Subdivision (Miscellaneous Amendments) Act 1991

Subdivision (Miscellaneous Amendments) Act 1991 No. 48 of 1991

TABLE OF PROVISIONS

PART I—PURPOSE AND COMMENCEMENT

Section

1. Purpose 2. Commencement

PART 2—AMENDMENT OF THE SUBDIVISION ACT 1988

3. Principal Act 4. Amendment of definitions 5. Application of Act 6. Common property to be dealt with under Subdivision Act 7. Certification of plans 8. Referral of plans 9. Amendment of certified plans

10. Easements 11. Application of Part 3 of the Principal Act 12. Engineering plans 13. Agreements relating to works 14. Public open space 15. When must land be valued for public open space? 16. Use of open space contribution 17. Surveyors' advice 18. Statements of compliance 19. Agreements relating to statements of compliance 20. When may the Registrar register a plan? 21. Plans for easements and restrictions 22. Amendment of a registered plan 23. New section 24A inserted

24A. Reserves and other similar land 24. Repeal of requirement to notify Council when easement registered 25. Amendment of section 27—limited bodies corporate 26. Amendment of section 28—common property title 27. Amendment of section 28A—common property dealings 28. Body corporate powers 29. Bodies corporate generally 30. Sections 32A and 32B inserted

32A. Total consolidation or re-subdivision 32B. Plan may create body corporate

31. Acquisition by acquiring authority 32. Compulsory acquisition and removal of easements 33. Staged subdivisions 34. Disputes 35. Disputes which may be referred to AAT 36. Appeals to AAT 37. Amendment of regulation-making powers 38. Amendment of transitional provisions

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39. Section 45 substituted 45. References to the Registrar under the Transfer of Land Act 1958

40. Section 46 substituted 46. Strata and cluster plans

41. Schedule 2 substituted

Schedule 2—Strata and Cluster Subdivisions

1. Definitions 2. Act to apply to strata or cluster plans and redevelopment 3. Folios of the Register and certificates of title 4. Administrators 5. Boundaries 6. Effect of notice of restriction 7. Updating plans 8. Accessory lots 9. Amendment of plans

10. Additional powers of strata or cluster bodies corporate 11. Enforcement of schemes of development 12. Stage development

42. Repeals 43. Transitional provisions: proceedings 44. Transitional provisions: plans and other matters 45. Transitional provisions: public open space requirements 46. Registrar may cancel common property title 47. Transitional provisions: Notice of easement registration

PART 3—AMENDMENT OF THE TRANSFER OF LAND ACT 1958

48. Transfer of Land Act and Subdivision Act to be read together 49. Conversion of building subdivisions 50. Amendments concerning computerisation of Register 51. Consequential amendments 52. Statute law revision

PART 4—AMENDMENT OF THE SALE OF LAND ACT 1962

53. Land which can be disposed of without being subdivided 54. Vendor's statement 55. Sale of land before plan of subdivision certified 56. Statute law revision 57. Amendment concerning computerisation of Register 58. Transitional provisions

PART 5—AMENDMENT OF THE PLANNING AND ENVIRONMENT ACT 1987

59. Planning scheme amendments concerning easements, restrictions etc. 60. Section 6A inserted

6A. Easements, restrictions etc. 61. Permits and appeals relating to easements, restrictions etc. 62. Permit conditions concerning easements or restrictions 63. Agreements 64. Amendment of planning schemes concerning easements, restrictions etc.

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65. Transitional provision: permits 66. Statute law revision

PART 6—AMENDMENT OF OTHER ACTS

67. Amendment of Building Control Act 1981 21c. Review of refusal or request

68. Amendment of Local Government Act 1958 69. Amendment of Local Government Act 1989 70. Amendment of Transfer of Land (Computer Register) Act 1989 71. New 27G inserted

27G. Record of plans 72. Amendment of Melbourne College of Advanced Education (Amalgamation) Act 1988 73. Amendment of Melbourne and Metropolitan Board of Works Act 1958 74. Amendment of Water Act 1989 75. Amendment of State Electricity Commission Act 1958 76. Repeals of other Acts 77. Amendment of Land Act 1958 78. Amendment of Bay side Project Act 1988

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Victoria

No. 48 of 1991

Subdivision (Miscellaneous Amendments) Act 1991

[Assented to 25 June 1991]

The Parliament of Victoria enacts as follows:

PART 1—PURPOSE AND COMMENCEMENT

1. Purpose

The main purpose of this Act is to make further provision relating to the subdivision of land and the creation, variation and removal of easements and restrictions over land.

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s.2 Subdivision (Miscellaneous Amendments) Act 1991

Act No. 48/1991

No. 53/1988. Reprinted to No. 57/1989 and subsequently amended by Nos 81/1989 and 92/1989.

2. Commencement

(1) Section 53 (5) comes into operation on 1 October 1992.

(2) Sections 38 (2) ( / ) , 38 (3), 56 (2) and (3), and 65 are deemed to have come into operation on 30 October 1989.

(3) Sections 50 and 57 come into operation on the day that section 7 of the Transfer of Land (Computer Register) Act 1989 comes into operation.

(4) The rest of this Act comes into operation on the day on which this Act receives the Royal Assent.

PART 2—AMENDMENT OF THE SUBDIVISION ACT 1988

3. Principal Act

In this Part, the Subdivision Act 1988 is called the Principal Act.

4. Amendment of definitions

(1) In section 3 (1) of the Principal Act— (a) in paragraph (b) of the definition of "Building"

omit "fences,"; (b) after the definition of "Certified plan" insert—

' "charge" includes— (a) a charge under section 74 of the Transfer

ofLand Actl958;or (b) a charge on land created under an Act

other than this Act or the Transfer of Land Act 1958.';

(c) after the definition of "Land affected by a body corporate" insert—

' "limited body corporate" means a body corporate referred to in section 27 (2A).';

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Subdivision (Miscellaneous Amendments) Act 1991 Act No. 48/1991

(d) in the definition of "Lot" for "unit" (wherever occurring) substitute "lot";

(e) for the definitions of "Lot entitlement" and "Lot liability" substitute—

' "lot entitlement" in relation to a lot affected by a body corporate, means a number specified in the plan as the lot entitlement for that lot, expressing the extent of the lot owner's interest in any common property affected by the body corporate;

"lot liability" in relation to a lot affected by a body corporate, means a number specified in the plan as the lot liability for that lot, expressing the proportion of the administrative and general expenses of the body corporate which the lot owner is obliged to pay;';

( / ) after the definition of "lot liability" insert—

' "master plan" in relation to a staged subdivision, means a plan of all the land in the subdivision;';

(g) in the definition of "Plan" after "a plan" insert "under section 24A, 32, 32B or 37 or a plan";

(h) in the definition of "Public open space" after "plan" insert "or land in a plan zoned or reserved under a planning scheme";

(/) after the definition of "Public open space" insert—

' "public works" m e a n s -fa) the provision of roads, reserves, open

spaces or services within a subdivision; or

(b) fencing, landscaping, and road works outside the subdivision for roads, reserves or public open space related to the subdivision; or

(c) works for sewerage, drainage, water supply, power, gas or telephone to connect the subdivision to the system serving properties outside it, excluding works to

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Subdivision (Miscellaneous Amendments) Act 1991 s. 4 Act No. 48/1991

connect any particular property to the system for the subdivision; or

(d) prescribed works;';

0) after the definition of "Referral Authority" insert—

' "registered cluster plan" means a plan of cluster subdivision registered under the Cluster Titles Act 1974 and, if that plan is amended, that plan as amended and in force for the time being;

"registered plan of strata subdivision" means a plan of strata subdivision registered under the Strata Titles Act 1967 and, if that plan is amended, that plan as amended and in force for the time being;';

(k) for the definition of "Registered plan" substitute—

' "registered plan" means—

(a) a plan registered or approved by the Registrar under any Act, whether before or after the commencement of section 44; or

{b) a map or plan deposited or lodged with the Registrar under section 97 of the Transfer of Land Act 1954 or a corresponding previous or subsequent enactment;';

(/) after the definition of "Reserve" insert—

' "Residual land" in relation to a staged subdivision, means—

(a) land on the master plan that is not part of the first stage and is shown on the plan as another stage; or

(b) land on a plan for the second or a subsequent stage that is not part of that stage and is shown on the plan as another stage;';

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(m) after the definition of "Subdivision" insert—

' "terms contract" has the same meaning as in the Sale of Land Act 1962;

"unlimited body corporate" means a body corporate that is not a limited body corporate;'.

(2) After section 3 (2) of the Principal Act insert— "(3) For the purposes of this Act, the creation, variation

or removal of an easement or restriction must be taken to be authorised by a permit (whether granted before or after the commencement of this subsection) or a planning scheme if the permit or scheme (by condition or otherwise)— (a) in any way requires, directs or allows; or (b) in any other way provides for—

that creation, variation or removal.".

5. Application of Act

(1) In section 4 (1) of the Principal Act— (a) for paragraphs (c) and (d) substitute—

"(c) the creation, variation or removal of any easement or restriction— (i) as part of a plan of subdivision or

consolidation; or (ii) in accordance with a planning scheme or

permit; or (iii) in any other circumstances set out in

section 6 (1) (/) or (k); or (iv) under section 32 or 36; and

(d) the creation of, or dealing with, common property; and";

(b) after paragraph (e) insert—

"; and ( / ) plans under sections 24A, 32, 32B and 37; and (g) a subdivision brought about by disposition or

acquisition of land in Victoria by—

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(i) the Crown in right of the State of Victoria; or

(ii) a body established under an Act.".

(2) After section 4 (1) of the Principal Act insert—

"(1A) A person (including the Crown in any right and a body established under the law of Victoria, the Commonwealth or another State) to whom this Act would not otherwise apply may elect to proceed under this Act and the Transfer of Land Act 1958.

(1B) If a person other than an acquiring authority acquires land compulsorily or acquires by agreement land which it may acquire compulsorily and proceeds under this Act, this Act applies as if the person were an acquiring authority and as if this Act referred to the Act or law under which the person acquired the land and not to the Land Acquisition and Compensation Act 1986.".

(3) In section 4 of the Principal Act for sub-section (4) substitute—

"(4) This Act does not apply to the creation, variation or removal of a covenant under section 41 of the Historic Buildings Act 1981 or section 3A of the Victorian Conservation Trust Act 1972, and a person cannot elect to proceed under this Act to create, vary or remove any of these covenants.".

(4) After section 4 (4 A) of the Principal Act insert—

"(5) This Act does not prevent a person from creating, varying or removing an easement or restriction by using a method or procedure other than provided by this Act.".

6. Common property to be dealt with under Subdivision Act

In section 5 (1) of the Principal Act, after "restriction," insert "or the creation of common property, or any dealing with common property,".

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Subdivision (Miscellaneous Amendments) Act 1991 Act No. 48/1991 s.7

7. Certification of plans

(1) In section 6 (1) of the Principal Act, for paragraph (a) substitute—

"(a) the plan complies with this Act, the regulations, and those requirements of the planning scheme and any permit that relate to the boundaries of roads, lots, common property and reserves and the form and content of the plan; and".

(2) After section 6(1) (/z) of the Principal Act insert— "(/) where the plan does anything requiring the

unanimous resolution of the members of a body corporate under section 32 or an order of the court under section 38 (3), the plan is accompanied by a copy of the unanimous resolution or the order of the court; and".

(3) In section 6(1) 0 ) of the Principal Act for sub-paragraph (i) substitute—

"(i) the removal or variation is in accordance with the planning scheme or a permit; or".

(4) In section 6(1) (A:) of the Principal Act for sub-paragraph (i) substitute—

"(i) the removal or variation is in accordance with the planning scheme or a permit; or".

(5) After section 6 (2) of the Principal Act insert— "(3) The Council may rely on a verified copy of a

unanimous resolution or court order accompanying a plan and referred to in section 6 (1) (/) as conclusive proof that a unanimous resolution or order was made in those terms.".

