De-facto subdivision

1 July 1920 to 2 May 1983

In the past it was the practice of LPI to register, without council's approval and subject to certain conditions, plans showing the division of land by devise, road severance or the erection of buildings and occupations, on the grounds that the land in the relevant title(s) had been 'de-facto' physically divided into self-contained parts. There were two main types:

Physical division by erection of buildings and occupations

A plan (in all cases one of survey) illustrating a subdivision of a title by the erection of buildings or occupations did not require council's approval if it was accompanied by evidence that:

  • The buildings were erected prior to 1 July 1920
  • The buildings were separately occupied since that date, and
  • The occupations defining the new subdivision boundaries (both walls and fences) were identical to those originally erected, or, had been erected in the same positions.

The evidence was in the form of certificates from the relevant water and sewerage authorities indicating the date of first connection of their services and by statutory declarations from adjoining owners with the requisite knowledge of the history of the buildings.

Note 1  

If the buildings were constructed subsequent to 1 July 1920 further evidence was required to indicate that the Council had approved the erection of the buildings as constructed at the date of the plan (ie that they were no uncertified extensions).

Note 2  

Where the land was situated within that area formerly controlled by the Sydney City Council under the Sydney Corporation Act, the same conditions applied, the effective date being 1935 in lieu of 1920.

Division of land by other means

A plan (either of survey or by compilation) that illustrated a subdivision created by the opening of a road, a resumption for railway, a devise in a will or for any other specified reason did not require council's approval provided the new lot boundaries were co-incident with the boundaries of the road/railway/etc as shown in the original plan. In every case, it was the responsibility of the subdivider to satisfy the Registrar General that a lawful subdivision had been made.

2 May 1983 to 1 July 1998

The introduction of the Environmental Planning and Assessment Act 1979 and the legal decisions of Windeyer J. in Bisits and Others v Registrar General and Smart J. in Lee v Registrar General (1990) 19 NSW LR 240 necessitated that further evidence be supplied. From 2 May 1983 all new 'de-facto subdivision' plans had to be accompanied by a certificate from the council indicating that the new subdivision did not contravene the Act and consequently consent thereto was not required.

1 July 1998 to date

Further amendments to the Environmental Planning and Assessment Act commencing 1 July 1998 repealed all previous practice and require that any 'de-facto subdivision' type plans (of any sort) must be endorsed with a completed subdivision certificate.