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Can a claim for compensation for injurious affection be made for land identified as ‘public open space’ under a Structure Plan?

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Can a claim for compensation for injurious affection be made for land identified as ‘public open space’ under a Structure Plan?

Angus McLeod

In the recent matter of City of Wanneroo v Scutti [2016] WASAT 102 (Scutti) the State Administrative Tribunal (Tribunal) was faced with a question of whether land identified as ‘public open space’ under the Agreed Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6 (Structure Plan), was injuriously affected pursuant to section 174 of the Planning and Development Act 2005 (WA) (PD Act).  The relevant planning scheme was the Shire of Wanneroo District Planning Scheme No. 2 (Scheme).

The Respondent submitted that the land was reserved within the meaning of s174 of the PD Act because the land was and identified as ‘Public Open Space’ in the ASP 6, thereby having the effect of prescribing its use. The Respondent argued that this prescription caused the land to be classified as a ‘Local Authority Reservation’ under the Scheme and therefore was injuriously affected.

The Tribunal held that pursuant to sections 173 and 174 of the PD Act, injurious affection can only arise as a consequence of making or amending a planning scheme. As such the Tribunal had to determine whether the adoption of a Structure Plan was equivalent to, or could constitute, the making or amendment of the Scheme.

In determining that the two processes were not equivalent, the Tribunal made the following findings:

  • amending a planning scheme requires a rigorous process under sections 72 and 87 of the PD Act including referral to the Environmental Protection Authority (EPA), final determination by the Minister, publication in the Government Gazette, with no appeal; 
  • in contrast, adopting a structure plan does not require referral to the EPA. The final determination is made by the WAPC not the Minister, there is no requirement for gazettal, and there is a right of appeal;
  • the Scheme was gazetted before the Structure Plan and therefore, the Structure Plan could not be said to have been part of the original Scheme, neither did it become upon its adoption, a part of the Scheme;
  • nothing in the Scheme provided that a Structure Plan is incorporated as part of the Scheme. Rather, certain provisions of a Structure Plan may apply ‘as if its provisions were incorporated…and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme’;
  • the Structure Plan was not a Residential Design Code Map within the meaning of the Scheme; and
  • on the above basis, the Structure Plan was not incorporated into the Scheme and its adoption was not equivalent to an amendment of the Scheme.

Importantly, the Tribunal determined that the Structure Plan was a circumstance that caused relevant provisions of the Scheme, that had been in existence since the making of that Scheme, to potentially have the effect of causing injurious affection to the land.

In applying that reasoning and the relevant provisions of the Scheme to the circumstances of Scutti, the Tribunal concluded that nothing in the Scheme or in the text of the Structure Plan could be said to identify the land as a reserve. Thus, no right to claim compensation for injurious affection was available.