What is an easement?
An easement is a right attached to a parcel of land allowing the easement owner (dominant tenement) to use the land of another owner (servient tenement), in a particular manner or for a particular purpose.
Examples of easements over Crown land can include access; rights to install and operate drains; install, maintain and operate oil, gas or other pipelines and to maintain and operate electrical power lines, telephone and other cables and supporting infrastructure.
The Land Administration Act 1997
The Land Administration Act 1997 (LAA) is the State’s principle legislation dealing with administration of Crown land. The Minister for Lands is responsible for the LAA which is administered by the Department of Planning, Lands and Heritage (the Department).
Part 8 of the LAA provides for the granting and administration of easements over Crown land. Section 193 of the LAA also provides for the granting of easements over land designated for a public work, while Sections 195 and 196 of the LAA provide for creation of easements in gross and public access easements.
Types of easementsShow more
Easements granted by the Minister of Lands
The Minister for Lands has the power to grant easements over Crown land for a “specified purpose” as defined under section 144(4) of the LAA, or any other purpose the Minister sees fit.
Under section 144(1) of the LAA, where that easement extends over Crown land, the consent of every person having any interest, right, title or power in respect of that land (e.g. Native Title claimant or holder), and the consent of the management body must be obtained prior to the grant of the easement.
Easement in gross
The Minister for Lands may grant an easement without a dominant tenement (land that is not benefited by the easement). This type of easement is known as an easement “in gross.”
Easements in gross usually provide a particular right to a person or company for a specific purpose, and not as an adjoining land owner for example.
Public access easements
Section 196 of the LAA provides for creation of public access easements for the use and benefit of the general public. These can be created over Crown land or freehold land.
Easements over conditional tenure land
Under section 148 of the LAA, the holder of freehold land subject to a condition restricting the land use to a specific purpose (transferred under section 75 of the LAA) may grant an easement in favour of another person, provided they obtain the prior written consent of the Minister for Lands.
Easements over roads
Public utility service providers can place services under, on or above dedicated roads without the requirement for an easement. Easements are not usually required as the service providers are adequately protected by their own legislation in relation to issues of access and maintenance. Easements to other parties may be granted subject to the consent of either the Local Government Authority or Main Roads WA.
Easements over Class A Reserves
In addition to meeting the requirements for the grant of an easement pursuant to section 144 of the LAA, a proposed easement that burdens a Class A reserve, or portion thereof, must be tabled in both Houses of Parliament in accordance with section 44 of the LAA.
Easements granted under other legislation
The Petroleum Pipelines Act 1969
The Petroleum Pipelines Act 1969 (PPA) deals with the construction, operation and associated maintenance of pipelines throughout the State for transporting petroleum and associated operations. Sections 16-20 of the PPA provide for the granting of easements to a holder of a petroleum pipeline licence, granted under the PPA. The Department administers such easements where they affect Crown land and easements granted over Crown Land are granted by the Minister for Lands, pursuant to the PPA.
Planning and Development Act 2005
Easements in gross can be created on freehold land subdivision plans under section 167 of the PDA in favour of the following bodies:
- Local Government Authority
- Water Corporation
- Gas Corporation
- Electricity Corporation
These easements can subsist into the Crown estate subject to prior written approval obtained from the Department. Note that approval may not always be granted or may be subject to additional conditions.
Transfer of Land Act 1893 (TLA)
In certain cases, easements over Crown land may be granted under other legislation and registered under the TLA. Easements granted over freehold land may subsist into the Crown estate subject to prior written approval from the Minister for Lands. Note that approval may not always be granted or may be subject to additional conditions.
Easements to subsistShow more
Section 146 of the LAA provides that an easement granted under the LAA will continue to have effect in respect to the affected land regardless of any change in the estate or interest in that land. This means the easement continues with the land even though the land may undergo tenure changes, including transfer to freehold.
Easements that are granted in the freehold estate may carry forward even when transferring into the Crown estate. This will be subject to the prior written approval of the Minister for Lands, which may require the meeting of additional conditions or the surrender and replacement of the easement if the State is not satisfied with the easement conditions.
Removal of easementsShow more
Easements may be cancelled if not used in accordance with the conditions of the easement. Easements can also be cancelled if they no longer serve any purpose in accordance with sections 144(2), 145 and 150 of the LAA.
Easements may be surrendered by agreement of the parties.
Role of the DepartmentShow more
The Land Use Management Division of the Department is responsible for the granting and administration of easements over Crown land under part 8 of the LAA under delegation from the Minister for Lands, and for acquiring easements under part 9 of the LAA, as well as pursuant to section 16 of the PPA.
The fee for LAA easements is determined in consultation with the Valuer-General and may be payable annually, or a once off fee is set to cover administrative costs in agreed circumstances. Upon receipt of a request, an investigation will be undertaken. This involves seeking relevant approvals, consents and comments from interest holders and other relevant parties. There may be a requirement for the applicant to undertake a future act process or to negotiate an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (NTA) to address native title rights and interests. The applicant will be responsible for all costs associated with obtaining these consents or as a result of undertaking a future act or negotiating an ILUA.
Following actions to prepare a Deposited Plan, if necessary, LUM negotiates easement conditions as appropriate, prepares the easement document for execution and lodges it with Landgate for registration against the relevant title where LUM may then seek payment of any meeting costs, statutory fees and the easement registration fee.
Making an application for an easement on Crown landShow more
To make an application for an easement, the applicant should complete a Crown Land Enquiry Form (CLEF), available from the Department’s website and submit to email@example.com. The CLEF will assist in ensuring enough information is provided to facilitate an investigation by the Land Use Management Division. Alternatively, a written proposal should be sent to;
Department of Planning, Lands and Heritage
Locked Bag 2506
Perth WA 6001
An application will need to contain information detailing the requirement for the easement and the land to be affected. Plans and relevant search information should be provided where possible. If Crown land is subject to an existing interest such as a lease, the consent of that interest holder will be required.
Key elements of an application for an easement
- Deposited Plan depicting the route of the easement, if the proposed easement is over portion(s) of the burdened land
- Conditions to apply
- Stamp duty on document
- Purpose of the Easement
- Identification of the subject Crown Land
- Approvals and consents from interest holders
- Agreement to meet costs
What fees and charges will I pay?
Costs vary substantially from case to case but may consist of the following:
- Document preparation fee
- Landgate registration fee
- Easement fee
- Stamp Duty
- Preparation of a Deposited Plan, if necessary
- Other costs as required by third parties
- Costs associated with a future act process under the NTA, if required
How long will the process take?
The time taken to establish an easement varies considerably from case to case, with timelines being affected by factors including:
- consultation and ability to obtain written consents from other stakeholders/interest holders
- consideration of easement fees
- preparation of a Deposited Plan, if required changes to existing tenures
- legal complexities
- procedural requirements of the Native Title Act 1993 (Cth)