The State Government has recently released the draft regulations and planning policies that are proposed to underpin the Community Titles Act 2018 (WA) (CT Act), once its provisions become fully operational. These materials provide greater insight as to how the community titles system is proposed to work in Western Australia, including from a planning perspective.
The draft planning policy (prepared by the Department of Planning, Lands and Heritage) is named Operational Policy 1.11 – Community Schemes and would be supported by the draft guidelines known as the Community Schemes Guidelines. The draft regulations would be known as the Community Titles Regulations and will sit below the CT Act.
The draft planning policy and guidelines provide much needed guidance on the intended approach to community titles. Careful thought should therefore be given to whether application of the community titles regime is appropriate for a given development proposal.
Part 3 of the CT Act will introduce a new type of planning instrument, which will be known as a “community development statement” (CDS). It is apparent from the draft planning policy that a CDS will operate in a similar fashion to structure plans, in that one of its primary functions will be to provide details of proposed future subdivision and development.
Importantly, under section 18(1) of the CT Act, a CDS must be approved by the Western Australian Planning Commission (WAPC) as a legal prerequisite to a community titles subdivision occurring. This would prevent a community titles arrangement from being imposed over an existing development, without the interim step of a CDS being approved. This contrasts with the position under the Strata Titles Act 1985 (WA) (ST Act), where a strata or survey-strata subdivision can occur so long as a development approval is in place, with no strict requirements in relation to background planning instruments also being in place.
In terms of content, section 24(1) of the CT Act provides that a proposed CDS must be refused by the WAPC if it is in conflict with any State Planning Policy (SPP) or the applicable local planning scheme (LPS). It is not entirely clear what the term “conflict” is intended to mean in this provision. On the one hand, it could require that any CDS comply strictly with the standard provisions in an SPP or LPS, or on the other hand, it could require only general compliance with any SPP or LPS (including with variation mechanisms in an LPS applied). If the strict interpretation is applied, then it could significantly limit the design potential associated with a given community titles proposal. There is accordingly at least some doubt as to whether a CDS that proposes departures from an SPP or an LPS will be approved by the WAPC.
It is worth noting that under Part 17 of the Planning and Development Act 2005 (WA) (PD Act), the WAPC may grant development approval for a “significant development” proposal, even where there is a departure from the requirements of an LPS. By reference to section 24(1) of the CT Act, it would appear that a proposal that is reliant upon departures from an LPS being authorised by the WAPC under Part 17 of the PD Act could not thereafter be lawfully implemented within a community titles framework, because the necessary CDS to implement such a proposal would invariably conflict with the LPS.
Section 20(1) of the CT Act provides that in deciding whether to approve a CDS, the WAPC may waive the requirement for any other plan required under an LPS. The draft planning policies however state that the WAPC will not waive the requirement for a structure plan under an LPS. This effectively means that if a community titles project is proposed for an area for which the relevant LPS contemplates a structure plan (which would cover most development areas and many redevelopment areas), but there is no structure plan in place for the site in question, then a structure plan must be prepared and adopted before a CDS will be approved. This may result in duplication of planning instruments having to be prepared, in the sense that a structure plan and a CDS may cover very similar subject matter.
Section 25(3) of the CT Act provides that a CDS may incorporate other prescribed documents. A list of prescribed documents that may be incorporated into a CDS is set out in the proposed regulations.
Interestingly, the proposed regulations do not contemplate existing development approvals being incorporated into a CDS, but the draft planning policy says that a CDS may “reference” existing development approvals. There is a clear disconnect between the regulations and the planning policy in this respect. As things currently stand, the regulations would prevail over the planning policy in a legal sense, which suggests that an existing development approval cannot be incorporated into a CDS without further regulation or guidance.
Importantly, once a CDS has been approved by the WAPC, any subdivision or development proposals that follow (during the development period) must comply with the CDS. This is as a consequence of section 19(2)(c) of the CT Act, which provides that a subdivision application or a development application must not be approved if it is inconsistent with the CDS. Similarly, the new section 162(3) of the PD Act will provide that where a CDS is in force, any development approval must be consistent with the CDS. With these provision in mind, a CDS will not be a “due regard” planning instrument, but would rather be a binding planning instrument.
The requirement to comply strictly with a CDS introduces a degree of risk, especially in circumstances where a community titles proposal is intended to be implemented over the course of several years and design changes may become necessary or desirable over that period.
One option to address this risk would be for the CDS to be general in terms of its content, but that may result in the CDS not containing the necessary levels of information required under the CT Act, the regulations and the planning policies to warrant approval by the WAPC. Another option would be to proceed on the basis that the CDS will be amended in future, as it becomes necessary, but that could require various amendment applications and determinations by the WAPC, before any actual subdivision or development proposal can be considered.
The community titles regime will provide significant opportunities for those proposals that involve complexities with respect to land tenure, property management and common infrastructure. There would be many cases where the benefits of resolving those complexities through CT Act mechanisms would outweigh any associated planning limitations with respect to the need to prepare and comply with a CDS. An example of such a proposal would be where a single developer proposes multiple buildings with different land uses over a single site, in a “campus” style, in a manner that is compliant with the LPS and any relevant SPPs.
On the other hand though, there would be many proposals where the restrictions associated with the CT Act may be better avoided and where the standard planning system and the ST Act would be preferable. An example of such a proposal that may benefit from remaining outside of the community titles system would be a single apartment tower (without significant commercial uses) for which a significant variation is sought on building height controls under the relevant LPS.
Careful consideration should be given to the merits or otherwise of using a community titles arrangement for any development proposal that is current in the early concept stages, because if a community titles arrangement is to be implemented, then forward thinking in that respect should begin as soon as possible.
If you require any advice in relation to community titles, whether from a property/planning perspective or otherwise, please do not hesitate to contact us.
