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In owners corporation circles it’s known as ‘the bible’…

(Truth be known some of us may well keep it in our top drawer in our bedside table…allegedly. )

Safe to say that the plan of subdivision document is a critical document, as it forms the foundation of the owners corporation status, its members and its areas of responsibility, or common property. So that’s why Founder Michael Darby called in the expert Andrew Whitelaw Director at Whitelaw Flynn Law to have a conversation for you and bring together an extensive overview of ask plans of subdivision.

We hope you enjoy the session any further question please feel free to reach out to our team – at info@quantumunited.com.au or simply give us a call on +61 3 83608800.

 


*This conversation and its content was recorded in October 2021, legislation and views of the presenters may change subject to court and or tribunal cases following the date of the interview and as such viewpoints and or advice may change.

 

Please find the transcript of the interview below:

INTERVIEW WITH ANDREW WHITELAW

PLAN OF SUBDIVISIONS

 

Andrew Whitelaw:

Well, look, you raised in your opening that you should be sleeping with the plan of subdivision under your bed. Maybe that’s one step too far, but you certainly need to understand what the plan of subdivision is doing and what it’s saying because it does dramatically affect rights and obligations.

Michael Darby:

Hello, everybody, and welcome to this video. My name’s Michael Darby from Quantum United Management. Today we’re talking about plans of subdivision and how they impact and create owners corporations. To assist me, I’m joined by Andrew Whitelaw today. I’ll give you a bit of an introduction to Andrew. Andrew Whitelaw is a director at Whitelaw Flynn Lawyers and leads the building, construction and owners corporation team. Andrew has practiced in building and construction law since 1998. He’s recognized as a specialist in domestic and commercial construction law, the Owners Corporation Act and in dispute resolution. Andrew acts on behalf of builders, developers, owners, owners corporations, building surveyors and construction industry professionals.

Andrew also provides legal advice and guidance to peak industry bodies and their members, including the Master Builders Association of Victoria, Housing Industry Australia, Strata Community Australia, Real Estate Institute of Victoria and the Australian Institute of Building Surveyors. He’s a member of HIA Victoria’s industrial relations and legal committee and a selected member of the Victorian Civil and Administrative Tribunal (VCAT), building and property list users group. Andrew is the immediate past secretary and a past president of the Building Disputes Practitioners’ Society.

Today we’ll touch on what is a plan of subdivision and why they’re important. And, I’m sure we could do a half day workshop on plan of subdivision, but we’ll provide a high-level overview for owners because it’s essentially the Bible when it comes to owners corporations. I think we should sleep with it under our bed or in our bedside drawer because without it we’re in a bit a strife, and owners do need to have a good understanding of it. So, it’s a document that’s essentially drawn up by a surveyor on behalf of a developer and approved by a council and lodged with Land Use Victoria or the Titles Office. That set ups the titles for all of the lands in a project. What would your explanation be, Andrew, of a plan of subdivision?

Andrew Whitelaw:

I think, obviously, when we’re talking owners corporations it’s the primary document that sets out what the boundaries are between private lots and common property, between private lots and other private lots. It really gives us that knowledge and information that we need in relation to who owns what and then, ultimately, who becomes responsible for the repair and maintenance of what. I think one of the things that people underappreciate or fail to appreciate when they buy into an owners corporation or managers looking at plans is what those boundaries actually are and what they do. Probably one of the key elements, of course, primarily defines what is common property and what is that private title.

Michael Darby:

Yeah. I was thinking of an analogy for our owners, and if we think they’re building their home on a block of land and they’ve got this slab and a frame… I mean, the plan of subdivision is essentially the soil that the house sits in, isn’t it? If you don’t have that then you haven’t got anything. It’s the key base document for a subdivision, essentially.

 

 

Andrew Whitelaw:

Absolutely. I think that when you’ve got multi-stories, whether it’s two floors or you’ve got a high rise, you haven’t own land so they’re effectively sitting in air. It’s always interesting for when people purchase off the plan that you’re buying a piece of airspace that’s not yet defined by a boundary until the plan of subdivision comes into existence.

Michael Darby:

No, that’s right. There’s a requirement… I mean, they’ve got a draft one in the contract of sale and hopefully they don’t change too much. There’s limitations on how much they can change, but they get to see their airspace in a drawing with nothing else, don’t they? And some glossy images.

