Transfer of Easement:

There are two ways to create Easements; one by Council Permit under the cover of a Sealed Plan. A Right of Way (Private) is created under Council Seal (ie a Sealed Plan approved by Council) and sets the Right for private use, not Public use. The word (Private) reflects what is laid down by the relevant legislation.

The other by Transfer of Easement, without the need for Local Planning Authority approval. There is no legal reason to show the word Private. The Easement by Transfer needs a sketch plan only if being created contiguous to a boundary or if there are less than three 'bends' in the easement. Both methods of creation are equally 'legal' and form part of the second Schedule on the title to the land. The three bend 'rule' is only Titles Office policy and not prescribed; in fact if the sketch is drawn by a Surveyor they will 'stretch' the rule if needed. Of recent days, the documentation including effected titles, needs to be lodged at the Titles Office by a responsible person, such as your solicitor.

If the easement exceeds three bends then a full Plan and Survey Notes and associated costs are generated. Note this plan is not a Sealed Plan.

The endorsement of the effected owners is also required + their mortgagees. Stamp Duty may be applicable + Lands Titles Office costs.

Note that one cannot create an Easement in favour of oneself. That is to say if an owner owns two parcels and wishes to create an easement over one in favour of the other then this can only be achieved after a change of ownership.

This scenario often arises when the owner wishes to sell one parcel; the easement can still be achieved by ensuring any Contract of Sale reflects the creation of the Easement AFTER the transfer of ownership has been achieved.

If it is desired to create an Easement in favour of, say TasWater, then this can occur even though the two parcels are in the same ownership; that is to say the easement is being created in favour of a different party.

What happens if one portion is not Real Property Act (ie is General Law) and the other is Real Property Act (Torrens Title)? Lands Titles Office Practice Book para 104(e) applies.

If the title granting the Easement (the Servient Tenement) is not Real Property Act (ie General Law), then the Easement DOES NOT become attached to the Real Property Act, the Dominant Tenement. It is created and registered in the Deeds Office only. The Servient Tenement should then bring the Easement under the Real Property Act using a sec 11 application. 

Therefore any Contract that is creating an Easement must give consideration to the parent titles involved and cover the above as a clause in the contract ie the Servient Tenement ALSO is contracted to then apply under sec 11 to convert the General Law Easement to Real Property Act.

See also Creation of Easements By Order. This allows the creation of Easements across the same owner but has the possible issue of requiring advice to the local Council.