s88 conveyancing act 1919

S88 CONVEYANCING ACT 1919

88 Requirements for easements and restrictions on use of land

(1) Except to the extent that this Division otherwise provides, an easement expressed to be created by an instrument coming into operation after the commencement of the Conveyancing (Amendment) Act 1930, and a restriction arising under covenant or otherwise as to the user of any land the benefit of which is intended to be annexed to other land, contained in an instrument coming into operation after such commencement, shall not be enforceable against a person interested in the land claimed to be subject to the easement or restriction, and not being a party to its creation unless the instrument clearly indicates:

(a) the land to which the benefit of the easement or restriction is appurtenant,

(b) the land which is subject to the burden of the easement or restriction: Provided that it shall not be necessary to indicate the sites of easements intended to be created in respect of existing tunnels, pipes, conduits, wires, or other similar objects which are underground or which are within or beneath an existing building otherwise than by indicating on a plan of the land traversed by the easement the approximate position of such easement,

(c) the persons (if any) having the right to release, vary, or modify the restriction, other than the persons having, in the absence of agreement to the contrary, the right by law to release, vary, or modify the restriction, and

(d) the persons (if any) whose consent to a release, variation, or modification of the easement or restriction is stipulated for.

(1A) Land (including the site of an easement) is clearly indicated for the purposes of this section if it is shown:

(a) in the manner prescribed by regulations made under this Act or the Real Property Act 1900, or

(b) in any other manner satisfactory to the Registrar-General in the particular case or class of cases concerned.

This subsection does not limit other ways in which land may be clearly indicated.

(2) This section shall not prevent the enforcement by a person entitled to a reversion remainder or other future estate or interest in any land of any contract against a person entitled to the estate or interest on which the reversion remainder or other future estate or interest is expectant.

(3) This section applies to land under the provisions of the Real Property Act 1900, and in respect thereof:

(a) the Registrar-General shall have, and shall be deemed always to have had, power to record a restriction referred to in subsection (1), in such manner as the Registrar-General considers appropriate, in the folio of the Register kept under that Act that relates to the land subject to the burden of the restriction, to record in like manner any dealing purporting to affect the operation of a restriction so recorded and to record in like manner any release, variation or modification of the restriction,

(b) a recording in the Register kept under that Act of any such restriction shall not give the restriction any greater operation than it has under the dealing creating it, and

(4) Subsection (1) does not apply to an easement without a dominant tenement acquired by or for a prescribed authority referred to in section 88A, nor to any restriction on the use of land in relation to any such easement.

88AA Limitation of enforceability of profits Ã prendre

(1) Except to the extent to which this Division otherwise provides, a profit Ã prendre expressed to be created by an instrument coming into operation after the commencement of the Conveyancing (Forestry Rights) Amendment Act 1987 shall not be enforceable against a person interested in land claimed to be subject to the profit Ã prendre (other than a person who is a party to the instrument) unless the instrument indicates:

(a) the land which is subject to the burden of the profit Ã prendre, and

(b) in the case of a profit Ã prendre that is expressed to benefit land--the land to which the benefit of the profit Ã prendre is appurtenant.

(2) This section shall not prevent the enforcement, by a person entitled to a reversion, remainder or other estate or interest in any land, of any agreement against a person entitled to the estate or interest on which the reversion, remainder or other estate or interest is expectant.

88AB Forestry rights to be deemed to be profits Ã prendre

(1) A forestry right shall, for all purposes, be deemed to be a profit Ã prendre.

(2) If a forestry right consists in whole or in part of a carbon sequestration right, the profit Ã prendre deemed to exist by subsection (1) in relation to the carbon sequestration right consists of the following:

(a) the profit from the land is taken to be the legal, commercial or other benefit (whether present or future) of carbon sequestration by any existing or future tree or forest on the land that is the subject of the carbon sequestration right,

(b) the right to take something from the land is taken to be the right to the benefit conferred by the carbon sequestration right.

88AC Other easements and restrictions appurtenant to easements

(1) Another easement, or the benefit of a restriction on the use of land, may be made appurtenant or annexed to an easement.

(2) The power conferred by this section is taken always to have existed.

(3) This section applies, and is taken always to have applied, to land under the provisions of the Real Property Act 1900.

88A Easements in gross

(1) In this section:"prescribed authority" means:

(a) the Crown, or

(b) a public or local authority constituted by an Act, or

(1A) An easement without a dominant tenement may be created in favour of a prescribed authority, and any such easement may be assured to a prescribed authority.

