Inala Shopping Centre Freeholding Act 2006

An Act to provide for the freeholding and divestment of perpetual leases under the Housing Act 2003 in the Inala Shopping Centre

1Short title

This Act may be cited as the Inala Shopping Centre Freeholding Act 2006.

2Commencement

(1)This Act, other than section 32(2) and part 6, division 2, commences on a day to be fixed by proclamation.

(2)Section 32(2) and part 6, division 2 commence 1 year after part 2 commences.

3Act binds all persons

This Act binds all persons, including the State.

4Dictionary

The dictionary in schedule 5 defines particular words used in this Act.

5Land shown on sch 1 plan

(1)The shopping centre land is the land shown on the plan in schedule 1, other than the excluded land.

(2)The excluded land is the land shown on the plan in schedule 1 as the excluded land.

6Permanent closure of road

(1)This section applies to the parts of the shopping centre land and the excluded land that are, immediately before the commencement, dedicated as a road for public use.

(2)On the commencement—

(a)the road is permanently closed; and

(b)the land becomes unallocated State land.

(3)Subsection (2)(a) applies despite the Land Act 1994, chapter 3, part 2, division 2.

7Issue of deeds of grant for shopping centre land and excluded land

(1)On the commencement—

(a)any part of the shopping centre land that was, immediately before the commencement, subject to a shopping centre lease becomes unallocated State land; and

(b)a deed of grant issued before the commencement for any part of the shopping centre land is cancelled and the land becomes unallocated State land.

(2)The Governor in Council must issue to the State—

(a)a deed of grant for the shopping centre land; and

(b)a deed of grant for the excluded land.

(3)A deed of grant required under subsection (2) to be issued—

(a)must be issued under the Land Act 1994; and

(b)subject to section 21 of that Act, is issued free of all of the interests to which the shopping centre land or the excluded land was subject immediately before the commencement.

(4)However, the conversion of the shopping centre land to freehold land, and the issue of a deed of grant for the land, under this section does not terminate a shopping centre lease.

(5)To remove any doubt, it is declared that the Housing Act 2003, section 112 continues to apply to a shopping centre lease until the lease is cancelled under section 15 or otherwise terminated.

(6)In this section—

deed of grant means a document evidencing the grant of land in fee simple under the Land Act 1994 that includes an indefeasible title under the Land Title Act.

8Preparation and registration of plan of survey

(1)The chief executive must ensure a plan of survey creating 1 lot for the shopping centre land and 1 lot for the excluded land is prepared as soon as practicable after the commencement.

(2)The plan of survey must generally correspond with the plan in schedule 1.

(3)The chief executive must ensure the plan of survey is registered under the Land Act 1994.

(4)No fee is payable for registering the plan of survey under the Land Act 1994.

9Plans of subdivision for community titles schemes

(1)As soon as practicable after the plan of survey mentioned in section 8 is registered, the chief executive must ensure the following plans of subdivision are prepared and lodged for registration under the Land Title Act—

(a)plan of subdivision SP169871 (the principal scheme plan), subdividing the shopping centre land into lots to be included in, and common property for, a community titles scheme;

(b)plan of subdivision SP169873 (the subsidiary scheme plan), subdividing proposed lot 22 shown on the principal scheme plan into lots to be included in, and common property for, a community titles scheme.

(2)The lots and common property, and the easements relating to the lots and common property, shown on the principal scheme plan must generally correspond with the lots, common property and easements shown on the plan in schedule 2.

(3)The lots and common property, and the easements relating to the lots and common property, shown on the subsidiary scheme plan must generally correspond with the lots, common property and easements shown on the plan in schedule 3.

(4)For the Land Title Act, section 50, a plan of subdivision prepared under this section is taken to have been approved by the Brisbane City Council.

(5)To remove any doubt, it is declared that section 44 of the BCCM Act does not prevent the registration under the Land Title Act of an easement shown on the principal scheme plan.

(6)In this section—

common property see the BCCM Act, section 10.

10Community management statements for community titles schemes

(1)The chief executive must ensure the first community management statements for the proposed community titles schemes are lodged for recording under the Land Title Act.

(2)For the BCCM Act, section 60, the Brisbane City Council is taken to have endorsed the community management statements with community management statement notations.

(3)In this section—

proposed community titles schemes means the community titles schemes mentioned in section 9(1)(a) and (b).

11Date of establishment of community titles schemes

(1)The principal scheme and subsidiary scheme are taken to be established on the conversion day.

(2)Subsection (1) applies despite the BCCM Act, section 24(2).

