Ruling hits developers

A RECENT decision by the Town Planning Appeals Tribunal could have big ramifications for property developers.

The decision related to an appeal by Temwood Holdings which wished to subdivide an area of its Singleton estate, Bayshore Gardens, into 23 residential lots.

The WA Planning Commission placed a condition on the subdivision approval, that the developers had to give up, without compensation, a 20ha beachside portion of the land for public use, under Section 28 of the Town Planning and Development Act.

This was on top of the land already given up for a primary school and public open space.

Temwood Holdings argued this was unreasonable but lost the appeal.

Phillips Fox law firm partner Paul McQueen said the decision, which was handed down in late March, formalised the power of the WA Planning Commission to impose conditions on subdivisions.

“If developers apply to subdivide some land a condition could be imposed that they have to give up part of that land with no compensation for public space,” Mr McQueen said.

“And if a condition is imposed before a claim for compensation is made, the right to compensation will be lost.”

Mr McQueen also noted WAPC could require the land to be given up with the start of stage one of a development, even if it related to a later stage.

“Developers will have to get appropriate legal advice in regard to this decision … they must be aware they can have land taken from them,” he said.

Real Estate Institute of WA public affairs director Lino Iacomella said while this issue had been around for some time, it had now been made more specific to property developers with the tribunal’s decision.

“But the importance and implications of this decision are not yet clear… and will need careful consideration,” Mr Iacomella said.

“There are important questions that need to be asked; what effect will the decision have on land for housing developments and other uses? And will it restrict development?”

Solomon Brothers solicitor for Temwood Holdings, Jeremy Giles, said the firm had been instructed to lodge an appeal against the decision with the Supreme Court.

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