Tasmania: Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas)

Local Government (Building and Miscellaneous Provisions) Act 1993 An Act to provide for matters relating to building and for miscellaneous matters relating to local government [Royal Assent 23 December 1993] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Local Government (Building and Miscellaneous Provisions) Act 1993 . 2. Commencement This Act commences on a day or days to be proclaimed. 3. Interpretation generally (1) In this Act – building area means an area of land that, immediately before the commencement of section 5 of and Schedule 1 to the Building (Consequential Amendments) Act 2003 , was – (a) an urban building area; or (b) a changing building area; or (c) a country building area – within the meaning of section 43 of this Act as in force immediately before that commencement; Commission means the Tasmanian Planning Commission established under the Tasmanian Planning Commission Act 1997 ; council means a council within the meaning of the Local Government Act 1993 ; councillor means a councillor within the meaning of the Local Government Act 1993 ; Director means the Director of Local Government appointed under the Local Government Act 1993 ; elector means a person entitled to vote under the Local Government Act 1993 ; erect includes construct and commence, carry on or complete; expenses in relation to a council includes – (a) the salaries and wages of its employees; and (b) the compensation, purchase money or rent payable for land; and (c) the cost of materials used, and the consideration payable under any contract, in connection with any work, undertaking or duty which the council is empowered or required to undertake under this Act; and (d) the reasonable costs and outgoings incurred by the council in enforcing this Act or in suing for, or recovering, any charges or expenses; general manager means a person appointed as such under the Local Government Act 1993 ; highway does not include a highway over water other than bridges and fords; inhabit in relation to a building means to live, work, sleep, eat or cook in the building; legal practitioner means an Australian legal practitioner; municipal area means a municipal area within the meaning of the Local Government Act 1993 ; private in relation to a way, means not subject to use by the public as of right; public in relation to a way, means subject to use by the public as of right; public stormwater system has the same meaning as in the Urban Drainage Act 2013; Recorder of Titles means the person appointed as such under the Land Titles Act 1980 ; Register has the same meaning as it has in the Land Titles Act 1980 ; road means – (a) any land subject to a right of way for wheeled vehicles; and (b) any land which obviously appears to be regularly used for the passage of wheeled vehicles; and (c) any land made ready to be regularly so used, together with any adjoining path; State highway means a State highway or subsidiary road within the meaning of the Roads and Jetties Act 1935 ; street means – (a) a road with building continuous or nearly continuous on both sides or with the adjoining lands laid out for that purpose; and (b) a terrace being a road with such building or land so laid out on only one side; and (c) a cul-de-sac being a rectangular, polygonal or rounded space containing a road and with the perimeter so built on or so laid out; way means – (a) any land over which anyone other than the person in possession, his or her family, servants, customers or callers, may of right pass and repass with or without animals and vehicles; and (b) any land which obviously appears to be regularly used for the passage of persons with or without animals or vehicles; and (c) any land made ready to be so regularly used. (2) If a path would be adjoining but for a nature strip, the path is taken to be adjoining and the nature strip is taken to be part of the road. (3) A railway or tramway, other than a street tramway, is not a road except where it crosses a road on the same level or, in running along a road, it is not separated from the road by any fence, cattle-guard, hedge, ditch or wall. 4. Administration of Act Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 – (a) the administration of this Act is assigned to the Minister for Local Government; and (b) the Department responsible to the Minister for Local Government in relation to the administration of this Act is the Department of Environment and Land Management. PART 2 - . . . . . . . . Division 1 - . . . . . . . . 5. . . . . . . . . 6. . . . . . . . . 7. . . . . . . . . Division 2 - . . . . . . . . 8. . . . . . . . . 9. . . . . . . . . 10. . . . . . . . . 11. . . . . . . . . 12. . . . . . . . . 13. . . . . . . . . 14. . . . . . . . . Division 3 - . . . . . . . . 15. . . . . . . . . 16. . . . . . . . . 17. . . . . . . . . 18. . . . . . . . . 19. . . . . . . . . 20. . . . . . . . . 21. . . . . . . . . 22. . . . . . . . . 23. . . . . . . . . Division 4 - . . . . . . . . 24. . . . . . . . . 25. . . . . . . . . 26. . . . . . . . . 27. . . . . . . . . 28. . . . . . . . . Division 5 - . . . . . . . . 29. . . . . . . . . 30. . . . . . . . . 31. . . . . . . . . 32. . . . . . . . . 33. . . . . . . . . 34. . . . . . . . . 35. . . . . . . . . 35A. . . . . . . . . Division 6 - . . . . . . . . 36. . . . . . . . . 37. . . . . . . . . 38. . . . . . . . . 39. . . . . . . . . 40. . . . . . . . . 41. . . . . . . . . 42. . . . . . . . . 43. . . . . . . . . Division 7 - . . . . . . . . 44. . . . . . . . . 45. . . . . . . . . 46. . . . . . . . . 47. . . . . . . . . 48. . . . . . . . . 49. . . . . . . . . 50. . . . . . . . . 51. . . . . . . . . 52. . . . . . . . . 53. . . . . . . . . 54. . . . . . . . . Division 8 - . . . . . . . . 55. . . . . . . . . 56. . . . . . . . . 57. . . . . . . . . 58. . . . . . . . . 59. . . . . . . . . 60. . . . . . . . . 61. . . . . . . . . 62. . . . . . . . . 63. . . . . . . . . Division 9 - . . . . . . . . 64. . . . . . . . . 65. . . . . . . . . 66. . . . . . . . . Division 10 - . . . . . . . . 67. . . . . . . . . 68. . . . . . . . . 69. . . . . . . . . 70. . . . . . . . . 71. . . . . . . . . 72. . . . . . . . . 73. . . . . . . . . 74. . . . . . . . . 75. . . . . . . . . 76. . . . . . . . . 77. . . . . . . . . 78. . . . . . . . . 