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USER GUIDE - Department of Transport, Planning and Local

1. SUBDIVISION ACT USER GUIDE Department of Planning November 2012 and Community Development This guide replaces The New Subdivision Act A User s Guide Ministry for Planning and Environment October 1989 ISBN 978 1 921940 79 8 Published by the Victorian Government Department of Planning and Community Development Melbourne November 2012 The State of Victoria Department of Planning and Community Development 2012 This publication is copyright No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 Authorised by the Victorian Government 1 Spring Street Melbourne This publication may be of assistance to you but the State of Victoria and its employees do not guarantee that the publication is without flaw of any kind or is wholly appropriate for your particular purposes and therefore disclaims all liability for any error loss or other consequence which may arise from you relying on any information in this publication www dpcd vic gov au planning Contents YK AS 1 INTRODUCTIONS i arn a ere n Ed edm nasa c COO red d dans 5 1 1 Purpose ofthe guide coiere rettet terret tetuer tu 5 12 The UE 5 1 3 subdivision approval porocess EEN 6 2 SUBDIVISION amp THE PLANNING SYSTEM I entree 7 2 1 Qu M 7 22 VME WOISOF Gong n i torte tei peer ee a a tore te ned ve tates v eee 7 2 9 Operation of planning schierries uicit
2. ON euieuos Buruuejd gg D EZ g s senuouiny o sued awayos 923 069 Butuugld GG 10 g s o Ajday gt p uimnb i euieuos Buluueld gg 10 gz g s 2 senuoune o suejd SI yuued e j au Sc vL L ioyusifep siy o aen SAVG SS920J4d uoneolii OY LS oe gs syrom Sue d yei 29s 69 10 SUOSE L pDIA01d 0 29 5 uejd ay e oudde 0 esnjoJ JSN Vad 79 3 9 ss oN T suonipuoo pue y u d Buluue q g g1 s suoneJoje JO SUOSEAI BPIAOd paysnes si s nb i nun sdojs eui srs SJA suoieJoaye 10 1s nb u suoneJejv Vad 79 8 29 S SUO IPUOD pue pwu d Buluue d SAVG UOISIAIDqhnS ZS 67 3dIn9 435 LIV NOISIAIGENS 225 uejd Josefa o jddy up ldulo9 jo jueuigje s 12 1 4 Vad 9 8 29 S suonipuo2 9 Buluue d syJom oN paure gz uuo3 e2ueiduio2 Jo jueulajejs enssi o asnjay 2b 9 9yss Buuseufu i buy ldul02 panouddy SANG SANG zuendwog jo 3u ul 3s ES FA
3. 6 5 Building Envelopes cte ni v b CH Rr ni asi yib 41 8 6 Online processing of subdivision applications GPEAR sss 41 9 FEES AND 5 n rtc ciens 43 9 1 What fees may a council charge for subdivision proposals a 43 9 2 Cana council or referral authority charge for the preparation or checking of plans 43 9 3 Can a council or referral authority charge for the supervision of vvorks 44 94 Gama council waive or reduce a Tee nro a ree s ba 44 95 QUERSUDGIVISIOM TOES 2 ees ter ae m PR ua niea mm RUP ARR ph 44 9 6 Growth Areas Infrastructure Contributions sse 44 9 7 Development Contributions Plan Overlay seen 45 9 9 Openspacecontributloris coiere meno en reri tente a cd ee tee 45 APPENDICES P1 The Planning PROCESS EE 46 1 The Certification Process tentent tenete tete tenerent 47 S2 SIME cM 48 S3 IS Ee Reuler 49 um wmm SES 1 1 1 2 d ni Purpose of the guide The current system for the approval of subdivisions has been in place in Victoria since the introduction of the Subdivision Act 1988 The Subdivision Act sets out the main elements and procedures for the approval of plans of subdivision including procedures for the certification and registration of plans The purpose of this guide is to provide advice and guidance
4. are required by or for the council or a referral authority to provide roads or public utility services to the land are or are to be the responsibility of the council or a referral authority after the maintenance period When can construction of works for the subdivision take place Under section 17 1 of the Subdivision Act works should not commence until the plan of subdivision has been certified any required engineering plans have been approved and agreements entered into When do engineering works become the responsibility of the council or another agency Roads footpaths and similar required works will become the responsibility of the council after the period provided for in section 17 4 of the Subdivision Act Where an authority other than the council is to take over responsibility for some works such as water or drainage then subject to an order of the Governor in Council or an agreement between the council and the authority the authority may arrange for the works and any associated rights powers and liabilities to be transferred to it any time after they are completed What open space requirements can be made under the Subdivision Act If there is a requirement for open space specified in the planning scheme then the contribution rate in the planning scheme will override section 18 of the Subdivision Act If a rate is included in a local planning scheme it will be specified in a schedule to Clause 52 01 of the planni
5. Under section 15 4 of the Subdivision Act if a council or a referral authority requires specific alterations to an engineering plan the 30 day time limit is suspended until the altered engineering plan is received If a plan is rejected or specific changes are required the council or referral authority is required under section 15 3 to give reasons in writing Decisions made by council in respect of engineering plans may be appealed to VCAT under section 40 of the Subdivision Act A summary of the process for the approval of engineering plans is provided in Diagram S2 in Appendix 3 Approval of works plans Under section 15 5 of the Subdivision Act if an engineering plan complies with the requirements of the council and referral authority then the council must approve the plan Construction and maintenance of works Conditions on planning permits and related agreements can cover not only the provision but also the construction and future maintenance of works including bonds and payments Under section 17 4 of the Subdivision Act the applicant is responsible for the maintenance of any completed works for a period of three months or as otherwise agreed between the applicant and council or referral authority After the expiry of this 6 9 6 10 6 11 6 12 period council or the referral authority is responsible for maintenance What are works Section 17 of the Subdivision Act defines works to mean works that
6. conditions in the permit When it considers an application to certify a plan a referral authority under section 9 of the Subdivision Act must tell the council that it either consents to the plan or requires specified alterations or refuses consent If a referral authority requires specific alterations it should respond in writing with reasons to both the council and the applicant Subdivision Procedures Regulations Form 5 If a referral authority requires a plan to be significantly altered then it can either negotiate directly with the applicant or refuse consent and give reasons to both the council and the applicant Subdivision Procedures Regulations Form 6 s co Why must a plan be referred again at the certification stage Generally the purpose of a referral at the certification stage will be to enable relevant referral authorities to check that arrangements have been made to ensure any requirements on the planning permit will be properly complied with Plans will need to meet required standards and show required works and appropriate bonds commitments or other agreements have been made to secure compliance with the requirements as the development proceeds Key documents Planning and Environment Act 1987 Planning scheme provisions Clause 66 Referrals and notice provisions Subdivision Act 1988 Subdivision Procedures Regulations 2011 Subdivision Procedures Regulations Schedul
7. included in a relevant planning permit or placed in a section 173 agreement and recorded against the folio or placed in a Memorandum of Common Provisions and referred to within a restriction Building envelopes may also be recorded as a restriction on a plan of subdivision If recording by restriction the building envelopes must be incorporated by reference to the document they are stored with being either an off register document for example a planning permit or he application instrument associated with the plan In the case of the latter the applicant must attach the building envelope sheets to the instrument application of the plan of subdivision number the building envelope sheets separately to the plan numbering commencing at one 1 include a location notation within the building envelope restriction on the plan for example for building envelopes see instrument PS777777W Online processing of subdivision applications SPEAR Land Victoria is responsible for SPEAR Streamlined Planning through Electronic Applications and Referrals SPEAR is a statewide online interface between the parties in the subdivision approvals process and has been designed to work alongside the traditional paper based system It is a service offered free of charge by Land Victoria SPEAR began in 2004 and allows subdivision and planning applications to be lodged managed referred approved and tracked online It offers the be
8. marked out or pegged Under section 20A 1 of the Subdivision Act before a statement of compliance can be issued for a subdivision where works are not required written advice from a licensed surveyor must be provided to the council in a prescribed form Subdivision Procedures Regulations r 31 Form 13 to the effect that the roads reserves and where appropriate the lots common property and boundaries of the land in the subdivision have been marked out or defined The advice should include a notification of whether any substantial discrepancy exists between the actual boundaries and the boundaries shown on the certified plan Under section 20A 2 of the Subdivision Act where a subdivision proposal involves works requirements the notice from the licensed surveyor must be provided within one month of the completion of the required works For the purposes of marking out a subdivision section 20A 3 of the Subdivision Act defines works in the same way as it is defined under section 17 6 of the Subdivision Act and not as defined in section 3 of the Subdivision Act Td 7 4 When must a statement of compliance be issued A statement of compliance for a plan of subdivision must be issued by council as soon as possible after he applicant has given it the prescribed information and itis satisfied that a all requirements of and under Part 3 of the Subdivision Act and the Planning and Environment Act that re
9. must have the plan number when submitted to the council for certification Once registered the plan number will become the registered plan of subdivision number Some types of plans such as a plan under sections 32 32Al and 32AL of the Subdivision Act or for creation variation or removal of an easement or restriction will not have a plan number and will refer to the plan number of the plan proposed to be altered How long does council have to certify a plan Under regulation 7 of the Subdivision Procedures Regulations councils have a total of 49 days seven weeks in which to certify most plans of subdivision The exceptions are plans where no referrals are required which must be completed within 21 days procedural plans which require neither a planning permit nor a referral and must be dealt with within 14 days Within these time limits a council must under regulation 15 of the Subdivision Procedures Regulations send the plan to any relevant referral authority within seven days of receiving the plan if the plan is referred send a copy of Form 1 to the applicant endorsed with the date of receipt of the application and the names of the authorities to which the application has been referred How long does a referral authority have to respond to a plan A referral authority must respond to a council within 35 days from the date council received the application that is the date shown on Form 1 The 35 days incl
