Easements on Victorian Property Explained: Rights, Restrictions and Disputes

What an Easement Is

An easement is a proprietary right held by the owner of one parcel of land — the dominant tenement — to use, or restrict use of, another parcel of land — the servient tenement — for a defined purpose. It is not a personal licence; it is an interest in land. It runs with the land, binds successive owners, and is enforceable through the courts.

Easements share a small number of defining features. There must be a dominant and servient tenement (with the limited exception of easements in gross held by authorities). The easement must accommodate the dominant tenement — that is, it must be of practical benefit to the land, not just to the owner personally. The dominant and servient owners must be different people. And the right must be capable of being the subject-matter of a grant — sufficiently certain, not too wide, and not amounting to occupation of the servient land.

Common Easements in Victoria

Most Victorian residential and commercial titles are affected, in one way or another, by one or more of the following easements:

• Drainage easements — typically in favour of the local council or a water authority, allowing stormwater pipes to traverse private land. Drainage easements are the most common source of build-over disputes in modern infill development.
• Sewerage easements — in favour of the relevant water authority (Yarra Valley Water, South East Water, Greater Western Water and other regional bodies), protecting sewer mains running through private land.
• Carriageway and right-of-way easements — giving a neighbour vehicular or pedestrian access to their property, typically along a rear laneway or a shared driveway between adjoining lots.
• Utility easements — for the supply of electricity, gas, water or telecommunications, usually in favour of the relevant statutory authority or licensed network operator.
• Party-wall and support easements — common in older inner-Melbourne terraces and in townhouse developments, governing the shared wall between adjoining dwellings.
• Light and air easements — less common, but occasionally encountered in tightly built inner-suburban contexts.

How Easements Are Created

Easements come into existence in a number of ways. The most common in modern Victorian practice are creation by plan of subdivision under the Subdivision Act 1988 (Vic) — where the developer lays out drainage, sewerage, access and utility easements across the new lots — and creation by express grant in a transfer of land or a deed.

Easements may also arise by implication (most importantly the easement of necessity, where land would otherwise be landlocked), by long use (a prescriptive easement, typically requiring 20 years of continuous, open and unopposed use) and by statute (councils and water authorities have statutory powers to create easements over private land in defined circumstances, usually subject to compensation).

Easements Shown on Title Plans

Registered easements appear on the folio of the Register and are depicted on the registered plan of subdivision. The plan will usually identify the easement by reference to a letter or designation (for example, "E-1 — drainage — in favour of Council") with its width, length and alignment shown on the diagram. The associated dealing number, where applicable, allows the precise terms of the grant to be retrieved from Land Use Victoria.

Reading a plan of subdivision is a skill in its own right. What looks like a narrow line at the rear of a lot may, in fact, be a three-metre-wide drainage easement that consumes a significant portion of the buildable area. Where development is contemplated, the plan should be overlaid on the proposed building envelope before the contract is signed.

Rights of the Dominant Owner

The holder of the dominant tenement is entitled to use the easement for the purpose for which it was granted, and to enter the servient tenement to a reasonable extent for the purpose of enjoying and maintaining the easement. A carriageway easement, for example, includes the right to drive over the strip in question, the right to keep it clear of obstructions, and the right to undertake reasonable maintenance of the surface.

The dominant owner cannot, however, increase the burden on the servient tenement beyond the scope of the original grant. A right of way granted for residential access cannot be unilaterally upgraded to service a large commercial or industrial development. A drainage easement granted for stormwater from a single dwelling does not authorise the discharge of stormwater from a multi-unit development without further consent.

Obligations of the Servient Owner

The owner of the servient tenement must not substantially interfere with the easement or the easement holder's enjoyment of it. That includes not erecting fences, sheds, garages or other structures over the easement without consent; not planting trees with root systems likely to damage underground assets; and not altering ground levels in a way that interferes with drainage.

Subject to those constraints, the servient owner remains entitled to use their land for any other purpose. A drainage easement does not, of itself, prevent gardening, landscaping or paving — but the servient owner takes the risk that anything built or planted in the easement may need to be removed if the authority requires access to the underlying asset.

Building Over an Easement

Building over a drainage or sewerage easement is one of the most common issues we are asked to advise on. The short answer is: do not assume you can.

Most build-over applications require the written consent of the relevant authority — the council for drainage, and the relevant water authority for sewer. That consent typically requires detailed engineering plans, evidence that the structure will not damage the underlying asset, and execution of a build-over agreement containing indemnities in favour of the authority. Even then, the authority will usually retain the right to enter and (if necessary) demolish any part of the structure that obstructs access to the easement.

Building over an easement without consent is a high-risk strategy. It can attract enforcement action under the Building Act 1993 (Vic) and the relevant water legislation, give rise to a demolition order, and create significant issues when the property is later sold.

