Easements in Residential Construction: What Builders Need to Check

What it is

An easement is a right that one parcel of land has over another. The land that has the benefit is the dominant tenement. The land that carries the burden is the servient tenement. The easement runs with the title and binds the current owner whether or not the owner created it. For a residential builder, easements show up on the title search, on the deposited plan and on the section 10.7 planning certificate in NSW or equivalent property certificates in other states. Missing an easement at design stage is one of the most expensive errors in a residential job.

How easements arise

The two main categories are express and implied. An express easement is created by a written instrument registered on title under the Real Property Act in the relevant state. An implied easement arises by operation of law on strict statutory or common law tests, for example an easement of necessity or one imposed under section 88K of the Conveyancing Act 1919 (NSW). Most easements affecting suburban titles are express, granted at the time of the original subdivision. The deposited plan marks the easement in metres and bearings, with a separate instrument setting out the terms.

Common types in residential subdivisions

Sewer easements

The sewer easement is the most common. It protects the public sewer main running across a property. In NSW the main authority is Sydney Water. Hunter Water and other regional utilities hold equivalent rights elsewhere. A sewer easement is usually 1.5 to 3 metres wide depending on the depth of the main. The zone of influence extends at a 45-degree angle from the pipe invert outward. Foundations must sit outside that zone or be designed to transfer load away from the main.

Drainage easements

A drainage easement carries stormwater from an upstream lot through the servient land to a council drain or watercourse. The instrument usually requires the burdened owner to keep the easement clear of obstructions. Drainage easements typically run along rear boundaries in older subdivisions and through side setbacks in newer ones.

Right of carriageway

A right of carriageway gives one or more parcels a vehicular right over part of another title. Common on battle-axe blocks and shared driveways. The instrument sets the width, maximum height and any restrictions on parking, gates or surface finish.

Service easements

Electricity, gas and telecommunications easements appear on titles where infrastructure crosses private land. Terms usually allow above and below ground works and restrict planting and structures within the corridor.

Building over a sewer or drainage easement

The default rule is that a structure cannot sit over the easement without the consent of the authority that holds the benefit. In NSW the Sydney Water Building Over or Adjacent to Assets Policy sets the case-by-case approval pathway through a Water Servicing Coordinator. The water authority will require an asset condition report, a structural design that transfers load away from the asset, a maintenance access plan and often an indemnity from the owner.

Approval is not guaranteed. A 600 mm trunk main sitting 3 m deep with no spare capacity may attract a refusal. A 150 mm branch main 1 m deep with good access may attract approval subject to standard conditions. The risk to budget and program is high if the question is asked late.

How to find easements

Order a current title search from the relevant land registry. Read the second schedule for encumbrances and the deposited plan for the geometry. Order the easement instruments referenced in the second schedule. The instrument is the source of truth on width, depth, conditions and benefited party. Cross-check with the section 10.7 or equivalent certificate from council, the contour and detail survey and the water authority service location print.

Extinguishing or varying an easement

An easement can be released by the owner of the dominant tenement signing an instrument of release. A court can extinguish or modify an easement under section 89 of the Conveyancing Act 1919 (NSW) where the easement is obsolete, where its continued existence impedes reasonable user of the burdened land without benefit to the dominant owner or where the dominant owners agree. Practical experience says release is the cleaner route. Section 89 applications are slow and contested.

Costs to plan for

A sewer easement approval through Sydney Water or equivalent runs into the thousands of dollars in fees and consultant time. A pier and beam footing designed to transfer load around a sewer adds materially to the slab cost. A revised design after the authority refuses initial plans can blow program by months. Read the title at feasibility stage and design around the easement before drawings are progressed.