Where an easement intended to be created pursuant to section 88B Conveyancing Act 1919 is limited in stratum, additional requirements apply. The reduced levels of the stratum limits of the easement must be related to Australian Height Datum as defined in section 3(1) Surveying and Spatial Information Act 2002 and clause 5A Surveying and Spatial Information Regulation 2017.

AHD71 is the only approved Height Datum. However, if a surveyor wishes to use another datum, then an approval is required from the Surveyor General.

The survey must be related to two or more bench marks in accordance with clause 13 Surveying and Spatial Information Regulation 2017. Surveyors must record on the plan the heights and height differences of benchmarks in accordance with clauses 69 and 71 of the Regulation.

NOTE: Clause 13 Surveying and Spatial Information Regulation 2017 deals with heights and applies to survey plans and partial survey plans. In the partial survey plans, the horizontal definition can be compiled and the survey relates to the stratum limits.

NOTE: It is not acceptable to refer to a physical feature e.g. "the underside of eaves" to define the level of an easement, unless the easement is within a lot in a strata scheme.

Notation on the plan and instrument

In order to clearly indicate that the easement is limited in stratum, to less than the stratum of the lot, reference to the easement in the 'Statements Panel' on the Administration Sheet of the plan and in the 'Lots Burdened' and 'Lots Benefited' schedules in the section 88B instrument should be amplified to refer to: 

RIGHT OF ACCESS ........... WIDE (LIMITED IN STRATUM)

For an example of an Easement limited in Stratum, please see DP1259320
 

All NSW legislation can be accessed at www.legislation.nsw.gov.au/

 

Publication Date: January 2025