8. Referral of plans

After section 8 (3) of the Principal Act insert— "(4) The Council does not have to refer to a referral

authority a plan under section 24A. (5) The Council does not have to refer again to a

referral authority a plan which the Council has amended after referral, if the Council considers that

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the amendments are minor and are unlikely to affect the interests of the authority.

(6) As soon as possible after certifying a plan that was not referred to a referral authority, the Council must give the authority a copy of the certified plan.".

9. Amendment of certified plans

(1) After section 11 (2) of the Principal Act insert— "(2A) The Council does not have to refer an application

to amend a certified plan to a referral authority if it considers that the amendment is minor and is unlikely to affect the interests of the authority.".

(2) After section 11(10) of the Principal Act insert— "(11) As soon as possible after re-certifying an amended

plan where the amendment was not referred to a referral authority, the Council must give a copy of the re-certified plan to the referral authority.".

10. Easements

(1) In section 12 of the Principal Act for sub-section (1) substitute— "(1) A plan of subdivision or consolidation must

specify— (a) existing registered easements that burden the

land (other than easements over land referred to in sub-section (2) (a) (i) (ii) or (hi)), the purpose of the easements and either the land benefited by the easements or, if they were authorised by or under an Act other than this Act or the Transfer of Land Act 1958, the public authority, Council, Minister or other person in whose favour they are created; and

(b) proposed easements (other than easements over land referred to in sub-section (2) (a) (i), (ii) or (hi)), the purpose of the easements and either the land which they are to benefit or, if they are authorised by or under an Act other

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Subdivision (Miscellaneous Amendments) Act 1991 Act No. 48/1991 s. 10

than this Act or the Transfer of Land Act 1958, the public authority, Council, Minister or other person in whose favour they are to be created.

(1A) A plan of creation, variation or removal of an easement must specify the easement to be created, varied or removed, the purpose of the easement and either the land benefited or to be benefited or, if the creation, variation or removal is authorised by or under an Act other than this Act or the Transfer of Land Act 1958, the public'authority, Council, Minister or other person in whose favour the easement is or is to be created.".

(2) In section 12 (2) of the Principal Act— (a) for "There" substitute "Subject to sub-section (3),

there"; (b) in paragraph (a) (iii) omit "subject to sub-section

(3),"; ! (c) in paragraph (b) for "the common property" \ substitute "any common property".

|i (3) In section 12 of the Principal Act for sub-section (3) substitute— "(3) A plan may provide that some only, or none, of the

easements and rights mentioned in sub-section (2) are implied over all or any of the land on the plan.

(3A) Sub-section (3) does not apply to— (a) any part of a plan that subdivides a building;

or (b) easements or rights for existing services

provided to a lot, if the lot and the land on which the service is located are not in common ownership.

(3B) There are implied over any road set aside on a plan, in favour of the appropriate responsible public authority or Council, all easements and rights necessary to provide water, sewerage, drainage, gas, electricity, telephone or any other prescribed service, if the easement or right is consistent with the reasonable use of the land as a road.".

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(4) Section 12 of the Principal Act is amended as follows: (a) in sub-section (6)—

(i) after "public authority" insert ", Council, Minister or other person";

(ii) for "that authority" substitute "that person"; (b) in sub-section (7)—

(i) after "public authority" (where twice occurring) insert", Council, Minister or other person";

(ii) after "this Act" (where twice occurring) insert "or the Transfer of Land Act 1958".

11. Application of Part 3 of the Principal Act

In section 14 of the Principal Act— (a) after "14." insert "(1)"; (b) at the end of the section insert—

"(2) This Part does not apply to a plan under section 24A.".

12. Engineering plans

In section 15 (5) of the Principal Act after "referral authority" (where secondly occurring) insert "cannot require any further alteration and".

13. Agreements relating to works

(1) In section 17 (3) of the Principal Act after "(3)" insert "Subject to this section,".

(2) After section 17 (3) of the Principal Act insert— "(3A) An agreement under sub-section (2) (c) does not

have to be under seal. (3B) If an agreement under sub-section (2) (c) is not

under seal, sections 174 (1), 179 and 181 to 183 of the Planning and Environment Act 1987 do not apply to it.".

(3) In section 17 (6) of the Principal Act—

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(a) before the definition of "relevant authority" insert—

' "agreement" includes arrangement or understanding, whether written or oral or by conduct;';

(b) in the definition of "relevant authority" for paragraph (a) substitute—

"(a) an authority under the Water Act 1989 that has a water or a sewerage district; or".

14. Public open space

(1) In section 18 (1) of the Principal Act— (a) after "may" insert "not more than 7 days before it

issues its statement of compliance"; (b) for "any additional lot" substitute "any additional

separately disposable parcel of land"; (c) in paragraph (b) after "pay" insert "or agree to

pay".

(2) After section 18 (1) of the Principal Act insert— "(1A) The Council may only make a public open space

requirement if it considers that, as a result of the subdivision, there will be a need for more open space, having regard to— (a) the existing and proposed use or development

of the land; (b) any likelihood that existing open space will be

more intensively used after than before the subdivision;

(c) any existing or likely population density in the area of the subdivision and the effect of the subdivision on this;

{d) whether there are existing places of public resort or recreation in the neighbourhood of the subdivision, and the adequacy of these;

(e) how much of the land in the subdivision is likely to be used for places of resort and recreation for lot owners;

763


( / ) any policies of the Council concerning the provision of places of public resort and recreation.".

(3) In section 18 (2) (a) of the Principal Act for "the plan of all the land in the subdivision" substitute "the master plan".

(4) In section 18 (5) of the Principal Act for "the land" substitute "any of the land".

(5) In section 18 (8) (c) of the Principal Act for "neither of which is capable of further subdivision" substitute "and the Council considers it unlikely that each lot will be further subdivided".

15. When must land be valued for public open space?

(1) In section 19 of the Principal Act for sub-section (2) substitute— "(2) The land is to be valued on a day not more than 12

months before the date for payment of the public open space contribution.".

(2) In section 19 (4) of the Principal Act for "Part X of the Local Government Act 1958" substitute "Part 8 of the Local Government Act 1989".

(3) In section 19 of the Principal Act for sub-section (5) substitute— "(5) If a public open space contribution is not paid

within 12 months after it is required, the Council may obtain a revaluation at each anniversary of the making of the requirement, and vary the amount of the payment accordingly.".

16. Use of open space contribution

(I) For section 20 (2) of the Principal Act substitute— "(2) The Council must use any payment towards public

open space it receives under this Act or has received under section 569B (8A) of the Local Government Act 1958 but has not applied under sub-section

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(8c) of that section or the proceeds of any sale of public open space to— (a) buy land for use for public recreation or public

resort, as parklands or for similar purposes; or (b) improve land already set aside, zoned or

reserved (by the Council, the Crown, a planning scheme or otherwise) for use for public recreation or public resort, as parklands or for similar purposes; or

(c) with the approval of the Minister administering the Local Government Act 1989, improve land (whether set aside on a plan or not) used for public recreation or public resort, as parklands or for similar purposes.".

(2) In section 20 of the Principal Act sub-section (3) is repealed.

17. Surveyors'advice

(1) In section 20A (1) of the Principal Act for paragraph (a) substitute—

"(a) that at the date the advice is given— (i) where appropriate, roads and reserves are

marked out or defined; and

(ii) where appropriate, the boundaries of the land in the plan, the lots and the common property are marked out or defined—

and any supporting survey monumentation required under the Surveyors Act 1978 or the Survey Co-ordination Act 1958 is in place; and".

(2) In section 20A (2) of the Principal Act for paragraph (a) substitute—

"(a) that at the date the advice is given—

(i) where appropriate, roads and reserves are marked out or defined; and

765


(ii) where appropriate, the boundaries of the land in the plan, the lots and the common property are marked out or defined—

and any supporting survey monumentation required under the Surveyors Act 1978 or the Survey Co-ordination Act 1958 is in place; and".

18. Statements of compliance

(1) In section 21 (1) (b) (i) of the Principal Act, after " 1987" insert "that relate to public works".


(a) for "the plan of all the land in the subdivision" (where first occurring) substitute "the master plan";

(b) for paragraph (c) substitute— "(c) a statement of compliance for the first stage

(but not the residual land) is a sufficient statement of compliance to enable the master plan to be registered; and

(d) a statement of compliance for the second or a subsequent stage (but not for the residual land on the plan for that stage) is a sufficient statement of compliance to enable that plan to be registered.".

(3) After section 21 (2) of the Principal Act insert— "(3) A Council cannot refuse to issue a statement of

compliance because a requirement made in relation to an application, approval or certificate under the Building Control Act 1981 or in relation to regulations under that Act remains outstanding.

(4) I f -(a) the Council and the owners of all or any of the

lots in a staged subdivision have entered into an agreement under Division 2 of Part 9 of the Planning and Environment Act 1987, whether or not any other people are also parties to that agreement; and

766


(b) the Council is satisfied that the owners of any of the lots in a stage who entered into the agreement— (i) have paid all money then due by them

under the agreement; and (ii) have met all other obligations then

imposed under the agreement; and (c) the Council is satisfied that, under the

agreement, they have no further liability to pay money and no further obligations—

the Council may, in the statement of compliance, provide that the agreement no longer applies to specified land in that stage.

(5) If the statement of compliance contains a provision mentioned in sub-section (4) and the agreement relates only to the land covered by that provision, then for all purposes the agreement ends on the date of issue of the statement of compliance.

(6) If a statement of compliance contains a provision mentioned in sub-section (4) and the provision does not cover all the land covered by the agreement, the agreement must for all purposes be taken to have been amended, in accordance with that provision, on the date of issue of the statement of compliance.

(7) Land which was subject to a charge under section 175 (4) of the Planning and Environment Act 1987 and to which, because of a provision in the statement of compliance, the agreement no longer applies, ceases to be subject to the charge on the date of issue of the statement.

(8) Sections 179 to 183 of the Planning and Environment Act 1987 apply to the ending or amendment of an agreement under this section.".

19. Agreements relating to statements of compliance

In section 21A of the Principal Act— (a) after "21A." insert "(1) Subject to this section,";

767


(b) at the end of the section insert— "(2) An agreement under section 21 (1) (b) (ii) doe.

not have to be under seal. (3) If an agreement referred to in sub-section (2)

is not under seal, sections 174 (1), 179 and 181 to 183 of the Planning and Environment Act 1987 do not apply to it.

(4) In this section and in section 21 (1) (b) (ii) "agreement" includes an arrangement or understanding, whether written, oral or by conduct.".

20. When may the Registrar register a plan?

(1) In section 22(1) of the Principal Act— (a) in paragraph (b) for "or government department"

substitute "government department, public authority or Council";

(b) for paragraphs (c) and (d) substitute— "(c) in the case of a master plan, each of the persons

listed in sub-section (1A) whose encumbrance mentioned in that sub-section relates to the land in the first stage (but not the residual land) consents in writing to the registration of the plan; and

(d) in the case of a plan for the second or a subsequent stage in a staged subdivision, each of the persons listed in sub-section (1A) whose encumbrance mentioned in that sub-section relates to that stage (but not the residual land) consents in writing to the registration of the plan; and

(da) in the case of a plan that is not a plan for a staged subdivision, each of the persons listed in sub-section (1A) whose encumbrance mentioned in that sub-section relates to the land on the plan consents in writing to the registration of the plan; and".


768


(a) in paragraph (e) after "1958" insert "and is not subject to a mortgage under the general law that is shown on the folio of the Register for the land";

(b) in paragraph ( / ) after "23," insert "24A,".

(3) After section 22 (1) of the Principal Act insert— "(1A) For the purposes of sub-section (1) (c), (d) and {da)

the following are listed persons— (a) a registered mortgagee,. registered chargee,

registered lessee or registered sub-lessee; (b) an annuitant; (c) a caveator, (d) a person whose mortgage, charge, caveat, lease

or sub-lease was lodged before the lodging of the plan.

(1B) Where a person whose consent to the registration of a plan is required has not consented, the applicant may apply to the Registrar for service on that person of a notice under sub-section (lc).

