Land Title Practice Manual Part 9 Easement

Part 9 – Easement

Table of Contents

General Law

The Nature of Easements .................................................................................................................... [9-0000]

Easements Distinguished from Other Rights

Appurtenant or Natural Rights ................................................................................................... [9-0010]

Profits a prendre ....................................................................................................................... [9-0020]

Licence ..................................................................................................................................... [9-0030]

Some Examples of Easements ....................................................................................................... [9-0040]

Currency of Easement ......................................................................................................................... [9-0050]

Restrictive Covenants .......................................................................................................................... [9-0060]

Easement to Self ................................................................................................................................. [9-0070]

Legislation ................................................................................................................................................ [9-1000]

Reference to the registrar of titles in the Land Title Act 1994 and Land Act 1994

Practice

Creation of Easement .......................................................................................................................... [9-2000]

Easement Created by Grant ........................................................................................................... [9-2010]

Definition by Plan ...................................................................................................................... [9-2020]

Easement Created by Resumption.................................................................................................. [9-2040]

Easement Created by a Court Ordering a Statutory Right of User .................................................... [9-2050]

Restriction as to Height, Depth or Volume ............................................................................................ [9-2070]

Approval of Planning Body .................................................................................................................. [9-2080]

Consent to Easement by Lessee .......................................................................................................... [9-2082]

Consent to Easement for State Land ................................................................................................... [9-2083]

Easement Executed by the Body Corporate for a Community Titles Scheme ......................................... [9-2085]

Easement Granted by Party to Itself ..................................................................................................... [9-2090]

Easement Granted to Lessee ............................................................................................................... [9-2100]

Easement Granted by Lessee of a Freehold Lease ............................................................................... [9-2105]

Easement Dedicated as a Road ........................................................................................................... [9-2110]

Resumption of Land ............................................................................................................................. [9-2120]

Easement Over Non-Freehold Land and Freehold Land ....................................................................... [9-2140]

State Land Easement – Action When Land is Subsequently Made Freehold .......................................... [9-2150]

New Easement Over Land to be Dedicated for Public Use .................................................................... [9-2155]

Easement Endorsement ...................................................................................................................... [9-2160]

Merger of an Easement within a Lot ..................................................................................................... [9-2170]

Easement in Gross .............................................................................................................................. [9-2180]

Easement Created Pursuant to s. 437A of the Petroleum and Gas (Production and Safety) Act 2004 ..... [9-2185]

Modification or Extinguishment of Easement by Surrender

By Order of the Court ..................................................................................................................... [9-2190]

Forms

General Guide to Completion of Forms................................................................................................. [9-4000]

Guide to Completion of Form 9

General .......................................................................................................................................... [9-4010]

Item 1 ............................................................................................................................................ [9-4020]

Item 2 ............................................................................................................................................ [9-4030]

Item 3 ............................................................................................................................................ [9-4040]

Item 4 ............................................................................................................................................ [9-4050]

Item 5 ............................................................................................................................................ [9-4060]

Item 6 ............................................................................................................................................ [9-4070]

Item 7 ............................................................................................................................................ [9-4080]

Item 8 ............................................................................................................................................ [9-4090]

Case Law

Re Broons [1989] 1 Qd R 315 .............................................................................................................. [9-7000]

Re Ellenborough Park [1956] 1 Ch 131 ................................................................................................ [9-7020]

Fees ......................................................................................................................................................... [9-8000]

Cross References and Further Reading ..................................................................................................... [9-9000]

Notes in text ........................................................................................................................................ [9-9050]

Updated: 21 June 2021 9–1

Part 9 – Easement

General Law

In this part, unless otherwise stated, a reference to a lot means:

• a freehold lot;

• land granted in trust under the Land Act 1994; or

• non freehold land (including any lease of non-freehold land or sublease of non-freehold

land) other than a road;

and

a reference to a registered owner or owner means:

• a registered owner of a freehold lot or interest; or

• a holder of land granted in trust under the Land Act; or

• a holder of non freehold land (including any lease of non-freehold land or sublease of

non-freehold land) other than a road.

The Nature of Easements [9-0000]

An easement is a right annexed to land to utilise other land in a particular manner. It does not

involve the taking of any part of natural produce of the land or any part of its soil. It may,

however, prevent the owner of the other land from utilising his/her land in a particular manner

(Halsbury’s Laws of England (4th edn, 1975) Volume 14, page 4).

An example of an easement is where one owner (of the ‘burdened lot’) allows another owner (of

the ‘benefited lot’) to pass over his/her land.

The land advantaged by the easement is called the ‘benefited lot’ or ‘dominant tenement’. The

land over which the easement is granted is called the ‘burdened lot’ or ‘servient tenement’. The

benefit of an easement runs with the benefited lot, i.e. it passes from one owner to the next, and

the burden of the easement runs with the burdened lot. Therefore, all future owners of the

burdened lot are bound by the easement, unless it is surrendered or extinguished.

