Owners_consent_fact_sheet

The premises on which the easement is located is called the ‘servient tenement’ or ‘burdened lot’. The
easement may restrict how the owner of the burdened lot can use the land, for example by preventing
structures being built on the land. It also may allow another party to use the part of the premises subject
to the easement consistent with the terms of the easement.

Generally, if a development application is proposed on premises that includes an easement, and the
proposed development is consistent with the terms of the easement, the owner of the burdened lot is not
required to give owner's consent.

A person (grantee) who benefits from an easement is not an owner for the purposes of the Planning Act.
If a development application is lodged for land that is burdened by an easement, the grantee’s consent
to the development application is not required.

A burdened lot owner will need to negotiate with the grantee regarding the easement arrangements if the
proposed development will affect rights or obligations under the easement. The terms of the easement
may also require permission from the grantee if a proposed development impacts on the easement,
however, any permission required under the terms of the easement is not necessary for the purposes of
the development application process under the Planning Act.

Similarly, for an ‘easement in gross’ the entity with the benefit of the easement is not the owner of the
property, consequently, the consent of the entity to an application is not required.

An ‘easement in gross’ is an easement where there is a burdened lot only and is typically used by public
utility and local government entities for drainage, water, sewer and electricity supply.

Additionally, section 65 of the Building Act requires a building development application (which may
constitute an application under the Planning Act or Building Act) on land subject to a registered
easement or certain registered statutory covenant, to have the consent (for the building work) of each
registered holder of the easement or covenant.

This consent must be provided prior to any approval being issued. These provisions only apply for
registered statutory covenants if the registered holder is the State, a statutory body representing the
State, or a local government.

The section 65 provisions exclude a building development application for a class 1, 2, 3 or 4 building on
land subject to a noise covenant if a building assessment provision is expressed to apply specifically for
the reduction in a class 1, 2, 3 or 4 building of noise coming from outside the building.

Other ownership arrangements

The following provides some other types of ownership arrangements and consent requirements:

e Leased land: owner's consent must be obtained from the lessor of the land.
e State-owned land that is leased or subleased including under the Land Act 1994: owner's
consent must be obtained from the state as the lessor of the land.

 

Version 1_10/11/2020