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.