New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 89

89 Power of Court to modify or extinguish easements, profits à prendre and certain covenants

(1) Where land is subject to an easement or a profit à prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit à prendre, restriction or obligation upon being satisfied:

(a) that by reason of change in the user of any land having the benefit of the easement, profit à prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit à prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit à prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit à prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or

(b) that the persons of the age of eighteen years or upwards and of full capacity for the time being or from time to time entitled to the easement or profit à prendre or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement, the profit à prendre or the benefit of the restriction is annexed, have agreed to the easement, profit à prendre, restriction or obligation being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement or profit à prendre wholly or in part or waived the benefit of the restriction wholly or in part,

(b1) in the case of an obligation:

(i) that the prescribed authority entitled to the benefit of the obligation has agreed to the obligation’s being modified or wholly or partially extinguished or by its acts or omissions may reasonably be considered to have waived the benefit of the obligation wholly or in part, or

(ii) that the obligation has become unreasonably expensive or unreasonably onerous to perform when compared with the benefit of its performance to the authority, or

(c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit à prendre, or to the benefit of the restriction or obligation.

(1A) For the purposes of subsection (1) (b), an easement may be treated as abandoned if the Court is satisfied that the easement has not been used for at least 20 years before the application under subsection (1) is made.

(2) Where any proceedings are instituted to enforce an easement, profit à prendre, restriction or obligation, or to enforce any rights arising out of a breach of any restriction or obligation, any person against whom the proceedings are instituted may in such proceedings apply to the Court for an order under this section.

(3) The Court may on the application of any person interested make an order declaring whether or not in any particular case any land is affected by an easement, profit à prendre, restriction or obligation, and the nature and extent thereof, and whether the same is enforceable, and if so by whom.

(4) Notice of any application made under this section shall, if the Court so directs, be given to the council of the area (within the meaning of the Local Government Act 1993 ) in which the land is situated, and to such other persons and in such manner, whether by advertisement or otherwise, as may be prescribed by rules of Court or as the Court may order.

(5) An order under this section that is registered in accordance with this section is binding on persons (whether or not of full age or capacity and whether or not such persons are parties to the proceedings or have been served with notice) who:

(a) are, or become, entitled to the easement or profit à prendre or interested in enforcing the restriction or obligation, and

(b) have, or obtain, an estate or interest in the land burdened by the easement, profit à prendre, restriction or obligation.

(6) This section applies to easements, profits à prendre and restrictions existing at the commencement of the Conveyancing (Amendment) Act 1930 , or coming into existence after such commencement.

(7) An order under this section affecting land not under the provisions of the Real Property Act 1900 may be registered in the General Register of Deeds. No such order shall release or bind any land until it is so registered.

(8) This section applies to land under the provisions of the Real Property Act 1900 , and the Registrar-General shall, on application made in the form approved under that Act, make all necessary recordings in the Register kept under that Act for giving effect to the order.
For the purposes of this subsection, a grant, certificate of title or duplicate registered dealing that is not in the possession of the Registrar-General shall be deemed to be wrongfully retained within the meaning of section 136 of the Real Property Act 1900 .

(9) In the case of land which is not under the provisions of the Real Property Act 1900 , a memorandum of such order shall be endorsed on such of the instruments of title as the Court directs.