Version No. 076 Subdivision Act 1988 No. 53 of 1988 Version incorporating amendments as at 2 July 2018 The Parliament of enacts as follows: 1 What are the purposes of this Act? The purposes of this Act are to— S. 1(a) amended by No. 47/1989 s. 5(1). (a) set out the procedure for the subdivision and consolidation of land, including buildings and airspace, and for the creation, variation or removal of easements or restrictions; and S. 1(b) amended by No. 42/2017 s. 47. (b) regulate the management of and dealings with common property and the constitution and operation of owners corporations. 2 When does this Act commence? This Act comes into operation on a day or days to be proclaimed. S. 3 amended by No. 47/1989 s. 19(a). 3 Definitions (1) In this Act— S. 3(1) def. of acquire inserted by No. 47/1989 s. 4(1)(a). acquire in relation to an acquiring authority, means acquire by agreement or by compulsory process; acquiring authority means any person or body of persons authorised to acquire land compulsorily;
S. 3(1) def. of collecting agency inserted by No. 7/2018 s. 16. collecting agency has the same meaning as in Part 3AB of the Planning and Environment Act 1987; Council means the Council of the municipal district in which the land in the plan is located; S. 3(1) def. of development agency inserted by No. 7/2018 s. 16. development agency has the same meaning as in Part 3AB of the Planning and Environment Act 1987; S. 3(1) def. of encumbrance repealed by No. 47/1989 s. 5(2). * * * * * S. 3(1) def. of GAIC recording inserted by No. 42/2017 s. 48(a). GAIC recording has the same meaning as it has in Part 9B of the Planning and Environment Act 1987; S. 3(1) def. of infrastructure contribution inserted by No. 7/2018 s. 16. infrastructure contribution has the same meaning as in Part 3AB of the Planning and Environment Act 1987; land includes buildings and airspace; S. 3(1) def. of land affected by a body corporate repealed by No. 69/2006 s. 206(1). * * * * * S. 3(1) def. of land affected by an owners corporation inserted by No. 69/2006 s. 206(2). land affected by an owners corporation means the lots the owners for the time being of which are the members of the owners corporation together with the common
(6) Parts 2, 3 and 4 (except sections 24 and 25) do not apply to plans submitted under section 98CA or 98CF of the Transfer of Land Act 1958. S. 4(7) amended by Nos 79/1993 s. 10, 74/2000 s. 3(Sch. 1 item 119). (7) This Act does not apply to subdivision by the Crown in order to issue a Crown grant under any Act. S. 4(8) inserted by No. 47/1989 s. 19(f), substituted by No. 39/2016 s. 33. (8) This Act does not apply to a subdivision that occurs because of the creation of a folio of the Register under section 23(4C) of the State Electricity Commission Act 1958. S. 4(9) inserted by No. 42/2017 s. 49(2). (9) This Act does not apply to anything done under section 526, 527, 528 or 569BA of the Local Government (Miscellaneous) Act 1958 as in force immediately before the repeal of those sections. 5 The procedure for certification and registration of plans S. 5(1) amended by Nos 47/1989 ss 5(4)(d), 18(1)(c), 48/1991 s. 6. (1) Subject to sections 4 and 44, the subdivision or consolidation of land, or the creation, variation or removal of an easement or restriction, or the creation of common property, or any dealing with common property, must be done in accordance with this Act. S. 5(2) substituted by No. 47/1989 s. 4(2)(a). (2) If there is a subdivision by acquisition by an acquiring authority— (a) if all the land on the plan to be acquired is to be acquired by compulsory process, the authority must under section 35 submit a plan for certification—
