The three property law issues to pay more attention to when planning your development

There are some unique complexities associated with land throughout Newcastle and the Hunter which can impact on land use options.  In this article, Principal of our Property teamElizabeth McDonald, considers three complexities which are often not given adequate attention in development planning.

1. Qualified and limited title

A significant proportion of properties, particularly residential properties, across the Newcastle region are “limited title” or “qualified title”.  The limitation means that there is still doubt as to the exact boundary locations. The qualification indicates that there may be interests in the property that have not been noted on the title.  A title search for the property will show whether a limitation or qualification has been registered.

On a day to day level, a limitation or qualification tends to be ignored.  If the use and ownership of the property remain unchanged, a landowner will rarely have cause to consider the title to the property at all.

Despite this, there is a benefit in being aware of whether your property is affected by a limitation or qualification as they can become important if you or your neighbour decide to extend or develop their property.

Quite simply, the options for a property development may be materially impacted if the exact boundaries of the property are different to those shown on the deposited plan or established by the fence line.  Development possibilities may also expand if an earlier easement or other entitlement was overlooked when the property was converted to Torrens title.

This is a complex area of law and the intricacies of how it works are beyond the scope of this article.  Suffice to say, we have seen clients add value to their property (or avoid losing value) by seeking expert legal and surveying assistance in ascertaining these matters.

2. Native title

There are currently three large native title claims affecting the Hunter region.  While these claims do not affect freehold titles, they are relevant to parties holding a Crown lease or pastoral lease or requiring access to such lands for development.  Examples of clients who we have seen affected by these claims include:

an individual with a domestic waterfront licence for a boat ramp;

a retirement village owner which was using a number of titles, including a crown lease, for its aged care development; and

a prospective buyer of rural land interests which included a pastoral lease.

3. Aboriginal cultural heritage

Due to the importance of Newcastle and the Hunter to Australia’s first people, Aboriginal cultural heritage is still found throughout Newcastle CBD and across the Hunter region.  Understanding the law regarding Aboriginal cultural heritage protection and undertaking early consultation is critical in avoiding delays (and the associated holding costs) in property development.

The law and consultation requirements in respect of Aboriginal cultural heritage are complex.  Several reform initiatives agendas have been announced over the last 5 years, but have not led to any substantive changes, leaving Aboriginal cultural heritage still part of the National Parks and Wildlife Act 1974 (NSW).

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.