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[1996] TASSC 164
plaintiff. Application granted: Court accepted applicants' submissions that creation of a new folio for the part of Lot 4 east of Summerleas Road would not constitute a subdivision contrary to s81(1) of the...
The Pastoors owned a lot created by a sealed plan that was split by a public road. They asked the Recorder of Titles to create a separate title (folio) for the small parcel on one side of the road. The Recorder refused saying council approval for subdivision was needed. The Supreme Court held the parcel was not a 'block' under the Local Government Act (because it is intersected by another land), so creating a separate folio was not a 'subdivision' under the Act. The Recorder's grounds for refusal failed and the Court granted the application to create the new folio (paras 14-17).
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The applicants, Kirsten Joan Pastoor and Len Gerald Pastoor, were the registered proprietors of Lot 4 created by sealed plan SP17850 (certificate of title volume 17850, folio 4). The sealed plan was approved by the local authority and took effect on 26 April 1982 (para 2). Summerleas Road ran through Lot 4 so that about one fifth of Lot 4 lay to the east of the road and the remainder lay to the west (para 3). The applicants sought the Recorder of Titles to create a separate folio of the Register for the portion of Lot 4 that lay east of Summerleas Road, by applying for the creation of a separate folio for Lot 1 on registered plan P113941 (para 3).
3 cited instruments linked from this judgment.
The Recorder of Titles refused the request and gave two letters of refusal. The first letter of 16 January 1995 stated refusal on the ground that CT 17850/4 is derived from a lot on a sealed plan and 'Council Approval will be required for future subdivision of this land' (para 6). A later undated letter referred to refusal to 'register the plans' and relied on the Local Government (Building and Miscellaneous Provisions) Act 1993, s90, and claimed 'Proposed severance of a Sealed Plan Lot is not in accordance with Section 90' (para 7). The applicants contended that no council approval was required because the proposal did not involve a 'subdivision' of land under the Act (para 9).
The applicants brought proceedings in the Supreme Court under s144 of the Land Titles Act 1980, which permits a person aggrieved by the Recorder's refusal to require the Recorder to state the grounds and to proceed by summons to require the Recorder to justify the refusal; the Court may make such order as it thinks fit (para 1). Underwood J heard the matter and accepted the applicants' submissions that creating a new folio for the part of Lot 4 east of Summerleas Road did not amount to a subdivision of a 'block' and therefore did not contravene the Local Government Act's subdivision rules. The Court granted the application (paras 11–17).
Two statutory provisions were central to the Court's reasoning: s33 of the Land Titles Act 1980 and s80 (definition provisions) together with the subdivision prohibition in the Local Government (Building and Miscellaneous Provisions) Act 1993.
Section 33(13) of the Land Titles Act 1980 gives the Recorder a discretionary power to 'rearrange parts of the Register by creating a new folio containing the whole or part of land in one or more existing folios' (para 11). That power plainly allowed the Recorder to create a folio for part of an existing folio.
Section 33(14)(a) constrains that power by providing the Recorder 'shall not create a new folio so as to permit the subdivision of land contrary to the provisions of Part 3' of the Local Government Act 1993 (para 12).
The critical question was whether issuing a folio for the part of Lot 4 east of the road would 'permit the subdivision of land' within the meaning of Part 3 of the Local Government Act. The Act defines 'subdivision' and 'subdivide' in s80(1), and defines a 'block' as 'a piece of land all in one piece of the same owner and not intersected by other land' (para 14). The Court accepted the applicants' submission that those definitions limit the statutory prohibition on subdivision to 'blocks of land', and because Lot 4 was intersected by Summerleas Road it was not a 'block' (para 14).
Therefore creating a new folio for the parcel east of the road did not divide the surface of a 'block of land' by creating estates or interests giving separate rights of occupation; accordingly the act was not a 'subdivision' under the Act. The Court also held that no amendment to the sealed plan SP17850 was required and that the covenant in the schedule of easements preventing 'further subdivide' must bear the same statutory meaning, so it did not prohibit the folio creation (paras 15–16). For those reasons, the Recorder's stated grounds for refusal were not sustained and the application was granted (para 17).
