Western Australian Current Acts

TRANSFER OF LAND ACT 1893 - SECT 129C

129C .         Supreme Court’s powers as to easements etc.

        (1)         Subject to subsection (1a), where land under this Act is subject to an easement or to any restriction arising under covenant or otherwise as to the user thereof or the right of building thereon, the court or a judge may from time to time on the application of any person interested in the land burdened or benefited, or any local government or public authority benefited, by the easement or restriction, by order wholly or partially extinguish, discharge or modify the easement or restriction upon being satisfied —

            (a)         that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed, or of changes in the character of the property or the neighbourhood or other circumstances of the case which the court or a judge may deem material the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or

            (b)         that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction whether in respect of estates in fee simple of any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed have agreed to the same being wholly or partially extinguished, discharged or modified or by their acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the restriction wholly or in part; or

            (c)         that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction.

        (1a)         An application under subsection (1)(a) or (c) to extinguish, discharge or modify a single dwelling covenant that benefits more than 10 lots shall be accompanied by —

            (a)         the applicant’s affidavit to the effect that the registered proprietor of each lot that is —

                  (i)         wholly or partially within the prescribed area; and

                  (ii)         benefited by the covenant the subject of the application or any other single dwelling covenant,

                has been given written notice, the form and content of which has been approved by the Registrar, of the proposed application; and

            (b)         the written consent of the registered proprietors (at the time the application is made) of the majority of the lots referred to in paragraph (a) to the extinguishment, discharge or the modification of the covenant as proposed.

        (1b)         For the purposes of subsection (1a)(b), the written consent of the registered proprietor of a lot that has 2 or more registered proprietors is taken to have been given if consent has been given by —

            (a)         in the case of proprietors who are joint tenants, the majority of those proprietors; or

            (b)         in the case of proprietors who are tenants in common, a proprietor who is, or 2 or more proprietors who between them are, entitled to the majority of undivided shares in the lot.

        (1c)         If a lot is subject to a mortgage or charge, the written consent of the registered proprietor of that lot is not to be taken into account for the purposes of subsection (1a)(b) unless it is accompanied by the written consent of the mortgagee or chargee of the mortgage or charge that is first in order of priority.

        (1d)         In subsection (1a), (1b) and (1c) —

        lot means a parcel of land that is shown on a plan (as defined in section 136A) as a lot;

        single dwelling covenant means a restrictive covenant that prohibits the construction of more than one dwelling on the lot burdened by the covenant.

        (2)         When any proceedings by suit or otherwise are instituted to enforce an easement, or to enforce any rights arising out of the breach of a restrictive covenant affecting land under this Act or any local government or public authority then any person against whom the proceedings are instituted may in such proceedings apply to the court or a judge for an order under this section.

        (3)         The court or a judge may on the application of any person interested make an order declaring —

            (a)         whether or not in any particular case any land under this Act or any local government or public authority is affected by an easement or by a restriction imposed by any instrument or created under Part IVA; or

            (aa)         what is the nature and extent of the easement and whether the same is enforceable and if so by whom; or

            (b)         what upon the true construction of any instrument, plan or diagram purporting to impose a restriction is the nature and extent of the restriction and whether the same is enforceable and if so by whom; or

            (c)         whether or not any easement or any restrictive covenant ought to be removed as an encumbrance from the Register.

        (4)         Notice of any application under this section shall, if the court or a judge so directs, be given to the local government of the district in which the land is situated and to such other persons and in such manner whether by advertisement or otherwise as the court or a judge either generally or in a particular instance may order.

        (5)         An order under this section shall when entered in the Register as hereinafter provided be binding on all persons whether of full age or capacity or not then entitled or thereafter becoming entitled to the easement or interested or thereafter becoming interested in enforcing any restriction which is thereby extinguished, discharged, modified, or dealt with and whether such persons are parties to the proceedings or have been served with notice or not.

        (6)         This section applies to easements and to restrictions whether subsisting at the commencement of this section or imposed thereafter whether or not created under Part IVA.

        (6a)         If an order is made on an application to which subsection (1a) applies, the applicant for the order shall apply to the Registrar, in an approved form and with payment of the prescribed fee, for the Registrar to make the amendments and entries in the Register necessary to give effect to the order.

        (7)         The Registrar shall on the prescribed application make all necessary amendments and entries in the Register for giving effect to such order in respect of all certificates of title specified therein.

        (8)         The costs of and incidental to an application made pursuant to the provisions of this section to the court or a judge shall not be awarded against the defendant or respondent in any event.

        (9)         This section does not apply to easements granted under section 144 of the Land Administration Act 1997 .

        [Section 129C inserted: No. 17 of 1950 s. 34; amended: No. 14 of 1972 s. 4; No. 14 of 1996, s. 4; No. 81 of 1996 s. 77 and 145(1) and (2); No. 31 of 1997 s. 113; No. 3 of 1999 s. 4; No. 30 of 2018 s. 200.]