Easements again

The concept behind the ‘standard form’ or easement I touched on in my last article is simple. It simplifies creating easements if there is a standard form which everyone knows and which is regarded as fair- and the standard forms are generally fair.

But not everyone wants to use them. The worst offender here is surprisingly government agencies. It is even more surprising when you remember that it is the government which drafted these standard easements and made them a schedule to the Conveyancing Act.

A prime example are the energy authorities. I’ll take what was Energy Australia as a representative. It was renamed Ausgrid by one of the last acts of the Labor government before the March election.

The standard form of easement for electricity purposes in favour of a government body is

1 The body having the benefit of this easement may:
(a) transmit electricity through each lot burdened, but only within the site of this easement, and
(b) do anything reasonably necessary for that purpose, including:
• entering the lot burdened, and
• taking anything on to the lot burdened, and
• carrying out work, such as constructing, placing, repairing or maintaining poles,
wires, conduits and equipment.
2 In exercising those powers, the body having the benefit of this easement must:
(a) ensure all work is done properly, and
(b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and
(c) cause as little damage as is practicable to the lot burdened and any improvement on it,
and
(d) restore the lot burdened as nearly as is practicable to its former condition, and
(e) make good any collateral damage.

However Energy Australia’s easement is for electricity and other purposes and runs to several A4 pages. There are two major differences between it and the standard form (as well as a host of minor ones). The first of these is that the standard easement permits The body having the benefit of this easement ie the electricity supplier- Energy Australia.

But the Energy Australia easement provides that Energy Australia and all persons which it authorises may...

That is Energy Australia can let others have the same rights as it itself does.

The second major change is that it allows equipment for conveying signals to be installed on the easement .

Signals are defined very widely.

To my mind the combination of this allows Energy Australia to permit a telco ( a person which it authorises) to use the site of an Energy Australia easement for the construction of a mobile phone tower (equipment for conveying signals)

And Energy Australia's practise is to get owners signed up to their agreement before that owner has had a chance to seek legal advice.

A recent article in the Sydney Morning Herald told of the unfortunate case of a Sydney resident whose land was subject to such an easement. Energy Australia was building a tower which the resident said would take $40,000 from the value of his property.

I've tried to negotiate with Energy Australia’s solicitors after clients have signed the agreement.
They said that Energy Australia needed to be able to transmit signals for the purpose of electricity distribution. My reply was:
Firstly, that if that were so then it would be part of the things allowed under the standard form Easement. It allows Energy Australia to do “anything reasonably necessary” for the purpose of transmitting electricity. Operating signals for its distribution network would be part of what is reasonably necessary.
Secondly, if Energy Australia were to agree to limit its transmission of signals to those it needs for its own distribution of Electricity purposes then I would recommend that you would agree to its standard form.

The Solicitor declined to do either of those things.

Be warned.