Part 7 Amendment, amalgamation and cancellation of plans

(1) An application for the amendment of a deposited community plan—

(a) may be made by—

(i) the community corporation; or

(ii) subject to subsection (1a), the owners of all community lots that will be affected by the amendment; and

(b) must be in a form approved by the Registrar-General.

(1a) An application for the amendment of a deposited community plan may only be made by the owners of all community lots that will be affected by the amendment if the amendment—

(a) does not affect any common property; and

(b) does not alter the total number of community lots in the community parcel; and

(c) does not affect the aggregate of the lot entitlements of the community lots affected by the amendment; and

(d) does not alter the boundaries of the community parcel; and

(e) is not contrary to the scheme description or by-laws or any development contract; and

(f) in the case of a secondary plan—is not contrary to the scheme description or by-laws of the primary scheme; and

(g) in the case of a tertiary plan—is not contrary to the scheme description or by-laws of the primary or secondary scheme.

(2) The applicant or applicants must provide evidence to the satisfaction of the Registrar-General—

(a) that—

(i) in the case of an application made by a community corporation—the application is made in pursuance of a unanimous resolution of the corporation; or

(ii) in the case of an application made by the owners of all community lots that will be affected by the amendment—that the community corporation has been notified of the application; and

(b) if the boundaries of a community lot or a development lot are affected by the amendment or if a community lot or a development lot is extinguished by the amendment—that the owner of the lot (other than an owner who is an applicant in accordance with subsection (1)(a)(ii)) and a person who holds a registered encumbrance over the lot consent to the amendment; and

(c) where amendment of the plan will operate to vest an estate or interest in land in a person—that that person consents to the application.

(3) The Registrar-General may dispense with the consent under subsection (2)(b) of a person who holds an easement that will not be affected by the amendment of the community plan.

(3a) Where the amendment of a deposited community plan would result in the extinguishment of an easement in respect of part of the dominant land, the consent of a person who has, or claims, an estate or interest in the servient land is not required (unless the Registrar-General determines otherwise in a particular case) in relation to that extinguishment if rights under the easement continue in existence in respect of some other part of the dominant land.

(4) The application must be accompanied by—

(a) the fee prescribed by regulation; and

(c) if the scheme description will be inaccurate as a result of the amendment—a copy of the scheme description appropriately amended in accordance with Part 4; and

(d) if the amendment affects the delineation of lots or common property or creates new lots—a copy of the scheme description (appropriately amended if necessary) endorsed by the relevant development authority; and

(f) if the amendment affects the delineation of lots, or common property or any building on the community parcel or creates new lots—

(i) a new plan to be substituted for the existing plan or, with the approval of the Registrar-General, a sheet or sheets to be substituted for a sheet or sheets of the deposited plan or to be added to it; and

(ii) a certificate from a licensed surveyor in the form prescribed by regulation (which must be endorsed on the plan) certifying that the plan has been correctly prepared to a scale determined by the Registrar-General in accordance with this Act; and

(g) if the amendment affects the relative value of the lots—a new schedule of lot entitlements certified correct by a land valuer; and

(h) if the amendment does not affect the relative value of the lots—a certificate from a land valuer to that effect; and

(i) such other documentary material as the Registrar-General may require.

(5) If the land valuer's certification referred to in subsection (4)(g) or (h) was given more than six months before the application was lodged with the Registrar-General, the Registrar-General may reject the schedule of lot entitlements or the certificate referred to in subsection (4)(h).

(5a) If the amendment affects the delineation of lots or common property or creates new lots, the Registrar-General must not deal with the application unless satisfied that the certificate from the State Planning Commission required by section 138 of the Planning, Development and Infrastructure Act 2016 has been given, and is in force, in relation to the amendment.

(6) The certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 expires at the expiration of one year after the application for amendment of the plan was lodged with the Registrar-General unless the Registrar-General extends the life of the certificate.

(1) An application under section 52 for the amendment of a deposited community plan will, upon being lodged with the Registrar-General, be taken for the purposes of the Real Property Act 1886 to be an instrument presented for registration and will have priority over other instruments in accordance with section 56 of that Act.

