Submission On The Proposed Strata Titles Act Reform Review of Consultation Paper 31 October 2014

Strata Titles Act Reform: Consultation Paper 31 October 2014 LPGA Submission
Local Government Planners Association

CONTENTS
1. Background
2. Part 1: Community Title Schemes
(a) General comments
(b) Submissions on Proposals
3. Part 2: Mixed Use Development in a Community Title Building
4. Part 3: Leasehold Strata Schemes
5. Part 4: Termination of Schemes

BACKGROUND
At the request of Landgate, the Local Government Planners Association (LGPA) has reviewed the Strata Titles Reform Act Consultation Paper (dated 31 October 2014) produced by Landgate (Consultation Paper), in particular the proposed introduction of Community Title tenure. The reforms proposed in the Consultation Paper are extensive, and are expected to substantially affect the way in which strata titled and survey-strata titled land is dealt with in Western Australia through legislative amendments to the Strata Titles Act 1985 (WA) (STA). LGPA has focused its review of the discussion paper on how the interests of local governments will be adversely impacted by the proposed changes, and respectfully suggests certain modifications be made to any proposed legislation.

It is notable that larger Community Title Schemes, in particular schemes with multiple management tiers, will usurp some local government functions. It is possible that the reformed provisions will facilitate strata schemes which incorporate parks, roads and other facilities, services and infrastructure into the scheme. Accordingly, a number of functions traditionally performed by local governments may become the role of Community Corporations and Second-Tier Corporations (and possibly even Strata Companies) under the reformed legislation. On this basis, LGPA is of the opinion that local government should, where appropriate, have greater statutory powers in respect of the regulation of strata developments both in the approvals process and the running of established strata schemes, particularly Community Title Schemes. The submissions contained herein are reflective of and justified by the expectation that Community and Second-Tier Corporations could be quasi-local government functions.

LGPA provides the following submissions in respect to each of the proposals made in the Consultation Paper. The focus of these submissions is the anticipated impact of the introduction of Community Title tenure on local government functions, in particular the interplay between the reforms and the powers of local government planners to control development.

LGPA thanks Landgate for the opportunity to comment in respect of the proposed reforms and looks forward to continued discussions with Landgate and the WA State Government to achieve workable, effective and appropriate legislative amendments.

PART 1: COMMUNITY TITLE SCHEMES
GENERAL COMMENTS
It is expected that the Western Australian Planning Commission (WAPC) will be the primary decision maker in respect of approving Community Title Schemes, through the exercise of the existing power of the WAPC in respect of subdivisional approval 1 within the framework of the reformed strata legislation. LGPA acknowledges that the STA, in its current form, requires certification from the WAPC for registration of strata plans and certain survey-strata plans2, but emphasises that since 26 May 2009, this power has been exercised by local governments under delegation from the WAPC.

While consultation with local government is a regular part of the WAPC approving any strata plan or survey-strata plan under the current scheme, LGPA would like to ensure that the new legislation requires the approval of the local government for any strata, survey-strata and Community Title. While there has been significant discussion and consultation surrounding the functions, role and approval authority of the WAPC under the reforms, there is a distinct lack of reference to the part that local governments will play in the reformed STA. This is evidenced in the following:
 It is proposed that WAPC approval is required for permissible variations to a registered Community Scheme, with no mention of referral to the local government;
 It is proposed that WAPC approval is required for altering and amending Community Development Lots in certain circumstances during the development period, with no mention of referral to the local government; and
 WAPC, rather than the local government, will be approving the Development Statement for strata proposals, with no mention of a requirement to refer to the local government.
1 Found in s. 135 of the Planning and Development Act 2005.
2 See s. 5B of the Strata Titles Act 1985.

LGPA submits that the proposed reforms should mandate additional local government involvement in the approval of (including approval of alterations to) Community Schemes, Community Development Lots and Development Statements.

It is possible that local governments may be better placed than the WAPC to assess certain aspects of a Community Title Scheme. Community Title Schemes and in particular Development Statements, may address the provision of facilities, amenities and infrastructure, and have certain planning functions (such as providing for streetscapes, architectural and landscaping themes) which would otherwise be the role of the local government. Accordingly, it is appropriate that the local government has a significant degree of control in regulating the approval of Community Title Schemes, and also possibly the operation of those schemes.

Section 142 of the Planning & Development Act 2005, presently being the central mechanism for referral to local government in subdivision applications, is insufficient to ensure local government consultation in the exercise of the proposed new powers of the WAPC with respect to new concepts which may not constitute subdivision, such as Development Statements.

