Strata Titles policy and procedure guides

Version 1 - 09/04/2020

Version 2 - 01/05/2020

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 Strata Titles 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 Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

Version 2 - 01/05/2020

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 Strata Titles 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 Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

Individual strata lots are usually very small and the unit value of the land (and buildings) is high. So although the nature of the boundary definition is different, the need for accuracy of definition can be among the greatest of any type of subdivision and the consequences of errors or mistakes can be serious.

It is important that the surveyor uses professional ethics and puts in place an individual quality control process to ensure a high standard of survey. Surveyors must follow the regulations of a TLA survey.

1 Types of Lots

There are two types of lots under the STA, each using different lot boundary definitions:

• Strata lots are cubic space or spaces (i.e. three dimensional) referenced to a building which is shown on a Strata Plan.
• Survey-strata lots are defined by dimensions and survey information similarly to a TLA subdivision on a Survey-Strata Plan. They may be restricted vertically or unlimited in height and depth.

1.1 Strata Lots

Lots in strata schemes commonly use buildings to define all or some lot boundaries. Strata lots always remain within the confines of the parcel boundaries. Encroachments that extend beyond the parcel boundary can be treated as either common property or part of a lot depending on whether the strata company or the adjoining strata lot owner is responsible for the control and management of the encroachment.

Section 3(2) of the STA specifies the horizontal and vertical boundaries of the cubic space that can form each of the lots. This section also provides for variation of the boundaries of the cubic space to accommodate a specific circumstance. When a variation occurs, the boundaries described must relate to a wall, floor or ceiling. However, clause 3AB of Schedule 2A of the STA accommodates boundary definitions for “single tier strata schemes” by allowing boundaries to extend to the external surfaces of buildings.

Certain schemes will need obvious variations to wordings to fit specific circumstances. It is important that retaining walls, garden brick or stone walls and walls that extend from a building are defined so there is no confusion on ownership. Section 3(2)(b) of the STA allows for the wordings to meet specific needs.

1.1.1 Wording for all Strata Lots

If it is intended to keep the structure of buildings as common property or if it is a high rise building Regulation 15(2)(f) of the Strata Titles General Regulations 2019 (ST(G)R) states that if section 3(2)(a) applies to the floor plan, the scheme plan must contain a statement to the effect that the boundaries of the lots or parts of the lots which are buildings are the inner surfaces of the walls, the upper surfaces of the floor and the under surfaces of the ceiling. Therefore, the following wording could be used:

“Under section 3(2)(a) of the Strata Titles Act 1985, the boundaries of the lots or parts of the lots which are buildings shown on the Strata Plan are the inner surfaces of the walls, the upper surface of the floor and the under surface of the ceiling.(see Plan Example 18).

and for part lots that are external to the building a wording similar to the following could be used:

“the stratum of the part lots external to the buildings extends between 5 metres below and 10 metres above the upper surface level of the lowest ground floor of the building located on each respective lot except where covered”.

Note: The above wording is a guide only and may not be appropriate for Part Lots labelled Courtyard; Carbay; Terrace; Balcony etc. Every cubic space outside the building that forms a Part Lot must be clearly defined with reference to stated surfaces (see Plan Example 1 and Plan Example 6).

Section 3(2)(a) STA may not be appropriate so section 3(2)(b) may need to be used. Regulation 6 ST(G)R states that for the purposes of section 3(2)(b):

• if the cubic space is within a building that is not a single tier building, the boundaries of the cubic space must be described:
  • in the case of a vertical boundary, if the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition, by reference to the inner surface of that wall; and
  • in the case of a horizontal boundary, if any floor or ceiling joins a vertical boundary of that cubic space, by reference to the upper surface of that floor and the under surface of that ceiling.
• if the cubic space is within a building that is a single tier building, the boundaries of the cubic space must be described in a manner that unambiguously defines the cubic space and its location in relation to the relevant building.

Surveyors should use their professional judgment and where appropriate obtain legal advice to select the appropriate wording so there is no confusion as to the boundaries. For instance, if it is intended to clarify the ownership of floor tiles within a multi-tier building to be defined under either section 3(2)(a) or 3(2)(b), the wording in the building boundary statement on the plan could refer to the upper surface of the floor slab, which would suggest that the floor tiles are owned by the lot owner.

For a single tier scheme, if Schedule 2A clause 3AB is to apply, the following wording could be used if the building and attachments (see Schedule 1 clauses 4 and 5 of the ST(G)R are to be included as part of the lot as per regulation 15(2)(g) of the ST(G)R.

“Under clause 3AB of Schedule 2A of the Strata Titles Act 1985, the boundaries of the lots or parts of the lots which are buildings shown on the Strata Plan are the external surfaces of those buildings”.

and if applicable,

“Where 2 lots have a common or party wall or have buildings on them which are joined, the centre plane of that wall, or the plane at which they are joined, is the boundary”.

Schedule 1 clauses 4 and 5 of the ST(G)R outline the things attached to a building which are (clause 4) and are not (clause 5) to be included as part of a building when using Schedule 2A clause 3AB of the STA.

In the case where part lots are created outside the building a wording similar to the example below should be used:

“The stratum of the part lots external to the buildings extends between 5 metres below and 10 metres above the upper surface level of the lowest ground floor of the main building located on each respective lot, except where covered”.

This will ensure the cubic space above and below the buildings remains as “common property” (see Plan Example 16).

Surveyors and developers may however endeavour to include the areas above and below the buildings as part of the strata lot. The following wording or similar may be used on the floor plan of the strata plan:

“The stratum of the part lots, including the cubic space above and below the part lots comprising buildings, is limited between 5 metres below and 10 metres above the upper surface level of the lowest ground floor of the main building appurtenant to their corresponding Lot number, including where covered” (see Plan Example 17).

Surveyors may wish to seek legal advice as to the use of the above wording.

Note: “5 metres below and 10 metres above” is only used as a sample. Surveyors must look at each scheme and select the appropriate dimensions.

There are no regulations for defining height by Australian Height Datum (AHD) but in certain strata schemes a more precise datum for horizontal height definition may be critical. If possible, surveyors should:

• use heights above AHD to define all of the strata lots (if practical this is the preferred method)

or

• reference floor levels between buildings within the scheme.

If surveyors wish, they may reference AHD level to the floor of a building so the stratum of the scheme can be linked to AHD. This is advisable where accurate height definition is critical or where a building or part of a building is to be demolished and reconstructed. Surveyors should use their professional judgement on these issues.

For vacant lot strata plans, as a guide, the wording to describe the vacant lot may read:

"The stratum of Lot 2 extends between 5 metres below and 10 metres above the upper surface level of the lowest ground floor of the building erected on Lot 1"

or similar wording that clearly and unambiguously defines the Lot (see Plan Example 2).

1.2 Survey-Strata Lots

Lots created on a Survey-Strata Plan may be unlimited in height and depth (i.e. no AHD is necessary) or may be limited in height and depth using AHD levels. If limited in height and depth, the lot must have common property above and below it (see regulation 12(4),  Plan Example 3, Plan Example 4 and Plan Example 29).

Note: Plan Examples 3 and 4: Where area designated as common property is intended to restrict the height of another Lot, if there is an existing building on the land, then a notation on the plan should show reference to a stated surface of that building.

Version 2 – 01/05/2020

1 Subdivision of Land by a Strata Titles Scheme

Land is subdivided by a strata titles scheme by registration of the scheme or an amendment of the scheme. Registration of an amendment of a strata titles scheme gives effect to a subdivision if it:

• effects a change to the definition of a lot in the scheme; or
• effects a change to the boundary of the parcel of land subdivided by the scheme.

There are 4 types of amendment of a strata titles scheme that give effect to a subdivision:

• A type 1 subdivision covers
  • adding land from outside the parcel to the common property and
  • what was formerly referred to as conversion of lots into common property.
• A type 2 subdivision covers the removal of common property from the parcel of a strata titles scheme.
• A type 3 subdivision covers what was formerly referred to as consolidation of lots.
• A type 4 subdivision covers what was formerly referred to as re-subdivision of lots and/or common property.

A Type 4 subdivision (re-subdivision) includes the alteration of the boundaries of:

• 1 or more lots so as to create only 2 or more different lots; or
• 1 or more lots so as to create 1 or more different lots and common property; or
• 1 or more lots and common property so as to create 1 or more different lots or 1 or more different lots and common property; or
• common property so as to create 1 or more lots or 1 or more lots and common property.

Schedule 2A of the STA provides special provisions relating to subdivision in a single tier strata scheme and special processes for tier strata schemes registered before 1 January 1998 to allow mergers of common property into lots and conversions of strata schemes to survey-strata schemes – see STP-05 Strata Company.

2 Registration of a Strata Titles Scheme

A strata titles scheme is registered when the following scheme documents are registered:

• for a freehold scheme —
  • a scheme notice;
  • a scheme plan;
  • a schedule of unit entitlements;
  • scheme by-laws;
• for a leasehold scheme —
  • a scheme notice (which must specify the expiry day for the scheme);
  • a scheme plan;
  • a schedule of unit entitlements;
  • scheme by-laws;
  • a strata lease for each lot.

For full registration details see STR-02 Lodgement and Registration of New Strata/Survey-Strata Plans

If the governance by-laws in Schedule 1 conduct by-laws Schedule 2 of the STA are adopted without amendment, they will be taken to be registered without the need for lodgement of a scheme by-law document.

A registered strata titles scheme is amended when amendments or replacements of the relevant scheme documents are registered.

The amendment may be necessary to give effect to a subdivision of land or it may be unrelated to a subdivision of land, comprising, for example:

• the amendment of the scheme notice to amend the scheme name or address for service of the strata company; or
• the amendment of the scheme plan for a purpose related to:
  • an easement or
  • restrictive covenant or
  • a restricted use condition
• The replacement of the schedule of unit entitlements for the strata titles scheme because of reallocation of unit entitlements of lots; or
• the addition, amendment or repeal of scheme by-laws.

If a registered leasehold scheme is amended to create new lots, a strata lease must be registered as a scheme document for each new lot.

3 Strata Titles for Freehold Schemes

A strata title is a title for a lot on a Strata/Survey-Strata Plan and includes a share in any common property in the scheme. Anything occurring on or in respect of common property affects every title in the scheme. This title provides the basis for recording transactions affecting the ownership and interests in relation to the lot.

A strata title also contains a notation in its second schedule referring to “interests notified on the strata/survey-strata plan”. This means there could be other interests that are not recorded on the title that may benefit or encumber the common property or lot. Therefore, a strata title should always be searched in conjunction with the strata/survey-strata plan.

Where any common property only is re-subdivided to create new lots, the resulting titles will be issued in the name of all of the registered proprietors as tenants in common. This may cause problems, particularly in large schemes, because of the requirement to obtain consents of all mortgagees and the signatures of all owners.

A strata title for a lot in a freehold scheme grants to the owner of the lot:

• rights as the proprietor of a fee simple estate in the lot under the Transfer of Land Act 1893 (TLA); and
• an undivided share of the fee simple estate in the common property (other than temporary common property) as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots; and
• an undivided share of any temporary common property (leasehold estate) as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots.

The underlying certificate of title of a freehold scheme is cancelled upon registration of the scheme.

4 Strata Titles for Leasehold Schemes

A strata title for a lot in a leasehold scheme grants to the owner of the lot:

• rights as the proprietor of a strata leasehold estate in the lot under the TLA; and
• an undivided share of the strata leasehold estate in the common property as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots; and
• an undivided share of the temporary common property (leasehold estate) as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots.

For a leasehold scheme, the fact that it is a leasehold scheme and its expiry day must be endorsed on the certificate of title for each strata title for a lot in the scheme.

The underlying certificate of title of a freehold scheme remains live throughout the life of the leasehold scheme.

Version 2 – 01/05/2020

1 Strata Company

On registration of a strata titles scheme, a strata company is established. The name of the strata company is “The Owners of (the name of the scheme and the strata/survey-strata scheme number).

The name of the strata titles scheme is the name stated in the scheme notice. The address for service of the strata company is the address for service stated in the scheme notice.

A strata company:

• is a body corporate; and
• has perpetual succession; and
• is capable of suing and being sued in its own name; and
• has, subject to the STA, all the powers of a natural person that are capable of being exercised by a body corporate.
• is governed by the council of the strata company
• may have a common seal, but it does not have to do so.
• is comprised of the owners for the time being of the lots in the strata titles scheme.

Version 2 – 01/05/2020

1 Review of Planning Commission Decision (Section 27 STA)

The WAPC must give written notice of its decision to the applicant. A person who has made an application may apply to the State Administrative Tribunal (SAT) for a review of a decision to:

• refuse to approve an application for subdivision by strata scheme; or
• impose a condition of an approval for subdivision by strata scheme; or
• refuse to vary or revoke a condition of an approval for subdivision by strata scheme; or
• refuse to approve an application for approval of the making, amendment or repeal of leasehold by-laws for postponement of the expiry day of a leasehold scheme; or
• refuse to approve an imposition, variation or revocation of a restricted use condition;
• refuse to approve an amendment or repeal of planning scheme by-laws.

SAT has jurisdiction to carry out the review in accordance with the P&D Act Part 14. If at the end of 90 days or longer if agreed in writing by WAPC and the applicant after an application is made, WAPC has not made a decision, the applicant may give written notice of default to the WAPC.

If WAPC fails to notify its approval of an application to the applicant within 90 days (after being given the application), it is taken to have refused the application at the end of that period ‘deemed refusal’.

If an applicant is aggrieved with a decision of the WAPC (refusal, approval subject to conditions), an application to SAT for a review must be made within 28 days after the day on which the applicant is given, notice of the refusal or attachment of a condition, or within 28 days after the expiration of the period referred to the previous paragraph, as the case may be.

If a notice of default is given to WAPC, the applicant may apply to SAT for a review, in accordance with the P&D Act Part 14, as if WAPC had refused to approve the application on the day on which the notice of default was given to the Planning Commission.

2 Review of Local Government Decision (Section 28 STA)

A local government must give written notice of its decision to the applicant. A notice of refusal to approve an application must:

• specify the grounds of refusal; and
• inform the applicant of the right to apply for a review of the refusal.

An applicant may apply to SAT for a review, in accordance with the P&D Act Part 14, of:

• a refusal by local government to approve an amendment or repeal of scheme by-laws under a planning condition (section 22); or
• a refusal by local government to approve an application for a type 1(b), 2 or 3 strata subdivision; or
• the attachment of a condition to the approval of an application under section 23 or 24; or to refuse to approve acceptance of a long term lease of temporary common property under section 25; or
• a decision to refuse to approve a long term lease or licence over common property under section 26.

If local government fails to notify its approval of an application to the applicant within 40 days (or longer if agreed in writing by local government and the applicant) after being given the application, it is taken to have refused the application at the end of that period.

An application to SAT for a review may be made within 30 days after the day on which the applicant is given, notice of the refusal or attachment of a condition or within 30 days after the expiration of the period referred to the previous paragraph, as the case may be.

Version 2 - 01/05/2020

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 Strata Titles 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.

The Scheme Notice of a strata titles scheme is document must:

• specify the name of the scheme; and
• specify the address for service of the strata company; and
• identify the scheme as a leasehold scheme (leasehold scheme only); and
• specify the expiry day for the scheme (leasehold scheme only)
• be in an approved form.

The Scheme Notice is lodged with the application to register the strata titles scheme and is registered on the scheme plan. For more information on the lodgement and registration and amendment of the Scheme Notice see STR-02 Lodgement and Registration of New Strata/Survey-strata Plans.

The Scheme Notice can be amended to:

• change the name of the scheme and/or the address for the service of the strata company (section 30 STA).
• postpone the expiry day of the leasehold scheme (section 31 STA).

For more information on the amendment of the Scheme Notice see STR-06 Modifications to an Existing Strata/Survey-strata Scheme.

Version 5 - 25/05/2020

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 Strata Titles 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.

Contents

1 Scheme Plan (section 32 STA)

1.1 Surveys of Strata and Survey-Strata Plans

1.2 Surveys of Strata Plans

1.3 Surveys of Survey-Strata Plans

1.4 Common Guidelines

1.5 Drafting Requirements

1.5.1 Scale

1.6 Plan Forms and Use

1.7 Orientation

1.8 Line Styles

1.9 Text Styles

1.10 Measurement Presentation

1.11 Road Names

1.12 Areas

1.13 Abuttals

1.14 Enlargements and Displaced Data

1.15 Cross Sections

1.16 Easements

1.17 Schedule of Interests and Notifications

1.18 CSD Files

1.19 Depth Limits and Crown Allotment Boundaries

1.20 Mineral Reservations

1.20.1 Reservations in Crown Grants

1.20.2 Lands Affected by Section 15 of the Public Works Act 1902

1.20.3 Mineral Reservations in Transfers

1.21 Vesting Lots

1.22 Automatic Road Dedications

1.23 Restricted Use Condition

2 Drafting of Strata Plans

2.1 Components of a Strata Plan

2.2 Location Plan

2.2.1 Single Tier Schemes

2.2.1.1 Option 1

2.2.1.2 Option 2

2.2.1.3 Option 3

2.2.2 Multi Tier Schemes

2.2.2.1 Option 4

2.2.2.2 Option 5

2.2.2.3 Option 6

2.3 Offsets, Easements over Encroachments and Easements of Support

2.4 Floor Plan

2.5 Surveyors Certificate

2.6 Measurement Contents

2.7 Describing Cubic Space

2.8 Large Plans (Rural or Staged)

3 Drafting of Survey-Strata Plans

3.1 Easements

3.2 Surveyors Certificate

3.3 Certificate of Verifying Surveyor

3.4 Pegs

3.5 Other Information

3.5.1 Encroachments, Building Connections

3.6 Easements and Restrictive Covenants

3.6.1 TLA Easements

3.6.2 Easements That do not meet the terms in the Tenth Schedule of the TLA

3.6.3 P&D Act Easements

3.6.4 STA Easements

3.7 Restrictive Covenants

4 Requirements for Registration of a Scheme Plan

4.1 Permit Authority Certification

4.2 WAPC Certification

4.3 Cancellation of a Strata/Survey-Strata Plan

4.4 Requirements for Registration of Amendment of a Scheme Plan (section 35 STA)

4.4.1 Type 1(a) Subdivision - Addition of Common Property from Outside the Parcel

4.4.2 Purchase and Amalgamation of Closed Roads or Crown Land

4.4.3 Registration Procedures for Amalgamation of a Closed Public Road or Other Crown Land

4.4.4 Amalgamation of Closed Private Roads or Ways

4.4.5 Acquiring Additional Land by Transfer

4.5 Plans Required for Type 1 (a) Subdivisions

4.6 Type 1(b) Subdivision - Conversion of Lot/s Within a Scheme to Common Property

4.7 Type 2 Subdivision - Transfer of Common Property

5 Summary

5.1 Permit Authority Certificate

5.2 Type 3 Subdivision - Consolidation of Lots

5.3 Type 4 Subdivision - Re-subdivision of Strata Titles Schemes

5.4 Surveyor's Certificate

5.5 Strata Schemes

5.6 Drafting Guideline

5.7 Permit Authority Certificate

5.8 Survey-Strata Schemes

5.9 Significant Variations on Staged Schemes

1 Scheme Plan - section 32 Strata Titles Act 1985 (STA)

A scheme plan for a strata titles scheme means the strata plan or survey-strata plan registered, or proposed to be registered, for the strata titles scheme as a scheme document. Unlike plans and diagrams deposited under the Transfer of Land Act 1893 (TLA), strata and survey-strata plans become part of the land register and once registered, cannot be varied or terminated without due registration procedures. It is therefore important that accurate information be incorporated into both the survey and the drafting components of any scheme plan. The land identified by a scheme plan must be comprised of a single lot on a plan lodged at Landgate and be the subject of a certificate of title.