10. rera trier rbi nnn 8 24 Planning permits for subdivisions essere 8 25 Doallsubdivisions require a planning permit esses 9 2 6 Thepermitapplication 9 u me iere tnter reir i 10 2 Pernmtconditiois ao edet etc ptem PEDI ETE ORE SR a E 11 28 S cton 1 3 te ii eae ne a De eg 12 2 9 the planning permit and certification processes run 25 2222 12 3 REFERRAL OF APPLICATIONS amp PLANS sess nentes 14 3 1 OVENVIEW 14 3 2 When should an application and plans be referred s sss 14 3 3 Ref rral of a planning Permit ass sos cock REENERT FO Cn E a 14 9 4 Referral of application for Certifi Caton icut etie ci eii er HR RR se ter 15 3 55 When must a referral authority respond under the Planning and Environment Act 15 3 6 When must a referral authority respond under the Subdivision Act 16 3 Whatimusta referral authority le KEE 16 3 8 Why musta plan be referred again at the certification stage 17 4 CERTIFICATION OF PEANS3 da anus EELER 18 41 EE el KE 18 4 2 Can a plan be certified before or at the same time the planning permit is considered 18 49 Applying for certification l RET hile ih at ipu ED p tu RR 18 4 4 What ar
11. set out in section 6 1 of the Subdivision Act Can decisions under the Subdivision Act be appealed Yes Section 39 of the Subdivision Act provides for appeals to VCAT if a council fails or refuses to certify a plan approve an engineering plan or issue a statement of compliance An applicant may also appeal against the refusal of a referral authority to consent to the certification or amendment of a plan or approve an engineering plan In addition an applicant can appeal when either a council or a referral authority requires an alteration to a plan that the applicant feels is unreasonable 4 19 4 16 4 17 4 18 What is the life of a certified plan A plan certified under section 7 of the Subdivision Act will have a life of five years from its initial date of certification If it is not registered within that time the plan lapses It is important to note that the expiry of a planning permit for subdivision while normally linked to the certification of a plan for a subdivision is a separate matter Sections 68 1 and 3A of the Planning and Environment Act set out the circumstances in which planning permits for subdivision expire Council must keep a register Each council must keep a register of applications made to it under the Subdivision Act Details of the matters to be recorded are set out in regulation 33 of the Subdivision Procedures Regulations 2011 The register may be kept in conjunction with the register of p
12. the Subdivision Act as long as satisfactory arrangements are made to ensure compliance with the requirements matters such as open space or appropriate cash contributions can be agreed to be deferred to any stage in the development Key documents Subdivision Act 1988 Forms Form 13 Advice by licensed surveyor Form 14 Statement of Compliance for Stage No of a Staged Plan Form 15 Statement of compliance Further information Your guide to lodging a plan of subdivision Land Victoria em G 8 1 SR Procedural plans Regulation 5 of the Subdivision Procedures Regulations 2011 defines a procedural plan as any plan which does not require a planning permit or any plan which requires a planning permit but is exempt from the referral requirements of the planning scheme Whether a plan requires a planning permit or is exempted from referral requirements can be determined from the planning scheme in particular Clauses 62 04 and 66 01 Once it has been determined that a particular plan is a procedural plan different requirements apply under the Subdivision Procedures Regulations 2011 in relation to time in which councils may require alterations and when they must be certified Easements restrictions and reserves If a person wishes to create vary or remove easements covenants and other restrictions under sections 23 24A or 36 of the Subdivision Act a planning permit will normally be re
13. this scheme or by a condition of a planning permit There is no minimum lot area specified for the zone the area of the smaller lot is more than 230 square metres and the area of either lot is reduced by less than 30 square metres There is no minimum lot area specified for the zone the area of the smaller lot is 230 square metres or less and the area of either lot is reduced by less than five percent or by less than 30 square metres which ever is the lesser The new boundary coincides with a boundary fence that is more than five years old This does not apply if all the land is in one ownership 2 6 Asubdivision which realigns the common boundary between two lots if all the land is in one non urban zone the re subdivision does not allow the number of dwellings the whole of the land could be used for under this scheme to increase and any of the following apply Any lot that is reduced in area meets the minimum lot area and minimum dimensions if any specified for the zone This does not apply if the area of the smaller lot is limited by a provision of this scheme or by a condition of a planning permit There is no minimum lot area specified for the zone and no part of the boundary is moved more than 1 metre This does not apply if the area of the smaller lot would be less than the area specified by a condition of a planning permit There is no minimum lot area specified for the zone the new boundary coincides with the loc
14. to councils servicing agencies and referral authorities on the subdivision approvals system and their responsibilities under the Subdivision Act and the Planning and Environment Act 1987 Although the guide is principally focused on the approval process administered by councils it also seeks to assist people who are not familiar with the subdivision approvals system or the steps involved in seeking approval of a plan The guide The guide is divided into chapters that relate to the major steps and issues in the approval of plans These are Subdivision and the planning system referral of applications and plans Certification of plans owners corporations and common property requirements for works and open space Statements of compliance specific subdivision matters fees and other contributions Each chapter lists key legislative references and any relevant documents about the topics discussed 1 9 The subdivision approval process The Subdivision Act the Subdivision Procedures Regulations 2011 and Subdivision Registrar s Requirements Regulations 2011 set out the procedures and requirements for the approval of the following dealings in land Subdivision of land including buildings and airspace consolidation of land he creation variation or removal of an easement or restriction he creation of common property and some dealings with common property Under section 3 of the Subdivision Act l
15. Apart from requesting specific alterations or requesting further information a referral authority only has two options when finally considering the submitted plan It may either consent to the plan or refuse consent If it refuses consent or asks for specific alterations it must give written reasons in writing to both the council and the applicant Must a council certify a plan If a plan meets the conditions on the planning permit or the provisions of a planning scheme and the matters set out under section 6 1 of the Subdivision Act then subject to any other necessary checks and qualifications a council is required to certify the plan If a council considers that the plan does not meet the planning conditions stipulated in the planning permit or scheme or in some other way does not meet the requirements of section 6 1 of the Subdivision Act then it must refuse to certify the plan and give written reasons Planning permits often require permit applicants to do a range of things before a plan is certified Unless the permit conditions require something to be shown on the plan of subdivision or the plan itself is inconsistent with the plans endorsed under the permit council cannot withhold certification on this basis Certification is an administrative process The only discretion allowed to a council or referral authority is whether or not a plan conforms to the conditions of a permit or the provisions of a planning scheme or any other matter
16. Owners Corporations Act 2006 and Owners Corporations Regulations 2007 The Subdivision Act sets out specific requirements for plans of subdivision which affect common property including requirements for owners corporations to provide appropriate consent What is common property Section 3 of the Owners Corporation Act defines common property as land shown as common property on a plan of subdivision or a plan of strata or cluster subdivision Common property is not specifically defined under the Subdivision Act however it is included in the definition of land affected by an owners corporation under section 3 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 property for which the owners corporation is responsible Common property is held in the common ownership of lot owners in accordance with the lot entitlement and lot liability schedule included in the plan of subdivision Common property is owned by the relevant owners corporation on behalf of the lot owners 5 4 S What is an owners corporation Section 3 of the Owners Corporation Act defines an owners corporation as a body corporate which is incorporated by registration of a plan of subdivision or a plan of strata or cluster subdivision Its functions are primarily to administer and manage the common property including to repair and maintain th
17. Subdivision or Plan of Consolidation Form 9 Application to Register a Plan related to Acquisition by an Acquiring Authority Further information Growth Area Infrastructure Contribution GAIC Practitioner s Guide SPEAR website http www spear land vic gov au spear about index html More information about restrictions is available on www dpcd vic gov au planning theplanningsystem legislation and regulations restrictive covenants Me Ecs aniotherconiriutions 2 1 LA What fees may a council charge for subdivision proposals The Subdivision Fees Interim Regulations 2012 set fees that are payable to council for processing applications for certification supervision of works and checking engineering plans At the time of publishing the Regulations provide for the following Certification Application for Certification of a Plan of Subdivision Fee 100 per application plus 20 per lot Any other application for certification 100 Engineering plans For engineering plans prepared by council 3 5 per cent of the value of the estimated cost of constructing the works For checking engineering plans 0 75 per cent of the value of the estimated cost of constructing the works The prescribed fee for the supervision of works for the purposes of section 17 2 b of the Subdivision Act 2 5 per cent of the value of the estimated cost of constructing the works being supervised Can a council or r
