Environmental Planning and Assessment Act 1979 No 203
Historical version for 1 December 2015 to 26 January 2016 (accessed 3 June 2020 at 14:35) Current version
Schedule 5
Schedule 5 Paper subdivisions
(Section 155)
1   Definitions
In this Schedule:
development plan—see clause 6.
development plan costs means the following:
(a)  the costs of obtaining or preparing any reports,
(b)  the amount of any levies, fees or other charges applicable to the proposed subdivision or subdivision works,
(c)  administrative costs of the relevant authority relating to the development plan,
(d)  any other costs prescribed by the regulations for the purposes of this definition.
planning purpose—see clause 3 (1) (c).
relevant authority for subdivision land means the authority designated by a subdivision order as the relevant authority for the land.
subdivision land means land subject to a subdivision order.
subdivision order means an order under clause 3.
subdivision works means works for the following purposes:
(a)  roads,
(b)  water supply, sewerage services and drainage,
(c)  telecommunications,
(d)  electricity supply,
(e)  any other purpose prescribed by the regulations for the purposes of this definition.
2   Subdivision authorities
Any of the following authorities may be designated in a subdivision order as the relevant authority for the subdivision land:
(a)  the corporation,
(b)  a council,
(c)  Landcom,
(d)  a development corporation established under the Growth Centres (Development Corporations) Act 1974,
(e)  any other body prescribed by the regulations.
3   Subdivision orders
(1)  The Minister may, by order published in the Gazette:
(a)  declare specified land to be subdivision land, and
(b)  specify the relevant authority for the subdivision land, and
(c)  specify the purpose for which the order is made (the planning purpose), and
(d)  specify the functions (if any) under this Schedule conferred on the relevant authority, and
(e)  specify the conditions (if any) to which the exercise of those functions are subject, and
(f)  specify the subdivision works (if any) to be undertaken by the relevant authority in respect of the subdivision land.
(2)  The Minister may make a subdivision order only if:
(a)  the Minister is of the opinion that it is desirable to do so to promote and co-ordinate the orderly and economic use and development of the land affected by the order, and
(b)  the land has been subdivided and is held by more than one owner and the Minister is satisfied that the land is land for which no provision or inadequate provision has been made for subdivision works, and
(c)  that land is subject to an environmental planning instrument, or a planning proposal, that will facilitate the proposed planning purpose, and
(d)  the Minister has consulted with the proposed relevant authority, any other Minister responsible for that authority and the council of the area in which that land is situated, and
(e)  the Minister is satisfied that a development plan for that land has been prepared by the relevant authority in accordance with this Schedule, and
(f)  the Minister has considered any provisions of the development plan that modify or disapply the provisions of Division 4 of Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991, and
(g)  at least 60% of the total number of owners of that land, and the owners of at least 60% of the total area of that land, have consented to the proposed development plan.
(3)  For the purposes of subclause (2) (b) and (g), 2 or more owners of the same lot are to be treated as one owner.
(4)  The Minister may repeal a subdivision order only if the Minister:
(a)  has consulted with the relevant authority for the subdivision land and the council of the area in which the land is situated, and
(b)  is satisfied that notice of the proposed repeal has been given to the owners of the land subject to the order in the manner prescribed by the regulations.
(5)  Subclause (2) (g) does not apply to an order amending a subdivision order.
Note.
 Regulations under clause 6 (3A) may require consent to be obtained to amendments to an applicable development plan.
4   Functions of relevant authority
(1)  A relevant authority has the functions conferred on it by a subdivision order.
(2)  A relevant authority may only exercise functions conferred on it under a subdivision order for the purposes of, or purposes ancillary to, the planning purpose specified in the subdivision order.
(3)  Functions conferred on a relevant authority by a subdivision order are in addition to any other functions conferred on the authority under any other law.
(4)  Clauses 7–13 set out the functions that may be conferred on a relevant authority under a subdivision order but do not otherwise confer those functions on a relevant authority.
(5)  A relevant authority may not exercise functions under clause 7 or 9 unless there is a development plan in force in relation to the subdivision land.
5   Obligations of relevant authority
A relevant authority must, in accordance with the subdivision order and any development plan applicable to the subdivision land, give effect to the planning purpose specified in the order and must undertake or arrange for the undertaking of any subdivision works specified in the order.
6   Development plans
(1)  An authority referred to in clause 2 may, and must at the request of the Minister, prepare a development plan for subdivision land or proposed subdivision land.
(2)  A development plan is to contain the following matters:
(a)  a proposed plan of subdivision for the land,
(b)  details of subdivision works to be undertaken for the land,
(c)  details of the costs of the subdivision works and of the proposed means of funding those works,
(c1)  details of the development plan costs,
(d)  details of the proportion of the costs referred to in paragraphs (c) and (c1) to be borne by the owners of the land and of the manner in which the owners may meet those costs (including details of any proposed voluntary land trading scheme or voluntary contributions or, if voluntary measures are not agreed to by owners, of compulsory land acquisition or compulsory contributions),
(e)  rules as to the form of compensation for land that is compulsorily acquired and how entitlement to compensation is to be calculated,
(f)  rules as to the distribution of any surplus funds after the completion of subdivision works for the land,
(g)  any other matters prescribed by the regulations.
