Uniform General By-laws - (Section 30 Subsection 1) New Subdivisions and Re-subdivisions

These Uniform General By-laws prescribe a mandatory approval process for any new subdivision or re-subdivision of land in Western Australia. They are made under what is now section 30(1) of the Planning and Development Act 2005 (WA), but originally stemmed from the Town Planning and Development Act 1928, section 31. The by-laws were gazetted on 14 October 1949, repealing earlier versions from 1930 and 1935. They set out the application procedure, plan specifications, and substantive design standards that landowners and developers must meet before the Town Planning Board (now the Western Australian Planning Commission, or WAPC) will approve a subdivision. Mechanically, the by-laws force every applicant to submit a written application on a prescribed form (Form 1), accompanied by two or three copies of a plan drawn to a minimum scale of five chains to an inch, on a white background with coloured illustrations. The plan must show dimensions, building positions, contours, flood levels, adjoining roads, and at least 100 feet of reservation along seashores, lake sides, or stream banks. The by-laws then list mandatory design features: new roads must connect with neighbouring localities, drainage must be provided, road junctions must meet specific cut-off dimensions, lots must not exceed certain lengths when fronting main roads, and residential lots must have a minimum frontage of 50 feet and a minimum area of 6,000 square feet. There is also a requirement to dedicate land for parks, recreation grounds, schools, and public services without any expressed mechanism for compensation. The by-laws impose a penalty of £20 (now likely converted to a modern penalty unit under the Planning and Development Act 2005) for supplying false information or omitting relevant particulars. Critically, these by-laws do not operate in a vacuum; they are continued by section 262 of the 2005 Act and sit alongside local planning schemes, the Planning and Development (Local Planning Schemes) Regulations 2015, and other State policies. Their effect is to impose uniform, State-wide minimum standards on subdivision design, reducing the discretion of individual local governments but also creating a rigid framework that can increase compliance costs and delay projects. From an economic standpoint, the mandatory 100-foot reservation and the requirement to dedicate land for public purposes act as implicit taxes on subdivision, raising the effective cost of land development and thus the price of housing lots. The absence of any compensation formula for those dedications shifts the burden entirely onto the landowner, which may discourage smaller-scale subdivisions.

The by-laws establish several core concepts that govern the subdivision process. First, application: any person seeking to subdivide or re-subdivide land must apply in writing to the Board (now WAPC) using Form 1, which collects owner details, title references, available public services (sewerage, electricity, gas, water, drainage, transport), road construction status, and whether the land lies in a drainage or irrigation district. The application is a substantive legal step; failure to submit it before undertaking any subdivision is likely an offence under the principal Act. Second, plans: the by-law 2 requires drawings on a white background with colouring to illustrate the proposal, scaled no smaller than 5 chains to an inch (about 1:3960). The plan must include dimensions and areas of both existing and proposed lots, building positions and conditions, contours at intervals of no more than 5 feet for areas over 3 acres, flood levels and swamp locations, and the names and widths of adjoining streets. The 100-foot reservation along water bodies is a repeated concept, appearing in both by-laws 2(e) and 3(e), and it applies exclusive of any road width - meaning the reservation is additional to any road setback. Third, matters to be provided for: by-law 3 lists mandatory design elements that must be incorporated. These include new roads for current and future public convenience and intercommunication with neighbouring localities; drainage of roads and lands with present and prospective capacity; road junction treatments with specified cut-offs (minimum 30 links for a right-angle corner or 50 links radius; for non-right angles, the truncation boundary must be at least 42.4 links); location of existing public works and zoning; the 100-foot reservation; lot size and shape relative to topography (e.g., boundaries at right angles to contours and radial to road frontages); dedication of spaces for parks, recreation grounds, playgrounds, public buildings, schools, churches, memorials, or public services; a maximum block length of 15 chains when fronting main roads, with pedestrian access required for blocks over 10 chains; a minimum residential frontage of 50 feet and minimum area of 6,000 square feet; turning spaces in laneways behind shop or industrial sites; and compliance with local authority requirements apart from the design of the subdivision. The penalty concept in by-law 4 makes it an offence to furnish false information or omit relevant information, with a fixed penalty of £20 (which is now effectively obsolete; the Planning and Development Act 2005 sets penalty units in its own provisions). The in the Appendix are integral: Form 1 is the application, Form 2 is the consultation form sent by the Board to local authorities, asking whether their powers are affected and for objections or recommendations. The by-laws thus create a layered concept of State-level uniform standards with local authority input.

