Public reserves

Parcels of land may be dedicated as a public reserve by:

  • the registration of a deposited plan bearing an appropriate statement creating a lot(s) as public reserve or
  • the publication of an appropriate notification in the Government Gazette vesting an existing parcel as public reserve.

Deposited Plans registered prior to 16 June 1964

Prior to 16 June 1964 there was no provision for public reserves to be vested in council on registration of a deposited plan. Early deposited plans often include parcels denoted as 'Public Garden and Recreation Space', 'Reserve for Garden' or simply 'Reserve', however these parcels were not created as public reserves on registration of the plan. A statement of creation was not endorsed on the plan and the fee of the parcel remained in the cancelled certificate of title under the name of the then registered proprietor(s). Similarly, reserves in plans subdividing Old System land were not created as public reserves on registration of the plan (see below for more information).

Public garden and recreation space

Section 340A Local Government Act 1919 provides that parcels shown as 'public garden and recreation space' (and no others) can be conveyed or transferred to the council as public reserve. The provisions of s.340A were carried over to s.50 of the 1993 Act and still enable a council to acquire title to 'public garden and recreation space' shown in a plan approved before 15 June 1964. The section provides that the council may either:

  • direct that the parcel be transferred to the council (s.50(2)) or
  • publish a notice in the Government Gazette notifying that the land is vested in its name (s.50(4)).

A new title in the name of the Council will be created on lodgment and registration of a suitable Request form 11R (PDF 131 KB) prepared in terms of one of these options. A Public Reserve notification will be endorsed in the second schedule of the new title.

Other reserves

Other reserves shown in old deposited plans e.g. 'Reserve for Garden', 'Reserve' etc are not covered by s.50 see Baalman & Wells Para 310.250. To create these parcels as public reserve, a notification should be published in the Government Gazette acquiring the parcels and vesting them in the Council as public reserve.

Note  If a 'Reserve' etc is not defined as a lot in the old deposited plan, a new deposited plan of acquisition will be required to provide an identity for the 'reserve'.

Deposited plans registered from 16 June 1964 to date

Plans affecting Torrens Title land

Section 340D Local Government Act 1919 commenced on 16 June 1964 and enabled a 'Public Reserve' to vest automatically in Council upon registration of a deposited plan of subdivision provided the plan bears a statement (on the administration sheet) to that effect:

IT IS INTENDED TO DEDICATE LOT .... AS A PUBLIC RESERVE

See also s.195C(1)(d)(ii) Conveyancing Act 1919.

The words 'PUBLIC RESERVE' must be added to the relevant lot on the face of the plan.

A certificate of title for the new public reserve lot is created in the name of the council. A 'KP' notification is entered in the second schedule:

THE LAND WITHIN DESCRIBED IS PUBLIC RESERVE

Note  Any public reserve title bearing a 'K200000P Caveat' will have that notification replaced by a 'KP' notification when next lodged in LPI.

The provisions of s.340 were carried over into ss.49(1) and (2) Local Government Act 1993.

There is no provision in the Local Government Act for the creation of a new public reserve in a deposited plan lodged for short-term lease, acquisition or redefinition purposes.

Note  This procedure does not apply when the new deposited plan affects land subject to the Housing Act 2001.

Plans affecting the whole of an existing Torrens Title parcel

New deposited plans defining the entirety of an existing parcel of land and bearing a statement creating the parcel as public reserve may be registered in LPI, see s.195(1)(c) Conveyancing Act 1919, provided:

  • the plan bears a completed subdivision certificate, and
  • is signed by all affected parties.

Plans affecting Old System land

New deposited plans affecting Old System land must be accompanied by either a Primary Application, Official Search Application or a completed Statement of Title Particulars to convert the land to Torrens Title. The usual procedures for the creation of a lot in the plan as public reserve will then apply.

Note The new title for the public reserve lot will issue free of a 'qualification' notification.

Plans affecting land in the name of the NSW Land and Housing Corporation or Landcom

Plans affecting land held in the name of the New South Wales Land and Housing Corporation (Torrens or Old System) do not on registration automatically create public reserves (or dedicate new roads as public roads) The new certificate of title will issue in the name of the corporation not the council.

S.34 Housing Act 2001 provided that the New South Wales Land and Housing Corporation could, by notification in the Government Gazette dedicate a lot in a registered deposited plan as public reserve and vest that reserve in council. An Application form 04RP (PDF 672 KB) was lodged to have the vesting recorded on the certificate of title.

Landcom was established as a State Owned Corporation under s.5 Landcom Corporation Act 2001 by vesting dated 1 January 2002. Any plans lodged by Landcom from 1 January 2002 must comply with the normal requirements for plans in regard to fees, signatures, approvals and consents.

Note  There is no provision in the Landcom Corporation Act 2001 for parcels of land standing in the name of Landcom to be created public reserve.

Plans affecting Crown land

A public reserve cannot be created as a lot in a new deposited plan affecting Crown Title land. A CL45-11 (PDF 407.2 KB) document to create a first title may stipulate that a new lot is to be created in the name of a local council but the parcel may only be created a public reserve upon a notification of vesting being published in the Government Gazette.

