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Closed road plans 2002/14

Issued March 2003 - updated May 2010

1. Introduction

Deposited plans defining parcels of existing road (public roads, Crown roads and other roads depicted in registered deposited plans) that are intended to be closed, must be lodged with NSW Land Registry Services to supply a “parcel identity” for gazettal of the closure and subsequent title issue.  Traditionally, these plans were prepared in the local lands offices of the Crown Lands Division of the NSW Land Registry Services (Crown Lands) and forwarded by them for registration with NSW Land Registry Services (NSW LRS).  However, in recent years the plans have been contracted out to private surveyors and lodged by law stationers and conveyancing firms.

It is the agreed policy of Crown Lands and NSW LRS for titles to be issued upon registration of new Deposited Plans for proposed road closure.  As gazette action to close the road has not yet taken place the new titles include a notification that the “The land above described is public road”.  This practice facilitates the registration of a Section 88B Instrument, the creation of new easements as part of the plan registration and folio creation process, and removes the requirement for the preparation of “dummy” records.  Gazettal action for the road closure will subsequently take place when all necessary agreements and contracts are finalised between Crown Lands, the road authority and the relevant adjoining landowners.  Following gazettal Crown Lands will lodge a Request (Form 11R) to enter the road closure on title and to delete “The land above described is public road” notification.  A transfer of the closed road to the adjoining owner may also be supplied at that stage.

As part of the road closure process Crown Lands has accepted responsibility to ensure that the parcel of land intended to be sold does indeed constitute a public road that:

  • has been formally dedicated to the public and vested in the local council or other road authority,
  • comprises a common law road used by the general public and maintained by the local council, or
  • is a crown public road (portion roads, reserved roads etc) under the control of Crown Lands.

The local lands office serves notice of the proposed road closure on the adjoining landowners and any other affected parties.  Consequently, NSW Land Registry Services Legal Services has approved the CL45-36 form as sufficient evidence as to the status of the road and that new titles may be created in the name of the Crown or the stated roads authority prior to the gazettal of the road closure.

Note  It should be understood that Crown Lands regards all land under their control as “Crown Land” irrespective as to whether the fee of the parcel is Torrens Title, Old System Title or Crown Title.  The Plan Lodgment Form supplied with the new plan often only makes reference to “Crown Land” even though the fee of the road remains as residue in a cancelled certificate of title or Old System deed.  Consequently, as the requirements for road closure plans vary with each title system, lodgment officers and plan examiners must confirm the particular title system for the road parcel prior to examination of the plan.

The plan requirements for each titling system are set out hereunder.

2. Crown Title land

2.1 Documentation required

The local lands office will supply a completed CL45-36 form (signed by an authorised officer of Crown Lands) authorising First Title creation. The CL45-36 will state that the new title will issue in the name of “The State of New South Wales” and specify any conditions or restrictions that are to be endorsed thereon.  The Crown Lands file reference should be shown on the CL45-36 form.

2.2 Subdivision Certificate

A plan for First Title Creation is exempt from requiring a subdivision certificate (see s.23G(b) Conveyancing Act 1919).  This exemption is also considered to apply to first titles issuing on closed road plans where the fee of the road remains as unalienated Crown title land.  A statement referring to the exemption pursuant to s.23G(b) should be added to the plan above the subdivision certificate panel.

2.3 Crown Lands consent

All road closure plans must have the consent of Crown Lands Division regardless of the titling system or the road authority.  Evidence of their approval may be provided by either:

  • having the original plan signed in the Crown Lands Division Approval panel on the plan, or
  • lodging a copy of the plan endorsed with this approval.

2.4 Plan heading

The heading on the new plan should refer to:

“PLAN FOR FIRST TITLE CREATION AND ROAD CLOSING UNDER THE ROADS ACT 1993”

2.5 Signatures

New deposited plans for road closure purposes should be signed by an authorised officer of Crown Lands Division in the appropriate panel on the plan (see above).  However, if the road intended to be closed has been dedicated to the public and is under the care and control of a local council or other road authority (and the new title is to issue in their name) then an authorised officer of that council or road authority must also sign the plan.

Similarly, if a local council or other authority is to have the right to release vary or modify a new restriction as set out in a Section 88B Instrument, then that instrument should be signed by an authorised officer of the council or authority.  A council or public authority may also (if appropriate) supply consent to the release, variation or modification of an easement set out in a Section 88B Instrument.

2.6 Exception of Minerals

If it is intended for the new title to issue for the road intended to be closed to be subject to an exception of all minerals to the Crown, then an appropriate reference will be included in the CL45-36 form lodged with the plan.

Note For closure of Crown roads subject to a road enclosure permit – see Practice Statement No. 2006/1.

