Transcript documents_13164899611269664711

Land Victoria 2011
Easement presentation
SSSI Spatial Summit
September 2011
Renato Marasco & Helen Lymbouris
Disclaimer
The content of this Land Victoria presentation is provided for information purposes only. No claim is made as to the
accuracy of its content. Under no circumstances will Land Victoria, its agents or employees be liable for the accuracy
of the information contained in this presentation nor for the use or reliance placed on it. The information is provided on
the basis that all persons accessing the presentation undertake responsibility for assessing the relevance and
accuracy of its content. Land Victoria does not endorse any of the other information contained elsewhere in this
website.
Copyright
Apart from fair dealing for the purposes of private study, research, criticism or review as permitted under the Copyright
Act 1968, no part of this presentation may be reproduced, copied, transmitted in any form or by any means (electronic,
mechanical or graphic) without the prior written permission of the State of Victoria. All requests and enquiries should
be directed to Land Victoria.
Easements
Topics covered
Easements created under section 23 Subdivision Act 1988
Various examples
Easements in Gross - Section 45 Transfer of Land Act 1958
examples of Electricity companies
Water Authorities
Gas Authorities
Any Easements Notations
Other Examples and Questions
Section 23 Subdivision Act 1988 easements
Creation Variation or Removal of easements lodged as
dealing not as a component of a plan of Subdivision.
This section allows multiple processes and parties in one dealing.
(creation, variation and removal and any combination of)
The T.L.A. requires one dealing for one process.
To use this section requires council direction
(via a planning permit or planning scheme amendment)
No consents are required not do we notify the dominant title.
Remember that the applicant is the servient title
Section 23 Subdivision Act 1988 easements
The plans must be certified by
Council and in the case of a plan
relating to easements it must
clearly specify (by diagram or text)
the easements being dealt with.
The plan does not have to show
any other easements affecting the
servient land.
A Section 23 component may be
included as a purpose in a Plan of
Subdivision.
Section 23 Subdivision Act 1988 easements
Variation of dominant land
(a) The land to benefit from a Section 98 Transfer of Land Act 1958
easement may not be varied either to become more limited than all of the
lots in the plan in which the Section 98 easement was appropriated or to
include land which was not the subject of the plan in which the easement
was appropriated.
eg: from All lots on this Plan to All lots on this Plan and Lot 1 on LP12345
(b) The dominant land of an easement created by grant or plan under the
Subdivision Act 1988 may be varied to exclude land;
eg: from Lot 1,2,3 on PS300 000 to Lot 2,3 on PS300 000
(c) The dominant land of an easement created by plan under the Subdivision
Act 1988 may be varied to include additional land provided it is land which
was on the plan in which the easement was created;
eg:- from Lot 5 on PS300 000 to Lot 4 and 5 on PS300 000
Section 23 Subdivision Act 1988 easements
Variation of servient land
(a) A variation could add to or subtract from
the servient land. It is considered that as long
as some part of the servient land remains
subject to the easement it should be able to
be varied to subtract land from it and/or add
land to it. It would appear necessary that any
addition be connected to the existing
easement.
(b) The location of the servient land when
varied must have some connection with its
location prior to its variation. If more than one
lot is shown in the plan, all lots being owned
by the same registered proprietor and being
lots created on the same plan the connection
may be in regard to one lot only e.g. variation
of carriageway easement E-1 (see example
following slide )
SME
Example of a Variation of an
easement
EASEMENTS IN GROSS
Easements in Gross- Section 45 TLA
Easements in Gross
One of the essentials of an easement is that there must be both a
dominant tenement and a servient tenement.
Therefore there cannot, apart from in statute, be "an easement in
gross" - ie an easement without a dominant tenement.
However, certain statutes provide expressly that an authority can
acquire an easement, provided that the right in question is not taken
for the benefit of land of that authority.
These rights are statutory easements in gross and may be registered
as easements under the Transfer of Land Act or Subdivision Act,
defining in full the intended meaning of such terms as "Powerline".
Easements in Gross Section 45 TLA
See Section 88 Electricity Industry Act 2000
Schedule for Electricity Industry Act
The normal appropriation of an easement in
favour of these bodies is for Powerline
purposes. The full-intended meaning of that
purpose being fully defined in the schedules
to the relevant Acts.
Easements in Gross Section 45 TLA
Acceptable beneficiaries (Authorities / Companies)
Acceptable electricity companies are empowered to take easement in gross for
any purpose.
To determine whether Beneficiaries for easements in Gross are acceptable, the
following steps should be followed:
•
Only Distribution, Generation and Transmission Companies are
able to create easements in gross
Note: - Retail companies don't have the ability to create easements in gross
•
Distribution, Generation and Transmission Companies are located
on pages 1 to 3 on the Essential Services Commission Website
•
View the Essential Services Commission Website
http://www.esc.vic.gov.au - Energy Licences Issued
Easements to Authorities
Water Act 1989
Water Industry Act 1994
Gas Industry Act 2001
Any Easements
Recording "Any Easement" notations on new and existing Title Plans and new
Subdivision Act Plans.
Any Easement Implied under Acts
Any Easement Encumbrances shown as "Implied under Acts"
"Any easements implied under Act 3168"
"Any easements implied under section 212 of the Transfer of Land Act 1928" and
"Any easements implied under section 98 of the Transfer of Land Act 1958"
All equate to "The easements (if any) implied under Section 98 of the Transfer of Land Act 1958"
and do not require further searching.
If the title encumbrance notation is "Any easements affecting the same" that is when you need to
undertake a “any easement search” ( back to an unencumbered title).
Easement questions
Can an easement of carriageway be created
over common property on a registered plan of
subdivision in favour of land outside the plan?
If so, how can this be done?
Answer :- Yes! an easement of carriageway can be
created using the means of Sec 45 of the TLA
where both the servient and dominant titles will be
supplied, the applicant will be the Owners
Corporation and because its an easement of
Carriageway the consent of council is required.
Is there another way?
Yes using the means of Sec 23 of the Subdivision
Act to create an easement of carriageway in favour
of land outside of the subdivision the servient title
is required to be supplied ( the dominant title is not
required).
Easement questions
Can a joint application be made by both land owners to create a
carriageway easement in favour of abutting lots on a proposed
subdivision?
No, there needs to be
2 applications, one for the Subdivision Plan
and one for the sec 23 Subdivision Act Plan (creation of easement)
both applications can be lodged at the same time
Questions