(2) Subject to subsection (3), an application cannot be withdrawn or amended without the consent of all the persons who have consented to the application.

(3) The Registrar-General may permit an applicant, or a person who has consented to the application, to amend the application in order to comply with this Act or the Real Property Act 1886 or with a requirement of the Registrar-General under this Act or the Real Property Act 1886.

(4) The provisions of the Real Property Act 1886 that apply to, or in relation to, instruments of a particular class will, subject to this Part, apply (with any necessary adaptations or modifications) to, or in relation to, an application for the amendment of a deposited community plan if amendment of the plan by the Registrar-General—

(a) would operate to vest in a person under section 55 the same kind of estate or interest as is vested by registration of instruments of that class; or

(b) would discharge or otherwise extinguish an estate or interest in land under section 55 of the same kind as is discharged or extinguished by registration of instruments of that class.

Despite any other statutory provision to the contrary, the Registrar-General may treat an application for the amendment of a deposited community plan as if it included an application for the variation or termination of a statutory encumbrance if—

(a) the application specifies that variation or termination of a statutory encumbrance is to be registered or noted; and

(b) the application is accompanied by—

(i) a certificate signed by or on behalf of the holder of the statutory encumbrance certifying that the requirements of the Act under which the encumbrance was entered into, or is in force, as to the variation or termination of the statutory encumbrance (if any) have been complied with; and

(ii) such other documentary material in relation to the statutory encumbrance as the Registrar-General may require.

(1) Where due application is made for the amendment of a deposited community plan, the Registrar-General may amend the plan or substitute a new plan and in either case the Registrar-General must amend or endorse any certificate of title affected by the amendment, or cancel any such certificate and issue a new certificate or new certificates.

(2) If the Registrar-General substitutes a new plan, he or she must ensure that the documents required by this Act to be filed with a deposited plan are filed with the new plan.

(3) Where the amendment affects the delineation of lots or common property to only a minor extent (to be prescribed by regulation) the Registrar-General may dispense with one or more of the following—

(a) the consent of the holder of a registered encumbrance;

(b) the endorsement of the scheme description by the relevant development authority;

(c) the certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016;

(d) the certificate from a licensed surveyor;

(e) the certificate from a land valuer.

(4) Subject to this Division, the provisions of Part 3 apply to, and in relation to, the amendment or substitution of a plan of community division under this Division as if the application for amendment of the plan were an application for division under that Part and the amendment or substitution of the plan were the deposit of the plan as amended in the Lands Titles Registration Office.

(1) Where an application under section 52 for the amendment of a deposited community plan states that an estate or interest in land is vested in a person, amendment of the plan by the Registrar-General operates to vest the estate or interest in that person to the extent to which it is not already vested in him or her.

(2) An estate in fee simple will vest in a person under subsection (1) only if—

(a) the person was, immediately before amendment of the plan, the proprietor of an estate or interest in some part, or the whole, of the land, shown on the plan; or

(b) the person is an agent or instrumentality of the Crown or the Commonwealth Crown or is entitled to acquire the land compulsorily under an Act or law of the State or the Commonwealth.

(3) Where an application for the amendment of a deposited community plan states that an estate or interest in land shown on the plan is discharged or otherwise extinguished, whether wholly or in respect of part only of that land, amendment of the plan by the Registrar-General operates to discharge or otherwise extinguish that estate or interest wholly or in respect of that part of the land.

(4) Where amendment of a plan will operate to vest an estate or interest (other than an estate in fee simple or an easement referred to in section 25) in a person, the terms on which the estate or interest will be held must be specified by including them in, or attaching them to, the application or by reference to another registered instrument.

(5) Where the estate or interest that vests on amendment of the plan is an easement, the plan (or another plan referred to in the plan) must delineate the easement and the plan or the application for amendment must specify which land is the dominant land (if any) and which land is the servient land in respect of the easement.

(6) Where duty is payable under the Stamp Duties Act 1923 in relation to two or more transactions that will be effected by the amendment of a plan of community division, each of the transactions will be taken to be effected by a separate instrument for the purpose of assessing duty.