79. . . . . . . . . PART 3 - Subdivisions Division 1 - Interpretation 80. Interpretation of Part 3 (1) In this Part – acceptable solution means a matter specified in a planning scheme to be an acceptable solution; alley means a road or path less than 10 metres wide and bounded on one or both sides by land – (a) on which the buildings are contiguous or continuous; or (b) which is laid out to be built upon; block means a piece of land all in one piece of the same owner; discretionary permit has the same meaning as it has in the Land Use Planning and Approvals Act 1993 ; final plan means a final plan referred to in section 87 ; highway authority means a council or authority responsible for the management of a highway or part of a highway; improvement includes landscaping, fencing and the provision of playground equipment, walking paths, car parking areas and toilet facilities; lot means a block of land created by subdivision of a larger block of which it was part; minimum lot means the minimum lot for an area as provided by section 109 ; movable dwelling unit means movable residential premises to which the Homes Tasmania Act 2022 applies; performance criteria means matters specified in a planning scheme to be performance criteria; permitted development permit means a permit, within the meaning of the Land Use Planning and Approvals Act 1993 , that is not a discretionary permit; plan of subdivision means a plan submitted to a council for the purpose of a permit under the Land Use Planning and Approvals Act 1993 in relation to subdivision of land; planning scheme has the same meaning as it has in the Land Use Planning and Approvals Act 1993 and includes a special planning order within the meaning of that Act; previously approved plan means a plan of subdivision sealed by the relevant council under the Local Government Act 1962 ; public open space means space for public recreation or public gardens or for similar purposes; sealed plan means a plan which – (a) has been approved and sealed under this Part; and (b) has taken effect as provided in section 94 ; subdivide means to divide the surface of a block of land by creating estates or interests giving separate rights of occupation otherwise than by – (a) a lease of a building or of the land belonging to and contiguous to a building between the occupiers of that building; or (b) a lease of air space around or above a building; or (c) a lease of a term not exceeding 10 years or for a term not capable of exceeding 10 years; or (d) the creation of a lot on a strata scheme or a staged development scheme under the Strata Titles Act 1998 ; or (e) an order adhering existing parcels of land; subdivision means – (a) the act of subdividing; or (b) the block of land subject to an act of subdividing; sub-minimum lot means a parcel of land that has not the qualities of a minimum lot. (2) For the purposes of this Part, land constitutes a block if it is – (a) likely to be used to build on; and (b) unlikely to be used by a farmer, grazier, fruit grower or similar person as the sole source of income. (3) For the purpose of determining whether any land constitutes a block for subdivision purposes, a block is – (a) the whole of an existing lot on a plan lodged with the Recorder of Titles or the Registrar of Deeds not later than 12 months after the date of commencement of the Land Use Planning and Approvals Act 1993 ; or (b) the whole of an original Crown grant; or (c) the whole of the land that is identified by description in a folio of the Register kept under the Land Titles Act 1980 ; or (d) the whole of the land that is identified by description in a deed; or (e) a fragmented or subdivided portion of land referred to in this subsection that can be verbally identified for transfer, or retention in the folio of that Register, by description of any other blocks in that folio. (4) Land constitutes a block for subdivision purposes even if it is intersected by – (a) a highway, railway, tramway or any other way; or (b) any land of the Crown, the Commonwealth or another person. (4A) Land does not constitute a block for subdivision purposes if it is a fragmented or subdivided portion of land referred to in subsection (3)(a) , (b) , (c) or (d) that requires mathematical closure for description in being transferred or retained in the folio of the Register kept under the Land Titles Act 1980 . (5) The erection, use or occupation on a block of a movable dwelling unit does not of itself amount to a subdivision of the block so long as no separate rights of occupation are given to the unit or the part of the block on which it is situated other than those arising from an estate at will or a licence revocable at will. (6) Subsections (3) and (4) commence 12 months after the commencement of the Land Use Planning and Approvals Act 1993 . Division 2 - Plans of subdivision 81. Subdivision (1) An owner of land must not subdivide the land except in accordance with – (a) a previously approved plan; or (b) a plan of subdivision which has been approved by the granting of a permit under the Land Use Planning and Approvals Act 1993 . Penalty: Fine not exceeding 50 penalty units. (2) A planning scheme may provide that an application for approval of a subdivision plan is to be made as if it were an application for a discretionary permit or a permitted development permit. (3) In proceedings for an offence against this section, instead of imposing a fine, a court may order – (a) the forfeiture of the value of the estate disposed of, in the case of giving, selling or letting the estate; or (b) the forfeiture of the cost of building done up to the date of the trial, in the case of building. 82. Voluntary submissions of plans Any owner of land who may subdivide the land otherwise than in accordance with a previously approved plan or an approved plan of subdivision may proceed in accordance with the relevant sections to obtain the benefits of this Part. 83. Approval of plan of subdivision (1) Subject to section 116 , the council, before it approves a plan of subdivision, may– (a) require the owner to sell to it for a nominal consideration any land shown on the plan as set apart for a public open space or for drainage purposes; or (b) require the owner to mark on the plan in respect of any proposed way, the words "to be acquired by the highway authority". (1A) A planning scheme – (a) may specify that compliance with a requirement specified in this section is an acceptable solution in relation to subdivisions; and (b) may enable a permitted development permit to be issued if such an acceptable solution is complied with in relation to a plan of subdivision. (2) If the owner claims a valuable interest in the land over or under the proposed way, the owner is entitled to a fair price as agreed with the council in the conveyance or transfer of the way. (3) If there is no agreement as to a fair price, the compensation payable to the owner is to be determined as a disputed claim for compensation under the Land Acquisition Act 1993 . (4) The use of the words "to be acquired by a highway authority" does not prevent a disposition of the land affected but the obligation to convey or transfer the way runs with the land. (5) The council may require a final plan of subdivision to note, in respect of a block – (a) that the council cannot or will not – (i) . . . . . . . . (ii) provide means of drainage for all or some specified kind of effluent from the block; or (iii) permit a septic tank; or (b) that the council may permit – (i) a septic tank; or (ii) a specific form of on site sewerage treatment. (6) A notification under subsection (5) is to be treated as if it created an easement for the benefit of the council and may be destroyed wholly or in part by an instrument in the nature of a release of the block by the council. (7) The council may require a final plan of subdivision to note, in respect of a block, that the council has been advised by a regulated entity, within the meaning of the Water and Sewerage Industry Act 2008 , that the entity cannot or will not – (a) provide a supply of water to the block; or (b) provide means of sewerage for all or some specified kind of effluent from the block. (8) A notification under subsection (7) is to be treated as if it created an easement for the benefit of the regulated entity and may be destroyed wholly or in part by an instrument in the nature of a release of the block by the regulated entity. 