Untitled document
Land Legislation Amendment Act 2009
No. 80 of 2009
table of provisions
Section Page
Part 1—Preliminary
1Purpose
2Commencement
Part 2—Transfer of Land Act 1958
3Definitions
4Registrar not required to keep seal
5Who may bring land under this Act?
6Repeal of section 13
7Lodgment of competing interest
8Notice of creation of ordinary folio or provisional folio for land in identified folio
9Notice of creation of folio or removal of warning
10Caveats
11Register of land
12Recordings in the Register
13Certificates of title
14Power not to destroy certain certificates of title
15Submission of documents to facilitate registration
16Construction of references
17Creation of folio of the Register and certificate of title
18Minors etc.
19Lost grant or certificate etc.
20Instruments entitled to priority according to date of lodgment
for registration21Repeal of section 35
22Entry of trusts in Register
23Grants and certificates endorsed "no survivorship"
24Agents for lodging electronic instruments must be eligible persons
25Destruction of certificate of title
26Registrar may require production of documents
27Power to Registrar to make a vesting order in cases of completed purchase
28Repeal of section 48
29Registration of personal representatives
30Sale under writ of fieri facias or decree of Supreme Court etc.
31Registrar to make necessary cancellations entries etc.
32Registrar to give effect to order vesting trust estate
33Registration of dispositions effected by operation of statute
34New section 59A inserted
59AAmendment of Register to reflect successor at law
35Application for order by person claiming title by possession
36Power to make vesting order
37Leases
38Foreclosure or surrender or mortgaged lease where lessee is bankrupt
39Surrender of lease
40Variation of registered mortgage
41Application of moneys obtained from actions by the mortgagor
42Discharge of mortgages and annuities
43Mortgage money payable to Treasurer if mortgagee absent from Victoria and mortgage discharged
44Notification of restrictive covenants
45Caveats temporarily forbidding dealings with land
46Removal of caveat on application to Registrar
47Except in certain cases caveat to lapse after thirty days notice given to caveator
48No entry to be made in Register affecting land in respect of which caveat in force
49Repeal of Division 2 of Part V
50Restriction on amendment of memorandum articles or rules affecting shares in service company
51Variation of service agreement
52Procedure if Registrar is satisfied that plan is suitable for registration
53Cancellation of plan of building subdivision and registration of the plan of subdivision
54Effect of registration of plan of subdivision
55Power of courts to consent or dispense
56General provision as to correction of errors etc.
57Registrar to require production of documents as evidence etc.
58Registrar to refuse registration if documents or evidence not supplied
59Powers of Registrar
60Fees to be paid under Act
61Entitlement to indemnity
62Service of notices
63Inspection of Register
64Receipt for and return of lodged documents
65Summoning Registrar to show cause
66Application to Court for order requiring production of document
67Compensation for lodging caveat without reasonable cause
68Regulations
69Approved forms
70New sections 129 and 130 inserted
129Creation of certificate of title—transitional provision
130Contracts referring to Table A—transitional provision
71Repeal of Seventh Schedule
72Repeal of Seventeenth and Eighteenth Schedules
Part 3—Surveying Act 2004
73Definitions
74Application for registration
75Qualifications for registration
76Renewal of registration
77New section 7A inserted
7AVariation of registration
78Section 11 substituted
11Duration of registration
79Restoration of name to the register
80The register
81Investigation of complaints
82Outcome of preliminary investigation
83New section 22A inserted
22ABoard may settle matter by agreement
84New section 30A inserted
30ANotification to licensed surveyor
85Notifications to complainant
86Notification
87Claims by persons as to registration
88Functions and powers of Surveyor-General
89Functions of the Board
90Membership of the Board
91Proceedings for offences
92Publication of certain information
93Regulations
Part 4—Geographic Place Names Act 1998
94Extension of term of appointment
Part 5—Subdivision Act 1988
95Definition of master plan
96The procedure for certification and registration of plans
97New section 22A inserted
22ARegistrar may refuse registration
98Effect of registration of plans
99Dealings in common property
100Alteration of subdivision
101Consolidation, subdivision or alteration
102Total consolidation or re-subdivision of land affected by owners corporation
103Staged subdivision
104New section 46A inserted
46AExpiry of registered plan
Part 6—Amendments to the Forests Act 1958
105Licences and permits with respect to forests
Part 7—Repeal of Amending Act
106Repeal of amending Act
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Endnotes
Land Legislation Amendment Act 2009
No. 80 of 2009
[Assented to 8 December 2009]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The purpose of this Act is to—
(a)amend the Transfer of Land Act 1958, the Subdivision Act 1988 and the Surveying Act 2004 as to the application of those Acts; and
(b)amend the Geographic Place Names Act 1998 as to the appointment of a Registrar of Geographic Names; and
(c)to make minor amendments to the Forests Act 1958.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 May 2010, it comes into operation on that day.
__________________
Part 2—Transfer of Land Act 1958
3Definitions
In section 4(1) of the Transfer of Land Act 1958—
(a)in the definition of conversion scheme omit "13,";
(b)for the definition of Court substitute—
"court means court of competent jurisdiction;";
(c)in the definition of instrument, after "Register" insert ", and a plan of subdivision, where the context permits";
(d)insert the following definition—
"Register means the Register of land kept under section 27;".
4Registrar not required to keep seal
Sections 6(2) and 6(3) of the Transfer of Land Act 1958 are repealed.
5Who may bring land under this Act?
In section 10(2)(b) of the Transfer of Land Act 1958 omit "13 or".
6Repeal of section 13
Section 13 of the Transfer of Land Act 1958 is repealed.
7Lodgment of competing interest
In sections 26B(1), 26B(3) and 26B(4) of the Transfer of Land Act 1958, for "the Court" substitute "a court".
