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STRATA TITLES (STAGED DEVELOPMENT) AMENDMENT
BILL 1992*
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The Strata Titles (Leasehold Staged Development) Amendment Bill 1992 is cognate
with this Bill.
The Strata Titles Act 1973 already contains rather restrictive provisions allowing the
development by stages of part or parts of the land subject to a strata scheme. The object
of this Bill is to amend the 1973 Act so as:
(a) to introduce a more flexible legislative scheme for the development by stages
of land (called "development lots") reserved under a strata scheme for future
development and subdivision; and
(b) to make other unrelated changes, the more important of which will allow:
· the creation of strata schemes for land that is not strictly contiguous;
and
· the termination of strata schemes by the Registrar-General in limited
circumstances without prior recourse to the Supreme Court.
The proposed Act also makes consequential and other minor amendments to the
Environmental Planning and Assessment Act 1979 and the Land and Environment Court
Act 1979.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to
be proclaimed.
Clause 3 gives effect to the Schedule of amendments to the 1973 Act.
* Amended in committee--see table at end of volume.
SCHEDULE 1--AMENDMENT OF STRATA TITLES ACT 1973
PART 1--AMENDMENTS RELATING TO STAGED DEVELOPMENT
Definitions
Schedule 1 (1) amends section 5 (Definitions) because the instrument describing the
development that is permitted to be carried out within a development lot will be called a
strata development contract under the proposed scheme. Similar instruments are
presently called "development statements". The changes are aimed at avoiding
confusion with the kinds of instruments referred to in the Community Land
Development Act 1989.
Strata plan registration
Schedule 1 (2) amends section 8 (Registration of strata plans) which lists the
requirements that presently must be met by strata plans.
Schedule 1 (2) (a) removes the requirement that a development lot be illustrated on a
location plan.
Schedule 1 (2) (b) requires the initial schedule of unit entitlement for a strata plan
that includes a development lot to show the unit entitlement of each development lot
and of the residue of the parcel apportioned in accordance with their relative land
values. The unit entitlement of each of the developed lots must also be shown in the
initial schedule as a proportion (calculated on a market value basis) of the unit
entitlement of that residue.
Schedule 1 (2) (c) and (d) make amendments consequential on the changes in
terminology and numbering of provisions in Division 2A of Part 2.
Subdivision after completion of a stage of development
Schedule 1 (3) substitutes section 8A (Subdivision of development lot) so as to
restate, with appropriate modifications, the requirements for registration of a strata plan
of subdivision of a development lot after development permitted by the strata
development contract has been carried out. The unit entitlement of each of the new lots
into which the development lot will be divided must be shown in a schedule of unit
entitlement as a proportion (calculated on a market value basis) of the unit entitlement
of the development lot.
Consequential amendments
Schedule 1 (4) amends section 13 (Conversion of lots into common property) to
remove a reference to a repealed provision.
Schedule 1 (5) amends section 28 (Effect of dealings under this Division) to make
it clear that the restrictions in that section do not prevent instruments executed in
accordance with the proposed amendments from being registered under the 1973 Act.
Schedule 1 (6) substitutes Division 2A of Part 2 with a new Division 2A (containing
proposed sections 28A28QA). Of the proposed sections:
Section 28A (Explanation of staged development) describes in general terms the
concept of staged development. As mentioned above, staged development consists of:
· the progressive development of reserve or development lots in a strata scheme
(which may result in the construction of additional buildings and the carrying
out of works such as landscaping); and
· the subdivision of those lots after that development has been carried out
(which will create titles for each of the new lots, allowing them to be sold,
leased or mortgaged separately); and
· the allocation of unit entitlements for the new lots. (Unit entitlements
determine the proportions in which lot owners, or proprietors, will be required
to contribute to maintenance of the building and other common property.)
Section 28B (Obligations of consent authorities) forbids a consent authority
from granting development consent for a subdivision under the 1973 Act that would
create a lot reserved for development and for the subsequent subdivision under that
Act of that lot unless the lot is identified as a development lot and the consent
authority is supplied with a proposed strata development contract describing the
intended development.