These by-laws directly affect any person or entity that owns land in Western Australia and proposes to create new lots or re-subdivide existing lots. That includes private landowners, property developers, real estate investment trusts, housing construction companies, and agricultural or mining enterprises that might want to sever part of their holdings. It also affects professional intermediaries: surveyors who must prepare the plans to the prescribed scale and detail, town planners who advise on compliance, and lawyers who handle the application and deal with the Board. Local government authorities are significantly affected because the Board must consult them under by-law 1(c), using Form 2, and because by-law 3(k) requires compliance with the "lawful requirements" of the local authority apart from the design of the subdivision - meaning that even after the Board approves the subdivision design, the developer must still meet local government conditions (such as road construction standards, drainage connections, or developer contribution plans). Public bodies and other government departments are also affected: the Board may need to consult them under section 24(1) of the Act, and a further copy of the plan must be submitted if the land is within an irrigation district under the Rights in Water and Irrigation Act 1914 or a drainage district under the Land Drainage Act 1925. Those statutes impose their own requirements on subdivisions affecting water management infrastructure. For the general public, the by-laws affect future lot buyers through the mandatory minimum lot sizes and frontages, which restrict the supply of smaller, more affordable lots and push up prices. The 100-foot reservation along water bodies reduces developable land and increases the cost per lot. Residents in new subdivisions are affected by the road design standards (e.g., block lengths and pedestrian access) which shape neighbourhood connectivity. Local businesses, schools, and churches may benefit from the mandatory dedication of spaces for public services, but the cost of those dedications is borne by the original landowner and ultimately by the first home buyers. The Town Planning Board (now WAPC) is the central decision-maker: it receives applications, approves or rejects plans, consults with local authorities, and has discretion to require additional contour intervals, approve alternative reservoir reservations, or assess whether topographical features warrant different lot shapes. The by-laws thus create a regulatory demand on all parties involved in land development, with compliance costs that fall disproportionately on smaller landowners who may lack the resources to navigate the application process.

The by-laws impose several clear duties on landowners and applicants. The primary duty is to apply for Board approval before any subdivision or re-subdivision of existing lots occurs. The application must be in writing on Form 1 and accompanied by two copies of a plan (or three if the land is in an irrigation or drainage district). The plan must meet the detailed specifications in by-law 2, including scale, colouring, dimensions, contours, flood levels, and the 100-foot reservation. There is a duty to provide all relevant information; by-law 4 makes it an offence to furnish false information or omit any relevant information or particulars. The applicant also has a duty to ensure the proposed subdivision satisfies all the matters listed in by-law 3: provision for roads, drainage, proper road junctions, lot shapes related to topography, reservation along water bodies, dedication of spaces for public purposes, compliance with main road block length rules, minimum lot sizes, and compliance with lawful local authority requirements. The applicant does not have a right to automatic approval; the Board must be satisfied that all by-law requirements are met. The Board has the right to consult with local authorities, public bodies, and government departments, and to forward a copy of the plan and Form 2 to them for comment. The local authority has the right to make objections or recommendations. The Board has discretion to approve variations: for example, under by-law 2(d) it may permit greater contour intervals if the topography warrants; under by-law 2(e) it may expressly approve lots that abut the 100-foot reservation (normally prohibited); under by-law 3(e) it may approve the rear of lots abutting the reservation. These discretions give the Board flexibility but also create uncertainty for applicants, who cannot be sure their plans will be accepted without variation. The applicant has no express right of appeal within the by-laws themselves, but appeals against subdivision refusal or conditions would lie under the Planning and Development Act 2005 (e.g., to the State Administrative Tribunal). There is a duty on the Board to act in accordance with the by-laws, but the by-laws do not set a time frame for decision-making, which can lead to delays. The penalty provision creates a duty to be truthful and complete; the fixed penalty of £20 (historical) is low by modern standards but would now likely be replaced by a penalty under section 262 or elsewhere in the Act. The by-laws do not grant any right to compensation for reservation or dedication requirements. Owners must bear the cost of providing the mandatory 100-foot reservation and the dedication of spaces for parks, schools, etc., without reimbursement. This is a significant duty that transfers value from the landowner to the public without explicit compensation, which may raise constitutional issues under section 6 of the (crown not bound to pay compensation unless stated) but the by-laws are silent.

