New South Wales Consolidated Acts

STRATA SCHEMES (FREEHOLD DEVELOPMENT) ACT 1973 - SECT 5

5 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
"accredited certifier", in relation to a strata certificate, means a person who is accredited under section 37E in relation to those certificates.
"administrative fund", in relation to a body corporate, means the fund established by that body corporate under section 66 of the Strata Schemes Management Act 1996 .
"aggregate unit entitlement", in relation to lots the subject of a strata scheme, means the sum of the unit entitlements of those lots.
"body corporate" means an owners corporation constituted under section 11 of the Strata Schemes Management Act 1996 .
"building", in relation to a strata scheme or a proposed strata scheme, means a building containing a lot or proposed lot or part of a lot or of a proposed lot the subject of that scheme or proposed scheme.
"by-laws", in relation to a strata scheme, means the by-laws in force in respect of that strata scheme.
"certificate of compliance", in relation to a water supply authority, means a certificate of compliance issued by the water supply authority in accordance with the Act under which the water supply authority is constituted.
"common property" means so much of a parcel as from time to time is not comprised in any lot.
"company nominee", in relation to a corporation, means the individual, if any, for the time being authorised under section 80A (1) by the corporation.
"consent authority" has the same meaning as it has in the Environmental Planning and Assessment Act 1979 .
"council", in relation to a body corporate, means the executive committee of that body corporate appointed in accordance with the Strata Schemes Management Act 1996 .
"current plan" means a current plan as defined in section 7 (1) of the Conveyancing Act 1919 , which is registered in the office of the Registrar-General, but does not include a strata plan, a strata plan of subdivision or a strata plan of consolidation.
"developer", in relation to the strata scheme constituted upon registration of the strata plan proposed under a development scheme, means the person who, for the time being, is:

(a) the original proprietor, or

(b) a person, other than the original proprietor, who is the proprietor of a development lot within the strata plan.

"development" has the same meaning as it has in the Environmental Planning and Assessment Act 1979 .
"development application" has the same meaning as it has in the Environmental Planning and Assessment Act 1979 .
"development consent" has the same meaning as it has in the Environmental Planning and Assessment Act 1979 .
"development lot" means a lot in a strata plan that is identified by a strata development contract as a lot that is to be the subject of a strata plan of subdivision under the development scheme.
"development scheme" means the scheme of development provided for, and represented by, a strata development contract.
"Director-General" means the Director-General of the Department of Fair Trading.
"enrolled mortgagee", in relation to a lot the subject of a strata scheme, means a person notice of whose mortgage has been given to the body corporate for that strata scheme and whose name has been entered on the strata roll for that strata scheme as a mortgagee of that lot, but does not include such a person:

(a) during any period during which his rights as mortgagee, under that mortgage are, by reason of a sub-mortgage, suspended, or

(b) whose rights, as mortgagee, under that mortgage have, by reason of any other instrument, terminated,

if particulars of that sub-mortgage or other instrument have been entered on the strata roll for that strata scheme.
"floor area", in relation to a cubic space, means the area occupied on a horizontal plane by the base of that cubic space.
"floor" includes a stairway or ramp.
"floor plan" means a plan, consisting of one or more sheets, which:

(a) defines by lines (in paragraph (c) of this definition referred to as "base lines") the base of each vertical boundary of every cubic space forming the whole of a proposed lot, or the whole of any part of a proposed lot, to which the plan relates,

(b) shows:

(i) the floor area of any such cubic space, and

(ii) where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot, and

(c) where proposed lots or parts thereof to which the plan relates are superimposed on other proposed lots or parts thereof to which the plan relates:

(i) shows the base lines in respect of the proposed lots or parts thereof that are so superimposed separately from those in respect of the other proposed lots or parts thereof upon which they are superimposed, and

(ii) specifies, by reference to floors or levels, the order in which that superimposition occurs.