Before this decision the statutory framework comprised:
Land Titles Act 1980: establishes the Register, folios and the Recorder's powers to rearrange the Register (s33), and provides a remedy where the Recorder refuses to do an act by summons to the Supreme Court (s144) (paras 1, 4, 11).
Local Government (Building and Miscellaneous Provisions) Act 1993: governs subdivision approvals and defines key terms including 'block', 'lot' and 'subdivide' (paras 8, 14).
This case clarifies the interface between the Recorder's administrative power under the Torrens system to rearrange folios and the local government subdivision approval regime. The decision establishes that the statutory prohibition against subdivision in the Local Government Act must be read by reference to the Act's defined terms; where land in a sealed plan is intersected by other land such as a public road, it is not a 'block' and actions under the Land Titles Act to create new folios for parts of that lot do not fall within the Act's prohibition on subdivision of 'blocks' (paras 11–15).
Put simply: rearranging the Register to give a separate folio to a parcel of a lot that is intersected by a road is not 'subdivision' under the Local Government Act, and therefore does not require the council subdivision approvals that would be necessary for subdividing a 'block'.
The decision also affirms that covenants recorded on a plan take their operative meaning from the statute that gives the plan effect; the covenant prohibiting 'further subdivide' must bear the statutory meaning and thus did not preclude the folio creation (para 16).
Quotation (s144): The Court invoked s144 of the Land Titles Act (para 1). Plain English: If the Recorder refuses to do something he is empowered to do, an aggrieved person can demand written grounds and pursue the matter in the Supreme Court, which may make whatever order it thinks fit.
Quotation (s33(13)): 'The Recorder may... rearrange parts of the Register by creating a new folio containing the whole or part of land in one or more existing folios' (para 11). Plain English: The Recorder has a statutory power to split up existing title folios to create new folios for parts of the land recorded.
Quotation (s33(14)): The Recorder must not create a new folio so as to permit subdivision contrary to the Local Government Act (para 12). Plain English: That power is limited where creating a folio would effectively do something that the Local Government Act says is unlawful subdivision.
Quotation (s80 definitions): The Court reproduces s80(1) which defines 'block' as land 'not intersected by other land' and limits 'subdivide' to division of the surface of a block (para 14). Plain English: The Local Government Act's idea of subdivision is focused on splitting intact pieces of land into separate lots; if a lot is already split by, say, a public road, it is not an intact 'block', so the subdivision rules aimed at blocks do not apply.
Court's conclusion: The creation of the folio 'would not be a subdivision... would not be an amendment to a sealed plan... and would not be an amendment to the schedule of easements' (para 17). Plain English: The Court concluded the Recorder's reasons for refusing were legally incorrect and the Recorder must create the folio.
This decision speaks directly to situations with these features:
A registered lot in a sealed plan is intersected by other land (commonly a public road), so that the lot is not 'all in one piece' (para 14).
An owner seeks the Recorder to create a separate folio for a part of that lot that lies on one side of the intersecting land, without seeking to amend the sealed plan itself (paras 3, 15).
The Recorder refuses on the basis that council subdivision approval is required for 'severance' or 'subdivision' (paras 6–7).
Where those facts obtain, Pastoor indicates that the creation of a new folio under s33(13) will not, by itself, be a subdivision of a 'block' within the meaning of the Local Government Act and does not require Part 3 approvals, provided the land is in fact intersected and so not a 'block' (paras 14–17).
This judgment itself does not canvass later appellate treatment or subsequent decisions applying it. The judgment refers to one older case (Putz v Registrar of Titles [1928] VLR 348) regarding whether counsel could rely on other grounds, but it does not develop a broader chain of precedent (para 10). Practitioners should check subsequent Tasmanian and inter-jurisdictional authorities and any legislative changes that post-date this 1996 decision to confirm how courts and registrars currently apply the interplay between s33 powers and local government subdivision rules.