Generally, for an easement to exist there must be a benefited and a burdened lot. The exception

to this is the case of an ‘easement in gross’ (where there is a burdened lot only) to serve the

purposes of local government or a government instrumentality.

An easement (other than an easement in gross) must accommodate the benefited lot and

contribute to the full enjoyment of the benefited lot.

Re Ellenborough Park [1956] 1 Ch 131 is the landmark case which established the essential

characteristics of an easement, which are:

(a) There must be a benefited lot and a burdened lot.

(b) An easement must ‘accommodate’ the benefited lot.

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(d) A right over land cannot amount to an easement unless it is capable of forming the

subject matter of a grant.

Note:

(i) As previously mentioned, easements in gross are not required to exhibit the

characteristics in (a) and (b) above.

(ii) Section 86 of the Land Title Act 1994 and s. 367 of the Land Act 1994 allow easements

to be granted if the benefited and burdened lot are owned by the same person.

It is sometimes a matter of great difficulty to determine whether a particular ‘right’ is capable of

forming the subject matter of a grant. Some examples will demonstrate this:

• an easement over the whole of the land is capable of forming the subject matter of a

grant;

• but it cannot rob the owner of the servient tenement of the reasonable use of their land

(Weigall v Toman [2008] 1 Qd R 192.);

• a right to provide a wind break is capable of forming the subject matter of a grant (Ford

v Heathwood [1946] QWN 11);

• but a right to privacy is not (Brown v Flower [1911] 1 Ch 219).

Many other examples could be given of these difficulties.

A further difficulty arises in attempting to distinguish easements from other rights.

Easements Distinguished from Other Rights

Appurtenant or Natural Rights [9-0010]

These rights arise at common law as an incident of land ownership and include:

• a right to support and bind in its natural state; and

• a right to surface water.

Unlike an easement, these rights will not of themselves be an interest in land.

Profits a prendre [9-0020]

That is, a right to remove soil, produce or animals from the land.

These interests arise by agreement and relate to the right to enter upon land and extract or

remove part of its substance, for example, sand, gravel, trees etc (see part 29 –

Profits a prendre). They may be granted to any person, not just another property owner.

Licence [9-0030]

An agreement whereby an owner permits another person to act in a way which would otherwise

involve trespass or nuisance is a licence. A licence:

• is a personal right and not an interest in land; and

• falls short of a grant of exclusive use.

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Some Examples of Easements [9-0040]

The easement right must be for an acceptable purpose which is capable of precise definition.

Some easements that are regularly created include easements:

• of right of way for access;

• of support of buildings;

• for party (or shared) walls;

• for drainage or sewerage reticulation;

• for water storage/supply;

• of retention of light or air;

• for electricity transmission;

• for encroachment;

• for eavesdrop.

Examples of frequently encountered purposes which are not acceptable are ‘view’ or

‘environmental’ purposes. An easement may be granted for more than one purpose.

The right granted must not be vague, imprecise or indefinite and must be for a matter which is

capable of being the subject of a grant.

Whilst the category of easements is not closed, it has been stated that it will be unlikely that any

easements of a new nature will be readily recognised at law, particularly in circumstances where

they would be of a character of the owner agreeing not to exercise some of the owner’s rights of

ownership (see Phipps v Pears [1965] 1 QB 76).

Currency of Easement [9-0050]

Easement Granted for a Term

An easement, unless otherwise stated, is granted in perpetuity. However, easements can be

granted for life only, for a term of years or for some other period, such as until the happening of

an agreed upon event. For example, if the grantee is a lessee, the easement will expire on the

termination of the lease.

Easement to take effect in the future

An easement that is to take effect at some future time, can not be registered. Under the

provisions of s. 85B of the Land Title Act 1994 or s. 366 of the Land Act 1994, on registration of

an easement, an easement is created and hence the grantee would have a title to this interest in

the easement. However, in this case the grantee has no interest in the easement because the

easement has not yet come into existence. Further, until the easement comes into effect:

• there is no dominant tenement (benefited lot) nor is there a servient tenement (burdened

lot); and

• the dominant tenement is not accommodated nor benefited by the easement.

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This means that until the easement operates as an easement, characteristics essential to an

easement are not present, and no easement exists.

Restrictive Covenants [9-0060]

Except as provided in part 6 Division 4A of the Land Title Act 1994 (Covenants), a restriction

on a user of land is not capable of being registered in Queensland (s. 4 of the Property Law Act

1974). This prohibits the registration of covenants contained in an easement that restrict

registered owners from exercising a right that they would otherwise be entitled to exercise as

owner of that land.

However, in some cases the subject matter of the restriction may be capable of sustaining an

easement (eg a right of support for buildings). In these cases, an appropriately drawn easement

could be registered in the Freehold Land Register and would grant an interest in land.

Easement to Self [9-0070]

A person may grant an easement to himself/herself as owner of both the benefited and burdened

lots (s. 86 of the Land Title Act 1994 or s. 367 of the Land Act 1994).

