Creating a different easement over an existing easement

Hi Folks,

We own a 1500sqm vacant lot which we have had approval to subdivide into 2 lots from our local council. As a requirement we need to create a 1m wide sewer easement through an existing easement which consists of the following.
Easement for services and right of carriageway 6m wide and variable width. This existing easement is entirely within our lot but it benefits another lot below us which is owned by another party.
Question is: Can we create our sewer easement through the existing easement without the consent of the other party?
Cheers, RS

 

If the easement already allows for services why do you need to create a second easement for a specific service?

The additional easement will impinge on the l benefitted lot's right to use the easement as they would no longer have unfettered use of the easement. You would need to seek the consent of thelot benefitted to modify the existing S88B.

 

Thank for the reply SNM. The council has requested the sewer easement registered to benefit themselves. Currently the service easement only benefits the lower lot.
I have called LPI and a technical officer has been assigned to my query and will call back in the coming days to clarify the details. I'll let you know the result.
Cheers, RS

 

You might also be able to have a chat with the council officer responsible for easements. It seems strange that you need to create the easement if your not draining onto council land but across your own land.

How can the lot below yours (hydraulically disadvantanged) benefit from a pipe uphill from them? (unless I'm misreading it)

 

It's a bit Messy mate. The lot below is a golf club and they have DA approval to cut off 2 residential blocks below ours. Thus the right of carriageway through our lot is to service the soon to be newly created lots plus ensure driveway access. Power, Telstra and water will run down through the easement over our land. Their stormwater and sewer will drain to a point at the bottom of their lots where their are existing points to drain to.
Our lot is 1500sqm so I applied to subdivide it and gained approval from council but I needed to bring the sewer up through the right of carriageway to service my top lot. (the lot was subdivided across the lot so the bottom lot has no street frontage)

I called my surveyor earlier and he felt that we didn't require the golf club's approval to create the new sewer easement but he wasn't 100% sure of this. He said it was a very interesting question to ask LPI and best to get the answer in writing!!

 

That clarifies it a bit more. @bmc might be able to add their 2 cents as well regarding a cross-easement but gut feel is that as the neighbour is the dominant tenant they will need to approve a modification to the easement which has been granted just in case that they ever need to replace power/water in that location.

 

@Rockstar - I came across this linky by one of the solicitors at the LPI (but you'll have to find it).

@lixas4 might add his 2 cents too.

 

As this is a NSW question I'll let BMC answer. But i will tell you a story about my PPOR in Caulfield East (vic). We have a shared driveway with our neighbour that is split down the middle with halfed owned by us and half owned by them. My land has a carriageway easement over my half in favour of my neighbours property, and my neighbours land has one over their half in favour of us. When we subdivided our land from 1 into two, the rear lot needed to use these carriageway easements to access the rear lot. We also needed to create common property over our half and run services up to the rear lot.

The neighbours objected as dominant tenements and not allow the change of use. But they lost and we were allowed to proceed. Their was a case in qld that was relevant that i found and my planner used for arguement. I'll try and find it later and post it.

 

Good point @lixas4 - there may also be a covenant for maintenance, repair or replacement/construction of the driveway which the dominant tenement may object if it is detrimental to their use (so underboring may need to be considered to sweeten the deal).

 

Thanks for the feedback. Hopefully all will be revealed today when the LPI call me back.

A new issue has now arisen. Apparently the electricity provider has demanded their own 1m wide easement (to supply the lower lots) to be created through the right of carriageway. This can't be done without our consent!
So we will end up with multiple overlapping easements within the right of carriageway. Complex but hopefully all can be managed cooperatively.

 

@Rockstar - there's your bargaining chip. If they want power, you have the power to stop them unless they grant your cross easement. (Though an authority may do it under compulsory acquisition powers to screw you up).

 

Well, I've had verbal advice from the LPI this afternoon that I don't require the other parties' permission to create my easement as long as their right of carriageway and ability to run their own services through the corridor will be maintained - which it will. To make sure, I have followed up by emailing my proposed plan of subdivision and DA council consent showing the required sewer easement. I've asked for this to be confirmed in written advice. The LPI officer didn't guarantee this would be given so let's wait and see.
Thanks again guys. (-:

 

I would check the deed that created the easement in the first place. It will set out your rights and obligations.

 

@Rockstar
i agree you don't need to have their consent for this sewer easement over your land even if crossing existing ones. As long as you are not inhibiting the agreed use of that easement for the benefiting party. that is, you don't cut their services or block their access over the ROW. they wont have much say in it. It is your land and the adjoining lot is only granted a specific use over it.
Moving forward, sometimes council may ask for a letter (or a "Work as Executed" plan) from a Surveyor to state that all services fall within the easements before they will sign your subdivision certificate. (check your DA conditions)

agreed, this will require you consent and or any interested party on your title like the Bank. the right of way is the perfect place to run all the services.

keep us posted
BTW, is your Surveyor Registered. i would have thought he should be following up on this for you, as he will be the one preparing the DP and 88b

 

Thanks for the feedback folks. Sorry about the delay responding. I had to whizz off to Adelaide to rescue my wife from hospital. Now I am a full time carer for a couple of months while she recovers from 3 fractures in her lower right leg.!!!

Still haven't heard back from the LPI so I'll chase it up. Maybe they are reluctant to give written confirmation.

Surveyor is registered bmc but I won't be getting him to do the work till after I finish installing the new water meter, IAD and sewer extension works. I was just wanting to make sure the services installation was going to be all legitimate and indisputable.

 

Finally got written advice today from LPI today that we don't require consent from the owners of the lot below us to create the new easement over the existing easement that burdens us and benefits them. Time to get the digger in!