(f) alterations required by the Council have been made; and S. 6(1)(g) repealed by No. 47/1989 s. 12(1). * * * * * (h) where the only access to a lot is over Crown land, either a road has been reserved or proclaimed or the Minister administering the Land Act 1958 has consented in writing to the use of the land for access; and S. 6(1)(i) repealed by No. 47/1989 s. 5(4)(e), new s. 6(1)(i) inserted by No. 48/1991 s. 7(2), substituted by No. 69/2006 s. 208(1). (i) where the plan does anything requiring the unanimous resolution of the members of the owners corporation under Division 3 of Part 5 or an order of the Victorian Civil and Administrative Tribunal under section 34D, the plan is accompanied by a copy of the unanimous resolution or the order of the Tribunal; and (j) where a plan removes or varies a restriction— S. 6(1)(j)(i) amended by No. 47/1989 s. 6(1)(d), substituted by No. 48/1991 s. 7(3). (i) the removal or variation is in accordance with the planning scheme or a permit; or S. 6(1)(j)(ii) amended by No. 47/1989 s. 6(1)(e). (ii) the Registrar has declared that the restriction has been released modified or varied; and (k) where a plan removes or varies the whole or part of an easement—
S. 6(1)(k)(i) amended by No. 47/1989 s. 6(1)(d), substituted by No. 48/1991 s. 7(4). (i) the removal or variation is in accordance with the planning scheme or a permit; or (ii) the Registrar has declared that the easement has been abandoned or extinguished; or (iii) the easement was set aside for the purpose of a Council, public authority or other person which has requested or consented to the removal or variation; or S. 6(1)(k)(iv) amended by No. 47/1989 s. 4(2)(b). (iv) all parties interested in the easement or the part of it have agreed to the removal or variation; or S. 6(1)(k)(v) inserted by No. 47/1989 s. 4(2)(b), amended by No. 52/1998 s. 311(Sch. 1 item 86.1). (v) the Victorian Civil and Administrative Tribunal has given leave under section 36 to remove the easement and, if leave is given subject to conditions relating to the plan, those conditions have been met. (2) If the conditions in subsection (1) are not met, the Council must refuse to certify the plan and give its reasons in writing to the applicant within the prescribed time. S. 6(3) inserted by No. 48/1991 s. 7(5), amended by No. 69/2006 s. 208(2). (3) The Council may rely on a verified copy of a unanimous resolution or Tribunal order accompanying a plan and referred to in section 6(1)(i) as conclusive proof that a unanimous resolution or order was made in those terms. 7 How long does certification last?
S. 17(2E) inserted by No. 47/1989 s. 19(j). (2E) Subject to any agreement, subsections (1), (3), (4), (5) and (6) apply as if they referred to a nominated relevant authority as well as to a referral authority. S. 17(3) amended by No. 48/1991 s. 13(1). (3) Subject to this section, Division 2 of Part 9 of the Planning and Environment Act 1987 applies to an agreement under subsection (2)(c) as if the Council or referral authority were the responsible authority. S. 17(3A) inserted by No. 48/1991 s. 13(2). (3A) An agreement under subsection (2)(c) does not have to be under seal. S. 17(3B) inserted by No. 48/1991 s. 13(2). (3B) If an agreement under subsection (2)(c) is not under seal, sections 174(1), 179 and 181 to 183 of the Planning and Environment Act 1987 do not apply to it. S. 17(3C) inserted by No. 3/2013 s. 86. (3C) If an agreement under subsection (2)(c) is under seal— (a) section 182A of the Planning and Environment Act 1987 does not apply to it; and (b) section 181(1) of the Planning and Environment Act 1987 applies to it as if for the expression "must apply to the Registrar of Titles, without delay," there were substituted the expression "may apply to the Registrar of Titles". (4) The applicant is responsible for the maintenance of the completed works in good condition and repair for 3 months or any other period which is agreed between the applicant and the Council or referral authority. (5) After the expiry of the maintenance period, maintenance of the works becomes the responsibility of the Council or the referral authority.