Subject to any provision to the contrary in an application for the amendment of a deposited community plan, the following provisions apply where one or more pieces of land are merged upon the amendment of the plan—

(a) subject to paragraph (b), if one of the pieces of land is subject to a registered encumbrance (other than a life estate, a lease or an easement) the whole of the land formed by the merger is subject to the encumbrance;

(b) if an encumbrance (other than an easement or statutory encumbrance) is registered over a lot, or part of a lot, that is merged with land that remains common property after, or becomes common property upon, the amendment of the community plan, the encumbrance is discharged in respect of that lot or part lot;

(c) if one, but not all, of the pieces of land is subject to a life estate or a lease, the life estate or lease is discharged by the merger in so far as it affects that piece of land.

(1) This section applies if a primary plan is to be amended by the inclusion of land from outside the primary parcel or by the removal of land from the primary parcel.

(2) If part but not the whole of an allotment is to be included in the primary parcel or land is to be removed from the parcel, the application under this Division will be taken to be an application for division under Part 19AB of the Real Property Act 1886 as well as being an application under this Division and accordingly—

(a) both this Division and Part 19AB apply to, and in relation to, the application; and

(b) if part of an allotment is to be included from outside the parcel, the application must be made jointly by the community corporation and the registered proprietor of the allotment to be divided; and

(c) the Registrar-General may direct that a combined plan or a substituted part or parts of the plan or plans to be amended be lodged with the application.

(3) Subsection (2) does not apply where the only transfer of land to or from the parcel is from or to the primary community parcel of another scheme.1

Explanatory Note—

1 Pieces of land that can be dealt with separately are created by division under Part 19AB of the Real Property Act 1886 (allotments) or by division under this Act (lots). If part of an allotment is to be incorporated into a primary community parcel or part of a primary parcel is to be merged with an allotment, deposit of a plan of division will be required under Part 19AB. If however the only land involved in the alteration of the boundaries of a primary parcel is land that forms part of, or will form part of, another primary parcel, division under Part 19AB is not applicable.

(1) The registered proprietor of an estate in fee simple in a development lot may apply to the Registrar-General for the division of the development lot in pursuance of the development contract and for the consequential amendment of the community plan.

(2) The application must be in a form approved by the Registrar-General and must include such information as the Registrar-General requires.

(3) The application must be accompanied by—

(a) the fee prescribed by regulation; and

(b) a new plan to be substituted for the existing plan; and

(e) a certificate from a licensed surveyor in the form prescribed by regulation (which must be endorsed on the plan) certifying that the plan has been correctly prepared to a scale determined by the Registrar-General in accordance with this Act; and

(f) a certificate from a land valuer in the form prescribed by regulation (which must be endorsed on the schedule of lot entitlements) certifying that the schedule is correct (the Registrar-General may refuse to accept the certificate if given more than six months before the application is lodged); and

(g) any instrument, duly executed, that is to be registered on substitution of the plan; and

(h) such other documentary material as the Registrar-General may require.

(4) The plan—

(a) must be in a form approved by the Registrar-General; and

(b) must divide the development lot in the manner required by the development contract; and

(c) must delineate the boundaries of the land and lots and common property into which the community parcel is divided in a manner that allows those boundaries to be ascertained; and

(d) must designate each lot by a distinguishing number; and

(e) must have annexed to it a schedule of lot entitlements in relation to the lots in a form approved by the Registrar-General; and

(f) must as far as practicable delineate the service infrastructure (but not that part of the service infrastructure within the boundaries of a community lot if it does not provide a service to any other lot or the common property); and

(g) must delineate the streets, roads, thoroughfares, reserves or similar open spaces (if any) that are, or will on amendment of the plan be, vested in a council or prescribed authority or that have reverted or will revert to the Crown; and

(h) must delineate the easements (if any) of a kind referred to in section 25; and

(i) must comply with any requirements stipulated by the Registrar-General.

