Strata Titles Act 1985 When did the changes to the Strata Titles Act 1985 come into effect?
The amendments to the Strata Titles Act 1985 were assented to (agreed to by Parliament) on 19 November 2018.
The amendments refine the strata titles process and provide guidance on land management which benefits owners, strata managers and developers.
The amendments include the provision of a new form of tenure, ‘leasehold’ strata which allows for the creation of a lot and issuance of a certificate of title for a specified term (between 20 and 99 years).
The amendments also include improvements for staged subdivision, where subdivision can occur across a number of stages, while protecting the rights of owners who have brought into earlier stages, and facilitating the developer to respond to industry and market provisions.
What is the difference between the Planning Commission and the Western Australian Planning Commission?
The amendments to the Strata Titles Act 1985 (the Act), together with the Strata Titles (General) Regulations 2019 came into effect on 1 May 2020.
What is the new type of land tenure provided for by the changes to the Strata Titles Act 1985?
For the purpose of the Strata Titles Act 1985, reference to the Planning Commission means the Western Australian Planning Commission (WAPC) as established under the Planning and Development Act 2005.
What is the difference between a strata scheme and a survey strata scheme?
The reforms will deliver new land tenure options to help drive economic growth, manage landholdings and major infrastructure and facilitate innovation.
A leasehold scheme is defined as a strata titles scheme in which all lots in the scheme are subject to a lease or leases that create the leasehold tenure when the strata plan and associated documents are lodged with the Registrar of Titles.
A leasehold scheme may be a strata scheme or a survey-strata scheme depending on how the lots are defined.
Leasehold schemes are a new type of scheme where:
- an owner of a leasehold lot (lessee) within a leasehold scheme will be issued with a Certificate of Title
- the scheme is created for a fixed-term (minimum 20 years to a maximum of 99 years)
- people may buy and mortgage a leasehold lot within the leasehold scheme
- an owner of a lot (lessee) within the leasehold strata scheme can sell that lot, without needing the consent of the owner of the leasehold scheme (lessor)
- upon expiry or termination of the leasehold scheme, a process will occur to revert the land back to the original parcel under ownership of the owner of the leasehold scheme (lessor).
Leasehold schemes provide a new option for owning strata lots over a fixed period.
This may provide opportunities to utilise land in the short term, pending the subsequent provision of major infrastructure and redevelopment of the land to meet development outcomes associated with that infrastructure.
For example, subject to compliance with the relevant planning framework, a site could be developed with bulky goods retail pending the growth and development of the adjoining residential area. The leasehold for the bulky goods could be timed with the completion of the urban area, the bulky goods removed, and the site repurposed as an activity centre, to provide local services for the existing urban growth.
What is the difference between a freehold scheme and leasehold scheme under the Strata Titles Act 1985?
Strata titles schemes may be either a strata scheme or a survey-strata scheme. Where lots on a scheme plan are defined without reference to a building, the scheme is a survey-strata scheme.
Where there is reference to a building(s) for the subject lots, it is a strata scheme, sometimes referred to as ‘built’ strata.
Are the current tenure types of strata subdivision still possible after the changes to the Strata Titles Act 1985 come into effect?
The term ‘freehold’ previously applied only to subdivision undertaken under the Planning and Development Act 2005 (also referred to as green title).
In the context of the Strata Titles Act 1985 ‘freehold’ schemes refer to survey-strata (without building(s)) and strata (with building(s)) schemes that do not have a fixed lifespan.
This is as opposed to a ‘leasehold’ scheme where each lot is subject to a strata lease and the scheme expires on a specified day (e.g. minimum 20 years and maximum 99 years after registration of the scheme). Leasehold schemes may be in the form of survey-strata or strata.
Do the changes affect a current approval to strata-title land or a building which hasn’t yet been carried out?
Yes, introduction of leasehold strata and community title schemes will not replace the existing forms of subdivision but will provide an alternative option where appropriate.
Community titles will be administered in accordance with the Community Titles Act 2018 and is further discussed in Community Titles FAQs.
Is there any change to the types of strata application that are exempted from the need for a planning approval?
