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Contents:
3. Notifications Lodged against Part of the Land in a Certificate of Title
4. Local Government (Miscellaneous Provisions) Act 1960 (Section 364 (2))
5. Environmental Protection Act 1986 (Sections 65, 68A and 70)
5.1. Environmental Protection Notice (Section 65)
5.2. Closure Notice (Section 68A)
5.3. Vegetation Conservation Notice (Section 70)
5.5. Amendment of Notification document
5.6. Revocation of Notification document
6. Kambalda Water and Wastewater Facilities (Transfer to Water Corporation) Act 2004
7. Petroleum Pipelines Act 1969
7.2. Notification of Transfer of Easement
7.3. Notification of Expiry, Surrender or Cancellation of Easement
8. Planning and Development Act 2005 (Section 165)
8.2. Withdrawal of Notification
9. Planning and Development Act 2005 (Section 180)
9.2. Withdrawal of Notification
10. Planning and Development Act 2005 (Section 181)
10.2. Withdrawal of Notification
11. Town Planning and Development Act 1928 (Section 12A)
11.2. Withdrawal of Notification
12. Transfer of Land Act 1893 (Section 70A)
13. Dampier to Bunbury Pipeline Act 1997
15. Aboriginal Cultural Heritage Act 2021 (Sections 82 and 87)
1. Overview
A Notification is a document that is lodged against a certificate of title to give notice of factors that affect the use and enjoyment of land.
Notifications will be endorsed in the Second Schedule of the relevant Title.
Notifications are to be shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of any subsequent document.
Notifications are not encumbrances because they do not fall within the definition of an encumbrance under s.4 of the Transfer of Land Act 1893 (TLA). Accordingly, notifications will not:
- be required to be removed from lots or portions of lots that are vested to the Crown under the provisions of s.152 of the Planning and Development Act 2005 (P&D Act) - formerly s.20A of the Town Planning Development Act 1928 (TP&D Act)
- prevent a mortgagee sale occurring and will not be required to be removed before the power of sale transfer is registered
or
- prevent the registration of any other instrument.
2. Forms
The Registrar of Titles and Commissioner of Title will work with various Government Departments and statutory authorities to create and approve forms that comply with the TLA schedule to enable the registering and notation of Notifications on certificate of titles. At the request of the responsible agency Landgate may make these approved forms available on the Corporate website.
Where a form is not available on Landgate’s corporate website person(s) should contact the relevant responsible agency.
3. Notifications Lodged against Part of the Land in a Certificate of Title
If a Notification is to be lodged against only part of the land in a title a Deposited Plan for Interest Purposes Only will need to be lodged, unless there is already a suitable special definition for that piece of land. The Deposited Plan must be lodged and put in order for dealings before lodgement of the notification. The land description in the notification must refer specifically to the piece of land defined and depicted in the Deposited Plan. Upon lodgement and processing of the memorial the legal status of the plan will change to Approved.
4. Local Government (Miscellaneous Provisions) Act 1960 (Section 364 (2))
A local law made under the Local Government Act 1995 may prescribe a new street alignment for a street or part of a street for the purpose of extending the width of the street or part of the street to the new street alignment.
Where the local government by local law so prescribes a new street alignment, it shall immediately the local law is no longer liable to be disallowed by Parliament, cause written notice of the new street alignment to be served on the owners of land affected thereby and cause notice of the local law to be served on the Registrar of Titles / Registrar of Deeds.
Notice is served on the Registrar of Titles or Registrar of Deeds by lodging a Notification and attaching to it a true copy of the New Street Alignment Notice given to the registered proprietor pursuant to s.364 (2) of the Local Government (Miscellaneous Provisions) Act 1960.
4.1. Fees
Fees are payable on lodgement and withdrawal of these Notifications.
5. Environmental Protection Act 1986 (Sections 65, 68A and 70)
The Environmental Protection Act 1986 (in this paragraph referred to as the Act) has as its aim the prevention, control and abatement of pollution and environmental harm, for the conservation, preservation, protection, enhancement and management of the environment.
The administration of the Act is (subject to the direction of the Minister) vested in the Environmental Protection Authority, and the Authority may delegate powers pursuant to s.19 of the Act to any person and the names of persons so appointed shall be published in the Government Gazette.
