Leith v Western Australian Planning Commission - [2014] WASC 499

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEITH -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASC 499

CORAM: BEECH J

HEARD: 26 NOVEMBER 2014

DELIVERED : 22 DECEMBER 2014

FILE NO/S: CIV 1921 of 2014

BETWEEN: TREVOR NEIL LEITH
Plaintiff
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant

FILE NO/S :CIV 1922 of 2014

BETWEEN :SOUTHREGAL PTY LTD
DAVID STEPHEN WEE
Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant

Catchwords:

Town planning - Planning scheme - Injurious affection - Compensation - Whether compensation available to person who subsequently purchased property from owner at the time scheme came into effect

Legislation:

Planning and Development Act 2005 (WA), s 173, s 177, s 178

Result:

Question answered favourably to plaintiffs

Category: A

Representation:

CIV 1921 of 2014

Counsel:

Plaintiff: Mr P D Quinlan SC & Mr P McQueen
Defendant: Mr K M Pettit SC & Mr P D Lochore

Solicitors:

Plaintiff: Lavan Legal
Defendant: State Solicitor for Western Australia

CIV 1922 of 2014

Counsel:

Plaintiffs: Mr P D Quinlan & Mr P McQueen
Defendant: Mr K M Pettit SC & Mr P D Lochore

Solicitors:

Plaintiffs: Lavan Legal
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

AB v The State of Western Australia [2011] HCA 42; (2011) 244 CLR 390
Bond Corp Pty Ltd v Western Australian Planning Commission [2000] WASCA 257; (2000) 110 LGERA 179
Comcare Australia v Pires [2005] FCA 747; (2005) 143 FCR 104
Commissioner for Corrective Services v RAJ [2014] WASC 338
Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449
IW v City of Perth (1997) 191 CLR 1
Kavalee v Burbidge (1998) 43 NSWLR 422
Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 78 ALJR 1022
Marshall v Director General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285
Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
BEECH J:

Introduction

The plaintiffs in both of these actions claim that they are entitled to compensation from the defendant, the Western Australian Planning Commission (WAPC), under s 177 of the Planning and Development Act 2005 (WA) (the PD Act). The WAPC denies that they are entitled to compensation.
By consent, special cases have been stated for the determination of a question of law. There is an issue about the form of the question.
The plaintiffs are the owners of land that is reserved under the Peel Region Scheme (PRS) for regional open space. Neither plaintiff was the registered proprietor of the land at the time the PRS came into effect. Subsequent to the PRS coming into effect, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 499
Decision Date: 22 DECEMBER 2014

CaseChat Overview and Summary

The case of Leith v Western Australian Planning Commission involved a dispute between the respondent, Leith, and the Western Australian Planning Commission. The respondent sought compensation for an injurious affection of his property due to the implementation of a planning scheme. Leith had not been the original owner of the property at the time the planning scheme came into effect, but he subsequently purchased it after the scheme was implemented. The legal question before the court was whether compensation was available to someone who did not own the property at the time the injurious affection occurred.

The court considered whether compensation was available under the applicable legislation to a person who did not own the property at the time the injurious affection occurred. The court examined the relevant statutory provisions and the principles established in previous case law. The court concluded that compensation was not available to the respondent because he did not own the property at the time the injurious affection occurred. The court held that compensation was only available to the owner of the property at the time the injurious affection occurred. The court further held that the statutory provisions did not provide for compensation to subsequent owners who did not own the property at the time the injurious affection occurred.

The court's reasoning was based on the statutory provisions and the principles established in previous case law. The court held that the statutory provisions did not provide for compensation to subsequent owners who did not own the property at the time the injurious affection occurred. The court held that the owner of the property at the time the injurious affection occurred was the only person entitled to compensation. The court also held that the statutory provisions did not provide for compensation to subsequent owners who did not own the property at the time the injurious affection occurred. The court's decision was based on a strict interpretation of the statutory provisions and the principles established in previous case law.

The court dismissed the respondent's claim for compensation. The court held that the respondent was not entitled to compensation because he did not own the property at the time the injurious affection occurred. The court further held that the statutory provisions did not provide for compensation to subsequent owners who did not own the property at the time the injurious affection occurred. The court's decision was final and binding, and the respondent's claim for compensation was dismissed.

Orders