Right of Way Agreement (Australia)

A Right of Way Agreement in Australia is a legally binding written instrument.

In Australia, easements are creatures of state property legislation and the Torrens title system. The foundational statutes are the Real Property Act 1900 (NSW), the Transfer of Land Act 1958 (Vic), the Land Title Act 1994 (QLD), the Land Title Act 1980 (TAS), the Land Title Act 2000 (NT), the Land Transfer Act 1893 (WA), the Real Property Act 1886 (SA), and the Land Titles Act 1925 (ACT). Under the Torrens system, an easement does not bind a bona fide purchaser of the servient land for value unless it is noted on the certificate of title. A written Right of Way Agreement that is not registered at the relevant state land titles office — NSW Land Registry Services, Land Use Victoria, Titles Queensland, Landgate (WA), or the equivalent — is therefore only enforceable between the original parties and will not automatically bind subsequent owners.

Easements can be created expressly (by a registered dealing), by implication (where a court infers the grant from circumstances), or by prescription (long use). An express written agreement registered under the applicable state legislation is the most secure method and is the approach taken by the forms-legal.com Right of Way Agreement (Australia) template. Section 88 of the Conveyancing Act 1919 (NSW) and Section 88B of the same Act prescribe the requirements for the creation and registration of easements in New South Wales. Section 72 of the Property Law Act 1958 (Vic) contains the equivalent provisions in Victoria.

Once registered, the right of way is said to run with the land — meaning it attaches to the dominant and servient tenements and binds all future owners of both parcels, not just the parties who originally signed the agreement. This characteristic makes the Right of Way Agreement a powerful tool for protecting long-term access rights, particularly for landlocked properties, shared driveways, rural access tracks, and utility corridors. Registration also protects the dominant owner against a future mortgagee of the servient land taking priority over the unregistered easement. Disputes about the exercise or obstruction of a right of way may be brought in the Supreme Court of the relevant state or territory under the court's inherent equitable jurisdiction, or in some states before specialist land tribunals. The New South Wales Land and Environment Court also has jurisdiction over certain easement matters in New South Wales under Section 71 of the Civil Procedure Act 2005 (NSW).

A Right of Way Agreement is needed in several common situations across Australian residential, rural, and commercial property settings.

Landlocked properties are the most pressing use case. Where a parcel of land has no direct frontage to a public road, the owner requires a legally registered right of way across an adjoining parcel to access their property. Without registration under the applicable state Real Property Act or Transfer of Land Act, any informal access arrangement can be terminated by a new owner of the servient land or by a mortgagee exercising their power of sale. Courts have recognised implied easements of necessity in some circumstances — see Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 as applied in Australian courts — but relying on a court-implied easement is far less secure than a registered instrument.

Shared driveways and access roads are another common scenario. Where two or more properties share a common driveway that crosses one owner's title, a Right of Way Agreement records each owner's right to use the driveway, the obligations to contribute to its maintenance and repair, and the circumstances in which the access may be altered or relocated. This avoids disputes about who owns the driveway surface, who is responsible for repairs, and whether one owner can block the other's access.

Rural access tracks across agricultural land in states such as New South Wales, Victoria, Queensland, and Western Australia frequently require formal right of way documentation when land is subdivided, sold, or inherited. Without a registered easement, the successor in title to the servient parcel may deny access, forcing the dominant owner to seek a court order under the relevant state property legislation.

Utility and services corridors — for electricity lines, water mains, gas pipelines, telecommunications infrastructure, and drainage — are routinely documented by Right of Way Agreements registered in favour of the relevant utility authority or infrastructure owner. Under the National Electricity Law and the National Gas Law, network service providers and pipeline operators require legal certainty over access corridors.

From a conveyancing perspective, a Right of Way Agreement should be documented before settlement of any property transaction where the buyer is relying on access across another parcel. The agreement should be executed by both the dominant and servient owners with the consent of any registered mortgagee, lodged for registration at the relevant state land titles office, and noted on both certificates of title before the transaction completes. Failure to register before settlement leaves the buyer's access rights exposed to defeat by a subsequent encumbrancer of the servient land.

An Australian Right of Way Agreement must contain specific elements to be registrable at the state land titles office and legally binding on future owners of both the dominant and servient tenements.

Property identification: A precise legal description of the dominant tenement and the servient tenement, including the lot and deposited plan number, folio identifier or certificate of title reference, and street address of each parcel. In New South Wales, NSW Land Registry Services requires the folio identifier for each parcel under Section 184G of the Real Property Act 1900 (NSW). In Victoria, Land Use Victoria requires the volume and folio reference under the Transfer of Land Act 1958 (Vic). In Queensland, Titles Queensland requires the lot on plan description under the Land Title Act 1994 (QLD).

Easement description and plan: A detailed description of the location, width, and boundaries of the right of way corridor, supported by a surveyed plan prepared by a licensed surveyor that is lodged with the dealing. The plan must conform to the requirements of the applicable state land titles office. Ambiguity in the description of the easement area is a frequent cause of disputes litigated in state Supreme Courts under the equitable jurisdiction to construe and enforce easement instruments.

Permitted use: Whether the right of way is for pedestrian access, vehicular access, or both; any restrictions on vehicle type, weight, or frequency of use; and whether the right of way is available at all times or subject to hours of operation.

Maintenance obligations: Which party is responsible for maintaining the right of way surface in good repair and passable condition; how costs are shared where both parties use the access; and the procedure for carrying out and recovering the cost of urgent repairs. Under Section 89 of the Conveyancing Act 1919 (NSW), the dominant owner is primarily responsible for maintaining an easement unless the instrument provides otherwise.

Consideration and compensation: The consideration paid by the dominant owner for the grant (if any) and any ongoing compensation payable to the servient owner, particularly relevant in commercial and agricultural contexts. Stamp duty on the grant of an easement may be payable under state duties legislation — for example, the Duties Act 1997 (NSW) administered by Revenue NSW.

Mortgagee consent: The written consent of any registered mortgagee over the servient tenement, required by NSW Land Registry Services and Land Use Victoria before the easement dealing can be registered.

Registration obligation and effect: A statement that the agreement is to be lodged for registration with the relevant state land titles office and that, upon registration, the easement will run with the land and bind all successors in title under the indefeasibility provisions of the applicable Torrens title legislation. The forms-legal.com Right of Way Agreement (Australia) template is formatted to meet the execution and lodgment requirements of NSW Land Registry Services, Land Use Victoria, and Titles Queensland, and can be adapted for use in all other Australian states and territories.