STP-06 Planning Approvals

1. Strata Schemes

1.1. Subdivision Approval of Strata Scheme (section 15 STA)

An application for approval of a strata plan or an amendment of a strata plan effecting subdivision (Form 15A) is made to the Western Australian Planning Commission (WAPC) and may be subject to conditions.

1.2. Matters to be Considered on Application for Subdivision Approval (Regulation 17 ST(G)R)

When considering an application for approval, WAPC must have regard to all relevant matters including:

• the size, shape and dimensions of each lot
• the services available and access to each lot
• drainage of the land
• the amount of public open space to be provided
• any relevant planning scheme
• any relevant regulations made by the Minister under the Planning and Development Act 2005 (P&D Act)
• any relevant local laws relating to town planning
• any objections or recommendations made by a local government or a public authority after consultation on the application
• any relevant planning approval that has not lapsed.

WAPC may consult with a local government or a public authority about an application if WAPC is of the opinion that the subdivision may affect the functions of the local government or public authority.

An Application for Endorsement of a Strata Plan (Form 15C) is made to the WAPC as they must issue a certificate endorsing the plan with its unconditional approval before a plan or an amendment of a plan can be registered.

1.3. Exemptions from WAPC Approval (Section 15(6) STA and Regulation 19 ST(G)R)

A strata plan or an amendment of a strata plan for a freehold scheme that gives effect to a type 3 subdivision (consolidation) or a type 4 subdivision (re-subdivision) is exempt from the requirement for WAPC approval if:

• the area of the parcel is no more than 2 500 square metres; and
• the lots in the strata scheme are to be used for residential purposes and each lot in the strata scheme contains one dwelling; and
• there are no more than 5 lots in the scheme (including after amendment); and
• the land is —
  • within a residential zone under a local planning scheme and conforms with that local planning scheme, or
  • if the land is not within the area of a local planning scheme — within an area that is a townsite within the meaning given in the Land Administration Act 1997 section 26(1).

1.4. Application of Planning and Development Act (Section 16 STA)

A subdivision of land by a strata scheme is not subject to section 146 of the Planning and Development Act 2005 (P&D Act), so there is no limit to the time a strata plan can be registered after obtaining unconditional approval from the WAPC.

Vacant lot strata plans are a hybrid type of plan. At least one of the lots must have a building constructed on it. This type of plan is a vital tool for staged developments and for owner-developers of small projects. The advantage is the ability for a title to be issued for a lot that is a defined cubic space that does not contain a building at the time of registration of the strata scheme. Consequently, on staged developments, the remaining land after the completion of each stage remains as a vacant lot with the developer being the registered proprietor. The title for the vacant lot can be transferred and mortgaged, making it an attractive method of land development to both big and small developers.

Vacant strata lots are processed applying sections 142, 143, 144 and 151 of the P & D Act and the application is determined by the WAPC, with referral of the application to local government, utility providers and service authorities for comment in the same manner as a survey-strata subdivision application.

Strata plans that are not exempt from WAPC approval under Strata Titles (General) Regulations 2019 (ST(G)R) regulation 19 require certificates from the WAPC (or local government if delegated under section 16 P&D Act). These types of Strata Plans generally are:

• residential developments involving more than five lots; and
• all non-residential developments.

All buildings and services are required to be completed before final certification is granted. The local government or the WAPC may refer the application to other government agencies for comment and may grant conditional approval. The local government planning and building requirements must also be met before its certification can be given.

If the approval is granted for a strata plan or an amendment of a strata plan under section 15, an application must be made for a certificate endorsing the scheme plan or amendment of the scheme plan with the relevant authority’s unconditional approval of the subdivision (Form 15C application for endorsement of approval of a strata plan) within the period of 2 years after the strata plan or amendment has been approved (regulation 18 ST(G)R), unless exempt under section 15(6) STA and regulation 19 ST(G)R.

2. Survey-strata schemes

2.1. Subdivision Approval of Survey-Strata Scheme (Section 17 STA)

Developments of this type are processed in the same manner as freehold subdivision applications. An application is made to the WAPC on a Form 1A that is accompanied by a sketch of the proposed subdivision. This application is then referred by WAPC for comment to local government, other relevant government agencies and utility service providers.

If the application is successful, the developer can proceed to commence subdivisional works. A survey-strata subdivision does not involve any building construction. Titles can be issued for vacant lots. As the development progresses, liaison between surveyors, engineers, various contractors and government agencies (who may have sought conditions to be imposed for subdivisional approval) is necessary to enable the appropriate clearances to be obtained. These clearances are obtained either at the completion of the subdivisional works or when suitable arrangements are made with the relevant agency. This system varies depending on the agency and project size.

