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CONVEYANCING ACT 1919 - SECT 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
(c) a corporation prescribed for the purposes of
this section.
"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
(c) specifies the
prescribed authority in which the land is vested,
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).
(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 with the Registrar-General 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.
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