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

Road and rail tunnel developments

Deposited plans may be prepared for the purpose of defining tunnels for roadways, railways and other major utilities (electrical cable tunnels, sewerage main tunnels etc.) These plans are limited in stratum, extend for long distances and affect or subdivide numerous parcels of land, roads and other features. Lot(s) constituting the tunnel may be acquired by publication of a notice in the Government Gazette, or by subdivision.

Alternatively, an easement for railway transit, electricity supply etc., can be created by means of a Section 88B Instrument or by a subsequent dealing or gazettal.

Recent examples of deposited plans defining tunnels include the Epping-Chatswood Underground Railway, Cross-City Tollway and Transgrid City electrical cable tunnel.

Plan requirements

The deposited plan must define (both vertically and horizontally) a lot or easement site that will encompass the designed position of the tunnel. Once the lot or easement has been acquired the constructing authority will construct the tunnel within the parameters shown in the plan.

Due to the difficulties in defining where the tunnel intercepts the individual surface parcel boundaries, the NSW LRS plan and Title Advisor should be contacted to supply an exemption from defining those common boundaries and (if a subdivision or acquisition) showing residue lots for each parcel affected by the plan.

However, in order to adequately tie the position of a tunnel lot or easement site into the cadastre and connect it to Survey Control it will be necessary to locate the tunnel by bearings and distances along each intercepted street frontage and connect to established Permanent Marks in accordance with the Surveying and Spatial Information Regulation 2012.

The plan must also:

  • comply with all other requirements for a deposited plan of survey
  • connect (or place and connect) to sufficient Permanent Marks located throughout the length of the plan to adequately tie the tunnel lot or easement site into the existing cadastre
  • show sufficient cross-sections along and across the tunnel lot or easement site to locate the tunnel with regard to the surface and the basements of any affected buildings etc.
  • supply sufficient reduced levels (complying with Clause 13 Surveying and Spatial Information Regulation 2012) to define the upper and lower extent of the tunnel lot and/or easement site.

Note 1 Upon completion of the tunnel, if the Works as Executed Plan discloses that the tunnel has not been constructed within the boundaries shown in the deposited plan, the relevant authority must lodge a new plan in NSW LRS to redefine the boundaries of the lot or easement.

Note 2 The upper and lower boundaries of the tunnel lot or easement site may be defined either by inclined planes or as a series of horizontal steps.

Title creation

A Tunnel development will by necessity affect a significant number of current titles. As well as existing Torrens and Old System Title parcels the tunnel may also affect roads (both Crown roads and public roads), railways, watercourses and Crown Reserves. Consequently before a new certificate of title can be created for the tunnel lot it will be necessary to prepare a s.31(A) Primary Application (based on the gazette notice of the acquisition) for all non-Torrens Title parcels affected by the plan.

The Primary Application should accompany a Request (Form 11R) requesting the Registrar-General to create a title for the tunnel lot. The Request will be registered on all affected titles and an exemption notification added to the Second Schedule of each affected Certificate of Title.

EXCEPTING THEREOUT LOT ...... DP........................... (RAILWAY TUNNEL)

Upon acquisition or creation of an easement site a standard easement notification will be endorsed on the affected title(s).

EASEMENT FOR ........ (railway transit/electricity cable tunnel etc)...... (LIMITED IN STRATUM) AFFECTING THE PART OF THE LAND ABOVE DESCRIBED DESIGNATED ...... IN DP.....................

Easements for rock anchors

During construction of the tunnel it is often necessary to stabilise the surrounding rock by the installation of rock-anchors. As the rock-anchors extend beyond the boundaries of the tunnel lot an easement for the rock-anchors (that will affect the adjoining parcels) may be required. The position of each individual anchor cannot be determined and shown on the face of the plan.

Consequently an easement site enveloping the tunnel should be created that will encompass all of the rock anchors wherever they are positioned in the walls and roof of the tunnel. The extent of the easement site must be defined both horizontally and vertically and designated appropriately on the face of the plan.