Division 7Division 7 Strata certificates
65 Other Acts not to apply to subdivisions under Division 1
(1973 Act, s 36)
(1) Except as otherwise provided in this Act, any provision contained in the Conveyancing Act 1919, the Environmental Planning and Assessment Act 1979 or any other Act, being a provision relating to the manner of dividing land or any matter incidental thereto, does not apply to a subdivision effected under Division 1.(2) This section does not affect any requirement to obtain development consent under the Environmental Planning and Assessment Act 1979 to a subdivision to be effected under Division 1.
65A Persons who may apply for strata certificate
An application for a strata certificate may only be made:(a) by the owner of the land to which the application relates, or(b) by any other person, with the consent in writing of the owner of that land.
66 Approval of proposed strata plans, certain subdivisions and conversions of lots into common property
(1973 Act, s 37)
(1) Subject to this Division, a local council must, on application made to it for a strata certificate in respect of a proposed strata plan that does not include a development lot or lots, issue to the applicant a strata certificate in respect of that plan if:(a) where the land proposed to be subdivided is situated within a water supply authority’s area of operations—the water supply authority has issued a certificate of compliance for the proposed subdivision, and(b) the requirements of subparagraphs (i), (ii) and (iii) or the requirements of subparagraphs (iv), (v), (vi), (vii) and (viii) are satisfied:(i) a construction certificate has been issued under the Environmental Planning and Assessment Act 1979 with respect to the erection of any building containing any proposed lots to which the strata plan relates,(ii) the proposed lots illustrated by that plan substantially correspond with parts of any such building shown in the building plans accompanying the construction certificate and designated in those building plans as being intended for separate occupation,(iii) any such building was completed not more than 12 months, or such longer period as the local council may in any particular case fix, before the application for the strata certificate under this subsection was made to the certifier,(iv) separate occupation of the proposed lots illustrated by the strata plan will not contravene the provisions of the Environmental Planning and Assessment Act 1979 or of any environmental planning instrument within the meaning of that Act,(v) any consent required under that Act or instrument has been given in relation to the separate occupation of the proposed lots illustrated by that plan,(vi) having regard to the circumstances of the case and the public interest, the local council is satisfied that the subdivision to which the plan relates will not interfere with the existing or likely future amenity of the neighbourhood,(vii) the land proposed to be subdivided is not the subject of any outstanding order, requirement or notice of a kind referred to in, or given under, a provision referred to in subsection (1A),(viii) if the local council has made an order of the kind referred to in Order No 6 in the Table to section 121B of the Environmental Planning and Assessment Act 1979 in relation to the land proposed to be subdivided—the order has been complied with or an appeal against the order has been made under section 121ZK of that Act and the Land and Environment Court has refused to confirm the order.(1A) For the purposes of subsection (1) (b) (vii), the orders and provisions referred to in this subsection are as follows:(a) any order of the kind referred to in Orders Nos 2, 4, 8 or 9 in the Table to section 121B of the Environmental Planning and Assessment Act 1979,(b) any order of the kind referred to in Orders Nos 21, 22, 23, 24 or 25 in the Table to section 124 of the Local Government Act 1993,(c) provisions of regulations made under the Local Government Act 1993 or the Environmental Planning and Assessment Act 1979 that are prescribed for the purposes of this subsection.(2) Subject to this Division, a local council must, on application made to it for a strata certificate in respect of a proposed strata plan that includes a development lot or lots, or of a proposed strata plan of subdivision of a development lot, issue to the applicant a strata certificate in respect of that plan if:(a) the requirements of subsection (1) (a) and (b) are satisfied, and(b) the plan and any building containing proposed lots to which the plan relates:(i) satisfy any applicable development consent conditions, and(ii) give effect to the stage of the strata development contract to which they relate.