Victorian Bills Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]


LAND LEGISLATION AMENDMENT BILL 2009

 Land Legislation Amendment Bill 2009

                         Introduction Print

               EXPLANATORY MEMORANDUM


                               Clause Notes

                       PART 1--PRELIMINARY
Part 1 of the Bill provides for preliminary matters, including purposes and
commencement.

Clause 1     sets out the purposes of the Bill, which are to--
              ·      amend the Transfer of Land Act 1958, the
                     Subdivision Act 1988 and the Surveying Act 2004 as
                     to the application of those Acts; and
              ·      amend the Geographic Place Names Act 1998 as to the
                     appointment of a Registrar of Geographic Names, to
                     provide greater flexibility in the appointment process;
                     and
              ·      make minor amendments to the Forests Act 1958.

Clause 2     provides for the commencement of the various clauses of the
             Bill.
             Subsection (1) provides for the Bill to come into operation on a
             day or days to be proclaimed.
             Subsection (2) provides for the provisions of the Bill to come
             into operation on 1 May 2010 if they have not been proclaimed
             earlier pursuant to subsection (1).




561178                                1       BILL LA INTRODUCTION 2/9/2009

 


 

PART 2--TRANSFER OF LAND ACT 1958 Part 2 sets out amendments to the Transfer of Land Act 1958 in accordance with the purposes of the Bill. Clause 3 amends section 4(1) of the Transfer of Land Act 1958 by-- · amending the definition of conversion scheme to accord with the repeal of section 13 (clause 204); · substituting the definition of Court. Any distinction between Court and court is removed, and court will be defined as a "court of competent jurisdiction". Section 4 currently defines Court to mean "the Supreme Court and, in relation to land the value of which does not exceed the jurisdictional limit of the County Court, the Supreme Court or the County Court". This definition does not allow for the fact that the Magistrates Court has jurisdiction for land to the value of $100 000, or that other courts (for example, Federal Courts) may have jurisdiction in certain circumstances; · amending the definition of instrument to include a plan of subdivision where the context permits to provide clarity and avoid ambiguity; · inserting a definition of Register to improve clarity for users. Register will mean the Register of land kept under section 27. Clause 4 repeals sections 6(2) and 6(3) of the Transfer of Land Act 1958. The seal is unnecessary given section 6(1) which provides that judicial notice is to be taken of the signature of the Registrar, Deputy Registrar or Assistant Registrar. It is this provision that the Registrar relies upon when required to produce or provide documents to a court. Moreover, the provisions are evidentiary provisions which are not required in addition to the Evidence Act 2008. Clause 5 amends section 10(2)(b) of the Transfer of Land Act 1958 to accord with the repeal of section 13 (clause 6). Clause 6 repeals section 13 of the Transfer of Land Act 1958. The provision is obsolete, and the deletion of deed registration conversion will not adversely impact general law landowners. Sections 14 and 15 of the Transfer of Land Act 1958 adequately provide for conversion. 2

 


 

Clause 7 amends sections 26B(1), 26B(3) and 26B(4) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 8 amends sections 26N(4)(b), 26N(8) and 26N(9) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 8 also amends section 26N(5) of the Transfer of Land Act 1958 so that the time period in which the Registrar must cause notice is reduced from 35 days to 30 days to enable consistent time periods to be used throughout the Transfer of Land Act 1958. This will provide consistency for both the Registrar and customers and improve ease of use of the Transfer of Land Act 1958. Clause 9 amends sections 26Q(3)(b) and 26Q(4) of the Transfer of Land Act 1958 so that the time period for both sections is 30 days. Clause 10 amends sections 26R(3)(b)(ii), 26R(4), 26R(5), 26R(6) and 26R(8) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 10 also amends section 26R(6) of the Transfer of Land Act 1958 to require a caveator to give notice of proceedings substantiating a caveat. Section 26R provides that a caveat lodged under section 26R lapses after the expiration of 30 days unless the caveator has commenced proceedings in court and then served notice of this on the Registrar or has injuncted the Registrar from proceeding. This amendment brings the section in line with section 89A. This will provide consistency for both the Registrar and customers and improve ease of use of the Transfer of Land Act 1958. Clause 11 amends section 27(7)(b) of the Transfer of Land Act 1958 to require the nature of the interest held by the proprietor to be recorded on a folio. As the majority of folios will continue to be freehold, it is only necessary to specify the interest if the interest is other than freehold, for example, leasehold land. Clause 12 amends section 27A of the Transfer of Land Act 1958 to provide a means of registering a plan of subdivision in the Register. Section 27A(4) of the Transfer of Land Act 1958 is repealed by clause 12 as this section is redundant. Clause 12 also amends section 27A(5) of the Transfer of Land Act 1958 to remove the obligation for the Registrar to delete some recordings in the Register. Section 27A(5) currently requires the Registrar to remove expired instruments (for 3