84. Council not to approve subdivision (1) The council is not to approve a plan of subdivision if – (a) any proposed lot has not the qualities of a minimum lot; or (b) it includes any lot or other block of land smaller than is required or permitted by a finally approved planning scheme; or (c) the subdivision includes any road or other works whereby drainage will be concentrated and discharged into any drain or culvert on or under any State highway, unless the Minister administering the Roads and Jetties Act 1935 has first approved so much of the application as affects the drainage. (1A) A planning scheme – (a) may specify – (i) an acceptable solution, in relation to subdivisions, that relates to a matter referred to in subsection (1)(a) , (b) or (c) ; and (ii) performance criteria, in relation to subdivisions, that relate to a matter referred to in subsection (1)(a) or (b) ; and (b) may enable a permitted development permit or a discretionary permit to be issued if such an acceptable solution or performance criteria are complied with in relation to a plan of subdivision. (1B) If a planning scheme specifies an acceptable solution, or performance criteria, in relation to subdivisions, that relate to a matter referred to in subsection (1) , that subsection does not apply in relation to the matter in respect of a development that complies with the acceptable solution. (2) For the purposes of subsection (1) or an acceptable solution, the Minister administering the Roads and Jetties Act 1935 – (a) is only bound to approve an application which does not materially increase the total amount of water coming into or under a State highway in any period of time and which provide for its discharge at a point or points accepted or reasonably required by the Minister; and (b) may require as a condition of approval a covenant by the owner– (i) to indemnify the Crown against any claim which may arise from an increase in the water flowing away from or under the State highway, or its rate of flow, by reason of the works approved; or (ii) to pay for any specified works considered by that Minister necessary by reason of the works approved for clearing water from or under the State highway; or (iii) to do both matters specified in subparagraphs (i) and (ii) . (3) If the council approves an application contrary to this section, its approval is effective in law and the council – (a) is liable to the Crown to do anything which, if this section had been complied with, the owner could have been required to covenant to do; and (b) is not punishable except upon indictment with the consent in writing of the Attorney-General. 85. Refusal of application for subdivision The council may refuse to approve a plan of subdivision if it is of the opinion – (a) that the roads will not suit the public convenience, or will not give satisfactory inter-communication to the inhabitants both of the subdivision and the municipal area in which it is; or (b) that the drainage both of roads and of other land will not be satisfactorily carried off and disposed of; or (ba) that the land is not suitable for an on-site effluent disposal system for all or specified kinds of effluent from each block; or (c) that the site or layout will make unduly expensive the arrangements for supply of water and electricity, connection to drains and sewers and the construction or maintenance of streets; or (d) that the layout should be altered to include or omit – (i) blind roads; or (ii) alleys or rights of way to give access to the rear of lots; or (iii) public open space; or (iv) littoral or riparian reserves of up to 30 metres in from the shore of the sea or the bank of a river, rivulet or lake; or (v) private roads, ways or open spaces; or (vi) where the ground on one side is higher than on the other, wider roads in order to give reasonable access to both sides; or (vii) licences to embank highways under the Highways Act 1951 ; or (viii) provision for widening or deviating ways on or adjoining land comprised in the subdivision; or (ix) provision for the preservation of trees and shrubs; or (e) that adjacent land of the owner, including land in which the owner has any estate or interest, ought to be included in the subdivision; or (f) that one or more of the lots is by reason of its shape in relation to its size or its contours unsuitable for building on; or (g) that one or more of the lots ought not to be sold because of – (i) easements to which it is subject; or (ii) party-wall easements; or (iii) the state of a party-wall on its boundary. 85A. Acceptable solutions, or performance criteria, for subdivisions (1) A planning scheme – (a) may specify an acceptable solution, or performance criteria, in relation to subdivisions, that relate to a matter referred to in section 85 ; and (b) may enable a permitted development permit or a discretionary permit to be issued in relation to a plan of subdivision if such an acceptable solution, or performance criteria, are complied with in relation to the plan of subdivision. (2) If a planning scheme specifies an acceptable solution, or performance criteria, in relation to subdivisions, that relate to a matter referred to in section 85 , that section does not apply in relation to the matter in respect of a development that complies with the acceptable solution. 86. Security for payment (1) Before approving a plan of subdivision, the council may – (a) require security for payments and the execution of works; and (b) refuse to approve the application until such security is given. (1A) A planning scheme – (a) may specify that compliance with a requirement specified in subsection (1) is an acceptable solution in relation to subdivisions; and (b) may enable a permitted development permit to be issued if such an acceptable solution is complied with in relation to a plan of subdivision. (2) The payments for which, and the works for the execution of which, security may be required are – (a) . . . . . . . . (b) . . . . . . . . (c) if the land is not located within 30 metres of the existing public stormwater system as shown on the map made available under section 12 of the Urban Drainage Act 2013, payment for a public stormwater system by, from, or from within, the land as determined by the council so that all lots may have connecting drains and the concentrated natural water may be lawfully disposed of and for the laying of stormwater connections from a place on the boundary of each lot to the public stormwater system in accordance with the by-laws of the council and to the satisfaction of its engineer; and (d) the works required for the discharge of the owner's obligations under section 10 of the Local Government (Highways) Act 1982 in respect of the highways opened or to be opened on the subdivision; and (e) the making and draining of footways that are not part of a road and of private roads and similar footways serving 3 lots or more; and (f) the filling in of ponds and gullies; and (g) the piping of watercourses. (3) The security which may be required is – (a) a bond by the owner of an amount in excess of any possible demand to secure – (i) the