Strata Schemes Development Act 2015 (NSW)

Strata Schemes Development Act 2015 No 51 An Act to create freehold strata schemes and leasehold strata schemes; to provide for dealings with lots and common property in the schemes and for varying, terminating and renewing the schemes; and to repeal the Strata Schemes (Freehold Development) Act 1973 and the Strata Schemes (Leasehold Development) Act 1986. Part 1 Preliminary Division 1 Introduction 1 Name of Act This Act is the Strata Schemes Development Act 2015. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Main objects of Act The main objects of this Act are to provide for— (a) the subdivision of land, including buildings, into cubic spaces to create freehold strata schemes and leasehold strata schemes, and (b) the way in which lots and common property in strata schemes may be dealt with, and (c) the variation, termination and renewal of strata schemes. Division 2 Interpretation 4 Definitions (1) In this Act— accepted lease or sublease means a lease or sublease, or a transfer of a lease or sublease, accepted by an owners corporation under section 25 (1). administration sheet means a document in the approved form that provides for administrative matters relating to the registration of plans under this Act. aggregate unit entitlement of lots in a strata scheme means the sum of the unit entitlements of the lots. approved form means a form approved by the Registrar-General for use under this Act. building, in relation to a strata scheme or a proposed strata scheme, means a building containing a lot or proposed lot, or part of a lot or proposed lot, in the scheme or proposed scheme. building alteration plan means a plan that is registered as a building alteration plan, and includes any information, certificate or other document required by this Act or the regulations to be included with the plan before it may be registered. by-laws for a strata scheme means the by-laws in force for the scheme. chargee, in relation to a lot or development lot in a leasehold strata scheme, means a chargee of the leasehold estate of the lot. common infrastructure means— (a) the cubic space occupied by a vertical structural member of a building, other than a wall, or (b) the pipes, wires, cables or ducts that are not for the exclusive benefit of one lot and are— (i) in a building in relation to which a plan for registration as a strata plan was lodged with the Registrar-General before 1 March 1986, or (ii) otherwise—in a building or in a part of a parcel that is not a building, or (c) the cubic space enclosed by a structure enclosing pipes, wires, cables or ducts referred to in paragraph (b). common property, in relation to a strata scheme or a proposed strata scheme, means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot). common property rights by-law has the same meaning as it has in the Strata Schemes Management Act 2015. community scheme has the same meaning as it has in the Community Land Development Act 2021. company nominee of a corporation has the same meaning as it has in the Strata Schemes Management Act 2015. covenant chargee of a lot or development lot in a leasehold strata scheme means a covenant chargee of the leasehold estate of the lot. current plan means a current plan as defined in section 7A of the Conveyancing Act 1919 that is registered, other than a strata plan, a strata plan of subdivision or a strata plan of consolidation. current plan lot—see section 9 (4). Department means the Department of Finance, Services and Innovation. developer of a strata scheme constituted on registration of a strata plan proposed under a development scheme means the person who, for the time being, is— (a) the original owner of the strata scheme, or (b) a person, other than the original owner, who is the owner of a development lot within the strata plan. development has the same meaning as it has in the Environmental Planning and Assessment Act 1979. development concern—see section 74. development lot means a lot in a strata plan or strata plan of subdivision that is identified by a strata development contract as a lot that is to be the subject of a strata plan of subdivision under the development scheme for the contract. development scheme means the scheme of development provided for, and represented by, a strata development contract. drainage reserve means land that is held by a local council for drainage purposes under section 49 of the Local Government Act 1993. floor includes a stairway or ramp. floor area of a lot means the area occupied on a horizontal plane by the base of the cubic space of the lot. floor plan means a plan that— (a) defines by lines (each a base line) the base of the vertical boundaries of each cubic space forming the whole of a proposed lot, or the whole of a part of a proposed lot, to which the plan relates, and (b) shows— (i) the floor area of each proposed lot, and (ii) if a proposed lot has more than one part—the floor area of each part together with the aggregate of the floor areas of the parts, and (c) if a proposed lot or part of a proposed lot is superimposed on another proposed lot or part—shows the separate base lines of the proposed lots or parts, by reference to floors or levels, in the order in which the superimposition occurs. folio means— (a) in relation to a lot or common property in a freehold strata scheme, a folio of the Register for the lot or common property, or (b) in relation to a lot or common property in a leasehold strata scheme, a folio of the Register for a lease of the lot or common property. freehold strata scheme means a strata scheme in which no lots or common property in the scheme are subject to a lease or leases referred to in section 11. function includes a power, authority or duty, and exercise a function includes perform a duty. initial period has the same meaning as it has in the Strata Schemes