Conveyancing and Lawof Property Act 1886 · 2020 Revised Edition · Part 5A · Easements
34B. Power of court to vary or extinguish easements
Feedback & supportLast amended by an amending law of 2015. 2 amendments in all.
The court may, on application by any person with an interest in land which is subject to the burden of an easement, make an order to vary or extinguish wholly or in part the easement over that land.
An order under subsection (1) may be made upon the court being satisfied —
that by reason of a change of use of the land affected, as approved by planning permission within the meaning of the Planning Act 1998, or of changes in the character of the land or the neighbourhood, or other circumstances the court considers material, the continued existence of the easement will, unless varied or extinguished, impede the development of the land for public or private purposes without securing practical benefits to the persons entitled to the easement; or
that the proposed variation or extinguishment will not substantially injure the persons entitled to the easement.
An order varying or extinguishing wholly or in part an easement under subsection (1) may direct the applicant to pay to any person entitled to the benefit of the easement such sum by way of compensation as the court may think just to award under one, but not both, of the following heads:
a sum to make up for any loss or disadvantage suffered by that person in consequence of the variation or extinguishment;
a sum to make up for any effect which the easement had at the time when it was imposed in reducing the consideration then received for the land affected by it.
An order made under subsection (1) shall not bind the land until it has been registered under the Registration of Deeds Act 1988.
land
“land” includes land freehold and leasehold, or of whatever tenure, and tenements and hereditaments, corporeal or incorporeal, and houses and other buildings, and also an undivided share in land; In relation to land;
To avoid doubt, the reference in subsection (1) to an easement includes a reference to an easement for subjacent support that is implied by section 10 of the State Lands Act 1920.