Civil Law (Property) Regulation 2020

The Regulation introduces or gives content to several disclosure‑specific concepts. A unit subsidiary that adjoins the unit is defined by example as a balcony or courtyard, but the term is not exhaustively defined; it could extend to any structural or unallocated space attached to the unit, such as a garden terrace, a roof deck or a storage enclosure. The discretion to describe the “detail (including type and location)” means that a bare reference such as “balcony” may be insufficient if location is not specified (e.g., north‑facing balcony on level 2). The concept of development approval is defined by cross‑reference to the Planning Act 2023 dictionary, so its meaning shifts with planning law changes. The Regulation requires separate disclosure pathways depending on whether the building in the units plan is authorised by a development approval, not authorised, or whether a development application has been made but not yet decided. Each pathway imposes different information and, in the “not authorised” case, an undertaking to notify the buyer if a development application is subsequently made. A development application is defined under section 166(1) of the Planning Act 2023; it includes any formal application for development approval under that Act. For utility services, the key concepts are individually metered for cold water supply and facilities provided for charging electric vehicles. The Regulation does not define what constitutes “facilities” - this could range from a dedicated EV charging station to a standard power point in a car space - and does not require disclosure of metering for hot water, gas or electricity, only cold water. The Regulation also uses the term units plan, which refers to the strata‑title scheme under the Unit Titles Act 2001; the disclosure obligations attach to any sale of a unit within such a plan. Finally, the Regulation distinguishes between disclosure required before contract for sale (s 1B) and disclosure for development approval and utility services which both fall under section 260(1)(m). The practical difference is that the unit subsidiary detail must be given before exchange, whereas the development and utility information is part of the disclosure statement that must be given to a buyer before a contract is made (s 260(1) of the Act). Understanding these distinctions is critical for conveyancers who must ensure that the content and timing of each disclosure item comply with the Act.

The Regulation directly affects sellers of units in ACT units plans, which includes developers selling new units, individual owners selling existing units, and body corporate managers or agents who prepare disclosure statements on behalf of sellers. It also affects buyers, who receive the disclosure as a basis for making an informed decision. Conveyancers and solicitors acting for either side must ensure the prescribed information is correctly incorporated into standard disclosure packs. Real estate agents who facilitate the sale process often have a practical role in assembling the disclosure documents, even if the legal duty rests with the seller. Developers are particularly affected because the development approval disclosure (s 2) is most relevant to newly constructed units and buildings still under planning control. The Regulation imposes an ongoing obligation on a seller who discloses that a building is not authorised by a development approval: the seller must give an undertaking to notify the buyer if a development application is made. That undertaking can remain binding even after contract exchange, potentially up to settlement. This impacts developers who may later decide to lodge a retrospective approval application to regularise unauthorised structures. Utility service providers are indirectly affected because they must provide accurate metering information to developers so that the disclosure can be compiled. The ACT Planning Authority and Access Canberra are relevant because buyers are directed to seek further development approval information from public sources, and because the Regulation references planning legislation as updated over time. Lenders and insurers may also be affected because the disclosure statement supports valuation and risk assessment; an incomplete disclosure can lead to financing delays or title insurance claims. The Regulation affects any practitioner advising on a unit sale in the ACT; failure to include any of the prescribed items could expose the seller to liability under the Act or at general law for misrepresentation or breach of statutory duty. The compliance burden is concentrated on the party compiling the disclosure, who must obtain accurate information from builders, planning consultants and utilities - often at short notice and under time pressure before a contract is signed.