(3)  Regulations may be made for or with respect to procedures for the preparation, public notification, adoption, publication, amendment and repeal of development plans.
(3A)  Without limiting subclause (3), the regulations may require the consent of the owners of subdivision land to be obtained to proposed amendments to the applicable development plan in the circumstances, and in the manner, specified by the regulations.
(4)  The validity of a development plan must not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette.
7   Land acquisition powers
(1)  A relevant authority may, for a planning purpose specified in a subdivision order, acquire subdivision land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.
(2)  A relevant authority may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.
(3)  The following provisions apply if compensation provided for that acquisition is in accordance with the rules set out in a development plan in force in relation to the land:
(a)  sections 44 (2), 45 (3), 49–51, 64, 66 (4) and 68 (2) of the Land Acquisition (Just Terms Compensation) Act 1991 do not apply in relation to compensation other than monetary compensation,
(b)  all or any provisions of Division 4 of Part 3 of that Act do not apply, or apply with modifications, if the development plan so provides.
(4)  The rules set out in a development plan may provide that all or any of the provisions of Division 4 of Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991 do not apply to the determination of compensation under that plan, or apply with such modifications as are set out in that plan.
(5)  If the rules set out in a development plan make provision as referred to in subclause (4), the Valuer-General must determine compensation to be offered to a person under the Land Acquisition (Just Terms Compensation) Act 1991 in respect of land acquired under this clause in accordance with the rules set out in any applicable development plan adopted by a relevant authority for the land.
(6)  For the purposes of this clause, a reference in the Land Acquisition (Just Terms Compensation) Act 1991 to an amount of compensation includes a reference to compensation other than monetary compensation and a reference to payment of compensation includes a reference to the provision of such compensation.
(7)  Subclauses (3)–(6) have effect despite any provision of the Land Acquisition (Just Terms Compensation) Act 1991.
8   Other powers to acquire and dispose of land
A relevant authority may sell, lease, exchange, mortgage or otherwise deal with or dispose of subdivision land vested in the authority, or an interest in that land, and may grant easements, rights-of-way or covenants over that land.
9   Contribution powers
(1)  A relevant authority may, by notice in writing, require an owner of subdivision land to make a reasonable monetary contribution for the provision, extension or augmentation of subdivision works and the development plan costs.
(2)  A requirement under this clause must be in accordance with the development plan applicable to the subdivision land.
(3)  The amount payable by the owner of subdivision land under this clause is to be reduced by the amount or value of any voluntary contribution (whether a monetary or other contribution) made by the owner for the provision, extension or augmentation of subdivision works and the development plan costs in accordance with the development plan applicable to the subdivision land or an agreement with the relevant authority.
(4)  Compliance with a requirement for a contribution under this clause, or a voluntary contribution made in accordance with a development plan, operates to satisfy any other requirement imposed by a public authority under this or any other Act (in relation to or in connection with the subdivision land) for the dedication of land or the payment of money in respect of the provision of the same subdivision works, to the extent of the value of the land dedicated or the amount of money paid in compliance with the requirement.
(5)  The regulations may make provision for the determination of the value for the purposes of this clause of the land dedicated or traded to the authority in accordance with a development plan.
(6)  A contribution required to be made under this clause may be in addition to any other contribution required to be made under this Act.
10   Use of monetary contributions and other amounts
(1)  The following are to be paid by the authority to a fund or funds approved by the Minister:
(a)  a monetary contribution paid to a relevant authority by the owner of subdivision land for subdivision works or development plan costs,
(b)  any money paid by the relevant authority to meet contribution amounts under the development plan in respect of land acquired by the authority under this Schedule,
(c)  the proceeds of any disposal by the relevant authority of land acquired under this Schedule.
(2)  The following may be paid from any fund to which contributions or amounts are paid under this clause:
(a)  payments to persons or bodies with respect to the provision of subdivision works,
(b)  payments in connection with the exercise of functions by the relevant authority for the planning purpose specified in the subdivision order,
(c)  payments for the whole or part of compensation payable under clause 7 and any payments required to be made under the Land Acquisition (Just Terms Compensation) Act 1991,
(d)  payments for the distribution of any surplus funds after the completion of subdivision works and any other payments under this clause,
(e)  any money required to meet the administrative expenses of the relevant authority in relation to its functions under the subdivision order.
11   Powers to carry out subdivision works
(1)  The relevant authority may carry out, or arrange for the carrying out of, subdivision works with respect to subdivision land.