(1B) However, an easement without a dominant tenement may only be created in favour of, or assured to, a corporation prescribed by the regulations for the purposes of this section if the easement is for the purpose of, or incidental to, the supply of a utility service to the public, including (but not limited to):

(a) the supply of gas, water or electricity, or

(b) the supply of drainage or sewage services.

(1C) Nothing in subsection (1B) prevents the creation by a corporation prescribed by the regulations for the purposes of this section of an easement for the purpose of, or incidental to, the provision of rail infrastructure facilities.

(2) In an instrument which:

(a) takes effect on or after 15 June 1964 (the commencement of the Local Government and Conveyancing (Amendment) Act 1964),

(b) purports to create a right-of-way or drainage easement without a dominant tenement, and

the expressions "right of carriage way", "right of footway", "easement to drain water" and "easement to drain sewage" have the same effect as if there had been inserted in lieu thereof respectively the words contained in Schedule 4A.

(2A) In an instrument which takes effect after the commencement of Schedule 1 [5] to the Property Legislation Amendment (Easements) Act 1995 and purports to create or assure an easement without a dominant tenement of the following kind in favour of or to a prescribed authority, the following expressions have effect as if the words attributed in Schedule 4A to those expressions were inserted instead:

easement for repairs

easement for drainage of sewage

easement for drainage of water

easement for electricity purposes

easement for services

easement for water supply

right of access

(2B) The meaning given to an expression by this section and Schedule 4A may be varied (whether by way of addition, exception, qualification or omission), and is taken to have always been capable of being so varied, by the instrument in which the expression is used.

(2C) In Schedule 4A:

(a) a body includes any person for the time being authorised by the body, and

(b) a lot includes any other distinct piece or parcel of land (such as an island, a portion of a Parish or a Section).

(2D) The power conferred by this section is taken always to have existed. However, the power conferred by this section on a corporation prescribed by the regulations for the purposes of this section confers that power on and from the date the corporation is first so prescribed if the regulations so provide.

(2E) The restriction imposed by subsection (1B) on the power conferred by this section does not apply to an easement created or assured before the commencement of that subsection.

(3) This section applies and shall be deemed always to have applied to land under the provisions of the Real Property Act 1900.

(4)-(8) (Repealed)

88BA Positive covenants for maintenance or repair

(1) A covenant may be imposed requiring the maintenance or repair, or the maintenance and repair, of land that is the site of an easement or other land that is subject to the burden of the easement (or both) by any one or more of the persons from time to time having the benefit or burden of the easement.

(2) Such a covenant may be imposed:

(a) by registration under this Act or the Real Property Act 1900 (as the case may require) of the instrument indicating the persons bound by or including the terms of the easement, if the terms of the covenant are included in that instrument, or

(b) by registration under the Real Property Act 1900 of a memorandum of positive covenant in the form approved under that Act that includes the terms of the covenant, if the site of the easement is under the provisions of that Act, or

(c) by registration under Division 1 of Part 23 of a deed expressed to be made under this section and including the terms of the covenant, if the site of the easement is not under the provisions of that Act.

(3) The instrument including the covenant must clearly indicate the land which is to be maintained or repaired, the land to which the benefit of the covenant is appurtenant and the land which is subject to the burden of the covenant. If the land is subject to an easement without a dominant tenement created in favour of a prescribed authority (as referred to in section 88A), the instrument must indicate the name of the prescribed authority.

(4) The instrument must be executed by each person to be bound by the covenant:

(a) who has an estate or interest registered under the Real Property Act 1900 in land to which the benefit or burden of the covenant relates, or

(b) who is seised or possessed of an estate or interest in land to which the benefit or burden of the covenant relates, if the land is not under the provisions of that Act.

(5) When recorded in the Register kept under the Real Property Act 1900, such a covenant is an interest within the meaning of section 42 of that Act.

(6) Such a covenant may be released or varied:

(a) by registration under the Real Property Act 1900 of a dealing in the form approved under that Act providing for the release of the covenant or for variation of the covenant, if the site is under the provisions of that Act, or

(b) by registration under Division 1 of Part 23 of a deed of release or a deed of variation, if the site is not under the provisions of that Act.

(7) The instrument releasing or varying the covenant must be executed by:

(a) each person for the time being entitled to enforce the covenant or otherwise having the benefit of the covenant, and

(b) each person against whom the covenant may be enforced for the time being, in the case of a variation.