S. 21(2CA) inserted by No. 7/2018 s. 19(2). (2CA) A Council must not issue a statement of compliance under this section in relation to a plan relating to land, in respect of which an infrastructure contribution is imposed under an approved infrastructure contributions plan, unless the applicant has satisfied the Council that— (a) in the case of a monetary component amount and any land equalisation amount of the infrastructure contribution— (i) the applicant has paid those amounts to the collecting agency in accordance with section 46GV(3) of the Planning and Environment Act 1987; or (ii) the applicant has entered into an agreement with the collecting agency under section 46GV(3) of that Act for the payment of those amounts; and (b) if any of the land in the plan is required to be provided to the collecting agency or a development agency as part of the land component of the infrastructure contribution—that land has been set aside as a reserve or a road on the plan to vest in the collecting agency or the development agency (as the case requires) under this Act. S. 21(3) inserted by No. 48/1991 s. 18(3), amended by No. 126/1993 s. 264(Sch. 5 item 20). (3) A Council cannot refuse to issue a statement of compliance because a requirement made in relation to an application, approval, permit or certificate under the Building Act 1993 or in relation to regulations under that Act remains outstanding. S. 21(4) inserted by No. 48/1991 s. 18(3). (4) If—
(i) apparently made on behalf of the corporation; or (ii) apparently signed by a director or other person concerned in the management of the corporation; or (iii) apparently signed by a person who manages the corporation's transactions or securities affecting land. S. 22(1AD) inserted by No. 57/1993 s. 10(3). (1AD) The Registrar need not— (a) enquire as to the existence or scope of the authority to sign of a person who signs a consent or a request to which subsection (1AB) or (1AC) applies; or (b) call for or examine any documents relating to any of the matters referred to in paragraph (a). S. 22(1B) inserted by No. 48/1991 s. 20(3), substituted by No. 42/2017 s. 52(4). (1B) The applicant may apply to the Registrar for service of a notice under subsection (1C) on a person whose consent to the registration of a plan is required if— (a) the person has refused consent; or (b) the applicant satisfies the Registrar that consent cannot be obtained from the person. S. 22(1C) inserted by No. 48/1991 s. 20(3). (1C) The notice must— (a) state that the applicant has applied for registration of the plan; and (b) specify a day, being not less than 30 days from the service of the notice, before which notice of refusal to consent may be given; and (c) state that the person served with the notice is to be taken to have consented to the registration of the plan unless before the day
(c) by the owners corporation, in accordance with the regulations. (2) A dealing, encumbrance or notification affecting a lot operates as a dealing, encumbrance or notification affecting the lot owner's share in the common property, even though that share is not mentioned in any document giving effect to the dealing, encumbrance or notification affecting the lot. S. 31A(3) amended by No. 80/2009 s. 99(1). (3) The Registrar may only record on the folio of the Register for common property anything affecting the common property and not a lot owner's share in the common property. S. 31A(4) amended by No. 80/2009 s. 99(2). (4) A recording made on the folio of the Register for a lot operates in relation to the owner's share in the common property as if it were also a recording made in relation to that share on the folio for the common property. Division 3—Alteration of a subdivision S. 32 substituted by No. 69/2006 s. 211. 32 Powers to alter subdivision If there is a unanimous resolution of the members, an owners corporation may proceed under this Division to do one or more of the following— (a) dispose of the fee simple in— (i) all or part of any common property vested in it; or (ii) any other land purchased or obtained by it; (b) purchase or otherwise obtain land— (i) for inclusion in or to become common property; or (ii) which is or is to become a lot;
(d) subsection (3)(b)(c) and subsection (6)(a) to (d) and (ea) were deleted. S. 35(10) inserted by No. 57/1993 s. 14(6). (10) Without limiting subsection (9), a plan referred to in subsection (8) may do anything that can be done by a plan referred to in section 24A. 36 Power of owner to acquire or remove easements S. 36(1) substituted by No. 48/1991 s. 32(1), amended by Nos 34/1994 s. 6(1), 52/1998 s. 311(Sch. 1 item 86.2(a)). (1) If— (a) when considering a proposed amendment to a planning scheme or an application for a permit or to amend a permit; or (b) in implementing an amendment to a planning scheme; or (c) in a condition in a permit— the Council or a referral authority states in writing that it considers that the economical and efficient subdivision or consolidation (whether existing or proposed) or servicing of, or access to, land covered by the amendment, proposed amendment, application or permit requires the owner of land to— (d) remove a right of way over the owner's land; or (e) acquire or remove an easement over— (i) other land in the subdivision or consolidation; or (ii) other land in the vicinity— and that the removal or acquisition will not result in an unreasonable loss of amenity in the area affected by the removal or acquisition, the owner may apply to the Victorian Civil and Administrative Tribunal for leave to remove the right of way or acquire or remove the easement compulsorily.
