CTS-02 Planning and Development

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:

• a community development statement (CDS) for the community scheme; and
• a plan of subdivision under the Planning and Development Act 2005 (P&D Act); and
• a scheme plan, or an amendment of the scheme plan, under the P&D Act after completion of:
  • the works necessary for the subdivision; and
  • for a community titles (building) scheme, the construction or modification of the scheme buildings necessary for the subdivision.

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:

• subdivision and development of land by a community scheme; and
• the purposes for which land subdivided or to be subdivided by a community scheme may be used; and
• staging and sequencing of the subdivision and development; and
• other matters relevant to a community scheme.

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):

• a subdivision applied for before the commencement of the development period must be approved if it is consistent with the CDS; and
• a subdivision applied for after the commencement of the development period must be approved if:
  • it is consistent with the CDS; and
  • there is at least 4 years until the end of the development period to allow for an application to register a new or amended community titles scheme effecting a subdivision; and
• an application for approval of a subdivision or development made before the end of the development period must not be approved if it is inconsistent with the CDS; and
• due regard must be had to the CDS in determining an application for approval of a subdivision or development in any other circumstances.

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:

• for an application for approval of a CDS:
  • a statement as to why a community scheme is an appropriate form of subdivision; and
  • a draft CDS;
• for an application for approval to amend a CDS:
  • a draft CDS amendment either as a separate textual amendment directly changing the material in the statement or a marked up version showing the changes; and
  • a consolidated version of the CDS including the amendments; and
  • if the CDS has been registered, evidence of the approval of the development by the tier 1 community corporation by special resolution.

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 relevant local government; and
• each public authority or utility service provider that the WAPC considers may be affected by the subdivision.

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

• be accompanied by a copy of the draft CDS or amendment or specify how a copy of the draft may be obtained; and
• specify how comments may and the period within which they must be made.

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

• a referral is received by the local government, public authority or utility service provider,

and

• the day after the advertisement is first published

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:

• relevant State planning policies; and
• planning schemes or interim development orders that have effect in the locality in which the land is situated; and
• whether some other or no form of subdivision would be more appropriate to achieve orderly and proper planning, and the preservation of the amenity, of the locality of the land; and
• comments received from the local government; and
• a policy or position statement developed specifically for community titles matters; and
• technical advice, assistance or further information obtained by WAPC from the local government or any other person.

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:

• a copy of the draft modified in the specified manner within the specified period;
• if the community scheme has been registered, evidence that the tier 1 corporation has by special resolution approved of the modified draft within the specified period.

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:

• maps or other related information or material required by WAPC;
• a description of the key attributes and constraints of the area including the natural environment, landform and topography;
• the planning context and the neighbourhood and region within which the area is located;
• information that identities zoning for the area covered by the CDS and any proposed land uses for those zones;
• an estimate of the proposed number of lots, dwellings, retail floor space or other land uses;
• the population impacts that are expected;
• a description of the extent of the coordination of key transport and other infrastructure;
• a staging plan or report that identifies:
  • the stage at which the land is to be vested in the Crown under the P&D Act section 152 and/or dedicated as a road under the P&D Action section 168;
  • the infrastructure that will be needed at each stage of the subdivision and development of the land, whether temporary or permanent, and the person who is responsible for the costs associated with that infrastructure.

A staging plan or report may include requirements for the:

• provision of traffic management and community-related infrastructure;
• provision of bushfire management infrastructure, such as fire breaks or the provision of emergency egress or ingress;
• ceding of land.

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.

2.6. Subdivision

A CDS may specify requirements for subdivision, including:

• limitations on the number of tiers of the community scheme;
• limitations on the type of community titles schemes (that is, building or land schemes);
• limitations on the number or location of tier 2 or 3 parcels;
• limitations on the number, size or arrangement of lots;
• requirements for restricted use conditions (but not if the relevant planning scheme identifies the land as land that may be used for residential purposes, so as to prohibit the land being used for public housing or affordable housing);
• requirements for the creation of easements, restrictive covenants or other interests;
• requirements for land to be vested in the Crown under P&D Act section 152;
• requirements for roads to be delineated as new roads and dedicated under P&D Act section 168;
• other arrangements for acquisition or management of land by a local government or public authority;
• open space requirements;
• requirements for money to be paid to local government in lieu of setting aside land and vesting it in the Crown for parks, recreation grounds or open spaces under P&D Act section 153;
• requirements for development contributions to fund public infrastructure;
• requirements that will or may apply under the P&D Act;

2.7. Development

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

• limitations as to the location and scale of improvements (including the number of levels in, and heights of, scheme buildings);
• requirements for the provision of utility, sustainability or other infrastructure;
• requirements for landscaping;
• architectural and design themes;
• requirements for the collection and disposal of waste.