LGPA urges that the proposed new legislation includes an express requirement that local governments are consulted in the process of approving all aspects of Community Title Schemes, in particular Development Statements. In addition, LGPA suggests that it may be appropriate for the legislation to be drafted in a manner which gives the approval power in respect of Development Statements to local governments rather than the WAPC. In the alternative, the legislation must (in consideration of administrative principles relating to the fettering of discretion) require that WAPC gives due regard to any local government comments following consultation.

Further, LGPA encourages the legislature to consider the appropriateness of local governments having additional powers (distinct from those given to the WAPC) in relation to the running and operation of Community Title Schemes after the approval thereof.

SUBMISSIONS ON PROPOSALS
Proposal 1
In principle, LGPA supports the amendment of the STA to permit the creation of Community Title Schemes managed by a Community Corporation. This support is however contingent upon local governments being vested with additional powers which enable them to exercise a degree of control where appropriate, in relation to the creation and running of Community Title Schemes.

Proposal 2
LGPA supports the amendment of the STA to facilitate the mixing of strata and survey-strata schemes in an integrated subdivision or development, but requests that local governments (in conjunction with the WAPC) be given a wide discretion to determine the appropriateness of the mixing of strata and survey-strata schemes in the circumstances of each particular application.

Proposal 3
No comment.

Proposal 4
LGPA agrees that the inclusion of two or three levels of management will facilitate the efficient management of “large-scale” and “complex” subdivision and development proposals, but is unsure as to how this will be implemented. The legislation should either:
(a) clarify that developers have the ability to elect to create two or three management levels; or
(b) specify clear criteria (or prescribe criteria which can be set out in regulations made under the reformed legislation) against which it can be determined how many management levels are necessary. For example, it could be specified that any Community Title Scheme with greater than 200 lots must possess three management levels.

LGPA would favour an approach whereby a particular applicant can have as many management levels as they deem necessary or desirable. This would allow a greater flexibility and permit the number of management levels to be tailored to the specific Scheme, thereby increasing the likelihood of effective and efficient governance. For example, if it was mandatory that any scheme with greater than 200 lots have three management levels, a Scheme with 250 identical residential dwellings may not benefit from a third tier of management, and instead this additional layer would be administratively burdensome and increase the expense of running the Scheme. Alternatively, a scheme with 150 lots may only be permitted to have two levels of Management, which could be inappropriate if those lots comprised multiple different uses. There would be difficulty in drafting legislation or regulations which apply to every Scheme appropriately.

Accordingly, LGPA favours a more flexible approach which permits the number of management levels to be determined on a case by case basis. It is suggested that the applicant or developer submit the number of management levels proposed as part of the approvals process. The local government should be vested with a power to require a certain number of management levels that it deems appropriate in the event that the local government takes a different view than that of the developer or applicant.

The provision of a policy by the WAPC or local governments setting out criteria as to when two or three management levels are appropriate may also be beneficial in assisting developers in designing Community Title Schemes.

Proposal 5
No comment.

Proposal 6
No comment.

Proposal 7
No comment.

Proposal 8
No comment.

Proposal 9
While there are clear benefits to not requiring common property at each level of a Community Title Scheme, there are also risks associated with this proposal. LGPA notes that common property is often an essential part of the amenity of strata and survey-strata schemes, and large Community Title Schemes which do not provide for common property for use as parks and other facilities would not lead to positive planning outcomes. Accordingly, LGPA suggests that while the legislation may not require common property at every level of a Scheme, the legislation should empower local governments, when reviewing proposed Schemes, to require the provision of common property as appropriate for orderly and proper planning.

LGPA is also concerned that if common property is optional at all levels of a community scheme, it is conceivable that a development could be created without common property or the intent of operating as a strata complex with shared areas, and instead use a Community Title structure so as to (through the use a Development Statement) evade planning controls which would otherwise apply. This risk would be avoided by ensuring that local governments have sufficient powers to require the provision of common property (and approve and amend Development Statements).

Proposal 10
The LGPA agrees with Proposal 10, and strongly supports the position that ownership of common property relative to unit entitlements is preferable so as to maintain consistency with existing strata and survey-strata schemes.

Proposal 11
No comment.

Proposal 12- Proposal 14
The LGPA agrees in principle to Proposals 12–14. It is unclear at this stage how the legislation will be drafted so as to distinguish access, but LGPA suggests that it may be overly restrictive to only permit owners and occupiers of land within the Community Scheme or Secondary Community Scheme to access to Community Property and Secondary Community Property respectively. It may be more appropriate that all invitees of owners and occupiers, and possibly even the public at large, have access to the Community Property and Secondary Community Property. It may be appropriate that roads and large parks within Community Title Schemes be accessed by the public. For example, in Community Title Schemes with commercial aspects, it may be appropriate that the public has access to the roads (which would presumably be Community Property) within the Scheme to access any commercial areas, and the ability to park on the Community Property while visiting the commercial areas of the Scheme. Further, local government rubbish collection trucks may need to access areas within the Scheme, utility providers may need to carry out maintenance and repairs on infrastructure within the Scheme. Access rights for those who do not own or occupy land within the Community or Common Property area should be clear and transparent, perhaps through notice in the Management Statements and appropriate signage being required to be erected in the Scheme area. The Schemes should also be required to take out appropriate public liability insurance in respect of any areas accessed by the public at large, and indemnify certain entities which are required to enter the Community or Common Property areas to carry out works.

