The team at Glen McLeod Legal brushed up on their trivia for the UDIA Quiz Night last week. It was a pleasure to attend a UDIA social event for the first time since COVID restrictions eased and to mingle with others in the industry. While we did not quite manage first place it was a very enjoyable and fun night out at the Old Pickle Factory. Thank you to Alan Stewart, Len Kosova and Cameron Leckey whose knowledge of music and pop culture was invaluable!
For many years there has been controversy and uncertainty over whether there should be a port at Kwinana and the effect future port plans would have on current freight routes. In what many would hope is the final work on the matter, the independent Westport Taskforce, has produced what may be described as a ‘visionary plan’ for a future container port.
The Westport: Future port recommendations stage 2 report (Report) recommends two port options, both of which aim to increase freight capacity to meet long-term forecast demand. The two options involve the transition of trade from Fremantle to a new port in Kwinana. Option D2 recommends transitioning all freight to Kwinana over time, while Option B recommends moving all freight to Kwinana at once.
Why it is proposed to move the Port
2018-19, 770,000 twenty-foot equivalent units (the unit of measurement for containers) (TEU) were handled by the Fremantle port. By 2068, that number is expected to grow to 3.8 million TEUs.
The Report details six primary reasons for having a new port.
- Increasing road congestion
The areas surrounding the Fremantle port are experiencing growing density levels without increases to road capacity. Removing port traffic will increase social amenity.
- Bigger ships
As larger ships begin to service Perth a wider range of accommodation will be needed. This will range from minor upgrades to the deepening of the Inner Harbour channel.
- Asset optimisation
The infrastructure assets currently used at the Fremantle Harbour will reach their optimum asset life in the next 20 to 30 years.
- Land value
The ‘highest and best use’ of the land currently used for industrial purposes is forecast to change to residential and commercial.
- Social licence
The noise, vibration and emission from the existing port will become less compatible with residential areas.
The regulatory and technological environment will at some point necessitate a rethinking of the port.
This recommendation is that a port be built in the Cockburn Sound. Option B would be constructed in 3 stages:
Stage 0: Meet short term freight growth with upgrades at Fremantle.
Stage 1: Construction of the Kwinana port. Stage 1 of the Kwinana port could be built to manage up to 1.52 million TEUs.
Stage 2: If ultra large container vessels begin to service Australian ports, the Cockburn Sound access channel can be deepened and widened as necessary.
Stage 3: The capacity of the Kwinana port can be increased to 4.5 million TEUs to meet the forecast growth in freight.
About two thirds of the capacity of the Kwinana port will be serviced by road, through a dedicated freight corridor along Anketell Road and Tonkin Highway. The existing South Western main line rail line with accommodate the other one third.
This option is forecast to cost $4.7 bn.
Option D2 is similar to Option B, but instead provides for Fremantle and Kwinana to share the receipt of freight in the short term. The receipt of freight at Kwinana will then gradually increase.
Option D2 is the preferred option as it maximises the value of the Fremantle port, while still transitioning into the same long-term state as Option B.
This option is forecast to cost $4 bn.
Suggested benefits of Options B and D2
The capacity of the proposed Kwinana fort in Options B and D2 exceeds forecast demand and future-proofs the receival of shipping freight in Perth for the next 50 years.
The benefits of Options B and D2 are:
- Kwinana is more a more flexible location, with less constraints imposed by the land use of the surrounds;
- Traffic associated with the Kwinana port will be facilitated by Anketell Road and Tonkin Highway and thereby avoid suburban areas; and
- Fremantle and the Inner Harbour will be open to redevelopment.
The Report is part of a major undertaking and will take some digesting. There are many points of conflict between advocates for the status quo and supporters of the new port. Running in parallel will be a range of issues that will require further investigation, including environmental, traffic, social and logistical issues. Many of the issues have been aired before and a number of potential plans have not survived the electoral cycles and other forces that hit endeavours of this level. It is hoped that this Report and its future implementation will bring the certainty that has been missing in the past.
COVID-19 has created a very unique moment in time, one that has brought uncertainty, societal challenges and a breakdown of the old ‘normal’. Town Team Movement considered this to be a ripe time to discuss our societal priorities and opportunities to reshape how we plan our future.