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:

• requirements for when the stage must be commenced or completed;
• arrangements for movement to, from and within the land for occupiers of existing lots and visitors;
• arrangements for the continued provision of utility services and access to existing infrastructure and common property;
• the works required to be completed, including those required for utility services;
• the community titles schemes or amendments required to be registered.

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:

• planning codes;
• standard or precinct structure plans;
• local development plans;
• local planning policies and schemes;
• improvement plans and schemes;
• interim development orders.

as in force:

• at the time the application for approval of the CDS or amendment is made; or
• at a specified time;
• from time to time.

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:

• the relevant local government; and
• each public authority or utility service provider WAPC considers may be affected by the extension.

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:

• be accompanied by a copy of any draft amendment of the CDS or specify how this copy may be obtained; and
• specify how comments may be made and the period within which they must be made.

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. Availabili 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:

• A reference to subdivision includes by a community titles scheme;
• A reference to a diagram or plan of survey includes a scheme plan or amendment;
• A reference to a lot includes a lot within the meaning of the CTA;
• The P&D Act is to be read as requiring the applicant to provide a copy of an application for a planning approval made after the community corporation for the scheme has come into existence to be given to them;
• Without limiting the conditions of an approval of a plan of subdivision or a development approval, the P&D Act is to be read as providing that the conditions may include a planning (scheme by-laws) condition;
• The State Administration Tribunal (SAT) has jurisdiction to carry out a review in accordance with the P&D Act of a refusal of a body to approve the amendment or revocation of scheme by-laws as required by a planning (scheme by-laws) condition;
• Application for approval of a scheme plan or an amendment to be accompanied by —
  • the scheme notice or any amendment of the scheme notice proposed to be submitted for registration;
  • any existing scheme by-laws made under a planning (scheme by-laws) condition;
  • for subdivision of land by a community titles (building) scheme, an occupancy permit or building approval certificate granted under the Building Act 2011 (BA) for each scheme building constructed or modified;
  • WAPC may refuse to endorse the scheme plan or amendment unless they are satisfied that:
  • the scheme plan or amendment is an accurate depiction of the subdivision that has been prepared after completion of the works necessary and, for a community titles (building) scheme, the construction or modification of the scheme buildings necessary; and
  • the subdivision and development has been undertaken consistently with:
    • the CDS and any utility services plan required by it;
    • the approval of the plan of subdivision under the P&D Act (including its conditions);
    • any relevant approval of development under the P&D Act (including its conditions); and
  • the requirements of the BA have been complied with for the development; and
  • any restricted use condition proposed to be imposed by the scheme plan or amendment is suitable; and
  • scheme by-laws have been or are proposed to be made in accordance with any planning (scheme by-laws) condition;
  • Section 145(2) is to be read as if the prescribed period were defined as 4 years;
  • section 145(6) is to be read as not applying to a community scheme until the end of the development period;
  • Section 146(2) is to be read as if a title application were an application for registration of a community titles scheme or an amendment giving effect to subdivision;
  • section 152(3) is to be read as land vested under section 152(1) does not form part of a tier parcel;
  • section 159 is to be read as if a reference to a lot or lots were a reference to a lot, tier parcel or common property;
  • sections 165, 167 and 168 are to be read so as to apply to scheme plans in the same way as they apply to plans lodged under the Strata Titles Act 1985;
  • any other modifications set out in the CTR.

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:

• made in writing; and
• in the form approved by WAPC or local government as relevant; and
• accompanied by any information required by WAPC or local government and by the fee fixed by the regulations.

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:

• a decision to refuse the application, including:
  • that subdivision by a community scheme is not appropriate; or
  • to extend the development period for a community scheme; or
  • to approve an amendment or repeal of scheme by-laws; or
• a decision to approve a CDS or amendment subject to conditions.

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.