The Act allows the CEO of the Environmental Protection Authority to issue any of the following notices to the owner or occupier of land:
5.1. Environmental Protection Notice (Section 65)
Section 65 of the Act authorises the issue and service of an Environmental Protection Notice) on the owner or occupier of any premises emitting any waste, noise, odour or electromagnetic radiation into the environment that causes pollution.
The notice specifies the measures required to prevent, control or abate the emissions.
5.2. Closure Notice (Section 68A)
When an authorisation is given to do something and the CEO of the Environmental Protection Authority considers that as a result of anything that has been done or has happened before the expiry or revocation of the authorisation:
- ongoing investigation
- monitoring
or
- management
is or will be required at the premises following that expiry or revocation, the CEO may cause a Closure Notice under s.68A of the Act to be given in respect of the premises. The notice specifies the action to be taken.
5.3. Vegetation Conservation Notice (Section 70)
Section 70 of the Act authorises the CEO of the Environmental Protection Authority to issue a Vegetation Conservation Notice to ensure that no unlawful clearing, or no further unlawful clearing takes place on land.
5.4. Notification document
Section 66 of the Act provides for a copy of a notice under Sections 65, 68A or 70 of the Act to be delivered to Landgate for registration on the title for freehold land, on a Crown lease, in the Deeds Office for Old System land and on a Crown land title for Crown land. A true copy of the notice is to be attached to a Notification document. The Notification document makes reference to all three of the above-mentioned notices. The relevant notice is selected by deleting reference to the other two.
The Notification Environmental Protection Act 1986 Notification form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.
Where the Notification is shown in the Limitations, Interests, Encumbrances and Notification panel, where there is one, of an instrument or dealing relating to the land, the notification will not prevent the registration of the instrument or dealing. The consent of the Environmental Protection Authority is not required.
5.5. Amendment of Notification document
A notice that has been sent under Sections 65, 68A or 70 of the Act may need to be amended. If a Notification document has already been lodged with regard to the original notice, an Amendment of Notification document can be lodged so that the amended notice becomes part of the Register.
An Amendment of Notification form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms. This form is to contain a copy of the amended notice.
5.6. Revocation of Notification document
A Notification lodged under Sections 65, 68A or 70 of the Act is removed by the lodgement of a Revocation of Notification document. A Revocation of Notification form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.
5.7. Fees
A Landgate registration fee is not payable upon lodgement of the Notification document, Amendment of Notification or the lodgement of the Revocation document.
6. Kambalda Water and Wastewater Facilities (Transfer to Water Corporation) Act 2004
The Kambalda Water and Waste Facilities (Transfer to Water Corporation) Act 2004 (in this paragraph referred to as the Act) transferred ownership of the Kambalda Water and Wastewater Facilities and certain associated rights to the Water Corporation.
6.1. Background
After Western Mining Corporation found nickel near Kambalda in the late 1960s, they provided the infrastructure for the town including the water and wastewater facilities.
Unfortunately, not all the water and wastewater facilities were constructed to current standards, and as a result the location of these facilities cannot be guaranteed. In parts of the town, pipes may be close to or under houses and some to these residences have been identified as Impaired Enjoyment of Land.
This impairment is due to possible building / development restrictions as a result of the positioning of the water and wastewater facilities.
6.2. Notification
Section 16 of the Act requires that any lot or parcel of land in the Kambalda Area (as defined in the Act) have a notification placed on the title. The notification is to give notice that pipes, works and other things, as set out in the Act may be on, in, over or under the land.
Where the Notification is shown in the Limitations, Interests, Encumbrances and Notification panel, where there is one, of an instrument or dealing relating to the land, the notification will not prevent the registration of the instrument or dealing.
6.3. Removal or Amendment
Under s.21 of the Act, the notification may be removed or amended by the Water Corporation. A form has been created for this purpose.
6.4. Fees
Fees are payable on lodgement and withdrawal of these Notifications.
7. Petroleum Pipelines Act 1969
Under the Petroleum Pipelines Act 1969 (PPA) the Minister for Mines and Petroleum (Minister) may grant a licence for the construction, operation, inspection, maintenance or repair of a pipeline for the conveyance of petroleum. Sections 16, 17, 18 and 19 of the PPA provide for the acquisition or taking of an easement by a licensee for the purpose of a petroleum pipeline.
7.1. Notification of Easement
Section 19(4) of the PPA provides that where an easement is acquired or taken over land pursuant to the PPA, a description of the easement and a notification that it has been so taken together with a plan showing the location of the easement over the land, is to be sent by the licensee to the Registrar of Titles who shall record a statement or entry of it on the Register.