 


 

example, leases and warrants) even in the absence of an application for, or lodgment of, a dealing. This amendment provides the Registrar with discretion about the recordings he or she removes from the Register. Clause 13 inserts section 27B(7B) into the Transfer of Land Act 1958 to give the Registrar a discretion whether to produce a certificate of title where the person entitled to receive the certificate requests that no certificate be produced. Many organisations, such as water authorities, rail authorities and local councils may be the registered proprietor of many parcels of land. In these cases the organisation may be required to manage and secure thousands of certificates of title, which is costly in terms of resourcing, insurance, storage and retrieval. Financial institutions and individuals may also opt to utilise these provisions where they consider for any reason, including security reasons, that they do not wish for a certificate of title to be produced. Clause 14 removes superfluous words in section 27BA of the Transfer of Land Act 1958 and clarifies that a certificate of title rendered unusable cannot be used to support any land dealing. It also amends a typographical error in section 27BA. Clause 15 repeals section 27E(a)(i) of the Transfer of Land Act 1958, which relates to duplicate instruments. The Transfer of Land Act 1958 refers, in numerous sections, to duplicate instruments. As a matter of registration practice, the Registrar no longer accepts or requires duplicate instruments and for clarity all such references have been reviewed and removed where appropriate. Clause 16 amends section 27F(3) of the Transfer of Land Act 1958 to remove references to duplicate instruments. Clause 17 repeals sections 28(3) and 28(4) of the Transfer of Land Act 1958. These provisions provide that the Registrar is not required to produce a certificate of title for land registered in the name of prescribed authorities (as defined in section 28(4)). With the introduction of section 27B(7B) (clause 13) these sections are no longer required. Clause 18 repeals section 30(1) of the Transfer of Land Act 1958 and amends the heading accordingly. Section 30(1) currently provides that where the Registrar records as registered proprietor a minor or a person under any other disability the Registrar shall state the age of such minor or the nature of the disability. The Registrar does not at present record the age of a minor or the nature of a disability. As the Register may be 4

 


 

searched by the public it is not consistent with privacy standards to record this information. The matter can be dealt with by the power in section 106(a). Clause 19 amends section 31(1) of the Transfer of Land Act 1958 to remove the requirement that the Registrar advertise in a newspaper the Registrar's intention to replace a certificate of title. This practice is outdated. However under the Registrar's general powers in section 104, it is still possible to advertise should it be appropriate in the circumstances. Clause 20 amends section 34(2) of the Transfer of Land Act 1958 to remove the reference to duplicate instruments. Clause 21 repeals section 35 of the Transfer of Land Act 1958 as the Registrar no longer accepts duplicate or triplicate instruments. Clause 22 amends section 37 of the Transfer of Land Act 1958 to remove reference to duplicate instruments. This clause also amends section 37 of the Transfer of Land Act 1958 to remove the ability to deposit trusts with the Registrar from the commencement of this Bill. This provision has been rarely used because it has been of no benefit to the lodging party. Clause 23 amends sections 38(4), 38(5) and 38(6) of the Transfer of Land Act 1958 to accord with the new definition of court. This clause also amends sections 38(4), 38(5) and 38(6) of the Transfer of Land Act 1958 to remove the Registrar's ability to make an order to deal with a folio marked "no survivorship". The provision is historical only, as the Registrar no longer endorses titles "no survivorship" and has not done so since the introduction of the electronic titles register. Clause 24 amends section 44C(2) of the Transfer of Land Act 1958 to clarify that an eligible person must hold insurance of a kind and amount acceptable to the Registrar and comply with any other eligibility requirements of the Registrar. Note: The Registrar's Requirements have already been published in Special Government Gazettes (8 November 2007 and 20 October 2008) and the Electronic Conveyancing (EC) System Rules published on the Land Victoria website. This clause also consequentially amends section 44C(4)(b) of the Transfer of Land Act 1958. 5

 


 

