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REAL PROPERTY ACT 1886 - SECT 90B

90B—Variation and extinguishment of easements

        (1)         Subject to this section, the Registrar-General may on application (in a form approved by the Registrar-General) by the proprietor of the dominant or servient land or on the Registrar-General's own initiative—

            (a)         vary the position of, or extend or reduce the extent of, an easement over servient land; or

            (b)         vary an easement by extending the appurtenance of the easement to other land owned by the proprietor of the dominant land; or

            (c)         extinguish an easement.

        (2)         Subject to this section, the Registrar-General must not act under subsection (1) except on the application, or with the written consent, of the proprietor of the dominant land and the servient land and with the written consent of all other persons who—

            (a)         in the case of land under the provisions of this Act—appear from the Register Book to have, or to claim, an estate or interest in the dominant or servient land;

            (b)         in the case of land that is not under the provisions of this Act—are known to the Registrar-General (or who become known to the Registrar-General after making reasonable enquiry) to have, or to claim, an estate or interest in the dominant or servient land.

        (3)         The Registrar-General may dispense with the consent of the proprietor of the dominant or servient land required by subsection (2) if the Registrar-General is satisfied that—

            (a)         notice complying with subsection (3e) has been given to the proprietor; and

            (b)         28 days has passed since the notice was given; and

            (c)         the proprietor's estate or interest in the dominant or servient land will not be detrimentally affected by the proposed variation or extinguishment of the easement.

        (3a)         The Registrar-General may dispense with the consent of a person required by subsection (2) (other than the proprietor of the dominant or servient land) if he or she is satisfied that the person's estate or interest in the dominant or servient land will not be detrimentally affected by the proposed variation or extinguishment of the easement.

        (3b)         Without limiting the generality of subsection (3) or (3a), where—

            (a)         the original purpose of a right-of-way was to provide access to the dominant land to which it is appurtenant; and

            (b)         the right-of-way can no longer be exercised by the proprietor of that land for that purpose because the land has subsequently been separated from the right-of-way by the creation of intervening allotments,

the Registrar-General may extinguish the right-of-way without the consent of a person required by subsection (2) if he or she is satisfied that there is no reason to believe or suspect that the proprietor of that land, or a successor in title of the proprietor, has any reasonable prospect of using the right-of-way for access to that land in the future.

        (3c)         Without limiting the generality of subsection (3) or (3a), where dominant land is separated from a right-of-way appurtenant to the land by intervening land and the Registrar-General is satisfied that the continued existence of the right-of-way would not enhance the use or enjoyment of the dominant land, he or she may extinguish the right-of-way without the consent of a person required by subsection (2).

        (3d)         Before taking action under subsection (3b) or (3c) the Registrar-General must be satisfied that—

            (a)         notice complying with subsection (3e) has been given to the proprietor of the dominant land; and

            (b)         28 days has passed since the notice was given.

        (3e)         The notice referred to in subsections (3) and (3d) must—

            (a)         be approved by the Registrar-General; and

            (b)         include details of the proposed variation or extinguishment of the easement; and

            (c)         invite the person to whom it is given to make representations to the Registrar-General in relation to the proposal within 28 days.

        (4)         The Registrar-General may extinguish an easement under subsection (1) without the consent of a person required by subsection (2) if—

            (a)         —

                  (i)         in the opinion of the Registrar-General it is not reasonably practicable to ascertain the identity or whereabouts of that person; and

                  (ii)         the Registrar-General is satisfied that the proprietor of the dominant land has ceased to exercise the rights conferred by the easement; and

            (b)         the Registrar-General has published notice of his or her intention to act under subsection (1) in the Gazette and in a newspaper circulating generally throughout the State; and

            (c)         where the person's identity is known—the Registrar-General has sent notice of his or her intention to act under subsection (1) by post addressed to the person at his or her last address known to the Registrar-General; and

            (d)         at least 21 days has elapsed since—

                  (i)         notice was published under paragraph (b); and

                  (ii)         where paragraph (c) applies, notice was posted under that paragraph.

        (6)         Subject to subsection (7), the proprietor of dominant land cannot transfer or convey the land without the easement that is appurtenant to it.

        (7)         The proprietor of dominant land or of some part of it may transfer or convey part of the land without the appurtenant easement if rights under the easement continue in existence in respect of some other part of the dominant land.

        (8)         The easement is extinguished in respect of land transferred or conveyed under subsection (7).

        (9)         Where, in the opinion of the Registrar-General, the creation or continuance of an easement was, or was likely to have been, a requirement on which—

            (aa)         the issue of a certificate by the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 ; or

            (a)         the issue of a certificate by the Development Assessment Commission under section 51 of the Development Act 1993 ; or

            (b)         the issue of a certificate by a council or the South Australian Planning Commission under Part 19AB; or

            (c)         the approval of an application for the deposit of a strata plan by the South Australian Planning Commission or a council; or

            (d)         the consent or approval of an authority under a corresponding previous enactment,

was based—

            (e)         the easement cannot be varied or extinguished under this section; and

            (f)         the appurtenance of the easement cannot be extended to other land under this section; and

            (g)         the easement cannot be merged with the servient land by transfer or conveyance of the easement to the proprietor of the servient land or the transfer or conveyance of the servient land to the proprietor of the easement; and

            (h)         part of the dominant land cannot be transferred or conveyed separately from the easement thereby extinguishing the easement in respect of that land,

without the consent of the Development Assessment Commission.

        (10)         Upon the variation or extinguishment of an easement under this section the Registrar-General must make such consequential entries in the Register Book or such entries in the records of the General Registry Office as he or she considers necessary.

        (11)         A reference in this section to dominant land includes a reference to an easement that is not appurtenant to any land.

        (12)         This section is subject to and does not derogate from any other Act relating to the variation or extinguishment of easements of a particular class.



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