Proposal 15
The LGPA agrees with Proposal 15, subject to the below comments in respect of local government powers to approve and amend Development Statements.

Proposal 16
The LGPA agrees that the development statement must be approved by the WAPC before being registered at Landgate, however, it submits that the development statement should also be approved by the relevant local government. The requirement for approval by both the WAPC and local government would ensure the development controls and required developer disclosures are sufficient, relevant and appropriate in the context of the specific location of the community title scheme, the long term planning objectives of the relevant local government and confirm to the community values and expectations.

LGPA is especially concerned with the impact that the creation and registration of a Development Statement would have upon controlling development within a Community Title Scheme. It appears to be contemplated that a Development Statement could have some of the status and effect of a Local Structure Plan. Given that local structure plans are drafted by local government, together with the relevant landowner or developer, it is vital that any Development Statement is likewise prepared primarily by the local government, or at minimum with a significant consultation with the local government.

Proposal 17
LGPA does not object to the proposed creation of Development Statements which set out land use and development controls, but is extremely concerned about the intended legal effect of any Development Statements. It would appear that certain stakeholders and the legislature are keen to push forward with the creation of Development Statements which act as quasi planning instruments. LGPA is of the view that local governments are best placed to draft Structure Plans which adequately meet the requirements for planning within a Community Title Scheme. The preparation of structure plans by a local government or at least their approval by a local government avoids the risk of inappropriate outcomes for the wider community arising from the drafting of Development Structures which may contain planning and development contracts by the same developer or applicant who is to be bound by them. If Development Statements are provided for in the legislature, LGPA would prefer that there be indicative guidelines for developers for the preparation of Management Statements and that the Development Statement not have any statutory effect on a decision maker. Any Development Statement, irrespective of the legal effect it will have, would benefit from adequate consultation with local governments in the drafting and approval process.

Proposal 18
Whether Development Statements are to act as quasi-Structure Plans or be guidelines for developers (and purchasers) as to the nature of the proposed development, LGPA agrees with Proposal 18 subject to the inclusion of the following requirement “as appropriate and required by the WAPC and the relevant local government authority”. LGPA believes the local government are appropriately placed to assess the requirements of Development Statements within their area. This format and the inclusion of that information in a Development Statement is appropriate.

Proposal 19
LGPA strongly objects to the proposal that a Development Statement be given the status of a planning instrument once approved by the WAPC. This is wholly inappropriate; Development Statements are not planning instruments and should not be treated as such. The consultation paper proposes that Development Statements are to be drafted by developers, and it is improper that developers be responsible for setting out any planning and development controls without the involvement of the traditional planning authority, being the local government, overseeing development. It is contrary to fundamental planning concepts that the local government in the area of a development should not have the power to regulate that development. It is anticipated that Development Statements having the status of a planning instrument upon being given WAPC approval would result in poor planning outcomes. It would not appear that due regard has been given to the importance of planning controls when suggesting that Development Statements be deemed to have the status of planning instruments.

If the legislation does dictate that a Development Statement, once approved by the WAPC, will become a quasi-planning instrument, the appropriate local government should be involved in the creation of the Development Statement at least to the same extent as the WAPC. It is proposed that Development Statements are to regulate numerous aspects of development which would otherwise be within the scope of local government schemes and
powers, such as construction of facilities, sequence and timing of infrastructure, the land use (i.e. a commercial centre, residential complex or retirement complex) and the nature of architecture and landscaping within the development. It is not appropriate that such standards and requirements be dictated by a Development Statement proposed by a developer rather than the relevant local government. The relevant local government is more aware of any requirements and standards (even more so than the WAPC), and accordingly is better placed to assess a Development Statement which includes maps, plans and specifications of the proposed roads and lanes within a Community Title Scheme. It is fitting that the local government have the express power in any legislative reforms to negotiate and approve all Development Statements.

