Is approval from the Western Australian Planning Commission (WAPC) required to approve a lease of and licence to use or occupy a building for a term exceeding 20 years?
No. There is no requirement for leases or licences of buildings to be approved.
The purpose of section 136 of the Planning and Development Act 2005 is to deal with the potential de facto subdivision of land. For example, a landowner who provides a 99-year lease over half their land is in effect dividing the land in two, even though there still is technically one “lot” as recoded on one certificate of title. To allow this to occur would subvert the very purpose of the subdivision process, and importantly, the role of the WAPC to ensure the subdivision of land accords with planning principles that protect the amenity of neighbours and the surrounding locality.
As such, section 136(3) deﬁnes land to not include the whole or a portion of a building, if the building was constructed in accordance with a building licence, or a building licence to construct the building is in force.
In other words, approval is not required for a lease of or a licence to use or occupy a building that is, or will be, constructed in accordance with a building licence.
Subsection (4) states that a ‘portion’ of a building includes the area outside the building where:
- the area is the subject of the same lease or licence to occupy as the lease for the building itself
- the area is used for any purpose necessary for the convenient occupation of the building.
This means that where the area outside the building is for a purpose necessary for the “convenient occupation” of the building (such as access to the building, car parks, loading bays and so on), then a lease of or licence to use and occupy the building does not require WAPC approval.
If a party to a lease document is unsure whether external areas that form part of the lease fall within the scope of the ‘exception for external areas’, the party should seek independent legal advice regarding compliance with the Planning and Development Act 2005.
Does section 136 regulate the sale or strata and survey-strata lots?
No. The sale of strata and survey-strata lots subsequent to the registration of the relevant strata plan or survey-strata plan is not regulated under section 136 of the Planning and Development Act 2005.
The sale of strata lots prior to the registration of the strata plan is not regulated by section 136 of the Planning and Development Act 2005 because of the separate WAPC approval regime for strata plans under section 25 of the Strata Titles Act 1985, subsection 25(5). This also makes explicit the exemption from the operation of section 136 of the Planning and Development Act 2005.
Does a person who enters into a contract for the pre-sale of land under section 140 need WAPC approval pursuant to section 136?
No. A person can still enter into an agreement in relation to a portion of a lot without the WAPC’s approval, provided that the contract is conditional upon the necessary approvals to the subdivision being obtained, and the creation of the lot or lots to be conveyed, prior to their conveyance. Parties to a contract should also seek their own independent legal advice.