Community Titles Act 2018 begins operation this month

What is community title? 

Community title is a new method of subdividing land, resulting in a community scheme.

What is a community scheme?

A community scheme is:

• a new type of ‘strata’;

• which has multiple sub-schemes;

all within a community scheme.
 

Each ‘sub-scheme’:

• is called a community titles scheme; and

• has a ‘strata company’.

Each ‘strata company’ is called a community corporation.  Community schemes can include two or three tiers of sub-schemes.

When to use community title?

Community title is a useful subdivision option for development sites which include:

• precinct scale sites;

• sites or large buildings that will combine a mix of uses;

• sites that will contain multiple towers;

• sites that will be developed and subdivided in stages;

• sites that will combine low rise (land development) and high rise (built form development); and

• sites that will contain shared infrastructure, facilities and / or amenities.

To be clear, community title is not suitable for every development site.

Planning approval for community schemes

Subdivision and development of a community scheme will be subject to:

• a Community Development Statement (CDS); and

• subdivision and development approvals.

CDS outlines staging of subdivision and development

A CDS is a new type of planning instrument that outlines how a community scheme will be developed and subdivided.

There is currently a belief amongst some developers that community schemes are too hard because the CDS needs to be very detailed and is too restrictive. That is a misconception.

Maintaining flexibility of the final built form within a community scheme

The CDS does not need to contain a detailed built form architectural plan of the proposed building or buildings within the community scheme.

The draft Community Schemes Guidelines (Guidelines) released by the Department of Planning Lands and Heritage and the Western Australian Planning Commission (WAPC) in February 2021 recognise that built form within a community scheme should be flexible.

The Guidelines confirm that an existing development approval may be included within a CDS.
The final version of the Guidelines will be released by DPLH in the coming days.

Certainty for the developer during the development period

A CDS can be a very useful tool for developers, provided they seek expert advice.

A CDS provides a developer with certainty because during the development period for a community scheme:

• owners within a community scheme cannot object to a development or subdivision application that is consistent with the CDS; and

• planning decision makers must approve any subdivision application that is consistent with the CDS: section 19 of the CTA.

Building flexibility into the CDS

To ensure the CDS is not too rigid, the developer can prepare a draft CDS which contains relatively flexible outcomes. Section 25(1)(c) of the CTA provides that the CDS may include:

• estimates on the proposed scale of the building(s); and

• estimates on the number of levels and heights of the buildings.

The Community Titles Regulations 2021 (CTR), which have just been finalized and published in the Government Gazette, provide that the CDS should contain an estimate of the number of lots within the community scheme: regulation 13 of the CTR.

The WAPC may approve a CDS with or without conditions. A CDS can also be amended at any time after a CDS has been approved by the WAPC.

Some developers are already planning to use community title for their sites

Lavan is currently providing advice to several leading developers on subdividing and developing their significant sites into community schemes.

The right fit for your development site?

If you are curious whether community title is the right option for your development site, please contact Sean Macfarlane or Tim Morgan at Lavan.