Legislation [9-1000]

Reference to the registrar of titles in the

Land Title Act 1994

and

Land

Act 1994

Refer to [0-8100] and [0-8200].

Practice

Creation of Easement [9-2000]

Easements are created:

(a) by a grant of easement under the provisions of Part 6 Division 4 of the Land Title Act

1994 and Part 4 Division 8 of the Land Act 1994;

(b) by resumption of land, generally under the provisions of the Acquisition of Land Act

1967;

Act 1974; or

(d) in the past, by an ‘Old System’ deed.

Easement Created by Grant

[9-2010]

An owner of a lot or lessee of a registered freehold lease may grant an easement over his/her lot

or lease either for the benefit of an owner of another lot (the benefited lot) or freehold lease, or

to a body such as a local government. The latter is an example of an easement in gross, where

there is only a burdened lot and not a benefited lot. Under s. 82 of the Land Title Act 1994 or

s. 362 of the Land Act 1994, easements are created upon the registration of an easement. The

easement is a Form 9 – Easement.

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Definition by Plan [9-2020]

An easement may only be created by registering an easement and the easement must state the

nature of the easement and its terms, the land to be benefited and the land to be burdened.

An easement must be defined by a registered survey plan or explanatory format plan before the

easement (Form 9 – Easement) can register (s. 83(1)(a) of the Land Title Act 1994 or

s. 363(1)(a) of the Land Act 1994). This requirement does not apply to an easement over the

whole of a lot.

A possible exception might be an easement to a public utility provider over large areas of

undeveloped lands. In these cases, identification by a sketch certified by a licensed surveyor

may, at the Registrar’s discretion, be sufficient.

However, an easement is not created on the registration of an easement plan. An easement is

created only on the registration of the Form 9 – Easement, or a Form 14 – General Request if

the easement is created by resumption.

The easement must set out the nature of the easement and its terms and specify the benefited lot

and the burdened lot. This latter requirement does not of course apply to an easement in gross.

A plan designating an easement must include the words ‘proposed easement’ if it is lodged

without the easement. When the plan and easement are lodged at the same time, the word

‘proposed’ should not be shown on the plan. The designation of proposed easement does not

create an easement and is not evidence of a present intention to create an easement.

Plans for easement purposes must comply with directions 4.8.2, and either direction 6, 8 or 10

of the Registrar of Titles Directions for the Preparation of Plans (see also part 21 – Plans and

Associated Documents, esp [21-0020] and [21-2080]).

Any easement whether proposed or created by registration of an easement will not be affected

by a subsequent plan of subdivision, unless the easement is affected by the boundaries of that

survey. The effect of this is that where a subsequent plan has been registered cancelling a lot

over which an easement plan has been surveyed, that easement area, whether granted or not,

may subsequently be granted or further granted, provided that the boundaries of the easement

area have not been altered or amended in any way and are not intersected by a new lot boundary

on any further plan of subdivision.

Lodgement fees are payable and a duty notation is required.

Easement Created by Resumption

[9-2040]

Many easements in gross are created by way of resumption under the provisions of the

Acquisition of Land Act 1967. This Act authorises constructing authorities to acquire an

easement. A ‘constructing authority’ is defined in the Act as the State or a local government or

any other person authorised by legislation to acquire land. This power enables constructing

authorities to acquire an easement without affecting a pre-existing easement.

Under the Land Act 1994, the Governor in Council can resume an easement over a holding.

Under the Act, the Governor in Council can also resume an easement on behalf of a

constructing authority. Under the Lands Acquisition Act 1989 (Cth), the Commonwealth has the

power to resume an easement.

Such easements are created on the registration of a Form 14 – Request to Register a

Resumption, which is lodged with a copy of the gazetted proclamation of the resumption, or,

where the Brisbane City Council is resuming the land, a copy of the gazetted notification of

resumption. An easement plan is lodged prior to the Form 14.

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Lodgement fees are payable.

Easement Created by a Court Ordering a Statutory Right of User

[9-2050]

A statutory right of user is defined in s. 180 of the Property Law Act 1974 as a right of way,

access to or entry upon land. The imposition of a statutory right of user occurs when a court, on

the application of the registered owner of the proposed benefited lot, orders that the registered

owner of the proposed burdened lot provide an easement to the owner of the benefited lot. The

conditions under which a statutory right of user can be imposed are set out in s. 180 of the

Property Law Act.

The registration of an easement created by a statutory right of user is usually effected in the

same manner as an easement created by an express grant. That is, a survey plan of the easement

and an easement in Form 9 are lodged. The court order should be produced as evidence.

However, any court order contrary to these requirements must be referred to the Registrar for

consideration.

Where there is no person with the necessary capacity to accept the imposition of the easement

by the court, the court has power to order any person to execute any instrument (s. 180(5) of the

Property Law Act). This includes the execution of the plan of survey, in order to give effect to

the easement as ordered. Usually, the Registrar of the Court is ordered to execute the easement

documentation.

