Is a ​“Trans­fer Grant­i­ng Ease­ment” enough to sat­is­fy a deferred com­mence­ment condition?

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.