Previously the practice was to accept the easement document as the Notification and these were recorded on the Register as an easement. That practice has been replaced with the requirement to lodge a specific Notification Form. Notification of Easement for freehold land and Notification of Easement for Crown Land are used for the purpose of notifying the Registrar of Titles of an easement under the PPA. The Notification of Easement should be signed by the licensee/grantee of the easement and the deed of easement or a copy is to be attached to the Notification document. The easement attached to the Notification must also be signed by the Minister.
7.2. Notification of Transfer of Easement
Section 20(5)(a)&(b) of the PPA requires the Minister to notify the Registrar of Titles in writing of a transfer of a licence under the PPA. On receipt of the Notification of Transfer, the Registrar of Titles is to duly record in the Register that an easement that has been recorded in the Register by the Registrar of Titles has been transferred to a new registered licence holder under the PPA. By force of the Act, the easement then vests in the new licensee. Previously the practice was to accept a Blank Instrument document with the appropriate details included as the Notification. That practice has been replaced with the requirement to lodge a specific Notification Form. Notification of Transfer of Easement form is used for this purpose. The Notification of Transfer must be signed by the Minister.
7.3. Notification of Expiry, Surrender or Cancellation of Easement
Sections 20(3)&(4) of the PPA require the Minister to notify the Registrar of Titles in writing of the expiry, surrender or cancellation of a licence under the PPA. Notification of Expiry, Surrender or Cancellation of Easement form is used for this purpose. Upon receipt of the Notification, the Registrar of Titles is to duly record the Notification on the Register and, by force of the PPA, the easement over the licence area or part thereof to which the Notification relates is extinguished. The Notification is to be signed by the Minister.
An interest deposited plan of the easement area which conforms to the Registrar’s requirements is required to be lodged with a Notification of Easement or where a Notification of Surrender is lodged which relates to part only of the land the subject of a notification of easement recorded by the Registrar under section 19(4) of the PPA.
An easement created pursuant to section 17 of the PPA should additionally have the required Governor’s consent.
Where a Notification of Easement is shown in the Limitations, Interests, Encumbrances and Notifications panel of a subsequent instrument or dealing relating to land, the Notification will not prevent the registration of that instrument or dealing.
7.4. Fees
Fees are payable on lodgement and withdrawal of these Notifications.
8. Planning and Development Act 2005 (Section 165)
Section 165 of the P&D Act provides for the recording of information on title where the Western Australian Planning Commission considers it desirable that the owners of land be made aware of hazards or other factors seriously affecting the use or enjoyment of such land. The land affected by such notice is described as land:
- comprised in a deposited plan of survey, or
- comprised in a strata scheme or proposed strata scheme presented to the Commission for approval under s.25 of the STA.
8.1. Notification
The legislation provides for the Commission to lodge a notification in a form acceptable to the Registrar of Titles. The Notification Under Section 165 of the P&D Act form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms. The notification provides for a statement of the hazard or other factors seriously affecting the use of the land.
Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of an instrument or dealing relating to land, the notification will not prevent the registration of that instrument or dealing.
8.2. Withdrawal of Notification3
A notification lodged under s.165 of the P&D Act may be removed by the lodgement of a withdrawal of notification in a form acceptable to the Registrar of Titles under s.165(4) of the P&D Act, signed by the Commissioner or authorised delegate for Western Australian Planning and Development. A Withdrawal of Notification form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.
NOTE: the ‘Authorising Party’ in an eForm is the Western Australian Planning and Development.
3Section updated 20/03/2023
8.3. Fees
Fees are payable on lodgement and withdrawal of these Notifications.
9. Planning and Development Act 2005 (Section 180)
Where the proprietor(s) of land is injuriously affected by the reservation of land for a public purpose in a planning scheme, they may in certain circumstances be entitled to receive monetary compensation from the Responsible Authority under s.177 of the P&D Act.
9.1. Notification
When compensation for injurious affection to any land has been paid under s.177 of the P&D Act, the legislation provides for the Responsible Authority to lodge a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds. The Notification - Section 180 of the P&D Act form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.
The notification sets out all of the following:
- The description of the land affected.
- The name and address of the Registered Proprietor(s).
- The name of the Responsible Authority.
- Details of the injurious affection.
- Amount of compensation paid.
- Date of payment of compensation.
