177Modification or extinguishment of easements and covenants

177 Modification or extinguishment of easements and covenants (1) Where land is subject to the burden of an easement or a covenant, the Court may, on application by a person who has an interest in the land, make an order modifying or wholly or partially extinguishing the easement or covenant. (2) The Court may not make an order under subsection (1) unless it is satisfied that: (a) because there has been a change in the user of the land having the benefit of the easement or covenant, in the character of the area in the vicinity of the land or in any other circumstance that the Court considers material, the easement or covenant is obsolete; (b) the continued existence of the easement or covenant would impede the reasonable user of the land or that the easement or covenant, in impeding that user, is: (i) no longer necessary or advantageous to the person or persons entitled to the benefit of the easement or covenant; or (ii) contrary to the public interest, and each person who suffers loss or disadvantage from the modification or extinguishment of the easement or covenant can be adequately compensated in money for his or her loss or disadvantage;

Law of Property Act 2000 115 (c) each adult who is entitled to the use or benefit of the easement or the covenant and who has capacity to do so: (i) has agreed to the modification or extinguishment of the easement or covenant; or (ii) by his or her acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the covenant in whole or in part; or (d) the proposed modification or extinguishment will not substantially injure the persons entitled to the use or benefit of the easement or covenant. (3) In determining whether to make the order, the Court must take into account the operation of the Planning Act 1999 and in particular the provisions of the planning scheme, within the meaning of that Act, applying to the land. (4) The power of the Court to make an order modifying an easement or covenant includes power to amend the instrument creating the easement or covenant to include new terms as to the use, ownership or maintenance of the servient land. (5) In making an order under subsection (1), the Court may also make an order directing the applicant to pay a person entitled to the use or benefit of the easement or covenant the amount that appears to the Court to be just to award consideration for either: (a) any loss or disadvantage suffered as a consequence of the modification or extinguishment; or (b) any reduction in any compensation received for the land affected by the easement or covenant when it was created that is attributable to its imposition.