(lc) The notice must— (a) state that the applicant has applied for

registration of the plan; and (b) specify a day, being not less than 30 days from

the service of the notice, before which notice of refusal to consent may be given; and

(c) state that the person served with the notice is to be taken to have consented to the registration of the plan unless before the day specified in the notice the person gives to the Registrar written notice of refusal to consent.

( ID) A person served with a notice under sub-section (1B) must be taken to have consented to the registration of the plan if before the day specified in the notice the person has not given to the Registrar written notice of refusal to consent.

(1E) Where a person whose consent to the registration of a plan is required refuses to consent, the applicant for its registration may apply to the Supreme Court for an Order consenting to the registration of the

78537/91—25 769


plan on behalf of the person whose consent was required.

( IF) On the application, the Court, if satisfied that the refusal of consent was unreasonable, may make the Order sought.".

21. Plans for easements and restrictions

(1) In section 23 of the Principal Act for sub-sections (1) and (2) substitute—

"(1) If a planning scheme or permit regulates or authorises the creation, removal or variation of an easement or restriction, the Council or the person benefiting from the creation, variation or removal must, in accordance with the planning scheme or permit and with the Planning and Environment Act 1987, lodge a certified plan at the Office of Titles for registration.

(2) The consent of any other person who has an estate, interest or claim in the land is not required to the certification and registration of a plan referred to in sub-section (1).".

(2) In section 23 (3) of the Principal Act for "the direction in the planning scheme or permit" substitute "the planning scheme or permit also".


"(4) If the planning scheme or a permit regulates or authorises the variation or removal of a condition in the nature of an easement in a Crown grant, a person may proceed under this section as if the condition were an easement and, where a person does so, this Act applies as if any reference to an

' easement included a reference to that condition.

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(5) Sub-section (4) applies despite anything to the contrary in the Land Act 1958 or in a Crown grant.".

22. Amendment of a registered plan

(1) In section 24 (2) of the Principal Act— (a) in paragraphs (a) and (b) after "charge," insert

"notice or memorandum of charge, restriction,"; (b) after paragraph ( / ) insert—

"and (g) if it is a plan referred to in section 23, 24A, 32,

32B, 35 or 37, the registered plan amends any previous registered plan in the ways indicated in that later registered plan.".

(2) After section 24 (5) of the Principal Act insert— "(6) Where a plan amending a previous registered plan

is lodged for registration , it must be accompanied by substitute sheets for the sheets of the registered plan that require amendment, and the Registrar may substitute those sheets for the appropriate sheets of the registered plan and, on the making of the substitution, those substituted sheets form part of the registered plan.".

23. New section 24A inserted

After section 24 of the Principal Act insert—

"24A. Reserves and other similar land

(1) If required or authorised to do so by the planning scheme or a permit, a body listed in column 1 of the Table may lodge at the Titles Office for registration a certified plan to do any of the things listed in relation to that body in column 2 of the Table in relation to the whole or any part of land referred to in that part of the column.

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Act No. 48/1991

TABLE

Column 1 Column 2 Body Action

A Council Vest in itself land shown or set aside as a reserve on a registered but not certified plan.

A Council Vest in itself land on a registered but not certified plan that is not shown as a lot, common property, road or reserve.

The body in is vested

which the land Remove a reservation from land shown as a reserve on a registered but not certified plan or shown on a plan prepared under this section.


which the land Remove a reservation from land set aside as a reserve on a certified and registered plan.


which the land Remove any restriction on the use of land vested under section 18 of the Cluster Titles Act 1974.

(2) In addition to the requirements of this Act about the certification of plans, the Council may certify a plan prepared under sub-section (1) if the applicant satisfies it that the land in the plan need no longer be used for the purpose for which it is currently reserved or used.

(3) In addition to section 24, on the registration of a plan prepared under this section— (a) the land in the plan vests; or (b) any reservation or restriction referred to

in the Table in sub-section (1) is removed from the land in the plan—

as is specified in the plan.

(4) On the registration of a plan vesting land in a body, the land is freed and discharged from any mortgage, charge, lease or sub-lease.

(5) On the registration of a plan removing a reservation or restriction referred to in the Table in sub-section (1) over land, the land becomes a lot.

772


(6) The Registrar may register a plan under this section without delivery of any relevant certificate of title.

(7) On the registration of the plan the body in which the land is vested may— (a) subject to section 20 or to any other Act

under which the body is created, sell it; or (b) use it for any purpose consistent with any

Act under which it operates and with the planning scheme.

(8) If a body sells land under this section that was public open space, it must apply the proceeds— (a) first, in paying the expenses of or

incidental to the sale; (b) secondly, for any recreational or cultural

purpose referred to in item 5 of Schedule 1 of the Local Government Act 1989.".

24. Repeal of requirement to notify Council when easement registered

In section 25 of the Principal Act, sub-section (4) is repealed.

25. Amendment of section 27—limited bodies corporate

(1) In section 27 of the Principal Act for sub-section (2A) substitute—

" ( 2 A) A plan may provide for the creation of one or more limited bodies corporate.".

(2) In section 27 (2B) of the Principal Act— (a) for "not a limited body corporate" substitute "an

unlimited body corporate"; (b) in paragraphs (a) and (b) for "the common

property" substitute "any common property".

(3) After section 27 (2B) of the Principal Act insert— "(2c) A plan providing for the creation of a body

corporate or merger of bodies corporate may be

773


Act No. 48/1991

accompanied by proposed rules for the body corporate and, on the registration of the plan, they must be taken to be rules made by the body corporate and may be revoked or amended accordingly.".

26. Amendment of section 28—common property title

(1) In section 28 (d) of the Principal Act for "the common property" substitute "any common property";

(2) In section 28 (e) of the Principal Act— (a) for "issue certificates of title to the common

property" substitute "create folios of the Register for any common property";

(b) after "owners" insert "but must not produce a certificate of title for those folios, and may require submission of and cancel any existing certificate of title for common property".

27. Amendment of section 28A—common property dealings

(1) In section 28A (1) of the Principal Act, for the expression beginning "except" and ending at the end of the subsection substitute—

"except— (a) as part of a dealing with the member's lot; or

(b) under section 32 or 32A; or (c) by the body corporate, in accordance with the

regulations.".

(2) In section 2 8 A (2) of the Principal Act for "dealing with" (wherever occurring) substitute "dealing, encumbrance or notification affecting".

(3) After section 28 A (2) of the Principal Act insert— "(3) The Registrar may only record on the folio of the

Register for common property anything affecting the common property only and not the lots.

(4) A recording made on the folio of the Register for a lot operates in relation to the owner's interest in

774


the common property as if it were also a recording made in relation to that interest on the folio for the common property.".

28. Body corporate powers

After section 29 (6) of the Principal Act insert— "(7) Sub-section (4) does not apply to an amount payable

to a body corporate for repairs, maintenance or other works which are undertaken by the body corporate on common property or a lot, and which are wholly or substantially for the benefit of some or one, but not all, of the lots affected by the body corporate.

(8) In carrying out its functions, a body corporate may hold a lease or licence over land (including Crown land) whether or not in the plan.

(9) The owners for the time being and any purchaser in possession of, and any person entitled to receive the rents and profit from, each lot are liable to pay any outstanding charge contribution or amount owing to the body corporate in respect of that lot.

(10) A body corporate cannot mortgage common property.".

29. Bodies corporate generally

(1) In section 32 of the Principal Act for sub-section (1) substitute— "(1) If there is a unanimous resolution of the members,

a body corporate may proceed under this section to do one or more of the following— (a) dispose of the fee simple in—

(i) all or part of any common property; or (ii) any other land purchased by it;

(b) purchase land— (i) for inclusion in or to become common

property; or (ii) which is or is to become a lot;

775


(c) alter the boundaries of any land affected by the body corporate;

(d) increase or reduce the number of lots affected by the body corporate;

(e) create new lots or new common property; ( / ) create and name a body corporate and specify

the land to be land affected by that new body corporate and specify lot entitlement and lot liability in relation to that new body corporate;

(g) dissolve itself if— (i) it is a body corporate without common

property and it owns no land; or (ii) it disposes under this sub-section of all its

common property and all the land that it owns;

(h) merge with another body corporate (created on the same or another plan) if—

(i) none of the land affected by the first body corporate is land affected by the other body corporate and the merger would not result in the same land being land affected by two or more unlimited bodies corporate; or

(ii) one of the merging bodies corporate is an unlimited body corporate and the land affected by that body corporate includes all the land affected by all other merging limited bodies corporate;

(/) create, vary or remove any easement or restriction (including an implied easement);

(J) consolidate into a single lot all the land affected by the body corporate if—

(i) it is an unlimited body corporate and, if any land affected by it is also affected by a limited body corporate, the members of that limited body corporate by unanimous resolution consent to the consolidation; or

776


(ii) none of the land affected by the body corporate is land affected by another body corporate;

(k) create, alter or extinguish lot entitlement or lot liability in any way necessary because of the exercise of its other powers under this subsection;

(/) amend or cancel a scheme of development under the Cluster Titles Act 1974 in any way necessary because of the exercise of its other powers under this sub-section.".

(2) In section 32 (2) of the Principal Act— (a) for "the body corporate" substitute "a body

corporate"; and (b) for "the registered plan" substitute "any registered

plan".

(3) After section 32 (2) of the Principal Act insert— "(2A) In exercising its powers under sub-section (1) to

create, alter or extinguish lot entitlement or lot liability, a body corporate must comply with section 33 (2) and (3).

(2B) A body corporate may only exercise its powers under sub-section (1) in relation to— (a) land affected by it; or (b) land (whether on the same or another plan)

which, when the power is exercised, will become land affected by it.

(2c) If the exercise by a body corporate of its powers under sub-section (1) involves land affected by another body corporate (whether on the same or another plan) and the other body corporate is not a limited body corporate all of whose members are members of the first body corporate, the first body corporate must first get from the members of the other body corporate their consent by unanimous resolution.

(2D) If a body corporate exercises its power under subsection (1) (g) to dissolve itself—

777


(a) the Registrar must not amend or cancel the plan to give effect to the exercise of that power unless satisfied that the body corporate has no accrued or accruing debts; and

(b) the body corporate is dissolved when the Registrar amends or cancels the plan.

(2E) If a body corporate merges with another body corporate— (a) the plan giving effect to the merger must specify

the name (by reference to a relevant plan number) of the new body corporate, the land affected by it, and all relevant lot entitlements and liabilities, and whether it is a limited or unlimited body corporate; and

(b) on the registration of that plan— (i) the merging bodies corporate are

dissolved; and (ii) land affected by those bodies corporate

ceases to be so affected; and (iii) the new body corporate is the successor in

law of the merging bodies corporate; and (iv) if a new limited body corporate succeeds

an unlimited body corporate, the new body corporate has, in respect of the assets, rights, liabilities and obligations which have passed to it from the unlimited body corporate, all the functions, powers and duties of an unlimited body corporate.

(2F) TO the extent that a plan referred to in sub-section (2) affects common property, consent to the plan is not required by any person in respect of any lot if the common property is not vested in the owners of that lot.".

(4) In section 32 of the Principal Act— (a) in sub-sections (3) and (5B), omif'certified and"; (b) sub-section (5) is repealed; (c) in sub-section (5A) for the expression beginning

"section 22" and ending at the end of the subsection substitute "consent to the registration of

778

Subdivision (Miscellaneous A mendments) Act 1991 Act No. 48/1991 s. 30

the plan is not required by any person in respect of land that is not the subject of the plan.";

(d) in sub-section (6), for "Subject to sub-section (7)" substitute "Unless this section otherwise provides".

(5) In section 32 of the Principal Act for sub-section (7) substitute— "(7) On the registration of a plan of consolidation of all

the land affected by a body corporate into a single lot— (a) that body corporate is dissolved; and (b) if the land is also land affected by another body

corporate, that other body corporate is dissolved; and

(c) the land vests in the former lot owners who are members of the body corporate exercising the power, as tenants in common in proportion to their lot entitlements in that body corporate, freed from any caveat, mortgage, charge, lease, sub-lease and from any easement under section 12; and

(d) the Registrar must create a folio of the Register accordingly.".

