This document attempts to cover MOST subdivision eventualities. The process therefore appears onerous. If you so desire, we can handle the whole matter on your behalf.
Firstly, have a look at these links relating to Survey Fees & Terms of Contract. When you make your first contact, we will make initial enquires and what searches we can over the net without cost and give general advice, free of charge. Only after you have requested us to proceed do we then seek to recover our time and costs.
We will look at the subdivision process in general and zero in on various aspects for further clarification. Note that simple single lot subdivisions may not generate some or all of the issues raised below; however some will! What follows therefore is general in nature; in some cases an issue arises that needs special attention and clarification. The text in “quotation” marks & italics is taken from our standard documents forwarded to clients at the time of lodging an application with Council & to solicitors requesting the Schedule of Easements. It is inserted to highlight various aspects of the process. Those subdivisions not requiring Council Approval will be dealt with later in this brief.
A subdivision requiring Council Approval tracks the following general path:
Search of Information: The surveyor takes responsibility for utilising the most up to date survey information. Therefore, whilst an owner with a copy of his title or survey information is of assistance in this process, the surveyor must still undertake his own Search of records. This generates a State Government cost carried by the surveyor and passed onto the client. Council and other records are also sought.
Discussions & Advice: It is essential to determine from the client ‘what are they trying to achieve’. This seems simple but it is important to know the subdivision envisaged is to: generate cash? reduce maintenance? better amenity? etc. Discussions are held with Council officers in an attempt to be fore warned of any issues that may arise in the process. This information is then passed onto the client and a determination made whether to proceed with the application or not. Note at this point we are still ‘best guessing’; we will only really know the full issues once we lodge an official application.
At this time an assessment can be made (but not always; sometimes issues arise later within the process) whether there is a need to involve other consultants to deal with any specific issues. For example, due to a historical problem, any application within the City of Glenorchy must be accompanied by a Geo-technical Report. Any application proposing effluent disposal by means of any system other than a piped sewer, normally requires an independent effluent disposal report. We recommend that an application is lodged with Council with associated reports only relating to those topics that are clearly essential to allow assessment. Hence the comment below:
“We advise that even though the proposal complies with Council’s planning for the area, approval is not automatic. Recent experience would indicate that Council’s might also need to be determining the effect on the amenity of the area of the development.
Such matters as overshadowing, useability of private open space, solar access, driveway location, vehicle movements and height and scale of the potential development may need to be considered. (Council could also ask for details of the extent and type of vegetation on proposed lots, details and a report on the landscape and scenic issues of the site, details of waterways on and within the immediate area, including water holes and dams, details of contours on the entire site, a longitudinal section and cross sections of any proposed road, compliance with fire requirements, method of creek or river crossings and the like). Having regards to these matters, we advise that we may receive a request from Council to provide additional information relating. We feel at this time that it is more cost effective to lodge the application without providing such additional information and await feedback from Council. Those areas we feel do need addressing now are detailed. If you wish to address the other matters at this time, would you please advise.”
“You need to be aware that Council does have the power to request a geo-technical assessment to ascertain whether geo-technical matters will affect the development. It is our experience that Council is unlikely to request such a report at this time, however, if you wish the likelihood of such a request to be clarified, you should provide this office with further instructions. If a report is required, you need to be aware that the results of that report may affect the final design and viability of the application.”
“As the application involves the assessment of the land for septic tank suitability, contact should be made at this time with Council’s Senior Environmental Health Surveyor to arrange a mutually acceptable time to meet on site for septic tank assessment. Would you please organise this matter as soon as possible or authorise the undersigned to arrange the assessment on your behalf. It should be noted that Telstra now holds individuals and companies financially liable for negligent and malicious damage caused to Australia’s network of underground cables. Telstra’s “Look Out Below. Dial 1100 Before You Dig” request applies.”
