The State Administrative Tribunal in the recent case of 43 McGregor Road Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel1 (McGregor Road) has struck down a condition of development approval that purported to require the proponent to register notifications on titles, pursuant to section 70A of the Transfer of Land Act 1893 (WA).
The decision of the Tribunal in McGregor Road casts significant doubt in relation to the ability of decision-makers in a planning context to require notifications to be registered on titles, in order to warn potential purchasers of particular factors affecting the use or enjoyment of land. This decision of the Tribunal also represents a precedent by which developers can oppose such conditions in circumstances where notifications may negatively impact upon the marketability of a development.
Section 70A in summary says that a local government or public authority with the consent of the landowner, may cause a notification to be registered on a title, if it is considered desirable to make persons dealing with the land aware of a factor affecting the use or enjoyment of the land. The Tribunal in McGregor Road considered a condition of development approval, which was imposed by a Development Assessment Panel (DAP) and required a notification to be lodged on titles pursuant to section 70A to “alert prospective buyers that the residences may be affected by transport noise and odours”.
The first observation made by the Tribunal in McGregor Road was that a DAP is not a “public authority” for the purpose of section 70A. It would follow that any such condition of development approval imposed by the DAP would have to require the proponent to consent to the local government causing a notification to be registered, rather than the condition simply saying that the DAP requires a notification to be registered.
More importantly, the Tribunal also held in McGregor Road that if a proposed notification would merely refer to a factor affecting the use or enjoyment of land, without that particular factor being physically addressed, then a condition of development approval purporting to require such a notification would not serve any particular planning purpose. If a condition of development approval does not serve any planning purpose, then it is invalid as a matter of law. On this basis, the Tribunal found that the condition of development approval that required the notification to be registered on titles was invalid and should be deleted.
As stated at paragraph [73] of the Tribunal’s reasons: “If the purpose of the condition is to make potential purchasers aware of a potential negative amenity impact, while that might be a desirable goal at large, the Tribunal is not persuaded, if that is all it is for, that it has any planning purpose”.
Although it did not ultimately have to determine the question, the Tribunal in McGregor Road also appeared to indicate that there is some legal doubt as to whether a condition of development approval can actually require a landowner to consent to the registration of notifications on titles at all (see paragraphs [58] and [59] of the Tribunal’s reasons). As the Tribunal identified, this particular issue has not yet been considered by the Supreme Court.
The decision of the Tribunal in McGregor Road represents a significant shift from previous Tribunal decisions and the conventional wisdom surrounding development approvals, by which it has been commonplace for conditions to require notifications to be registered to warn potential purchasers about factors affecting the use or enjoyment of land. The decision of the Tribunal may be useful to proponents who are dealing with a condition that purports to require a notification that the proponents considers is unreasonable, unnecessary or commercially inappropriate.
If an applicant for a development approval sees that a local government is proposing a condition of development approval to require a section 70A notification (such as in a responsible authority report for a DAP meeting), then the applicant should make submissions that the proposed condition should not be adopted, following the reasoning in the McGregor Road decision.
In relation to a developer that already holds a development approval with a condition requiring notifications to be registered potentially affecting the marketability of the site the subject of the memorial. The developer should consider submitting an application to amend the terms of the development approval to delete the condition in question. Again, the decision of the Tribunal in McGregor Road would be cited as the justification to the amendment request.
Unless it is overturned on appeal or rejected in a subsequent decision of the Tribunal, the approach taken in McGregor Road should be followed by decision-makers on development applications, which represents an opportunity for difficult section 70A notification requirements to be avoided altogether.
If you require advice on how to avoid or delete a condition of development approval requiring a section 70A notification, please do not hesitate to contact Lavan's Planning, Environment and Land Compensation team.
