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Amendment Bill 1996
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The Strata Titles Amendment Bill 1996 is cognate with this Bill.
(a) development contracts (see Schedule 1),
(b)
public roads and public reserves (see Schedule 2),
(c)
access ways (see Schedule 3),
(d) statutory easements (see Schedule 4),
(e)
miscellaneous matters (see Schedule 5).
The amendments proposed by Schedules 14 relate to the community
schemes, precinct schemes and neighbourhood schemes dealt with by the
Principal Act. Those are schemes that extend the common property concept
(introduced by the Strata Titles Act 1973) to schemes involving conventional
subdivisions. However, to avoid confusion, the Principal Act provides that,
instead of extending the meaning of the term common property, the relevant
expressions for those schemes would be community property for a
community scheme, precinct property for a precinct scheme and
neighbourhood property for a neighbourhood scheme.
A community scheme is initiated by the registration of a community plan
comprising 2 or more community development lots and another lot which
would be community property for the use of participants in the community
scheme.
A precinct scheme is initiated by the registration of a precinct plan
subdividing a community development lot into 2 or more precinct
development lots and another lot which would be precinct property for the
use of participants in the precinct scheme. A community scheme need not
include a precinct scheme.
A community development lot or precinct development lot is then subdivided
by the registration of a neighbourhood plan comprising 2 or more
neighbourhood lots for separate occupation (like a strata lot) and another lot
for the use of participants in the neighbourhood scheme as neighbourhood
property. Other development lots in the community scheme or precinct
scheme could then be subdivided by the registration of another
neighbourhood plan or a strata plan.
The Principal Act also provides for the establishment of neighbourhood
schemes that do not form part of a community scheme or precinct scheme.
The miscellaneous amendments proposed by Schedule 5 are explained later.
Clause 2 provides that the proposed Act is to commence on a day or days to
be appointed by proclamation.
Clause 3 gives effect to the proposed amendments set out in Schedules 15.
Schedule 1 Amendments relating to development
contracts
Schedule 1 amends section 26 of the Principal Act.
Schedule 1 [l] is intended to make i t clear that the consent to be given
by a council to the subdivision proposed by a neighbourhood plan i s
conditional on approval also being given by the council to a proposed
development contract for the neighbourhood scheme. A development
contract comprises instruments, plans and drawings that are registered
Explanatory note page 2
with a community plan, precinct plan or neighbourhood plan and
describe the manner in which it is proposed to develop the land in the
plan to which they relate.
Schedule 1 [2] removes the compulsory imposition, as a condition of
development consent to a community scheme or precinct scheme, or to
the subdivision effected by a neighbourhood plan, of a requirement
that the community, precinct or neighbourhood scheme be developed
in accordance with the terms of a development contract. The
imposition of the condition will be at the discretion of the council.
Even if the council chooses not to impose such a condition, or chooses
not to take any action for a breach of such a condition, the proprietors
of lots within the scheme could take proceedings for breach of the
development contract.
Schedule 1 [3] is intended to make it clear that the development of a
community scheme, precinct scheme or neighbourhood scheme may
take place anywhere in the State and is not restricted to circumstances
in which an environmental planning instrument requires development
consent for a subdivision.
Schedule 2 Amendments relating to public roads and
public reserves
Schedule 2 [1] amends Schedule 1 to the Principal Act to make it clear that a
public road or a public reserve may be dedicated on the registration of a
community, precinct or neighbourhood plan of subdivision, so that the
opportunity for effecting such a dedication is not limited to registration of the
original plan. The amendment would not enable a plan of subdivision to
dedicate association property as a public road or public reserve, unless it is
done under section 21 of the Principal Act. That section enables a
neighbourhood association to make such a dedication if it is a neighbourhood
association that is not part of a community scheme.
Schedule 2 [2] amends Schedule 11 to the Principal Act in order to deal with
the situation that arises if a lot in a community plan, precinct plan or
neighbourhood plan, or part of such a lot, having a unit entitlement, is
proposed to be dedicated as a public road or a public reserve. When the lot is
dedicated, it carries no unit entitlements, so that an adjustment of the unit
entitlements for the scheme becomes necessary. The proposed amendment
provides for the adjustment to be made in a way similar to that provided by
Schedule 8 to the Principal Act on the severance of a community
development lot from a community scheme or a precinct development lot
from a precinct scheme.
Explanatory note page 3
Schedule 3 Amendments relating to access ways
The Local Government Act 1993 has a definition of public place that
includes places such as public roads and public reserves. The proposed
amendments would adopt this definition.
Access within a community, precinct or neighbourhood scheme may be
provided either by a public road, by an open access way or by a private
access way. An open access way has many of the features of a public road,
while a private access way is part of the association property in the scheme
to which it relates. (Association property comprises community property,
precinct property or neighbourhood property and is the equivalent of the
common property in a strata scheme).
As access ways are created by inclusion in the management statement for the
scheme involved, it is possible for an association, by altering its management
statement, to close an access way or convert an open access way to a private
access way. It is proposed to require the consent of all associations using the
access way before such an alteration to a management statement may be
made.
