Various legislation includes provisions creating easements automatically without the registration of a dealing or section 88B Instrument. These include:
Cross-easements for party walls
Cross-easements for party walls may be created by section 88BB and section 181B Conveyancing Act 1919 or section 48 Real Property Act 1900.
For more information relating to cross-easements, see the cross-easements page.
Community Land Development Act 2021
A statutory easement may be created for the passage of water, sewerage, drainage, gas, electricity and other services within a community, precinct or neighbourhood scheme. Such easements are created under section 34 Community Land Development Act 2021 by their inclusion in the management statement of the scheme. The sites of these easements are shown in a statutory easement diagram included in the management statement.
NOTE: Generally no recording is made in the Register for statutory easements under section 34 Community Land Development Act 2021.
Conveyancing Act 1919
Where a Building Management Statement is lodged with a deposited plan, the registration of the plan automatically creates statutory easements for support and shelter (see section 196K Conveyancing Act 1919). See Stratum subdivision of a building or part of a building page for more information.
Crown Land Management Act 2016
Division 5.9 of Part 5 Crown Land Management Act 2016 allows for the grant and release of an easement over Crown Land, including an easement for public access.
Section 5.54(1) provides that an easement may be granted over Crown Land to which the Real Property Act 1900 applies in the way provided under that Act or in the way provided by section 88B Conveyancing Act 1919. For land to which the Real Property Act 1900 does not apply, an easement may be granted in the way provided in section 88B Conveyancing Act 1919, or by notice published in the Gazette (except if it is an easement for public access). Section 5.54(2) provides the means by which an easement benefitting the Crown land may be released.
For further information see Division 5.9 of Part 5 Crown Land Management Act 2016 and Crown Land.
Pipelines Act 1967
Easements may be created for the transportation of natural gas, oil and other substances through major pipelines. For further information see pipeline plans.
Section 20 Pipelines Act 1967 requires a plan to be lodged showing any lands to be resumed and/or any easements to be created in relation to the pipeline. This must be done before the publication of the notification reffered to in section 21 Pipelines Act 1967, which requires a notification to be published in the Government Gazette by the Minister as soon as practicable after a license is granted under section 14 or 18 Pipelines Act 1967. On publication of the notification, the lands and easements specified in the notification vest in the licensee and any restrictions on user specified in the notification have effect. The licensee is required to lodge an Application to record the new registered proprietor under section 46C Real Property Act 1900.
Upon registration of the pipeline plan a notification will be entered on all relevant Torrens titles. Following the publication in the Government Gazette, the relevant authority will lodge a Request form 11R to have the easements entered on title, whereupon the plan notification will be removed.
Strata Schemes legislation
Where part of a building is to be included in a freehold or leasehold strata scheme, the registration of the strata plan that creates the part strata parcel automatically creates statutory easements for support and shelter (see section 106 Strata Schemes Development Act 2015). These easements apply for the benefit of both the part strata parcel and all other lots in the building. See Easements page for more information.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: January 2025