Easements and restrictive covenants on residential title

TL;DR

Easements and restrictive covenants show on a NSW title and bind every future owner. An easement gives a third party (utility, neighbour, council) a right over your land; a restrictive covenant prevents you doing something (height limit, single dwelling, no subdivision). Before any DA, CDC, or build-over structure, check the title and Section 88B instrument: an easement over your sewer line or a covenant limiting height can kill a design weeks into documentation. Building over a utility easement requires separate written consent from the authority (Sydney Water, council, network provider) before you get a CC or CDC. Removing a restrictive covenant costs legal fees and can take months; the fastest path is LEP clause 1.9A which suspends a covenant automatically where development is permissible with consent under the LEP.

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What easements are

An easement is a legal right over someone else’s land. In NSW, easements are governed by the Conveyancing Act 1919 (NSW) and the Real Property Act 1900 (NSW). The land that benefits is the dominant tenement; the land that carries the burden is the servient tenement. Once registered on title, an easement binds all future owners of the burdened land automatically.

Some easements are held by a public authority (Sydney Water, Ausgrid, a local council) with no dominant tenement. These are called easements in gross and exist under section 88A of the Conveyancing Act 1919 (NSW) (verified 2026-05-09).

Positive vs negative easements

Type	What it does	Builder relevance
Positive (access, drainage, services)	Grants the holder a right to enter or use the land	Pipes, cables, access strips run through the lot. You cannot obstruct them or build over without consent.
Negative	Restricts what the servient owner can build or do (rarely framed as an easement; more commonly a restrictive covenant)	Usually a building-line or height restriction on the title. Check before designing.

Common easements on residential titles

Sewer and drainage easements are the most common. Sydney Water and councils hold easements to drain sewage and stormwater across residential lots. The easement corridor is typically 1.8 m to 3 m wide and runs through rear or side yards.

Access easements grant a right of way over part of the lot, often for rear-lot access, shared driveways, or maintenance corridors.

Electricity and communications easements are held by network operators (Ausgrid, Endeavour Energy, NBN Co, telcos) for overhead lines, underground cables, and transformer corridors.

Drainage easements permit stormwater to drain across the lot, either through constructed pipes or over the surface. The owner of the dominant tenement has a right of access to maintain the infrastructure.

How easements are created

Most easements on modern residential lots were created when the land was subdivided, using a Section 88B instrument attached to the deposited plan (per section 88B, Conveyancing Act 1919 (NSW), verified 2026-05-09). The Section 88B instrument identifies the burdened lot, the benefited party (dominant tenement or authority), and the terms. It is registered simultaneously with the plan, so it appears on title from day one.

You can search for a Section 88B instrument via NSW Land Registry Services (verified 2026-05-09). If the property pre-dates the 1960s when section 88B came into force, check Schedule 2 of the title certificate for instruments created under earlier legislation.

Restrictive covenants

A restrictive covenant is a promise registered on title that restricts how land may be used. Common covenants from residential subdivision plans include:

One dwelling only (prevents dual occupancy without first removing the covenant)
Minimum floor area or site coverage limits
Building setback or building line restrictions
Approved materials or external finishes
No commercial use

Restrictive covenants run with the land. They bind the burdened lot’s owner and all future owners, and they benefit the dominant tenement’s owner (often the neighbouring lots, or the whole subdivision). They are not the same as planning controls under a Local Environmental Plan (LEP), though they can overlap.

Positive covenants

A positive covenant (section 88EA, Conveyancing Act 1919 (NSW), verified 2026-05-09) requires the owner to do something: maintain a fence, manage stormwater, contribute to shared infrastructure upkeep. Unlike a restrictive covenant, a positive covenant imposes an active obligation on the owner. They are used heavily in stormwater management conditions for new subdivisions and in shared driveway agreements.

Building over or near easements

The rule: You cannot build a permanent structure over an easement without written consent from the easement holder. This applies to slabs, footings, structures, and in many cases retaining walls.

The consent pathway depends on who holds the easement:

Holder	Consent authority	Where to start
Sydney Water (sewer / stormwater)	Sydney Water Engineering	sydneywater.com.au build-over application
Local council (sewer / stormwater)	Council water/sewer team	Council website; each council has its own policy
Network operator (electricity / comms)	Ausgrid, Endeavour, NBN Co, etc.	Contact the relevant network operator before design
Private party (access / drainage to neighbour)	Land owner of dominant tenement	Written deed of consent

Sydney Water’s general position: it may approve structures within 10 m of stormwater assets, subject to approved engineering plans through a Water Servicing Coordinator (WSC). Building directly over a sewer rising main or gravity main with access chambers is generally refused. Where approved, concrete encasement of the affected sewer may be required at the applicant’s cost (verified 2026-05-09 from Sydney Water guidelines).

