25 August 2026
4 min read
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Government agencies routinely acquire and manage land burdened by or benefiting from easements. In short, an easement is a proprietary right benefiting one parcel of land that permits specified use of another parcel of land, such as access, drainage or services. Often considerable attention is paid to the existence of the easement itself.
However, a less obvious issue often overlooked is determining who is responsible for maintaining, repairing and replacing the infrastructure associated with the easement, and who bears the cost?
What appears to be a ‘benefit’ on title can sometimes come with substantial and unexpected financial liabilities.
The starting point is always the easement instrument itself.
Most modern easements expressly deal with repair and maintenance obligations and allocate responsibility for associated costs between the benefited and burdened owners. It is increasingly common to see detailed provisions dealing with maintenance standards, access rights, indemnities, insurance requirements and cost sharing arrangements.
When drafting new easements, it is generally preferable to be as prescriptive as possible regarding these matters. While parties often focus on securing the rights created by the easement, disputes are more likely to arise years later over who is required to maintain the infrastructure and fund the work.
However, many older easements contain little or no guidance on maintenance responsibilities. In those circumstances, we can look to the common law to fill in the gaps.
A common misconception is that because infrastructure is physically located on a person's land, that person must be responsible for maintaining it.
That is not necessarily the case.
In New South Wales, where the terms of an easement are silent as to repair and maintenance obligations, neither the dominant owner (the party benefiting from the easement) nor the servient owner (the owner of the burdened land) is generally under a positive obligation to repair or maintain the subject matter of the easement (Hare v van Brugge [2013] NSWCA 74).
However, the common law recognises that the dominant owner has an implied ancillary right to enter the burdened land and undertake such repairs and maintenance as are reasonably necessary to ensure the easement remains effective.
Importantly, this is a right, not an obligation.
The servient (burdened) owner can maintain or repair improvements if they choose, just as the dominant (benefited) owner may, but if the dominant owner undertakes such works, they must bear the cost.
Another area where misconceptions frequently arise is infrastructure located within public roads and road reserves.
The assumption is often that if infrastructure is located beneath a public road, responsibility for maintaining that infrastructure must sit with the relevant local council or roads authority.
In reality, responsibility depends on a range of factors, including the ownership of the infrastructure, the statutory framework governing the asset and the rights created by any easements.
The issue was considered by the Land and Environment Court in Rouse Hill Custodian Corporation Pty Ltd v Prisma Rouse Hill Development Pty Ltd [2023] NSWLEC 48.
The applicant sought an easement to drain stormwater from its land, across a public road and ultimately through pipes into the respondent's land. The respondent argued that the existence of council-owned drainage infrastructure between the parties meant the applicant's land was not sufficiently benefited by the proposed easement.
The Court rejected that argument and confirmed that the existence of intervening public land does not prevent an easement from benefiting and burdening the relevant parcels. The critical factor was that the water being discharged originated from the applicant's land and required a legal pathway to pass across the respondent's property.
The decision highlights an important distinction. The question is not necessarily who owns the infrastructure through which water travels, but rather whose land is being served by that infrastructure.
This is a relevant consideration during acquisition due diligence or when planning large scale redevelopments. A drainage asset may run beneath a public road, but if it exists principally to service the acquiring agency's land, responsibility for future maintenance, upgrades or replacement may ultimately rest with the agency rather than the road authority.
As government agencies continue to acquire land, develop and manage substantial property portfolios, careful investigation of easement-related maintenance liabilities should form a key part of any acquisition due diligence process. Identifying these risks early can help avoid unexpected costs, inform asset management decisions and reduce the likelihood of future disputes.
If you have any questions on easements, please contact us here.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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