“Easement” is defined as “A right enjoyed by a person with regard to land of another person, the exercise of which interferes with the normal rights of the owner or occupier of that land” (Concise Australian Dictionary – Third Edition Butterworths 2004).
In acquiring an Easement, the Authority has the following rights at common law:-
- The primary right to use the land for the purposes for which it was acquired.
- Such ancillary rights as are reasonably necessary for the effective and reasonable exercise and enjoyment for the purposes for which it was acquired, being limited to:-
- a right to install
- a right to maintain
- a right to repair
- a right to inspect; and
- a right to replace a drain with a right of carriageway.
“In the context of the easement of drainage, it has been suggested that ancillary rights would be those of construction, reparation, alteration and cleaning: that is, those rights necessary to give efficacy to the basic right.” (Bradbrook, Adrian and Neave, Marcia, Easements and Restrictive Covenants in Australia, Butterworths, 2000.)
The sources of rights and obligations will also be set out in the empowering legislation (e.g. the Water Act 1989) and the terms imposed by the acquiring authority as part of the acquisition.
An easement is commonly required to secure tenure for a carriageway, a water supply pipeline, a sewerage pipeline, an electricity supply cable and poles, an electricity transmission cable and towers to name but a few. Each of these is regulated by the empowering legislation.
Whilst private owners can seek easements from neighbours as a matter of private negotiation, Councils and Water Corporations must comply with the Land Acquisition and Compensation Act 1986 (“the LAC Act“) to validly acquire an easement for their purposes. The LAC Act may also apply to other authorities and service providers, but this summary is directed to councils and water corporations. If any entity approaches you wanting an easement over your land, you should consult us as soon as such a request is made and certainly before any agreement is reached.
The LAC Act enables an easement to be acquired from you, as the owner of the land, by either:
- private agreement provided certain preliminaries are met; or
- compulsory acquisition.
It is with the latter that this summary is concerned. We are able to advise on the former if applicable to you.
Planning scheme amendment threshold issue
An acquiring authority is able to compulsorily acquire an easement from you for its purposes under the LAC Act without reserving the land under a planning scheme for a public purpose if the acquisition of that easement will not reduce the value of the unencumbered freehold interest in the property by more than 10%.
If the land must first be reserved before the acquisition commences, the acquiring authority must initiate a planning scheme amendment to have the land over which the easement is to be acquired reserved for a public purpose. You are able to object and put your arguments to an independent panel convened to consider the planning scheme amendment.
Information from authority
On receipt of your instructions, once the authority has advised of its chosen alignment, we will then seek information from the authority to assist with the understanding of the nature and extent of the works to be undertaken and their potential long term effect on the value of the land.
Identification of farming issues
In preparation for an authority’s acquisition of the easement (once the authority’s alignment is finalised), you should conduct a comprehensive review of the alignment over your land in order to identify the nature and extent of disturbance issues which may arise due to the easement or construction of the lineal infrastructure.
You must consider the construction program and the nature and extent of the construction works to identify farming or other use issues (e.g. livestock management, safety, drainage and water supply etc) and solutions for these issues (e.g. agistment of stock away from the land, installation of temporary fencing etc). When identified, these can be conveniently categorised as disturbance issues which must be dealt with:-
- Prior to the construction works;
- During the construction works; and
- After the construction works (especially the reinstatement of pasture and fencing).
Procedure for acquisition
- resolving that a planning scheme amendment is not required; or
- if required, the land over which the easement is to be acquired is reserved by or under a planning scheme for a public purpose –
– the acquiring authority should follow the procedures in accordance with the LAC Act.