LGPA also suggests that orderly and proper planning principles would dictate that the local government is also empowered to amend Development Statements from time to time. While it is accepted that other stakeholders, in particular developers, are expected to be unwilling to accept the insertion of such a provision, LGPA emphasises that good planning outcomes cannot be achieved through a static document binding development. In addition to the proposed ways in which a Development Statement can be amended, LGPA proposes that local governments should also have a power to amend Development Statements in certain prescribed circumstances to ensure that the Development Statement remains relevant, modern, appropriate and in line with planning schemes and principles as apply from time to time. LGPA would accept a provision which required the consent of the Community Corporation, or an order from the State Administrative Tribunal in the absence of such agreement from the Community Corporation, for the local government to amend a Development Statement.

Proposal 20
It is of great concern to the LGPA that Development Statements may be binding on decision-makers, and LGPA rejects this proposal.

It is assumed that the decision maker could foreseeably be the WAPC (where a Community Lot or Community Development Lot is subdivided) or the local government, in the case of a development approval. If the Development Statement is akin to a Management Statement under the current regime, binding decision makers with Development Statements would be impermissible. If the Development Statement is, in essence, a contract between the developer and purchasers of strata lots (in the same way as a Management Statement is), the WAPC and local governments should not and cannot be bound by that Development Statement. To purport to bind decision makers in their exercise of statutory approval functions by means of a contract between private parties would be an inappropriate (and likely unlawful) fetter of the discretion of the WAPC or local government. If the WAPC or local government were to be bound by the Development Statement, it would be necessary for each particular Development Statement to be made into law (perhaps as a schedule to the applicable planning scheme in a similar manner to Development Areas) and gazetted. This could be effected through the applicable local government channels. If it were the local government who was responsible for the preparation of the Development Statement (being a planning instrument with statutory force and effect), it would also be necessary for the local government to have the power to draft and negotiate the drafting of the Development Statement, approve the Development Statement and also have a power to, at a later time, amend the Development Statement (perhaps with the approval of the State Administrative Tribunal as discussed above).

If LGPA’s comments in respect of rejecting Proposal 19 and 20 outlined above, or alternatively giving local governments power to approve and amend Development Statements, are not inserted into the proposed reforms, LGPA suggests in the alternative that a provision be inserted into the proposed legislation which ensures that any applicable planning laws and schemes will not be effected or precluded from operation by the registration of a Development Statement. LGPA submits that a provision is required which expressly clarifies the supremacy of planning laws, including local government planning schemes, where those planning laws are inconsistent with the Development Statement. It is requested that the legislation makes it an implied terms of all Development Statements that planning laws will render inconsistent provisions of a Development Statement void to extent of any inconsistency between any planning law and the Development Statement. This supremacy should also extend to any changes to any planning scheme or planning law which occurs prior to the validity period of the Development Statement, contrary to what is proposed at present.

In the event that the revised legislation fails to provide the local government with powers to approve and amend Development Statements, LGPA urges against any provision which purports to have the effect of binding decision makers to refer to or make planning decisions in accordance with the Development Statement. Unless local government can approve and amend the Development Statement as necessary from time to time, it would be wholly improper for the local government to be bound by Development Statements, which are otherwise private contracts between developers and purchasers for future development plans.

LGPA is concerned that, if decision makers are bound by Development Statements, and local governments are not provided with sufficient power to approve (or reject) and amend the Development Statements, there may be a situation where developers essentially write their own development controls. Unless local governments are empowered to approve and amend Development Statements, are not bound by Development Statements or planning schemes are expressly made superior to Development Statements, developers will write their own Development Statements and be bound only by the controls they have placed on themselves (and which they may also have a power to amend in some circumstances in any event under the proposed new legislation). This outcome would be entirely unsuitable and improper, and is unlikely to result in good planning decisions for the benefit of the wider community.

Further, LGPA is concerned that developers may be able to use Development Statements and large strata complexes to establish their own development controls and avoid compliance with broader planning laws and local government planning schemes. The legislation must ensure that this is not possible, through making Development Statements subservient to planning laws, or through ensuring that local government has adequate control to approve (or reject) and amend Development Statements.

Proposal 21
LGPA rejects Proposal 21on the basis that the local government, together with or instead of the WAPC should be given the power to approve, conditionally approve or reject Development Statements. The rationale for this power being given to local governments is outlined in LGPA’s submission in response to Proposal 19 above.

Proposal 22
LGPA fully supports Proposal 22, subject to the power being given to both the WAPC and the local government. LGPA has identified the risk of Community Title Schemes being used to create gated communities or evade planning laws which would otherwise apply, and accordingly is keen to secure good and orderly planning by ensuring that proposals to create Community Title Schemes in appropriate circumstances can be rejected.

Proposal 23
LGPA agrees that the SAT would be the appropriate forum for review of exercises of discretion by the WAPC and the local government if the above submissions are incorporated into the amended legislation.