18. and includes buildings and airspace If a person wishes to carry out any of the above dealings in Victoria they must do so using a plan approved and registered in accordance with the Subdivision Act and the Regulations Plan is defined under section 3 of the Subdivision Act and includes a plan of subdivision consolidation creation variation or removal of an easement or restriction Generally any person who wishes to have a plan registered must obtain a planning permit under the Planning and Environment Act 1987 unless the subdivision is exempt from requiring a planning permit prepare a plan in accordance with the Subdivision Act and the Regulations submit the plan to the council for certification obtain approvals for any engineering plans if required and complete any works obtain a statement of compliance from the council lodge the certified plan at Land Victoria for registration together with the statement of compliance and any prescribed information The subdivision approval process Obtain a planning permit Engineering plans and Statement of works Compliance Register the plan Certify the plan The diagrams contained in the appendices to this guide summarise the steps in the approval process and the statutory framework provided by the Planning and Environment Act and the Subdivision Act d TM 2 1 7 division amp the planning system Overview The Victorian pl
19. and overlays exempt applications for subdivision from the notice requirements of section 52 of the Planning and Environment Act Please refer to the relevant zone and overlay for notice requirements Permit applications for subdivisions must also be referred to referral authorities identified in the relevant planning scheme under section 55 of the Planning and Environment Act Referrals of planning applications can often occur concurrently with applications for certification This is discussed in more detail in the following chapter A permit applicant may apply to VCAT for a review if a responsible authority fails to make a decision within the prescribed time ofa decision by a responsible authority to refuse a permit application ofany conditions imposed on the permit An objector may also apply for review of a notice of decision to approve a permit application The prescribed time for determining an application is set out in regulation 31 of the Planning and Environment Regulations The Regulations also set out when the prescribed time starts and when it stops A summary of the planning permit application process is shown in Diagram P1 included in Appendix 1 Permit conditions A responsible authority can include conditions on a permit for subdivision Conditions must be reasonably related to the proposal and be necessary to deliver particular planning outcomes In some circumstances a council is required to impose conditions reque
20. anning system is established and administered under the Planning and Environment Act 1987 and plays an important role in the approval of plans of subdivision under the Subdivision Act This chapter explains the role of the planning system in approving plans of subdivision and its relationship with the Subdivision Act The role of the planning system Under the Subdivision Act subdivisions are controlled through the planning system Either a planning permit will be required or the planning scheme provisions must specifically allow for subdivision without a permit While the Subdivision Act principally focuses on the technical aspects of subdivision approvals the planning system ensures that land is used and developed in a sustainable manner having regard to a range of environmental social and economic considerations Planning schemes regulate the use and development of land Under the Planning and Environment Act development includes the subdivision or consolidation of land Before a subdivision proposal can proceed to be certified or registered under the Subdivision Act it will normally require a planning permit However some subdivisions are exempt from the requirement to obtain a planning permit Clause 62 04 identifies classes of subdivisions that are exempt from the requirement to obtain a planning permit under the planning scheme The role of council The role and functions of a council as a responsible authority in administering
21. ans must be sent Clause 66 01 1 lists conditions that must be included on a permit for any subdivision listed in Clause 66 01 that is not required to be referred Zones and overlays may also contain additional requirements for the referral of permit applications for subdivision An application for a planning permit for a subdivision must be referred to the relevant referral authority without delay under the provisions of section 55 of the Planning and Environment Act This is generally taken to mean within seven days or five working days of the receipt of the application 3 4 E An application or plan need not be referred to an authority under the provisions of either section 55 of the Planning and Environment Act or section 8 of the Subdivision Act if within three months of the application for planning permit or certification that authority has already considered the proposal and stated in writing that it does not object to the granting of a permit or to the certification of the plan When referring an application a council should distinguish between a referral under section 55 of the Planning and Environment Act or a notice under section 52 of the Planning and Environment Act Councils also need to be clear whether the referral is made under the Planning and Environment Act or under the Subdivision Act Referral of application for certification Clause 66 01 2 of planning schemes sets out circumstances in which an application for
22. ation of a fence that is more than 5 years old and no part of the boundary is moved more than 3 metres A permit is also generally not required to consolidate land unless a zone or overlay includes a specific permit trigger The permit application process To lodge a permit application for subdivision an applicant must complete a permit application form and prepare plans that accurately show the proposed subdivision and any other information required by the planning scheme The standard of plans and information required to determine a permit application for subdivision will vary according to the nature of the application and the particular zone and overlay which affect the land in question If a responsible authority considers that it does not have sufficient information to make a decision on the permit application it has the ability to request additional information under section 54 of the Planning and Environment Act If a request for further information is made within 28 days from the date the application was lodged the clock is stopped for the purposes of determining whether a council has failed to decide an application within the prescribed time and whether an application for review can be lodged at VCAT for failure to decide At a minimum the following information should be provided for any application for subdivision submitted for planning approval how the proposal is consistent with State and local planning policy the locatio
23. certification under the Subdivision Act must be referred These include when a referral is required by a permit issued under the planning scheme The plan must be referred to the relevant referral authority a plan creates varies or removes an easement or restriction likely to be of interest to a referral authority The plan must be referred to the relevant referral authority he only access to a lot on a plan is over Crown land and the Minister administering the Land Act 1958 has not consented or provision has not been made for a road to be reserved or proclaimed The plan must be referred to that Minister council considers the plan may affect existing sewerage water drainage or other works Applications for planning permits can occur concurrently with applications for certification However a plan cannot be certified before a planning permit is issued if a permit is required If planning and certification applications are processed concurrently then the prescribed times for decisions referrals and so on under the Planning and Environment Act apply rather than those under the Subdivision Act A plan submitted for certification under section 8 of the Subdivision Act for which a planning permit will often have been issued must be referred to relevant referral authorities within seven days of receipt of the plan as set out in Subdivision Procedures Regulations regulation 13 Councils are obliged to record the date of receipt of t
24. division WWW c uu d TM 3 1 Bd Overview Almost all plans of subdivision must be referred to a list of agencies referral authorities nominated in the planning scheme The purpose of the referral process is to provide authorities whose interests may be affected by a subdivision with a copy of the proposal and the opportunity to ensure that its responsibilities or assets are not adversely affected Referral takes place at the planning permit application stage and also if necessary at the certification stage This chapter explains the procedure and requirements for referrals When should an application and plans be referred Referrals take place either at the planning permit stage under section 55 of the Planning and Environment Act or at the certification stage under section 8 of the Subdivision Act Under section 8 1 of the Subdivision Act a council must refer a plan to a referral authority if it is required by the planning scheme or the permit or the authority is likely to have an interest in any easement or restriction which is to be created varied or removed unless the authority has agreed to the easement or restriction in connection with the planning scheme or permit Referral of a planning permit Clause 66 01 of planning schemes lists the types of subdivision applications that are required to be referred and the referral authorities to which a planning permit application and pl
25. e Commissioner of State Revenue or Gan application relating to the land made under section 201UC by the Growth Areas Authority or the Commissioner of State Revenue 2 9 8 Development Contributions Plan Overlay Some planning schemes usually those which cover growth areas may include a Development Contributions Plan Overlay The Overlay will set out contributions which must be paid in respect of any subdivision affected by the Development Contributions Plan usually on a per lot or hectare basis Development Contributions Plans are strategic documents that identify shared infrastructure which is needed by new development in an area and set out requirements for contributions towards this infrastructure and the mechanisms for collecting and managing the funds The Development Contributions Plan Overlay will require responsible authorities to include conditions on permits for payment of a contribution The timing for payment is normally prior to the issue of a statement of compliance for the subdivision Open space contributions Planning schemes can also specify requirements for the payment of contributions towards public open space at Clause 52 01 If no amount or rate is specified in a schedule to Clause 52 01 then councils may still require a contribution under section 18 of the Subdivision Act addressed in Chapter 6 These requirements are also implemented by permit conditions Such requirements must be met before the issue