Chelsea White and Lea Hiltenkamp, of Glen McLeod Legal, had the opportunity to attend Town Team Movement’s SHIFT Digi Conference at which a range of speakers explored how local communities, organisations and governments take this opportunity to do things better.
Session highlights included: a panel discussion around how clever town planning and the activation of public places can help to minimise the disruptive impacts of public works, as well as a discussion around how local communities can work together with developers and local government to create vibrant neighbourhoods.
The Northern Territory Environment Minister has released guidance papers on a new approach to biodiversity and carbon offsets. Rather than taking the conventional approach to environmental offsets as adopted by jurisdictions like Western Australia, the Territory has proposed a new ‘target-based’ model.
Offsets are a way of balancing the environmental impact from projects. In jurisdictions such as Western Australia, where an impact cannot be avoided or mitigated, proponents are instructed to either purchase, restore or protect an area of land of equivalent environmental value for the State or contribute to an offsets fund. In doing so, the scheme seeks to result in no ‘net loss’ to the environment.
The point of difference with the Northern Territory approach is that, rather than placing the ultimate onus for environmental protection on the government, the proposed scheme will require proponents to make a comparable contribution to progress regional or Territory-wide environmental targets. This approach is, according to the guidance papers, designed to avoid the perception that proponents are ‘buying’ environmental approval, as well as ‘opaque’ requirements for achieving no net loss. The Northern Territory cites academic criticisms of the conventional model that it does not deliver the desired outcome of no net loss to the environment due to a lack of specific strategic planning.
What is the target-based model?
The Northern Territory approach will use targets tailored towards achieving certain desired outcomes, such as protecting vulnerable species and ecosystems or reducing the spread of invasive weeds, among others. These targets will be developed through consultation with academic and environmental experts, community and industry stakeholders, and the Commonwealth government, amongst others. The exact offset required for a project will be identified to address the likely impact of the project, such as those arising from its location. In comparison, according to the Territory Guidance paper, offsets under the conventional model are generally more broadly related to protecting the environment and are not tailored to achieve official State or region-wide goals. They may also be less specific to the proposed development.
Where a project is likely have an adverse impact, the proponent will be required to identify and contribute towards a suitable offset plan or plans. The contribution will be calculated using ‘simple and transparent rules’, dependent on the extent of the likely impact from the project, according to the guidance papers. Proponents will be allowed to implement offset requirements with the assistance of offset providers, who are more likely to be able to implement the targets on a larger scale.
The new Territory model is undergoing further development before being officially implemented. Time will tell whether this approach results in more a measurable benefit to the environment compared to conventional models.
The guidance papers on this topic can be found here <https://denr.nt.gov.au/environment-information/northern-territory-offsets-framework/what-are-offsets>.
I would like to thank all of those who have congratulated Glen McLeod Legal on its 8th Anniversary.
This is a time to be grateful to our clients, contacts and well-wishers. I am grateful for the loyalty of our staff and the support they receive from their families. We are grateful for how the business has performed in this unique year. No-one planned for COVID-19 and we had to play by ear how we responded. We managed during March, April and May and the business kept going without reduced working hours or enforced leave. We are pleased that, with the end of the Financial year behind us, the trend seems to be positive as far as work-flow is concerned.
In the first part of the Financial year, we were delighted to celebrate the admissions to practice of Lea Hiltenkamp and Chelsea White.
I am also very grateful for the support of our more senior lawyers Connor Fisher and Jess Hamdorf, as well as our Administrative Team, two excellent Practice Managers, Janine Upson and Bridget Thorpe, who job share, with the reliable support of Secretary Brooke Plummer.
We are also grateful to have had with us for most of this year, three capable part time law clerks, Emiko Watanabe, Thomas King and Daniel Morey. They are studying law at University but fortunately find the time during their busy week to work with us.
We are fortunate to live in Australia and in WA, in particular, where we have had no community transmission of COVID-19 for some time. The Country and State are blessed to have the resources to support in large measure the economy following the initial shock of these difficult times. At the same time, we do not assume that the COVID-19 pandemic is fully behind us.