By-law 4 provides the sole penalty provision in these by-laws: any person who furnishes false information on the application form or false particulars in any plan, or who omits to supply any relevant information or particulars to the Board, commits an offence. The penalty is fixed at £20 (twenty pounds). This penalty amount is historical and reflects the 1949 origin of the by-laws. Under the Planning and Development Act 2005, penalty units are regularly adjusted and the old £20 amount would be superseded by modern penalty provisions in the principal Act. Specifically, section 262 of the 2005 Act continues these by-laws in force, but any inconsistency with the Act’s penalty provisions would likely be resolved by applying the Act’s framework. The offence is one of strict or general liability? The by-law says "commits an offence" without specifying a fault element. Given the wording "who furnishes" or "who omits", it is likely a conduct-based offence where the prosecution must prove the act or omission, but not necessarily intent, though the word "false" suggests knowledge of falsity. The penalty is a fixed sum, not a daily penalty, so a single offence draws a single £20 fine. Enforcement would be by prosecution in a court of petty sessions (Magistrates Court). The by-laws do not specify who may prosecute, but typically the Board (or now WAPC) or the local authority would bring proceedings. There is no provision for infringement notices or on-the-spot fines. The penalty of £20 is trivial by modern standards (about $40 in historical terms, but inflation would make it worth much less today), so it is unlikely to deter sophisticated developers. In practice, enforcement for non-compliance with subdivision controls is likely under the Planning and Development Act 2005 itself, which carries much higher penalties (e.g., up to $250,000 for unauthorised subdivision under section 140 of the Act). The by-laws’ penalty therefore operates more as a symbolic remnant. However, the by-law's offence provision still exists and could theoretically be used, but it would be limited to the specific false information or omission scenario, not to failure to get approval (that is dealt with elsewhere). There is no provision in the by-laws for enforcing compliance with the design standards in by-law 3 after approval , enforcement of conditions of subdivision approval is governed by the Act and local planning schemes. The by-laws thus have a narrow enforcement scope centred on the application process. The lack of any other penalty for failures to provide roads, drainage, reservations, or dedicated spaces means the primary sanction is the refusal of approval or the imposition of conditions at the approval stage. Consequently, the by-laws are more about front-end gatekeeping than back-end enforcement.

