CTS-02 Planning and Development

Version 1

30/06/2021

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 Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.

1  Introduction

1.1 Planning Requirements for Subdivision by Community Scheme (CTA section 18)

Before land can be subdivided by a community scheme WAPC must approve:

WAPC will approve a CDS only if it makes a decision that subdivision by a community scheme is an appropriate form of subdivision.

Waiver of other requirements relating to plans or instruments (CTA section 20)

WAPC may, in writing, waive requirements for the preparation of particular plans or instruments under a planning scheme or interim development order for land that is to be subdivided by a community scheme if satisfied that this is not necessary taking into account the existence of a CDS. Before waiving the requirements, they must consult with each relevant local government.

2  Community development statement (CTA sections 19, 21 - 28)

A CDS is a planning instrument that may control:

The development period for a community scheme means 10 years after registration of the tier 1 scheme. An application may be made for extension of the development period.

Effect of the CDS on planning approvals (section 19 CTA)

While a CDS is in force for a community scheme (whether or not the tier 1 scheme is registered to establish the community scheme):

The CDS may be amended to accommodate any inconsistency with a subdivision or development. This does not limit the conditions that may be imposed on a planning approval, as long as they are consistent with the CDS after it (the CDS) is approved and before the end of the development period. A CDS comes into force on the day of its approval and remains in force until it ceases to have effect.

2.1 Application to Approve a CDS or Amendment of a CDS (CTA section 21)

A person may apply to WAPC for approval of a new or amended CDS, accompanied by:

WAPC may require the applicant to provide additional information before approval.

2.2 Comments from Local Government and Others (CTA section 22)

Within 7 days after an application for approval of a CDS or an amendment of a CDS, WAPC must refer it for comment to:

The local government must then advertise the application for public comment. A referral or advertisement of an application must:

The minimum period that must be allowed for comments to be made is 14 days after:

and

and these comments must be passed on to WAPC, who must give them due regard within the period for comment or such longer period as they allow - see Community Titles Regulations 2021 (CTR) regulation 11.

2.3 Decision as to Appropriate Form of Subdivision (CTA section 23)

On an application to approve a CDS, WAPC must decide whether subdivision by a community scheme is appropriate, having due regard to:

WAPC must not make a decision that conflicts with a relevant State planning policy, a planning scheme or interim development order that has effect in the locality in which the land is situated. If they decide that subdivision by a community scheme is not an appropriate form of subdivision, they must give the applicant written notice of the refusal and the reasons why.

2.4 Approval of CDS or Amendment (CTA section 24)

A new or amended CDS must not be approved if it would conflict with a State planning policy, a planning scheme or interim development order that has effect in the locality in which the land is situated. WAPC may approve a draft new or amended CDS, subject to the condition that the draft must be modified in a specified manner and returned to WAPC within a specified period. If a condition is imposed, the applicant must provide WAPC with the following:

If not complied with within the specified period or such longer period as WAPC allows, their approval ceases to have effect. The date of approval of a new or amended CDS is the date on which the condition(s) is/are complied with or, if there are no conditions, the date on which the approval is given.

2.5 Content of CDS (CTA section 25)

A CDS must identify the location of the parcel of land subdivided by the community scheme. It must also include any other information specified in CTR regulation 13 including:

A staging plan or report may include requirements for the:

A new CDS or amended must be in a form approved by the WAPC and be endorsed with the date of its approval by the WAPC.

2.6Subdivision

A CDS may specify requirements for subdivision, including:

2.7 Development

A CDS may specify requirements for development as a community scheme, including:

It may specify requirements for a plan for the provision of utility services and infrastructure to be constructed, commissioned and maintained in accordance with standards or documents specified by utility service providers.

It may specify requirements for the staging and sequencing of subdivision and development, including for each stage:

It may specify requirements for a planning (scheme by-laws) condition to be imposed on approval of a community titles scheme or an amendment;

It may include any other matter considered appropriate by WAPC. The CTR may include model provisions that can be included in a CDS.

It may refer to, or incorporate, wholly or partially and with or without modification, a State planning policy, an Australian Standard published by Standards Australia, or the following documents of a class specified in the CTR regulation 14:

as in force:

2.8 Development Period for a Community Scheme (CTA section 26)

The development period for a CDS is 10 years after registration of the community titles scheme that establishes the community scheme, called the tier 1 scheme. WAPC may, on application, extend the development period.

