STP-07 The Role of Government Agencies
Version 1 – 02/01/2019
1 Government Involvement in Strata and Survey-Strata Schemes (formerly section 5.1 of the practice manual)
The planning and development approval process controls land development in Western Australia. Various Acts, regulations and policies dictate the responsibilities of government agencies that approve these projects.
Strata title developments now comprise one third of development in this state. As urban and rural land use changes with modern planning concepts the strata title is playing a significant role in providing flexibility in development. The process and the time frame for approval has become an important factor in determining the method of development.
Flow charts and approximate time frames of the process through the major government agencies are detailed in Appendix A.
2 Local Government Planning Approval (formerly section 5.2 of the practice manual)
In most urban projects one of the first steps is to gain a Development Approval from the local government. This approval is to indicate that buildings and infrastructure can be located on the property and that it will conform to specified requirements set out in the Residential Design Codes and Town Planning Schemes.
In local government, responsibility for developments is broken into two components:
1. planning issues and responsibilities,
2. building responsibilities.
The planning issues are under the control of the planning section of the local government which is responsible for ensuring any proposed development complies with the Town Planning Scheme, Residential Planning Codes and other local government requirements that fit the urban character.
This encompasses minimum lot sizes, open space requirements, privacy, access, aesthetics and issues that deal with amenities and appearance of the completed development.
The structural component of the development is the responsibility of the building section of the local government whose role is to ensure the structure conforms to the Building Code of Australia and various local government by-laws.
The development application form has details to be completed by applicants or their representative and must be accompanied by basic building plans showing the design of the proposed buildings, access, levels, etc.
Local governments have varying requirements for development approval, but the following information may be required:
- A site plan showing the existing buildings.
- Contours and ground levels.
- Floor levels of the proposed building.
- Retaining walls or embankments.
- Layout and dimensions of car parking.
- Tree types and heights.
- Location and dimension of open space.
- Information from adjoining land on:
- Drawings of proposed buildings showing floor plans, elevations, sections and to include:
- Copies of specifications showing material type and colour of building construction, driveways, fences and retaining walls.
- Other information local government requires.
- location of buildings and all windows facing the proposed development;
- location of access ways and crossovers; and
- ground levels and floor levels of adjoining land and buildings.
- proposed use of buildings;
- all external openings;
- any solar heating or air conditioning devices; and
- relationship of proposed floor levels and existing ground levels.
On payment of a fee, an application for a development approval is considered by the planning section of the local government and applicants are notified of the result. A development approval (DA) is normally valid for two years but this may vary according to the proposal.
One of the requirements of a development approval is to ensure that the development will meet the open space or plot ratio specifications of the Residential Planning Codes. On Survey-Strata Plans and “vacant lot” Strata Plans this requirement is reinforced by having a management statement (by-laws) registered on the plan, including within its terms, a by-law stating that the development must conform to the development approval issued by the local government.
3 Western Australian Planning Commissions Role (formerly section 5.3 of the practice manual)
Processing of strata title projects through various government agencies is governed by the type and size of the scheme and by the requirements of the STA.
3.1 Strata Plans (formerly section 5.3.1 of the practice manual)
Under section 25 of the Strata Titles Act 1985 strata plans are required to be approved by the Western Australian Planning Commission, unless exempt under regulation 15 of the Strata Titles General Regulations 1996 (see section 7 of this guide).
On 26 May 2009, the WAPC resolved to delegate its power to issue a certificate of approval under section 25 of the Strata Titles Act 1985 to all local governments, except for those applications that:
- propose the creation of a vacant lot
- propose vacant air strata lots in multi-tiered strata scheme developments (these, however, are inconsistent with the provisions of the Strata Titles Act and the WAPC has received legal advice not to approve this type of scheme)
- where, in the opinion of the WAPC as notified to the relevant local government in writing, or in the opinion of the relevant local government as notified to the WAPC in writing, relate to
- a type of development
- land within an area, which is of state or regional significance, or in respect of which the WAPC has determined is otherwise in the public interest for the WAPC to determine the application.
An instrument of delegation regarding these arrangements was made under section 16(3)(e) of the Planning and Development Act 2005 and gazetted on 9 June 2009.