88BB Creation of cross-easements for party walls by plans

(1) A plan lodged for registration or recording under Division 3 of Part 23 after the commencement of this section is, for the purposes of section 88B (2) (c), taken to be intended to create cross-easements if:

(a) a boundary of a lot is shown in the plan as passing longitudinally through the whole or any part of a wall, and

(b) the wall is described in the plan as a "party wall".

(2) The benefit of such an easement is appurtenant to each lot shown in the plan as consisting of or including a portion of the wall.

(3) Each lot shown in the plan as consisting of or including another portion of the wall is subject to the burden of the easement.

(4) The easement entitles each person for the time being having the benefit of the easement to the continued existence of each portion of the wall:

(a) that is necessary for the support of so much of the building as is contained within the lot to which the easement is appurtenant, and

(b) that consists of or is included within another lot which is subject to the burden of the easement.

88B Creation and release of easements, profits Ã prendre and restrictions on use of land by plans

(1) In this section "public road" and "road" have the meanings respectively ascribed to those expressions by the Roads Act 1993.

(2) A plan shall not be lodged in the office of the Registrar-General for registration or recording under Division 3 of Part 23 unless it indicates in the manner prescribed in respect of the plan by regulations made under this Act or the Real Property Act 1900:

(a) what easements, if any, are intended to be created:

(i) burdening land comprised in the plan and appurtenant to any existing roads shown on the plan, and

(ii) appurtenant to any roads to be vested upon registration of the plan,

(b) what easements, if any, referred to in section 88A are intended to be created burdening land comprised in the plan and in whose favour those easements are intended to be created,

(c) what other easements or profits Ã prendre, if any, are intended to be created appurtenant to or burdening land comprised in the plan, and

(c1) what easements or profits Ã prendre, if any, appurtenant to or burdening land comprised in the plan are intended to be released or partially released, and

(d) what restrictions on the use of land or positive covenants, if any, are intended to be created benefiting or burdening land comprised in the plan.

(3) On registration or recording under Division 3 of Part 23 of a plan upon which any easement, profit Ã prendre, restriction or positive covenant is indicated in accordance with paragraph (a), (b), (c) or (d) of subsection (2) then, subject to compliance with the provisions of this Division:

(a) any easement so indicated as intended to be created as appurtenant to any existing public roads shown in the plan or any roads to be vested in the council upon registration of the plan shall be created and shall without any further assurance vest in the council by virtue of such registration and of this Act,

(b) any easement so indicated as intended to be created pursuant to section 88A shall be created and shall without any further assurance vest in the relevant prescribed authority referred to in that section by virtue of such registration and of this Act,

(c) any other easement, profit Ã prendre or any restriction on the use of land (not being a restriction as to user of the type that may be imposed under section 88D or 88E) so indicated as intended to be created shall:

(i) be created,

(ii) without any further assurance and by virtue of such registration or recording and of this Act, vest in the owner of the land benefited by the easement or profit Ã prendre or be annexed to the land benefited by the restriction, as the case may be, notwithstanding that the land benefited and the land burdened may be in the same ownership at the time when the plan is registered or recorded and notwithstanding any rule of law or equity in that behalf, and

(iii) not be extinguished by reason of the owner of a parcel of land benefited by such easement, profit Ã prendre or restriction holding or acquiring a greater interest in a separate parcel of land burdened thereby, and

(d) any restriction on the use of land or positive covenant that is of the type that may be imposed under section 88BA, 88D or 88E and is so indicated as intended to be created takes effect as if it had been so imposed.

(3AA) On registration or recording under Division 3 of Part 23 of a plan on which a release of an easement or profit Ã prendre is indicated in accordance with subsection (2) (c1), the easement or profit Ã prendre is released.

(3A) When creating a folio of the Register kept under the Real Property Act 1900 for land benefited by any easement, or for land burdened by any easement, restriction on the use of land or positive covenant, created by this section, the Registrar-General shall record in that folio, in such manner as the Registrar-General considers appropriate, the easement, restriction on the use of land or positive covenant, as the case may be.

(4) Any restriction on the use of land or positive covenant created by this section shall for the purposes of this Act and the Real Property Act 1900, have effect as if it was contained in a deed.

88C Restrictions relating to brick construction

(1) In this section "restriction" means a restriction as to the user of land that arose, under covenant or otherwise, before the commencement of the Conveyancing (Amendment) Act 1972, or so arises after that commencement, the benefit of which is intended to be annexed to other land.

