The WAPC is responsible for determining applications for certain lease, licence, classes of lease or licence, agreement to sell and option to purchase applications on freehold land under section 136 and section 139 of the Planning and Development Act 2005. These include applications for:
- leases, licences, sale and agreements to sell land and options to purchase over a portion of a lot or lots for a term exceeding 20 years (including any option to renew or extend the term)
- classes of lease or licence for any duration over a portion of a lot or lots, which generally includes the the ability to sub-lease or sub-licence.
Please see the Lease, Licence, agreement and Option Guideline page for more information.
Requirement for an application
The WAPC has developed a decision-making matrix to assist stakeholders to determine whether the WAPC's approval may be required.
How to submit your application
Application forms listed below are interactive PDF files. To submit an application, download the form, complete the form on screen, save and submit the form and any other attachments to firstname.lastname@example.org. If the attachments exceed the email size limit, please request a Large File Transfer from the above email address.
Please be aware that the agendas and minutes of WAPC meetings are made available on the PlanningWA website. As a result, information supplied to the WAPC relevant to your application or to assist the WAPC in making a determination may be subject to public access.
Forms and fees
Form 1B is an Application for approval by the Western Australian Planning Commission to a proposed lease, licence, option to purchase or agreement to sell a portion of freehold land under section 136 or an application for a class of lease or licence under section 139 of the Planning and Development Act 2005. The fee for a Form 1B is $598.
Where an amendment to a Form 1B application is required, applicants are to submit a Form 2B. There is no fee for a Form 2B.
Is approval from the Western Australian Planning Commission (WAPC) required to approve a lease of and licence to use or occupy a building for a term exceeding 20 years?
No. There is no requirement for leases or licences of buildings to be approved.
The purpose of section 136 of the Planning and Development Act 2005 is to deal with the potential de facto subdivision of land. For example, a landowner who provides a 99-year lease over half their land is in effect dividing the land in two, even though there still is technically one “lot” as recoded on one certificate of title. To allow this to occur would subvert the very purpose of the subdivision process, and importantly, the role of the WAPC to ensure the subdivision of land accords with planning principles that protect the amenity of neighbours and the surrounding locality.
As such, section 136(3) deﬁnes land to not include the whole or a portion of a building, if the building was constructed in accordance with a building licence, or a building licence to construct the building is in force.
In other words, approval is not required for a lease of or a licence to use or occupy a building that is, or will be, constructed in accordance with a building licence.
Subsection (4) states that a ‘portion’ of a building includes the area outside the building where:
- the area is the subject of the same lease or licence to occupy as the lease for the building itself
- the area is used for any purpose necessary for the convenient occupation of the building.
This means that where the area outside the building is for a purpose necessary for the “convenient occupation” of the building (such as access to the building, car parks, loading bays and so on), then a lease of or licence to use and occupy the building does not require WAPC approval.
If a party to a lease document is unsure whether external areas that form part of the lease fall within the scope of the ‘exception for external areas’, the party should seek independent legal advice regarding compliance with the Planning and Development Act 2005.
Does section 136 regulate the sale or strata and survey-strata lots?
No. The sale of strata and survey-strata lots subsequent to the registration of the relevant strata plan or survey-strata plan is not regulated under section 136 of the Planning and Development Act 2005.
The sale of strata lots prior to the registration of the strata plan is not regulated by section 136 of the Planning and Development Act 2005 because of the separate WAPC approval regime for strata plans under section 25 of the Strata Titles Act 1985, subsection 25(5). This also makes explicit the exemption from the operation of section 136 of the Planning and Development Act 2005.
Does a person who enters into a contract for the pre-sale of land under section 140 need WAPC approval pursuant to section 136?
No. A person can still enter into an agreement in relation to a portion of a lot without the WAPC’s approval, provided that the contract is conditional upon the necessary approvals to the subdivision being obtained, and the creation of the lot or lots to be conveyed, prior to their conveyance. Parties to a contract should also seek their own independent legal advice.