Section 49(3) Local Government Act 1993 provides that on registration of a plan on which land is marked with the statement 'Drainage Reserve' the land vests in Council in fee simple for drainage purposes. As a consequence, a folio of the Register is automatically created in the name of the Council when the plan is registered. The drainage reserve comprises 'Operational Land' and may be dealt with in the same manner as other operational land standing in the name of the Council. Section 49(3) replaced Section 398 Local Government Act 1919 which had served a similar function since 15 June 1964.
Between 24 November 1922 and 15 June 1964 a drainage reserve was not automatically vested in the Council on registration of the plan. The Council may either direct that the reserve be transferred or conveyed to it or, alternatively, the Council may publish a notice in the Government Gazette notifying that the land is vested in it pursuant to ss.50(3) and (4) Local Government Act 1993. Subsequent to the gazettal the Council must lodge a Request form 11R (PDF 131 KB) to be registered as proprietor of the drainage reserve.
Prior to 24 November 1922 any dealing relating to a drainage reserve shown in a plan of subdivision will not normally be registered. See Baalman & Wells Para. 310-200.
New deposited plans intending to create a drainage reserve must:
- have the Statement 'Drainage Reserve' shown within the appropriate lot, and
- bear a statement of intention to create Lot …. as a Drainage Reserve in the Statements Panel of the Administration Sheet
- be signed by the persons specified in s.195D Conveyancing Act 1919
- bear a completed subdivision certificate if the drainage reserve creates new boundaries.
Note 1 The certificate of title for the new drainage reserve is created in the name of the council. A 'DDR' notification is entered in the second schedule:
LAND IS DEDICATED AS A DRAINAGE RESERVE
Note 2 Except when the land being subdivided already stands in the name of the council all encumbrances including mortgages, lease, caveats etc recorded on the subdivided title will not be carried forward onto the new certificate of title for the Drainage Reserve. In all instances any affecting interests including easements will be recorded on the new title.
Notification in the Government Gazette
A council may dedicate an existing parcel of land as a drainage reserve by preparing an appropriate notification in the Government Gazette pursuant to s.46C Real Property Act 1900. If the parcel is Torrens Title land a Transfer for Public Reserve or Drainage Reserve form 01TD (PDF 107 KB) (if the parcel stands in the name of the Council) or an Application form 04RP (PDF 672 KB) must then be lodged to update the certificate of title.