Andrew Whitelaw:

Yeah. I think when you look at those specific elements of what is an internal face boundary, what is a median boundary and what is an external face boundary really becomes critical. I think where you have a plan of subdivision, for example, where there’s an external face then the lot owner actually owns the outside of that part of the building, which includes being responsible for its repair and maintenance and the windows and all those sorts of other elements which can catch a lot of people by surprise when they suddenly think, “Well, hang on. Why’s the owners corporation not fixing that stuff?” And it’s actually privately owned.

Michael Darby:

Yeah. It’s a crucial part of it, isn’t it? Determining the boundary because that resolves, well, it attempts to resolve the conflicts around repairs and who does them and who’s responsible. It’s another critical part of the document and why they’re important.

We’ll show some examples in a moment and we can move through all of them. They talk about boundaries, we’ll talk about the cover page, the Lot Table page or the Search Report. There’s some planter boxes, they create no end of trouble in sort of high rise and how they’re drawn up. We’ll go through a few examples in a moment. But yes, just teasing out a bit more about the information that’s in there. It’s got the exact location of your lot, it’s got the dimensions, like you talked about, but all the other lots are in there.

It’s got the lot boundaries, council roadways are in there, council parks are in there showing as council reserves. If we’re game, we might touch on even touch on easements a bit later. See how we go. And it talks about how many owners corporations there are of course, doesn’t it, within the plan of subdivision. It goes into unlimited, limited owned corporations. We’ll probably stop there and just go into that potentially. So, an unlimited and limited owners corporation and sort of just pulling up a definition of how it’s defined in the Subdivision Act, that an unlimited OC is one that’s specified as an unlimited OC. The purpose is to manage the land affected by the owners corporation, except the use of common property affected by a limited owners corporation. Do you want to touch on the limited owners corporation, perhaps?

Andrew Whitelaw:

Well, yeah. There’s a lot of confusion out there about that. A limited owners corporation is really created in order to control the use of that common property that falls within that limited owners corporation. I know that there’s a lot of OCs out there that have multiple owners corporations and they have different managers for the unlimited and different managers for the limited because they might townhouses versus houses or whatever it might be. But a limited owners corporation is limited in relation to what it’s supposed to do regarding the use of that common property by those who are members of that limited owners corporation only. But obviously the Owners Corporation Act goes wider than that and says that an owners corporation must repair and maintain the common property and do all its other functions and obligations. It doesn’t distinguish between a limited or an unlimited owners corporation so it really depends on what part of the act you’re looking at and what part of a plan of subdivision you’re looking at as to whether the limited and the unlimited issues come into play.

 

Michael Darby:

Yeah, look and in my instances that I’ve come across and in most of them, indeed, that the limited owners corporations, they get exclusive use of that property and they raise their budget to maintain that property, but the actual ownership of it sits with the unlimited, doesn’t it?

Whitelaw:

Correct.

Michael Darby:

That creates its own sort of challenges and problems. I know you and I have sort of been involved in a case around building defects. It’s a really unfortunately situation when it’s a large masterplan estate and there’s the median density inside that plan, and then a defect issue comes up with their building on that limited owners corporations but it’s the unlimited who’s responsible and owns that common property. They get caught up in the dispute, don’t they?

Andrew Whitelaw:

Absolutely. Yeah. When you do a title search of the common property number two, for example, then the title will actually be in the name of the unlimited owners corporation number one. So going down the path of litigation or even if you’re going down the path of negotiations between individual lot owners or individual owners corporations in the same place, you need to understand who actually owns what from the perspective of common property.

Michael Darby:

Yeah. Have you identified is there a key reason as to why they would set it up that way? I guess is it just the hierarchy and it just makes sense for ownership to sit at the top with the unlimited?

Andrew Whitelaw:

I think it’s just something that’s really developed over time, that we have massive owners corporations now with all sorts of different styles of construction that are on them. I’m pretty sure that when the Subdivision Act was originally created and its precursors that it was not envisaged that you’d suddenly be looking at 100+ lots that would be dealing with all sorts of issues. So, a plan of subdivision, the Subdivision Act and the Owners Corporation Act doesn’t really make a proper distinction between what might be a two lot “sub-ber” to there might be 100 or 300 or 500 lots. It’s all thrown into the one piece of legislation”, so it’s a matter of picking that apart.

Michael Darby:

Yeah. One would hope it’s not a situation of we’ve just been doing what we’ve always done and not stopped to reset or perhaps do it differently, heaven forbid.