All other Crown Reserves from Sale or Lease for Public Recreation etc are dedicated to the State of New South Wales by the publication of a notification in the Government Gazette and remain Crown Title land.

Notification in the Government Gazette

A council may dedicate an existing parcel of land as a public 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.

Actions affecting public reserves

From 16 June 1964 to 30 June 1993

The only dealings with public reserves permitted by the 1919 Act were leases, and sub-leases. However, the Registrar General also allowed registration over the title for a public reserve of:

  • deposited plans for lease, resumption or exchange of land
  • deposited plans dedicating part of the land as road and
  • grants of easements in favour of statutory bodies.

From 1 July 1993 to date

The Local Government Act 1993 provides a degree of flexibility for councils when dealing with public reserves that was unavailable under the old Act. The new provisions contain checks and balances to ensure that the public interest is protected. Sections 25 and 26 Local Government Act 1993 classify 'Public land' [which includes a public reserve dedicated under either the 1919 Act or the 1993 Act] as either 'community land' or 'operational land'. Community Land ordinarily comprises land used as a public park (i.e. public reserve), public library etc while Operational Land ordinarily comprises land held as a temporary asset or land which facilitates the functions of the council, such as a works depot or council garage. While operational land may be freely dealt with in the same manner as any other parcel, community land is subject to certain restrictions. In respect of community land, s.45 Local Government Act 1993 provides:

  • A council may only sell, exchange or otherwise dispose of community land if the relevant provisions of the Act have been complied with.
  • A council may grant a lease or licence of community land, but only in accordance with s.46 and (if relevant) s.47 Local Government Act 1993.

Note  A council may not grant a lease or licence of community land for a term greater than 30 years. Where any lease or licence granted over community land for a period (inclusive of any option) exceeding 21 years the consent of the Minister for Local Government is required (Sec.47(5)).

  • A council may grant any other estate in community land only in accordance with a plan of management or other legislation that specifically permits such a grant.

Community land (such as a public reserve) may not be dedicated as public road unless the road is necessary to enable the public to access the area of community land (or any facility constructed on that land) and the provision of the public road is expressly authorised in the relevant plan of management. However, an exception is provided for:

  • widening of an existing public road
  • other roadworks of a minor nature applying to an existing road and authorised by the plan of management, or
  • a road subject to an Order under Division 1 Part 5 Roads Act 1993. [s.47F(1) and (2) Local Government Act 1993]

Section 45(3) Local Government Act 1993 enables a council to adopt or amend a plan of management to authorise the grant of an easement or other interest over community land (such as a public reserve). However, public notice must be given of a council's intention to adopt or amend a plan of management.

Another method by which a council may remove the restrictions on dealings with a reserve is to re-classify the land [in whole or in part] from community to operational land. Re-classification is effected by:

  • a resolution of council [after public notice is given of the proposal] or
  • the preparation of a local environmental plan [which is preceded by a public hearing].

For additional information see Hallmann Paras 12.10-12.20 inclusive.

New plans affecting public reserves

Plans of subdivision

A plan subdividing a public reserve must be accompanied by a Request form 11R (PDF 131 KB) together with evidence from the Council indicating that the new lot(s) intended for subsequent disposal has been re-classified as operational land in accordance with the provisions of s.30 Local Government Act 1993.

Alternatively, where it is intended that an existing public reserve is to become, or to be added to, a Crown Reserve or land reserved or dedicated under the National Parks and Wildlife Act 1974, evidence to that effect should be supplied by the council [s.45(4) Local Government Act 1993]. The new plan must:

  • be signed by council under seal or by delegation (signature of the General Manager or by a Power of Attorney)
  • bear a completed subdivision certificate
  • if new lots are to be dedicated as or remain public reserve, designate those lots as PUBLIC RESERVE on the face of the plan
  • bear an appropriate statement of dedication (in the Statements Panel of the Administration Sheet) if extra land is to be dedicated as Public Reserve.

Note 1 The new certificate of title for the 'operational' lot will issue in the name of the council but free of a 'KP' notification.

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 Public Reserve. In all instances any affecting interests including easements will be recorded on the new title.

Plans of easement

A plan creating a new easement over a public reserve must be accompanied by a Request form 11R (PDF 131 KB) with evidence from the Council that the proposed easement is not prohibited under the provisions of ss.45-46A, 47 or 47A Local Government Act 1993. If the easement is to be created pursuant to s.88B Conveyancing Act 1919 the new plan must:

  • be signed by council under seal or by delegation (signature of the General Manager or by a Power of Attorney)
  • bear an appropriate statement of creation of the easement(s) in the Statements Panel on the Administration Sheet.

Note  A plan defining the site of a proposed easement over a public reserve need not be accompanied by the evidence from Council. This evidence should be lodged with the subsequent dealing creating the easement. Also see Dealings involving Reserves drainage and public page.

Plans creating new road or road widening

A plan affecting public reserve that creates new road or road widening must be accompanied by a letter from the council indicating that the proposed new road complies with s.47F Local Government Act 1993. The new plan must:

  • be signed by council under seal or by delegation (signature of the General Manager or by a Power of Attorney)
  • bear a completed subdivision certificate.