2

Land Title and Related Legislation Amndt Bill
30-11-07

2007

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

Land Title and Related Legislation Amendment Bill 2007 
Serial No 131

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Land Title and Related Legislation Amendment Bill 2007:

·	amends the Planning Act so that the provisions of that Act regarding subdivisions and consolidations apply to all subdivisions and consolidations relating to unit titles;

·	amends the Land Title Act so that the provisions of that Act that apply to consolidations of lots are the same general principles that apply to the subdivision of lots;

·	amends the Real Property (Unit Titles) Act so the general principles of the provisions of the Land Title Act dealing with consents to subdivisions and consolidations also apply to subdivisions and other changes of title under, or in respect of, titles to be issued or issued in accordance with the Unit Titles Act and the Real Property (Unit Titles) Act;

·	amends the Unit Titles Act so that the Surveyor-General rather than the Minister is responsible for most of the initial decisions relating to the approval of proposals regarding condominium and estate developments;

·	

amends the Unit Titles Act so that regulations can provide for various “management modules” to replace the current provisions of the Unit Titles Act that govern management, decision making and record keeping; and

·	amends the Law of Property Act so as to set out the default consequences for contracts for conveyancing transactions if a computer failure at the Land Titles Office prevents the lodgement or registration of a transaction.

NOTES ON CLAUSES

Part 1 – Preliminary matters

Clause 1.	Short Title

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Land Title and Related Legislation Amendment Act 2007.

Clause 2.	Commencement

The Act will commence on the day or days fixed by the Administrator by notice in the Northern Territory Government Gazette.

Part 2 - Amendment of Land Title Act

Clause 3.	Act amended

Part 2 amends the Land Title Act.

Clause 4.	Amendment of section 4 (Definitions)

Clause 4 inserts into section 4(1) of the Land Title Act new definitions for “consolidation”, “plan of consolidation” and “Registrar-General’s direction”.  The words “consolidation” and “plan of consolidation” are defined for the purposes of the amendments to sections 51, 52 and 53 and the repeal of section 55.  The term “Registrar-General’s direction” is defined so as to clarify the meaning of the term as used in sections of the Act such as section 52.

Consequential amendments are made to the definitions of “instrument”, “lot”, “plan of subdivision” and “plan of survey”.

Clause 5.	Repeal and substitution of Part 4, Division 3 heading

Clause 5 amends the heading for Part 3, Division 3 so that it is clear that the Division is dealing with consolidations as well as subdivisions.

Clause 6.	Repeal and substitution of section 51

This clause repeals and replaces section 51.  The purpose is to make it clear that section 51 is dealing with consolidations as well as subdivisions.

Proposed section 51(2) provides that lots may be consolidated by the registration of a plan of consolidation.  Consequent to this amendment section 55 is to be repealed.

Proposed section 51(3) makes it clear that the provsions in the 
Unit Titles Act and the Real Property (Unit Titles Act) concerning 
Unit Titles Act subdivisions under Part III, units plans of subdivision (section 21B), units plans of consolidation (section 21C) and changing of parcels (section 21FA) apply rather than section 51.

Clause 7.	Amendment of section 52 (requirements for registration of plan of subdivision)

Clause 7(1) amends the heading for section 52 so that it more accurately summarises the contents of section 52 (as to be amended by this Act).

Clause 7(2) – (11) revises section 52 to take account of the fact that section 52 applies to consolidations as well as subdivisions.

Clause 7(12) provides for a note which points out that section 52 is applied by the Unit Titles Act and the Real Property (Unit Titles) Act for certain purposes under those Acts.

Clause 8.	Amendment of section 53 (Particulars to be recorded on registration of plan)

Clause 8 makes aamendment to section 53 that is consequential to the amendments to section 4.

Clause 9.	

Amendment of section 54 (Division excluding road, railway or watercourse)

Clause 9(1) makes a drafting amendment to the heading for section 54.  Clause 9(2) and (3) makes amendments consequential to the other amendments in the Bill (so that it applies to consolidations as well as subdivisions).

Clause 10.	Repeal of section 55

Clause 10 repeals section 55.  Section 55 is no longer necessary because of the inclusion of the definition of “consolidation” in section 4 and the amendments to section 51.

Clause 11.	Repeal and substitution of Part 6, Division 4, Subdivision 2 heading

This clause makes an amendment that is consequential to the amendments to section 4.

Clause 12.	Amendment of section 101 (Easement or easement in gross only created in accordance with subdivision)

This clause makes amendments that are consequential to the amendments to section 4.

