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, 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 and construction lawyer can assist with this process.
Regulations and processes
Subdivision of land is generally governed by a matrix of legislation, regulations, planning schemes, state and local planning policies and controls administered by local councils and other government bodies, as relevant in each jurisdiction.
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.
Although each development is unique, a subdivision generally takes 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;
- 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;
- subdivision works are undertaken in accordance with the plan and any 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 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. 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.
Generally, a 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.
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.
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 prepared by your surveyor and / or lawyer, with the state titling office and new titles issued in accordance with the plan.
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. A property and construction lawyer can assist by working with your surveyor, preparing the necessary property documentation, and explaining important legal and titling concepts.
This information is for general purposes only. You should obtain professional advice specific to your circumstances before undertaking any course of action.
If you or someone you know wants more information or needs help or advice, please contact us on 03 8346 4900 or email [email protected].