South Australian Current Acts South Australian Current Acts (1) In this Act,
unless the contrary intention appears—
"allotment" means land registered under the Real Property Act 1886 that
comprises an allotment defined by Part 19AB of that Act;
"annual general meeting" means a general meeting of a community corporation
that is held in compliance with section 82;
"associate"—see section 4;
"body corporate manager"—see section 78B;
"building" includes a fixed structure;
"business day" means any day except Saturday, Sunday or a public holiday;
"by-laws"—see Part 5;
"ceiling" includes a false or suspended ceiling;
"community corporation" means a corporation established when a
plan of community division is deposited in the Lands Titles Registration
Office;
"community lot"—see section 6;
"community parcel" means the land divided by a plan of community division but
does not include a street, road, thoroughfare, reserve or other similar open
space vested in a council or prescribed authority or that has reverted to the
Crown;
"community plan"—see "plan of community division ;
"community scheme"—see "scheme of community division ;
"council" means a municipal council or a district council;
"deposited" in relation to a plan of community division means deposited in the
Lands Titles Registration Office by the Registrar-General;
"developer" in relation to a community scheme means the person who was the
registered proprietor of the land comprising the community parcel immediately
before the plan of community division was deposited in the Lands Titles
Registration Office;
"development lot"—see section 8;
"domestic partner" means a person who is a domestic partner within the meaning
of the Family Relationships Act 1975 , whether declared as such under
that Act or not;
"encumbrance" includes—
(a) a
life estate or a lease;
(b) a
mortgage or charge;
(c) a
claim or lien;
(d) an
easement;
(e) a
caveat;
(f) a
statutory encumbrance;
"ERD Court" means the Environment, Resources and Development Court established
under the Environment, Resources and Development Court Act 1993 ;
"fence" includes a gate;
"first statutory general meeting" means a meeting required to be convened in
accordance with section 79 (and if more than 1 meeting is convened
during the period of 3 months referred to in that section, the first of
those meetings);
"floor" includes a stairway or ramp;
"holder" of a statutory encumbrance means—
(a) in
relation to an agreement under Part 14 of the Planning, Development and
Infrastructure Act 2016 —the Minister, council or greenway
authority that entered into the agreement; or
(b) in
any other case—the Minister responsible for the administration of the
Act under which the encumbrance was entered into or is in force;
"land valuer" means a person who lawfully carries on a business that consists
of or involves valuing land;
"leaseback arrangement"—see subsection (7);
"lot" means a community lot or a development lot;
"lot entitlement"—see section 20;
"lot subsidiary"—see section 19(3)(d);
"non-recurrent" in relation to expenditure means expenditure for a particular
purpose that is normally made less frequently than once a year;
"occupier" in relation to a lot means a person who occupies the lot on a
temporary or permanent basis (either solely or jointly with other persons) and
includes a person who is unlawfully in occupation of a lot;
"officer" of a community corporation means the presiding officer, treasurer or
secretary of the community corporation;
"ordinary resolution" of a community corporation means a resolution passed at
a properly convened meeting of the corporation by a simple majority of the
votes of members present and voting on the resolution;
"owner"—
(a) in
relation to land (excluding a lot) means a person who is registered as the
proprietor of an estate in fee simple in the land or, where a mortgagee is in
possession of the land, means the mortgagee to the exclusion of the registered
proprietor of the land;
(b) in
relation to a lot (other than a lot referred to in paragraph (c))
means—
(i)
a person who is registered as the proprietor of an estate
in fee simple in the lot; or
(ii)
if the fee simple is divided into a life estate with a
remainder or reversionary interest—the person registered as the
proprietor of the life estate to the exclusion of the proprietor of the
remainder or reversionary interest; or
(iii)
if a mortgagee is in possession of the lot—the
mortgagee to the exclusion of the persons referred to in
subparagraphs (i) and (ii);
(c) in
relation to a primary or secondary lot that has been divided by a secondary or
tertiary plan, means the secondary or tertiary corporation established on
deposit of the plan in the Lands Titles Registration Office;
"plan of community division" or "community plan" means a plan that divides
land into lots and common property;
"primary by-laws" means by-laws made under this Act in relation to the
division of land by a primary plan of community division;
"primary community corporation" or "primary corporation means the
community corporation established on the deposit of a
primary plan of community division in the Lands Titles Registration Office;
"primary lot"—see section 7(1);
"primary parcel" means land divided by a primary plan of community division
but does not include a street, road, thoroughfare, reserve or other similar
open space vested in a council or prescribed authority or that has reverted to
the Crown;
"primary plan of community division" or "primary plan means a
plan of community division that divides land comprising an allotment;
"primary scheme" means a scheme of community division in which an allotment is
divided into common property and primary lots;
"recurrent" in relation to expenditure means expenditure for a particular
purpose that is normally made every year or more frequently;
"registered encumbrance" means an encumbrance registered or entered on the
certificate of title for the land to which it relates;
"relative" in relation to a person, means the spouse, domestic partner, parent
or remoter lineal ancestor, son, daughter or remoter issue or brother or