8Notice of creation of ordinary folio or provisional folio for land in identified folio
(1)In section 26N(4)(b) of the Transfer of Land Act 1958 omit "of competent jurisdiction".
(2)In section 26N(5) of the Transfer of Land Act 1958, for "35 days" substitute "30 days".
(3)In section 26N(8) of the Transfer of Land Act 1958, for "the Court" (wherever occurring) substitute "the court".
(4)In section 26N(9) of the Transfer of Land Act 1958, for "the Court" substitute "a court".
9Notice of creation of folio or removal of warning
(1)In section 26Q(3)(b) of the Transfer of Land Act 1958, for "21 days" substitute "30 days".
(2)In 26Q(4) of the Transfer of Land Act 1958, for "14 days" substitute "30 days".
10Caveats
(1)In sections 26R(3)(b)(ii) and 26R(4) of the Transfer of Land Act 1958, for "the Court" substitute "a court".
(2)In section 26R(5) of the Transfer of Land Act 1958—
(a)for "The Court" substitute "The court";
(b)for "the Court" substitute "the court".
(3)In section 26R(6) of the Transfer of Land Act 1958—
(a)for paragraph (a), substitute—
"(a)given notice in writing to the Registrar that proceedings in a court to substantiate the claim of the caveator in relation to the land and the estate or interest therein in respect of which the application is made are on foot; or".
(b)in paragraph (b), for "the Court" substitute "a court".
(4)In section 26R(8) of the Transfer of Land Act 1958, for "the Court" substitute "the court".
11Register of land
For section 27(7)(b) of the Transfer of Land Act 1958 substitute—
"(b)except in the case of an identified folio, a description of—
(i)the proprietor; and
(ii)the nature of the interest held by the proprietor; and".
12Recordings in the Register
(1)After section 27A(1) of the Transfer of Land Act 1958 insert—
"(1A)A plan within the meaning of section 3 of the Subdivision Act 1988 that may be registered by the Registrar under section 22 of that Act is registered by—
(a)making recordings in the Register; or
(b)altering recordings in the Register—
to the extent necessary to give effect to the plan.".
(2)Section 27A(4) of the Transfer of Land Act 1958 is repealed.
(3)In section 27A(5) of the Transfer of Land Act 1958, for "must" substitute "may".
13Certificates of title
After section 27B(7A) of the Transfer of Land Act 1958 insert—
"(7B)The Registrar is not required to produce a certificate of title for a folio of the Register if—
(a)the person entitled to receive the certificate of title requests that no certificate of title be produced; and
(b)the Registrar is satisfied that the non-production of a certificate of title is appropriate in the circumstances.".
14Power not to destroy certain certificates of title
(1)In section 27BA(1) of the Transfer of Land Act 1958—
(a)after "deleted" insert "or amended";
(b)omit "to support any further transaction in relation to land".
(2)In section 27BA(2) of the Transfer of Land Act 1958—
(a)omit "to support any further transaction in relation to land";
(b)after "deleted" insert "or amended";
(c)for "relates" substitute "related".
15Submission of documents to facilitate registration
Section 27E(a)(i) of the Transfer of Land Act 1958 is repealed.
16Construction of references
In section 27F(3) of the Transfer of Land Act 1958—
(a)in paragraph (g) omit "or the duplicate of a registered instrument";
(b)in paragraph (j)(ii) omit "or duplicate instrument";
(c)in paragraph (o) omit "or on a duplicate instrument".
17Creation of folio of the Register and certificate of title
Sections 28(3) and 28(4) of the Transfer of Land Act 1958 are repealed.
18Minors etc.
(1)Insert the following heading to section 30 of the Transfer of Land Act 1958—
"Joint proprietors".
(2)Section 30(1) of the Transfer of Land Act 1958 is repealed.
19Lost grant or certificate etc.
In section 31(1) of the Transfer of Land Act 1958 omit ", but shall first give not less than fourteen days notice of his intention so to do in at least one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land described in the certificate of title".
20Instruments entitled to priority according to date of lodgment for registration
In section 34(2) of the Transfer of Land Act 1958, for "duplicate Crown grant certificate of title mortgage charge or lease (as the case may be)" substitute "certificate of title".
21Repeal of section 35
Section 35 of the Transfer of Land Act 1958 is repealed.
22Entry of trusts in Register
(1)In section 37 of the Transfer of Land Act 1958—
(a)omit "a duplicate or";
(b)omit "duplicate or" (where secondly and thirdly occurring).
(2)At the end of section 37 of the Transfer of Land Act 1958 insert—
"(2)Despite subsection (1), on and from the commencement of section 22 of the Land Legislation Amendment Act 2009, a trust may not be deposited with the Registrar.".
23Grants and certificates endorsed "no survivorship"
(1)In section 38(4) of the Transfer of Land Act 1958, for "the Court or of the Registrar" substitute "a court".
(2)In section 38(5) of the Transfer of Land Act 1958, for "the Court or Registrar" substitute
"the court".
(3)In section 38(6) of the Transfer of Land Act 1958—
(a)for "The Court or Registrar" substitute
"The court";
(b)omit "or made by".
24Agents for lodging electronic instruments must be eligible persons
(1)For section 44C(2) of the Transfer of Land Act 1958 substitute—
"(2)For the purposes of this section, eligible person means a person who—
(a)holds insurance of a kind and amount acceptable to the Registrar; and
(b)complies with any other eligibility requirements determined by the Registrar.".
(2)In section 44C(4)(b) of the Transfer of Land Act 1958, for "subsection (2)(c)." substitute "subsection (2)(b).".
25Destruction of certificate of title
In section 44I(2) of the Transfer of Land Act 1958—
(a)omit "to support any further transaction in relation to land";
(b)for "relates" substitute "related".
26Registrar may require production of documents
In section 44J(2) of the Transfer of Land Act 1958 for "14 days" substitute "30 days".
