TRANSFER OF LAND ACT 1893 - SECT 136J
TRANSFER OF LAND ACT 1893 - SECT 136J
136J . Discharge and modification of easements and restrictive covenants under this Part
(1) Either —
(a) the
proprietor of land burdened or benefited by an easement or a restrictive
covenant created under this Part, other than a single dwelling covenant (as
defined in section 129C); or
(b) a
local government or public authority for whose benefit an easement has been
created under this Part (the relevant authority ),
may apply, in an
approved form and on payment of the prescribed fee, for the easement or
restrictive covenant to be discharged or to be modified in the manner set out
in the application.
(2) An application
under this section shall be accompanied by either —
(a) the
written consent of —
(i)
each person who has a registered interest in, or is a
caveator in respect of, any land that is either burdened or benefited by the
easement or restrictive covenant; and
(ii)
if applicable, the relevant authority,
to the discharge or
the modification of the easement or restrictive covenant as proposed; or
(b) the
documents referred to in subsection (3).
(3) Where an
application under this section is not accompanied by the written consents
referred to in subsection (2)(a), it shall be accompanied by —
(a) the
applicant’s statutory declaration to the effect that —
(i)
each person who has a registered interest in, or is a
caveator in respect of, any land that is either burdened or benefited by the
easement or restrictive covenant and, if applicable, the relevant authority
(not being the applicant) has been given 28 days’ written notice of both
the intention to make the application and the substance of the proposed
application; and
(ii)
notice of both the intention to make the application and
the substance of the proposed application has been published —
(I) at least 28 days before the day on
which the application is made;
(II) in a newspaper
circulating either throughout the State or in the district where the land is
situated;
and
(iii)
both of the notices referred to in subparagraphs (i) and
(ii) stated —
(I) the applicant’s address for
service of notices of objection to the proposed application or any part of the
proposed application; and
(II) the day, being at
least 3 days before the application was proposed to be made, by which notice
of objections were to be received;
and
(iv)
up to the time of making the application, the applicant
had received no notice of objection to either the proposed application or any
part of the proposed application;
and
(b) a
copy of the notice referred to in paragraph (a)(ii) showing the name of the
newspaper in which it was published and the day of publication.
(4) On an application
under this section the Registrar, if directed by the Commissioner to do so,
shall discharge the easement or restrictive covenant or modify the easement or
restrictive covenant in the manner set out in the application.
(5) The Commissioner
shall not direct the Registrar to discharge or modify an easement or a
restrictive covenant under this section if the Commissioner is aware of any
notice that has been served under subsection (3)(a)(iii) by which an objection
has been made to either the application or any part of the application.
(6) Where an easement
or a restrictive covenant is discharged or modified under this section the
Registrar shall enter a memorandum of the discharge or modification on each
certificate of title in the Register on which is entered a memorandum of the
easement or restrictive covenant.
[Section 136J inserted: No. 81 of 1996 s. 81;
amended: No. 3 of 1999 s. 5.]