sister of the person;
"relevant development authority" in relation to the division or other
development of land means the person or body authorised by the
Planning, Development and Infrastructure Act 2016 to consent to, or
approve of, the division or other development of the land or to give any other
development authorisation under that Act in relation to the division or other
development of the land;
"residential purposes" in relation to the use of land does not include the use
of land for the purposes of a hotel, motel or hostel or to provide any other
form of temporary residential accommodation for valuable consideration;
"schedule of lot entitlements" means the schedule of lot entitlements annexed
to a plan of community division;
"scheme of community division" or "community scheme in relation to land means
the scheme for the division, development and administration of the land set
out in the scheme description (if any), plan of community division, by-laws
and development contract (if any) lodged with the Registrar-General under this
Act in relation to the land;
"scheme description" means the description of the community scheme filed with
the plan of community division deposited in the Lands Titles Registration
Office;
"secondary community corporation" or "secondary corporation means the
community corporation established on the deposit of a
secondary plan of community division in the Lands Titles Registration Office;
"secondary lot"—see section 7(2);
"secondary parcel" means land divided by a secondary plan of
community division but does not include a street, road, thoroughfare, reserve
or other similar open space vested in a council or prescribed authority or
that has reverted to the Crown;
"secondary plan of community division" or "secondary plan means a
plan of community division that divides land comprising a primary lot;
"secondary scheme" means a scheme of community division in which a primary lot
is divided into common property and secondary lots;
"service infrastructure" means cables, wires, pipes, sewers, drains, ducts,
plant and equipment by which lots or common property are provided with—
(a)
water reticulation or supply; or
(b) gas
reticulation or supply; or
(c)
electricity supply; or
(d)
heating oil; or
(e) air
conditioning or ventilation; or
(f) a
telephone service; or
(g) a
radio service; or
(h) a
computer data or television service; or
(i)
sewer systems; or
(j)
drainage; or
(k)
systems for the removal or disposal of garbage or waste; or
(l)
other systems or services designed to improve the amenity, or enhance the
enjoyment, of the lots or common property;
"special resolution" of a community corporation means—
(a)
where the number of community lots is three—see section 88;
(b) in
all other cases—a resolution—
(i)
of which at least 14 days notice setting out the text of
the proposed resolution and any other information of a kind prescribed by
regulation has been served on all the owners of the community lots; and
(ii)
that is passed at a properly convened meeting of the
corporation at which the number of votes (if any) cast against the resolution
is 25 per cent or less of the total number of votes that could be cast at a
meeting at which all members are present and entitled to vote 1 ;
"spouse"—a person is the spouse of another if they are legally married;
"statutory encumbrance" means—
(a) an
Aboriginal heritage agreement entered into under the Aboriginal Heritage
Act 1988 ;
(ab) an
agreement under section 39D of the repealed City of Adelaide Development
Control Act 1976 that is continued in force by virtue of the provisions
of the Acts Interpretation Act 1915 ;
(b) an
agreement under Part 14 of the Planning, Development and Infrastructure
Act 2016 (including an agreement under Part 5 of the
Development Act 1993 that is taken to be an agreement under that Part of
the Planning, Development and Infrastructure Act 2016 );
(c) any
agreement or proclamation registered or noted on the title to land immediately
before the commencement of the Development Act 1993 that is continued in
force by virtue of the provisions of the Statutes Repeal and Amendment
(Development) Act 1993 ;
(d) a
heritage agreement entered into under the Heritage Places Act 1993 ;
(e) a
heritage agreement entered into under the Native Vegetation Act 1991 ;
(ea) an
access agreement entered into under the Recreational Greenways Act 2000
;
(eb) a
management agreement entered into under the River Murray Act 2003 ;
(ec) a
management agreement entered into under the Upper South East Dryland Salinity
and Flood Management Act 2002 ;
(f) any
other encumbrance created by or under any statute and prescribed by the
regulations for the purposes of this definition;
"strata lot" means a community lot created by a strata plan;
"strata plan"—see section 9(1);
"strata scheme" means a scheme of community division under which land is
divided by a strata plan;
"tertiary community corporation" or "tertiary corporation means the
community corporation established on the deposit of a
tertiary plan of community division in the Lands Titles Registration Office;
"tertiary lot"—see section 7(3);
"tertiary parcel" means land divided by a tertiary plan of community division
but does not include a street, road, thoroughfare, reserve or other similar
open space vested in a council or prescribed authority or that has reverted to
the Crown;
"tertiary plan of community division" or "tertiary plan means a
plan of community division that divides land comprising a secondary lot;
"tertiary scheme" means a scheme of community division in which a
secondary lot is divided into common property and tertiary lots;
"unanimous resolution" of a community corporation means a resolution—
(a) of
which at least 14 days notice setting out the text of the proposed resolution
and any other information of a kind prescribed by regulation has been served
on all the owners of the community lots; and
(b) that
is passed at a properly convened meeting of the corporation without any vote
being cast against it;
"wall" includes a door or window.