27Power to Registrar to make a vesting order in cases of completed purchase
For section 47(c) of the Transfer of Land Act 1958 substitute—
"(c)a transfer cannot be obtained as the registered proprietor is—
(i)a natural person who is deceased or whose signature cannot for any reason be obtained within a reasonable time; or
(ii)a body corporate that is deregistered within the meaning of section 9 of the Corporations Act; or
(iii)a body corporate and the authorised agent of the body corporate cannot be located or his or her signature cannot be obtained within a reasonable time—".
28Repeal of section 48
Section 48 of the Transfer of Land Act 1958 is repealed.
29Registration of personal representatives
In section 49(1) of the Transfer of Land Act 1958 omit "and the day of the death of the proprietor, when ascertainable".
30Sale under writ of fieri facias or decree of Supreme Court etc.
For section 52(2) of the Transfer of Land Act 1958 substitute—
"(2)The Registrar, on being served with a copy of any judgment, decree, order or process of execution of a court that identifies a folio or folios of the Register that are affected by the judgment, decree, order or process of execution, must record notice of the receipt of the judgement, decree, order or process of execution.".
31Registrar to make necessary cancellations entries etc.
In section 55(3) of the Transfer of Land Act 1958—
(a)for ", duplicate instrument and" substitute "or";
(b)omit "duplicate instruments and".
32Registrar to give effect to order vesting trust estate
In section 58(1) of the Transfer of Land Act 1958—
(a)omit "of competent jurisdiction";
(b)after "trustee" insert "or beneficiary";
(c)after "trustees" insert "or beneficiaries";
(d)for "the Court" substitute "the court".
33Registration of dispositions effected by operation of statute
After section 59(3) of the Transfer of Land Act 1958 insert—
"(4)In this section, in relation to the disclaiming, surrender, release or other disposal of an interest in land under this Act, a reference to any statute or statutory power includes a reference to a Commonwealth Act or a statutory or other power of the Commonwealth.".
34New section 59A inserted
After section 59 of the Transfer of Land Act 1958 insert—
"59A Amendment of Register to reflect successor at law
(1)Where by operation of law a body corporate is established as the successor in law to a body corporate that is the registered proprietor of land, the Registrar must make any necessary amendments in the Register—
(a)on being requested to do so; and
(b)on delivery of a certificate described in subsection (2).
(2)A request under subsection (1) must be accompanied by a certificate signed by the chief executive officer (however described) of the successor body corporate certifying that the property, rights or liabilities of the former body corporate specified in the certificate have been vested in, or become the property, rights or liabilities of, the successor in law to the former body corporate.
(3)For the purposes of subsection (1), a certificate described in subsection (2) is admissible as evidence in any proceeding for the purpose of establishing proof that the property, rights or liabilities of the former body corporate specified in the certificate have been vested in, or become the property, rights or liabilities of, the successor in law to the former body corporate, and is conclusive proof of those matters.".
35Application for order by person claiming title by possession
(1)In section 60(1) of the Transfer of Land Act 1958, for "notes" substitute "records".
(2)In section 60(3) of the Transfer of Land Act 1958 for "twenty-one days" substitute "30 days".
(3)After section 60(3) of the Transfer of Land Act 1958 insert—
"(3A)A notice under subsection (3) must be posted on the day on which the application is advertised under subsection (2).".
(4)In section 60(4) of the Transfer of Land Act 1958 for "twenty-one days" substitute "30 days".
36Power to make vesting order
(1)For section 62(2)(b) of the Transfer of Land Act 1958 substitute—
"(b)create in the name of the applicant, or of any person the applicant directs, a new folio of the Register, dated as at the date of making the vesting order—
(i)for an estate in fee simple or other estate acquired in the land described in the vesting order, free from all encumbrances extinguished under subsection (1); or
(ii)at the Registrar's discretion, consolidating the land described in subparagraph (i) with any adjoining parcel of land owned by the applicant.".
(2)After section 62(4) of the Transfer of Land Act 1958 insert—
"(5)In this section, encumbrance includes, but is not limited to, any estate, interest, mortgage, charge, right, claim, demand, caveat, lease, sub-lease, restrictive covenant or statutory charge or an agreement under section 173 of the Planning and Environment Act 1987.".
37Leases
After section 66(2) of the Transfer of Land Act 1958 insert—
"(3)A lease described in subsection (1) must state the date of commencement and date of expiration of the lease.".
38Foreclosure or surrender or mortgaged lease where lessee is bankrupt
In section 68(2) of the Transfer of Land Act 1958, for "twenty-one days" substitute "30 days".
39Surrender of lease
After section 69(1) of the Transfer of Land Act 1958 insert—
"(1A)A lease may be partially surrendered under subsection (1) where the partial surrender applies to all of the land in a folio.".
40Variation of registered mortgage
At the end of section 75A of the Transfer of Land Act 1958 insert—
"(2)For the purposes of this section, the variation of a mortgage does not include the following—
(a)a transfer or assignment of a mortgage; or
(b)an alteration of—
(i)the length of the term of the mortgage; or
(ii)an area of mortgaged land; or
(iii)the parties to a mortgage.".
41Application of moneys obtained from actions by the mortgagor
In section 82(2) of the Transfer of Land Act 1958—
(a)for "the Court" (where first occurring) substitute "a court";
(b)for "the Court" (where secondly and thirdly occurring) substitute "the court".
42Discharge of mortgages and annuities
(1)For section 84(2) of the Transfer of Land Act 1958 substitute—
"(2)The Registrar may amend the Register to remove the recording of a mortgage on a folio or folios of the Register if it is proved to the Registrar's satisfaction that—
(a)all principal and interest due in respect of the mortgage have been paid to the person entitled to receive them; and
(b)a discharge of mortgage instrument cannot be obtained because the mortgagee is—
(i)a natural person who is deceased or whose signature cannot for any reason be obtained within a reasonable time; or
(ii)a body corporate that is deregistered within the meaning of section 9 of the Corporations Act; or
(iii)a body corporate and the authorised agent of the body corporate cannot be located or his or her signature cannot be obtained within a reasonable time.".
