Minister for Planning v S B Partitions Pty Ltd
[2009] VSC 333
•11 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4970 of 2009
| MINISTER FOR PLANNING | Plaintiff |
| v | |
| S.B. PARTITIONS PTY LTD | Defendant |
---
JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2009 | |
DATE OF JUDGMENT: | 11 August 2009 | |
CASE MAY BE CITED AS: | Minister for Planning v SB Partitions | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 333 | |
---
TOWN PLANNING – Compensation paid as result of proposed road reservation – After refusal of permits triggering right to claim – Compensation relief or the compensation repayable upon removal of reservation – Planning and Environment Act 1987 ss 98, 99, 110, 111.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S. Porritt | Victorian Government Solicitor’s Office |
| For the Defendant | Mr S. Wilson | Vincent Verduci & Associates |
HIS HONOUR:
The town planning legislation of this and other States uses two broad categories of land use control to regulate the use of land pursuant to planning schemes. The first provides for the zoning of land to regulate the use of land by private individuals.[1] The second provides for the reservation of land for present or future public purposes.[2]
[1]Section 6(2)(b) of the Planning and Environment Act 1987 provides:
… a planning scheme may –
…
(b)regulate or prohibit the use or development of any land;
[2]Section 6(2)(c) of the Planning and Environment Act 1987 provides:
… a planning scheme may –
…
(c)designate land as being reserved for public purposes;
In turn the Planning and Environment Act 1987 (‘the P & E Act’) provides by ss 98 and 99 that if privately owned land is reserved or proposed to be reserved for public purposes, a right to compensation for consequential loss accrues to the owner or occupier of the land, in the event of further specified trigger events (potentially associated with crystallisation of loss). [3]
[3]Likewise compensation may be payable for financial loss suffered by the owner of land as the result of the removal or lapsing of a reservation – Planning and Environment Act 1987 s 107.
When compensation is paid pursuant to ss 98 and 99, it must be noted on title pursuant to s 110 of the P & E Act.
Further if a reservation or proposed reservation which has given rise to a payment of compensation pursuant to ss 98 and 99, is removed from the planning scheme (in the case of a reservation) or lapses or is abandoned (in the case of a proposed reservation) the authority that paid the compensation may in the circumstances specified in s 111 of the P & E Act recover from the then owner of the land, the compensation previously paid.
The present proceeding is brought by the plaintiff (‘the Minister’) seeking to recover compensation pursuant to these provisions.
The defendant does not contest that its land was reserved, or that it claimed and received compensation in respect of that land pursuant to the P & E Act in 1991.
It nevertheless contends that upon the proper construction of the relevant statutory scheme and its application to the particular facts of this case, no compensation is repayable. Further it is contended that any such repayment would result in unjust enrichment of the Minister.
To understand and resolve these contentions it is necessary to examine both the statutory scheme and the history of the matter in greater detail.
The compensation provisions
Sections 98 and 99 of the P & E Act provide as follows:
98 Right to compensation
(1)The owner or occupier of any land may claim compensation from the planning authority for financial loss suffered as the natural, direct and reasonable consequence of—
(a)the land being reserved for a public purpose under a planning scheme; or
(b)the land being shown as reserved for a public purpose in a proposed amendment to a planning scheme of which notice has been published in the Government Gazette under section 19; or
(c)a declaration of the Minister under section 113 that the land is proposed to be reserved for a public purpose; or
(d)access to the land being restricted by the closure of a road by a planning scheme.
(2)The owner or occupier of any land may claim compensation from a responsible authority for financial loss suffered as the natural, direct and reasonable consequence of a refusal by the responsible authority to grant a permit to use or develop the land on the ground that the land is or will be needed for a public purpose.
(3)A person cannot claim compensation under subsection (1) if—
(a)the planning authority has purchased or compulsorily acquired the land or part of the land; or
(b)a condition on the permit provides that compensation is not payable.
(4)The responsible authority must inform any person who asks it to do so of the person or body from whom the first-mentioned person may claim compensation under this Part.
