Div 1Application for division

Division 1—Application for division 14—Application (1) The registered proprietor of an estate in fee simple in— (a) land comprising an allotment or allotments; (b) land comprising a primary lot or a secondary lot, may apply to the Registrar-General for the division of the land by a plan of community division. (2) If the land to be divided is subject to a life estate, the proprietors of the life estate and the reversionary or remainder interest will be taken together, for the purposes of subsection (1), to be the proprietors of an estate in fee simple in the land. (3) The application must be in a form approved by the Registrar-General and must— (a) include the names and addresses of the first owners of the lots and must specify the lot or lots to be owned by each of them; and (b) include the address of the corporation that will be established on deposit of the plan of community division; and (c) include such other information as the Registrar-General requires. (4) The application must be accompanied by— (b) the plan of community division; and (d) the scheme description endorsed by the relevant development authority (a scheme description is not required for certain small schemes—see section 15); and (f) the first by-laws of the scheme; and (g) if the scheme description indicates— (i) that the community parcel is to be (or is likely to be) divided in stages; or (ii) that the owner of a particular community lot is to (or is likely to) divide the lot or develop it in any other manner; or (iii) that the developer is to (or is likely to) make improvements to, or undertake development work on, a development lot or the common property, an appropriate development contract or contracts; and (h) a certificate from a licensed surveyor in the form prescribed by regulation (which must be endorsed on the plan) certifying that the plan has been correctly prepared in accordance with this Act to a scale determined by the Registrar‑General; and (i) a certificate from a land valuer in the form prescribed by regulation (which must be endorsed on the schedule of lot entitlements) certifying that the schedule is correct (the Registrar-General may refuse to accept the certificate if given more than six months before the application is lodged); and (j) any instrument, duly executed, that is to be registered on deposit of the plan; and (k) such other documentary material as the Registrar-General may require. (5) The plan of community division— (a) must be in a form approved by the Registrar-General; and (b) must divide the land into two or more community lots and common property; and (c) may include one or more development lots; and (d) must delineate the boundaries of the land and the lots and common property into which the land is divided in a manner that allows those boundaries to be ascertained; and (e) must as far as practicable delineate the service infrastructure (but not that part of the service infrastructure within the boundaries of a community lot if it does not provide a service to any other lot or the common property); and (f) must delineate the streets, roads, thoroughfares, reserves or similar open spaces (if any) that will, on deposit of the plan, be vested in a council or prescribed authority or will revert to the Crown; and (g) must delineate the easements (if any) of a kind referred to in section 25; and (h) must designate each lot by a distinguishing number; and (i) must have annexed to it a schedule of lot entitlements in relation to the community lots in a form approved by the Registrar-General; and (j) must comply with any requirements stipulated by the Registrar-General. (5a) The Registrar‑General must not deal with the application unless satisfied that the certificate from the State Planning Commission required by section 138 of the Planning, Development and Infrastructure Act 2016 has been given, and is in force, in relation to the development. (6) The certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 expires at the expiration of one year after the application for the division of the land was lodged with the Registrar-General unless the Registrar-General extends the life of the certificate. (7) A primary lot cannot be divided by a secondary plan if the scheme description or the by-laws of the primary scheme prohibit it. (8) A secondary lot cannot be divided by a tertiary plan if the scheme description or the by-laws of the primary or secondary scheme prohibit it. 15—Scheme description not required for certain small schemes (1) There is no need to lodge a scheme description with the Registrar-General if— (a) the plan of community division— (i) does not create more than six community lots (or such other number as is prescribed by regulation); and (ii) does not create a development lot; and (b) each of the community lots is intended to be used solely or predominantly for residential purposes. (2) If the community corporation subsequently applies to the Registrar-General to amend the plan of community division to increase the number of community lots to a number that exceeds the number prescribed by or under subsection (1)(a)(i), the application must be accompanied by a scheme description endorsed by the relevant development authority. 