Clause 25 amends section 44I(2) of the Transfer of Land Act 1958 to clarify that a certificate of title rendered unusable cannot be used to support any further transaction in land. Clause 26 amends section 44J(2) of the Transfer of Land Act 1958 to extend the time period to 30 days. Clause 27 amends section 47(c) of the Transfer of Land Act 1958 to remove absence from Victoria as grounds for a vesting order, as this is no longer appropriate in modern times. Clause 27 also extends section 47(c) of the Transfer of Land Act 1958 to deregistered corporations and corporations whose authorised agents cannot be found. Section 47(c) relates to the power of the Registrar to make a vesting order in cases of a completed purchase. The existing provision reads as though a registered proprietor must be a natural person, however, a registered proprietor may be a company. The Bill extends section 47(c) to provide for a situation where a registered proprietor is a body corporate and cannot provide an instrument of transfer. Clause 28 repeals section 48 of the Transfer of Land Act 1958. Section 48 provides that in any sale of Torrens land the conditions set out in Table A of the Seventh Schedule may be adopted by insertion of the words "The conditions in Table A of the Transfer of Land Act 1958 shall apply to this contract". In 2008 the Estate Agents (Contracts) Regulations 1997 were reviewed, creating a new standard Contract of Sale of Real Estate. The new contract is more usable and effective. The new contract has been adopted as the industry standard, and the outdated conditions in Table A are now redundant. Table A is repealed at clause 71, and section 48 is accordingly repealed. Clause 29 amends section 49(1) of the Transfer of Land Act 1958 to remove the requirement to record the date of death of a registered proprietor in the case where the legal personal representative of a deceased registered proprietor applies to be registered. Clause 30 amends section 52(2) of the Transfer of Land Act 1958 to remove the requirement that the Registrar be satisfied that a judgment debtor is one and the same as the registered proprietor of the land. The court is in the best position to make this assessment. Removal of this requirement will streamline the process and make it more efficient. With the removal of these requirements, it will be necessary for the judgment, decree or order of process to identify the folio(s) of the Register affected. 6

 


 

Clause 31 amends section 55(3) of the Transfer of Land Act 1958 to remove references to duplicate instruments. Clause 32 amends section 58(1) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 32 also amends section 58(1) of the Transfer of Land Act 1958 to extend the operation of the section to beneficiaries as well as trustees. Clause 33 amends section 59 of the Transfer of Land Act 1958 to extend the operation of the section to dispositions effected by operation of Commonwealth statutes. Currently, this section is interpreted to only apply to State legislation. This amendment will put beyond doubt that the Registrar may register dispositions effected by operation of Commonwealth Statutes. Clause 34 inserts new section 59A into the Transfer of Land Act 1958 which provides that, where by operation of law a body corporate is established as the successor-at-law to a registered proprietor of land, the successor body corporate may request that the Register be amended to reflect this. Such an application is to be supported by a certificate signed by the chief executive officer of the successor body corporate stating that it is the successor-at-law to the registered proprietor. Clause 35 amends section 60(1) of the Transfer of Land Act 1958 to refer to "field records" in place of "field notes". The phrase "field notes" was replaced with "field records" some 15 years ago. This change is reflected in section 15(2) and 26(P)(2), however, appears to be have been overlooked in section 60(1). This clause also inserts new section 60(3A) into the Transfer of Land Act 1958 to ensure that the advertising of the application under section 60(2) and the posting of the notice under section 60(3) occur concurrently. Clause 36 amends section 62(2)(b) of the Transfer of Land Act 1958 to provide the Registrar with the discretion to consolidate land the subject of an adverse possession vesting order made under section 62(1) with any adjoining land owned by the applicant. This clause also inserts new section 62(5) into the Transfer of Land Act 1958 to expand the definition of encumbrance for the purpose of this section. Under section 62(1), where the Registrar is satisfied that the applicant has acquired a title by possession, the Registrar may make an order vesting the land in the applicant for the estate or interest claimed free from all encumbrances which have been determined or extinguished by 7

 


 

possession. The amendment seeks to clarify what is meant by the term "encumbrance". Clause 37 amends section 66 of the Transfer of Land Act 1958 to require the recording of lease commencement and expiration dates. Section 66 enables leases of over three years to be registered on the relevant folio(s). For clarity in the administration of the Register, and to avoid any ambiguity the Transfer of Land Act 1958 is amended to require the applicant to set out the lease commencement and expiration dates. Clause 38 amends section 68(2) of the Transfer of Land Act 1958 so that the time period for notice is 30 days. Clause 39 amends section 69 of the Transfer of Land Act 1958 to clarify that a lease may be partially surrendered. Section 69(1) provides that the registered proprietor of a lease may surrender the lease. The provision does not specify whether leases may be partially surrendered; that is, the lease is surrendered in relation to part of the land only and the balance remains leased. Clause 40 amends section 75A of the Transfer of Land Act 1958 to confirm that a variation of mortgage does not include a transfer or assignment of mortgage or an alteration to the length of the mortgage, the area of mortgaged land or the parties to a mortgage. This amendment makes this section consistent with section 67A of the Transfer of Land Act 1958, which relates to the variation of registered leases. Clause 41 amends section 82(2) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 42 amends section 84(2) of the Transfer of Land Act 1958 to extend the operation of the section to bodies corporate that have been deregistered or whose authorised agent or agents cannot be found. Currently the section is interpreted as only applying to natural person mortgagees. Clause 43 amends section 85(2) of the Transfer of Land Act 1958 to remove the Registrar from the prescribed process. Section 85(1) allows a mortgagor to pay outstanding monies to the Treasurer, where a mortgagee cannot be located. Section 85(2) provides that the Treasurer will pay these moneys to the person entitled following a requisition from the Registrar. It is more appropriate that a person apply directly to the Treasurer as the Registrar adds no value to the process. This amendment will reduce the regulatory burden for those applying under this section. 8