Proposal Plan: The preparation of a ‘Subdivision Proposal Plan’. Note that the preparation of this document may be achieved from: utilizing existing title, council, lands department or office records. However, more often than not it requires a degree of field work, a contour & detail survey, to determine (sometimes accuracy is necessary) locations of house, fences, services, engineering matters, contours and levels. This information is integrated with the above-mentioned title and other records. Note that this field work does not constitute the final title survey, although it may be of assistance at that later stage. Likewise, if a Detail Survey is required then it is often of substantial use later in the process. As the method of gathering of field data is specific to it’s use, the Proposal Plan will also carry a disclaimer:
“The contours shown on this plan are taken from (the source is inserted here) and are suitable only for the purposes of this application. No reliance should be placed upon such contours other than for the purpose of this application for subdivisional approval. This plan may not be copied unless this note is included. Measurements and areas are subject to survey.”
“We request that you give consideration at this time to any additional rights or easement that you may think need to be created at the time of the final survey to allow full enjoyment of the allotments created. Such rights may relate to access, pipelines, Hydro lines, Telstra lines or drainage patterns or pipes.”
“As the application involves re-development of an existing serviced site, we advise that existing services running through the new lots to be created may need to be removed or easements created to cover same. Council will advise in relation to this matter.”
Lodgment of the Proposal Plan: The lodgment of the proposal Plan and supporting documents with Council then follows. Most councils require assessment & advertising fees to accompany the application at this time, together with copies of title documents, any associated reports and a Development Application (DA). The DA includes a declaration by the surveyor that the owners of the land are aware of the application and agree with same, together with an authority to allow the general public to ‘look’ at the application documents within council. It is assumed by us that you agree to the above and have viewed our links relating to Survey Fees & our Terms of Contract.
Processing of Application: Council will advertise the application in the ‘local’ press and ask for submissions from any interested parties. The relevant State Act allows a processing time of 6 weeks within Council, within which time they can ask for additional information. The ‘clock’ stops until such information is supplied. We will contact you if such a request is made. Council officers then make a report to council (sometimes, if the application is minor and there are no representations, the officers have delegated power to deal with the matter without going to full council).
Permit(or Refusal): Following Council assessment a Permit or Refusal is issued. This permit has a life span of 2 years (may be extended at Council discretion) or must be “Substantially Commenced” within this time. You do not have to proceed with any permit. If for some reason you have two (or more) valid permits for the same parcel, you can choose which permit to exercise but once commenced on one, the others become invalid. Within the next 14 days Rights of Appeal apply as follows: note you have the same Appeal Rights if a Refusal is given or if you have concerns with any Permit Condition. See the note below:
“Under the current legislation governing subdivisions, you and others have the opportunity to appeal against Council’s decision that may be a result of any submission. Council will request submissions by interested parties at the time of submission (by advertising), and after their decision is made will indicate to you and the public (if submissions were made) the following:
Your attention is directed to your rights of appeal under Sections 61 & 62 of the Land Use Planning and Approvals Act 1993 (as amended), which relates to appeals. These provisions should be consulted directly, but the following provides a guide as to their contents.
Planning Appeals shall be instituted by lodging of a notice of appeal with a Clerk of the Resource Management and Planning Appeal Tribunal.
Planning Appeals shall be instituted within the 14 days of date the corporation who served the notice of the decision on the applicant.”
Permit Conditions: This is a critical point in the subdivision process.
All permit conditions must be completed before council will allow new titles to issue.
In some circumstances it is possible to lodge a Bond & Guarantee with Council to allow sealing of the survey plan. This process still requires the completion and approval of any engineering design involved, any additional reports required, all legal documents and the completion of the Final Field Survey, surveyors field notes and relating fees. Permit contributions, Headworks Charges, fees & charges must be attended to (in fact the only matters covered by the bond are construction matters). Bonds may be lodged part way through the construction process. Bond amounts are calculated on the outstanding construction cost plus a loading (usually around 25%). See notes below re council charges; note all these matters may not be applicable to your development:
“Please be aware that the term ‘Council Fees’ within this document refers to those fees charged by Council to assess subdivision proposals. Other charges may be applicable resulting from the assessment of the proposal that form part of the subsequent permit. The developer\instructor is always responsible for all fees and charges generated by this development applied by Council and any other body.
