Posted on October 9, 2014 by Megan Hawley

Easements for Council Water and Sewer Works?

We are often asked whether a local council requires an easement for its water and sewer works (including underground pipes) to remain on private land and to enable the council to enter onto private land to carry out works on that infrastructure. The Local Government Act 1993 (LG Act) provides the answer in respect of stormwater works, sewer and water supply works outside the area of operations of Sydney Water or Hunter Water.

Section 59A of the LG Act provides that a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council).

This means that even where works are located on private land, the works themselves, if installed by the council, belong to the council.

Works may be considered to have been installed by the council even if a developer partly funded the installation. Also, the section has been held to apply to works regardless of the date of their installation, such that it applies to works installed before the section was inserted into the LG Act in 2002 (see Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408).

Section 59A(2) goes on to enable the council which owns the works to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things to those works to ensure their efficient operation for the purpose for which they were installed.

This enables council both to use the works (eg, to allow stormwater to flow through stormwater pipes) and to maintain and extend or replace the works.

Section 59A(3) states that s59A applies despite s42 of the Real Property Act 1900. This means that the council owns the works and has the powers set out in s59A(2) despite the fact that there is no easement or other interest in respect of the ownership of the works or the council’s right to operate and carry out work on those works, registered on the title to the relevant land.

That is, no easement is required for the works.

Councils are still required to comply with the provisions of the LG Act regarding entry onto land in order to exercise the powers granted under s59A(2). However, ultimately a landowner cannot require the removal of the works, or prevent the council from exercising those powers if the requirements for entry under the LG Act are met.

Councils which rely on s59A may wish to give consideration to noting the existence of underground works on certificates under s149 of the Environmental Planning & Assessment Act 1979 or through Dial Before You Dig.