Old System Title

3.1 Documentation Required

Crown Lands will supply a completed CL45-36 form (signed by an authorised officer) setting out the current registered proprietor and any restriction notifications to be entered on the new title. The CL45-36 will indicate whether the new title will issue in the name of the council (public roads and roads in the care of the council) or in the name of some other road authority.

Note That if the road intended to be closed is “unformed” and not in use by the public, on closure the fee of the land vests in the Crown – see s.38(2)(b) Roads Act 1993. Crown Lands will complete the “Tick box” on the CL45-36 Form to indicate that the council has been informed that the road will vest in the Crown.

“Roads” shown in old plans NOT accepted by the Council and NOT dedicated to the public remain as part of the fee comprised in the last deed.  Title to these “roads” may only be claimed by the preparation and lodgment of an appropriate Primary Application or Resumption.

3.2 Subdivision Certificate

Unless the proposed closed road defined in the new plan constitutes the entirety of an existing deed (or the entirety of the residue of an existing deed) new boundaries will be created and a completed subdivision certificate will be required.  New roads created in plans of subdivision of Old System land are considered to be individual parcels for subdivision certificate purposes (see also Para. 4.2)

3.3 Crown Lands Division consent

All road closure plans must have the consent of Crown Lands Division regardless of the titling system or the road authority.  Evidence of their approval may be provided by either:

  • having the original plan signed in the Crown Lands Division Approval panel on the plan, or
  • lodging a copy of the plan endorsed with this approval.

3.4 Conversion Action

Closure of a road dedicated to the public

NSW Land Registry Services Legal Services has confirmed that the CL45-36 documentation (and Crown Lands’ requirements for a road closure application) provide sufficient evidence for NSW LRS to convert the parcel to Torrens Title without the necessity of a formal Statement of Title Particulars.  A Conversion Action to convert the parcel will be raised in the usual manner and the new title (unqualified) will be created in terms of the information set out in the CL45-36 document.  The CL45-36 form will constitute the evidence to be filed with the Conversion Action papers.

Closure of a road NOT dedicated to the public

Where the road intended to be closed has not been dedicated to the public and the local council is not prepared to publish a notice in the Government Gazette dedicating the land as public road, the fee of the site remains in the last Old System deed.  Road closure action is not appropriate in this instance and title to the parcel can only be obtained by means of a Primary Application (claiming the land by possession) or by Resumption.  Where the road is used by the public and the council has accepted responsibility for its care and maintenance, appropriate evidence to establish ownership should be lodged with the CL45-36 documentation.  A Conversion Action will then be raised and a new (unqualified) certificate of title will be created in the usual manner.

3.5 Plan Heading

The heading on the new deposited plan should refer to:

“PLAN OF PART OF _ _ _ _ _STREET FOR TITLE ISSUE

AND ROAD CLOSING UNDER THE ROADS ACT 1993

(BEING LAND COMPRISED IN DEED BOOK_ _ _ NO_ _ _)”

or

(BEING LAND ACQUIRED BY GOV. GAZ. DATED_ _ _ _ FOL_ _ _ _)’

3.6 Signatures

New deposited plans for road closure purposes should be signed by an authorised officer of Crown Lands in the appropriate panel on the plan.  However, if the road intended to be closed has been dedicated to the public and is under the care and control of a local council or other road authority (and the new title is to issue in their name) then an authorised officer of that council or road authority must also sign the plan.

Similarly, if a local council or other authority is to have the right to release vary or modify a new restriction as set out in a Section 88B Instrument, then that instrument should be signed by an authorised officer of the council or authority.  A council or public authority may also (if appropriate) supply consent to the release, variation or modification of an easement set out in a Section 88B Instrument.

3.7 Exception of Minerals

As any minerals etc were excluded by the original Crown Grant, no new reservations and/or conditions can be included in the new title for the road (unless the fee of the road has been vested in the Crown).  No reference to “Land Excludes Minerals” should be included in the CL45-36 form unless it refers to an exclusion(s) from the original Grant.

3.8 Australian Agricultural Company Grant land

Roads in the lands granted to the Australian Agricultural Company in 1847 (Shires of Gloucester and Great Lakes) that are shown in DP90000 series plans etc, may only be closed if they have been subsequently dedicated to the public as public road.  In this regard the dedication must have taken place by either the publication of an appropriate notice in the Government Gazette or by means of a successful claim of dedication by prescription.  If this has not occurred, the fee of the “road” remains Old System land standing in the name of the Company.  A title to the site can only be obtained by means of a primary Application claiming the land by possession adverse to the Company.

The road can only be opened by prescription if:

  • a letter from the Company is available indicating their express intention to dedicate the road to the public as public road, and
  • the road has been constructed and the relevant Local Council has taken responsibility for its maintenance and upkeep.