(2) For the purposes of this section:

(a) a wall of a building or structure is of brick veneer construction in so far as the outer part of that wall consists of brick having a thickness of at least 76 millimetres and the inner part of that wall consists of a material other than brick, and

(b) a building or structure is of brick veneer construction if its external walls are of brick veneer construction, or partly of brick construction and partly of brick veneer construction, whether or not its other walls are so constructed.

(3) To the extent to which a restriction:

(a) does not operate to prohibit the erection on land to which the restriction relates of a building or structure having walls of brick, and

(b) does not exclude the operation of this section by specific reference thereto or does not, by the express use in the instrument under which it arises of terms appropriate to describe brick veneer construction, operate to prohibit the use of that form of construction in a building or structure to be erected on that land,

it is not a breach of the restriction to erect on that land a building or structure of brick veneer construction.

(4) This section applies to and in respect of a building or structure erected before or after the commencement of the Conveyancing (Amendment) Act 1972, and so applies as if a building or structure erected before that commencement had been erected after that commencement.

88D Regulation of use of land held by a prescribed authority

(1) In this section:"prescribed authority" means:

(a) the Crown,

(b) a public or local authority constituted by an Act, or

"prescribed land" means land vested in a prescribed authority.

(2) A prescribed authority may, by an order that:

(a) describes the land in a manner enabling it to be identified and specifies, in the case of land under the provisions of the Real Property Act 1900, the reference to the folio of the Register kept under that Act, or the registered dealing under that Act, that evidences the title to that land,

(b) specifies the particulars of the restrictions or public positive covenants, and

impose restrictions on the use of or impose public positive covenants on any prescribed land vested in it.

(3) Subject to subsection (7), upon lodgment in a form approved by the Registrar-General of a copy of an order made under subsection (2), the Registrar-General shall:

(a) where the land to which the order relates is land under the provisions of the Real Property Act 1900 --make such recordings in the Register in respect of the restriction or public positive covenant as the Registrar-General considers appropriate, or

(b) in any other case--cause the copy of the order to be registered in the General Register of Deeds kept under Division 1 of Part 23.

(4) For the purposes of Division 1 of Part 23, a copy of an order registered pursuant to subsection (3) (b) shall be deemed to be a registration copy of an instrument duly registered under that Division.

(5) A restriction or public positive covenant referred to in an order made under subsection (2):

(a) has no force or effect:

(i) unless it is recorded, or the copy of the order is registered, pursuant to subsection (3), and

(ii) unless, at the time when that recording or registration is effected, the land to which the restriction or public positive covenant relates is vested in the prescribed authority which made the order,

and subject thereto takes effect upon being so recorded or registered, and

(b) when recorded as provided by subsection (3) (a), has no greater operation than it has under the order that relates to it and under this section.

(6) Where a restriction or public positive covenant is recorded pursuant to subsection (3) (a), the restriction or public positive covenant is an interest within the meaning of section 42 of the Real Property Act 1900.

(7) Where the Registrar-General is satisfied that, by the operation of subsection (5) (a) (ii), a restriction or public positive covenant referred to in an order made under subsection (2) would have no force or effect if recorded under subsection (3) or if a copy of the order in which the restriction or public positive covenant is referred to is registered under that subsection, the Registrar-General shall, where the land described in the order is land under the provisions of the Real Property Act 1900, and may, in any other case, refuse to record the restriction or public positive covenant or, as the case may require, to register a copy of the order in which the restriction or public positive covenant is referred to.

(8) Subject to subsection (9), where a restriction or public positive covenant takes effect under this section the prescribed authority which made the order by which the restriction or public positive covenant was imposed may enforce the restriction or public positive covenant against a person claiming an interest in the land described in the order as if, upon the acquisition by that person of that interest, that person had entered into a binding covenant with that prescribed authority to observe the restriction or public positive covenant.

(9) Subsection (8) does not authorise enforcement against a person claiming an interest in land of a restriction or public positive covenant imposed on the land under this section where that person:

(a) is a person who, at the time the restriction or public positive covenant took effect, had acquired that interest or had acquired or become entitled to an option to purchase that interest, or

(b) is a person claiming that interest through or under a person referred to in paragraph (a).

(10) (Repealed)

(11) The powers of a prescribed authority to rescind or revoke an order made under subsection (2) may be exercised in relation to the whole of the land described in the order or any part thereof.

(12) Where an order rescinding or revoking an order made under subsection (2) is made, the prescribed authority which made the order rescinded or revoked shall lodge with the Registrar-General in a form approved by the Registrar-General a copy of the order of rescission or revocation and subsections (3) and (4) shall apply to and in respect of such a copy so lodged as if it were a copy of an order made under subsection (2).