required payments to be made within 30 days of demand; and (ii) the required works to be executed within the periods referred to in subsection (4) ; and (b) a guarantee guaranteeing all money payable on the bond, including any amount the council's engineer certifies to have been expended by the council under subsection (6) by – (i) an authorised deposit-taking institution; or (ii) a guarantee, money-lending, insurance or trading corporation approved by the council. (4) The required works are to be executed – (a) within 6 months of the completion of the public stormwater system, in the case of subsection (2)(c) ; or (b) within the time prescribed under section 11 (2) of the Local Government (Highways) Act 1982 in the case of subsection (2) (d) or (e) ; or (c) within 6 months of the sealed plan taking effect, in the case of subsection (2) (f) or (g) ; or (d) within such further period as the council may allow, in any other case. (5) The council and the owner, with the consent of any guarantor, may agree to modify their respective rights so that – (a) the owner is to do works that the owner would otherwise have paid for; or (b) the council is to do, and the owner is to pay for, works that the owner would otherwise have done. (6) If the owner fails to do works in accordance with a bond, the council may do them and recover its expenses, as certified by its engineer, as if the amount were payable under the bond. Division 3 - Final plans 87. Final plans and schedule of easements (1) On receipt of the council's approval of a plan of subdivision, the owner is to arrange for the preparation of a final plan by a registered surveyor in accordance with – (a) the requirements approved by the Recorder of Titles; and (b) any other requirement of a permit issued under the Land Use Planning and Approvals Act 1993 . (2) The owner is to attach a schedule of easements to the final plan which is to be signed – (a) if there are any easements, profits a prendre or covenants set out, by any person who is, or persons who between them are, able to create the estates and interests that the purchasers of land comprised in the plan are to acquire; or (b) if there are no easements, profits a prendre or covenants set out, by all persons having any registered estate or interest in the land comprised in the plan, or by the legal practitioner acting for those persons. (3) If a schedule of easements is signed by a person as mortgagee, it is taken to include the person's consent to the creation of those estates or interests. (4) The easements, profits a prendre and covenants set out in the schedule of easements are taken to be shown on the final plan. 88. Lodgment of final plans (1) The owner is to lodge with the council – (a) the final plan, together with the schedule of easements; and (b) if the schedule of easements sets out any easements, profits a prendre or covenants, a nomination of a legal practitioner to act on behalf of the owner in carrying the final plan through to its taking effect; and (c) if any lots on the plan are the result of survey work carried out under the Land Surveyors Act 1909 , a nomination of a registered surveyor to do what is required to have the plan take effect; and (ca) evidence, satisfactory to the council, of the completion of each of the relevant works that are required to be carried out in relation to the proposed subdivision; and (cb) evidence, satisfactory to the council, that each of the conditions of a permit, within the meaning of the Land Use Planning and Approvals Act 1993 , that must be complied with before the final plan in relation to the proposed subdivision may be sealed, have been complied with; and (d) the amount of the fees payable to the council and, unless the plan is marked "Priority Final Plan", the prescribed fees payable to the Recorder of Titles under the Land Titles Act 1980 . (1A) For the purposes of subsection (1)(ca) , each of the following constitutes relevant works: (a) works consisting of the provision of a road or footpath in accordance with the Local Government (Highways) Act 1982 ; (b) works consisting of the provision of a connection to water infrastructure in accordance with the Water and Sewerage Industry Act 2008 ; (c) works consisting of the provision of a connection to sewerage infrastructure in accordance with the Water and Sewerage Industry Act 2008 ; (d) works consisting of the provision of a connection to a public stormwater system in accordance with the Urban Drainage Act 2013 ; (e) works consisting of the provision of a connection to an electricity supply in accordance with the Electricity Supply Industry Act 1995 ; (f) works consisting of arrangements for drainage of stormwater under a State road in accordance with the Roads and Jetties Act 1935 . (2) If an owner has lodged a final plan under subsection (1) and the plan has been marked "Priority Final Plan", that owner, within 5 business days after lodging that plan or within an extension of that period allowed by the Recorder of Titles, may lodge with the Recorder of Titles – (a) a copy of the final plan, marked" "Priority Final Plan", that has been lodged with the council under subsection (1)(a) ; and (b) a certification, or endorsement, by the owner, an agent of the owner or a legal practitioner acting on behalf of the owner, to the effect that all the copies of documents lodged under this subsection are identical to the original documents lodged with the council under subsection (1) and that the documents lodged with the council under subsection (1) were lodged not more than 5 business days before the documents are lodged under this subsection; and (c) a copy of the schedule of easements that has been lodged with the council under subsection (1) ; and (d) the original, or a copy, of the balance plan; and (e) the original, or a copy, of the survey notes; and (f) the prescribed fee payable under the Land Titles Act 1980 ; and (g) any other documents that the Recorder of Titles may require for the purposes of the Land Titles Act 1980 . (3) An owner may change the nomination of a legal practitioner or surveyor by notice in writing to the Recorder of Titles and the council. 89. Approval of final plans by council (1AA) The council, within 20 business days after a final plan is lodged with the council under section 88(1) – (a) is to determine whether the final plan complies with this Part; and (b) is to comply with subsection (1) , if the council determines that the final plan complies with this Part; and (c) is to comply with subsection (2) , if the council determines that the final plan does not comply with this Part; and (d) is to notify in writing the person who lodged the final plan with the council that the final plan does not comply with this Part, if the council determines that the final plan does not comply with this Part. (1AB) The council, within 10 business days after a final plan is lodged with the council under section 88(1) , may, if it requires further information or documents in relation to the final plan, by notice in writing to the person who lodged the plan – (a) advise the person that the council requires further information or documents; and (b) request the person to provide to the council the further information or documents. (1AC) If the council gives to a person