An aerial view of a roundabout

In general terms, section 159 of the Planning and Development Act 2005 (WA) allows an earlier subdivider of land, who constructs or provides a road for the purposes of the subdivision, to recover half of the costs of that road from a later subdivider of land who makes use of the road.

  1. I am ‘the earlier subdivider’ – do I have a claim against the ‘later subdivider’?

There are three limbs to making a claim which the earlier subdivider must show. First, does the later subdivider have use of an existing road? Second, has the earlier subdivider contributed to or borne solely the cost of providing or upgrading a road, with a common boundary to their subdivided land? Third, has the later subdivider contributed to the cost of the road. Whilst these limbs may appear simple to establish, they have been the subject of extensive judicial commentary and legal interpretation which impact on whether there is a claim against the later subdivider.

  1. How quickly do I have to make a section 159 claim?

Under section 160 of the Planning and Development Act 2005 (WA), a claim brought pursuant to section 159 must be commenced within 6 years from the date of the later subdivision. Section 161 clarifies that the ‘date of the later subdivision’ is the date on which the Western Australian Planning Commission endorses the diagram or plan of survey relating to the later subdivision.

  1. How much money could I recover?

Section 159(1) provides that the earlier subdivider  can recover “one-half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road…”. There are various factors which are taken into account to calculate ‘one half’, including land value and construction costs. These calculations are often not straightforward and if legal proceedings are necessary, they are often because parties cannot agree as to the sum of money which should be recoverable.

  1. Guidance – legal issues

While on the face of it a section 159 claim may be simple, there are many issues of interpretation and fact which could affect whether a claim can be made and if so, how much money could be recoverable. Whether you are considering making a section 159 claim against a later subdivider or whether a claim has been made against you, we recommend seeking legal advice at an early stage to navigate this complex area of planning law.

If you would like to discuss a section 159 claim with us, please contact us by telephone on (08) 6460 5179 or by email admin@glenmcleodlegal.com.