A Scheme Plan must:

• specify the address of the land subdivided by the scheme; and
• identify the title to the land subdivided by the scheme; and
• specify whether the scheme is a strata scheme or a survey-strata scheme
  • if it is a strata scheme – it must consist of a location plan and a floor plan;
  • if it is a survey-strata scheme – consist of a survey plan of the land subdivided by the scheme; and

• identify each lot in the scheme with a unique number; and
• define the boundaries of each lot; and
• delineate any land that is to vest in the Crown under Sec 152 of the Planning and Development Act 2005 (P&D Act); and
• delineate areas that are roads, or are to be new roads created by Sec 168 of the P&D Act; and
• if it is a strata scheme, identify the nature and extent of any part of a wall or building or material attached to a wall or building that encroaches on land outside the parcel
  • if an encroachment is to be controlled by and managed as if it were common property or part of a lot, the plan must specify that fact (regulation 15 of the Strata Titles (General) Regulations 2019 (ST(G)R); and
  • if an encroachment is to be subject to an easement, specify that easement.

A scheme plan for a survey-strata scheme may create a lot as a cubic space lot (limited in height and depth) only if the balance of the land above and below the lot is common property.

The survey requirements for each plan type are different because of the variation in the type of development. Consequently, many of the decisions in regard to referencing, pegging and marking rely on the surveyor’s professional judgement. There are, however, regulations in place for the responsibility, accountability and consequences of certification under the Licensed Surveyors Act 1909 (LSA).

Surveyors should note that each plan type has different survey requirements because a Strata Plan relates mainly to “monuments” and a Survey-Strata Plan relates mainly to survey measurements.

The surveyor must sign a certificate (Regulation 54 of the Licensed Surveyors (General Surveying Practice) Regulations 1961) which certifies that the plan is accurate and a correct representation of the survey and calculations from measurements recorded in field notes and that it also complies with the relevant written laws and regulations in relation to which the plan is lodged.

1.2 Surveys of Strata Plans

Surveys for strata plans require re-establishment of the parcel boundaries (based on rigorous pickup as for TLA subdivisions), followed by the positioning of the buildings and part lots that are external to the building or buildings.

On the occasions where significant excess or any deficiency is discovered during a re-establishment survey a field book needs to be lodged. If necessary, the surveyor may lodge a “Redefinition Plan” to show the correct dimensions and area and an application for a new title can be made. A “Redefinition Plan” is necessary when the differences are outside the ‘margin of error’ covered by section 155 of the TLA.

Connections of buildings to the boundary of the parcel should be to cadastral re-establishment standard. Street corners used for pickup should be referenced or protected and it is prudent to place a strategic reference mark near the scheme.

Survey work performed on a strata plan can result in a combination of measurements, monuments and height dimensions to define the horizontal and vertical lot boundaries. As a strata plan is an authorised survey and Regulation 8(2C) of the Licensed Surveyors (General Surveying Practice)Regulations 1961 requires a field record to be lodged with the plan of the authorised survey, a field record must be lodged for:

• all new strata plans
• type 1 subdivision (adding land from outside the parcel to the common property and converting a lot within a scheme to common property)
• type 2 subdivision (removal of common property from the parcel)
• type 3 subdivision (consolidation of lots)
• type 4 subdivisions (re-subdivisions) and
• mergers

Connections to standard survey marks may need to be made in accordance with guidelines under regulation 22A of the Licensed Surveyors (General Surveying Practice) Regulations, 1961.

It is recommended that strata be related to Australian Height Datum (AHD) wherever practical, especially in larger schemes, staged schemes and vacant lot schemes. Maintenance of views is an emotive issue, and there is potential for confusion or mistake when building construction extends over several years and involves more than one surveyor – a problem which is overcome if AHD is used as standard practice.

1.3 Surveys of Survey-Strata Plans

The survey for a survey-strata plan (as well as a strata plan) is an authorised survey as defined in the Licensed Surveyors Act 1909 (LSA). It (the survey) must be carried out by a licensed surveyor with a current practising certificate. A survey-strata plan needs to be certified by a surveyor eligible to verify survey documents (see section 3.3 of this guide).

Surveyors should note that the certification of a survey-strata plan is similar in content and therefore in responsibility, accountability and consequences to that of a certification under the LSA. The surveyor certifies to the correctness and to compliance with the regulations, and the significance of that must not be overlooked.

Surveys for survey-strata schemes of more than 10 serviced lots where roads are created, or where areas of common property are used as roads, must be lodged in accordance with the Special Survey Area (SSA) guidelines (available from www.lslb.wa.gov.au/) (see Plan Example 44).

Surveys for a survey-strata scheme within an existing SSA must be lodged in accordance with the SSA guidelines: i.e. lodge a field record and not a Survey Sheet (see SSA guideline 10.0).The following guidelines apply to both new survey-strata schemes and conversions to survey-strata under Schedule 2A of the STA.

The survey for a survey-strata plan should be to a standard equivalent to that for a TLA survey. This enables it to be used for re-establishment of later adjacent or nearby TLA surveys (and it should be considered by any later TLA survey).

A survey for a survey-strata plan should comply with the regulations under the LSA and TLA and specifically those dealing with:

• pegging or other marking of lot corners and boundaries for the public
• referencing of lot corners
• accuracy

and

• recording of field notes.

The surveyor should be guided by the Survey and Plan Policy and Procedure Guides, particularly SPP-03 and SPP04.

Connections to standard survey marks may need to be made in accordance with guidelines under Regulation 22A of the Licensed Surveyors (General Surveying Practice) Regulations, 1961.

Digital data (CSD file) is required with each survey-strata plan for examination purposes and integration into the cadastre. All lots should be captured as freehold lots. Easements and 3-dimensional lots are to be captured in two dimensions (plan view) only.

• On large survey-strata schemes, common property used as a road should be referenced as required for roads by the general survey regulations or guidelines.
• Regulation 24A of the Licensed Surveyors (General Surveying Practice) Regulations 1961 and TLA survey regulations 23, 32 and 35, dealing with protection of pickup, apply equally to survey-strata schemes.
• In numbering the pegs of a survey-strata plan, the “CP” prefix should be included on common property areas.
• All new lot corners must be pegged, marked with non-standard marks or noted why they cannot be marked ie “Corner Inaccessible’.
• Existing parcel corners where not marked are considered to be original.

If the survey-strata plan creates lots that are limited in height and/or depth, those limits must be related to AHD, and a connection should also be made to a physical reference datum on or near the site. This height reference mark should be recorded in the field record (see Plan Example 4 and Plan Example 29).

This AHD requirement also applies to “intrusion easements”. The AHD is to be applied to a stated surface, i.e. a floor level of a building or ground level on the scheme or a SSM or Water Corporation Manhole adjacent to the scheme, on a cross sectional drawing to define the area of intrusion (see Plan Example 10).

1.4 Common Guidelines

Many guidelines for drafting apply to all scheme plans under the STA, including:

• strata plans
• survey-strata plans
• merger sketch plans
• plan of conversion to survey-strata
• scheme plans of type 1 subdivision (inclusion of common property)
• scheme plans of type 2 subdivision (disposal of common property), and
• scheme plans of type 3 subdivision (consolidation), and
• scheme plans of type 4 subdivision (re-subdivision)

For convenience, these common guidelines are recorded in this chapter.

For easier recognition by users, it has been attempted to achieve uniformity in drafting practices and conventions between TLA plans and STA plans. The more commonly used conventions have been recorded in this chapter, but not those which are rarely needed.

Where a topic is not covered by these guidelines, it is suggested that there may be appropriate guidance in the Survey and Plan Policy and Procedure Guide.

1.5 Drafting Requirements

As each development can differ, practitioners should use their professional judgment to produce a clear unambiguous product.

All plans must clearly show the vertical and horizontal boundaries of each lot by either dimension or notation. Past confusion of lot boundaries on plans registered before the Strata Titles Amendments Act 1995 could have been avoided if the information for lot definition had been clearly and simply depicted on the plan. This aspect of strata practice is increasing in importance as lot owners and purchasers become more discerning.

The compulsory disclosure requirements on the sale of strata properties (see A Guide to Strata Titles) make it essential that lot boundaries are clearly identified. The STA requires the buyer be given a copy of the scheme plan before the buyer signs the contract for sale. All information in relation to lot boundaries should be clearly identified. Cross sections and enlargements are encouraged to illustrate complex boundaries.

Buyers must be notified of any changes to the plan, or proposed plan, as a sale may be avoided if this information is not provided.

1.5.1 Scale

An appropriate metric representative fraction should be chosen and must be sufficiently large to enable all detail to be clear and legible. Because strata plans and survey-strata plans are photo-reduced for search purposes, a graphical (bar) scale is to be shown on the plan. This should be a basic scale bar drawn as a single line with the appropriate divisions.

1.6 Plan Forms and Use

All plans (including types 1 – 4 subdivisions and mergers lodged for registration are required to include a version/ amendment schedule, the same as shown on deposited plans.

A company stamp or logo may be placed on the plan form. The stamp must not obscure detail on the plan.

There is no limit to the number of lots that may be depicted on a strata or survey-strata plan, if there is sufficient space available, but a clear concise image must be able to be reproduced. A location and floor plan can be placed on the same sheet of a strata plan. Provided there is sufficient space, a schedule of unit entitlements and valuer’s certificate or the surveyor’s certificate may also be placed on the plan sheet.

Electronic Lodgement is compulsory for all field records and scheme plans. Appendix 6 (APX-06) of the Survey and Plan Policy and Procedure Guides provides guidelines on the preparation and lodgement of electronic plans.

To avoid or minimise enquiries being made at Landgate about unlodged plans and/or field books using pre-allocated numbers, surveyors should stamp, or otherwise indicate on any copy of a Plan provided to a client or conveyancer that the copy is an ‘unlodged version’.

Pre-allocation provides settlement agents and lending institutions the opportunity to prepare their documents for registration prior to the scheme plan being lodged at Landgate.

1.7 Orientation

The orientation on scheme plans is to be indicated by a north point arrow and preferably should be approximately 70mm long. It is preferable that the north point be parallel to the side edge of the form, but the orientation may be rotated in order to incorporate a best scale. Preferably, the north point should not point generally downwards on the form. Location plans and floor plans must have the same orientation. All sheets of a survey-strata plan must be on the same orientation.

1.8 Line Styles

The line styles recommended below will ensure readability when scheme plans are printed or viewed at reduced size:

• Parcel boundary- 0.25mm
• Internal lot boundaries that are not monuments- 0.25mm
• Boundary lines that are monuments on strata plans- 0.5mm
• All lot boundaries on survey-strata plans- 0.25mm
• Crown allotment boundaries (required for depth limits only-) broken 0.35mm

and

• Easement boundaries- broken 0.25mm.

1.9 Text Styles

When preparing the scheme plan the below table should be used as a guide:

Text Styles and Size

The font used for these texts is to be of a type such that the first priority is optimum legibility of a reduced size copy. It should be an open style without serifs and with clear distinction between similar shaped figures and with a readily visible decimal point. The preferred font styles are Arial and Isocpeur.

1.10 Measurement Presentation

• Distances should be shown in metres to the nearest 0.01 metre or 0.001 metre.
• For distances less than one metre the decimal point should be preceded by a “0” (e.g. 0.75 not .75).
• “0” need not be shown as the last character of a length, to the right of the decimal point (e.g. 15.10 is expressed as 15.1 and 15.100 is also expressed as 15.1).
• Angles should be shown to the nearest second.
• Nil seconds or nil minutes and seconds need not be shown (e.g. 170º 0’0” is expressed as 170º, 170º11’0” is expressed as 170º11’).

1.11 Road Names

Road names to be shown on scheme plans should primarily be obtained from the street address information in MapViewer Plus on Landgate's website. This information can further be verified against the street centreline data that is also available in MapViewer Plus.

In addition, the scanned images of the hard copy Survey Index Plans (SIP’s) can also be viewed via the MapViewer Plus, but it must be noted that maintenance of this series of plans no longer takes place. Road names must be easily recognised on the face of the plan.

Surveyors are advised that, in the situation where an area of common property on a survey-strata plan is to be known by a street/road name approved by Landgate’s Geographic Names, the plan graphic should display the area of common property number only. A note should be placed on the sketch plan, outside the graphic, indicating the approved street/road name of the  area of common property (see Plan Example 65). Certificates of Title issuing from the plan will show the allocated Property Street Address referring to the street/road name given to the area of common property.

1.12 Areas

• For areas less than 10,000 square metres, area is shown to the nearest square metre (e.g. 9446m²).
• For areas of 10,000 square metres or greater, area is shown in hectares to four decimal places (e.g. 9.2713 ha). “0” need not be shown as the last character of an area to the right of the decimal point (e.g. 6.4500 ha to be shown as 6.45 ha).

Areas are to be shown for each lot, part lot and area of common property shown on the plan. For part lots the total area of all the parts should also be shown (in brackets) within the main part lot, which is normally the part lot forming or comprised in the building in the case of a strata plan, or the largest part lot in the case of a survey-strata plan.

1.13 Abuttals

A scheme plan must show as abuttals the number of any abutting lots for which certificates of title have issued at the time of lodgement of that plan. Lots on plans that have been lodged but not yet approved (shown on “lodged layer” of SCDB) must not be shown as abuttals unless the surveyor provides evidence satisfactory to Landgate that lodgement of dealings for those lodged plans is imminent.

The numbers of all current adjoining lots are to be shown with their plan numbers shown below them and prefixed P, D or DP. Where subdivisional plans were subdivided into sheets for convenience plan sheet numbers are to be included. E.g. P1234 (1). If the original plan is a multi-sheet ‘Deposited Plan’, the sheet number should not be included because any or all of the sheets may contain relevant information.

If the abutting lot is the subject of a strata titles scheme, regardless whether it is a strata plan or a survey-strata plan, the number should be placed (in brackets and prefixed SP) under the lot number on the  TLA plan number.

Prior to 23 January 2004, abutting land coloured brown on surveys was generally labelled:

"Private Appurtenant"

or

"Private Non-Appurtenant"

depending on the circumstance. After this date the reference to implied rights could only be used when section 167A of the TLA applied.

The following notes should be used as a guide to notations placed on strata/survey-strata plans:

• Abutting land coloured brown and labelled

“ROW”

created on an adjoining survey is to be labelled

and the survey number followed by “Coloured brown on Diagram/Plan”.

Section 167A TLA does not apply.

• Abutting land coloured brown and labelled

“Road”

or with a road name if one exists, created on an adjoining survey is to be labelled

“Road”

or the road name and the survey number followed by “Coloured brown on Diagram/Plan”.

• Abutting land coloured brown and unlabelled, created on an adjoining survey or on a parent survey will show the survey number  followed by “Coloured brown on Diagram/Plan”.

Section 167A TLA does not apply (see Plan Example 14).

• Abutting vested PAW’s and ROW’s, whether created on the parent survey or not, are considered for public use and hence labelled. The creating survey number is also shown.
• Abutting land coloured brown and labelled

“ROW”

created on the parent survey is to be labelled

“ROW”.

and the survey number followed by “Coloured brown on Diagram/Plan”

Section 167A TLA does apply. This notation must be brought forward in the “Interests and Notifications” Schedule (see Plan example 10).

• Abutting land coloured brown and labelled

“ROAD”

or with a road name if one exists, created on the parent survey is to be labelled

“ROAD”

or the road name and the survey number followed by “Coloured brown on Diagram/Plan”.

-    Abutting railway reserves are labelled

“Railway”

and the plan number shown.

• Abutting drain reserves are labelled

“Drain”

and the plan number shown.

In many country townsites, for example Kalgoorlie, there are many public undesignated accessways created on Crown survey plans. These are shown with the Plan number and designated ‘Public ROW’ in brackets.

1.14 Enlargements and Displaced Data

In order to maintain clarity or overcome a lack of space, enlargements or ticking in detail may be used. The ticked in detail should be parallel to the line in the case of a linear measure and on the half angle in the case of an angular measure. Enlargements need not be drawn to scale (see Plan Example 12).

1.15 Cross Sections

Cross-sections may be used to assist in clarifying lot boundaries. The sectional view must be identified on the plan view by lines of cut and referenced by alpha characters. The cross-section must reflect that cut. Horizontal boundaries must be referenced to a monument such as a floor, footing or AHD. The scale should be the same as for the floor plans and depiction of the cross-section should contain enough measurements to clearly establish the boundaries.

On strata plans, the cross-section cut should be through the lots depicted on the floor plan. The cross-section is used to illustrate the horizontal boundaries of the lots (see Plan Example 7).

The scale should be large enough to show all detail clearly and the drafting convention should follow architectural methods.

Cross-sections on survey-strata plans can be used to depict the limits of the cubic space forming the lots and for illustrating the extent of easement limits. It is permissible to include the outline of the walls and other structural information so that a lay person can identify the boundaries (see Plan Example 14).

1.16 Easements

Easements created under section 136C of the TLA automatically on strata plans are shown on the floor plan sheet of the strata plan by broken lines. Where the easements are created over common property or outside buildings, they and those created under section 167 of the P & D Act should be depicted on the location plan. Easements on survey-strata plans must be shown on the lots or areas of common property that are affected. The easement's extent is to be measured to normal survey standards providing sufficient dimensions to enable accurate establishment of the easement boundaries. This extent may be vertical as well as horizontal. It is important that representation of this information is easily understood so that there will be no grounds for boundary disputation in the future (see Plan Example 12).

1.17 Schedule of Interests and Notifications

To assist in identifying all the interests on a plan the details are to be recorded in a “schedule of interests and notifications”. Existing interests, apart from mineral reservations, that affect the whole of the land within the strata titles scheme, are not to be shown in the schedule as these are automatically carried forward within the New Land Registry (NLR). The schedule is to contain a dividing line where all existing interests and notifications of a spatial nature being brought forward are listed chronologically above “the line” and all new interests and notifications are to be shown below “the line” together with any interests being spatially modified. A title under NLR will contain all the “live” interests affecting that title in the Second Schedule. Surveyors will need to identify the best source for the spatial information of each interest and accurately plot the interests on the plan and include the item in this schedule.