(b) subject to section 33(2) and (3), must make any necessary amendments to lot entitlement and liability; and S. 37(8)(c) amended by No. 69/2006 s. 212(g). (c) may provide that the land in the plan becomes a lot affected by any relevant owners corporation. S. 37(9) inserted by No. 48/1991 s. 33(6). (9) On the registration of a plan referred to in subsection (8)— (a) this section ceases to apply to the land in the plan; and S. 37(9)(b) repealed by No. 57/1993 s. 16. * * * * * (c) any requirement made in the statement of compliance for the master plan ceases to apply to the land in the newly registered plan. S. 37(10) inserted by No. 48/1991 s. 33(6). (10) A plan referred to in subsection (8) may amend the master plan or a plan for any earlier stage in any way necessary because the land in the plan is taken out of the staged subdivision. S. 38 amended by Nos 47/1989 s. 9(q)–(s), 57/1989 s. 5(6), 48/1991 s. 34, 34/1994 s. 8, repealed by No. 69/2006 s. 213, new s. 38 inserted by No. 42/2017 s. 62. 38 Amendment to accessory lot on plan (1) With the written consent of the Council, the owner of an accessory lot on a plan of strata subdivision or of an accessory lot on a plan of cluster subdivision may apply in the form approved by the Registrar to have the plan amended so that the lot is no longer shown as an accessory lot. (2) The Registrar may amend the plan in accordance with an application. (3) On the amendment of the plan, the lot ceases to be an accessory lot and becomes a lot for the purposes of this Act.
(2) If cancelled, the scheme of development ceases to have effect. (3) If altered, the scheme of development has effect as altered by the Registrar. S. 38E inserted by No. 42/2017 s. 62. 38E Consent for amendment to plan On an application under section 38, 38A, 38B or 38C, the consent of any person who has an estate, interest or claim in the land is not required. S. 38F inserted by No. 42/2017 s. 62. 38F Proceedings for further stages of development of land in plan of cluster subdivision If a plan of cluster subdivision for the development of land in stages has been registered— (a) before the commencement of section 44(5E) of the Subdivision Act 1988 as in force immediately before the commencement of the Land Legislation Amendment Act 2017; or (b) on or after the commencement of section 44(5E) of the Subdivision Act 1988 as in force immediately before the commencement of the Land Legislation Amendment Act 2017, under the provisions applied by section 44(3B) of the Subdivision Act 1988 as in force immediately before the commencement of the Land Legislation Amendment Act 2017— proceedings may be taken in relation to any further stage in the development or to have a plan substituted as if the Subdivision Act 1988 (except for sections 44(2) to 44(11)) as in force immediately before the commencement of the Land Legislation Amendment Act 2017 had not commenced, and Part IV of the Cluster Titles Act 1974 and any regulations made under that Act
Current State: This information relates only to the provision/s amending the Subdivision Act 1988 Urban Renewal Authority Victoria Amendment (Development Victoria) Act 2017, No. 10/2017 Assent Date: 27.3.17 Commencement Date: S. 37 on 1.4.17: Special Gazette (No. 94) 27.3.17 p. 1 Current State: This information relates only to the provision/s amending the Subdivision Act 1988 Victorian Planning Authority Act 2017, No. 11/2017 Assent Date: 27.3.17 Commencement Date: Ss 99, 100 on 1.7.17: Special Gazette (No. 150) 16.5.17 p. 1 Current State: This information relates only to the provision/s amending the Subdivision Act 1988 Land Legislation Amendment Act 2017, No. 42/2017 Assent Date: 19.9.17 Commencement Date: Ss 47−68 on 20.9.17: s. 2 Current State: This information relates only to the provision/s amending the Subdivision Act 1988 Planning and Environment Amendment (Public Land Contributions) Act 2018, No. 7/2018 Assent Date: 27.2.18 Commencement Date: Ss 16–20 on 2.7.18: Special Gazette (No. 305) 26.6.18 p. 1 Current State: This information relates only to the provision/s amending the Subdivision Act 1988 –––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 3 Amendments Not in Operation There are no amendments which were Not in Operation at the date of this publication. 4 Explanatory details No entries at date of publication.