sec.180Power of court to impose statutory right of use

### sec.180 Power of court to impose statutory right of use A person having an interest in land (the benefited land ) may apply to the court for an order imposing a statutory right of use over other land (the burdened land ) if the statutory right of use is reasonably necessary for the effective use and development of the benefited land. Also, a person having an interest in land (also the benefited land ) may apply to the court for an order imposing a statutory right of use over other land (the burdened land ), relating to a utility, in favour of the public utility provider providing the utility, if the statutory right of use is reasonably necessary for the effective use and development of the benefited land. A statutory right of use imposed under subsection (1) may take any form, including, for example an easement or licence. A statutory right of use imposed under subsection (2) must take the form of an easement in gross. The court may make the order if the court is satisfied that— the statutory right of use is reasonably necessary for the effective use and development of the benefited land; and the statutory right of use is consistent with the operation of the Planning Act 2016 , including, for example, the planning scheme under that Act that applies to the land affected by the statutory right of use; and the use or development of the benefited land is consistent with the public interest; and each person having an interest in the burdened land can be adequately compensated for any loss or disadvantage arising from the imposition of the statutory right of use; and the person applying to the court has made reasonable attempts to obtain the easement, or other statutory right of use, by agreement; and the attempts mentioned in paragraph (e) have been unsuccessful because— a person has refused to agree to the statutory right of use and the refusal is unreasonable in all the circumstances; or a person who has capacity to agree to the statutory right of use can not be located. Also, for a statutory right of use imposed under subsection (2) , the court may make the order only if the court is satisfied— the statutory right of use is able to be registered; and the public utility provider has agreed to the terms of the statutory right of use; and the local government in whose area the statutory right of use is located has agreed to the terms of the statutory right of use. If the court makes the order, the court must state in the order— the nature of the statutory right of use, and its terms; and the land to be benefited, and the land to be burdened, by the statutory right of use. However, for subsection (7) (b) , the court is not required to state the land to be benefited if the statutory right of use is imposed under subsection (2) . Also, if the court makes the order, and is satisfied that a person having an interest in the burdened land will suffer loss or disadvantage arising from the imposition of the statutory right of use, the court must make an order that the applicant pay an amount to the person, considered by the court to be just in the circumstances, by way of compensation. The court may make any order that the nature of the case requires, including, for example, any of the following orders— an order requiring a plan of survey, designating the area of the burdened land subject to the statutory right of use, to be prepared; an order imposing a condition on the applicant or a person having an interest in the burdened land. If the court makes an order that creates an interest that may be registered— the interest must be registered; and unless otherwise ordered by the court, the applicant must register the interest. If an interest is registered under subsection (11) , the order creating the interest binds all persons, including, for example, the parties to the proceeding and each of their successors in title. The costs of a proceeding under this section are payable by the applicant unless special circumstances exist. Despite section 3 , this section does not bind the State, other than to the extent a public utility provider is bound to comply with a statutory right of use in the form of an easement in gross in favour of the public utility provider. In this section— public utility provider means a public utility provider under the Land Act 1994 , schedule 6 or the Land Title Act 1994 , section 81A . statutory right of use , over land, includes— a right of way over land; and a right to access, enter or cross over land; and a right to carry and place a utility on, over or under land. utility includes— electricity, gas, power, telecommunication, water, drainage, sewerage and other service pipes or lines; and facilities and structures reasonably incidental to the service pipes or lines mentioned in paragraph (a) . (sec.180-ssec.1) A person having an interest in land (the benefited land ) may apply to the court for an order imposing a statutory right of use over other land (the burdened land ) if the statutory right of use is reasonably necessary for the effective use and development of the benefited land. (sec.180-ssec.2) Also, a person having an interest in land (also the benefited land ) may apply to the court for an order imposing a statutory right of use over other land (the burdened land ), relating to a utility, in favour of the public utility provider providing the utility, if the statutory right of use is reasonably necessary for the effective use and development of the benefited land. (sec.180-ssec.3) A statutory right of use imposed under subsection (1) may take any form, including, for example an easement or licence. (sec.180-ssec.4) A statutory right of use imposed under subsection (2) must take the form of an easement in gross. (sec.180-ssec.5) The court may make the order if the court is satisfied that— the statutory right of use is reasonably necessary for the effective use and development of the benefited land; and the statutory right of use is consistent with the operation of the Planning Act 2016 , including, for example, the planning scheme under that Act that applies to the land affected by the statutory right of use; and the use or development of the benefited land is consistent with the