The importance of land ownership to development applications

The recent decision of the Supreme Court in City of Fremantle v Imago Holdings Pty Ltd [2019] WASC 127 (Imago) provides a timely reminder of the importance of properly reviewing and understanding underlying land ownership before preparing and submitting a development application.

In most cases, the ownership of land will be straightforward and easy to ascertain, in which case, completing a development application for that land may be a simple process.  There can however be instances where the underlying land ownership is more complicated than first anticipated, which is where difficulties can potentially arise.

In the Imago case, a company had acquired a site along High Street in Fremantle in 1994, upon which sat a commercial complex.  Prior to acquiring the site, the company had inspected the title and observed that the legal boundaries of the site extended to an area beyond the building line and into the adjacent footpath and a loading bay.

In more recent times, the company submitted a development application to the City of Fremantle (City) to establish a “covered bicycle stand structure” in the adjacent footpath area, but this development application was deemed refused by the City.  It would appear that the City was opposed to the development application, because it took the view that the relevant area of land was actually Crown land and not part of the land owned by the company.

The City adopted this position because of a by-law that was adopted in 1955, pursuant to statutory powers, which in basic terms imposed new “building lines” on particular streets and stated that when existing buildings were demolished, the land up to the location of the new building lines would vest in the Crown.  The evidence showed that a building on this land was demolished in 1962, with the new building subsequently erected behind the new building line.  The City accordingly argued that the relevant portion of land (with an area of 330 square feet) had been vested in the Crown as a consequence.

The question for the Court to determine was whether the relevant area of land was owned by the company or vested in the Crown.

Although it was held that the land had been vested in the Crown for the purposes of the by-law and the underlying statutory provisions, it transpired that notice of this position was never communicated by the City to the Registrar of Titles, and as a consequence, the title information was never updated.

Moving forward to 1994, when the company acquired the land, the title information said nothing about the new building lines or a vesting of land in the Crown and the company acquired the land on that basis.  Applying the principle of registration of ownership being paramount, the Court determined that the company remained the legal owner of the whole of the land, including the portion for which the development application related.  The Court accordingly declined to make the declaration sought by the City to the effect that this was now Crown land.

The particular land tenure scenario in this case is rather unusual and is unlikely to be a common occurrence.  The case does however demonstrate that land ownership is not always a straightforward question and there can be underlying complexities that are not necessarily apparent at first glance.  It is accordingly important to properly understand and confirm land ownership prior to completing and submitting any development application.

The procedure for submitting a development application under a local planning scheme is now set out in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions).  Clause 62(1)(a) of the Deemed Provisions says that a development application must be “signed by the owner of the land on which the proposed development is to be located”.

The term “owner” is defined in clause 1 of the Deemed Provisions to mean, in relation to freehold land:

  • A person whose name is registered as a proprietor of the land.
  • The State, if registered as a proprietor of the land;
  • A person who holds an interest as purchaser under a contract to purchase an estate in fee simple in the land; and
  • A person who is the holder of a freehold interest in land vested in an executor or administrator under the Administration Act 1903 section 8.

Particular care should be exercised in circumstances where land is owned by multiple different individuals or entities, where land is owned by some entity other than a natural person and where there is ownership of lesser interests in land.