A Section 165 Notification is a notice under the Planning and Development Act 2005 that is placed on a property’s Certificate of Title alerting the landowners or prospective landowners of potential circumstances that might impact the enjoyment of that property.
Both notifications serve the same purpose, in that they alert landowners and prospective purchasers of any constraints and restrictions applicable to the land. They are both governed by separate Acts, however both achieve the same purpose.
A Restrictive Covenant is a deed limiting the use of the property or land and prohibiting certain uses. A Restrictive Covenant is common amongst developers who wish to restrict the land they are selling to prohibit certain development contrary to their Design Guidelines.
They can also be used by the Shire or Western Australian Planning Commission to restrict the use of land being subdivided or developed.
An easement is a type of interest that has been registered over a parcel of land which gives a person or a company ‘rights of use’ over a designated portion of the land for a specific purpose, even though the land belongs to someone else.
Examples of reasons for an easement include rights of carriageway; rights to erect a party wall; rights to take water from wells or bores; rights to install and operate drains and drainage works; rights to install, maintain and operate oil, gas or either pipelines; rights to install, maintain and operate electric power lines, telephone and other cables and supporting pylons.
A Legal Agreement is an agreement between two or more parties that is legally binding. A Legal Agreement can be a requirement of a planning or subdivision condition and can be specific to the lot which considers:
- The intention between the parties;
- Legal capacity for both parties to act on;
- Genuine consent by both parties; and
- The legality of the agreement.
An example of a Legal Agreement may relate to an agreement between the Shire and a landowner. The requirement for the preparation of a Legal Agreement can form a condition of planning approval.
This can be for matters including shared parking, cost contributions associated with development contribution plans under preparation, legal agreements for infrastructure upgrades.
Landowners, applicants and developers may wish to have the above legal instruments prepared by their own legal representatives. However, depending on the requirement, the Shire may exercise its discretion in obtaining its own legal advice from their solicitors. All costs and expenses associated with the execution and review of these documents by the Shire’s solicitors are borne by the applicant/ landowner/developer.
Additionally, if a condition of planning approval or subdivision approval explicitly states that the legal requirement/document needs to be prepared by the Shire’s solicitors, then all costs and expenses associated with the execution and review of these documents by the Shire’s solicitors are borne by the applicant/landowner/developer.
Generally, the Shire would not object to landowners, applicant and developers having legal instruments prepared by their own legal representatives if:
- The notifications are short and simple in nature; and
- The notifications are duplicating the wording specified in a certain condition of planning or subdivision approval.