These by-laws do not exist in isolation; they are continued in force by section 262 of the Planning and Development Act 2005 (WA). That Act is the current primary legislation governing land use planning, development control, and subdivision in Western Australia. The by-laws sit beneath the Act as delegated legislation. Where the Act provides a comprehensive regime for subdivision control (Part 9, Division 2 of the Act), these by-laws fill in the procedural and design details. The by-laws also interact with several other specific statutes. By-law 1(b) requires a further copy of the plan when land lies within an irrigation district constituted under the Rights in Water and Irrigation Act 1914 or a drainage district under the Land Drainage Act 1925. Those Acts impose their own approvals and standards for drainage and water management, which may add conditions on subdivision consent. The Board must consult with the relevant authority under those Acts, meaning the applicant faces a multi-agency approval process. By-law 3(k) requires compliance with the "lawful requirements of the Local Authority" apart from the design of the subdivision. This incorporates local government by-laws, local planning schemes, and any conditions imposed by the local authority under its own powers (e.g., for road construction, sewer connections, stormwater management). Local planning schemes under the Planning and Development Act 2005 may set higher minimum lot sizes, different frontage requirements, or additional design standards that override or supplement these by-laws (the by-laws set a floor, not a ceiling). The Planning and Development (Local Planning Schemes) Regulations 2015 standardised many provisions that may overlap with these by-laws, such as residential design codes. The reservation requirements (100 feet along water bodies) also interact with the Public Works Act 1902 (for acquisition of land for public purposes) and the Land Administration Act 1997 (for Crown land reserves). No compensation is provided by these by-laws, so any requirement to dedicate land without payment may be contested under the principles of just terms (though the Commonwealth Constitution's just terms requirement applies only to the Commonwealth; Western Australia has no equivalent protection in its Constitution, though the Planning and Development Act 2005 section 188 provides for compensation in limited circumstances for planning instruments). The penalty in by-law 4 interacts with the Criminal Code (WA) for general offences, but given the low penalty, it is unlikely to attract criminal Code provisions. The by-laws also interact with the and the which continued these by-laws. Practitioners must also consider the State Planning Policy 3.1 (Residential Design Codes) and other policies that now govern subdivision design, which may implicitly replace some of the by-law 3 requirements. The by-laws' continued existence creates an additional layer of regulation that may catch unwary applicants who assume the 2005 Act alone governs subdivisions.

The compilation table at the end of the document records only a single gazettal: 14 October 1949, pages 2478-2479, with commencement on the same date. This by-law replaced earlier by-laws gazetted on 7 February 1930 and amended on 11 October 1935, which were repealed by the 1949 by-law. The by-laws were originally made under section 31 of the Town Planning and Development Act 1928 (the predecessor to the Act). When the Planning and Development Act 2005 was enacted, it repealed the 1928 Act but continued these by-laws in force under section 262 of the new Act. That section states that any by-laws made under the repealed Act and in force immediately before the commencement of the 2005 Act continue in force as if made under the new Act. Therefore, the by-laws have not been amended since 1949, either in substance or in form. The appendix includes the original Forms 1 and 2 as drafted in 1949, with no modernisation. The penalty of £20 has never been updated for inflation. The scale requirement of "five chains to an inch" (about 1:3960) may now be considered outdated alongside digital GIS submissions, but it remains the legal minimum. The lack of amendment creates several compliance risks: the by-laws do not reflect contemporary planning concepts such as sustainability, bushfire management, stormwater quality treatment, or affordable housing contributions. They also do not reference modern subdivision practices like strata subdivision or survey-strata plans, which are governed separately under the Strata Titles Act 1985. The by-laws' survival unamended means they impose a fixed historical template on a dynamic property market. The only formal amendment history is the repeal of the 1930/1935 versions. There is no record of any later amendment to the 1949 by-law. Any changes to subdivision practice in WA have occurred through the principal Act, regulations, and local planning schemes, not through these by-laws. Practitioners should be aware that the by-laws are a time capsule: they provide the floor standard, but most modern subdivisions will also need to meet far more detailed requirements in the Residential Design Codes, local planning scheme provisions, and the Act itself. The by-laws' continued legal force, however, means that non-compliance with even the 1949 requirements is technically a breach. The lack of updating could lead to a court or tribunal interpreting the by-laws in light of current practices, potentially reading down the strict requirements (e.g., the contour interval requirement might be waived by the Board's discretion). The compilation table indicates this is a "compilation" for information purposes, not an official amendment. No other amendment entries exist.