(13) Subject to subsection (14), a restriction or public positive covenant imposed on land under this section may be varied by an agreement in writing between the prescribed authority which made the order by which the restriction or public positive covenant was imposed and the person or persons against whom, at the time of the recording or registration referred to in subsection (14), the restriction or public positive covenant is enforceable.

(14) An agreement referred to in subsection (13) does not take effect unless:

(a) where the land to which the restriction or public positive covenant relates is under the provisions of the Real Property Act 1900 --the agreement is recorded under subsection (15), or

(b) in any other case--the agreement is by deed registered under Division 1 of Part 23.

(15) Where an agreement referred to in subsection (13) relates to a restriction or public positive covenant imposed on land under the provisions of the Real Property Act 1900, the Registrar-General, upon lodgment in the Registrar-General's office of an application in the form approved under that Act, shall, in the Register kept under that Act, make such recordings with respect to the agreement as the Registrar-General considers appropriate.

88E Regulation of use of land not held by a prescribed authority

(1) In this section "prescribed authority" means:

(a) the Crown,

(b) a public or local authority constituted by an Act, or

(2) A prescribed authority may, in accordance with this section, impose restrictions on the use of or impose public positive covenants on any land not vested in the authority, so that the restriction or public positive covenant is enforceable by the authority whether or not the benefit of the restriction or public positive covenant is annexed to other land.

(3) A restriction or public positive covenant referred to in subsection (2) may be imposed in relation to land under the provisions of the Real Property Act 1900 by a memorandum of restriction or public positive covenant in the form approved under that Act that:

(a) specifies the prescribed authority that is imposing the restriction or public positive covenant,

(b) is executed by that prescribed authority, by the registered proprietor of the land and by each other person who has a registered estate or interest in the land and is to be bound by the restriction or public positive covenant, and

and such a restriction or public positive covenant takes effect when the Registrar-General has made, in the Register kept under that Act, such recordings with respect to the restriction or public positive covenant as the Registrar-General considers appropriate.

(4) A restriction or public positive covenant referred to in subsection (2) may be imposed in relation to land that is not under the provisions of the Real Property Act 1900 by a deed that:

(a) is expressed to be made pursuant to this section,

(b) specifies the prescribed authority that is imposing the restriction or public positive covenant, and

(c) is executed by that prescribed authority, by the owner of the land and by each other person who is seised or possessed of any estate or interest in the land and is to be bound by the restriction or public positive covenant,

and such a restriction or public positive covenant takes effect when the deed by which it is imposed is registered under Division 1 of Part 23.

(5) Where a restriction or public positive covenant referred to in subsection (2) takes effect, the prescribed authority that imposed the restriction or public positive covenant may enforce it against any person who is, or claims under, a signatory to the memorandum or deed that imposed the restriction or public positive covenant as if that person had entered into a binding covenant with that prescribed authority to observe the restriction or public positive covenant.

(6) Where a restriction or public positive covenant referred to in subsection (2) is recorded in the Register kept under the Real Property Act 1900, the restriction or public positive covenant is an interest within the meaning of section 42 of that Act.

(7) A restriction or public positive covenant imposed pursuant to this section may be released or varied:

(a) where the land affected by the restriction or public positive covenant is under the provisions of the Real Property Act 1900 --by a memorandum of release or a memorandum of variation, as the case may require, in the form approved under that Act and recorded in the Register kept under that Act, or

(b) where the land so affected is not under the provisions of that Act--by a deed of release or a deed of variation, as the case may require, registered under Division 1 of Part 23,

executed by the prescribed authority entitled to enforce the restriction or public positive covenant and, in the case of a variation of a restriction or public positive covenant, bearing the written consent of each person against whom, at the time the memorandum is recorded, or the deed registered, the restriction or public positive covenant is enforceable.

(8) Upon lodgment in the Registrar-General's office of a memorandum of release or a memorandum of variation referred to in subsection (7), the Registrar-General shall, in the Register kept under the Real Property Act 1900, make such recordings with respect to the release or variation as the Registrar-General considers appropriate.

See dp1178940B and P as an example

88EA Regulation of use of land subject to a forestry right

(1) A restriction on the use of land, or a forestry covenant, may be imposed on land the subject of a forestry right by an instrument (whether the same instrument as that by which the forestry right is created or by another instrument) that:

(a) describes the land in a manner enabling it to be identified, and

(b) specifies the particulars of the restriction or covenant.

