Community Land Development Act 2021

The Act’s primary audience is developers intending to undertake staged subdivision projects. A developer (defined indirectly through the development contract provisions in s 45 and the voting rights in s 57) must comply with strict registration requirements under ss 12, 15 and 16 before any scheme can be established. Once registered, the developer retains significant influence during the initial period and in respect of development concerns.

Community associations, precinct associations and neighbourhood associations are the corporate bodies created on registration (ss 8(2), 9(2), 10(3)). These associations hold title to association property as agent for lot owners (s 22) and exercise the functions conferred by the Community Land Management Act 2021 (s 111). Their members include owners of development lots that have not yet been subdivided, plus any subsidiary bodies (ss 8(3), 9(3), 10(4)).

Owners and occupiers of lots within the schemes are directly affected. They hold interests in association property proportional to unit entitlement (s 22(2)), are bound by the covenants implied in development contracts (s 49), and must comply with by-laws contained in the management statement (Schedule 2). Mortgagees, chargees and covenant chargees must consent to certain dealings, including severance (s 19(2)(e)), conversion of lots (s 24(2)(f)) and termination applications (s 69(3)(c)).

Planning authorities play a gatekeeper role. They must refuse planning approval unless a proposed development contract complies with Part 7 (s 47(1)), certify consistency (s 47(4)), and approve amendments to development contracts (s 50(2)(a)). Local councils may be required to consent to boundary adjustments (Schedule 1, cl 4(d)) or appear in Supreme Court resumption applications (s 74(1)(e)).

The Registrar-General is central to administration. The Registrar-General registers plans, makes recordings in folios (s 12(3)-(4)), cancels folios on termination (s 70(1)(e)), and may refuse registration where statutory requirements are not met (e.g. s 53(2), s 61(2)). The Land and Environment Court hears appeals against refusal of development contract amendments (s 51) and may approve amendments where an association has withheld consent (s 52). The Supreme Court exercises jurisdiction over scheme termination, variation of development contracts, and resumption-related restructuring (ss 65-67, 73-78).

Subsidiary strata corporations are affected where a community or precinct development lot is further subdivided by strata plan (s 13), but neighbourhood lots cannot be strata subdivided (s 13(3)). Service providers gain statutory easements once diagrams are registered (s 35) and are subject to the implied covenants in s 36. Resuming authorities must comply with the tailored resumption regime in Part 10, which overrides certain aspects of the Land Acquisition (Just Terms Compensation) Act 1991.

Finally, the Tribunal (NCAT) authorises certain dealings during the initial period (e.g. ss 15(2)(e)(iii), 16(2)(j)(iii), 24(2)(g)(iii)) and can resolve disputes under the companion management Act.

Developers’ key duties include carrying out warranted development in accordance with the development contract and any planning approval (s 49(3)), repairing damage to association property without delay (s 46(4)(d)(ii)), and not causing unreasonable inconvenience (s 46(4)(d)(i)). They must provide a copy of any post-registration prescribed diagram to the association within one month (s 38). Rights include the ability to carry out authorised proposals (s 49(4)), exercise voting control on development concerns (s 56(2)), and convene general meetings during the initial period (s 57(2)(a)).

Associations have duties to maintain association property (s 43(1)(b)), manage access ways (s 41), and comply with management statements (Schedule 2). They may only deal with association property in accordance with the Act (s 23(1)). Rights include granting or accepting relevant interests by special or ordinary resolution (s 30), acquiring additional association property by transfer or lease (ss 25-26), granting leases over part of association property (s 27), and converting lots to association property by instrument (s 24). Associations must give special-resolution certificates for many dealings (e.g. ss 15(4), 27(3), 28(3)).

Lot owners hold rights to use association property in accordance with their unit entitlement (s 22), the management statement and the Community Land Management Act 2021. They enjoy the benefit of statutory easements for services (s 34(2)(a)) but are subject to the covenants not to interfere unreasonably (s 36(a)). Owners may participate in association decisions once the initial period expires. During the initial period, many actions (subdivision of neighbourhood lots held by the original owner, conversion of lots, granting of leases) require either expiry of the initial period, compliance with the development contract, or Tribunal authorisation (see, for example, ss 15(2)(e), 16(2)(j), 24(2)(g), 26(2)(d)).

The Registrar-General’s rights include making any recordings thought fit (s 12(4)(i), s 39, s 104(b)) and refusing registration where statutory preconditions are unmet. Planning authorities hold the right to refuse planning approval for non-compliant development contracts (s 47(1)) and to impose conditions requiring development in accordance with the contract (s 47(2)).

Service providers have the benefit of statutory easements when providing services in accordance with an agreement or management statement (s 35) but must restore land to a basic standard and leave it clean and tidy (s 36(b)-(c)).