30. Sections 32A and 32B inserted

(1) After section 32 of the Principal Act insert—

"32A. Total consolidation or re-subdivision

(1) The owners of all the land in a plan that includes land affected by one or more bodies corporate may submit for certification and lodge for registration a plan consolidating or re-subdividing all that land.

(2) The Registrar must not register the plan unless satisfied that each body corporate on the existing plan has no accrued or accruing debts.

(3) On the registration of the plan—

779

Subdivision (Miscellaneous Amendments) Act 1991 s.31 Act No. 48/1991

(a) each body corporate on the previous registered plan is dissolved; and

{b) the land affected by each body corporate on the previous registered plan vests in the former lot owners who were members of that body corporate as tenants in common in proportion to their lot entitlements in that body corporate, freed from any caveat, mortgage, charge, lease, sub-lease and from any easement under section 12.

32B. Plan may create body corporate V

(1) The owners of lots on one or more plans that are not lots affected by a body corporate may submit for certification and lodge for registration a plan providing for the creation of one or more limited or unlimited bodies corporate and amending any registered plan in any way necessary because of that creation.

(2) The plan must not provide for the creation of common property or the alteration of existing boundaries.

(3) Consent to the registration of the plan is not required by any other person in respect of any land that is not the subject of the plan.".

(2) In the Principal Act— (a) in section 22 (1) ( / ) , after "32," insert "32A,"; and (b) in section 32 (5B) (a), after "23," insert "32A,".

31. Acquisition by acquiring authority

(1) In section 35 (1) of the Principal Act, after "certification" insert "and lodge it for registration".

(2) In section 35 (2) of the Principal Act after "submit" insert "for certification".


780


(a) in paragraph (a), for "without limiting what can be done by a plan, may do" substitute "may do anything which can be done by a plan including, but not limited to,";

(b) after paragraph (a) (ii) insert— "(iia) Alter any separately disposable parcels of

land, excluding the land to be acquired; (iib) Subject to section 33 (2) and (3), create

new lot entitlements or lot liabilities;"; (c) before "and" at the end of paragraph (a) (vi)

insert— "(vii) Amend a registered plan in any way

necessary because of the things done by the plan;";

(d) after paragraph (b) insert—

";and (c) having regard to sub-section (6), must, for each

thing done by the plan, state whether it is to happen— (i) on the registration of the plan; or

(ii) to the extent that it relates to land acquired by compulsory process, when the Registrar records the vesting date; or

(iii) to the extent that it relates to land acquired by agreement, on the vesting date.".

(4) In section 35 of the Principal Act for sub-section (4) and (5) substitute— "(4) Consent to the registration of the plan is not

required by any person to the extent that the plan— (a) maintains without alteration of boundaries,

except for the purposes of acquisition, the number of separately disposable parcels of land in the area covered by the plan, excluding the land to be acquired; or

(b) creates new lot entitlements or lot liability as a result of the acquisition; or

(c) relates to land vested in or registered in the name of the Authority.

781


(5) Sections 5 (3) (b) and 6 (1) (b) do not apply to land in a plan submitted or lodged under this section.".


(a) for paragraphs (c), (d) and (e) substitute— '(c) any thing done by the plan in relation to land

to be acquired by compulsory process has effect when the Registrar records the vesting date of that land, and this Act applies to those things as if the plan were registered on that date; and

(d) any thing done by the plan in relation to land to be acquired by agreement has effect on the vesting date of that land, and this Act applies to those things as if the plan were registered on that date; and

(e) any thing else done by the plan has effect when the plan is registered; and

(ea) this Act applies to land on the plan that the authority acquires by agreement as if section 24 (2) (c) referred to "registered in the name o f instead of "vested" and section 24 (2A) referred to "is registered in the name o f instead of "vests"; and

{eb) despite paragraphs (c) and (d), the boundaries of the land to be acquired are those shown on the plan but the status of that land does not change unless in accordance with paragraph (c) or (d); and;';

(b) for paragraph (g) substitute— "(g) if any land in the plan is not under the

operation of the Transfer of Land Act 1958 or steps have not been taken to bring it under that Act, the Registrar, before registering the plan, must bring the land under the operation of that Act by direction in accordance with PartIIofthatAct;and

(h) unless the plan states that land is to remain land affected by a body corporate and its existing lot entitlement and liability is to continue, the land acquired ceases to be land

782


affected by a body corporate and to have any lot entitlement or liability— (i) if it is acquired by compulsory process,

when the Registrar records the vesting date of the land; or

(ii) if it is acquired by agreement, on the vesting date.".

(6) After section 35 (6) of the Principal Act insert— "(7) This Act does not limit or affect the operation of

the Land Acquisition and Compensation Act 1986. (8) An acquiring authority may under this section

submit for certification and lodge for registration a plan subdividing any land vested in it or registered in its name.

(9) Sub-sections (2) to (6) apply to a plan referred to in sub-section (8) as if— (a) the land in the plan were land acquired by the

authority; (b) in sub-section (3) (a) (i) the references to

"except for the purpose of acquisition" and "excluding the land to be acquired" were deleted;

(c) in sub-section (3) (a) (ii) the reference to "excluding the land to be acquired" were deleted;

(d) sub-section (3) (b) (c) and sub-section (6) (a) to (d) and (ea) were deleted.".

32. Compulsory acquisition and removal of easements

(1) In section 36 of the Principal Act, for sub-section (1) substitute— "(1) If—

(a) when considering a proposed amendment to a planning scheme or an application for a permit or to amend a permit; or

(b) in implementing an amendment to a planning scheme; or

783


(c) in a condition in a permit—

the Council or a referral authority states in writing that it considers that the economical and efficient subdivision or consolidation (whether existing or proposed) or servicing of, or access to, land covered by the amendment, proposed amendment, application or permit requires the owner of land to— id) remove a right of way over the owner's land;

or (e) acquire or remove an easement over—

(i) other land in the subdivision or consolidation; or

(ii) other land in the vicinity—

the owner may apply to the Administrative Appeals Tribunal for leave to remove the right of way or acquire or remove the easement compulsorily.

(IAA) In conferring powers on a Council or referral authority under sub-section (1) it is the intention of Parliament that, in considering a matter for the purposes of that sub-section, the Council or referral authority should make an assessment of the engineering aspects of the matter, is not bound to notify anyone affected or to hear objections, but objections to that assessment may be raised before the Tribunal.".

(2) In section 36 (2) (b) (i) of the Principal Act after "22 (1) (c)" insert "(d) and (da)".

(3) In section 36 (2) (b) (ii) of the Principal Act, for "being the benefit o f substitute "benefited by".


33. Staged subdivisions


(2) After section 37 (3) (c) (iii) of the Principal Act insert—

784


"(iiia) Set aside additional roads or reserves on the land in that stage;".

(3) In section 37 (3) (c) (iv) (C) of the Principal Act, before "changing" insert "Subject to sections 33 (2) and (3),".

(4) After section 37 (3) (c) (iv) of the Principal Act insert—

";or

(D) showing land on that plan as land benefited by an easement or restriction created over the land in the plan for the second or subsequent stage;".

(5) In section 37 (3) (c) (v) of the Principal Act, for sub-sub-paragraph (B) substitute— "(B) section 22 is complied with, but as if it required

consent to the amendment in respect of any lot on the master plan or a plan for an earlier stage shown on the plan sought to be registered as being affected by it and as if the persons listed in section 22 (1A) included each person who, before the lodging of the plan, is an owner or transferee under an instrument lodged for registration.".

(6) After section 37 (7) of the Principal Act insert— "(8) A plan for the second or a subsequent stage may

take the land in that stage or in that or any future stages out of the staged subdivision and, if it does this— (a) must amend the master plan so as to show the

land as a lot on the plan; and (b) subject to section 33 (2) and (3), must make

any necessary amendments to lot entitlement and liability; and

(c) may provide that the land in the plan becomes a lot affected by any relevant body corporate.

(9) On the registration of a plan referred to in subsection (8)— (a) this section ceases to apply to the land in the

plan; and {b) the land in the plan vests in the owners of all

the stages to which it relates, as tenants in

785


Act No. 48/1991

common in shares proportional to their interests in the land in those stages; and

(c) any requirement made in the statement of compliance for the master plan ceases to apply to the land in the newly registered plan.

(10) A plan referred to in sub-section (8) may amend the master plan or a plan for any earlier stage in any way necessary because the land in the plan is taken out of the staged subdivision.".

34. Disputes

(1) In section 38 of the Principal Act for sub-section (1) substitute— "(1) If a dispute or any other matter arises under this

Act or the regulations and affects a body corporate, an owner of land affected by a body corporate or a purchaser in possession under a terms contract of a lot affected by a body corporate, the body corporate, owner or purchaser may apply to the Magistrates' Court for a declaration or an order determining the dispute or matter.

(1A) If a dispute or other matter arises between the owners of lots, roads or reserves on a plan, in relation to— (a) an easement implied by section 12; or (b) the exercise of rights conferred by the easement;

or (c) interference with the easement; or (d) maintenance or repair obligations in relation

to the easement—

any of the owners may apply to the Magistrates' Court for a declaration or order determining the dispute or matter.".

(2) In section 38 (2) of the Principal Act after "(1)" insert "or(lA)".

(3) In section 38 (3) of the Principal Act— (a) after "body corporate," (where first occurring) insert

"a body corporate,";

786


(b) in paragraph (ad), after "member" insert "or group of members";

(c) after paragraph (aa) insert— "(ab) an order consenting on behalf of a person

whose consent to the registration of a plan is required under section 22; or".

(4) In section 38 (4) of the Principal Act after "body corporate" (where first occurring) insert "or a member of a body corporate,".

(5) In section 38 of the Principal Act, for sub-section (6B) substitute—

"(6B) A court must not make an order on an application under sub-section (3) (aa) unless it is satisfied that— (a) the member or group of members cannot vote

because the member is or the members are dead, out of Victoria, or cannot be found; or

(b) for any other reason it is impracticable to obtain the vote of the member or members; or

(c) the member has or members have refused consent to the proposed alteration of the plan and— (i) more than half of the membership of the

body corporate having total lot entitlements of more than half of the total lot entitlement of the members of the body corporate consent to the proposed alteration; and

(ii) the purpose for which the alteration is sought is likely to bring economic or social benefits to the subdivision as a whole greater than any economic or social disadvantages to the members who did not consent to the alteration.

(6BA) A court must not make an order on an application under sub-section (3) (ab) unless it is satisfied that— (a) the person whose consent is required is dead

or out of Victoria or cannot be found; or

787


(b) it is otherwise impracticable to obtain the person's consent; or

(c) it is impracticable to serve the person with the notice under section 22 (1B).

(6BB) A court may in an order under this section direct or authorise the Registrar to dispense with the delivery of any certificate of title or duplicate instrument or other document.".

(6) In section 38 (7) of the Principal Act— (a) after "administrator" insert "in accordance with

their lot liabilities or, if the order otherwise provides, in accordance with the order";

(b) omit the expression beginning "and the Court" and ending at the end of the sub-section.

(7) After section 38 (8) of the Principal Act insert— "(9) A court to which an application is made or a matter

referred under this section may make any order for payment of costs it thinks fit.".

35. Disputes which may be referred to AAT

In section 39 of the Principal Act— (a) in sub-section (1) after "Act" insert "or the

regulations"; (b) in sub-section (3) for paragraph (c) substitute—

"(c) any failure to give notice under section 22 (1 B) when requested to do so.".

36. Appeals to AAT

(1) After section 40 (1) (b) (ii) of the Principal Act insert— "(hi) makes a requirement under section 44 (3F); or".

(2) After section 40 (1) (c) of the Principal Act insert—

";or (d) a Council or referral authority requires the applicant

to enter into an agreement under section 17 (2) (c) or 21(1) (ft) (ii).".

788


(3) After section 40 (1) of the Principal Act insert— "(1A) An owner who requests the Council or a referral

authority to make a statement under section 36 or has applied for a permit or requested a permit to be amended may appeal to the Administrative Appeals Tribunal if the Council or referral authority— (a) refuses to make that statement; or (b) fails to make a statement under section 36

within the prescribed time. (1B) An applicant under section 44 (4A), (5), (5 A) or (5B)

may appeal to the Administrative Appeals Tribunal if a Council refuses to consent to the application.".