(2)Section 84(2A) of the Transfer of Land Act 1958 is repealed.
43Mortgage money payable to Treasurer if mortgagee absent from Victoria and mortgage discharged
In section 85(2) of the Transfer of Land Act 1958, for "the Registrar addresses to the Treasurer a requisition to pay to any persons concerned the moneys to which they are entitled" substitute
"an application is made to the Treasurer by the mortgagee or other person entitled to the moneys for payment of those moneys".
44Notification of restrictive covenants
(1)For section 88(1) of the Transfer of Land Act 1958 substitute—
"(1)The Registrar has the power, and is taken to have always had the power, to record on a folio of the Register—
(a)a restrictive covenant affecting the parcel or parcels of land to which the folio of the Register relates, if all of the registered proprietors of the land to be affected by the covenant and any mortgagees of such land agree to the creation of the restrictive covenant; and
(b)subject to subsections (1AA), (1AB) and (1AC), any instrument purporting to vary or release the operation of a restrictive covenant.
(1AA)A recording on a folio of a restrictive covenant that was created by a plan of subdivision or consolidation must not be deleted or amended by the Registrar unless the restrictive covenant is released or varied by—
(a)a plan of subdivision or consolidation; or
(b)a planning scheme or permit under the Planning and Environment Act 1987; or
(c)an order of a court.
(1AB)A recording on a folio of a restrictive covenant that was authorised by a planning scheme or permit under the Planning and Environment Act 1987 must not be deleted or amended by the Registrar unless the restrictive covenant is released or varied by—
(a)a plan of subdivision or consolidation; or
(b)a planning scheme or permit under the Planning and Environment Act 1987; or
(c)an order of a court.
(1AC)A recording on a folio of a restrictive covenant that was created or authorised in any way other than by—
(a)a plan of subdivision or consolidation; or
(b)a planning scheme or permit under the Planning and Environment Act 1987—
may be deleted or amended by the Registrar if the restrictive covenant is released or varied by—
(c)a manner described in paragraph (a) or (b); or
(d)the agreement of all of the registered proprietors of all land affected by the covenant and any mortgagees of such land; or
(e)an order of a court.".
(2)Section 88(1B) of the Transfer of Land Act 1958 is repealed.
45Caveats temporarily forbidding dealings with land
In section 89(4) of the Transfer of Land Act 1958 omit "in Victoria".
46Removal of caveat on application to Registrar
(1)In section 89A(3)(b) of the Transfer of Land Act 1958 omit "of competent jurisdiction".
(2)In section 89A(4) of the Transfer of Land Act 1958, for "35 days" substitute "30 days".
(3)In section 89A(7) of the Transfer of Land Act 1958—
(a)in paragraph (a)—
(i)for "the Court" (where first occurring) substitute "a court";
(ii)for "the Court" (where secondly and thirdly occurring) substitute "the court";
(b)in paragraph (b), for "the Court" substitute "the court".
47Except in certain cases caveat to lapse after thirty days notice given to caveator
(1)In section 90(2) of the Transfer of Land Act 1958—
(a)for "the Court" (where first occurring) substitute "a court";
(b)for "the Court" (where secondly and thirdly occurring) substitute "the court".
(2)In section 90(3) of the Transfer of Land Act 1958—
(a)for "the Court" (where first occurring) substitute "a court";
(b)for "the Court" (where secondly and thirdly occurring) substitute "the court".
48No entry to be made in Register affecting land in respect of which caveat in force
In section 91(4) of the Transfer of Land Act 1958, after "removed" insert "by an order of a court".
49Repeal of Division 2 of Part V
Division 2 of Part V of the Transfer of Land Act 1958 is repealed.
50Restriction on amendment of memorandum articles or rules affecting shares in service company
In section 98B(b) of the Transfer of Land Act 1958—
(a)for "the Court" (where firstly and secondly occurring) substitute "a court";
(b)for "the Court" (where thirdly occurring) substitute "the court".
51Variation of service agreement
After section 98C(2) of the Transfer of Land Act 1958 insert—
"(2A)For the purposes of this section, the variation of a service agreement does not include an alteration of—
(a)the length of the term of the service agreement; or
(b)the area to which the service agreement applies.".
52Procedure if Registrar is satisfied that plan is suitable for registration
For section 98CB(2)(c) of the Transfer of Land Act 1958 substitute—
"(c)if there is a service company and the service company was registered under the Co‑operatives Act 1996, serve a notice in the prescribed form on the Registrar of Co‑operatives.".
53Cancellation of plan of building subdivision and registration of the plan of subdivision
(1)For section 98CC(1)(d) of the Transfer of Land Act 1958 substitute—
"(d)where a service company operated in relation to the building subdivision and the service company was registered under the Co‑operatives Act 1996, serve a notice in the form prescribed by the regulations on the Registrar of Co-operatives; and".
(2)In section 98CC(2)(a) of the Transfer of Land Act 1958 omit "and the duplicate instrument (if any) of every registered service agreement, mortgage, charge, lease or sub-lease relating to any part of the land comprised in the building subdivision".
54Effect of registration of plan of subdivision
In section 98CD(1) of the Transfer of Land Act 1958—
(a)in paragraph (e), for "property;" substitute "property.";
(b)paragraph (f) is repealed.
55Power of courts to consent or dispense
(1)In section 98CE(1) of the Transfer of Land Act 1958, for "the Court or court of competent jurisdiction, as the case may be," substitute
", a court,".