(2) In the case of land under the provisions of the Real Property Act 1900, a restriction or forestry covenant referred to in subsection (1) takes effect when the Registrar-General has made, in the Register kept under that Act, such recordings with respect to the restriction or covenant as the Registrar-General considers appropriate.

(3) A restriction or forestry covenant referred to in subsection (1) may be imposed in relation to land that is not under the provisions of the Real Property Act 1900 by a deed that:

(a) is expressed to be made pursuant to this section, and

(b) is executed:

(i) by the person to whom the benefit of the restriction or covenant enures,

(ii) by the owner of the land, and

(iii) by each other person who is seised or possessed of any estate or interest in the land and who is to be bound by the restriction or covenant,

and such a restriction or covenant takes effect when the deed by which it is imposed is registered under Division 1 of Part 23.

(4) Where a restriction or forestry covenant referred to in subsection (1) takes effect, the person to whom the benefit of the restriction or covenant enures may enforce it against any person who is, or who claims under, a signatory to the instrument that imposed the restriction or covenant as if that person had entered into a binding agreement with the person to whom the benefit of the restriction or covenant enures to observe the restriction or covenant.

(5) Where a restriction or forestry covenant referred to in subsection (1) is recorded in the Register kept under the Real Property Act 1900, the restriction or covenant is an interest within the meaning of section 42 of that Act.

(6) A restriction or forestry covenant imposed pursuant to this section may be released or varied:

(a) where the land affected by the restriction or covenant is under the provisions of the Real Property Act 1900 --by a memorandum of release or a memorandum of variation, as the case may require, in the form approved under that Act and recorded in the Register kept under that Act, or

(b) where the land so affected is not under the provisions of that Act--by a deed of release or a deed of variation, as the case may require, registered under Division 1 of Part 23,

executed by the person entitled to enforce the restriction or covenant and (in the case of a variation of a restriction or covenant) bearing the written consent of each person against whom, at the time the memorandum is recorded or the deed registered, the restriction or covenant is enforceable.

(7) Upon lodgment in the office of the Registrar-General of a memorandum of release or a memorandum of variation referred to in subsection (6), the Registrar-General shall, in the Register kept under the Real Property Act 1900, make such recordings with respect to the release or variation as the Registrar-General considers appropriate.

(8) Notwithstanding any other provision of this section, a restriction or forestry covenant has effect while the forestry right to which it is incidental subsists, and not otherwise.

88F Effect of certain positive covenants

(1) If a positive covenant is imposed on land, the covenant affects the land and persons from time to time having any estate or interest in the land in the same way as if it were a covenant imposing a restriction on the use of the land.

(2) The prescribed authority having the benefit of a public positive covenant shall have the following powers:

(a) for the purpose of ensuring observance of the covenant, the authority may, by its servants or agents, twice in every year at a reasonable time of the day and upon giving to the person against whom the covenant is enforceable not less than 2 days' notice, enter the land and view the condition of the land and the state of construction or repair of any structure or work on the land, except to the extent that the authority and that person may otherwise agree,

(b) where the covenant requires that person to insure any structure, the authority may insure on the failure of that person to comply with the covenant,

(c) where the covenant requires the carrying out of development of any nature by that person, the authority may carry out development of that nature on the failure of that person to comply with the covenant,

(d) the authority may recover from that person, in a court of competent jurisdiction, any expense reasonably incurred by it in exercising its powers under paragraph (b) or (c).

(3) This section does not prevent the imposition on land under section 88D or 88E or otherwise of a covenant containing powers of a like nature to or a different nature from those granted by this section.

(4) Where a prescribed authority obtains a judgment for an amount payable to it for a failure to comply with a public positive covenant imposed on land under section 88D or 88E, the authority may lodge with the Registrar-General an application for registration of a charge over the land for the amount from time to time payable in accordance with the judgment:

(a) where the land is under the provisions of the Real Property Act 1900 --in the form approved under that Act, or

(b) in any other case--in the manner prescribed for registration of the charge under section 187.

(5) When an application is lodged under the provisions of the Real Property Act 1900 pursuant to subsection (4) (a), the Registrar-General shall, in the Register kept under that Act, make appropriate recordings with respect to the charge to which the application relates.

(6) A charge referred to in subsection (4) takes effect when registered under section 187 or recorded pursuant to subsection (5), as the case may be, and operates in favour of the prescribed authority which applied for registration of the charge as a charge on the land for the amount to which it relates.

