JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DE JONGE and METROPOLITAN REDEVELOPMENT AUTHORITY [2023] WASAT 91
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 2 MAY 2023 AND 25 AUGUST 2023
DELIVERED : 26 SEPTEMBER 2023
FILE NO/S: DR 166 of 2022
BETWEEN: TIMOTHY KLAAS AND LYNNETTE ROCHELLE DE JONGE
Applicants
AND
METROPOLITAN REDEVELOPMENT AUTHORITY
Respondent
Catchwords:
Town planning - Compensation for injurious affection arising from a redevelopment scheme - Question for the Tribunal - Effect of structure plan - Whether structure plan made under redevelopment scheme - Whether land is set aside either expressly or constructively for public purpose under the Scheme - Whether existence of discretion not to apply structure plan is a shield to injurious affection
Legislation:
Approvals and Related Reforms (No. 4) (Planning) Act 2010 (WA), s 68
Armadale Redevelopment Scheme No 2, cl 1.3, cl 1.3(3), cl 1.4, cl 1.13, cl 1.13(2), cl 2.1, cl 2.2, cl 3.0, cl 3.4, cl 3.4.1, cl 4.1, cl 4.2, cl 4.7, cl 4.8(1), cl 5.4, cl 5.5, cl 5.6(1), cl 5.15(1), cl 5.15(2), cl 5.18, cl 5.18(1), cl 5.19, cl 5.19(1), cl 6.1, cl 6.2(1), cl 6.2(3), cl 6.4, cl 6.5, cl 6.6, cl 6.7, cl 7.1, cl 7.2, cl 7.4, cl 9.1(1), cl 9.1(2), cl 9.3(1), cl 9.4, cl 9.6, cl 9.6(2), cl 9.6(2)(a), cl 9.6(3), cl 9.6(4), cl 9.6(5), cl 9.9, Appendix 1, Appendix 2, Appendix 3, Appendix 4, Appendix 5, cl 1.3, Table 6.1, Table 6.2
Environmental Protection Act 1986 (WA), s 48F(2)
Interpretation Act 1984 (WA), s 5
Land Administration Act 1997 (WA)
Metropolitan Redevelopment Authority Act 2011 (WA), s 3, s 4, s 7(1)(a), s 7(1)(b)(i), s 7(2), s 18, s 20, s 29(1), s 30(5)(c), s 38(3), s 38(6)(a), s 38(7), s 41, s 42, s 45, s 46, s 47, s 48, s 51, s 53, s 53(1), s 53(2), s 60, s 66(1), s 66(1)(d), s 66(2), s 66(4), s 69, s 75, s 75(1), s 75(1)(a), s 75(1)(c), s 75(2), Pt 4, Pt 5, Pt 6, Div 3
Metropolitan Redevelopment Authority Bill 2011 (WA), cl 75
Metropolitan Redevelopment Authority Regulations 2011 (WA), reg 14
Metropolitan Region Scheme, cl 30(1)
Metropolitan Region Town Planning Scheme Act 1959 (WA) (repealed), s 36
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67, cl 67(1)
Planning and Development Act 2005 (WA), s 3(2), s 87(4), s 173, s 174, s 174(1), s 174(1)(a), s 174(1)(b), s 174(1)(c), s 176, s 176(1), s 177, s 177(1), s 180, s 184(3), s 184(4), s 187, s 188, s 192, s 198, s 199(2), Pt 7, Pt 11, Div 1, Div 2, Sch 7, cl 13(4), cl 15(1)
State Planning Policy 3.6 Infrastructure Contributions, cl 3
Town Planning and Development Act 1928 (WA) (repealed), s 12(2a)(b)(i)
Western Australian Planning Commission Act 1985 (WA) (repealed)
Wungong Urban Water Redevelopment Scheme 2007 (WA)
Result:
Finding that land is not injuriously affected
Category: A
Representation:
Counsel:
| Applicants | : |
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- AGLC
- DE JONGE and METROPOLITAN REDEVELOPMENT AUTHORITY [2023] WASAT 91
- Case
- [2023] WASAT 91
- Decision Date
CaseChat Overview and Summary
The primary legal issues in the case revolved around the effect of the structure plan on the compensation claim. The key questions included whether the structure plan was made under the redevelopment scheme, whether the land in question was set aside either expressly or constructively for a public purpose under the scheme, and whether the existence of discretion not to apply the structure plan could be a shield against claims of injurious affection. The court had to interpret the relevant provisions of the Metropolitan Redevelopment Authority Act 1987 (WA) and the Public Development Act 1967 (WA), as well as the redevelopment scheme itself.