(2) For the purposes
of this Act, allotments or primary parcels will be taken to be contiguous if
they abut one another at any point or if they are separated only by—
(a) a
street, road, railway, thoroughfare, travelling stock route, watercourse or
channel; or
(b) a
reserve or other similar open space dedicated for public purposes.
(3) For the purposes
of subsection (2) allotments or primary parcels will be taken to be
separated by intervening land if a line projected at right angles from any
point on the boundary of one of the allotments or primary parcels with the
intervening land would intersect a boundary of the other allotment or
primary parcel with the intervening land.
(4) If a primary lot
is divided by a secondary plan and one or more of the secondary lots created
by the plan are used, or are intended to be used, or are taken to be used (see
subsection (5)), solely or predominantly for residential purposes, the
primary lot will be taken, for the purposes of this Act, to be used solely or
predominantly for residential purposes.
(5) If a secondary lot
is divided by a tertiary plan and one or more of the tertiary lots created by
the plan are used, or are intended to be used, solely or predominantly for
residential purposes, the secondary lot will be taken, for the purposes of
this Act, to be used solely or predominantly for residential purposes.
(6) If a primary lot
is divided by a secondary plan, the secondary scheme will be taken to comprise
part of the primary scheme and if a secondary lot is divided by a tertiary
plan, the tertiary scheme will be taken to comprise part of the primary and
secondary schemes.
(7) For the purposes
of this Act a community parcel will be taken to be subject to a leaseback
arrangement if each of the community lots is subject to a lease to the same
person (whether the developer or some other person) or some but not all of the
community lots are subject to leases to the same person and the remaining
community lots are owned by the lessee.
(8) Where a
community parcel comprised of a primary lot or a secondary lot 2 is subject to
a leaseback arrangement, the lessee (and not the secondary or tertiary
corporation) will be taken to be the owner of the lot for the purpose of
applying subsection (7).
(9) A document will be
taken to have been filed with a plan of community division under this Act when
the Registrar-General certifies that it has been filed with the plan in
accordance with this Act.
(10) An explanatory
note to a provision of this Act does not form part of the provision to which
it relates.
(11) Where—
(a) this
Act requires the scheme description lodged with the Registrar-General to be
endorsed by the relevant development authority; and
(i)
all the consents or approvals required under the
Planning, Development and Infrastructure Act 2016 in relation to the
division of the land (and a change in the use of the land (if any)) in
accordance with the scheme description and the plan of community division have
been granted; or
(ii)
no consent or approval is required under that Act in
relation to the division of the land (or a change in the use of the land),
the relevant development authority must, subject to section 30(4),
endorse the scheme description to the effect of either paragraph (b)(i)
or (ii).
(12) The endorsement
of a scheme description does not limit the relevant development authority's
right to refuse, or to place conditions on, development authorisation under
the Planning, Development and Infrastructure Act 2016 in relation to any
other development envisaged by the scheme description.
(13) If—
(a) a
licensed surveyor is uncertain about the location of a part of the
service infrastructure; and
(b)
identifies the part that he or she is uncertain about in a certificate that a
plan has been correctly prepared in accordance with this Act,
the following provisions apply:
(c) the
certificate is not invalid for the purposes of this Act because of the
surveyor's uncertainty as to the location of that part of the service
infrastructure; and
(d) no
civil liability attaches to the surveyor because the location of that part of
the service infrastructure is shown on the plan incorrectly.
Explanatory Notes—
1 Subparagraph (ii) looks at the number of
votes against the resolution rather than the number of votes in favour of it.
For example in an 80 lot scheme 21 votes must be cast against a resolution for
it to fail to be a special resolution.
2 A primary lot that is divided by a secondary
plan is a secondary community parcel and a secondary lot divided by a tertiary
plan is a tertiary community parcel (see
definitions of "secondary" and "tertiary parcels"). For the other purposes of
the Act the secondary or tertiary corporation is regarded as the owner of the
primary or secondary lot. But for the purpose of determining under
subsection (7) whether a primary or secondary parcel is subject to a
leaseback arrangement, the lessee under a leaseback arrangement over a primary
or secondary lot forming part of the primary or secondary parcel should be
regarded as the owner of the primary or secondary lot.