Easement over a track in use (SSIR 2024)

For all survey's completed in accordance with the Surveying and Spatial Information Regulation 2017, please refer to this page.

An easement over a track in use is created as a Right of Carriage Way, or Right of Way or Easement for Access in situations where:

  • the track in use is extensive and/or it traverses rough or steep terrain over rural land.

  • the easement site might vary, from time to time, due to changing physical conditions.

Creation of an easement over track in use

The easement may be created by:

  • registration of a section 88B instrument lodged with a deposited plan or

  • the registration of a Transfer Granting Easement together with a compiled plan annexed to the dealing or with reference to a registered deposited plan showing the easement site as ‘proposed’ (see NOTE below),or

  • the registration of an Old System deed in the General Register of Deeds together with a compiled plan annexed to the Deed or with reference to a registered deposited plan showing the easement site as ‘proposed’ (see NOTE below).

Depicting the site

The site of the easement to be created over a track in use may be depicted in either a deposited plan or a compiled plan annexed to a dealing. The following must be shown on the plan:

  • the extent of the easement must be defined by broken lines
  • the width of the easement must not be shown
  • the easement must be designated as 'right of way/right of carriageway/easement for access over the track in use' and show approximate connections to the parcel boundaries and
  • the plan must be signed by a registered surveyor.

A statement must be included on the plan indicating the method used to determine the position of the track (for example):

  • the approximate position of the centreline of the track as determined by an aerial photograph, see ... or
  • the approximate position of the centreline of the track as indicated on ... (a cadastral map on public record) ... or
  • the approximate position of the centreline of the track as recorded in Field Notes ... or a Detail Plan ... or
  • the approximate position of the centreline of the track as indicated by SIX Portal aerial photography provided the 'date of publication' metadata is available. (The year of publication must be shown on the plan) or
  • the approximate position of the centreline of the track as determined by GNSS methods.

As the site of an easement over a track in use is designed to be 'ambulatory' (i.e. the location of the track 'in use' may move over time), no survey information should be shown on the plan or marks placed that would define the site in a specific location.

NOTE: Where doubts exist as to the position of the easement in respect to the parcel boundaries, the plan must be one of survey.

Subdivision of a parcel affected by a track in use

A plan of subdivision of a parcel(s) of land subject to a registered right of carriageway, right of way or easement for access over a track in use is prepared in the usual manner. However, due to the ambulatory nature of the track, it will be necessary for the surveyor to:

  • supply a written declaration setting out which of the lots in the new plan will be affected by the existing track and

  • supply approximate connections to the centreline along any new boundary that intercepts the track.

The site of any existing track in use that will be co-incident with or adjacent to a new lot boundary should be fully defined by survey in the new plan. This will entail the whole (or partial) release of the existing right and the creation of a new easement complying with the provisions of sections 38, 42 & 64 Surveying and Spatial Information Regulation 2024.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/   
 

Publication Date: March 2025