(2)In section 98CE(2) of the Transfer of Land Act 1958—
(a)for "the Court or court of competent jurisdiction" substitute "a court";
(b)omit "or duplicate instrument".
56General provision as to correction of errors etc.
(1)In section 103(1) of the Transfer of Land Act 1958—
(a)for "the Court" (where first occurring) substitute "a court";
(b)for "the Court" (where secondly and thirdly occurring) substitute "the court".
(2)In section 103(1AA) of the Transfer of Land Act 1958—
(a)omit "under Part IV of the Property Law Act 1958";
(b)omit "under that Part".
(3)Section 103(1A) of the Transfer of Land Act 1958 is repealed.
(4)In section 103(2)(a) of the Transfer of Land Act 1958, for "in any instrument or duplicate or plan of subdivision" substitute "in any plan of subdivision or unregistered instrument".
(5)In section 103(2)(b) of the Transfer of Land Act 1958 omit "(1A) or".
57Registrar to require production of documents as evidence etc.
(1)In section 104(3) of the Transfer of Land Act 1958—
(a)for "For the purposes of this Act," substitute "If the Registrar considers it necessary or appropriate to do so, ";
(b)omit "or duplicate instrument" (wherever occurring);
(c)for "fourteen days" substitute "30 days".
(2)Sections 104(3A), 104(3B), 104(3C) and 104(3D) of the Transfer of Land Act 1958 are repealed.
(3)In section 104(5) of the Transfer of Land Act 1958, omit "or the duplicate of any instrument or document".
58Registrar to refuse registration if documents or evidence not supplied
Section 105(2) of the Transfer of Land Act 1958 is repealed.
59Powers of Registrar
(1)In section 106 of the Transfer of Land Act 1958—
(a)for paragraph (a) substitute—
"(a)may record a caveat on behalf of the Crown, a minor or a person of unsound mind—
(i)to prohibit any transfer or dealing with any land registered in the name of that person; or
(ii)to prohibit dealing with any land in any case in which it appears that an error has been made by misdescription of that land or otherwise in any folio or folios of the Register; or
(iii)for the prevention of any fraud or improper dealing;";
(b)in paragraph (d), for "the Court" substitute "a court";
(c)in paragraph (e), for "Act." substitute "Act;"
(d)after paragraph (e) insert—
"(f)may take any other step necessary to protect the operation, effectiveness and integrity of the Register, including, but not limited to, the making of a notation on a folio of the Register.".
(2)At the end of section 106 of the Transfer of Land Act 1958 insert—
"(2)The Registrar must not record in the Register a dealing with a folio on which a caveat has been recorded under subsection (1)(a) unless the Registrar is satisfied that the dealing is compatible with the purpose for which the caveat was recorded.
(3)The Registrar may remove a caveat recorded under subsection (1)(a) if the Registrar is satisfied that the caveat is no longer required for the purpose for which it was recorded.".
60Fees to be paid under Act
After section 108(8) of the Transfer of Land Act 1958 insert—
"(9)If any application, dealing or other matter is withdrawn after lodgment of any instruments or documents in connection with the matter—
(a)the fees paid in respect of the matter are forfeited; and
(b)the Registrar may return all or any of the instruments and documents lodged in connection with the matter as the Registrar thinks fit.
(10)If—
(a)the fees paid in respect of a matter are forfeited under subsection (9) or section 105; and
(b)a subsequent application is made—
(i)for the same purpose; or
(ii)in respect of any instrument or document that is relodged for registration—
the fee payable in respect of the application or relodgment is one-half of the fee otherwise payable.".
61Entitlement to indemnity
In section 110(5) of the Transfer of Land Act 1958, for "the Court" substitute "a court".
62Service of notices
(1)In section 113(2) of the Transfer of Land Act 1958, for "as recorded in the Register may be used at his" substitute "that is retained by the Registrar may be used as that person's".
(2)For section 113(5) of the Transfer of Land Act 1958 substitute—
"(5)The Registrar may amend or alter an address for service of notices if the person whose address is retained provides—
(a)a request for amendment in an appropriate approved form; and
(b)the relevant certificate of title or other documentation which demonstrates to the Registrar's satisfaction that the person who is applying for the amendment is the person whose address is retained.".
63Inspection of Register
In section 114(3) of the Transfer of Land Act 1958, for "all Courts" substitute "all courts".
64Receipt for and return of lodged documents
(1)In section 115(1) of the Transfer of Land Act 1958 omit "or some person claiming through or under him".
(2)In section 115(2) of the Transfer of Land Act 1958, for "the proprietor or any other person of any such document or certificate of title." substitute "or at the direction of the person who lodged the documents."
65Summoning Registrar to show cause
For section 116(1) of the Transfer of Land Act 1958 substitute—
"(1)An applicant may require the Registrar to provide in writing the grounds for the Registrar's refusal of an application for the Registrar to do any of the following—
(a)bring land under the operation of this Act;
(b)register or record any instrument in the Register;
(c)create a folio of the Register;
(d)issue a foreclosure order;
(e)do or perform an act or duty which under this Act is an act or duty required to be done or performed by the Registrar.
(1A)An applicant who has received written grounds from the Registrar under subsection (1) may summon the Registrar to appear before the Supreme Court or the County Court to substantiate and uphold the grounds of the Registrar's refusal.".
(2)In section 116(3) of the Transfer of Land Act 1958, for "the Court" (wherever occurring) substitute "the Supreme Court or the County Court".
(3)In section 116(4) of the Transfer of Land Act 1958, for "The Court" substitute "The Supreme Court or the County Court".
66Application to Court for order requiring production of document
(1)For section 116A(1) of the Transfer of Land Act 1958 substitute—
"(1)The Registrar may apply to a court by summons or, in the case of land or any instrument or dealing with respect to land which is the subject of an order by VCAT, to VCAT, for an order directing a person to produce a certificate of title or document if—
(a)the Registrar has made a request under section 104(3) for the production of a certificate of title or document; and
(b)the person of whom the request was made has failed to comply with the request.