[9-2060] deleted

Restriction as to Height, Depth or Volume [9-2070]

Easement Over the Whole of a Lot

Where an easement is over the whole of a lot and the easement is not defined on a survey plan,

but is restricted to a specified height above or below a horizontal plane or between horizontal

planes, the height restrictions must refer to Reduced Levels on Australian Height Datum (RL on

AHD) and be shown in Item 2 of Form 9 – Easement. For example:

2. Description of Easement/Lot on Plan Title Reference

Servient Tenement (burdened land)

LOT 1 ON RP145897 (Restricted to the land 14500101

between RL1 and RL5 on AHD)

Where an easement over the whole of a lot is restricted, and the easement is defined on a survey

plan, the restriction must be shown on the face of the plan. Item 2 of the Form 9 – Easement

must not make reference to the RL on AHD. The following two examples indicate how the

restriction may be described in Item 2 of the Form 9 – Easement:

2. Description of Easement/Lot on Plan Title Reference

Servient Tenement (burdened land)

Easement X (Restricted) in Lot 1 on SP111222 on 14500101

SP123456

2. Description of Easement/Lot on Plan Title Reference

Servient Tenement (burdened land)

Easement X (Restricted) on SP123456 14500101

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Where an easement over the whole of a lot is restricted by an inclined plane or a series of

different horizontal planes, a volumetric plan depicting the easement is required.

Easement Over Part of a Lot

Where an easement is over part of a lot and is restricted, a survey plan in either standard or

volumetric format is required. If the easement, depicted on a standard format plan is restricted,

the restriction must be shown on the face of the plan. Item 2 of the Form 9 – Easement must not

make reference to the RL on AHD. The following two examples indicate how the restriction

may be described in Item 2 of the Form 9 – Easement:

2. Description of Easement/Lot on Plan Title Reference

Servient Tenement (burdened land)

Easement X (Restricted) in Lot 1 on SP111222 on 14500101

SP123456

2. Description of Easement/Lot on Plan Title Reference

Servient Tenement (burdened land)

Easement X (Restricted) on SP123456 14500101

Approval of Planning Body [9-2080]

Easements generally do not require the approval of the planning body. However, easements that

give access to a lot from a constructed road require the plan of survey depicting the easement to

be approved by the planning body. For information relating to the required planning body

approval of the plan of survey depicting an easement giving access to a lot from a constructed

road see part [21-2080].

Consent to Easement by Lessee [9-2082]

In view of the provisions of s. 184(1) of the Land Title Act 1994 or s. 302(2) of the Land Act

1994, a new easement requires the consent of every affected lessee of a lot burdened by the

easement. The consent must be given on a Form 18 – General Consent and be deposited with

the Form 9 – Easement.

Consent to Easement for State Land [9-2083]

In view of s. 363(1)(c) of the Land Act 1994, an easement may be registered only if the chief

executive has given written approval to the easement. The approval must be given on a

Form 18 – General Consent and be deposited with the Form 9 – Easement.

Easement Executed by the Body Corporate for a Community Titles

Scheme

[9-2085]

When the Body Corporate for a community titles scheme executes an easement, a copy of the

resolution, in accordance with the scheme’s regulation module, must be deposited with the

easement.

Easement Granted by Party to Itself [9-2090]

An easement from a person to himself/herself created by registering an easement under Part 6

Division 4 of the Land Title Act 1994 or Part 4 Division 8 of the Land Act 1994 can include

covenants, as s. 82(3) of the Land Title Act or s. 362(2) of the Land Act require the easement to

specify ‘the nature of the easement and its terms’. The covenants would only be enforceable

when the benefited and burdened lots were no longer in common ownership. Section 50 of the

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Property Law Act 1974 makes covenants enforceable by a person against himself/herself and

one or more other persons, but not covenants between a person and himself/herself alone.

Easement Granted to Lessee [9-2100]

An easement can be given by a lessor to a lessee over land not included in the lease. In this

respect, the easement would be cancelled when the lessee surrenders his/her interest in the lease.

Once the lease expires, so does the interest in the easement. There is no need for an easement to

a lessee of an expired lease to be formally surrendered.

Easement Granted by Lessee of a Freehold Lease [9-2105]

An easement can be granted by a lessee of a freehold lease during the term of a lease.

A registered easement, to the extent it benefits or burdens a registered freehold lease ends when

the lease ends (s. 90A(1) of the Land Title Act 1994).

The Registrar may remove an easement that has ended from the Freehold Land Register

(s. 90A(3) of the Land Title Act).

If a registered freehold lease is surrendered in part, to the extent the registered easement benefits

or burdens the part of the lease that was surrendered, the easement ends (s. 90A(2) of the Land

Title Act).

An easement that burdens part or the whole of a lease of land (as identified at Item 3 of the

Form 9 – Easement) that is over part of the lot, must be defined by a registered survey plan or

explanatory format plan before the easement can register. This requirement does not apply to an

easement over a lease, which is of the whole of a lot.