The central duty imposed by the Regulation is on the seller of a unit: to include in the disclosure statement the prescribed information before the contract for sale is entered into. For s 1B, the seller must provide the type and location of any unit subsidiary that adjoins the unit. This is a factual duty; if no such subsidiary exists, the seller may either state nil or omit the item, but the Regulation does not explicitly say whether omission is permissible. Prudent practice is to affirmatively state that there is no adjoining unit subsidiary. For s 2, the duty is contingent on the approval status of the building. If the building is authorised by a development approval, the seller must identify the approval and include a statement about any conditions to which it is subject. If the building (or part) is not authorised, the seller must confirm the development approval status and include an explicit undertaking to notify the buyer if a development application is made. That undertaking is a continuing contractual promise that creates a right in the buyer to receive the notification. If a development application has been made but not yet decided, the seller must identify the application. In all cases, the seller must also include a statement about where the buyer may find further information about the development approval, including how to find information about publicly notified amendments. This is a meta‑disclosure duty that compels the seller to direct the buyer to external sources (e.g., the ACT planning register). For s 3, the duties are: (a) to state which units will be individually metered for cold water; and (b) to describe any facilities provided for charging electric vehicles. If no EV charging facilities are provided, the seller should state that none exist, as the phrase “if any” suggests disclosure even if zero. The buyer’s right is to receive that information before committing to the contract. If the disclosure is incomplete or inaccurate, the buyer may have a right to rescind the contract or claim damages under the Act or at common law, though the Regulation itself does not codify those remedies. The undertaking to notify of a future development application creates a right that survives exchange; the buyer can enforce that undertaking if the seller later fails to notify. The Regulation does not impose any duties on government agencies, but the statement about where to find further information implicitly relies on the Planning Authority maintaining accessible public records.

The Regulation itself does not contain any penalty provisions. Offences and civil penalties for failing to provide a compliant disclosure statement are created by the parent Act, the Civil Law (Property) Act 2006. The front matter of the Regulation notes the penalty unit values: $160 for an individual and $810 for a corporation at the republication date. Those values apply to any offence against the law, including any offence created under the Act that references the Regulation. However, the Regulation merely prescribes matters; the Act must be examined to determine the precise penalty for non‑compliance. The most likely enforcement mechanisms under the Act include: the buyer’s right to rescind the sale before settlement; an order for compensation or damages; and possibly regulatory action by the Director of Public Prosecutions or the ACT Civil and Administrative Tribunal (ACAT). The undertaking required by s 2(1)(b)(ii) is a contractual term; failure to honour it could give rise to a breach of contract action or a claim for misleading or deceptive conduct under the Australian Consumer Law (ACT). Because the Regulation is a subordinate law, any enforcement relies on the Act’s machinery, which may include infringement notices, court orders, or disciplinary action against licensed agents or conveyancers. The value of a penalty unit is updated periodically by the Legislation Act 2001, s 133, and applies to all ACT laws unless a different amount is specified. This means the practical cost of non‑compliance depends on the classification of the offence under the Act (e.g., strict liability, fault element) and the number of penalty units assigned. Practitioners should verify the current penalty unit value and the specific offence provision in the Act before assessing risk. The Regulation’s role is to set the standard of disclosure; non‑compliance is effectively non‑compliance with the Act, which can lead to financial penalties, reputational damage, and litigation costs. There is no regulator specifically named in the Regulation, but the ACT Planning Authority may have an oversight role regarding development approval disclosures, and industry bodies such as the ACT Law Society may issue practice warnings. Because the Regulation introduces hard‑edged requirements (e.g., stating conditions on a development approval), even minor omissions can be technical breaches, making enforcement more likely in a dispute.

The Regulation sits directly underneath the Civil Law (Property) Act 2006, which is the enabling statute. Section 260 of that Act lists the information that must be included in a seller’s disclosure statement for a unit sale; the Regulation prescribes matters for three of those paragraphs. The Regulation interacts with the Planning Act 2023 (and formerly the Planning Act 2008) because s 2 incorporates definitions of “development application” and “development approval” from that Act. When the Planning Act was replaced on 27 November 2023, the amendments made by A2023‑36 updated the cross‑references so that the Regulation now refers to the Planning Act 2023 rather than the repealed 2008 Act. This interaction means that any future amendment to the Planning Act that alters the definition of “development approval” will automatically affect the Regulation’s requirements. The Regulation also interacts with the Unit Titles Act 2001, because the concept of a “units plan” originates in that Act and the disclosure obligations apply only to units under a units plan. A seller of a separate parcel (e.g., a freestanding house on Torrens title) is not subject to this Regulation. The Regulation also touches on the Australian Consumer Law (ACT) via the general law of misrepresentation; a disclosure statement that omits required information or is misleading could expose the seller to liability for misleading or deceptive conduct. The Regulation does not affect the operation of the Land Titles Act 1925 or the Civil Law (Sale of Residential Property) Act 2003, except that the disclosure statement for a unit sale must satisfy both the Act’s requirements (as detailed by the Regulation) and any other applicable pre‑contractual disclosure regimes, such as the sale of residential property generally. The utilities disclosure in s 3 may overlap with requirements under the Utilities Act 2000 or technical codes for metering and EV charging, but the Regulation does not incorporate those instruments. The interaction with the Planning Act is the most dynamic: because planning approvals can be modified, revoked, or subject to conditions, the seller must ensure the disclosure reflects the current status. If a development approval is later amended, the seller’s undertaking to notify of a development application (where the building was not authorised) remains relevant only if a fresh application is made. The Regulation’s interaction with the legislation history shows that it was originally made as part of the Unit Titles Legislation Amendment Act 2020, which inserted several provisions across different statutes simultaneously. Overall, the Regulation does not create new heads of liability but specificates existing ones, so its interaction with other laws is primarily interpretive and definitional.