The team at GML is ready to meet the challenges, among other things, by adhering to the firm values, in particular team work and client focus (there is a full statement of our values here). We can look forward to a successful 2020/2021 and wish our clients, friends and supporters likewise.
Far reaching changes, including both procedural changes to the way planning law is administered and practical changes that will be of continuing relevance to developers, were introduced by the Planning and Development Amendment Act 2020 (WA) (Act). The Act received royal assent on 7 July 2020 and will amend the Planning and Development Act 2005 (WA) (PD Act).
Our previous blog article provided an overview of the Act as introduced in the Legislative Assembly. This article summarises the key changes to the Act as passed through both houses of State Parliament.
Definition of ‘significant development’
The new Part 17 of the PD Act creates a different approvals process for ‘significant developments.’ Under the Act, ‘significant developments’ may be referred directly to the Western Australian Planning Commission (WAPC) for determination.
The definition of ‘significant development’ has been amended to:
- Development that has an estimated cost of $20 million or more in the metropolitan region; or
- Development that has an estimated cost of $5 million or more outside of the metropolitan region.
This is a significantly wider definition than originally proposed, and in particular opens avenues for regional developments. However, we note that this definition relates only to development and does not contemplate strategic planning instruments, such as structure plans, activity centre plans or local development plans.
Default substantial commencement period reduced
The default period for substantially commencing ‘significant developments’ has been redefined to a period of 24 months from the date of approval. This is a reduction from 48 months as proposed in the original version of the Bill. This means development will need to commence earlier than previously anticipated or else approval will lapse. The WAPC still has the power to impose a longer or shorter substantial commencement period.
WAPC must undertake public consultation
The changes to the wording now strengthen the requirement for public consultation as part of the new ‘significant development’ approval pathway. Where previously public consultation was worded as discretionary, it is now a required part of the approval process.
The WAPC may also do ‘anything else’ it deems appropriate to ‘obtain a document, information, an opinion or any other contribution from any person or body’.
The Act now requires the WAPC to consult with the Department of Water and Environmental Regulation if the land is classified as contaminated and thereby subject to a Memorial under the Contaminated Sites Act 2003 (WA). While removing the express requirement to consult with the Environmental Protection Authority, the Act now expressly states ‘for the avoidance of doubt’ that the Environmental Protection Act 1986 (WA) prevails in the case of conflict.
Stricter guidelines on the process the WAPC must undergo to approve developments is a concession to the effectiveness of the Act as a ‘red-tape’ cutting measure. However, this balances the shorter substantial commencement period and wider significant development definition. The PD Act should now see more developments taking advantage of Part 17, and with that a greater transparency and certainty in decision making.
Roads, rail and other infrastructure are seen as one route out of the COVID-19 economic languor. There is talk of ‘fast tracking’ projects. Some have been on the drawing board for a long time. Now there is a sense of urgency; to get on with it.
A new Planning and Development Bill is now making its way through State Parliament. The Bill was described in its explanatory memorandum as both ‘an urgent response to the COVID-19 pandemic, as it relates to planning and development impacted by the greatest economic crisis since the Great Depression’ and the first tranche of a set of broader planning reforms.
The land for these projects has to come from somewhere. In Western Australia the Government doesn’t have to pay compensation before it enters onto private property and starts work on a project. This effectively means that the main takings statute, the Land Administration Act 1997, is ready made to complement the proposed fast tracking of the planning system. The compensation to the dispossessed landowners may take years to settle and be paid. Each case can become another story in a long history of stories about how the state behaves when private property is needed for a public work.
The film ‘The Castle’ has become a cultural touchstone in Australia for the property rights of the ordinary person in the street. It is a story of how tenacious ordinary folk prevailed in the face of stubborn bureaucrats wielding great power and of course, it is retold as a story based on fact, that had a happy ending.
We all know that in real life not all stories have a happy ending. Ordinary folk and businesses of all sizes find it hard to navigate the complex regulatory framework of compensation for the taking of their land for public works, such as roads, railways and other infrastructure. There are a number of reasons why this is commonly the case, including the power imbalance between the State and the land or business owner, particularly in regard to financial resources; lack of time; the mental stress of fighting the State for a long time; and the need to get on with life without the worry involved in a major argument with a monolithic adversary.