- The proportion (%) which the compensation bears to the unaffected value of the land as. assessed under s.179 (2) of the P&D Act.
Note: Responsible Authority as defined in s.4 of the P&D Act means the Western Australian Planning Commission or a local government.
Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of an instrument or dealing relating to land, the notification will not prevent the registration of that instrument or dealing. The consent of the Responsible Authority is not required.
9.2. Withdrawal of Notification
A notification lodged under s.180 of the P&D Act is removed by the lodgement of a withdrawal of notification. A Withdrawal of Notification form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.
9.3. Fees
Fees are payable on lodgement and withdrawal of these Notifications.
10. Planning and Development Act 2005 (Section 181)
Where:
- compensation for injurious affection to any land has been paid under s.177 of the P&D Act
and
- as a result of the planning scheme being amended or revoked, the reservation of the land for a public purpose is revoked or the area of the land the subject of the reservation is reduced,
the Responsible Authority (i.e. the WAPC or a local government) is entitled to recover from the owner of the land at the date of the revocation or reduction an amount (a refund) which is determined by a calculation formula set out in the P&D Act.
10.1. Notification
When the Responsible Authority is entitled to recover an amount (a refund) for compensation paid, the legislation provides for the lodgement of a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds.
The Notification- Section 181 of the P&D Act form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.
The notification sets out:
- The description of the land affected
- The name and address of the Registered Proprietor(s)
- The name of the Responsible Authority
and
- Details of the revocation or reduction;
Before selling or subdividing the land in respect of which a notification under s.181 is lodged, the owner is to give written notice to the Responsible Authority, in accordance with the regulations, of the owner’s intention to sell or subdivide the land.
Where a notification under s.181 of the P&D Act is registered, the land may not be transferred without the consent of the Responsible Authority.
10.2. Withdrawal of Notification
A notification lodged under s.181 of the P&D Act is removed by the lodgement of a withdrawal of notification in a form acceptable to the Registrar of Titles.
A Withdrawal of Notification form can be downloaded at https://www0.landgate.wa.gov.au/for-individuals/forms-and-fees/land-titling-forms.
10.3. Fees
Fees are payable on lodgement and withdrawal of these Notifications.
11. Town Planning and Development Act 1928 (Section 12A)
With the proclamation of the P&D Act on 9 April 2006, the TP&D Act was repealed. As a result, notifications under s.12A of the TP&D Act are no longer lodged. They have been replaced by a notification under s.165 of the P&D Act.
Any notification under s.12A of the TP&D Act shown in the second schedule of a land title is deemed to be a notification under s.165 of the P&D Act.
Section 12A of the TP&D Act provided for the recording of information on title where the Western Australian Planning Commission considered it desirable that the owners of land be made aware of hazards or other factors seriously affecting the use or enjoyment of such land.
The land affected by such notice was described as land:
- Comprised in a deposited plan of survey
or
- Comprised in a strata scheme or proposed strata scheme presented to the Commission for approval under s.25 of the STA.
11.1. Notification
The legislation provided for the Commission to lodge a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds.
The notification provided for a statement of the hazard or other factors seriously affecting the use of the land.
Where the notification is shown in the Limitations, Interests, Encumbrances and Notifications panel, where there is one, of an instrument or dealing relating to land, the notification will not prevent the registration of that instrument or dealing.
11.2. Withdrawal of Notification
A Notification lodged under s.12A of the TP&D Act was removed by the lodgement of a withdrawal of notification.
11.3. Fees
Fees are payable on lodgement and withdrawal of these Notifications.
12. Transfer of Land Act 1893 (Section 70A)
12.1. Notification
Where a Local Government or Public Authority considers it desirable that a proprietor or prospective proprietor be made aware of factors affecting the use and enjoyment of the land, they may, on payment of the prescribed fee, cause a notification to be lodged with the Registrar setting out those factors. Notification under section 70A form is available for this purpose.
The registered proprietor is a party to the notification. No consent is required from any other person who may have an interest in the land.
The Notification can be lodged for any purpose that serves as a warning or restriction in the use of the land. The most common scenarios are:
- Warnings about increased mosquitos’ levels during certain times of the year.
- Increased levels of noise relating to proximity to airports or entertainment venues/areas.
- Restrictions on the use or occupation of second dwelling (granny flats).
- Fire Management Plans for areas prone to bushfires.