(7) Where a charge is imposed under this section, the judgment to which the charge relates shall not be enforced by execution against the land which is subject to the charge, but nothing in this subsection affects any remedy afforded a chargee under this Act, the Real Property Act 1900 or the Strata Schemes Management Act 1996.

(8) Where a charge is recorded under the Real Property Act 1900 pursuant to subsection (5), the charge is an interest within the meaning of section 42 of that Act.

88G Certificate of amount due

(1) Any person may apply to a prescribed authority for a certificate under this section as to the amount (if any) payable to it because of a failure to comply with a public positive covenant imposed on land under section 88D or 88E.

(2) The application for the certificate shall be made in writing and shall state the name and address of the applicant and particulars of the land in respect of which the information is required.

(3) On receipt of the application and after payment of the prescribed fee, the prescribed authority shall immediately give or post to the applicant a certificate in writing:

(a) stating the amount (if any) payable to the authority because of a failure to comply with a public positive covenant imposed on the land and particulars of how the amount is comprised or that no such amount is payable, or

(b) stating particulars of the work (if any) carried out by the authority the cost or part of the cost of which may be recovered by the authority under the covenant or that no such work has been carried out.

(4) Production of the certificate shall for all purposes be conclusive proof in favour of a purchaser in good faith and for value of the land that, at the time at which the certificate is issued:

(a) no amount other than that stated in the certificate was due or payable to the prescribed authority in respect of the land because of any such failure, and

(b) no work the cost or part of the cost of which may be recovered by the authority under the covenant other than that the particulars of which are stated in the certificate has been carried out by the authority.

88H Injunctions

(1) Where a person has engaged, is engaged or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of a covenant imposing a restriction on the use of land or a positive covenant, the Court may, on the application of the prescribed authority or other person having the benefit of the covenant, grant an injunction restraining the firstmentioned person from engaging in that conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.

(2) Where a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do any act or thing that the person is required to do by or under a positive covenant, the Court may, on the application of the prescribed authority having the benefit of the covenant, grant an injunction requiring the person to do that act or thing.

(3) Where an application is made to the Court for an injunction under subsection (1), the Court may, if in its opinion it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in that subsection pending the determination of the application.

(4) The Court may rescind or vary an injunction granted under subsection (1), (2) or (3).

(5) The power of the Court to grant an injunction under subsection (1) or (3) may be exercised:

(a) if the Court is satisfied that the person has engaged in conduct of that kind--whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind, or

(b) if it appears to the Court that, in the event that the injunction is not granted, it is likely that the person will engage in conduct of that kind--whether or not the person has previously engaged in conduct of that kind and whether or not there would be an imminent danger of substantial damage to any person if the firstmentioned person were to engage in conduct of that kind.

(6) Where an application is made to the Court for the grant of an injunction requiring a person to do a particular act or thing, the power of the Court to grant the injunction may be exercised:

(a) if the Court is satisfied that the person has refused or failed to do that act or thing--whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing, or

(b) if it appears to the Court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing--whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the firstmentioned person refuses or fails to do that act or thing.

(7) In any case in which an application is made to the Court for an injunction under this section, the Court may, if in its opinion it is desirable to do so, award damages to the applicant instead of or as well as granting an injunction.

(8) A person who has been refused an order under section 160 of the Strata Schemes Management Act 1996 may not apply for an injunction under this section to the same effect as the order sought.

88I Transfer of land to prescribed authority

(1) Where a person has contravened, whether by act or omission, a public positive covenant imposed on land under section 88D or 88E, the prescribed authority entitled to enforce the covenant may apply to the Court for an order that the land be conveyed or transferred to the authority.

(2) Notice of the application shall be served on the person by the prescribed authority, and otherwise the application shall be made, in accordance with rules of Court.

(3) An order may be made under this section only where the Court is satisfied:

(a) that, because of the contravention by the person or for any other reason, the continued holding of the land by the person is reasonably likely to endanger the health or safety of the public,

(b) that there is no reasonable likelihood of the person complying with the obligations imposed by the covenant,

(c) that the person has previously committed frequent contraventions of restrictive or public positive covenants imposed on the land, or

(d) that the person has persistently and unreasonably delayed complying with the obligations of any public positive covenant imposed on the land,

or that the order should be made because of any other special circumstances, whether of a like or different nature.

(4) If the Court makes the order requested, the Court may impose such conditions on the conveyance or transfer of the land as the Court thinks fit.