To be fair, I have no doubt after dealing with State bureaucrats in these matters for more than 40 years, that many of them have sound motivations in the way they do their job, which is principally to look after the interests of the State. That, in a sense, is for the benefit of everyone. The ‘public interest’ it is sometimes called. The problem is that perhaps too often in this process the rights of the landowner are not always respected and many people perceive that they have not been fairly dealt with by the system.
The ordinary landowner is often affronted by the exercise of State power to take their land, even where it is said to be for the ‘greater good’. ‘Why me?’ is the instinctive reaction. ‘I did not invite this action. This is very inconvenient and I want to be compensated properly’. This is despite the State following well used procedures designed to inculcate fairness into the system. Why the system may not always live up to expectations that it will be fair might be better left to those who understand the organisational psychology of state apparatus, which is somewhat beyond my expertise as a lawyer working in the area of governmental takings for public works.
Usually, the Government response to complaints about the takings process is that compensation is payable. It is just a question of assessing the compensation and we do our best to make it fair. ‘There’s the rub’ and a great source of trouble. The State’s idea of what is fair compensation and the expectation of the landowner can be vastly different. Assessing compensation has a number of moving parts and is complex. This is particularly so when the property is used for a business or is specially adapted for a particular use or has some unrealised potential that in time would have matured to the benefit of the owner, had it not been for the taking.
Often the ‘public interest’ and what the State can allegedly afford is used by it to justify trying to cut compensation to the quick. This, of course, is a one sided view. The reverse is that if the State can’t afford it, how can the ordinary home or business owner who is seeking compensation?
Negotiation with the State is an option and can bring about a sound result. Unfortunately, negotiation does not always end well for the landowner. The gap between what the State is prepared to offer and what the owner is prepared to accept can be too great and if it is significant in monetary terms, litigation may be a realistic option. When the response to a State offer is, in the words of the hero in ‘The Castle’, Darryl Kerrigan, ‘Tell him he’s dreamin’, it may be a case of ‘game on’. Darryl eventually went to Court to seek a just outcome and that is a course of action open to everyone in our society. In Western Australia, there are even two options: the State Administrative Tribunal or the Supreme Court.
A well advised landowner will know that litigation is what you do when all else fails. It takes time, can be expensive, stressful and exhausting. Sometimes part of the cost is recoverable but not always. Early payment of part of the compensation may be possible, which can help fund the case for the landowner. Make no mistake however, litigation is not for the faint-hearted.
Why then do people litigate to get fair compensation? It comes down to commercial reality and to some extent, justice. Pain is needed if there is to be a gain on both of these counts.
It is not always necessary to go all the way to a court hearing after proceedings have been started. You can negotiate a resolution anywhere along the way and the system encourages that through compulsory mediation, which in 80 to 90 per cent of cases in Western Australia, is successful or partially successful. ‘Success’ usually means some compromise but often the process is worthwhile.
Why are compensation cases so difficult? There is no simple answer, but it often comes down to differing views on how the land should be valued. Should it be on the basis of its current zoning or its potential zoning? The parties may differ on what is the highest and best use. Various experts, including town planners, engineers and environmental consultants may be needed to support the case and above all, the parties must have valuers acting as expert witnesses.
Here are some tips. Get good legal advice early. Lawyers should advise on your legal rights and where other experts are needed, who you should engage and how they should be instructed. Do not settle on the basis of what a valuer advises, if they have been engaged by the taking authority. Also, it is generally better to pay a consultant on the basis of a fixed fee or hourly rates rather than a percentage of the amount that is recovered for you. Tempting as that may initially be as a deal, it is better to keep your interests and those of the adviser separate.
In the end, getting to a just outcome can come from negotiation and it is not always necessary to go to court. It is important, however, to be well advised from the beginning of any engagement with the state, when it is seeking to take your land for a public work.
Major planning reforms were announced by the State Government in May 2020 with the stated intention of streamlining development and simplify the planning system. The proposed amendments are intended to result in immediate and substantial changes to the regulation of some aspects of land development in order to get significant ‘shovel ready’ projects underway and assist in the State’s economic recovery.