The new provisions do not impact on any existing approvals which may have been applied for or granted by the WAPC, the local government or any other authority. Where approval has been granted the proposal can continue unchanged by the new legislation.
Why does the Strata Titles Act 1985 refer to ‘types’ of subdivision?
There are no proposed changes to the types of strata applications that are exempt from the need for planning approval, these exemptions are outlined in Part 4 clause 19 of the Strata Titles (General) Regulations 2019.
Who is the decision-maker for applications for subdivision approval?
There are four types of subdivision mentioned in the Strata Titles Act 1985 which relate to the types of amendments to a strata title scheme that gives effect to a subdivision, and trigger varying requirements for resolutions by the strata company and consents by persons with interests in the land or caveators.
The four types are:
Type 1: means the addition of land from outside the parcel of a strata titles scheme to common property in the scheme (excluding temporary common property) or the conversion of a lot in a strata titles scheme to common property in the scheme (formerly referred to as conversion of lots into common property.)
Type 2: means the removal from the parcel of a strata titles scheme of land comprised of common property.
Type 3: means a consolidation of two or more lots in a strata titles scheme into one lot in the scheme (not affecting common property) (formerly referred to as consolidation of lots).
Type 4: means a subdivision that does not involve the alteration of the boundaries of the parcel and is not a type 1, type 2 or type 3 subdivision. (formerly referred to as re-subdivision.)
Can conditions of approval be imposed by the decision-maker on applications for a ‘built’ strata subdivision?
Previously, some types of subdivision to amend the lot arrangements of existing strata development did not require approval from the WAPC under the Strata Titles Act 1985. Under the amended Strata Titles Act 1985, these types of subdivisions (types 1-4) now require approval by the WAPC, unless exempt under the Regulations.
The WAPC is the decision maker for subdivisions, except where it has delegated its power to other agencies such as local government or Development WA.
The delegation will be updated, however there are no proposed changes to the WAPC delegations to local government for ‘built’ strata applications. It is proposed that initially the WAPC will determine applications for leasehold (strata and survey strata) schemes.
The former Section 9,10 and 19 provisions have been carried forward as Section 23 in the amended Act.
Is the WAPC involved in the process to terminate an existing strata titles scheme?
Yes, conditions can be imposed on built strata applications. This may occur at the Form 15A stage (formerly Form 24). Where conditions are proposed to be applied, the Model Subdivision Conditions Schedule are to be used. Non-standard conditions are discouraged.
The conditions on the strata approval should not repeat or attempt to address conditions that were inadvertently missed through the development application process.
Why have the subdivision application forms changed?
The role of the WAPC in the termination process for a strata title scheme is limited to receiving, assessing and determining the new plan of subdivision. The application is lodged based on the 'proposed subdivision' with the termination fees calculated based on the new lot configuration.
Where are fees for applications set out?
A number of changes have been made to the application forms for subdivision in response to the changes proposed by the amended Strata Titles Act 1985 and associated regulations.
Updates have been made to the existing Form 1A and Form 1C with the main change made to accommodate applications for leasehold schemes, being a new land tenure, and to clarify that a subdivision application is part of the process to terminate a scheme.
Changes to the existing application form and a new form have been introduced to support the strata (built) application process.
The Form 15A (formerly Form 24) applies to the approval stage (application for approval with, or without conditions)
The endorsement stage, when conditions were met and/or construction completed, previously resulted in issuance of a Form 26 certificate. To ensure sufficient information is provided to the determining authority by the applicant and to clarify the process, a new form, Form 15C, has been provided to guide this process to facilitate the issuance of a certificate of endorsement.
The assessment and determination process of applications remains the same under the amended act.
What is a planning (scheme by-laws) condition?
Subdivision application fees can be found on the Department of Planning, Lands and Heritage website.
Planning fees that are specific to the Act, including for strata schemes and leasehold strata schemes, are set out in Schedule 6 of the Regulations.
Does the Leasehold Scheme subdivision trigger public open space contributions?