N.B. For plans created in the Plan Portal, all interests, whether of a spatial nature or affecting all of the land in a strata titles scheme, will be brought forward onto the Schedule of Interests and Notifications.

The heading of the schedule should always be “INTERESTS AND NOTIFICATIONS” regardless of whether it may contain only interests or notification(s).

Implied rights-of-way (refer section 167A of the TLA) that have not been extinguished must be brought forward onto new plans and listed in the schedule of interests and notifications. The lots and common property (if applicable) within the subject of the plan that have an implied benefit of the easement are to be shown in the schedule under the “Benefit To” column (see Plan Example 10).

Where a Part IVA of the TLA “Short Form” easement is being created on a new plan (with or without an instrument) its purpose must be described as per the relevant easement type listed in Column 1 of the Tenth Schedule of the TLA. Rights of carriage-way created under section 136C of the TLA must be described in the schedule as “Rights of Carriage way”. Any Part IVA easements that do not use the Ninth or Tenth Schedule must be described in the schedule as “Easement” only.

Easements created on survey-strata plans under section 33 of the STA and Part 5 of the STGR (with or without an instrument) must be described in the schedule as per the relevant “short form” easement type listed in ST(G)R regulation 23. The burdened and benefitted lot(s)” are to be listed in the “Land Burdened” and “Land Benefited” columns in the schedule, respectively. The Planning and Development Regulations 2009 require that section 167 P&D Act easements on plans must be shown in such a manner as to identify the easement holder and the associated purpose shown also .

Surveyors should be aware that with the Planning and Development Regulations 2009 commencing as of 1 July 2009, IRRIGATION easement has been included as a benefit to Water Corporation, UTILITY SERVICES (Drainage, Sewerage, Water Supply Services, Electricity, Gas Supply Services and Telecommunications Supply Services) easements can now be created to benefit a Utility Service Authority and there is no longer the provision to distinguish between above ground and below ground electricity.

Existing easements created under section 27A of the Town Planning and Development Act 1928 (TP&D Act) and section 167 of the P&D Act, prior to 1 July 2009, are to be labelled as per the Town Planning and Development (Easement) Regulations 1983 i.e. appropriate regulation number shown within a circle and the associated purpose shown.

It is preferred that all other easements be labelled with a capital letter. The use of labels like “E-1”, “E-2” etc. is also acceptable. The labels used in the graphic area of the plan are also to be shown in the schedule (see Plan Example 12).

Easements that are created in documents and depicted on plans must be referred to in the schedule as “Easement” only.

Where the same portion of a lot or common property is burdened by multiple easements there must be an individual endorsement for each easement in the schedule. Multiple ‘short form’ easements cannot be combined (see Drafting of Survey and Plan Example 38). Easements/Restrictive Covenants created pursuant to legislation must include a reference in the Statutory Reference column of the schedule to the section of the Act (or regulation) under which they are created.

Where Instruments are used to define a "term", an expiry date should be specified in the “comments” column.

It is important to ensure that the burden of existing easements and covenants of a spatial nature that affect the parcel of land (i.e. within the subject of the plan) are shown in the schedule. An endorsement on the existing title and instrument that is being referred in the schedule on the plan must not be interpreted or modified.

It is only necessary to bring forward (into the schedule) a benefit to land within the plan if that benefit has a spatial nature that exists on a sketch in a paper title or in a document, or on a previous plan and that benefit needs to be depicted on the plan. An example of a situation where a plan would need to show a benefit over land inside the plan is where a new lot contains land that was formerly within two previous lots and only one of those former lots had a benefit that is to be brought forward. Implied easements under section 167A of the TLA are also an example of a situation where the benefit needs to be shown in the schedule and the appurtenance of the private right-of-way needs to be depicted on the plan.

It will not be necessary to bring forward onto the schedule any benefit to land outside the plan created by existing easements and covenants where the burden of the easement or covenant affects land inside the proposed plan. A reference is to be made in the schedule to the relevant parent document. Where subsisting benefits are associated with easements and covenants in gross, the beneficiary (as recorded in the original document or plan) must be shown.

If an existing easement or covenant burdening land outside the plan is being modified, in a spatial manner, by a document to be lodged with the plan, and a benefit (of a spatial nature) inside the plan needs to be identified, the benefit of that easement or covenant needs to be shown in the schedule on the plan (below “the line”).

The schedule should, wherever possible, be included with the location plan. If this is not practical, then the schedule may be shown on a separate sheet with references to labels and line-work depicting the interests shown on the location plan.

Where:

• new notifications under section 70A of the TLA and section 165 of the P & D Act along with
• lots to be vested in the Crown under section 152 of the P & D Act and
• automatic Memorials under section 67B of the Water Agencies (Powers) Act 1984 or section 62D of the Water Boards Act 1904

are to be shown as a development condition, they should be shown below a dotted line in the schedule (see Plan Example 7).

Lots burdened by a notification are to be shown but the “benefit to” column is to be left blank. The description used on the plan must match exactly the description used in the notification document. If the wording in the description of the notification is lengthy, it (the wording) should not be placed on the plan (see Plan Example 2 and Plan Example 18).

An easement created on a deposited plan, strata/survey-strata plan or shown on an Interest Only DP in favour of land outside the subject land supporting a strata titles scheme should be dealt with in the following manner in the schedule:

• Where the abutting strata/survey-strata plan is not registered, the easement should be shown as a "Benefit To" the freehold lot on the underlying survey.
• Where the abutting strata/survey-strata plan is not registered but the strata lots are shown as a "Benefit To" then the In Order For Dealings panel on the plan will show "Pends Registration of SP#####”. In this case the Surveyor should indicate the order in which the plans will be dealt on. E.g. Lots 1 & 2 & Common Property on SP59152 or All Lots and Common Property on SP59152.
• Where the abutting strata plan is registered, the easement must show the "Benefit To" Lots 1, 2, 3 etc. and common property on SP#####. The parent freehold lot should not be shown. For Survey-Strata Plans the notation will be Lots 1, 2, 3 etc. and CP# on SP##### or All Lots and CP# on SP#####. E.g. Lots 1 & 2 & CP3 on SP59154 or All Lots and CP3 on SP5915.

Unlike Deposited Plans, existing mineral reservations such as section 15 Public Works Act 1902,whether over part of the parent land or over the whole of the parent land must be shown above the line within the schedule (see Plan Example 16 and Plan Example 23).

Where only a portion of the parent land is affected by a mineral reservation, Surveyors must show the subject portion but unlike easements, no dimensions are to be shown (see Plan Example 5).

Strata titles do not make reference to any mineral reservations that may affect such lots.

Overcrowding of the graphic area of a plan is to be avoided as overcrowded plans are more difficult to comprehend. In some situations, it may be worth placing all the graphic representations of the easements and covenants on a separate sheet of the plan, together with the schedule of interests and notifications.

Where easements, covenants and notifications (either new or existing) affect only a portion of a lot being created, the plan must show sufficient dimensions to unambiguously identify the land affected. Examples in the Survey and Plan Process and Procedure Guides indicate the requirements.

1.18 CSD Files

CSD files complying with the normal CSD business rules are required for all survey-strata plans and must include easements of a spatial nature. This CSD file requirement does not extend to covenants that have a spatial nature.

For strata plans that:

• create a new road, road widening or vesting lot under the P&D Act,
• bring forward existing or create new interests or notifications of a spatial nature,

a CSD file will be required as part of the lodgement of the plan. The CSD file will be required to capture the relevant roads, lots and interest polygons and the necessary ties to the cadastre. The parent lot is to be shown as a lot on the CSD file. For interest polygons over common property, lot label is to be of the parent lot.

1.19 Depth Limits and Crown Allotment Boundaries

A depth limitation in an original Crown Grant is regarded as a dimension of the land in a parcel. It is necessary to carry this dimension forward onto a scheme plan (see Plan Example 6).

The bringing forward of original Crown allotment boundaries onto freehold plans is not required unless a depth limitation in the original Crown Grant or some other spatial element affecting the titles (e.g. a notification) needs to be identified.

Where a depth limit from a Crown Grant applies to only part of a new lot the extent of the original Crown allotment that forms part or the whole of the subject of the plan must be shown (see Plan Example 13). If all the subject land for a plan has the same depth limitation the original Crown allotment boundaries need not be shown (see Plan Example 6).

Where the land parcel is subject to a depth limit, surveyors should endorse on the plan reference to the depth limit, e.g. “Limited in Depth to 12.19 metres”, as digital titles for strata title schemes do not show depth limits.

1.20 Mineral Reservations

The introduction of digital titles resulted in changes in the ways that mineral reservations are dealt with on titles and plans. The following outlines Landgate’s requirements for the display of any mineral reservations affecting land on scheme plans.

1.20.1 Reservations in Crown Grants

Mineral reservations contained in the original Crown Grants need not be depicted or recorded on plans. A digital title contains a prefatory statement that indicates that the land in the title is “subject to the reservations, conditions and depth limits contained in the original grant”.

1.20.2 Lands Affected by Section 15 of the Public Works Act 1902

Prior to 1953, section 15 of the Public Works Act 1902 excluded from resumptions all minerals except those necessary for the construction, support and maintenance of public works. Where minerals had been alienated and the land resumed, an undefined portion of the minerals remained unresumed causing problems for the then Titles Office determining what had and what had not been resumed.

Crown Grants issued after the introduction of the Land Act in 1898 had all minerals reserved to the Crown. The position was (is) quite clear from then on. The earlier grants of land (including grants under the Deeds Office system), prior to 1898, where portion of the minerals were alienated remained a problem until in 1953 section 15 of the Public Works Act 1902 was amended to retrospectively provide that all minerals were included in any resumptions. Section 15 was repealed in 1997 and replaced by section 164 of the Land Administration Act 1997 (LAA).

Titles to land affected by this provision will show different endorsements depending on the circumstances involved. If the whole of the land is affected the endorsement may state; “save and except the rights to mines of coal or other minerals”, or “the right to mines of coal or other minerals being excluded from the said land”. If portion of the land in a title is affected the endorsement will usually state; “the right to mines of coal or other minerals being excluded from portion of the said land”.

Areas affected by section 15 of the Public Works Act 1902 show the affected areas in one of two ways:

• The affected areas are hachured and the plan annotated "Portion hachured subject to section 15 of the Public Works Act 1902”.
• In some cases the unaffected areas are hachured and the plan annotated “save and except the portion hachured subject to section 15 of the Public Works Act”.

Some roads closed and amalgamated under the former Road Districts Act 1919 were also subject to mineral reservations and are shown on “working copy” plans as affected by section 15 of the Public Works Act 1902.

Roads closed and amalgamated under the Land Act 1933 or the LAA are not affected by the provisions of section 15 of the Public Works Act 1902.

Where land affected by section 15 of the Public Works Act 1902 has been revested in the Crown the provision no longer applies to the land revested. Lots that are revested are identifiable on the existing “working copy” plans by a “Revested” notation or a change in the parcel identifier (lot number) to a Crown allotment number.

When a parent parcel for a scheme plan is affected by the former section 15 of the Public Works Act 1902 whether it is part of the land or the whole of the land affected, it must be recorded above the line in the Interests and Notifications schedule on non-portal created plans or in the Former Tenure Interest and Notifications schedule on portal created plans  (see Plan Example 5, Plan Example 13 and Plan Example 16).

In general, the mineral reservations depicted on the “working copy” plans affecting portions of titles must be brought forward. Portions of land affected by section 15 of the Public Works Act 1902 are usually not dimensioned on titles or working plans. It is only necessary to plot affected portions on new plans by scaling distances from existing documents and using labels and line-work, to clearly show the relevant portions. There is no need to include the information in CSD files.

1.20.3 Mineral Reservations in Transfers

Crown Grants that were registered in the name of the Commonwealth of Australia did not contain any mineral reservations. Where the Commonwealth disposed of land, the transfer affecting the sale normally contained the same mineral reservations as contained in a normal Crown Grant. Following registration of the transfer, the Commonwealth would then transfer to the Crown in right of the State the reserved mineral rights.

By virtue of the Midland Railway Company Acquisition Act 1963 the Minister for Western Australian Government Railways acquired all the property of the Midland Railway Company. The mineral rights granted or alienated to the Midland Railway Company become the property of the Crown on production of a vesting application by the Minister to the Registrar of Titles. Titles are usually endorsed “except and reserving metals minerals gems and mineral oil specified in Transfer No” or “save and except minerals vested in the Crown pursuant to the provisions of section 4(5) of the Government Railways Act”. A title may or may not make reference to the relevant transfer document.

Where portion of the land in a strata titles scheme is affected by a mineral reservation contained in a transfer, or vesting under section 4(5) of the Government Railways Act, the portion so affected must be shown on the plan in the same manner as outlined above for land affected by section 15 of the Public Works Act 1902. Where the whole of the land in the strata/survey-strata plan is affected, see Plan Example 23.

1.21 Vesting Lots

The P&D Act makes provision under section 152 for lot/s on a scheme plan and an amendment of a scheme plan to be “Vested in the Crown” directly upon registration of the plan. Although the majority of 2 to 5 lot freehold strata schemes are exempt from WAPC approval, where a 2 to 5 lot  strata scheme creates a lot or lots to vest in the Crown, directly from the plan, it is subject to WAPC approval (see Plan Example 51).

Where a condition of approval by the WAPC requires land to vest in the Crown, the vesting lots are to be shown referring to any one or more of the following purposes:

• Conservation or protection of the environment.
• An artificial waterway.
• A pedestrian access way (PAW).
• A right-of-way (ROW).
• A reserve for water supply, sewerage, drainage, foreshore management, waterway management or recreation.
• A public purpose specified in the condition and related to the subdivision.

Land vested under section 152 of the P & D Act:

• is Crown Land
• does not form part of a parcel comprised in a registered scheme plan
• is to be taken to be reserved under section 41 of the LAA for the purpose set out in the condition
• may be dealt with in accordance with the LAA.

Surveyors are advised that scheme plans subject to a proposed reserve under section 152 of the P&D Act must show the purpose on the plan exactly as described in the WAPC condition for subdivisional approval. Any clarification or interpretation of a vesting purpose is to be referred to the WAPC.

Vesting lots shown on scheme plans must not be included in the Schedule of Unit Entitlements. Surveyors should take care to avoid duplication of lot numbers when assigning numbers to vesting lot/s on scheme plans.

An endorsement in the “Comments” field of the Interests and Notifications / New Interests schedule should read

“Now LR Vol …. Fol ….” (see Plan Example 7).

When vesting lots are created they may be subject to:

• Any easement created under section 167 of the P & D Act.
• Any easement created under section 136C of the TLA.
• Any existing encumbrance specified in a direction of the Minister responsible for the administration of the LAA or a person authorised in writing by that Minister for the purpose of section 152, lodged with the Registrar of Titles on or before the vesting.
• Any encumbrance prescribed, or a class prescribed by the Planning and Development Regulations 2009.

Some other interests or encumbrances over vesting lots will be considered by the appropriate Regional Manager in DPLH 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 vesting.

Field records must be lodged at Landgate for surveys of strata subdivisions that involve vesting land.

For strata plans that create a vesting lot, new road or road widening, a CSD file is required as part of the lodgement of the plan.

Pegs cannot be shown on Strata Plans. The following notation is required to be added to the plan in regard to survey marks:

“For Survey and Pegging Information see FB_________”

The vesting lot is depicted on the Location Plan fully dimensioned. The floor plans exclude the land contained in the vesting lot (see Plan Example 25).

A Crown Land Title (LR) will automatically be created for a vested Lot upon application to register the strata/survey-strata scheme. When the application has been processed through NLR to create the LR issuing to the “State of Western Australia”, automatic notices will be generated to have the lot shown as Crown Land in SmartPlan and trigger action at DPLH to commence reservation action.

The only fees applicable are those related to the STA.

1.22 Automatic Road Dedications

Section 168 of the P & D Act provides for the creation of Roads, Road Extensions and Road Widenings on scheme plans and amendments of scheme plans. Where a road, road widening or a road extension is shown on a scheme plan the land so shown is automatically dedicated for the public use of road at the time the plan is registered under the STA. The land in the road, road widening/extension is never included in the strata titles scheme and therefore the land continues being dedicated road on termination of such a scheme.

All scheme plans that include automatic road dedications must be accompanied by a field book for the authorised survey creating the road and a CSD file.

1.23 Restricted Use Condition

Any scheme plan or amendment of scheme plan that is lodged for registration may restrict the purposes for which the whole or part of the parcel may be used. This is achieved by an endorsement on the plan that delineates the area affected and that makes specific reference to Sec 32(2)(a) of the STA. In most cases, these restricted use conditions are related to land use and could be a condition of planning approval.

Some of the common types of restricted use condition are:

• restriction on occupancy to people who are “retired persons”
• restriction on occupancy of the lots - short stay accommodation
• portions of land restricted by construction of buildings over sewer mains; and
• restrictions over specific lots in a commercial scheme.

Surveyors adding a restricted use condition to the plan should use an endorsement that clearly specifies the restriction type, the lots or parts of lots affected (see Plan Example 15). If it affects part of the land, the affected part is to be defined in the same manner as an easement boundary and noted on the face of the Location/Floor plan (see Plan Example 66).

There are benefits from a planning perspective because variation or removal requires WAPC consent.

Carefully planned restricted use conditions can assist greatly in the successful and orderly management of a strata titles scheme. Monetary penalties may be imposed where an owner or occupier of a lot contravenes the restricted use condition (section 82 STA).

It is advisable to consult WAPC as to the wording it prefers for a restricted use condition.

Note: A restriction of the kind referred to in Section 32 of the STA is a restriction as to the use or use and occupation of the land in the strata scheme, not a restriction on the ownership of the land in the strata titles scheme.

2 Drafting of Strata Plans

Most drafting guidelines for strata plans are common to all plans under the STA. This chapter records only matters which do not apply to all other types of plan.

2.1 Components of a Strata Plan

A strata plan consists of a:

• location plan
• floor plan
• licensed surveyor’s certificate
• record of strata titles scheme

and is accompanied at lodgement by a

• schedule of unit entitlements certified by a licensed valuer
• permit authority Occupancy Permit or Building Approval Certificate
• WAPC certificate, unless exempt from planning approval

2.2 Location Plan

The location plan is designed to show the perimeter of the land parcel, the buildings and the boundaries of part lots external to the buildings in relation to the parcel boundaries (see Reg. 15(2)(c) STGR). Scales and orientation must comply with the TLA requirements. A location plan may be on a separate form or can be on the same sheet as the floor plan.

The following sets out the options available for depiction of buildings on location plans in strata schemes.

