Releasing or Varying an Easement in NSW

Why a Deal Is Not Enough

An easement can burden land long after its original purpose has disappeared. A right of way may no longer be used, a drainage route may have moved, or development may require an easement to be narrowed or relocated. Agreement between neighbours is important, but agreement alone does not remove a registered interest from title.

Start with the title and the creating instrument. The title identifies the easement, but its dimensions, benefited land, purpose, maintenance obligations and release conditions may be found in a deposited plan, section 88B instrument, transfer or older dealing. A surveyor may be needed to map the easement accurately against buildings and proposed works.

Next identify everyone whose interest may be affected. That can include:

• the registered proprietors of the land with the benefit and the land with the burden;

• mortgagees, lessees, caveators or covenant chargees;

• a council, utility or prescribed authority named as the benefiting party; and

• owners corporations where strata or common property is involved.

The commercial terms should deal with more than price. They may need to allocate survey, valuation, legal and registration costs; specify any replacement easement; address service relocation and make-good work; obtain lender and authority approvals; and coordinate registration with a sale, refinance or development timetable.

For a consensual release, the correct electronic or paper dealing must be prepared, supported by the required consents and registered with NSW Land Registry Services. Until registration, the title may continue to show the easement and a buyer or lender may still treat it as binding.

If agreement cannot be reached, section 89 of the Conveyancing Act 1919 (NSW) permits the Supreme Court to modify or extinguish certain easements and covenants in specified circumstances. Relevant considerations include changes in the use or character of the land, whether the easement has become obsolete, whether modification would substantially injure the person entitled to its benefit, and whether money would adequately compensate any loss. The court pathway requires evidence, notice and usually valuation and planning analysis; it is not a registration shortcut.

Development consent does not itself extinguish a private easement, and construction over an easement may breach both private rights and authority requirements. The sequence matters: investigate first, negotiate the complete package, obtain consents, then register the outcome before relying on it.

Sources: NSW Registrar General’s Guidelines — Easements; Conveyancing Act 1919 (NSW), s 89; NSW Land Registry Services — Forms

Disclaimer: This article provides general information only and is not legal, planning or surveying advice. It does not create a solicitor-client relationship.