Easements on Property in NSW: What They Are, How They Affect Your Land, and the Section 88B Instrument

An easement gives someone else a legal right to use part of your land for a specific purpose. Drainage pipes running under your backyard, power lines across your property, or a shared access driveway are all typical easements. They are registered on the property's title and they stay with the land — when you buy the property, you buy the easement too.

For first home buyers in NSW, easements and restrictive covenants registered through the Section 88B instrument are two of the most commonly misunderstood encumbrances on a title. Here is what they mean in practice.

What an Easement Is

An easement is a right granted to a third party — the beneficiary of the easement — to use a defined area of your land (the burdened land) for a specified purpose. The easement is registered on the Torrens title of the burdened land and runs with the land in perpetuity unless formally extinguished.

Common easements in NSW residential property:

Drainage easement: The most common. Gives the local council, Sydney Water, or another utility authority the right to install, access, and maintain drainage infrastructure — typically large stormwater or sewer pipes — within a defined corridor of the property. The area covered by the drainage easement is effectively off-limits for structures: you cannot build a garage, pool, extension, or any permanent improvement over the drainage corridor. Council or Sydney Water can excavate to access or repair pipes at any time, and they are not required to restore landscaping to its original condition.

Easement for services: Similar to drainage easements but covering electricity, gas, telecommunications, or water supply infrastructure.

Right of carriageway (shared access): Grants a neighboring property the right to pass over part of your land to access their property, or grants you the same right over theirs. Common where properties share a driveway. The right of carriageway specifies whether both parties must contribute to maintenance.

Positive covenant: A legally binding obligation on the land owner to do something — maintain a specific fence, keep a fire hazard reduced, or maintain a structure. Positive covenants are registered similarly to easements.

The Section 88B Instrument

In NSW, easements, positive covenants, and restrictive covenants created as part of a subdivision are registered through the Section 88B instrument under the Conveyancing Act 1919. The Section 88B instrument is attached to the deposited plan that creates the subdivision — it documents all the encumbrances that apply to each new lot from the moment the plan is registered.

The Section 88B instrument is a mandatory inclusion in every NSW Contract for Sale. It is the document that tells you exactly what rights and restrictions attach to the specific lot you are buying.

For a block of land in a new estate or a house and land package in Western Sydney, the Section 88B instrument is particularly important — it contains all the developer's design controls and development restrictions that will govern what you can build and how the property must look.

Restrictive Covenants in New Estates

A restrictive covenant is a clause in the Section 88B instrument that prohibits the landowner from doing specific things. Developers impose restrictive covenants on new estate lots to maintain consistent design standards across the development.

Typical restrictive covenants in Western Sydney greenfield estates:

• Approved facade materials: Only certain cladding materials are permitted on external walls. Lightweight sheet materials or exposed brick may be prohibited. The covenant may require rendered masonry or specific product types.
• Roof pitch and materials: Minimum pitch, prohibited materials (e.g., no corrugated iron, no exposed Colorbond in certain color ranges).
• Color palette: External colors must be selected from an approved developer palette. Highly saturated or non-neutral colors may be prohibited.
• Garage width: Maximum proportion of the front facade that can be taken up by garage doors. This is intended to prevent "triple garage" streetscapes that dominate the frontage.
• Side setbacks and building envelopes: Specific setback requirements may be registered as covenants, supplementing rather than replacing the zone's planning controls.
• Prohibited uses: No poultry, no caravans or boats stored on the property, no commercial vehicle parking on the driveway.

These covenants are legally binding and enforceable by the developer (while they retain nearby lots) and subsequently by neighboring lot owners. Breach of a restrictive covenant can result in an injunction requiring you to modify or demolish non-compliant work at your cost.

Before signing a building contract for a house on a new estate lot, confirm that your chosen builder's standard home design complies with every covenant in the Section 88B. This is not hypothetical — builders with standard designs sometimes offer them across multiple estates without confirming compliance for each specific estate's covenants. A design that is CDC-approvable in general terms may still breach a developer's restrictive covenants. The covenant breach is not identified by the private certifier processing the CDC — it is a separate legal issue.

How to Find Easements on a Property You Are Considering

Easements are recorded on the Torrens title and the deposited plan. Your conveyancer will obtain a current title search and a copy of the deposited plan as part of the standard due diligence process.

The title search will show all registered encumbrances, including easements and covenants, in the dealing history. The deposited plan will show the physical location of easements on the lot — typically drawn as hatched or shaded corridors with measurements.

For an existing property, ask your building inspector to note the location of any easement or service infrastructure access points during the physical inspection. A drainage easement running along the back 3 metres of a standard 10-metre-deep Sydney lot eliminates a significant proportion of the usable backyard for structural purposes.

Practical Implications for Buyers

If you discover an easement or restrictive covenant on a property you are considering:

Drainage easement in the backyard: Quantify the affected area on the deposited plan. If you plan to build a pool, a garage, or an extension that encroaches on the corridor, those plans are not feasible. Adjust your design expectations or negotiate the purchase price to reflect the constraint.

Right of carriageway (shared driveway): Review the exact terms. Who maintains the driveway? What are the rights of each party regarding access hours or use? If the right of carriageway is wide enough, it may also affect how much of the lot is actually available for development.

Restrictive covenants on a new estate lot: Read every covenant before signing the building contract. Obtain written confirmation from your builder that their design complies. If you want to deviate from the approved palette or add a feature not contemplated by the covenants, identify this before exchange rather than after.

Positive covenants: Confirm what the ongoing maintenance obligation is. A covenant requiring you to maintain a retaining wall that supports a neighboring property is a potentially ongoing cost.

An encumbrance disclosed in the Contract for Sale cannot be the basis of a claim against the vendor after you complete the purchase — it was disclosed and you are taken to have accepted it. The time to assess its implications is before you exchange, not after.

The New South Wales First Home Buyer Guide covers easements, Section 88B instruments, and restrictive covenants in the due diligence chapter — including how to read a deposited plan, what questions to ask your conveyancer about encumbrances, and how restrictive covenants interact with the building approval process in new estates.

Most easements and covenants do not prevent a purchase from proceeding. They adjust what is possible on the land. Understanding them before you commit means you buy with accurate expectations rather than discovering the constraints after settlement.

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