(1A)An interested person may apply to the court by summons or, in the case of land or any instrument or dealing with respect to land which is the subject of an order by VCAT, to VCAT, for an order directing another person to produce a certificate of title or document for the reasons stated in the application.".
(2)In section 116A(2) of the Transfer of Land Act 1958, for "The Court" substitute "The court".
(3)In section 116A(3) of the Transfer of Land Act 1958—
(a)for "The Court " substitute "The court";
(b)in paragraphs (a) and (c), for "the Court" (wherever occurring) substitute "the court";
(c)for "the Court" (where last occurring) substitute "the court".
67Compensation for lodging caveat without reasonable cause
In section 118 of the Transfer of Land Act 1958, for "the Court" substitute "a court".
68Regulations
(1)In section 120(2)(a) of the Transfer of Land Act 1958, after "Act" insert "or in performing any function or duty under any other Act".
(2)Section 120(2)(aa) of the Transfer of Land Act 1958 is repealed.
69Approved forms
In sections 121(1), 121(2), 121(3), 121(4), 121(5), 121(6), 121(7), 121(8) and 121(9) of the Transfer of Land Act 1958, after "Act" (wherever occuring) insert "or in performing any function or duty under any other Act".
70New sections 129 and 130 inserted
After section 128 of the Transfer of Land Act1958 insert—
"129 Creation of certificate of title—transitional provision
(1)For the purposes of this section, prescribed authority means a body prescribed under section 28(4) as in force immediately before its repeal.
(2)Despite the repeal of section 28(3), 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 that section immediately before the commencement of section 17 of the Land Legislation Amendment Act 2009.
130Contracts referring to Table A—transitional provision
On and from the commencement of section 71 of the Land Legislation Amendment Act 2009, any reference to Table A of the Seventh Schedule to this Act in a contract is to be taken to be a reference to Table A of that Schedule as in force immediately before its repeal.".
71Repeal of Seventh Schedule
The Seventh Schedule to the Transfer of Land Act 1958 is repealed.
72Repeal of Seventeenth and Eighteenth Schedules
The Seventeenth Schedule and the Eighteenth Schedule to the Transfer of Land Act1958 are repealed.
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Part 3—Surveying Act 2004
73Definitions
In section 3 of the Surveying Act 2004, in the definition of unprofessional conduct—
(a)in paragraph (c), for "misconduct." substitute "misconduct; or";
(b)after paragraph (c) insert—
"(d)conduct by a licensed surveyor that contravenes a condition, limitation or restriction on his or her registration.".
74Application for registration
In section 4(2) of the Surveying Act 2004—
(a)in paragraph (d), for "fee." substitute "fee; and";
(b)after paragraph (d), insert—
"(e)state the class of registration sought.".
75Qualifications for registration
(1)In section 5(b) of the Surveying Act 2004, after "surveying" insert "and professional skills training".
(2)In section 5(c) of the Surveying Act 2004—
(a)in subparagraph (ii), for "Board; or" substitute "Board, including a qualification that was obtained in another country.";
(b)subparagraph (iii) is repealed.
(3)At the foot of section 5 of the Surveying Act 2004 insert—
"Note
The Mutual Recognition Act 1992 of the Commonwealth is adopted in Victoria by section 4 of the Mutual Recognition (Victoria) Act 1998 and the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth is adopted in Victoria by section 4 of the Trans-Tasman Mutual Recognition (Victoria) Act 1998.
In accordance with section 17 of the Mutual Recognition Act 1992 of the Commonwealth, and section 16 of the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth, a person who holds the right to practise cadastral surveying in another State or Territory or in New Zealand is, on notifying the Board, entitled to be registered as a licensed surveyor in Victoria.".
76Renewal of registration
(1)For section 7(4)(b) of the Surveying Act 2004 substitute—
"(b)has not undertaken further practical training in cadastral surveying and professional skills training required by the Board, details of which have been published in accordance with section 62; or".
(2)After section 7(5) of the Surveying Act 2004 insert—
"(6)Subsections (4)(a) and (4)(b) do not apply to a person applying for renewal of registration if the class of registration sought is a non-practising class of registration.".
77New section 7A inserted
After section 7 of the Surveying Act 2004 insert—
"7A Variation of registration
(1)The Board may vary the class of registration of a person registered as a licensed surveyor on an application for variation of registration by that person.
(2)An application for variation of registration—
(a)must be made to the Board before the existing registration expires; and
(b)must be accompanied by the relevant fee; and
(c)must state the class of registration sought.
(2)For the purposes of subsection (1)(b), the fee may be a reduced registration fee determined by the Board in accordance with section 11(2).".
78Section 11 substituted
For section 11 of the Surveying Act 2004 substitute—
"11 Duration of registration
(1)A registration that is granted, renewed or restored under this Part remains in force until 31 December of the year in which the registration was granted, renewed or restored, unless sooner cancelled or suspended.
(2)If a registration is granted or restored for a period of less than 12 months, the Board may impose a reduced registration fee proportionate to the term of the registration period for which the registration is granted or restored.".
79Restoration of name to the register
At the end of section 12 of the Surveying Act 2004 insert—
"(2)A person may apply under this section to have his or her name restored to the register under a different class of registration of licensed surveyor to the class of registration that the person held before his or her name was removed from the register.".
80The register
In section 15(3) of the Surveying Act 2004—
(a)in paragraph (d), for "surveyor." substitute "surveyor;";
(b)after paragraph (d) insert—
"(e)the class of registration of the licensed surveyor.".
81Investigation of complaints
(1)In section 19(3) of the Surveying Act 2004—
(a)in paragraph (b), for "the delegation—" substitute "the delegation; or"
(b)after paragraph (b) insert—
"(c)a person whom the Board reasonably believes has the qualifications or experience to carry out a preliminary investigation—".
