Australia: Environmental Planning and Assessment Amendment (Paper Subdivisions) Regulation 2013

The Environmental Planning and Assessment Amendment (Paper Subdivisions) Regulation 2013 (Regulation) and corresponding paper subdivision provisions now contained in Schedule 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) (PS Amendments) commenced on 8 March 2013. The effect of these amendments is considered below.


"Paper subdivisions" is a term used to describe land which has been subdivided by way of survey and registered plans, but the lots only have recognition on paper and usually have no roads, drainage or utility services. Generally, such land has little development potential as a result of non-urban land use zoning and fragmented ownership.

Land in paper subdivisions is often held in multiple ownership by investors hoping to achieve an uplift in value when (if) the land is ever properly serviced for development.


The PS Amendments enable the Minister for Planning and Infrastructure (Minister) to make a Subdivision Order, which confers specified functions on a relevant authority, such as a local council, Landcom or other specified body.

Those functions include the power to carry out subdivision works, enter and deal with land (including the acquisition of land by agreement or compulsory process) and the requirement for the payment of development contributions. These powers are designed to allow a relevant authority to carry out the provisions of a Development Plan (which are considered below).

The Minister may only make such a Subdivision Order if:

  1. the Minister is of the opinion that it is desirable to do so to promote and co-ordinate the orderly and economic use and development of the land affected by the order;
  2. the land has been subdivided and is held by more than one owner and the Minister is satisfied that the land is land for which no provision or inadequate provision has been made for subdivision works;
  3. that land is subject to an environmental planning instrument, or a planning proposal, that will facilitate the proposed planning purpose;
  4. the Minister has consulted with the proposed relevant authority, any other Minister responsible for that authority and the council of the area in which that land is situated;
  5. the Minister is satisfied that a development plan for that land has been prepared by the relevant authority in accordance with this Schedule; and
  6. the Minister has considered any provisions of the development plan that modify or disapply the provisions of Division 4 of Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991; and
  7. at least 60% of the total number of owners of that land, and the owners of at least 60% of the total area of that land, have consented to the proposed development plan.


A particular pre-condition to the making of a Subdivision Order is the preparation of a Development Plan, which may occur on the initiative of an authority or at the Minister's direction. A Development Plan must include:

  • a proposed plan of subdivision for the land;
  • details of subdivision works to be undertaken for the land;
  • details of the costs of the subdivision works and of the proposed means of funding those works;
  • details of the proportion of those costs to be borne by the owners of the land and of the manner in which the owners may meet those costs (including details of any proposed voluntary land trading scheme, voluntary contributions, compulsory land acquisition or compulsory contributions);
  • details of any voluntary land trading scheme or voluntary contributions or, if voluntary measures are not agreed to by owners, of compulsory land acquisition or compulsory contributions;
  • rules as to the form of compensation for land that is compulsorily acquired and how entitlement to compensation is to be calculated;
  • rules as to the distribution of any surplus funds after the completion of subdivision works for the land; and
  • any other matters prescribed by the Regulation.

The Regulation also requires that a Development Plan includes:

  • the land value of the land as determined by the Valuer-General under the Valuation of Land Act 1916; and
  • if the development is to be staged, a description of the proposed stages.


Authorities are required to consult with any public authorities likely to be affected by a proposed Development Plan as well as any local councils in control of land the subject of the plan. Authorities are also encouraged to undertake preliminary consultation with owners of land. Though this is not a legislative requirement, the need for 60% of landowners to consent to a Development Plan is likely to be a sufficient incentive for a more rigorous consultation process.

When an authority proposes to adopt a Development Plan, it must comply with certain notification requirements and make the Development Plan publicly available.

After complying with the stipulated notification requirements, the authority must conduct a ballot to obtain the requisite consent of landowners.


A Development Plan may provide that an owner of land is required to make a reasonable monetary contribution for the provision, extension or augmentation of subdivision works and for the Development Plan costs. To meet this requirement, land may be dedicated or traded to, or compulsorily acquired by, a relevant authority in lieu of the payment of monetary contributions.

Where an owner refuses to make a required monetary contribution, that amount is recoverable in a court as a debt due to the relevant authority.


The PS Amendments allow a Development Plan to modify, or render inapplicable, the provisions of Division 4 of Part 3 of the JTC Act. This includes section 54(1) of the JTC Act which states that the amount of compensation to which a person is entitled under the JTC Act is such amount as "will justly compensate the person for the acquisition of the land".

Where a Development Plan so provides, it must contain replacement rules which apply fairly to all landowners and be comprehensive enough to replace the JTC Act provisions which they are substituting, including mechanisms for the calculation of compensation.

The stated goal of this amendment is to allow for non-monetary compensation, such as works in-kind or other benefits accruing to land held by land owners, to be provided in lieu of statutory monetary compensation under the JTC Act.


Two further consequential amendments have been made as a result of the creation of Subdivision Orders and Development Plans.

Firstly, any planning certificate issued pursuant to section 149 of the EPA Act is now required to indicate whether a Subdivision Order or Development Plan applies to the land.

Secondly, any assessment of a development application will now be required to take into account the provisions of any Subdivision Order and Development Plan which includes the land the subject of the development application.


The PS Amendments represent a positive step forward for the development of fragmented land holdings throughout New South Wales. The legislation grants broad powers to the Minister and specified authorities to coordinate the development of land. While not specifically provided for in the PS Amendments, there is scope for 'developer initiated' Development Plans in paper subdivision areas, where the relevant authority gives its consent to this course of action.

In order to assist in the understanding of the PS Amendments, the Department has released a draft "Guidelines on Planning for Paper Subdivisions". That document can be accessed here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.