In resumption contexts, resuming authorities must apply to the Supreme Court before publishing a notice of resumption (s 73) and bear the costs of such applications unless the Court orders otherwise (s 77). Owners whose land is resumed retain the right to compensation assessed on just terms, taking into account the effect on residue land (s 100).

The Act itself contains few direct offence provisions; enforcement is primarily civil and administrative. Breaches of development contract covenants may be litigated in the Land and Environment Court. Under s 54(2), if proceedings are brought under s 9.45 of the Environmental Planning and Assessment Act 1979 for breach of a condition of consent that itself constitutes breach of a development contract, the Court may award damages instead of, or in addition to, other relief. Conversely, proceedings for breach of the implied agreement under s 49 may result in orders under s 9.46 of the Environmental Planning and Assessment Act 1979 or specific performance (s 54(3)).

The Supreme Court’s broad powers on termination or variation (s 65(3)) allow it to adjust rights, dispose of assets, wind up associations, vary unit entitlements, amend management statements or order registration of new plans. These orders are enforceable once registered (s 78). The Land and Environment Court may approve alternative amendments to development contracts (s 52(4)(b)) or extend appeal periods (s 51(3)).

Administrative enforcement occurs through the Registrar-General’s power to refuse registration (ss 53(2), 61(2), 96) or to cancel folios and create new ones on termination (s 70(1)(e)-(g)). Public notification requirements before amalgamation or Registrar-General termination (ss 60, 69) protect third parties; failure to notify can invalidate the process.

The Tribunal’s role is facilitative rather than punitive: it may authorise dealings during the initial period where the development contract does not permit them and the initial period has not expired. Contravention of initial-period restrictions (e.g. registering a subdivision of a neighbourhood lot held by the original owner contrary to s 15(2)(e)) renders the dealing unregistrable.

Civil remedies also arise under the companion Community Land Management Act 2021, which the present Act cross-references extensively. For example, s 49(9) expressly states that Part 4 of the Community Land Management Act 2021 does not apply to matters arising under the development contract covenants, directing parties instead to the Land and Environment Court.

In resumption cases, non-compliance with the Supreme Court application requirement (s 73(6)) allows affected parties to seek variation or termination of the scheme under s 102. Compensation for resumption of association property is claimable only by the association, which holds it on trust for members according to their beneficial interests (s 101).

The Act is expressly to be interpreted as part of the Real Property Act 1900, but prevails in the event of inconsistency (s 4(2)). It works in tandem with the Community Land Management Act 2021, which supplies the operational rules for associations, by-laws, meetings, financial management and dispute resolution. References to “this Act” in the management Act are to be read accordingly.

Strata subdivision of community or precinct development lots is permitted (s 13(1)) and triggers recordings under both the Strata Schemes Development Act 2015 and this Act (s 13(2)). However, neighbourhood lots cannot be strata subdivided (s 13(3)). The two strata management Acts are also picked up in the definitions of schemes (ss 5(e), 6(d), 7(c)).

Planning approvals under the Environmental Planning and Assessment Act 1979 are prerequisites. A development contract cannot be registered unless the planning authority certifies consistency (s 47(4)). Breaches of conditions of consent that reflect development contract obligations are enforceable in the Land and Environment Court as outlined above. The Act prevails over inconsistent provisions in the Land Acquisition (Just Terms Compensation) Act 1991 and Part 12 of the Roads Act 1993 (s 72(1)-(2)).

The Corporations Act 2001 (Cth) is excluded in its application to associations via a declaration under s 5F (s 11). The Interpretation Act 1987 applies to undefined terms (s 4(1)). The Surveying and Spatial Information Act 2002 governs the form of plans (Schedule 1, cl 1(2)(a)) and detailed survey information (s 25(4)).

The Conveyancing Act 1919 is engaged in several places: severed lots continue as lots in a current plan for the purposes of s 23F (s 19(4)); termination reinstates the parcel as a lot in a current plan under the same section (s 65(4)); Part 23 Division 3 applies to amendments of plans (s 105(3), s 106(2)). The Valuation of Land Act 1916 supplies the table of values for revised schedules on completion (Schedule 3, cl 14(3)(d)).

The Companion Animals Act 1998 and Disability Inclusion Act 2014 are referenced to prevent management statements from prohibiting assistance animals (Schedule 2, cl 10). The Act binds the Crown except in relation to obtaining planning approvals (s 114).

Electronic transactions and lodgment are facilitated by amendments to the Conveyancing Act 1919 and regulations made under it (s 103). The Act therefore sits at the intersection of property, planning, corporations, strata, valuation and administrative law.

