” of the easement.  The easement document sets out the “Grantor”, the description of the parcel of land encumbered, the “Grantee”, and the “purpose” of the easement amongst other items. Easements are generally be “in favour” of an adjoining piece of land or a utility provider.  This is the “Grantee” on Form 9.

Blank easement Forms 9 and 20 can be downloaded from the Department of Natural Resources, Mines & Water website.

The link to the guide to land registry forms can also be useful to explain the terms on the easement documents.

What can or can’t I do in the easement on my property?

The “terms of the easement” describe what you can or can not do in an easement. To be certain of the terms of the easement, you are strongly advised to get a copy of the easement documents from the Department of Natural Resources.

Some easement documents refer to a standard terms document in Item 8 (grant/Execution) of the document.  More recently Council has used a standard terms document (52.10KB pdf).

Generally Council easements contain pipes and pits which need to be protected from the loadings from buildings and earthworks, while stormwater easements may also contain pipes and overflow channels.   Pipes and services located in the easement may fail and as such the easement allows Council workmen and machinery to come in to the property and dig up the pipe and fix it or inspect it. Overflow channels operate when the stormwater pipes are full and should not be filled.  Any improvements in the easement should not damage underground pipes, bury surface access points or block surface water.  Improvements that do this may be removed by Council (or the Grantee) at the expense of the owner.  Powers for Council to operate and maintain its infrastructure in the land are further reinforced by provisions of the Water Act and the Local Government Act.

How does an easement effect where I can build on my property?

Unless specified otherwise in the terms of the easement, generally you can build right up the boundary of the easement, but not over the easement.  Any structures that are constructed adjacent to a easement containing a utility pipe must have their footings constructed down below the zone of influence of the pipe(s) so that the pipes may be dug up without the structure falling into the trench.

What legislation controls the use of easements?

Section 81 of the Land Title Act and its regulations outline the legislative basis for easements to exist.  Refer to their website to find a copy of the legislation.