(4a) The Registrar-General must not deal with the application unless satisfied that the certificate from the State Planning Commission required by section 138 of the Planning, Development and Infrastructure Act 2016 has been given, and is in force, in relation to the proposed development of the land.

(4b) The certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 expires at the expiration of 1 year after the application was lodged with the Registrar-General unless the Registrar-General extends the life of the certificate.

(5) Where—

(a) the application is made in accordance with this Act; and

(b) the requirements made by or under this Act in relation to the application have been satisfied; and

(c) the plan conforms with the requirements of this Act,

the Registrar-General may substitute the plan for the plan previously deposited and the provisions of this Act relating to the deposit of a plan apply in relation to the plan.

(6) The Registrar-General may permit the applicant to lodge a sheet or sheets to be substituted for a sheet or sheets of the deposited plan or to be added to it instead of lodging a complete plan to be substituted for the existing plan.

(7) Where common property is created by the division of a development lot under this section, the Registrar-General may cancel the certificate of title for the existing common property and issue a new certificate for the existing and newly created common property.

(1) The ERD Court may, on application under this section, order the amendment of a community plan.

(2) An application may be made under this section by—

(a) the community corporation; or

(b) the owner of a community lot or a development lot; or

(c) a person who holds a registered encumbrance over a community lot or a development lot; or

(d) in the case of a strata scheme—an insurer of a community lot or any part of the common property.

(3) Such an application may only be made—

(a) for the purpose of correcting an error in the plan; or

(b) for the purpose of varying the lot entitlements of the lots; or

(c) in the case of a strata scheme—for the purpose of achieving amendments that have become desirable in view of damage to buildings within the strata scheme; or

(d) for the purpose of achieving any other amendments that are desirable in the circumstances of a particular case.

(3a) If it appears to the Court that the proposed amendment of the community plan could adversely affect a person who is not a party to the proceedings, the Court should not order the amendment unless the Court is satisfied that the person has been notified of the possibility that such an order could be made and has been given a reasonable opportunity to make submissions to the Court in relation to the matter.

(3b) In determining an application under this section the Court must have regard to the matters (if any) prescribed by regulation.

(4) The ERD Court may, on an application under this section, make one or more of the following orders—

(a) an order for amendment of the community plan;

(b) if the plan is a primary or secondary plan—an order for amendment of a secondary or tertiary plan (if any) that divides a primary or secondary lot;

(c) any further orders that may be necessary to achieve justice between those affected by the amendment;

(d) incidental or ancillary orders.

(5) Where an order for the amendment of a community plan is made, the Registrar-General must, on lodgement of a copy of the order and any other documentary material the Registrar-General requires, amend the plan in accordance with the order.

(1) Two or more deposited community plans may be amalgamated to form a single community plan under this division subject to the following restrictions—

(a) a primary plan can only be amalgamated with another primary plan and then only if the primary parcels are contiguous;

(b) a secondary plan can only be amalgamated with another secondary plan and then only if both the secondary parcels form part of the same primary scheme;1

(c) a tertiary plan can only be amalgamated with another tertiary plan and then only if both the tertiary parcels form part of the same secondary scheme;1

(d) a strata plan can only be amalgamated with another strata plan.1

(2) An application for amalgamation must be made jointly by the community corporations affected by the proposed amalgamation in a form approved by the Registrar-General.

(3) The application must be accompanied by—

(a) the fee prescribed by regulation; and

(c) a plan of community division prepared in accordance with this Act that divides the new community parcel into the same lots and common property as the plans that it replaces; and

(d) a scheme description of the combined scheme that is consistent with the scheme descriptions of the constituent schemes and is endorsed by the relevant development authority; and

(e) the by-laws for the new scheme authorised by a unanimous resolution of each applicant corporation; and

(f) a certificate from a licensed surveyor in the form prescribed by regulation (which must be endorsed on the plan) certifying that the plan has been correctly prepared to a scale determined by the Registrar-General in accordance with this Act; and

(g) a certificate from a land valuer in the form prescribed by regulation certifying that the schedule of lot entitlements annexed to the new community plan is correct (the Registrar-General may refuse to accept the certificate if given more than six months before the application is lodged); and

(h) where consequential amendments to a primary or secondary plan will be required—such plans or parts of plans as the Registrar-General may require; and

(i) such other documentary material as the Registrar-General may require.

