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

These by-laws may be amended by a special resolution of the community, precinct or neighbourhood association.

This part sets out by-laws covering the mandatory matters referred to in Schedules 3 and 4 Community Land Development Act 1989 including access, permitted uses and special facilities on association property, internal fencing, garbage, services, insurance and those covering the executive committee.

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 property. As private accessways are not subject to motor traffic regulations there is a greater need, particularly in medium-density residential schemes, to specify in the by-laws any limitations applicable, e.g:

  • 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 s.117m Community Land Management Act 1989. 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.

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.

Note  If statutory easements are to be created in accordance with s.36 Community Land Development Act 1989 a copy of the works as executed plan 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 plan.

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 ss.39 and 40 Community Land Management Act 1989:

  • Damage to any buildings or structures on association property caused by fire, lightning, explosion or prescribed risk (no risks are yet prescribed) unless the association is exempted from the obligation by the NSW Civil and Administrative Tribunal.
  • Worker's compensation.
  • 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.

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.