Note: Delegation under section 16 of the P&D Act does not exempt Strata Plans from the requirement of a STGR Form 26 certificate.
Where, in accordance with the notice of delegation, the WAPC has notified the local government in writing, or the local government has notified the WAPC in writing that the type of development and/or land is within an area which is of state or regional significance, the local government will forward the form 24 application to the WAPC for determination and approval. In this instance the WAPC will sign the Form 26 and will refer a copy of the approved plan to the local government to ensure consistency of approved plans.
In the past the Form 26 was able to be incorporated into the Location Plan of the strata plan. However, it is now better suited and required to have the Form 26 separate from the Location Plan for those strata plans that have been delegated to local government. (See Plan Example 53).
3.2 Survey Strata Plan and Vacant Lot Strata Plans (formerly section 5.3.2 of the practice manual)
Survey-Strata Plan and vacant lot Strata Plan applications to the WAPC are controlled by the provisions of Part 10 of the P & D Act. These types of applications undergo the full planning referral process.
Applications for Survey-Strata Plan (WAPC) approvals require a fully completed Form 1A plus 8 copies of the proposed plan (for 40 lots or less) or 12 copies of the plan (for more than 40 lots). Applications for Vacant Lot Strata Plans are made on a STGR Form 24 and must be accompanied by 6 copies of the plan.
The WAPC will then refer the application to Local Government and service providers for comment and recommendations. They have up to 42 days to respond to the application and may request conditions be imposed on any approval given by the WAPC.
A report and recommendation is prepared for WAPC, taking into account relevant WAPC policies, local and regional planning scheme provisions, comments from referral agencies and any other relevant matters. The WAPC may approve the application with or without conditions or refuse the application. This determination may take up to 90 days (section 143(2) P&D Act) from the date of receipt of the application.
All Strata/Survey-Strata Plans are first lodged at Landgate for audit. After audit, Vacant Lot Strata Plans and Survey-Strata Plans will be examined Once the applicant has obtained the necessary clearance certificates (see section 4 of this guide), the surveyor will send a “Release Letter” to Landgate requesting the plan be forwarded to WAPC for approval endorsement.
3.3 The Planning and Development Act 2005 (P&D Act) (formerly section 5.3.3 of the practice manual)
Throughout these guides there are various references to the Town Planning and Development Act 1928 (T, P & D Act). With the commencement of the P & D Act on the 9th April 2006, the T P & D Act was repealed so all new Strata/Survey-Strata Plans lodged for registration after that date must where applicable show reference to the P & D Act.
Following is a brief summary of significant sections of the P & D Act that impact on strata/survey-strata plans:
- Section 146 of the P & D Act provides that the Registrar of Titles cannot issue Certificates of Title or Register certain Plans where a “ title application” is not made within prescribed periods. For the purpose of section 146, the P & D Act definition of a “lot’ does not include a lot in relation to a strata scheme or a lot in relation to a survey-strata scheme and therefore strata/survey-strata plans are excluded from the provision of section 146.
- Section 150 of the P&D Act provides the WAPC the mechanism to impose Road Access Conditions. Conditions imposed as a restriction or prohibition on land abutting a road is to be shown in an Interests & Notifications schedule as a Covenant (see Plan Example 52).
- Section 152 of the P & D Act (formerly section 20A of the T P & D Act) – provides for the “Vesting” of Lots directly on the Strata/Survey-Strata Plan. Dual numbering of Strata/Survey-Strata Plans with vesting lots is no longer allowed (see STP-09 Scheme Plans section 1.18 and Plan Example 7 and 51).
- Section 165 of the P & D Act (formerly section 12A of the T P & D Act) – provides the WAPC with the power to impose a “Notification” to be recorded on a Certificate of Title as a warning to “Factors Affecting the Land”.
- Section 167 of the P&D Act and regulation 33 of the Planning and Development Regulations 2009 (formerly Regulations 5, 6, 7, 8 and 9 of the Town Planning and Development (Easement) Regulations 1983) provides for the automatic creation of certain easements for Sewerage, Drainage, water Supply, Irrigation, Electricity, Gas Supply and Telecommunications Supply (see Plan Example 52).
