Participants in property developments frequently grant and acquire easements over land. But do parties really understand their rights? In this article we examine the nature of rights under easements and makes suggestions to assist parties negotiating easements to create clearly defined rights, which achieve their purposes.
Participants in property developments frequently grant and acquire easements over land. In essence, an easement is 'a right to make use of the subject matter of another's right of property'1.
Some examples of easements are rights of way, rights to support and rights of drainage. This article provides a brief overview of rights under easements and suggests what parties negotiating easements can do to create clearly defined rights, which achieve their purposes.
Rights under easements
Easements create only such rights as are expressed in the terms of the grant. The relevant document creating the easement usually sets out rights. In addition, the grant of an easement also confers such implied rights as may be reasonably necessary for the enjoyment of the easement.2
In practice, easement rights are not always clear. Disputes can arise where the express wording of the easement is ambiguous, or does not confer all the rights necessary for the easement to achieve its purpose. The courts are often called on to determine the rights of parties. In the context of property development, any delay caused by litigation may result in additional costs under contracts.
What can be done?
Parties should take care to clearly define their rights and thus avoid conflict in the future. To this end, the writer makes various suggestions for parties acquiring and granting easements.
Parties acquiring easements should consider the various purposes for which the easement may be used (including in the future) and what rights will be necessary to achieve this purpose. For example, does the owner of a right of way need the right to load and unload? Or to park on the way? Such questions should be considered before the easement is acquired, to avoid disputes arising in the future. A recent High Court decision, in the context of a development in central Sydney, illustrates this point well.
In Westfield Management Ltd v Perpetual Trustee Co Ltd3 , a carriageway easement existed over Lot A (servient land) for access to Lot B (dominant land). It was held that the easement owner could enter Lot A to access Lot B, but not Lot C (which was further beyond Lot B and which was the subject of a development). The High Court suggested that the words "and across" could have been included in the instrument to provide the right to pass across Lot B to Lot C. It is possible that the party acquiring the easement in this case did not consider all the possible uses of the easement. Had they done so, they may have realised that it would be necessary to pass across Lot B to a further lot and acquired such a right. Accordingly, the dispute could have been avoided.
Admittedly, not all the purposes for which an easement will be used at a future date will be clear. This would appear to have been the case in Westfield, where the carriageway easement was created in 1988 and the dispute arose almost 20 years later. If this is the case, it is suggested that those acquiring easements seek the inclusion of a broad right to facilitate use of the easement for multiple purposes.
Conversely, the interests of parties granting easements are better served by a more specific and limited approach to drafting. Broad drafting does leave open the possibility of ambiguity, and with it the potential for disputes as to rights. In one case a dispute arose as to whether a landowner could construct a roof over a water supply easement on the land.4 The court found that the landowner was not entitled to construct the roof, as this would have interfered with the easement owner's ability to repair and replace pipes. Had the easement been more specific as to the rights of the landowner (for example, to construct on their land) this dispute could possibly have been avoided.
Parties granting easements should also consider the possible rights that may be implied in favour of the easement owner. As noted, rights will be implied when they are reasonably necessary for the enjoyment of the easement. Examples of rights implied by the courts in respect of rights of way easements include:
- the right to maintain, repair and upgrade, including entering onto a servient owner's land to carry out repairs5
- the right to load and unload6
- the right to park7
- the right to illuminate8
Other types of easements can also have implied rights. For example, the owner of a transmission line easement has been held to have an implied right to have the surface area beneath the transmission line accessible9.
If there is a possibility that such rights may conflict with the landowners intended use of the land, specific wording should be included in the easement to address the conflict. A simple approach is to exclude any implied or ancillary rights.
In Westfield, the court considered whether there was an implied right for the easement owner to access the further land. As access to this land was not necessary for the enjoyment of the easement, no such right was implied. A right must be 'reasonably necessary' before it will be implied and will not be implied merely because it is it convenient. Those acquiring easements should therefore ensure that rights are expressly provided for in the relevant instrument.
The lesson for all parties (ie those acquiring and granting easements) is a simple one – take the time and effort to ensure that rights are expressly provided for in the relevant instrument creating the easement.
1R J Finlayson v Elder, Smith & Co Ltd
 SASR 209 at 227 per Richards J, as cited in Easements and
Restrictive Covenants in Australia, Bradbrook and Neave (2nd
2Jones v Pritchard  1 Ch 630
3(2007) 233 CLR 528
4Ex parte Purcell (1982) 47 LGRA 433
5Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 (CA); Zenere v Leate (1980) 1 BPR 9300; Byrne v Steel  VR 43; Bland and Another v Levi and Others  NSW Supreme Court 161
6Elliott v Renner  St R Qd 172; Deanshaw v Marshall  20 SASR 146
7Masters v Snell  1 NZLR 34; Butler v Muddle (1995) 6 BPR 13
8Owners of Strata Plan 48754 v Anderson and Another  NSWSC 580
9Prospect County Council v Cross (1990) 21 NSWLR 601
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.