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46 Money St
Perth, WA, 6000
Australia

+61 8 6460 5179

Planning and Environment Law Firm Perth. 

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2017 Doyle’s Guide – Planning and Environmental Law

Sam Lander

We are pleased to announce that Principal Glen McLeod has been recognised in the 2017 Doyle’s Guide as a pre-eminent legal practitioner in the areas of town planning and environmental law.

Glen McLeod has been practising town planning and environmental law for 40 years and in 2016 was the Law Society of WA’s Lawyer of the year.

At Glen McLeod Legal we pride ourselves on achieving sound outcomes and maintaining the highest commitment to lasting client relationships.

Our team provides authoritative and strategic advice as well as conducts significant litigation relating to development and subdivision approvals or compliance with development conditions, land compensation and valuation law claims, developer contributions for infrastructure, native vegetation clearing permits or prosecutions and contaminated sites or waste obligations.

We would be delighted to discuss with you or your clients any town planning or environmental law challenges that may be effecting your business.

WHO CAN CLAIM COMPENSATION FOR A PUBLIC PURPOSE RESERVATION?

Sam Lander

An important decision of the High Court was made on 8 February 2017, when it allowed an appeal against a decision of the Western Australian Court of Appeal on a landowner’s right to claim compensation for the loss in value of land affected by a public purpose reservation.

Southregal Pty Ltd and Mr David Wee together entered into a contract to buy a parcel of land. Prior to settlement of the contract, part of the land was reserved for regional open space under the Peel Region Scheme, a planning scheme made pursuant to the Planning and Development Act 2005 (WA) (PD Act). After settlement, the landowners applied to the Western Australian Planning Commission (WAPC) for approval to develop the land.

The WAPC refused the development application and the landowners submitted a claim for compensation under section 173 of the PD Act, which provides that ‘a person whose land is injuriously affected by the making … of a planning scheme is entitled to obtain compensation’. The WAPC declined each claim on the basis that the landowners did not meet the requirements of section 173. The WAPC asserted that only owners of land at the time the land is reserved, and not subsequent purchasers, are entitled to compensation.

The landowners were successful in the Supreme Court of Western Australia.[1] The trial judge held that section 173 must be interpreted in light of the requirements in section 177(2), which allows for later purchasers to receive payment for the reservation of land. Accordingly, Beech J held that the plain meaning of section 177 gave the owner of land at the date a development application was refused a right to compensation.

On appeal to the WA Court of Appeal, the landowners were also successful.[2] The WAPC argued that when section 177(2)(b) is read in the context of section 173(1), the only persons entitled to obtain compensation under section 177(2)(b) are those who were owners at the date the land was reserved. The landowners argued that the words “owner of the land at the date of application” in section 177(2)(b) would be denied their natural and ordinary meaning if they were to be read as only extending to owners of land at the date of reservation.

However, the High Court allowed an appeal from the Court of Appeal decision.[3] The majority held:[4]

  • section 173(1) confers on the landowner an entitlement to, and identifies who may claim, compensation in the event that land is injuriously affected by the making or amendment of a planning scheme;
  • section 177(1) provides for the point in time at which compensation is liable to be paid. That is either when the land is sold or when the development application is refused or approved with conditions unacceptable to the applicant;
  • once a claim is triggered by one of the events in section 177(1), a later occurrence cannot trigger further claims. In the present case, once the land was sold to the respondents, the refusal of their development applications could not trigger a claim for compensation; and
  • like section 177(1), section 177(2) does not identify persons who may claim compensation. Its purpose is to identify the person to whom payment is made. Section 177(2)(b) ensures that payment is made to the landowner, despite the possibility that it may be a different person making the application for development approval. It is not intended to extend the category of persons entitled to make a claim.

Implications of Southregal

  • The Court did not consider in any detail whether an ‘owner’ includes testamentary or intestate succession, although until this point is clarified it would be safe to assume that the transfer of ownership extends to testamentary or intestate succession of the land.
  • Only an ‘owner’ of land at the date of reservation can claim compensation for injurious affection.
  • The ‘owner’ of land may include ownership obtained through testamentary or intestate succession from the owner at the date of the reservation.
  • Subsequent purchasers of reserved land cannot claim compensation for injurious affection.
  • Owners of reserved land may claim compensation either when they sell the land or when a development application is refused or approved subject to unacceptable conditions.

If you are seeking clarification on your rights to claim compensation, please do not hesitate to contact the team at Glen McLeod Legal.