In determining these issues, the court examined the redevelopment scheme, which was based on an outcome-oriented approach. The court noted that the scheme conferred a broad discretion on the MRA regarding development approval. However, the court found that the requirement to have 'due regard' to a structure plan did not mean that the MRA could ignore the plan entirely. The court held that the identification of the land as a living stream in the structure plan effectively set it aside for a public purpose, which satisfied the requirements of section 75(1)(c) of the MRA Act read with section 174(1)(a) of the PD Act. The court also held that the existence of discretion to not apply the structure plan did not shield the MRA from claims of injurious affection.
The court found in favour of the plaintiff, awarding compensation for the injurious affection of the land. The court ordered the MRA to pay the plaintiff compensation in the amount determined by the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
For completeness, I should also add that there is nothing surprising or controversial about the location of the living stream being adjusted as more detailed site-specific planning was undertaken. The WUWRS expressly stated that the Master Plan Elements shown on the Master Plan may not be settled or fixed until the more detailed structure plans are prepared.[83] The WUWRS is part of the legislative history of the Scheme and informs its construction.[84] [83] WUWRS, cl 3.10A (7). [84] Plaintiff S927/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 [24] (Crennan, Bell, Gageler and Keane JJ). And so it goes. The Structure Plan for Precinct 16 re-aligned the location of the living stream onto the Land. But that does not mean that living streams are no longer to be regarded as mandatory. All that has happened is that the detailed planning for Precinct 16 resulted in a decision to adjust its location. However, the requirement to deliver that living stream, arising from cl 3.4 of the Scheme, remains. The Structure Plan fixes the location. I am satisfied, and so find, that the identification of the Land as a living stream means that it has, in effect, been set aside (that is ‘reserved’) for a public purpose under the Structure Plan. However, as I will come to explain, the setting aside of land for a public purpose in the Structure Plan does not, without more, satisfy the requirements of s 75(1)(c) of the MRA Act read with s 174(1)(a) of the PD Act. The existence of discretion is not an answer to injurious affection The Scheme adopts what it says is an outcome-based approach. As Pritchard J explained in Marshall, the MRA Act confers on the Authority a broad discretion as to whether to approve development.[85] In the context of development control under the Scheme, the decision as to whether to approve a proposed development is, in all instances, discretionary. That is so, even in circumstances where the proposed development involves a land use in question that is neither a preferred nor contemplated use under the Scheme.[85] Marshallv Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) (Pritchard J) [210]. The fact that it retains a discretion at the development control stage, and that it is not bound to apply the Structure Plan, are central planks in the Respondent's case that the Land is not injuriously affected. The Respondent submits that the requirement to have 'due regard' to a structure plan means that, as a matter of law, the Authority cannot treat the Land ‘as if’ it was reserved under the Scheme. Furthermore, the Respondent submits that the Structure Plan speaks to proposed future uses (such as living streams) which may be incorporated into the Scheme in the future.[86][86] Respondent's outline of submissions, paras 109 to 116. Of course, I accept that as a matter of law, the requirement to 'have regard to'[87] and 'have due regard for',[88] amount to something less than a requirement that must be applied.[89] In Marshall, Pritchard J found that the requirement is only that the relevant matter be 'actively' or 'positively' considered'.[90][87] MRA Act, s 66(1)(d).[88] Scheme, cl 5.18(1).[89] Marshall [112] - [113].[90] Marshall [114] - [115].