 


 

Clause 44 amends section 88 of the Transfer of Land Act 1958 to clarify that where a restrictive covenant is created or authorised by a plan of subdivision or planning scheme or permit under the Planning and Environment Act 1987 the covenant may only be removed by one of those means or by order of a court. As a matter of public policy, a council should be involved in the variation or removal of a restrictive covenant, the creation of which it had approved. This clause also repeals section 88(1B) of the Transfer of Land Act 1958, as it does not affect an amendment in the Register and is superfluous to section 88(1). Clause 45 amends section 89(4) of the Transfer of Land Act 1958 to remove the requirement that an address for service of notices must be in Victoria. The reference to an address in Victoria is an anachronism and is not necessary. The address for service of notice in other matters is not limited to an address in Victoria and there is no reason such a restriction should apply in the case of a caveat. Clause 46 amends section 89A(3)(b) of the Transfer of Land Act 1958 to accord with the new definition of court. This clause amends section 89A(4) of the Transfer of Land Act 1958 so that the time period for notice is 30 days. This clause amends section 89A(7) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 47 amends sections 90(2) and 90(3) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 48 amends section 91(4) of the Transfer of Land Act 1958 to clarify that it applies only to caveats that have been withdrawn by an order of a court or have lapsed. Section 91(4) provides that a caveat that has lapsed or been removed shall not be renewed. This is consistent with the Registrar's long-standing practice that caveats which had been voluntarily withdrawn, to enable ordinary conveyancing practice, were excluded from the operation of section 91(4) and were able to be renewed. Clause 49 repeals Division 2 of Part V of the Transfer of Land Act 1958 as the provisions are a historical anachronism. Section 92 of the Transfer of Land Act 1958 provides that if the proprietor is free to deal with the land, the Registrar is to sign an order so that the applicant's dealing has priority over any instrument presented for registration within 48 hours of the time of the certificate. These provisions are a carryover from colonial days, 9

 


 

and do not contemplate instantaneous communication. The provisions assume lengthy travel delays when conducting dealings. Clause 50 amends section 98B(b) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 51 inserts new section 98C(2A) into the Transfer of Land Act 1958 to qualify that a variation of a service agreement under section 98C(2) does not include an alteration of the length of the service agreement or the area to which the service agreement applies. As in the case of variation of registered mortgages under section 75A, there is occasionally uncertainty as to what constitutes a variation of a service agreement for the purposes of section 98C of the Transfer of Land Act 1958. Clause 52 substitutes section 98CB(2)(c) of the Transfer of Land Act 1958. The existing provision requires the Registrar to serve notice on the Commissioner of Corporate Affairs when a plan of building subdivision is converted to a subdivision under the Subdivision Act 1988 and there is a service company which is taken to be a registered corporation in Victoria. This provision is now redundant, as all corporations are registered by the Australian Securities and Investment Commission (ASIC), pursuant to the Corporations Act 2001 of the Commonwealth. Clause 53 amends section 98CC(2)(c) of the Transfer of Land Act 1958 with similar amendments to those made by clause 52. It also amends section 98CC(2)(a) of the Transfer of Land Act 1958 to remove the reference to duplicate instruments. Clause 54 repeals section 98CD(1)(f) of the Transfer of Land Act 1958 as this provision is inconsistent with the Corporations Act 2001 of the Commonwealth. Clause 55 amends section 98CE of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 56 amends section 103(1) of the Transfer of Land Act 1958 to accord with the new definition of court. This clause also amends section 103(1AA) of the Transfer of Land Act 1958 to ensure that the Registrar may give effect to an order of VCAT in any matter that VCAT has jurisdiction to hear. Clause 56 also repeals section 103(1A) of the Transfer of Land Act 1958 as this is redundant following amendment to section 103(2)(a). 10

 


 