(5) Where land is conveyed or transferred to a prescribed authority in accordance with an order made under this section, the consideration payable by the authority shall be the value of the land reduced by the amount of any outstanding liability of the person to the authority arising out of contravention of the public positive covenant.

(6) In calculating the value of land for the purposes of subsection (5), any increase in the value of the land attributable to:

(a) the carrying out of development in contravention of the public positive covenant, or

(b) the development which is likely to be carried out on the land in accordance with the covenant,

shall be disregarded.

88J Production of title documents where sale, lease or foreclosure

(1) A prescribed authority having the benefit of a public positive covenant, being an authority:

(a) which is authorised (whether or not by this Act or the Real Property Act 1900) to sell or lease land subject to the covenant, or

(b) which has obtained an order for foreclosure relating to that land,

may apply to the Court for an order requiring the delivery, at or within such time as may be fixed by the Court, to the authority by the person whose land is subject to the covenant or by any other person of any deed, certificate of title or other instrument relating to the title to the land which may be reasonably required by the authority.

(2) An application shall be made in accordance with rules of Court.

(3) Where an order has been made under this section and any instrument required by the Registrar-General for the purposes of the Real Property Act 1900 has not been delivered to the prescribed authority in accordance with the order, the Registrar-General may dispense with production of the instrument or, if appropriate, take action under section 111 (3) of that Act.

88K Power of Court to create easements

(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.

(2) Such an order may be made only if the Court is satisfied that:

(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and

(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and

(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

(3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.

(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.

(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.

(6) Such an easement may be:

(a) released by the owner of the land having the benefit of it, or

(b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification.

(7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect:

(a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or

(b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds.

(8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed.

(9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.

89 Power of Court to modify or extinguish easements, profits Ã prendre and certain covenants

(1) Where land is subject to an easement or a profit Ã prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit Ã prendre, restriction or obligation upon being satisfied:

(a) that by reason of change in the user of any land having the benefit of the easement, profit Ã prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit Ã prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit Ã prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit Ã prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or

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

(b1) in the case of an obligation:

(i) that the prescribed authority entitled to the benefit of the obligation has agreed to the obligation's being modified or wholly or partially extinguished or by its acts or omissions may reasonably be considered to have waived the benefit of the obligation wholly or in part, or

(ii) that the obligation has become unreasonably expensive or unreasonably onerous to perform when compared with the benefit of its performance to the authority, or

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

(1A) For the purposes of subsection (1) (b), an easement may be treated as abandoned if the Court is satisfied that the easement has not been used for at least 20 years before the application under subsection (1) is made.

(2) Where any proceedings are instituted to enforce an easement, profit Ã prendre, restriction or obligation, or to enforce any rights arising out of a breach of any restriction or obligation, any person against whom the proceedings are instituted may in such proceedings apply to the Court for an order under this section.

(3) The Court may on the application of any person interested make an order declaring whether or not in any particular case any land is affected by an easement, profit Ã prendre, restriction or obligation, and the nature and extent thereof, and whether the same is enforceable, and if so by whom.

(4) Notice of any application made under this section shall, if the Court so directs, be given to the council of the area (within the meaning of the Local Government Act 1993) in which the land is situated, and to such other persons and in such manner, whether by advertisement or otherwise, as may be prescribed by rules of Court or as the Court may order.

(5) An order under this section that is registered in accordance with this section is binding on persons (whether or not of full age or capacity and whether or not such persons are parties to the proceedings or have been served with notice) who:

(a) are, or become, entitled to the easement or profit Ã prendre or interested in enforcing the restriction or obligation, and

(b) have, or obtain, an estate or interest in the land burdened by the easement, profit Ã prendre, restriction or obligation.

(6) This section applies to easements, profits Ã prendre and restrictions existing at the commencement of the Conveyancing (Amendment) Act 1930, or coming into existence after such commencement.

(7) An order under this section affecting land not under the provisions of the Real Property Act 1900 may be registered in the General Register of Deeds. No such order shall release or bind any land until it is so registered.

(8) This section applies to land under the provisions of the Real Property Act 1900, and the Registrar-General shall, on application made in the form approved under that Act, make all necessary recordings in the Register kept under that Act for giving effect to the order. For the purposes of this subsection, a grant, certificate of title or duplicate registered dealing that is not in the possession of the Registrar-General shall be deemed to be wrongfully retained within the meaning of section 136 of the Real Property Act 1900.

(9) In the case of land which is not under the provisions of the Real Property Act 1900, a memorandum of such order shall be endorsed on such of the instruments of title as the Court directs.