SUB-01 Subdivision

Version 4 - 10/11/2022

The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Land Titles Registration policy and procedure guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

Guide rewritten 10/11/2022

Contents:
  1. General
  2. Lodgement of Plans
  3. Readiness to Proceed for New Subdivisions
  4. The Plan Examination Process
  5. Plan Approval
  6. Where a Plan is shown examined and sent to WAPC
  7. Where a Plan is shown in Order for Dealings
  8. Where a Plan is shown Expired
  9. Comments with Internal Impact
  10. Comments with External Impact

1 General

The early stages of the subdivision of land involves the owner of the land to be subdivided engaging with private consultants, the relevant local government, state government agencies, utilities providers and the Western Australian Planning Commission (WAPC).  All proposals by a landowner to subdivide land are first submitted to the WAPC.  See also here and here for more information about the subdivision process in WA.

2 Lodgement of Plans

The registration system permits the licensed surveyor in charge of the subdivision to choose to lodge the plan at Landgate before the completion of all the civil works required for the subdivision are completed and before the final consent of the Western Australian Planning Commission is obtained.

Landgate uses this time to examine the plan (see SPP-19 Validation and Examination Practices).

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3 Readiness to Proceed for New Subdivisions

Refer to Section 2 of SPP-17 Lodgement Procedures

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4 The Plan Examination Process

see SPP-19 Validation and Examination Practices

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5 Plan Approval

The plan approval is governed by regulation 11 of the Transfer of Land (Surveys) Regulations 1995, which requires all the necessary instruments, applications or dealings transferring or disposing of the land to be registered before the plan is approved

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6 Where a Plan is shown examined and sent to WAPC

This notation indicates that the plan has been examined but the consent of the Western Australian Planning Commission (WAPC) has yet to be endorsed on it. The consent of the WAPC may be conditional upon the completion of, for example, the roads, drains and services by the developer and conveyancers should make their enquiries from the surveyor, not Landgate, to ascertain when the approval will be obtained.

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7 Where a Plan is shown in Order for Dealings

When a plan is placed 'In Order for Dealings' (IOFD), the conveyancer should make a careful inspection of notes in the ‘In Order for Dealings’ panel.

If no notes have been made, the plan may be unconditional, and subject to SUB-02 Applications for New Titles Section 1 merely requires an application by the land owner on an Application for new titles (subject to survey) , together with the production of the former duplicate titles (if any), for new titles to be created and registered.  However, the 'In Order For Dealings' panel is only a guide, and persons preparing documents for lodgement should satisfy themselves that no further requirements are needed to be met.

On the creation and registration of the titles the status of the plan is changed from 'In Order For Dealings' to 'Approved', with an operative date being the same date that the application for new titles was lodged.

The notes in the ‘In Order for Dealings’ panel fall into two categories:

  1. notes with internal impact that are an indication that on lodgement of a dealing, and formal approval of the plan, certain legal changes will occur, and action to record those changes will be made by Landgate staff, or
  2. comments with external impact that give notice to conveyancers that certain conditions must be met, usually by the lodgement of additional dealings.

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8 Where a Plan is shown Expired

Section 146 of the Planning and Development Act 2005 (P&D Act) places limits on the Registrar of Titles for the issue of new certificates of title, following approval of a Deposited Plan by the Western Australian Planning Commission (WAPC).

Owners of land the subject of plans that were endorsed with the approval of WAPC before the P&D Act came into operation on 9 April 2006 had 5 years after that day in which to lodge an application for new titles.  Owners of land the subject of plans that are endorsed with the approval of WAPC on or after 9 April 2006 had/have 2 years from the endorsed date in which to lodge an application for new titles.

8.1 Landgate’s System Status Change

For deposited plans that have been endorsed by the WAPC (i.e. status of WAPC Approved) that have not been dealt on within the required time frames as stated above, the system will automatically update their status to "EXPIRED" (this does not apply to strata).

8.2 Status of Expired Deposited Plan

If a plan has the "expired" status and the registered proprietor still wishes to proceed with the subdivision, then the owner will need to lodge a new subdivisional approval with WAPC (see 1 General above).

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9 Comments with Internal Impact

9.1 Section 168 (1) (2) of P&D Act

Where a plan creates new roads, s.168 (1) & (2) of the P&D Act provides a method of automatic transfer of the land in the road to the Crown, and dedication of the land for use as a legal, public road .

9.2 Section 167 of the P&D Act

Where a condition of approval to subdivide land is that easements be granted to either of the Local Government, the Water Corporation, Western Power or Gas Corporation then such easements may be set out on the new plan.

No consents are required from any mortgagee or other encumbrancer and the easement is created and shown on the new title created and registered for the separate lots on the subdivision.