(3)If the State grants an easement before the conversion day over land that will be scheme land for the principal scheme or subsidiary scheme, the easement takes effect in relation to the shopping centre land from the day the easement is created.

(4)However, if an easement to which subsection (3) applies is inconsistent with the terms of a shopping centre lease, the lease prevails to the extent of the inconsistency.

12State as original owner for community titles schemes

(1)The State can not be prosecuted for not complying with an obligation under the BCCM Act in the State’s capacity as the original owner for the principal scheme or subsidiary scheme.

(2)The Body Corporate and Community Management (Commercial Module) Regulation 1997, section 49(1)(b) and (f), does not apply to the State as the original owner for the principal scheme or subsidiary scheme.

13Notice to lessees of recording of community management statements etc.

(1)Within 7 days after the first community management statements for the principal scheme and subsidiary scheme are recorded, the chief executive must give each lessee of a shopping centre lease—

(a)a notice (a conversion notice) stating each of the following—

(i)that community management statements for the principal scheme and subsidiary scheme have been recorded;

(ii)the conversion day;

(iii)the information the lessee is required to give the chief executive before the conversion day; and

(b)a tax invoice issued by the department that shows the conversion cost payable by the lessee.

(2)The information stated in a conversion notice under subsection (1)(a)(iii) must be—

(a)information in, or to the effect of, the approved form for the Valuation of Land Act 1944, section 81(1); and

(b)any other information reasonably required by the chief executive in relation to the vesting of a transfer lot in the lessee.

(3)In this section—

tax invoice see the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth), section 195-1.

14Requirement for lessees to pay conversion cost and provide information

(1)The lessee of a shopping centre lease must pay to the chief executive, before the conversion day, the total of the following amounts (the conversion cost)—

(a)the unimproved value amount for each shopping centre lease held by the person immediately before the conversion day;

(b)any GST payable on a supply relating to the vesting of a transfer lot in the person under section 15;

(c)any transfer duty imposed under the Duties Act 2001 on the vesting.

Note—

For the enforcement of this provision, see sections 19 to 22.

(2)The lessee of a shopping centre lease must also, before the conversion day, give the chief executive the information required to be given to the chief executive under the conversion notice given to the lessee.

Maximum penalty—5 penalty units.

(3)In this section—

unimproved value amount, for a shopping centre lease, means the amount of the valuation of the unimproved value of the land contained in the lease that was in force under the Valuation of Land Act 1944 on 30 June 2003.

15Termination of shopping centre leases and vesting of lots in lessees

(1)On the conversion day—

(a)a shopping centre lease still in force is cancelled; and

(b)a lot included in the principal scheme or subsidiary scheme and identified in schedule 4, column 1 (a transfer lot) vests in each person (each a first owner) who was, immediately before the conversion day, a lessee of a relevant lease for the lot.

(2)Each shopping centre lease listed in schedule 4, column 2 opposite a transfer lot is a relevant lease for the lot.

(3)Subsection (1)(b) applies subject to sections 16 and 17.

(4)If a shopping centre lease cancelled under this section was, immediately before its cancellation, subject to a sublease or other interest—

(a)the cancellation of the lease under this section does not terminate the sublease or other interest; and

(b)on the conversion day, the sublease or other interest is taken to be held in relation to each lot vested under subsection (1) in the lessee of the lease.

(5)If there is an unregistered document in relation to a shopping centre lease cancelled under this section, the document must be relodged by the registrar of titles, for the person who lodged the document, against each transfer lot vested in the lessee of the lease.

(6)The following do not apply in relation to the vesting of a transfer lot under this section—

(a)the Land Sales Act 1984;

(b)the BCCM Act, chapter 5, parts 1 to 3.

(7)In this section—

unregistered document means a document that—

(a)has been lodged under the Land Act 1994 but has not been registered in the appropriate register under that Act; and

(b)has not been rejected.

16Transfer lot for which a relevant lease is not in force immediately before conversion day

(1)This section applies if a relevant lease for a transfer lot is not in force immediately before the conversion day.

(2)If there is another relevant lease for the transfer lot that is in force immediately before the conversion day (the current lease), the transfer lot is vested in each of the following persons (each a first owner)—

(a)the persons who were, immediately before the conversion day, the lessees of the current lease;

(b)the persons who were the lessees of the lease mentioned in subsection (1) immediately before its termination.

(3)If there is no relevant lease for the transfer lot in force immediately before the conversion day, the lot is not a transfer lot.

17Co-ownership of transfer lots

(1)This section applies if a transfer lot is vested under section 15(1)(b) in more than 1 person.