(2)After section 19(3) of the Surveying Act 2004 insert—
"(4)Despite subsection (1), the Board may refuse to investigate a complaint if the Board determines the complaint is frivolous, vexatious, misconceived or lacking in substance.".
82Outcome of preliminary investigation
(1)In section 22(1)(b) of the Surveying Act 2004, for "matter." substitute "matter; or"
(2)After section 22(1)(b) of the Surveying Act 2004 insert—
"(c)that the matter be settled by agreement between the Board and the licensed surveyor.".
83New section 22A inserted
After section 22 of the Surveying Act 2004 insert—
"22A Board may settle matter by agreement
"(1)The Board may, of its own motion or on a recommendation made under section 22(1)(c), arrange to settle a matter regarding the professional conduct of a licensed surveyor by agreement between the Board and the licensed surveyor.
(2)Without limiting subsection (1), the Board may enter into an agreement with a licensed surveyor to—
(a)alter the way in which the licensed surveyor practises as a licensed surveyor;
(b)impose conditions, limitations or restrictions on the registration of the licensed surveyor;
(c)suspend the licensed surveyor's registration for the period of time specified by the Board;
(d)complete further practical training in cadastral surveying and professional skills training within a specified time period.
(3)If a licensed surveyor does not comply with the terms of an agreement made under this section, the Board may—
(a)take any action that is necessary to implement the agreement;
(b)institute a formal hearing into the professional conduct of the licensed surveyor.".
84New section 30A inserted
After section 30 of the Surveying Act 2004 insert—
"30A Notification to licensed surveyor
If a formal hearing arising from a complaint is conducted, the Board must notify the licensed surveyor who is the subject of the hearing, in writing, of—
(a)the findings and determinations of the formal hearing; and
(b)the reasons for those findings and determinations—
within 28 days after they are made.".
85Notifications to complainant
(1)In section 31(1) of the Surveying Act 2004, after "the complainant" (where first occurring) insert "in writing".
(2)In section 31(2) of the Surveying Act 2004, after "the complainant" insert ", in writing,".
86Notification
In section 34(1) of the Surveying Act 2004, after "notify" insert "in writing".
87Claims by persons as to registration
At the end of section 35 of the Surveying Act 2004 insert—
"(2)A person who is registered under this Act as a licensed surveyor and whose registration is subject to a condition, limitation or restriction must not—
(a)knowingly claim to have or hold himself or herself out as having a registration which is not subject to that condition, limitation or restriction; or
(b)carry out any act that contravenes the condition, limitation or restriction on his or her registration.
Penalty:60 penalty units.".
88Functions and powers of Surveyor-General
(1)In section 42(1)(d) of the Surveying Act 2004 omit ", and to prosecute offences against sections 38 and 39 and other offences involving the survey control network".
(2)After section 42(1)(d) of the Surveying Act 2004 insert—
"(da)to investigate and bring proceedings to prosecute offences against this Act and any regulations made under this Act;".
89Functions of the Board
(1)In section 45(f) of the Surveying Act 2004, after "training" insert "and professional skills training".
(2)After section 45(i) of the Surveying Act 2004 insert—
"(ia)to investigate and prosecute offences against this Act and any regulations made under this Act;
(ib)to appoint a person to investigate on behalf of the Board—
(i)the professional conduct or fitness to practise of licensed surveyors;
(ii)offences against this Act and any regulations made under this Act; ".
(3)In section 45(j)(i) of the Surveying Act 2004, after "cadastral surveying" insert "and professional skills".
90Membership of the Board
In section 47(2)(d) of the Surveying Act 2004, for "and is the Surveyor and Chief Draughting Officer in the Office of Titles" substitute "in the Department".
91Proceedings for offences
(1)For section 61(1) of the Surveying Act 2004 substitute—
"(1)Proceedings under this Act may be brought—
(a)by the Board; or
(b)in the name of the Board by a person authorised by the Board; or
(c)by the Surveyor-General.".
(2)Section 61(2) of the Surveying Act 2004 is repealed.
92Publication of certain information
In section 62(a) of the Surveying Act 2004, after "training" insert "and professional skills training".
93Regulations
(1)After section 63(1)(c) of the Surveying Act 2004 insert—
"(ca)prescribing classes of registration;".
(2)After section 63(2) of the Surveying Act 2004 insert—
"(3)The regulations may provide that fees payable under the Act—
(a)may vary according to different cases or classes of cases;
(b)may be reduced or waived according to different cases or classes of cases.".
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Part 4—Geographic Place Names Act 1998
94Extension of term of appointment
In section 7(2) of the Geographic Place Names Act 1998, for "3 years" substitute "5 years".
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Part 5—Subdivision Act 1988
95Definition of master plan
In section 3(1) of the Subdivision Act 1988, for the definition of master plan substitute—
"master plan in relation to a staged subdivision using the procedure under section 37—
(a)means a plan of all the land in the subdivision at the time of registration of stage one of the plan; and
(b)includes any amendments to the plan made under that section;".
96The procedure for certification and registration of plans
For section 5(3)(e) of the Subdivision Act 1988, substitute—
"(e)lodge the certified plan at the Office of Titles for registration together with—
(i)an application in the form approved by the Registrar; and
(ii)the statement of compliance obtained under paragraph (d); and
(iii)the prescribed information in respect of the street address and lot location of each lot on the plan; and".
97New section 22A inserted
After section 22 of the Subdivision Act 1988 insert—
"22A Registrar may refuse registration
(1)If, in respect of any matter under this Act, the Registrar is of the opinion that any document, information, evidence or notice is necessary or desirable for the purposes of registering an instrument or a plan, and the document, information, evidence or notice is not supplied or given within the time the Registrar allows—
(a)the Registrar may refuse to complete or proceed with the registration of the instrument or plan; and
(b)the Registrar may return all or any of the documents lodged in connection with the matter as the Registrar thinks fit; and
(c)the fees paid in respect of the matter are forfeited.
