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.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. 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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