Can you build over or under an easement?

In brief – "Substantial" or "material" interference with easement is key test

Normally an easement will not prevent you from building over or under it. For example, if there is an access way through your property, you probably will be able to put a sewer under it or a structure over it.

But whether or not you actually can build over it will generally depend on whether your proposal causes substantial interference to someone else's rights.

What if there is an easement over your property?

An easement gives someone the right to use a section of land for a specific purpose even though they are not the owner of that land. Typically this could be a access way or an easement for drainage.

Let's say an easement burdens your property. Does this mean you are prohibited from building under or over it?

Generally not, as you can build under or over it if the work will not have a material interference with the easement.

The owner of the land benefited by the easement is unable to bring an action against you unless your proposed work causes "substantial" or "material" interference.

Whether there is material interference depends on the scope of the easement and the other particular circumstances.

Interpreting the easement

The terms of the easement are paramount in most cases. There are only limited exclusions. For example, you can look at extrinsic material to make sense of the terms and expressions found in the Land Titles Register, such as surveying terms and abbreviations on the registered plan, but little else.

One useful resource is the list of Common terms and situations involving easements on the website of the NSW government’s office of Land and Property Information.

Does your proposed work cause material interference?

A particular act may be a substantial interference or not, depending on the circumstances.

In Ex Parte Purcell (1982) 47 P & CR 433, the owners of land burdened by a watermain easement in favour of the local council sought a declaration from the court that they were entitled to construct a roof at a height of 6.5 metres above the easement. The council contended that the roof would prevent it from using a particular Hitachi excavator if there was an emergency fault in the pipes.

The court held that the use by council of the Hitachi excavator would exceed the council's rights under the easement, due to the size of the machine. This meant that vertical interference with the use of that machine at a height of 6.5 metres was not relevant. The court declared that the landowners were entitled to construct the roof above the easement.

Easement can be suspended by an environmental planning instrument

You should also consider whether the operation of the easement burdening your property has been suspended by an environmental planning instrument. However, the law in this area is not clear.

Under section 28 of the Environmental Planning and Assessment Act 1979 (NSW), an environmental planning instrument may suspend a specified "regulatory instrument" to the extent necessary to enable approved or permissible development to by carried out. A "regulatory instrument" is defined to include an "agreement, covenant or instrument" which would generally include an easement.

Section 28 of the EPA Act

If the relevant environmental planning instrument contains a provision made under section 28 of the EPA Act, you need to consider the terms of the provision carefully. Typically, an environmental planning instrument provides that regulatory instruments which "impose restrictions on the carrying out of development" do not apply.

There is tension between the cases which have looked at whether an easement "imposes restrictions on development".

In Doe v Cogente (1997) 94 LGERA 305, the court held that a provision made under section 28 of the EPA Act suspended the operation of a access way, so that an approved development could proceed on the burdened land.

However, in Cracknell and Lonergan Pty Limited v Council of the City of Sydney (2007) 155 LGERA 291, the court held that the access way in question did not cease to be operative. The court found that the instrument evidencing the access way did not impose restrictions on development, as the instrument actually conferred positive rights of ownership or use. The court also argued that Doe v Cogente was wrongly decided.

Examine the scope of the easement carefully

If an easement burdens the property you propose to develop, examine the scope of the easement and assess whether your proposed work will cause a material interference with the enjoyment of the easement. You should also investigate whether the environmental planning instrument contains a provision suspending the easement.

These issues are particularly relevant when carrying out your due diligence before the purchase of a property for redevelopment. We regularly help developers deal with this difficult issue.