Andrew Whitelaw:

Well, look, you raised in your opening that you should be sleeping with the plan of subdivision under your bed. Maybe that’s one step too far, but you certainly need to understand what the plan of subdivision is doing and what it’s saying because it does dramatically affect rights and obligations.

Michael Darby:

Yeah. Look, as managers we spend a lot of time looking at the plan of subdivision. Even the committees don’t have a good knowledge of it, so lot owners, who even more so probably, have a limited knowledge of it, but it’s a critical document. I think that that’s what our role is and that’s why committees rely on us to have a good knowledge of the plan of subdivision because it’s so critical and we’ve just listed 10 or 15 quick points about what information is shown on there and that there’s probably to it. There’ll be more that we cover, but they are a critical document so, look, at the very least have an awareness of it, that it exists, and pick up some of the information that we go through because you do need to have a little bit of understanding. And reach out to your manager if you need, if you have any questions. They should be able to answer them for you, indeed.

Andrew Whitelaw:

I think one of the other points to note there, Michael, is that you should get a copy of the plan of subdivision from the Titles Office. You should get the actual copy that is, that is registered because I have an issue at the moment with a particular client who’s relying upon a plan of subdivision that was attached to a contract of sale. Now that plan was never registered. There were amendments made to that plan and now he’s saying, “Well, I thought I own that piece.” They don’t own that piece. Yeah. You’ve always got to go and get the one that’s actually stamped and dated from the Titles Office so you know which one is the relevant one.

Michael Darby:

Yeah. Absolutely. Look, especially in the large masterplan estates that we look after, the project can go for five years. The plans of subdivision in the early contracts aren’t registered ones, they’re draft ones and they’re staged plans of subdivision and they’re changing all the time over the five years, so it’s very important to get the latest version. It’s a quick process to download it from the Titles Office website or elsewhere. So maybe just to touch on, again, I’ll probably recap why they’re so important. It triggers the owners corporation, I guess, is the key one, isn’t it? When you lodge a plan of subdivision that’s got common property, that creates the legal entity on that day.

Andrew Whitelaw:

Correct, and creates the common property which then gives that obligation to the owners corporation and its functions, and obligations under the Owners Corporation Act have to then have to repair and maintain it, insure it and also protect it. There’s often a lot of cases, as you probably appreciate, where lot owners are seeking to build or escape onto a part of the common property for their own use. The OC needs to protect that right.

Michael Darby:

Yeah. It triggers the first inaugural general meeting for that plan of subdivision as well. I think within a certain period they call the inaugural general meeting so that they can set the owners corporation up and ready for the settlement of owners. We obviously have a consulting role leading up to probably two or three years, leading up to a project, there’s a lot of consulting about the structure and set up of the owners corporation and that inaugural general meeting after the plan is registered is a key trigger point for lots of different events to occur.

Andrew Whitelaw:

Absolutely. For sure.

Michael Darby:

So, it creates the owners corporation, it creates the common property, like you said. It’s important because it shows the lot boundaries which is critical, it shows you the location of common property, council reserves and easements, which we talked about, and the lot table. Like we touched on as well, when there’s a dispute resolution between owners or between the owners corporation. I’m sure you’ve got endless examples of leaks and the passage of water between apartments and others that we could mull on for hours, no doubt.

Andrew Whitelaw:

Right. That’s right. Well, that’s the classic one, is the old water leak that’s coming from the balcony somewhere or is it coming from property or from a private property? The boundaries that are set out in that plan really set the rights and obligations between those parties.

 

Michael Darby:

Okay. We’ve got a few examples ready that we’ll move through that cover up on a number of the areas that we’ve spoken about. This should show… A good visual aspect helps explain a lot of the boundaries and areas that we talked about. This first one, Andrew, is showing balconies.

Andrew Whitelaw:

Yeah. This is a good example of the different types of representations on different plans of subdivision as to how a balcony is actually shown and delineated between lots and other lots and common property. When you look at the one in the middle, we’ll start there, so it’s showing that there’s a thick continuous line between the two parts of Lot 30. The PT 30 shows that it’s a part of lot 30 in title, but assuming that the plan of subdivision says that the boundaries are shown by thick continuous lines which define boundaries, then that thick continuous line will more than likely be common property if it’s an interior face. So while it sits within the individual title or between two titles, it’s actually common property and it’s the owners corporation’s responsibility to repair and maintain which makes it difficult.