The Regulation was originally made on 27 February 2020 as SL2020‑44, though its operative provisions commenced on 1 November 2020. It was made as part of the Unit Titles Legislation Amendment Act 2020 (A2020‑4, s 4). The first amendment was the Civil Law (Property) Amendment Regulation 2020 (No 1) (SL2020‑41), notified on 10 September 2020. That amendment inserted s 1A (later omitted) and s 1B (still current). Section 1A had prescribed a Type 1 matter in a disclosure statement under former s 259A(1)(a)(iv) of the Act. That section was omitted by the Planning and Unit Titles Legislation Amendment Act 2021 (A2021‑5, part 3), which commenced on 9 April 2021. The omission of s 1A simplified the Regulation by removing a requirement that had become redundant due to changes in the Act. Section 1B, which prescribes the unit subsidiary detail, survived and remains in force. The most recent amendment was made by the Planning (Consequential Amendments) Act 2023 (A2023‑36, sch 1 pt 1.9), notified on 29 September 2023 and effective from 27 November 2023. That amendment updated s 2 to replace references to the now‑repealed Planning Act 2008 with the Planning Act 2023. This was a consequential amendment necessary to align the Regulation with the new planning legislation. The amendment changed only the definitions and cross‑references; the substantive disclosure content remained identical. The republished version as at 27 November 2023 (R4) reflects that amendment. The legislation history also records that s 1 of the Regulation commenced on 27 February 2020, and the remainder on 1 November 2020. The Regulation has been republished four times: R1 (reissued) on 19 November 2020, R2 on 31 March 2021, R3 on 9 April 2021, and the current R4 on 27 November 2023. No expiration or sunset is recorded. The amendment history shows that the Regulation has been stable since the omission of s 1A; the only substantive change since 2021 has been the update to planning references. Practitioners should note that any future changes to the parent Act (e.g., if s 260 is amended to add or remove disclosure items) may again require corresponding amendments to the Regulation.

The instrument itself does not reference any litigation history. No cases are cited in the Regulation, the endnotes, or the amendment history. As a subordinate law that prescribes technical disclosure details, it is unlikely to have been the subject of standalone litigation. However, it may have been considered in proceedings under the parent Act concerning the adequacy of a disclosure statement. For example, a buyer who rescinds a contract could argue that the seller failed to include the prescribed detail about a unit subsidiary or development approval conditions. Any such case would turn on the facts and the application of the Regulation, but the absence of reported decisions in the public domain means that the interpretation of “detail (including type and location)” or the scope of “facilities provided for charging electric vehicles” has not been judicially tested. The ACT Civil and Administrative Tribunal (ACAT) handles small claims and residential tenancy disputes but may also hear unit title disputes; it is possible that contested disclosure matters have been resolved at that level without published reasons. The Regulation’s brevity and clarity minimise the scope for judicial disagreement, but the terms “unit subsidiary that adjoins the unit” and “individually metered for cold water” could be contested in marginal cases. A balcony that is shared or a courtyard that is not exclusive to the unit may not be a “unit subsidiary” - but the Regulation does not define the phrase with precision. Similarly, a building that has been amalgamated from two development approvals may raise questions about which “development approval” to identify. Without litigation to clarify these nuances, practitioners must rely on purposive interpretations and industry practice. The legislation history shows that s 1A was omitted shortly after insertion, suggesting that the original drafting was problematic; that section could have been the subject of issue before its repeal, but no litigation is recorded.