26. e 1 Form 1 Application for certification of plan Form 5 Requirement for Alterations to Plan Form 6 Refusal of Consent by Referral Authority Further information Using Victoria s Planning System Chapter 3 Planning Permits EO d TM 4 1 4 2 4 3 What is certification Certification is the key administrative step in enabling a subdivision proposal to proceed Certification is undertaken by councils and ensures that any proposed plan of subdivision complies with the Subdivision Act the regulations and any requirements of the planning scheme or planning permit and any matter required under section 6 1 of the Subdivision Act A summary of the certification process is provided in diagram S1 in Appendix 2 Can a plan be certified before or at the same time the planning permit is considered If an applicant wishes to proceed with fully surveyed and detailed plans at the outset both the planning permit and certification procedures can be handled concurrently This will generally occur with developments which have already been permitted or constructed or where existing policies and guidelines are well established Under section 5 4 of the Subdivision Act a council can accept and consider a plan for certification even if a planning permit is required but has not been issued However a plan cannot be certified before a planning permit is issued or if a planning scheme does not provide for a subdivis
27. e common property and any related fixtures equipment or services How is an owners corporation created Under section 27 of the Subdivision Act an owners corporation is created upon registration of a plan of subdivision which provides for the creation of the owners corporation What must a plan specify to create an owners corporation If a plan of subdivision proposes to create common property it must also provide for the creation of an owners corporation To create an owners corporation section 27F of the Subdivision Act requires a plan to specify the details of lot entitlement and lot liability A plan must also specify the basis for the allocation of lot entitlement and lot liability he postal address for the service of notices on each owners corporation to be created as set out in regulation 15 1 a of the Subdivision Registrar s Requirements Regulations in the case of a limited owners corporation that is not limited to common property the details of the limitation as required in regulation 15 1 b of the Subdivision Registrar s Requirements Regulations The lot entitlement expresses the extent of the lot owner s interest in the common property The lot entitlement also equates to the voting entitlement The lot liability expresses the proportion of the administrative and general expenses of the owners corporation that the lot owner is obliged to pay Lot entitlement and lot liability are defined under s
28. e the plan numbers and how do they work sss 19 45 How long does council have to certify a plan 19 4 6 How long does a referral authority have to respond to a Dan 19 4 7 if a referral authority requires changes to a Dan 20 48 Can a plan be altered after it is submitted for certification 20 4 9 What if the requirements of a council and a referral authority conflict 20 4 10 alterations or more information be requested at the certification stage 20 4 11 What happens if a referral authority does not respond in the prescribed time 21 4 12 What options exist for a referral authority when considering plans submitted for certification 21 4 13 Must a council certify a lan 21 4 14 decisions under the Subdivision Act be appesale AAA 21 4 15 Whatis the life of a certified plana L a sse 22 416 Council must keepa registo sn erret ler repre rte teen FOROR E e e a 22 4 17 Certification of plans before commencement of works a 22 4 18 Consent of owner required for certification application 22 5 OWNERS CORPORATIONS amp COMMON 5 255 24 5 1 iIIud PME E c E es 24 5 2 What is commormproperty uses eee ense e pennis 24 5 3 Whatis an owners corporation A Nu uu Meere e
29. ection 3 of the Subdivision Act Section 27E of the Subdivision Act provides that a plan may be accompanied by a document specifying proposed rules for the owners corporation Section 193 of the Owners Corporations Act sets out that if no rules are attached to the plan then the model rules set out in the Owners Corporations Regulations will apply to the owners corporation 9 6 SN What are limited and unlimited owners corporations It is quite common for subdivisions of large multi storey buildings to contain more than one owners corporation Often the owners of lots in such developments will have different entitlements in respect of the use of particular facilities such as lifts car parks and pools To provide for the different entitlements and responsibilities of lot owners properties with multiple owners corporations will normally have an unlimited owners corporation which will have responsibility for the whole subdivision common property and one or more limited owners corporations which apply to particular parts of the building and have special ancillary functions which will apply to only some lots Multiple owners corporations might be used where a person purchases an apartment in a section of a development which does not have access to a particular facility such as a pool or car park In this case it is likely that the owner would be a member of the unlimited owners corporation which affects the whole property but no
30. ed An open space requirement may exceed five per cent where a council has undertaken strategic work to justify the inclusion of a higher rate in a schedule to Clause 52 01 of its planning scheme Any rate for open space contributions specified in a local planning scheme will override section 18 of the Subdivision Act In some areas a council may have incorporated a Development Contributions Plan into its planning scheme which can require contributions towards regional open space facilities 6 15 Can the open space contribution be used for purposes other than open space provision No Council must use land and funds received as part of any open space requirement to purchase or improve land for open space purposes Public open space may however be used for public purposes in accordance with the planning scheme and so some scope for varying public uses is possible Under section 20 of the Subdivision Act such open space may only be sold if a council makes provision to replace it Details of how land should be valued for open space contributions are set out in section 19 of the Subdivision Act Council is required to obtain a valuation of the land from a qualified valuer The valuation of the land is to occur within 12 months of the date of payment of the public open space contribution If the public open space contribution is not paid within 12 months the council can have the land revalued 6 16 Registrar of open space contributions As par
31. ed time or fails to give written reasons it is taken to have consented A referral authority or a council may request an applicant to provide more information about a plan within a time specified by the council or authority Under section 11A of the Subdivision Act a request for further information can only be made once Where a plan for certification is referred under section 8 of the Subdivision Act it should be accompanied by the prescribed form Subdivision Procedures Regulations Form 1 that is the application form on which the date of receipt of the application is shown The referral authority then has to respond to the council within 35 days of the date shown on the form which should generally give the authority about 28 days to check the submitted plan What must a referral authority do Under section 56 of the Planning and Environment Act a referral authority must consider every application for a planning permit referred to it and may tell the responsible authority that it either does not object to the granting of the permit or does not object if the permit is subject to conditions specified by the referral authority or objects to the granting of the permit on any specified grounds Where a referral authority objects to the granting of a permit the responsible authority must refuse the permit Where the referral authority requests conditions to be included in a permit the responsible authority must include the
32. eferral authority charge for the preparation or checking of plans Yes Under regulations 7 and 9 of the Subdivision Fees Interim Regulations 2012 a council may charge a fee of not more than 3 5 per cent of the estimated cost of works if it prepares an engineering plan for an applicant and up to 0 75 per cent of the estimated cost of works for checking plans prepared by or on behalf of the applicant The council s capacity to charge a fee is under section 15 of the Subdivision Act A referral authority through council may charge for the checking of plans Ta ZA 7 9 6 Can a council or referral authority charge for the supervision of works Yes A council or a referral authority may appoint a person to supervise any required works and charge an applicant for the supervision of works an amount not exceeding 2 5 per cent of the estimated value of the works as provided for under regulation 8 of the Subdivision Fees Interim Regulations Section 17 of the Subdivision Act enables a council or referral authority to charge a fee for the supervision of works Can a council waive or reduce a fee Yes Under regulation 10 of the Subdivision Fee Interim Regulations a council may waive or reduce any of the fees payable Regulation 10 sets out the circumstances where a council can waive or rebate payment of fees Other subdivision fees The Subdivision Fee Interim Regulations 2012 set fees for council functions under the Subdi
33. elating to a subdivision will where a planning permit is required be entered into under the provisions of section 173 of the Planning and Environment Act An agreement can also be made through section 17 2 c of the Subdivision Act An agreement under section 17 is usually made if no planning permit is required or when works required by the planning scheme or permit may be completed after registration All the provisions of Division 2 of Part 9 of the Planning and Environment Act relating to agreements also apply to agreements under section 17 of the Subdivision Act so there is little effective difference between the provisions controlling section 173 and section 6 9 6 6 5 7 6 8 17 agreements However where a section 17 agreement is not under seal then sections 174 1 179 and 181 to 183 of the Planning and Environment Act do not apply to the agreement Time to consider engineering plans for works requirements Where a works requirement has been made under the planning scheme or permit an applicant may be required to prepare an engineering plan to comply with the requirement Once the engineering plan has been submitted the council or referral authority has 30 days in which to consider the plan as specified under regulation 30 of the Subdivision Regulations It must then either approve the plan specify any changes required or refuse to approve the plan Can alterations be requested to an engineering plan Yes