Existing easements created prior to 1 July 2009 under Regulations 5, 6, 7, 8 and 9 of the Town Planning and Development (Easement) Regulations 1983 are to be brought forward as and remain as Reg 5, 6, 7, 8 and 9 (see Plan Example 12 and Plan Example 46).
- Section 168 (1) & (2) of the P & D Act (formerly section 295 (5) of the Local Government Act 1995) – provides that land on a plan, including a Strata/Survey-Strata Plan shown as a new road can be dedicated as a road. It is important to note that the creation of roads on Strata/Survey-Strata Plans is a completely new provision (see STP-09 Scheme Plans sections 2.9 and 3.8).
- Section 168 (3) of the P & D Act (formerly section 28 (3) of the T P & D Act) – provide that land on a plan, including a Strata/Survey-Strata Plan shown as a “Road Widening” will dedicate as part of a road (see STP-09 Scheme Plans section 2.9 and section 3.8)
4 Referrals by WAPC and Local Government under Delegation (formerly section 5.4 of the practice manual)
It is mandatory for the WAPC to consult with other government agencies on an application for a proposed subdivision. This consultation process is known as a “referral”. The responses received from the agencies are considered by the WAPC who may or may not choose to make the recommendations a condition of subdivision. The WAPC has statutory power to override conditions recommended by the agencies. Alternatively, it may impose other conditions.
After consideration by the WAPC, the approval of the proposed subdivision may be granted subject to certain conditions. This form of approval is known as “conditional approval”.
If the developer proceeds with the proposal, then there are various conditions that must be met and a ”clearance certificate” must be obtained from each of the appropriate agencies to certify that the conditions have been met before final approval can be given by the WAPC.
Referrals are always made to the following government agencies:
- Water Corporation
- Western Power
- Local Government (where necessary).
The WAPC may consult with various other government agencies with respect to a subdivision application for a survey-strata or “vacant lot” strata development. Listed below are the agencies and common types of issues that they may be consulted on:
- Main Roads WA, on matters relating to future expansion of major roads or proposed main roads and on access to lots created on major roads.
- The Environmental Protection Authority (EPA), on a variety of matters from water quality, soil erosion, toxic soils on old factory sites to the impact the proposal would have on wetlands.
- The Department of Agriculture, on the impact the proposal would have on the land use and how it would affect adjoining rural properties.
- Fire & Emergency Services Authority of WA, on matters such as fire breaks and the positioning of fire hydrants.
- The Health Department could be asked to comment on matters such as septic tank requirements and on other matters affecting public health.
- The Department of Conservation & Land Management (CALM) may be consulted on matters that impact on wild life, forestry and National Parks.
- The Heritage Council of WA will be consulted on applications that affect heritage classified buildings.
- The Department of Water (ratified 1 January 2006 - formerly the Water & Rivers Commission) may be consulted on the impact which a subdivision may have on the water catchment, rivers and creeks near the proposal.
- The Swan River Trust could be consulted on a proposal’s impact on water quality in the Swan River.
The WAPC does not consult with every agency on every proposal. Rather it is selective and consults where appropriate. The process is designed to ensure that all the facts are available to enable the WAPC to make an informed decision on the proposal.
The time limit for comment by other agencies is 42 days (see section 142(2) of the P & D Act), but extensions may sometimes be required if research is necessary by an agency. After all comments are received, the WAPC evaluates the proposal and either approves the subdivision subject to conditions or refuses the application. The timeframe for a decision is 90 days (see section 143(2) of the P & D Act) from date of lodgement of the application.
5 Appeal Provisions for LG and WAPC (Review) (formerly section 5.5 of the practice manual)
The STA provides for appeal provisions against both the WAPC and local government should an applicant for strata development be aggrieved by a decision. Appeals (referred to as “a Review”) may be directed to the State Administrative Tribunal (SAT) located at Level 4, 12 St George’s Terrace, Perth or via the internet at www.sat.justice.wa.gov.au.
SAT has a very comprehensive website where an Applicant may make an e Form application online via “SAT Wizard” and navigate to the specific issue required.
5.1 Section 26 of the STA (formerly section 5.5.1 of the practice manual)
This section enables the local government to refuse an application for certification on certain grounds. If the application has been refused on planning principles the application to review the decision may be made to the SAT (formerly adjudicated by either the Minister for Local Government or the Town Planning Appeal Tribunal). See section 26(4) of the STA. The time limit for lodging an application to SAT is set out in the “SAT Wizard”.