Section 28C (Form and content of strata development contract) sets out the
requirements for strata development contracts. Such a contract must separately
describe any "warranted development" (which the developer may be compelled to
carry out) and all "authorised proposals" (which the developer may carry out but
cannot, merely because of the contract, be forced to carry out).
A strata development contract must include a concept plan illustrating the
buildings and works that will result from the proposed development.
Section 28D (Concept plan) sets out the requirements for concept plans and is
aimed at ensuring that there will be an up-to-date concept plan filed at the Land
Titles Office.
Section 28E (Variation of liability for common property expenses) allows a
strata development contract to apportion the liability for common property expenses
between the developer and other lot proprietors differently from how they would be
apportioned on a unit entitlement basis.
Section 28F (Signing of strata development contract and amendments) lists the
persons who will be required to sign a strata development contract (and any
amendment of it) and allows the Registrar-General to refuse to register such a
contract or amendment until the consent of other persons has been obtained.
Section 28G (Registration of strata development contract and amendments)
provides for the registration of strata development contracts by the Registrar-General
and allows registration to be refused until the certificate of title for the body
corporate and the common property (if any) has been produced.
Section 28H (Notice of strata development contract and amendments) requires
the Registrar-General to record in the folio of the Real Property Act Register relating
to the body corporate and the common property (if any) of a strata scheme particulars
about any strata development contract affecting the strata scheme.
Section 28J (Amendment of strata development contract) sets out requirements
for the amendment of a strata development contract similar to those for amendment
of a development contract under the Community Land Management Act 1989.
Section 28K (Approval of amendments by Land and Environment Court)
allows an amendment of a strata development contract to be made with the approval
of the Land and Environment Court, instead of being supported by a resolution of the
body corporate of the strata scheme concerned.
Section 28L (Use of common property and development lot by developer)
authorises the developer to make such use of common property and the development
lot as may be necessary to carry out all of the warranted development and authorised
proposals contained in a strata development contract. That right must be exercised so
as not to cause unreasonable inconvenience to the occupier of any lot in the strata
scheme concerned.
Section 28M (Adding land to a parcel subject. to a strata development
contract) provides for the addition of land to a parcel containing a development lot
by registration of a strata plan of subdivision. Land may be added so as to become
common property, a further development lot or an addition to a current development
lot, or any combination of them.
Section 28N (Right to complete permitted development) confers on a developer
a sufficient vote to make a body corporate decision about a "development concern"
even though the decision might otherwise need to be supported by a special or
unanimous resolution.
Section 28O (What are "development concerns"?) lists various matters that are,
or are not, development concerns. In general terms, carrying out any warranted
development or authorised proposal contained in a strata development contract is
such a concern, but the subdivision of common property already created and any
amendment of the contract itself are not.
Section 28P (Meetings of body corporate relating to development concerns)
requires motions relating to development Concerns to be dealt with at body corporate
meetings separately from other kinds of motions.
Section 28Q (Conclusion of development scheme) sets out the various
circumstances in which a development scheme established by a strata development
contract is concluded. Each strata development contract that does not predict a time
for conclusion of the development scheme will be taken to predict the tenth
anniversary of its registration as the the for its conclusion.
Section 28QA (Order for extension or conclusion of development scheme)
allows the Land and Environment Court to alter the time at which a strata
development scheme would otherwise be concluded.
Schedule 1 (7)(9), (11) and (13)(17) amend sections 32, 37, 40, 42, 50, 51, 53, 66
and 68, respectively, to change references to development statements to references to
strata development contracts.
Schedule 1 (10) amends section 41 (Registration of plans and notices) to omit
requirements relating to the registration of development statements and amendments to
them. (Those kinds of requirements for strata development contracts are contained in the
proposed Division 2A.)
Schedule 1 (12) and (19) omit unnecessary cross-references from sections 43 and
105.
Schedule 1 (18) updates a cross-reference in section 80 (Duties of proprietors and
occupiers of lots).