37. Amendment of regulation-making powers

In section 43 (1) of the Principal Act— (a) after paragraph (ib) (iv) insert—

"(v) to supply information concerning existing registered easements for the purposes of section 12 and to charge fees for doing so; and";

(b) in paragraph (/),-before "any other matter" insert "providing for".

•}

38. Amendment of transitional provisions

(1) In section 44 of the Principal Act, for sub-section (3F) substitute— '(3F) If a plan is referred to a referral authority under

sub-section (3E), the authority may require the permit to be amended to include conditions about the works required by the authority, and Division 3 of Part 4 of the Planning and Environment Act 1987 applies to that amendment as if after section 87 (2) of that Act there were included—

"(2A) The Administrative Appeals Tribunal may amend a permit referred to in section 44 (3E) of the Subdivision Act 1988 so as to include requirements made by a referral authority under section 44 (3F) of that Act.".'

789


(2) In section 44 of the Principal Act—

(a) sub-sections (4), (6B), (6C) and (8) are repealed; (b) in sub-section (4A)—

(i) for "unit" (where first occurring) substitute "lot";

(ii) omit "unit or" (where first occurring); (iii) omit "accessory unit or"; (iv) for the expression beginning "plan—" and

ending "requires" substitute "plan, the lot ceases to be an accessory lot and becomes a lot for the purposes of this Act,";

(c) in sub-section (5)— (i) for "unit" (where first occurring) substitute

"lot"; (ii) omit "unit or";

(d) in sub-section (5D), for the expression beginning "continues" and ending at the end of the subsection substitute "continues, subject to Schedule 2 and until replaced, modified or amended by a plan under this Act, to have the same status and operation as it had before the commencement of this section";

(e) in sub-section (5E), after "continue" insert", subject to Schedule 2,";

( / ) in sub-section (6)— (i) for "The" substitute "Until the application date

in Schedule 2 the"; (ii) for "to dealings" substitute "to the inclusion

of land in common property and to dealings";

(g) in sub-section (7), omit "before the commencement of this section".

(3) For section 44 (6E) of the Principal Act substitute—

"(6E) This Act does not apply to anything done under section 526, 527, 528 or 569BA of the Local Government Act 1958.".


790


"(10A) An application, instrument or other dealing lodged under the Transfer of Land Act 1958 in respect of a plan— (a) before the Act application date for that

plan in Schedule 2; or (b) not later than 6 months after that date— relating to a matter under the Strata Titles Act 1967 or the Cluster Titles Act 1974 must be dealt with by the Registrar in the same manner as it could have been dealt with before the Act application date.".

(5) In section 44A of the Principal Act paragraph (g) is repealed.

39. Section 45 substituted

For section 45 of the Principal Act substitute—

45. References to the Register under the Transfer of Land Act 1958

Until the coming into operation of section 7 of the Transfer of Land (Computer Register) Act 1989, a reference in this Act to—

(a) the Register, must be taken to be a reference to the Register Book; and

(b) a folio of the Register, must be taken to be a reference to a registered Crown grant or a registered certificate of title; and

(c) folios of the Register, must be taken to be a reference to registered Crown grants or registered certificates of title; and

(d) a certificate of title must be taken to be a reference to a duplicate Crown grant or a duplicate certificate of title.".

791


40. Section 46 substituted

For section 46 of the Principal Act substitute—

"46. Strata and cluster plans

Schedule 2 has effect with respect to registered plans of strata subdivision, registered cluster plans, plans of redevelopment within the meaning of the Strata Titles Act 1967 and plans of cluster redevelopment within the meaning of the Cluster Titles Act 1974.".

41. Schedule 2 substituted

For Schedule 2 to the Principal Act substitute—

'Schedule 2—Strata and Cluster Subdivisions

1. Definitions In this Schedule— "Accessory lot" means a unit (which, by force of

this Schedule, becomes a lot) on a registered plan of strata subdivision or a lot on a registered cluster plan— (a) intended for separate ownership and use

with any other lot as— (i) a stairway, passage or utility space or

for a like purpose, in the case of a registered plan of strata subdivision; or

(ii) a garden, garage, car parking space, storage space, swimming pool or laundry, or for a like purpose, in the case of a strata or cluster plan—

or partly for one and partly for any other of those purposes; and

(b) shown as an accessory lot on the plan;

"Act application date" means—

792


(a) for strata or cluster plans registered or strata or cluster redevelopment plans approved before the commencement of this Schedule, the date of commencement of this Schedule; or

(b) for strata or cluster plans registered or strata or cluster redevelopment plans approved on or after that commencement, the time immediately after the plan is registered or approved;

"Car park lot" means an accessory lot intended to be owned and used for the purposes of parking a motor vehicle or partly for those purposes and partly for some other purpose;

"Limited residential lot" means a unit (which, by force of this Schedule, becomes a lot) on a registered plan of strata subdivision or a lot on a registered cluster plan— (a) intended to be owned and used for

residential purposes or partly for residential purposes and partly for some other purpose; and

{b) no part of which is intended to be owned and used for the purposes of parking a motor vehicle; and

(c) which is not an accessory lot;

"Notice of restriction" means— (a) a notice in or to the effect of the form in

the Fourth Schedule to the Strata Titles Act 1967 and contained in a registered plan of strata subdivision or a plan of redevelopment within the meaning of that Act; or

(b) a notice in or to the effect of the form in the Second Schedule to the Cluster Titles Act 1974 and contained in a registered cluster plan or in a plan of cluster redevelopment;

793


"Restricted lot" means a limited residential lot specified as a restricted lot in a notice of restriction;

"Scheme of development" means a scheme of development accompanying a registered cluster plan under section 21 of the Cluster Titles Act 1974;

"Strata or cluster body corporate" means— (a) a body corporate created under the Strata

Titles Act 1967 on a registered plan of strata subdivision; or

(b) a body corporate created under the Cluster Titles Act 1974 on a registered cluster plan;

"Strata or cluster plan" means— (a) a registered plan of strata subdivision; or (b) a registered cluster plan;

"Strata or cluster redevelopment plan" means— (a) a plan of redevelopment approved under

the Strata Titles Act 1967; or (b) a plan of cluster redevelopment approved

under the Cluster Titles Act 1974.

2. Act to apply to strata or cluster plans and redevelopment

(1) On and from the Act application date— (a) this Act applies to a strata or cluster plan

or a strata or cluster redevelopment plan and the Strata Titles Act 1967 and Cluster Titles Act 1974 cease to apply to that plan;

(b) each registered plan of strata subdivision or approved plan of redevelopment within the meaning of the Strata Titles Act 1967 and each notice of restriction contained in it or scheme of development accompanying it has effect as if a reference

794


•. to a unit (whether accessory, car park, limited residential, restricted or otherwise) were a reference to a lot;

(c) the status of land as an accessory lot, car park lot, limited residential lot or restricted lot or common property is not affected;

(d) each strata or cluster body corporate becomes a body corporate under this Act;

(e) the easements or rights implied over a strata or cluster plan under section 12 of the Strata Titles Act 1967 or section 20 of the Cluster Titles Act 1974 are extinguished;

(/*) there are implied over the land in a strata or cluster plan the easements referred to in section 12 (2) of this Act;

(g) a certificate of title to a lot on a strata or cluster plan has effect as if any reference to section 12 of the Strata Titles Act 1967 or section 20 of the Cluster Titles Act 1974 were a reference to section 12 of this Act.

(2) Sub-section (1) does not affect the status or operation of—

(a) a strata or cluster body corporate; or (b) a notice of restriction on a strata or cluster

plan or a strata or cluster redevelopment plan; or

(c) lot entitlement or liability on a strata or cluster plan or a strata or cluster redevelopment plan; or

(d) a lot, accessory lot, car park lot, limited residential lot, restricted lot or common property on a strata or cluster plan or a strata or cluster redevelopment plan.

(3) In relation to a strata or cluster plan, section 28 has effect as if all the lots on the plan were specified lots.

795


3. Folios of the Register and certificates of title

(1) Unless the Registrar is requested to do so under section 31 or 32 of the Transfer of Land Act 1958 or the plan is next amended or, in the case of common property, section 28 (e) otherwise requires, the Registrar need not—

(a) amend recordings in the Register concerning, or produce a new certificate of title for, a lot affected by the operation of clause 2(1); or

(b) create a folio of the Register or produce a certificate of title for common property on a strata or cluster plan.

(2) On the creation of a folio of the Register for common property on a strata or cluster plan, any folio of the Register for a lot on that plan has effect as if any reference to an undivided share in the common property were deleted.

(3) On a folio of the Register or Certificate of Title for an accessory lot or restricted lot, the Registrar may record the fact that it is a lot of that kind.

(4) This clause has effect despite anything in section 28(e).

4. Administrators

(1) On the Act application date a current order made under the Strata Titles Act 1967 or the Cluster Titles Act 1974 appointing an administrator has effect as if made under this Act.

(2) Sub-section (l).does not affect the previous operation of the order.

5. Boundaries

Unless the plan otherwise provides, if the whole or part of a boundary of a lot with another lot or with common property on a strata or cluster plan or a strata or cluster redevelopment plan lies along or

796

Subdivision (Miscellaneous Amendments) Act 1991 Act No. 48/1991 , s. 41

within a structure that is a wall, fence, floor or ceiling, the boundary is the median of the structure.

6. Effect of notice of restriction

If a strata or cluster plan or a strata or cluster redevelopment plan contains a notice of restriction, the Registrar must not—

(a) register a transfer, mortgage, charge, lease or sub-lease of a restricted lot on the same plan unless that dealing includes a car park lot; or

(b) record in the Register a transmission of, or vesting order or disposition dealing with, a restricted lot on the same plan unless the transmission, order or disposition includes a car park lot; or

(c) create a folio of the Register for a restricted lot unless the folio states that the registration of dealings with the lot is restricted.

7. Updating plans

(1) The Registrar may—

(a) amend or substitute information in a strata or cluster plan or a strata or cluster redevelopment plan; or

(b) require a person who proposes to amend a plan of that kind to amend or substitute information in it—

in any way the Registrar thinks appropriate to make the plan resemble more closely plans prepared under this Act.

(2) Sub-section (1) does not permit a change to the substance of the information in a plan.

797


8. Accessory lots

A person cannot deal with an interest in an accessory lot by selling, transferring, mortgaging, leasing or sub-leasing it unless—

(a) the dealing is made or has effect as part of or in connection with a dealing with a corresponding interest in a lot on the same plan that is not an accessory lot; or

(b) the dealing is made with the Registered proprietor, purchaser, transferee, mortgagee, lessee or sub-lessee of a lot on the same plan that is not an accessory lot.

9. Amendment of plans

(1) On and from the Act application date, a strata or cluster plan cannot be amended by a later strata or cluster plan or a later strata or cluster redevelopment plan unless—

(a) section 44 (5E), (5F) or (10A) applies to the later plan; or

(b) the later plan was submitted and lodged under section 44 (2) or (3).

(2) If the Council agrees, a cluster plan registered on or after the commencement of this Schedule need not be accompanied by a scheme of development.

10. Additional powers of strata or cluster bodies corporate

(1) Without limiting its other powers, a strata or cluster body corporate may proceed under section 32(l)to—

(a) add to or delete a notice of restriction on the plan; or

(b) change a lot to an accessory lot or an accessory lot to a lot.

(2) A strata or cluster body corporate cannot exercise any of the powers referred to in sub-clause (1) so that land included in the plan after the Act

798


application date becomes or is included in a restricted lot or accessory lot.

11. Enforcement of schemes of development

(1) A Council or a body corporate created on a cluster plan or a member of that body corporate may apply to a court of competent jurisdiction for an order—

(a) compelling performance, or restraining a breach, of a requirement or restriction in a scheme of development; or

(b) awarding damages for loss or damage arising out of a breach of a requirement or restriction in a scheme of development—•

by a body corporate, a member of the body corporate or (to the extent that the requirement of restriction is negative in character) the occupier of a lot affected by the body corporate.

