Subdivision

Step 1: Search address on NSW Planning Portal website “Find a Property” and identify the minimum lot size – most residential areas will be either 400m² or 450m² within the Newcastle LGA.

The minimum lot size is defined in the Newcastle Local Environmental Plan 2012 (LEP) clause 4.1. This measurement is the minimum size required for all newly created lots for a subdivision only development.

Note: there is another minimum lot size possible which is discussed below.

Step 2: Confirm that the lot in question will achieve the minimum lot size if subdivided I.e. lot is currently 800m² There are also other factors to consider when deciding if the lot can be subdivided, such as:

• Shape of lot
• Existing structures on lot
• Existing easements or covenants
• Existing infrastructure
• Ability to provide infrastructure to new lots – power, water, stormwater drainage, sewer, garbage collection, vehicle and pedestrian access, postal access.
• Is the land identified as bushfire prone?
• Is the land identified as flood prone?
• Is it possible for vacant lots to be built on?
• If any existing structures are to remain will they still be able to meet the current Newcastle Development Control Plan (DCP) and Building Code of Australia requirements?
• Will the subdivision meet the requirements of Section D1 Subdivision and lot consolidation of Newcastle Development Control Plan (DCP)?

Step 3: Obtain development consent for the subdivision from Council. You will need to lodge a development application with Council demonstrating that the subdivision meets the relevant legislation, plans and policies. You can engage a Town Planning Consultant or Land Surveyor to help you with your development application.

Step 4: If you receive development consent for your subdivision, make sure you read all the conditions of the consent to ensure that you are aware of any work that will be required to be completed prior to registering your subdivision.

Step 5: Once any work required has been completed you are ready to start the process of registering your subdivision. A registered surveyor will be required to complete a deposited plan, administration sheet and any 88b instrument required.

These documents will need to be submitted to Council with an application form for a Subdivision Certificate along with any other documents that are identified as required within the development consent for the subdivision.

Step 6: Once Council is satisfied that all necessary works have been completed and all appropriate documentation provided, the subdivision certificate will be released along with the signed deposited plan, administration sheet and any 88b instrument.

Your surveyor can now register the subdivision with NSW Land Registry Services. Please note there will also be legal documentation that may be needed such as land titles so make sure your surveyor has advised you what else is needed.

As noted, there is an alternative way to get your land subdivided even if you do not meet the minimum lot size as described above.

Clause 4.1A of the LEP allows you to subdivide a residential lot to 200m² so long as, within the same development application, consent is sought for the creation of 2 or more dwellings on the existing lot.

The rules for this type of subdivision are that any new dwellings are built to lock up stage prior to registering the subdivision and the result of the subdivision is only one dwelling being located on each new lot.

This type of subdivision goes through the same process as described above though with the additional allowances and stipulations.

Note: dual occupancy or multi dwelling development must be permissible on the existing lot to be able to complete this type of subdivision.

Sections D1 Subdivision and D3 Residential Development of the Development Control Plan (DCP) will be applicable.

If a title of land includes more than one lot and you wish to sell one or more of these lots as individual lots rather than a parcel of land together without making changes to the defined boundaries you do not need to apply for subdivision of the land. You only need to contact a solicitor to create separate titles.

The strata subdivision of a caravan park/manufactured home estate may be possible if the subdivision complies with requirements for a strata plan, set out in the Strata Schemes Development Act 2015 (in particular, Division 1). However, planning restrictions may prevent a strata subdivision for other reasons (like minimum lot size requirements).

Importantly, a strata plan involves subdivision of a building or part of a building, which needs to be a permanent structure – this may cause difficulty for a caravan park or manufactured home estate given the nature of the structures involved. NSW Land Registry Services would need to consider whether the requirements for a strata plan are satisfied in the particular case.

Subdivision may otherwise be affected using community title legislation (allowing subdivision of lots with shared property), but again this will depend on planning restrictions, including minimum lot size requirements.

If you are unsure about the requirements of the mentioned legislation, we would suggest you seek independent planning and/or legal advice.

88b instrument – document that sets out affecting interests such as easements, profits a prendre, Restrictions on the use of land and positive covenants. Must comply with Section 88B of Conveyancing Act 1919.

Address – an address is the street location of a lot, it includes the street number not a lot number, street name and suburb. An address can include one or more lots and are usually created by Councils in accordance with national standards to be registered with the postal service and emergency services – so it is important to have your correct official address.  

Administration sheet - The administration sheet is an approved form for signatures that replaces the need to endorse signatures and seals on the deposited plan. The administration sheet must contain all the signatures, seals and certificates required by the Registrar General, endorsed in the appropriate panels on the approved form. Under NO circumstances should a blank administration sheet be photocopied, faxed or folded for posting to a solicitor, client, council or other person for endorsement of a signature(s). The sheet is an original document and will be rejected if it does not conform to the standard requirements for original documents.

Covenants – a condition imposed on land for something to either be done (positive covenant) or not be done (restriction on use of land (restrictive covenant)).

Deposited plan (DP) – plan of title/subdivision under the Torrens Title System.

Easements - A right applying to land. It enables a parcel to have the use of other land in different ownership, for a specific non-exclusive purpose. Without the easement the use would constitute a trespass or nuisance. Easements fall into two categories:

• Private easements are made between the owners of two or more parcels of land. The land having the benefit of the easement is known as the dominant tenement while the land having the burden of the easement is the servient tenement.
• Easements in gross are created in favour of the Crown or a public or local authority constituted by an Act of Parliament. An easement in gross does not have a dominant tenement and the right to release, vary or modify them is vested in the creating authority.

Land Title – is the record of ownership of lot/s. Commonly there is only one lot within an individual land title, though a land title can parcel together more than one lot.

LGA - Local Government Area.

Lot (in Torrens Title System) – a lot is a defined piece of land identified by a single number in a Title Plan that can be owned. A lot is defined by boundaries and is usually in one location, though can be found to be separated by other lots or roads. 

Positive Covenant - A condition imposed by, or for the benefit of a prescribed authority requiring the maintenance and/or repair of land e.g., to maintain a building and its foundations to ensure the safe working of a railway passing below it, or to erect a habitable dwelling upon the land within a specified period of time. The Positive Covenant must be in terms that directly require the owner of the land to do some positive action.

Restriction on use of land (restrictive covenant) - An agreement between two or more parties that something will not be done with the land. The benefit of the restriction may be adjoining land, nearby land or the council. It is negative (restrictive) in nature and may be created to :

• protect a residential amenity e.g., a view
• preserve the environment e.g., preventing the lopping of trees or restricting where buildings can be erected
• restrict undesirable development and preserve the character of the neighbourhood e.g., limiting the height of buildings and/or the material of construction and/or fencing type.

Strata title - defined as ‘subdivision’ in the Environmental Planning and Assessment Act 1979. Strata subdivision can subdivide buildings and land into separate lots capable of individual ownership, with additional areas of land designated as common property. Those owning lots within the scheme have a proportional entitlement to use the common property and also a proportional responsibility for its maintenance. Examples are buildings such as townhouses, flats, industrial units and shops, with outside areas such as gardens, driveways and car parking spaces usually being part of the common property lot, owned and managed by the ‘Owners Corporation’.

Subdivision – a plan of subdivision divides a parcel of land into parts for separate use.

Torrens title – the traditional or ‘single lot’ form of subdivision, common in many residential estates. The Torrens title system is based on a plan of survey, or a plan compiled from survey, which defines the boundaries of a parcel of land at the date upon which it was registered.

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• Development application process
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• Registrar General’s Guidelines
• NSW Land Registry Services
• NSW Planning Portal