(2)If, following a request by the Registrar under subsection (1), the registration in respect of which the request is made is withdrawn—
(a)the Registrar may return all or any of the documents lodged in connection with the matter as the Registrar thinks fit; and
(b)the fees paid in respect of the matter are forfeited.
(3)If—
(a)the fees paid in respect of a matter are forfeited under this section; and
(b)the requisition previously made by the Registrar—
(i)has been complied with; or
(ii)is, in the opinion of the Registrar, no longer necessary—
the fee payable in respect of any instruments or plans relodged for registration is one-half of the fee otherwise payable.".
98Effect of registration of plans
After section 24(2)(b) of the Subdivision Act 1988 insert—
"(ba)any agreement under section 173 of the Planning and Environment Act 1987 applying to land vested in a Council under paragraph (a) or (b) ceases to apply to that land; and".
99Dealings in common property
(1)In section 31A(3) of the Subdivision Act 1988, for "only and not the lots" substitute "and not a lot owner's share in the common property".
(2)In section 31A(4) of the Subdivision Act 1988, for "interest" (wherever occurring) substitute "share".
100Alteration of subdivision
For section 32(c) of the Subdivision Act 1988 substitute—
"(c)alter the boundaries of any land affected by the owners corporation, whether or not the alteration results in an increase or decrease of the area of land affected by the owners corporation;".
101Consolidation, subdivision or alteration
For section 32AI(1) of the Subdivision Act 1988 substitute—
"(1)Despite section 32, the owner or owners of a lot or lots affected by an owners corporation on a registered plan may proceed under this subsection to consolidate, subdivide or alter the lot or lots owned if the consolidation, subdivision or alteration—
(a)subject to subsection (1A), does not alter the boundaries or area of existing common property; and
(b)does not alter the boundaries or lot entitlement or liability of lots not being consolidated, subdivided or altered; and
(c)does not add an area of land that is more than 10% or, if another percentage is prescribed, that prescribed percentage, of the area of the land in the lot or lots to be consolidated, subdivided or altered to the land affected by the owners corporation.
(1A)A consolidation, subdivision or alteration under subsection (1) may provide for the addition of new common property if—
(a)a new limited owners corporation is created in respect of that common property; and
(b)the new limited owners corporation is comprised solely of the lot owners who are parties to the consolidation, subdivision or alteration.".
102Total consolidation or re-subdivision of land affected by owners corporation
(1)For section 32A(1) of the Subdivision Act 1988 substitute—
"(1)All of the owners of lots on a plan who are members of one or more owners corporations may submit for certification, and lodge for registration, a plan consolidating or re-subdividing all of the land on the plan that is affected by the owners corporation or owners corporations.".
(2)For section 32A(3) of the Subdivision Act 1988 substitute—
"(3)If a plan is registered under subsection (1), then on registration of the plan—
(a)any owners corporation on the previous registered plan that affected the land is dissolved; and
(b)if the land affected by an owners corporation in the previous registered plan was vested in one lot owner, the land vests in that lot owner; and
(c)if the land affected by an owners corporation in the previous registered plan was vested in more than one lot owner, the land vests in the former lot owners who were members of that owners corporation as tenants in common in proportion to their lot entitlements in that owners corporation; and
(d)the land is freed from—
(i)any caveat, mortgage, charge, lease or sub-lease; or
(ii)any easement under section 12, unless the easement affected the land before the registration of the previous registered plan.".
103Staged subdivision
In section 37(3)(c) of the Subdivision Act 1988—
(a)in subparagraph (iv)(D), for "stage;" substitute "stage.".
(b)subparagraph (v) is repealed.
104New section 46A inserted
After section 46 of the Subdivision Act 1988 insert—
"46A Expiry of registered plan
(1)The Registrar may determine that a plan that was registered before the commencement of section 44 has expired if—
(a)no folios for roads, lots or reserves have been created in respect of the plan; and
(b)the land has been dealt with without reference to the plan.
(2)If the Registrar determines under subsection (1) that a plan has expired, the plan is taken never to have been registered.".
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Part 6—Amendments to the Forests Act 1958
105Licences and permits with respect to forests
(1)In section 52(1) of the Forests Act 1958, after "licence" insert "or permit".
(2)In section 52(1A) of the Forests Act 1958, for "specified in the licence" (wherever occurring) substitute "specified in the licence or permit".
(3)In section 52(1B) of the Forests Act 1958, for "specified in the licence" (wherever occurring) substitute "specified in the licence or permit".
(4)In section 52(1C) of the Forests Act 1958, for "specified in the licence" substitute "specified in the licence or permit".
(5)In section 52(2) of the Forests Act 1958 for "The Secretary" substitute "The Minister".
(6)In section 52(3) of the Forests Act 1958—
(a)for "of the Secretary" substitute "of the Minister";
(b)omit "or of an authorised officer authorized in that behalf by the Secretary".
(7)For section 52(5) of the Forests Act 1958 substitute—
"(5)The Minister may suspend or cancel any licence or permit where the holder of the licence or permit has failed to comply with a prescribed covenant, term or condition of the licence or permit or any covenant, term or condition imposed by the Minister on the licence or permit.".
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Part 7—Repeal of Amending Act
106Repeal of amending Act
This Act is repealed on 1 May 2011.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 2 September 2009
Legislative Council: 17 September 2009
The long title for the Bill for this Act was "A Bill for an Act to amend the Transfer of Land Act 1958, the Subdivision Act 1988, the Surveying Act 2004, the Geographic Place Names Act 1998 and the Forests Act 1958 and for other purposes."
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