In this article we give an overview of the proposed new Part 17 of the Planning and Development Act 2005 (WA) (PD Act) and make some comment on these proposals, insofar as they relate to ‘significant developments’. Although the Planning and Development Amendment Bill 2020 (Bill) is divided into 17 parts, only one of them is particularly relevant to the streamlining of the planning system, that is Part 2 ‘Special provisions for COVID-19 pandemic’. That part will insert the new COVID measures as Parts 17 and 18 of the PD Act and have effect on the day after the Bill obtaining royal assent.
We note that while the proposals are aimed at the development process, other aspects of planning, such as subdivision and structure planning, are not addressed. The focus on development may assist to expedite the approval process for in-fill development involving construction, for example mixed use buildings. Major proposals involving subdivision and associated processes such as structure planning do not fit within the framework of the Bill. The Bill could be enhanced by expanding its range to include such proposals.
Faster development application process for ‘significant developments’
The new provisions are intended to be interim in nature and apply in the 18 months that follow assent. According to the Department of Planning, Lands and Heritage fact sheet on significant developments, a Special Matters Development Assessment Panel, which is provided for in Part 3 of the Bill, will be established and become the decision-maker for complex development proposals.
The changes establish the Western Australian Planning Commission (WAPC) as the interim decision-making authority for all ‘significant development’ in regard to which applications are made within the 18-month period (referred to as the ‘recovery period’) which starts on the day after assent. To be considered a significant development the proposal must have an estimated cost of at least $30 million and:
- incorporate 100 or more residential dwellings, of a kind to which the R-codes apply; or
- include a minimum of 20,000sqm lettable area of commercial floor space.
Developments must be substantially commenced within a period specified in the approval or if no time is specified, then within 48 months of the date of approval. Where development is not substantially commenced, the approval will lapse. The term ‘substantially commenced’ adopts the definition of that term in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). Unfortunately, that definition is tautological and an examination of what constitutes substantial commencement would need to be the subject of a separate article.
The primary matters the WAPC must consider when determining a development application are as follows:
- the purpose and intent of any planning scheme that has effect in the locality to which the development application relates; and
- the need to ensure the orderly and proper planning, and the preservation of amenity, of that locality;
- the need to facilitate development in response to the economic effects of the COVID-19 pandemic; and
- any relevant State planning policies and any other relevant policies of the WAPC.
In becoming the decision-making authority for significant developments, the WAPC’s power has been expanded significantly. For example, the proposed amendments to section 275 state that the WAPC is not bound or restricted by any ‘legal instrument’ that would otherwise apply in relation to the making, consideration or determination of the development application. Also, under the Bill the WAPC is not limited to considering planning matters when determining development applications. Examples of the legal instruments that will not bind the WAPC in its decision making include local planning schemes and by-laws. Therefore, the WAPC is not bound by zoning provisions, although in the case of residential development, it must have due regard to the Residential Design Codes (R-Codes).
However, the WAPC is prohibited from extending the period within which the development must be substantially commenced. The intention of this provision, according to the explanatory memorandum, is that a development approval granted in the recovery period is a ‘use-it-or-lose-it’ opportunity.
While the WAPC must determine the development application as soon as is reasonably practicable, there is no requirement to determine the application before the end of the recovery period.
Undetermined development applications made before the commencement of the recovery period may be approved under the Part 17 provisions, if the applicant gives notice to the Minister for Planning Lands and Heritage (Minister). If the Minister is satisfied that the application involves issues of State or regional importance and makes a recommendation to the Premier to that effect, the Premier may then refer the matter to the WAPC for determination.
An applicant’s right to a review in the State Administrative Tribunal (SAT) remains unchanged under the amendments. However, the significance of the WAPC’s interim powers appear to be reflected by the new requirement of the SAT to include at least one judicial member when reviewing the WAPC’s determination of a development application.
Avoiding conflict of approvals
A major amendment is a new conflict resolution process which applies where applicants require multiple approvals from various Government departments, agencies and decision-makers, and may have contradictory or inconsistent conditions imposed by various decision-makers. An example given in the explanatory memorandum accompanying the Bill would be the requirement to obtain a liquor licence.
In such cases, a decision-maker or applicant must not proceed unless a direction has been given by the Minister on how to do so. Once a direction has been given, a decision-maker or applicant must comply even if it would normally be unlawful or invalid.