An easement that burdens part or the whole of a building in a lease (as identified at item 3 of the

Form 9 – Easement) must be defined by a registered survey plan or explanatory format plan

before the easement can register.

Easement Dedicated as a Road [9-2110]

For information on easement dedicated as road see part 21 – Plans and Associated Documents,

esp [21-2230].

Resumption of Land [9-2120]

For information on easement affected by resumption see [14-2320].

[9-2130] deleted

Easement Over Non-Freehold Land and Freehold Land [9-2140]

Easements can be registered over non-freehold land.

Where one of the lots in an easement is non-freehold land and the other lot is freehold land, the

easement is registered in both the Freehold Land Register and the relevant State Land Register.

Only one copy of the easement is required and normal registration fees are payable.

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State Land Easement – Action When Land is Subsequently Made

Freehold

[9-2150]

Where an easement has been registered and both the benefited and burdened lots are State

tenure land, and one of the parcels is subsequently freeholded, the dealing number is carried

forward to the deed of grant created in the Freehold Land Register. This number is then carried

forward to the indefeasible title created for the lot.

Prior to November 1995, the procedure was for the State land administration office to forward

the original easement to the land registry for notation on the original deed of grant. The

easement received a land registry dealing number for filing purposes. The original dealing

number allocated by the State land administration office was also referred to in the endorsement

recorded on the deed of grant.

New Easement Over Land to be Dedicated for Public Use [9-2155]

Where an easement to be registered over land that is to be dedicated for public use on

registration of a plan of survey, and the easement is depicted on that plan, the easement may

only be lodged:

• after the easement has been consented to by the chief executive;

• the plan has been registered; and

• the title for the reserve or unallocated State land has been created.

On the plan, the easement must be referred to as ‘proposed’. The consent must be deposited

with the easement when it is lodged.

The easement must be referred to State Land Asset Management of the department prior to

lodgement to request that the chief executive’s consent be given.

Easement Endorsement [9-2160]

Benefit easements are endorsed on the benefited lot as, e.g. ‘Easement No [number] benefiting

the land over easement A on RP 123457’.

Burden easements are endorsed on the burdened lot as, e.g. ‘Easement No [number] burdening

the land to Lot 1 on RP 145762 over Easement A on RP 123457’.

If the benefited lot is amalgamated with land that does not have the benefit of the easement, the

endorsement of the easement on the new indefeasible title created will state that the easement is

to only part of the lot.

Care should be taken to ascertain if the endorsement on the benefited lot contains a ‘part of’

notation, in which case any subsequent survey of that lot will require the allocation of the

benefit in whole or part to any new lots created by that survey.

If a burdened lot is the subject of a plan of subdivision, then the easement will only be recorded

on the titles for any new lots through which that easement passes.

Merger of an Easement within a Lot [9-2170]

If the Registrar creates a single indefeasible title for a number of lots and those lots comprise

both the dominant and servient tenements of an easement, the easement is extinguished by

virtue of s. 87(b) of the Land Title Act 1994.

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Similarly, if lots that contain both the dominant and servient tenements of an easement are

amalgamated into one lot by survey, on creation of the indefeasible title for the amalgamated lot

the easement is extinguished by virtue of s. 87(b) of the Land Title Act.

Under the provisions of s. 368(2) of the Land Act 1994, if the same person becomes the trustee,

lessee or licensee of the land benefited and burdened by an easement, the easement is

extinguished only if:

• the trustee, lessee or licensee asks the chief executive to extinguish the easement; or

• the land benefited and the land burdened are amalgamated.

Easement in Gross [9-2180]

An easement in gross is only registered against the burdened lot and is granted to public utility

providers under s. 81A of the Land Title Act 1994 or Schedule 6 of the Land Act 1994. Public

utility providers are:

(a) the State or another entity representing the State;

(b) the Commonwealth or another entity representing the Commonwealth;

(d) a person authorised by law to provide a public utility service;

(e) a person authorised under an Act to provide a public utility service;

(f) an entity approved by the Minister as suitable to provide infrastructure for use by

another entity in the provision of a particular public utility service;

(g) a person approved by the Minister as suitable to provide a particular public utility

service; and

(h) a mill owner, but only for the registration of a cane railway easement.

An easement may only be registered in favour of a person mentioned in (g) above if it is for the

public utility service mentioned.

Public utility easements may only be created in favour of a public utility provider for:

(a) right of way;

(b) drainage or sewerage;

service;

(d) water storage; or

Note – The term ‘water storage’ relates to the inundation of water upstream of a weir or

the barrier of a dam outside the storage area at full supply level. The easement

instrument must include a ‘sketch’ that shows the extent of inundation. This is to ensure

that the owner of the land or any interested party is able to establish the limits, on the

land, of inundation.

(e) an infrastructure corridor; or

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(f) a purpose mentioned in s. 125(1) of the State Development and Public Works Act 1971;

Note – A public utility easement for the purposes (e) and (f) must be granted to only

The Coordinator General.