a notice under subsection (1AB) or this subsection, the council, if it is not satisfied with the information or documents provided by the person pursuant to the notice, is to, within 8 business days, give to the person notice in writing specifying – (a) that the council is not satisfied with the information or documents provided; and (b) that the person is requested to provide to the council further information or documents. (1AD) If the council gives to a person a notice under subsection (1AB) or subsection (1AC) , the 20-day period referred to in subsection (1AA) does not continue to run, in relation to the final plan lodged with the council, during the period – (a) beginning on the day on which the first such notice is given to the person; and (b) ending on the day on which the person provides to the council information or documents, referred to in the notice under subsection (1AB) or subsection (1AC) , respectively, that, is, in the opinion of the council, satisfactory. (1) If satisfied that a final plan complies with this Part, the council is to – (a) cause its seal to be affixed to the plan; and (b) cause the sealed plan to be lodged in the office of the Recorder of Titles. (2) Where the council is not satisfied that a final plan marked "Priority Final Plan" complies with this Part and accordingly declines to fix its seal to the plan, the council, within 5 business days after declining, is to inform the Recorder of Titles accordingly. (2A) If – (a) a sealed plan, marked "Priority Final Plan", that is duly executed and that is identical to the unsealed final plan that was lodged with the Recorder of Titles under section 88(2)(a) , is lodged with the Recorder of Titles under subsection (1)(b) ; and (b) all the other documents that relate to that plan have been lodged with the Recorder of Titles as required under section 88(2) ; and (c) all the relevant documents in relation to the sealed plan have been lodged with the Recorder of Titles; and (d) the Recorder of Titles is satisfied that the sealed plan is not required to be amended and that all other information or documents necessary to make a determination under this subsection have been received by the Recorder of Titles and are satisfactory – the Recorder of Titles, within 15 business days after the requirements of paragraphs (a) , (b) , (c) and (d) have been satisfied, is to – (e) accept the sealed plan; or (f) reject the sealed plan under this paragraph or under subsection (3) . (2B) For the purposes of subsection (2A) , the relevant documents in relation to the sealed plan are the following: (a) the original, final, duly executed schedule of easements in relation to the sealed plan, that is identical to the copy of the schedule of easements that was lodged with the Recorder of Titles under section 88(2) ; (b) the original title documents, satisfactory to the Recorder of Titles, evidencing ownership of the land to which the sealed plan relates; (c) if the original of the balance plan has not already been lodged with the Recorder of Titles – the original, duly executed copy of the balance plan that is identical to the copy of the original of the balance plan lodged with the Recorder of Titles under section 88(2) ; (d) if the original of the survey notes has not already been lodged with the Recorder of Titles – the original, duly executed copy of the survey notes that is identical to the copy of the original of the survey notes lodged with the Recorder of Titles under section 88(2) ; (e) all other original, duly executed associated documents or dealings that the Recorder of Titles requires to be provided. (2C) If – (a) a sealed plan, marked "Priority Final Plan", that is duly executed and that is identical to the unsealed final plan that was lodged with the Recorder of Titles under section 88(2)(a) , is lodged with the Recorder of Titles under subsection (1)(b) ; and (b) all the other documents that relate to that plan have been lodged with the Recorder of Titles as required under subsections (2A) and (2B) ; and (c) all of the relevant documents in relation to the sealed plan have been lodged with the Recorder of Titles – the Recorder of Titles, within 13 business days, may – (d) under subsection (5) , give to the council and the owner notice in writing that the sealed plan is required to be amended; or (e) give to the owner notice in writing specifying that – (i) further information or documents, specified in the notice, are required to be provided to the Recorder of Titles; or (ii) information, or documents (other than the sealed plan), already provided to the Recorder of Titles, is or are to be amended as specified in the notice and, as so amended, provided to the Recorder of Titles. (2D) If the Recorder of Titles gives to an owner or a council a notice, under subsection (2C) , this subsection or subsection (5) , the Recorder of Titles, within 8 business days from the day on which he or she receives – (a) the sealed plan, as amended in accordance with the notice under subsection (5) ; or (b) further information or documents, or amendments of information or documents, already provided to the Recorder of Titles, in accordance with the notice under subsection (2C) or this subsection – is to – (c) notify under subsection (5) the council and the owner that the plan is required to be amended; or (d) give to the owner notice in writing specifying – (i) that further information or documents are required to be provided; or (ii) that the information or documents already provided to the Recorder of Titles are required to be amended as specified in the notice under this subsection and, as so amended, provided to the Recorder of Titles; or (e) notify the owner, or the council, to whom or which notice was given under subsection (2C) , this subsection or subsection (5) , that the Recorder of Titles is satisfied that the requirements of the notice have been satisfied. (2E) The period of 13 business days referred to in subsection (2C) does not continue to run in relation to a sealed plan, and other information or documents relating to a sealed plan, during each period – (a) beginning on the day on which a notice under subsection (2C) , subsection (2D)(d) or subsection (5) is given to the owner or council in relation to the sealed plan or in relation to documents or information required to accompany the sealed plan; and (b) ending on the day by which, in relation to each amended sealed plan, or information or documents, provided to the Recorder of Titles pursuant to the notice given under subsection (2C) , subsection (2D)(d) or subsection (5) , one of the following has occurred: (i) the Recorder of Titles has given a notice under subsection (2D) or subsection (5) ; or (ii) the Recorder of Titles has failed to comply with subsection (2D) . (3) The Recorder of Titles is to reject a final plan, marked "Priority Final Plan", lodged under section 88 if– (a) the Recorder of Titles has been informed under subsection (2) that the council has declined to seal the plan; or (b) a year or such extension of that period as the Recorder may allow has expired since the plan marked "Priority Final Plan" was lodged with the Recorder of Titles. (4) The Recorder of Titles is to return to the person who lodged a plan rejected under subsection (3) one half