Clause 13.	Amendment of section 102 (Creation of easement or easement in gross by plan of subdivision)

This clause makes amendments that are consequential to the amendments to section 4.

Clause 14.	Amendment of section 103 (Instrument of easement or easement in gross to be lodged)

This clause makes an amendment that is consequential to the amendments to section 4.

Clause 15.	Amendment of section 105 (Instrument of easement or easement in gross may be lodged)

This clause makes an amendment that is consequential to the amendments to section 4.

Clause 16.	Repeal and substitution of Part 6, Division 5, Subdivision 2 heading

This clause makes an amendment that is consequential to the amendments to section 4.

Clause 17.	Amendment of section 115 (Covenant only created in accordance with subdivision)

This clause makes an amendment that is consequential to the amendments to section 4.

Clause 18.	Amendment of section 116 (Creation of covenant by plan of subdivision)

This clause makes amendments that are consequential to the amendments to section 4.

Clause 19.	Amendment of Part 12 heading

This clause makes changes the heading for Part 12. 

Clause 20.	New Part 13

This clause inserts new Part 13.

Part 13 – Transitional matters for Land and Related Legislation Amendment Act 2007

219 Application

This clause provides that the amendments made to the Land Title Act by this Act only apply to plans of consolidation and plans of subdivision lodged with the Registrar-General after the commencement of Part 2 of this Act.  However, for subdivisions and consolidations under the 
Unit Titles Act the transitional provsions set out in clause 47 will apply.

Part 3 – Amendment of Real Property (Unit Titles) Act

Clause 21.	Act amended

Part 3 amends the Real Property (Unit Titles) Act.

Clause 22.	Amendment of section 7 (Documents to be included in proposals)

Clause 21(3) and (4) repeal section 7(1) (d) (which is the provision dealing with consents required for the registration of a units plan) and replace it with new section 7(1) (d) and new subsections (1A), (1B) and (1C).  

The effect of the changes is that, as a general rule, the principles in section 52 of the Land Title Act apply in determining whether or not consent is required for the registration of a units plan.  

The exceptions are that consent is not required from service authorities 
(as defined in the Planning Act) or from referral authorities (as defined in the Planning Act) or from a person who has previously consented to the application that was the in the same form.  If the proposal has changed and if the person has not consented to the change the principles in section 52 of the Land Title Act will apply.)

These amendments are not intended to affect the operation of the principle that consents are not required for 2nd and subsequent stages of a condominium development following the registration of the registration of a plan for the first stage or if any of the other factors in section 7(2) apply. 

Clause 23.	Amendment of section 9B (Registration of units plan of subdivision and consolidation)

This clause amends section 9B (which deals with registration of 
re-subdivisions, consolidations and other changes made under Part IIIA of the Unit Titles Act) so that the principles in section 52 of the 
Land Title Act apply, as per proposed section 9DA (see clause 25 of this Bill) in determining whether or not consent is required for the registration of these kinds of changes.  

The exceptions are that consent is required from service authorities 
(as defined in the Planning Act) or from referral authorities (as defined in the Planning Act) or from a person who has previously consented to the application that was the in the same form.  If the proposal has changed and if the person has not consented to the change the principles in section 52 of the Land Title Act will apply.)

Clause 24.	Amendment of section 9C (Registration of notice of conversion)

This clause amends section 9C (which deals with registration of notices of conversion made under section 21E of the Unit Titles Act) so that the principles in section 52 of the Land Title Act apply in determining whether or not consent is required for the registration of these kinds of changes.  

The exceptions are that consent is required from service authorities 
(as defined in the Planning Act) or from referral authorities (as defined in the Planning Act) or from a person who has previously consented to the application that was in the same form.  If the proposal has changed and if the person has not consented to the change the principles in section 52 of the Land Title Act will apply.

Clause 25.	Amendment of section 9D (Registration of building alteration plan)

This clause amends section 9D (which deals with registration of building alteration plans under section 21F of the Unit Titles Act) so that the principles in section 52 of the Land Title Act apply in determining whether or not consent is required for the registration of these kinds of changes.  

The exceptions are that consent is required from service authorities 
(as defined in the Planning Act) or from referral authorities (as defined in the Planning Act or from a person who has previously consented to the application that was the in the same form.  If the proposal has changed and if the person has not consented to the change the principles in section 52 of the Land Title Act will apply.)

Clause 26.	New section 9DA

Cause 26 inserts new section 9DA.