This clause amends section 103(2)(a) of the Transfer of Land Act 1958 to provide clarity that the Registrar only has power to amend an unregistered instrument. It has been the Registrar's long-standing practice not to amend a registered instrument, unless directed to do so by a court. This practice is to maintain the integrity of the Register. Clause 56 makes consequential amendments to section 103(2)(b) of the Transfer of Land Act 1958. Clause 57 amends section 104(3) of the Transfer of Land Act 1958 to clarify that the Registrar's power to call in a certificate of title can be for any purpose that the Registrar considers necessary or appropriate. The section is amended to clarify that section 104(3) is limited to actions taken by the Registrar of his or her own accord, not on application. This clause amends section 104(3) to remove a reference to duplicate instruments. This clause also amends section 104(3) to extend the minimum time period to 30 days. This clause repeals sections 104(3A), 104(3B), 104(3C) and 104(3D) of the Transfer of Land Act 1958 as these provisions are replaced by the enhanced and streamlined process set out at Clause 66. Finally, this clause amends section 104(5) of the Transfer of Land Act 1958 to remove reference to duplicate instruments. Clause 58 repeals section 105(2) of the Transfer of Land Act 1958 as a consequence of amendments to section 108 at clause 60. Clause 59 amends section 106(a) of the Transfer of Land Act 1958 to update the section and removes absence from Victoria as a ground for recording a caveat. The provision is also restructured to aid clarity, however, is substantially the same. Clause 59 also inserts new section 106(2) into the Transfer of Land Act 1958 to clarify what recordings can be made on a folio affected by such a caveat. This power is required to ensure that a caveat is not a complete block to any activity with a folio, but rather, it serves to limit registration to only those dealings that are compatible with the purpose for which the caveat was recorded. This clause inserts new section 106(3) into the Transfer of Land Act 1958 to provide the Registrar with an express power to remove these caveats. The provision provides for removal of 11

 


 

a caveat where the Registrar is satisfied that it is no longer required for the purpose for which it was recorded. This clause also amends section 106(d) of the Transfer of Land Act 1958 to accord with the new definition of court. This clause also inserts new section 106(f) into the Transfer of Land Act 1958 which provides the Registrar with a discretionary power to do anything necessary, including making a notation on a folio, to protect the operation, effectiveness and integrity of the Register. Clause 60 inserts new section 108(9) into the Transfer of Land Act 1958 to provide that fees paid for an application, dealing, or any other matter that is withdrawn after lodgment are forfeited and that the Registrar may return instruments and documents lodged in connection with the matter, to be consistent with section 105, which relates to rejected dealings. This amendment reflects that there is considerable work (and hence cost) for Land Victoria in processing the application to the point of lodgment and/or requisition, processing the withdrawal and processing the relodgment. Clause 60 also inserts section 108(10) into the Transfer of Land Act 1958 to provide that where fees are forfeited under subsection (9) or section 105 and the dealing is later relodged; the fees payable in respect of the relodgment are half the fee otherwise payable. Section 105(2) of the Transfer of Land Act 1958 is repealed accordingly at clause 58. Clause 61 amends section 110(5) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 62 amends section 113(2) of the Transfer of Land Act 1958 to clarify that addresses for the service of notices may be retained by the Registrar and need not be recorded in the Register. This will provide the Registrar with flexibility in complying with the information privacy principles contained in the Information Privacy Act 2000. Clause 62 amends section 113(5) of the Transfer of Land Act 1958 to give the Registrar the power to waive production of a certificate of title to update an address for service of notices where the Registrar is otherwise satisfied as to the identity of the applicant. This amendment is to remove existing barriers to registered proprietors updating their addresses and will ensure that the Register is up-to-date. 12

 


 

Clause 63 amends section 114(3) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 64 amends section 115 of the Transfer of Land Act 1958 to clarify that the Registrar will only return documents to, or at the direction of, the person who lodged them. This is consistent with the Registrar's practice that documents are only returned to the lodging party. Clause 65 amends section 116 of the Transfer of Land Act 1958 to provide that an applicant must request reasons for certain decisions from the Registrar before summoning the Registrar to appear in court. The current intention of this section would appear to be that an applicant may require reasons, and then summon the Registrar to court to substantiate and uphold those reasons. However, the provision is currently not explicit and the Registrar is, on occasion, summoned to appear in court despite no request for reasons having been made. Clause 65 also amends sections 116(3) and 116(4) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 66 amends section 116A of the Transfer of Land Act 1958 to compliment amendments to section 104 at clause 57. Section 116A(1) is amended to provide that the Registrar may apply to a court of competent jurisdiction or VCAT for an order directing a person to produce a certificate of title or other document if the Registrar has made a request under section 104(3) and that person has not complied. In accordance with amendments to section 104, that remove the mechanism for a person to apply to the Registrar to require production of a certificate of title or document, section 116A(1A) is inserted to provide that any person may apply to a court or VCAT for an order directing another person to produce a certificate of title or document. Clause 66 amends sections 116A(2) and (3) of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 67 amends section 118 of the Transfer of Land Act 1958 to accord with the new definition of court. Clause 68 amends section 120(2)(a) of the Transfer of Land Act 1958 to authorise the Governor in Council to make regulations with respect to the Registrar's performance of any function or duty under any Act. The Registrar is often required to perform functions or duties under Acts other than the Transfer of Land Act 1958. 13