The decision resolves the specific issue before the Court, but several practical and legal questions remain for practitioners:
Public/private road distinction: The judgment treats the road as 'other land' that intersects Lot 4, but it does not explore whether the character of the intersecting land (public road, private right-of-way, easement) could affect whether the lot is a 'block' for subdivision purposes. The statutory definition refers to 'intersected by other land', but situations with rights-of-way or unformed roads may raise closer questions.
Creation of substantive interests: The decision turned on the creation of a folio under the Register; it assumes no new rights of occupation or estates are created beyond reflecting the existing physical partition by the road. Where the creation of a folio accompanies subsequent dealings that create new estates, that sequence of events may carry different legal consequences.
Interaction with covenants and easements: The Court held the covenant prohibiting 'further subdivide' must bear the Act's meaning. There may be scenarios where a covenant's wording, context, or historical circumstances could justify a broader construction than the statutory meaning; the judgment assumes adoption of statutory meaning because the plan 'took effect' under the relevant legislation (para 16).
Registrar practice and administrative consistency: The Recorder's initial letters used provisions and terminology that the Court found unclear or irrelevant (paras 6–9). How registries should formulate refusals and when they should require council certificates (s90) remains a practical compliance and procedural question.
Legislative change and local variations: The decision is grounded in the Tasmanian statutes as in force and the transitional regulations. Any amendments to the Local Government Act, the Land Titles Act, or the Registrar's practice rules since 1996 could alter the analytical frame.
For practitioners, this judgment is useful authority where a folio creation request concerns a part of a lot already intersected by other land. However, one should always check subsequent cases, Registrar practice directions, and any legislative amendments for current applicability.
KIRSTEN JOAN PASTOOR, LEN GERALD PASTOOR v RECORDER OF
Conveyancing - Land titles under the Torrens system - Legal proceedings generally - Summons to the Recorder of Titles to show cause - Approved plan of subdivision that has taken effect contained one piece of land intersected by other land into two parcels - Not a "block" of land within the statutory meaning of that word - Refusal to create separate folio for each parcel of land - Division of this piece of land into two parcels by issue of separate title not a subdivision. Land Titles Act 1980 (Tas), ss144, 33(13) and (14).
Local Government - Subdivision of land - What constitutes subdivision or opening of road - Subdivision - Other States or Territories - Tasmania - Title issued under Torrens system to a piece of land intersected by other land - Creation of two folios, one for each parcel of the intersected land is not a subdivision of land without compliance with the statutory approval process for the subdivision of land. Land Titles Act 1980 (Tas), s33(13) and (14). Local Government (Building and Miscellaneous Provisions) Act 1993, ss80 and 81.
Solicitors for applicants: Murdoch Clarke Cosgrove and Drake
1. The applicants seek an order that the Recorder of Titles create a separate folio of the Register for Lot 1 on plan number P113941. For the authority to make that order, the applicants rely on the Land Titles Act 1980, s144(1) and (2) which provides: "144 (1) Subject to subsection (6), if the Recorder (a) refuses to do an act which he is required or empowered to do under this or any other Act; or (b) gives a direction or makes an order upon his own motion or upon an application while exercising his powers under this or any other Act, a person who believes himself to be aggrieved by the refusal, direction, or order may require the Recorder to state in writing the grounds for his refusal, direction, or order notwithstanding that the Recorder has acted under a discretionary power.
(2) A person referred to in subsection (1) may proceed against the Recorder by summons in the Supreme Court requiring him to justify his refusal, direction, or order, and the Court may make such order as it thinks fit."
The Land 2. The applicants are the registered proprietors of 2.363 hectares of land near Kingston comprised in certificate of title volume 17850, folio 4. This land is also known as Lot 4 on Sealed Plan 17850. Lot 4 was one of six lots created by the subdivision plan. This subdivision plan was approved by the local authority in accordance with the provisions of the Local Government Act 1962, PtXVI, Div2, "Building Estates and Subdivisions". That Act, s463, contained a general prohibition against the subdivision of land other than in accordance with the relevant provisions of the Act. That Act, s464(21), provided (inter alia) that the sealed plan "takes effect when the Recorder of Titles signs a memorandum thereon that he has accepted the plan ...". The memorandum endorsed on SP17850 provides that it is effective from 26 April 1982.