34. ent of compliance be issued if no works are required Where works have not been required in respect to a plan of subdivision a notice is still required from a licensed surveyor notifying council that the subdivision has been marked out as required by section 20A of the Subdivision Act Once the notice is received from a surveyor a statement of compliance may be issued at the same time as the plan is certified How is a statement of compliance issued for stages of a staged subdivision Under section 21 2 of the Subdivision Act a statement of compliance for a staged subdivision must include the prescribed information for the whole subdivision This includes a plan of all the land the location of the various stages and full details of the lots in the first stage of the subdivision A statement of compliance for a staged subdivision cannot be given on the plan but must be provided on a separate form Subdivision Procedures Regulations Form 14 Subsequent stages will then require their own statements of compliance that place them within the context of the overall subdivision and deal in detail with the lots and required works for that stage Subdivision Procedures Regulations regulation 32 5 Form 14 Can requirements be tied to a certain stage of a subdivision Yes In some circumstances it may be appropriate to tie a particular requirement to a particular stage of the subdivision Under sections18 1B and 2 and 21 1 b ii of
35. ermit applications required to be kept under section 48 1 of the Planning and Environment Act Certification of plans before commencement of works The Subdivision Act allows for lots to be pre sold from a certified and in some cases uncertified plan before any work has necessarily commenced on the ground A council should be satisfied that all council and referral authority requirements for certification have been released by those bodies before certification occurs These may include a plan showing a reserve to vest in council on registration of a plan Before the issue of a statement of compliance a licensed land surveyor will be required to complete a form setting out that all structures exist as shown on the plan The statement of compliance rather than the certification of the plan is the time for council to ensure compliance with public work related conditions and requirements See Chapter 6 Requirements for works and open space Consent of owner required for certification application Under section 5 of the Subdivision Act any person may apply for certification with the written consent of the owner This must include all owners of all of the land being subdivided including all tenants in common and joint proprietors Any applicant signing in the capacity of an agent as allowed under the section 5 6 of the Subdivision Act must state that he she is signing as agent for the owner If more than one owner is involved that sig
36. he application on the prescribed application form for certification as set out in Subdivision Procedures Regulations regulation 6 Form 1 When must a referral authority respond under the Planning and Environment Act Where a planning application for a subdivision is referred under section 55 of the Planning and Environment Act the referral authority has 28 days from the receipt of the referral to respond However there is no requirement for a referral authority to respond If no response is received the responsible authority can go on to determine the application without the need to consider any of the referral authority s issues The referral 4 3 0 3 4 authority can within 21 days of receiving the referral tell the council it requires further information In which case it has a further 28 days from when the further information is received to respond In addition section 56 4 of the Planning and Environment Act provides for a referral authority to request the Minister to allow it more time to consider a proposal This is not a provision that should be used except in the most exceptional circumstances involving very complex applications When must a referral authority respond under the Subdivision Act The Subdivision Act is more specific about the requirement to respond to a referral of an application for certification Under section 9 3 of the Subdivision Act if the referral authority does not reply within the prescrib
37. ion of the type proposed If planning and certification applications are processed concurrently then the prescribed times for decisions referrals and so on under the Planning and Environment Act apply rather than those under the Subdivision Act Applying for certification The formal certification process begins when an application is made to the council on the prescribed form Subdivision Procedures Regulations Form 1 accompanied by the proposed plan of subdivision and the prescribed fee Plans accompanying an application for certification must comply with the Subdivision Act the Regulations and the provisions in a planning scheme or indicate how it is proposed to meet conditions on a planning permit A full list of matters that need to be complied with is set out in section 6 1 of the Subdivision Act Under section 6 2 of the Subdivision Act a council must refuse to certify a plan of subdivision if the conditions in section 6 1 are not met and give its reasons to the applicant in writing 4 4 4 5 4 6 What are the plan numbers and how do they work Under regulation 6 of the Subdivision Registrar s Requirements Regulations all plans of subdivision and plans of consolidation must have a plan number usually beginning with PS Plan numbers are obtained from Land Victoria by surveyors when they prepare plans of subdivision and they will be allocated before lodging any plans for certification All plans and related forms
38. iple plans maybe included in a section 32A Plan It should be noted that land in the parent plan that is not affected by an owners corporation does not need to be included in the 32A plan and can retain its original lot description and plan number The plan may also include additional land which is not affected by relevant owners corporations that is lots from within a parent owners corporation plan which are not affected by the owners corporation or any other land lots or Crown allotments external to the parent owners corporation plan New titles issued under section 32A are free from the following encumbrances indicated on the parent plan and relevant parent titles any caveat mortgage charge lease or sub lease easement under section 12 unless the easement affected the land before the registration of the previous registered plan Consent from all mortgagees of lots within the owners corporation to be dissolved must be supplied when the plan is lodged at Land Victoria Sis 9 9 9 10 What are unanimous and special resolutions Aunanimous resolution of an owners corporation is a resolution passed by the total lot entitlements of all the lots affected by the owners corporation as set out under section 95 of the Owners Corporations Act Aspecial resolution of an owners corporation is a resolution passed by 75 per cent of the total lot entitlements of all the lots affected by the owners corporation as set out in
39. late to public works have been met or b there is an agreement to secure compliance with those requirements The Subdivision Regulations do not currently prescribe any information that must accompany an application for a statement of compliance Section 21 sets out what is to be done in respect to the issue of a statement of compliance This includes the matters raised above but also includes additional considerations that should be taken into account before the issue of the statement of compliance including the payment of any required levies Agreements made under section 173 of the Planning and Environment Act or section 17 2 c of the Subdivision Act are often used to secure compliance with requirements for public works Public works is defined in section 3 of the Subdivision Act as he provision of roads reserves open spaces or services within a subdivision or fencing landscaping and road works outside the subdivision for roads reserves or public open space related to the subdivision or Works for sewerage drainage water supply power gas or telephone to connect the subdivision to the system serving properties outside it excluding works to connect any particular property to the system for the subdivision or prescribed works The definition of public works does not include common property areas which are to remain in private ownership and are not intended to be dedicated to general public use When can a statem
40. ments will normally need to be met These may include requirements to provide public works open space and to mark out lots on the land These requirements are usually identified at the planning permit stage in conditions on the permit and will often include requirements for plans to be approved and checked prior to the commencement of certain works How are works requirements placed on subdivision proposals If a responsible or referral authority wishes to place a condition or requirement on a permit in respect to either works or open space then the matters must be flagged at the planning stage either through provisions in the planning scheme or as conditions on a permit If appropriate conditions have not been put on a permit then unless the matters are specifically provided for in the planning scheme it is not possible for either the council or referral authority to place requirements on the proposal Conditions or agreements Where a requirement is to be placed on a permit it can be done either by placing a condition on a planning permit requiring that certain things be done to the satisfaction of the council or a referral authority or by entering into an agreement between the applicant and the council or referral authority The requirement to enter into an agreement often a section 173 agreement may be made through a condition of a permit Are agreements made under planning or subdivision legislation Usually an agreement r
41. n size of the site and nature of the proposal he number of proposed lots and means of access where appropriate adjoining uses lots and buildings any existing and proposed easements larger subdivisions will generally need to show the proposed basic road layout and how it relates to any existing approved development plans or structure plans for the area 21 he main natural or man made features of the site and any previous uses of the land that might affect its suitability for the proposed use levels and contour information may be required depending on the nature of the subdivision proposal adjacent and intended reserves or open space should be shown where appropriate For residential subdivisions Clause 56 01 of planning schemes sets out detailed information requirements which must accompany applications to subdivide land While some councils require additional information in specific circumstances for certain permit applications many detailed matters requiring attention during the development of a subdivision can be adequately covered by including conditions on the permit Any information requested should be proportionate to the scale and complexity of the application Once the responsible authority has sufficient information it may direct that public notification of the permit application be given to affected owners and occupiers of surrounding land under section 52 of the Planning and Environment Act Many zones
