Compo for heritage call

IN a first for Western Australia, the Supreme Court has awarded damages to a plaintiff adversely affected by the creation of a local government’s heritage policy.

In the case of Cornell v Town of East Fremantle, Justice Hasluck awarded the plaintiff $252,000 in damages, plus interest, for the detrimental impact the Town of East Fremantle’s heritage policy had on the value of the plaintiff’s land.

A recently published Clayton Utz case review report states that, before the creation of the heritage policy, the plaintiff had received approval to subdivide the land into two lots, and had proceeded to gain approval for a two-storey residence on the western lot.

The town refused the application because development of the concerned land, which faced the Swan River, would have an adverse impact on the surrounding riverside escarpment.

The riverside escarpment area is considered by the Town of East Fremantle to be of heritage value and regional significance.

In the Town of East Fremantle planning scheme it rules that designated areas of heritage value should be retained in their current state, however the scheme also provides opportunity for claims of compensation in circumstances where land values are affected because of the town’s refusal to approve a development.

The opportunity to claim compensation is also found in the Town Planning and Development Act 1928 (TDPA) and the Metropolitan Regional Town Planning Scheme Act. 

According to the Cayton Utz report the TDPA delineates where compensation cannot be claimed, including where town planning provisions are designed to improve amenity or conserve heritage value. But these exemptions do not apply if the provisions are purely for public purpose.

As a result of these provisions, the plaintiff’s case was fought on the grounds that the Town of East Fremantle planning scheme removed the owner’s right to develop their land.

Freehills associate Andrew Carr said while there was potential for other heritage compensation cases to go through the TDPA, it was unlikely that the Cornell v Town of East Fremantle would set a precedent for future cases.

Mr Carr said it was unusual for a scheme to contain an express right to claim compensation for adverse local government decisions made on heritage grounds.

He said communities were becoming more aware of heritage issues and that, equally, developers needed to be aware of heritage issues that applied to their area.

“We will see more heritage policies in the future. Local government will have more of a focus on it,” Mr Carr said.

WA Local Government Association president Clive Robartson said the case had not set a precedent for future cases against local governments.

It was critical to local government and the community that heritage issues were resolved.

“We certainly have processes in place to ensure that,” Mr Robartson told WA Business News.