An application for an extension of a development period must be made at least 6 months before expiry (although WAPC may accept a late application) and be accompanied by a copy of a special resolution of the tier 1 corporation approving the extension.

If WAPC accepts an application made after expiry, they may require provision of a draft of an amendment of the CDS for approval by WAPC and for registration with the community titles scheme or amendment proposed. WAPC must refer this application for external comment to:

A local government to which an application for extension is referred may (must, if WAPC so requires) advertise the application for public comment. A referral or advertisement must:

The minimum period for comments to be made for both a local government and the public authority or utility service provider is 14 days from the day on which they receive the application for an extension (CTR see regulation 16). If advertised, the minimum period for comment is 14 days. If comments are received by a local government, they must be passed on to WAPC, who must give due regard to them.  If WAPC extends the development period, they must lodge with the Registrar of Titles notice in the approved form of the new date on which the development period ends, which has effect when it is recorded in the Register.

2.9 CDS or Amendment Ceases to have Effect in Certain Circumstances (CTA section 27)

A CDS ceases to have effect if, at the end of 4 years after its approval, the tier 1 scheme has not been registered and there is no application for registration of the tier 1 scheme lodged with Landgate that has not been examined. An amendment of a CDS ceases to have effect if at the end of 4 years after approval of an amendment proposed to be registered with a community titles scheme or amendment to give effect to subdivision of land, the the community titles scheme or amendment has not been registered  and there is no application for registration lodged at Landgate that has yet to be examined. WAPC can declare that a CDS ceases to have effect if the development period has expired and must give notice of the declaration in the approved form to the Registrar of Titles, which has effect when it is recorded in the Register.

2.10 Availability of the CDS (CTA section 28)

WAPC must ensure that an up-to-date version of each CDS as approved by them (consolidated so as to include any amendments) is available to members of the public free of charge from their website. If there is any inconsistency between a CDS published by WAPC and a CDS incorporated in the Register, the CDS incorporated in the Register prevails.

3  Planning Approvals

3.1 Planning Approvals (section 29 CTA)

For community schemes, an application must be made under the P&D Act for approval of a plan of subdivision as if it were for approval to subdivide under that Act and if necessary, development approval. A person may submit to WAPC a scheme plan or amendment for which there is an approval of a plan of subdivision under the P&D Act for approval, which is to be dealt with as if it were an approval of a diagram or plan of survey of the subdivision under P&D Act section 145.

3.2 Modification of the P&D Act (CTA section 30)

The P&D Act applies to planning approvals subject to the following modifications:

WAPC may, by written notice, require a local government, public authority or utility services provider to provide a certificate (in a form approved by WAPC) as to compliance and may rely on this as proof of the matters certified. They must have due regard to the certificate within the period specified in the notice or such longer period as WAPC may allow.

3.3 Approval of Modification of Restricted Use Condition (CTA section 31)

The approval of WAPC is required to impose, vary or revoke a restricted use condition either in conjunction with an approval of a plan of subdivision or by separate application.

3.4 Approval under Planning (Scheme By-laws) Conditions (CTA section 32)

Amending or repealing scheme by-laws required under a planning (scheme by-laws) condition requires the approval of WAPC or a local government as relevant and can be applied for and given in conjunction with an application for a planning approval or by separate application.

4  Miscellaneous

4.1 Applications (CTA section 33)

Any application made to WAPC or local government must be:

WAPC or local government as relevant may require the provision of additional information reasonably required to determine the application and may refuse the application if this is not provided.

4.2 Review of Decisions (CTA section 34)

An applicant may apply to SAT for a review of:

SAT has jurisdiction to carry out the review in accordance with the P&D Act - Part 14.

If at the end of 120 days (or any longer period agreed with the applicant) after an application to approve a CDS or amendment is made, WAPC has not made a decision, the applicant may give written notice of default to WAPC.

If at the end of 28 days (or any longer period with the applicant) after an application to extend the development period is made, WAPC has not made a decision, the applicant may give written notice of default to WAPC. This is if WAPC has accepted an application to extend the development period after the period has expired and required the applicant to provide a draft amendment of the CDS for approval of WAPC for registration with a community titles scheme or amendment, the period of 28 days or longer as agreed) does not commence until the date on which WAPC make a decision to approve, approve subject to conditions or not approve the CDS (CTR regulation 17).

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.