of the prescribed fee paid under section 88 (2) (f) . (5) On lodgment of a plan, the Recorder of Titles must notify the council and the owner that the plan requires to be amended as shown on a copy of the plan if satisfied that – (a) the owner has not a sufficient title to dispose of all the land comprised in the plan; or (b) the land comprised in the plan omits land of the owner which, as a separate parcel – (i) has not the qualities of a minimum lot; or (ii) if it has those qualities, is in part subject to a mortgage or encumbrance and that either the part so subject or the part not so subject has not the qualities of a minimum lot; or (iii) that the land omitted comprises 2 parcels or more that may, without the approval of any plan by the council, lawfully be sold separately so as to create a block which would not have the qualities of a minimum lot; or (c) the execution of the plan is inconsistent with the proper administration of the Land Titles Act 1980 or this Part; or (d) the plan fails to assure to purchasers what the council intended them to have. (6) If a plan lodged with the Recorder of Titles comprises any land that is not under the Land Titles Act 1980 the Recorder of Titles is to – (a) bring it under that Act; and (b) for that purpose, is to as far as possible proceed as if an application to bring that land under the provisions of the Land Titles Act 1980 had been made under section 11 of that Act with all necessary consents by a person competent to make an application for that purpose. (7) If a parcel that is comprised in a plan is in one part subject to one encumbrance and in another part subject to another encumbrance, the Recorder of Titles must not accept the plan until one part has been freed from encumbrances and when the plan takes effect any encumbrance on the other part extends to the whole parcel. 90. Determination of applicability of provisions If an instrument is lodged for registration under the Land Titles Act 1980 and the Recorder of Titles is not sure whether a final plan should first have been lodged to authorize the dealing to be effected by the instrument, the Recorder may require the person lodging the instrument to produce a certificate of the council that the dealing is not in contravention of this Division. 91. Corrections to final plans (1) The Recorder of Titles may correct any clerical, unimportant or unsubstantial error or supply any omission in a final plan unless the council or the owner objects. (2) Before making a correction, the Recorder of Titles is to give notice in writing to the council and the owner. (3) The council or owner may object to the making of any correction within 7 days of receiving a notice under subsection (2) . 92. Amendments to final plans (1) If the Recorder of Titles under section 89 (5) requires an amendment to a final plan, the council – (a) if it considers that the amendment should not be approved, is to withdraw the plan and return it to the owner; or (b) in any other case, notify the Recorder and the owner that it does not oppose the amendment. (2) If an owner is notified under subsection (1) that the council does not oppose an amendment, the owner may– (a) agree to the amendment; or (b) request the council to withdraw the plan and the council is to comply with that request; or (c) require the Recorder of Titles to specify in writing the grounds for the refusal to accept the plan without amendment and thereupon section 144 of the Land Titles Act 1980 applies as if the grounds of refusal were given under subsection (1) of that section . (3) If the owner agrees to an amendment under subsection (2) , the owner is to notify the council and the Recorder of Titles accordingly. (4) If an amendment is required, the council and the owner may put forward other proposals and the Recorder of Titles may amend or vary the requirement, or withdraw it and substitute another. (5) The Recorder may notify the owner and the council that the plan is affected and is to return the plan to the council if the Recorder of Titles requires – (a) an amendment under section 89 (5) and the owner fails for 3 months to take any action under subsection (2) , (3) or (4) ; or (b) data by the registered surveyor who prepared the plan to enable the plan to be checked mathematically and for boundary evidence and they are not so produced within 3 months of the Recorder's requisition. (6) Instead of amending a document, the person required to amend it may, and if required by the Recorder of Titles must, substitute for it a new document in the amended form. 93. Cancellation of final plans (1) The council is to cancel its seal on a final plan if – (a) the plan is withdrawn from the Recorder of Titles; or (b) the plan is rejected by the Recorder of Titles. (2) The council is to return a plan cancelled under subsection (1) to the owner. Division 4 - Sealed plans 94. Taking effect of sealed plan (1) A final plan takes effect as a sealed plan when the Recorder of Titles signs and dates a memorandum on the plan that the plan is accepted – (a) without requiring any amendment; or (b) as a result of further discussion; or (c) upon an order of the Supreme Court; or (d) upon the making of an amendment agreed to by the owner and the council. (2) When a plan takes effect, the Recorder of Titles is to, within 21 days – (a) bring under the provisions of the Land Titles Act 1980 any land comprised in the plan that is not under it; and (b) deliver free to the owner, the surveyor and the council, one copy of the sealed plan as accepted; and (c) create any folios the Recorder considers necessary. (3) Each copy of the sealed plan is to show the memorandum of acceptance. (4) When a plan that shows easements or other rights over or for the benefit of land which is not under the provisions of the Land Titles Act 1980 takes effect, the Recorder of Titles is to cause any entries to be made in the index kept under the Registration of Deeds Act 1935 the Recorder considers sufficient to give notice of the existence of those rights to persons searching title in the Registry. (5) When a plan has taken effect a person must not – (a) obstruct the exercise by the owner or occupier of land of a right shown on the plan; or (b) contravene a restriction on the use of land shown on the plan. Penalty: Fine not exceeding 10 penalty units. (6) It is not a defence in proceedings under subsection (5) to prove that the right or restriction was not created or has been extinguished but the court may adjourn the proceedings to enable the plan to be amended. (7) If an act complained of would be lawful under the plan as amended, the court is not to impose any penalty but may award costs to the council. 