Most suburban blocks carry at least one easement, and many owners only notice it when they start planning a subdivision. A sewer main under the back lawn, a drainage line along the side fence or a shared driveway can decide where a new boundary goes, where a second home can sit and how a rear lot is reached.
This guide explains what easements are, the common types, how they affect a subdivision and how to find the ones on your land.
What an easement is
What is an easement? An easement is a right attached to one parcel of land that allows the owner to use another person's land in a set way, or to restrict how it is used. Common examples are rights of way and easements for sewer, water, drainage, power and gas.
Landgate in Western Australia describes the two sides of an easement as the benefited land, which enjoys the right, and the burdened land, which carries it. Some easements benefit a public authority rather than a neighbouring lot. Land Services SA gives examples such as rights of support, rights to a flow of water, sewer and power.
Common types you will see
- Rights of way or carriageway: a right to pass over part of a lot, often a shared driveway. NSW Land Registry Services notes that an easement over a track in use is created as a right of carriageway, right of way or easement for access.
- Sewer and water: a strip of land over a main that the water authority needs to reach and maintain.
- Drainage: a corridor for stormwater pipes or overland flow, often along a rear or side boundary.
- Electricity, gas and telecommunications: corridors for underground cables and pipes.
Not every easement appears on the title. Land Services SA warns that certain statutory easements, such as electricity, sewerage and telecommunication easements, may not be registered or defined on a title.
Why easements matter in a subdivision
An easement does not stop you owning the land underneath it, but it limits what you can do there. That has three practical effects when you split a block.
Building area. A new lot needs room for a home. If an easement crosses the middle of a proposed lot, the usable area can be much smaller than the lot size suggests.
Building over services. Can I build over an easement? Sometimes, but only with the right approval. In Victoria, building over an easement vested in a service authority needs that authority's report and consent under regulation 130 of the Building Regulations 2018. In Queensland, building work over or near relevant water, sewer or stormwater infrastructure is assessed against Queensland Development Code MP 1.4.
Hobsons Bay City Council lists the service authorities that may need to consent in Victoria as the council for drainage and the electricity, gas, sewerage and water authorities.
Access for a rear lot. A battle-axe or rear lot needs legal access to the street. Where the driveway is shared rather than owned by the rear lot, that access is commonly secured with a right of carriageway easement.
How new easements are created
A subdivision often needs new easements, for example so a rear lot can connect to the sewer through the front lot or share a driveway.
How are new easements created when land is subdivided? Usually on, or alongside, the plan that creates the new lots. In NSW, easements are created by a section 88B instrument lodged with the plan. In Western Australia, easements can be noted on a deposited plan, for example a right of carriageway under section 136C of the Transfer of Land Act 1893. In Victoria, a plan of subdivision may create easements.
A few more details from the land titles offices:
- NSW: a section 88B instrument forms part of the deposited plan. It can create easements, restrictions on the use of land and positive covenants. New easements should be identified on the face of the plan.
- Western Australia: a deposited plan can also contain an easement created under section 167 of the Planning and Development Act 2005. Where an easement's position must be defined, a licensed surveyor prepares the plan.
- Victoria: plans of subdivision are lodged with Land Services Victoria and can only be prepared by a licensed surveyor.
Removing or moving an easement
Sometimes an old easement no longer serves any purpose, or it sits exactly where a new home would go.
Can an easement be removed? In some cases. In NSW an easement can be extinguished by a registered dealing or as part of a later plan of subdivision. In Victoria a plan may remove or vary existing easements with a planning permit. In South Australia an easement can be removed if both parties agree and the documents are lodged with the Lands Titles Office.
Where the parties cannot agree and the easement is no longer used, Land Services SA notes that court action may be needed. Landgate notes that an easement created for a fixed term stops having effect when the term ends. An easement that protects a working sewer, drain or cable belongs to a service authority, so any change to it involves that authority.
How to find the easements on your land
- Check the title and plan. Hobsons Bay City Council advises getting a current plan of subdivision from the Land Titles Office in Victoria to see whether a lot has easements. In SA, an easement may appear on the diagram attached to the title or on a lodged plan.
- Ask the service providers. Because some statutory easements are not on the title, the water, electricity and gas providers are worth asking about mains on or near the block.
- Use a surveyor. Land Services SA notes that a surveyor can locate easements on the ground. A licensed surveyor will also show existing easements on the plans for a subdivision.
Before you plan the layout
It is far easier to design new lots around an easement than to move one later. Knowing where the sewer, drainage and access easements run gives your surveyor and town planner a realistic starting point.
If you would like a first look at the lot geometry and constraints for your address, you can check your block with Subdivision Checker.
This guide is general information only. For advice on your property, speak with a licensed surveyor or town planner in your state.