Division 2 Rights of way

35R   Definitions

In this Division:

beneficiary, in relation to a special easement, means:

(a)  any lessee of land benefited by the easement, or

(b)  any other person or body in whose favour the easement has been created as referred to in section 88A of the Conveyancing Act 1919.

special easement means an easement created under section 35S.

35S   Minister may create easements for right of way

(1)  The Minister may, by instrument lodged with the Registrar-General, create the following easements over land within the Western Division that, in the Minister’s opinion, is being used as a road or track:

(a)  an easement in the nature of a right of way,

(b)  such other easements as are appropriate to the construction and maintenance of a right of way.

(2)  Such an instrument:

(a)  may not be lodged with respect to freehold land, and

(b)  may only be made with respect to land held under a lease on the application of the lessee or lessees of the land, and

(c)  must specify the beneficiary of the easement or the land to which the benefit of the easement is appurtenant.

(3)  An instrument lodged under subsection (1) is to be made by reference to a plan that is registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919.

(4)  On receiving an instrument lodged under subsection (1), the Registrar-General may record such particulars of the creation of the special easement 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 of the easement.

(5)  No duty is payable under the Duties Act 1997 in respect of an instrument lodged under subsection (1).

(6)  Sections 88A and 181A of the Conveyancing Act 1919 apply to an instrument lodged under subsection (1).

(7)  An easement referred to in section 88A of the Conveyancing Act 1919 may be created not only in favour of a public authority referred to in that section but also in favour of such other persons or bodies as may be specified in that regard by the plan referred to in subsection (3), in which case any reference in that section to a public authority extends to any person or body so specified.

(8)  As soon as practicable after a special easement is created, the Minister must cause notice of that fact to be given to:

(a)  each beneficiary of the easement, and

(b)  each lessee of land over which the easement is in force.

(9)  Section 89 of the Conveyancing Act 1919 does not apply to a special easement.

(10)  Neither the creation of a special easement in respect of any land held under a lease, nor a lessee’s request for the creation of a special easement in respect of any such land, is to be regarded:

(a)  as a breach of any contractual provision prohibiting, restricting or regulating the lessee’s right to deal with the land, or

(b)  as giving rise to any remedy by a party to any legal instrument, or as causing or permitting the termination of any legal instrument, because of the creation of the easement or the making of the request.

(11)  This section applies to land held under a lease granted or issued before the commencement of this section, but does not apply to land held under a lease granted or issued after that commencement.

(12)  In this section and in section 35T, the Register means the Register kept under the Real Property Act 1900.

35T   Minister may extinguish special easements

(1)  On the application of:

(a)  each beneficiary of a special easement, and

(b)  in the case of a special easement over land held under a lease, each lessee of the land,

      the Minister may, by instrument lodged with the Registrar-General, release the easement.

(2)  On receiving an instrument lodged under subsection (1), the Registrar-General may record such particulars of the release of the special easement 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 release of the easement.

(3)  No duty is payable under the Duties Act 1997 in respect of an instrument lodged under subsection (1).

(4)  As soon as practicable after a special easement is released under this section, the Minister must cause notice of that fact to be given to:

(a)  each former beneficiary of the easement, and

(b)  each lessee of land over which the easement was formerly in force.

35U   Mediation of disputes as to easements

(1)  If there is a dispute between two or more lessees of land over a proposal to create or release a special easement, either of them may apply to a local land board for mediation of the dispute.

(2)  Attendance at, and participation in, proceedings on the application are voluntary.

(3)  The local land board is to use its best endeavours to bring the parties to the proceedings to a resolution of the dispute.

(4)  Each party to the proceedings is to bear his or her own costs with respect to the proceedings.

(5)  Testimony given, and documents tendered, in the proceedings are not admissible as evidence in any other proceedings before any court or tribunal.

(6)  A local land board, and parties to proceedings before a local land board, have the same protections and immunities in relation to proceedings brought before the local land board under this section as a Local Court, and parties to proceedings before a Local Court, have in relation to civil proceedings brought before the Local Court.