(4) The applicants must provide evidence to the satisfaction of the Registrar-General that the application is made in pursuance of a unanimous resolution of each applicant corporation.

Explanatory Note—

1 Amalgamation of secondary or tertiary plans in different schemes can be achieved by amendment of the plans of each scheme under Division 1.

(1) The applicants must provide evidence to the satisfaction of the Registrar-General that the following persons have given their consent to the amalgamation—

(a) a person who is the owner of a community lot at the relevant time but who did not have the opportunity of voting against the resolution of the corporation authorising the proposed amalgamation because he or she was not then a member of the corporation; and

(b) the prospective owner at the relevant time of a community lot; and

(c) the owner or prospective owner at the relevant time of a development lot; and

(d) a registered encumbrancee or prospective encumbrancee at the relevant time of a community lot or a development lot; and

(e) the persons referred to in subsection (2).

(2) The consents of the following persons are required—

(a) where the plans to be amalgamated are primary plans and a primary lot is divided by a secondary plan—

(i) a person who is the owner of a secondary lot at the relevant time but who did not have the opportunity of voting against the proposed amalgamation because he or she was not then a member of the secondary corporation; and

(ii) the prospective owner at the relevant time of a secondary lot; and

(iii) the owner or prospective owner at the relevant time of a development lot in the secondary scheme; and

(iv) a registered encumbrancee or prospective encumbrancee at the relevant time of a secondary lot or development lot; and

(b) where the plans to be amalgamated are primary plans and a primary lot is divided by a secondary plan and a secondary lot created by that plan is divided by a tertiary plan or where the plans to be amalgamated are secondary plans and a secondary lot is divided by a tertiary plan—

(i) a person who is the owner of a tertiary lot at the relevant time but who did not have the opportunity of voting against the proposed amalgamation because he or she was not then a member of the tertiary corporation; and

(ii) the prospective owner at the relevant time of a tertiary lot; and

(iii) the owner or prospective owner at the relevant time of a development lot in the tertiary scheme; and

(iv) a registered encumbrancee or prospective encumbrancee at the relevant time of a tertiary lot or development lot.

(3) The consent of the owner or an encumbrancee of a lot is not required under this section if before the relevant time an instrument had been presented for registration at the Lands Titles Registration Office on the registration of which that person would cease to be the owner or an encumbrancee of the lot.

(4) The Registrar-General may dispense with the consent of a registered encumbrancee or a prospective encumbrancee in relation to an easement that will not be affected by the amalgamation.

(5) In this section—

prospective encumbrancee in relation to a lot means a person who will hold a registered encumbrance over the lot on registration of an instrument that has been presented for registration at the Lands Titles Registration Office but has not been registered;

prospective owner in relation to a lot means a person who will be the owner of the lot on registration of a transfer that has been presented for registration at the Lands Titles Registration Office but has not been registered;

relevant time means the time at which the application for amalgamation is lodged with the Registrar-General by the community corporations.

(1) Where—

(a) application is made in accordance with this Division for the amalgamation of community plans; and

(b) the requirements of this Division in relation to the application have been satisfied; and

(c) the new community plan conforms with the requirements of this Act,

the Registrar-General must deposit the new plan in the Lands Titles Registration Office.

(2) When the Registrar-General deposits a new community plan in pursuance of an application under this section—

(a) the existing deposited community plans are cancelled;

(b) the Registrar-General must assign a number to the plan;

(c) the Registrar-General must file with the plan—

(i) the new scheme description;

(ii) the by-laws for the new scheme;

(iii) the development contracts (if any) filed with the previous plans;

(d) the Registrar-General must issue new certificates of title for the lots and common property;

(e) the existing community corporations are dissolved and a new community corporation is created;

(f) the assets and liabilities of the old community corporations vest in or attach to the new corporation;

(g) the common property vests in the owners of the community lots.