(2)For lot 3 of the subsidiary scheme, the persons take—

(a)if the lessees of SHPTL 1201, acting jointly, give notice to the chief executive before the conversion day of the individual interests in the lot they have agreed to take—the individual interests in the lot stated in the notice; or

(b)otherwise—the same individual interests in the lot as they had in SHPTL 1201 immediately before its cancellation.

(3)For another transfer lot, the persons take the same individual interests in the lot as they had in the relevant lease or leases for the lot immediately before their cancellation.

18Recording conversion of title etc.

(1)The chief executive must, as soon as practicable after the conversion day—

(a)give the chief executive (land) a notice asking that the chief executive note in the appropriate register under the Land Act 1994 the cancellation under section 15(1)(a) of the shopping centre leases to which the section applies; and

(b)give the registrar of titles a notice asking that the registrar record the vesting of the transfer lots under section 15(1)(b), 16 or 17 and stating—

(i)the name of the first owner of each transfer lot and, if a transfer lot vests in co-owners, the interests taken by the co-owners; and

(ii)if a transfer lot vests subject to the chief executive’s charge—the lot vests subject to the charge and the conversion cost for the lot.

(2)The registrar of titles must—

(a)record in the freehold land register—

(i)the vesting of the transfer lots; and

(ii)the interests mentioned in section 15(4)(b) in relation to the transfer lots; and

(b)if a transfer lot vests subject to the chief executive’s charge—

(i)record the chief executive’s charge in the freehold land register; and

(ii)while a chief executive’s charge is recorded in the freehold land register, keep a record of the conversion cost for the lot.

(3)Fees payable under the Land Title Act for recording the vesting of a transfer lot under section 15(1)(b), 16 or 17 must be paid by the department.

(4)However, no fee is payable for recording the chief executive’s charge under this section.

(5)Subsection (6) applies to an instrument of covenant—

(a)in favour of the State relating to the use for a taxi rank of the part of lot 20 of the principal scheme identified on the principal scheme plan as ‘taxi rank covenant’; and

(b)executed before the conversion day by the chief executive.

(6)The instrument of covenant may be registered under the Land Title Act even though the covenant is entered into by the State with the State.

(7)In this section—

chief executive (land) means the chief executive of the department in which the Land Act 1994 is administered.

19Creation of chief executive’s charge

(1)This section applies if the conversion cost for a transfer lot is not paid by the first owner of the lot before the conversion day.

(2)Each transfer lot vesting in the first owner under section 15(1)(b), 16 or 17 vests subject to a charge (the chief executive’s charge) in favour of the chief executive securing payment of the conversion cost.

(3)The charge is binding on the first owner of the lot and the owner’s successors in title.

(4)For the Local Government Act 2009, the chief executive’s charge is an encumbrance conferring rights on the State.

s 19 amd 2009 No. 17s 331sch 1

20Enforcement of chief executive’s charge—notice of intention to sell lot

(1)This section applies if—

(a)a transfer lot vests in the first owner subject to the chief executive’s charge; and

(b)the chief executive decides the lot should be sold to recover the unpaid conversion cost.

(2)The chief executive must give notice (a notice of intention to sell) stating the matters mentioned in subsection (3) to—

(a)the registered owner of the lot; and

(b)each mortgagee of the lot.

(3)The matters are each of the following—

(a)the conversion day;

(b)the amount of the unpaid conversion cost;

(c)that the chief executive may sell the lot if the registered owner does not pay to the chief executive within a stated period—

(i)the amount of the unpaid conversion cost; and

(ii)if the chief executive requires interest on the unpaid conversion cost to be paid by the registered owner—interest on the unpaid conversion cost.

(4)The total amount payable by the registered owner under subsection (3)(c) is the demand amount.

(5)The period stated in the notice under subsection (3)(c) must be at least 14 days after the notice is given to the registered owner.

(6)If the notice requires the registered owner to pay interest under subsection (3)(c)(ii), the interest is payable—

(a)for the period starting on the day after the conversion day and ending on the day the amount of the unpaid conversion cost is paid in full; and

(b)at the Reserve Bank of Australia’s official cash rate for each day in the period plus 2%.

Note—

The Reserve Bank of Australia’s official cash rate is published on the bank’s website at <www.rba.gov.au>.

(7)If the registered owner does not pay the demand amount within the period stated in the notice, the chief executive may—

(a)sell the lot; or

(b)if a mortgagee agrees to sell the lot—allow the mortgagee to sell the lot.