(3) A local council on application made to it for a strata certificate in respect of a plan illustrating a proposed subdivision (not being a proposed subdivision of a development lot) referred to in section 4 (7) (a) shall, unless the application was accompanied by a certificate under the seal of the body corporate certifying that by resolution passed at a general meeting it agrees to the proposed subdivision, send, by certified mail, notice of the proposed subdivision to the body corporate concerned inviting it to express its views upon the proposed subdivision within a time (being not less than 21 days after the notice was sent) specified in the notice.(4) A local council may after the expiration of the time specified in the notice sent under subsection (3) and after taking into consideration:(a) any representations made to the local council by the body corporate to which the notice was sent,(b) whether the proposed subdivision would be likely:(i) to detract from the external appearance of the building containing the lot the subject of the proposed subdivision,(ii) to render inadequate existing services to other lots the subject of the leasehold strata scheme concerned, or(iii) by increasing the number and decreasing the size of lots within that building, to detract from the amenity or value of any other lot the subject of the leasehold strata scheme concerned, and(c) the matters specified in subsection (1) (b) (iv), (v) and (vi), as if the reference in subsection (1) to a proposed strata plan were a reference to the plan to which the notice relates,issue a strata certificate in respect of the plan to which the notice relates.(5) A local council, on application made to it for a strata certificate in respect of a plan illustrating a proposed subdivision (not being a proposed subdivision of a development lot) referred to in section 4 (7) (b), (c) or (d), may:(a) if that plan, upon lodgment with the local council, was accompanied by a certificate under the seal of the body corporate concerned certifying that it has, by special resolution, consented to the proposed subdivision, and(b) after taking into consideration the matters specified in subsection (1) (b) (iv), (v) and (vi), as if the reference in subsection (1) to a proposed strata plan were a reference to the plan illustrating the proposed subdivision,issue the strata certificate applied for.(6) A local council, on application made to it for a strata certificate in respect of a proposed notice of conversion, may:(a) if that notice, upon lodgment with the local council, was accompanied by a certificate under the seal of the body corporate concerned certifying that it has, by special resolution, consented to the proposed conversion, and(b) if, having regard to the circumstances of the case and the public interest, it is satisfied that the proposed conversion will not interfere with the existing or likely future amenity of the neighbourhood,issue the certificate applied for.(7) Despite any other provision of this section, a council, in considering an application for a strata certificate where there is a relevant development consent in force, is not required to satisfy itself of the following matters:(a) the matters set out in subsection (1) (b) (vi) (as required by subsections (1), (2) (a), (4) (c) and (5) (b)),(b) the matters set out in subsection (4) (b),(c) the matters set out in subsection (6) (b).(7A) For the purposes of subsections (1), (2), (4), (5) and (7), if an Act provides that Part 4 of the Environmental Planning and Assessment Act 1979 does not apply to the carrying out of the development on the land to which the strata plan relates, a reference in subsection (1) (b) (iv) or (v) to the Environmental Planning and Assessment Act 1979 or an environmental planning instrument is taken to be a reference to the Act under which development consent to the carrying out of development on that land may be granted or an instrument made under that Act as the case requires.(8) Despite any other provision of this section, a local council must not grant a strata certificate in respect of a proposed strata plan, strata plan of subdivision or notice of conversion for which no relevant development consent is in force or is required unless it has considered the following:(a) whether the following will be appropriate to the building’s proposed use:(i) the structural strength and load-bearing capacity of the building the subject of the plan or notice,(ii) the measures to protect persons using the building, and to facilitate their egress from the building, in the event of fire,(iii) the measures to restrict the spread of fire from the building to other buildings nearby,(b) whether the building complies, or will, when completed, comply, with such of the Category 1 fire safety provisions as are applicable to the building’s proposed use.(9) In subsection (8):Category 1 fire safety provisions means the provisions prescribed for the purposes of this section by the regulations.
