Is a "Transfer Granting Easement" enough to satisfy a deferred commencement condition? Mauro Poletti v Inner West Council [2017] NSWLEC 1325
WHY IS POLETTI IMPORTANT?
This case confirms that registration of an easement is required to give certainty and it is reasonable for the easement to be required to be registered prior to the operation of the development consent.
THE DECISION
In Poletti the issue was whether a deferred commencement condition requiring "an easement to be obtained" and "proof of registration of the easement" could be satisfied by the provision of a "Transfer Granting Easement" agreement. The Applicant sought a replacement operational condition requiring registration prior to the issuing of an occupation certificate.
Commissioner Chilcott confirmed that "registration of the easement provides clarity as to the presence of the easement and the rights attached thereto for potential future owners of both the subject site and the burdened lot" [14]. Poletti also took into consideration unresolved issues regarding the easement between the owners of the benefitted lot and the owners of the burdened lot to conclude that the condition should remain as a deferred commencement condition.
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