On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Part 3 - Mandatory matters

This part sets out by-laws covering the mandatory matters referred to in Schedule 2 Community Land Development Act 2021 including access, permitted uses and special facilities on association property, internal fencing, garbage, services, insurance and those covering the executive committee.

Any access way plan or statutory easement diagram must be prepared on plan form 5 and must be lodged as an A2 size sheet. This will form part of the management statement and will be included in the page numbering.

By-laws in a management statement may be amended by a special resolution of the community, precinct or neighbourhood association – see also Amendment of Management Statement page.

The topics that must be covered by community, precinct and neighbourhood management statements are:

1. Open accessways or private accessways

Details must be given of the location, control, management, use and maintenance of any open or private accessways that are part of the community, precinct or neighbourhood property. Road rules and motor traffic regulations do not apply to private access ways in the same way as for public roads, so it is important, particularly in medium density residential schemes, for by-laws to specify any appliable limitations such as:

  • speed restrictions
  • noise emissions
  • use by registered or unregistered vehicles
  • maintaining insurance cover for injury to third parties
  • parking restrictions
  • penalties for breach of traffic laws
  • use of security access.

2. Permitted uses of and special facilities on the community property

Some schemes may incorporate extensive facilities on association property and therefore restrictions or duties affecting their use and maintenance should be specified. Facilities may include:

  • passive or active recreational areas
  • sporting facilities and equipment
  • meeting areas.

Provisions in the by-law may include:

  • hours and conditions of use
  • payment of fees
  • bookings
  • dress requirements
  • security
  • control of children on association property
  • non-interference with the quiet enjoyment of others.

3. Internal fencing

The association is deemed to be a proprietor of a lot for the purposes of the Dividing Fences Act 1991 - see section 229 Community Land Management Act 2021. This enables the association to maintain consistency as regards external fencing. In relation to fencing along boundaries within the community parcel, proprietors may be restricted in some way by a by-law to ensure consistency of height, colour, type of finish and building material etc.

NOTE: For land in a neighbourhood parcel that is not part of a community scheme, the neighbourhood association is taken to be owner for the purposes of the Dividing Fences Act 1991.

4. Garbage

The association may wish to ensure that garbage deposit areas do not become an eyesore or a health hazard. By-laws may be desirable to regulate such things as acceptable garbage containers and recycling bins.

In some instances the design of an open or private accessway may not allow the council garbage truck to enter into the scheme to collect rubbish from each of the lots. It is considered important that the statement details the provisions of any arrangements made for the collection of garbage. It may be that the association will provide the service of garbage collection. A by-law should be included specifying duties and obligations in this regard.

5. Services

Services within the scheme may either be the responsibility of the service authority or the association, depending upon the agreement reached by the original developer with the service authorities at the development stage. The management statement should clearly indicate who has the responsibility for repair and maintenance, and should set out any particular obligations and costs in this regard.

Schedule 2 of the Community Land Development Act 2021 includes the maintenance of water, sewerage, drainage, gas, electricity, telephone and other services in the matters to be included in the management statement.

NOTE:  If statutory easements are to be created in accordance with s.34 Community Land Development Act 2021 a copy of the statutory easement diagram showing the location of all services must also be attached. The services listed in the by-law must be consistent with those shown on the diagram.

6. Insurance

Details of the type of insurance taken out by the association in respect of the community property and any special requirements regarding insurance should be set out.

The following insurance policies are required to be maintained by the association with an approved insurer - see sections 148 and 149 Community Land Management Act 2021:

  • Damage to any buildings or structures on association property caused by fire, lightning, explosion or other occurrence specified in the policy or prescribed by the regulations (no risks are yet prescribed).
  • Worker's compensation in accordance with the relevant workers compensation legislation.
  • In respect of damage to property and in respect of death and bodily injury (including damage, death and bodily injury occurring on any open or private accessway). An association should ensure that its public liability policy covers accidents etc on an accessway.
  • Against damages for which the association could become liable because of work done by a voluntary worker or against the accidental injury or death of a voluntary worker,
    Against other risks for which the association may become jointly liable.
  • Against the possibility of the members of the association becoming jointly liable under a claim arising out of any other event against which the association decides by special resolution to insure.
  • Insurance of other classes prescribed by the regulations for the purposes of the section.

In neighbourhood schemes, buildings on lots (apart from the neighbourhood property lot) are not association property and are therefore the responsibility of the owner of that lot. That proprietor must effect adequate insurance to cover damage to the building.

7. Executive committee

Rules regarding the constitution of the executive committee, including number, type and function of office-bearers should be set out. Also to be included are rules regulating the meetings of the executive committee, voting on motions submitted to the executive committee otherwise than at meetings and the keeping of records of proceedings of the executive committee. The by-laws may regulate:

  • the frequency and conduct of meetings
  • the notice required to call a meeting
  • the procedure for calling a meeting
  • listing matters for the agenda
  • the process for voting and decision making
  • the committee's powers to employ staff
  • the keeping of records
  • the dissemination of minutes
  • the rights of proprietors to attend meetings
  • the filling of vacancies.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/