Mandurah Enterprises Pty Ltd v Western Australian Planning Commission

The High Court of Australia considered an appeal concerning the compulsory acquisition of parts of several lots of land by the Western Australian Planning Commission (WAPC). The dispute arose because portions of these lots, initially reserved under a town planning scheme for primary regional roads, were subsequently acquired for railway and primary regional road purposes. The landowners, Mandurah Enterprises Pty Ltd and others, challenged the validity of the acquisition, arguing that land reserved for one purpose could not be acquired for another, and questioning the validity of the acquisition under both the *Town Planning and Development Act 1928* (WA) and the *Land Administration Act 1997* (WA).

The central legal issues before the High Court were whether the WAPC's compulsory acquisition of the whole lots was valid, particularly where portions were acquired for public works and other portions were acquired to avoid statutory obligations related to access, and whether the acquisition could be severed to uphold the valid parts while invalidating the invalid parts. Specifically, the court had to determine if the acquisition of land to avoid the obligation to construct railway crossings was incidental to the purpose of a public work, and if a single taking order could effect both valid and invalid acquisitions.

The High Court reasoned that the *Land Administration Act 1997* (WA) permitted the compulsory acquisition of land for the purposes of a public work. While the initial reservation of parts of the lots for regional roads was valid, the subsequent acquisition of the entirety of certain lots for railway and road purposes was partially invalid. The court found that the acquisition of the portions of lots zoned urban or industrial was invalid, as these acquisitions were not for the purposes of a public work. However, the acquisition of the portions of the lots reserved for regional roads and the entirety of Lot 49 were considered valid. The court noted that the common law principle of severance could potentially apply to distinguish between valid and invalid acquisitions within the same taking order, but ultimately found it unnecessary to definitively rule on severance given the specific relief granted.

The High Court allowed the appeal in part, declaring that the taking order of 5 August 2003 was invalid concerning the portions of Lots 7, 8, and 30 that were zoned urban or industrial under the Peel Region Scheme. Consequently, the interests of the appellants in these specific portions were not extinguished. The court set aside certain orders of the Court of Appeal and the primary judge, substituting them with declarations and referring the matter back to the primary judge for further determination. The respondent was ordered to pay half of the appellants' costs.