New South Wales Consolidated Acts

REAL PROPERTY ACT 1900 - SECT 49

49 Cancellation of recordings of easements after abandonment, consolidation of tenements or release

(1) The Registrar-General may cancel a recording relating to an easement in the Register if the easement has been abandoned.

(1A) The Registrar-General may, under this section, cancel a recording relating to an easement in relation to--

(a) all of the land benefited or burdened by the easement, or

(b) any one or more of the lots, or part of a lot, burdened by the easement, or

(c) any one or one or more of the lots benefited by the easement.

(2) An easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years before the application for the cancellation of the recording is made to the Registrar-General, whether that period commenced before, on or after, the date of assent to the Property Legislation Amendment (Easements) Act 1995 .

(3) However, an easement is not capable of being abandoned--

(a) if the easement does not benefit land, or

(b) to the extent (if any) that the easement benefits land owned by the Crown, or by a public or local authority constituted by an Act, or

(c) if the easement is of a class of easements prescribed by the regulations as being incapable of being abandoned.

(4) Before cancelling any such recording, the Registrar-General must--

(a) serve a notice of intention to cancel the recording, personally or by post, on--

(i) where the instrument creating the easement does not allow the identification of the land benefited by the easement--any person that the Registrar-General considers should receive such a notice taking into consideration the nature and location of the easement, the circumstances surrounding the creation of the easement and the physical characteristics of any relevant land, or

(ii) in any other case--all persons having a registered estate or interest in land benefited by the easement, and

(b) consider any submission made by those persons (but only if the submission is made by the date specified in the notice, being a date later than one month from the date on which the notice is served).

(4A) However, the Registrar-General may give notice of the intention to cancel a recording to some or all of the persons referred to in subsection (4) (a) by advertisement in a newspaper rather than by personal or postal service if the Registrar-General is of the opinion that--

(a) it is appropriate in the circumstances to give notice by advertisement in a newspaper, and

(b) the relevant easement is unlikely to be of real benefit to the land benefited by the easement because the land benefited is no longer connected to the land burdened by the easement in a way that allows access to the site of the easement.

(5) The Registrar-General may cancel a recording in the Register relating to an easement--

(a) if satisfied that the recording relates to land for which the easement has no practical application because separate parcels of land that were respectively burdened and benefited by the easement have been consolidated into a single parcel, or

(b) if the easement has been released under section 88B of the Conveyancing Act 1919 .

(6) An application for cancellation of any such recording must be made in the approved form or in a form prescribed by regulations made under the Conveyancing Act 1919 .