Queensland Consolidated Acts

PROPERTY LAW ACT 1974 - SECT 180

180 Imposition of statutory rights of user in respect of land

(1) Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (
"the dominant land" ) that such land, or the owner for the time being of such land, should in respect of any other land (
"the servient land" ) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order.

(2) A statutory right of user imposed under subsection (1) may take the form of an easement, licence or otherwise, and may be declared to be exercisable—

(a) by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and

(b) on 1 or more occasions; or

(c) until a date certain; or

(d) in perpetuity or for some fixed period;

as may be specified in the order.

(3) An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that—

(a) it is consistent with the public interest that the dominant land should be used in the manner proposed; and

(b) the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and

(c) either—

(i) the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner’s refusal is in all the circumstances unreasonable; or

(ii) no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.

(4) An order under this section (including an order under this subsection)—

(a) shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just; and

(b) may include such other terms and conditions as may be just; and

(c) shall, unless the court otherwise orders, be registered as provided in this section; and

(d) may on the application of the owner of the servient tenement or of the dominant tenement be modified or extinguished by order of the court where it is satisfied that—

(i) the statutory right of user, or some aspect of it, is no longer reasonably necessary in the interests of effective use of the dominant land; or

(ii) some material change in the circumstances has taken place since the order imposing the statutory right of user was made; and

(e) shall when registered as provided in this section be binding on all persons, whether of full age or capacity or not, then entitled or afterwards becoming entitled to the servient land or the dominant land, whether or not such persons are parties to proceedings or have been served with notice or not.

(5) The court may—

(a) direct a survey to be made of any land and a plan of survey to be prepared; and

(b) order any person to execute any instrument or instruments in registrable or other form necessary for giving effect to an order made under this section; and

(c) order any person to produce to any person specified in the order any title deed or other instrument or document relating to any land; and

(d) give directions for the conduct of proceedings; and

(e) make orders in respect of the costs of any of the preceding matters and of proceedings generally.

(6) In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner.

(7) In this section—

"owner" includes any person interested whether presently, contingently or otherwise in land.

"statutory right of user" includes any right of, or in the nature of, a right of way over, or of access to, or of entry upon land, and any right to carry and place any utility upon, over, across, through, under or into land.

"utility" includes any electricity, gas, power, telephone, water, drainage, sewerage and other service pipes or lines, together with all facilities and structures reasonably incidental to the utility.

(8) This section does not bind the Crown.