2.2.1 Single Tier Schemes 

2.2.1.1 Option 1

Single Level Building – show Footprint

• Show building outline
• Show outline of part lots external to the buildings
• Show offsets/encroachments in any case where required

2.2.1.2 Option 2

Multi-Level Building (Townhouse/Villa) – show Outline only (see Plan Example 5)

• Show outline of building extremities only, including balconies
• Show outline of part lots external to the buildings
• Show offsets/encroachments in any case where required and label them i.e. 2nd Floor Balcony

2.2.1.3 Option 3

Multi-Level Building (Townhouse/Villa) – show Outline of Building & Outline of Balcony (see Plan Example 1)

• Show outline of building extremities & outline of balconies when viewed from above (ignoring eaves except for encroachments)
• Show outline of part lots external to the buildings
• Show offsets/encroachments in any case where required and label them i.e. 2nd Floor Balcony

2.2.2 Multi Tier Schemes 

2.2.2.1 Option 4

Multi-Level Building – show Outline only (see Plan Example 6 and Plan Example 19)

• Show outline of building extremities only, including balconies
• Show outline of part lots external to the buildings
• Show offsets/encroachments in any case where required and label them i.e. 2nd Floor Balcony, 10th Floor Plinth encroachment.

2.2.2.2 Option 5

Multi-Level Building – show Outline of Building & Outline of Balcony (see Plan Example 50)

• Show outline of building extremities & outline of balconies when viewed from above (ignoring eaves except for encroachments)
• Show outline of part lots external to the buildings
• Show offsets/encroachments in any case where required and label them i.e. 2nd Floor Balcony, 10th Floor Plinth encroachment.

2.2.2.3 Option 6

Multi-Level Buildings with Multiple Location Plans – show Outline of Building & Outline of Balcony (see example 18)

• Show outline of building extremities & outline of balconies on each Location Plan/Level
• Show outline of part lots external to the buildings
• Show offsets/encroachments in any case where required on each Location Plan/Level and label them.

The location plan can be used as an aid for determining the common property. Any part of the parcel that is not included in a lot is common property.

The following information must be shown on location plans:

• perimeter of the parcel (but not notated as such)
• location
• offsets and encroachments
• extent
• road names
• abutting lot numbers and survey numbers
• scale bar
• orientation (consistent with floor plans)
• depth limit
• vesting land
• surveyor’s certificate (reg.54)

2.3 Offsets, Easements over Encroachments and Easements of Support

Where part of a building is within 2 metres of a parcel boundary, offsets must be shown on the location plan. Any part of the building or attachment to the building that encroaches beyond the parcel onto an adjacent parcel, road or ROW must be clearly shown on the location plan by dashed linework.

Section 34(d)(ii) of the STA provides that where part of a strata development, such as a roof, wall or building foundation is built upon adjacent land that is not a public road, street or way, an appropriate easement for that part of the roof, wall or foundation which encroaches onto that other land must be granted and lodged with the Registrar before registration of the Strata Plan can proceed. Section 32(1)(j) states that the plan must identify the nature and extent of the encroaching structure and, if it is to be subject to an easement, specify that easement.

One of the appropriate easements is an easement of support for the part of the building erected on the strata scheme (benefitted land) for that portion of roof, wall or foundation of the said building erected upon the adjacent parcel (burdened land). This type of easement recognises that that portion of the roof, wall or foundation belongs to the owner of the burdened land. Persons considering using this type of easement should obtain legal advice (see Plan Example 11).

It may be more appropriate to effect a subdivision which adds that part of the adjacent land subject to the “encroachment” to the parcel. Refer to section 166 of the P & D Act. This will require the cooperation and consent of the owner of the adjacent land.

Easements in respect of “encroachments” must be lodged for registration before the application for registration of the strata titles scheme. In the case of an easement for support from part of a wall or building on the burdened land, the easement document must be lodged with, but preceding the application for registration of the strata titles scheme.

Encroachments can be walls, gutters and eaves, awnings, plinths, corbels or other similar building attachments. Building connections and wall encroachments should be made to reference mark accuracy. The extent of the encroachment and type must be dimensioned and noted. Also, a statement specifying that the encroachment is to be controlled and managed as if it were common property or as if it were part of a lot is required to be endorsed next to the encroachment graphic. Alternatively, if there are several encroachments shown on the plan, a general statement on the Location Plan will be acceptable.

2.4 Floor Plan

The floor plan must be drawn at a scale and orientation in accordance with the TLA requirements. The orientation must be consistent with the location plan. The floor plan may be on a separate sheet or, space permitting, included with the location plan.

A “floor plan’ is in reality a plan of the level or stratum and does not have to be confined to the floor of a building. It is in fact a plan view of the base of a cubic space forming a lot or parts of a lot.

The perimeter of a building forming the external surface of cubic space should be shown by a thick line to indicate the walls of the building. Lines that are buildings or monuments should be thicker lines or can be shown by parallel lines (tram lines). Usually thinner lines that are dimensioned or partly dimensioned delineate boundaries of part lots that are external to a building.

Surveyors should show the outline of the building to which the local government certificate is to apply. It may be useful in complex situations to assist lot identification by creating separate part lots for carports, garages, store sheds and verandahs. There is no requirement to follow this practice or to specify the use of each of these part lots on the plan. However, it may be useful, particularly where the walls are to be common property.

In cases where there is more than one floor level, each level must be able to be superimposed on the other levels. Separate sheets for each level can achieve this. Two floor plan levels may be shown on the same sheet provided appropriate registration marks (e.g. a common point of overlay or part of the parcel boundary) are placed on each level to enable superimposition. If using the latter method, the scale must be common to all sheets of the plan and the detail clearly shown.

If a lot consists of more than one part, then the lot number shown on each of the parts must be prefixed by “Pt” (see regulation 16(4) ST(G)R) to indicate that there are other parts forming the lot. The area of each part lot should be shown close to the “Pt” lot number. If possible, the lot number and area should be within that specific part of the lot. If, due to lack of space this is not possible the “Pt” lot number and area can be shown externally and then ticked in to indicate the designation of that part. Areas of all the parts should be added to give a total area, which should be shown in brackets within the main “Pt” lot, which is normally, the actual part lot forming or comprised in the building.

For strata plans that have parts of lots on more than one floor level (eg Basement, Ground Floor & First Floor), a table setting out the lot number, total area, floor or level and the sheet number is required to be shown on the Location Plan (see sample table below:

A CSV file containing this information is required as part of the lodgement of the plan.

The CSV file will outline the total area, floors and sheets for each lot as shown in the below table and example.

Example CSV

lotident,areatotal,floors,sheets

1,57,"B,G,1","2,3,4"

2,77,"B,G,1","2,3,4"

3,79,"B,G,2","2,3,5"

4,55,"B,2,3","2,5,6"

5,55,"B,2,3","2,5,6"

All parts of a lot should be contained within the one sheet, if possible. Alternatively, join marks and notations should be used so, if needed, the floor plan sheets may be compiled to create the scale version of the complete lot or “Pt” lots. If patios, carports, pergolas, enclosed rooms, storage rooms or similar structures are to be included as building part lots under Schedule 1 clause 3AB of the STA, they must be shown on the floor plan (see Schedule 1 clause 4 of the ST(G)R).

Floor plans are designed to show the basis of calculation of the cubic space of the lots. Common property generally should not be shown on the floor plan. The ST(G)R do not permit extra information in the form of broken lines or notations that indicate letterboxes, driveways, carports, garden areas or similar information that is not used for defining lot boundaries.

Voids are an integral part of a floor plan and usually denote the air space where stairways form part of a first or second floor in buildings such as villas and town houses. They may be labelled “Void” or “Stairs” and defined by either pecked lines or solid single lines. While “Voids” form part of the Lot, their area is excluded from the area calculated for that level. Where there is some doubt as to the ownership of abutting voids, surveyors should label each void with the corresponding Pt Lot identifier.

In some instances it may be beneficial to label common property as “Void – Common Property” to ensure there is no conflict as to ownership of such areas (see Plan Example 24).

2.5 Surveyors Certificate

All new Strata Plans lodged for registration at Landgate must have a certificate signed by a licensed surveyor under regulation 54 of the Licensed Surveyors (General Surveying Practice) Regulations 1961. This Certificate ensures the Surveyor is fully accountable for the correctness of the strata plan (see Plan Example 25).

Correct certification by surveyors plays a key role in the strata titling system as it signifies that certain parameters are met before registration. It is therefore important that surveyors are aware that they are certifying to everything shown on the plan, including specifying the easement required for any encroachment beyond the parcel which is not over a public road, street or way.

If there is an encroachment (other than a minor encroachment or circumstance as set out in Regs. 45A and 45B of the Building Regulations 2012) onto a public road, street or way, DPLH must be contacted and consent obtained from the Minister for Lands and whoever has control and management of the road. Where consent for the encroachment has been refused, an Order of the Magistrates Court may be obtained. Minor encroachments do not require consent. If the encroachment is onto private road or R.O.W. steps should be taken to close and amalgamate that portion of land with the subject parcel.

2.6 Measurement Contents

Information shown on a strata plan must be sufficient to establish the lot boundaries of every lot. Some surveyors follow the practice of showing a fully dimensioned plan with measurements to two (2) or three (3) decimal places and angles to 1”. Whilst this may appear to be of a high standard, the reality of measuring walls, fences and other monuments to this accuracy is not necessary for strata plans. The requirements of the STA have been designed to provide sufficient dimensioning or notation to define the lot extremities.

On a strata plan there must be sufficient information shown to establish lot boundaries. There is no requirement to show full dimensioning. However, if the plan is fully dimensioned, distances and areas must agree with the parent “Freehold” information. Where certain Special Survey Areas (SSA) and Redevelopment Authority Deposited Plans show dimensions to three (3) decimal places, surveyors should prepare strata plans to the same accuracy.

2.7 Describing Cubic Space

The use of section 3(2)(b) of the STA when describing cubic space must refer to a wall, floor or ceiling or structural cubic space within the building to which the plan relates and cannot refer to “external surface of building” or “roof”.

Where the underside of a roof forms part of the ceiling and it is intended that the roof form part of the cubic space, the upper boundary of a lot could be described by specifying a distance above the ceiling, so that the roof fits within that measurement. However this definition will not enable inclusion of any part of the roof that extends beyond the line of the inner surface of the walls (see STP-02 and Plan Example 26).

2.8 Large Plans (Rural or Staged)

Occasionally, problems are encountered when the detail and coverage of the strata plan will not fit the A3 size format. Each case should be considered on its merits. The plan must be clear and easy to understand. If possible, the whole of a part lot should be confined to one sheet.

The pictorial representation should be carefully planned. It may overlap numerous sheets, so the plan sheets should be laid out and then an appropriate scale used to meet the criteria listed above. Join marks may be used on lot or parcel boundaries so that it is possible to piece together the complete picture.

3 Drafting of Survey-Strata Plans

Most drafting guidelines for survey-strata plans are common to all plans under the STA. This chapter records only matters which do not apply to all other types of plan.

3.1 Easements

The easements that can be created on a survey-strata plan by short form under section 33 of the STA and are set out in Part 5 of the ST(G)R and include easements for vehicle access, light and air, party wall rights, intrusion by a structure, pedestrian access, easements in gross and utility services. Easements for these purposes can also be created using the provisions of the TLA as set out in Part IVA of that Act.

Multiple easements over the same portion of a Lot must be recorded individually in the “Interests and Notifications” Schedule/”New Interests” Schedule. This will result in strata titles issuing with multiple endorsements and enable each easement to be dealt with individually should the need arise to have an easement modified or extinguished/discharged (see Plan Example 38).

3.2 Surveyors Certificate

A Certificate signed by the surveyor under regulation 54 of the Licensed Surveyors (General Surveying Practice) Regulations 1961 must be shown on the survey-strata plan. This ensures the Surveyor is fully accountable for the correctness of the survey-strata plan in the same manner as is required for a standard deposited plan.

3.3 Certificate of Verifying Surveyor

The Directions to Surveyors under regulation 5 of the Licensed Surveyors (Transfer of Land Act 1893) Regulations 1961 define a Survey Document as “any plan, (including its component digital record), including but not limited to compiled plans and survey-strata plans”. The directions require that any Survey Document that is certified by a licensed surveyor, who is not eligible to verify survey documents at the time the document is lodged at Landgate, must be verified and countersigned by a licensed surveyor who is so eligible, in accordance with the directions. The certificate in the following table must be added to the plan and signed by the verifying surveyor.

I ________________________ being eligible, in accordance with the Land Surveyors’ Licensing Board’s requirements, to verify survey documents have checked this plan (and its digital record) by ________________________ (Licensed Surveyor) and I verify that the plan is error free and consistent with the field record and digital record and complies with the Landgate Policy and Procedure Guides, except where good reason has been shown to the contrary, and with all regulations applicable to it.

Date:__________________ Signed: _______________________________                                                                                        (Licensed Surveyor)

3.4 Pegs

New boundary pegs must be recorded on the plan, as should descriptions of any variations from standard (regulation) marking. Where the position of original or existing pegs has been adopted, there is no need to show those pegs on the plan. The position of each peg that is not placed exactly at a corner of a lot should also be recorded (see Plan Example 3, Plan Example 8, Plan Example 9 and Plan Example 10).

3.5 Other Information

Because the survey-strata plan must be sighted by the buyer of a lot it is desirable to make the plan as useful as possible for this purpose, including minimising the amount of technical information on the plan.

For this reason (unlike TLA plans) the following information should NOT be shown on survey-strata plans:

• orig and per orig annotations

and

• OM, MF, MFR, MGR etc. annotations.

For the same reason, it is essential to show any pegs that are necessarily out of position, any non-standard marks and any building connections on the plan (see Plan Example 8, Plan Example 9 and Plan Example 22). Enlargements should be used where the situation cannot clearly be depicted on the main body of the graphics.

3.5.1 Encroachments, Building Connections

If part of a building, wall or other significant improvement is built such that it crosses over the boundary between the subject land and an abutting lot, the encroachment must be recorded on the plan. Connections to buildings, walls and other types of significant improvements that are close to, but do not cross over the boundary of the subject land may be recorded on the plan at the surveyor’s discretion (see Plan Example 10 and Plan Example 23).

3.6 Easements and Restrictive Covenants

Under the STA and the TLA, it is possible to create easements and restrictive covenants over land in the same ownership. This has numerous advantages where a developer may put in place easements and restrictive covenants for various purposes over the subject land at the time of registration of the plan.

The STA and the TLA contain standard wordings that can eliminate the need for any written documentation. However, it is also possible to vary the terms of these easements or restrictive covenants or provide for specific needs by an instrument that is in the form of a deed.

Scheme plans and amendments of scheme plans lodged for registration can create:

• short form easements and restrictive covenants under Part IVA of the TLA
• short form easements under section 167 of the P & D Act
• short form easements and restrictive covenants under section 33 of the STA
• restrictive covenants (Road Access Conditions) under section 150 of the P&D Act;

and include:

• easements and covenants created by deed or transfer¹.

¹[Guide updated on 25/05/202 to insert the word 'created']

It is not possible to automatically create section 136C TLA easements such as ‘Right of Carriageway’ on amendments of scheme plans.

Easements that are created under the TLA or the STA need to be shown in a Interests and Notifications schedule/New Interests schedule on the plan and be shown by broken lines, dimensions and angles on the plan. Original easements and covenants being brought forward that have a spatial nature also need to be shown (see Plan Example 10).

3.6.1 TLA Easements

Section 65, Part IVA section 136C and Ninth and Tenth Schedules of the TLA refer to the following types of “standard” easements:

• Right of carriageway
• Right of footway
• Water supply purposes
• Drainage purposes
• Gas supply purposes
• Transmission of electricity by overhead cables
• Transmission of electricity by underground cables
• Transmission of television signals
• Party wall rights
• Eaves and gutters
• Sewerage purposes
• Parking of motor vehicles.

3.6.2 Easements That do not meet the terms in the Tenth Schedule of the TLA

Where an easement that is required does not meet these terms, an “instrument” varying the terms of the easement can be lodged with the Strata/Survey-Strata Plan. The instrument must be in the form of a deed, prepared on a TLA form B2 and must be capable of registration. For full registration details, see Land Titles Registration Policy and Procedure Guide EAS-01, Section 7

3.6.3 P&D Act Easements

Section 167 of the P&D Act provides for the automatic creation of service authority easements in gross on registration of scheme plans and amendment of scheme plans. The statutory wording of these various easements is set out in regulation 33 of the Planning and Development Regulations 2009 (see Plan Example 52).

Where there is a requirement to create section 167 P&D Act easements on strata plans that are exempt from the requirement of approval by the WAPC, then it is important for surveyors to note that the P&D Act makes no provision for those plans to be endorsed by the WAPC. Surveyors are required to provide a CSD file when creating section 167 P & D Act easements on a strata plan.

Where a building encroaches upon an existing section 167 P & D Act easement, surveyors should identify at the earliest possible moment and consideration should be given to have the easement extinguished, partially extinguished or varied in height so that no building part lot (including balconies) is encumbered by the easement. Failure to identify and negotiate the modification of that easement may cause unnecessary financial cost and delays for the developer. In the case where an easement encumbers the basement carbay part lot of a multi-tier scheme, the easement may be limited in height (metres AHD) to the undersurface of the basement ceiling. This will enable the service authorities to maintain and access the easement. From time to time surveyors may encounter lightweight structures e.g. carports, pergolas etc. (non-building part lots) that hang into or over section 167 P&D Act easements.

For any encroaching structure, contact should be made with the service authority benefiting from the easement. A partial extinguishment may be required or a letter from the service authority consenting to the structure being within the easement. This letter should be lodged with the strata plan so as to alert Landgate’s strata plan examiners that the matter has been attended to.

3.6.4 STA Easements

Easements created pursuant to section 33 of the STA are created automatically on registration of the scheme plan or an amendment of a scheme plan. Although only the abbreviated name of the easement needs to be shown on the plan, the terms of the easements are prescribed in the ST(G)R. These types of easements are confined to the subject land, i.e. it is not possible to benefit land outside of the scheme.

The following short form easements may be created under section 33 of the STA:

• Vehicle Access Easement under regulation 31 of the ST(G)R (see Plan Example 3).
• Light and Air Easement under regulation 32 of the ST(G)R.
• Party Wall Easement under regulation 33 of the ST(G)R (see Plan Example 13).
• Intrusion Easement under regulation 34 of the ST(G)R (see Plan Example 7, Plan Example 10 & Plan Example 45).
• Pedestrian Access Easement under regulation 35 of the ST(G)R.
• Easement in Gross under regulation 36 of the ST(G)R
• Easement for Utility Services under regulation 37 of the ST(G)R

These types of easements can also be created on plans of conversion to survey-strata. For merger sketch plans, only Vehicle Access Easements can be created - see Schedule 2A, clause 21W of the STA.

If special conditions are required, the standard form of the easements may be varied by lodging a memorial or instrument that sets out the specific conditions before the plan is registered. This memorial or instrument, along with the scheme plan or amendment of the scheme plan, are deemed by the ST(G)R to be “short form documents”.

Easements created under section 33 of the STA may be varied or discharged under section 33(6)(a) STA (see Requirements for Registration of Amendment of a Scheme Plan).

When dealing with Vehicle Access (Reg 31) and Pedestrian Accessway (Reg 35) easements, the ST(G)R provided for these easements to be ‘exclusive’ or ‘non-exclusive’. If the easement is exclusive, the grantee must keep the easement area in good order (including by doing any repairs, replacements, maintenance, cleaning or other upkeep). This needs to be stated in the ‘Comments’ column of the Interests and Notifications Schedule (see  in the table example below).