12.2. Modification or Removal
The Local Government or Public Authority together with the proprietor of the land may, on payment of the prescribed fee, request that the Registrar of Titles modify or remove the notification on a Removal or modification of notification under section 70A.
12.3. Fees
Fees are payable on lodgement and withdrawal of these notifications.
13. Dampier to Bunbury Pipeline Act 19971
Where land is identified as being land within the Dampier to Bunbury Natural Gas Pipeline (DBNGP) corridor, a Sundry Document pursuant to section 44 is registered to give notice that the land forms part of the DBNGP Corridor.
Where the DBNGP Sundry is shown in the Limitations, Interests, Encumbrances and Notification panel, where there is one, of an instrument or dealing relating to the land, the Sundry will not prevent the registration of the instrument or dealing. However, pursuant to section 41, approval of the DBNGP Land Access Minister is required for documents which could reasonably be expected to interfere with the pipeline rights in the land.
The DBNGP Land Access Minister will not usually consent to an easement over land within the DBNGP Corridor, however there may be other options that are available eg. the granting of a licence. Consent for a lease may depend on the purpose of the lease. Transfers of land or new mortgages do not require consent to be provided with the document.
1[Guide updated on 22/07/2020 to insert section 13]
14. Heritage Act 20182
The Heritage Act 2018 (Current) (in this paragraph referred to as the Act) created the Heritage Council of Western Australia, as a body corporate, with perpetual succession and a common seal, and the powers (among other things) to acquire, hold and dispose of real property. It replaced the Heritage of Western Australia Act 1990.
No signatures or seal holders are designated by the Act, and documents sealed with the seal of the Council will be accepted for registration when the seal is countersigned by one or more councillors (the term councillors includes a councillor holding a position of office bearer). The Council may, by resolution delegate any of its powers (apart from the power of delegation) to any other person. Notice of the resolution creating the delegation must be published in the Government Gazette, and documents signed by authorised delegates should also quote the issue date and page of the Gazette containing the authority.
There are 5 types of notification:
- Heritage Agreement
- Prohibition Order
- Protection Order
- Register Entry, and
- Repair Order
14.1. Heritage Agreements
Part 7 of the Act authorises the Heritage Council of Western Australia (“the Council”) or another public authority to make an agreement on behalf of the State with an owner of land to make commitments, undertake obligations or agree to provisions regarding conservation in relation to their land.
A heritage agreement is a contract binding on the State and on all parties and, if notification in relation to the heritage agreement is registered under Section 97, it is also binding on their successors in title.
The Council or other public authority that entered into a heritage agreement may in accordance with the regulations, notify the Registrar of Titles of the coming into operation of a heritage agreement. Under Section 97(3) of the Act the Registrar of Titles must, on payment of the prescribed fee, register the notification and make appropriate endorsement on the title in relation to the land to which the heritage agreement relates.
To lodge a notification of a heritage agreement at Landgate there is a generic electronic form for Notifications available on the Landgate website at the following address: eForm.
14.1.1. Effect on Title
The recording of a notification of a heritage agreement on a certificate of title will not prevent the registration of other instruments or dealings upon the land. The consent of the Council or other responsible authority for subsequent instruments or dealings is not required.
14.1.2. Transitional Provisions
Under Section 180 of the Act, a heritage agreement entered into under the Section 29 of the Heritage of Western Australia Act 1990 that is in effect on commence of the Act continues to have effect as if it were a heritage agreement certified by the Minister under Section 90(5) and continues to bind any successors in title in relation to interests in the land to which the agreement applies, to the extent to which successors in title would have been bound under the 1990 Act.
14.1.3. Removal of Heritage Agreement
There is currently no provision for removal of heritage agreements. The Department of Planning Lands and Heritage have stated that they do not require provision for withdrawal of heritage agreements.
14.2. Prohibition Order
If a person is convicted of an offence under Part 2 Division 3 of the Act in relation to a place, the Governor may make a Prohibition Order in relation to land (or a specified part of the land) included in the place or a specified building or structure in the place. A Prohibition Order can prevent or alternatively specify conditions on the development, use or subdivision of the land, building or structure during a period of not more than 10 years as specified in the Order.
If a Prohibition Order is in force in relation to land included in a place or a building or structure in the place, no approval, permit or other instrument under any written law operates to authorise or permit a development, subdivision or use of the land, building or structure that would be contrary to the terms of the order.
