Northern Territory Second Reading Speeches

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LAKE BENNETT (LAND TITLE) BILL 2004

Bill presented and read a first time.

Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill now be read a second time.

The purpose of this bill is to address the unsatisfactory state of land title in respect of the Lake Bennett locality. In order for members to appreciate this bill, it will be necessary for me to detail the history of the Lake Bennett area regarding the land transactions which have given rise to uncertain and unsatisfactory land title in the area.

Lake Bennett is an artificial lake which was created in the mid-1970s on privately-owned freehold land approximately 80 km south of Darwin. In the early 1980s the land around the lake and the lake foreshore was subdivided into various parts. Between 1987 and 1996, the then owner of the land, Nazime Pty Ltd, sold most of the land that surrounded the lake. Each section of land adjoining the lake was granted a registered easement giving the new owners free and uninterrupted passage across, and use of, the lake and foreshore. Most sections of the surrounding land sold were also the subject of a registered covenant restricting the use of each section to a single dwelling, and limiting the clearing of native vegetation. The covenants were enforceable against the owners of the sections surrounding the lake, by the owner of the lake itself, and its foreshore. The main exceptions were section 95 which, until recently, had been owned by the original developer, and other land which was never owned by the original developer.

In 1996 and 1997, the lake and surrounding foreshore were subdivided into two sections and approval was given to develop the land. One of the sections included the lake, the area upon which the resort now exists, and the dam wall. The second section was comprised by the remaining foreshore area of the lake. This approval permitted the development of the foreshore area as a staged condominium development under the Unit Titles Act. The outcome of such a development is corporately controlled common property, with a series of mutual obligations binding on the developer and on future owners of units created under the subdivision. It is significant to note that such developments take place in stages with progressive release of titles to the purchasers.

Such purchasers obtain title on the basis of rights and expectations embodied in the disclosure statement lodged with the Registrar-General by the land's developer. The subdivision and development approval necessarily included planning approval under the Planning Act, building approvals in relation to the actual construction of bungalows which had been permitted under the planning approval, and the registration of a disclosure statement.

A disclosure statement under Part IV of the Unit Titles Act sets out the rights and obligations of a land developer in respect of land during the course of development. It represents a collection of binding obligations on the developer that, if met, will result in titles for units being issued by the Registrar-General under the Real Property (Unit Titles) Act. The disclosure statement in respect of the development of the lake and foreshore areas was registered by the Registrar-General.

There were problems with the registration of the disclosure statement which included: one, that the land sought to be subdivided and developed was subject to registered easements in favour of the owners of each adjoining section; and two, the consent of each of the owners of adjoining lots had not been obtained and included with the proposal for the subdivision and development as required under the Unit Titles Act.

Following the registration of the disclosure statement and the issue of the first of the titles for units which had been erected upon the foreshore of the lake, it became apparent that there had been a failure to comply with some of the requirements of the land titles legislation. The former government attempted to rectify some of these problems by the enactment of the Real Property Amendment (Unit Titles) Act 1998 on urgency. The two main effects of the act were as follows:

· it removed the apparent need for consent to be obtained from all persons with interests in land where the interest would not be affected by the subdivision; and
· it validated the registration of the initial Lake Bennett disclosure statement.

In 1998, the Registrar-General refused an application by the developer to vary the original disclosure statement because the developer had again failed to obtain the required consents from each easement holder. That decision led to various court cases, the nett outcomes of which were:

· that the access and use of easements held by owners of lots adjoining the lake were determined to be valid. The validity of the easements meant, and continue to mean, that the consent of each easement holder is required in order for the foreshore land to be developed; and
· the Registrar-General is precluded from approving any variation of a disclosure statement including an extension of time for the completion of the project without the consent of all of the holders of the easements over the affected land.

It has also been noted in more recent times that the building permits cannot be issued without consent of the holder of each easement over the subject land.

