Division 5In this Division:easement includes an easement without a dominant tenement referred to in section 88A of the Conveyancing Act 1919.
holder, in relation to:
(a) any prescribed land (other than land referred to in paragraph (b)), means the person who is registered in an official record as the holder of the land and, if the person appears to be a mortgagee, includes the person who, according to that record, appears to be the mortgagor, and(b) any prescribed land which has been brought under the provisions of the Real Property Act 1900 (other than land of which The State of New South Wales is the registered proprietor) means any person recorded in the folio of the Register relating to the land as the holder of a lease from the Crown over the land or as a mortgagee of such a lease.prescribed land means Crown land or land dedicated for a public purpose, except:
(a) land subject to the provisions of the Real Property Act 1900 (other than land of which The State of New South Wales is the registered proprietor),(b) land comprised in a lease in perpetuity, and(c) (Repealed)
(1) The Minister may:(a) if prescribed land is subject to the provisions of the Real Property Act 1900—create an easement over the land in the way provided in that Act or in section 88B of the Conveyancing Act 1919, and(b) if prescribed land is not subject to the provisions of the Real Property Act 1900—create an easement over the land:(i) in the way provided in section 88B of the Conveyancing Act 1919, or(ii) by notification in the Gazette.(2) The Minister may create the easement on such terms, and subject to such conditions as the Minister thinks fit, including terms and conditions relating to the payment of compensation to the Crown.(3) The benefit of an easement created under this section may be annexed to land even if, at the time the easement is created, the land is vested in the Crown.(4) An easement created under this section is not extinguished because the land having the benefit of the easement or the burden of the easement becomes, or both become, vested in the Crown.(5) Sections 88A and 181A of the Conveyancing Act 1919 apply to a notification or instrument purporting to create an easement under this section.(6) Section 89 of the Conveyancing Act 1919 applies to an easement created under this section.
(1) Where an easement benefiting any Crown land or other land vested in the Crown has been created in respect of the land, the Minister may, at any time:(a) if the land is subject to the provisions of the Real Property Act 1900—release, in accordance with that Act, the easement benefiting the land, or(b) if the land is not subject to the provisions of the Real Property Act 1900—release the easement benefiting the land by notification in the Gazette.(2) Nothing in this Division affects any right of any other person to release an easement created under this Division.
54 Effective date of creation or release of easements
The creation or release of an easement by notification in the Gazette under this Division takes effect on the date of publication of the notification or on a later date specified in the notification.
55 Consent of holders required
(1) The Minister shall not create or release an easement under this Division unless the Minister is satisfied:(a) in the case of the creation of an easement over prescribed land—that the holder (if any) for the time being of the land has consented to the creation of the easement, or(b) in the case of the release of an easement over prescribed land—that the holder (if any) for the time being of the land having the benefit of the easement has consented to the release of the easement.(2) If the Minister purports to create or release an easement under this Division, it shall be conclusively presumed that this section has been complied with in relation to the creation or release.
56 Creation of easements for public access
(1) There shall be an easement called an easement for public access.(2) An easement for public access may be created for the benefit of the Crown without a dominant tenement.(3) An easement for public access may be created:(a) over Crown land proposed to be sold under this Act—by the Minister at any time before the sale,(a1) over land dedicated under this Act for a public purpose—by the Minister,(a2) over Crown land authorised to be sold or transferred by the Minister under any other Act—by the Minister at any time before the sale or transfer,(b) over land held under lease from the Crown—by the Minister with the consent of the lessee, or(c) over freehold land—by the owner.(4) An easement for public access may be created:(a) if the land is subject to the provisions of the Real Property Act 1900—in the way provided in that Act or in section 88B of the Conveyancing Act 1919, or(b) if the land is not subject to the provisions of the Real Property Act 1900—in the way provided in section 88B of the Conveyancing Act 1919.(5) An easement for public access may be defined by reference to a natural or physical feature as it exists from time to time.
57 Rights of public to use easements for public access
(1) An easement for public access confers on the public a right to enter the subject land and to carry on any activity other than a prescribed activity.(2) A person shall not carry on a prescribed activity on land the subject of an easement for public access.Maximum penalty—subsection (2): 5 penalty units.
58 Rights of owners or lessees of affected land
(1) An owner or lessee whose land is affected by an easement for public access:(a) may erect a fence or gate on the land the subject of the easement if it does not unduly hinder public entry to the land, and(b) may not erect any structure, other than a fence or gate or a structure of a prescribed type, on the land the subject of the easement without the written consent of the Minister.(2) Section 158 (removal of unauthorised structures) applies in respect of structures erected on land the subject of an easement for public access in the same way as it applies in respect of structures erected on public land.(3) An owner or lessee who suffers damage caused by a person using an easement for public access contrary to this Act or the regulations may recover damages from the person.(4) In this section:structure includes any ditch, canal or other excavation.
59 Recording of particulars in the Register
If an easement is created or released under this Division in respect of land subject to the provisions of the Real Property Act 1900, the Registrar-General may record such particulars of the creation or release as the Registrar-General considers necessary in any folio of the Register relating to land which, in the Registrar-General’s opinion, is affected by the creation or release of the easement.