Easement Disputes Between Neighbours

Disputes between neighbouring landowners about easements are common and frequently emotionally charged. Typical scenarios include:

• the servient owner erecting a fence, planter, gate or structure across a right of way;
• the dominant owner using a carriageway easement more intensively than the original grant contemplates;
• the servient owner paving or landscaping over a drainage easement and refusing to remove the works;
• disagreement about responsibility for maintenance and repair of a shared driveway or party wall;
• new construction on the servient land affecting the dominant owner's enjoyment of light, access or drainage.

The first step is almost always a clearly worded letter identifying the easement (with reference to the plan of subdivision and the dealing creating it), describing the interference, and requiring it to be remedied within a reasonable time. Many disputes resolve at this stage. Where they do not, mediation through the Dispute Settlement Centre of Victoria is often a cost-effective next step before any court application is considered.

Interference With Easement Rights

Substantial interference with an easement is actionable. The dominant owner may seek injunctive relief restraining the interference, an order requiring the obstruction to be removed, and damages for any loss suffered. Where the interference is ongoing and serious — for example, a permanent structure built across a carriageway easement — the Supreme Court of Victoria has well-established jurisdiction to order removal.

Not every interference is actionable. The test is whether the interference is substantial — whether it materially impairs the dominant owner's reasonable use and enjoyment of the easement. Minor or temporary interferences will usually not justify court intervention.

Removal, Variation and Extinguishment

Two principal statutory pathways exist for removing or varying an easement in Victoria.

Section 36 of the Subdivision Act 1988 (Vic) allows easements to be created, varied or removed by a plan of subdivision. The local council is the responsible authority for most such applications. Notice must be given to affected parties and to any authority with the benefit of the easement. Removal under section 36 is most commonly used where infrastructure has been re-routed, the easement is no longer required, or the original purpose has been superseded by later works.

Section 23 of the Property Law Act 1958 (Vic) gives the Supreme Court of Victoria power to wholly or partially modify or extinguish an easement where, among other things, the easement is obsolete, its continued existence would impede reasonable use of the land without securing any practical benefit to the dominant owner, or the persons entitled to the benefit have agreed (expressly or by implication) to its modification or extinguishment. Compensation may be ordered as a condition of the modification or extinguishment.

Removal is never automatic. It requires careful evidence, notice to all interested parties and (often) a willingness to pay compensation. Where an easement materially affects development potential, however, the cost of an application can be modest compared with the uplift in land value.

Impact on Value and Development Potential

Easements have a real and sometimes substantial effect on both market value and development potential. A drainage easement running through the centre of a small infill lot can reduce the buildable footprint, dictate the position of garages and outbuildings, and rule out features such as basements, pools and structural landscaping. A carriageway easement giving a neighbour access through the property can affect privacy, garaging and amenity. Sophisticated purchasers and lenders pay close attention to easements, and a poorly understood easement can result in a financed purchase failing at settlement.

For developers, the position of easements should be a front-of-mind consideration at the feasibility stage. The cost of a build-over consent, an easement variation or an application under section 36 of the Subdivision Act 1988 (Vic) or section 23 of the Property Law Act 1958 (Vic) should be factored into the project budget, with realistic contingency for delay.

Due Diligence Before Purchasing Property

Pre-contract due diligence should always include a careful review of:

• the current folio of the Register and any easements recorded on it;
• the registered plan of subdivision, with easements overlaid onto the proposed building envelope;
• the section 32 vendor's statement and supporting title documents;
• where development is contemplated, written advice from the relevant council and water authority about whether build-over consent is likely to be granted;
• where access is critical, a careful review of any right-of-way easements and any history of dispute about them.

These issues are far cheaper to resolve before exchange than after. Our companion guides to buying property in Victoria and selling property in Victoria set out the broader conveyancing context. For commercial property purchasers, easements affecting truck access, loading bays and sub-tenancy fit-outs warrant particular attention.

Where an easement dispute has already arisen — or where a caveat has been lodged in connection with one — our guide to caveat removal in Victoria explains the related procedural framework.

When to Obtain Legal Advice

Easement issues tend to surface at the most inconvenient moments — a week before settlement, during a town-planning application, or when a neighbour erects a new fence. The right advice at the right time can be the difference between a constructive solution and an expensive dispute. Parke Lawyers advises property owners, purchasers, vendors, developers, executors and neighbouring landowners on the full range of Victorian easement issues. Our property and conveyancing practice works closely with our litigation and dispute resolution team to resolve easement disputes — through negotiation, mediation, build-over agreements or, where necessary, applications to the Supreme Court of Victoria under section 23 of the Property Law Act 1958 (Vic).

Frequently Asked Questions