Management Act 2015. leasehold strata scheme means a strata scheme in which all lots and common property in the scheme are subject to a lease or leases referred to in section 11. lessee, in relation to a lot, development lot or common property in a leasehold strata scheme, means the lessee of the leasehold estate under a lease registered on the folio for the lot, development lot or common property, but does not include an owner of a lot. lessor of a leasehold strata scheme means the person who holds the fee simple in the lots and common property in the scheme. liabilities of an owners corporation in relation to the termination of a strata scheme under Part 9 or 10 means any liabilities, debts or obligations of the owners corporation (whether present or future, whether vested or contingent and whether personal or assignable). local council, in relation to land, means— (a) the council of the area under the Local Government Act 1993 in which the land is situated, or (b) a person declared by the regulations to be the local council for the land for the purposes of this Act or any specified provision of this Act. location plan means a plan that— (a) relates to land the subject of a proposed strata scheme, and (b) if the scheme does not relate to a proposed part strata parcel—delineates the perimeter of the land and the location, in relation to the perimeter, of each— (i) building on the land, and (ii) proposed lot or part of a proposed lot not within a building, and (c) if the scheme relates to a proposed part strata parcel— (i) delineates the perimeter of the site of the building of which the proposed part strata parcel forms part and the location, in relation to the perimeter, of the building and proposed part strata parcel, and (ii) delineates the location, in relation to the perimeter of the proposed part strata parcel, of the part of the building the subject of the proposed strata scheme and each proposed lot or part of a proposed lot not within the building, and (d) shows the particulars prescribed by the regulations. lodge means lodge with the Registrar-General. lot, in relation to a strata scheme, means one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot. mortgagee, in relation to a lot or development lot in a leasehold strata scheme, means a mortgagee of the leasehold estate of the lot. notice of conversion means a notice that is registered as a notice of conversion, and includes any information, certificate or other document required by this Act or the regulations to be included with the notice before it may be registered. notice of resumption means a notice, notification or other instrument publication of which vests land described in the notice, notification or instrument in a resuming authority by way of resumption. occupier of a lot means a person in lawful occupation of the lot. original owner— (a) of a freehold strata scheme means the person who held the fee simple in the parcel the subject of the scheme when the strata plan for the scheme was registered, or (b) of a leasehold strata scheme means the person who, immediately after registration of the strata plan for the scheme, is entitled to a leasehold estate in all the lots in the scheme or is entitled to a leasehold estate in 2 or more lots in the scheme with total unit entitlements exceeding more than two-thirds of the aggregate unit entitlement of the lots in the scheme. owner of a lot in a strata scheme means a person for the time being recorded in the Register as entitled to an estate in fee simple in the lot (in the case of a freehold strata scheme) or as entitled to a leasehold estate in the lot (in the case of a leasehold strata scheme), but does not include a sublessee of a lot in a leasehold strata scheme. Note— Under section 43 (1), a lessor of a leasehold strata scheme may be taken to be the owner of a lot in the scheme if the lessor is entitled to immediate possession of the lot. owners corporation of a strata scheme means the owners corporation constituted under the Strata Schemes Management Act 2015 for the scheme. parcel means— (a) in relation to a strata scheme, the land comprising the lots and common property in the scheme, or (b) in relation to a plan lodged for registration as a strata plan, the land comprised in the plan. part strata parcel means a parcel created by a subdivision permitted by section 9 (1) (b). planning approval means— (a) a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (b) an approval under Part 3A or Part 5.1 of that Act. planning authority, in relation to a planning approval, means the entity or person authorised under the Environmental Planning and Assessment Act 1979 to grant the approval. positive covenant means a positive covenant imposed on land under section 88D or 88E of the Conveyancing Act 1919. public place means land that is a drainage reserve, public reserve or public road. public reserve has the same meaning as it has in the Local Government Act 1993. public road has the same meaning as it has in the Roads Act 1993. qualified valuer means a person who— (a) has membership of the Australian Valuers Institute (other than associate or student membership), or (b) has membership of the Australian Property Institute (other than student or provisional membership), acquired in connection with his or her occupation as a valuer, or (c) has membership of the Royal Institution of Chartered Surveyors as a chartered valuer, or (d) is of a class prescribed by the regulations. registered means registered by the Registrar-General. registered building management statement has the same meaning as it has in section 196C of the Conveyancing Act 1919. registered certifier means a person registered under the Building and Development Certifiers Act 2018 acting in respect of matters to which the registration applies. registered land surveyor means a person who is registered as a land surveyor under