sec.181Power of court to modify or extinguish easement or covenant

### sec.181 Power of court to modify or extinguish easement or covenant This section applies if land (the burdened land ) is subject to the burden of— an easement or covenant benefiting other land (the benefited land ); or an easement in gross. A person having an interest in the burdened land may apply to the court for an order modifying or extinguishing the easement or covenant. The court may make the order if the court is satisfied— the easement or covenant is obsolete because of— a change in the use of the benefited land; or a change in the character of the area in the vicinity of the benefited land; or other circumstances the court considers material; or the continued existence of the easement or covenant— would impede a reasonable use of the burdened land; or would not provide a practical benefit of substantial value, utility or advantage to any person entitled to the benefit of the easement or covenant; or would be contrary to the public interest; or for an easement or covenant under a building management statement—the modification or extinguishment of the easement or covenant— can not be obtained by an amendment of the statement under the Land Act 1994 , section 294F or the Land Title Act 1994 , section 54E because the signature of all persons required for the amendment can not be obtained; and is just and equitable in the circumstances; and is reasonably necessary in the circumstances; or each person entitled to the benefit of the easement or covenant can reasonably be considered to have abandoned, by an act or omission, the easement or covenant; or each person entitled to the benefit of the easement or covenant has agreed to, or would not be substantially injured by, the modification or extinguishment of the easement or covenant. However, the court may make an order under subsection (3) (c) only if the court is satisfied that each person who will suffer loss or other disadvantage from the modification or extinguishment of the easement or covenant can be paid an amount as adequate compensation for the loss or disadvantage. In deciding whether to make an order under subsection (3) (a) or (b) , the court— must take into account the operation of the Planning Act 2016 , including, for example, the planning scheme under that Act that applies to the benefited land and the burdened land; and may take into account any other matter the court considers appropriate. The court may make any order that the nature of the case requires, including, for example, any of the following orders— an order requiring the payment of an amount to a person mentioned in subsection (4) ; an order requiring the amendment of a document creating the easement or covenant to include a term relating to the use, repair or maintenance of the burdened land; an order requiring the registration of a document necessary to give effect to an amendment mentioned in paragraph (b) . See the Land Act 1994 , sections 294F and 294I and the Land Title Act 1994 , sections 54E and 54H for the requirement to register an instrument of amendment or extinguishment of a building management statement. In this section— building management statement means a building management statement under the Land Act 1994 , section 294B (2) or the Land Title Act 1994 , section 54A (2) . covenant includes— a covenant registered under the Land Act 1994 or the Land Title Act 1994 or arising under a contract or other arrangement; and a covenant imposed under a building management statement. easement includes— a right of access, support or shelter, or other right in the nature of an easement, under a building management statement; and an easement in gross. extinguish means wholly or partially extinguish. (sec.181-ssec.1) This section applies if land (the burdened land ) is subject to the burden of— an easement or covenant benefiting other land (the benefited land ); or an easement in gross. (sec.181-ssec.2) A person having an interest in the burdened land may apply to the court for an order modifying or extinguishing the easement or covenant. (sec.181-ssec.3) The court may make the order if the court is satisfied— the easement or covenant is obsolete because of— a change in the use of the benefited land; or a change in the character of the area in the vicinity of the benefited land; or other circumstances the court considers material; or the continued existence of the easement or covenant— would impede a reasonable use of the burdened land; or would not provide a practical benefit of substantial value, utility or advantage to any person entitled to the benefit of the easement or covenant; or would be contrary to the public interest; or for an easement or covenant under a building management statement—the modification or extinguishment of the easement or covenant— can not be obtained by an amendment of the statement under the Land Act 1994 , section 294F or the Land Title Act 1994 , section 54E because the signature of all persons required for the amendment can not be obtained; and is just and equitable in the circumstances; and is reasonably necessary in the circumstances; or each person entitled to the benefit of the easement or covenant can reasonably be considered to have abandoned, by an act or omission, the easement or covenant; or each person entitled to the benefit of the easement or covenant has agreed to, or would not be substantially injured by, the modification or extinguishment of the easement or covenant. (sec.181-ssec.4) However, the court may make an order under subsection (3) (c) only if the court is satisfied that each person who will suffer loss or other disadvantage from the modification or extinguishment of the easement or covenant can be paid an amount as adequate compensation for the loss or disadvantage. (sec.181-ssec.5) In deciding whether to make an order under subsection (3) (a) or (b) , the court— must take