If a Prohibition Order is made in relation to a place, under Section 134(8)(b) of the Act, the Heritage Council of Western Australia must give statutory notification under Section 163(3)(c) of the making of the order.
Section 163(3)(c) of the Act empowers the Registrar of Titles to record a notification on the certificate of title in relation to a Prohibition Order.
To lodge a notification of a Prohibition Order at Landgate there is a generic electronic form for Notifications available on the Landgate website at the following address: eForm.
14.2.1. Effect on Title
The recording of a notification of a Prohibition Order on a certificate of title will not prevent the registration of other instruments or dealings upon the land. The consent of the Council for subsequent instruments or dealings is not required.
14.2.2. Removal
There appears to be no provision under the Act for removal of Notifications of Prohibition Orders, although there is provision under Section 134(5) for the Governor to revoke a Prohibition Order.
14.3. Protection Orders
Part 4 Division 1 of the Act authorises the Minister to make a Protection Order if the Minister considers that it is necessary or desirable to provide special protection in respect of a place.
Protection Orders can take the form of a Consent Order, Stop Work Order or Continuing Protection Order and must contain a land description of the place to which the order relates.
A Consent Order is made where the likelihood of damage to a place is such that a specific prohibition is necessary, and each owner of the place has given prior consent in writing as to the terms of the order.
A Stop Work Order is made where the likelihood of imminent damage to a place is such that a specific prohibition is urgently necessary. The order can be made without the prior consent in writing of each owner of the place.
A Continuing Protection Order is made where a threat is not imminent but ongoing protection is required. This order cannot be made by the Minister unless the Heritage Council of Western Australia (“the Council”) has:
- given statutory notice to each owner of land that is likely to be affected by the order;
- consulted with each owner of land that is likely to be directly affected by the order;
- undertaken public consultation in relation to the proposed continuing protection order; and
- considered and advised the Minister on submissions received in the course of the consultation.
If a Protection Order is made in relation to a place, under Section 59(b) of the Act, the Council must give statutory notification under Section 163(3)(c) of the making of the order.
Section 163(3)(c) of the Act empowers the Registrar of Titles to record a notification on the certificate of title in relation to a Protection Order.
To lodge a notification of a Protection Order at Landgate there is a generic electronic form for Notifications available on the Landgate website at the following address: eForm.
14.3.1. Effect on Title
The recording of a notification of a Protection Order on a certificate of title will not prevent the registration of other instruments or dealings upon the land. The consent of the Council for subsequent instruments or dealings is not required.
14.3.2. Transitional Provisions
The various Conservation Orders referred to in Section 59 of the Heritage Act 1990 (“the 1990 Act”) are now Protection Orders under the current Act.
Under Section 179 of the Act, on or from commencement day:
- a Conservation Order made under Section 59(2)(a) of the 1990 Act that is in effect on the commencement day is taken to be a consent order for the purposes of the current Act;
- a Conservation Order made under Section 59(2)(b) of the 1990 Act that is in effect on the commencement day is taken to be a stop work order for the purposes of the current Act; and
- a Conservation Order made under Section 59(4) of the 1990 Act that is in effect on the commencement day is taken to be a continuing protection order for the purposes of the current Act.
14.3.3. Duration of Protection Order
The Minister may revoke a Protection Order, after consultation with the Council, by an order published in the Gazette.
When a Protection Order ceases to have effect, under Section 61(3)(b) of the Act the Council must give Statutory Notice under Section 163(3)(c) of the cessation.
Section 163(3)(c) of the Act empowers the Registrar of Titles to remove a notification recorded on the certificate of title in relation to a Protection Order.
To lodge a Withdrawal of Notification of a Protection Order at Landgate there is a generic electronic form for Withdrawal of Notifications available on the Landgate website at the following address: eForm. Under “Remove Interest” select “Notification”.
14.3.4. Tribunal's powers as to Protection Oder
The owner of a place to which a Stop Work Order or a Continuing Protection Order relates may apply to the State Administrative Tribunal (SAT) for a review of the Order.
SAT may confirm, revoke or modify the Protection Order.
14.4. Register Entries
The Heritage Council of Western Australia (“the Council”) has established and maintains the State Register of Heritage Places (“the Register).
The Register is a comprehensive public register of places of cultural heritage significance.
An entry in the register in relation to a place must contain a land description of the place and the current statement of cultural heritage significance adopted in relation to the place.
A person may nominate a place for entry in the Register. Within the prescribed period after receipt of a nomination, the Council must make a preliminary determination as to whether the nominated place warrants review.