42. natory must note that he she is acting as agent for all of the owners Key documents Subdivision Act 1988 Subdivision Procedures Regulations 2011 Forms Form 1 Application for Certification of plan Form 2 Certification of plan by Council Form 3 Concurrent Certification and Statement of Compliance Form 5 Requirement for Alterations to Plan Form 6 Refusal of Consent by Referral Authority Form 7 Notice of Recommencement of Referral Time Form 8 Application to Amend Certified Plan Form 9 Requirement of Alterations to Plan Form 16 Refusal o NY E d TM 9 1 d d Overview With higher density living comes an increasing need for shared facilities including on site access ways and gardens which are usually located within areas identified and managed as common property Section 3 of the Subdivision Act defines owners corporations as a body corporate that is incorporated by registration of a Aplan of subdivision or b Aplan of strata subdivision or c Aplan of cluster subdivision Where a plan of subdivision proposes to create common property section 27A of the Subdivision Act requires one or more owners corporations to be created An owners corporation is incorporated and created by the registration of a plan of subdivision as set out in section 28 of the Subdivision Act Owners corporations provide for the ownership and management of common property and are regulated by the
43. nd notice provisions PARTICULAR PROVISIONS GENERAL PROVISIONS Fixed State Content Can contain Local Content DEFINITIONS ES INCORPORATED Wholly Local Content DOCUMENTS 2 4 Planning permits for subdivisions Planning schemes apply zones to land which will determine whether the land can be subdivided Overlays can also include controls relevant to subdivision including minimum lot sizes and other design requirements It is important to note that because a zone provides that an application may be made to subdivide land this does not mean that a permit will be granted Applications for a planning permit must be consistent with state regional and local objectives and policies identified in the planning scheme When considering a permit to subdivide land the responsible authority which in most cases is the council will consider any state and local planning policy implications of the subdivision proposal whether any proposed new lots can be appropriately serviced by utilities and other infrastructure 2 9 whether access to any new lots can be secured whether open space and other facilities have been provided for whether the land is capable of sustaining an increased intensity of use or development which would follow the subdivision whether the subdivision accords with any earlier approved permit how the subdivision relates to and affects existing buildings Generally if any lots shown on a propo
44. nefits of more streamlined processing by reducing requirements for paperwork and faster electronic referrals and communication between parties SPEAR can be used by all parties involved in the subdivision and planning processes including applicants councils and referral authorities Applicants can use SPEAR to lodge and manage their application and track its progress Councils can use SPEAR to receive manage refer and approve applications Referral authorities can use SPEAR to receive and respond to referrals Participation in SPEAR has been growing steadily since 2004 and many councils now use SPEAR to process applications for certification under the Subdivision Act and planning permit applications for subdivision and other land use and development If you wish to use SPEAR to lodge a planning permit for subdivision or for certification you will need to confirm that your council participates in SPEAR You can do this by visiting the SPEAR website that also contains detailed user guides about registering and using the SPEAR interface Key documents Subdivision Act 1988 Subdivision Registrar Requirements Regulations 2011 Victoria Planning Provisions Clause 52 02 Easements restrictions and reserves Forms Form 12 Application to Register a Plan of Creation Removal or Variation of an Easement or a Plan of Variation or Removal of a Condition in the Nature of an Easement in a Crown Grant not done as part of a Plan of
45. ng scheme If there is no requirement for open space specified in the planning scheme and council considers that there will be a need for more open space as a result of a subdivision it may require an open space contribution of up to five per cent on land subdivisions under section 18 of the Subdivision Act Any requirement for open space must be made by council as a responsible authority as a condition included in a planning permit for subdivision A council may require the applicant to set aside five per cent of all land intended to be used for residential industrial or commercial purposes as open space Alternatively council may require the applicant to pay or agree to pay a percentage of the land value not exceeding five per cent It may also require the applicant to do a combination of in kind contributions and payment provided the total contribution does not exceed five per cent of the land value The amount of contribution required for a particular subdivision must be determined on a case by case basis and as a question of fact Regardless of whether or not an amount has been set in the planning scheme a council can only make a requirement for an open space contribution if it considers that more open space is needed having regard to the issues set out at section 18 1A of the Subdivision Act These will include a consideration of the intensity of development proposed compared to the existing use the availability of open space in the a
46. nt process for achieving the final subdivision of land particularly where owners corporations are required Section 37 of the Subdivision Act provides for staged subdivisions and sets out the requirements for plans Staged subdivisions must be authorised by a planning permit If an applicant wishes to undertake a staged subdivision it is important that the permit application clearly seeks permission for a staged subdivision Where a planning scheme or permit allows a subdivision in stages the subdivision may occur as a series of separate subdivisions in accordance with the Subdivision Act or using the procedure set out in section 37 of the Act If a staged subdivision is to occur using section 37 of the Subdivision Act a plan known as the master plan must be submitted for certification under section 37 3 a with the 8 4 prescribed information under Subdivision Registrar s Requirements Regulations regulation 16 This includes details of 1015 roads reserves common property easements and restrictions in the first stage all the remaining land with the lot number or stage number as appropriate any permit or planning scheme provisions that regulate the development Under section 37 3 b plans for subsequent stages should be submitted with and contain the prescribed information under Subdivision Registrar s Requirements Regulations regulation 17 They should be numbered with the master plan number made available b
47. ntente tenen 25 54 Hovv is an owners corporation created EEN 25 5 5 What must a plan specify to create an owners corporation 25 5 6 X What are limited and unlimited owners Corporation 26 5 7 Altering a subdivision affected by an owners Corporation 26 5 8 What are unanimous and special resolutions 2222 a 28 5 9 When is a special resolution and a unanimous resolution required 28 5 10 Applications dealing with common property ENEE 28 6 REQUIREMENTS FOR WORKS amp OPEN SPACE esee sss s s 30 6 1 o D M has 30 6 2 How are works requirements placed on subdivision proposals 30 6 3 Conditions or agreemients scs cec t ee 000 30 6 4 Are agreements made under planning or subdivision legislation 222 30 6 5 Time to consider engineering plans for works requirements se 31 6 6 alterations be requested to an engineering plan sss 31 67 Approval of works plans tiro eic te REPRE led eR 31 68 onstrucition and maintenance Of WOIKS irit tari rete ds 31 6 9 Whatare el 32 6 10 When can construction of works for the subdivision take place 32 6 11 When do engineering works become the re
48. of a statement of compliance Open space contributions are addressed in more detail in Chapter 6 97 Wad Z8 8 08 671 58 1V2A 01 sjeaddy Vad v9 c9 ss Suol Ipuoo pue y u d Hujuuejd 3dIn9 435 LIV NOISIAIGENS Wad b 5 Vad zs s poinbaJ s ep FL uonpounou 2144 uoneoinou oiqnd si V3dS9 s jesnjey Jo e3noN 5 8 S EL AQ 4 Vad 2 9 9 py ss n sauoz HE 2 uogeuuojul uoneulojul g9 10 Fi qlin 3senbey a ggo 3 sauljapin6 uolsio q Ze ul S gt sAep gz ulnulluly o Ajday Vad 79 9 Z9 SS suonipuoo pue juued Buiuue d Vad SSS 9 Z 98 yad ses 99 uoneoidde vogue ipeunbo gt a SUOISIA01d pue Jluu d 1343H S Jeuajoy aow 10 weJbelp 511 0 199 SAEH AQ 5907 2910 suoljdwaxe pue ssa lluq EIER SNINNV 1d SHL sso oJg buluue d ay d JesnjeJ 10 suosea epi old Ay o esnjai sniy 3dIn9 435 LIV NOISIAIGENS 621 2 9 s uejd ay VIS n eds d tnb Sek S3A 7 Ga GER Ze h suoneJaj e 10 s nb y enm payshes si s nb mun sdo s au ON p lisiyes 51 s nb Wun sdojs eui ER 622 Wors suorjejayje 10 jsonboy ln pelinberjeusjel ies m mmm suoneioye 10 ysenboy 93 A ydl i yo sien L MA jueaydde y o aq snw ysanbay
49. orded in writing in the minutes of the meeting of the owners corporation Ultimately a council must be confident that the plan under consideration is the actual plan or effectively the same as the plan which has been consented to by the owners corporation It is up to the council to determine what it is prepared to accept Key documents Subdivision Act 1988 Subdivision Procedures Regulations 2011 Subdivision Registrar Requirements Regulations 2011 Owners Corporations Act 2006 Owners Corporations Regulations 2007 Forms Subdivision Registrar s Requirements Regulations 2011 Form 1 Application for Alteration of Lot Entitlement and Liability Form 2 Application for Removal of Restriction Form 3 Application by owners corporation for Alteration or Cancellation of Scheme of Development Form 4 Application by Registered Proprietor for Alteration or Cancellation of Scheme of Development Owners Corporation Information form Unlimited Owners Corporation Owners Corporation Information form Limited Owners Corporation Notification of making of owners corporations rules Further information Your Guide to Limited Owners Corporations Land Victoria Your Guide to Unlimited Owners Corporations Land Victoria Guide to Owners Corporations Consumer Affairs WWW c eww 6 1 6 2 6 3 6 4 Overview Before completing a subdivision and receiving a statement of compliance a number of require
50. orporation Create vary or remove any easement or restriction including an implied easement create roads or reserves Section 32AI of the Subdivision Act sets out very limited circumstances where a lot owner or owners may proceed to alter a subdivision affected by an owners corporation This includes circumstances where it does not alter the boundaries or area of existing common property alter the boundaries or lot entitlement or liability of lots not being consolidated subdivided or altered add an area of land that is more than 10 per cent Section 32A of the Subdivision Act allows for the total consolidation or re subdivision of all land in a plan that is affected by an owners corporation As in section 32 a unanimous resolution of all members of the owners corporation is required before proceeding If the land is mortgaged the mortgagee s consent will be needed Registration of a plan to consolidate or re subdivide under section 32A dissolves the previous body corporate therefore action under section 32 is not required The intention of section 32A is to enable total re subdivision or consolidation of land affected by an owners corporation to occur without the need to first dissolve the owners corporation under section 32 All the land affected by relevant owners corporations must be included in the plan as the relevant owners corporations will be dissolved upon registration Land affected by owners corporations from mult