Getting DA or CDC approval does not grant approval to build over an easement. The planning approval and the utility consent are separate. Many builders discover this mid-documentation when the certifier flags the easement and the authority won’t approve the structure as designed.

Tip: Pull the title and deposited plan before concept design. If there’s an easement under the proposed footprint, redesign early or start the consent application now.

How to find what’s on your title

Order the Certificate of Title and Section 88B instrument from NSW Land Registry Services or a title search provider (InfoTrack, Titelcheck, etc.).
Check the Section 10.7 planning certificate (obtained from council): it flags heritage, bushfire, flood, and contamination overlays but does not list easements specifically.
Review the deposited plan (DP number on the title): the easement corridors are drawn on the plan. Cross-check with the 88B instrument for the terms.

Removing or modifying easements

Abandoned easements (unused for 20+ years): Apply to the Registrar-General under section 49, Real Property Act 1900 (NSW). The Registrar-General must give notice to all benefited parties and consider submissions before cancelling. The 20-year non-use period is a strong indicator but not automatic; the Registrar-General has discretion (verified 2026-05-09).

Easements modified or extinguished by court: Under section 89, Conveyancing Act 1919 (NSW), the Supreme Court can modify or extinguish an easement or restrictive covenant where (verified 2026-05-09):

the restriction has become obsolete, or
the continued existence impedes reasonable use of the land without securing practical benefit to those entitled, or
the entitled parties have agreed or abandoned the right, or
modification will not substantially injure the entitled persons.

A section 89 application is a Supreme Court proceeding. Expect solicitor fees and multi-month timelines. Get legal advice before committing.

Removing restrictive covenants: three pathways

Path	How	When it applies
LEP clause 1.9A suspension	Automatic: a covenant is suspended to the extent necessary to enable development permissible with consent under the LEP. No application needed.	DA-approved development only. Does not help CDC. Does not apply to covenants imposed by council or under a planning agreement.
Registrar-General (s.81A)	Apply to the Registrar-General to extinguish covenants about building materials, fencing, or structure value that are 12+ years old.	Narrow category. Cheap path if it applies.
Supreme Court (s.89)	Apply to Supreme Court under section 89, Conveyancing Act 1919.	Broadest remedy. Also most expensive and slow.

The NSW Land and Environment Court also has power to release, vary, or modify restrictive covenants in the course of determining a development appeal (section 39(2), Land and Environment Court Act 1979 (NSW), verified 2026-05-09 from Chehab v City of Canada Bay Council (2002) 123 LGERA 431).

Dispute paths

If a neighbour, authority, or third party is enforcing an easement in a way you dispute:

Easement terms dispute (private): NSW Supreme Court equity jurisdiction, or mediation first.
Council enforcement dispute: Can be appealed in the NSW Land and Environment Court.
Building defects relating to utility work in easement corridor: NCAT handles residential building disputes up to $500,000 (verified 2026-05-09 from NCAT). Above that: Supreme Court.

What can go wrong

Building without consent over a sewer easement. The authority finds out during the DA/CC process, requires re-design or relocation of the pipe at the owner’s cost. Projects have been stalled for six months while a sewer main is encased or relocated.
Covenant missed in due diligence. Builder prices a dual-occupancy for a client; covenant restricts to one dwelling. Removing the covenant may be impossible or take longer than the project window.
Covenant assumed to be obsolete. Old 1950s estate covenant (“no fibro”) still legally enforceable. Don’t assume age equals obsolescence.
Section 88B not checked. Access easement runs through the intended garage footprint. Discovered by the certifier at CC stage.
Positive covenant maintenance dispute. Shared stormwater pit needs maintenance. Neighbour disputes responsibility. No deed of obligation means litigation.

References

NSW Land Registry Services, Registrar General’s Guidelines: Easements and restrictions. rg-guidelines.nswlrs.com.au/deposited_plans/easements_restrictions (verified 2026-05-09)
NSW Land Registry Services, Section 88B instruments (SSIR 2024). rg-guidelines.nswlrs.com.au/deposited_plans/easements_restrictions/sec88b_instrument (verified 2026-05-09)
Conveyancing Act 1919 (NSW), sections 88A, 88B, 88EA, 89. legislation.nsw.gov.au (verified 2026-05-09)
Real Property Act 1900 (NSW), section 49 (cancellation of recordings of easements). legislation.nsw.gov.au (verified 2026-05-09)
Sydney Water, build over and adjacent to stormwater assets guidelines. sydneywater.com.au (verified 2026-05-09)
White Acre Lawyers, “Setting aside covenants to allow development to proceed”. whiteacre.com.au/setting-aside-covenants-to-allow-development-to-proceed (verified 2026-05-09)
Keystone Lawyers, “Removing an easement or restrictive covenant”. keystonelawyers.com.au/removing-an-easement-or-restrictive-covenant (verified 2026-05-09)
NSW Fair Trading: Construction essentials