14/12/2004 - 21:00

High Court decision favours WAPC

14/12/2004 - 21:00

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THE High Court has overturned a decision by Western Australia’s Full Supreme Court in relation to statutory compensation for property affected by planning schemes.

In a tight decision, the court held that the Town Planning Appeal Tribunal did not make a mistake in law in when it approved the condition on appeal that land reserved under a Metropolitan Regional Scheme be ceded to the Crown free of cost and without compensation.

The court also held that the condition was imposed for a legitimate planning purpose by the WA Planning Commi-ssion and reasonably related to the proposed development.

The land concerned was acquired in Singleton, north of Mandurah, in 1992 by Temwood Holdings Pty Ltd. A section of that land had, 30 years earlier, been put aside under a Metropolitan Regional Scheme.

In 1999 and 2000 Temwood lodged three applications with the WA Planning Commission for subdivision approval. Each was approved, subject to the condition that reserve be ceded to the Crown free of cost and without compensation.

The central issue the court needed to consider was whether the condition that required certain land reserved under a town planning scheme to be ceded free of cost and without compensation in exchange for subdivision approval was legitimately approved by the WAPC.

Phillips Fox planning and compen-sation partner Paul McQueen said the decision held that conditions requiring developers to give up land were valid depending on the circumstances.

As a consequence, potential rights to compensation may be lost unless the claim for compensation had crystallised first, he said.

“The High Court’s landmark decision has important strategic impli-cations for the development industry and holds that the commission has legislative power to require, as a condi-tion of subdivision approval, the ceding of land without the payment of com-pensation, even if reserved,”  he said.

“The imposition of such a condition of planning approval may be valid, even where it defeats a potential right to compensation arising from a scheme reservation.

“There will be a whole host of people who will want to subdivide their land and will be affected by this decision.”

It is understood that TPAT has put off several decisions, waiting for the High Court’s decision, while similar appeals will be affected by the decision.

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