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Bushplan is unfair: lawyer

LANDOWNERS who believe they will be treated unfairly by the State Government’s proposed Bushplan may have to resort to common law for compensation, according to Minter Ellison partner Glen McLeod.

“Potentially, there is a right to compensation under common law for the taking of land but those issues should really be explored on a case by case basis,” Mr McLeod said.

“Certainly I have advised clients on issues of common law in respect to the Bushplan.”

Under Perth’s proposed Bushplan scheme, 52,000 hectares of ‘regionally significant’ bush land has been recommended for protection.

The Bushplan has been prepared by the Ministry of Planning in conjunction with the Department of Environmental Protection, the Department of Conservation and Land Management and the Waters and Rivers Commission. It has been available for comment since 1998.

Mr McLeod said the difference between the way Bushplan was being implemented and other statutory schemes such as the Town Planning Scheme was the lack of a compensation framework within Bushplan.

“Common law does say that the government cannot take land without proper compensation. It is a fundamental principle of common law,” he said.

“Money was set aside (for compensation) but it’s not enough and the way negotiation is going, it is unlikely that compensation will be available for some time.”

The Government has set aside $100 million for compensation.

Ministry of Planning environmental planning manager David Nunn said the department would offer compensation to land owners but it could take some years before money was available.

Town planning and design firm Dykstra & Associates’ principal Henry Dykstra is also concerned about the implementation.

“I think Bushplan needs to be owned by the whole community, not just by a small interest group or a group of government departments,” Mr Dykstra said.

“There should be a transparent process of selection which needs to be valued by the whole community.”

Mr Dykstra acknowledged that Bushplan had an important role in maintaining WA’s bushland and that it reflected the environmental concerns of the community.

He said the cost of maintaining bushland should be borne by the community, rather than a few landowners.

“There doesn’t seem to be a recognition that Bushplan is actually resulting in private land being encumbered with another set of rules which will take away the landowners’ current land use rights,” Mr Dykstra said.

“With the introduction of Bushplan the scope of those land uses will be diminished. It will also take away the perceived or actual future land development rights.”

He said the land had been bought originally from the government.

“So the Government was obviously prepared to sell it privately at the time, and then the Government came back and put all these encumbrances on it.”

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