(8)If the chief executive allows a mortgagee to sell the lot under subsection (7)(b), the registered owner is taken to be in default under the mortgage.

21Release of chief executive’s charge on payment of conversion cost etc.

(1)This section applies if—

(a)the chief executive receives payment of the demand amount during the period stated in a notice of intention to sell; or

(b)with the Minister’s consent, the chief executive, after the period stated in a notice of intention to sell, agrees to accept, and receives payment of, another amount in payment of the chief executive’s charge.

(2)The amount mentioned in subsection (1)(b) may be more or less than the demand amount.

(3)Each lot that is subject to the chief executive’s charge is released from the charge.

(4)The chief executive must, as soon as practicable, ask the registrar of titles to record the release of the charge in the freehold land register.

(5)The registrar of titles must, on the chief executive’s request, record the release of the charge in the freehold land register.

(6)No fee is payable for recording the release of the chief executive’s charge under this section.

22Sale of lot by chief executive

(1)If the chief executive may sell a transfer lot under section 20(7)(a), the lot may be sold by public auction or private contract.

(2)The chief executive must apply the proceeds of sale as follows—

(a)firstly, in payment of all costs, charges and expenses properly incurred by the chief executive in the sale or a previous attempted sale of the transfer lot;

(b)secondly, in payment of the demand amount to the chief executive;

(c)thirdly, in payment of any amount owing to a mortgagee or, if there is more than 1 mortgagee, according to their priorities;

(d)lastly, in payment to the previous registered owner of the lot.

(3)On the sale of the transfer lot, the chief executive must give the registrar of titles an instrument of transfer executed by the chief executive, in the approved form under the Land Title Act, in relation to the sale.

(4)On receiving the instrument of transfer, the registrar of titles must register the purchaser stated in the instrument for the interest held in the transfer lot by the previous registered owner, free of all encumbrances.

(5)The registrar of titles must comply with subsection (4) even if an instrument of title relating to the transfer lot is not produced.

(6)Subsection (4) applies subject to section 23.

(7)If the demand amount has not been paid in full after the proceeds of sale are applied, the unpaid part of the amount may be recovered from the previous registered owner of the transfer lot as a debt owing to the State.

(8)The Property Law Act 1974 does not apply to the exercise of the chief executive’s powers under this section.

(9)In this section—

encumbrance—

(a)includes any of the following affecting land—

(i)a mortgage, lien or charge;

(ii)a caveat;

(iii)an agreement;

(iv)a judgment, writ or process;

(v)an interest adverse to the interest of the land’s owner; but

(b)does not include an easement.

previous registered owner, of a transfer lot sold under this section, means the person who was the registered owner of the lot immediately before its sale.

23Priority of local government charge preserved

(1)This section applies if—

(a)the chief executive intends to sell a transfer lot under section 22; and

(b)the lot is subject to a charge for an overdue rate under the Local Government Act 2009.

(2)The chief executive must, before selling the transfer lot, give written notice to the local government to which the rate is payable stating the chief executive’s intention to sell the lot.

(3)The chief executive may sell the transfer lot only—

(a)subject to the charge; or

(b)free of the charge to the extent, and subject to any conditions, agreed by the local government to which the rate is payable.

s 23 amd 2009 No. 17s 331 sch 1

24Chief executive’s charge not affected by mortgagee sale

(1)This section applies if—

(a)a transfer lot vests in the first owner subject to the chief executive’s charge; and

(b)a mortgagee exercising the power of sale under the Land Title Act sells the lot before the chief executive’s charge is released under this part.

(2)The chief executive’s charge is not released by the sale and the transfer lot is transferred to the purchaser subject to the charge.

(3)This section applies despite the Property Law Act 1974, section 86.

25No compensation

Compensation is not payable for any action taken by the chief executive or the registrar of titles under this part.

26Particular proceedings not affected by cancellation of shopping centre leases

(1)This section applies if shopping centre leases SHPTL 1803 and SHPTL 1252 (the relevant leases) are cancelled under section 15(1)(a).

(2)If the easement proceeding is not finished before the conversion day, the proceeding may be continued, and the Supreme Court may make an easement order, as if the relevant leases had not been cancelled.

(3)Subsection (2)—

(a)does not limit the orders that may be made by the court; and

(b)applies despite section 15.

(4)Subsection (5) applies if—

(a)an easement order is made by the Supreme Court; and

(b)the relevant easement is not registered before the conversion day; and

(c)the following approvals in relation to registration of the relevant easement have been obtained—

(i)the written approval of the Minister administering the Land Act 1994;

(ii)if the Supreme Court considers any other approval in relation to the easement is necessary to give effect to SHPTL 1803—any approval required to comply with an order of the court; and

(d)the relevant easement would have been capable of registration under the Land Act 1994 had the relevant leases not been cancelled.