5.2 Section 27 of the STA (formerly section 5.5.2 of the practice manual)
This section enables the WAPC to refuse an application for a certificate for a Strata Plan. If the application has been refused an application to review the decision may be made to the SAT (formerly adjudicated by the Town Planning Appeal Tribunal) see section 27 (3) (a) of the STA. The time limit for lodging an application to SAT is set out in the “SAT Wizard”.
5.3 Sections 142, 143 and 144 of the P&D Action (formerly section 24 of the TP&D Act) (formerly section 5.5.3 of the practice manual)
This section enables the WAPC to deal with and refuse an application for a certificate for a Survey-Strata Plan lodged under section 145 of the P & D Act (formerly section 20AA of the T P & D Act). If the application is refused an application to review the decision may be made to SAT (formerly adjudicated by the Town Planning Appeal Tribunal). The time limit for lodging an application to SAT is set out in the “SAT Wizard”.
6 Reconsideration of Conditions (formerly section 5.6 of the practice manual)
It is also possible to request a reconsideration of a condition within 28 days of the conditional approval being granted.
Applications for reconsideration are in the form of a letter to the WAPC stating the reasons for reconsideration. The WAPC will then review the conditions.
7 Local Government – Exemption from WAPC Referral (formerly section 5.7 of the practice manual)
Strata plans that meet certain exemption requirements do not require approval from the WAPC.
These must fit the following criteria as set out in regulation 15 of the STGR:
- Each proposed lot is to have one dwelling constructed on it.
- No more than 5 dwelling units.
- Residential developments only.
- The land parcel to be 2500m² or less in area.
- Under, and conforming with a Town Planning Scheme or within a townsite.
Strata plans fitting these requirements are processed and approved by the local government.
Note: In cases where a 2 to 5 lot built strata scheme creates a Lot or Lots to vest in the Crown, under section 152 of the P & D Act WAPC approval delegated to Local Government is required (see Chapter 10.19).
Prior to commencing construction of new buildings, Development Approval and a building permit are required from the local government. As well as local government approval, building plans need approval from the Water Corporation for sewerage and water connection points. This may involve extension of drains and reticulation, connection fees, headwork charges and associated inspections.
In rural areas there may be other forms of waste disposal that can be utilised. The Water Corporation can advise on these requirements and charges.
Western Power may also be involved in arranging electricity connections. A common condition that may be imposed is a requirement for underground power which must be connected before the local government can certify the Strata Plan.
Alinta Energy and Telstra are other servicing agencies that can be involved in servicing developments during the construction stage as common service trenches may be used during construction to contain all of the services. Sometimes where major power lines or gas pipes are close to the proposed lot boundaries, easements in favour of the appropriate government agency may be a condition of approval.
On completion of construction, the builder provides, within 7 days of completion, to the Local Government, a Notice of Completion (BA7). A registered Building Surveyor must then inspect the building/s for compliance to building standards and issue a Certificate of Construction Compliance (BA17) for new buildings or a Certificate of Building Compliance (BA18) for existing buildings. An Application for Occupancy Permit (BA11) or an Application for Building Approval Certificate (BA15) can now be lodged at the Local Government with the necessary fees, levies, certificates of compliance, consents and/or court orders.
The Local Government has 10 business days to grant an Occupancy Permit or Building Approval Certificate unless it requires extra information to determine the application which may extend the timeframe.
Surveyors may lodge the Strata Plan at Landgate prior to the BA12 or BA16 being signed and issued by the Local Government. This enables the Strata Plan to be audited and put "In Order for Dealings" while the permit or certificate is waiting to be issued by the Local Government. Surveyors using this method must lodge the BA12 or BA16 when the Application to Register the Strata Plan is lodged at Landgate. However, if the BA12 or BA16 is available prior to the Strata Plan being lodged, it should accompany the Plan.
The BA12 or BA16 is to be scanned and lodged as a PDF via the ePlan Lodgement application on the MyLandgate Survey Channel.
8 The Water Corporation’s Role (formerly section 5.8 of the practice manual)
Water, drainage and sewer services are essential requirements of modern land development. To ensure this standard is maintained, various conditions are imposed on the proposed development by the WAPC on advice from the Water Corporation.