In summary, the current position in relation to land title in the Lake Bennett locality is:

· there is a partly completed condominium development around the edge of Lake Bennett. The development cannot be completed because, amongst other things, no owner of the undeveloped parts of the lake and foreshore will ever be likely to obtain the necessary consents from the easement holders to complete the remainder of the development. This situation creates long-term problems for the owners of existing units in terms of their obligations as members of the body corporate;

· no building alterations can be made to any of the buildings except with the approval of each of the owners of easements over the area;

· potentially, the owners of the easement could take legal action to remove all of the building works constructed in apparent breach of rights associated with the easements;
· there are legal actions on foot by the liquidator of the original developer and its principals against the Northern Territory. These legal actions allege that the developer was advised that the development could proceed without the consent of the easement holders; and
· there has been action by the easement holders against the Northern Territory seeking compensation for the registration of the disclosure statement and the unit plan without their consent.

One of the basic features of Australia's economic and social framework is the Torrens Land Title system. That system seeks to provide for certainty of title and consequential ease in dealing with land. Certainty of land title is the usual outcome of planning, building and land titles processes. However, in the Lake Bennett location, these processes have failed. They have produced a land development that is dysfunctional and which can only worsen over time.

It should be remembered that each of the easement holders could have taken action in the courts to prevent the erection of buildings upon their easement and, accordingly, to protect their own interest. In response to the unsatisfactory state of the land title in the Lake Bennett locality, the Northern Territory has funded a mediation between each of the affected parties, including the Northern Territory. That mediation has resulted in a broad understanding and agreement as to what should be the end result of land ownership issues. The adjustment of interest in land is a necessary part of reaching the desired end result. Some land-holders may seek compensation for the adjustment of their interest. The majority of financial issues have been settled following the process of mediation.

Additionally, I note that the land ownership is not fixed. Over time, land is bought and sold, with the consequence that there are new people who become affected by the issues. The understanding and agreement reached between each of the affected parties involved in the mediation is embodied in the Lake Bennett (Land Title) Bill, the operation of which I will now address.

The Lake Bennett (Land Title) Bill facilitates the various intricate land transactions required to adjust the interests of the land-holders to a point where they are no longer inconsistent with one another, nor generally uncertain. The bill facilitates those transactions by providing for the preparation and registration of instruments relating to land in the Lake Bennett locality in accordance with the terms of compromise reached through the mediation process by the parties involved in that process.

The bill provides that those transactions are to be exempt from stamp duty and lodgement fees which would normally accompany them. That exemption is provided for in the interest of fairness and equity to the land-holders. The land-holders in the Lake Bennett locality are not transferring ownership of their land, nor are they creating any new interests in land. Rather, the vast majority of land-holders recognise the benefit of a secure title provided for under the bill. These land-holders have agreed on certain terms to allow for their interests to be modified in furtherance to that cause.

The bill obliges the various ministers to prepare all instruments necessary to achieve the objects of the bill, and allows, for convenience sake, for the Attorney-General to execute certain of those instruments on behalf of any person.

The bill provides for a new plan of subdivision which creates new sections for the lake and most of the foreshore, the resort, and a condominium development. The creation of the new sections allows for new easements over each of the created sections consistent with the objects of the act.

A new units plan is also provided for in the bill. The new units plan creates new lots for each existing unit on the foreshore of the lake, as well as a lot for the development area. The lot for the development area is created in order to allow up to 15 new units to be erected on land which has already been prepared for that purpose.

The bill provides for extinguishment of certain easements which currently restrict any further development of the foreshore area of the lake. Those easements are to be resurrected under the bill in a form which is consistent with the objects of the bill. The new easements are to be consistent with certainty of land title for the owners of existing units, as well as units which may be erected in future on the development area. The new easements will still provide for each owner of surrounding land the right of access to, and passage across, the lake and foreshore for recreation in those areas. The practical outcome will be that the easements which currently exist will be extinguished to the extent that they affect the resort development and the unit development other than the common property area which forms part of the unit development. The easement rights will remain over the lake and undeveloped part of the foreshore.

New service easements are created which burden the section comprised by the lake. These easements allow for the continued provision of services such as water and electricity supply and sewerage to sections on the western side of the lake.

