Consolidation of tenements applies where the registration of a plan causes part of the servient tenement (land burdened by the easement) to form part of the dominant tenement (land benefited by the easement) of an existing easement.
Old System title
Under Old System title, an easement is automatically extinguished where the dominant and servient tenements are united in a common ownership in fee simple.
Prior to 1970, in general the same rule applying to Old System title applied to the Torrens title system.
Between 1 July 1970 and 1 August 1996 (s.47(7) Real Property Act 1900) a merger of dominant and servient tenement parcels did not extinguish easements recorded in the Torrens Register, nor did common ownership of the tenements terminate easements created under s.88B Conveyancing Act 1919.
Since 1 August 1996, where land both benefited and burdened by an easement has been consolidated into a single parcel, the Registrar General may cancel the easement by union of tenements. [see s.49(5) and (6) Real Property Act 1900].
The legislation is silent in respect to common ownership of the dominant and servient tenements. Consequently, NSW LRS will omit the easement from a certificate of title issuing following registration of a new plan, provided the matter is of a relatively simple nature and there is common ownership (as opposed to part ownership formerly comprised in the subdivided title(s)). In all other cases, the relevant notifications will only be removed following lodgment and registration on an appropriate dealing or section 88B instrument.
Note This procedure may also be adopted where the subdivided folio(s) of the Register contain a composite easement notification such as..............appurtenant to the part shown so benefited affecting the part shown so burdened...............