Section 88B Conveyancing Act 1919 commenced in 1964 and enabled new easements to be created on registration of a plan. Prior to 1964 many older deposited plans also included easement sites. These easements have often not been subsequently created by the registration of an appropriate dealing.
Plans registered prior to 1920
Prior to the commencement of section 196 Conveyancing Act 1919 in 1920, there was no statutory obligation on a subdivider to state any intention to create easements over sites shown in the plan. In some instances, the sites were also omitted from the original plan and only added in red ink to the copy held on public record in the plan room of the then Registrar General's Department. For example see Page 3 of DP4244 which shows a 'Right of Drainage' along the boundaries of lots 64 to 73. The subsequent transfer of a lot affected by such an easement site usually (but not always) reserved a 'Right of drainage' etc. and resulted in a Certificate of Title that:
- showed the site of the easement in the diagram (normally in blue colour) with a notation e.g. 'Right of drainage 4 ft wide', and
- carried forward a second schedule notification to the effect of:
This Certificate of Title is issued subject to the Right of drainage shown on DP............ and coloured blue in the plan hereon.
If a notification referring to the easement site is not endorsed on the current title a surveyor should only show the site of the easement on a new deposited plan if it can be ascertained that:
- the first transfer to issue off the original plan for the subject land was, in fact, subject to the easement and
- that the easement has not been released.
A report should be prepared accordingly and accompany the plan on lodgment at NSW LRS.
Plans registered on and from 1 July 1920 and before 15 June 1964
The enactment of section 196(7) Conveyancing Act 1919 (repealed in 1964 and replaced by section 88B) imposed on subdividers a duty of endorsing on the plan a statement of intention to create easements and to indicate the roads or other land to which they were to be appurtenant. No provision was made in the Act for the consequences of failing to perform that duty or of the failure of the subsequent transfer of a lot in the plan to give effect to any intention which may have been so stated on the plan. Consequently, unless reference to the easement was included in the transfer, the easement was not created and no notification was endorsed on the new Certificate(s) of Title.
The site of the easement was usually shown on the face of the plan as e.g.:
Site of Proposed drainage easement ... Wide
Section 196 was amended in 1931 by Conveyancing (Amendment) Act 1930 in relation to the creation of new easements appurtenant to new roads shown in the plan (see Easements appurtenant to new roads below).
Easements appurtenant to new roads (plans registered on and from 1 January 1931 and before 15 June 1964)
Section 196(11) Conveyancing Act 1919 (repealed by the Local Government and Conveyancing (Amendment) Act 1964) commenced on 1 January 1931 and provided that where it was stated in a plan that an easement was intended to be created as appurtenant to a road provided in that plan, then the easement would vest with the road on registration of the plan.
A new easement was created in this manner if:
- registration of the plan effected a vesting in the council of a new public road and
- the plan bore a statement of intention to create an easement appurtenant to that new road.
A notification of the easement was then recorded on the new Certificate of Title for the servient tenement:
DP ........ Easement to drain water ......... Wide
Upon registration of the plan the easement and the fee simple of the new road automatically vested in the council or Transport for NSW (formerly Roads and Maritime Services).
NOTE: This provision only applied to new roads in a plan of subdivision, not road widening.
Plans registered on and from 15 June 1964
Section 196 was repealed by the Local Government and Conveyancing (Amendment) Act 1964 which inserted section 88B to provide a simplified method of creating easements (including easements appurtenant to roads) in conjunction with the registration of a plan of subdivision or strata plan. This system remains in effect to the present day. If the surveyor or developer intends for an easement not to be created on registration of the plan, but by means of a dealing or gazettal at a later date, the site may be shown on the plan provided it is clearly designated as 'Proposed' (or an abbreviation). No statement relating to any such proposed easement should be added to the Administration Sheet of the plan.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: September 2024