Infrastructure Development Code

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Easements are a common inclusion on property titles. They are often created as part of a subdivision process but can also be created outside of the subdivision process. Easements are registered on the property title and therefore are carried forward when properties are sold e.g. they are attached to the land, not the land owner.

The purpose of an easement is to create a legal entitlement for one party to obtain the partial use or enjoyment of another party’s property. Common easements include those for access and utility services location. The rights and powers created by easements are either contained in regulations or otherwise amended by the Easement certificate.

For information about the purpose and rights created by Easements, it is necessary to refer to the Easement documentation. This is referred to on the title, but the actual document is registered with Land Information New Zealand (LINZ).

Explanatory Note:
Easements are clearly shown on the Certificate of Title for the property. This provides a clear indicator to future and current property owners that there are infrastructure assets and/or access requirements applicable to the land that they own. 
An Easement provides a simpler means for Council to engage the discussion and arrange appropriate access to the property for the reasons Council needs access for. 
Councils experience is that property owners do not like having acts of law used as the primary approach to accessing their properties. Property owners are generally more receptive to the Certificate of Title documentation rather than access rights under the Local Government Act. This method can be obstructive and detrimental to Councils relationship with property owners as well as the future potential for legal fees and drawn out correspondence for instances where property owners do not believe Council has right of access.
In short, access under an easement is far simpler, cost effective and receptive than sole reliance on Local Government Act provisions therefore; it is the best method when all issues are considered.  
Anyone proposing an easement shall understand and ensure that all parties subject to a future easement will need clarity regarding their obligations within the easement. Be mindful not to create a situation in the future that creates legal, financial or other issues between the parties.

DS-1.22.1   Provision of an Easement 

It is Councils preference that public infrastructure and secondary flowpaths are is located on public land. Where an easement is proposed, discussion with Council is required prior to the detailed design phase. Designers shall clearly demonstrate that an easement is necessary in order to provide the best outcome for the design, operation and future maintenance of the infrastructure involved.

Developers and Designers shall be aware that the provision of an easement can restrict the development/building potential of the associated lot for the future property owner. 

Explanatory Note: 
Placement of public assets within private land often results in additional cost for maintenance, operation, access and causes inconvenience and frustration for Council and private property owners. 
Future development and/or building options for a private property owner can be adversely impacted due to the presence of an easement and the restrictions it can place on their desired future outcomes.

DS-1.22.2   Instances Where an Easement Is Not Appropriate 

Easements will not be accepted by Council where:

  1. The designer cannot clearly demonstrate that an easement provides the best outcome for the design situation and future operation and maintenance of the infrastructure involved.
  2. Council requires access to key operational assets e.g. pump stations, stormwater ponds or the like. Access to key operational assets shall be provided on land that is vested for Council ownership. 

DS-1.22.3   Sizing and Location of an Easement 

The designer shall demonstrate how the easement size has been calculated to allow for:

  1. Maintenance and operations in terms of practical access.
  2. Replacement of the infrastructure.
  3. Health and safety of persons performing these tasks.
  4. Protection of people and property in general. 

This ensures that the infrastructure achieves its function and remains cost efficient over its lifetime.  
Particular attention shall be given to deep installations e.g. deep pipes, support piles etc. based on the above considerations.

Designers shall provide easements that do not restrict access for neighbouring developments. The easement shall extend to the extent of the boundary where adjacent landowners require network availability for future developable land (which is generally shown on planning documentation such as the City Plan and/or Structure Plans.

DS-1.22.4   Easement Encroachments 

An easement encroachment typically involves a structure, or part of a structure (permanent or temporary), that is located on, under or above the land subject to the easement.

Designers shall provide clear detail regarding either of the following (as appropriate to the design outcome):

  1. Any encroachment rights that are applicable to the easement.
  2. That there are no encroachment rights applicable to the easement.

This shall be included on the formal easement documentation.

Explanatory Note: 
Encroachment can cause increased cost and frustration for all parties. It can be a source of damage, can restrict access or can affect the performance of the infrastructure. A typical example of this is the building of a fence or wall within an overland flowpath. Blockages caused by this can result in substantial flooding to the surrounding area or the overland flow is redirected to an inappropriate destination.