 


 

Clause 68 also repeals section 120(2)(aa) of the Transfer of Land Act 1958, which currently permits the Governor in Council to make regulations for the fees, charges and expenses recoverable by the Registrar for carrying out any procedures in relation to any land as the result of the operation of the Local Government Act 1989. This provision is no longer necessary given the amendment to section 120(2)(a). Clause 69 amends section 121 of the Transfer of Land Act 1958 to permit the Registrar to approve forms for use in performing any function or duty under any Act. Clause 70 inserts new section 129 into the Transfer of Land Act 1958 to provide transitional provisions for the repeal of sections 28(3) and (4). The provisions provide that it is not necessary to produce a certificate of title in respect of a folio or folios of land for which a prescribed authority is the registered proprietor, if a certificate of title was not required to be produced under section 28(3) immediately prior to its repeal. This clause also inserts new section 130 into the Transfer of Land Act 1958 to provide transitional provisions for the repeal of Table A of the Seventh Schedule. The clause provides that any reference to Table A in a contract is taken to be a reference to Table A of that schedule as in force immediately before its repeal. Clause 71 repeals the Seventh Schedule to the Transfer of Land Act 1958. See notes on clause 28 for a detailed explanation of this amendment. Clause 72 repeals the Seventeenth and Eighteenth Schedules to the Transfer of Land Act 1958. These schedules outline the application for search certificates and order for stay of registration, which are repealed by clause 49. PART 3--SURVEYING ACT 2004 Part 3 sets out amendments to the Surveying Act 2004 in accordance with the purposes of the Bill. Clause 73 amends section 3 of the Surveying Act 2004 to insert a new type of unprofessional conduct, being conduct by a licensed surveyor that contravenes a condition, limitation or restriction on his or her registration. 14

 


 

Clause 74 amends the application process in section 4(2) of the Surveying Act 2004 to provide that the Board can register different classes of surveyors, such as retired or non-practising surveyors. Further amendments are made by this Bill throughout the Surveying Act 2004 to allow for this change. Clause 75 amends section 5(b) of the Surveying Act 2004 to provide the Board with the power to require further professional education or training in professional skills in addition to cadastral surveying. The discretion provided by the new provisions will allow the Board to amend their requirements. This clause amends section 5(c) of the Surveying Act 2004 to remove the implication that surveyors recognised in other states must pass an examination set by the Board in order to be licensed to practice in Victoria. A new note is inserted at the foot of section 5 of the Surveying Act 2004 to refer to the application of the Mutual Recognition (Victoria) Act 1998 and the Trans-Tasman Mutual Recognition (Victoria) Act 1998. Clause 76 amends the renewal process in section 7 of the Surveying Act 2004 to provide for differing classes of registration. This clause amends section 7(4) of the Surveying Act 2004 to provide for the new category of further professional education or training, and requires that the Board's further professional education or training requirements are published in accordance with section 62. This clause inserts new section 7(6) into the Surveying Act 2004 to provide that the further professional education or training requirements do not apply to surveyors registered as non-practising surveyors. Clause 77 inserts new section 7A into the Surveying Act 2004 to provide for applications for variation of registration, from one class of registration to another. Clause 78 amends section 11 of the Surveying Act 2004 to provide that the registration of a licensed surveyor remains in force until December 31 of the year in which the registration was granted, renewed or restored, and that where a registration is granted or restored for less than 12 months, the Board may charge pro-rata fees for that period. This establishes a common registration renewal date for all licensed surveyors and provides administrative efficiency for the Board. 15

 


 