into account the operation of the Planning Act 2016 , including, for example, the planning scheme under that Act that applies to the benefited land and the burdened land; and may take into account any other matter the court considers appropriate. (sec.181-ssec.6) The court may make any order that the nature of the case requires, including, for example, any of the following orders— an order requiring the payment of an amount to a person mentioned in subsection (4) ; an order requiring the amendment of a document creating the easement or covenant to include a term relating to the use, repair or maintenance of the burdened land; an order requiring the registration of a document necessary to give effect to an amendment mentioned in paragraph (b) . See the Land Act 1994 , sections 294F and 294I and the Land Title Act 1994 , sections 54E and 54H for the requirement to register an instrument of amendment or extinguishment of a building management statement. (sec.181-ssec.7) In this section— building management statement means a building management statement under the Land Act 1994 , section 294B (2) or the Land Title Act 1994 , section 54A (2) . covenant includes— a covenant registered under the Land Act 1994 or the Land Title Act 1994 or arising under a contract or other arrangement; and a covenant imposed under a building management statement. easement includes— a right of access, support or shelter, or other right in the nature of an easement, under a building management statement; and an easement in gross. extinguish means wholly or partially extinguish. - (a) an easement or covenant benefiting other land (the benefited land ); or - (b) an easement in gross. - (a) the easement or covenant is obsolete because of— (i) a change in the use of the benefited land; or (ii) a change in the character of the area in the vicinity of the benefited land; or (iii) other circumstances the court considers material; or - (i) a change in the use of the benefited land; or - (ii) a change in the character of the area in the vicinity of the benefited land; or - (iii) other circumstances the court considers material; or - (b) the continued existence of the easement or covenant— (i) would impede a reasonable use of the burdened land; or (ii) would not provide a practical benefit of substantial value, utility or advantage to any person entitled to the benefit of the easement or covenant; or (iii) would be contrary to the public interest; or - (i) would impede a reasonable use of the burdened land; or - (ii) would not provide a practical benefit of substantial value, utility or advantage to any person entitled to the benefit of the easement or covenant; or - (iii) would be contrary to the public interest; or - (c) for an easement or covenant under a building management statement—the modification or extinguishment of the easement or covenant— (i) can not be obtained by an amendment of the statement under the Land Act 1994 , section 294F or the Land Title Act 1994 , section 54E because the signature of all persons required for the amendment can not be obtained; and (ii) is just and equitable in the circumstances; and (iii) is reasonably necessary in the circumstances; or - (i) can not be obtained by an amendment of the statement under the Land Act 1994 , section 294F or the Land Title Act 1994 , section 54E because the signature of all persons required for the amendment can not be obtained; and - (ii) is just and equitable in the circumstances; and - (iii) is reasonably necessary in the circumstances; or - (d) each person entitled to the benefit of the easement or covenant can reasonably be considered to have abandoned, by an act or omission, the easement or covenant; or - (e) each person entitled to the benefit of the easement or covenant has agreed to, or would not be substantially injured by, the modification or extinguishment of the easement or covenant. - (i) a change in the use of the benefited land; or - (ii) a change in the character of the area in the vicinity of the benefited land; or - (iii) other circumstances the court considers material; or - (i) would impede a reasonable use of the burdened land; or - (ii) would not provide a practical benefit of substantial value, utility or advantage to any person entitled to the benefit of the easement or covenant; or - (iii) would be contrary to the public interest; or - (i) can not be obtained by an amendment of the statement under the Land Act 1994 , section 294F or the Land Title Act 1994 , section 54E because the signature of all persons required for the amendment can not be obtained; and - (ii) is just and equitable in the circumstances; and - (iii) is reasonably necessary in the circumstances; or - (a) must take into account the operation of the Planning Act 2016 , including, for example, the planning scheme under that Act that applies to the benefited land and the burdened land; and - (b) may take into account any other matter the court considers appropriate. - (a) an order requiring the payment of an amount to a person mentioned in subsection (4) ; - (b) an order requiring the amendment of a document creating the easement or covenant to include a term relating to the use, repair or maintenance of the burdened land; - (c) an order requiring the registration of a document necessary to give effect to an amendment mentioned in paragraph (b) . Note— See the Land Act 1994 , sections 294F and 294I and the Land Title Act 1994 , sections 54E and 54H for the requirement to register an instrument of amendment or extinguishment of a building management statement. - (a) a covenant registered under the Land Act 1994 or the Land Title Act 1994 or arising under a contract or other arrangement; and - (b) a covenant imposed under a building management statement. - (a) a right of access, support or shelter, or other right in the nature of an easement, under a building management statement; and - (b) an easement in gross.