Part 11 of the Planning and Development Act 2005 (WA) (PD Act) sets out the circumstances in which compensation may be paid arising from an adverse planning decision or scheme amendment.
In particular, section 173 of the PD Act provides that any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.
Clause 174 also provides that land is injuriously affected by reason of the making or amendment of a planning scheme, if among other things:
If there is a question as to whether land is injuriously affected, an application may be made to the State Administrative Tribunal (SAT) for a determination of the question under s.176 of the PD Act.
A question arises in circumstances that land is “reserved” under a Local Structure Plan (opposed to a scheme amendment). Such a question recently came to the fore in the matter of City of Wanneroo and Scutti [2016] WASAT 102 (Scutti), where the SAT considered whether, given the operation of the structure planning provision in the Deemed Provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 (Regulations) land depicted as a reserve under an approved and endorsed local structure plan is sufficient for such land to be injuriously affected for the purposes of clause 174 of the PD Act (and therefore whether the landowner is able to claim compensation).
By way of background, the Deemed Provisions are contained in Schedule 2 of the Regulations and have been operational since October of 2015. They draw their statutory authority from section 257B of the PD Act, which states that the Deemed Provisions may be enforced as part of each local planning scheme to which they apply. Accordingly the Deemed Provisions are taken to apply to every local planning scheme in WA and prevail over a local planning scheme to the extent of any inconsistency. The Deemed Provisions are therefore the first port of call in resolving many planning queries, including those related to whether a structure plan can reserve land.
Relevantly part 4 of the Deemed Provisions sets out the procedure for adopting a structure plan and confirms the legal effect of a structure plan. These structure planning provisions now apply to all local planning schemes in WA. The term “structure plan” is defined in the Deemed Provisions to mean a plan for the coordination of future subdivision and zoning of an area of land. Perhaps the most important consequences of the Deemed Provisions in relation to structure plans are that structure plans only guide future development and subdivision proposals and do not bind decision makers. This prevents the scenario, which arguably occurred prior to the Deemed Provisions, where the adoption of a structure plan could be a de-facto rezoning of land, which would occur with minimal input from the WAPC and not in accordance with the scheme amendment requirements in the PD Act.
The Tribunal in considering the Scutti matter confirmed that the depiction of a reserve in a local structure plan does not reserve land for the purposes of the scheme (and therefore there is no right to claim compensation for injurious affection in such circumstances).
What that means is that even if you have land that is depicted as a reserve in a local structure plan, you will require a scheme amendment to depict the land as a reserve under the scheme, before any claim for compensation for injurious affection may arise. Relevantly, the progress of development/subdivision applications in advance of that scheme amendment (but consistent with the Local Structure Plan) can result in an approval being conditioned with the requirement to cede the land free of cost.
Land compensation is a complex area of law and if the correct procedure is not followed rights to claim compensation can be lost.