The Act replaced the Community Land Development Act 1989 on commencement by proclamation. The 2021 Act was enacted to modernise the regime, align it with the simultaneously enacted Community Land Management Act 2021, and incorporate contemporary practices such as electronic lodgment (s 103, amended in 2022 and 2023).

Specific amendments appear in the text. Sections 25 and 26 were amended by the Statute Law (Miscellaneous Provisions) Act 2022 No 59, Sch 1.5[1], repealing spent paragraphs (a) and (b) that had required planning authority consent for transfers and leases of additional association property. This streamlined acquisition while retaining the requirement for special resolution and Tribunal authorisation during the initial period. Section 30 was amended by the same Act (Sch 1.5[2][3]) to adjust the resolution thresholds for granting or accepting relevant interests.

The 2023 amendments (2023 No 45, Sch 2[1][2]) to s 69 refined the public notification period for Registrar-General termination applications and removed a now-redundant document requirement. Section 103 was further amended in 2023 No 35, Sch 1.7 to update cross-references.

These changes reflect a policy of reducing unnecessary regulatory hurdles (particularly planning consents that duplicated association resolutions), clarifying electronic conveyancing procedures, and ensuring the legislation remains workable after the repeal of the 1989 Act and its regulation. The shift from the former Act’s more prescriptive approach to a clearer delineation between warranted and authorised development, coupled with enhanced Supreme Court oversight of resumptions, responds to decades of practical experience with master-planned estates where initial development contracts often required mid-course corrections.

The Act channels disputes into specialist forums. Developers dissatisfied with a planning authority’s refusal to approve an amendment to a development contract may appeal to the Land and Environment Court within 12 months (s 51(2)), with the Court able to extend time (s 51(3)). The Court’s decision stands as the planning authority’s (s 51(4)). Where an association has refused consent to an amendment, the developer may apply directly to the Land and Environment Court, which may approve the amendment, a different amendment, or refuse it (s 52(4)). All interested parties (planning authority, associations, lot owners, mortgagees) are entitled to be heard.

Termination or variation applications are heard by the Supreme Court (Part 9 Division 1). The Court may terminate a scheme if continuation is impracticable or, for staged schemes, completion has become impracticable (s 65(1)). It enjoys wide discretionary powers to adjust rights, vest land, wind up associations and amend documents (s 65(3)). The Registrar-General must be joined to every such application (s 67(2)(a)). The Court may treat a variation application as one for termination, or vice versa (s 67(2)(c)).

Resumption applications under s 73 must also be made to the Supreme Court before publication of the notice of resumption. The Court is required to disregard technical non-compliance, consider amendments to unit entitlement and management statements, and make orders that are “appropriate, just and equitable” (s 76(1)). It may order resumption of an entire parcel or termination of the scheme if partial resumption would render continuation impracticable (s 76(2)). Costs are borne by the resuming authority unless the Court directs otherwise (s 77).

Controversies have historically arisen around the balance of power during the initial period, the enforceability of development contracts, and the interaction with compulsory acquisition. The Act attempts to address the first by giving the relevant developer voting control on “development concerns” (s 56) while requiring separate motions and identification in meeting notices (s 57(1)). The second is addressed by the implied covenants under seal (s 49), the exclusion of the Community Land Management Act 2021’s internal dispute mechanisms (s 49(9)), and the availability of specific performance or EPA Act orders (s 54(3)).

The third area—resumptions—creates a bespoke regime that requires pre-resumption Court restructuring, reflecting judicial criticism under the former Act that compulsory acquisition could destabilise community title schemes without adequate planning. No recorded decisions are cited in the Act, but the legislative history shows Parliament’s intent to prevent partial resumptions from leaving unworkable remnant schemes.

Most practitioners miss that the “initial period” (the time before the original owner’s lots reach a certain threshold) continues to constrain a wide range of dealings even after the 2021 reforms. Actions such as subdividing a neighbourhood lot held by the original owner (s 15(2)(e)), adding land to a scheme parcel (s 16(2)(j)), converting a neighbourhood lot to neighbourhood property (s 24(2)(g)), leasing additional association property (s 26(2)(d)), or granting a lease over association property (s 27(2)(b)) are all blocked unless the initial period has expired, the dealing is expressly authorised by a registered development contract, or the Tribunal has given prior approval. Many solicitors discover this only when the Registrar-General rejects the dealing.

Another trap is the distinction between warranted development and authorised proposals in a development contract (s 45). Only warranted development carries a binding obligation; authorised proposals are permissive only. Yet the concept of “development concern” (s 55) is broader, capturing any development permitted by the contract. This allows the developer to control voting on a wide range of matters long after the initial period (s 56), a fact that can surprise later purchasers who assume majority rule applies to all association decisions.

