Australia: New Land Transfer Registration Fee in New South Wales

On 12 May 2010 the New South Wales Government announced the introduction of an ad valorem transfer fee in respect of the transfer of real property in New South Wales. This transfer fee is in addition to existing stamp duty payable on transfers of real property and is also payable by the purchaser.

The rates of the new fee are:

At this stage, there is no clear indication from the Government as to when the new fee will apply, however, it has been reported in the press that the new fee will apply to all transfers lodged for registration after 1 July 2010. Therefore, it appears that transfers pursuant to contracts or options in existence before the new fee was announced will not be exempt from the new fee.

Development consent period

In NSW the maximum period of a development consent is five years pursuant to the Environmental Planning and Assessment Act 1979. Consent authorities have the discretion to apply a consent period of less than five years (to a minimum of two years).

Due to the impact of current economic conditions, the NSW Government announced as a stimulus measure the extension of existing development consents. The Government tabled the Environmental Planning and Assessment Amendment (Development Consents) Bill 2010 (Development Consents Bill) on 22 April 2010 to prevent otherwise valid development consents from lapsing.

However, rather than extending all development consents for a few years (as was hoped), the amending Development Consents Bill merely seeks to mandate the maximum five year consent period for all development consents:

• issued before 22 April 2010 if a consent period of less than five years has been applied by the consent authority; and
• issued between 22 April 2010 and 1 July 2011.

The Development Consents Bill also proposes future regulatory amendment to clarify the definition of 'physical commencement'. This is perhaps unnecessary given that the current term has been addressed and defined through various court cases. We will advise you of any significant impacts arising from the new regulation.

Building Energy and Efficiency and Disclosure Bill

As noted in our March 2010 e-alert the Building Energy and Efficiency Disclosure Bill 2010 (BEEC Bill) has been introduced into parliament. The BEEC Bill provides for the introduction of a scheme that will require vendors, landlords and even sub-landlords of large commercial office buildings to disclose information regarding the energy efficiency of the building to purchasers, tenants and sub-tenants. The information to be disclosed will be contained in building energy efficiency certificates (BEEC).

The Senate Environment, Communications and the Arts Legislation Committee has recently handed down a report recommending that the BEEC Bill be passed, subject to the adoption of its recommendations. Two of the Committee's recommendations are that the Government:

• delay the lighting measurement component of the BEEC until the Department of Climate Change and Energy has had sufficient time to develop, test and consult on the appropriate tool for measuring the efficiency of lighting. The energy efficiency of a building's lighting is a key measure required for the BEEC under the BEEC Bill. However, according to the Property Council of Australia, the tool for measuring the efficiency of lighting under the scheme has not been finalised or tested and will, in its current state, "impede the industry's...capacity to comply with the bill..." due to logistical difficulties of using the measurement tool; and
• consider whether the penalties proposed by the Bill are appropriate. As currently drafted the BEEC Bill provides for a fine of up to $110,000.00 for non compliance per event per day. According to the Property Council of Australia this penalty is "utterly inconsistent with the nature of the offences" and is of the "same penalty level as passport forgery."

The Government is currently considering the Committee's recommendations.

Maddocks will continue to monitor the progress of the BEEC Bill and will provide further updates in due course.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.