9DA		Consent for the registration of documents

New section 9DA provides that for documents registered in accordance with section 9A (which deals with registration of units plans of subdivision, units plans of consolidation, building development plans and changes to parcels) the principles in section 52 of the 
Land Title Act apply in determining whether or not consent is required for the registration of these kinds of changes.  

Clause 27.	New Part V

This clause inserts new Part V (containing new section 24)

Part V – Transitional matters for Land Title and Related Legislation Amendment Act 2007

24	Application

The amendments made to the Real Property (Unit Titles) Act by this Act only apply to documents lodged after the commencement of those amendments.

Part 4 – Amendment of Unit Titles Act

Clause 28.	Act amended

This Part amends the Unit Titles Act.

Clause 29.	Amendment of section 4 (Interpretation)

Clause 29 inserts definitions of “management module” and 
“Surveyor-General”.

Clause 30.	Amendment of section 11 (Documents to be included in proposals)

This clause repeals section 11(3) of the Unit Titles Act so as to remove the requirement for proposals to be accompanied by a document signed by all persons (other than the Crown) having an estate or interest in the parcel, being an estate or interest that is registered under the Land Title Act, and whose estate or interest is affected by the proposed subdivision, indicating that those persons consent to the proposed subdivision.  Instead under the amendments to the 
Real Property (Unit Titles) Act to be made by Part 3 of this Bill these consents will not be required (for consideration by Government agencies) until the time of registration.  

This clause also inserts a new section 11(3) providing that, for crown leases, the consent of the relevant Minister must be provided along with whatever other documents are necessary to convert the land from crown leasehold to freehold.

Clause 31.	Amendment of section 16 (Condition of approval)

Clause 31(1) repeals section 16(1)(a).  This means that it is no longer necessary for an applicant to prove that the proposed unit is suitable for separate occupation.

Clause 31(2) omits and replaces section 16(1)(d).  These changes are consequential to the amendments (see clauses 39-41) pursuant to which subdivision consents rather than development approvals will now be required in respect of the issue of unit titles.

Clause 32.	

Amendment of section 21A (Unanimous consent required)

This clause amends section 21A (b) (ii) so as to reflect the changes made by clauses 21-27 to the Real Property (Unit Titles) Act.

Clause 33.	Repeal and substitution of section 26D (Condition of approval)

This clause repeals and substitutes section 26D.

26D Security for proposal

New section 26D provides that the Surveyor-General must consider whether security is necessary for the completion of a condominium development.  If the answer is “yes” the Surveyor-General must seek the Minister’s approval.  This replaces the current provisions under which the Minister, through delegates, makes all of the decisions concerning security deposits. 

Clause 34.	Repeal and substitution of section 26G

This clause repeals and substitutes section 26G.

26G Transfer of developer’s interest

New section 26G, like current section 26G, deals with the situation where (1) a developer is unable to complete a staged development and (2) titles have issued for at least one of the stages.  

This section provides that the developer cannot transfer his or her interest in the development except with the approval of the Minister.  Such approval cannot be given unless there has been an approval to the disclosure statement and if any required security has been provided.  

Clause 35.	Amendment of section 26H (Damage of failure, &c., of developer)

This clause makes a drafting amendment to the heading for 
section 26H.

Clause 35(2) adds new section 26H (3).  This clause preserves any actions that could be taken against a developer notwithstanding that the disclosure statement has been varied with the approval of the Minister.

Clause 36.	Amendment of section 26J (Variation of disclosure statement)

Clause 36 amends section 26J so that the Surveyor-General rather than the Minister is responsible for dealing with variations to disclosure statements.

Clause 37.	Repeal and substitution of section 26S

This clause repeals and replaces section 26S.  

26S Security for proposal

New section 26S provides that the Surveyor-General must consider whether security is necessary for the completion of an estate development.  If the answer is “yes” the Surveyor-General must seek the Minister’s approval.  This replaces the current provisions under which the Minister, through delegates, makes all of the decisions concerning security deposits.

Clause 38.	Repeal and substitution of section 26U

New section 26J deals with the situation where (1) a developer is unable to complete a stage of an estate development and (2) titles have issued for at least one of the stages.  

This section provides that the developer cannot transfer his or her interest in the development except with the approval of the Minister.  

Such approval cannot be given unless there has been an approval to the variation of the disclosure statement and if any required security has been provided.  

Clause 39.	Amendment of section 26V (Damage of failure, &c., of developer)

Clause 39(1) makes a drafting amendment to the heading for 
section 26V.

