New South Wales Consolidated Acts
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CONVEYANCING ACT 1919 - SECT 88K
Power of Court to create easements
88K Power of Court to create easements
(1) The Court may make an order imposing an easement over land if the easement
is reasonably necessary for the effective use or development of other land
that will have the benefit of the easement.
(2) Such an order may be made
only if the Court is satisfied that:
(a) use of the land having the benefit of
the easement will not be inconsistent with the public interest, and
owner of the land to be burdened by the easement and each other person having
an estate or interest in that land that is evidenced by an instrument
registered in the General Register of Deeds or the Register kept under the
Real Property Act 1900 can be adequately compensated for any loss or other
disadvantage that will arise from imposition of the easement, and
reasonable attempts have been made by the applicant for the order to obtain
the easement or an easement having the same effect but have been unsuccessful.
(3) The Court is to specify in the order the nature and terms of the easement
and such of the particulars referred to in section 88 (1) (a)-(d) as are
appropriate and is to identify its site by reference to a plan that is, or is
capable of being, registered or recorded under Division 3 of Part 23. The
terms may limit the times at which the easement applies.
(4) The Court is to
provide in the order for payment by the applicant to specified persons of such
compensation as the Court considers appropriate, unless the Court determines
that compensation is not payable because of the special circumstances of the
(5) The costs of the proceedings are payable by the applicant, subject
to any order of the Court to the contrary.
(6) Such an easement may be:
released by the owner of the land having the benefit of it, or
by a deed made between the owner of the land having the benefit of it and the
persons for the time being having the burden of it or (in the case of land
under the provisions of the Real Property Act 1900 ) by a dealing in the form
approved under that Act giving effect to the modification.
(7) An easement
imposed under this section, a release of such an easement or any modification
of such an easement by a deed or dealing takes effect:
(a) if the land
burdened is under the Real Property Act 1900 , when the Registrar-General
registers a dealing in the form approved under that Act setting out
particulars of the easement, or of the release or modification, by making such
recordings in the Register kept under that Act as the Registrar-General
considers appropriate, or
(b) in any other case, when a minute of the order
imposing the easement or the deed of release or modification is registered in
the General Register of Deeds.
(8) An easement imposed under this section has
effect (for the purposes of this Act and the Real Property Act 1900 ) as if it
was contained in a deed.
(9) Nothing in this section prevents such an
easement from being extinguished or modified under section 89 by the Court.
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