Section 88B instruments (SSIR 2017)

For all survey's completed in accordance with the Surveying and Spatial Information Regulation 2024, please refer to this page.

The requirements for section 88B instruments are set out in schedule 9 of the Lodgment Rules.

Creating and releasing affecting interests

Affecting interests include:

  • easements
  • profits à prendre
  • restrictions on the use of land
  • positive covenants.

Section 88B Conveyancing Act 1919 enables:

  • the creation of easements, profits à prendre, restrictions on use and positive covenants
  • release of easements and profits à prendre upon the registration of a plan.

NOTE: Restrictions on use of land and positive covenants cannot be released by a section 88B instrument.

When creating/releasing easements on registration of a plan, a section 88B instrument must be prepared by completing either the Approved Form 10 Section 88B Instrument, Interactive s88B Form or created in the s88B Form Builder through NSW LRS Connect pursuant to clause 18(3) Conveyancing (General) Regulation 2018.

 

Where a section 88B instrument, includes height limitations to define the stratum of an affecting interest, the deposited plan must comply with clauses 13 (Bench marks), 69 (Survey plan to show height difference schedule) and 71 (survey plan to show height schedule) Surveying and Spatial Information Regulation 2017.

Preparation of the instrument

A section 88B instrument comprises three parts:

Part 1 must be used if it is intended to create new affecting interests upon the registration of the plan. It must identify each affecting interest to be created and identify the lot(s) to be burdened and the lot(s) or authority to be benefited.

Part 1A must be used if it is intended to release existing easements or profits à prendre. It must clearly identify the details of each easement or profit à prendre to be released. The details must include the creating instrument, the identity of the
land burdened and the identity of the land or authority benefited.

NOTE: As noted above, restrictions on the use of land and positive covenants cannot be released by a section 88B instrument. For more information regarding how to release restrictions on the use of land and positive covenants, see Restrictions on the use of land or Covenants.

Part 2 must be used to provide the terms of the affecting interests referred to in Part 1 (if required). Part 2 is not necessary if the statutory terms for easements as provided in Schedule 4A (for easements in gross) or Schedule 8 (for easements having a dominant tenement) Conveyancing Act 1919 are intended to be adopted.

Terms

Each affecting interest to be created must have terms. The terms must be provided in Part 2 of the section 88B instrument unless it is intended to adopt statutory terms as mentioned above.

NOTE: Two statutory easements can be combined into one easement (e.g. easement for drainage of water and sewage) however, the easement will no longer be regarded as a statutory easement and consequently the terms must be set out in Part 2 of the section 88B instrument.

Statutory terms

As mentioned above, in order to simplify the creation of easements, statutory terms are provided in Schedule 4A (Easements in Gross) and Schedule 8 (Construction of certain expressions) Conveyancing Act 1919. The use of these statutory terms does not prevent (if so desired) the inclusion of variations to the terms specified in the Schedules. Such variations may be effected by way of addition, exception, qualification or omission pursuant to section 88A(2B) and section 181A(3) Conveyancing Act 1919.

NOTE: If the statutory terms are varied, the entirety of the statutory terms incorporating the variations must be fully set out in Part 2 of the section 88B instrument.

Right or consent to release, vary or modify

The terms for a restriction on the use of land may also include the persons (if any) who have the right to release, vary or modify the restriction. See section 88(1)(c) Conveyancing Act 1919.

The terms for an easement or restriction on the use of land may also include the persons (if any) whose consent is required to release, vary or modify the easement or restriction. See section 88(1)(d) Conveyancing Act 1919.

Signatures and consents

The instrument must be signed in accordance with Schedule 9 Lodgment Rules.

All signatures on the instrument must be on the final page(s).

All signatures must be attested to by a witness.

Each page other than the final page(s) must be signed by an attesting witness to the final page(s).

NOTE: The above term "signature" includes the affixing of a seal or any other method by which a corporation or prescribed authority executes an instrument. Further information may be found on the companies and statutory bodies pages.

Creating affecting interests

If affecting interests are to be created, the instrument must be signed by the following persons/entities in relation to the land affected:

  • the registered proprietor, including statutory authorities
  • mortgagee
  • chargee and/or
  • covenant chargee.

The instrument must also be signed by any prescribed authority that is benefited by an affecting interest.

If the terms of an easement, as set out in a section 88B instrument, impose an obligation on a prescribed authority or the owner of the dominant tenement to maintain or repair (or contribute to the maintenance or repair) of the easement, the authority or owner of the dominant tenement must also execute the instrument.

Written consents to the registration of the plan must be furnished, in accordance with section 195D(2) Conveyancing Act 1919, by any:

  • caveator
  • lessee or
  • judgement creditor under any writ.

NOTE:  Written consents may be dispensed with if the caveator, lessee or judgement creditor signs the plan and/or section 88B instrument.

Releasing an easement or profit à prendre

The instrument must be signed in accordance with Schedule 9 Lodgment Rules namely:

  • all persons who appear to the Registrar General to be the owners, mortgagees or covenant chargees of the land that has the benefit of the easement or profit à prendre
  • all persons whose consent is required to release or partial release and
  • any prescribed authority which has the benefit of the interest.

NOTE: an easement or profit à prendre may be released or partially released by a section 88B instrument - see section 88B(2)(c1) Conveyancing Act 1919.

Further information is available on the Reference Guides section of the NSW LRS website.

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

Publication Date: March 2025