Under s.3(2) Encroachment of Buildings Act 1922 the Land and Environment Court may by its own vesting order, (or by an order directed to the parties in the dispute) create an easement to permit an encroachment to remain.
The procedure for having the order recorded in the Torrens Register is the same as that for orders under s.88K Conveyancing Act 1919, which empowers the Supreme Court to impose an easement over a parcel of land provided the easement is reasonably necessary for the effective use or development of another parcel of land that will gain the benefit.
The Court must determine that:
- use of the land in accordance with the easement will not be inconsistent with the public interest,
- the owner of the land to be burdened by the easement can be adequately compensated for any detriment caused by imposition of the easement, and
- all reasonable attempts have been made by the applicant to obtain the easement by agreement with the owner of the land sought to be burdened.
Order of Court
- the Order of Court must identify the site of the easement by reference to a deposited plan of survey suitable for lodgment in NSW LRS. As an alternative a compiled/sketch plan annexed to a Request form 11R (PDF 131 KB) may with the prior approval of the Registrar General be acceptable.
- the Order is to provide for payment of compensation not only to the owner of the land to be burdened, but also to other parties with registered interests in the land (eg mortgagees, lessees).
Note Unless the Court orders otherwise, costs of the proceedings are to be paid by the applicant.
Registration of easement
An easement imposed by the Court only takes effect once it is registered by the Registrar General. For Torrens title land the Order should be annexed to a Request form 11R (PDF 131 KB) requiring the Registrar General to give effect to the Order. For Old System land the Order should be registered in the General Register of Deeds.
Variation, modification or release
An easement imposed by the Court, like other easements, may be released or varied by the parties concerned, or modified or released by the Court under s.89 Conveyancing Act 1919.