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Land rights concern

A COMPENSATION payout of $3 million to conservationist Martin Copley regarding a 309-hectare parcel of land in Ellen-brook has sparked concerns about the erosion of the rights of private property owners.

A judgement handed down by Justice John McKechnie in the case of Mount Lawley Pty Ltd and the Western Australian Planning Commission has prompted debate over whether the ruling sets a new legal precedent in the contentious area of land compensation.

Minister for Planning and Infra-structure Alannah MacTiernan said that, according to the commission’s legal advice, the judgement was soundly based.

The applicant, Mr Copley’s company Mount Lawley Pty Ltd, was claiming more than $20 million in compensation for a reservation the State Government placed over 309ha of a 321ha parcel of land adjacent to Ellenbrook.

Mount Lawley Pty Ltd claimed the land, which was zoned rural prior to the reservation, would have been rezoned urban in the future were it not for the reservation.

Mr Copely was claiming more than $20 million in compensation – a valuation of the land based on an urban zoning.

The $2.3 million compensation payout and a further $600,000 in costs and interest were based on a ruling that the environmental significance of the site, not the reservation, would have prevented Mr Copely from developing it.

In the ruling Judge McKechnie says the central issue is the value of the land at the time a development application was refused in May 1996.

Ferguson Forde director Frank Forde, a land valuer who specialises in the area of compensation, said the ruling in the case of Mount Lawley Pty Ltd and the Western Australian Planning Commission had set a very dangerous precedent.

Mr Forde said valuers were required to disregard the purpose of a reservation when valuing land.

“I think this has very serious ramifications,” he said.

“From a valuer’s point of view, we act for the owners that are affected by government roads or parks and recreation reservations.”

Mr Forde claimed the judge said the land would never have received an urban zoning because of the environmental report or PER on the property.

“ But the report was done for the purpose of the reservation,” he said. “Is the court saying that we [valuers] can’t separate the work done for reservations, including the environmental report.”

Mr Forde said he was concerned this ruling meant that any private land the government wanted to reserve for parks and reservations wouldn’t be worth any more than rural land.

“More and more the government is trying to take away people’s rights to fair compensation,” he said.

Ms MacTiernan claimed there was nothing in the judgement that challenged the existing case law in relation to land compensation cases.

“Our view is that this judgement has just upheld the long established case law,” Ms MacTiernan said.

“That was why we were so prepared to take it to the nth degree.”

She said the ruling did not overturn the principal of disregarding the reservation when valuing land.

“What the appellant said was that if there hadn’t been a reservation the land would have been developed as the rest of Ellenbrook,” Ms MacTiernan said.

“The judge said there were environmental reasons why they would never have got an urban zoning.

“This decision does not turn anything on its head.”

The judgement was a very positive outcome for the Government, considering the applicant was seeking more than $20 million in compensation, she said.

McGees National Property Consulting Damian Molony, who acted for Mr Copely in the matter, said they were currently working with their legal advisers with regards to mounting an appeal.

“The decision has not finally been made yet, but it’s most likely that we will be appealing,” Mr Molony said.

“We would resist from making any comment at this stage.”

 

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