66A Approvals by accredited certifiers
(1) An accredited certifier may issue a strata certificate in respect of a proposed strata plan, proposed strata plan of subdivision or proposed notice of conversion in accordance with this section.(2) An accredited certifier must issue a strata certificate in respect of a proposed strata plan that does not include a development lot or lots if:(a) there is a relevant development consent in force, and(b) all conditions of the development consent that, by its terms, are required to be complied with before a strata certificate may be issued have been complied with, and(c) where the land proposed to be subdivided is situated within a water supply authority’s area of operations—the water supply authority has issued a certificate of compliance for the proposed subdivision, and(d) the requirements of subparagraphs (i), (ii) and (iii) or the requirements of subparagraphs (iv), (v), (vi) and (vii) are satisfied:(i) a construction certificate has been issued under the Environmental Planning and Assessment Act 1979 with respect to the erection of any building containing any proposed lots to which the strata plan relates,(ii) the proposed lots illustrated by that plan substantially correspond with parts of any such building shown in the building plans accompanying the construction certificate and designated in those building plans as being intended for separate occupation,(iii) any such building was completed not more than 12 months, or such longer period as the relevant local council may in any particular case fix, before the application for the strata certificate under this subsection was made to the certifier,(iv) separate occupation of the proposed lots illustrated by the strata plan will not contravene the provisions of the Environmental Planning and Assessment Act 1979 or of any environmental planning instrument within the meaning of that Act,(v) any consent required under that Act or instrument has been given in relation to the separate occupation of the proposed lots illustrated by that plan,(vi) the land proposed to be subdivided is not the subject of any outstanding order, requirement or notice of a kind referred to in, or given under, a provision referred to in section 66 (1A),(vii) if the relevant local council has made an order of the kind referred to in Order No 6 in the Table to section 121B of the Environmental Planning and Assessment Act 1979 in relation to the land proposed to be subdivided—the order has been complied with or an appeal against the order has been made under section 121ZK of that Act and the Land and Environment Court has refused to confirm the order.(3) An accredited certifier must issue a strata certificate in respect of a proposed strata plan that includes a development lot or development lots, or in respect of a proposed strata plan of subdivision of a development lot, if:(a) the requirements of subsection (2) (a)–(d) are satisfied, and(b) the plan and any building containing proposed lots to which the plan relates:(i) satisfy any applicable development consent conditions, and(ii) give effect to the stage of the strata development contract to which they relate.(4) An accredited certifier must issue a strata certificate in respect of a plan illustrating a proposed subdivision (not being a proposed subdivision of a development lot) referred to in section 4 (7) (a) if:(a) the requirements of subsection (2) (a), (b) and (d) (iv) and (v) are satisfied (as if the reference in subsection (2) (d) (iv) or (v) is a reference to the plan to which the application for certification relates), and(b) the body corporate concerned has certified that by resolution passed at a general meeting it agrees to the proposed subdivision.(5) An accredited certifier must issue a strata certificate in respect of a plan illustrating a proposed subdivision (not being a proposed subdivision of a development lot) referred to in section 4 (7) (b), (c) or (d) if:(a) the requirements of subsection (2) (a), (b) and (d) (iv) and (v) are satisfied (as if the reference in subsection (2) (d) (iv) or (v) is a reference to the plan illustrating the proposed subdivision), and(b) the body corporate concerned has certified that by special resolution passed by the body corporate it agrees to the proposed subdivision.(6) An accredited certifier must issue a strata certificate in respect of a proposed notice of conversion if:(a) the requirements of subsection (2) (a) and (b) are satisfied, and(b) the body corporate concerned has certified that by special resolution passed by the body corporate it agrees to the proposed conversion.(7) For the purposes of subsections (2)–(5), if an Act provides that Part 4 of the Environmental Planning and Assessment Act 1979 does not apply to the carrying out of the development on the land to which the strata plan relates, a reference in subsection (2) (d) (iv) or (v) to the Environmental Planning and Assessment Act 1979 or an environmental planning instrument is taken to be a reference to the Act under which development consent to the carrying out of development on that land may be granted or an instrument made under that Act as the case requires.(8) Despite any other provision of this section, a strata certificate must not be issued by an accredited certifier unless all regulations with respect to the provision of such certificates have been complied with.