(2) The court may make the order applied for if it is satisfied it is just and equitable to do so.

12. Stage development

(1) I f -(d) there is a registered cluster plan for the

development of land in stages; and (b) any of the stages is subject to outstanding

Council requirements within the meaning of the Cluster Titles Act 1974—

the owners of the land subject to the requirements may use a plan under section 37 to take the land out of the stage development, as if the development were a staged subdivision.

(2) On the registration of a plan referred to in subclause (1), Part IV of the Cluster Titles Act 1974 and any applicable Council requirements cease to apply to the land in the plan.

799


(3) This Schedule does not prevent a person choosing to proceed with the development of land in stages under section 44.'.

42. Repeals

(1) Sections 47, 48, 49 and 50 of the Principal Act are repealed.

(2) Schedule 3 to the Principal Act is repealed.

43. Transitional provisions: proceedings

(1) In this section "relevant date" means—

(a) for a provision of this Act that commences not later than the day on which this Act receives the Royal Assent, the date of the Royal Assent; or

(b) for any other provision of this Act, the date of commencement of that provision.

(2) A proceeding commenced before the relevant date before a Court or Tribunal may, on and from that date, be continued or completed as if this Act had not been enacted.

(3) A proceeding by way of appeal or review of a proceeding mentioned in sub-section (2) may be commenced, continued or completed before on or after the relevant date as if this Act had not been enacted.

44. Transitional provisions: plans and other matters

(1) Subject to this section, an amendment made to the Principal Act by a provision of this Part, other than an amendment made by sections 4, 38 and 41, applies only to—

(a) a plan submitted for certification or lodged for registration; or

800


(b) a dealing or other matter occurring—

on or after the date of commencement of that provision.

(2) The Principal Act continues to apply (as if this Act had not been enacted) to—


(b) the continuation or completion of any other dealing or matter begun—

before the commencement of this sub-section or not later than 6 months after the commencement.

(3) Despite sub-section (2), if—


(b) a dealing or matter begun—

before the commencement of this section or not later than 6 months after that commencement complies with the Principal Act as amended by any provision of this Part, the Council or Registrar must deal with it as if, when it was submitted or lodged, or began, the amendment to the Principal Act were in operation.

(4) Sub-section (1) does not prevent the submission of a new plan or the amendment or re-certification of an existing plan in accordance with an amendment made to the Principal Act by this Part.

(5) In this section "matter" means an agreement or a public open space requirement.

45. Transitional provisions: public open space requirements

Without limiting section 44, if—

(a) before the commencement of section 14 a public open space requirement was made under the Principal Act; and

78537/91—26 801


Act No. 48/1991

(b) the requirement could not be made under the Principal Act as amended by that section; and

(c) at the date of commencement of that section the requirement has not been complied with—

the requirement must for all purposes be taken never to have been made.

46. Registrar may cancel common property title

If on or after 30 October 1989 and before the commencement of section 26 a certificate of title has been produced for common property and, under section 28 of the Principal Act as amended by this Act, the Registrar would not be required to produce that certificate of title, the Registrar may require the submission of and cancel that certificate of title.

47. Transitional provisions: Notice of easement registration

If before the repeal of section 25 (4) of the Principal Act a creation, variation or removal of an easement or restriction was registered under the Transfer of Land Act 1958 and the easement or restriction is not part of a plan of subdivision or consolidation, the Registrar need not give the Council notice of that registration.

PART 3—AMENDMENT OF THE TRANSFER OF LAND ACT 1958

48. Transfer of Land Act and Subdivision Act to be read together

In section 97 of the Transfer of Land Act 1958 for subsection (1) substitute— "(1) This Act and any subordinate instrument (within

the meaning of the Interpretation of Legislation Act 1984) made under it apply to the Subdivision Act 1988 as if that Act formed part of this Act, and that Act must be read as one with this Act.

No. 6399. Reprinted to No. 128/1986 subsequently amended by Nos 55/1987, 53/1988, 18/1989, 19/1989, 57/1989, 81/1989, 13/1990 and 92/1990.

802


(2) If a provision of the Subdivision Act 1988 or the regulations made under that Act is inconsistent with a provision of this Act or a subordinate instrument made under this Act, the provision of that Act or those regulations prevails.".

49. Conversion of building subdivisions

(1) After section 98CB (1) of the Transfer of Land Act 1958 insert—

"(1A) If a plan of subdivision adopts the interior face of a wall, ceiling or floor of a part of a building as a boundary of a lot on a plan of subdivision, the Registrar may accept that boundary as substantially or, where necessary, exactly agreeing with the corresponding boundary of an allotment on the plan of building subdivision for the purposes of sub-section (1).".

(2) In section 98cc (1) (c) of the Transfer of Land Act 1958 after "each lot and" insert "(if appropriate)".

50. Amendments concerning computerisation of Register

The Transfer of Land Act 1958 is amended as follows: (a) In section 32, for sub-section (1) substitute—

"(1) On the application of any registered proprietor or person entitled to be registered as proprietor of land under one or more folios of the Register, the Registrar may, on delivery of the certificates of title for those folios, create folios of the Register for parts of the land that can be disposed of separately without subdivision, and may delete any existing relevant folios of the Register.";

(b) In section 32 (1A), for "issue a single certificate of title" substitute "create a single folio of the Register";

(c) In section 98CB (2) (a) and (3) (c), for "Register Book" substitute "Register";

(d) In section 98cc(l), for paragraph (c) substitute—

803


"(c) delete all relevant folios of the Register for the land in the building subdivision and create folios of the Register for each lot and (if appropriate) the common property; and";

(e) In section 98cc (2), for paragraph (a) substitute— "(a) there has been delivered to the Registrar the

certificate of title for each folio of the Register for every part of the land comprised in the building subdivision and the duplicate instrument (if any) of every registered service agreement, mortgage, charge, lease or sub-lease relating to any part of the land comprised in the building subdivision; and";

( / ) In section 98cc (3), for "production" (where twice occurring) substitute "delivery";

(g) In section 98CE (2)— (i) for "duplicate certificate of title or instrument

to produce" substitute "certificate of title or duplicate instrument to deliver"; and

(ii) for "submission" substitute "delivery"; (h) In section 104 (3A), omit"or lodged".

5 1 . Consequential amendments

In sections 72 ( 2 A ) (b), 73 ( 1 A ) {b) a n d 88 ( 1 A ) (b) of the Transfer of Land Act 1958 for "d i rec ted" substitute "authorised".

52. Statute law revision

In sections 54 (b) and 56 of the Transfer of Land Act 1958, for "Assurance Fund" substitute "Consolidated Fund".

PART 4—AMENDMENT OF THE SALE OF LAND ACT 1962

NO. 6975. 53 . Land which can be disposed of without being subdivided Reprinted to No. 42/1989

arnlSnedeUdByy 0) I n section 8 A of the Sale of Land Act 1962 after " 8 A ' NO. 92/1990. insert " (1 )" .

804


(2) In section 8A (1) (a) of the Sale of Land Act 1962— (a) in sub-paragraph (i), after " 1988" insert "and which

is not the subject of a later registered plan";

(b) in sub-paragraph (ii), for the expression beginning "plan of subdivision" and ending at the end of the sub-paragraph substitute "registered plan";

(c) in sub-paragraph (iii) for "any corresponding previous enactment" substitute "section 97 of the Transfer of Land Act 1954 or a corresponding previous or subsequent enactment, which is not the subject of a later registered plan";

(d) for sub-paragraphs (iv) and (v) substitute—

"(iv) a lot on a registered plan of strata subdivision, subject to any restriction on the plan, which is not the subject of a later registered plan; or

(v) a lot on a registered cluster plan, subject to any restriction on the plan, which is not the subject

. of a later registered plan; or";

(e) in sub-paragraph (vii), for the expression beginning "registered plan" and ending at the end of the subparagraph substitute "registered plan;";

( / ) for sub-paragraph (viii) substitute— "(viii) a separate parcel of land or a separate part

of a parcel of land if the parcel or part existed and could be sold separately prior to the commencement of section 44 of the Subdivision Act 1988 (whether the land is disposed of before or after that commencement); or";

(g) sub-paragraph (ix) is repealed.

(3) In section 8A (1) (b) of the Sale of Land Act 1962— (a) for sub-paragraph (i) substitute—1

"(i) an allotment on the latest Crown plan for disposal in fee simple of Crown land which is not the subject of a later plan of subdivision

805


sealed under section 569B of the Local Government Act 1958; or";

(b) in sub-paragraph (ii) after "of land" insert "or a separate part of a parcel of land";

(c) after sub-paragraph (ii) insert— "(iia) a separate parcel of land or a separate part

of a parcel of land granted by a conveyance dated 15 or less than 15 years before the commencement of section 44 of the Subdivision Act 1988 and which lawfully subdivided the land; or";

(d) for sub-paragraph (iv) substitute— "(iv) a separate parcel of land or a separate part

of a parcel of land if the parcel or part existed and could be sold separately prior to the commencement of section 44 of the Subdivision Act 1988 (whether the land is disposed of before or after that commencement); or".

(4) In section 8A (l)(c) of the Sale of Land Act 1962— (a) in sub-paragraphs (i) and (iii), omit "or any

corresponding previous enactment"; (b) after sub-paragraph (iii) insert—

";or (iv) was purchased by a person or transferred to a

municipality under section 527 of the Local Government Act 1958 or any corresponding previous enactment; or

(iva) was proclaimed as a public highway before the commencement of the Subdivision Act 1988.".

(5) After section 8A (1) (c) (iva) of the Sale of Land Act 1962 insert— ";or (v) is transferred or disposed of under section 207 of

the Local Government Act 1989 and a plan of subdivision is not required under that section.".

(6) After section 8A (1) of the Sale of Land Act 1962 insert—

806


"(2) Expressions used in this section and defined in the Subdivision Act 1988 have the same meanings in this section as they have in that Act.

(3) For the purposes of sub-section (1) (a) (viii) and (b) (iv), land must be taken to be a separate parcel or a separate part of a parcel of land which existed and could be sold separately prior to the commencement of section 44 of the Subdivision Act 1988 only if the parcel or part existed prior to that commencement and— (a) the land—

(i) is under the operation of the Transfer of Land Act 1958; and

(ii) does not fall under sub-section (1) (a) (i) to (vii); and

(iii) is not part of a plan of consolidation; and (iv) either—

(A) is not part of an allotment on a plan sealed by a Council or confirmed under the Local Government Act 1958 or of a Crown grant issued on or after 1 August 1969 and showing the allotment in two or more pieces; or

(B) is part of an allotment on a plan or of a Crown grant mentioned in sub-sub-paragraph (A) but is dealt with by a person who is the registered proprietor of that and no other part of the land in the allotment or grant; or

(C) is part of the land in a folio of the register, but that part does not touch on any other land in the folio and is not part of an allotment on a plan or of a Crown grant mentioned in sub-sub-paragraph (A); or

(b) the land— (i) is not under the operation of the Transfer

of Land Act 1958; and

807


(ii) does not fall under sub-section (1) (b) (i) to (iiia); and

(iii) either— (A) is not part of an allotment on a plan

sealed by a Council or confirmed under the Local Government Act 1958 on or after 1 August 1969 showing that allotment in two or more pieces; or

(B) is part of an allotment mentioned in sub-sub-paragraph (A) but is dealt with by a person who is the owner of an estate in fee simple in that part and no other part; or

(C) is part of a parcel of land granted by a conveyance which lawfully brought about a subdivision, if that part does not touch on any other part of the parcel and is not part of an allotment mentioned in sub-sub-paragraph (A); or

(c) the land is part of a plan of consolidation approved by the Registrar and is dealt with by a person who is the registered proprietor of that part and no other part of the land in the plan.".

54. Vendor's statement

(1) In section 32 (2) (e) of the Sale of Land Act 1962, after "1986" insert", being a notice, order, declaration, report, recommendation or approved proposal of which the vendor might reasonably be expected to have knowledge".

