In forceAmended2020 Revised Edition

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Conveyancing and Lawof Property Act 1886 · 2020 Revised Edition · Part 5A · Easements

34A. Power of court to create easements over land

Amended

Last amended by an amending law of 2014.

(1)

The court may, on application by an interested person (referred to in this section as the applicant), make an order creating an easement over land if the easement is reasonably necessary for the effective use or development of other land (whether registered or unregistered) that will have the benefit of the easement.

(2)

An order under subsection (1) may be made only if the court is satisfied —

(a)

that the use of the land to which the benefit of the easement is to be made appurtenant will not be inconsistent with the public interest;

(b)

that the person entitled to the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from the creation of the easement; and

(c)

that all reasonable attempts have been made by the applicant to obtain the easement or an easement having the same effect directly from the person entitled to the land to be burdened by the easement.

(3)

An order made under subsection (1) shall specify —

(a)

the nature of the easement and extent of the land burdened by the easement;

(b)

the dominant tenement; and

(c)

the conditions, limitations and restrictions (if any) intended to affect the enjoyment of the easement.

(4)

The costs of the proceedings are payable by the applicant, unless the court otherwise orders.

(5)

An easement created under this section shall not bind the land to which the benefit of the easement is to be made appurtenant until it has been registered under the Registration of Deeds Act 1988.

(6)

In this section, “interested person” means a person with an interest in the land to which the benefit of an easement created under this section will be made appurtenant.