3. Summerleas Road runs through the applicants' land so that approximately one fifth of the whole of Lot 4 lies on the eastern side of Summerleas Road and the balance on the western side. Why the local authority approved a subdivision plan which provided for a single allotment divided into two parcels by a public road, has not been explained. However, Lot 4 is divided in that way and, accordingly, the applicants asked the Recorder of Tittles to issue a separate title for that part of Lot 4 which lies to the east of Summerleas Road. Their application provides that the applicants "apply for the creation of a separate folio for Lot 1 on registered plan number P113941." The plan shows that part of the applicants' land that lies to the east of Summerleas Road.
4. The Land Titles Act 1980, s33, makes provision for the Register and certificates of title. Section 33(4) defines the Register primarily as comprising the folios of the Register and excludes from the Register plans other than stratum plans. Accordingly, for the purposes of this application, the Register comprises only the folios issued with respect to each of the six pieces of land after SP17850 "took effect", one of which relates to the applicants' land, Lot 4. Section 33(5)(a) provides: "(5) Each folio of the Register shall (a) be the record of the title to one or more parcels of land, ...;"
5. The applicants' case is that, at the moment, their Certificate of Title is a record of the title to two parcels of land and they want the Recorder to create a new folio or folios so that there will be a separate title for each parcel. The applicants claim that there is no lawful impediment to the Recorder doing as requested. However, the Recorder of Titles has refused the applicants' application and these proceedings are brought for an order that he grant it and create the new folio or folios.
The Recorder of Titles' Response to the Application 6. By letter dated 16 January 1995, the Recorder of Titles gave the applicants notice "in accordance with Section 50(8) of the Land Titles Act 1980 of [his] refusal to register the dealing" because: "CT 17850/4 is derived from a Lot on Sealed Plan 17850. Council Approval will be required for future subdivision of this land."
7. Having regard to the definition of "dealing" in the Act, s3(1), the application may not have been for the registration of a dealing at all, but nothing turns on this. Shortly after sending notice of his refusal, the Recorder of Titles wrote again to the solicitors for the applicants. This letter is undated. It gave notice "in accordance with Section 50(8) and 143F of the Land Titles Act, 1980" that the Recorder had refused to "register the plans" [sic] for the reasons set out in the schedule to the letter. The Recorder of Titles had not been asked to register any plans and the relevance of s143F and s143D to which the former section relates is unclear. The application to the Recorder was "for the creation of a separate Folio for Lot 1 on Registered Plan No P113941." At all events, the reason for the refusal set out in the schedule to the second letter is: "Proposed severance of a Sealed Plan Lot is not in accordance with Section 90 of the Local Government (Building and Miscellaneous Provisions) Act 1993."
8. Since 17 January 1994, the subdivision of land has been governed by the provisions of the Local Government (Building and Miscellaneous Provisions) Act 1993 ("the Act") in place of the Local Government Act 1962, PtXVI, Div2. By virtue of the Local Government (Savings and Transitional) Amendment Regulations No 42 of 1994, reg5, SP17850 "is a plan of subdivision approved under Div2 of Pt3 of the Local Government (Building and Miscellaneous Provisions) Act 1993." The Act, s90, referred to in the second letter of the Recorder of Titles provides: "90 If an instrument is lodged for registration under the Land Titles Act 1980 and the Recorder of Titles is not sure whether a final plan should first have been lodged to authorize the dealing to be effected by the instrument, the Recorder may require the person lodging the instrument to produce a certificate of the council that the dealing is not in contravention of this Division."
9. Why the Recorder referred to this section as a ground for refusing the application is unclear, as he had not required the applicants to produce a certificate of the kind referred to in the Act, s90. By letter dated 18 January 1995, the solicitors for the applicants wrote to the Recorder of Titles, submitting that council approval was not necessary as the proposal did not involve a subdivision of land. Reasons for this view were set out in the letter. The only response was: "As you are aware, the above dealing was refused registration on 16/1/95 and returned to your firm.
