Staged subdivision certificates

This article is in response to a question about whether subdivision certificates can be staged if the development consent doesn’t specifically allow it.

The question is:

Is it possible to apply for subdivision certificates in separate stages, in a situation where the development consent is not necessarily staged?

The answer is yes. It is possible to apply for subdivision certificates in stages when a development consent doesn’t specifically contemplate it, provided that the applicant can satisfy the requirements of section 109J of the Environmental Planning and Assessment Act 1979 (EPA Act).

What does section 109J of the EPA Act say?

In summary, section 109J of the EPA Act says three things.

Firstly, it says that a subdivision certificate must not be issued for any subdivision unless certain requirements have been met.

Secondly, if the subdivision involves subdivision work, it says that there are additional requirements that must be met before the subdivision certificate is issued.

Finally, it says that the section does not prohibit the issue of a subdivision certificate for only part of the land, provided that all of the requirements are met for that particular part of the land.

It should be noted that section 109J of the EPA Act will eventually be replaced by section 6.15 of the EPA Act. Both sections are generally the same.

Click here to read section 109J of the EPA Act.

Click here to read section 6.15 of the EPA Act.

How does this work in practice?

Staged subdivision certificates can only be issued if the requirements of section 109J are met.

One key requirement is that all the conditions of the development consent that, “by its terms” are required to be complied with, have been complied with. So, it’s important to watch out for conditions in the development consent that “by their terms” can not be satisfied if the subdivision certificates are staged. For example, there might be a requirement for major drainage works, earthworks, or a major signalised intersection that must be completed before any subdivision certificate is issued.

If you are unsure about whether you can get a staged subdivision certificate, it may be best to speak to your local council, your accredited certifier, or seek legal advice.

If you would like legal assistance, you can also contact Alyce Kliese directly by clicking here.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.