In all cases relating to variation or termination of a scheme it is strongly recommended that advice be sought from NSW LRS Legal and Dispute Resolution T: 02 8776 3575 or e: firstname.lastname@example.org
Part 9 of the Community Land Development Act 2021 provides for schemes to be varied and terminated. The Supreme Court may issue an order to vary or terminate a scheme (including community, precinct, neighbourhood and strata schemes within a community), or to vary an associated development contract, see sections 65 and 66 Community Land Development Act 2021.
The Registrar General may terminate a scheme which is not the subject of an application to the Supreme Court or which does not have a strata scheme as a subsidiary scheme see sections 68 and 69 Community Land Development Act 2021.
Termination by the Supreme Court
The Supreme Court may vary or terminate a scheme if satisfied that:
- the continuation of the scheme is impractical or
- if the scheme is a staged scheme, completion of the staged scheme has become impractical.
An order must be issued by the Supreme Court in accordance with section 65 Community Land Development Act 2021.
The Registrar General must be joined as party to an application for the order (see section 67(2)(a) Community Land Development Act 2021).
Service of documents on the Registrar General
All documents to be served on the Office of the Registrar General (ORG) must be delivered to the McKell building at 2-24 Rawson Place Sydney.
Service of documents are to be delivered through the basement carpark entrance on level 2 via Barlow Street. Once you arrive at Barlow Street, please tell the officer at the security desk that you are there to serve documents on the Office of the Registrar General.
Please ensure that you call the Office of the Registrar General on 1300 318 998 beforehand so that a staff member is present to accept service. Service will not be accepted if an ORG staff member is not present.
Documents to be lodged with NSW LRS
A Real Property Act dealing Request Form 11R must be lodged with NSW LRS requesting the Registrar General to comply with the order.
The Request must be accompanied a sealed copy of the Court Order and the prescribed fees must be paid.
Upon registration of the request for termination:
- the association will be dissolved, and the scheme terminated
- the Folios of the Register for the lots and association property will be cancelled
- new Folios of the Register will be created as required by the Court Order with regard to registered proprietors, mortgagees etc. The new Folios of the Register will either be in terms of the parcel(s) which existed prior to the scheme or the lot(s) in a new plan.
Termination by the Registrar General
A Real Property Act dealing Request Form 11R may be lodged with NSW LRS requesting the Registrar General to terminate a scheme in accordance with section 69 Community Land Development Act 2021.
A scheme may be terminated by NSW LRS (on behalf of the Registrar General) if the scheme:
At least 14 days before an application is made with NSW LRS, the following matters must be publicly notified, in a way NSW LRS considers appropriate to cause notice of the application to come to the attention of the public:
The Request must be:
the association for the scheme and each subsidiary body
each owner of a lot within the scheme and any subsidiary scheme
each registered mortgagee, chargee and covenant chargee of a lot within the scheme and any subsidiary scheme
accompanied by the written consent of:
the relevant planning authority
each person who is a registered lessee, judgment creditor under a writ, or a caveator for a lot in the scheme or a subsidiary scheme
a service provider having the benefit of a statutory easement in the scheme, as required by the Registrar General
a public authority whose consent is required to amend or revoke a by-law in the management statement for the scheme, as required by the Registrar General
lodged with a plan for the scheme parcel for registration as a current plan
accompanied by a statutory declaration that confirms the following:
the declarant has the authority and knowledge to make the declaration
all debts of the association have been paid
there are no claims against the association
all unregistered estates or interests affecting scheme have been disclosed. Details of those estates or interest must be included
accompanied by evidence that public notification has occurred as required by section 69 Community Land Development Act 2021, e.g. a statutory declaration confirming as such that includes a certified copy(ies) of the public notification(s)
accompanied by any other documents or evidence as the Registrar General requires.
Where there are mortgages registered on the titles for the scheme, discharges of mortgages will be required. Additionally, parties should consider either lodging releases of easements or removal of covenants that affect the titles, or identifying which interests will affect the new proposed title.
On receiving an application under Division 2, the Registrar General may make an order terminating a scheme, following which the association is dissolved and the scheme terminated, or refuse to terminate the scheme. A refusal to terminate does not preclude an application to the Supreme Court under Division 1 (see below note).
When the Registrar General makes an order terminating a scheme and the order takes effect, once recorded on the Register:
the former owners are liable for the liabilities of the association and any action taken by or against the association may be continued by or against the former owners (see section 70(1)(b)(c) Community Land Development Act 2021)
the land in the community parcel, the precinct parcel or neighbourhood parcel and the assets of the association, will vest in the former owners as tenants in common in proportion to the unit entitlement of their lots, or as otherwise provided for in the application for termination.
NOTE: If the above conditions cannot be met the application may be made to the Supreme Court pursuant to section 65 Community Land Development Act 2021.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/