Some Australian Agricultural Company plans within the former Shire of Stroud (now part of the Shire of Great Lakes) bear a notation to the effect that a letter of intention to dedicate has been forwarded to the council.  In these cases, the notation will constitute the requisite evidence for the intention to dedicate the road to the public, however, the road must be constructed and in use before a claim of dedication by prescription will be accepted.

4. Torrens Title

4.1 Documentation Required

Closure of a road dedicated to the public

Any road under the care and control of a local council, however occurring will, upon closing, necessitate the local lands office to prepare a CL45-36 Document for lodgment with the plan with NSW Land Registry Services.  The CL45-36 will specify that the new title will issue in the name of the council (or other road authority) subject to any specified conditions and/or restrictions.

Note That if the road intended to be closed is “unformed” and not in use by the public, on closure the fee of the land vests in the Crown – see s.38(2)(b) Roads Act 1993. Crown Lands will complete the “Tick box” on the CL45-36 Form to indicate that the council has been informed that the road will vest in the Crown.

Closure of a road NOT dedicated to the public

Roads shown in plans registered before the commencement of the Local Government Act (January 1 1920) often have not been dedicated to the public.  As part of the Closure Application Crown Lands must ensure that the Council has accepted these roads as being under their care and control.  If so, an appropriate notice should be prepared for publication in the Government Gazette dedicating the road to the public as public road.  Crown Lands will then prepare the appropriate CL45-36 documentation.  If the council has not accepted control of the road the fee remains as residue in the old cancelled certificate of title in the name of the original subdivider.  Consequently, these parcels cannot be considered “roads” and road closure is inappropriate.  The plan can instead be accompanied by an Application based on Possession (together with the requisite evidence), and if accepted, a new title will then be issued in the name of the applicant.

Roads shown in NSW Land & Housing Corporation plans remain in their name until such time as they are dedicated to the public by a notification in the Government Gazette.  Consequently unless previously gazetted as a public road, road closure plans defining roads (or pathways) shown in a NSW Land & Housing Corporation plan are treated as plans of subdivision of the residue of the cancelled certificate(s) of title and not as road closure.

4.2 Subdivision Certificate

Unless the proposed closed road defined in the new plan constitutes the entirety of an existing certificate of title (or the entirety of the residue of an existing certificate of title) new boundaries will be created and a completed subdivision certificate is required.

Note  New roads, road widening parcels and pathways are considered individual parcels of land if they were separately referred to in the dedication statement on the original plan (i.e. “It is intended to dedicate John Street, Jane Road and the pathways ……..”).  Consequently, a new plan that intends to close the entirety of one of these separate parcels will not require subdivision consent.  However, if new internal boundaries are being created (eg splitting a pathway in halves for future consolidation with each adjoining parcel) a subdivision certificate is required.

4.3 Crown Lands Division Consent

All road closure plans must have the consent of Crown Lands Division regardless of the titling system or the road authority.  Evidence of their approval may be provided by either:

  • having the original plan signed in the Crown Lands Division Approval panel on the plan, or
  • lodging a copy of the plan endorsed with this approval.

4.4 Plan Heading

The heading on the new deposited plan should refer to:

“PLAN OF SUBDIVISION OF PART OF _ _ _ _ STREET

FOR TITLE ISSUE AND ROAD CLOSURE UNDER THE

ROADS ACT 1993 (COMPRISED IN VOL_ _ _FOL_ _ _)"

On registration of the new deposited plan, the cancellation notification endorsed on the existing certificate of title will be superseded with a new notification that includes i.a. reference to the new parcel(s) being created eg:

“FOLIO CANCELLED. NEW FOLIOS CREATED FOR LOTS 1 TO 12

DP_ (Original Subdivision) _ AND LOT 1 DP _ (Closed Road Plan)_ ”

4.6 Signatures

New deposited plans for road closure purposes should be signed by an authorised officer of Crown Lands in the appropriate panel on the plan.  However, if the road intended to be closed has been dedicated to the public and is under the care and control of a local council or other road authority (and the new title is to issue in their name) then an authorised officer of that council or road authority must also sign the plan.

Similarly, if a local council or other authority is to have the right to release vary or modify a new restriction as set out in a Section 88B Instrument, then that instrument should be signed by an authorised officer of the council or authority.  A council or public authority may also (if appropriate) supply consent to the release, variation or modification of an easement set out in a Section 88B Instrument.

4.7 Exception of minerals

As any minerals etc were excluded by the original Crown Grant, new reservations and/or conditions cannot be included in the new title for the road (unless the fee of the road vests in the Crown).  Reference to “Land Excludes Minerals” etc cannot be included in the CL45-36 form unless it refers to an exclusion(s) from the original Grant.

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