If the easement is to be non-exclusive:

• the grantor will need to keep the easement area in good order (including by doing any repairs, replacements, maintenance, cleaning or other upkeep); and
• the grantee will be required to reimburse the prescribed proportion of the costs incurred by the grantor in keeping the easement area in good order.

Unless specified otherwise by either the plan or an instrument, the prescribed proportion will be:

• the proportion that the unit entitlement of the grantee’s lot bears to the total unit entitlements of the grantor’s and the grantee’s lots, or
• if common property is burdened by the easement, the proportion that the unit entitlement of the grantee’s lot bears to the sum of the unit entitlements of all lots in the strata titles scheme; or
• if common property is benefited by the easement, the proportion that the unit entitlement of the grantor’s lot bears to the sum of the unit entitlements of all lots in the strata titles scheme.

If the apportionment of upkeep is not to be the prescribed proportion, the desired proportion is to be specified in a memorial or instrument lodged at Landgate.

Easements in Gross (Regulation 36 ST(G)R)

The short form documents may describe the terms of the easement by reference to a:

• planning condition,
• statutory provision or
• contract.

If the terms of the easement are to be contained in a planning condition or contract, to enable visibility and searchability of the terms, the ST(G)R enables a copy of the contract, statutory provision or planning condition to be contained within a memorial or instrument lodged with the application to register the scheme or amendment of scheme.

If the easement expires at the end of a specified period, it will be taken to mean that the grantor and grantee consent to the Registrar of Titles discharging the easement in gross at any time after the end of the specified period, without any application or notice being lodged at Landgate (see  in the table example below).

Easements for Utility Service

Utility Service

• water supply
• drainage
• gas supply
• transmission of electricity by overhead cable
• transmission of electricity by underground cable
• transmission of communication signals by overhead cable
• transmission of communication signals by underground cable
• sewerage

The rights conferred by the easement are set out in regulation 37 of the ST(G)R and are very similar to the rights set out in section 136C and Tenth Schedule of the TLA. However, unlike section 136C, the STA doesn’t require the written consent of any person who has a registered interest or is a caveator in respect of the land being burdened by the easement. The consents required are the designated interest holders, which are defined in the STA as:

• a registered mortgage; or
• a registered lease; or
• a caveat recorded under the Transfer of Land Act 1893; or
• the interest of a judgment creditor named in a property seizure and sale order registered under the Transfer of Land Act 1893 section 133; or
• the interest of a person named in a memorial registered under the Transfer of Land Act 1893 as having a statutory right requiring the consent of the person to any dealing with the land; or
• a plantation interest registered under the Transfer of Land Act 1893; or
• a carbon covenant registered under the Transfer of Land Act 1893;

This could be considered as a viable option when creating utility service easements on strata title schemes where an estate covenant exists on the parent title and all the lots created on the Deposited Plan of the parent lot are benefited and burdened by this covenant.

Example Schedule of Interests and Notifications

INTERESTS AND NOTIFICATIONS

3.7 Restrictive Covenants

These are a restriction on the land and can be utilised for such things as building restrictions, height restrictions and limitations on building materials, aesthetics and similar controls on appearance, access and use of the land. Restrictive covenants can be created on the scheme plan (Sec 136D TLA, Sec 33 STA and Sec 150 P&D Act) or by deed Sec 129A and Sec 129BA TLA). These types of covenants can be between lots within a strata titles scheme or benefits may be given to land outside the scheme or public authority/local government.

An important feature of Sec 136D TLA and Sec 33 STA covenants is that they have effect even while the land burdened and benefited are in the same ownership.

Sec 33 STA provides that restrictive covenants can be created benefitting local governments and public authorities only. Regs 43 to 47 of the ST(G)R sets out the purpose, rights and liabilities of the restrictive covenants:-

• Right of way restrictive covenant - to prevent development in a right of way setback
• Land use restrictive covenant - to restrict the use of land
• Conservation restrictive covenant - to protect areas identified for conservation
• Building envelope restrictive covenant - to control the siting of development
• Fire restrictive covenant - to restrict development in fire prone areas

The rights and liabilities of these restrictive covenants may be varied by a memorial or other instrument lodged at Landgate. For Land Use and Conservation Covenants, a memorial or other interest will be required to provide more specifics in regard to the restrictions on Land Use and Conservation.

INTERESTS AND NOTIFICATIONS

Alternatively, restrictive covenants may be created under section 129A of the TLA using an instrument. It is also possible to benefit land outside of the scheme by utilising this method. This means a strata/survey-strata lot may be encumbered by a covenant, but land outside the scheme may benefit from that covenant (see Plan Example 49).

A local government may impose a section 129BA of the TLA restriction as a condition of subdivision over a portion of a proposed lot abutting a Right of Way, Way or Lane in order to prevent new developments taking place over a prescribed portion of the subject land. Such restrictions are usually used to accommodate future widening of the Right of Way. Surveyors must show the extent of the restrictive covenant spatially on the plan and endorse the covenant in the Interests and Notifications Schedule (see Plan Example 10, Plan Example 14 & Plan Example 45).

Section 150 of the P&D Act allows Road Access Conditions, imposed by WAPC, to be endorsed on scheme plans. Conditions imposed as a restriction or prohibition on land abutting a road is to be shown in the Interests & Notifications schedule as a “COVENANT” (see Plan Example 52).

Regulation 30 of the Planning & Development Regulations 2009 is used to impose Road Access Conditions. A Road Access Condition must be identified and labelled with such a notation as A – B. Details of the restriction or prohibition and to whom or what it applies and when and in what circumstances, is to be noted in the COMMENTS field of the Interests & Notifications schedule on the plan.

The covenantee can only be one of the following:

• Western Australian Planning Commission
• Commissioner of Main Roads
• Minister administering Public Works
• Local Government

Landgate would expect however, that should a planning condition relate to “Control of Access”, then the automatic tools under regulation 30 would be used rather than the continued use of section 129BA of the TLA.

Surveyors are advised that:

• The WAPC may impose a condition under section 150 of the P&D Act that access to and from a portion of land shown on a plan of survey relating to the subdivision to a road abutting the portion of land is to be restricted. Section 150 of the P&D Act does not apply to "future" road/road widening or a pedestrian access way. A restriction on access in these cases can be effected by a restrictive covenant under section 129BA of the TLA.
• The notation in the comments field of the Interests and Notifications schedule must specify to the following "to and from". E.g. NO VEHICULAR ACCESS TO AND FROM GREAT EASTERN HIGHWAY.
• All new lots created from the parent lot on a plan of subdivision are burdened by the restrictive use that was created by the covenant on the parent lot.

Note: Section 150 of the P&D Act does not replace Restrictive Covenants created under section 129BA of the TLA but should be depicted in the same manner.

A Road Access Condition covenant can be modified or discharged under regulation 32 of the Planning & Development Regulations 2009 by application to WAPC. When consent has been granted, an application is made to the Registrar of Titles to modify or discharge the covenant accordingly and make any entries or endorsements that may be necessary to evidence the modification or discharge.

Any modification of a spatial nature would require an Interest Only Deposited Plan to accompany the Application to modify the covenant.

An appeal to SAT is available to an applicant if WAPC refuses a request to modify or discharge a Road Access Condition covenant.

4 Requirements for Registration of a Scheme Plan

Registration of a Scheme Plan will not be possible without being accompanied by the following certification from:

• the permit authority
• the Western Australian Planning Commission (WAPC)

4.1 Permit Authority Certification

All Strata Plans must have either an Occupancy Permit (OP) or a Building Approval Certificate (BAC), granted by the Permit Authority (local government) under the Building Act 2011(BA), and lodged with the plan to enable registration of the plan and the issue of certificates of title for the lots the subject of the plan (see Plan Example 1 and Plan Example 24).

Surveyors may lodge the strata plan at Landgate prior to the OP or BAC being signed and issued by the local government. This enables the strata plan to be examined but not put "In Order for Dealings" while the permit or certificate is waiting to be issued by the local government. Surveyors using this method may lodge the OP or BAC at a later date. However, if the OP or BAC is available prior to the strata plan being lodged, it should accompany the plan.

Landgate receives all OP’s and BAC’s electronically as a scanned PDF document with the plan prior to the application to register the strata titles scheme is lodged. It is the owner's responsibility to provide their licensed surveyor with a legible OC/BAC.

The following information, key to Landgate’s requirements, will need to be depicted on all BA forms:

• the correct strata plan number and lot on survey details; and
• the name and endorsed signature of the Local Government Issuing Officer along with the date of signing.

Failure to provide this information clearly and legibly will result in the form being rejected and requiring replacement.

As there is a need for consistency for industry groups, local governments, Landgate and the Building Commission, the following rules will also apply:

• All the buildings shown on a SP are to be covered by an OP or BAC.
• Landgate will accept both an OP and a BAC for the same SP where different classes of buildings exist within the same scheme.
• Landgate will not accept more than one OP or more than one BAC for the same SP.
• Strata lot numbers applying to either an OP or a BAC are to be clearly identified.
• Where the information on the OP or BAC is unclear, the lodging party will be notified.

Where the Permit Authority does not grant an Occupancy Permit or a Building Approval Certificate, the applicant may apply to the State Administrative Tribunal for a review of the decision under the BA.

4.2 WAPC Certification

Strata plans that do not fit the exemption criteria, as specified in regulation 19 of the ST(G)R, must be accompanied by a certificate endorsed correctly by local government (delegate under section 16(3)(e) of the P&D Act 2005) or the WAPC.

For instances where the WAPC approves the strata plan, the WAPC certificate must be incorporated into the appropriate plan sheet (see Plan Example 11).

For instances where the WAPC delegates its powers for approval to local government, Landgate will accept a “scanned” signed copy of the certificate as a PDF file.

Surveyors have the choice of the following options:

• lodge the WAPC certificate (where delegated) at the local government, wait for the signed WAPC certificate (along with the signed OP or BAC) to return from the local government and lodge at Landgate as a scanned PDF

or

• lodge the strata plan at Landgate and at the same time send the WAPC certificate (where delegated and with the Application for OP or BAC) to the local government. In this option, Landgate will conduct an examination of the strata plan and mark it with a status of “examined” subject to lodgement of WAPC certificate and OP /BAC.

All survey-strata plans must go through the full planning referral process as required by the WAPC. This means referral to appropriate government agencies for comment. For a survey-strata plan the certification is referenced to section 17(3) of the STA. The WAPC reference number must be endorsed onto the plan.

4.3 Cancellation of a Strata/Survey-Strata Plan

For various reasons lodged scheme plans occasionally need to be cancelled:

• If a land owner has had a survey carried out to create a strata titles scheme and then decides that the scheme should not proceed, a written request to cancel the scheme plan is required from the owner/s to Landgate.
• If a previous scheme plan was lodged but never registered (Application for Titles of a strata title scheme never lodged) and a new scheme plan has been lodged over the same parent parcel (due to a change in the type of scheme, configuration or number of lots), the previous scheme plan must be cancelled.

A request for the cancellation of the redundant scheme plan can be made in the lodgement portal in NLR-P. Any rating or taxing authority should be notified of the intention to cancel. A letter of acknowledgement should be obtained from any such authority.

On receipt of a cancellation request, the scheme plan status is updated to "Cancelled". The scheme plan is stamped to show “Cancelled” on all sheets.

The following Authorities are notified by letter of the cancellation:

• WAPC (for plans not exempt from requiring WAPC approval)
• Local Government
• Valuation & Property Analytics (Landgate)
• Office of State Revenue
• Water Corporation
• Western Power
• ATCO Gas Australia

A letter is also sent to the owner or surveyor who requested the cancellation. A fee is charged by Landgate for cancellation of the scheme plan.

4.4 Requirements for Registration of Amendment of a Scheme Plan (section 35 STA)

There are 4 types of amendment of a strata titles scheme that give effect to a subdivision:

• Type 1 subdivision covers:
  • addition of land from outside the parcel to the common property and
  • conversion of lots within the scheme into common property.
• Type 2 subdivision covers the removal of common property from a scheme.
• Type 3 subdivision covers consolidation of lots within a scheme.
• Type 4 subdivision covers subdivision of lots and/or common property within a scheme.

4.4.1 Type 1(a) Subdivision - Addition of Common Property from Outside the Parcel

A strata company may acquire extra land to add to the scheme in the form of common property. Methods by which land may be acquired include the:

• purchase and amalgamation of a closed public road
• purchase and amalgamation of a portion of Crown land
• purchase and amalgamation of a closed private road or ROW
• purchase of the adjoining land

The dot points above constitute a type 1(a) subdivision of a strata titles scheme. The additional land may then become a lot or part of a lot by either a type 4 subdivision (re-subdivision) or merger (for schemes registered before 1 January 1998) depending on the nature of the acquisition and the date when the scheme plan was registered.

4.4.2 Purchase and Amalgamation of Closed Roads or Crown Land

Roads dedicated for public use may be closed under section 58 of the LAA. Adjoining landowners may apply to local government seeking a road to be closed for purchase and amalgamation into adjoining properties. Once requested, the local government must comply with section 58 of the LAA and regulation 9 of the Land Administration Regulations 1998.

Acquisition of Crown land parcels is managed by DPLH. In many cases where the land to be acquired, for example is a PAW or public road that is to be closed, DPLH negotiates with the abutting proprietors before the closure occurs. This is to avoid the creation of small isolated parcels of Crown land.

DPLH liaises with the local government, WAPC, and other government agencies on matters such as desirability of the closure, relocation of services and requirements for easements. In all instances involving the disposal of surplus crown land, DPLH is obliged to offer the land at a price set by the Valuer General.

4.4.3 Registration Procedures for Amalgamation of a Closed Public Road or Other Crown Land

Closed roads or Crown land may be included into an adjoining land parcel on registration of a Conveyance and Amalgamation Order under section 87 of the LAA. A new deposited plan is required showing the “outcome” of the amalgamation of the Crown land with the adjoining parcel. The area of amalgamated Crown land is depicted on this plan within an inset.

4.4.4 Amalgamation of Closed Private Roads or Ways

Amalgamations of closed private roads or ROWs can be achieved in a number of ways:

• By closure and amalgamation under sections 52 and 87 of the Land Administration Act, 1997.
• By an application for closure and inclusion.
• By Court order.

The procedures of section 52 of the LAA and regulation 6 of the Land Administration Regulations 1998 are similar to those for public road closures, except that the relevant local government must take all reasonable steps to give notice to the holder of the subject land, and the holders of freehold land abutting the private street or right of way.

4.4.5 Acquiring Additional Land by Transfer

A strata company may decide to purchase land adjoining, contiguous to or within the scheme for the purpose of creating, or creating additional, common property.

The process requires:

• The strata company passing a resolution without dissent (or unanimous resolution in a two lot scheme).
• A transfer of the land to be acquired to the strata company.

and

• The land that is to be transferred must be contiguous to or within the parcel that comprises the scheme and must be free of encumbrances.

The transfer is to be lodged at Landgate accompanied by:

• the duplicate certificate of title (if issued) of the land being transferred
• an application for a new title for the residue/balance lot (if any)
• an application to register the scheme plan amendment; and
• a certificate from the strata company which certifies that the resolution was passed.

For full details on the registration of all the above the Type 1 subdivision scenarios, see Land Titles Registration Policy and Procedure Guide STR-04.

4.5 Plans Required for Type 1 (a) Subdivisions

In the case of land adjoining or contiguous to the scheme, a deposited plan must be prepared incorporating the land to be acquired with the existing scheme, together with a depiction of any residue land as a separate lot. This deposited plan must be processed through the normal planning approval process until the plan becomes “in order for dealings”.

Surveyors are also required to lodge a type 1 subdivision plan to reflect the additional land in the scheme (see Plan Example 63. This plan will depict the new parent lot details and the plan purpose all under the “PLAN OF” heading. The following notation is an example:

LOT 300 ON DP 410000

ADDITION OF LAND OUTSIDE THE PARCEL -TYPE 1(a) SUBDIVISION

In the case of strata plans, this will require lodgement of a Location Plan only. This plan should show all the latest abuttal and offsets (if required) information (see Plan Example 57). The sheet numbering should be the same as the Location Plan it is replacing. In the case where the Location and Ground Floor Plan of the original strata plan are on the same sheet e.g. ‘Sheet 1 of 1 Sheet’, the sheet showing the new Location Plan should be numbered ‘Sheet 1A of 1 Sheet’.

In the case of Survey-Strata Plans, a new plan depicting the new common property details will be required (see Plan Example 58). The land included is allocated the letters “CP” followed by a number.

No field record will be required to be lodged with the plan as it will most likely be a compiled plan. The field record numbers shown on this plan can be the field record for the parent Deposited Plan and/or other field books used in its compilation.

For types 1(a) subdivisions involving the construction or modification of a building, a BA form will be required to be lodged with the plan. If no building is involved, no BA form will be required.

A merger, survey-strata conversion (for strata plans only) or type 4 subdivision is needed to enable this common property to become part of the lots, if that is desired. Alternatively, it may remain as common property.

4.6 Type 1(b) Subdivision - Conversion of Lot/s Within a Scheme to Common Property

The STA permits a lot within a scheme to be transferred to the strata company, converting the lot to common property. It is only possible to convert whole lots into common property. The strata company must pass a resolution without dissent to convert a lot or lots into common property provided the scheme consists of three or more lots. A Type 1(b) subdivision of the strata titles scheme requires approval from the WAPC.

If the lot being transferred is free of encumbrances, a transfer from the registered proprietor to the strata company is executed and can then be lodged at Landgate accompanied by:

• a certificate from the strata company agreeing to the transfer.
• an application to register the type 1(b) subdivision

Surveyors are required to lodge a type 1(b) subdivision plan, which will be accompanied by a schedule of unit entitlements showing the entitlements of the remaining lots and the adjusted sum of all unit entitlements. For strata plans a new location (in most cases) and floor plan is required. For survey-strata plans, a plan showing details of the additional common property is required.

This plan will show the plan purpose under the “PLAN OF” heading. The following notation is an example:

TRANSFER OF LOT 1 TO COMMON PROPERTY - TYPE 1(b) SUBDIVISION

On registration the interests and operation of the encumbrances of the remaining lot proprietors are extended to include the additional common property.

In the case of a survey-strata plan the converted lot will be allocated the letters “CP” followed by a a number.

For full details on the registration of Type 1(b) subdivisions, see  Land Titles Registration Policy and Procedure Guide STR-04.

Note: Type 1 subdivision plans will require approval from the WAPC as per section 35(1)(f) of the STA.

4.7 Type 2 Subdivision - Transfer of Common Property

The STA permits land that is common property to be transferred by the strata company, removing it from the scheme. A deposited plan is necessary to define the land to be transferred.

