Where a subdivision approval contemplates that access to communal facilities will be achieved through a specific mechanism (such as transfer to a local authority and lease-back), an implied term for the grant of an easement in perpetuity over that land will not satisfy the BP Refinery criteria. The existence of a contractual right to terminate if the agreed mechanism is not fulfilled is inconsistent with an implied right of access in perpetuity. Extrinsic evidence of pre-contractual representations is inadmissible to construe easements in instruments registered under the Torrens system.
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