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 in NSW LRS, to supply a 'parcel identity' for gazettal of the closure and subsequent title issue. The plans are usually prepared in the regional offices of Crown Lands but they may also be contracted out to private surveyors.
As part of the road closure process Crown Lands ensures that the parcel of land (road) intended to be closed and 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.
A CL45-36 form (PDF 402.7 KB) is lodged with the plan authorising the issue of new certificates of title for the parcel(s) in the name of the Crown or stated roads authority subject to any subsisting interests. The new plans are regarded as 'subdivisions' with the new titles bearing a notification:
THE LAND ABOVE DESCRIBED IS PUBLIC ROAD
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 the new proprietor will lodge a Request form 11R (PDF131 KB) 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 then be supplied.
Crown title land
Documentation required
Crown Lands will supply the following documentation with the new road closure deposited plan.
Where the Crown remains the road authority:
- a completed CL45-36 form (PDF 247 KB) (signed by an authorised officer of Crown Lands) authorising First Title creation and setting out 'The State of New South Wales' as registered proprietor and the restriction notifications to be entered on the new title(s).
Note The Crown Lands NSW file reference must be shown.
Where the Crown road is now vested in another road authority:
- a completed CL45-36 form (PDF 247 KB) (signed by an authorised officer of Crown Lands) authorising First Title creation and setting out the appropriate road authority as registered proprietor and the restriction notifications to be entered on the new title(s).
Note The Crown Lands NSW file reference must be shown.
Minerals are normally excluded pursuant to s.171 Crown Lands Act, 1989.
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 Statements Panel on the Administration sheet of the plan.
Crown Lands consent
All road closure plans must have the consent of Crown Lands regardless of the titling system or the road authority. Evidence of approval may be provided by either:
- having the original plan signed in the Crown Lands Approval panel on the Administration Sheet of the plan, or
- lodging a copy of the plan endorsed with this approval.
Plan heading
The heading on the new plan should refer to:
PLAN FOR FIRST TITLE CREATION AND ROAD CLOSING UNDER THE ROADS ACT 1993
Signatures
New deposited plans for road closure purposes should be signed by an authorised officer of Crown Lands in the appropriate panel on the Administration Sheet of 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.
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, viz:
'Land excludes minerals - s.171 Crown Lands Act, 1989'
Old System Title land
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 form (PDF 402.7 KB) 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 '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.
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.
Crown Lands consent
All road closure plans must have the consent of Crown Lands regardless of the titling system or the road authority. Evidence of approval may be provided by either:
- having the original plan signed in the Crown Lands Approval panel on the Administration Sheet of the plan, or
- lodging a copy of the plan endorsed with this approval.
Conversion Action
Closure of a road dedicated to the public
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. A Statement of Title Particulars is not required.
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 accepts 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 created in the usual manner.
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... FOLIO...)
Signatures
New deposited plans for road closure purposes should be signed by an authorised officer of Crown Lands in the appropriate panel on the Administration sheet of 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.
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. No reference to 'Land Excludes Minerals' should be included in the CL45-36 form (PDF 402.7 KB) unless it refers to an exclusion(s) from the original Grant.
Torrens Title land
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 Crown Lands to prepare a CL45-36 form for lodgment with the plan in NSW LRS. The CL45-36 form (PDF 402.7 KB) form 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.
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 CL45-36 document will be prepared. If the council has not accepted control of the road (because it is unformed etc) the fee remains in the name of the original subdivider as set out in the old cancelled certificate of title. Consequently, these parcels cannot be considered 'roads' and road closure is inappropriate. The plan can then be accompanied by an Application based on Possession (together with the requisite evidence), and if accepted, a new title will be issued in the name of the applicant.
Note Roads shown in NSW Land and 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 and Housing Corporation plan are treated as plans of subdivision of the residue of the cancelled certificate(s) of title and not as road closure.
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 (e.g. splitting a pathway in halves for future consolidation with each adjoining parcel) a subdivision certificate is required.
Crown Lands Division consent
All road closure plans must have the consent of Crown Lands regardless of the titling system or the road authority. Evidence of approval may be provided by either:
- having the original plan signed in Crown Lands Approval panel on the Administration sheet of the plan, or
- lodging a copy of the plan endorsed with this approval.
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 #)
Cancellation details
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 e.g:
FOLIO CANCELLED. NEW FOLIOS CREATED FOR LOTS 1 TO 12 DP....(Original Subdivision)....AND LOT 1 DP....(Closed Road Plan)...
Signatures
New deposited plans for road closure purposes should be signed by an authorised officer of Crown Lands in the appropriate panel on the Administration sheet of 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 Administration Sheet.
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.
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. Reference to 'Land Excludes Minerals' etc cannot be included in the CL45-36 form (PDF 407.2 KB) unless it refers to an exclusion(s) from the original Grant.