Schedule 1 (21) extends the cross-reference in the heading to Schedule 1A
(Requirements for strata plans) because surveyors' certificates referred to in proposed
new section 8A will certify compliance with the requirements set out in that schedule.
Orders for the reallocation of unit entitlements
Schedule 1 (20) substitutes section 119:
· to expand a Strata Titles Board's current power to order an adjustment of unit
entitlements so as to include cases in which there has been a change in the uses
to which the parcel may be put; and
· to allow applications for such orders to be made by rating and taxing authorities
(such as local councils) whose rates or taxes are related to the value of land.
Covenants implied in strata development contracts
Schedule 1 (22) inserts proposed Schedule 1BA which sets out covenants implied in
strata development contracts. Among the more important covenants are those:
· that require the standard of materials, the heights of buildings and the density of
development in all development carried out under such a contract not to be
inferior or substantially different from those of completed buildings forming part
of the parcel; and
· that require shelter and subjacent and lateral support, consistent with proper
engineering and building practices, and insurance to be provided where vertical
staged development is carried out.
Transitional provisions
Schedule 1 (23) inserts proposed Part 3 into Schedule 4 (Transitional and savings
provisions).
Any development scheme provided by a development statement certified by a
consent authority or lodged for registration before the commencement of Part 1 of
Schedule 1 to the amending Act will be subject to the provisions of the 1973 Act as in
force immediately before that commencement.
PART 2--OTHER AMENDMENTS
Extension of provisions to additional encroachments
Schedule 1 (24) amends section 6 (Construction of Act) which extends certain
provisions relating to lots and common property to encroachments shown on proposed
strata plans so that those provisions will also apply to encroachments shown on
proposed strata plans of subdivision.
Contiguous land
Schedule 1 (25) amends section 7 (Subdivision) to allow land that is divided by, or
separated by, a natural feature (such as a watercourse), railway, public road, public
reserve or drainage reserve to be the subject of a strata scheme.
Requirements for development consent to strata subdivisions
Schedule 1 (26) amends section 36 (Other Acts not to apply to subdivisions under
Division 1) to make it clear that the section does not prevent development consent to a
subdivision under the 1973 Act from being required under the Environmental Planning
and Assessment Act 1979.
Termination of strata schemes
Schedule 1 (27) inserts proposed section 51A (Termination of strata scheme by
Registrar-General) to empower the RegistrarGeneral to terminate strata schemes in
limited circumstances. A scheme that includes a development lot cannot be so
terminated and an application for termination must be signed by all proprietors of lots
and each registered mortgagee, chargee, covenant chargee and lessee of a lot, except
where the Registrar-General agrees otherwise.
SCHEDULE 2--AMENDMENT OF OTHER ACTS
Environmental Planning and Assessment Act 1979
Section 99 (Lapsing of consent) is amended to substitute a reference to a
development statement with a reference to a strata development contract.
Land and Environment Court Act 1979
Section 17 (Class 1--environmental planning and protection appeals) is amended
to remove from that class of appeals applications for dispensing with certain consents or
· in the case of the 1973 Act, the need for such a consent is abolished by
amendments in the proposed Act; and
· in the case of the 1986 and 1989 Acts, such a consent or approval does not
necessarily relate to environmental planning or protection.
Section 18 (which currently confers "Class 2" jurisdiction relating to local
government appeals and applications) is amended to confer jurisdiction on the Court
allowing it to approve amendments to strata development contracts (as an alternative to
approval of such an amendment by the body corporate) and to make orders relating to
the conclusion of development schemes. The opportunity is taken to add other
appropriate proceedings arising under the 1986 and 1989 Acts to this class of the
court's jurisdiction.
Section 20 is amended to simplify and update provisions conferring "Class 4"
jurisdiction on the Court relating to the enforcement of strata development contracts and
other development contracts under the 1986 Act and the Community Land Management
Act 1989.
Section 71 is replaced so as to make it clear that the Supreme Court has only an
appellate jurisdiction concerning the enforcement of strata development contracts.