Proposal 24
The reformed legislation should provide for Community Lots to be changed or further subdivided where appropriate (subject to WAPC and local government approval). It is preferable that the legislation explicitly sets out the process for this to occur, so that all interested parties are clear as to what is required.

Proposal 25
No comment.

Proposal 26
LGPA agrees with Proposal 26, subject to approval also being required by the relevant local government.

Proposal 27
LGPA rejects the proposal that the WAPC should approve any plan to subdivide community lots if that plan is consistent with the Development Statement, LGPA does not support Development Statements being treated as planning instruments or binding decision makers in any capacity (see submissions on Proposal 19 and Proposal 20 above).

If a Development Statement is given the effect of a planning instrument, the local government approval, or at a minimum consultation with the local government, should be required. The WAPC should not be the only authority who is consulted in respect of the subdivision of Community Lots.

Further, LGPA strongly opposes the apparently mandatory nature of Proposal 27. WAPC and the local government should be given a discretion to approve, approve subject to conditions, or reject a proposed subdivision as appropriate in the circumstances. The legislation should reflect this discretion and read that the WAPC and the local government ‘may’ approve a plan of subdivision of a community lot. The wording of the proposal, being that ‘WAPC should approve the plan etc if consistent with the development statement’ is not suitable. It does not ensure that planning considerations are taken into account and the best outcome will not be achieved if decision makers are bound to approve any plan of subdivision that complies with a Development Statement. This also makes the seeking of WAPC approval an exercise in administrative box-ticking without adding any real value to the proposed development, because there is no power to impose conditions or reject undesirable proposals which comply with the Development Statement.

Proposal 28
Reiterating the points previously raised, LGPA rejects Proposal 28 on the basis that decision makers ought not to be bound by Development Statements. The decision makers should consider legal planning instruments and take principles of orderly and proper planning into account when determining the appropriateness of a proposed subdivision, not reject proposals for want of compliance with a Development Statement which may be outdated or inappropriate.

In the event that Development Statements do have the effect of a planning instrument and the local government does have the power to approve and amend Development Statements, LGPA submits that the WAPC should be required by the amended legislation to consult the local government in respect of any changes to the Development Statement so that, if appropriate and at the discretion of the local government, the Development Statement is made consistent with the proposed subdivision of the Community Lot.

Proposal 29
If the Development Statement is not binding on any decision makers, the Community Corporation may freely change the Development Statement as it wishes, and then submit proposals to subdivide any Community Lot in accordance with the Development Statement (though this would not be a requirement of the WAPC).

If the Development Statement is to have some planning effect, LGPA disagrees that the consent of the Community Corporation is required for a change to the Development Statement. The Community Corporation is not a planning authority, and as such it is wholly unacceptable that the Community Corporation has the power to change (or refuse to change) a document which has the status of a planning instrument. Only the local government (and possibly the WAPC) should have the ability to implement and change development controls. While the local government may consult with the Community Corporation and consider their opinion, and the Community Corporation should be able to apply to the local government to amend a Development Statement, ultimately it should be at the discretion of the relevant local government authority to effect any amendments to a Development Statement.

Proposal 30
No comment.

Proposal 31
LGPA does not agree that Development Statements should bind decision makers.

Proposal 32
LGPA does not agree that Development Statements should bind decision makers. If Development Statements is to have some planning effect, LGPA submits that the local government should have the power to amend the Development Statement, as per the submissions in respect of Proposal 29 above.

Proposal 33
No comment.

Proposal 34
No comment.

Proposal 35
No comment.

Proposal 36
No comment.

Proposals 37
No comment.

Proposals 38
No comment.

Proposal 39
No comment.

Proposal 40

LGPA supports Proposal 40 in that a Community Corporation should have similar functions to a Strata Company, but notes the possibility of additional powers being given to Community Corporations as discussed in the submissions relating to Proposal 41 below.

Proposal 41
LGPA acknowledges that there is some possibility that a Community Corporation with additional powers and functions to a Strata Company under the existing STA could facilitate the more effective and desirable running of a Community Title Scheme. There are concerns however, that a statute empowered Community Corporation may exert excessive power, in that it is unchecked and can create and enforce additional restrictions by amending the community management statement and infringe upon local government local laws and the personal liberties of the owners and occupiers of the Scheme.

Given this position, any additional powers given to a Community Corporation should at all times be subservient to the local government local laws, and the power of the local government to approve and amend Community Management Statements. See comments in respect of Proposal 50 below.

Proposal 42
No comment.

Proposal 43
No comment.

Proposal 44
No comment.

Proposal 45
No comment.

Proposal 46

No comment.

Proposal 47
No comment.