(2) In section 32 (3) of the Sale of Land Act 1962— (a) in paragraph (a) after "copy o f insert "(or, in the

case of land under the Transfer of Land Act 1958, a reproduction of, or statement of information as to, being a reproduction or statement provided by the Registrar)";

808


(b) i n -(i) paragraph (ba), after "a copy of" (where first

and thirdly occurring); and (ii) paragraph (c) after "a copy of" (where first

occurring); and (iii) paragraph (d) after "a copy of" (where first

occurring); and (iv) paragraph (e) after "a copy of— insert "(or a reproduction provided by the Registrar of or a statement provided by the Registrar as to the information in)".

55. Sale of land before plan of subdivision certified

(1) In section 9AA of the Sale of Land Act 1962— (a) in sub-section (1) after "plan of subdivision" insert

"(whether certified or not)"; (b) in sub-section (1) omit "the plan has been certified

by the Council and"; (c) in sub-section (6) omit "9AG".

(2) After section 9AA (4) of the Sale of Land Act 1962 insert— "(5) A person may sell land under a prescribed contract

despite anything in section 8A.".

(3) In section 9AE (2) of the Sale of Land Act 1962— (a) after "that plan of subdivision" insert "or, if the

contract specifies another period, before the end of that specified period,";

(b) omit "of 18 months".

(4) In section 9AF (1) (b) of the Sale of Land Act 1962 after "deposit moneys" insert "less the amount of any occupation fees paid by the purchaser".

(5) In the Sale of Land Act 1962, section 9AG is repealed.


(1) In section 1 of the Sale of Land Act 1962, sub-section (3) is repealed.

809


(2) In section 14B (1) of the Sale of Land Act 1962— (a) in paragraph (a) for "9AF" substitute "9AH"; and (b) in paragraph (b), for "or 9AE" substitute ", 9AE or

9AH".

(3) In section 27 (4) (b) of the Sale of Land Act 1962, for "paragraph (b)" substitute "paragraph (a)".

57. Amendment concerning computerisation of Register

In section 8A (1) (a) (vii) of the Sale of Land Act 1962, for "comprised in a Crown grant or certificate of title" substitute "in a folio of the Register under the Transfer of Land Act 1958".

58. Transitional provisions

(1) I f -(a) a document giving effect to a dealing with land—

(i) was lodged for registration before the commencement of this section; or

(ii) is lodged for registration on or after, but the dealing occurred before, that commencement; and

(b) section 8A of the Sale of Land Act 1962 as amended by this Act would have applied to the dealing, if it had occurred on or after that commencement—

the dealing may, on and from that commencement, be treated as if, when it occurred, the amendments made by this Act to section 8 A of that Act were in operation.

(2) Despite its repeal section 9AG of the Sale of Land Act 1962 continues to apply to a contract made under that section before its repeal.

PART S—AMENDMENT OF THE PLANNING AND ENVIRONMENT ACT 1987

NO. 45/1987. 59. Planning scheme amendments concerning easements, WEt,0 restrictions etc.

In section 6 (2) of the Planning and Environment Act 1987—

810


(a) for paragraph (g) substitute— "(g) subject to section 6A, regulate or provide for

the creation, variation or removal of easements or restrictions under section 23 of the Subdivision Act 1988;

(gd) subject to section 6A, regulate or provide for the variation or removal of conditions in the nature of easements in Crown grants, under section 23 of the Subdivision Act 1988;

(gb) subject to section 6A, regulate or provide for the creation or removal of easements or rights of way under section 36 of the Subdivision Act 1988;";

(b) after paragraph (ka) insert— "(kb) make any provision in relation to any of the

things listed in the Table in section 24A (1) of the Subdivision Act 1988;".

60. Section 6A inserted

After section 6 of the Planning and Environment Act 1987 insert—

"6A. Easements, restrictions etc.

(1) In this section and in section 6 (2) (g) "restriction" has the same meaning as in the Subdivision Act 1988.

(2) Subject to sub-section (3), a planning scheme may require a permit to be obtained before a person proceeds under section 23, 24A or 36 of the Subdivision Act 1988.

(3) A planning scheme must not— (a) prohibit or restrict—

(i) the creation, variation or removal of easements or restrictions by agreement, prescription, abandonment, or otherwise by operation of law; or

811


(ii) the creation, variation or removal of easements or restrictions by or under an Act other than the Subdivision Act 1988; or

(iii) a person from proceeding under the Subdivision Act 1988 in relation to the creation, variation or removal of an easement or restriction referred to in sub-paragraph (i) or (ii); or

(b) regulate or provide for— (i) the variation or removal of a

covenant under section 41 of the Historic Buildings Act 1981 or section 3A of the Victorian Conservation Trust Act 1972; or

(ii) the variation or removal of an easement required to be created in favour of a public authority, Council, Minister or other person under an Act other than the Subdivision Act 1988, without the consent of that person; or

(c) allow a person to proceed under section 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction over land that the person does not own.

(4) A provision included in a planning scheme under section 6 (2) (gd) is in addition to section 362A of the Land Act 1958, and a person may choose whether to proceed under that section or the provision of the planning scheme.".

61. Permits and appeals relating to easements, restrictions etc.

(1) In section 47 of the Planning and Environment Act 1987—

(a) after "47." insert "(1)"; (b) in sub-section (1) after "land" insert "or in any of

the circumstances mentioned in section 6A (2) or for any combination of use, development and any of those circumstances,";

812


(c) at the end of the section insert—

"(2) Sections 52 and 55 do not apply to an application for a permit to remove a restriction (within the meaning of the Subdivision Act 1988) over land if the land has been used or developed for more than 2 years before the date of the application in a manner which would have been lawful under this Act but for the existence of the restriction.".

(2) Section 60 of the Planning and Environment Act 1987 is amended as follows—

(a) before "Before" insert "(1)"; (b) at the end of the section insert—

"(2) The responsible authority must not grant a permit which allows the removal or variation of a restriction (within the meaning of the Subdivision Act 1988) unless it is satisfied that the owner of any land benefited by the restriction (other than an owner who, before or after the making of the application for the permit but not more than three months before its making, has consented in writing to the grant of the permit) will be unlikely to suffer—

(a) financial loss; or (b) loss of amenity; or

(c) loss arising from change to the character of the neighbourhood; or

(d) any other material detriment—

as a consequence of the removal or variation of the restriction.".

(3) The Planning and Environment Act 1987 is amended as follows:

(a) in section 68 (3A) after "land" (where secondly occurring) insert "or relating to any of the circumstances mentioned in section 6A (2), or to any combination of use, development or any of those circumstances,";

813


(b) in section 69 (2) after "completed" insert "or within which a plan under the Subdivision Act 1988 is to be certified";

(c) after section 81 (a) insert— "(ad) a decision of the responsible authority refusing

to extend the time within which a plan under the Subdivision Act 1988 is to be certified, in the case of a permit relating to any of the circumstances mentioned in section 6A (2); or";

{d) in section 85 (1) ( / ) after "completed" insert "or within which a plan under the Subdivision Act 1988 is to be certified".

62. Permit conditions concerning easements or restrictions

In section 62 (2) of the Planning and Environment Act 1987—

(a) paragraph (k) is repealed; and (b) for paragraph (/) substitute—

"(/) a condition stating that it considers that the economical and efficient subdivision, consolidation or servicing of, or access to, land requires the holder of the permit to acquire or remove— (i) a right of way over the land covered by

the permit; or (ii) an easement over land not covered by the

permit but in the vicinity of that land—

using the procedure in section 36 of the Subdivision Act 1988;

(m) a condition requiring or authorising any of the things listed in the Table in section 24A (1) of the Subdivision Act 1988.".

63. Agreements

(1) In section 173 of the Planning and Environment Act 1987 for sub-section (4) substitute—

814


"(4) Despite anything in this Division, if an agreement entered into with a purchaser in anticipation of the purchaser becoming owner is registered by the Registrar of Titles, it does not bind the vendor unless the vendor assumes the purchaser's rights and obligations under the agreement.".

(2) In section 183 (2) of the Planning and Environment Act 1987 for "must cancel" substitute "must, as appropriate, cancel in whole or in part".

(3) After section 184 (2) of the Planning and Environment Act 1987 insert— "(3) A purchaser of land who is a party to an agreement,

or an owner of land, may apply to the Administrative Appeals Tribunal for an amendment to the agreement to remove the land from the application of the agreement, if the parties to the agreement cannot agree that the agreement should be amended.

(4) The Tribunal may approve the amendment if— (a) it considers that the land owner is not subject

to any further liability under the agreement; or (b) having regard to any relevant permit, or

requirements under the Subdivision Act 1988, it considers it inappropriate that the agreement should continue to apply to the land and the owner.".

64. Amendment of planning schemes concerning easements, restrictions etc.

(1) In addition to any other powers to prepare or approve amendments to any planning scheme, the Minister may prepare and approve an amendment to any planning scheme to incorporate any of the provisions authorised by section 6 (2) (g), (gd) or (gb) of the Planning and Environment Act 1987.

(2) Sub-section (1) authorises the preparation of only one amendment to each existing planning scheme.

815


(3) The Planning and Environment Act 1987, except for section 12 and Divisions 1 and 2 of Part 3, applies to the preparation and approval of an amendment under subsection (1).

(4) An amendment under sub-section (1) must not itself create, vary or remove an easement or restriction within the meaning of the Subdivision Act 1988.

(5) As soon as possible after the commencement of this section the Minister must prepare and approve an amendment to each planning scheme to provide that a permit is required to use or develop land in a residential zone for two dwellings, if there is a restriction prohibiting that use or development.

(6) Sub-clause (5) only applies to restrictions registered or lodged for registration prior to October 30 1989.

(7) The Planning and Environment Act 1987, except for section 12 and Divisions 1 and 2 of Part 3, applies to the preparation and approval of an amendment under subsection (5).

65. Transitional provision: permits

(1) If on or after 30 October 1989 but before the date of commencement of an amendment approved under section 64 a decision is made to grant a permit, or a permit is issued, that (by condition or otherwise) requires, provides for, directs or authorises the creation, variation or removal of an easement or restriction (within the meaning of the Subdivision Act 1988), that requirement, provision, direction or authorisation must for all purposes be taken to be and always to have been valid and effective, and its inclusion in the decision or permit must be taken not to invalidate and never to have invalidated the decision or permit or anything in it.

(2) Anything done in giving effect to a requirement, provision, direction or authorisation validated by subsection (1) must, if done in accordance with it, be taken for all purposes to be and always to have been validly done.

(3) This section applies to—

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(a) a permit issued on or after the date of commencement of an amendment referred to in sub-section (1), as the result of a decision made before that commencement; and

(b) anything done in relation to a permit or a decision referred to in sub-section (1) whether before or after the date of commencement of that amendment.

(4) On the date of commencement of an amendment to a planning scheme approved under section 64, an application for a permit authorised by the amendment and made before the amendment commenced (whether before or after the commencement of this section) may be dealt with as if the amendment had been in operation when the application was made.

(5) Expressions used in this section have the same meanings as in the Planning and Environment Act 1987.


(1) In section 19 (4) (b) of the Planning and Environment Act 1987, for "less that" substitute "less than".

(2) In section 11 (S) of the Planning and Environment (Amendment) Act 1988, for "exercsing" substitute "exercising".

(3) In the Planning and Environment (Amendment) Act 1989— (a) in sections 2 (2) and 26 (2), for "5 (1) (<?)" substitute

"5 (1)(/)"; (b) section 29 (2) is repealed.

PART 6—AMENDMENT OF OTHER ACTS

67. Amendment of Building Control Act 1981

(1) In section 21 A (1) (b) of the Building Control Act 1981— (a) in sub-paragraph (i), omit "or"; and (b) sub-paragraphs (ii), (iii) and (iv) are repealed.

(2) In section 21 A (2) of the Building Control Act 1981—

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(a) for "total of the areas" substitute "total of the floor areas"; and

(b) for "any of the purposes specified in sub-section (1) (b) (i), (ii), (iii) and (iv)" substitute "the purpose specified in sub-section (1) (£)".