(5)The relevant easement must be registered under the Land Title Act as if the easement had been granted over lot 20 of the principal scheme in favour of lot 21 of the principal scheme.

(6)In this section—

easement order means an order requiring the lessee of SHPTL 1803 to grant an easement over part of the land contained in the lease in favour of the lessee of SHPTL 1252.

easement proceeding means the proceeding started in the Supreme Court in 2004 by the lessee of SHPTL 1252 against the lessee of SHPTL 1803 seeking an easement over, or a statutory right of user in respect of, part of the land contained in SHPTL 1803.

relevant easement means an easement granted in compliance with an easement order.

27Accepted development

(1)This section applies if development under this Act would, other than for subsection (2), be prohibited development or assessable development under the Planning Act 2016.

(2)The development is taken to be accepted development for the Planning Act 2016.

(3)In this section—

development see the Planning Act 2016, schedule 2.

s 27 amd 2009 No. 36s 872 sch 2

sub 2016 No. 27 s 267

28Provision for survey plan if particular access easement created

(1)This section applies if the Land Title Act, section 83(2), would, if subsection (2) did not apply, require a plan of survey prepared for this Act to be approved by the Brisbane City Council.

(2)The Brisbane City Council is taken to have approved the plan of survey.

29Notice of change of ownership of transfer lot

(1)The Land Valuation Act 2010, section 245, does not apply in relation to the acquisition by the first owner, or the disposal by the State, of a transfer lot.

(2)As soon as practicable after receiving the relevant information from the first owner, the chief executive must give the information to the valuer-general.

(3)In this section—

relevant information means information in, or to the effect of, the approved form for the Land Valuation Act 2010, section 245.

s 29 amd 2010 No. 39s 325 sch 1pt 2

30Payment of costs—adjustment of lot entitlement schedule for subsidiary scheme

(1)This section applies if—

(a)the first owner of a transfer lot included in the subsidiary scheme applies, within 3 months after the conversion day, under the BCCM Act, chapter 6, to the commissioner for an adjustment of the lot entitlement schedule for the scheme; and

(b)the application is dealt with by specialist adjudication under the BCCM Act, chapter 6, part 8.

(2)The chief executive is responsible for the costs of the adjudication.

(3)If the application is made before the commencement of the Body Corporate and Community Management and Other Legislation Amendment Act 2007, section 50 (the commencement), subsection (2) applies despite the BCCM Act, section 280 as in force immediately before the commencement.

(4)If the application is made after the commencement, subsection (2) applies despite the BCCM Act, section 264 as in force after the commencement.

(5)In this section—

commissioner means the commissioner for body corporate and community management under the BCCM Act.

s 30 amd 2007 No. 11 s 76

section 5

section 9(2)

section 9(3)

section 15(1)(b) and (2)

section 4

BCCM Act means the Body Corporate and Community Management Act 1997.

chief executive’s charge see section 19(2).

commencement means the commencement of part 2.

community management statement see the BCCM Act, section 12.

community titles scheme see the BCCM Act, section 10.

conversion cost see section 14(1).

conversion day means the day that is 60 days after the first community management statement for the subsidiary scheme is recorded under the BCCM Act.

conversion notice see section 13(1)(a).

demand amount see section 20(4).

excluded land see section 5(2).

first owner see sections 15(1)(b) and 16(2).

freehold land register see the Land Title Act, schedule 2.

Land Title Act means the Land Title Act 1994.

lot see the Land Title Act, schedule 2.

notice means written notice.

notice of intention to sell see section 20(2).

plan of subdivision see the Land Title Act, section 49.

principal scheme means the community titles scheme established as required under part 3 for which the scheme land is the shopping centre land.

principal scheme plan see section 9(1)(a).

registered owner see the Land Title Act, schedule 2.

registrar of titles means the registrar of titles under the Land Title Act.

relevant lease see section 15(2).

scheme land see the BCCM Act, section 10.

shopping centre land see section 5(1).

shopping centre lease means a lease in perpetuity of any of the shopping centre land held by the lessee under the Housing Act 2003, section 112.

SHPTL means State Housing Perpetual Town Lease.

subsidiary scheme means the community titles scheme established as required under part 3 for which the scheme land is lot 22 of the principal scheme.

subsidiary scheme plan see section 9(1)(b).

transfer lot see section 15(1)(b).