the Surveying and Spatial Information Act 2002. relevant planning approval that is in force—see section 52. replacement lease for a proposed strata plan of subdivision or strata plan of consolidation in relation to a leasehold strata scheme means a lease— (a) relating to a proposed lot comprised in the plan, and (b) containing provisions to the effect that the lease is in substitution for a lease determined or otherwise affected by the proposed subdivision or consolidation, and (c) having terms all of which are expressed to commence on registration of the plan and to expire at the same time as any lease to be determined, and (d) if the lease confers rights of renewal—having the same renewal terms as any lease to be determined. restrictive use condition—see section 63. resuming authority means an entity that may resume land by way of resumption. resumption means the compulsory acquisition of land under an Act or an Act of the Commonwealth authorising compulsory acquisition of land. rights of an owners corporation in relation to the termination of a strata scheme under Part 9 or 10 means any rights or powers of the owners corporation (whether present or future, whether vested or contingent and whether personal or assignable). schedule of unit entitlement, in relation to a strata scheme, means the schedule recorded as the schedule of unit entitlement in the folio for the common property in the scheme. Secretary means the Secretary of the Department. special resolution has the same meaning as it has in the Strata Schemes Management Act 2015. statutory interest means a charge or other proprietary interest (whether or not it is recorded in the Register) that— (a) is created by an Act or an Act of the Parliament of the Commonwealth, and (b) affects a lot or common property, and (c) is enforceable against an owner of the lot or an owners corporation. strata certificate means a certificate in the approved form issued under Part 4 that authorises the registration of a strata plan, strata plan of subdivision or notice of conversion. strata committee of an owners corporation means the strata committee of the owners corporation under the Strata Schemes Management Act 2015. strata development contract means a strata development contract registered under Part 5. strata management statement means a strata management statement that complies with section 100. strata plan means a plan that is registered as a strata plan, and includes any information, certificate or other document required by this Act or the regulations to be included with the plan before it may be registered. strata plan of consolidation means a plan that is registered as a strata plan of consolidation, and includes any information, certificate or other document required by this Act or the regulations to be included with the plan before it may be registered. strata plan of subdivision means a plan that is registered as a strata plan of subdivision, and includes any information, certificate or other document required by this Act or the regulations to be included with the plan before it may be registered. strata roll has the same meaning as it has in the Strata Schemes Management Act 2015. strata scheme means— (a) the way a parcel is subdivided under this Act into lots or lots and common property, and (b) the way unit entitlements are allocated under this Act among the lots, and (c) the rights and obligations, between themselves, of owners of lots, other persons having proprietary interests in or occupying the lots and the owners corporation, as conferred or imposed under this Act or the Strata Schemes Management Act 2015. subdivision of a lot or common property—see section 7. surveyor's certificate, in relation to a proposed strata plan, strata plan of subdivision or strata plan of consolidation, means a certificate in the approved form given by a registered land surveyor and certifying that each applicable requirement of Schedule 1 for the proposed strata plan, strata plan of subdivision or strata plan of consolidation has been met. unanimous resolution has the same meaning as it has in the Strata Schemes Management Act 2015. unit entitlement of a lot in a strata scheme means the unit entitlement of the lot shown on the schedule of unit entitlement for the scheme. utility lot has the same meaning as it has in the Strata Schemes Management Act 2015. valuer's certificate, in relation to a proposed schedule of unit entitlement, means a certificate of valuation in the approved form given by a qualified valuer and certifying that the unit entitlements of lots to which the proposed schedule of unit entitlement relates are apportioned as required under Schedule 2. wall includes a door, window or other structure dividing a lot— (a) from common property or another lot, or (b) if the lot is a lot in a part strata parcel—from a part of a building that is not within the parcel. water supply authority means— (a) the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or (b) a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 5 Contiguous land In this Act, land is contiguous to other land even if it is divided, or separated from the other land, by a natural feature (for example, a watercourse), a railway, a road, a public reserve or a drainage reserve. 6 Boundaries of lot (1) For the purposes of this Act, the boundaries of a lot shown on a floor plan are— (a) except as provided by paragraph (b)— (i) for a vertical boundary in which the base of a wall corresponds substantially with a base line—the inner surface of the wall, and (ii) for a horizontal boundary in which a floor or ceiling joins a vertical boundary of the lot—the upper surface of the floor and the under surface of the ceiling, or (b) the boundaries described on the floor plan relating to the lot, in the way prescribed by the regulations, by reference to a wall, floor or ceiling in a building to which the plan relates or to common infrastructure within the building. (2) In this section— base line—see paragraph (a) of the definition of floor plan in section 4 (1). 