99 When does the right to compensation arise?
A right to compensation and the liability of a planning authority or responsible authority to pay compensation arises—
(a)under section 98(1)(a), (b) or (c) after—
(i)the responsible authority has refused to grant a permit for the use or development of the land on the ground that it is or may be required for a public purpose; or
(ii)the Tribunal directs that a permit must not be granted on the ground that the land is or may be required for a public purpose; or
(iii) the responsible authority—
(A)fails to grant a permit within the period prescribed for the purposes of section 79; or
(B)grants a permit subject to any condition which is not acceptable to the applicant—
and the Tribunal disallows any application for review of the failure or condition on the ground that the land is or may be required for a public purpose; or
(b)under section 98(1)(a), (b) or (c), on the sale of the land concerned under section 106; or
(c)under section 98(1)(d), on the coming into operation of the relevant provision of the planning scheme; or
(d)under section 98(2), on the refusal of the permit.
The permit application and refusal
The defendant is and has been since prior to 1989, the owner of land located at 31‑49 Queensberry Street, South Melbourne.
In early 1989 part of the subject land was shown as land proposed to be reserved for a public purpose (that of a secondary road reserve) in proposed Amendment RL27, Part 2 to the South Melbourne Planning Scheme.
Notice of the proposed amendment was given in the Government Gazette on 22 February 1989. Accordingly the land fell within the terms of s 98(1)(b), namely land shown as reserved for a public purpose in a proposed amendment to a planning scheme of which notice had been published in the Government Gazette under s 19 of the P & E Act.
In March 1989 the defendant made application to the Minister for Planning and Environment as the responsible authority under the South Melbourne Planning Scheme to redevelop the subject land, including the portion of it which was the subject of the proposed planning scheme amendment.
On 10 July 1989 the responsible authority issued a notice of refusal to grant a planning permit. The notice stated the reasons for refusal as follows:
The land is proposed to be reserved for Proposed Secondary Road in a future amending planning scheme and the proposed use would prevent the proper future planning of the area as expressed in Southbank: A Development Strategy, May, 1986.
In consequence of this refusal a right to compensation arose by reason of the combined effect of ss 98(1)(b) and 99. The responsible authority had refused to grant a permit for the use or development of the land on the ground that it was or may be required for a public purpose. Regard is to be had to the substance not the form of a refusal.[4]
[4]Whelan Kartaway Pty Ltd v Minister for Planning and Housing (1993) 3 VR 59, 64.
The public purpose relied on was precisely that contemplated by s 98(1)(b) namely that land be the subject of a proposal for reservation for a public purpose (in this case a proposed secondary road).
The defendant submits however that the refusal of permit should be construed as having given rise to a right to compensation pursuant to s 98(2). In City of Nunawading v Day and Ors,[5] Phillips J observed:
But under s 98(2), there is nothing but the refusal of the permit to ground the claim for compensation; there is nothing like the reservation or proposed reservation which is mentioned in s 98(1). To my mind, it is therefore appropriate in s 98(2) to find a more specific definition of the relevant ground on which the permit application shall have been refused – namely, ‘that the land is or will be needed for a public purpose’. Nothing less will be the foundation for a claim for compensation under s 98(2).
[5](1992) 1 VR 211, 226.
Likewise in Fitzwood v Whittlesea City Council,[6] Ashley J observed at page 50:
Other aspects of s 98(2) to be noted are that the ground of refusal addresses both present and future need; and the ground is couched in definite language - ‘is or will be needed’.
[6]98 LGERA 28.
In the present case the reasons for refusal did not meet the requirements of s 98(2). The reason stated for refusal was that the land was proposed to be reserved for proposed secondary road and the use proposed by the planning permit application would ‘prevent the proper future planning of the area as expressed in Southbank: A Development Strategy, May, 1986.’ That strategy was the stated basis of the relevant planning scheme amendment. At the time of refusal however neither the strategy nor the specific secondary road proposal had undergone the amendment process. That process was the subject of public participation procedures in accordance with Part 3 of the P & E Act. Accordingly, at the date of the refusal it was apparent that the land may be required for a public purpose but it was not concluded whether it was or would be so needed. As Ashley J observed in Fitzwood:
Section 98(1)(b) deals with the situation where an amendment to a planning scheme has been prepared, and has reached the point that, notice having been given to effected persons, notice of its preparation is published in the Gazette, setting a date for submissions to the planning authority. At that time – it being unknown what submissions will be received, what action the authority might take in consequence of submissions, whether the proposed amendment will be referred to a panel, what the panel’s report might say, what action the authority might take in consequence of the panel’s report, and whether or not the Minister would approve an amendment submitted to him – it is at least difficult to say that the land ‘is required’ for a public purpose. The circumstance of a declaration being made by the Minister under s 113 that land is proposed to be reserved for a public purpose is equally attended by doubt.
