A Section 88B instrument is a legal document registered with a plan in NSW that creates and defines interests affecting land—most commonly easements, restrictions on use, positive covenants, and rights of way. It is named after Section 88B of the Conveyancing Act 1919 (NSW) and, once registered, it binds current and future owners.
If you’re buying, renovating, building near boundaries (often supported by a boundary survey), or planning a subdivision, understanding any Section 88B instruments on title is essential. These instruments can restrict what you can build, where you can build, and what you must allow (for example, access or drainage) across your land.
What Can a Section 88B Instrument Contain?
A Section 88B instrument can contain:
- Easements (for drainage, sewer, services, or access)
- Restrictions on use (limiting certain building works or land uses)
- Positive covenants (requiring owners to maintain something, like a drainage line)
- Rights of way (allowing access across land)
These interests are generally recorded on the plan and referenced on the Certificate of Title. The precise wording matters—two easements that look similar on a plan can have very different legal effects depending on the instrument terms.
Why Section 88B Instruments Matter in Sydney
In Sydney, blocks are often constrained and developments are frequently close to boundaries. Section 88B instruments commonly arise due to:
- Stormwater constraints requiring drainage easements to a legal point of discharge
- Battle-axe lots needing access handles or rights of way
- Shared driveways or service corridors in dual occupancies and townhouse sites
- Subdivisions where services must pass through one lot to another
Even if an easement is “only 1.0m wide”, it can prevent you from building footings, pools, retaining walls, or certain structures in that strip depending on the terms.
How to Find Section 88B Instruments on Your Property
Section 88B instruments are referenced on your Certificate of Title and associated with a registered plan held by NSW Land Registry Services (LRS). You may see:
- A reference such as “DP XXXXXXX” (Deposited Plan) or “SP XXXXXXX” (Strata Plan)
- An instrument number referencing the 88B document
- Notes on easements/restrictions shown on the plan
If you’re unsure, a professional surveyor can help locate the plan, interpret what is shown, and explain how it relates to physical features on site (pits, pipes, grated drains, driveway alignments).
How Section 88B Relates to Subdivision and Registration
When subdividing, surveyors often prepare the plan and coordinate the Section 88B instrument. The plan and instrument are then lodged for registration with NSW LRS. LRS examination can issue requisitions if wording, beneficiaries, or plan depiction is inconsistent.
This is one reason subdivision timelines can extend—resolving requisitions often requires coordination between the surveyor, solicitor, council/certifier, and sometimes utility authorities.
Can You Remove or Modify a Section 88B Instrument?
Sometimes, but it’s not straightforward. Removing or modifying a Section 88B interest typically requires:
- Consent from all benefiting parties (for example, neighbours, councils, or service authorities), or
- A court order (often referenced under Section 89 pathways of the Conveyancing Act, depending on the situation)
This can be difficult and expensive, particularly for drainage or sewer easements that benefit essential services.
Practical Advice Before You Build Near an Easement
If your design is close to an easement (common at rear boundaries in older suburbs), consider:
- Getting a survey that shows the easement location relative to your proposed works
- Reviewing the instrument wording—some easements restrict building, others allow some works with conditions
- Allowing for access for maintenance (service authorities may need entry)
Common Easements and Restrictions You’ll See in NSW
In Sydney, the most common Section 88B-created interests include:
- Easement for drainage (often along a rear or side boundary)
- Easement for services (water, power, communications)
- Right of carriageway (shared driveway access)
- Restrictions on use (for example, limits on structures over a pipeline corridor)
- Positive covenants (maintenance obligations for on-site detention systems)
These can be especially important on small lots where the buildable area is already tight. For example, a 1.5m drainage easement at the rear can affect where you place a granny flat, pool, retaining wall, or even deep footings.
How Section 88B Shows Up on Plans and Titles
On a DP or SP, the easement may be shown as a hatched strip with a label such as “Easement for Drainage 1.5 wide”. The terms of that easement are usually contained in the Section 88B instrument referenced by number on the title. Always check both the plan depiction and the instrument wording to understand:
- Who benefits (neighbouring lot, council, authority)
- Whether building is prohibited or allowed with conditions
- Whether access must be maintained for maintenance
Buying Property in Sydney: A Practical Due Diligence Step
If you’re purchasing with renovation or redevelopment in mind, ask your conveyancer to provide any instruments referenced on the title, including Section 88B documents (and if you need help understanding what it means on site, contact our team). If the wording is unclear, a professional surveyor can help you understand how the easement/restriction sits on the ground and what parts of the site are likely to be constrained.
FAQ
Is a Section 88B instrument the same as an easement?
No. A Section 88B instrument is the document that can create one or more easements (and also restrictions on use, positive covenants, and rights of way).
Where do I get a copy of the 88B instrument?
You can obtain title and plan documents through NSW Land Registry Services or via your conveyancer/solicitor. Your surveyor can also identify the relevant references when working on a project.
Can I build a fence or shed over an easement?
It depends on the easement terms and who benefits. Some minor, removable structures may be tolerated; permanent footings or buildings are often not. Always check the instrument and get professional advice.
Do all subdivisions need a Section 88B instrument?
No. If there are no easements, restrictions, or covenants to create, an 88B may not be required. Many real-world subdivisions in Sydney do require one due to drainage, access, or servicing constraints.
Does a Section 88B affect property value?
It can. Significant easements or restrictions may reduce buildable area or limit future improvements, which can influence buyer interest and valuation.
