Can a structure plan reserve land?

The Supreme Court of WA on 21 March 2017 handed down its decision in the long running saga of Scutti v City of Wanneroo [2017] WASC 70, by upholding the earlier decision of the State Administrative Tribunal in City of Wanneroo and Scutti [2016] WASAT 102, dealing with whether land can be injuriously affected and therefore compensation potentially payable by the making of a local structure plan.

Background

Under the City of Wanneroo District Planning Scheme No. 2 (DPS2) the appellants’ land was located within the Urban Development Zone.

The Zoning Table of DPS2 did not specify any permitted uses within the Urban Development Zone, but provided that permissibility of uses in the Urban Development Zone is to be specified in clause 3.14.4 of DPS2.

Clause 3.14.4 of DPS2 provided that the permissibility of uses in the Urban Development Zone, subject to some minor exceptions, shall be determined in accordance with the provisions of the relevant Agreed Structure Plan.

In the circumstances of this matter, an Agreed Structure Plan (ASP6) was approved in respect of the appellants' land and its surrounds in about 2002.

Relevantly, ASP6 identified substantial parts of the appellants’ land as located within an area of public open space.

Following adoption of ASP6, the first appellant applied for development approval to construct a rural shed on her lot (the shed application).

That application was refused for three reasons, one being that approval of the proposed shed would prejudice the future planned use of the site (for public open space) contrary to ASP6.

Subsequently, the appellants together applied for development approval to construct grouped housing on their combined land (the residential application).

The appellants lodged a claim for compensation for injurious affection with the respondent, due to the fact that ASP6 constrained the ability to develop the land for no other purpose, other than public open space, which they submitted was a public purpose.

The respondent disputed the claim, and applied to the State Administrative Tribunal (SAT) for a determination of whether the land was indeed injuriously affected.

The SAT in City of Wanneroo and Scutti [2016] WASAT 102, at first instance, found that the provisions of a local structure plan, together with certain clauses of DPS2, were capable of injuriously affecting the appellants' land within the meaning of the Planning and Development Act 2005 (WA) (PD Act).

However, the SAT determined that as the land in this case was identified only as “public open space” in ASP6, and not “reserved for public open space under DPS2”, the land was not injuriously affected for the purposes of the PD Act.

The appellants appealed that decision to the Supreme Court (Court).  One of the arguments raised by the appellants was that the term “reserved” means “set apart”, and more particularly, that the reservation of land for a public purpose sets aside land for such purpose, irrespective of whether the word “reserve” is used in the planning instrument which imposes the restrictions.

The Court dismissed that argument by referring to an old Victorian case [Van der Meyden v Melbourne and Metropolitan Board of Works [1980] VR 255] dealing with whether land in a conservation zone was reserved for the purpose of an injurious affection claim, and found that the language used in the legislation indicates that a specific reference to the land being “reserved” was required to be identified on the plan, and anything short of that was insufficient for the land to be considered “reserved” (and for a valid claim to be made).

The appellants also argued that the identification of the appellants’ land as Public Open Space on ASP6 had the effect of prohibiting development for everything except a public purpose.  The Court dismissed that argument by way of reference to clause 67(1) of the Deemed Provisions set out at Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), which provides that a decision maker is to have due regard to, but is not bound by, the terms of a structure plan.

Further, the Court also made particular reference to the decision of the City to refuse the applications for development approval, and noted that the reasons for refusal did not explicitly say that no purpose other than a public purpose was permitted, but instead stated that the proposed use was contrary to the future planned use of the site for public open space.

Lavan Comment

While the reasoning of the Court is technically complex, the main take way elements of the case appear to be:

  • The Supreme Court has confirmed that structure plans are not binding and are only one of a number of considerations to which a decision maker is to have due regard (consistent with clause 67 of Deemed Provisions);
  • Notwithstanding the above point, a scheme may nevertheless defer power to a structure plan to identify land which is reserved for the purposes of the scheme.   However, this will depend upon the precise terms of the scheme and the identification of the “reservation” in structure plan;
  • What is required, assuming that a scheme gives power to a structure plan to identify reserved land for the purpose of an injurious affection claim, is for the structure plan to specifically identify land as “reserved" for the purposes of the scheme, and perhaps include reference to a particular provision of a scheme; and
  • In circumstances that a scheme gives power to a structure plan to identify reserved land, it is not sufficient for a claim for injurious affection to be made in circumstances that land is identified only as “public open space”, with no reference to a "reservation" under a scheme.

What that means is that owners of land should carefully consider the terms of a structure plan and the provisions of the scheme which give it power.

Unless and until the case is successfully appealed, property developers and landowners within structure planning areas should be aware of the implications of this case.

Anyone who is involved in land affected by a structure plan should consider obtaining specialist legal advice in respect of their particular site, especially if the structure plan in question identifies any part of the land as reserved or set aside for roads, services, public facilities or public open space.

If you have any queries in this regard, please contact the Land Compensation team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.
AUTHOR
Paul McQueen
General Counsel Partner
AUTHOR
Craig Wallace
Partner
AUTHOR
Alex McGlue
Special Counsel
SERVICES
Land Compensation
Planning, Environment & Land Compensation
Metronet


FOOTNOTES

[1] Western Australian Plannning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30