In the present case the ground of the refusal was explicitly expressed by reference to the planning process directed to reservation for a public purpose. It was not expressed by reference to an ascertained present or future need for the land to be used for a public purpose. It was not in terms or by necessary implication a refusal on the ground the land ‘is or will be needed for a public purpose.’
The claim
By a claim dated 18 December 1990 the defendant sought compensation following the refusal of permit. The claim relevantly stated:
The Claimant is entitled to claim compensation pursuant to Sections 98 and 99 of the Planning and Environment Act 1987 as the subject land at 31‑49 Queensberry Street, South Melbourne, is affected by a proposed secondary road reservation pursuant to the provisions of the South Melbourne Planning Scheme.
The Claimant has suffered loss or expense as follows:
(a)$3,062,000 being the difference of the value of the property on a ‘before’ and ‘after’ basis;
(b)interest;
(c)legal and valuation costs and expenses.
The certificate of Robert Ian St Clair, Registered Valuer, dated 15th July, 1990, is attached.
It can be seen that the claim was not expressed as one made specifically pursuant to either s 98(1)(b) or s 98(2). Nevertheless it was expressed to depend on an entitlement to claim compensation as a result of the ‘proposed secondary road reservation pursuant to the provisions of the South Melbourne Planning Scheme.’ This was plainly a claim reflecting the terms of s 98(1)(b). It was directly responsive to the entitlement to compensation pursuant to that subsection which arose pursuant to the refusal for the reasons I have already expressed.
The correspondence
The defendant nevertheless relies on correspondence relating to the claim as demonstrating that its claim was in substance treated as a claim pursuant to s 98(2).
A letter was forwarded to the Department of Planning and Urban Growth by the defendant’s solicitor on 28 November 1990, which foreshadowed the making of a claim ‘for compensation for financial loss and damage suffered due to our client’s inability to develop and use the premises to their full extent’.
On 7 December 1990 an officer of the Department replied advising ‘the Department accepts responsibility for the payment of compensation (if any) for financial loss resulting from a refusal of a permit to redevelop the second floor of a building at 31‑49 Queensberry Street which is affected by the proposed secondary road reservation in the South Melbourne Planning Scheme.’
The letter went on to invite the submission of a claim in the prescribed form together with a certificate of valuation from a registered valuer. The entitlement to compensation pursuant to s 98(1)(b) required a refusal in the terms of s 99(a)(i) in order to take effect. This correspondence does not in my view demonstrate that the claim was treated as a s 98(2) claim.
The claim when lodged was supported by a valuation and a valuer’s certificate (although it appears that this was not initially supplied to the Department).[7]
[7]See the Department’s letter of 3 January 1991.
The valuation was expressed to be made for the following purpose:
To assess the loss incurred by the owner of the subject property as at 10th July, 1989, being the date of the refusal by the Ministry for Planning and Environment to grant a permit to utilise the upper floor of the building for offices with associated car parking in accordance with the Permit Application Reference 134231-2.
Such a refusal was required in respect of an entitlement to compensation under s 98(1)(b) by reason of the provisions of s 99(a)(i). It was on the date of refusal of the permit that the right to compensation arose. Hence the reference to valuation as at this date was apt to a s 98(1)(b) claim.
The valuation went on to state in part:
My assessment of the compensation payable to the owner is based upon the difference in the level of value of the property on a ‘before’ and ‘after’ basis, in the ‘before’ situation being capable of development to its highest and best use as a two level multi tenancy showroom and office building and in the ‘after’ situation being fully developed in its present form as showrooms and offices with the large area of the upper floor being sealed off at the request of the City of South Melbourne, except for access to the plantroom.
Section 5A of the Valuation of Land Act 1960 provides that unless otherwise expressly provided the valuation of land shall take into account:
(a)the use to which such land is being put at the relevant time, the highest and best use to which the land might reasonably be expected to be put at the relevant time and to any potential use;
In Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources,[8] Jacobs J observed:
…the highest and best use means exactly what it says – the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential. The first task of the valuer is to determine what that use is and then to value the land on that basis.