Clause 39(2) adds new section 26V(3).  This clause preserves any actions that could be taken against a developer notwithstanding that the disclosure statement has been varied with the approval of the Minister.

Clause 40.	

Amendment of section 26W (Variation of disclosure statement)

This clause substitutes the Surveyor-General for the Minister as the person responsible for dealing with variations to disclosure statements in respect of estate developments.

Clause 41.	Amendment of section 26ZI (Lodging of building development plan)

This clause omits section 26ZI(4) consequential to the other amendments relating to consents.

Clause 42.	New section 27A

Clause 42 inserts new section 27A.

27A Definitions

New section 27A provides, for Part V, a definition of “this Part”.  
The term is defined as to include “management modules”.

Clause 43.	Amendment of section 29 (Body corporate which is a member may appoint representatives)

This clause omits and replaces section 29 consequential to the repeals made by clauses 44 and 45.

29 Body corporate may appoint representative

This clause sets out the principles on which a body corporate may appoint a representative.

Clause 44.	Amendment of section 30A (Seal of corporation)

This clause amends section 30A consequential to the repeals made by clauses 45 and 47.

Clause 45.	Repeal of sections 48 to 50, 52 and 53A to 56

This clause repeals sections 48-50 (dealing with constitution of and meetings of committees), section 52 (dealing with the status of the decisions of committees) and sections 53A -56 (dealing with restrictions on powers of committees, delegations by committees, employment of agents and servants and the keeping of records and accounts).  

See clause 45 (new Division 4) for the provisions that are to replace these repealed provisions.

Clause 46.	Repeal and substitution of Part V, Divisions 4 and 5

Clause 46 repeals Divisions 4 and 5 of Part V (sections 58-75) dealing with meetings and voting at meetings) and provide for new Division 4. 

Division 4 Management Modules

58 Management modules

New section 58 provides that regulations may be made prescribing “management modules”.  These modules must provide for the making of decisions, the keeping of records and other management requirements.  The regulations may determine how a management module is chosen as being applicable to a corporation and also for transitional provisions (eg covering the transition from Part V structures to those in a management module). 

Clause 47.	New Part XI

This clause inserts new Part XI

Part XI – Transitional matters for Land Title and Related Legislation Amendment Act 2007

112	 Application

The amendments made to the Unit Titles Act by this Act only apply to documents lodged after the commencement of those amendments.

Clause 48.	Further amendments

Minor and consequential amendments to the Unit Titles Act are set to in the schedule.

Part 5 – Amendment of Planning Act

Clause 49.	Act amended

This Part amends the Planning Act.

Clause 50.	Amendment of section 3 (Interpretation)

This clause omits paragraph (b) of the definition of “consolidation” in section 3 of the Planning Act.  The effect of this change is that the consolidation provisions of the Planning Act apply to consolidations under the Unit Titles Act that are currently not subject to the 
Planning Act.

Clause 51.	Amendment of section 5 (Meaning of “subdivision”)

This clause omits paragraph (b) of the definition of “subdivision” in section 5(2) of the Planning Act.  The effect of this change is that the subdivision provisions of the Planning Act apply to subdivisions under the Unit Titles Act that are currently not subject to the Planning Act.

Clause 52.	Amendment of section 61 (Subdivisions etc. to be approved under Licensed Surveyors Act)

This clause amends section 61 of the Planning Act consequential to the amendments made by clauses 49 and 50.  The effect of the amendments is that all plans leading to unit titles or changes to 
unit titles must accord with a ‘plan of survey’ approved under section 49 of the Licensed Surveyors Act.

Clause 53.	New Part 13

This clause inserts new Part 13

Part 13	Transitional matters for Land Title and Related Legislation Amendment Act 2007

200	Application

The amendments made to the Planning Act by this Act only apply to documents lodged after the commencement of those amendments.

Part 6– Amendment of Law of Property Act

Clause 54.	Act amended

Part 4 amends the Law of Property Act.

Clause 55.	New section 72A

This clause inserts into the Law of Property Act new section 72A.

72A	Computer failure

New section 72A deals with the consequences on certain contracts if the settlement of a transaction cannot occur at the due time because of a failure of the computer or systems that underpin the lodgement and registration processes of the Land Titles Office.  

Subject to any provision in the contract between the affected parties, section 72A will deem that time has ceased to be of the essence, that the contract has not been breached and that a party, by giving notice, can set a new time (being a time not more than seven business days after the time when the computer is operational continuously).

Schedule	Further amendments to Unit Titles Act

The schedule contains additional minor amendments to the 
Unit Titles Act.