Ellenbrook Restrictive Covenant

Background Information

The Ellenbrook subdivision is comprised of 1,200 hectares owned by joint venture partners and the Housing Authority.

The LWP Property Group is responsible for the development of Ellenbrook on behalf of the joint venture partners. At the time the Insurance Commission purchased the 18.7 hectare shopping centre site, it was a green field site, as was the immediate surrounding area.

Relevant planning and other advice to the developers LWP was that for the establishment of a green field development such as Ellenbrook, the major retail component should be located in a certain area and other retail developments should be limited until the main shopping centre expanded and the population reached a certain size.

As a result LWP proposed the implementation of a restrictive covenant with the purpose of ensuring a coordinated approach to retail development and to create a vibrant, well-planned Town Centre of which the shopping centre site would be a component. It was also anticipated that the introduction of the restrictive covenant would expedite the development of the Ellenbrook community, by allowing the shopping centre (which has the benefit of the restrictive covenant) to secure anchor tenants and create a hub of commercial activity for local residents.

The Insurance Commission purchased the Shops At Ellenbrook site on 7 November 2003.

Development of The Shops At Ellenbrook

As part of the green field site development, the Insurance Commission has developed a regional shopping centre in the Town Centre.

Stage 1 of the shopping centre was completed in 2004. Stage 2 was completed in March 2011.

Stage 2 (which added lettable area of approximately 22,000 sqm) included a discount department store, a second supermarket and approximately 60 specialty shops.

Stages 1 and 2 collectively comprise over 32,000 sqm of retail space including over 100 shops.

The Insurance Commission plans to continue to maintain The Shops At Ellenbrook to a high standard and for it to remain a focal point of the Ellenbrook Town Centre.

The Shops At Ellenbrook has attracted a high number of national retailers and was a finalist in the Shopping Centre of the Year Award (Regional size, as awarded by the Property Council of Western Australia) in 2012. The high quality of The Shops At Ellenbrook development so far is testimonial to the positive effect of the covenant on the planning of a centralised retail community.

The restrictive covenants are paramount to ensure the ongoing viability of the proper coordinated development of retail and to facilitate the development of the proposed future stages of the centre.

The attached masterplan shows the City of Swan approved plan for the site including the addition of Stage 3. The Insurance Commission is exploring the possibility of proceeding with bulky goods development on the remainder of the site.

The Restrictive Covenants:

There are two restrictive covenants:

1. I687182, which is registered over certain land which is, or was, owned, by Housing Authority; and
2. I687188, which is registered over land that is, or was, owned by the joint venture partners.

The terms of both restrictive covenants are virtually identical.
The restrictive covenants are accessible by the public through Landgate. For convenience, copies of both restrictive covenants are attached for your information.

When the restrictive covenants were created they were registered only:

• over land in Ellenbrook which was owned by the Housing Authority and the joint venture partners; and
• over those lots which were over 3,000 sqm in size.

Where these larger lots have been subdivided, the restrictive covenant remains and is applicable to (and on the title of) the smaller subdivided lots, by operation of law.
The restrictive covenant limits certain retail developments, details of which can be obtained from the terms of the restrictive covenants.

Purchasing Land in Ellenbrook

Persons wishing to develop or establish a business in Ellenbrook on land subject to the restrictive covenants should seek their own legal advice in relation to their proposed transaction and particularly the applicability and effect of the restrictive covenants on their land.

The Insurance Commission however is willing to assist prospective purchasers or tenants by guiding them through the process. If guidance is sought then please contact the Insurance Commission setting out the proposed use and/or how it is intended to deal with the land.

Subject to certain agreements being reached with relevant third parties, the Insurance Commission will agree not to enforce the restrictive covenant in relation to retail shops less than 300 sqm on the basis of its interpretation of what constitutes "local needs" so as to encourage retail development in Ellenbrook (provided that such shops do not create a "neighbourhood centre" as defined in the restrictive covenant).

The Insurance Commission has recently worked with LWP to assist in creating the opportunity for a second service station to be developed in Ellenbrook.

The Insurance Commission encourages prospective retailers, or landlords with prospective retailers to contact the Insurance Commission with a view to discussing how their proposed use of the land may be affected by the restrictive covenants.

For those parties interested in establishing a business in Ellenbrook, please note the uses specified on the attached list are uses that in our interpretation do not contravene the restrictive covenant on the basis that the proposed uses were less than 300 sqm and met local needs or were outside the scope of the restrictive covenant for other reasons.

4 September 2008  -  Restrictive Covenant I687182
4 September 2008  -  Restrictive Covenant I687188
14 January 2010 -  Restrictive Covenant Uses

For more information regarding Ellenbrook please visit the LWP website...