An access way may at present be linked only to a public road, so that there is
no provision enabling an access way to be linked to any other public place
such as a park. It is proposed to enable an access way to be linked to any
public place.
Schedule 3 [l] proposes adoption of the definition of public place in the
Local Government Act 1993.
Items [2][6] of Schedule 3 deal with open access ways
Schedule 3 [2] and [3] amend section 41 of the Principal Act which at
present enables a part (but not all) of the land that is community property in a
community scheme to be set apart as an open access way connecting the land
and a public road. The proposed amendment would remove the present
limitation applying the section to part only of the land and would also enable
a means of open access to be provided in order to connect the land and any
public place.
Schedule 3 [4] amends section 42 of the Principal Act which at present
enables a part (but not all) of the land that is precinct property in a precinct
scheme to be set apart as an open access way connecting the land and a
public road. The proposed amendment would remove the present limitation
applying the section to part only of the land and would also enable an open
access way to be provided in order to connect any public place and:
(a) a part of the precinct parcel, or
(b) an open access way within the community parcel of which the precinct
parcel forms part.
Explanatory note page 4
Schedule 3 [5] amends section 43 of the Principal Act which at present
enables a part (but not all) of the land that is neighbourhood property in a
neighbourhood scheme to be set apart as a means of open access connecting
the land and a public road. The proposed amendment would remove the
present limitation that enables only part of the land to be set apart and would
also enable a means of open access to be provided in order to connect the
land and any public place.
The proposed amendment would also limit section 43 to a neighbourhood
scheme that is not part of a community scheme.
Schedule 3 [6] proposes to insert new sections 43A and 43B in the Principal
Act.
Section 43A would enable all or part of the land that is neighbourhood
property in a neighbourhood scheme that is part of a community
scheme to be set apart as a means of open access connecting any
public place and:
(a) part of the neighbourhood parcel, or
means of open access within the relevant community parcel.
Section 43B relates to the closure of an open access way that connects
any public place and land within a community parcel. The provision
would prohibit the closure of such an access way without the authority
of a unanimous resolution of each of the associations of which the
members are entitled to use the access way. (A unanimous resolution is
a resolution passed at a duly convened general meeting of an
association without a vote being cast against it.)
Items [7][10] of Schedule 3 deal with private access ways
Schedule 3 [7] and [8] amend section 44 of the Principal Act which at
present enables a part (but not all) of the land that is community property in a
community scheme and is not an open access way to be set apart as a private
access way connecting the land and a public road, or an open access way,
within the community parcel. The proposed amendment would remove the
present limitation applying the section to part only of the land and would also
enable a private access way to be provided to connect the land and any public
place.
Explanatory note page 5
Schedule 3 [9] amends section 45 of the Principal Act which at present
enables a part (but not all) of the land that is precinct property in a precinct
scheme and is not an open access way to be set apart as a private access way
connecting the land and a public road or an open access way within the
precinct parcel. The proposed amendment would remove the present
limitation applying the section to part only of the land and would also enable
a private access way to be provided to connect the land and a public place.
Schedule 3 [10] amends section 46 of the Principal Act which at present
enables a part (but not all) of the land that is neighbourhood property in a
neighbourhood scheme and is not an open access way to be set apart as a
private access way connecting the land and a public road or an open access
way within the neighbourhood parcel. The proposed amendment would
remove the present limitation applying the section to part only of the land and
would also enable a private access way to be provided to connect the land
and a public place.
Schedule 4 Amendments relating to statutory easements
Schedule 4 amends section 36 of the Principal Act.
· Schedule 4 [1] amends the definition of statutory easement in section
36 (1). This is an easement conferring rights to enter land through
which runs a service line such as a pipe or cable supplying water, gas,
electricity, sewerage or drainage. Because it may be difficult to
properly maintain a service line close to a boundary without entering
land other than that subject to the easement, the proposed amendment
would extend the easement to permit any necessary entry on adjoining
land in order to provide or maintain a service line.
· Schedule 4 [2] requires the Registrar-General to be notified when a
proposed service line is completed.
Schedule 4 [3] requires the registration of a diagram that shows the
actual location of a service line that is different from its proposed
location.
· Schedule 4 [4] provides that if a service line is installed after
registration of the management statement, the developer must, within I
month after the installation (rather than after "a reasonable time") give
a copy of the prescribed diagram for the service line to the relevant
association.
Explanatory note page 6
· Schedule 4 [5] adds to the implied covenants by the proprietor of the
land to which the statutory easement is appurtenant.
Schedule 4 [5] also provides for the making in the Register kept under
the Real Property Act 1900 of such entries relating to the statutory
easement as the Registrar-General thinks fit.
Schedule 5 Other amendments
Schedule 5 [1] amends the definition of public authority which at present
states only that the expression includes the council of a city, municipality or
shire. Because of changes made by the Local Government Act 1993, the
proposed amendment refers to a council by reference to that Act and extends
the definition to include a corporation prescribed by the regulations as a
public authority.
Schedule 5 [2][5] make some amendments by way of statute law revision.
Schedule 5 [6] validates certain actions taken before the commencement of
amendments made by the proposed Act.
Explanatory note page 7