DS-1.22.5   Private Easements 

Situations arise where an easement does not involve Council. These will typically be for situations where vehicular access or utility service/s provision to a property “over/through another property” is required.

Where this arises, the designer shall ensure that the following are considered and appropriately documented:

  1. The type and size of easement.
  2. Clear, legal description of all parties’ rights and obligations.
  3. Practical access, operational issues, future maintenance and replacement.
  4. Encroachment rights.

DS-1.22.6 Easements: Reserves

Easements shall be required as follows:

  1. Where any asset will have an alignment through reserve land that currently is owned by Council.
  2. Where any asset will have an alignment through reserve land that is intended to be vested in Council
  3. An exception to a) and b) above is for stormwater assets on a drainage reserve i.e. an easement is not required.
  4. An easement in gross is required.
  5. The requirements of the Reserves Act shall apply.
  6. All easements shall allow for right of access for inspection, practical maintenance and consider the future upgrading, renewal and/or replacement of the assets. 

DS-1.22.7 Easements: Transportation 

The most common form of easement is generally a Right of Way. This entitles the owners of a property to gain access to their property by way of land owned by an adjoining property owner. A number of property owners can often have the same access rights over the same piece of land.

Easements shall be required as follows:

  1. Access to a lot, through another lot/s via a Private Way, Accessway or Rights-of-Way is proposed.
  2. For the formation of a Private Way, Accessway or Rights-of-Way in existing easements, the formation shall occur through the centre of the reserve and all cut or fill batters steeper than 1V:4H shall be contained outside of the existing easement. 
  3. Where the requirement of b) applies in a Greenfields context, it shall require a right of access (right of way) easement.
  4. All easements shall allow for right of access for inspection, practical maintenance and consider the future upgrading, renewal and/or replacement of the assets. 
  5. Council will not accept easements based on “strips of land”.
Explanatory Note:
It used to be common for a number of owners to each own a small strip of land, which together formed a driveway and a number of separate Rights of Way were created. It is better practice for such “common driveways” to be held in a single title, with each “user” owning an undivided share in the title e.g. a Right of Way serving four properties, that is contained in a lot of its own, owned in equal shares by the four “users”. 
Other access rights include a Right of Way over land owned by one property owner with easement allowances and conditions for the four “users” to abide by.

DS-1.22.8 Easements: Stormwater and Wastewater 

Easements shall be required as follows:

  1.  A structure, pipe or other asset that forms part of either the Stormwater or Wastewater network that is intended to be vested in or maintained by Council and is to be located within land not vested in Council or a Reserve shall require an easement in gross. An exception to this is for stormwater assets on a drainage reserve i.e. an easement is not required.
  2. An easement shall be required to protect secondary flowpaths where the secondary flowpath is not located on public land as required under DS-5.5.19 Secondary System.
  3. All easements shall allow for right of access for inspection, practical maintenance and consider the future upgrading, renewal and/or replacement of the assets.

DS-1.22.9 Easements: Water Supply 

Easements shall be required as follows:

  1. A structure, pipe or other asset that forms part of the Water Supply network that is intended to be vested in or maintained by Council and is to be located within land not vested in Council or a Reserve shall require an easement in gross.
  2. Service lines (up to the point of supply) in a Private Way, Accessway or Rights-of-Way shall require an easement in gross.
  3. All easements shall allow for right of access for inspection, practical maintenance and consider the future upgrading, renewal and/or replacement of the assets. 

DS-1.22.10 Easements: Network Utilities

Easements shall be required as follows:

  1. Any network utility structure, ducting, cable or other asset e.g. power, telecommunications, natural gas; that is to be located within land that is not owned by the Utility Operator shall require an easement in gross.
  2. All easements shall allow for right of access for inspection, practical maintenance and consider the future upgrading, renewal and/or replacement of the assets. 

Definitions in this section

City plan

Council

Design

Designer

Developer

Infrastructure

Lot