(3) If—

(a) an easement is appurtenant to the common property shown on one or more (but not all) of the plans to be amalgamated; and

(b) the consent of the owner of the servient land and of all persons who appear from the Register Book to hold a registered encumbrance over the servient land (other than an easement that will not be affected) is endorsed on the application for amalgamation,

the easement will, upon amalgamation of the community plans, be appurtenant to the common property of the parcel formed by the amalgamation.

(4) On the amalgamation of two or more secondary or tertiary plans under this Division—

(a) the primary or secondary lots divided by those plans are amalgamated into a single primary or secondary lot and the lots from which that lot is formed cease to exist; and

(b) the Registrar-General must make appropriate amendments to the primary or secondary plan that created those lots.

The amalgamation of community plans does not affect the operation of a development contract except to increase the number of persons who can take proceedings for its enforcement.

(1) A deposited community plan may be cancelled—

(a) on application by the community corporation to the Registrar-General; or

(b) by order of the ERD Court.

(2) If a primary lot created by a primary plan has been divided by a secondary plan, the primary plan cannot be cancelled until the secondary plan has been cancelled and if a secondary lot created by a secondary plan has been divided by a tertiary plan, the secondary plan cannot be cancelled until the tertiary plan has been cancelled.

An application to the Registrar-General must be in a form approved by the Registrar-General and must be accompanied by—

(a) the fee prescribed by regulation; and

(b) if the application is for the cancellation of a primary plan—a plan that delineates the outer boundaries of the primary parcel; and

(d) if the plan includes a development lot or lots—

(i) a schedule of lot entitlements in a form approved by the Registrar-General setting out lot entitlements determined in accordance with section 68 for the community lots and the development lot or lots; and

(ii) a certificate from a land valuer certifying that the schedule of lot entitlements is correct (the Registrar-General may refuse to accept the certificate if given more than six months before the application is lodged); and

(e) such other documentary material as the Registrar-General may require.

(1) The corporation must provide evidence to the satisfaction of the Registrar-General that the following persons have given their consent to the application—

(a) the owners at the relevant time of the community lots and the development lots (if any); and

(b) the prospective owner at the relevant time of a community lot or a development lot; and

(c) a registered encumbrancee or prospective encumbrancee at the relevant time of a community lot or development lot.

(2) The consent of the owner or an encumbrancee of a lot is not required under this section if before the relevant time an instrument had been presented for registration at the Lands Titles Registration Office on the registration of which that person would cease to be the owner or an encumbrancee of the lot.

(3) The Registrar-General may dispense with the consent of a registered encumbrancee or prospective encumbrancee in relation to an easement that will not be affected by the cancellation.

(4) In this section—

prospective encumbrancee in relation to a lot means a person who will hold a registered encumbrance over the lot on registration of an instrument that has been presented for registration at the Lands Titles Registration Office but has not been registered;

prospective owner in relation to a lot means a person who will be the owner of the lot on registration of a transfer that has been presented for registration at the Lands Titles Registration Office but has not been registered;

relevant time means the time at which the application for cancellation is lodged with the Registrar-General by the community corporation.

(1) An application to the ERD Court for an order cancelling a community plan may be made by—

(a) the community corporation; or

(b) the owner of a community lot or a development lot; or

(c) a person who has a registered encumbrance (excluding an easement) over a community lot or a development lot.

(1a) If it appears to the ERD Court that the proposed cancellation of the community plan could adversely affect a person who is not a party to the proceedings, the ERD Court should not order the cancellation unless the ERD Court is satisfied that the person has been notified of the possibility that such an order could be made and has been given a reasonable opportunity to make submissions to the Court in relation to the matter.

(1b) In determining an application under this section the ERD Court must have regard to the matters (if any) prescribed by regulation.

