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

Existing affecting interests

An affecting interest means an easement, restriction on the use of land, positive covenant or profit à prendre.

A plan must:

  • contain sufficient information to define the site, nature and origin of any existing affecting interest affecting a lot (including cross easements in respect of party wall(s) affecting a lot), and
  • wherever possible, show the relationship of the affecting interest to the boundaries of the lot. See the boundary cuts for existing affecting interests below.

If an affecting interest is in respect of an existing tunnel, pipe, conduit, wire or other similar object that is underground or is within or beneath an existing building, it is sufficient to indicate on the plan the approximate position of the affecting interest.

NOTE: The origin, in relation to an existing affecting interest means the Gazette reference or registration number of the instrument or plan by which the affecting interest was granted, reserved, notified or otherwise created.

Boundary cuts for existing affecting interests (easements only)

For plans prepared from 1 April 2022, all deposited plans must show dimensions along new boundaries where an existing affecting interest (easements only) cuts a new or existing boundary within the same ownership. The dimensions, for example bearings and distances, of the existing affecting interest are not required to be shown.

Furthermore, if existing easement cuts (along existing established boundaries) were provided in a previous plan, the new deposited plan should show these easement cuts (in brackets).

The surveyor should review the plan (deposited plan or plan annexed to a dealing) that created the existing affecting interest and decide if there is sufficient information on the plan to enable the boundary cuts to be determined. Where applicable, the cuts are shown in brackets e.g. (10.41) and shown along the new and existing lot boundaries (see Diagram 1 below)

Diagram 1

This diagram shows the sites of existing easements (A), (B) and shows the easement cuts along the western boundary of lot 1, eastern boundary of lot 2 and the new common boundary between lots 1 and 2.

In situations where there is insufficient information for the boundary cuts to be shown, or if the surveyor is of the opinion that it is too complex, for example within a stratum plan, then the cuts along the new boundaries are not required. In these situations, prior approval from the Plan and Title Advisor is not required and reference ‘20M (ESMT)’ should be shown next to the Surveyor’s Reference on the Administration Sheet and deposited plan.

The benefiting party of the existing affecting interest is not required to approve the cuts along the new boundaries.
NOTE: All plans must still comply with Clause 18 Surveying and Spatial Information Regulations 2017.

NOTE: For further information Schedules 5 and 7 of the Lodgment Rules

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