(g) cane railway; or

Note – A public utility easement for cane railway must be granted to a mill owner and

only for a purpose for which a cane railway easement may be granted under the Sugar

Industry Act 1999, for example, to facilitate harvest of cane and supply of cane to any

mill or between any mills.

(h) public thoroughfare.

Note – A public utility easement for ‘right of way’ for the public must be a public

thoroughfare easement created in favour of the State or a local government only, and

the use of the easement is limited to pedestrian access, cyclists and vehicles reasonably

necessary for the building and maintenance of the easement.

A combination of these purposes is allowable in a single easement. However, public utility

easements given to a person approved by the Minister may only be for the service approved by

the Minister.

Examples of easements in gross are easements given to local governments for drainage and

sewerage purposes or to electricity authorities for the supply of electricity.

As with other easements, there must be an easement plan unless:

(a) the easement is over the whole of a lot; or

(b) the easement is to an electricity authority over a large area of undeveloped land, in

which case, a sketch plan approved by the Registrar may be sufficient; or

the extent of inundation behind the weir. The ‘sketch’ may be in the form of a sketch,

plan or map.

Easements in gross over part of a lot may only be created if a plan of survey designating the

easement area and an easement are registered in accordance with s. 82(1) of the Land Title Act

or s. 362(1) of the Land Act. The easement must be executed by the owner of the lot being

burdened and must specify the nature of the easement and its terms.

A public utility easement for water storage may only be registered over the whole of the land.

In easements taken by resumption, the easement plan is signed by the constructing authority.

An easement in gross may contain multiple servient lots in different ownerships. The grantors

should be separately described in Item 1 of the Form 9 – Easement, eg ‘AB (Parcel 1), CD

(Parcel 2), EF (Parcel 3), etc’ and the descriptions of the servient tenements in Item 2 should be

similarly identified.

As s. 60(1) of the Land Title Act provides that ‘A lot or an interest in a lot may be

transferred…’. An easement in gross may be transferred from one public utility provider to

another. However, this does not apply to easements with both dominant and servient tenements

as in those cases the benefit and burden pass with the ownership of the land.

Part 9–Easement Land Title Practice Manual (Queensland)

Updated: 21 June 2021 9–12

A public utility easement under the Land Act may be transferred to another public utility

provider.

Except for a public thoroughfare easement, s. 85B of the Land Title Act or s. 366 of the Land

Act authorises the registered owner of a lot burdened by a public utility easement to recover a

reasonable contribution towards the upkeep of the easement from the public utility provider. It

also allows for the liability to be amended or excluded by agreement.

Lodgement fees are payable on an easement in gross to a public utility provider and a duty

notation is required.

Easement Created Pursuant to s. 437A of the

Petroleum and Gas

(Production and Safety) Act 2004

[9-2185]

Section 437A of the Petroleum and Gas (Production and Safety) Act 2004, enables the creation

of an easement to benefit the holder of a pipeline licence under that Act, by registering an

instrument under the Land Title Act 1994 or a document under the Land Act 1994 to create the

easement.

The Land Title Act, part 6, division 4, or the Land Act, chapter 6, part 4, division 8 applies to

the easement as if:

a) it were a public utility easement; and

b) the pipeline licence holder were a public utility provider.

The completion of the Form 9 – Easement is the same as an Easement in Gross except for Item

7 – Purpose of Easement which should include wording similar to the following:

• Gas pipeline purposes pursuant to Pipeline Licence No [insert number] granted under

the Petroleum and Gas (Production and Safety) Act.

A copy of the pipeline licence must be deposited with a Form 9 – Easement, or alternatively

Item 7 may refer to a dealing number where the evidence was previously deposited.

An easement created under s. 437A of the Petroleum and Gas (Production and Safety) Act may

be transferred to another pipeline licence holder. A Form 1 – Transfer of the easement and a

copy of the approval by the State authorising the transfer must be deposited. For information

about depositing supporting documentation see [60-1030].

An easement in favour of a public utility provider as defined in s. 81A of the Land Title Act or

in Schedule 6 of the Land Act may be transferred to a pipeline licence holder under the

Petroleum and Gas (Production and Safety) Act. A copy of the pipeline licence and a letter on

the relevant firm’s letterhead confirming that the pipeline licence relates to the easement shown

in Item 1 must be deposited with a Form 1 – Transfer, or alternatively Item 5 may refer to a

dealing number where the evidence was previously deposited.

Lodgement fees are payable and a duty notation is required.

