New South Wales Consolidated Acts

COMMUNITY LAND DEVELOPMENT ACT 1989 - SECT 36

36 Statutory easement

(1) In this section:
"lot" means a development lot, a neighbourhood lot or a strata lot.
"prescribed diagram" means a diagram that is in the approved form and complies with any prescribed requirements.
"service" includes:

(a) the supply of water, gas, electricity, artificially heated or cooled air or heating oil, and

(b) the provision of sewerage and drainage, and

(c) transmissions by telephone, radio or television.

"service line" means a pipe, wire, cable, duct or pole by means of which a service is to be provided.
"statutory easement" means an easement conferring rights:

(a) to provide a service line within a scheme and a service by means of the service line, and

(b) to maintain and repair the service line, and

(c) to enter:

(i) land within the scheme that would include, or includes, the service line, or

(ii) land within the scheme that is contiguous to the land referred to in subparagraph (i),

and do all such things as may be reasonably necessary to exercise the rights referred to in paragraphs (a) and (b).

(2) If a service line is installed as part of a scheme before registration of the management statement relating to the scheme, the statutory easement is created within the scheme on registration of the management statement if it includes the prescribed diagram relating to the service line.

(3) If:

(a) the management statement for a scheme is registered before a proposed service line is installed as part of the scheme, and

(b) the management statement includes the prescribed diagram for the proposed service line,

the statutory easement is created within the scheme on installation of the service line in accordance with the diagram.

(3A) The Registrar-General is to be notified in the approved form when the installation of a proposed service line is completed. The notification is to be given:

(a) by the developer if installation of the service line is completed during the initial period, or

(b) by the relevant association if installation of the service line is completed after the initial period.

(4) If, after registration of a prescribed diagram for a proposed service line as part of the management statement for a scheme:

(a) the service line is installed in a different position from that shown in the prescribed diagram for the service line, and

(b) the later prescribed diagram is signed by the proprietors of the lots that would be burdened by the statutory easement for the service line shown in the diagram,

the later prescribed diagram must be lodged for registration and may be registered as an amendment of the management statement duly made under the Community Land Management Act 1989 .

(5) On registration under subsection (4) of an amendment of a management statement:

(a) the earlier prescribed diagram is to be taken to have been cancelled in so far as it is inconsistent with the later prescribed diagram, and

(b) the later prescribed diagram has effect on registration as if it had been registered immediately before installation of the service line.

(6) On the creation within a scheme of the statutory easement for a service line:

(a) the easement is appurtenant to each lot in the scheme to which a service is provided by means of the service line, and

(b) land within the scheme in which the service line is located is subject to the easement to the extent that the lot is affected by the service line.

(7) If the developer under a scheme enters into an agreement with a public authority for the provision and installation of a service line within the scheme, the public authority has the benefit of the statutory easement on and from its creation in relation to the service line.

(8) If a service line is installed as part of a scheme after registration of the management statement, the developer must, within 1 month after installation of the service line, give a copy of the prescribed diagram relating to the service line to the association constituted under the scheme.

(9) A proprietor of land, or a public authority, that has the benefit of a statutory easement is subject to the following covenants:

(a) that the rights under the easement will not be exercised in a manner that would unreasonably interfere with the use and enjoyment by any other proprietor of land burdened by the easement and, in particular, that in exercising the rights, any interference with the use and enjoyment of community, precinct or neighbourhood property by proprietors or occupiers of lots will be kept to a minimum,

(b) that any damage to, or interference with, the parts of the scheme affected by exercise of the rights conferred by the easement will, at the expense of the person exercising the rights, be made good:

(i) in the case of land within the scheme that would include, or includes, the service line-by restoring the land to a basic standard not including the repair or restoration of unusual or expensive landscaping or other works erected over the land, and

(ii) in the case of land within the scheme that is contiguous to the land referred to in subparagraph (i)-by restoring the land to its former state,

(c) that the person exercising the rights will leave the land on which they are exercised in a clean and tidy condition on completion of the installation, maintenance or repair of any service the subject of the easement.

(9A) The Registrar-General may make in the Register such recordings as the Registrar-General thinks fit in respect of any action taken under this section.

(10) This section does not affect any rights or obligations relating to service lines that are conferred or imposed by another Act.