But the one on the left and comparison has a thin broken line between those balconies on those lots. Obviously, that plan’s got multiple lots within the sections so it’s showing that it’s going up in height. But whatever is constructed on those thin dotted lines, which is your typical windows, sliding doors and all those sorts of things, are not common property. They’re actually private property within the individual title. Those two certainly are in stark contrast to each other in relation to the boundary and what is common property and what is not.

The one on the right is just another example of the middle one. Rather than having the words in there just saying that it’s part of lot nine, i’s connecting those two parcels of land by the vinculum. The vinculum is just an indictor to show that those two parcels belong together in title.

Michael Darby:

Yeah. Just quickly on the PT, that’s often been used for car parks, isn’t it? It’s connecting a car park down in the lower level of building with the lot itself, just showing that you have both titles in there.

Andrew Whitelaw:

Yeah. Yeah. Just multiple parts of property are all linked onto the one title 

Michael Darby:

Yeah. Another balcony example.

Andrew Whitelaw:

Yeah. The one on the left, again, is just another example which is showing that part seven or lot seven has multiple parts, and this one’s indicating that it is a balcony. The words BALC are not really necessary, but it’s showing that it is. That might be a distinction between something that might be on the ground floor which shows there might be a terrace rather than a balcony.

The one in the middle has dotted lines where the balcony is and that indicates that that’s the projection of the title, so if you were standing on that balcony at that time then you own, as the lot owner, those areas within those dotted lines.

The picture on the right is obviously showing the sliding door and the windows, and that probably relates to that middle title. Well, in fact, it probably relates to both of those titles. That area, because it’s shown as a thick continuous line on both of those plans, is actually common property and the responsibility of the OC to repair and maintain even though it’s sitting within.

Michael Darby:

Yeah. Yeah. This is an example where it becomes really important, isn’t it, because it determines who’s responsible for that actual door, whether it’s the owners corporation or the lot owner based on their Bible, isn’t it?

Andrew Whitelaw:

Absolutely. Look, from the everyday repair and maintenance perspective, owners corporation are not going around cleaning windows and doing all those sorts of things but they’ve certainly got an obligation to repair and maintain them should go something go wrong, for sure.

 

Michael Darby:

Yeah. Yeah. This is an interior face.

Andrew Whitelaw:

Yeah. The photo shows a planter box. When you look at the title next to it, the planter box is not drawn on the balcony at all but it’s fair to assume, or you can see from the plan, that it sits within that thick continuous line so that planter box is wholly owned by that individual title owner. Planter box itself is not common property, it’s private property.

Michael Darby:

This is an extract of the front page which shows a few definitions of where the boundaries are. It talks about hatchings, as well.

Andrew Whitelaw:

Yeah. Yeah. You’ve got everything there. You’ve got your median walls, you’ve got your interior face and your exterior walls. It does say that hatching within the parcel indicates the structure of the relevant wall, floor, ceiling, door and roof is contained within that parcel. There’s multiple ways that a land surveyor can show ownership on a plan, and hatching is one of them.

 

Michael Darby:

Yeah. I’ll do a little bit searching around here. This is pretty important. It’s the front page of a plan of subdivision. On the top right is the plan number. I’ll just touch on a couple of important areas that we focus on. Again, in a large project whether it’s a staged subdivision or not this is a critical section as well that shows whether the plan is a staged subdivision. Again, it talks about boundaries. Do you want to talk to a few areas from this example?

Andrew Whitelaw:

Yeah. Yeah, absolutely. Depth limitations, it says it doesn’t apply. Some plans obviously have depth limitations which might say that the depth limitation is two meters or five meters below ground or something like that, so that could affect, well, it does affect who knows what below the ground level, whether it’s property or private property.

Then obviously it says that boundaries… On the left-hand side there, boundaries shown by thick continuous lines are defined by buildings, which is what we just talked about. Occasionally the boundary’s defined by buildings. Median remarked M, interior face of the lot. Then the exterior face are the boundaries. Again, you’ve got the mixed bag here. It’s when you get into the detail on the next pages that you realize then what’s going on.

Underneath, that green section there, it refers to all the internal ducts and sewage pipes and all those sorts of things. It says that if they’re not shown on the plan, they’re still part of common property number one. Again, that’s important because obviously they’re services that run through properties. They will be common property even though they’re not shown. Further down you’ve got your easements, which refers to a separate sheet. You’ve obviously got a date on this particular plan, so you know that it’s that’s been registered.

