New bonding requirements for Community Title divisions: Planning, Development and Infrastructure (General) (Community Title Land Division) Amendment Regulations 2025

New requirements for Community Title divisions have been introduced by the Planning, Development and Infrastructure (General) (Community Title Land Division) Amendment Regulations 2025 (SA) (Amendment Regulations). The Amendment Regulations came into force on 3 July 2025 and are available to read here (at page 2343).

The Amendment Regulations introduce several key changes to the process for assessment and approval of Community Title divisions, including a new prescribed condition for the purposes of section 138(1) of the Planning, Development and Infrastructure Act 2016 (SA) (Act).

Background: Section 138 Certificates

By way of background, section 138(1) of the Act provides that a certificate (Section 138 Certificate) of the State Planning Commission (Commission) is required prior to an application for deposit of a plan of division in relation to any development that involves the division of land under the Act.

Pursuant to this section, the Commission will issue the Section 138 Certificate if:

“…it is satisfied that the prescribed conditions as to development have been satisfied, or that the applicant has, by virtue of an entitlement under the regulations, entered into a binding agreement, supported by adequate security …”

The prescribed conditions are those under regulations 80-85 of the Planning, Development and Infrastructure (General) Regulations 2017 (General Regulations).

The form of such ‘binding agreement, supported by adequate security’ is generally referred to as a ‘bonding agreement’.

A council indicates to the Commission that the prescribed conditions have been satisfied or that a bonding agreement exists by way of a process generally referred to as ‘section 138 clearance’.

New Regulation 85A – Prescribed Condition – Driveways and Private Roads

New regulation 85A introduces a new prescribed condition for land divisions under the Community Titles Act 1996 (SA) (CT Act) that require a scheme description to be lodged with the Registrar-General under that Act.

Pursuant to section 15 of the CT Act, the lodgement of a scheme description is only required for a community division creating more than six community lots; that creates a development lot (being an allotment created as part of a stage that is intended for further division); and where the community lots are for predominately residential purposes.

For these land divisions, it is now a prescribed condition pursuant to regulation 85A(2) that:

“The construction of common property comprising a driveway or private road on the land which is proposed to be divided, including any access points to or from the driveway or road, must be completed [prior to seeking a Section 138 Certificate].”

Regulation 88 – Division of land by community title or strata title

Amended regulation 88 substantially modifies the existing requirements with respect to community title divisions.

New r 88(1) now provides:

“notwithstanding that—

• the condition prescribed by regulation 85A has not been satisfied;

…

if the council advises the Commission that the applicant has entered into a binding arrangement with the council for the satisfaction of that condition or those requirements (as the case requires) and that the arrangement is supported by adequate security.”

A ‘binding arrangement' will, in practice, be a form of bonding agreement related to completion of common property driveways and private roads. Amended regulation 88(1) renders the process for section 138 clearance of community title divisions akin to that which exists for Torrens title divisions.

The Amendment Regulations also introduce further requirements for security held under such a bonding agreement.

Regulation 88(3) provides that security may ‘be held by the council or another entity’.

Previously unspecified, regulation 88(4) now also requires that, at the applicant’s request, the security is to be returned to the applicant if the council is satisfied the condition of the arrangement has been satisfied, and where ‘the security has not been transferred to the relevant community corporation or strata corporation in accordance with subregulation (5).’ A failure to comply with this subregulation is an offence under the Act with a maximum penalty of $10,000.

Pursuant to regulation 88(5), if the developer fails to complete the driveways and private roads by the end of the ‘developer control period[1]’, the security may be provided to the community corporation for the purpose of the corporation using it to satisfy the condition.[2]

It is not yet clear how this will work in practice, particularly concerning (but not limited to) whether councils wish to enter into such bonding agreements, how councils will ensure security is adequate and what risks may be associated with this, or whether councils want to take any responsibility to ‘step in’ if the works are not satisfactorily completed.

We encourage councils to make contact with us about how the Amendment Regulations will impact their existing or future bonding arrangements.

For more specific information on any of the material contained in this article, please contact Rebecca McAulay on +61 8 8210 1278 or rmcaulay@normans.com.au or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.

[1] The “developer control period” for community title has the same meaning as under the CT Act and refers to the period when the developer solely constitutes the community corporation, or holds a majority of lots in the scheme or in any other way controls the voting of the corporation.

[2] Note this also applies to strata title in relation to binding arrangements agreements with a condition for the satisfaction of section 102(1)(d) of the Act. In that instance, the “developer control period” means the period during which the strata corporation is constituted solely by the original registered proprietor or the original registered proprietor owns the majority of the units in the strata scheme, or in any other way controls the voting of the corporation; and instead the security may be transferred to the strata corporation.