7 Meaning of "subdivision" of a lot or common property (1) In this Act, subdivision of a lot or common property means the alteration of the boundaries of— (a) one or more lots to create only 2 or more different lots, or (b) one or more lots to create one or more different lots and common property, or (c) one or more lots and common property to create one or more different lots or one or more different lots and common property, or (d) common property to create one or more lots. (2) However, subdivision of a lot or common property does not include the consolidation of 2 or more lots into one lot or the conversion of one or more lots into common property. 8 Relationship with Real Property Act 1900 (1) This Act is to be read and interpreted with the Real Property Act 1900 as if it formed part of that Act, and that Act applies to lots and common property in the same way as it applies to other land. (2) However, if a provision of this Act is inconsistent with a provision of the Real Property Act 1900, this Act prevails to the extent of the inconsistency. (3) Words and expressions used in this Act have the same meanings as in the Real Property Act 1900 unless they are defined differently in this Act or the context or subject-matter otherwise indicates or requires. Part 2 Creation of lots and common property in strata schemes Division 1 Strata plans 9 Subdivision of land by strata plan (1) The following land may be subdivided into lots, or lots and common property, by the registration of a plan as a strata plan— (a) land including the whole of a building and consisting of one current plan lot or 2 or more contiguous current plan lots, (b) land including part only of a building and consisting of one current plan lot or 2 or more current plan lots (whether contiguous or not). (2) For the purpose of creating a leasehold strata scheme, land that is subject to a lease or leases may be subdivided under this section. (3) Land that is a development lot in a strata plan cannot be subdivided under this section. Note— See section 14 for subdivision of land that is a development lot. (4) In this section— current plan lot means an existing lot within the meaning of the Conveyancing Act 1919, other than a lot as defined in this Act. land means land under the Real Property Act 1900 that is held in fee simple, other than land comprised in a limited folio or qualified folio. 10 General requirements for strata plan (1) A plan intended to be registered as a strata plan must— (a) include a location plan, a floor plan and an administration sheet, and (b) specify or be accompanied by proposed by-laws as follows— (i) if model by-laws are proposed to be adopted for the strata scheme—specify the model by-laws to be adopted and, if the model by-laws include any alternative versions of any by-law, specify the version to be adopted, (ii) if by-laws other than model by-laws are proposed to be adopted for the strata scheme—be accompanied by a copy of the other by-laws in the approved form and signed by the persons required to sign the plan under section 22 (1), and Note— For the matters in relation to which by-laws other than model by-laws may be made, see Part 7 of the Strata Schemes Management Act 2015. (c) if the proposed strata plan is intended to create a development lot—be accompanied by— (i) the strata development contract relating to the lot, and (ii) the certificate of the planning authority given under section 75 (2), unless the plan is lodged by the Crown, and (d) if the proposed strata plan is intended to create a part strata parcel—be accompanied by a strata management statement, unless the requirement for a strata management statement is waived under section 99 (2), and (e) indicate whether the proposed strata plan is intended to create a freehold strata scheme or a leasehold strata scheme. (2) If the floor plan for the proposed strata scheme does not provide for common property, the floor plan must show that at least one, or part of one, of the proposed lots is superimposed on another, or part of another, of the proposed lots. (3) The administration sheet for the proposed strata scheme must include the following— (a) a proposed schedule of unit entitlement relating to the scheme that complies with clause 2 of Schedule 2, (b) the address for service of documents on the proposed owners corporation, (c) a strata certificate for the proposed strata plan, (d) a surveyor's certificate for the proposed strata plan, (e) a valuer's certificate for the proposed schedule of unit entitlement, (f) any other information or document prescribed by the regulations. Note— Subsection (3) (c) does not apply to a plan lodged by the Crown. See section 199 (2). (4) The Registrar-General may refuse to register a plan as a strata plan if the Registrar-General considers that the boundaries of the land over which the plan is to be registered are not sufficiently defined in a plan registered under Division 3 of Part 23 of the Conveyancing Act 1919. (5) In this section— model by-law means a model by-law prescribed by the regulations under the Strata Schemes Management Act 2015. 