New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 88D

88D Regulation of use of land held by a prescribed authority

(1) In this section:
"prescribed authority" means:

(a) the Crown,

(b) a public or local authority constituted by an Act, or

(c) a corporation prescribed for the purposes of this section.

"prescribed land" means land vested in a prescribed authority.

(2) A prescribed authority may, by an order that:

(a) describes the land in a manner enabling it to be identified and specifies, in the case of land under the provisions of the Real Property Act 1900 , the reference to the folio of the Register kept under that Act, or the registered dealing under that Act, that evidences the title to that land,

(b) specifies the particulars of the restrictions or public positive covenants, and

(c) specifies the prescribed authority in which the land is vested,

impose restrictions on the use of or impose public positive covenants on any prescribed land vested in it.

(3) Subject to subsection (7), upon lodgment in a form approved by the Registrar-General of a copy of an order made under subsection (2), the Registrar-General shall:

(a) where the land to which the order relates is land under the provisions of the Real Property Act 1900 -make such recordings in the Register in respect of the restriction or public positive covenant as the Registrar-General considers appropriate, or

(b) in any other case-cause the copy of the order to be registered in the General Register of Deeds kept under Division 1 of Part 23.

(4) For the purposes of Division 1 of Part 23, a copy of an order registered pursuant to subsection (3) (b) shall be deemed to be a registration copy of an instrument duly registered under that Division.

(5) A restriction or public positive covenant referred to in an order made under subsection (2):

(a) has no force or effect:

(i) unless it is recorded, or the copy of the order is registered, pursuant to subsection (3), and

(ii) unless, at the time when that recording or registration is effected, the land to which the restriction or public positive covenant relates is vested in the prescribed authority which made the order,

and subject thereto takes effect upon being so recorded or registered, and

(b) when recorded as provided by subsection (3) (a), has no greater operation than it has under the order that relates to it and under this section.

(6) Where a restriction or public positive covenant is recorded pursuant to subsection (3) (a), the restriction or public positive covenant is an interest within the meaning of section 42 of the Real Property Act 1900 .

(7) Where the Registrar-General is satisfied that, by the operation of subsection (5) (a) (ii), a restriction or public positive covenant referred to in an order made under subsection (2) would have no force or effect if recorded under subsection (3) or if a copy of the order in which the restriction or public positive covenant is referred to is registered under that subsection, the Registrar-General shall, where the land described in the order is land under the provisions of the Real Property Act 1900 , and may, in any other case, refuse to record the restriction or public positive covenant or, as the case may require, to register a copy of the order in which the restriction or public positive covenant is referred to.

(8) Subject to subsection (9), where a restriction or public positive covenant takes effect under this section the prescribed authority which made the order by which the restriction or public positive covenant was imposed may enforce the restriction or public positive covenant against a person claiming an interest in the land described in the order as if, upon the acquisition by that person of that interest, that person had entered into a binding covenant with that prescribed authority to observe the restriction or public positive covenant.

(9) Subsection (8) does not authorise enforcement against a person claiming an interest in land of a restriction or public positive covenant imposed on the land under this section where that person:

(a) is a person who, at the time the restriction or public positive covenant took effect, had acquired that interest or had acquired or become entitled to an option to purchase that interest, or

(b) is a person claiming that interest through or under a person referred to in paragraph (a).

(11) The powers of a prescribed authority to rescind or revoke an order made under subsection (2) may be exercised in relation to the whole of the land described in the order or any part thereof.

(12) Where an order rescinding or revoking an order made under subsection (2) is made, the prescribed authority which made the order rescinded or revoked shall lodge with the Registrar-General in a form approved by the Registrar-General a copy of the order of rescission or revocation and subsections (3) and (4) shall apply to and in respect of such a copy so lodged as if it were a copy of an order made under subsection (2).

(13) Subject to subsection (14), a restriction or public positive covenant imposed on land under this section may be varied by an agreement in writing between the prescribed authority which made the order by which the restriction or public positive covenant was imposed and the person or persons against whom, at the time of the recording or registration referred to in subsection (14), the restriction or public positive covenant is enforceable.

(14) An agreement referred to in subsection (13) does not take effect unless:

(a) where the land to which the restriction or public positive covenant relates is under the provisions of the Real Property Act 1900 -the agreement is recorded under subsection (15), or

(b) in any other case-the agreement is by deed registered under Division 1 of Part 23.

(15) Where an agreement referred to in subsection (13) relates to a restriction or public positive covenant imposed on land under the provisions of the Real Property Act 1900 , the Registrar-General, upon lodgment in the Registrar-General’s office of an application in the form approved under that Act, shall, in the Register kept under that Act, make such recordings with respect to the agreement as the Registrar-General considers appropriate.