(2) If the ERD Court makes an order for the cancellation of a community plan, the community corporation must lodge with the Registrar-General—

(a) an application to note the order in a form approved by the Registrar-General; and

(b) the fee prescribed by regulation; and

(c) a copy of the order; and

(d) if the plan is a primary plan—a plan that delineates the outer boundaries of the primary parcel; and

(f) if the plan includes a development lot or lots—

(i) a schedule of lot entitlements in a form approved by the Registrar-General setting out lot entitlements determined in accordance with section 68 for the community lots and the development lot or lots; and

(ii) a certificate from a land valuer certifying that the schedule of lot entitlements is correct (the Registrar-General may refuse to accept the certificate if given more than six months before it is lodged).

(1) The lot entitlement of a community lot or a development lot for the purposes of section 65(d) or 67(2)(f) is a number assigned to the lot that bears in relation to the aggregate of the lot entitlements of all of the lots defined on the community plan (within a tolerance of plus or minus 10 per cent) the same proportion that the value of the lot bears to the aggregate value of those lots.

(2) The lot entitlement of a lot must be expressed as a whole number.

(3) The unimproved value of the lots will be used to establish lot entitlements.

(4) In the case of a strata lot this will be taken to include the value of the part of the building containing or comprising the lot without taking into account the value of fixtures or other improvements.

(1) The Registrar-General must, if he or she is—

(a) in the case of an application to cancel a plan—satisfied that the application conforms with the requirements of this Act; or

(b) in the case of an order by the ERD Court for cancellation of a plan—satisfied that all terms of the order and the requirements of this Act that are to be complied with before the plan is cancelled have been complied with,

cancel the community plan by making an endorsement to that effect on the plan and making a note of the cancellation in the Register Book on every certificate affected by the cancellation.

(2) On cancellation of a community plan—

(a) the land formerly comprised in the community parcel vests in fee simple in the owners of the former community and development lots (if any) as tenants in common in proportions fixed by reference to the lot entitlements of their respective lots;

(b) a lease over a lot or the common property is extinguished;

(c) all internal easements are extinguished;

(d) an easement over a lot or the common property where the dominant land is outside the community parcel (or where there is no dominant land) is unaffected;

(e) an easement that was appurtenant to part, but not the whole, of the community parcel will be appurtenant to the whole of the land formerly comprised in the community parcel if the owner of the servient land and all persons who hold a registered encumbrance over the servient land (other than an easement that will not be affected) consent to the cancellation of the plan;

(f) the community corporation is dissolved;

(g) the liabilities of the former community corporation attach directly to the owners of the former community lots jointly and severally (but they will be entitled to contribution amongst each other in proportion to the lot entitlements of the former community lots);

(h) subject to any order of the ERD Court, the assets of the former community corporation will be divided between the owners of the former community lots in proportion to the lot entitlements of the former community lots.

(3) For the purposes of subsection (2)(a) the lot entitlements will be—

(a) where the plan to be cancelled included a development lot—those set out in the schedule lodged with the application for cancellation or for noting the Court's order; or

(b) where the plan did not include a development lot—those set out in the schedule annexed to the plan.

(4) For the purposes of subsection (2)(g) and (h) the lot entitlements will be those set out in the schedule annexed to the plan.

(5) The estate vested in the owner of a former lot under subsection (2)(a) will be subject to—

(a) an easement (other than an internal easement) over any of the former lots or common property; and

(b) any encumbrance (other than a lease) that was, immediately prior to the cancellation of the community plan, entered on the certificate of his or her lot.

(6) If when a strata plan was deposited in the Lands Titles Registration Office an easement was partially extinguished so as not to pass through a strata lot created by the plan, the easement will be reinstated on cancellation of the plan if a request for reinstatement is made to the Registrar-General by the registered proprietors of the servient land and the dominant land (if any).

(7) On cancellation of a primary plan, the primary parcel becomes an allotment for the purposes of Part 19AB of the Real Property Act 1886 but if that land was comprised of two or more allotments before division under this Act those allotments are not revived.

(8) The cancellation of a plan of community division revokes the by-laws of the community scheme and discharges the development contract or contracts (if any) included in the scheme.

(9) For the purposes of subsection (2), the owner of a former lot is the person who was the owner of the lot immediately before the cancellation of the plan.

(10) In this section—

internal easement means an easement where both the dominant and servient land comprised the whole or part of a lot or the common property within the community parcel.