84CDischarge or modification of overriding interests

### 84C Discharge or modification of overriding interests > *\[Section 84C Inserted by No. 3 of 1978, s. 3 \]* > > > (1)  On the application of a person having an interest in land subject to an overriding interest (not being an overriding interest having effect by virtue of a plan of subdivision) the appropriate tribunal may, by order, extinguish or modify the interest if it is satisfied – > > > > > > (a) that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which it may deem material, the interest has become obsolete; > > > > > > > (b) that the continued existence of the interest would impede a user of the land in accordance with an interim order or planning scheme, or, as the case may be, would, unless modified, so impede such a user; > > > > > > > (c) that the continued existence of the interest would impede some reasonable user of the land for public or private purposes, not being a user referred to in [paragraph (b)](#GS84C@Gs1@Hpb@EN) , or, as the case may be, would, unless modified, so impede such a user; > > > > > > > (d) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the interest have agreed, either expressly or by implication, to the extinguishment or modification of the interest; or > > > > > > > (e) that the proposed extinguishment or modification will not injure the persons entitled to the benefit of the interest. > > > (1A)  [*\[Section 84C Subsection (1A) inserted by No. 16 of 1998, s. 6, Applied:05 Jun 1998\]*](/view/html/inforce/1998-06-05/act-1998-016#GS6@Hpa@EN) In the case of a parking easement, the appropriate tribunal may, by order, extinguish or modify the easement on any of the following grounds (which are in addition to those set out in [subsection (1)](#GS84C@Gs1@EN) ): > > > > > > (a) the servient tenement has been destroyed or has been rendered incapable of being used for the purposes of the easement; > > > > > > > (b) the dominant tenement has been destroyed or has been rendered incapable of taking advantage of the parking easement; > > > > > > > (c) the easement was created for a particular purpose that no longer exists; > > > > > > > (d) the easement has expired or terminated, or has been terminated, under the conditions of the easement or under this Act. > > > (2)  An application may be made under this section in respect of any land notwithstanding that there may be uncertainty concerning the existence or nature of the overriding interest to which the application relates. > > > (3)  The fact that the rights conferred by an overriding interest are not being exercised and for the period of 20 years last past have not been exercised is *prima facie* evidence that the interest has become obsolete. > > > (4)  The power conferred by this section to modify an overriding interest includes power to create, in addition to the interest as modified or in substitution for that interest, a further overriding interest having the effect of restricting the user of the land in such manner, or creating such rights over the land, as appear to the tribunal to be reasonable in the circumstances, being an overriding interest that is capable of being created by the applicant and is accepted by him. > > > (5)  Without prejudice to provisions of [subsection (4)](#GS84C@Gs4@EN) , an order under this section with respect to any land may contain all or any of the following provisions, namely: > > > > > > (a) A provision extinguishing all the overriding interests to which the land may be subject or all overriding interests of a particular kind to which it may be subject; > > > > > > > (b) A provision extinguishing any overriding interest, or any overriding interest of a particular kind, that may have arisen from a particular instrument or from particular transactions or circumstances; > > > > > > > (c) A provision creating a like overriding interest as may be created as mentioned in [subsection (4)](#GS84C@Gs4@EN) . > > > (6)  An overriding interest shall not be extinguished or modified under this section on the grounds referred to in [subsection (1)](#GS84C@Gs1@EN) [(c)](#GS84C@Gs1@Hpc@EN) unless the tribunal is satisfied that the interest, in impeding the user of land, either – > > > > > > (a) does not secure to persons entitled to the benefit of the interest any practical benefits of substantial value or advantage to them; or > > > > > > > (b) is contrary to the public interest – > > > > and that money will be an adequate compensation for the loss or disadvantage (if any) that any such person will suffer from the extinguishment or modification. > > > (7)  An order under this section extinguishing or modifying an overriding interest may direct the applicant to pay any person entitled to its benefit such sum by way of compensation or consideration as the tribunal may think just to award under one, but not both, of the following heads, that is to say, either – > > > > > > (a) a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge, extinguishment, or modification; or > > > > > > > (b) a sum to make up for any effect that the interest had, at the time when it was imposed, in reducing the consideration then received for the land affected by it. > > > (7A)  [*\[Section 84C Subsection (7A) inserted by No. 16 of 1998, s. 6, Applied:05 Jun 1998\]*](/view/html/inforce/1998-06-05/act-1998-016#GS6@Hpb@EN) If a parking easement is extinguished, the tribunal may also order the owner of the dominant or servient tenement to compensate the other to the extent necessary to achieve an appropriate apportionment of the costs previously incurred in connection with the easement. > > > (8)  For the purposes of this section a person shall be deemed to have the benefit of an overriding interest if he has an estate in land to which the benefit of the interest is annexed or is appurtenant or if there is vested in him any right exercisable on the contravention of, or failure to observe or carry out, any condition, covenant, prohibition, or restriction that constitutes, or forms an element of, that overriding interest. > > > (9)  *\[Section 84C Subsection (9) amended by No. 68 of 1993, s. 3 \]*In this section ***interim order*** and ***planning scheme*** have the same meanings as they have for the purposes of the [Land Use Planning and Approvals Act 1993](/view/html/inforce/2026-04-12/act-1993-070) .