Upon completion of a review the Council may recommend to the Minister that the place be entered in the Register.
If the Council recommends that a place be entered in the Register the minister must:
- direct the Council to enter the place in the Register; or
- direct the Council not to enter the place in the register and state in writing the reasons for the direction.
As soon as practical after receiving a direction from the Minister the enter a place in the Register, the council must make an entry in the Register in relation to the place.
Where an entry in the Register has been made in relation to a place, under Section 42(2)(c) of the Act the Council must give statutory notification under Section 163(3) of the entry in the Register.
Section 163(3)(c) of the Act empowers the Registrar of Titles to record a notification on the certificate of title in relation to the entry of a place in the Register.
To lodge a notification of an entry in the Register at Landgate there is a generic electronic form for Notifications available on the Landgate website at the following address: eForm.
14.4.1. Effect on Title
The recording of a notification of an entry in Register on a certificate of title will not prevent the registration of other instruments or dealings upon the land. The consent of the Council for subsequent instruments or dealings is not required.
14.4.2. Amendment of Register Entries
Section 43 of the Act makes provision of an owner(s) of land included in a registered place to request the Council to amend the land description with respect to that land. The Council will then determine whether the requested amendment warrants consideration in detail.
The Council may recommend to the Minister that the amendment be made. If the Minister directs the Council to make the proposed amendment to the land description, under Section 46(2)(c) the Council must give statutory notification under Section 163(3)(c) of the amendment.
Section 163(3)(c) of the Act empowers the Registrar of Titles to record an amendment to the notification on the certificate of title in relation to an entry in the register.
To lodge an amendment to the land description in a notification that is recorded on the certificate of title at Landgate, there is a generic electronic form for the Modification of Notifications available on the Landgate website at the following address: eForm. Under “Modify Interest” select “Notification”.
14.4.3. Removal of Entries from the Register
Section 48 of the Act makes provision of an owner(s) of land included in a registered place to request the Council to remove the entry in the register relating to the place. The Council will then determine whether the requested removal warrants consideration in detail.
The Council may recommend to the Minister that the entry in the register be removed. If the Minister directs the Council to remove the entry in the register, under Section 51(2)(c) the Council must give statutory notification under Section 163(3)(c) of the removal.
Section 163(3)(c) of the Act empowers the Registrar of Titles to remove a notification recorded on the certificate of title in relation to an entry in the register.
To lodge a Withdrawal of Notification of an Entry in the Register at Landgate there is a generic electronic form for Withdrawal of Notifications available on the Landgate website at the following address: eForm. Under “Remove Interest” select “Notification”.
14.5. Repair Order
Part 4 Division 2 of the Act authorises the Minister to make a Repair Order in relation to a registered place. Repair Orders are an entirely new feature that has been included in the Act. This inclusion brings Western Australia’s heritage legislation in line with heritage legislation in other Australian States. It gives WA local governments more options to address cases of neglect.
Before a Repair Order can be issued, the Heritage Council of Western Australia (“the Council”) must give a notice to the owner or occupier of a place. The Repair Notice will specify works that must be completed by a specific date. If the works listed in the Repair Notice (Section 64) are not completed by the specified date, the Council will advise the Minister to make a Repair Order.
A Repair Order must include the following:
- a land description of the place to which it relates;
- particulars of the works to be undertaken; and
- a statement of the date by which the works must be completed.
The Minister must not make a Repair Order in relation to:
- unallocated Crown land or an unmanaged reserve, except with the consent of the Minister for Lands; or
- a managed reserve placed in the care, control and management of a Minister of the Crown or another public authority that is responsible to a Minister of the Crown, except with the consent of that Minister; or
- a place that is owned by a Minister of the Crown or another public authority that is responsible to a Minister of the Crown, except with the consent of that Minister.
If a Repair Order is made in relation to a place, under Section 66(1)(b) of the Act, the Council must give statutory notification under Section 163(3)(c) of the making of the order.
Section 163(3)(c) of the Act empowers the Registrar of Titles to record a notification on the certificate of title in relation to a Repair Order.
To lodge a notification of a Repair Order at Landgate there is a generic electronic form for Notifications available on the Landgate website at the following address: eForm.
14.5.1. Effect on Title
The recording of a notification of a Repair Order on a certificate of title will not prevent the registration of other instruments or dealings upon the land. The consent of the Council for subsequent instruments or dealings is not required.