15A—Application may deal with statutory encumbrances Despite any other statutory provision to the contrary, the Registrar‑General may treat an application under this Part as if it included an application for the variation or termination of a statutory encumbrance if— (a) the application or the plan of community division specifies that variation or termination of a statutory encumbrance is to be registered or noted; and (b) the application is accompanied by— (i) a certificate signed by or on behalf of the holder of the statutory encumbrance certifying that the requirements of the Act under which the encumbrance was entered into, or is in force, as to the variation or termination of the statutory encumbrance (if any) have been complied with; and (ii) such other documentary material in relation to the statutory encumbrance as the Registrar‑General may require. 16—Consents to application (1) The applicant must provide evidence to the satisfaction of the Registrar-General that— (a) the holder of a registered encumbrance over the land to be divided consents to the application; and (b) where deposit of the plan in the Lands Titles Registration Office will affect the estate or interest of a person in land outside the community parcel—that person consents to the application; and (c) where deposit of the plan in the Lands Titles Registration Office will operate to vest an estate or interest in land (whether within or outside the community parcel) in a person—that person consents to the application. (2) The Registrar-General may, if he or she thinks fit, dispense with the consent of a person referred to in subsection (1). (3) If the deposit of a plan of community division would result in the extinguishment of an easement in respect of part of the dominant land, the consent of a person who has or claims an estate or interest in the servient land is not required (unless the Registrar‑General determines otherwise in a particular case) in relation to that extinguishment if rights under the easement continue in existence in respect of some other part of the dominant land. 17—Application in relation to part of the land in a certificate (1) Where an allotment comprises a part, but not the whole, of the land in a certificate of title, an application for division of the allotment under this Act can only be made if the remainder of the land in the certificate— (a) constitutes the whole of an allotment or a number of allotments; or (b) constitutes an allotment or allotments and a part allotment or part allotments that are contiguous with that allotment or one or more of those allotments. (2) The requirement for contiguity in subsection (1)(b) does not apply to a part allotment that was not contiguous with any allotment in the certificate before the division occurred. 18—Status of plan and application (1) The plan and the application for division will, upon being lodged with the Registrar-General, be taken for the purposes of the Real Property Act 1886 to be a single instrument presented for registration and will have priority over other instruments in accordance with section 56 of that Act. (2) Subject to subsection (3), the plan or the application to which it relates cannot be withdrawn or amended without the consent of all the persons who have consented to the application. (3) The Registrar-General may permit an applicant, or a person who has consented to the application, to amend the application or the plan to which it relates in order to comply with this Act or the Real Property Act 1886 or with a requirement of the Registrar-General under this Act or the Real Property Act 1886. (4) The provisions of the Real Property Act 1886 that apply to, or in relation to, instruments of a particular class will, subject to this Part, apply (with any necessary adaptations or modifications) to, or in relation to, a plan and the application for division if deposit of the plan in the Lands Titles Registration Office— (a) would operate to vest in a person under section 23 the same kind of estate or interest as is vested by registration of instruments of that class; or (b) would discharge or otherwise extinguish an estate or interest in land under section 23 of the same kind as is discharged or extinguished by registration of instruments of that class. 19—Special provisions relating to strata plans (1) A strata plan must divide the building on the community parcel (or, if there is more than one building, at least one of them) so as to create at least one lot that is situated above another lot in the building. (2) Subsection (1) does not apply to a strata plan that was originally deposited in the Lands Titles Registration Office under the Strata Titles Act 1988 and has become a strata plan under this Act by virtue of an election under clause 2 of the Schedule. (3) A strata lot— (a) may be below, on or above the surface of land; and (b) may be wholly on one storey or partly on one storey and partly on another or others; and (c) must have upper and lower boundaries as well as lateral boundaries that are defined by reference to parts of the building; and (d) may include an area (a lot subsidiary) within the building or comprising land outside the building to be used for a purpose that is ancillary to the purpose for which the rest of the lot is to be used. (4) Subject to any explicit statement to the contrary in a strata plan, the following principles apply to the definition of a lot by strata plan— (a) where a boundary is defined by reference to a wall or fence—the boundary is the inner surface of the wall or fence; (b) where a boundary is defined by reference to a floor—the boundary is the upper surface of the floor; (c) where a boundary is defined by reference to a ceiling or roof—the boundary is the under surface of the ceiling or roof.