The unconditional approval of the WAPC of the scheme plan or amendment of the scheme plan is required to enable the plan or amendment to be registered under the STA. Survey-strata plans are subject to section 146 of the P&D Act, which means the Registrar of Titles is not to register a survey-strata plan the endorsement for which exceeds 2 years.

3. General Provisions

3.1. Planning (Scheme By-laws) Condition (Section 18 STA)

The conditions of a planning approval applying to a strata titles scheme may include a planning (scheme by-laws) condition.

3.2. Planning Approval of Scheme Plan or Amendment of Scheme Plan (Section 19 STA)

An application for unconditional approval of the WAPC of a scheme plan or an amendment of a scheme plan must be in an approved form and accompanied by:

• the scheme notice or any amendment of the scheme notice proposed to be submitted for registration with the plan; and
• any existing scheme by-laws made under a planning (scheme by-laws) condition; and
• for a leasehold scheme, any existing or proposed leasehold by-laws providing for postponement of the expiry day for the scheme; and
• for a strata scheme, an occupancy permit or building approval certificate granted under the Building Act 2011 (BA) for each scheme building shown on the plan.

The WAPC must be satisfied that:

• the plan is an accurate depiction of the subdivision that has been prepared after completion of the necessary works and, for a strata scheme, the construction or modification of the scheme buildings necessary for the subdivision; and
• the subdivision and development has been undertaken consistently with the P&D Act and the STA; and
• the requirements of the BA have been complied with for the development; and
• any restricted use condition proposed to be imposed by the scheme plan or amendment of the scheme plan is suitable for the scheme; and
• scheme by-laws have been or are proposed to be made in accordance with any planning (scheme by-laws) condition.

3.3. Approval for Postponement of Expiry Day for Leasehold Scheme (Section 20 STA)

For a leasehold scheme, the approval of the WAPC is required for the making, amendment or repeal of leasehold by-laws providing for postponement of the expiry day for the scheme (including for leasehold by-laws registered when the strata titles scheme is registered and not made by the strata company). The approval may be applied for and given in conjunction with an approval of a plan of subdivision.

See also sections 8(3) – leasehold schemes), 40 (leasehold by-laws) and 41 (resolution for postponement of expiry day under leasehold by-laws) STA.

3.4. Approval for Modification of Restricted Use Condition (Section 21 STA)

The approval of the WAPC is required to impose, vary or revoke a restricted use condition. The approval may be applied for and given in conjunction with an approval of a plan of subdivision.

3.5. Approval under Planning (Scheme By-laws) condition (Section 22 STA)

If, in accordance with scheme by-laws required under a planning (scheme by-laws) condition, the amendment or repeal of scheme by-laws requires the approval of the WAPC or a local government, an application for that approval can be made under this section. The approval may be applied for and given in conjunction with an application for a planning approval or by separate application.

3.6. Requirement for Local Government Approval (Section 23)

In addition to approval of the WAPC, a subdivision must be approved by each local government in whose district the parcel is situated if the subdivision involves:

• 1 or more lots being converted into common property (type 1(b) subdivision); or
• the removal, from the parcel, of land comprised of common property (type 2 subdivision); or
• 2 or more lots being consolidated into 1 lot (type 3 subdivision).

If the subdivision is approved, it is subject to any planning (scheme by-laws) condition attached to the local government approval.

4. Preliminary Determinations

4.1. Preliminary Determinations by Local Government (Section 24 STA)

Once development approval has been issued by the relevant authority, an application may be made to the local government for the approval of a strata subdivision under section 24 of the STA. Approval may be granted if the local government is satisfied that:

• separate occupation of the proposed lots will not contravene the provisions of any local planning scheme or interim development order under the P&D Act; and
• any consent or approval required under any such local planning scheme or interim development order, has been given in relation to the separate occupation of the proposed lots; and
• the development of the parcel as a whole, the building and the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or likely future amenity of the neighbourhood, having regard to the circumstances of the case and to the public interest.

A local government may fix, charge and recover fees to be paid for determinations under section 24.

The applicant must provide the local government with such information, particulars and details regarding the proposed development, or the building plans and specifications, as the local government may require.

A determination made by a local government under this section must be in writing and, if favourable, may be issued subject to conditions relating to the proposed development of the parcel. A determination is valid and binding on the local government for a period of 2 years after it is made unless the local government declares in writing that the determination is valid and binding for such period as is specified, being a period greater than 2 years but not exceeding 3 years.