The minister is obliged to lodge the new plan of subdivision, the new units plan, and each of the instruments of easements as soon as practicable after the commencement date of the bill. The Registrar-General is then obliged to cancel the old units plan, 97/026, and each certificate as to title for lots contained in the Lake Bennett locality. The Registrar-General is also obliged to register the extinguishment of each of the old easements. In short, each interest in land in relation to the lake and foreshore is extinguished. Each of those interests is then resurrected in a modified form by the registration of the new plan of subdivision, the new units plan, the new easements, and by the issue of new certificate as to title.

The Northern Territory has already negotiated settlements with the vast majority of the landowners in respect of any possible adverse effect this bill will or may have on their interests in land.

The bill also provides that the lake and the resort, while they are separate sections, are to at all times have identical proprietors. Neither the lake nor the resort can be sold or assigned in any way without the other. This restriction on ownership means that the resort will be responsible for monitoring the quality of water in the lake. The quality of the lake water is an asset to each landowner in the locality; however, it is obviously beneficial to have the responsibility for its monitoring vested in one owner. As the resort owner has a commercial interest in maintaining water quality, it is appropriate that the responsibility to monitor the quality of the water be vested in the resort owner. The bill ensures that the relevant minister has sufficient power to impose appropriate licence conditions on the resort owner under the Water Act which are not set in stone.

Part 3 of the bill obliges the minister responsible for the Planning Act to amend the Northern Territory Planning Scheme by revoking the Lake Bennett Area Plan and making new development provisions. The new development provisions are contained in Schedule 5 of the bill. The development provisions provide for the manner in which different sections may be developed. These provisions provide for types of development which can proceed without the approval of the consent authority, some types which can only proceed with the consent of the development authority, and for certain types of development which are altogether prohibited.

Generally speaking, the development provisions allow for low-level residential developments which are consistent with the principles of sustainable development of land and water resources. The development provisions also seek to minimise environmental degradation and pollution, and to preserve the aesthetic and natural heritage of the locality. This planning regime has not been developed in accordance with the specific requirements of the Planning Act. In fact, the consultative processes leading to this planning scheme for the land were probably much more intense and focussed than the usual processes. Accordingly, I can, with reasonable confidence, state that the planning scheme in the bill represents the planning scheme that would be developed for the land if the ordinary processes under the Planning Act had been followed. Details of the proposals are now recorded in the Record of Administrative Interests maintained by the Registrar-General. Accordingly, anyone seeking to deal with land should become aware of the proposals.

Part 3 of the bill also obliges the planning minister to issue a development permit for the development area in the terms set out in Schedule 6 of the bill. Schedule 6 allows for the erection of up to 15 new single-storey units on the eastern side of the lake. The schedule also provides for a number of other building restrictions in relation to the proposed new units, largely providing for the maintenance of the amenity and aesthetic attraction of the area.

It should also be noted that clause 23 of the bill will operate so as to freeze development and land use for the lake. The lake will, subject to minor exceptions, only be able to be used for the lawful uses in place when this legislation commences operation. Those uses generally include passive recreation. The easement conditions and water licence conditions prohibit power boats on the lake apart from in emergency situations, or where they are required for necessary works, which is also the current position.

This bill comprehensively addresses the issue as to land title and rights which have plagued owners of the property in the Lake Bennett locality for years. The passage of this bill will allow for the continuation of development of the locality in a manner which is largely acceptable to the current landowners. The rights of access to, and passage over, the lake and the recreational use of the lake and foreshore will be preserved in favour of every landowner in the locality. The inconsistency between the title to units currently existing on the foreshore of the lake and the easements over that land will cease to exist.

This bill is not a quick fix. A significant amount of time and effort has been expended negotiating to a point where a workable solution has been produced. The bill is a cooperative measure between the Northern Territory and the landowners. The bill clarifies the rights, titles and interests in relation to land in the area, and allows for continued development of the area in a manner which benefits land-holders in the Northern Territory.

Madam Speak, I commend the bill to honourable members.

Debate adjourned.

 

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