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  • Writer's pictureDavid

Constructing a park and dedicating to Council - the process

In a previous post, I discussed the process of constructing a road and dedicating it to Council. There are many similarities between this process and that of a park. The main difference is that a “title” is generally created for a park. The construction of parks and their transfer to Council can often be one of the most challenging tasks for a developer due to the fact that parks can often be seen as maintenance "liabilities" rather than "assets".

New parks generally require a Development Application with the Council. Information that would be required a DA stage includes concept plans of proposed landscaping, equipment etc. and details of the environmental impact of the proposed development.

A Construction Certificate/Subdivision Works Certificate is then required at which stage detailed construction drawings are certified. This can be issued by either Council or a private certifier. If the park is ultimately intended to be dedicated to Council, I would not recommend appointing a private certifier to issue this certificate, unless Council agrees to the appointment. If Council is not happy with details of the approval issued by the certifier or feel that they should have been given the opportunity to issue the certificate, there is the potential for problems to arise later during construction or when Council needs to accept transfer of the park.

A Principal Certifying Authority is then appointed which will perform inspections during construction. If the park involves subdivision, then Council legally must be the principal certifying authority. Again, even if the park does not involve subdivision and it is theoretically possible to appoint a private certifier, I would not recommend this unless Council agrees to the appointment. The number of Council inspections during the construction of a park is likely to be less than that involved in the construction of a road and may relate to items such as the construction of footpaths. Council may require compliance certificates for inspection items that are outside of its main areas of expertise eg. structural engineering of retaining walls, play equipment.

Once all works have been completed, it will be necessary to have a final walkover of the park with Council as the principal certifying authority and the future owner of the park. Often this will involve representatives from Council’s parks/maintenance sections as well as the representative of Council performing principal certifying authority inspections. If there is a building constructed as part of the park, this will require an Occupation Certificate as well. If the park is being constructed as part of a subdivision, then a Subdivision Certificate is required. Often, Council will not accept transfer of a new park unless the condition is "perfect" so it is important to ensure that all necessary items have been completed before bringing Council out for a final inspection.

Once Council has inspected the park and agrees to accept transfer, there are two main ways that this can occur. If the park is already on its own title, then a transfer form can be produced which is signed by both parties (the developer and Council). The developer presents to certificate of title for the park with the signed transfer form to NSW Land Registry Services. The title to the park then transfers to the Council.

An alternative way for a park to be dedicated to Council (especially where it is being constructed as part of a broader subdivision) is to denote it as a public reserve on the linen plan for the subdivision with a notation that ownership is to transfer to Council. Once Council issues a Subdivision Certificate and the linen plan is registered by NSW Land Registry Services, then the new title produced is transferred to Council.

Once Council takes ownership of the park, they may take responsibility for all maintenance/landscaping instantly or there may be a transitional period where the developer continues to maintain for a period of 12 months or so. There may also be a defects liability period that the developer takes responsibility for. This depends on agreements made between Council and the developer.

Sometimes a sale of a park to a Council may occur. This could occur where there is not a voluntary planning agreement between the Council and the developer, or where a developer is constructing a park but has no section 7.11/7.12 contribution liabilities with the Council. A park could also be constructed under a “works in kind” agreement with Council where it is constructed in return for a reduction in contribution liabilities. In these cases, there will normally be a contract/agreement signed between Council and the developer.

For enquiries regarding the development and dedication of parks, feel free to get in contact.

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