The source document provided does not contain any references to specific court cases or tribunal decisions interpreting these by-laws. The compilation is purely legislative text with no annotations, headnotes, or case citations. There is no mention of any legal challenge to the validity of the by-laws, their application, or judicial interpretations of their terms. This is notable given the by-laws have been in force for over 70 years. The absence of reported litigation may indicate that most subdivision disputes under the by-laws have been resolved at the administrative level (by the Board or WAPC) or through mediation, rather than in courts. Alternatively, it could mean that the by-laws have been so consistently applied by the Board that no party has seen a benefit in challenging them. However, it is also possible that challenges have occurred but are not captured in this compilation. For instance, the mandatory dedication of land without compensation (by-law 3(g)) could have been challenged as an acquisition of property without just terms, but no such case is cited. Similarly, the 100-foot reservation requirement could have been contested as an unreasonable burden on development. The minimum lot size of 6,000 square feet might have been challenged under competition principles or as an obstacle to housing supply, but no case is referenced. The penalty of £20 has likely never been prosecuted because the principal Act provides much stronger enforcement. Any litigation involving these by-laws would most likely be part of broader subdivision appeals under the Planning and Development Act 2005 to the State Administrative Tribunal or the Supreme Court. The Tribunal may consider the by-laws as one of many relevant planning instruments. A practitioner would need to search Westlaw AU, AustLII, or the WA Supreme Court library for any judgments referencing "Uniform General By-laws" or "Town Planning and Development Act 1928". Given the low profile of these by-laws, it is plausible that they have never been the subject of a published judgment. The by-laws' age and specificity mean they are more likely to be applied routinely by planners and surveyors than litigated. The lack of litigation history also suggests that the Board has exercised its discretion to approve variations liberally, avoiding disputes. Nonetheless, the possibility exists that a future challenge could occur if a landowner is pressed to dedicate more land than is reasonable. The by-laws' silence on compensation and the continuing operation of the 1949 provisions could be a fertile ground for litigation if a rigorous compliance stance were adopted by WAPC.

Several provisions in these by-laws can catch applicants off guard. The most significant is the 100-foot reservation requirement in by-laws 2(e) and 3(e). It applies to "seashore, lake sides, or banks of streams" and must be exclusive of any road width. This means the reservation is in addition to any road or path reserve. It also states that "no rear of any lot or lots shall abut such reservation unless expressly approved by the Board." So lots must front onto the reservation, not have their rear boundary against it, unless the Board gives permission. This can significantly reduce the number of lots that can be created on waterfront land. The reservation is required to be provided by the subdivider without any express mention of compensation. The requirement is mandatory: "shall be provided for" in by-law 3. Many modern practitioners might assume that coastal foreshore reserves are covered by separate coastal planning policies, but this by-law adds a uniform 100-foot (30.48 metre) minimum that may be stricter than local requirements.

Another trap: the minimum lot size of 6,000 square feet (about 557.4 square metres) with a minimum frontage of 50 feet (15.24 metres) in by-law 3(i). This is a uniform State-wide minimum. Many local planning schemes now allow smaller lots (e.g., 300 m² under the R-Code for group dwellings), but the by-law's provisions might still apply if the subdivision is a new subdivision of land not covered by a scheme that explicitly overrides these by-laws. The relationship between by-law 3(i) and the Residential Design Codes is ambiguous. The Codes may prevail as a later, more specific standard, but the by-laws remain in force.

The contour interval requirement: by-law 2(d) mandates contours at intervals of not more than 5 feet for areas over 3 acres. For land with gentle slopes, this can be expensive to survey. The Board can permit greater intervals, but the default is strict. Many smaller subdivisions of 3+ acres may not have site contour plans ready, leading to delays.

The requirement to show flood levels and land liable to inundation (by-law 2(f)). This is a broad obligation that may require the applicant to obtain flood studies or consult the Department of Water. Failure to show this could be considered an omission of relevant information, triggering the penalty in by-law 4.