public interest; and each person having an interest in the burdened land can be adequately compensated for any loss or disadvantage arising from the imposition of the statutory right of use; and the person applying to the court has made reasonable attempts to obtain the easement, or other statutory right of use, by agreement; and the attempts mentioned in paragraph (e) have been unsuccessful because— a person has refused to agree to the statutory right of use and the refusal is unreasonable in all the circumstances; or a person who has capacity to agree to the statutory right of use can not be located. (sec.180-ssec.6) Also, for a statutory right of use imposed under subsection (2) , the court may make the order only if the court is satisfied— the statutory right of use is able to be registered; and the public utility provider has agreed to the terms of the statutory right of use; and the local government in whose area the statutory right of use is located has agreed to the terms of the statutory right of use. (sec.180-ssec.7) If the court makes the order, the court must state in the order— the nature of the statutory right of use, and its terms; and the land to be benefited, and the land to be burdened, by the statutory right of use. (sec.180-ssec.8) However, for subsection (7) (b) , the court is not required to state the land to be benefited if the statutory right of use is imposed under subsection (2) . (sec.180-ssec.9) Also, if the court makes the order, and is satisfied that a person having an interest in the burdened land will suffer loss or disadvantage arising from the imposition of the statutory right of use, the court must make an order that the applicant pay an amount to the person, considered by the court to be just in the circumstances, by way of compensation. (sec.180-ssec.10) The court may make any order that the nature of the case requires, including, for example, any of the following orders— an order requiring a plan of survey, designating the area of the burdened land subject to the statutory right of use, to be prepared; an order imposing a condition on the applicant or a person having an interest in the burdened land. (sec.180-ssec.11) If the court makes an order that creates an interest that may be registered— the interest must be registered; and unless otherwise ordered by the court, the applicant must register the interest. (sec.180-ssec.12) If an interest is registered under subsection (11) , the order creating the interest binds all persons, including, for example, the parties to the proceeding and each of their successors in title. (sec.180-ssec.13) The costs of a proceeding under this section are payable by the applicant unless special circumstances exist. (sec.180-ssec.14) Despite section 3 , this section does not bind the State, other than to the extent a public utility provider is bound to comply with a statutory right of use in the form of an easement in gross in favour of the public utility provider. (sec.180-ssec.15) In this section— public utility provider means a public utility provider under the Land Act 1994 , schedule 6 or the Land Title Act 1994 , section 81A . statutory right of use , over land, includes— a right of way over land; and a right to access, enter or cross over land; and a right to carry and place a utility on, over or under land. utility includes— electricity, gas, power, telecommunication, water, drainage, sewerage and other service pipes or lines; and facilities and structures reasonably incidental to the service pipes or lines mentioned in paragraph (a) . - (a) the statutory right of use is reasonably necessary for the effective use and development of the benefited land; and - (b) the statutory right of use is consistent with the operation of the Planning Act 2016 , including, for example, the planning scheme under that Act that applies to the land affected by the statutory right of use; and - (c) the use or development of the benefited land is consistent with the public interest; and - (d) each person having an interest in the burdened land can be adequately compensated for any loss or disadvantage arising from the imposition of the statutory right of use; and - (e) the person applying to the court has made reasonable attempts to obtain the easement, or other statutory right of use, by agreement; and - (f) the attempts mentioned in paragraph (e) have been unsuccessful because— (i) a person has refused to agree to the statutory right of use and the refusal is unreasonable in all the circumstances; or (ii) a person who has capacity to agree to the statutory right of use can not be located. - (i) a person has refused to agree to the statutory right of use and the refusal is unreasonable in all the circumstances; or - (ii) a person who has capacity to agree to the statutory right of use can not be located. - (i) a person has refused to agree to the statutory right of use and the refusal is unreasonable in all the circumstances; or - (ii) a person who has capacity to agree to the statutory right of use can not be located. - (a) the statutory right of use is able to be registered; and - (b) the public utility provider has agreed to the terms of the statutory right of use; and - (c) the local government in whose area the statutory right of use is located has agreed to the terms of the statutory right of use. - (a) the nature of the statutory right of use, and its terms; and - (b) the land to be benefited, and the land to be burdened, by the statutory right of use. - (a) an order requiring a plan of survey, designating the area of the burdened land subject to the statutory right of use, to be prepared; - (b) an order imposing a condition on the applicant or a person having an interest in the burdened land. - (a) the interest must be registered; and - (b) unless otherwise ordered by the court, the applicant must register the interest. - (a) a right of way over land; and - (b) a right to access, enter or cross over land; and - (c) a right to carry and place a utility on, over or under land. - (a) electricity, gas, power, telecommunication, water, drainage, sewerage and other service pipes or lines; and - (b) facilities and structures reasonably incidental to the service pipes or lines mentioned in paragraph (a) .