A planning (scheme by-laws) condition is a condition of a planning approval (e.g. subdivision approval) that requires a strata titles scheme to have specified scheme by-laws, that alerts the strata company and the owners of the strata lots of the requirement for approval from the WAPC, the applicable local government or any other specified body (e.g. government agency or utility service provider) before a strata scheme by-law may be amended or repealed.
Why do the Regulations define open space?
Normal planning considerations will be taken into account in relation to a proposed leasehold scheme, such as:
- the number, size and arrangement of proposed lots, including any common property
- proposed infrastructure and servicing arrangements
- proposed access and egress arrangements for lots and the scheme; and
- proposed land use and development, and
- the relationship of the proposal to existing and intended land use and development in the subject locality.
The powers to impose conditions are the same regardless of the tenure, which means that the provision of public open space will need to be considered during the assessment of each application.
Public open space may be required to be provided, or it may be more appropriate for cash in lieu of land being provided, depending on the merits of the application.
Cash in lieu would be used for improvements or maintenance of existing public open space or acquisition of public open space in a more appropriate location which would serve the residents of the leasehold scheme.
What is the duration of approval of an application to undertake a subdivision?
The definition for open space in the Act and Regulations is not intended to replace the definition outlined in State Planning Policy 7.3 Residential Design Codes - Volume 1. Rather, the detail provided in Regulation 7 aims to clarify how open space is calculated within a private development site.
What rights of review exist concerning decision-making in relation to an application for approval to undertake a subdivision?
Part 4 Regulation 18 of the Strata Titles (General) Regulations 2019 prescribes a period of two (2) years for the approval of a strata (built) subdivision. Before the end of the two (2) year period the applicant is to complete the construction of the dwellings, satisfy any conditions of approval and make an application for the endorsement of the scheme plan.
Part 10 section 145 of the Planning and Development Act 2005 prescribes a period of four (4) years for the approval of a survey-strata subdivision for more than five lots and three (3) years for any other case. Before the end of the three or four year period (as applicable) the applicant is to satisfy any conditions of approval and make an application for the endorsement of the diagram or plan of survey.
If works are not completed and/or the conditions have not been satisfied before the expiry of the approval, a new application will need to be submitted.
What is staged subdivision?
Section 27 of the Strata Titles Act 1985 provides the right to apply to the State Administrative Tribunal for a review of a decision makers decision to refuse an application or to impose conditions on the approval of a strata application.
Part 14 of the Planning and Development Act 2005 provides the right to apply to the State Administrative Tribunal for review of a decision makers decision to refuse an application or to impose conditions on the approval of a survey-strata application.
The right to apply to the State Administrative Tribunal for review of a decision for a leasehold is in accordance with the form of subdivision (strata or survey-strata).
Where can I find more information about the changes to the Act?
Strata and survey-strata development has always been able to be undertaken in a staged process, for example to facilitate the next stage of construction through the sale of lots in the first stage.
Amendments have been made to the Act which provide owners with more clarity as to what development will occur within the site and will allow minor variations to progress without the requirement for unanimous consent.
Further information on the changes to the Act can be found on the Landgate website via the following link: www.strata.wa.gov.au
Copies of the legislation can be found via www.legislation.wa.gov.au
Community schemes How does a community scheme differ from a strata titles scheme?
Community titles schemes are being introduced into Western Australia through the introduction of the Community Titles Act 2018 (the Act). They are a new option for subdividing a single parcel of freehold land into multiple community titles schemes that together are called a community scheme.
Community schemes will not replace strata and survey-strata schemes which will still operate under the Strata Titles Act 1985.
Community schemes will allow multiple sub-schemes with different uses (residential, retail and commercial) to exist under an umbrella community scheme. This new type of scheme will be important for large-scale precinct developments that require flexible staging or development with multiple land uses.
Can the WAPC decide not to support a community titles scheme for a site?
Subdivision in the form of a community scheme allows for up to three tiers of schemes to be created within a single scheme. The schemes are linked through land tenure but are able to be developed independently.
Community titles schemes allow for by-law provisions to outline who is responsible for the management or use of the parcels based on lot entitlement. This means that landowners only have to contribute to infrastructure or facilities that they may own and utilise, for example in a tower development with commercial and residential lots:
- Owners of commercial lots would not be required to pay for the maintenance of the swimming pool owned and utilised only by owners of the residential lots; and
- Owners of residential lots would not be required to pay for the maintenance of the commercial lobby, owned and utilised only by commercial tenants.