"initial period", in relation to a body corporate, means the period commencing on the day on which that body corporate is constituted and ending on the day on which there are proprietors of lots the subject of the strata scheme concerned (other than the original proprietor) the sum of whose unit entitlements is at least one-third of the aggregate unit entitlement.
"local council", in relation to land, means the council of the area under the Local Government Act 1993 in which the land is situated.
"location plan" means a plan, consisting of one or more sheets, which relates to land the subject of a proposed strata scheme, and:

(a) if the scheme does not relate to a proposed stratum parcel, which delineates the perimeter of the land and, in relation to that perimeter, delineates the location:

(i) of any building erected on that land, and

(ii) of any proposed lots or part of proposed lots not within any such building, or

(b) if the scheme relates to a proposed stratum parcel, which delineates the perimeter of the site of the building, being the building of which the proposed stratum parcel forms part, and, in relation to that perimeter, delineates the location:

(i) of the building, and

(ii) of the proposed stratum parcel,

and, in relation to the perimeter of the proposed stratum parcel, delineates the location:

(iii) of the part of the building which will be the subject of the proposed strata scheme, and

(iv) of any proposed lots or part of proposed lots not within the building,

and which shows such other particulars as may be required by the regulations.

"lot" means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot.
"mortgage" means a charge, other than a statutory interest or a covenant charge, on a lot for securing money or money’s worth.
"non-strata land" means land that is not subject to a strata scheme.
"notice of resumption" means a notice, notification or other instrument publication of which effects a vesting of the land described therein in a resuming authority by way of resumption.
"occupier", in relation to a lot, means any person in lawful occupation of that lot.
"original proprietor", in relation to a strata scheme, means the person by whom the parcel the subject of that scheme was held in fee simple at the time of registration of the strata plan to which the scheme relates.
"parcel" means:

(a) except as provided in paragraph (b), the land from time to time comprising the lots and common property the subject of a strata scheme, and

(b) in relation to a plan lodged for registration as a strata plan, the land comprised in that plan.

"positive covenant" means a positive covenant imposed on land under section 88D or 88E of the Conveyancing Act 1919 .
"proprietor", in relation to a lot, means:

(a) except as provided in paragraph (b), a person for the time being recorded in the Register as entitled to an estate in fee simple in that lot, or

(b) a person whose name has been entered on the strata roll as a proprietor pursuant to section 98 of the Strata Schemes Management Act 1996 .

"public place" means land that is dedicated as a public reserve or set aside as a drainage reserve, under section 49 of the Local Government Act 1993 , or land that is a public road (within the meaning of the Roads Act 1993 ).
"registered" means registered in the office of the Registrar-General in accordance with this Act.
"registered land surveyor" has the same meaning as it has in the Surveying Act 2002 .
"registered mortgagee" means a mortgagee registered as such under the Real Property Act 1900 .
"regulations" means regulations made under this Act.
"relevant development consent" -see section 37B.
"resumption" means the compulsory acquisition of land under the provisions of any Act or Act of the Parliament of the Commonwealth authorising compulsory acquisition of land.
"schedule of unit entitlement", in relation to a strata scheme, means:

(a) except as provided in paragraph (b) and (c), the schedule recorded as the schedule of unit entitlement in the folio of the Register comprising the common property the subject of that strata scheme, or

(b) where a plan referred to in section 30 (3) relating to the parcel the subject of that strata scheme has been registered by the Registrar-General and the resumption of the land referred to in that plan has taken effect:

(i) if that plan is a strata plan of subdivision-the schedule of unit entitlement which accompanied that plan when it was registered, or

(ii) if that plan is a current plan-the schedule of unit entitlement, if any, which the Supreme Court, on making an order under section 32 or, pursuant to an application made under section 32 (7), under section 50, ordered to be substituted for a previous schedule of unit entitlement, or

(c) if a revised schedule of unit entitlement has been recorded under section 28Q (5) as the schedule of unit entitlement in substitution for a schedule of unit entitlement referred to in paragraph (a) or (b), the schedule so recorded.