(3) In section 21 A (3) of the Building Control Act 1981— (a) for "total of the areas" substitute "total of the floor

areas"; and (b) for "any of the purposes specified in sub-paragraphs

(i), (ii), (iii) and (iv) o f substitute "the purpose specified in".

(4) After section 21B of the Building Control Act 1981 insert—

"21c. Review of refusal or request

(1) Without limiting section 27 of the Administrative Appeals Tribunal Act 1984, a person affected by— (a) a Council's refusal to allow the

construction of a building; or (b) a Council's request that the person pay

money or give security—

under section 21A or 21B, may apply to the Administrative Appeals Tribunal for review of that decision.

(2) The application for review must be made within 28 days after the person receives notice of the refusal or request.

(3) The provisions of this Act relating to the referral of matters to arbitration or a Referees Board do not apply to a refusal or request under section 21A or 21B.".

68. Amendment of Local Government Act 1958

Section 569BA of the Local Government Act 1958 is repealed.

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69. Amendment of Local Government Act 1989

After section 207 (2) (b) of the Local Government Act 1989 insert—

"; and

(c) must, if required by the Registrar of Titles, lodge for registration under the Subdivision Act 1988 a certified plan of the land in respect of which any of those actions were taken.".

70. Amendment of Transfer of Land (Computer Register) Act 1989

In the Transfer of Land (Computer Register) Act 1989—

(a) in section 4, in proposed section 3 (4), for "6, 7, 8, 9 and 11" substitute "7, 8, 9, 10 and 12";

(b) in section 15, paragraphs (a), (h), (/), (J), (k), (/), (m), (/i), (o), (p), fo), (r), (5), (0, GO, (v), (w), (x) and (y) are repealed;

(c) in Schedule 2— (i) in item 10, for "Lawrence" substitute

"Laurence"; (ii) in item 15 (b) (ii), for "certificate of title"

substitute "folio of the Register"; (iii) item 46 is repealed; (iv) in item 54, paragraph (b) is repealed; (v) in item 56 (c) (i), after ' "certificate of title

entered in the Register Book"' insert "(wherever occurring)";

(vi) in item 72 (h) for "charge" substitute "notice"; (vii) in item 76, paragraphs (a), (b), (c) and (d) are

repealed; (ix) item 85 is repealed; (x) in item 86, paragraphs ( / ) and (g) are repealed;

(xi) in item 96, for "College" substitute "Colleges"; (xii) item 102 is repealed.

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71. New 27G inserted

In section 7 of the Transfer of Land (Computer Register) Act 1989, after proposed section 27F insert—

"27G. Record of plans

(1) The Registrar may keep a record of the information in Registered plans within the meaning of the Subdivision Act 1988 and any changes to the information.

(2) Except as provided in section 27 (6), the record is not part of the Register.

(3) A person may have access to the record of plans, subject to and in accordance with the regulations, and on the payment of the prescribed fee (if any).

(4) Sections 27 (2) and (3) and 27A (3) apply to the record of plans and the recordings in it as if those provisions referred to the record of plans instead of the Register.

(5) If the Registrar establishes a record of plans, the Subdivision Act 1988 has effect as if— (a) anything required or permitted to be

recorded by the Registrar on a plan were required or permitted to be recorded in the record of plans; and

(b) any provision requiring or permitting an amendment, replacement or modification of a registered plan required or permitted the substitution, deletion or amendment, as appropriate, of recordings in the record of plans; and

(c) any provision requiring or permitting the substitution of sheets in a registered plan required or permitted the substitution of recordings in the record of plans; and

(d) any provision requiring or permitting the cancellation of a plan required or

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permitted the deletion of appropriate recordings in the record of plans.

(6) Section 27D (1) applies to a recording in the record of plans as if it were a folio of the Register.

(7) On the application of any person or for the purpose of any legal proceeding, the Registrar may issue a certified copy of any recording made in the record of plans, and that copy is admissible in any legal proceeding.".

72. Amendment of Melbourne College of Advanced Education (Amalgamation) Act 1988

In section 5 (6) of the Melbourne College of Advanced Education (Amalgamation) Act 1988, for "Transfer of Land (Computer Register) Act 1988" substitute "Transfer of Land (Computer Register) Act 1989".

73. Amendment of Melbourne and Metropolitan Board of Works Act 1958

(1) After section 1 06A (1) of the Melbourne and Metropolitan Board of Works Act 1958 insert—

"(1 A) Instead of requiring a body corporate to pay for the supply of water to land affected by it, the Board may apportion the amount for which the body corporate would otherwise be liable between the lots affected by it, on the basis of— (a) the number of lots affected by it; or (b) the lot liability of each lot affected by it—

and the owners or occupiers of each lot to which an amount is apportioned are liable to pay it accordingly.

(1B) A body corporate may request the Board to use lot liability when apportioning amounts under subsection (1A).

(lc) The request must— (a) be in writing;

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Act No. 48/1991

(b) give details of lot liability for each lot affected by the body corporate.

(ID) A body corporate that makes a request under subsection (1B) must give written notice to the Board of any change in lot liability of any lot affected by it as soon as possible after the change occurs.

(1 E) If requested to do so in accordance with this section, the Board must use the lot liability method in apportioning an amount for which a body corporate would otherwise be liable in respect of amounts payable for the year following the year in which the request is made and each subsequent year, and may base the apportionment on information given to it by the body corporate under this section.

(IF) If a subdivision has more than one body corporate and the Board considers it impracticable to determine how much water is supplied to the land affected by each body corporate it may— (a) under sub-section (1), treat one of those bodies

corporate as being the only body corporate for the subdivision; and

(b) under sub-section (1A), apportion the amount for which that body corporate would otherwise be liable between all the lots in the subdivision.".

(2) In section 106A of the Melbourne and Metropolitan Board of Works Act 1958—

(a) in sub-section (1)— (i) for "a strata or cluster subdivision" substitute

"land affected by a body corporate"; (ii) for "the subdivision" substitute "the land

affected by it"; (b) in sub-section (2) after "rates" insert "or amounts"; (c) in sub-section (5) after "purposes" insert "except

for amounts apportioned to the lot under subsection (1A)";

(d) in sub-section (6)— (i) for "the body corporate of a strata or cluster

subdivision" substitute "a body corporate";

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(ii) for "of the subdivision" substitute "affected by the body corporate".

(3) In section 258BA of the Melbourne and Metropolitan Board of Works Act 1958—

(a) after "258BA." insert "(1)"; (b) in sub-section (1) after "set out in" insert "Column

lof";

(c) at the end of the section insert— "(2) The creation of an easement for a purpose set

out in Column 1 of Schedule 1 1B gives to the Board the rights specified in relation to an easement created for that purpose in Column 2 of that Schedule.".

74. Amendment of Water Act 1989

(1) In section 170 of the Water Act 1989 for sub-section (1) substitute—

"(1) A body corporate of a subdivision to which water is supplied under this Part is liable to pay any fees imposed under a tariff— (a) fixed according to the extent of use of water

supply service, in respect of the land affected by the body corporate; and

(b) in respect of the common property, or any part of the common property, affected by the body corporate.".

(2) After section 170 (1) of the Water Act 1989 insert— "(1A) Instead of requiring a body corporate to pay any

fees imposed under a tariff referred to in sub-section (l), an Authority may apportion the amount for which the body corporate would otherwise be liable between the lots affected by it, on the basis of— (a) the number of lots affected by it; or (b) the lot liability of each lot affected by it—

and the owners of each lot to which an amount is apportioned are liable to pay it accordingly.

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(1B) A body corporate may request an Authority to use lot liability when apportioning amounts under subsection (1A).

(lc) The request must— (a) be in writing; (b) give details of lot liability for each lot affected

by the body corporate.

( ID) A body corporate that makes a request under subsection (1B) must give written notice to an Authority of any change in lot liability of any lot affected by it as soon as possible after the change occurs.

(1 E) If requested to do so in accordance with this section, an Authority must use the lot liability method in apportioning an amount to which a body corporate would otherwise be liable in respect of amounts payable for the year following the year in which the request is made and each subsequent year, and may base the apportionment on information given to it by the body corporate under this section.

( IF) If a subdivision has more than one body corporate and the Authority considers it impracticable to determine how much water is supplied to the land affected by each body corporate it may— (a) under sub-section (1), treat one of those bodies

corporate as being the only body corporate for the subdivision; and

(b) under sub-section (1A), apportion the amount for which that body corporate would otherwise be liable between all the lots in the subdivision.".

(3) In section 170 (2) of the Water Act 1989— (a) for "registered proprietor or the occupier of a unit

or lot" substitute "owner of a lot affected by a body corporate";

(b) omit "unit or" (where secondly occurring).

(4) After section 170 (2) of the Water Act 1989 insert—

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"(2A) Any amount for which an owner of a lot is liable under sub-section (1A) must be offset against the amount for which the body corporate affecting that lot is liable under sub-section (l).".

75. Amendment of State Electricity Commission Act 1958

Section 103 B of the State Electricity Commission Act 1958 is amended as follows:

(a) after " 1 0 3 B " insert "(1)": (b) after "set out in" insert "Column 1 o f ; (c) at the end of the section insert—

"(2) The creation of an easement for a purpose specified in Column 1 of the Seventh Schedule gives to the Commission the rights specified in relation to an easement created for that purpose in Column 2 of that Schedule.".

76. Repeals of other Acts

The following are repealed: (a) the Subdivision (Amendment) Act 1989; (b) the Subdivision (Further Amendment) Act 1989.

77. Amendment of Land Act 1958

(1) In section 209 (4) of the Land Act 1958— (a) for "make an application under section 569AB of

the Local Government Act 1958" substitute "submit for certification under the Subdivision Act 1988";

(b) in paragraph (a) omit "for"; (c) for paragraph (b) substitute—

"(6) where the plan of consolidation is certified by the Council, lodge the plan with the Registrar of Titles for registration under that Act.".

(2) A Crown grant issued on or after 30 October 1989 and before the date on which this Act receives the Royal Assent that contains a condition referred to in section 209 (4) of the Land Act 1958 (as in force immediately

825


before the commencement of this section) has effect and must be taken always to have had effect as if—

(a) it contained the words "submit for certification under the Subdivision Act 1988" instead of the words "make an application under section 569AB of the Local Government Act 1958"; and

(b) it contained the words "where the plan of consolidation is certified by the Council, lodge the plan with the Registrar of Titles for registration under the Subdivision Act 1988" instead of the words "where the plan of consolidation is sealed by the Council, lodge the plan with the Registrar of Titles for approval under section 97A of the Transfer of Land Act 1958".

(3) Despite anything in the Land Act 1958 or in a Crown grant, if a Crown grant issued before 30 October 1989 contains a condition referred to in section 209 (4) of that Act—

(a) any reference in the condition to an application under section 569AB of the Local Government Act 1958 must be taken to include a reference to the submission for certification of a plan under the Subdivision Act 1988; and

(b) any reference in the condition to the sealing and lodging for approval of a plan must be taken to include a reference to the lodging for registration of a certified plan under the Subdivision Act 1988.

78. Amendment ofBayside Project Act 1988 In section 40A of the Bayside Project Act 1988—

(a) in sub-section (3) (e) after "that Act" (where secondly occurring) insert "that";

(b) after sub-section (4) (g) insert— "(gd) section 46 and Schedule 2 did not form part of

that Act; and".

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NOTES

1. Minister's second reading speech—

Legislative Assembly: 8 May 1991 Legislative Council: 6 June 1991

2. The long title for the Bill for this Act was "A Bill to amend the SuMivision Act 1988, the Transfer of Land Act 1958, the Sale of Land Act 1962, the Planning and Environment Act 1987, the Melbourne and Metropolitan Board of Works Act 1958, the Water Act 1989, and various other Acts and for other purposes.".

3. Section headings appear in bold italics and are not part of the Act. (See Interpretation of Legislation Act 1984).

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Subdivision (Miscellaneous Amendments) Act 1991

Documents

Transcript of Subdivision (Miscellaneous Amendments) Act 1991