66AA Requirements relating to issue of strata certificates
A council or accredited certifier is to be satisfied before issuing a strata certificate that any inspections required by the regulations have been carried out.
66B Relevant development consents
(1) For the purposes of this Act, a relevant development consent is in force in relation to a proposed strata plan or strata plan of subdivision if:(a) development consent is required to the subdivision the subject of the proposed strata plan or strata plan of subdivision and the development consent has been granted, or(b) such development consent is not required but development consent is required with respect to the building concerned and development consent has been granted to building work in respect of a building, or a change of use of a building, having proposed lots designed for separate occupation as illustrated by the plan,and the development consent has not lapsed.(2) For the purposes of this Act, a relevant development consent is in force in relation to a notice of conversion if:(a) development consent is required to the conversion the subject of the notice and the development consent has been granted, or(b) such development consent is not required but development consent is required with respect to a change of use or building work associated with the conversion and the development consent has been granted,and the development consent has not lapsed.
The regulations may make provision for or with respect to the following matters:(a) applications for and the issue of strata certificates,(b) the matters to be notified by accredited certifiers to local councils with respect to strata certificates,(c) the records to be kept by accredited certifiers and local councils with respect to strata certificates issued, or refused, by accredited certifiers.
66D Satisfaction as to compliance with conditions precedent to issue of strata certificates
(1) A person who exercises functions under this or any other Act in reliance on a strata certificate issued under this Act is entitled to assume:(a) that the certificate has been duly issued, and(b) that all conditions precedent to the issue of the certificate have been duly complied with, and(c) that all things that are stated in the certificate as existing or having been done do exist or have been done,and is not liable for any loss or damage arising from any matter in respect of which the certificate has been issued.(2) This section does not apply to an accredited certifier in relation to any strata certificate that he or she has issued.
66E Accreditation of certifiers
(1) The provisions of Parts 2, 3, 4 and 5 and Divisions 1, 3 and 4 of Part 6 and Parts 7 and 8 of the Building Professionals Act 2005, and the regulations made under that Act for the purposes of those provisions, apply, with any necessary modifications and any modifications prescribed by the regulations, in respect of the following:(a) the appointment and accreditation of accredited certifiers for the purposes of this Act,(b) accredited certifiers,(c) the exercise of functions under this Act by accredited certifiers.(2) Without limiting subsection (1), the provisions of the Building Professionals Act 2005 and the regulations under that Act referred to in that subsection apply to a strata certificate in the same way as those provisions apply to a Part 4A certificate under the Environmental Planning and Assessment Act 1979.
66F Insurance of accredited certifiers
The provisions of Division 2 of Part 6 of the Building Professionals Act 2005, and the regulations made under that Act for the purposes of those provisions, apply, with any necessary modifications and any modifications prescribed by the regulations, to accredited certifiers exercising functions under this Act in the same way that it applies to accredited certifiers exercising the functions of a certifying authority within the meaning of the Environmental Planning and Assessment Act 1979.
(1973 Act, s 38)
(1) The local council may refuse to issue a strata certificate in respect of a proposed strata plan or strata plan of subdivision if any building illustrated by that plan encroaches on a public place but may issue a strata certificate in respect of such a plan if:(a) the plan clearly indicates the existence of the encroachment and its nature and extent, and(b) (Repealed)(c) it is satisfied that retention of the encroachment in its existing state will not endanger public safety or unreasonably interfere with the amenity of the neighbourhood.(1A) An accredited certifier must refuse to issue a strata certificate in respect of a proposed strata plan or strata plan of subdivision if any building illustrated by that plan encroaches on to a public place unless:(a) the plan clearly indicates the existence of the encroachment and its nature and extent, and(b) either one of the following matters is satisfied:(i) the building complies with any relevant development consent in force with respect to the building with the encroachment,(ii) any relevant development consent in force with respect to the subdivision the subject of the plan specifies the existence of the encroachment.(2) Where a local council or an accredited certifier issues a strata certificate in respect of a proposed strata plan or a strata plan of subdivision illustrating a building referred to in subsection (1) or (1A):(a) in the case of an approval by a local council, the local council must not issue a strata certificate under section 66 (1), (2), (4) or (5) unless the certificate refers to the existence of the encroachment and indicates that the local council does not object thereto, and(a1) in the case of an approval by an accredited certifier, the accredited certifier must not issue a strata certificate under section 66A (2), (3), (4) or (5) unless the certificate refers to the existence of the encroachment and indicates:(i) the local council has granted a relevant development consent that is in force for the building with the encroachment, or(ii) a relevant development consent that is in force for the subdivision the subject of the plan specifying the existence of the encroachment, and(b) the provisions of this Act, other than those relating to ownership and certification of title, apply:(i) in the case of so much of the encroachment as is designated on the plan for use with a lot—as if it were part of the lot, or(ii) in any other case—as if it were common property.
