A Basic Guide to Subdivision
By Owen Lai, Solicitor, Lovegrove Smith & Cotton
February 2014
Subdivision involves ‘splitting’ the land into separate parcels known as lots. The local council regulates the process pursuant to the Subdivision Act 1988 (“the Act”). It is important to note at the outset that there may be differences in planning codes and procedures and fees between Councils and also between local States and Territories.
Section 6 of the Act prescribes that the Council must certify a plan within a certain timeframe if the plan complies with matters listed in section 6(1)(a) – (k). A plan includes a subdivision. By way of illustration these matters include but are not limited to consideration of the planning scheme, compliance with the Act and regulations thereunder and compliance with any requisite permits. These are some of the matters the Council will turn its mind to in considering registration of a subdivision.
The process of a subdivision is more often than not complicated and stressful to landowners. As alluded to earlier, varying Councils may adopt varying procedures and planning codes in ‘controlling’ the subdivision process. This article will in the most simplistic form break down the process in general terms to at least provide landowners with a basic foundation.
Planning Scheme Requirements
To start any subdivision landowners are required to submit to the local council a plan of subdivision. Each municipality has its own planning scheme and the proposed plan must comply with the applicable planning scheme. In consideration of the planning scheme and the zoning contained in the said scheme, the Council will determine whether a planning permit is required.
The council must also consider objections to the proposed development which it receives.
Referral Authorities
Whether or not a planning permit is required the council or the applicant will need to refer the plan to the authorities listed in the planning scheme. These authorities include water, gas, electricity, phone and VicRoads. These authorities must notify their approval or rejection of the planning application and they must contain their conditions for approval.
Endorsed Plan
At this stage the relevant authority either issues a planning permit with a plan attached or approves the plan which meets the requirement of the referral authorities under the planning scheme.
Note that the Council and referral authority may place a condition or requirement on a planning permit. Where a condition is placed on a permit it can be done by (a) informally requiring certain things to be done by the applicant with respect to the proposed plan and/or (b) require the applicant to enter into a section 173 Agreement under the Planning and Environment Act 1987 (“the PEA”) with the Council or a referral authority. The section 173 Agreement can prohibit certain use or development of the land, prevent further subdivision of the land or in the broadest of terms, contain any matter intended to achieve or advance the planning objectives in Victoria. Landowners should be aware that these section 173 agreements are registered on the title and will bind future purchasers of the property.
Certification of the Plan of Subdivision
Certification is an administrative process. However, the Council is allowed some discretion to determine whether or not a plan conforms to the conditions on a planning permit or the provisions of a planning scheme. This stage may be a minefield for some applicants. Should the applicant disagree with a council decision in relation to the certification then the applicant has the right to appeal to the Victorian Civil and Administrative Tribunal (‘VCAT’) pursuant to the PEA.
Registration of the Plan of Subdivision
Council will provide a statement of compliance once the Council certifies the plan. This statement will be required for registration of the certified plan at the land registry. The Registrar of Titles will then issue new titles.
A prudent course of action to take before engaging in any subdivision is to seek assistance from an experienced solicitor. This will allow your subdivision application to proceed expeditiously.
By Owen Lai, Solicitor, Lovegrove Smith & Cotton
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© Lovegrove Solicitor’s 2014