On approval of the deposited plan, surveyors are also required to lodge a type 2 subdivision plan depicting the new boundaries of the strata titles scheme after the disposal of common property, including, under the “PLAN OF” heading, the following notation should be shown:

LOT 300 ON DP 410000

REMOVAL OF COMMON PROPERTY FROM THE PARCEL - TYPE 2 SUBDIVISION

In the case of strata plans, this will require a replacement Location Plan only. This plan should show all the latest abuttal and offset (if required) information (see Plan Example 59). The sheet numbering should be the same as the Location Plan it is replacing.

In the case where the Location and Ground Floor Plan of the original Strata Plan are on the same sheet e.g. ‘Sheet 1 of 1 Sheet’, the replacement sheet showing the new Location Plan should be numbered ‘Sheet 1A of 1 Sheet’.

In the case of survey-strata plans, a new plan showing the amended details of the existing common property will be required. No field record will be required to be lodged with the plan as it will most likely be a compiled plan. The field record numbers shown on this plan can be the field record for the parent deposited plan and/or other field records used in its compilation (see Plan Example 60).

Note: The type 2 subdivision plan will require approval from the WAPC as per section 35(1)(f) of the STA.

5 Summary

To sum up, if a “multiple owner” freehold subdivision involves the transfer of a lot, or part of a lot, in a strata titles scheme, the affected lot, or portion, must first be converted into common property by a type 1(b) subdivision before being transferred out of the strata titles scheme.

Similarly, where land is being transferred into a strata scheme by a freehold subdivision the land can only be included as common property by a type 1(a) subdivision.

The “balance lot” requirements for a freehold subdivision involving a strata titles scheme are:

• If only common property is involved in the land being transferred (in or out) then the following plans will need to be lodged:
  • a new deposited plan showing the new freehold lots as in a normal subdivision and
  • a type 1(a) or 2 subdivision plan reflecting the change to the strata titles scheme
• Where it is intended that a new subdivision will involve the transfer of part or all of an individual lot or lots within a strata titles scheme then the scheme must either:
  • be terminated or
  • a type 1(b) or 4 subdivision plan must be lodged converting the affected land into common property. A deposited plan can then be lodged for the subdivision, as outlined previously.
• If it is intended that land being transferred/amalgamated into a strata titles scheme is to be included in a particular lot within the scheme, the land must:
  • first be included in the scheme as common property by a freehold subdivision plan, followed by
  • a type 1(a) subdivision plan, then
  • a type 4 subdivision plan, merger sketch plan or plan of conversion to survey-strata, depending on the nature of the current scheme and when it was registered (see Plan Example 41).

5.1 Permit Authority Certificate

The STA states that, for an amendment of the scheme plan, it is to be accompanied by an occupancy permit or building approval certificate for each scheme building constructed or modified in the course of a subdivision to be given effect by registration of the scheme or amendment of the scheme. This means that, for any amendment of a strata plan (including subdivision types 1 and 2) which involves the construction or modification of a building, a BA form will be required to be lodged with the plan. If no building is involved, no BA form will be required.

5.2 Type 3 Subdivision - Consolidation of Lots

Type 3 subdivision is the consolidation of 2 or more lots in a strata titles scheme into one lot in the scheme (a type 3 subdivision cannot include any of the common property in the scheme). For strata plans, a floor plan is required showing the consolidated lot and a location plan is necessary if there are vacant lots or part lots external to a building (see Plan Example 36 and Plan Example 37). Type 3 subdivision plans for survey-strata schemes also depict the lots that have been consolidated (see Plan Example 39).

For type 3 subdivisions of strata schemes, the plan will need to be accompanied by an occupancy permit or building approval certificate only if there are buildings modified as a result of the consolidation. Unless exempt, a type 3 subdivision must also have a approval from the WAPC. For type 3 subdivisions involving survey-strata schemes, WAPC approval is required.

For all schemes, surveyors must certify their plans with the surveyor’s certificate- Regulation 54. If there are staged subdivision by-laws, this certificate must state that the plan does not significantly vary from the staged by-law(s) relevant to the plan. See Staged Schemes in this Guide for more information.

A schedule of unit entitlements certified by a licensed valuer is to accompany the type 3 subdivision plan. For staged subdivision schemes, the determination by a licensed valuer as to the variation between the unit entitlement for each lot on the schedule of unit entitlements and the staged subdivision by-laws not being significant (referred to in item 8 of this notice) will be required to be included on the valuer’s certificate. See Staged Schemes in this Guide for more information.

Type 3 subdivision plans are not common as, in most instances some common property is involved, resulting in a type 4 subdivision being required.

5.4 Surveyor's Certificate

For all schemes, surveyors must certify their plans with the surveyor’s certificate- Regulation 54 of the Licensed Surveyors (General Surveying Practice) Amendment Regulations 1961. In the case of a staged development, where there are registered staged by-laws setting out the proposed completed development, this certificate must state that the plan lodged for registration is or is not a significant variation to those by-law(s) in compliance with regs.14, 49(4) & 50 ST(G)R (see Plan Example 35).

If the strata titles scheme does not have staged subdivision by-laws or the plan is a significant variation to the staged subdivision by-laws, a unanimous resolution of the strata company is required and consents must then be obtained in order to register the type 4 subdivision. Should an amendment be required to a staged subdivision by-law in order for the plan lodged to comply with the by-law, the appropriate action should be carried out prior to the lodgement of the type 4 subdivision plan with Landgate.

5.5 Strata Schemes

Type 4 subdivision of a strata scheme is required for depicting a new building on a vacant lot or showing building additions on a lot or the creation of new lots from a lot and/or common property.

The type 4 subdivision plan for a strata scheme lodged for registration must include:

• a scheme plan of amendment comprising of:
  • the location plan depicting any new buildings or additions
  • the floor plan showing the newly created lots
• the schedule of unit entitlements of all the lots certified by a licensed valuer
• the provision for certificates from the local government (Occupancy Permit or Building Approval Certificate) if a building or buildings are constructed or modified as a result of the re-subdivision and
• unless exempt from WAPC approval, a WAPC Endorsement Certificate signed under delegation; where delegation has not been given, the WAPC will endorse the certificate.

5.6 Drafting Guideline

For staged developments, it is preferable to show the complete updated version of the location plan. This may be achieved by copying the detail from the current plan. The intention of this concept is to assist the owners and purchasers of lots, particularly in large schemes, to identify their lots in relation to the whole scheme.

Floor plans of a type 4 subdivision must show the relevant section of the STA that applies to the scheme i.e.: Schedule 2A clause 3AB, sections 3(2)(a) or 3(2)(b) STA. Also, where a floor plan of the registered plan is stamped with the provisions of section 3AB, surveyors must bring forward wording that describes the buildings boundaries in line with clause 3AB (see Plan Example 28).

Where a registered strata plan is endorsed with section 3AB (or Schedule 2A clause 3AB) of the STA and subsequently the local government approves modification of that scheme to allow parts of a building to be built above another building, consideration should be given to, where a “Permitted Boundary Deviation” does not apply (see Schedule 1 clause 3 ST(G)R), surveyors may override section 3AB (or schedule 2A clause 3AB) of STA with section 3(2)(b) of STA for the lots affected.

It must be noted that this situation is for existing schemes only and cannot be utilised for new strata plans lodged for registration.

5.7 Permit Authority Certificate

Type 4 subdivision plans for strata schemes must have an Occupancy Permit or a Building Approval Certificate granted by the Permit Authority (Local Government) and lodged with the plan, if a building or buildings are constructed or modified as a result of the re-subdivision, to enable registration of the plan and the issue of certificates of title for the lots contained therein.

Where the Permit Authority does not grant an Occupancy Permit or a Building Approval Certificate, the applicant may apply to the State Administrative Tribunal for a review of the decision.

Note: See Drafting of Strata Plans for key requirements and standards required 

5.8 Survey-Strata Schemes

All type 4 subdivisions of survey-strata plans must go through the full planning referral process. The basic strata principle of whole lots must be adhered to. It is possible to create new common property on re-subdivision (see Plan Example 44).

The type 4 subdivision plan lodged for registration must have:

• a scheme plan of amendment
• a certificate under regulation 54 of the Licensed Surveyors (General Surveying Practice) Regulations 1961. If there are staged subdivision by-laws, this certificate must state that the plan does not significantly vary from the staged by-law(s) relevant to the plan. See Staged Schemes in this Guide for more information.
• a schedule of unit entitlements certified by a licensed valuer. For staged subdivision schemes, the determination by a licensed valuer as to the variation between the unit entitlement for each lot on the schedule of unit entitlements and the staged subdivision by-laws not being significant (referred to in item 8 of this notice) will be required to be included on the valuer’s certificate. See Staged Schemes in this Guide for more information

and

• provision for a certificate of approval from the WAPC.

The drafting requirements and conventions for type 4 subdivision of survey-strata plans are the same as for the normal preparation of a survey-strata plan, as set out in Drafting Guidelines common to all STA Plans and Drafting of Survey-Strata Plans.

All remaining existing lots as well as the new lots being created are to be valued for survey-strata plans.

5.9 Significant Variations on Staged Schemes

In a staged scheme some variation is permitted between the stage in the staged subdivision by-laws and the plan lodged for registration. The ST(G)R specifies variations that a significant and which do not qualify for the exemption in section 36 of the STA. These variations apply to re-subdivisions (Type 4 subdivision), consolidation of lots (Type 3 subdivision) and the conversion of lots to common property (Type 1(b) subdivision). Regulation 49 of the ST(G)R states that each of the following will be a significant variation:

• The relative unit entitlement of an existing lot increases or decreases as a result of a future stage of subdivision by 10% or more (beyond what is provided in the staged subdivision by-laws)
• The number of lots in a future stage of subdivision increases or decreases by 10% or more (beyond what is provided in the staged subdivision by-laws)
• The registered easements or restrictive covenant change in a way that materially adversely affects an existing lot (beyond what is provided in the staged subdivision by-laws).

A licensed valuer may make a determination about whether a stage of subdivision is or is not a significant variation in relation to the first dot point above and will need to consider how any changes in configuration of scheme buildings, lots or common property on the plan when compared with the staged subdivision by-law affects the unit entitlement of any existing lots in the scheme. This determination will be found on the valuation certificate – see below.

I have determined that in the Schedule of Unit Entitlements above, there is/is not a significant variation of the kind described in Regulation 49(1)(a) to the proposed Schedule of Unit Entitlements in the agreed stage of subdivision in staged subdivision by-law number(s) .............. registered on ...................

A licensed surveyor may make a determination about whether a stage of subdivision is or is not a significant variation in relation to the second and third dot points above. This determination will be found on the Regulation 54 certificate – see below.

I have determined that this plan is/is not a significant variation to staged subdivision by-law(s) no(s) ………………………..registered on ………………………..in compliance with regulations 14, 49(4) and 50 of the Strata Titles (General) Regulations 2019.

If previous stage(s) of a plan were registered before 1 May 2020, the subsequent stages will still be required to comply with regulation 36 of the Strata Titles General Regulations 1996, which will need to be endorsed on the regulation 54 certificate accordingly (see example below for suggested wording).

This plan complies or sufficiently complies with Schedule 1 by-law(s) no(s) ................................... on Strata Plan no. ............... registered on …………………. in a way that is allowed by regulation 36 of the Strata Titles General Regulations 1996.

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1 Section 37 STA

The unit entitlement of lots in strata titles schemes has an important role in determining a lot owner’s:

• share in common property in the scheme,
• levy contribution payable and
• voting rights.

There is often confusion both in the industry and by lot owners on the valuation a licensed valuer undertakes when calculating unit entitlement. Basically, unit entitlement is a comparison of relative values between the lots in the scheme in proportion to the aggregate. The tolerances of these values can be no greater than 5% more or less. The STA contains provisions which in certain circumstances allow unit entitlements to be varied from time to time to ensure that owners and mortgagees’ interests are protected. In strata schemes a proprietor may improve his lot with building additions and alterations which may result in a higher property valuation. Steps should be taken to amend the unit entitlement to reflect these changes if they mean the relative value of the lot to other lots is greater than the tolerance.

Schemes registered between 1966 and June 1985 had unit entitlements allocated by the surveyor or developer, not by a licensed valuer. Consequently, they do not always reflect the proportion of the valuation of the lot to aggregate value of all of the lots. The STA provides for a licensed valuer to allocate unit entitlement of each lot based on the value of the lot in proportion to the total value of all lots in the scheme. As previously mentioned, this proportion must not vary by more than 5% more or less from the value the lot bears to the aggregate value of all of the lots. Unit entitlement must be expressed in whole numbers. The valuer’s certificate for a strata titles scheme is valid for a period of 2 years from the date of the valuer signing the certificate. If the scheme plan is not registered within this time frame, then the valuer’s certificate lapses. The status of the scheme plan will indicate this and a new certificate will be required before registration can proceed.

Note: A fee is required when lodging a replacement Schedule of Unit Entitlements for a strata/survey-strata plan that has a status of “Lapsed”.

The Schedule of Unit Entitlements is to be lodged with the scheme plan or amendment of scheme plan (if applicable).

1.1 Valuers Certificate for a Strata Plan

A licensed valuer must certify unit entitlement for a strata plan based on capital value within the meaning of the Valuation of Land Act 1978. This means valuing the buildings and improvements on the lots together with the land content. Once the strata plan is registered the unit entitlement will remain in force until action is taken to amend it. A Schedule of Unit Entitlements form should be used.

An anomaly occurs when the strata titles scheme contains a “vacant lot”, a lot that has no building constructed on it. The strata plan will contain a certificate from a licensed valuer that certifies that the unit entitlement is based on the value of the lots containing buildings compared to those not containing a building. This is satisfactory until buildings are constructed on the vacant lots. Unless a Type 4 subdivision (re-subdivision), merger or reallocation of unit entitlements is affected, the various unit entitlements will be out of proportion to the unit entitlements which should apply on completion of the construction of the building on the lot. Should the scheme be terminated, the resultant title will be issued in the name of all the lot owners in undivided shares proportional to their unit entitlement. An owner whose unit entitlement is incorrect or not up to date may therefore be seriously disadvantaged.

1.2 Valuers Certificate for a Survey-Strata Plan

A licensed valuer is required to certify that unit entitlement is derived from site value within the meaning of the Valuation of Land Act 1978. This means the value of the buildings and improvements on the lots are not taken into consideration when calculating unit entitlement.

Staged Subdivision Schemes

For staged subdivision strata titles schemes, the determination by a licensed valuer as to whether the variation between the unit entitlement for each lot on the schedule of unit entitlements and the staged subdivision by-laws is significant or not (see STP-09 Scheme Plans) will be required to be included on the valuer’s certificate. See the example below for the wording.

I have determined that the unit entitlement calculation is / is not a significant variation to staged by-law(s) no(s) ____________ registered on ______________________ in compliance with regulations 49, 50 and 55(4) of the Strata Titles (General) Regulations 2019 (ST(G)R 2019).

2 Amendment to the Schedule of Unit Entitlements

An amendment of a schedule of unit entitlements may only be registered —

• as a result of an amendment of the scheme plan to give effect to a type 1 to 4 subdivision (see STP-09 Scheme Plans); or
• if the amendment is authorised by resolution without dissent of the strata company (see STR-06 Modifications to an Existing Strata/Survey-Strata Scheme ); or
• if the amendment is authorised by order of the State Administrative Tribunal (SAT) (see STR-06 Modifications to an Existing Strata/Survey-Strata Scheme).

SAT may, on the application of a strata company or the owner or registered mortgagee of a lot in a strata titles scheme, authorise the amendment of the schedule of unit entitlements for the scheme if satisfied that, if unit entitlements were to be allocated at the time of the application, the schedule of unit entitlements would require amendment for compliance with section 37(2) STA (that is, the proportion that the unit entitlement of a lot bears to the sum of the unit entitlements of all the lots in the scheme must not be greater than 5% more or less than the proportion that the value of the lot bears to the sum of the value of all lots in the scheme ).

If SAT makes an order under this section, the applicant for the order must lodge a copy of the order certified by SAT with the Registrar of Titles for registration of the amendment of the schedule of unit entitlements.

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1 Sections 39-48 STA

Scheme by-laws for a strata titles scheme are either governance or conduct by-laws. The STA contains a set of standard by-laws that are taken to be registered for a strata titles scheme, unless other scheme by-laws are registered for the scheme. Schedule 1 contains governance by-laws and Schedule 2 contains conduct by-laws. These by-laws can be repealed, added to or varied to suit each individual scheme (see STR-09 Scheme By-laws).

1.1 Leasehold By-laws (sections 40 and 41 STA)

Leasehold by-laws of a leasehold scheme are governance by-laws that provide:

• for postponement of the expiry day for the leasehold scheme; or
• for compensation payable on the expiry of the scheme.

If a leasehold scheme does not have registered leasehold by-laws, the expiry day for the scheme cannot be postponed until leasehold by-laws are made and registered in accordance with the STA.

1.2 Staged Subdivision By-laws (section 42 STA)

Staged subdivision by-laws of a strata titles scheme are governance by-laws that apply to strata titles scheme subdivided in stages. Under section 36 STA, compliance with a stage of subdivision as set out in staged subdivision by-laws removes the need for resolutions and consents for registration of an amendment of the strata titles scheme to give effect to the subdivision.

Staged subdivision by-laws must—

• describe in detail the stages of subdivision that are agreed and any amendments to the scheme plan and schedule of unit entitlements that will be made on completion of each stage of subdivision
• identify the lots or common property affected by each stage of subdivision; and
• comply with requirements set out in regulations 48-53 ST(G)R 2019.

Staged subdivision by-laws:

• can only apply to Type 1(b) (converting lots to common property), Type 3 (consolidation of lots) and Type 4 (re-subdivision) subdivisions.
• do not bind the Western Australian Planning Commission (WAPC) or a local government to give a planning approval for an agreed stage of subdivision.
• do not bind the scheme developer of a stage of subdivision to undertake the subdivision.

Scheme by-law documents containing staged subdivision by-laws can be lodged for registration either with the application to register the strata titles scheme or any time afterwards and must contain the information required by regulation 53 ST(G)R 2019, namely:

• a proposed amendment of a scheme plan for each stage of the subdivision that complies with the requirements of section 32 STA.
• a proposed schedule of unit entitlements for each stage of the subdivision. This schedule of unit entitlements must:
  • set out the proposed unit entitlement of each lot to be created by the stage of subdivision; and
  • set out any change to the unit entitlement of a lot in the scheme that existed before the completion of the stage of subdivision; and
  • set out the sum of unit entitlements of all lots in the strata titles scheme at the completion of the stage of subdivision; and
• details of any additional or amendment or repeal of by-laws that are proposed to be made and registered on the completion of each stage of subdivision.
• include plans and specifications, whether by architectural drawings or otherwise, of any building or other improvements shown on the proposed floor plan or the proposed location plan but not shown on the floor plan or the location plan of the registered strata plan.

