Victorian Consolidated Legislation

Subdivision Act 1988 - SECT 12

Plan must show easements and other rights

12. Plan must show easements and other rights



(1) A plan of subdivision or consolidation must specify-

   (a)  existing registered easements that burden the land (other than
        easements over land referred to in subsection (2)(a)(i)(ii) or (iii)),
        the purpose of the easements and either the land benefited by the
        easements or, if they were authorised by or under an Act other than
        this Act or the Transfer of Land Act 1958, the public authority,
        Council, Minister or other person in whose favour they are created;
        and

   (b)  proposed easements (other than easements over land referred to in
        subsection (2)(a)(i), (ii) or (iii)), the purpose of the easements and
        either the land which they are to benefit or, if they are authorised
        by or under an Act other than this Act or the
        Transfer of Land Act 1958, the public authority, Council, Minister or
        other person in whose favour they are to be created.

(1A) A plan of creation, variation or removal of an easement must specify the
easement to be created, varied or removed, the purpose of the easement and
either the land benefited or to be benefited or, if the creation, variation or
removal is authorised by or under an Act other than this Act or the
Transfer of Land Act 1958, the public authority, Council, Minister or other
person in whose favour the easement is or is to be created.

(1B) If land is described in a folio of the Register or in an instrument or
plan referred to in that folio as being affected by an easement but that
folio, instrument or plan does not do all or any of the following-

   (a)  describe the purpose of the easement;

   (b)  specify the land benefited by the easement;

   (c)  if the easement is created under an Act, specify the person or
        authority in whose favour it is created-

a plan must be taken to comply with subsection (1)(a) or (1A) (as the case
requires) if it specifies the land burdened by the easement and any other
information about the purpose or benefit of the easement appearing from that
folio, instrument or plan6.

(2) Subject to subsection (3), there are implied-

   (a)  over-

   (i)  all the land on a plan of subdivision of a building; and

   (ii) that part of a subdivision which subdivides a building; and

   (iii) any land affected by an owners corporation; and

   (iv) any land on a plan if the plan specifies that this subsection applies
        to the land; and

   (b)  for the benefit of each lot and any common property-

all easements and rights necessary to provide-

   (c)  support, shelter or protection; or

   (d)  passage or provision of water, sewerage, drainage, gas, electricity,
        garbage, air or any other service of whatever nature (including
        telephone, radio, television and data transmission); or

   (e)  rights of way; or

   (f)  full, free and uninterrupted access to and use of light for windows,
        doors or other openings; or

   (g)  maintenance of overhanging eaves-

if the easement or right is necessary for the reasonable use and enjoyment of
the lot or the common property and is consistent with the reasonable use and
enjoyment of the other lots and the common property.

(3) A plan may provide that some only, or none, of the easements and rights
mentioned in subsection (2) are implied over all or any of the land on the
plan.

(3A) Subsection (3) does not apply to-

   (a)  any part of a plan that subdivides a building; or

   (b)  easements or rights for existing services provided to a lot, if the
        lot and the land on which the service is located are not in common
        ownership.



(3B) There are implied over any road set aside on a plan, in favour of the
appropriate responsible public authority or Council, all easements and rights
necessary to provide water, sewerage, drainage, gas, electricity, telephone or
any other prescribed service, if the easement or right is consistent with the
reasonable use of the land as a road.

(4) Any person, Council or referral authority entitled to use an easement can
gain access to that easement over the common property and any lot for the
purpose of using the easement and must repair any damage caused in gaining
access to or using the easement.

(5) If a plan of the easement is registered the person entitled to use the
easement is not required to repair damage to buildings or works constructed or
located so as to interfere with the exercise of rights conferred by the
easement if reasonable care is taken in gaining access to and using the
easement.

(6) If an easement in favour of a public authority, Council, Minister or other
person is specified on a plan, subsection (2) does not operate to imply an
easement or right for that person for the same purpose.

(7) This section does not prevent the exercise of rights conferred by-



   (a)  an easement created in favour of a public authority, Council, Minister
        or other person otherwise than under this Act or the
        Transfer of Land Act 1958; or





   (b)  an agreement to create an easement in favour of a public authority,
        Council, Minister or other person made under an Act other than this
        Act or the Transfer of Land Act 1958.

(8) The easements specified on a plan or implied by subsection (2) are in
addition to easements under section 98(a) of the Transfer of Land Act 1958.

(9) Section 98(b) of the Transfer of Land Act 1958 does not apply to a plan
registered under this Act.