Michael Darby:

And like we talked about earlier, that’s a critical component, to make sure you’re looking at the registered plan.

 

Andrew Whitelaw:

Absolutely.

Michael Darby:

Yeah. This is just an extract from a plan of subdivision that has a Creation of Restriction. Where we see those, not sure how much you might come across them, Andrew, in large projects particularly that develop more place, creation of restriction often around fencing or compliance with design guidelines and requirements to submit plans with the design review panel.

Just another layer of assurance that it’s very clear to owners what their expectations are in buying into the project and having a lot in this plan of subdivision.

 

Andrew Whitelaw:

Yeah, look, it’s good to see those sorts of things in the plan of subdivision itself because, obviously, they’re attached to the title. Obviously where some properties get into a little bit difficulty where they have Design Review Committees and things like that, and they try and do it by way of Model Rules, or Special Rules I should say. Yeah, again, those have to be read in conjunction with the plan so that everyone knows what they can and can’t do.

Michael Darby:

Enforcements of Creation of Restrictions is different to rules, isn’t it, no doubt.

Andrew Whitelaw:

Yeah, absolutely. Absolutely. You approach them from a completely different perspective.

 

 Michael Darby:

And this is an example of the easement page. I mean, I know this plan has got, I think, two or three pages of easements. Do you want to be game to provide an overview of perhaps easements and their purpose without getting us too lost, Andrew?

Andrew Whitelaw:

Sure. Well, the easements are very important to understand because it creates an obligation and a right. The person that has the benefit of the easement is able to use that easement. For example, it might be something simple in relation to passage of water or passage of light, but it might also be the right to traverse it if it’s a carriageway which gives people the right to then walk across it, drive across it and do all those sorts of things. So, even though you might have a private parcel of land, if it has an easement attaching to it then you might not have entirely exclusive position of that land because others can go across it and use it. So, it creates rights and creates benefits and obligations.

Michael Darby:

Yeah. Look, and there’s an example in one of our projects where they’ve done that, large masterplan project down on the Surf Coast and when you drive into the estate, it’s a private roadway, it’s common property with a plan of subdivision. They’ve created a second, a newer project. It’s a separate plan of subdivision, but the only way to get in is through that main gate, so they’ve created an easement along that main road to the entrance of that estate just to guarantee that the vehicles have got passage into their adjoining estate otherwise they couldn’t get through.

Andrew Whitelaw:

They’d be landlocked. Yeah. One of the things to remember about easements is the person that has the obligation of the easements, in other words the easement attached to their title, they’re the ones that must ensure that the easement is able to be fulfilled. In that circumstance where the easement is a right to another owners corporation, the person that has the easement must make sure that it’s maintained for the other person who has the benefit of it and utilize it.

 

Michael Darby:

Yeah. But there’s no maintenance obligations attached to that beneficiary of an easement, I guess?

Andrew Whitelaw:

Yeah. Yeah. The beneficiary of the easement doesn’t have to do anything. The person that has the obligation of the easement has to maintain it.

Michael Darby:

Yeah. Indeed. This one, just pulling another example of hatching.

Andrew Whitelaw:

Yeah. Yeah. The hatching of the lot according to the plan says that that forms part of the parcel, so while these thick continuous lines there, the outside thick continuous lines are part of the lot, so that structure is the lot owner’s to repair and maintain. The middle section, well, you can see there on the last dot point it says median all other boundaries, so between lot four and five is a median boundary. They have joint ownership and joint liabilities to maintain it.

Michael Darby:

Yeah. This is the search report or the lot table. It’s another really critical document. When you purchase the plan of subdivision from the Titles Office, you get the plan of subdivision and as a separate document now you get the lot table or the Search Report.

There’s a lot in here, Andrew, as well. It obviously shows the plan number, it’s listing all the lots and this is the staged plan in the circumstance. It talks about whether it’s limited or unlimited, which we know is important. The official address for services of notices, so that’s, look, it’s still required and to, I guess, what, formally give notice to the owners corporation. That’s the address you post it to, and it’s then to be served, I guess, once it goes to the address, isn’t it?

 

 

Andrew Whitelaw:

Absolutely. Yeah. The green circle that you’ve got there, again each of the owners corporations might be within one plan or have a different page in their own plan so you need to make sure that you’re actually looking at the right owners corporation entirely and also the name of the owners corporation. They’re often different. So, we have an SP plan compared to a PS plan. You might not have owners corporation one, it might just be owners corporation plan number SP or something like that. That’s the legal entity that you use in relation to correspondence, communications and, if needs be, done on legal procedure.