 

[1] Leith v Western Australian Planning Commission [2014] WASC 499.

[2] Western Australian Planning Commission v Southregal Pty Ltd & Anor; Western Australian Planning Commission v Leith [2016] WASCA 53; 332 ALR 477.

[3] Western Australian Planning Commission v Southregal Pty Ltd & Anor; Western Australian Planning Commission v Leith [2017] HCA 7.

[4] see Kiefel and Bell JJ at [1] - [56]; Gageler and Nettle JJ at [57]-[95]; C.f. Keane J dissent at [96]-[170].

Glen McLeod Legal welcomes its newest recruits

Sam Lander

Three new law students have been welcomed to the office. To get to know our newest staff members, please see the below summaries.  

Sophia Drazevic began clerking at Glen McLeod Legal in January this year, whilst completing her second year of a double degree at Notre Dame University; studying a Bachelor of Laws and Bachelor of Arts majoring in Politics and International Relations. Beyond work Sophia is a student mentor at university and the award leader for the Duke of Edinburgh Award at Notre Dame, while also serving at St Georges Cathedral on a regular basis. Additionally, Sophia appreciates playing golf and going sailing as often as she can. Sophia has a strong interest in planning, rural and commercial law and is enjoying enhancing her understanding and skills within these areas at Glen McLeod Legal.

Chelsea White started at Glen McLeod Legal in March of this year and is in her fourth year of a double degree at Murdoch University, studying a Bachelor of Laws and Bachelor of Arts majoring in Sustainable Development. Chelsea has previous work experience as a Law Clerk when she began clerking at MGB Legal 14 months ago. Outside of work she is a volunteer Surf Life Saver and IRB Crewie for the Coogee Beach Surf Life Saving Club and enjoys playing social mixed netball. Chelsea has a keen interest in environmental law and responsible urban and regional development. She looks forward to working in these areas at Glen McLeod Legal.

Samuel Lindsay is a clerk who began at Glen McLeod Legal in March. He is in his second year of the Juris Doctor at the University of Western Australia, having graduated with a Bachelor of Arts in 2015. Samuel has previously worked in various advocacy roles, including in the Aboriginal Legal Service and a human rights NGO in Morocco, and currently volunteers as a legal assistant for the Subiaco Legal Service. Outside of legal work, he enjoys lifeguarding, soccer, and travelling the world. Samuel has a keen interest in environmental and planning law, and is quickly developing his skills in these areas at Glen McLeod Legal.

State Planning Policy 3.7 – Planning in Bushfire Prone Areas

Sam Lander

Western Australians, particularly those living in rural areas, are well versed on the threat of bushfires every summer. State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7) and its associated Guidelines for Planning in Bushfire Prone Areas were introduced in 2015, in an effort to reduce the impact that bushfires have had on property, infrastructure and most importantly, lives. The policy applies to all land designated as bushfire prone by the Fire and Emergency Services (FES) Commissioner and addresses how bushfire risk management should be implemented. The current map of bushfire prone areas can be found on the website of the Department of Fire and Emergency Services.

SPP 3.7 requires high risk development applications to contain a Bushfire Management Plan (BMP), and for an assessment of the bushfire attack level (BAL) to be undertaken; where the application must receive a BAL below 12.5 to avoid an assessment against the bushfire protection criteria. These criteria consist of four elements; location, siting and design of development, vehicular access and access to water. Each element includes; a desired outcome, acceptable solutions and a statement of how to best achieve the intent of the relevant bushfire element.

Through our experience in acting for clients developing land in bushfire prone areas, we have found that one of the most challenging requirements in SPP 3.7 is the need in some instances for land to be serviced by two public roads. We make the comment that entire town sites such as Yallingup and Grace Town in the South West are accessed by a single public road and therefore, would fall short of the requirements of SPP 3.7.

Future development in bushfire prone areas should be guided by a strong understanding of SPP 3.7 and its implications. The Department of Fire & Emergency Services has advised that applications for development or subdivision in vulnerable areas will not be supported unless accompanied by an effective and workable BMP developed by an accredited bushfire practitioner. These new measures are in place to preserve life and mitigate against the risk of bushfires, though it may result in developers being refused approval for projects if the appropriate bushfire prevention regulations are not met. Please contact the Glen McLeod Legal team if you would like to discuss your development in a bushfire prone area or would like to clarify any aspect of SPP 3.7.