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 partition of a single lot into two, to a residential development with various parcels for the construction of several strata units.
The subdivision of land is usually undertaken to optimise its permissible use and generate profit. As a significant investment, landowners need 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 subdivision and development, it is essential to undertake due diligence to ensure the land is suitable for the intended purpose and the proposed use is permitted. An experienced property lawyer or conveyancer can assist with this process.
Regulations and processes
Subdivision of land is governed by a matrix of legislation, regulations, planning schemes, state and local planning policies and controls administered by local councils and other government bodies.
The Subdivision Act 1988 (Vic) sets out the legal framework and procedures for the subdivision and consolidation of land in Victoria, including the processes for the certification and registration of plans. The Act is supported by regulations covering procedural matters, fees and registrar’s requirements.
The Planning and Environment Act 1987 (Vic) plays a critical role in the approval process by regulating the use of land and ensuring developments proceed in a sustainable manner in light of environmental, social and economic factors, and policy considerations.
Generally, a subdivision project might take the following course:
- the proposed subdivision is contemplated in light of the objectives for the development, the permitted use of the land and governing laws and regulations and local planning scheme;
- a licenced surveyor is retained to prepare a plan of subdivision in accordance with the objectives, legislation and regulations;
- a planning permit (unless exempt) is obtained for the proposed subdivision – the permit confirms that the proposal in principle complies with the legislation and local planning scheme and sets out the general conditions for final approval;
- certification of the plan of subdivision is obtained – certification ensures the plan complies with the technical aspects of subdivision laws and the planning permit;
- subdivision works are undertaken in accordance with the plan and any permit conditions;
- a statement of compliance is obtained;
- the plan, together with the statement of compliance and other prescribed information, is lodged for registration with the relevant state titling department.
Can my land be subdivided? Working with your property team
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, and 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 town planner may prepare the planning permit application. Your team can help identify and explain the legal and technical aspects of the proposed development and also liaise with the 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. Plans may also need to include the creation, removal or variation of easements and/or restrictions to meet statutory requirements and ensure the proposed development is functional.
The role of council
A planning permit (unless exempt) must be obtained and the plan of subdivision certified before a subdivision proceeds and construction work commences.
Local councils are responsible for carrying out the administrative functions of the certification process and the issue of statements of compliance. Councils must also consider any objections to a proposed subdivision.
During the certification process, most plans are referred for assessment to various ‘referral authorities’, as noted in the relevant planning scheme, which may have an interest in the proposal. A referral authority is the relevant body responsible for services and infrastructure such as 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.
The authority will either issue consent, request specific alterations or refuse consent.
After the planning permit is issued and the final plan of subdivision is certified construction may commence.
Completion, registration and issue of new titles
A statement of compliance is issued by council once the subdivision works are properly completed and all requirements and conditions satisfied. A plan cannot be registered until this statement has issued.
The plan of subdivision is then lodged with the relevant accompanying documents, with the state titling office and new titles issued in accordance with the plan.
Conclusion
This article provides general information only and we recommend obtaining professional advice relevant to your proposed project and circumstances. 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 may commence. We can assist by working with your surveyor, preparing the necessary property documentation 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 03 9726 9569 or email [email protected].