Michael Darby:

Like you said earlier, when you’re managing a client they’re part of a plan of subdivision that has 23 owners corporations, there’s 23 lot tables and there’s different managers and different lot ratios and lot liability so, like I said, just reinforce that it’s important to get the right one because there could be a lot that apply. And you could be a member of more than one of those, of course, where it’s an unlimited and limited as well.

Andrew Whitelaw:

Yeah. Well, you’re automatically a member of number one whether you’re part of another owners corporation at the same time.

Michael Darby:

Yeah. Another one is the rules it shows here, if there are rules registered. If the rules aren’t showing here then they’re not registered and they don’t apply essentially.

 

Andrew Whitelaw:

That’s right. You’re back to the Model Rules.

Michael Darby:

Yeah. It has the additional owners corporation information. Often that can be, in my experience, we don’t need to refer to them much. It shows the purpose, I think it does, of the owners corporations, one of those documents.

Andrew Whitelaw:

Yeah, it’s more critical when you’re talking about the limited owners corporations. It’s a document that should set out, not all of them do or don’t do it correctly, it’s a document that should set out what is the purpose of that use for that limited owners corporation, so any document you get your hand on if there’s issues and dispute.

Michael Darby:

Is there an example that you’re aware of just along those lines? Because that’s a relatively new sort of power, I guess, that when you’re lodging the claim it can give a specific purpose to a limited owners corporation or, indeed, it can give power to another owners corporation, can’t it? Have you seen that get used before?

Andrew Whitelaw:

Yeah, I have. I don’t think typically have to look at it too often, but sometimes it’s very limited in its use. For example, owners corporation two might just be a pool or might just be a gymnasium or a limited piece of land, therefore the specific use really comes back to the key element on that document. Big broader owners corporations, then generally speaking it has more information in it that might be useful depending on what you’re looking at it for.

Michael Darby:

Yeah. Again, it’s all critical information but this piece is even more critical where it has the lot entitlement and liability table. Obviously, we know that lot liability talks about the apportionment of contribution an owner has to make to the fees. Lot of entitlement shows here, as well. Did you want to talk to that, Andrew?

Andrew Whitelaw:

Yeah. Well, that’s right. The liability side of it is how much is your portion of the fees as they’re set on an annual basis as part of the requirements owners corporation of the act, and the entitlement is your voting right. That’s your portion of the votes if you were voting in accordance with a meeting. Oh, I’m sorry, if you’re not voting by way of show of hands and you’re doing by the way of polls or by way of entitlements then that’s your version as a lot owner as to what your rights are.

Michael Darby:

Yeah. And often in the large estates when running a special resolution, we’ll do it by a written ballot. It’s the only way to get that across the line. The voting is via entitlement in that situation, as well.

Andrew Whitelaw:

Absolutely.

Michael Darby:

I guess in the extreme situation where an OC is wound up, that’s the owner’s entitlement to the common property essentially, isn’t it? Yeah.

 

Andrew Whitelaw:

That’s right. Exactly. Yeah. And look, one of the things that’s popped up on our radar recently is there’s been a number of VIC Roads acquisitions because they’ve been growing through and acquiring land to do all sorts of bits and pieces as part of developments. If they’re buying or acquiring a land which might have a value, that’s how you divvy the value up back to those lot owners – this is their entitlement.

Michael Darby:

Yeah. And we’re going to planter boxes. Another example showing them inside the boundary, I believe, in this one.

 

 

Andrew Whitelaw:

Yeah. Well, that’s a good example where the plan doesn’t actually match what’s been constructed. There’s often a lot of confusion in relation to those things. That doesn’t necessarily mean that the builder hasn’t built in accordance to the construction plans, but he may not have built in accordance with the plan of subdivision. The two don’t always marry. There you’ve got your balcony is part of the lot because you’ve got a dotted line, it’s not a thick continuous line. If those planter boxes are within the thick continuous line around the outside then they’re privately owned.

 

 

 

 

 

Michael Darby:

Yeah. And a roof boundary. We’ve got a couple of roof boundary examples, as well.