14.5.2. Termination of Repair Order
A Repair Order terminates if:
- the Minister withdraws the Repair Order by notice given to the person to whom the Repair Order is directed;
- the Council confirms by notice given to the person to whom the Repair Order is directed that works required by the order have been satisfactorily completed; or
- the State Administrative Tribunal revokes the Repair Order.
Under Section 68(2)(a) of the Act, when a Repair Order terminates the Council must withdraw any notification given under Section 66(1)(b).
Section 163(3)(c) of the Act empowers the Registrar of Titles to remove a notification recorded on the certificate of title in relation to a repair order.
To lodge a Withdrawal of Notification of a Repair Order at Landgate there is a generic electronic form for Withdrawal of Notifications available on the Landgate website at the following address: eForm. Under “Remove Interest” select “Notification”.
14.5.3. Tribunal's powers as to Repair Order
A person to whom a Repair Order is directed may apply to the State Administrative Tribunal (SAT) for a review of the Order.
SAT may confirm, revoke or modify the Repair Order.
2Section added 03/08/2021
15. Aboriginal Cultural Heritage Act 2021 (Sections 82 and 87)
UNDER REVIEW
The Aboriginal Cultural Heritage Act 2021 (in this paragraph referred to as “the Act”) is about valuing and protecting Aboriginal cultural heritage and managing activities that may harm that heritage.
When the Act came into effect on 1 July 2023 it repealed the Aboriginal Heritage Act 1972 and the Aboriginal Heritage (Marandoo) Act 1992.
Pursuant to transitional provisions outlined in Section 316 of the Act, a “former protected area order” has effect as if it were a “protected area order” made under Section 82(1) of the Act on the transition day.
15.1 Protected Area Order
Under Section 82(1) of the Act the Governor may, by order made on a recommendation of the Minister for Lands under section 81(5), declare an area as a protected area for the purposes of the Act.
A protected area can comprise several areas that are not contiguous.
15.1.1 Notification
Under Section 87(2) the Chief Executive Officer (CEO) of the Department of Planning Lands and Heritage must lodge with the Registrar of Titles a Notification of a Protected Area Order made under Section 82(1).
The registered proprietor is not a party to the Notification document.
No consent to lodge the Notification is required from any other person who may have an interest in the land.
The Notification must be lodged in a form approved by the Registrar of Titles and accompanied by a copy of the Order.
If a protected area order relates to only part of the land in a certificate of title, an interest only deposited plan to spatially define the relevant area must be lodged in conjunction with the Notification document.
To lodge a Notification at Landgate there is a generic electronic form for Notifications available on the Landgate website at the following web address: eform. Select the Act and the relevant section of the Act from the dropdown boxes in the form.
15.1.2 Effect on Title
The recording of a Notification of a Protected Area Order on a certificate of title will not prevent the registration of other instruments or dealings upon the land.
The Notification does not restrict any dealing on the land but must be noted in the Limitations, Interests, Encumbrances and Notifications panel of any instrument (where there is one) which is creating or transferring any interest in it.
Under the Act it is possible to seek an Order to have a protected area order amended.
If a Notification of a Protected Area Order has been lodged with the Registrar of Titles and an Order amending that protected area has been made, the CEO of the Department must, pursuant to Section 87(3), lodge with the Registrar of Titles a Modification of Notification document.
The Modification of Notification must be lodged in a form approved by the Registrar of Titles accompanied by a copy of the order.
To lodge a Modification of Notification document at Landgate there is a generic electronic form available on the Landgate website at the following web address: eform. Select the Act and the relevant section of the Act from the dropdown boxes in the form.
15.3 Withdrawal of Notification
Under the Act it is possible to seek an Order to have a protected area order repealed.
If a Notification of a Protected Area Order has been lodged with the Registrar of Titles and an Order to repeal that protected area order has been made, the CEO of the Department must, pursuant to Section 87(3), lodge with the Registrar of Titles a Withdrawal of Notification document.
The Withdrawal of Notification must be lodged in a form approved by the Registrar of Titles and accompanied by a copy of the Order.
To lodge a Withdrawal of Notification document at Landgate there is a generic electronic form available on the Landgate website at the following web address: eform. Select the Act and the relevant section of the Act from the dropdown boxes in the form.
15.4 Fees
Prescribed fees are payable on lodgement, modification, and withdrawal of these Notifications.