- Easements in gross can only be created in favour of a "public utility provider" who is providing a service for the benefit of the wider community.
- Developers of private infrastructure may be entitled to easements in gross if they are providing a service to the public.
Access to land is an important issue for any resource project including for the development of private infrastructure (such as powerlines, gas pipelines and water pipelines) in support of, or as part of, that resource project.
Traditionally powerline and pipeline infrastructure was developed by the government and mechanisms evolved for land access based on governmental powers. But as infrastructure is more frequently being developed for private purposes (eg. a private water pipeline to service a mine), the same powers may not be able to be directly applied to private land access and different avenues for access may need to be explored.
Because the land access rights available to a project proponent can have significant impacts over the structuring of projects and ownership of assets, getting these right up front is an essential consideration for resource and infrastructure projects.
Easements vs easements in gross
An easement is a right to use part of the land (usually a corridor) of another person for a particular purpose. For a regular easement, there is a dominant tenement (the land benefited by the easement) and a servient tenement (the land affected by the easement) with the owner of the dominant tenement having the right to use the easement over the servient tenement. Ownership of the easement follows ownership of the dominant tenement, ie. they cannot be separated or dealt with separately.
An easement in gross exists at large ie. it can be created across any property without the need for a dominant tenement. Easements in gross are particularly useful for long distance type infrastructure that extends over multiple properties.
Who can hold an easement in gross?
Not everyone is entitled to an easement in gross. An easement in gross can only be granted in favour of a "public utility provider", which may be:
- the State or another entity representing the State; or
- the Commonwealth or another entity representing the Commonwealth; or
- a local government; or
- a person authorised by law to provide a public utility service; or
- a person approved by the Minister as suitable to provide a particular public utility service.
In order for a private developer to hold an easement in gross, it must fall into one of the last two categories, ie. to be granted (or transferred) an easement in gross, the developer needs to be a public utility provider providing a public utility service.
Becoming a public utility provider
In order to become a public utility provider, the company will need to supply evidence to the department that:
- it has the authority to provide the service eg. a special approval under the Electricity Act 1994 for the supply of electricity, or a pipeline licence under the Petroleum and Gas (Production and Safety) Act 2004 for the supply of gas, or authorisation under the Water Act 2000 to supply water; and
- the service is being provided (at least in part) to the public ie. the wider community. This doesn't necessarily mean that any or every person is entitled to receive the benefit of the service. A group of people can be sufficient. For example, the Minister has approved mining companies who are supplying the surrounding mines and landholders with a service (eg. water or electricity) public utility provider status.
Approval to be a public utility provider will apply to the nominated infrastructure and not generally. An entity approved as a public utility provider for one public service project cannot use this approval to obtain the grant of easements in gross for other private infrastructure projects; the approval is limited to a particular entity and a particular service.
If the service is not being provided to the wider community, approval to be a public utility provider will not be possible. For example:
- a mining company may have special approval under the Electricity Act to supply electricity to its mine. As that supply is only for a private purpose, however, and not to the wider community, the mining company may not satisfy the criteria to become a public utility provider; or
- if water is being supplied from a pipeline to a number of land owners under a private agreement between those land owners, again as the supply is only for private purposes, the criteria to become a public utility provider may not be satisfied.
It may, therefore, be difficult for developers of private infrastructure to be approved as public utility providers if the only beneficiary of the service is one party (usually themselves).
Implications for private infrastructure owners
If a developer of private infrastructure, such as a water pipeline, wishes to construct that infrastructure over private land and is not approved to be a public utility provider, what options exist to construct and operate that infrastructure?
There are a couple of options which may be available in these circumstances. The first is that some types of permits and licences, such as mining leases and petroleum leases, allow the construction of private infrastructure. These may provide a right to construct private infrastructure, but such rights are usually limited to particular areas and would not allow access to land beyond the boundaries of these permits.
The second option is to obtain the grant of regular easements. To obtain a regular easement, however, there are still some issues that project proponents need to overcome. For example, they must own a piece of real property (the dominant tenement) be related to the infrastructure project and which will benefit from the easement. In addition, the owner of the dominant tenement must also hold the easements and must therefore own the infrastructure.
Development of private infrastructure, while becoming more common, still has some limitations when it comes to land access. Specific regimes for powerlines and gas pipelines contain provisions which can assist private infrastructure developers, but some infrastructure of this type and other infrastructure such as water pipelines don't readily fit within existing legal frameworks. Careful structuring and planning of this aspect of resource projects is therefore essential for ensuring that the necessary infrastructure can be built and that the right parties own the right assets.
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.