New South Wales Repealed Acts

This legislation has been repealed.

STRATA SCHEMES (FREEHOLD DEVELOPMENT) ACT 1973 - SCHEDULE 1B

SCHEDULE 1B – Rights and obligations implied in certain easements

(Section 8AB)

1 Definitions

(1) In this Schedule:

"pipes" includes cables, tubes, wires and conduits of all kinds.

"service" has the same meaning as in section 8AB.

(2) For the purposes of this Schedule, a reference to a person entitled to the benefit of a right of vehicular or personal access or of an easement for a specified service:

(a) if a stratum parcel is the dominant tenement, is a reference to:

(i) a proprietor of a lot within the parcel, or

(ii) the body corporate of the strata scheme concerned, or

(iii) any person authorised by either of them, or

(iv) any person who is, under any Act, entitled to immediate possession of the lot, or

(b) if a stratum parcel is the servient tenement, is a reference to:

(i) any person entitled to an estate or interest in possession in the dominant tenement, or

(ii) any person authorised by such a person.

2 Right of vehicular access

Each person entitled to the benefit of a right of vehicular access has at all times an unrestricted right:

(a) to pass and repass, with or without vehicles, machinery, implements and other equipment of every kind, over the roadways, ramps and land over which the right of access is created, and

(b) to carry out an inspection of those roadways and ramps and that land.

3 Right of personal access

Each person entitled to the benefit of a right of personal access has at all times an unrestricted right:

(a) to pass and repass, without vehicles but with or without hand tools, hand implements and other equipment capable of being carried by hand, over the stairs, escalators, lifts, passages, corridors, shafts and other areas over which the right of access is created, and

(b) to carry out an inspection of those stairs, escalators, lifts, passages, corridors, shafts and other areas.

4 Obligations relating to rights of access

(1) If a right of vehicular or personal access is created over or appurtenant to a stratum parcel, the roadways, ramps, land, stairs, escalators, lifts, passages, corridors, shafts and other areas to which the right relates shall be maintained in good order and repaired:

(a) by the body corporate concerned, or by another person indicated (in the instrument by which the right is created or in any instrument in an approved form by which the instrument is varied) as having responsibility for those matters, or

(b) if any such instrument does not indicate who is responsible for those matters, by the person or, if more than one, jointly by the persons entitled to an estate or interest in possession in the dominant tenement.

(2) If a body corporate or other person:

(a) has failed to carry out a responsibility imposed by subclause (1), and

(b) at least 7 days have passed since that failure first arose,

any other of them may take all lawful steps necessary to ensure that the responsibility is carried out.

5 Easements for services

(1) Each person entitled to the benefit of an easement for a specified service has at all times an unrestricted right:

(a) (except when it is necessary to halt the service for any essential maintenance or repairs relating to the service) to the passage of the service, to any extent consistent with the rights of other persons having the same or similar rights, along or through any existing line of pipes or any existing apparatus that is for the time being within the burdened land, and

(b) to carry out an inspection of the pipes or apparatus to which the easement relates, and

(c) in order to maintain the efficiency of any such pipes or apparatus:

(i) to enter the part of the burdened land in respect of which the easement is created by such route as is reasonable in the circumstances, and

(ii) to remain there for such reasonable time as may be necessary for the purpose of replacing, inspecting, cleaning, repairing, maintaining or renewing the pipes or apparatus or any part of the pipes or apparatus and of making such excavations as may be reasonably necessary,

subject to the conditions that:

(iii) the burdened land is disturbed as little as possible, and

(iv) any excavated surface is restored as nearly as possible to its original state, and

(v) any other damage attributable to the operations referred to in this clause is repaired.

(2) In this clause, a reference to burdened land:

(a) if a stratum parcel is the dominant tenement, is a reference to so much of:

(i) the building, part of which is subject to the strata scheme concerned, and

(ii) the site of that building,

as is not part of the parcel, or

(b) if a stratum parcel is the servient tenement, is a reference to the parcel.

6 Obligations relating to an easement for the provision of services

(1) If an easement for services is created over or appurtenant to a stratum parcel, the pipes or apparatus to which the easement relates shall be maintained in good order and repaired:

(a) by the body corporate concerned, or by another person (indicated in the instrument by which the easement is created or in any instrument in the approved form by which that easement is varied) as having responsibility for those matters, or

(b) if any such instrument does not indicate who is responsible for those matters, by the person or, if more than one, jointly by the persons entitled to an estate or interest in possession in the dominant tenement.

(2) Where a body corporate or other person:

(a) has failed to carry out a responsibility imposed by subclause (1), and

(b) at least 7 days have passed since that failure first arose,

any other of them may take all lawful steps necessary to ensure that the responsibility is carried out.

7 Sharing of costs of maintenance and repair

(1) The costs of maintenance and repair in respect of a right of vehicular or personal access or an easement for services to which this Schedule applies are to be borne by the body corporate or other person concerned:

(a) in the proportions specified in the instrument by which the easement was created or, if the proportions so specified have been varied, those proportions as varied, or

(b) where no such proportions are so specified--in equal proportions.

(2) If a person (whether or not the body corporate) incurs costs referred to in subclause (1), the person may demand in writing the amount that the body corporate or other person referred to in that subclause is liable to contribute to those costs.

(3) A demand made under subclause (2) must be accompanied by receipts or invoices or copies of receipts or invoices which evidence the expenditure to which the demand relates.

(4) If the body corporate or other person fails to comply with any such demand within 7 days after it has been made, the amount demanded may be recovered in a court of competent jurisdiction as a debt due to the body corporate or other person.

8 Ancillary rights and powers

All easements to which this Schedule applies carry with them such ancillary rights and powers as may be necessary to render them effective.