In brief – "Substantial" or
"material" interference with easement is key test
Normally an easement will not prevent you from building over or
under it. For example, if there is an access way through your
property, you probably will be able to put a sewer under it or a
structure over it.
But whether or not you actually can build over it will generally
depend on whether your proposal causes substantial interference to
someone else's rights.
What if there is an easement over your property?
An easement gives someone the right to use a section of land for
a specific purpose even though they are not the owner of that land.
Typically this could be a access way or an easement for
Let's say an easement burdens your property. Does this mean
you are prohibited from building under or over it?
Generally not, as you can build under or over it if the work
will not have a material interference with the easement.
The owner of the land benefited by the easement is unable to
bring an action against you unless your proposed work causes
"substantial" or "material" interference.
Whether there is material interference depends on the scope of
the easement and the other particular circumstances.
Interpreting the easement
The terms of the easement are paramount in most cases. There are
only limited exclusions. For example, you can look at extrinsic
material to make sense of the terms and expressions found in the
Land Titles Register, such as surveying terms and abbreviations on
the registered plan, but little else.
Does your proposed work cause material interference?
A particular act may be a substantial interference or not,
depending on the circumstances.
In Ex Parte Purcell (1982) 47 P & CR 433, the
owners of land burdened by a watermain easement in favour of the
local council sought a declaration from the court that they were
entitled to construct a roof at a height of 6.5 metres above the
easement. The council contended that the roof would prevent it from
using a particular Hitachi excavator if there was an emergency
fault in the pipes.
The court held that the use by council of the Hitachi excavator
would exceed the council's rights under the easement, due to
the size of the machine. This meant that vertical interference with
the use of that machine at a height of 6.5 metres was not relevant.
The court declared that the landowners were entitled to construct
the roof above the easement.
Easement can be suspended by an environmental planning
You should also consider whether the operation of the easement
burdening your property has been suspended by an environmental
planning instrument. However, the law in this area is not
section 28 of the Environmental Planning and Assessment Act 1979 (NSW),
an environmental planning instrument may suspend a specified
"regulatory instrument" to the extent necessary to enable
approved or permissible development to by carried out. A
"regulatory instrument" is defined to include an
"agreement, covenant or instrument" which would generally
include an easement.
Section 28 of the EPA Act
If the relevant environmental planning instrument contains a
provision made under section 28 of the EPA Act, you need to
consider the terms of the provision carefully. Typically, an
environmental planning instrument provides that regulatory
instruments which "impose restrictions on the carrying out of
development" do not apply.
There is tension between the cases which have looked at whether
an easement "imposes restrictions on development".
In Doe v Cogente (1997) 94 LGERA 305, the court held that
a provision made under section 28 of the EPA Act suspended the
operation of a access way, so that an approved development could
proceed on the burdened land.
If an easement burdens the property you propose to develop,
examine the scope of the easement and assess whether your proposed
work will cause a material interference with the enjoyment of the
easement. You should also investigate whether the environmental
planning instrument contains a provision suspending the
These issues are particularly relevant when carrying out your
due diligence before the purchase of a property for redevelopment.
We regularly help developers deal with this difficult issue.
This decision removed the uncertainty as to whether builders owe a separate duty of care to subsequent purchasers.
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