"sinking fund", in relation to a body corporate, means the fund established by that body corporate under section 69 of the Strata Schemes Management Act 1996 .
"special resolution" has the same meaning as it has in the Strata Schemes Management Act 1996 .
"statutory interest" means a charge or other proprietary interest, created by this or any other Act or by any Act of the Parliament of the Commonwealth, affecting a lot or common property and enforceable against a proprietor for the time being or the body corporate, whether or not it has been recorded in the Register.
"strata certificate" means a certificate issued under Division 4 of Part 2 that authorises the registration of a strata plan, strata plan of subdivision or notice of conversion.
"strata development contract" means a strata development contract, as in force for the time being, registered under Division 2A of Part 2.
"strata roll", in relation to a strata scheme or a strata scheme which has been terminated, means the roll referred to in section 96 of the Strata Schemes Management Act 1996 which relates to that scheme.
"strata scheme" means:

(a) the manner of division under this Act, from time to time, of a parcel into lots or into lots and common property and the manner of the allocation under this Act, from time to time, of unit entitlements among the lots, and

(b) the rights and obligations, between themselves, of proprietors, other persons having proprietary interests in or occupying the lots and the body corporate, as conferred or imposed by this Act or by anything done under the authority of this Act and as in force from time to time.

"stratum parcel" means a parcel created by a subdivision permitted by section 7 (2A).
"structural cubic space" means:

(a) cubic space occupied by a vertical structural member, not being a wall, of a building,

(b) any pipes, wires, cables or ducts that are not for the exclusive enjoyment of one lot and:

(i) are in a building in relation to which a plan for registration as a strata plan was lodged with the Registrar-General before the day appointed and notified under section 2 (3) of the Strata Titles (Development Schemes) Amendment Act 1985 , or

(ii) in any other case-are in a building or in a part of a parcel that is not a building,

(c) any cubic space enclosed by a structure enclosing any such pipes, wires, cables or ducts.

"Supreme Court" means the Supreme Court of New South Wales.
"Tribunal" means the Consumer, Trader and Tenancy Tribunal established by the Consumer, Trader and Tenancy Tribunal Act 2001 .
"unanimous resolution" means a resolution which is passed at a duly convened general meeting of a body corporate and against which no vote is cast.
"unit entitlement", in relation to a lot, means the unit entitlement of that lot shown on the schedule of unit entitlement.
"wall" includes a door, window or other structure dividing a lot from common property or from another lot.
"water supply authority" means:

(a) the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000 , or

(b) a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993 .

(1A) For the purposes of this Act, land is contiguous to other land even if it is divided by, or separated from the other land by, a natural feature (such as a watercourse), a railway, a road, a public reserve or a drainage reserve.

(2) The boundaries of any cubic space referred to in paragraph (a) of the definition of "floor plan" in subsection (1):

(a) except as provided in paragraph (b):

(i) are, in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition-the inner surface of that wall, and

(ii) are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space-the upper surface of that floor and the under surface of that ceiling, or

(b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).

(3) A reference in this Act to cubic space includes a reference to space contained in any three-dimensional geometric figure which is not a cube.

(4) The fact that any boundary is defined in a plan in terms of or by reference to:

(a) a wall that is not vertical, or

(b) a floor or ceiling that is not horizontal,

does not prevent that plan from being a floor plan.

(5) A reference in this Act:

(a) to a strata plan, a strata plan of subdivision, a strata plan of consolidation or a building alteration plan is a reference to a plan registered as such, or

(b) to a notice of conversion is a reference to a notice registered as such,

together with any endorsements required to be made on or any plans and documents required to accompany the plan or notice so registered before it may be registered.

(7) A reference in this Act to a subdivision of a lot or common property is a reference to the alteration of the boundaries of:

(a) one or more lots so as to create only two or more different lots,

(b) one or more lots so as to create one or more different lots and common property,

(c) one or more lots and common property that are not part of a community scheme so as to create one or more different lots or one or more different lots and common property, or

(d) common property that is not part of a community scheme so as to create one or more lots,

but does not include a reference to the consolidation of two or more lots into one lot or the conversion of one or more lots into common property.

(8) Except in so far as the context or subject-matter otherwise indicates or requires, it is a sufficient compliance with any provision of this Act requiring an instrument to be accompanied by another instrument if that other instrument is endorsed on that firstmentioned instrument.

(9) Where, in any provision of this Act, reference is made to any person, body, matter or thing (including land) and that provision has effect in relation to a strata scheme, a reference in that provision to any other person, body, matter or thing (including land) is a reference to that other person, body, matter or thing (including land) in connection with that strata scheme.

(10) In this section:
"community scheme" means a community scheme under the Community Land Development Act 1989 .