Listed below is a summary of typical Water Corporation requirements, some of which could be applicable on a proposed strata/survey-strata subdivision:
- Payment of water, sewerage and drainage infrastructure (headworks) contributions.
- Payment of deferred water service.
- Payment to disconnect an existing service.
- Payment for relocation of existing service.
- Engaging a licensed plumber to relocate water plumbing within the proposed lot boundary.
- Engaging a licensed plumber to construct a dormant water line with standpipe within 600mm of the boundary and extending 500mm into the strata lot.
- Payment for a cut-in junction.
- Engaging a licensed plumber to realign the property sewer within 600mm of the boundary.
- In older urban areas sewer capacity tests may be required.
- Engaging a licensed plumber to construct an internal property sewer within 600mm of the boundary and extending 500mm into the strata lot.
- Engaging a licensed plumber to arrange for sewer junction to be “brought in” and/or “brought up” within the lot boundary.
- Engaging a licensed plumber to extend the existing property sewer a minimum 500mm inside the boundary of the strata lot.
- Engaging a licensed plumber to connect the existing buildings to the Water Corporation’s sewers (600mm from boundary).
- Engaging a licensed plumber to provide a service connection point on the existing property sewer to service the strata lot.
- Engaging a licensed surveyor to show “use restriction for buildings over sewers” on the Strata/Survey-Strata Plan sheet.
Because Survey-Strata Plans and some lots on vacant lot Strata Plans may have few or no buildings constructed on the land the servicing is put in place by the developer of the land as a condition of subdivision approval. This means conforming to the Water Corporation conditions of subdivision approval. When these conditions are completed a clearance of the conditions is provided to the applicant.
9 Deferment of Water Corporation Infrastructure (Headworks) Contributions (formerly section 5.9 of the practice manual)
If a land developer is required by the Water Corporation to pay an infrastructure (headworks) contribution, the developer can request that payment of the headworks contribution be deferred.
Payment of headworks contributions can be deferred by up to 12 months by securing the debt with Memorials on titles or paid progressively by entering into a Staged Land Development Agreement.
In order to obtain a deferral of headworks contributions a Memorial is placed in favour of the Water Corporation, over each lot where it is proposed to defer headworks contributions.
The deferral applies only if the lot:
- does not have water or wastewater connections
- is not a habitable lot
- has an area of 2000m² or less – is to be used for residential purposes or for purposes which include residential purposes
- has an area greater than 2000m² - is to be used for a building or group of buildings that:
- is solely for residential purposes
- contains a number of separate residential units.
The period of deferral ends when:
- the lot becomes habitable
- application is made to service the lots by a water or wastewater connection
- months after the final approval of the subdivision by the WAPC is up.
Note: As per the Water Services Regulations 2013, a habitable lot means “a lot that has on it a building that is used, or suitable to be used, for residential purposes” and a lot is (a) a lot in a survey-strata scheme; or (b) is a vacant lot as defined in the Strata Titles Act 1985 section 7(6).
9.1 Memorials (formerly section 5.9.1 of the practice manual)
The Memorials mentioned in Chapter 5.9 must be lodged in document form on an approved form available at www0.landgate.wa.gov.au with the prescribed fee, prior to the application for new certificates of title for the lots on the plan. As the memorial fee is paid separately on the lodgement of the document, a memorial fee will no longer be included with the plan lodgement fees.
Note: Section 128(3) of the Water Services Act 2012 (WSA): “Until the memorial is withdrawn, the Registrar must not register, without written consent of the licensee, an instrument affecting the land that is lodged for registration after the memorial is lodged”. This includes any document listed under ‘instrument’ in section 4 of the TLA.
The section 128(3) WSA memorial will be required to be shown on the plan above the line in the Interests & Notifications schedule (see Plan Example 8), as this memorial will be registered on the parent certificate of title prior to the application for new certificates of title for the lots on the plan.
9.2 Removing the Memorials (formerly section 5.9.2 of the practice manual)
When the infrastructure (headworks) contribution has been paid, the licensee must lodge at Landgate a Withdrawal of Memorial on an approved form with the prescribed fee.