What does a Community Development Statement do?
Yes. In accordance with Section 23 of the Act the WAPC can determine if a community titles scheme is the appropriate form of subdivision for a particular land parcel with due regard to:
- relevant State planning policies; and
- relevant planning scheme or interim development orders; and
- whether some other form of subdivision or no subdivision would be more appropriate in the circumstances to achieve orderly and proper planning, and the preservation of the amenity of the locality in which the land is situated; and
- comments received from local government, public authorities or service providers and public submission received.
If the WAPC decides the above criteria has not been met and/or another form of subdivision is more appropriate (e.g. freehold, survey-strata) it may refuse to support a community title scheme for a site.
What does the Community Development Statement contain?
A Community Development Statement will set out the detailed land use, subdivision and development controls and developer obligations for a community scheme. It may also outline the purpose for which the land in the community scheme may be used, the staging and sequencing of subdivision and development, and other matters relevant to a community scheme including how amendments may be undertaken. The Community Development Statement fulfils several purposes including:
- guiding decision making by the WAPC and local government concerning subdivision and development applications
- providing a basis for investment and for the coordination and implementation of investment
- designing and coordinating detailed infrastructure and service provision, providing guidance on land requirements and costs.
- providing clarity and certainty for owners and occupiers on what will be developed and the timing of the development.
Although registered when the Tier 1 scheme is created (.ie. titles issued) the community development statement applies to the scheme as a whole, meaning separate community statements are not required for the tier 2 or tier 3 schemes
Who determines a Community Development Statement?
Section 25 of the Act outlines the requirements that are to be included in a Community Development Statement to guide subdivision and development of the land. This includes, but is not limited to, identifying:
- the location of the parcel
- the number of tiers and the type of community titles schemes
- the number, size and arrangements of lots
- the requirements for restricted use conditions, restrictive covenants, open space, road dedication, cash in lieu and development contributions
- the limitations on the location and scale of improvements
- requirements for landscaping
- requirements for architectural and design themes
- staging and sequencing.
A Community Development Statement needs to be consistent with existing state planning policies, planning schemes or interim development orders. Depending on the form and scale of a Community Development Statement, matters may be addressed through both Community Development Statement provisions and scheme or local structure plan provisions, for example, the retention of significant vegetation.
Will the WAPC consult local government about a proposed Community Development Statement?
The WAPC is the determining authority for a Community Development Statement.
The WAPC has 120 days to make a determination on a Community Development Statement.
This assessment will include consideration as to whether a community titles scheme is an appropriate form of subdivision for the subject land.
The WAPC can resolve to:
- approve subject to modification; or
a community development statement.
Is there any opportunity for public input into a Community Development Statement?
In accordance with Section 22 of the Act the WAPC will notify each affected local government and public authority or utility service provider of a proposed Community Development Statement. The WAPC must give due regard to comments received.
Can approval of a Community Development Statement be subject to conditions?
On receipt of a Community Development Statement the WAPC will refer it to the relevant local government, public service authorities or utility service providers.
The local government is required to advertise the application for public comment. It is at this stage that members of the public can comment on the proposed Community Development Statement.
Any submissions received will be referred to the WAPC who must give due regard to comments.
If there is a Community Development Statement for a site, will a Local Structure Plan or similar planning instrument also be required?
Section 24(2) provides that the WAPC may approve a Community Development Statement subject to conditions that the document must be modified and returned to the WAPC within a specified period.
It is anticipated that further guidance will be provided in the Regulations on the type of conditions and time period applicable for proponents to undertake modifications and return the Community Development Statement to the WAPC.
What is the difference between the approval period and the development period for a Community Development Statement?
Section 20 of the Act provides for the WAPC to waive the requirements for a local structure plan or local development plan to be prepared, where a Community Development Statement exists.
Can a Community Development Statement be amended?
The approval period for a Community Development Statement is the period after it has been approved by the WAPC and before the tier 1 scheme is registered with the Registrar of Titles (through the tier 1 subdivision).