The statutory easement regime (ss 33-40) is often overlooked. Once a prescribed diagram is registered with the management statement, the easement is created automatically and benefits every lot served by the service line (s 34(2)(a)). If the service line is later installed in a different location, the association (or developer during the initial period) must lodge a new diagram signed by all burdened owners (s 37). Failure to do so leaves the easement in the wrong place, exposing the association to claims for trespass or nuisance when maintenance occurs.

Schedule 3’s rules on unit entitlement are deceptively technical. A schedule lodged on completion must use the Valuer-General’s table of values at the same base date (cl 14(3)(d)); using different valuation dates will render it unregistrable. Conversely, schedules for new subdivisions that do not affect association property must simply re-allocate the existing total entitlement without alteration (cl 5(2)(c)(ii)), yet still require a valuer’s certificate based on comparative market value at the prescribed valuation day.

The exclusion of the Corporations Act (s 11) means associations are not companies and cannot use Corporations Act remedies, yet they are still “corporations” for the limited purpose of holding title. This hybrid status confuses lenders and insolvency practitioners. Similarly, the Act’s prevalence over the Land Acquisition (Just Terms Compensation) Act 1991 (s 72(1)) is sometimes forgotten by resuming authorities, leading to invalid notices of resumption that omit the Supreme Court case number (s 79(5)).

Finally, many fail to appreciate that setting apart land as an open or private access way does not remove it from association property or relieve the association of maintenance obligations (s 43). Section 45A of the Real Property Act 1900 (abuttals rule) is disapplied (s 44(1)), so purchasers of lots abutting access ways acquire no additional rights beyond those in the management statement.

Compliance begins at the planning stage. A developer must ensure any proposed development contract complies with s 46: it must be in approved form, signed, describe the land, identify warranted development in bold capitals as “warranted development—proposed development subject to a warranty”, identify authorised proposals similarly, include a concept plan, amenities description, access and construction zone details, the required undertakings, and any regulatory matters. The planning authority will not grant approval unless these are satisfied (s 47(1)).

When lodging the initial scheme plan (s 12), the developer must supply a location plan, detail plan, association property plan, a management statement compliant with Schedule 2 (including mandatory by-laws on access ways, services, garbage, insurance and fencing), a schedule of unit entitlement based on comparative market value at the prescribed valuation day supported by a valuer’s certificate (Schedule 3, cl 3), and the address for service. The administration sheet must be signed by all registered owners, mortgagees, chargees and covenant chargees, and bear a surveyor’s certificate and subdivision certificate.

Subsequent subdivisions follow the same rigorous path. For a scheme plan of subdivision that creates or subdivides association property, a replacement schedule of unit entitlement, an association certificate under seal confirming special resolution authorisation, and evidence that all interests have been released or noted are required (s 15(3)-(4)). Adding land to a scheme parcel demands contiguity, special resolution, and either expiry of the initial period, compliance with the development contract or Tribunal approval (s 16(2)).

Development contract amendments require planning authority approval, association approval (unanimous if changing design or theme, special resolution otherwise), registration, and, if refused, an appeal within 12 months to the Land and Environment Court (ss 50-53). Practitioners should ensure the amendment is lodged in approved form bearing both the planning authority certificate and the association’s certificate confirming the resolution level.

Associations must maintain accurate records of unit entitlements, keep association property in repair, and ensure any by-laws restricting use of restricted property are clearly set out in the management statement (Schedule 2, cl 11). When granting easements, leases or transfers of association property, the association must pass the requisite resolution, provide the approved-form certificate under seal, and satisfy initial-period or Tribunal requirements where applicable (ss 27-30).

On completion of the scheme, the association may lodge a revised schedule of unit entitlement using the Valuer-General’s same-base-date values, accompanied by special resolution approval (Schedule 3, cl 14). For resumptions, the resuming authority must first obtain a Supreme Court order restructuring the scheme or terminating it, lodge the required plans and revised schedules before publishing the notice of resumption, and ensure the notice states whether land is excluded from the scheme (ss 73, 79, 82-90).

All plans must comply with Schedule 1: formal land survey plan, administration sheet with consents, surveyor’s certificate, and (for boundary adjustment plans) local council consent. Electronic lodgment is mandatory where available; required endorsements must appear on an approved form (s 103).

Finally, associations should promptly notify the Registrar-General of any Court or Tribunal orders affecting unit entitlement, management statements or restricted property so that appropriate recordings can be made (s 110). Regular audits of the development contract against actual progress, and of the management statement against current by-laws, are essential to avoid the registration refusals or Court applications that flow from non-compliance.