A landscape view of Elizabeth Quay with the pedestrian bridge in the foreground and the city in the background

As Perth’s population grows, there is an increasing need for higher density residential developments and urban infill, especially in inner-city urban areas. Prospective property buyers may not be aware that future developments in the surrounding area may prevent, restrict or reduce the views they currently enjoy. To avoid unnecessary conflicts in the future, it is possible for buyers to be notified, in particular circumstances, of potential future impacts on their views, by way of a notification on title.

This blog article provides additional commentary on notifications on title. We have previously commented on notifications on title related to odours and transport noise in a blog article and in a case summary on Presiding Member of the Metropolitan Central Joint Development Assessment Panel v 43 McGregor Road Pty Ltd [2018] WASC 98.

Imposition of a notification on title

Under section 70A of the Transfer of Land Act 1893 (WA) (TLA), a local government or a public authority has the power to impose a notification on title as a condition of development approval. Section 70A of the TLA provides that a local government can cause a notification on title to be lodged, where it considers it desirable that prospective proprietors of the land should be made aware of a factor affecting the use or enjoyment of the land or part of the land.

A notification on title can be imposed to make prospective residents aware of potential impacts on amenity that may not otherwise be obvious from a physical inspection of the land itself.[1] The phrase ‘a factor affecting the use or enjoyment’ can cover both present and future use or enjoyment of the land.[2] Impacts on views, like any other amenity impact, can fall within the scope of section 70A of the TLA.

Why is a notification on title useful?

A notification on title in relation to views may be useful for the following reasons:

  • Prospective buyers cannot understand the implications of planning frameworks. In particular, the planning framework for inner-city urban areas can be complicated and dynamic. Even a diligent property buyer may not be able to understand the extent and implications of continuously evolving planning frameworks. It may not be obvious to prospective buyers that future developments in the locality may impact their views.
  • Avoid unnecessary conflicts. The promotion of urban infill may increase the likelihood that multi-storey developments will continue being approved and constructed. If buyers are not adequately notified of the impacts these developments might have on views, disputes with neighbouring or nearby properties may be the result.

When is a notification on title related to views reasonable and necessary?

The State Administrative Tribunal’s recent decision in Edge Holdings No. 6 Pty Ltd and The Acting Presiding Member of the Metro Central Joint Development Assessment Panel [2020] WASAT 35 has provided guidance on when a notification on title is reasonably required to warn prospective purchasers of an impact on their views.

The Tribunal determined that on the particular facts and circumstances of that case that potential restriction or prevention of views from the development in the future was clear enough to prospective purchasers and that no notification on title was required.

The Tribunal gave the following guidance as to when a notification on title in relation to views may be appropriate:

  • when it is not obvious to prospective purchasers upon an inspection of the development that there is a property adjacent to it which, if developed, could potentially prevent or restrict views;
  • if the circumstances of the case are more unique than a situation where the view from a development toward a body of water is separated by a geographical or topographical feature; and
  • where the development is an ‘island’ site in that it is surrounded by roads and a large number of potential development sites, as opposed to just a singular row of potential development sites

The Tribunal took a similar view in relation to a notification title in relation to traffic. It stated that it would be obvious to prospective purchasers of apartments in the 29 level building in question, viewing the surrounding building context and reasonably anticipating redevelopment on nearby sites, that there is a potential for traffic and congestion to increase in the area. It was not a hidden characteristic which cannot be discovered from a physical inspection of the site.

Click here to read the full decision by the Tribunal.

[1] Presiding Member of the Metro Central JDAP v 43 McGregor Road Pty Ltd [2018] WASC 98 at [66].

[2] Presiding Member of the Metro Central JDAP v 43 McGregor Road Pty Ltd [2018] WASC 98 at [67].