Modification or Extinguishment of Easement by Surrender

By Order of the Court [9-2190]

Section 181 of the Property Law Act 1974 enables the court to modify or wholly or partially

extinguish an easement. The court has power to:

Part 9–Easement Land Title Practice Manual (Queensland)

Updated: 21 June 2021 9–13

(a) direct a survey of the land to be made and a plan of survey to be prepared;

(b) order any person to execute any instrument/s in registrable form to give effect to the

order; and

If the court orders that the applicant is to execute instrument/s or document/s for giving effect to

the order, the Registrar’s requirements in the following cases are set out below:

(a) If the court order alters the easement in any way other than by a reduction or partial

extinguishment of the easement, that is, it relocates all or part of the easement, then the

following is required:

(i) lodgement of a Form 10 – Surrender of Easement for the existing easement;

(ii) lodgement of a survey plan of the new easement;

(iii) lodgement of a Form 9 – Easement for the new easement; and

(iv) a copy of the court order if any person other than the registered proprietors of

the benefited and burdened lots have executed any instrument.

(b) If the court order modifies some or any of the covenants of the easement, then a

Form 14 – General Request to register the order of the court is lodged, together with a

copy of the order.

Easement to partially extinguish the easement is lodged, together with a plan of survey

of the area of the burdened lot being extinguished bound into the Surrender. A copy of

the court order is also required.

(d) If the court order is for the full surrender of the easement, then a Form 10 – Surrender

of Easement is lodged. A copy of the court order is required if any person authorised by

the court, other than the registered proprietor of the lots has executed any instrument or

document.

For information about depositing supporting documentation see [60-1030].

However, if the court makes a direct order of extinguishment or modification, a Form 14 –

Request to Register Court Order is required.

See also part 10 – Surrender of Easement, part 13, esp. [13-0020] and part 14 – General

Request, esp [14-2430].

Forms

General Guide to Completion of Forms [9-4000]

For general requirements for completion of forms see part 59 – Forms.

QUEENSLAND TITLES REGISTRY EASEMENT FORM 9 Version 4

Land Title Act 1994 and Land Act 1994 Duty Imprint Page 1 of 1

1. Grantor Lodger (Name, address, E-mail & phone number) Lodger

CLINTON & ASSOCIATES Code

WILLIAM JOHN SMITH and MARY ISABELL SMITH SOLICITORS 94

391 QUEEN STREET

BRISBANE QLD 4000

info@clintons.com.au

(07) 3228 3349

2. Description of Easement/Lot on Plan Title Reference

Servient Tenement (burdened land)

EASEMENT A ON RP145897 14500101

Dominant Tenement (benefited land)

LOT 140 ON RP103010 13429151

# Insert “Not applicable” if easement in gross

3. Interest being burdened #4. Interest being benefited

FEE SIMPLE FEE SIMPLE

# Insert “Not applicable” if easement in gross

5. Grantee Given names Surname/Company name and number (include tenancy if more than one)

LAWRENCE ARTHUR MORGAN

6. Consideration 7. Purpose of easement

$1.00 RIGHT OF WAY

8. Grant/Execution

The Grantor for the above consideration grants to the Grantee the easement over the servient tenement for the purpose

stated in item 7 and the Grantor and Grantee covenant with each other in terms of:- *the attached schedule; *the

attached schedule and document no. ……………………..; *document no. ……………………..

* delete if not applicable

Witnessing officer must be aware of his/her obligations under section 162 of the Land Title Act 1994

J I Clinton

...................................................................... signature

JONATHON IAN CLINTON W J Smith

...................................................................... full name

SOLICITOR M I Smith

…………………………………. ...................... qualification 7/10/2007 .............................................................

Witnessing Officer Execution Date Grantor’s Signature

(Witnessing officer must be in accordance with Schedule 1

of the Land Title Act 1994 eg Legal Practitioner, JP, C Dec)

V N Stinson

...................................................................... signature

VALDA NORMA STINSON

...................................................................... full name

JUSTICE OF THE PEACE (C.DEC)

42345 L A Morgan

...................................................................... qualification 10/10/2007 .............................................................

Witnessing Officer Execution Date Grantee’s Signature

(Witnessing officer must be in accordance with Schedule 1

of the Land Title Act 1994 eg Legal Practitioner, JP, C Dec)

Part 9–Easement Land Title Practice Manual (Queensland)

Updated: 21 June 2021 9–15

Guide to Completion of Form 9

General [9-4010]

A Form 9 is used when an easement is granted after the registration of a plan under Part 6,

Division 4 of the Land Title Act 1994 or Part 4 Division 8 of the Land Act 1994.

An easement may be granted for the same purposes and covenants in one easement by the

registered owners of the following lots:

(a) one servient lot to one dominant lot;

(b) multiple servient lots in different ownership to one dominant lot; and

In the case of (b), the grantors should be separately described in Item 1 of the Form 9 as ‘AB

(Parcel 1), CD (Parcel 2), EF (Parcel 3), etc’ and the descriptions of the servient tenements in

Item 2 should be identified by parcel numbers.

In the case of (c), the grantees should be separately described in Item 5 of Form 9 as ‘AB

(Parcel 1), CD (Parcel 2), EF (Parcel 3), etc’ and the description of the dominant tenements in

Item 2 should be identified by parcel numbers.

