Land Interests

Procedure for dealing with direct or indirect land interests affecting the City of Cockburn

Often an applicant who is undertaking development or subdivision within the City has an associated condition that requires the processing of a direct or indirect land interest that affects the City of Cockburn.

These include:
  • Notification on title documents
  • Restrictive covenant documents
  • Easement documents
  • Legal agreement documents.

The following procedure describes how the City will process requests associated with these types of documents.

Notification on title documents

These are primarily required under:
  • Section 165 of the Planning and Development Act 2005. The WA Planning Commission determines the need for this notification and it is usually imposed as part of the subdivision of land process
  • Section 70A of the Transfer of Land Act 1897. The need for this is determined either by the WA Planning Commission (imposed as part of the subdivision of land process) or by the City itself (imposed as part of undertaking the development process).

An applicant is required to pay all costs associated with the preparation, review and registration of any notification.

An applicant is responsible for preparing the notification to comply with the relevant condition they are addressing. A condition will usually state the exact wording the notification must use. The applicant must ensure all particulars of the notification document are correct.

Notification documents can only be processed for signing once they are correct.


Restrictive covenant, easement and legal agreement documents

These types of documents deal with varying levels of direct or indirect land interests of the City. These have varying levels of risks associated and are subject to detailed scrutiny by the City.

All costs in regard to preparation, review and registration of these types of documents are the responsibility of the applicant. There is a specific City of Cockburn administration cost which is detailed in the annual fees and charges.

It is the City’s preference that these documents are prepared by the City’s lawyers (at the applicant’s cost) to manage any potential risk that the City may face. If an applicant chooses not to use the City’s lawyers, we will consider the risk posed by the document at our discretion and advise the applicant whether or not such a document is required to be reviewed for accuracy by the City’s lawyers.

If a review is required, the applicant must contact the City’s lawyers to organise the review. Any associated costs are the responsibility of the applicant.

The City will not be in a position to process any such documents until the City’s lawyers have confirmed the document is satisfactory.

What is a Section 70A notification?

A Section 70A notification is a notice under the Transfer of Land Act 1893 that is placed on a land’s Certificate of Title alerting landowners (and prospective landowners) of circumstances that might impact the enjoyment of that land.

What is a Section 165 notification?

A Section 165 notification is a notice under the Planning and Development Act 2005 that is placed on a land’s Certificate of Title alerting landowners (and prospective landowners) of circumstances that might seriously impact the enjoyment of that land.

What is a restrictive covenant?

A restrictive covenant is a deed restricting the use of land. It is generally something that arises within the sphere of agreements between private landowners to limit certain activities from taking place. The most common example is estate developers using restrictive covenants with new land purchasers, to only undertake development in a manner which accords with developer imposed guidelines. The City is never party to such developer agreements.
 
The City may use a restrictive covenant where it relates to a proper planning purpose. For example, a density bonus for single bedroom dwellings often allows additional lots to be created from subdivision of an example land parcel. It is necessary in those circumstances to restrict development on those lots to a single bedroom dwelling only, otherwise the density bonus that enabled the additional lots to be created from subdivision would have been incorrectly granted.

What is a caveat?

A caveat is a form of statutory injunction that is lodged to protect the caveator’s interest. Caveats will seek to restrict any further interest being registered on a land title until the caveator’s interests have been appropriately addressed.

What is an easement?

An easement is a type of interest that has been registered over land which gives a person or a company ‘rights of use’ over a designated portion of the land for a specific purpose.

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 pipelines
  • Rights to install, maintain and operate electric power lines, telephone and other cables and supporting pylons.

The City may use what’s termed an easement in gross, if it is important to secure access for the public at large to the area of land affected by an easement. This is often used across common driveways in town centres where lots are individually owned.

What is a legal agreement?

A legal agreement is an agreement between two or more parties that is legally binding. A legal agreement will often be supported by a caveat and effectively explains the agreement between the parties and what each party will or won’t do.
 
An example of a legal agreement may relate to an agreement between the City and a landowner for a payment to be made to the City within a certain timeframe. The requirement for the preparation of a legal agreement can form a condition of planning approval.

More information and contact

Please contact Land Administration for more information on 08 9411 3444 or landadmin@cockburn.wa.gov.au

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Contact

Address

9 Coleville Crescent,
Spearwood 6163

Po Box 1215, Bibra Lake DC,
Western Australia, 6965

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