The interaction with irrigation and drainage districts (by-law 1(b)). If the land is within such a district, three copies of the plan are required instead of two. More importantly, the Board must consult the relevant water authority. This adds another hurdle. Many landowners may not know if their land is in a gazetted irrigation or drainage district, and the by-laws do not provide a mechanism to check; it is the applicant's responsibility.

Compliance with these by-laws requires a systematic approach from initial title investigation to final submission. First, determine whether the land is within an irrigation district under the Rights in Water and Irrigation Act 1914 or a drainage district under the Land Drainage Act 1925. Check with the Department of Water and Environmental Regulation or local water corporation. If it is, prepare three copies of the plan; otherwise, two copies will suffice. Next, engage a licensed surveyor to produce a plan that meets by-law 2. The plan must be drawn on a white background with colouring to illustrate the proposal. The scale must be at least five chains to an inch (approximately 1:3960). Include all required features: dimensions and areas of all existing and proposed lots (in imperial units unless metric is also shown); position, type, use, and condition of all buildings on the land; contours at intervals of not more than 5 feet for any area over 3 acres (if the land is smaller, contours may not be required, but it is safer to include them if the Board might ask); 100 feet of reservation along seashore, lake sides, or stream banks (shown on the plan); flood levels, swamps, streams, and any land not naturally drained (obtain this information from the relevant authority or a hydrologist); and location, names, and widths of adjoining streets and roads, plus size and shape of adjoining lots. Ensure that the plan clearly indicates the proposed subdivision complies with all matters in by-law 3. In particular, check that new roads provide adequate intercommunication with neighbouring localities; include a drainage scheme for roads and land; ensure road junctions meet the minimum cut-off dimensions (30 links for right-angle corners, or 50 links radius; for non-right angles, the truncation boundary must be at least 42.4 links or use a 50-links radius). Ensure no lot abuts the 100-foot reservation unless the Board's express approval is sought (and noted on the plan). Ensure lot shapes are topographically appropriate, with boundaries at right angles or parallel to contours and radial to road frontages. Set aside land for dedication as parks, recreation grounds, playgrounds, public buildings, schools, churches, memorials, or public services. The area required is not specified, so negotiate with the local authority early. Ensure that if the subdivision fronts a main road, no block exceeds 15 chains (300 metres) in length, and any block over 10 chains (200 metres) includes a pedestrian access to the nearest road. Ensure all residential lots have a minimum frontage of 50 feet and minimum area of 6,000 square feet. Include turning spaces in laneways at the rear of shop or industrial sites. Confirm that the design complies with all lawful requirements of the local authority; request a pre-lodgement meeting to get their conditions in writing. Complete Form 1 accurately, including all ownership details, title references, and information about available public services. The applicant must be the owner of the land. Submit the application and two or three copies of the plan to the Board (WAPC). If the Board decides to consult a local authority or other body, it will forward a copy of the plan and Form 2 to them. Respond promptly to any requests for further information. The Board may approve with conditions or require modifications. If the Board refuses, consider whether to seek a review under the (Part 14). Throughout, avoid any false statements or omissions. Double-check all plan details for accuracy. The penalty for false information, while historically low, could jeopardise the approval. It is also wise to convert metric measurements to imperial for the plan, but showing both may avoid confusion. Finally, remember that these by-laws are the minimum; local planning scheme requirements or the Residential Design Codes may impose stricter rules. Always check the latest version of the and any State Planning Policies. The by-laws have not been amended since 1949, so they reflect outdated standards. It may be possible to seek a variation from the Board under its discretion powers - for example, requesting approval for lots abutting the reservation or for different contour intervals. Prepare a written justification for any departure from the by-laws and attach it to the application. Compliance with the by-laws alone does not guarantee approval; the Board will also assess merits under the Act and other instruments. However, strict compliance with these by-laws eliminates one set of grounds for refusal.