Clause 79 amends the procedure for restoration to the register in section 12 of the Surveying Act 2004 to provide for restoration of a surveyor's registration to a different class of registration to that previously held by the licensed surveyor. Clause 80 inserts section 15(3)(e) into the Surveying Act 2004 to ensure that information about a surveyor's class of registration is recorded on the register. Clause 81 inserts section 19(3)(b) into the Surveying Act 2004 to broaden the range of people the Board may delegate a preliminary investigation to. Section 19(3) of the Surveying Act 2004 permits the preliminary investigation of a complaint into the professional conduct of a surveyor to be delegated in writing to an officer of the Board or a subcommittee of the Board consisting of not more than three members of the Board. This provision might, for example, permit an independent surveyor, a consultant or counsel to be requested to conduct the preliminary investigation. This will allow the Board greater flexibility when conducting preliminary investigations into a complaint. This clause also inserts new section 19(4) into the Surveying Act 2004 to authorise the Board to refuse to investigate a complaint where the board determines that the complaint is frivolous, vexations, misconceived or lacking in substance. Clause 82 inserts new section 22(1)(c) into the Surveying Act 2004 to provide that a person conducting a preliminary investigation may recommend that the matter may be settled by agreement, in accordance with the proposed section 22A (clause 83). Clause 83 inserts new section 22A into the Surveying Act 2004 to provide that the Board may settle a complaint by agreement between the Board and the surveyor who is the subject of the complaint. There may be occasions where a surveyor admits to unprofessional conduct in the course of the preliminary investigation. Currently, the Board is still required to go through the panel hearing process prior to determining that a particular action or actions need to be undertaken or a sanction or sanctions applied. Holding a panel hearing in these circumstances is an unnecessary use of Board resources. Clause 84 inserts new section 30A into the Surveying Act 2004 to require the Board to notify a surveyor who is the subject of a complaint of the outcome of a hearing. Presently, the Act only provides for the complainant to be notified of the outcome, which is inappropriate given the potential impact on the surveyor's livelihood. 16

 


 

Clause 85 amends sections 31(1) and 31(2) of the Surveying Act 2004 to provide that notification to a complainant about whether a hearing will be conducted, and the findings of any hearing, must be provided in writing. Clause 86 amends section 34(1) of the Surveying Act 2004 to provide that where VCAT has reviewed a decision of the Board, the Board must notify anyone who was notified of the original decision, of VCAT's determination in writing. Clause 87 inserts new section 35(2) into the Surveying Act 2004 which creates an offence where a person claims to be, or holds himself or herself out to be, a licensed surveyor when he or she is not a licensed surveyor, or where a person carries out any act that contravenes a limitation or restriction of his or her registration. This amendment will clarify that it is an offence under the Act to purport to be a licensed surveyor without being so licensed. Clause 88 inserts new section 42(1)(d) into the Surveying Act 2004 to clarify that the Surveyor-General has the power to commence proceedings to prosecute any offence under the Surveying Act 2004 or regulations made under the Surveying Act 2004. This amendment will provide the Surveyor-General with the express authority to initiate proceedings where offences have been committed under other sections of the Act or breaches of regulations made under section 63. Clause 89 amends section 45(f) of the Surveying Act 2004 to accord with broader further professional education and training requirements. This clause inserts section 45(ia) into the Surveying Act 2004 to clarify that the Board has the power to commence proceedings to prosecute any offence under the Surveying Act 2004 or supporting regulations. This clause also inserts section 45(ib) into the Surveying Act 2004 to accord with the Board's broader delegation power for investigations. This clause amends section 45(j)(i) of the Surveying Act 2004 to accord with broader further professional education and training requirements. Clause 90 amends section 47(2)(d) of the Surveying Act 2004 to remove the requirement that one licensed surveyor appointed to the Board is also the Surveyor and Chief Draughting Officer in the Office of Titles, as the position described no longer exists. Greater flexibility is required when making appointments to the Board. 17

 


 

Clause 91 amends section 61 of the Surveying Act 2004 to provide for the overlapping powers of the Board and the Surveyor-General in regard to commencing proceedings under the Act. Clause 92 amends section 62(a) of the Surveying Act 2004 to accord with broader further professional education and training requirements. Clause 93 inserts section 62(3)(a) into the Surveying Act 2004 to provide that regulations may prescribe different fees for different classes of surveyors. This clause also inserts section 62(3)(b) into the Surveying Act 2004 to provide that the Board may waive fees. PART 4--GEOGRAPHIC PLACE NAMES ACT 1998 Part 4 sets out amendments to the Geographic Place Names Act 1998 in accordance with the purposes of the Bill. Clause 94 amends section 7(2) of the Geographic Place Names Act 1998 to provide that the Registrar for Geographic Names may be appointed for a period up to 5 years (increased from 3 years). This provides the Minister with greater flexibility in appointing the Registrar of Geographic Names. PART 5--SUBDIVISION ACT 1988 Part 5 sets out amendments to the Subdivision Act 1988 in accordance with the purposes of the Bill. Clause 95 amends the definition of master plan in section 3(1) of the Subdivision Act 1988 to clarify what land may be considered part of a master plan. Clause 96 amends section 5(3)(e) of the Subdivision Act 1988 to confirm that the Registrar may require a statement of compliance to accompany the lodgment of a certified plan. This clause also inserts section 5(3)(e)(iii) into the Subdivision Act 1988 to confirm that the Registrar may require street address information to accompany the lodgment of a certified plan. The purpose of this amendment is to ensure the timely entry of street numbering information for emergency services purposes. A complementary amendment to the Subdivision (Procedures) Regulations 2000 will be pursued. 18