51. quired under Clause 52 02 of the planning scheme Clause 52 02 Easements restrictions and reserves of all planning schemes requires a planning permit to create vary or remove an easement reserve or a restriction under the following sections of the Subdivision Act section 23 to create vary or remove an easement or restriction or vary or remove a condition in the nature of an easement in a Crown grant Section 24A reserves and other similar land section 36 to acquire or remove an easement or remove a right of way Clause 52 02 also lists circumstances where a planning permit is not required to create vary or remove an easement or restriction This includes the creation variation or removal of easements or restrictions by agreement prescription abandonment or otherwise by operation of law or the creation variation or removal of easements or restrictions by or under an Act other than the Subdivision Act and Where a person proceeds under section 6A 3 Subdivision Act in relation to the above 8 2 In addition a planning permit is not required to create an easement if it is proposed as part of a plan of subdivision or consolidation It is important to note that a planning scheme cannot restrict or prevent someone from proceeding under the Subdivision Act to vary or remove an easement or restriction by agreement prescription abandonment or otherwise by operation of law An easement or restriction can be remo
52. rea and any policies of the council for the provision of places of public resort and recreation 6 13 Are some subdivisions exempt from open space requirements Yes Section 18 8 of the Subdivision Act identifies subdivisions which are exempt from open space requirements These include a class of subdivision that is exempted from the public open space requirement by the planning scheme under Clause 52 01 a subdivision for the purpose of excising land to be transferred to a public authority council or a Minister in respect of a utility installation a subdivision into two lots where the council considers it unlikely that each lot will be further subdivided A public open space contribution may be made only once for any of the land to be subdivided An exception to this rule is when a building is subdivided and a public open space requirement was not made under section 569H of the Local Government Act 1958 or section 21A of the Building Control Act 1981 when the building was constructed 6 14 Can a council require more than five per cent as an open space requirement Under the Subdivision Act a council cannot seek an open space contribution which exceeds the five per cent limit The amount of contribution required must be determined on a case by case basis having regard to the issues set out at section 18 1A of the Subdivision Act In some circumstances this may mean that only an amount of less than five per cent can be justifi
53. section 96 of the Owners Corporations Act When is a special resolution and a unanimous resolution required Section 32 of the Subdivision Act specifies when a unanimous resolution is required Generally plans proposing a change to a subdivision affected by an owners corporation will require the unanimous resolution of the relevant owners corporation before it can be certified There are limited exceptions to this requirement provided under section 32Al of the Subdivision Act addressed above If in doubt the licensed surveyor preparing the plan can provide a statement that a unanimous resolution of the owners corporation is not required or preferably add a notation to the plan before certification to achieve a similar effect Where it is proposed to alter the purposes of an owners corporation or the purposes or functions of a limited owners corporation a special resolution of the unlimited owners corporation and the limited owners corporation will be required These changes are made by applying directly to the Registrar Land Victoria under section 27H of the Subdivision Act Applications dealing with common property Any application for certification which requires the unanimous resolution of the members of an owners corporation must be accompanied by a verified copy of the unanimous resolution of the owners corporation as set out under sections 6 1 i and 6 3 of the Subdivision Act All resolutions of an owners corporation must be rec
54. sed plan of subdivision are less than the lot area that is specified in the planning scheme the responsible authority cannot approve the permit application Do all subdivisions require a planning permit While most subdivisions require a planning permit there is a number of exemptions to the permit requirements of planning schemes These are set out in Clause 62 04 of planning schemes and include A subdivision by an authority acquiring the land which does not create an additional lot generally facilitated by section 35 of the Subdivision Act A subdivision by a public authority or utility service provider which does not create an additional lot other than for the sole purpose of a minor utility installation This does not apply if a permit is required to subdivide land under an overlay A subdivision by an authority acquiring the land which creates additional lots if the additional lots are severed parcels of land without legal access to an existing road and the additional lots are retained by the acquiring authority or sold to an abutting land owner on the condition that the lot be consolidated with abutting land A subdivision which realigns the common boundary between two lots if all the land is in one urban zone and any of the following apply Any lot that is reduced in area meets the minimum lot area and minimum dimensions if any specified for the zone This does not apply if the area of the smaller lot is limited by a provision of
55. sponsibility of the council or another agency 32 6 12 What open space requirements can be made under the Subdivision Act 32 6 13 Are some subdivisions exempt from open space requirements 33 6 14 Can a council require more than five per cent as an open space requirement 33 6 15 the open space contribution be used for purposes other than open space provision 34 6 16 Registrar of open space GREIS Tu u uuu ioo te e i ter reet et 34 7 STATEMENTS OF COMPLIANCE l u imd err trea EE 35 7 1 OVeIVIBW 1 eso as ub sab aa atipak DEOR pda ORC D ido ERU 35 7 2 When should a subdivision be marked out or pegged A 35 7 33 When must a statement of compliance be issued sss 36 7 4 When can a statement of compliance be issued if no works are required 36 7 5 Howisa statement of compliance issued for stages of a staged subdivision 36 7 6 Can requirements be tied to a certain stage of a subdivision sss 37 8 SPECIFIC SUBDIVISION MATTERS 38 8 1 Procedural plans c cie itte iter mcn s n Rusi 38 82 Easemeris restrictions and reserves riot iih iet te a e ie E 38 8 3 How do staged subdivisions work AA 39 8 4 Subdivision Act and the land acquisition process sss 40
56. sted by referral authorities 2 0 2 Referral authorities will often direct responsible authorities to include conditions on permits that may require the land owner to enter into agreements with utility providers for the provision of services or for the further referral of plans prior to certification Responsible authorities may also include requirements for the land owner or permit applicant to undertake specific actions or to submit further documents such as amended plans for approval or endorsement All relevant issues must be covered by an appropriate condition in the planning permit because there is no second chance to make further requirements at the certification stage The timing specified for these requirements may be before the certification of the plan is issued or prior to the issue of the statement of compliance for the subdivision While the failure to comply with such requirements may give rise to non compliance with the particular planning permit councils can only withhold certification or statements of compliance in the circumstances prescribed under the Subdivision Act This is addressed in the Chapter 4 Section 173 agreements A responsible authority may enter into an agreement with a landowner pursuant to section 173 of the Planning and Environment Act to bind the owner in respect of the future use and development of the land Such agreements are typically used where planning issues need to be addressed beyond the e
57. submitted by an acquiring authority can do anything that is allowed to be done by a plan under the Subdivision Act provided relevant consents are provided For example a single plan submitted under this section can consolidate the land being acquired merge existing easements which are in favour of the acquiring authority include land which is registered or vested in the acquiring authority and include land that is owned by other parties from whom the land is being acquired to create a consolidated lot and road parcels 8 9 8 6 Part 3 Statutory requirements for plans of the Subdivision Act addressed in chapter 3 of this guide does not apply to plans submitted by an acquiring authority under section 35 of the Subdivision Act if the plan does not create lots additional to those required for the purposes of public acquisition This includes the need for a Statement of Compliance An acquiring authority may also submit a plan for certification and registration under section 35 8 of the Subdivision Act for any land vested in it or registered in its name Building envelopes Building envelopes are sometimes used to constrain the construction of buildings on lots in order to achieve particular planning outcomes The need for building envelopes usually arises through the subdivision of land and in the creation of new lots allowing land to be more intensively developed Building envelopes may be created in a number of ways They may be
58. t a member of the limited owners corporation which manages the facilities in the other areas of the complex Another frequent application of multiple owners corporations is in mixed use developments where different areas of common property are used by residential and retail uses At the time of creation of an owners corporation under a plan of subdivision the plan will need to specify whether an owners corporation is to be limited as set out in section 27C of the Subdivision Act A plan may also be accompanied by a document which sets out the functions or obligations of the limited owners corporation as required under section 27C 4 Altering a subdivision affected by an owners corporation Section 32 of the Subdivision Act set outs the powers to alter a subdivision affected by an owners corporation Changes to a subdivision affected by an owners corporation will require the unanimous resolution of the owners corporation These changes include to dispose of or purchase any land vested in the owners corporation alter the boundaries of any land affected by the owners corporation increase or reduce the number of lots affected by the owners corporation Create new lots or new common property Create and name an owners corporation and specify the land to be land affected by that new owners corporation and specify lot entitlement and lot liability in relation to that owners corporation dissolve itself or merge with another owners c