(2)  The relevant authority may enter into contracts and other arrangements for the carrying out of subdivision works.
(3)  A relevant authority may make a development application to carry out development on subdivision land for the purposes of subdivision works without the consent of the owner of the land.
(4)  The consent authority may grant consent to any such development application even if the owner of the land has failed to consent to the application.
(5)  In this clause, subdivision works includes the carrying out of any research or investigation related to the provision or augmentation of subdivision works.
12   Roads powers
(1)  A road within subdivision land cannot be provided, opened, dedicated, closed (within the meaning of Part 4 of the Roads Act 1993) or realigned by the Crown, a public authority or any person except with the consent of the relevant authority.
(2)  A private road, or part of a private road, within subdivision land cannot be:
(a)  provided, opened, closed or realigned, or
(b)  regulated in its use, or
(c)  used for a purpose other than a road,
except with the consent of the relevant authority.
13   Ancillary powers
A relevant authority has, for the purpose of any other functions conferred under this Schedule, the following functions:
(a)  the authority may enter into agreements with the owners of subdivision land for the purposes of a voluntary land trading scheme or the provision of voluntary contributions or for other purposes connected with the authority’s functions under the subdivision order,
(b)  the authority may cause surveys to be made, and plans of survey to be prepared, in relation to subdivision land or proposed subdivision land (whether or not vested in the authority),
(c)  the authority may manage subdivision land vested in the authority in accordance with the development plan,
(d)  the authority may carry out research or investigation relating to subdivision works or proposed subdivision works,
(e)  the authority may (subject to this Act) subdivide and re-subdivide land, and consolidate subdivided or re-subdivided land vested in the authority,
(f)  with the consent of the owner or occupier of the land, a person authorised in writing by the authority may enter subdivision land or proposed subdivision land.
14   Power to investigate land for subdivision order proposals
An authority specified in clause 2 may, before a subdivision order is made.
(a)  cause surveys to be made, and plans of survey to be prepared, in relation to proposed subdivision land (whether or not vested in the authority), and
(b)  carry out research or investigation relating to proposed subdivision works.
15   Other powers of entry
(1)  An authorised person may, without the consent of the owner or occupier of subdivision land or proposed subdivision land and in accordance with the regulations:
(a)  enter that land for a planning purpose, or
(b)  enter that land in connection with the carrying out of subdivision works or research or investigation relating to proposed subdivision works, or
(c)  enter that land in connection with the preparation of, or research or investigation for the purposes of, a development plan or proposed development plan.
(2)  In this clause, authorised person means the following persons:
(a)  a person authorised in writing by a relevant authority,
(b)  a person authorised in writing by the Minister in connection with the exercise of the powers of an authority under clause 14.
16   Failure to pay contributions
A monetary contribution required to be paid by an owner of subdivision land under clause 9 may be recovered by the relevant authority in any court of competent jurisdiction as a debt due to the relevant authority by the owner.
17   Voluntary contributions agreements to run with land
(1)  A voluntary contributions agreement is a voluntary agreement between a relevant authority and a person who owns subdivision land under which the owner is required to pay a monetary contribution to be used for or applied for subdivision works or development plan costs.
(2)  A voluntary contributions agreement can be registered under this clause if the following persons agree to its registration:
(a)  if the agreement relates to land under the Real Property Act 1900—each person who has an estate or interest in the land registered under that Act,
(b)  if the agreement relates to land not under the Real Property Act 1900—each person who is seised or possessed of an estate or interest in the land.
(3)  On lodgment by a relevant authority of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the voluntary contributions agreement:
(a)  by making an entry in the relevant folio of the Register kept under the Real Property Act 1900 if the agreement relates to land under that Act, or
(b)  by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900.
(4)  A voluntary contributions agreement that has been registered by the Registrar-General under this clause is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being had entered into the agreement.
(5)  A reference in this clause to a voluntary contributions agreement includes a reference to any amendment or revocation of a voluntary contributions agreement.
18   State taxes
(1)  State tax is not chargeable in respect of any matter or thing done by a relevant authority in the exercise of its functions under this Schedule if the Minister, with the approval of the Treasurer, exempts the authority from payment of any or all State taxes.
(2)  In this clause, State tax means duty under the Duties Act 1997 or any other tax, duty, rate (including a local government rate), fee or other charge imposed by or under any Act or law of the State, other than payroll tax.
19   Obstruction of authorised persons
A person must not obstruct, hinder or interfere with a person authorised in writing by an authority specified in clause 2 or authorised under clause 15 in the exercise of the person’s functions or functions of the authority under this Schedule.
Maximum penalty: 100 penalty units.
20   Regulations
Regulations may be made for or with respect to the following matters:
(a)  the manner in which consent to a development plan is to be given by owners of land,
(b)  information to be provided to the Minister by, and reports by, relevant authorities,
(c)  the effect of the repeal or amendment of a subdivision order, or of the amendment of a development plan.