Proposal 48
No comment, but for that local government approval should be required to amalgamate Schemes within a Community Title Scheme.

Proposal 49
The LGPA agrees with Proposal 49, and would be eager to comment on the specific wording of the Schedule when it becomes available. LGPA urges that the Schedule should include that local government local laws remain binding on Schemes irrespective of any Community Management Statement and that consultation with and approval from the appropriate local government be required for any Community Management Statement or amendment thereof.

Proposal 50
While LGPA opposes the underlying premise of Proposal 50, being that there should be some binding effect of a Development Statement, for clarity it agrees that the Development Statement and Community Management Statement should be consistent.

LGPA also suggests that the legislative reforms specify the relationship between the community by-laws, found in community management statements, and any relevant applicable local law. Currently, strata by-laws have minimal cross-over with local laws, as they account for the maintenance of small areas of land (being one strata scheme) and involve a limited number of residents and owners. It is foreseeable however, that management statements relating to Community Titles Schemes would be broader in their scope and applicability than current management statements, which only regulate one strata plan or survey-strata plan. By-laws in relation to Community Title could purport to govern additional activities not currently contemplated by management statements, for example conduct in parks and on other facilities which form part of the common property. The increased applicability of by-laws may give rise to a situation where the by-laws of a strata scheme or Community Title Scheme are inconsistent with or directly contradict a local government by-law.

If it is accepted that larger, multi-tiered strata complexes and Community Title Schemes are likely to require additional internal regulation through by-laws in Management Statements of the like not previously used in Western Australia, the legislation should make provision for the possibility of a conflict between those regulations and local government by-laws. In that case, it is possible that the Management Statement would be void to the extent of any inconsistency with written law in any event. Regardless, LGPA suggests that a provision be made in the proposed reformed legislation that states that it is a term of all Management Statements that any by-law created therein will apply only to the extent that it is consistent with any local government by-law, and that any change in by-laws would render an inconsistent strata by-law inoperative.

In order to attempt to evade a situation where there is an inconsistency between a by-law in a Management Statement and a local government by-law, LGPA proposes that local governments approve any proposed Management Statements. It may be favourable to all parties that Management Statements be vetted by the appropriate local government to ensure that they are operative and enforceable, and consistent with local laws.

In addition, there may be circumstances where local government by-laws, which would ordinarily apply to certain amenities, infrastructure or facilities (such as roads, footpaths, parks and verges), will not apply to those amenities, infrastructure and facilities within a Community Scheme under the proposed legislation, because they are not owned or managed by the local government. The power of the local government in respect of regulating such amenities, infrastructure and facilities will be limited in these circumstances. For example, larger complexes with private roads may regulate parking and impose penalties for breaching the strata by-laws3, which is traditionally a local government function and regulated by local government by-laws. It would be even more appropriate that the local government approve the Management Statements and possibly also have a power to amend Management Statements after they have been approved, because the Management Statement may regulate aspects of the complex which would otherwise traditionally be within the scope of local government powers.

LGPA is aware that the private nature of a Community Corporation, Second-Tier Corporation and Strata Company renders them exempt from the bounds placed on local governments by statute, regulations and general administrative law principles. The nature of larger strata complexes and

3 With the approval of the State Administrative Tribunal under s. 42A of the current Strata Titles Act 1985.

Community Titles will encourage Community Corporations and Second-Tier Corporations to be empowered (through Management Statements and Development Statements) to exercise quasi-local government powers, for example by regulating development and personal liberties, such as behaviour in parks and on roads. Accordingly, LGPA suggests that it is both necessary and appropriate that Community Corporations and Second-Tier Corporations are regulated by local governments. This is best achieved through legislative provisions being included in the reforms which require local government approval of Management Statements and Development Statements, and any alteration thereof. It may also be suitable for the legislation to permit local governments, with the approval of the State Administrative Tribunal, to initiate amendments to Management Statements and Development Statements in some circumstances.

In addition, it is preferable that the reforms provide the local government with a power to exert a degree of control over the running and operation of large Community Title Schemes, which could be achieved in part by providing local governments with a statutory power to amend Management Statements. LGPA further proposes that local governments should have a statutory power to enforce Management Statements, so as if Community Corporations, Second-Tier Corporations or Strata Companies act in a manner which is inconsistent with the applicable Management Statement, the local government will have some recourse against that body. The local government should have explicit prosecution and enforcement powers against the Corporations to ensure that the provisions of Management Statements are carried out by Corporations. The roles which are traditionally performed by local government, such as the provision of parks, amenities, facilities and infrastructure, may be performed by Corporations in Community Title Schemes under the new legislation. It is thus appropriate that local governments have a power to oversee and enforce the provisions of Management Statements to ensure that strata complexes and the associated infrastructure and facilities are properly maintained. In the event that the strata owners do not hold the Corporations to account, a mechanism where local government can amend and enforce Management Statements will secure the amenity of large strata complexes and avoid the risk of those areas blighting the landscape through inadequate maintenance and care.