During the approval period the WAPC must approve subdivision proposals consistent with the Community Development Statement, and all determining authorities must give due regard to the Community Development Statement when considering development applications.
The proponent must register the tier 1 scheme and Community Development Statement within four (4) years of approval of the Community Development Statement. Once registered the development period commences. If the tier 1 scheme and Community Development Statement are not registered within four years of approval, the approval lapses and a new application would need to be submitted.
Once the development period commences the Community Development Statement is binding and applications for subdivision or development that conflict with the Community Development Statement are unable to be approved.
The development period is ten years (or other time limit as determined by regulations) which commences from the registration of the tier 1 scheme. Once the development period ends, determining authorities must give due regard to the Community Development Statement for subdivision and development applications.
A proponent may apply for an extension of the development period.
What is a community titles scheme and how do the community schemes and tiers interrelate?
Yes. A Community Development Statement can be amended.
If the Community Development Statement is approved, but not yet registered, the Community Development Statement may be amended by application to the WAPC.
If the Community Development Statement is registered with the tier 1 community titles scheme, before the WAPC can consider an amendment, approval of the amendment by a special resolution of the tier 1 community corporation is required. Evidence would need to be provided with the application demonstrating that the tier 1 corporation has resolved to support the amendment.
What rights of review exist concerning decision-making in relation to a Community Development Statement?
Each individual scheme within a community scheme is called a community titles scheme.
There are up to three tiers of community titles schemes in a community scheme:
- a tier 1 lot can be subdivided by a tier 2 community titles scheme
- a tier 2 lot can be subdivided by a tier 3 community titles scheme
- a tier 3 lot cannot be further subdivided.
Each community titles scheme will have:
- its own community corporation established on registration of the scheme with the Registrar of Titles
- its own set of scheme by-laws, to govern the scheme.
A tier 1 community corporation includes all landowners of tier 1 lots and the community corporation of each tier 2 scheme under the tier 1 scheme.
A tier 2 community corporation includes all landowners of tier 2 lots and the community corporation of each tier 3 scheme under that tier 2 scheme.
A tier 3 community corporation includes all landowners of tier 3 lots.
The community titles scheme may have common property (although this is not a requirement) which the owners of the lots in that scheme own or can use exclusively and are solely responsible for maintaining. Owners in the subsequent tiers may also utilise the common property, that is:
- The owner of a lot in a tier 2 scheme has a share in the common property in that scheme and a share in the common property of the tier 1 scheme
- The owner of a lot in a tier 3 scheme has a share in the common property of the tier 2 scheme and a share in the common property of the tier 1 scheme
An example of this may be the tier 1 subdivision of a lot, with the entrance road into the lots designated as common property. The subsequent tier 2 subdivision would also use this entrance road, but would also have its own subdivisional road. The subsequent tier 3 subdivision would be accessed via the tier 1 and tier 2 road, but may have its own subdivisional road that is only accessed by the tier 3 lots.
Common property could also be used by the general public, where a public access easement is applied.
When does the Community Titles Act 2018 come into effect?
Section 34 provides the ability for an applicant to apply to the State Administrative Tribunal for review of:
a) A decision to refuse an application including by:
i) Making a decision that subdivision by a community scheme is not an appropriate form of subdivision;
ii) Refusing to extend the development period for a community scheme;
iii) Refusing to approve an amendment or repeal of scheme by-laws;
b) A decision to approve a draft Community Development Statement or an amendment to a Community Development Statement, subject to conditions
Where can I find more information about the Community Titles Act 2018?
It is anticipated the Act and regulations, which are currently being drafted to guide the Act, will come into operation towards the end of 2020 or early 20201.
Where can I direct any comments or seek further advice on planning and development for Community Titles Schemes?
The Community Titles Act 2018 is available online.
Further information about the Community Titles Act 2018 can be found on the Landgate Strata Reform Website.
By email: firstname.lastname@example.org
By post: Strata Reform – Community Titles Schemes
Department of Planning, Lands and Heritage
Locked Bag 2506
Perth WA 6001