Michael Mammen – Partner, HWL Ebsworth Lawyers
Easements- Overview
What is an easement?
• An easement is a right to make use of someone's land without
occupying it.
• These rights are vested in the land rather than individuals, meaning
they can be enforced against subsequent owners and occupiers.
The rights and obligations parties attract from an easement
will depend on
• what type of easement is created, and
• how the easement is created.
Types of Easements
• There are three types of easements that operate in
Private Easements
Regulatory Easements
Common Law Prescriptive Easements
• Most easements in Victoria today are either private or
regulatory easements. Prescriptive easements are now
exceptionally rare due to the introduction of planning
legislation covering the creation of subdivisional
Private Easements
• There are two parties affected by a private easement.
• Dominant owner: the dominant owner has title to the dominant
• Servient owner: the servient owner is the owner to the servient
• The dominant owner has the right to enjoy the servient
land in the way specified in the easement.
• The servient owner has the obligation to accommodate
the dominant owner’s right to enjoy their land.
Creation of Private Easements
• A private easement will always be the result of an
agreement between a dominant and servient owner.
• Consequently, the parties creating a private easement will
determine the content of rights and obligations they and
all subsequent owners will have with respect to the
• Parties can determine these rights in two ways:
The servient owner may grant the dominant owner an easement
over their land
A vendor may reserve an easement over the land when
conveying it to a purchaser for the benefit of other adjacent land
the vendor owns.
Statutory Easements
• Planning legislation serves two key functions with respect
to easements.
• Legislation regulates the creation of easements through
• Legislation protects unregistered easements.
• Rights and obligations associated with these aspects of
easement law were traditionally protected under a
complex and unsystematic part of the common law.
• It is now exceptionally rare for parties to rely on the
common law to assert their rights with respect to
Express subdivisional easements
• Today, most easements needed for access to land and the
provision of services are created by plan of subdivision or by
an instrument of transfer on sale.
• This method of creating these easements is governed by
section 12(1) of the Subdivision Act 1988 (Vic) (Subdivision
Act) and s 98(a) of the Transfer of Land Act 1958 (Vic)
(Transfer of Land Act).
• Parties involved in the creation of easements in this category
• Developer: the person wishing to subdivide the land.
• Responsible authority: The "responsible authority" is usually the
local council
• Referral authority: "Referral authorities" are specified in clause 66 in
each planning scheme. They are usually public authorities, such as a
water authority, or a government department.
Rights and Obligations of the parties with
respect to subdivisional easements
Stage 1: Permit application
• Developer: The developer must ordinarily first apply to a responsible
authority for a permit to subdivide the land (Subdivision Act s 5(4) and
Planning and Environment Act (Vic) (PEA) s 61(1) (PEA))
• Responsible authority: Section 8 of the Subdivision Act requires the
responsible authority to provide all relevant referral authorities with a
copy of any permit application. In accordance with s 62 of the PEA the
responsible authority has the right to amend any draft plans
accompanying a permit application to include easements.
• Referral authority: Referral authorities also have the right to create
easements under s 62 of the PEA.
Stage 2: Certification
• "Responsible authority”: the council will certify the plan after
checking that it includes the easements required by either itself of the
referral authorities under s 6 of the Subdivision Act.
• When the certified plan is registered by the Registrar, the easements
shown in the plan are created by the operation of s 24(2)(d) of the
Subdivision Act.
Easements by Compulsory Acquisition
• Under section 36 of the Subdivision Act an owner of land
may acquire an easement compulsorily over other land in
the subdivision or consolidation.
• An applicant can compulsorily acquire an easement by
• the relevant council issuing a permit in accordance with clause
52.02 of the relevant planning scheme; or
• The relevant council issuing a written statement conveying the view
that 'the economical and efficient access to land requires the owner
of land to acquire an easement over other land' and 'that the
acquisition of the easement will not result in an unreasonable loss
of amenity in the area affected by the acquisition’, and
• VCAT granting leave to hear the application.
Statutory Protection of Unregistered
Easements Implied by the Property Law
Act 1958 (Vic)
• Section 62 of the Property Law Act 1958 (Vic) (Property Law Act) can
be used by dominant owners to enforce unregistered easements by
• The Property Law Act deems conveyances of land to include 'all…
privileges, easements, rights and advantages whatsoever,
appertaining or reputed to appertain to the land, or any part thereof.'
• The effect of section 62 of the Property Law Act therefore is that any
easements or covenants or other interests attached to the land pass
with it, regardless of whether they are specified in the instrument of
Implied Subdivisional Easements
• Section 24(2)(e) of the Subdivision Act provides that, on registration
of the plan, 'any easements or rights implied by section 12(2) are
• Section 12(2) of the Subdivision Act provides that there are implied
into certain plans of subdivision, for the benefit of each lot and any
common property, 'all easements and rights necessary to provide'
the following:
• support, shelter or protection;
• passage or provision of water, sewerage, drainage, gas, electricity,
garbage, air or any other service of whatever nature (including
telephone, radio, television and data transmission);
• rights of way;
• full, free and uninterrupted access to and use of light for windows, doors
or other openings, and
• maintenance of overhanging eaves.
Implied Subdivisional Easements
• Easements will be implied into a plan of subdivision to
protect the rights enumerated in section 12(2) if they are
• necessary for the reasonable use and enjoyment of the lot or the
common property, and
• consistent with the reasonable use and enjoyment of the other lots
and the common property.
Natural Rights attached to Land
• The law also recognises natural rights attaching to land
which are not easements. These rights are
• a right to support for land in its natural state, and
• A right to the flow of water.
• Rights that are incidental to land ownership and
automatically arise in the bundle of rights attaching to a
freehold estate. They do not need to be acquired in any
way and are protected by the law of nuisance.
Statutory rights resembling easements.
• Rights afforded to land owners under other legislation
such as the Fences Act 1968 (Vic) (Fences Act) ensure
the efficient and effective use of the land by creating
reciprocal rights between landowners over neighbouring
• For example:
• Section 32 of the Fences Act enables a person engaged in
constructing or repairing a fence to enter adjoining land to carry out
work. This obviates the need for an easement allowing this kind of
• Section 14 of the Fences Act requires that owners of neighbouring
land share the expenses of repairing fences between their
properties in most circumstances.

4. Legal Responsibilities Relating to Easements