An easement over a track in use is created as a Right of Carriage Way, or Right of Way or Easement for Access in situations where:
- the track in use is extensive and/or it traverses rough or steep terrain over rural land.
- the easement site might vary, from time to time, due to changing physical conditions.
Depicting the site
The site of the easement to be created over a track in use must be depicted in a plan signed by a registered surveyor and prepared for lodgment in NSW LRS as either a deposited plan or a compiled plan annexed to a dealing. The plan should:
- depict the track as an existing physical feature. As such, no width for the easement should be shown
- indicate the method used to determine the position of the track as either:
approximate position of centreline of track as determined by aerial photograph, see.....(a photograph on public record).....
approximate position of centreline of track as indicated on ..... (a cadastral map on public record) .....
approximate position of centreline of track as recorded in Field Notes ....., or Detail Plan .....
approximate position of centreline of track as indicated by SIX Portal aerial photography provided the "date of publication" metadata is available. The year of the publication should be shown on the plan.
- designate the easement as 'Right of Way / Right Carriage Way / Easement for Access over the track in use' and show approximate connections to the parcel boundaries, and
- be signed by a registered surveyor.
As the site of an Easement over track in use is designed to be 'ambulatory' i.e. the location of the track 'in use' may move over time, no survey information should be shown on the plan or marks placed that would define the site in a specific location.
Note Where doubts exist as to the position of the easement in respect to the parcel boundaries, the plan must be one of survey.
Creation of an easement for track in use
The easement may be created by:
- registration of a section 88B instrument lodged with the plan, or
- the registration of a transfer granting an easement or an Old System deed. If this option is adopted, the easement will be shown as proposed on the deposited plan.
Subdivision of a parcel affected by a track in use
A plan of subdivision of a parcel(s) of land subject to a registered Right of Carriageway, Right of Way or Easement for Access over a Track in Use is prepared in the usual fashion. However, due to the ambulatory nature of the track, it will be necessary for the surveyor to:
- supply a written declaration setting out which of the lots in the new plan will be affected by the existing track, and
- supply approximate connections to the centreline along any new boundary that intercepts the track.
The site of any existing track in use that will be co-incident with or adjacent to a new lot boundary should be fully defined by survey in the new plan. This will entail the whole (or partial) release of the existing right and the creation of a new easement complying with the provisions of cl.18 Surveying and Spatial Information Regulation 2012.