(1973 Act, s 39)
(1) Where the registration of a plan submitted to a local council for the issue of a strata certificate would result in the creation of one or more utility lots (being lots designed to be used primarily for storage or accommodation of boats, motor vehicles or goods and not for human occupation as a residence, office, shop or the like), the local council may qualify any strata certificate issued under section 66 in respect of that plan by attaching a condition restricting the use of that utility lot or those utility lots to use by a lessee or occupier of a lot or proposed lot, not being such a utility lot, the subject of the leasehold strata scheme concerned.(1A) If the registration of a plan submitted to an accredited certifier for issue of a strata certificate would result in the creation of one or more utility lots as referred to in subsection (1) and the relevant development consent contains a condition restricting the use of that utility lot or those utility lots to use by a proprietor or occupier of a lot or proposed lot, not being such a utility lot, the certifier must note the restriction on the strata certificate.(2) A restriction on use imposed pursuant to subsection (1) or noted under subsection (1A):(a) shall designate each utility lot burdened by the restriction, and(b) shall describe the restriction by reference to this section.(3) Section 88 of the Conveyancing Act 1919 does not apply to a restriction imposed pursuant to subsection (1) or in a development consent referred to in subsection (1A).(4) The local council, upon an application made by the lessor under the scheme and by the lessee of or a registered mortgagee of a lease of a utility lot the subject of a restriction referred to in subsection (1) or (1A), may execute an instrument, in the form approved under the Real Property Act 1900, which provides that the lot is released from that restriction.
69 Notices of and appeals against refusal of approval
(1973 Act, s 40)
(1) In this section application means an application to a local council or an accredited certifier for a strata certificate in respect of:(a) a proposed strata plan,(b) a proposed strata plan of subdivision,(c) a notice of conversion, or(d) a proposed amendment of a strata development contract.(2) A local council or an accredited certifier to which an application is made shall cause notice of the decision on the application to be given to the applicant.(2A) A notice of refusal by an accredited certifier to approve of an application must specify the grounds of refusal.(3) A notice of refusal by a local council to approve of an application shall:(a) specify the grounds of refusal, and(b) indicate that the applicant has a right to appeal under subsection (4) against the refusal.(4) Upon any refusal by a local council to approve of an application, upon approval by a local council of an application subject to a condition referred to in section 68 (1) or upon failure by a local council to notify its approval of an application to the applicant within a period of 14 days:(a) except as provided in paragraph (b), after receiving the application, or(b) in the case of an application for a strata certificate referred to in section 66 (3) where a notice was sent under section 66 (3), after the expiration of the time referred to in the notice,the applicant may, within 12 months after the date on which the applicant received notice of the local council’s decision or after the expiration of that period of 14 days, as the case may be, appeal to the Land and Environment Court.(c), (d) (Repealed)(5) An appeal may be made under subsection (4) to the Land and Environment Court even though the period for commencing the appeal has expired, but only if the Court allows the appeal to be so made because of special circumstances.(6) The decision of the Land and Environment Court upon any appeal under subsection (4) shall be deemed to be the final decision of the local council and shall be given effect to accordingly.