Easements add complexity and risk to a development process. They can restrict how land may be used and, more critically, can require the consent of third-party easement holders during the development assessment process. Failure to obtain that consent can be fatal to a project.
Key issues that emerge time and time again include where:
- a development requires a new easement for infrastructure over external private land
- an existing easement triggers mandatory consent requirements under the Planning Act 2016 or the Building Act 1975 (Qld)
- a condition of a development approval requires an easement to be granted over the development land for the benefit of a third party.
This article identifies these risks and sets out practical tips to help manage them.
External infrastructure on private land
Most developments require connections to external infrastructure such as water, sewer and stormwater networks. Ideally, the relevant infrastructure already exists and a connection can be readily achieved. However, in some circumstances new infrastructure is required, and the most practical option may involve a third party’s land.
Often a negotiated outcome with a third-party landowner can be achieved. But what happens where agreement cannot be reached?
While the available options depend on the specific circumstances, there are legislative powers that may assist where a landowner refuses to consent:
- under section 180 of the new Property Law Act, the court’s power to impose a ‘statutory right of user’ over a third party’s land now expressly extends to circumstances where an easement is necessary for development
- under sections 263 and 263A of the Planning Act, land or an easement required on private land to facilitate development may be compulsorily acquired where reasonable steps to obtain the landowner’s agreement have failed.
Whether these options are available requires careful assessment of the applicable technical and legal requirements, and engagement with the relevant regulatory bodies.
Easement holder consent
Applications for development and building work can trigger a mandatory requirement to obtain consent from a third party to an easement. In some circumstances an application cannot be made, and an approval cannot be obtained, if that consent is not provided.
Planning Act
Section 51 of the Planning Act imposes a mandatory requirement for a development application to include the owner’s consent, for the application to be accepted as properly made.
Where land subject to a development application has the benefit of an easement over a third party’s land, the third-party landowner consent may be required, depending upon the terms of the easement and whether the development is consistent with them.
Where the proposed development is instead on land burdened by an easement that benefits a third party, that third party’s consent is not required. This is because an easement holder is not an ‘owner’ of the land.
Even where landowner consent is not an issue, the terms of any relevant easement must be carefully considered to ensure they are not breached by the proposed development. An easement may be relevant to the merits of a development application, and a party to an easement who makes a submission may have a right of appeal against the decision.
Building Act
Under section 65 of the Building Act, a building development application made for land burdened by a registered easement must not be approved unless each registered easement holder has consented to the building work.
This is a strict statutory prohibition. The Planning and Environment Court has confirmed it has no power to excuse the absence of easement holder consent (ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52).
Whether the consent requirement is limited to building work proposed within the bounds of the easement, or arises whenever any part of ‘the land subject to the easement’ is the subject of a building application, remains uncertain. Building work outside the easement area should not be assumed to be exempt from the Building Act consent requirements.
Where an easement holder will not consent to building work, the available legal options will depend on the terms of the easement.
Approval conditions requiring easements to be granted to a third party
Development approvals often include conditions requiring easements to be granted for the benefit of third parties – generally either infrastructure providers or the owners of neighbouring land.
Easements in favour of public sector entities are typically straightforward, granted on standard terms.
Issues are more likely to emerge where a condition requires an easement to be granted to a private third party, typically a neighbour, which is not bound to agree to the easement. This raises uncertainty as to whether an offer of an easement is sufficient to comply with the approval condition, and the extent to which the third party can negotiate its terms. These issues were considered in Karagianis v Body Corporate for Northpoint Carseldine CTS 50962 [2022] QPEC 26.
Key takeaways
- Carefully consider existing easement terms and future easement requirements as part of any due diligence.
- Develop an engagement strategy with easement parties early – this may make the difference between a project proceeding and one that does not.
- There are options available under the Property Law Act to impose, extinguish or vary existing easements, or under the Planning Act, for regulatory authorities to acquire land and easements to facilitate development.
- Do not assume that limiting building work to areas outside an easement is sufficient to avoid easement holder consent requirements – the law is not settled.
- Exercise caution with any approval conditions requiring new easements to be ‘granted’, particularly where other private landowners are involved.
- For new easements, consider addressing terms regarding consent obligations for future building or development applications.
If you would like to know more or require advice regarding easements and property developments, please contact a member of our property, planning and environment team.
