In NSW, our Torrens/Strata Title system of land registration involves the State Government maintaining a centralised register of land holdings. The process currently managed by an organisation called NSW Land Registry Services, the operation of which has been outsourced to a private consortium.
One of the final steps of subdividing land is to register the plan of subdivision with NSW Land Registry Services. There are many steps involved in subdividing land which one must generally go through before getting to this stage and one of these is to obtain a Subdivision Certificate.
Part 23 of the Conveyancing Act 1919 requires that a plan of subdivision lodged with NSW Land Registry Services must be accompanied by an authorised subdivision certificate. An exception is given for plan of subdivision that is filed or lodged by or on behalf of the Crown in right of the Commonwealth
While a Development Application can often be described as a "planning approval", a Subdivision Certificate, while integrated into the planning system and Environmental Planning and Assessment Act 1979 can be seen as part of the development certification system. There was a time when these were known as "Town Clerk's Certificates" and contained within the Local Government Act, although the introduction of Subdivision Certificates was part of a suite of reforms coinciding with the introduction of private certification in NSW approximately 20 years ago.
A Subdivision Certificate is defined in the Environmental Planning and Assessment Act 1979 as "a certificate that authorises the registration of a plan of subdivision under Part 23 of the Conveyancing Act 1919. When issued, a subdivision certificate is taken to be part of the development consent that authorised the carrying out of the subdivision".
A Subdivision Certificate is similar to an Occupation Certificate for a building, in that it is typically issued towards the end of the development process, at a time when works are complete or substantially complete. An Occupation Certificate certifies that a building is ready for Occupation whereas a Subdivision Certificate certifies that new lots are ready to be registered.
In terms of process, a typical subdivision that also involves construction works (such as a new road or interallotment drainage might proceed as follows:
- Obtain Development Consent from consent authority (normally the local Council)
- Obtain a Subdivision Works Certificate from Council or private certifier
- Appoint Principal Certifier (normally must be the local Council)
- Proceed with works in accordance with consent
- Obtain Subdivision Certificate from Principal Certifier (normally will be the local Council)
- Lodge plan of subdivision with NSW Land Registry Services
The development consent will normally specify conditions of approval that must be satisfied at each of the above stages. In order for a subdivision certificate to be issued, it is common for the principal certifier/Council to require compliance certificates from utilities and also certification/testing that the works have been constructed in accordance with relevant standards. The certifier will also typically conduct regular inspections during the construction stage.
The process of obtaining a Subdivision Certificate normally involves the developer lodging their "linen plan" (formal plan of subdivision prepared by a surveyor) and Council signing the relevant section of the plan.
Currently, the vast majority of Subdivision Certificates are required to be issued by the local Council. The Environmental Planning and Assessment Act does provide that they may be issued by a private certifier where authorised by an environmental planning instrument (SEPP or LEP). There are currently some limited examples of where this may occur contained within State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (limited strata subdivision of existing structures and torrens title subdivision of existing complying development-approved structures). In these examples, a Subdivision Certificate would be issued after the approval of a Complying Development Certificate rather than a DA.
As can be seen, private certification has not extended to subdivision works the same way as it has to buildings. Originally this was proposed when the private certification system was introduced, although many in local government objected, since after a subdivision, the local Council typically takes ownership of assets created (roads and stormwater drainage). The requirement to appoint Council as principal certifier and to issue a Subdivision Certificate gives the Council an opportunity to inspect these assets before taking ownership of them and their long-term maintenance liabilities.
The Crown (ie. the government of NSW) also has the power to issue Subdivision Certificates and act as principal certifier for its own work and that of its agencies. This opportunity is taken up by some agencies, whereas others tend to appoint the local Council to carry out this work.
For any enquiries regarding subdivision, feel free to get in contact.