 

 

Andrew Whitelaw:

Yeah. Typically, most plans say that it’s an internal face. That would mean that you’re sitting in your lounge room or your bedroom or wherever you might be, then you own up to and including the paint that’s on the ceiling. Everything else forms the structure of the roof, is going to be part of the common property. That’s the example on your left. The right that says the median of the ceiling, so half that ceiling or half of whatever is constructed on that thick continuous line is internal and owned by the private lot owner, then the exterior part of the roof is owned by the owners corporation. While that’s not overly dramatic, if you do have issues of penetration going through the roof, for example, whether antennas or air conditioning units or all those sorts of things, it can create issues as to who’s responsible for the repair and maintenance of those stuff.

Michael Darby:

I’ve always thought it could be really valuable to get the Association of Surveyors and owners corporation manager in the same room, couldn’t it? We can learn a lot from each other, I think.

Andrew Whitelaw:

Oh, totally. Yeah. Look, I speak to surveyors as well and say, “What do you think your plan means?” And they say X and I say, “Well, that’s not actually how the law works, you’ve created this issue now with that boundary by putting those words on it or putting that notation on.”

Yeah, they really need to understand the practical realities of what some of these plans say.

 

 

 

Michael Darby:

Yeah. I’m sure we can learn a bit from each other.

This is just an example of, again, a staged plan of subdivision. You can see the “S lots” there that form part of that. They’re common with our communities, nearly all of them are staged plan of subdivision, so we’re dealing a lot with them. It provides a lot of flexibility under Section 33 of the Subdivision Act for the developer or the applicant, and that means they can progressively subdivide their large parcel of land. It might be 2000 lots in that plan of subdivision, and clearly they can’t register all those lots. It can go for five or 10 years, that whole project, so there’s flexibility under Section 33 to have a staged plan of subdivision. And they can amend that plan, create new lots on common property without going and getting approval from the owners corporation. They have got that flexibility to do that as they go.

It’s nearly unlimited essentially, Andrew, isn’t it?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Andrew Whitelaw:

Absolutely. Yeah. As they come online and create their own separate owners corporations, then they’ll form part of the larger, well, part of the larger owners corporation anyway as part of unlimited owners corporation. But it can dramatically affect how owners corporation one might operate because you’ve got now individual titles that sit within those extra sections.

 

Michael Darby:

Yeah, indeed. I think the only limitation is they can’t go back to a stage that they just registered and change that. That then would trigger some approval. If they’ve got extreme flexibility moving but if they want to, they create a stage and then want to go back and amend common property in that stage, I think they then get caught up in a bit more…

Andrew Whitelaw:

Well, you can’t do it, you need to pass to special, sorry, unanimous resolution to amend a plan of subdivision once it’s registered.

Michael Darby:

Yeah. Do we entertain that a little bit more? Amending plans of subdivision is very challenging. Putting the staged subdivisions aside that we just talked about, in a normal plan if you need to make an amendment, like you said, Andrew, it’s unanimous resolution but we both know there’s better options to go down essentially, isn’t there? Or more logical ones.

Andrew Whitelaw:

Well, that’s right. You’re talking about leases or licenses being added into for a lot owner to have rights over a parcel of common property. So, that’s generally speaking the easier road because you only need a special resolution to enter into to a lease or license. The other thing is in a lease or a license, you can put in various clauses, indemnities, obligations to protect the owners corporation. They have a lifeline in the context of time, you can limit how long they exist for. And, obviously, special resolutions are easier to gain via the interim special resolution revisions at 50% rather, and plus 28 days or 29 days than having to go and get a unanimous resolution.

Michael Darby:

The other thing is an owner can make the application themselves and try and seek for VCAT to give an audit is another way to get them changed, isn’t it?

Andrew Whitelaw:

Yeah, it is. Under Section 34. It’s complicated. There’s a number of VCAT cases on those issues. There’s two types, which I won’t bore you with at the moment, but you need to effectively satisfy the tribunal that there’s a socioeconomic benefit for change to be made if it’s a lot owner that’s looking to gain or change lot liability, lot entitlements for a parcel of the common property or their own individual title. The tribunal needs to be satisfied that everyone gains the benefit, or the benefit is for the betterment of all or some not one, in order to get that across the line. It’s rather complicated and a bit tricky, and can be very expensive.

Michael Darby:

Yeah. I know there’s two options. Is it 33 or 34 in the Subdivision Act?

Andrew Whitelaw:

34, yeah.

Michael Darby:

Yeah. And you can go under either one of those, but I understand there’s a Supreme Court case… I think it was in the middle of this year, which directs you now to comply with both of those sections.