59. t of the register of subdivision applications regulations 33 c and f of the Subdivision Procedures Regulations 2011 council is required to include whether a public open space requirement has been made or the subdivision application is exempt from public open space requirements and the reason for the exemption Key documents Subdivision Act 1988 Subdivision Procedures Regulations 2011 Victoria Planning Provisions Clause 52 01 Public open space contribution and subdivision Ta SE d T Jal 7 2 atements of compliance Overview Under section 21 1 of the Subdivision Act an applicant receives a statement of compliance from a council once all public works and open space requirements placed on a proposal under the planning system or under the Subdivision Act have been satisfied or adequate arrangements have been made to secure compliance with those requirements A statement of compliance cannot be issued before a plan is certified and it must be obtained before a plan can be registered with Land Victoria A statement of compliance enables a council to ensure compliance with any agreements and conditions placed on any planning permit relating to public works and open space provision The process for obtaining a statement of compliance is summarised in Diagram S3 in Appendix 4 Plans specified under section 14 of the Subdivision Act would not require a statement of compliance When should a subdivision be
60. the planning scheme under the Planning and Environment Act are different to its role and functions under the Subdivision Act The range of issues and scope of discretion in determining planning permit applications can be quite broad under the Planning and Environment Act The matters to be considered by council in deciding whether to certify a plan under the Subdivision Act is much narrower and often limited to matters of technical compliance rather than matters of policy under the Planning and Environment Act A council must be aware of this distinction in carrying out its functions under the planning and subdivision legislation 2 3 Operation of planning schemes There are several sections in the planning scheme that will inform the policy requirements and decisions about the subdivision of land Victoria Planning Provisions and subdivision STATE POLICY CONSIDERATIONS STATE LOCAL POLICY CONSIDERATIONS PLANNING FRAMEWORK Permit triggers for subdivisions and minimum lot sizes LOCAL PLANNING Requirements for subdivisions and considerations POLICY Clause 45 06 Development Contributions Plan Overlays FRAMEVVORK _ Clause 52 01 Public open space contribution and subdivision Clause 52 02 Easements restrictions and reserves Clause 56 Residential subdiviison Clause 62 Uses buildings works OVERLAYS subdivision and demolitions not requiring a permit Clause 66 Referrals a
61. tion published in the Government Gazette Can alterations or more information be requested at the certification stage A council or a referral authority may request further information about a plan only once if it decides it needs that information before it can certify a plan Councils should take care not to confuse their powers to request further information under section 11A with their powers under section 10 of the Subdivision Act to request specific alterations to a plan to make it suitable for certification A council should decide as soon as practicable whether it will require changes to a plan for certification Where there is a possibility of a conflict occurring between the requirements of the council and a referral authority the council may need to wait for the referral authority s advice A council has up to 42 days seven days after the referral authority must respond in which to require an alteration to a plan Once an alteration has been requested the clock stops until the altered plan is received 4 11 4 12 4 13 4 14 What happens if a referral authority does not respond in the prescribed time In the case of both plans and amendments to plans submitted for certification under section 11 4 of the Subdivision Act if a referral authority does not respond within the times set out in the regulations it consents What options exist for a referral authority when considering plans submitted for certification
62. udes the 7 day period council has to refer the application to the referral authority The referral authority will usually have 28 days in which to review the proposal in respect to any requirements placed on the planning permit or incorporated into the planning scheme 4 7 4 8 4 9 4 10 What if a referral authority requires changes to a plan If a referral authority requires a specific change to the plan before it will consent to certification it must tell the council within 35 days of the date on Form 1 The clock will then stop until the altered plan is received by the council A referral authority may only require a plan to be changed once Can a plan be altered after it is submitted for certification Yes Sections 71 72 and 73 of the Planning and Environment Act enable a planning permit that has been issued to be amended Section 11 and regulation 8 of the Subdivision Act enable plans that have been submitted for certification to be amended A council may request alterations to applications for planning permits under section 50 of the Planning and Environment Act and plans submitted for certification under section 10 of the Subdivision Act What if the requirements of a council and a referral authority conflict Under section 10 6 of the Subdivision Act a council may not make or agree to any requirement or alteration that is inconsistent with a requirement of a referral authority or conflicts with any notice of acquisi
63. ved or varied by agreement if all of the persons with interests in the land including the owners of land benefited by the easement or restriction consent to the variation or removal without the need of a planning permit A restriction including covenants can also be removed or varied through section 84 of the Property Law Act 1958 aplanning scheme amendment aplanning permit Where a development requires the creation removal or variation of an easement this should be indicated at the planning permit stage and if appropriate a condition should be placed on a permit to secure the change at the certification stage When the plan of subdivision is registered any new or revised easements take effect immediately and any removed easements cease to exist Where a planning scheme is amended to direct the creation variation or removal of any easements or rights the council or any person benefiting from the changes must apply to the council for certification of a plan and lodge a certified plan at Land Victoria for registration How do staged subdivisions work Often the subdivision of a large parcel of land is dealt with over a number of stages until the final subdivision layout is achieved This is particularly the case in circumstances where the land is required to be initially subdivided into larger super lots for further subdivision at a later date In these circumstances staged subdivisions can provide a more flexible and efficie
64. vision Act The Subdivision Registrar s Fees Regulations 2004 set fees associated with the registration of the plans including lodging documents and other fees payable to the Registrar of Titles Growth Areas Infrastructure Contributions Recent amendments have been made to the Planning and Environment Act under Part 9B and the Subdivision Act to implement the Growth Areas Infrastructure Contribution GAIC The GAIC applies a per hectare infrastructure contribution rate to land which was brought into Melbourne s Urban Growth Boundary in and after 2005 Different rates apply depending on when the land was brought into the Urban Growth Boundary Liability to pay the GAIC is triggered by the first property transaction on affected land this being either the subdivision of the land application for a building permit or a dutiable transaction transfer of land Where the subdivision of land in a contribution area is the first GAIC event the GAIC is payable before the issue of a statement of compliance Subsequent subdivisions of the land will not incur a further requirement to pay a contribution Land affected by the GAIC will have a recording made on its title by the Registrar which indicates that a GAIC may be payable Under section 22 1 g of the Subdivision Act an application to register a plan of subdivision for land affected by the GAIC must be accompanied by anotice issued under section 201SZG of the Planning and Environment Act by th
65. xpiry of a subdivision permit Once executed a section 173 agreement is normally registered on title to the land If registered the agreement will also bind future land owners including the owners of any new lots created by a subdivision Such agreements are often required by a permit condition however they can also be voluntarily entered into by permit applicants prior to any permits being issued and outside the permit application process Section 173 agreements can also be used to defer obligations for works or contributions This is addressed in the following chapters of this guide Can the planning permit and certification processes run together Yes Where a planning permit application for subdivision includes a plan of a suitable standard for certification then the planning permit and certification processes may run in parallel This is explained in more detail in Chapter 4 Key documents Planning and Environment Act 1987 Planning scheme Clause 56 Residential subdivision Clause 62 Use buildings works subdivisions and demolition not requiring a permit Clause 66 Referrals and notice provisions Forms For planning permit application forms go to the relevant council website or www dpcd vic gov au planningapplicationform Further information Using Victoria s Planning System Chapter 3 Planning Permits Planning practice note PN40 Using the residential subdivision provisions Clause 56 Residential sub
66. y the Registrar show the lots and any roads reserves common property easements and restrictions in that stage and which land if any is residual show any residual land with the lot number or stage number as appropriate Show the lots for the second or subsequent stages using different lot numbers from those contained in previous stages Plans within a staged development can subject to certain provisions amend the master plan or a plan for an earlier stage in the overall subdivision More information about staged subdivisions is provided in chapter 7 The Subdivision Act and the land acquisition process Where land is being publicly acquired whether by agreement or by compulsory process and subdivision is required section 35 of the Subdivision Act allows the process of subdivision and reconsolidation of residual pieces of land to be managed by a single plan The applicant must be the acquiring authority as defined under section 3 1 of the Subdivision Act and the plan must be lodged for certification with council and then with Land Victoria for registration Under section 3 1 of the Subdivision Act an acquiring authority means any person or body of persons authorised to acquire land compulsorily Where a new road widening or a pipeline requires a number of parcels of land to be purchased with some residual parcels being consolidated with other adjacent owners the whole process can be handled with a single plan Aplan

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