95. Dedication of land (1) Any land which is shown on a sealed plan as a road, street, alley, lane, court, terrace, footpath or other kind of way is taken to be dedicated to, and accepted by, the public unless called "private" on the plan. (2) Subject to any enactment or by-law relating to the construction, opening and repair of ways on subdivisions and in respect of any way taken to be dedicated to and accepted by the public under subsection (1) and not a highway immediately before the sealed plan was sealed, the owner may – (a) continue in occupation of the land subject to the way to the exclusion of the public until possession is given to a purchaser of a block comprised in the sealed plan and adjoining the way or including any part of it; and (b) notwithstanding the rights of the public or of any purchaser of a block comprised in the sealed plan and adjoining the way – (i) enter on the land subject to the way with or without engineers, surveyors, workers, machines, horses and vehicles and make the way in such manner as the owner thinks proper; and (ii) enter in the same manner and repair the way as and when the owner thinks fit; and (iii) exclude the public from all or any part of the way for the purpose of making or repair. 96. Dedication as highway (1) If a sealed plan shows provision for widening or deviating a way on, or adjoining, land comprised in the plan, an obligation runs with that land to dedicate it as a highway if required to do so by the highway authority. (2) If the highway authority requires a dedication under subsection (1) , it must tender an amount in compensation. (3) If the owner does not accept the amount tendered, the owner must dedicate the land and is entitled to compensation as agreed between the owner and the highway authority. (4) If there is no agreement under subsection (3) , the compensation payable to the owner is to be determined as if it were a disputed claim for compensation under the Land Acquisition Act 1993 . (5) Compensation payable to the owner under subsection (4) is to be determined as at the date on which the plan was sealed. 97. Acquisition of way by council (1) The owner of a subdivision is to convey or transfer a way shown on a sealed plan as "to be acquired by the highway authority" to the highway authority in fee simple when required in writing to do so by the highway authority. (2) If there is no agreement as to a fair price, the compensation payable to the owner is to be determined as a disputed claim for compensation under the Land Acquisition Act 1993 . 98. Surrender of reserves to Crown Any land comprised in a sealed plan which is described as a reserve is taken to be – (a) surrendered to, and accepted by, the Crown; and (b) subject to the Crown Lands Act 1976 as if reserved to the Crown under section 8 of that Act for any purpose – (i) agreed to between the authority sealing the plan and the Crown; and (ii) specified in Column 3 of Schedule 5 to that Act. 99. Easements (1) When a sealed plan takes effect – (a) the easements to be created in favour of the Crown or of any public or local authority constituted by or under any Act or appurtenant to a highway vest accordingly, except in the case of an easement to be appurtenant to a highway which vests upon the creation of the highway; and (b) the other easements and the profits a prendre and covenants to be created come into being and continue as if created by the most effectual instruments made between proper parties and are not affected by – (i) the unity of seisin of the lands having the burden and benefit of the easement or profit a prendre; or (ii) identity of the parties to the covenant – except that during such unity or identity they are in abeyance, to revive by force of this Part when it is broken or destroyed; and (c) the Recorder of Titles may notify the existence of the easement, profit a prendre or covenant on the folio in respect of land – (i) benefited by any easement or profit a prendre; or (ii) burdened by any easement, profit a prendre or covenant. (2) An easement that would have been set out in the schedule of easements to a sealed plan is not to be implied from anything appearing in the plan or in a copy of the plan incorporated in another instrument. (3) If the schedule of easements to a sealed plan contains easements, profits a prendre and covenants which did not exist before the plan took effect and which affects land not comprised in the plan – (a) the schedule is to be signed by the persons who between them are able to create them; and (b) when the sealed plan takes effect those easements, profits a prendre and covenants are taken to have been created or made in the most effective manner by those persons. (4) Any drainage easement shown on a sealed plan for the benefit of a lot is taken to terminate at an outlet approved by the council. 100. Action for partition (1) In any action for partition, the court – (a) is not to order a partition which the parties could not make themselves under this Part; and (b) may cause all necessary steps to be taken for the approval of a plan of subdivision for the purposes of a judgment or order for partition. (2) A judgment or an order for partition is not invalid by reason only of non-compliance with this section. 101. Recovery of land (1) If the registered proprietor named in a qualified title under the Land Titles Act 1980 , suffers judgment for the recovery of the land by a person with a better title and in consequence a lot ceases to have the qualities of a minimum lot, the council may purchase or take the land recoverable or recovered under the judgment and re-establish the title of the registered proprietor as provided in subsection (2) . (2) The council is to – (a) purchase or take the estate of the successful plaintiff and any other estate or interest required by the Recorder of Titles to be gotten in before the Recorder cancels the caution recorded on the qualified title; and (b) lodge with the Recorder all muniments of title to the estate and interest so purchased or taken by it together with a request under its common seal that the Recorder re-establish the title of the registered proprietor. (3) The Recorder of Titles, if satisfied that the requests have been complied with, is to cancel the caution on the qualified title. (4) The council's costs and expenses of, and incidental to, the acquisition and the other matters referred to in subsection (2) are a charge on the whole of the lot concerned. 102. Non-application of provisions to certain sales The provisions of this Division do not apply to a subdivision of land only by sale and conveyance, transfer or release to the Crown, the Commonwealth or a statutory authority if acquisition by compulsory process is an alternative means of obtaining the land sold. Division 5 - Amendments of sealed plans 103. Amendment of sealed plans (1) When a plan has taken effect, it may be amended by the council – (a) of its own motion – (i) to do anything that the council could do under any other power subject to any conditions precedent to the exercise of the power relied on; or (ii) to bring the plan into conformity with any change in the rights and duties of land owners made under a statutory power; or (b) on the application of any person having an interest in land subject to the plan. (2) If a council acts on its own motion, it is to serve a notice in writing to all persons appearing by the registers under the Land Titles Act 1980 and the Registration of Deeds Act 1935 to have an estate or interest at law affected by the proposed amendment. (3) A person is to – (a) make an application under subsection (1) by petition; and (b) serve a copy of the petition on all persons appearing by the registers under the Land Titles Act 1980 and the Registration of Deeds Act 1935 to have an estate or interest at law affected by the proposed amendment. (4) Any person affected by