 


 

Clause 97 inserts section 22A into the Subdivision Act 1988 to confirm that the Registrar may refuse to proceed with the registration of an instrument or plan if satisfactory evidence is not provided to support the registration. Section 22A is modelled on section 105(1) of the Transfer of Land Act 1958. As a matter of construction, section 97 of the Transfer of Land Act 1958 provides that provisions in the Transfer of Land Act 1958 apply to the Subdivision Act 1988. The purpose of the new section 22A is to transparently refer to the Registrar's power to refuse registration. The new section 22A also provides-- · the Registrar is to return documents as the Registrar thinks fit; · fees paid in respect of an instrument or plan that is refused registration or withdrawn are forfeited; and · half fees are payable on relodgment. Clause 98 inserts section 24(2)(ba) into the Subdivision Act 1988 to clarify that where roads or reserves vest in a Council under section 24(2), any agreement under section 173 of the Planning and Environment Act 1987 ceases to apply to that land. Clause 99 amends section 31A(3) of the Subdivision Act 1988 to provide that the Registrar may record on the folio of the Register for common property anything affecting the common property but not something affecting only the lot owner's share in the common property. Clause 100 replaces section 32(c) of the Subdivision Act 1988 to confirm that a unanimous resolution of the members of an owners corporation may provide for the alteration of the boundaries of the land affected by the owners corporation. A boundary alteration may result in the area of land affected by the owners corporation being increased, decreased or there being no change at all to the area. The purpose of this amendment is to complement the proposed amendment at clause 101. Clause 101 replaces section 32AI(1) of the Subdivision Act 1988 to confirm that except in certain limited circumstances a unanimous resolution is required to-- · alter the boundaries of common property; or · add new common property. 19

 


 

Owner(s) of lots may proceed to consolidate, subdivide or alter their lot or lots. However, they may only create new common property if a new owners corporation is created in respect of that common property. The owners corporation must not be comprised of anyone other than the members who are making the application under the section. The Supreme Court considered the corresponding provision in Walker and Sopov v the Registrar of Titles [2001] VSC 354. The Registrar of Titles has interpreted the court's decision as allowing existing common property to be expanded in area without a unanimous resolution. The purpose of this amendment is to clarify that the addition of new common property requires a new owners corporation for that additional common property. Clause 102 amends section 32A(1) of the Subdivision Act 1988 to confirm that all members of an owners corporation may lodge a plan to consolidate or re-subdivide all of the land on the plan that is affected by that owners corporation. This clause also amends section 32A(3) of the Subdivision Act 1988 to clarify that on a total re-subdivision or consolidation of land affected by an owners corporation-- · if affected land in the previous registered plan is owned by the same person, then that land vests in the owner; and · if affected land in the previous registered plan is owned by more than one lot owner, then land vests in the former lot owners in proportion to their lot entitlement in that owners corporation. Clause 103 repeals section 37(3)(c)(v) of the Subdivision Act 1988. The purpose of this amendment is to provide that a master plan may be amended either under section 37(3)(c)(iv) or section 32 by unanimous resolution. Clause 104 inserts section 46A into the Subdivision Act 1988 to confer the Registrar with the discretion to deem that certain pre- Subdivision Act 1988 plans have expired. This power may only be exercised in circumstances where the land has since been dealt with without reference to the plan. 20

 


 

PART 6--FORESTS ACT 1958 Part 6 sets out amendments to the Forests Act 1958 in accordance with the purposes of the Bill. Section 105 amends section 52(1) of the Forests Act 1958 to provide that, in addition to licences, the Minister may grant permits of up to 20 years for specified purposes. This clause inserts the words "specified in the licence or permit" into sections 52(1A), 52(1B) and 52(1C) of the Forests Act 1958 to match the wording in the opening phrase of these sections. This clause makes consequential amendments to sections 52(2), 52(3) and 52(5) of the Forests Act 1958 to reflect the role of the Minister in granting licences and permits. This clause also amends sections 52(3) and 52(5) of the Forests Act 1958 by deleting references to authorised officer or authorised person. Rather, for consistency and clarity, the Minister's power under section 52 should be managed through delegation under the Conservation, Forests and Lands Act 1987. PART 7--REPEAL OF AMENDING ACT Clause 106 provides for the automatic repeal of this amending Bill on 1 May 2011. The repeal of this Bill does not affect in any way the operation of the amendments made by this Bill (see section 15(1) of the Interpretation of Legislation Act 1984). 21

 


 

 


[Index] [Search] [Download] [Bill] [Help]