Proposal 51
No comment, but for that Landgate should not have the power to register any Community Management Statement or amendment thereof unless the approval of the local government has first been given to that Statement or amendment.

Proposal 52
LGPA agrees with Proposal 52, and furthermore that the local government should have recourse to apply to SAT to overturn any variation to a Community Management Scheme made without the approval of the local government.
LGPA also requests that the legislature consider giving the SAT jurisdiction to hear matters brought by local governments to amend Community Management Statements without the consent of the Community Corporation, as discussed under Proposal 50 above.

Proposal 53
No comment.

Proposal 54
No comment, but for that the legislation should consider if the consent of all of the owners of all of the strata lots would be required to make grant an easement over Community Property.

Proposal 55
No comment.

Proposal 56
No comment.

Proposal 57
No comment.

Proposal 58
No comment.

Proposal 59
No comment.

Proposal 60
No comment.

Proposal 61
LGPA vigorously objects to Proposal 61. Local government rates should under no circumstances be reduced by the Valuer General.

The proposed reforms should ensure that Community Title Schemes will incur a full liability to pay local government rates as with other forms of tenure. Section 6.26 of the Local Government Act 1996 would appear to include all land within a strata scheme or Community Title Scheme as rateable land (unless a Ministerial declaration was made to the contrary). LGPA urges that no legislative amendment is made to reduce this liability.

Although the Community Title Scheme will provide some infrastructure and facilities which would otherwise be paid for by the local government, the likely higher density of this form of tenure makes it necessary for the local government to provide additional infrastructure surrounding the Community Title Scheme. The local government will still be required to carry out many functions, such as hearing complaints and neighbourhood disputes, collecting refuse, and providing facilities such as pools, ovals, open space and connecting roads, all of which will be additionally burdened by the higher density of Community Title Schemes.

The local government may be vested with the power to reduce the rates charged on a Community Title Scheme at the sole discretion of the local government. Any such power should be granted to the local government through an amendment to Division 6 of Part 6 of the Local Government Act 1996 and not through a provision being inserted into the amended STA.

Proposal 62
LGPA submits that SAT should only have the power to approve a discount methodology that is submitted to it by the relevant local government. SAT should not be given any power to approve a rate reduction at the request of any other person or entity.

Proposal 63
LGPA agrees with Proposal 63 subject to the WAPC and the relevant local government approving the merger of adjacent strata schemes to form a single community title scheme.

Proposal 64
LGPA agrees with Proposal 64 in principle, subject to this abbreviated process for terminating and reconstituting a strata scheme to be clearly set out in the STA and dependent upon the particular wording of the draft legislation.

Proposal 65
LGPA agrees with Proposal 65 subject to the approval of the relevant local government also being required.

Proposal 66
LGPA agrees with Proposal 66, provided that the approval of the relevant local government is a requirement before SAT can order the conversion of adjacent schemes into one Community Title Scheme.

PART 2: MIXED USE DEVELOPMENT IN A COMMUNITY TITLE BUILDING
Proposal 67
LGPA does not comment in respect of Proposal 67, but to say that local government approval of a community plan must be required by the legislation. The term ‘community plan’ should also be defined.

Proposal 68
No comment.

Proposal 69
No comment.

Proposal 70
No comment.

Proposal 71
No comment.

Proposal 72
LGPA opposes Proposal 72, unless the local government is also given equal power to approve, conditionally approve or reject the Development Statement.

Proposal 73
LGPA strongly opposes Proposal 73. Please see submissions in respect of Proposal 19, which apply equally in the context of mixed use development in a single building.

Proposal 74
LGPA strongly opposes Proposal 74. Please see submissions in respect of Proposal 20, which apply equally in the context of mixed use development in a single building.

Proposal 75
Agreed.

Proposal 76
LGPA rejects Proposal 76. It is the role of the local government to make planning decisions on development applications, and this power should not be fettered by a Development Statement which, under the proposed reforms, the local government will not have any involvement in approving. Proposal 76 is thus entirely inappropriate.
As with Community Title Schemes (please see above submissions), decision makers should not be bound by Development Statements in relation to mixed use developments in a single building. If they are to be bound, the local government should have the power to approve, conditionally approve, reject and amend Development Statements as it thinks fit.

Proposal 77
Agreed.

Proposal 78
LGPA is of the view that the local government, rather than the WAPC, should have the power to approve or reject Development Statements, and also be vested with a power to conditionally approve and, from time to time, amend Development Statements. Please see LGPA’s submissions in Part 1 of this document for further explanations of this view.