11 Requirements for leasehold strata scheme (1) If a proposed strata plan is intended to create a leasehold strata scheme, the Registrar-General must not register the plan unless— (a) separate leases for, or that correspond to, each lot and the common property shown on the plan are registered, or have been lodged for registration, under the Real Property Act 1900, and (b) the separate leases are all expressed to expire at the same time and, if the leases confer rights of renewal, the renewal terms are the same, and (c) if the separate leases have been lodged for registration under the Real Property Act 1900—the terms of the leases are all expressed to commence on registration of the plan. (2) A plan that, under this Act, is lodged for registration as a strata plan for a leasehold strata scheme and is required to be accompanied by a lease or leases to be registered under the Real Property Act 1900 is taken to have been registered only when the lease or leases are registered under that Act. 12 Effect on leases of registration of strata plan for leasehold strata scheme (1) Subsection (2) applies if, immediately before registration of a strata plan for a leasehold strata scheme, the whole of the parcel was subject to a lease or leases registered under the Real Property Act 1900 (each a registered lease) and intended to be wholly or partly replaced by leases (each a replacement lease) of the lots and the common property shown on the plan. (2) On registration of the strata plan— (a) each registered lease is determined (each a determined lease) to the extent it related to the lots and common property, and (b) any estate, interest or caveat affecting a determined lease affects a replacement lease to the extent it relates to the lots, and (c) all rights and obligations of the lessee, under a determined lease, existing immediately before the registration continue to be exercisable, or may be discharged, by that lessee as if the lease had not been determined, other than to the extent that the rights and obligations are— (i) inconsistent with the provisions of a replacement lease, or (ii) varied by the relevant parties. (3) Subsection (4) applies if, immediately before registration of a plan as a strata plan for a leasehold strata scheme, the parcel was subject to 2 or more registered leases intended to subsist after registration of the plan as leases of the lots shown on the plan. (4) On registration of the strata plan— (a) each lease that, immediately before the registration, was a lease of a part of the parcel that corresponds to a lot shown on the plan becomes a lease of that lot for the remainder of the term of the lease, subject to any estate, interest or caveat affecting the lease immediately before the registration, and (b) if any part of the parcel comprised in the plan is shown as common property, a lease affecting that part immediately before the registration is determined to the extent it relates to the common property. Division 2 Strata plans of subdivision and consolidation 13 Subdivision of lots and common property (1) A lot or common property may be subdivided by the registration of a plan as a strata plan of subdivision. (2) In subsection (1)— common property does not include common property the subject of an accepted lease or sublease. lot does not include a development lot. (3) The plan must— (a) include a location plan (if required by the Registrar-General), a floor plan and an administration sheet, and (b) if the plan is for a leasehold strata scheme—be accompanied by the replacement leases for the plan. (4) If land comprised in the plan is held by the original owner of the strata scheme, the plan must not be registered unless— (a) the initial period has expired, or (b) the original owner owns all lots in the scheme, or (c) an order has been made under section 27 of the Strata Schemes Management Act 2015 authorising the registration of the plan. (5) If the proposed strata plan of subdivision is intended to subdivide common property to which a common property rights by-law relates, the by-law must be repealed or amended so it does not relate to the common property intended to be subdivided. (6) The administration sheet for the plan must include the following— (a) a proposed schedule of unit entitlement relating to the strata scheme that complies with clause 3 or 4 of Schedule 2, (b) a strata certificate for the proposed strata plan of subdivision, (c) a surveyor's certificate for the proposed strata plan of subdivision, (d) a valuer's certificate for the proposed schedule of unit entitlement, (e) any other information or document prescribed by the regulations. Note— Subsection (6) (b) does not apply to a plan lodged by the Crown. See section 199 (2). 14 Subdivision of development lot (1) A development lot may be subdivided into lots, or lots and common property, by the registration of a plan as a strata plan of subdivision that complies with the relevant development contract. (2) The plan must— (a) include a location plan, a floor plan and an administration sheet, and (b) if the plan is for a leasehold strata scheme—be accompanied by the replacement leases for the plan. (3) The administration sheet for the plan must include the following— (a) a proposed schedule of unit entitlement relating to the strata scheme that complies with clause 5 of Schedule 2, (b) a strata certificate for the proposed strata plan of subdivision, (c) a surveyor's certificate for the proposed strata plan of subdivision, (d) a valuer's certificate for the proposed schedule of unit entitlement, (e) any other information or document prescribed by the regulations. Note— Subsection (3) (b) does not apply to a plan lodged by the Crown. See section 199 (2). (4) In this section— lot includes a development lot. 15 Consolidation of lots (1) Two or more lots may be consolidated into one lot by the registration of a plan as a strata plan of consolidation. (2) The plan must— (a) include an administration sheet, and (b) if the plan is for a leasehold strata scheme—be accompanied by the replacement leases for the plan. (3) The administration sheet for the plan must include a surveyor's certificate for the proposed strata plan of consolidation. (4) Subsection (5) applies in relation to the consolidation of lots if the owners corporation of the strata scheme— (a) agrees to the consolidation by special resolution, and (b) signs the proposed strata plan of consolidation. (5) Any common property in a wall, floor or ceiling that i