The plans referred to in the last dot point above must include drawings, of a scale that provides clarity and legibility, showing:

• a plan of every level of the building to be constructed or, if every level is the same, a plan of one level with a note that every other level is the same; and
• at least 2 elevations of external fronts; and
• one or more sections, cross-sectional or longitudinal; and
• the heights of each level of the building to be constructed; and
• levels of ground; and
• approximate relative levels of the lot on which the building or other improvement is to be constructed with respect to any adjoining street, way or lot.

The specifications referred to above must include a description of the materials to be used in the construction of the walls, floors and roofs.

The staged subdivision by-laws must also contain a warning statement to the following effect:

• staged subdivision by-laws do not bind the Planning Commission or a local government to give a planning approval for an agreed stage of subdivision;
• staged subdivision by-laws do not bind the scheme developer of a stage of subdivision to undertake the subdivision.

This information must be submitted in accordance with the requirements as set out in DOC-01 Document Preparation.

1.3 Exclusive Use By-laws (section 43 STA)

Exclusive use by-laws are governance by-laws that confer exclusive use and enjoyment of, or special privileges over, the common property in the strata titles scheme or specified common property in the strata titles scheme (the special common property) on the occupiers, for the time being, of a specified lot or lots in the strata titles scheme (the special lots).

Exclusive use by-laws may include the following —

• terms and conditions on which the occupiers of special lots may use the special common property;
• particulars relating to access to the special common property and the provision and keeping of any key necessary;
• particulars of the hours during which the special common property may be used;
• provisions relating to the condition, maintenance, repair, renewal or replacement of the special common property;
• provisions relating to insurance of the special common property to be maintained by the owners of special lots;
• matters relating to the determination of amounts payable to the strata company by the owners of special lots and the imposition and collection of the amounts.

Subject to the terms of exclusive use by-laws, the obligations in relation to the special common property fall on the owners of the special lots. An amount payable by a person to a strata company under exclusive use by-laws must be paid (together with interest on any outstanding amount) and may be recovered by the strata company, as if the amount payable were an unpaid contribution levied on the person as a member of the strata company.

Exclusive use by-laws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot has given written consent to the by-laws.

Exclusive Use By-laws Sketches

Boundary definitions of exclusive use or special privilege areas can be defined in a sketch by a combination of brick walls or other permanent monuments and dimensions. There must be sufficient information on the sketch to identify the relevant areas. In cases where the relevant areas are car-bays or similar areas independent of a building, dimensions tying these areas to a building or the parcel boundary must be shown.

Although there is no requirement for a licensed surveyor to prepare these types of sketches, it may be in the best interests of all concerned to use professionals for sketch preparation and measuring to avoid later disputes.

Surveyors preparing exclusive use sketches should treat them in much the same manner as preparing a floor plan sheet. The paper size should be A4 as it is part of the scheme by-law document, which will become a registered document. There must be sufficient dimensioning or notation to clearly identify the exclusive use areas. A north point, scale, scale bar and heading containing strata scheme details are to be shown. The sketch should also tie in by dimension or notation the exclusive use portions to a building or the parcel boundary. Stippling, hachuring or identification by notation may be used. Colours must not be used.

When sketches are prepared by someone other than a surveyor, the above criteria applies and must be adhered to.

The annexure containing the sketch must state clearly in bold lettering the lots obtaining the rights and the portions of common property over which those rights apply.

2 Registration of By-laws and Amendments to By-laws

See STR-09 Scheme By-laws.

Version 1 – 01/05/2020

Registration of new schemes – see STR-02 Lodgement and Registration of New Strata/Survey-Strata Plans

Registration of amendments of schemes affecting subdivisions – see STR-04 Amendment of Strata Title Schemes - Effecting Subdivision

1 Problems that Impact on Registration

Some property developers reach the registration stage of the Strata/Survey-Strata Plan only to encounter a problem that should have been foreseen earlier. It is possible in most cases to anticipate these problems and act well in advance to avoid delays.

Some possible problems that can be overcome by simple forward planning include:

Amalgamations of traditional (TLA) title lots – land on a strata or a survey-strata plan must be amalgamated into one parcel of land before registration of the plan.

This means a deposited plan of amalgamation is required if there is more than one lot or location forming the land in the scheme. This is required, as, in the event of termination of the scheme, a title must be issued for a defined land parcel.

Mortgages – where a mortgage is only over a portion of the land in a strata titles scheme as a result of an amalgamation of traditional title lots, it is common practice for the mortgage to be extended to cover the whole of the land in the Strata Plan.

However, if a mortgagee does not wish to discharge the existing mortgage and register a new mortgage over the whole parcel it is possible for “portion only” of the land to be security for the mortgage.

In these cases, the mortgagee must acknowledge in writing the loss of power of sale over those parts of the land excluded from the mortgage.

Encroachments (section 32 of the STA) can cause some difficulties unless action is taken early in the project. Where an encroachment is onto a public road or right of way, consent of the Minister for Lands, the relevant Local Government or Commissioner of Main Roads consent is required. For any other Crown Land, consent of the Minister for Lands and any management body (for managed reserves) or Crown Lease holder consent is required.

By taking action to obtain this consent early in the project, delays in obtaining approval can be avoided. For encroachments onto adjoining private land parcels, an easement must be granted by the owner of the other property before the scheme is registered.

In most instances this requires negotiation with the owner and preparation of an easement document. This should be acted on immediately the situation is known so that a grant of easement can be obtained in time.

Restrictive covenants – a search of the title, the subject of the proposed scheme plan, will indicate the existence of any such covenants. Encumbrances should be searched and checked for any impediment that may result in modification of the covenant. The common types of covenants that cause problems are:

• Limits on the number of dwellings on the parcel.
• Setting a minimum floor area for each unit.

and

Existing easements – if a building shown on the Strata Plan is constructed over an area subject to an easement, it is likely that a surrender or partial surrender of the easement will be necessary. If this is discovered during construction, action may need to be taken to organise the surrender, variation, extinguishment or partial extinguishment of that easement in anticipation of registration. This situation is common with Water Corporation easements in gross created under the Planning and Development Act 2005.

2  Correction of Errors on Registered Plans (section 218 of the STA)

Occasionally errors are discovered on registered scheme plans. Because the scheme plan on registration becomes part of the Register and titles have been issued, the plan cannot be easily amended. However, a Commissioner of Titles order called a “Direction to Amend” may correct it. All evidence relating to the error is submitted to the Commissioner of Titles for consideration. This information may take the form of statutory declarations and letters from affected parties. If in the opinion of the Commissioner of Titles the error is one that is apparent on the plan, and the evidence supplied supports the correction the Commissioner of Titles may direct the Registrar of Titles to amend the plan and titles. Each case is considered on its merits.

Where the error is not obvious on the plan it may prove quicker and more appropriate to amend the scheme plan, usually be a type 4 subdivision (re-subdivision). In either case the surveyor should contact the Plan Examination Team or Landgate’s Customer Service to seek advice as to the most appropriate action to take and the likely timeframes involved.

3 Statutory Easements

Sections 61 to 66 of the STA

After a scheme plan, amendment of a scheme plan, merger sketch plan or conversion to survey-strata plan is registered, an owner or the strata company will have the right to enter onto another lot or common property to exercise the rights of a statutory easement. All lots and common property are benefited and burdened by easements for support, shelter and projections. Section 165 provides the strata company and lot owners with rights of entry to exercise rights under the statutory easements.

A utility service easement will exist for each lot and the common property and will entitle the strata company and lot owners to install, remove, examine, maintain, repair, modify and replace utility conduits.

A common property (utility and sustainability infrastructure) easement will entitle the person who has an infrastructure contract with the strata company to install, remove, operate, examine, maintain, repair, modify, replace infrastructure.

A strata company may enter into an infrastructure contract with a person who owns and operates utility infrastructure or sustainability infrastructure on common property.

The contract must specify the common property affected by the easement.

Schedule 2 clause 12A of the STA covers the rights of a lot proprietor to enter another lot to inspect repair or replace a “permitted boundary deviation” as specified by schedule 1 clause 3 of the ST(G)R 2019. A lot proprietor in a single tier strata scheme (as defined by Schedule 2A clause 3 of the STA) may enter a neighbour’s property with vehicles and equipment to maintain, repair or replace that deviation. It is recommended that owners exercising this right give due notice in writing of the intended entry to their neighbour and on completion return the property to its original state.

4 Protection of Buyers (Part 10 of STA)

The seller of a lot or proposed lot in a strata or survey-strata scheme must provide certain information to the buyers of the property before the buyer signs the contract for sale of the lot.  The information to be provided includes the scheme documents (that is the scheme plan, scheme notice, schedule of unit entitlements, scheme by-laws and, if the scheme is leasehold, the strata lease for the lot). The information includes information specific to the scheme and the lot and general information about the strata titles scheme.

Certain changes to this information (notifiable variations) that happen between the date of the contract and settlement must also be disclosed to the buyer before settlement. Where this information, or changes to it, are not disclosed to the buyer, it is possible for the buyer to avoid the sale prior to settlement. It is therefore vital that changes to any of the information between the contract and settlement of any sale are kept current.

Full details on the information to be given before the contract and any notifiable variation on this information can be found in Landgate’s publication “A Guide to Strata Titles”.

This guide recommends a licensed surveyor is contacted for assistance in interpreting the scheme plan.

Version 2 – 01/05/2020

1 Merger of Common Property Lots

This guide explains in detail how to merge buildings that are or are on common property into lots on the strata plans for a relevant scheme. This process allows changes to lot boundaries to conform to owners’ perception of their property ownership in many single tier strata schemes registered before 1 January 1998. For schemes registered after this date only the normal process of type 4 subdivision (re-subdivision) can effect such changes to lot boundaries.

2 General (Schedule 2A clauses 21A-Z of the STA)

Mergers can be used in a variety of ways that allow a strata company for a relevant scheme to change the strata plan to reflect the current perceived ownership of buildings and land that is common property. This permits buildings or parts of buildings that are common property to be included as part of a lot.

It also enables the plan to be upgraded to reflect new buildings or building additions not previously shown on the Strata Plan. Finally, it can be used to include in a lot land that is common property (see Plan Example 27).

These changes can be achieved without local government or WAPC approval. In most cases to enable this to happen, a surveyor must certify as to certain matters such as compliance with any relevant Town Planning Scheme and that a building licence has been issued for building additions. A licensed valuer is also required to determine the appropriate unit entitlement of the scheme. Where an amendment to the unit entitlement is required, the licensed valuer is to certify this on a Schedule of Unit Entitlements.

Short form easements for vehicle access, parking or turning can be created when mergers are effected (see Plan Example 28). However, it is not possible to create other types of easements. The implied easements for support, services and shelter (sections 61-66) of the STA remain in place and Schedule 2A clause 12A of the STA provides further rights for owners whose boundaries are changed under Schedule 2A clause 3AB of the STA.

There is no time limit as to the use of the merger option. It may be utilised at any time in the future but may only be used once in the lifetime of the scheme. It must be noted that once a merger has been effected, the strata company may still exercise the right to convert the strata plan to a survey-strata plan.

3 Drafting Guidelines

Most drafting guidelines for mergers are common to all plans under the STA. These drafting matters specific to strata plans are recorded in STP-09. The guidelines in this chapter should be used generally and are not to be taken as fixed standards. As each scheme is unique, each plan is also unique. Guidelines are intended to allow flexibility to allow boundaries to be clearly depicted.

4 Drafting Standards

Mergers are available only from the Survey Channel on My Landgate. All merger plans (referred to as “sketch plans” – see Schedule 2A clause 21T of the STA) must contain a location plan depicting the position of the buildings and part lots external to the buildings, and a floor plan (see Plan Example 27).

If in a 2 to 5 lot scheme, it is intended to show a building that has been constructed on a “vacant lot”, a merger “sketch plan” showing all buildings and all part lots comprising the parcel may be used.

In larger schemes it is permissible to show only the affected portions of the scheme on a location and floor plan where it is not practical to show the complete scheme. Surveyors should however ensure that all necessary amendments to the strata scheme are carried out on the merger plan as that option is available only once and further amendments can only be achieved by a Strata Plan of Type 4 subdivision (re-subdivision).

To achieve a merger, the lot owners must have a meeting recording their agreement to the boundary changes. If this agreement is reached a surveyor and valuer must be employed to prepare the plan and schedule of unit entitlements. On completion of these tasks, lot owners pass a resolution without dissent (or unanimous resolution in a two lot scheme) agreeing to the new plan and schedule of unit entitlements and execute the Notice of Resolution of Merger and Disposition Statement on Merger of Land or Conversion to a Survey-Strata Scheme.

5 Surveyor’s Certificate

By signing the regulation 54 certificate of the Licensed Surveyors (General Surveying Practice) Regulations 1961 on the sketch plan, surveyors will need to be mindful that they are certifying to the following:

5.1 Buildings

If any building variation or the addition of a new building to the existing plan is depicted on a merger “sketch plan”, that the addition has been the subject of a building permit under the Building Act 2011 or a building licence under section 374 of the Local Government (Miscellaneous Provisions) Act 1960 (see Schedule 2A clause 21U).

The surveyor must also check that the strata company or all of the proprietors of the lots have approved extensions; alterations or new buildings on the “sketch plan” (see Schedule 2A clause 21U STA). The position of the buildings and offsets on the original location and floor plan sheets is the responsibility of the previous surveyor. Depending on the circumstances, additional survey work may be necessary to establish the parcel boundary in relation to the buildings. The result may be that easements for support may be necessary.

5.2 Planning Schemes

A surveyor has specific responsibilities to ensure the newly created lots comply with certain requirements of any relevant local planning scheme or improvement scheme in accordance with the Planning and Development Act 2005 (Schedule 2A clause 21U(3) and Schedule 1 clause 8 ST(G)R). Briefly those requirements are:

• number of car parking bays and rights of vehicular turning and access per lot
• private open space for each dwelling
• pedestrian access to streets and common property
• rights for access to storage areas, meters, etc.

and

• rights for services access.

When making the certification, the surveyor should take into account:

• provisions of the relevant scheme at time of signing the certificate
• development approval (if any)
• effect on statutory easements

and

• effect on new short form easements or restrictive covenants.

As some schemes may not fit the criteria, surveyors may have to research these requirements before proceeding with the merger.

6 Errors Found on Previously Registered Plans

If in the course of a merger an error of a minor nature is discovered on the previously registered strata plan, the surveyor should contact Landgate to clarify what action is required to correct the error on the “new sketch plan”. Errors considered of a significant nature however may result in the necessity to terminate the scheme or carry out a Type 4 subdivision (re-subdivision) on the scheme or seek action for a “Direction to Amend by an Application to the Commissioner of Titles”. Errors of this nature may cause substantial processing delays and may impact upon other dealings on the strata lots.

7 Stratum Wording on Mergers

All strata plans must bear a statement as to the boundaries of lots that are comprised in a building. The wording for these definitions is addressed in STP-01 (see Plan Example 27).

8 Easements

The merger option enables a short form easement for vehicle access Easement (ST(G)R Regulation 31) to be created on the sketch plan under schedule 2A clause 21W of the STA. This easement is for parking, turning and access (see Plan Example 28). Other forms of easements on mergers are created by deed or transfer.

The area covered by the easement must be depicted on the floor plan sheet with broken lines and sufficient information to establish the easement boundaries.

It is also possible to vary the terms of a short form easement by lodging a memorial or instrument (see ST(G)R regulations 22 and 29) that specifies other matters relating to the easement. If this is the case then the sketch and Interests & Notifications schedule will remain basically the same but the instrument or memorial number must be recorded in the “origin” column of the schedule (see table below).

Table 1 - Example of Schedule

No other easement type, whether STA, TLA, P&D Act or LAA, may be created automatically on mergers.

9 Existing Easements

Easements created previously on any part of the common property merged with a lot will continue after the merger. These easements must be brought forward onto the sketch plan. Easements already created by deed or transfer will encumber the titles to lots affected by them. The strata plan encumbrance schedule will still record the easement as an encumbrance against common property that is not merged.

Any airspace above a specified upper limit and any land below a specified lower level will remain as common property. In most cases an easement may continue to bind the strata company in so far as it applies above or below those levels.

10 Restricted Use Condition

A common mistake made with restricted use condition in a merger is when surveyors attempt to vary the restricted use boundaries on a sketch plan without realising the need for the necessary resolutions, consents and documentation. This type of error regularly occurs on the “building over sewer” restricted use. See STP-09 for coverage of “Restricted Use Condition”.

11 Encroachment on Mergers

If, in the surveying of a sketch plan, an encroachment of a building or attachment onto either a public road or right of way or onto an adjoining parcel is detected, the normal procedures that apply to a new strata plan apply in respect of the surveyor’s certification and the sketch plan. This means that if there is an encroachment onto a public road or right of way the surveyor should check if approval has been granted by the local government. If the encroachment is onto an abutting parcel, an appropriate easement must be granted prior to the surveyor’s certification (see STP-09). On the location plan of the sketch plan, the size and nature of the encroachment must be shown, as well as whether the strata company or a lot owner will be responsible for the control and management of the encroaching structure (section 33 STA and Regulation 12 ST(G)R).

12 Unit Entitlement on Mergers

Unit entitlement on mergers is based on capital value within the meaning of the Valuation of Land Act 1978 and determined by ST(G)R Regulation 54. If unit entitlement is to be amended as a result of the merger, a schedule of unit entitlements certified by a licensed valuer in accordance with ST(G)R regulation 55 will be required to accompany the notice of merger form - see Plan Example 27).

13 Registration (see STR-03 Common Property)

A Notice of Resolution of Merger form must be used for mergers of building and land. Either a Disposition Statement on Merger of Land or Conversion to a Survey-Strata Scheme or transfers of common property are required to dispose of the common property.

In simple terms, all of the lot proprietors are transferring their interests in the common property being merged with a particular lot to the proprietor of that lot. No stamp duty is payable unless there has been a payment for the transfer of those interests.

A certificate of consent from all registered interest holders and caveators is required in cases where the unit entitlement of a lot decreases on merger.

The Notice of Merger forms and other documents mentioned above must be correctly completed and must be lodged with the “sketch plan”. Care should be taken to ensure the dates on the forms correspond with the sequence of events that result in the registration of the “sketch plan”.

Landgate will forward a copy of the registered sketch plan to the relevant local governments, and to the Water Corporation and Sewerage Authority.

Fees apply for the lodgement of:

• the “sketch plan”
• Notice of Merger
• Disposition Statement for Mergers of Land and Conversions to Survey-Strata Scheme

Version 1 – 01/05/2020

1     General (Division 2A clauses 31A-K of the STA)

An option available for lot owners in single tier strata schemes registered before 1 January 1998 (relevant schemes) is to convert the scheme to a survey-strata scheme (see Schedule 2A clause 31C of STA) allowing the boundaries to be re-aligned to include part or all of the common property into the lots. It may have advantages in certain schemes because buildings are not shown on a survey-strata plan. A variety of easements can be used to protect existing rights. There is also no requirement for certification or approval from the WAPC or local government to effect the conversion.