Andrew Whitelaw:

Yeah, that’s right. The criteria for the, I can’t remember, it was the one the 34s is now effectively being seen as applying to both. That’s that socioeconomic benefit sort of principles that need to be taken into account.

 

Michael Darby:

Which essentially just makes it a level  harder again, doesn’t it, really?

Andrew Whitelaw:

Yeah, that’s right. That’s right. The question is why is the change being requested by the owner. Most of those sorts of things revolve around a lot owner saying that their liability is too high rather than too low, and they want the table changed. But there’s various decisions by the tribunal across those issues and it’s not always an easy win.

Michael Darby:

Yeah. Indeed. This is an example of a thick broken lines. I think we probably might have touched on that, how the boundary projects out from a building.

 

 

Andrew Whitelaw:

Yeah, that just defines where the boundary lies in title even though it’s in airspace and, again, goes to the issue of the responsibility and who must repair and maintain.

Michael Darby:

So, let me throw this one at you. There’s a large gumtree growing in the middle there that’s growing four stories high and has got a big branch leaning out over into that balcony space. When it starts breaching that, the owners are required to, well, if they choose to, I guess, trim that otherwise the…If it’s growing on common property, the owners corporation would be…

Andrew Whitelaw:

Yeah. Well, if it’s on common property then the owners corporation owns the tree and they must look after it, but if a branch happened to be sticking across and going into an airspace that’s part of a balcony then that lot owner can trim that tree, but it comes with a catch. You can’t carry out works or do things to trees if that’s going to cause the tree to die or severely damage because then you might be up for liability in relation to that.

Michael Darby:

We can have a number of frivolous cases around parking offense and trees, but we won’t go there on this occasion. My favorite, the vinculum.

 

Andrew Whitelaw:

Yeah. Again, it’s just another part of titles andwWhat it shows there on the one at the top right square, shows that it’s joining those two parcels of land. We saw on one of the other examples that you put up where it showed it was part of a lot and had PT or had a number in it, or another indication. This shows that those two parcels of land are joined together. Part of one’s part of 52 and the other one’s part of 51, and because there’s a thick continuous line where the vinculum sits, if it’s an internal face boundary then that thick continuous line will be common property. Compare that to the bottom one where there’s still a vinculum there, but it’s got a dotted line. What that’s indicating is that whatever’s on that dotted line, the windows and sliding doors and those sorts of things, is within the title and is private property. On that plan you have two sets of balconies, or four sets of balconies, and they have a very, very different in title.

Michael Darby:

Yeah. The dotted line, like you said, normally represents a structure, don’t they?

Andrew Whitelaw:

Yep. Yep. It’s not a structure that’s defined by a building in title.

Michael Darby:

Yeah. Okay, that’s the last example that we had. I think providing a visual example makes it a little bit easier, doesn’t it.

Andrew Whitelaw:

Oh, definitely.

 

Michael Darby:

Okay, so that was a few examples that you find within a plan of subdivision. There’s many more, but I think it gives you a good example visually of the boundaries of the vinculum of easements on the key pages within a plan of subdivision without getting too complex. I think that provides a good overview. So in wrapping up, Andrew, I think like we said the plan of subdivision is the key document and the Bible for you and I to always refer to, and at the very least, especially for committee members just to have an awareness of it, and they’re not sure to check with their manager, and indeed ourselves we reach out for advice. If it’s getting quite complex and there’s a big dispute that involves certain areas, and we’ll get more legal advice in that situation as well. So, it’s a key document to be aware of, isn’t it?

Andrew Whitelaw:

Oh, absolutely. Yeah. It’s the first document you need to go to so you understand where the boundaries are and responsibilities lie. I often say managers, if they have the time and opportunity with no COVID restrictions, they should walk the property plan in hand to see whether the boundaries actually match with the plan says.

Michael Darby:

It brings it all into context when you’re there visually, you’ve got the plan and it’s great. We take our team members out on site with the plan. It’s a great way to educate them. You pick it up so much more quickly when you can see it in real life and look at the plan, as well. You learn a lot more.

Andrew Whitelaw:

Absolutely.

Michael Darby:

Yeah. All right, appreciate your time, Andrew. Thanks everybody for joining us. I hope you’ve picked up some more information and know a lot more about plans of subdivision. Thank you.

Andrew Whitelaw:

Thanks, Michael.

 

 

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