A registered easement in gross, once incorporated into the certificate of title for the servient tenement under the Transfer of Land Act 1893 (WA), is immediately indefeasible regardless of any invalidity in the underlying instrument or the planning condition that prompted its creation. Section 129C(3) of the Transfer of Land Act confers only a declaratory power that must be exercised consistently with the indefeasibility provisions and cannot be used to remove an enforceable registered easement. Section 33A of the Public Works Act 1902 (WA) and s 195 of the Land Administration Act 1997 (WA) enable the creation of easements in gross whenever a local government is empowered to acquire an easement, not only for public works purposes. The strict English line of authority on the meaning of 'impede the reasonable user' under s 129C(1)(a) remains unresolved at appellate level in Australia.
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