the proposed amendment may ask to be heard in support or opposition. (5) If a notice is not given or a petition is not served as required by this section, subsequent proceedings are not void. 104. Hearing in respect of amendment of plans (1) At the end of 28 days after the last notice is served or the last petition is served as required by section 103 (2) or (3) , the council – (a) may, if no person has asked to be heard in opposition, cause the amendment to be made; or (b) if a person has asked to be heard, is to appoint a day for hearing any petitioner and those persons who have asked to be heard. (2) A hearing is to be by the council or a council committee who may – (a) hear persons who have asked to be heard after the period referred to in subsection (1) ; and (b) obtain the assistance of legal practitioners, architects, engineers and surveyors. (3) On the conclusion of the hearing, the council may – (a) cause the amendment to be made with or without modification; and (b) require as a condition of so doing that any person who benefits the amendment is to make compensation in money or land to a person who is injured by it. (4) The council may, with the consent of all persons concerned, act as provided in subsection (3) . (5) The Recorder of Titles may call in and cancel or correct any certificate of title affected by amendments. 105. Compensation in respect of amendments (1) Subject to subsection (2) , a person adversely affected by an amendment is entitled to compensation by the council if – (a) having asked to be heard under section 103 (4) , the person gave the council notice of the claim at or before the hearing; or (b) within 60 days of having been served a notice or petition under section 103 (2) or (3) , the person gave the council notice of the claim; or (c) not having been given notice or served a petition, the person gave the council notice of the claim within 60 days of learning that he or she was affected by the amendment. (2) If compensation is payable under subsection (1) , the council may recover against the petitioner and any person heard or asking to be heard in support of the amendment to the extent to which they benefited by the amendment. 105A. Amendments to sealed plans sealed under Local Government Act 1962 Sections 103 and 104 apply to sealed plans that have taken effect under section 464 of the Local Government Act 1962 as if they were sealed plans made under this Act. 105B. Validation of amendments to certain sealed plans Amendments made in accordance with sections 103 and 104 to plans sealed under the Local Government Act 1962 are valid and effectual only to the extent that the amendments were made in accordance with the powers conferred on a council under those sections in respect of plans sealed under this Act. Division 6 - Miscellaneous provisions relating to plans 106. Lack of frontage of highway (1) If – (a) land proposed to be subdivided is separated from a highway by land of the highway authority; and (b) the highway authority declares under seal that its land is to become part of the highway – land which would, when the highway authority's land had become part of the highway, have a frontage on the highway is taken to have the same frontage as it would then have. (2) An objection may not be made that a way in the proposed subdivision does not communicate with the highway because the highway authority's land intervenes. (3) The highway authority, when the way is opened, is to provide the necessary communication with the highway. (4) For the purposes of this Part – (a) a highway over water is a highway; and (b) a road in respect of a lot shown in a plan to which this Part applies is a road if the lot has a frontage to the shore of the sea or to a navigable river or lake and cannot be reached from a city or town by a highway. (5) For the purposes of subsection (4) , land which has an easement in fee of unrestricted passage over land of the Crown to the shore of the sea is taken to have a frontage to the shore of the same width as the easement. 107. Access orders (1) Where a block is to be created under this Part, the council may, before or when notifying its approval of the plan of subdivision, notify the owner that it proposes to make an order under this section as indicated in the notification before it seals the final plan. (2) If the council considers that work of a substantial nature is needed to provide access for vehicles from a highway onto the block, it may refuse to seal the final plan under which the block is created until the owner has carried out the work specified in the order within the specified period or given the council security for carrying out that work if called upon by it to do so. (3) If the owner fails to carry out the work within a reasonable time when called upon, the council may enter and do the work and enforce the security to recover its expenses as certified by its engineer. (4) If the work ordered by the council includes the construction of a carriage-way serving more blocks than one – (a) the council may direct the owner to carry out part of the work on the soil of a highway; and (b) the owners of all blocks having a right of way over any portion of the carriage-way are to keep in good repair, properly drained and clean and tidy – (i) the carriage-way; and (ii) any land subject to similar rights as the carriage-way and not part of a highway. (5) If the council is of the opinion that the owners are in default of compliance with subsection (4) (b) , the general manager may give notice to the owners of the blocks served by the carriage-way specifying – (a) how the default is to be remedied; and (b) requiring them to remedy the default accordingly within the period specified in the notice. (6) If the owners served with a notice fail to comply within the specified period, the council may remedy their default and apportion the cost among those owners or their successors in title in such proportions as it considers appropriate. (7) The amount apportioned under subsection (6) is to be paid to the council within 30 days of the demand and is recoverable from the person liable or his or her successor in title in any court of competent jurisdiction. (8) An amount apportioned under subsection (6) together with any interest payable is a charge on the block in respect of which it was apportioned from the day of apportionment. 108. Road widening (1) If a council does not approve a plan for a subdivision because of any matter referred to in section 85 , a council, in respect of an existing highway, may obtain – (a) a dedication of land for widening or diverting; or (b) a licence to embank. (2) Subject to subsection (4) , when the sealed plan takes effect the owner is entitled to compensation as if the dedication or licence were an estate in land that had been acquired by compulsory process under the Land Acquisition Act 1993 . (3) The land dedicated or subject to the licence is to be valued as at the date of lodgment of the plan of subdivision. (4) Compensation is not payable for the dedication of land which lies within 9 metres of the middle line of the highway of a parcel into which the land is subdivided and on which no building stands. (5) If the highway varies in width because in parts land has already been acquired or dedic