Subdivision involves the partition of a parcel of land into smaller portions. Once land is subdivided, a ‘title’ is created for each new portion which can be separately sold and transferred.
A subdivision may range from the creation of separate titles for a dual occupancy, the partition of a single lot into two, to a residential development with various parcels for the construction of strata units.
The subdivision of land is usually undertaken to optimise its permissible use and generate maximum profit. As a significant investment, it is important for landowners to understand the subdivision process, and receive professional advice specific to the land, their circumstances and investment objectives.
If you are contemplating purchasing land specifically for development, due diligence should be carried out to ensure it is suitable for the intended purpose and the proposed use is permitted. An experienced property and construction lawyer can assist with this process.
The role of council
Local councils are responsible for carrying out the administrative functions of a subdivision approval and certification processes. Councils may also need to consider any objections to a proposed subdivision.
During the approval process, plans may be referred for assessment to other government authorities which may have an interest in the proposal, such as those responsible for services and infrastructure like water, gas, electricity and roads.
The referral process ensures that each authority’s interests in the land or its assets are sufficiently addressed in consideration of the proposed subdivision.
Regulations and processes
Subdivision of land is governed by legislation, regulations, planning schemes, policies and controls administered by local councils and other bodies in each state or territory.
Most subdivisions require approval from the relevant local council – each have specific requirements for matters such as zoning, minimum lot sizes and engineering standards. In New South Wales, the subdivision process can be generalised as follows:
- the proposed subdivision is contemplated in light of the objectives for the development, the permitted use of the land and governing laws and regulations;
- a licenced surveyor is retained to prepare a plan of subdivision in accordance with the objectives, legislation and regulations;
- a Development Application is lodged with the relevant local council – if approval is granted, it will generally be subject to various conditions;
- a Construction Certificate issues which is the approval for works to be carried out that are necessary to complete the subdivision;
- when the subdivision works are completed and all conditions contained in the Development Application approval met, a Subdivision Certificate is issued, authorising registration of the plan;
- the plan of subdivision, together with the administration sheet and other prescribed information, is lodged for registration with NSW Land Registry Services.
Can my land be subdivided? Working with your lawyer and surveyor
One of the first steps in a proposed subdivision is ascertaining the type of development permitted on the land. This is generally determined by the land’s zoning as set out in the local planning scheme. A title search, plan of the land and zoning certificate will provide preliminary information about the land.
The proposed subdivision must also be consistent with local, regional and state planning objectives and policies, and address environmental and other implications such as access to new lots, the provision of open space or other facilities. Consideration will also be given to the capacity for existing utilities, services and infrastructure to support the proposed development.
A property or construction lawyer, in conjunction with your registered surveyor, will help identify and explain the legal and technical aspects of the proposed development. Your lawyer can also liaise with council and other authorities on your behalf.
The surveyor will prepare a proposed plan of subdivision which may include the creation of various lots, roads, reserves and / or common property. Many plans will also include the creation, removal or variation of easements and / or restrictions to meet statutory requirements and ensure the proposed development is functional.
Conclusion
Subdivision of land involves complex technical and legal processes and draft plans may need to be revised to comply with relevant laws and regulations before works commence.
This information is general only and you should obtain professional advice relevant to your individual circumstances. A property and construction lawyer can help by working with your surveyor, preparing the necessary property documents, and explaining important legal and titling concepts.
If you or someone you know wants more information or needs help or advice, please contact us on 0409 007 794 or email [email protected].