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28 July 2017 Is a "Transfer Granting Easement" enough to satisfy a deferred commencement condition?

By Cecilia Rose, Partner

Is a "Transfer Granting Easement" enough to satisfy a deferred commencement condition? Mauro Poletti v Inner West Council [2017] NSWLEC 1325

Why is Poletti important?

This case confirms that registration of an easement is required to give certainty and it is reasonable for the easement to be required to be registered prior to the operation of the development consent.

The Decision

In Poletti the issue was whether a deferred commencement condition requiring "an easement to be obtained" and "proof of registration of the easement" could be satisfied by the provision of a "Transfer Granting Easement" agreement.  The Applicant sought a replacement operational condition requiring registration prior to the issuing of an occupation certificate.
 
Commissioner Chilcott confirmed that "registration of the easement provides clarity as to the presence of the easement and the rights attached thereto for potential future owners of both the subject site and the burdened lot" [14]. Poletti  also took into consideration unresolved issues regarding the easement between the owners of the benefitted lot and the owners of the burdened lot to conclude that the condition should remain as a deferred commencement condition.
 
Find the case here.

Cecilia Rose, Partner  |  Phone: +61 2 9233 5544  |  Email: cxr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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