Section 88B Instruments: Easements, Restrictions and Covenants

If you’ve ever pulled a title search and seen a line that says “Easement to drain water 1.5 wide (DP 123456)” or “Positive covenant (DP 123456)”, you’ve met a section 88B instrument, even if you didn’t know its name. It’s the document that sits behind those words and spells out what they actually mean.

I’m not a lawyer and I’m not a surveyor. I’m the engineer whose drainage design has to fit inside whatever that instrument says. So this is an engineer’s explanation: what the thing is, how to read it, and where it decides your project before you’ve drawn a line.

What section 88B actually is

Section 88B of the Conveyancing Act 1919 lets certain interests in land be created (or released) simply by registering a plan with a document attached, instead of by separate dealings for each one. That attached document is the section 88B instrument. It goes in with a deposited plan or a strata plan at NSW Land Registry Services, and when the plan registers, the interests in the instrument register with it.

The Registrar General’s Guidelines list what the instrument can create:

• Easements, like an easement to drain water, an easement for services, or a right of carriageway.
• Restrictions on the use of land, which stop the owner doing something (no building within a drainage easement, for instance).
• Positive covenants, which require the owner to do something (keep the OSD system working, for instance).
• Profits à prendre, which you’ll almost never see on a residential job.

The Registrar General’s Guidelines page on section 88B instruments is the authoritative reference for how one has to be prepared, and it’s worth a read even if your surveyor and solicitor are doing the drafting.

How to read one

Every 88B instrument follows the same structure, and once you know it you can find what you need in a minute.

Part 1 is a table. Each row is one interest: its number, what it is (“Easement to drain water 1 wide”), which lot it burdens (the land it runs across) and which lot or authority it benefits. On a subdivision, “burdened lot 2, benefited lot 1” tells you lot 1 can drain through lot 2. Where the benefit is to council, it’s usually shown as an easement in gross or a covenant in favour of the council by name.

Part 2 is the terms. This is where the actual rules live. For an easement to drain water, Part 2 might just say “as per Schedule 4A of the Conveyancing Act 1919”, which imports the standard wording. Or it might have bespoke terms: the pipe size allowed, who maintains it, whether the burdened owner can build over it. Read Part 2 every time. Two easements with identical names in Part 1 can have completely different rules in Part 2.

Then there’s the list of authorities whose consent is required to release, vary or modify each interest. On anything drainage-related in Sydney, that’s normally the council. It means the owners can’t quietly agree to remove the easement later. Council has to sign.

Where it bites the engineering

Four places, in my experience.

1. The easement is where the pipe has to go

If a drainage easement exists over the rear of the block, the interallotment line goes in the easement, not two metres to the side where the layout would be tidier. The easement width is a design constraint too: a 1 m wide easement over a 375 mm pipe leaves no room to excavate without disturbing the neighbour, which is why a lot of councils now ask for wider ones. Check the current DCP for the minimum width your council expects, because it varies.

And if there’s no easement, and the block falls away from the street, there’s no lawful outlet. That’s a planning and legal problem before it’s an engineering one, and it needs sorting before the stormwater drainage design can be finished.

2. The OSD positive covenant

Nearly every Sydney council that requires on-site detention also requires a positive covenant and a restriction on use over the OSD system as a condition of consent. The positive covenant obliges the owner to maintain the system in working order and let council inspect it. The restriction on use stops anyone altering, filling in or building over it without council’s approval. The terms are usually taken word for word from the council’s OSD policy or DCP, and council reviews the wording before it’s registered.

Two things to know. First, on a subdivision they go in the 88B instrument with the plan. On an existing lot that isn’t being subdivided (a single new house with an OSD tank, say), there’s no plan being registered, so the same covenant and restriction are created by a separate registered dealing under section 88E of the same Act. Same effect, different form. Your solicitor handles it, but the consent condition will usually say which. Second, the covenant will reference a works-as-executed plan or an OSD certification. That’s my document, and it has to be finished before the covenant can be lodged. Our OSD design work includes the certification most councils ask for.

3. Restrictions that quietly shrink the buildable area

Older estate subdivisions often carry restrictions on use that nobody reads until the DA is lodged: no buildings within a certain distance of a boundary, no second storey, minimum floor levels, or a restriction that the lot must drain to a particular system. These sit in the 88B on the parent plan and they bind the current owner just as much as the LEP does. A CDC in particular does not override them (the Planning Portal’s complying development page says exactly that), so the certifier will ask for the title and the instrument before issuing.

4. Services easements and who can dig

Easements for services, electricity, sewer, water supply. The terms decide who can enter, what can be built over them and what depth cover is needed. On a battle-axe subdivision, the right of carriageway over the handle usually comes bundled with easements for services under the same strip, and the drainage design has to fit alongside the water, power and NBN conduits in a corridor that’s often only 3.5 to 4 m wide. That coordination is part of what development engineering is for.

Who prepares it

The surveyor preparing the plan drafts the 88B instrument, usually with the solicitor checking the terms, and under the current Lodgment Rules it’s built through NSW LRS’s digital forms. Council reviews it before signing off the subdivision certificate, and often insists on its own standard terms for drainage easements and OSD covenants. The engineer’s job is to tell the surveyor where the easements need to be and how wide, and to supply the plan and certification the covenant refers to.

Our partner surveyors do this every week, and the smoothest jobs are the ones where the engineer and the surveyor have agreed the easement lines before the plan is drawn, not after council’s engineer marks it up.

Reading a title before you design

If I’m starting a new job, the first document I want after the survey is the title search with every instrument attached. Not the summary, the actual 88B (and any 88E dealings). I’m looking for:

• Any existing drainage easement, its width and where it sits on the plan.
• Any restriction on building over or near an easement.
• Any existing positive covenant for OSD or a pump-out system (it means there’s a system on site already, and it may be in the way).
• Any restriction on floor levels or drainage method.
• Whether council is the consenting authority for changing any of it.

The NSW Land Registry Services site is where the searches come from, and the general principles page in the Registrar General’s Guidelines is a good plain explanation of dominant and servient land if the terminology is new to you.

An 88B instrument is a few pages of dry text. It also decides where your water can go, what you must maintain forever, and sometimes where you can build. Read it before you draw, and get the surveyor and the engineer in the same conversation early. It’s cheaper than finding out from council.