New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 88E

88E Regulation of use of land not 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.

(2) A prescribed authority may, in accordance with this section, impose restrictions on the use of or impose public positive covenants on any land not vested in the authority, so that the restriction or public positive covenant is enforceable by the authority whether or not the benefit of the restriction or public positive covenant is annexed to other land.

(3) A restriction or public positive covenant referred to in subsection (2) may be imposed in relation to land under the provisions of the Real Property Act 1900 by a memorandum of restriction or public positive covenant in the form approved under that Act that:

(a) specifies the prescribed authority that is imposing the restriction or public positive covenant,

(b) is executed by that prescribed authority, by the registered proprietor of the land and by each other person who has a registered estate or interest in the land and is to be bound by the restriction or public positive covenant, and

(c) is lodged in the office of the Registrar-General,

and such a restriction or public positive covenant takes effect when the Registrar-General has made, in the Register kept under that Act, such recordings with respect to the restriction or public positive covenant as the Registrar-General considers appropriate.

(4) A restriction or public positive covenant referred to in subsection (2) may be imposed in relation to land that is not under the provisions of the Real Property Act 1900 by a deed that:

(a) is expressed to be made pursuant to this section,

(b) specifies the prescribed authority that is imposing the restriction or public positive covenant, and

(c) is executed by that prescribed authority, by the owner of the land and by each other person who is seised or possessed of any estate or interest in the land and is to be bound by the restriction or public positive covenant,

and such a restriction or public positive covenant takes effect when the deed by which it is imposed is registered under Division 1 of Part 23.

(5) Where a restriction or public positive covenant referred to in subsection (2) takes effect, the prescribed authority that imposed the restriction or public positive covenant may enforce it against any person who is, or claims under, a signatory to the memorandum or deed that imposed the restriction or public positive covenant as if that person had entered into a binding covenant with that prescribed authority to observe the restriction or public positive covenant.

(6) Where a restriction or public positive covenant referred to in subsection (2) is recorded in the Register kept under the Real Property Act 1900 , the restriction or public positive covenant is an interest within the meaning of section 42 of that Act.

(7) A restriction or public positive covenant imposed pursuant to this section may be released or varied:

(a) where the land affected by the restriction or public positive covenant is under the provisions of the Real Property Act 1900 -by a memorandum of release or a memorandum of variation, as the case may require, in the form approved under that Act and recorded in the Register kept under that Act, or

(b) where the land so affected is not under the provisions of that Act-by a deed of release or a deed of variation, as the case may require, registered under Division 1 of Part 23,

executed by the prescribed authority entitled to enforce the restriction or public positive covenant and, in the case of a variation of a restriction or public positive covenant, bearing the written consent of each person against whom, at the time the memorandum is recorded, or the deed registered, the restriction or public positive covenant is enforceable.

(8) Upon lodgment in the Registrar-General’s office of a memorandum of release or a memorandum of variation referred to in subsection (7), the Registrar-General shall, in the Register kept under the Real Property Act 1900 , make such recordings with respect to the release or variation as the Registrar-General considers appropriate.