Div 4Amendment of deposited strata plan

Division 4—Amendment of deposited strata plan 12—Application for amendment (1) An application for the amendment of a deposited strata plan may be made only by the strata corporation. (2) The applicant must provide evidence to the satisfaction of the Registrar-General— (a) that the application is made in pursuance of a unanimous resolution duly passed at a properly convened meeting of the strata corporation; (b) that any person with an encumbrance registered in relation to units or common property affected by the proposed amendment consents to the amendment; (c) if units or common property affected by the proposed amendment are subject to a statutory encumbrance—that the holder of the statutory encumbrance consents to the amendment. (2a) Where the amendment of a deposited strata plan 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 in relation to that extinguishment if rights under the easement continue in existence in respect of some other part of the dominant land. (3) The application must be accompanied by— (c) if the amendment affects the delineation of units, common property or any buildings on the site— (i) a plan indicating the changes to be effected by the amendment; (ii) a certificate from a licensed surveyor in the prescribed form (which may be endorsed on the plan) certifying that the plan correctly delineates the units, the common property and the buildings on the site; (iii) a certificate from a licensed valuer certifying the amount (if any) by which the value of any unit or the common property would be varied by the amendment; and (d) if the amendment— (i) consists of a variation of the unit entitlements of the units; or (ii) affects the relative value of the units, a fresh schedule of unit entitlements certified correct by a licensed valuer; and (e) an instrument providing for the discharge of any registered encumbrance shown on the certificate or certificates of title of the units that should, in the opinion of the Registrar-General, be discharged; and (f) such other documentary material as the Registrar-General may require. (3a) Where— (a) the erection or alteration of a building on the site causes an encroachment on land not included in the site; and (b) the application for amendment relates (wholly or in part) to the erection or alteration of that building, the application can only be accepted if— (c) no part of a unit would, if the amendment were made, form part of the encroachment; and (d) — (i) the encroachment is over public land and the council within whose area the land is situated consents to the encroachment; or (ii) the encroachment consists of the protrusion of footings, or footings and associated structures of a prescribed nature, by not more than the prescribed distance beyond the boundaries of the site, and the owner of the land over which the encroachment occurs consents to the encroachment; or (iii) it is established to the Registrar-General's satisfaction that the encroachment is otherwise authorised by law. (3b) If the amendment affects the delineation of units or common property, 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 amendment. (3c) The certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 expires at the expiration of 1 year after the application for amendment was lodged with the Registrar‑General unless the Registrar‑General extends the life of the certificate. (4) Where due application is made for the amendment of a strata plan, the Registrar‑General will, so far as the nature of this amendment requires— (a) amend the plan in accordance with the application, or substitute a fresh strata plan; (b) amend or endorse any certificate of title affected by the amendment, or cancel any such certificate and issue a new certificate or new certificates; (c) substitute a fresh schedule of unit entitlements. (4a) Where an application affected by an encroachment is accepted by the Registrar‑General— (a) unless the encroachment is over public land, the Registrar-General will, on the amendment of the plan, enter the encroachment on any relevant certificate of title; and (b) any consent given in relation to the encroachment is binding on present and subsequent owners and occupiers of the land. (5) Where part of a unit is, on the amendment of the strata plan by the Registrar-General, transferred to another unit or to common property, then— (a) the part is discharged from any encumbrance (other than an easement or statutory encumbrance) registered over the unit from which it is transferred; and (b) if the part is being transferred to another unit—the part will be held subject to any encumbrance registered over the whole of that unit. (5a) Where part of the common property is, on the amendment of the strata plan by the Registrar-General, transferred to a unit, then— (a) the part is discharged from any encumbrance (other than an easement or statutory encumbrance) registered over the common property; and (b) the part will be held subject to any encumbrance registered over the whole of the unit. (6) Where an amendment provides for— (a) the division of a unit into two or more units; or (b) the consolidation of two or more units into one unit, any unit created by the amendment will be held subject to any registered encumbrance shown on the certificate or certificates of title (unless an instrument providing for the discharge of the encumbrance is lodged with the Registrar-General). (7) An application for the amendment of a deposited strata plan that effects the transfer of an interest in land is a conveyance. (8) If, on amendment of a deposited strata plan, part, but not the whole, of an allotment within the meaning of Part 19AB of the Real Property Act 1886 is to be included in the site or land is to be removed from the site, the application under this section will be taken to be an application for division under Part 19AB of the Real Property Act 1886 as well as being an application under this section and accordingly— (a) both this section and Part 19AB apply to and in relation to the application; and (b) if part of an allotment is to be included from outside the site, the application must be made jointly by the strata corporation and the registered proprietor of the allotment to be divided; and (c) the Registrar-General may direct that a combined plan or two separate plans be lodged with the application. 12A—Application may deal with statutory encumbrances Despite any other statutory provision to the contrary, the Registrar‑General may treat an application for amendment of a deposited strata plan under this Division as if it included an application for the variation or termination of a statutory encumbrance if— (a) the application 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. 13—Amendment by order of ERD Court (1) The ERD Court may, on application under this section, order the amendment of a strata plan. (2) An application may be made under this section by— (a) the strata corporation; or (b) a unit holder; or (c) any other person who has a registered interest in a unit; or (d) an insurer of a unit or any of the common property. (3) Such an application may only be made— (a) for the purpose of correcting an error in the plan; (b) for the purpose of varying the unit entitlements of the units; (c) for the purpose of achieving amendments that have become desirable in view of damage to buildings within the strata scheme; (d) for the purpose of achieving any other amendments that are desirable in the circumstances of the particular case. (3a) If it appears to the ERD Court that the proposed amendment of the strata plan could adversely affect a person who is not a party to the proceedings, the ERD Court should not order the amendment unless the ERD Court is satisfied that the person has been notified of the possibility that such an order could be made and has been given a reasonable opportunity to make submissions to the Court in relation to the matter. (3b) In determining an application under this section the ERD Court must have regard to the matters (if any) prescribed by regulation. (4) The ERD Court may, on an application under this section, make— (a) an order for amendment of the strata plan; (b) any further orders that may be necessary to achieve justice between those affected by the amendment; (c) incidental or ancillary orders. (5) Where an order for the amendment of a strata plan is made, the Registrar-General will, on lodgement of the order and any other documentary material the Registrar-General requires, amend the plan in accordance with the order.