Surveyors must not, under any circumstance, attempt to adjust boundaries between existing strata lots. Clauses 31A-31K deal with the allocation of common property into existing lots and the creation of certain supporting easements (see STP-09). A type 4 subdivision of a Strata Plan (re-subdivision) may need to be registered prior to the conversion to survey-strata to correct any discrepancy that may exist within the existing scheme.

The unit entitlement of lots on a survey-strata is based on site value (i.e. the buildings are not considered when assessing unit entitlement). This may be an important consideration that could have advantages or in some cases, disadvantages.

Surveyors should treat conversions as they would a normal survey-strata plan. The same plan forms, drafting and surveying standards as needed on a new survey-strata plan are required (see Plan Example 30). Surveyors may encounter strata plans registered between July 1985 and December 1988 where the floor plans were surveyed and drawn with the understanding there was to be a strip of common property between the strata lot boundaries and the parcel boundaries. Surveyors who encounter a discrepancy of 0.1m or thereabouts during the survey for the conversion could safely attribute this discrepancy to this common property strip. This strip complied with the regulations at the time and needs to be distributed proportionally to the survey-strata lots (see Plan Example 71).

There is a different surveyor’s certification for these types of conversion. Schedule 2A clause 31F specifies the surveyor’s responsibilities and obligations when survey-strata conversion plans are submitted for registration. Surveyors are required to show on the Conversion Plan a signed certificate under regulation 54 of the Licensed Surveyors (General Surveying Practice) Regulations 1961.

It is not possible under these provisions to vary or change an existing survey-strata plan to eliminate common property lots. A type 4 subdivision (re-subdivision) of a survey-strata plan is required.

This conversion option can be used only once. There is no time limit as to the use of this option.

It is also feasible to use the merger option and at a later stage convert the strata plan to a survey-strata plan but these options are only available for relevant schemes (see Plan Example 31).

Note: When an area of common property is to become part of a lot and is subject to an exclusive use by-law, upon registration of a conversion to a survey-strata scheme, the exclusive use ceases to be applicable to that area.

2 General Drafting Guidelines

For drafting requirements for conversions, this chapter should be read in conjunction with the drafting requirements for survey-strata plans as set out STP-09.

3 Headings

Some minor changes have been made to accommodate the conversion. In the box headed “PLAN OF”, for example, a description of the actual conversion is to be used, e.g. “LOTS 1, 2, 3 AND COMMON PROPERTY ON STRATA PLAN 12345”. There are no circumstances where a conversion plan can be registered without including the words “and Common Property” in the heading “Plan of”.

4 Surveyor’s Certificate

Care should be taken by surveyors to ensure their responsibilities are fully understood when certifying conversions. In some cases, it may be prudent to seek legal advice as to the surveyor’s liability in respect of planning requirements. Surveyors must certify all conversion plans with a “Surveyors Certificate – Reg 54” certificate (see STP-03).

Clause 31F(2)(c) provides that in respect of a conversion from strata to a survey-strata scheme under the STA the surveyor is required to certify that “a reference on the survey-strata plan to a lot by a designated number is a reference to the lot designated by that number on the existing strata plan”. This means that it is not possible to include any part of a lot on a strata plan into another lot on a survey-strata plan under the conversion to survey-strata process.

The intention of conversions to survey-strata is to enable division of common property between existing strata lot owners. It was not intended to enable subdivision of existing strata lots. If an existing strata lot is intended to be split between 2 or more survey-strata lots, then the procedures for termination of a strata scheme under 173-193 of the Act and the subsequent registration of a Survey-Strata Plan under section 56 of the Act are applicable.

The surveyor has these responsibilities divided into the following categories:

• Survey requirements.
• Planning scheme requirements.
• Easements.

4.1 Survey Requirements

Survey work carried out on the conversion to survey-strata schemes must be in accordance with the Licensed Surveyors (General Surveying Practice) Regulations 1961. The survey guidelines for survey-strata plans in surveys of survey-strata schemes apply. Field Books must be lodged for all survey-strata plans (including conversion to survey-strata).

4.2 Planning Schemes

The surveyor has specific responsibilities to ensure the newly created lots comply with certain requirements of any relevant local planning scheme and improvement scheme in force under the P&D Act (Schedule 2A clause 31F(2)(e) and (ST(G)R Schedule 1 clause 12).

Briefly those requirements are:

• number of car parking bays and rights of vehicular turning and access per lot
• rights to light and air
• rights of support
• private open space for each dwelling
• pedestrian access to streets and common property
• rights for service access

and

• rights for access to storage areas, meters, etc.

When making the certification, consideration should be given to the following:

• provisions of the relevant scheme
• development approval (if any)
• effect on statutory easements

and

• effect on new short form easements or restrictive covenants.

Surveyors may have to research these requirements before proceeding with the conversion as some schemes may not fit the criteria. Whilst surveyors may be able to legitimately sign a Reg. 54 certificate, they need to be careful not to create a situation where a conversion to survey-strata is undertaken and the resultant lots do not comply with the R-Codes. A Local Government may refuse to issue a building license for a non-complying lot in those circumstances. It may be prudent to seek legal advice as to a surveyor’s liabilities in respect of planning requirements.

5 Unit Entitlement on Conversion to Survey-Strata

Unit entitlement on conversions to Survey-Strata Plans is based on site value within the meaning of the Valuation of Land Act 1978. The site value basis is a different concept to capital value so lot owners are required to have an unanimous resolution and certificates of consent from every person with a registered interest or caveator to the Schedule of unit entitlements. A licensed valuer must certify a new schedule of unit entitlement.

6 Easements

In some cases, easements may have to be created on the survey-strata plan to meet the criteria specified in Schedule 1 clause 12 ST(G)R. These easements are the short form easements able to be created under section 33 of the STA  (see STP-09 ). Because survey-strata plans do not show buildings, several types of easements may be used to protect various rights. Statutory easements for services (i.e. sewerage, water, electricity, gas, etc.) and support remain in place. (see Plan Example 31 and Plan Example 32).

The conversion option from a strata plan to a survey-strata plan enables the following types of short form easements to be created on the survey-strata plan:

• Vehicle Access Easement under ST(G)R regulation 31.
• Light and Air Easement under ST(G)R regulation 32.
• Party Wall Easement under ST(G)R regulation 33.
• Intrusion Easement under ST(G)R regulation 34.
• Pedestrian Access Easement under ST(G)R regulation 35.
• Easement in Gross under ST(G)R regulation 36
• Easement for Utility Services under ST(G)R regulation 37

Refer also Easements in STP-09 Scheme Plans.

7 Existing Easements

On conversion of a strata plan to a survey-strata plan, easements created on the strata plan will be carried forward on to the new survey-strata plan. Surveyors must bring forward all easements of a spatial nature onto the survey-strata plan. Existing easements created by deed or transfer will encumber the titles of those that it affects as well as being recorded on the encumbrance schedule of the survey-strata plan.

8 Mineral Reservations

On the conversion to a survey-strata plan, a current search of the strata plan must be carried out to enable certain mineral reservations that run with the land parcel to be carried forward onto the survey-strata plan (see STP-09).

9 Various Other Matters – See Mergers

The topics of resolutions, restricted use conditions, encroachments and registration that apply to mergers also apply to conversions. For registration of conversions a Notice of Conversion to Survey-Strata applies.

Note: Where the Floor Plan on the original strata plan is endorsed with a section 6 STA use restriction, the conversion of the strata plan does not automatically remove this use restriction. If it is be removed an Application to Amend Scheme Plan – Restricted Use Condition should be lodged by the strata company before registration of the conversion.

Version 2 – 01/05/2020

This guide is intended as general information only. If you are uncertain of your rights or interests, please seek professional legal advice. Landgate staff are not able to give legal advice or to draft your documents. Please read our Terms of Use above.

Structural alterations on lots are regulated under STA (sections 86-90). Regulation 75 ST(G)R 2019 sets out the information to be provided by an owner applying for the approval of the strata company or other lot owners for any structural alteration to their lot. This application must contain information such as:

• the open space or plot ratio requirements of the local authority which apply to the strata scheme as a whole and the particular lot;
• the percentage and area by which these will be exceeded;
• the dimensions of the structure when it is completed;
• the location and dimensions of the proposed structure upon its completion in relation to any existing structure on the lot or to the boundaries of the lot;
• whether the structural alteration to the lot changes the boundaries of the lot and whether the applicant has sought advice from a licensed surveyor about the effect of the structural alteration.

The last dot point helps ensure that a lot owner carrying out any structural alteration seeks the advice of a licensed surveyor as to whether lot boundaries are amended and how best to update the scheme plan. Structural alterations that affect lot boundaries require different scheme approval processes.

Full details on the information on structural alterations of lots in strata titles schemes can be found in Landgate’s publication “A Guide to Strata Titles”.

Version 1 – 04/01/2019

1     Taking (formerly known as Resumption) (formerly section 18.11 of the practice manual)

Land may be taken from a strata/survey-strata scheme under the provisions of Part 9 of the Land Administration Act, 1997 (replacing similar provisions in the Public Works Act 1902, 1902). The parties affected are the strata company and the lot owners.

Where land is taken (Taking Order – see Sections 29, 29A & 29B of the STA where the terminology is “resumption”) from a strata/survey-strata scheme under part 9 of the Land Administration Act 1997 the following requirements apply:

• A deposited plan must be lodged depicting the area of land to be taken together with any residual land in the strata scheme shown as a new lot.
• If the land being taken is common property only, DoL will instruct surveyors that a replacement sheet (new Version with the Version/Amendment table showing the notation "REDEFINITION AFTER DISPOSAL OF COMMON PROPERTY - SEE DOC..........") depicting the situation after the land has been taken (including the change in the land description) must be prepared and submitted to Landgate by the appropriate authority (see Plan Example 61).
• If any of the land being taken involves land in a strata lot, the “relevant authority” must comply with section 29B of the STA and submit a replacement sheet for the Strata/Survey-Strata Plan that depicts the lots and common property remaining in the scheme (see Chapter 18.13). The new sheet must show the change in the land description (i.e. the new balance lot created on the deposited plan) for the scheme. Note that the new sheet must use the existing strata lot numbers (see Plan Example 42 and Plan Example 62).
• A new CSD file is required for any survey-strata scheme affected by a taking.

2     Variation of Survey-Strata Scheme on Taking (formerly section 18.12 of the practice manual)

Where part of the land in a survey-strata scheme is taken, the District Court, on an application of the strata company, a proprietor or mortgagee of a lot may make an Order with respect to the variation of the scheme or the substitution for the existing scheme of a new scheme. Refer to section 29A of the STA.

3 Taking of Part of a Strata Lot (formerly section 18.13 of the practice manual)

Where a “Taking Order” under section 177 of the Land Administration Act, 1997 affects lots or parts of lots on a Strata Plan the lot owner and the strata company become involved because both the cubic space within the lot and the common property (air space and subsoil) are usually affected.

Replacement sheets (new Version with the Version/Amendment table showing the notation "REDEFINITION AFTER DISPOSAL OF LOT/PORTION OF LOT - SEE DOC..........”) depicting the situation after the land has been taken must be prepared and submitted to Landgate by the appropriate authority (see Plan Example 42). This means a replacement floor plan and location plan sheet is to be submitted for registration.

Surveyors must prepare replacement floor plans in accordance with guidelines pertaining to amendments introduced in 1996 i.e. quote wording in relation to Sections 3AB and 3 (2) (a) STA. Unit entitlement may also vary so the surveyor should recommend to the client that unit entitlement might require adjusting.

Version 2 – 01/05/2020

1 Terminations Sections (171 to 195 of the STA)

The termination process:

• provides safeguards for owners
• is transparent, reasonable and requires a vote, and
• requires a full procedural and fairness review by the State Administrative Tribunal (SAT) to consider all owners’ views.

The majority termination process is more than just a vote, there is a complete, transparent process that must be followed. If the vote produces the required majority, but is not unanimous, the termination proposal must undergo a fairness and procedure review by SAT and cannot proceed without a SAT order.

SAT can order that a scheme be terminated under a majority vote only if it is satisfied of three key things:

• the termination process was properly followed, and
• every owner who objects to the termination will get at least fair market value for their lot (eg: apartment or unit), and
• the proposal to terminate is just and equitable.

The termination process is outlined below.

1.1 Part A - The Proposal

• Preparation of an outline termination proposal
• Distribution of the outline proposal owners and mortgagees
• Voting on outline proposal
• Obtaining planning approval
• Preparation of the full proposal
• Referral of the proposal to an Independent Advocate

1.2 Part B - The Vote

• Distribution of the full proposal to all parties
• Voting on the full proposal

1.3 Part C – The fairness and procedure review

• Application to SAT for a fairness and procedure review
• Application to the Western Australian Planning Commission to endorse the plan of survey
• Apply to the Registrar to register the termination

See the Guide to the Termination of Schemes (coming soon) for full details of this process.

1.3.1 Application to the Western Australian Planning Commission to endorse the plan of survey

The deposited plan lodged at Landgate will need to be sent to WAPC for their approval before the termination can be registered.

This deposited plan will be lodged, examined and sent to the WAPC as per any deposited plan requiring WAPC approval. The only unique feature on this plan being that the former tenure table will show strata/survey-strata lots, plans and titles as the former tenure of the lot created on this deposited plan (see example table below).

Once deemed ‘In Order for Dealings’, Landgate will endorse ‘Subject to termination of strata plan 60000’ (in this case), in the “In Order for Dealings” panel on the plan.

2 Unanimous Owner-Initiated Termination Proposals (regulations 153-159 of the ST(G)R)

A unanimous owner-initiated termination proposal is when:

• the proponent is one or more of the owners of lots within the scheme; and
• the termination proposal is submitted by the proponent on condition that it will be proceeded with only if it has the unanimous support of the owners of lots in the scheme.

This process is outlined below:

• Permission to submit termination proposal as unanimous owner-initiated termination proposal (regulation 154)
• Outline of proposal (regulation 155)
• Qualifications of independent advocate (regulation 156)
• Full proposal (regulation 157)
• Person who can provide report of required works (regulation 158)
• Arrangements for independent advice or representation for owners (regulation 159)

See the Guide to the Termination of Schemes for full details of this process.

2.1 Registration

A termination proposal that has unanimous support of owners of lots in a strata titles scheme does not require the confirmation of SAT. If the termination resolution is passed, an application can be made to the Registrar of Titles for the termination of the scheme under section 193,

The proponent will lodge an Application for Termination of Scheme by Single Owner or Unanimous Agreement with, if applicable:

• a statement (Statement to Deal with Land) of how each item registered or recorded for the scheme in the Register is to be dealt with; and
• disposition statements, instruments or documents necessary for that purpose, and
• a deposited plan.

See STR-07 Scheme By-laws for all registration requirements for terminations.

3 Termination by a Single Owner (section 191 of the STA)

If all the lots in a strata titles scheme are owned by the same person, that person can make an Application for Termination of Scheme by Single Owner or Unanimous Agreement at Landgate without the requirement to go through the whole termination process outlined in this Guide (except for obtaining an approval of a plan of subdivision from WAPC). This application will need to be accompanied by:

• a statement (in the approved form) of how each item registered or recorded for the scheme in the Register is to be dealt with; and
• disposition statements, instruments or documents necessary for that purpose
• a deposited plan.

See STR-07 Scheme By-laws for all registration requirements for terminations.

Upon registration, a title for the lot on the deposited plan will be created in the name of the single owner of the scheme.

4 Termination on Compulsory Acquisition (section 196 of the STA)

The Minister for Lands may in a taking order declare that a strata titles scheme for that parcel is terminated on the registration of that order. The Registrar of Titles must register the land in the parcel in the name of the Crown or other authority in which it has vested under the taking order.

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 Strata Titles 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.

1 Adverse Possession and Strata Titles

Land under the Transfer of Land Act 1893 (TLA) may be made the subject of an Application for Title by Possession (also known as an Adverse Possession claim) see section 222 of the TLA. Generally speaking the Applicant must be able to show adverse possession of the claimed land for a period of 30 years (refer to Land Titles Registration Policy and Procedure Guide: TYP-04 Bringing Land under the Transfer of Land Act 1893 Section 2).

The first strata plan was registered on 2 May 1968 and some strata schemes have been in place for more than forty years. This means situations may arise more frequently where an application for title by adverse possession involves land in a strata/survey-strata scheme.

When a strata company passes an “exclusive use” by-law, it must be with the consent of the owners or a majority of the owners and in circumstances where the strata company is acting on behalf of all owners in passing the by-laws. This means the use of exclusive areas is by consent (and not adverse) and the limitation period for adverse possession does not begin to run.

All Applications for Title by Possession are at the discretion of the Commissioner of Titles.

If an application is successful, the Applicant will be entitled to become the registered proprietor of the land subject to the Application for Title by Possession.

1.1 Categories

An Application for Title by Possession involving strata titles schemes will usually fall into one of the following categories

1.1.1 Type A - Freehold/Strata

Where the Applicant's lot is freehold land and the land being claimed is the whole or part of a strata/survey-strata lot or common property (see Example 56).

1.1.2 Type B - Strata/Freehold

Where the Applicant's lot/land is the whole or part of a strata/survey-strata lot or common property and the land being claimed is freehold land.

1.1.3 Type C - Strata (scheme A)/Strata (scheme B)

Where the Applicant's land (strata/survey-strata lot or common property) is within a strata/survey-strata scheme (Scheme A) and the land being claimed (whole or part of a strata/survey-strata lot or common property) is within an abutting strata/survey-strata scheme (Scheme B).

1.1.4 Type D - Strata (same scheme)

Where the Applicant's lot and the land being claimed are within the same strata/survey-strata scheme.

1.2 Requirements for replacement plans after successful claims involving land in a strata titles scheme

If there is a successful Application for Title by Possession involving land in a strata titles scheme, then, generally speaking, the successful applicant will be required to provide the following plans (the Commissioner of Titles has some discretion in relation to these requirements)

• Types A, B & C
  • A redefinition deposited plan showing the outcome of the new lots created i.e. a new Freehold Lot for the extended land parcel (Applicants land plus the claimed land) and a new Freehold Lot for the diminished land parcel (balance of the lot minus the claimed land).
  • A new location plan (for strata plans) or sketch plan (for survey-strata plans).
  • A new floor plan (for strata plans) or Sketch plan (for survey-strata). If common property only has been affected a new floor plan may not be required.
• Type D
  • A new location plan (for strata plans) or Sketch plan (for survey-strata).
  • A new floor plan (for Strata plans) where the strata lot has been affected. If common property only has been affected a new floor plan may not be required.

In addition, the Commissioner of Titles may require a new schedule of unit entitlements for Types A, B, C & D.

Lodgement fees apply for the redefinition DP and replacement strata plans.

Version 1 - 04/01/2019

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 Strata Titles 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.

Appendix C: Table of Plan Examples (formerly section 22.3 of the practice manual)

These examples are derived from original Plans or appropriate parts of Plans that have been lodged at Landgate. They are only intended to be indicative of the particular circumstance/s stated in the description and may not necessarily reflect what is shown on the original Plan. The Plan forms and their presentation may not reflect Landgate’s current requirements.