10. Accordingly, this application was brought. Upon the hearing of the application, Mr Norris, who appeared for the Recorder of Titles, did not seek to justify the rejection of the application on the grounds expressed in either of the letters of refusal written by the Recorder of Titles. Whether he was entitled to do this was not questioned at the hearing. Cf Putz v Registrar of Titles [1928] VicLawRp 52; [1928] VLR 348.
The Subdivision of Land 11. The Land Titles Act 1980, s33(13) provides: "(13) The recorder may at any time, if he thinks fit, rearrange parts of the Register by creating a new folio containing the whole or part of land in one or more existing folios or in such other manner as may appear to him to be convenient."
12. Mr Norris relied upon s33(14) to justify the Registrar's refusal. It provides: "(14) In exercising his powers under subsection (13), the Recorder (a) shall not create a new folio so as to permit the subdivision of land contrary to the provisions of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993; and ...".
13. On behalf of the Recorder of Titles, Mr Norris submitted that the application, if granted, would: 1 be a subdivision of land in breach of the Local Government (Building and Miscellaneous Provisions) Act 1993, s81(1);
2 be an amendment to a sealed plan otherwise than in accordance with the Act, s103; and/or
3 be an amendment to the schedule of easements attached to the applicants' certificate of title.
14. I accept as correct, the submission made by Mr Holt on behalf of the applicants, that a grant of the application would not be a subdivision of land within the meaning of the Act. The Act, s80(1) relevantly defines subdivision to mean "the act of subdividing" and, again relevantly, subdivide to mean "divide the surface of a block of land by creating estates or interests giving separate rights of occupation otherwise than by ...". Thus, it can be seen that the prohibition against the subdivision of land otherwise than in accordance with the provisions of the Act is confined to blocks of land. Section 80(1) defines a block as meaning "a piece of land all in one piece of the same owner and not intersected by other land". As the applicants' land is intersected by Summerleas Road, it is not a block of land and it follows that the creation of a new folio in respect of the applicants' land to the east of Summerleas Road will not be the subdivision of a "block of land".
15. No alteration to SP17850 is required. A new folio for that part of Lot 4 that lies to the east of Summerleas Road can be created in accordance with "the effect" that SP17850 took upon its acceptance by the Recorder in 1982. The creation of a new folio will not create a new lot, for the Act, s80(1) defines a lot to mean "a block of land created by subdivision of a larger block of which it was part." Although the land to the east of Summerleas Road is itself a block, it was not, by reason of the definition of that word, created by the subdivision of a larger block of which it was part.
16. The schedule of easements to the applicants' land (Lot 4) contains a covenant that runs with the land for the benefit of the owners for the time being of all the other land comprised in SP17850 (inter alia) "not to further subdivide the said Lot 4." In my view the word "subdivide" used in the schedule of easements, must bear the same meaning as it does under the Act, s80(1). By force of the Local Government (Savings and Transitional Amendment) Regulations No 42 of 1994, reg5, the covenant against further subdivision was created by a plan which took effect by virtue of the Act, s94. Accordingly, it is inconceivable that any meaning could be ascribed to the word "subdivide" in the covenant other than that which is given that word by the legislation that gives the covenant force and effect.
Conclusion 17. Accordingly, I accept the submissions of Mr Holt that the creation of a new folio for that part of Lot 4 that lies to the east of Summerleas Road would not be a subdivision of land in breach of the Act, s81(1), would not be an amendment to a sealed plan other than in accordance with the Act, s103 and would not be an amendment to the schedule of easements that attaches to the applicants' land. It follows that the bases relied upon by the Recorder, both in writing and in argument before me to justify his refusal of the applicants' application, are not made out. The application is granted. I will hear counsel before making final orders.
Kirsten Joan Pastoor, Len Gerald Pastoor
Recorder of Titles [1996] TASSC 164
Application granted: Court accepted applicants' submissions that creation of a new folio for the part of Lot 4 east of Summerleas Road would not constitute a subdivision contrary to s81(1) of the Local Government Act 1993, would not unlawfully amend the sealed plan, nor amend the schedule of easements; Recorder's stated grounds for refusal were not made out (para 17). Court to hear counsel before making final orders (end of decision).