If the easement later becomes unnecessary it may be removed by application of the grantee.

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10 Comments with External Impact

10.1 Multiple Owners

Where any of the new lots created on the plan are in multiple ownership, i.e. they are in different names, or different shares and tenancies, the plan examiner places a note on the plan ‘subject to multiple owners’.  When this occurs, all the owners must sign the application for titles for the new titles. Transfers may be required for new titles to align tenancy or create common ownership of the resulting new lots.

10.2 Section 152 of the P&D Act

Where it is a condition of approval by the Western Australian Planning Commission that a lot(s) shown on a Deposited Plan is to be set aside for pedestrian accessways, rights of way, reserves for drainage or recreation etc., that lot(s) is automatically transferred to the Crown when the new titles for the subdivision are created and registered.

A Crown Land Title, in the name of the State of Western Australia, will be created and registered for each lot that is vested in the Crown.  The Limitations, Interests, Encumbrances and notifications panel of Crown Land Title will contain the following notation:

VESTED BY THE REGISTRAR OF TITLES UNDER SECTION 152 OF THE PLANNING & DEVELOPMENT ACT 2005 FOR THE PURPOSE OF . . . . . . . . . . . .

The documents necessary to remove encumbrances such as mortgages and caveats on the land to be vested in the Crown must be lodged at the same time as the Application for new titles (subject to survey).

Easements and restrictive covenants may subsist on conversion to Crown Land.

Easements created under P&D Act s.167 can subsist on conversion to Crown land.

Access easements to adjoining land should not impede public use of Crown land but may subsist until alternative legal access is established.

CMS Gas Transmission of Australia easements that are not LAA easements are not acceptable and must be surrendered prior to conversion to Crown.  Private CMS Gas Transmission of Australia easements may be replaced with an LAA easement.

Notifications under P&D Act s.165 or s.70A of the TLA may transition across to the Crown if still valid.

Some other interests or encumbrances over vesting land will be considered by the appropriate Regional Manager in the Department of Planning, Lands & Heritage on a case-by-case basis to determine whether it is acceptable to the Crown.  The consent of the Regional Manager must be endorsed on the application to register the plan prior to lodgement.  Those not acceptable must be removed prior to conversion to Crown land.

10.3 Approval of another Plan

Occasions sometimes arise, especially in newly developing areas, that the lots on a new plan will front onto roads that are not connected to the road network as an intervening road, although constructed, is on a privately owned land.  The transfer to the Crown (and dedication as a public road) of the intervening road must occur before titles will be created on the new plan. As a caution to conveyancers the following comment will be placed on the new plan:

"subject to the approval of plan………."

The documents necessary to create the intervening road must be lodged before (or at the same time) applying for titles for the new subdivision.

10.4 Closure of Private Road or Right of Way

When a new plan includes land that is part (or all) of a private road, the Registrar cannot include the road in the new lots. As a caution to conveyancers the following comment will be placed on the new plan:

"subject to the approval of plan………."

The documents necessary to transfer the ownership of the private road to the owners of the land in the subdivision, and the documents to remove the rights of any person entitled to use the private road or R.O.W. must be lodged before (or at the same time) applying for titles for the new subdivision.

10.5 Road Widening (P&D Action Section 168 (5))

Where any lots are separated from an existing public road by a strip of land marked on the plan as road widening, the owners of those lots will have no legal public road access until the land in the strip is transferred to the Crown or Local Government (free of encumbrances) for dedicated road purposes.

An application to apply for a new title is not necessary.  The transfer of the land to the Crown or Local Government is the vehicle to approve the survey and create a new title for the land. The consideration panel of the transfer should contain the following words:

"In order that the land may be dedicated as a road pursuant to s.168 (5) of the Planning and Development Act 2005." As a caution to conveyancers the following comment will be placed on the new plan:

"subject to s.168(5) P&D Act 2005."

10.6 Road Widening (P&D Act Section 168 (3))

Where a new subdivisional plan shows a strip of land between lots and a public road, the owners of the lots will have no legal public road access until the land in the strip is vested in the Crown and dedicated for road purposes.  Formal approval of the new plan is withheld until an Application for new titles (subject to survey) is lodged at Landgate for the creation and registration of the new titles for the lots on the plan.

"subject to s.168(3) P&D Act 2005."

10.7 Land Administration Act 1997 (Section 87)

Where the land in a plan includes a portion of Crown land or the whole or part of a closed road, the following note is placed:

"subject to the inclusion of Crown land or subject to closed road."

The owner of the land in the subdivision must arrange for the acquisition of the Crown land and the creation of either a title or a Closed Road (Ministerial) Order before (or at the same time) applying for titles for the new lots.  The disposition of such land is under the control of the Department of Lands.

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This page was last updated on: 11 Nov 2022