Accordingly, LGPA rejects Proposal 78, as local government rather than the WAPC should be the authority responsible (or at least equally responsible) for Development Statements.

LGPA does not reject the idea of guidance being given to the decision maker as to whether to approve or reject a Development Statement for a Community Scheme within a single building, however it is impossible to comment on Proposal 78 in this regard because it is vague and uncertain. For example, if the guidance is to come from the Developer or Applicant, LGPA rejects the Proposal. LGPA’s comments on the Proposal would vary depending on whether the guidance is to be in the legislation or regulations, or a policy. In any event, if the local government is to be the decision maker rather than the WAPC, LGPA is of the view that local governments are apt to make planning decisions and access development controls contained in Development Statements, and states that any “guidance”, regardless of the source, should be non-binding and should not fetter or restrict the local government’s discretion.

Proposal 79
LGPA reiterates the previously expressed view that Development Statements should not have any binding effect, but agrees that consistency between the Development Statement and Management Statement would assist with clarity for all parties involved.

LGPA notes that any Management Statements with respect to mixed use developments within one building should also be consistent with local government local laws and approved by the local government. Please refer to LGPA’s submission in relation to Proposal 50 in this regard, as those comments apply equally to Proposal 79.

Proposal 80
No comment.

Proposal 81
No comment, but for that the legislation should also require that local governments be indemnified for any loss, damage, action or suit whatsoever, if the local government or its employees, agents or contractors are required to enter the building or common or community property in carrying out local government functions (inspections, refuse collections etc.) .

Proposal 82
No comment.

Proposal 83
No comment.

Proposal 84
No comment.

Proposal 85
No comment, but for that local government approval must be a legislative requirement to amend a registered Community Scheme within a building.

PART 3: LEASEHOLD STRATA SCHEMES
LGPA does not oppose the proposed new form of Leasehold Strata Tenure. Without seeking to make specific comments in relation to Proposals 86- 105, LGPA submits that Leasehold Strata Tenure be dealt with in the exact same manner (with the same local government approvals required and powers vested in local governments) as with Community Title Schemes and strata or survey-strata schemes (depending on the proposed development of the Leasehold). The comments made in Part 1 of these submissions, in particular with reference to Management Statements and Termination also apply to Leasehold Strata Tenure.

We note that, at 5.6 of the Consultation Paper, Landgate states that the ‘original long-term lease to the developer of the land…will require WAPC approval if it exceeds 20 years’. This approval would appear redundant. We suggest that Landgate may like to clarify this point in the amended legislation. As LGPA understands the situation, WAPC approval is required only for leases of a portion of land where the terms of the lease exceeds 20 years (s. 136 of the Planning and Development Act 2005). It is anticipated that the lease to the developer would be for the whole of the land on which the Leasehold Strata Scheme is to be built. Accordingly, if WAPC approval is needed for the grant of the Lease, new legislation would be required which mandates that a lease for the whole of a lot would require WAPC approval if that lot is to be strata subdivided. This requires that a lessee could not enter into a lease for land and then later decide to strata subdivide that land, even if the lease permitted it to do so, unless WAPC was given a power to retrospectively approve leases for land which is to be strata subdivided. This new legislation should only apply to lots which are to be strata subdivided and not to all leases exceeding 20 years, as lease arrangements for whole lots are generally not a planning concern. It is also anticipated that WAPC approval would be required for the strata subdivision in any event, and it may be redundant to also require WAPC approval to the grant of the Lease.
LGPA also takes this opportunity to suggest that the legislation referring to Leasehold Strata Tenure be amended so as it clarifies whether the owner of the fee simple or the leaseholder will be liable for dealings with the land such as unpaid rates on common property and fines in relation to breaches of planning approvals or other local laws. The legislation may itself specify where such liability lies, or may require that the original land lease or Management Statement apportion liability.

PART 4: TERMINATION OF SCHEMES
LGPA suggests that it may be appropriate in certain circumstances that some land, facilities and infrastructure vest in the local government when a Strata Scheme to Community Title Scheme is terminated. This does not appear to have been previously contemplated by the legislature. LGPA submits that it is possible that certain Community Lots, such as parks and roads, would be unsuitable for further development but, if a Community Title Scheme is terminated, the areas may be left derelict when not in the care of a Corporation. Accordingly, the termination provisions of the proposed legislation should consider the vesting of some Common Property or Community Lots to the local government (possibly to be held on trust for the purpose for which they were originally created) upon termination. It may also be appropriate that the local government receive compensation for the costs of maintaining that infrastructure or those facilities.

2017-09-01T16:11:42+00:00