Several provisions in the Regulation create traps for the unwary. First, the undertaking to notify the buyer if a development application is made (s 2(1)(b)(ii)) is a continuing obligation that does not automatically expire at settlement. A seller who later makes a development application for an unauthorised building must actively notify the buyer, even if the contract has been exchanged or settled. It is unclear whether the buyer’s right to notification survives if the buyer flips the unit to a third party, but the better view is that the undertaking runs with the original buyer. Second, the “statement about any condition to which the development approval is subject” (s 2(1)(a)(ii)) is not limited to “material” conditions; all conditions must be disclosed. This includes minor or standard conditions (e.g., landscaping, waste management), which if omitted can render the disclosure non‑compliant. Third, the Regulation does not require disclosure of EV charging facilities separately for each unit; it requires information about “facilities, if any, that will be provided for charging electric vehicles.” For a new unit complex, the builder may provide a shared EV charging point but not a dedicated one for each unit. That arrangement must be disclosed, but the Regulation does not mandate a level of particularity (e.g., number of charging points, power rating, cost to use). A generic statement about “EV charging facilities will be provided in the basement” may be insufficient. Fourth, the cold water metering disclosure requires identification of which units will be individually metered. If some units share a meter, that must be stated. However, the Regulation does not require disclosure of hot water, gas or electricity metering, creating an asymmetric disclosure landscape. A buyer may assume that if cold water is individually metered, other utilities are also individually metered, but that assumption could be wrong. Fifth, the requirement to include “a statement about where the buyer may find further information about the development approval including information about how to find information about publicly notified amendments” (s 2(1)(d)) is a meta‑disclosure that sellers often overlook. It is not enough to say “see the planning register”; the statement must specifically explain how to find publicly notified amendments. Sixth, the phrase “detail (including type and location) of any unit subsidiary” implies that the type and location must be stated - but the word “including” suggests that other details may also be required. A meticulous seller should describe not only that there is a courtyard, but also its dimensions, aspect, and whether it is exclusive or shared. Finally, s 1B only applies to a unit subsidiary that “adjoins” the unit. If a storage cage is located in a basement corridor and does not physically adjoin the unit, it may not be caught - but the term “adjoins” is not defined and could be interpreted loosely. Each of these gotchas increases the risk of incomplete disclosure, which can give the buyer a basis to rescind or claim damages.

Compliance with the Regulation involves a systematic, documentable process for preparing the disclosure statement. The first step is to identify all adjoining unit subsidiaries for the unit. This typically requires a physical inspection and a review of the units plan (strata plan) to determine which balconies, courtyards, terraces, patios or other exclusive‑use spaces attach to the unit. For each, record the type (e.g., “balcony”) and the location (e.g., “south‑east corner of unit, accessible from living room”). If there is none, state that expressly. Second, determine the development approval status of the building. Obtain a copy of any development approval from the ACT Planning Authority or the body corporate. If the building has a DA, identify the approval number and date, and list every condition attached to it. Do not summarise; reproduce or fully describe each condition. If the building is not authorised by a DA, confirm that fact in writing and include a clear undertaking: “The seller undertakes to notify the buyer promptly if a development application is made for the building before settlement.” If a DA application has been lodged but not decided, identify the application number. In all cases, add a statement directing the buyer to the ACT Planning Register and include guidance on how to search for publicly notified amendments (e.g., “Go to www.act.gov.au/planning and search for DA‑2023‑xxxx; amendments are listed under the application history”). Third, for utility services, obtain a plan or certificate from the developer or utility provider showing which units are individually metered for cold water. Write a sentence such as “Units 1‑10 are individually metered for cold water supply; units 11‑20 share a meter.” For EV charging, ascertain whether any charging facilities are provided. If none, state “No facilities for charging electric vehicles are provided at the time of disclosure.” If some are provided, describe the location, number and type (e.g., five dedicated EV charging stations in the basement carpark, Level B1). All three disclosures must be included in the disclosure statement given to the buyer before the contract for sale is signed. The Regulation does not prescribe a specific format, but the information should be organised clearly, preferably under separate headings matching the legislation. Keep a copy of the disclosure statement and supporting evidence (e.g., the development approval document, the metering plan) for at least seven years after the sale, in case a dispute arises. If any information changes after disclosure but before settlement (e.g., a DA is approved or an EV facility is installed), update the buyer in writing. The undertaking to notify of a future DA is a continuing duty; set a calendar reminder to check whether any development application has been made before each settlement date. Engage a conveyancer with ACT unit title experience to review the disclosure statement before it is issued; the cost of review is far lower than the cost of litigation over an incomplete disclosure. Finally, monitor amendments to the Regulation and the parent Act, as the prescribed matters may be expanded or altered in future republications.