New South Wales Consolidated Acts

WESTERN LANDS ACT 1901 - SECT 35S

35S Minister may create easements for right of way

(1) The Minister may, by instrument lodged with the Registrar-General, create the following easements over land within the Western Division that, in the Minister’s opinion, is being used as a road or track:

(a) an easement in the nature of a right of way,

(b) such other easements as are appropriate to the construction and maintenance of a right of way.

(2) Such an instrument:

(a) may not be lodged with respect to freehold land, and

(b) may only be made with respect to land held under a lease on the application of the lessee or lessees of the land, and

(c) must specify the beneficiary of the easement or the land to which the benefit of the easement is appurtenant.

(3) An instrument lodged under subsection (1) is to be made by reference to a plan that is registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919 .

(4) On receiving an instrument lodged under subsection (1), the Registrar-General may record such particulars of the creation of the special easement as the Registrar-General considers necessary in any folio of the Register relating to land which, in the Registrar-General’s opinion, is affected by the creation of the easement.

(5) No duty is payable under the Duties Act 1997 in respect of an instrument lodged under subsection (1).

(6) Sections 88A and 181A of the Conveyancing Act 1919 apply to an instrument lodged under subsection (1).

(7) An easement referred to in section 88A of the Conveyancing Act 1919 may be created not only in favour of a public authority referred to in that section but also in favour of such other persons or bodies as may be specified in that regard by the plan referred to in subsection (3), in which case any reference in that section to a public authority extends to any person or body so specified.

(8) As soon as practicable after a special easement is created, the Minister must cause notice of that fact to be given to:

(a) each beneficiary of the easement, and

(b) each lessee of land over which the easement is in force.

(9) Section 89 of the Conveyancing Act 1919 does not apply to a special easement.

(10) Neither the creation of a special easement in respect of any land held under a lease, nor a lessee’s request for the creation of a special easement in respect of any such land, is to be regarded:

(a) as a breach of any contractual provision prohibiting, restricting or regulating the lessee’s right to deal with the land, or

(b) as giving rise to any remedy by a party to any legal instrument, or as causing or permitting the termination of any legal instrument, because of the creation of the easement or the making of the request.

(11) This section applies to land held under a lease granted or issued before the commencement of this section, but does not apply to land held under a lease granted or issued after that commencement.

(12) In this section and in section 35T, "the Register" means the Register kept under the Real Property Act 1900 .