A recent decision in the State Administrative Tribunal has confirmed the limits of claims for injurious affection, but not without some pause for thought. Through his determination in De Jonge and Metropolitan Redevelopment Authority [2023] WASAT 91 (Decision), Senior Member Dr S Willey (Senior Member) has (albeit regretfully) reiterated that only the planning scheme can injuriously affect land for the purposes of section 174(1)(a) of the Planning and Development Act (2005) WA (PD Act).
Timothy and Lynette De Jonge (Applicants) are the owners of 1442 Rowley Road, Wungong (Land). The Land is the Applicants’ principal place of residence and falls within a ‘redevelopment area’ declared under the Metropolitan Redevelopment Authority Act 2001 (WA) (MRA Act). By reason of a portion of the Land being identified as a ‘living stream’, the Applicants claimed that their Land was injuriously affected and capable of compensation pursuant to section 174 of the PD Act. The Metropolitan Redevelopment Authority (Respondent) disagreed, asserting that the Land must be (and was not) reserved under the Armadale Redevelopment Scheme No 2 (Scheme) to warrant injurious affection under section 174(1)(a) of the PD Act.
Importantly, the Applicants brought their claim in injurious affection (and resulting claim for compensation) under section 174(1)(a) of the PD Act. With this, the Senior Member clarified that the Decision was restricted to considering injurious affection under section 174(1)(a) of the PD Act.
Section 174(1)(a) of the PD Act says that land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if:
(a) That land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose.
The principal issue between the parties in this matter was whether the Land (identified as a ‘living stream’) was zoned or reserved for a public purpose under the Scheme, and therefore injuriously affected under section 174(1)(a) of the PD Act.
In determining the issue of injurious affection under section 174(1)(a) of the PD Act, the parties each asserted differing applications of section 75(1) of the MRA Act to the PD Act.
Whilst the Applicants claimed that section 75(1)(c) of the MRA Act did not engage sections 174(1)(b) or 174(1)(c) of the PD Act (and therefore combined reserves and land zoned for public purposes into one category), the Respondent claimed that the provisions relating to injurious affection under the PD Act operated within their own spheres and were therefore not combined. As such, the Respondent maintained that the Land was not reserved under the Scheme.
In addition, the Respondent highlighted the fact that that the Land was identified as a ‘living stream’ within the Structure Plan. From this, the Respondent asserted that the Structure Plan was not part of the Scheme, and as such, the Land was not reserved under the Scheme.
At the outset, the Senior Member highlighted that the mere regulation of land and land uses by a planning scheme is not, of itself, injurious affection.
In the context of the PD Act, injurious affection was described by the Senior Member as ‘a label that recognises the damage or deleterious effect that planning schemes can have on the value, and the use and enjoyment of, land.’ From this, compensation for injurious affection was described as an ‘interim payment which recognises this damage.’
With reference to the differing interpretations of the MRA Act, the Senior Member described the proper construction to be ‘clear and unambiguous’, and stated that section 75(1)(c) makes it plain that a redevelopment scheme may either reserve or zone land for a public purpose. From this, the Senior Member favoured the Respondent’s interpretation, and clarified that section 75(1)(c) does not operate to exclude either sections 174(1)(b) or 174(1)(c).
In contrast, the Senior Member’s deliberations relating to section 174(1)(a) were less clear cut. The Senior Member accepted that the identification of the Land as a living stream meant that the Land was, in effect, set aside (reserved) for a public purpose under the Structure Plan. In addition, the Senior Member stated that ‘it is beyond doubt that the Applicants suffered a tangible loss.’
However, the Senior Member then queried the link between the Scheme and the Land as reserved, and said, ‘It is not enough for the Structure Plan to simply identify the Land as living stream in order to sustain a claim of injurious affection.’
Whilst the Land was identified by the Structure Plan as one of the ‘Master Plan Elements’, the Land was not included in a place code. This, in effect, meant that the Land was not ‘zoned’ by the Scheme.
Further, whilst the Metropolitan Redevelopment Authority was bound to have ‘due regard’ to the Structure Plan, they were not bound to follow the Structure Plan as part of the Scheme. Whilst the Senior Member clarified that the existence of discretion was not, of itself, a shield to injurious affection, he could not be satisfied that the Land was reserved ‘under the Scheme’.
As such, the Senior Member stated: 'Ultimately, despite my findings above, all of which go in the Applicants' favour, and with regret, the conclusion that I find I am
compelled to reach is that the Land is not injuriously affected by the Scheme.'
This Decision serves to demonstrate the complexity of claims for injurious affection of land and the significant threshold for triggers of such claims.
In particular, whilst the State Administrative Tribunal have made a decision confirming that land ‘reserved’ under a scheme can be the subject of a claim for compensation, it highlights the inequities of Structure Plans ‘requiring’ land for a public purpose (without subsequent reservation in a scheme).
Whilst the Senior Member was bound to apply the law consistently, he stated that the Authority’s ‘success’ in the proceeding ‘warrants some reflection’.
Despite his confirmation that injurious affection under section 174(1)(a) of the PD Act is contingent upon the involvement of the Scheme, the Senior Member’s final comments suggest a view that private land identified for a public purpose should be formally reserved in a scheme to avail a landowner of compensation on just terms.