We wish to draw to your attention at this time to the requirements relating to the provision of Public Open Space on proposal plans. Council has the power to refuse an application if no public open space is shown or if public open space as shown on a proposal plan is deemed to be inappropriate. They can also request a contribution in cash reflecting 5% of the value of the new lots created. Accordingly, you should contact the undersigned to discuss your options in relation to the provision of public open space at this time.
Some Council’s do charge a Final Sealing Fee to seal the final survey diagram. Unfortunately this fee is applicable in this Municipality and a cheque made out to Council amounting to $XXX.00 is required.
You will note that this development does not re-develop all of the lands in the titles involved. It is a requirement of the Land Titles Office that this office produce “Balance” plans relating to those portions of the titles not included in the development.
Land Titles Office fees applicable to developments are calculated on the basis of $505.00 for a survey plan, plus $50.50 for every Lot, road lot, open space or other separately described parcel. Accordingly, would you please forward a cheque made out to the Lands Titles Office to cover this fee of $XXX.XX.”
At the time of the issue of the Permit, we meet with the client and ‘go through’ all matters requiring attention before Council will Seal the Final Plan and allow the issue of new titles. Note the Lands Titles Office will only deal with a “Sealed Plan”. We then enter the field and undertake the Final Field Survey, undertake calculations, place survey marks and undertake all other survey matters required under the relevant Acts.
On completion of all Permit Conditions (or lodging of a bond if allowed) the surveyor gathers all outstanding documents ready for lodging both at the Lands Titles Office and the Council. This part of the process is tortuous as many matters must be dealt with, including but not restricted to the Schedule of Easements, the obtaining of a Production Slip, mortgage releases etc. The Schedule of Easements request made to the solicitor is usually in the following format and can include (but not always) matters as follows:
“We enclose a preliminary copy of our Plan of Survey (Final Plan) and request your perusal and comments in relation to same. Please note our Plan of Survey should not be acted upon until acceptance by the Land Titles Office and new titles issued. If our clients Architect, Engineer or similar consultant is to utilise a preliminary copy for design purposes they should be made aware of the above mentioned requirement for acceptance, as last minute amendments quite often occur.
We enclose a copy of Council’s Permit (Approval Letter) relating to this matter, together with a copy of our Plan of Subdivision (Proposal Plan) prepared to achieve the enclosed approval. We draw your attention to any Council requirements that need to be included in the Schedule of Easements and any other matters of a legal nature that, in your opinion, require your input and be of benefit to our mutual client. We consider it appropriate that the Schedule of Easements enclose a clause advising that the vendor be not required to fence.
Drainage Easements shown on our survey plan should be covered by the blanket clause within the Schedule, but if this is not the case, would you please take the appropriate action.
Wayleave Easements are to be created as indicated.
Cable Easements are to be created as indicated.
Pipeline Easements are to be created as indicated.
Existing rights shown on the Title documents are to be carried forward in total.
We refer you to mutual rights shown on our survey plan and confirm that the relevant allotments need to be subject to and together with such rights.
Would you please consult with our mutual client regarding any additional covenants or rights that they may require created within our survey and the Schedule of Easements and advise of any amendments to the survey diagram relating.
Please feel free to add notations to a copy of our survey diagram and return same to this office for amendment to the original so that such document reflects your Schedule of Easements.
You will note that Council require transfers to be endorsed and lodged with them in relation to all roads and public open space areas and that such transfers need to be produced prior to sealing of our final survey plan.
Service Easements are to be created as indicated.
You will note that our application is adhering portions together by means of Adhesion Order. At the same time of preparing the necessary Schedule of Easements, would you please prepare the relating Adhesion Order and return same to this office with the Schedule.