Item 1

[9-4020]

Insert the full name of the grantor of the easement, i.e. the registered owner of the burdened lot

or lessee of the freehold lease. If the grantor is:

(a) A trustee or personal representative, this information should appear at Item 1. For

example, ‘as trustee under Transfer to Trustees No [number]’, or ‘as personal

representative of the estate of [name of deceased] deceased’. A trustee or personal

representative can grant an easement by virtue of s. 33(1)(h) of the Trusts Act 1973.

(b) A body corporate for a community titles scheme, the following words must be inserted

‘Body Corporate for [name of scheme] community titles scheme [scheme number]’, e.g.

‘Body Corporate for Seaview community titles scheme 1234’.

grantor of an easement. However, this does not affect the court’s ability to order a

statutory right of user over land where one of or the sole registered owner is a minor

(s. 180 of the Property Law Act 1994).

(d) A mortgagee in possession, the mortgagee may grant an easement for right of way or

drainage under s. 83(1)(a) of the Property Law Act or as defined in the mortgage. A

declaration as to default and service of a notice of demand would be required to

accompany the Form 9.

(e) A lessor (registered owner), the lessor may grant in a separate easement, to his/her

lessee, an easement over land not covered by the lease.

(f) A tenant in common, all tenants in common should join in one easement and not grant

easements individually.

(g) A lessee of a registered lease, the name of the lessee should appear at Item 1.

Part 9–Easement Land Title Practice Manual (Queensland)

Updated: 21 June 2021 9–16

A grantor may, by separate easements, grant the same or different easement rights over the

burdened lot to any number of different benefited lots. However, each successive grant is

subject to the rights of the prior grantees.

Item 2

[9-4030]

Servient Tenement (burdened land)

For an easement over part of a lot, or over part of a lease of land, or over part of a lease of a

building, insert the description of the easement, e.g. ‘Easement A on SP 145897’.

For an easement over the whole of a lot, or over a lease of the whole of the lot, insert only the

description of the lot e.g. ‘Lot 1 on SP123456’.

For information about completing Item 2 for an easement restricted in height or depth or

between certain horizontal planes see [9-2070].

Dominant Tenement (benefited land)

For an easement other than an easement in gross insert description of benefited lot.

For an easement in gross ‘Not applicable’ must be inserted.

Item 3

[9-4040]

Insert the interest being burdened, e.g. ‘Fee Simple’, Lease No [number] or ‘State Tenure

No [number]’.

Item 4

[9-4050]

Insert the interest being benefited, e.g. ‘Fee Simple’ or ‘State Tenure No [number]’ or ‘Lease

No [number]’.

Note: For an easement in gross ‘Not applicable’ must be inserted.

Item 5

[9-4060]

Insert the full name and tenancy of the grantees for each benefited title.

The grantee may be any registered owner of land or a lessee of a freehold lease and this includes

a minor (with execution by the legal guardian or solicitor for the legal guardian).

If the grantees are tenants in common, there must be only one grant in their favour. Easements

cannot be granted to tenants in common individually.

The statutes are silent on the authority of a trustee to be a grantee under an easement. However,

as the benefit accrues to the trust there is nothing to prevent a trustee acting in that capacity.

If a mortgage enables a mortgagee in possession to be the grantee of an easement, a declaration

of default and service of notice of demand are required to accompany the Form 9.

Item 6

[9-4070]

Insert the monetary or other consideration.

Part 9–Easement Land Title Practice Manual (Queensland)

Updated: 21 June 2021 9–17

Item 7 [9-4080]

Insert a short description of the purpose of the easement, e.g. right of way, drainage, cane

railway etc. or, if this is not possible, indicate ‘see schedule for attachment of covenants and

description of use’.

Item 8 [9-4090]

The parties complete where indicated and execute as required.

See also part 61 – Witnessing and Execution of Instruments or Documents, esp. [61-3000].

[9-6000] deleted

Case Law

Re Broons

[1989] 1 Qd R 315 [9-7000]

This case is authority for the proposition that tenants in common who are both grantors and

grantees can grant easements to themselves which contain enforceable covenants.

[9-7010] deleted

Re Ellenborough Park

[1956] 1 Ch 131 [9-7020]

This case is the landmark case which established the essential characteristics of an easement.

Fees [9-8000]

Fees payable to the Titles Registry are subject to an annual review. Refer to the Titles Fee

Calculator available online or see [60-8000].

Cross References and Further Reading [9-9000]

Part 10 – Surrender of Easement

Part 13 – Amendment of Lease, Easement, Mortgage, Covenant, Profit a prendre or Building

Management Statement.

Part 61 – Witnessing and Execution of Instruments or Documents, esp. [61-3000]

Duncan and Vann, Property Law and Practice, Law Book Co Ltd (loose-leaf service)

Notes in text [9-9050]

Note

– This part does not apply to water allocations.

Note

– This numbered section, paragraph or statement does not apply to State land.

Note

– This numbered section, paragraph or statement does not apply to freehold land.