Tourism Planning Taskforce Report - Western Australian Planning ...

Chapter 6Term of Reference 36 Term of Reference 3Review trends in the strata titling of tourismfacilities and the operational andmanagement impacts of various tenurearrangements. This will include assessmentof the impact on management structures,control and enforcement of occupancyrequirements, increases in the cost and lossof variety in available accommodation, andincreased pressure for permanentoccupancy.6.1 BackgroundIn investigation of this term of reference, thetaskforce received a number of backgroundand briefing papers from the then Departmentof Land Administration (DOLA) andsubmissions from the then Western AustralianTourism Commission. These papers providedinformation on the types of strata schemescurrently used in tourism development, trends,tourism industry concerns, and a criticalreview of the capacity for managementrequirements to be achieved through theStrata Titles Act 1985 (the Act). The taskforceacknowledged the need for the review toinclude an assessment of the impact of stratatitled tourism development on the tourismindustry.There currently are two types of strataschemes available under the Act - strataschemes and survey strata schemes.The term strata scheme commonly refers to abuilt strata, but it also can mean a vacant lotstrata, where a number of the lots may notcontain a building or any portion of a building,or a survey strata.A survey strata plan creates lots similar to afreehold (green) title subdivision, and whilethere may be buildings on the property, theseare not shown on the plan. The boundaries ofsurvey strata lots are surveyed by a licensedsurveyor and shown on the survey strata plan,and look much the same as lots shown onsurvey diagrams for green title subdivision.Survey strata schemes commonly are used forthe strata subdivision of serviced butundeveloped land, with strata schemes usedfor the subdivision of buildings.The operation of strata schemes is controlledby the Act and strata by-laws, establishedpursuant to Section 42 of the Act. Amanagement statement also can be used toput in place by-laws, including conditions thatmay be required by a local government, theWAPC or the developer. By-laws are intendedto control the internal management ofschemes. The areas they can address arerestricted by Section 42(3) of the Act, to theeffect that “no by-law can act to prohibit orrestrict the devolution of lots or any transfer,lease, mortgage or other dealing therewith orto destroy or modify any easement implied orcreated by the Act”. The penalty for breach ofa by-law is $400. The Act is unclear as to thestanding of a third party, such as localgovernment, in establishing a privateprosecution for breach of a by-law, evenwhere that by-law was imposed at the requestof that organisation under Section 42(2d).The use of a strata lot also can be controlledwith a Section 6 restriction, and this commonlyis done in tourism developments to prohibitresidential use. Section 6 of the Act providesthat on registration of a plan a restriction ofuse can be established on a parcel or part of aparcel. The Act also provides that therestriction cannot be removed or modifiedwithout the resolution of the strata company,without dissent, and approval of the localgovernment, and where that restriction wasrequired by the WAPC, its approval.The use of strata schemes for tourismdevelopments primarily is undertaken toachieve financing and profit realisation fromsuch projects, and has become the dominantmethod for financing since the introduction ofthe Act in 1985. However, there are concernsexpressed by sectors of the tourism industrythat developments subject to strata schemesare not being developed on the basis oftourism demand, have resulted in residentialuse of tourist zoned land, and wheremanagement arrangements are not adequate,have resulted in delivery of a poor tourismproduct.6.2 Strata titling trendsA review of DPI records and informationsupplied by the Valuer General’s Officedemonstrates that the number of strataTourism Planning Taskforce Report45