You will note that easements are to be amended as created by a previous sealed plan. It will be necessary to prepare a Petition to Amend relating to these easements and it would be appreciated if you could commence preparation of same.
You will note that a Parking Easement is envisaged for one or more of the lots shown on our plan. Your advice in relation to a suitable endorsement to be added to my plan is requested. It is appreciated that clarification may be necessary from the Lands Titles Office in relation to this matter.
When returning the Schedule of Easements, would you please enclose Production Slips relating to lodgment of all titles involved with the development at the Land Titles Office.
As the land in question is of General Law origin, we request you take into consideration the possibility of easements that may not be recorded in the original servient land, but were recorded in the deeds to the dominant land. We refer you to a recent case Parramore v. Duggan (1996) 70 ALJR 1.
We draw to your attention that easements are being created in favour of the balance lands. As the blanket clause within the Schedule does not cover parcels not shown as lots on our survey plan, it will be necessary for you to specifically refer to these easements within the main body of the Schedule.
You will note that a condition of Councils Approval is to enter into an agreement under Part 5 of the Land Use Planning & Approvals Act 1993. Registration of the agreement may take up to 2 months to finalise. Would you please prepare the necessary documentation to accommodate Council’s requirements as defined by Conditions of Approval.
Eaves Easements are to be created as indicated. Our previous experience with the interpretation of a eaves easement is as follows: "Easement of Eaves" means the right of the owners and occupiers for the time being of the dominant tenement to have eaves projecting or overhanging that portion of lot 'x' marked 'w''x''y''z' on the plan, and includes the right to enter in and upon the land for the purposes of repairing and maintaining such eaves at all times with or without workmen and making good any damage thereto occasioned by such entry in use.
Building Envelopes are to be created as indicated by the dashed lines on our plan.”
Costs: This question is the most difficult to answer, especially before a Permit is obtained and is still somewhat unknown before the Final Survey is commenced. When one considers the costs below, it is apparent that Survey Fees are but a small part of any subdivision cost, even a one lot subdivision.
Let us use the Council Development Application Fees (usually around $500) and the Lands Titles Office fees (usually around $600) as a base unit (say $1000).
A simple permit condition of a street x-over could easily cost 3x this unit.
A water, sewer or stormwater connection could cost 1x this unit, for the break into the main alone, let alone the cost per metre of pipe to the development site itself.
A Manhole could cost 3x this unit.
Public Open Space Contribution could cost 2x and quiet easily 8x this unit.
Engineering design costs could cost 1x and upwards of this unit.
Reports by other consultants could cost 2x and upwards.
Planning Appeals cost $50 to lodge and anywhere from 1x upwards for each consultant.
Council Headworks costs are normally in excess of 1x this unit per lot created.
Having said the above, once the extent of the application is known then a general ‘feeling’ of costs can be given (not including appeal costs).
Once a permit is granted, then costings can be estimated more accurately (subject to those comments within our notes on Survey Fees concerning Boundary Redefinition & Survey Methodology).
Plan Sealing & Titles: The completion of Permit Conditions and Survey Documentation allows the Survey Plan to proceed to Council & the Lands Titles Office for issue of new titles. Again the tortuous path here is ‘getting through’ the council and obtaining a Seal on the survey plan. All sections of Council must sign off on their own respective responsibilities, particularly planning, health & engineering. They will be especially interested in ensuring that all permit conditions have been satisfied. This is the last opportunity for Council to ensure compliance with Permit Conditions and the intent of the Permit.
Once the plan is sealed it proceeds to the Titles Office and provided all the legals and survey information is available new titles will issue, in the name that the original title was held.
Other Forms of Subdivision: there are other forms of subdivision that exist that are not as common. Strata Subdivision is the most common, followed by the resurrection of old Grant Lots. These are tricky areas requiring expert individual advice. Please contact relating.