Environmental legislation, in particular the Environmental Protection Act 1986 (WA) and Contaminated Sites Act 2003 (WA) applies to the determination of a development application under Part 17. However, conflicts may be resolved as mentioned earlier in this article.
Good design to be at the centre of planning and development in the future
The Second Reading speech indicates that the focus on good design is intended to address community concerns around development and upzoning of areas in a way which may not have always been complementary to the existing streetscape or amenity of the area. The focus on good design also purports to overcome issues in local governments, which have not implemented clear design guidelines, in order to achieve minimum design standards across all local government areas.
The provisions of Part 17 of the Bill provide for some unusual arrangements for accelerating the processing of development applications. However, the Bill does not address complex proposals that may involve a broader range of planning instruments, including subdivision and structure planning. It would be desirable to broaden the scope of the Bill so that the planning system can respond flexibly to the need for the early approval of ‘shovel ready’ developments that would benefit the State economically.
The ‘Review of the Waste Levy – Consultation Period’ and ‘Closing the Loop: Waste Reforms for a Circular Economy Consultation Paper’ were released together in February 2020. The Department of Water and Environmental Regulation is seeking submissions from key stakeholders on a variety of questions and issues relating to the waste industry. The submission period for both consultation papers has been extended to 15 July 2020.
Broadly speaking, the papers are focused on regulatory reform to address the indefinite stockpiling of waste or its redirection to regional landfills in order to avoid the waste levy.
The papers are both aimed at recovering more waste materials so that they can be injected back into the economy. However, while these reforms address instances of waste levy avoidance and may increase material available for recovery, there is little discussion or consideration of how the market can be incentivised to increase the uptake of recovered materials.
A target of the State’s Waste Strategy 2030 is to increase material recovery by 75%. How can material recovery be increased in Western Australia? Successful waste recovery results from a combination of policy and legislative measures, which include financial incentives. Some steps in the right direction in Western Australia include the waste levy, Main Roads sustainability policy and various policies of regional councils.
The Victorian road authority, VicRoads, has prepared sustainable procurement guidelines to promote the uptake of recycled materials. Specifications for pavement materials and bituminous mix designs provide for the use of recycled materials in the construction and maintenance of the road network. VicRoads has also prepared a business case to demonstrate the competitiveness of local recycled products in pavement construction and provides recommendations for local councils to procure local recycled products for pavement construction.
In Wales, the Government implemented the Waste Infrastructure Procurement Programme in 2008 which guided local authorities through project development and procurement processes to achieve economies of scale for the treatment of waste. The programme ensured consistency across waste management by local authorities and provided for authorities to join together in waste management consortiums to attract more competitive tenders. This programme has reduced costs and ensured waste infrastructure met high standards for costs, efficiency and environmental impacts.
The above-mentioned examples provide successful case studies where government policy has incentivised resource recovery. For example, in 2016-17, Welsh local authorities only reached 25% of their annual landfill allowance. In Victoria, approximately 80% of construction and demolition waste was recovered in 2017-2018, with material such as concrete being crushed into aggregate to be used in road subbase, drainage and landscaping.
It is not a secret that successful waste recovery requires a combination of removing barriers, incentivising material recovery, influencing culture and increasing market demand for recycled materials. The reforms which are the subject of the consultation papers focus on capturing materials lost to landfill and discouraging indefinite stockpiling of materials. We look forward to seeing consultations on reforms relating to other elements in the waste recovery process, such as increasing market demand for recycled materials, in order to achieve Waste Strategy 2030 targets.
 https://www.infrastructurevictoria.com.au/wp-content/uploads/2019/10/International-and-Australian-comparisons-Alphabeta-September-2019-FINAL-REPORT.pdf; https://ec.europa.eu/environment/gpp/pdf/news_alert/Issue54_Case_Study111_Wales_Waste_Infrastructure.pdf
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  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. The phrase ‘a factor affecting the use or enjoyment’ can cover both present and future use or enjoyment of the land. 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  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.
 Presiding Member of the Metro Central JDAP v 43 McGregor Road Pty Ltd  WASC 98 at .
 Presiding Member of the Metro Central JDAP v 43 McGregor Road Pty Ltd  WASC 98 at .