[8]1988 65 LGRA 410, 415.
The valuation was put forwarded by reference to the fundamental concept of highest and best use and not simply by reference to loss flowing from the refusal of a particular permit application. As such it was made on a basis appropriate to the assessment of compensation in respect of a s 98(1)(b) claim.
The valuation concluded by stating that the valuer’s opinion was that the compensation payable was $3,062,000. The valuer went on to state:
This assessment is of the compensation for loss and damage incurred as a result of the refusal by the Minister for Planning and Environment to issue a permit to redevelop the upper floor of the building as office space.
My assessment is of the loss in the value of the property as a result of the permit refusal, but makes no allowance for legal, valuation or other professional fees or any items of direct pecuniary loss incurred by the owners as a result of the permit refusal.
Because the valuer had expressly identified the basis of his valuation as relating to the highest and best use of the land, the expression of this conclusion by reference to refusal of the permit does not transform the valuation into one of an assessment of compensation pursuant to s 98(2).
It was submitted on behalf of the defendant that the reference to highest and best use by the valuer flowed from the terms of s 104 of the P & E Act. This provides that the compensation payable for financial loss under s 98 must not exceed the difference between –
(a) the value of the land at the date on which the liability to pay compensation first arose; and
(b) the value that the land would have had had at the date if the land had not been affected by any circumstance set out in s 98(1) or (2).
I do not accept this submission. It is plain that the reference to highest and best use describes the criterion by which the valuer conducted his assessment. It does not express a limit upon the assessment which he otherwise would have made.
On 12 November 1991 an officer of the Department wrote to the solicitors for the defendant stating in part:
Pursuant to the provisions of Part V of the Planning and Environment Act 1987, Government’s Land Monitor has given approval to offer your client company the sum of $2,940,000 compensation, resulting from a refusal of a permit number 1342312 dated 10 July 1989 to use the second floor of the building situated at the above address and contained in Certificates of Title Volume 6125 Folio 945 and Volume 8712 Folio 104.
In addition, the Ministry is prepared to pay reasonable legal, valuation and other professional costs incurred pursuant to s 101 of the Planning and Environment Act 1987.
This statement was responsive to the conclusion of the valuation. The reference to permit refusal does not distinguish between a refusal giving right to compensation pursuant to s 98(2) and a refusal meeting the requirements of s 99 and triggering a right to compensation pursuant to s 98(1)(b) in circumstances where the permit refusal related to the highest and best use of the land.
The Release
On 4 December 1991 the then Minister for Planning and Housing and the defendant executed a release. The recitals to the release were as follows:
(a)The Claimant held an interest in the land described in Certificate of Title Volume 6125 Folio 945, and Crown Grant Volume 8712 Folio 104 (hereinafter referred to as “the land”).
(b)The Claimant on or about 14 March 1989, made application to the Minister to redevelop the second floor of the building situated on the land for the purpose of office space and carparking.
(c)The Minister as a responsible Authority under the provisions of the Planning & Environment Act 1987 refused Planning Permit No. 134231 2 dated 10 July 1989 relating to the proposed secondary road reservation in the South Melbourne Planning Scheme.
(d)The Claimant was unable to redevelop the second floor of a building situated on the land in view of the refusal of the Planning Permit.
(e)The Claimant has sought compensation from the Minister for financial loss suffered as the natural, direct and reasonable consequence of the land being partly reserved for a proposed secondary road in the South Melbourne Planning Scheme.
(f)The Minister is liable to pay for financial loss suffered as the natural direct and reasonable consequence of the refusal of the permit.
(g)The Minister has agreed to pay and the Claimant has agreed to accept the sum of $2,940,000 for diminution in value of the land and in additional thereto a reasonable sum for valuation, legal and other professional expenses incurred.
It can be seen that the recitals stated that the refusal of the planning permit related to the proposed secondary road reservation in the South Melbourne Planning Scheme. As I have said a refusal on this basis is properly regarded as triggering a right to compensation pursuant to s 98(1)(b). They then refer to the consequent inability to redevelop the defendants’ building. Further the recitals correctly characterise the claim made by the defendant as one for compensation for loss suffered as the natural, direct and reasonable consequences of the land being partly reserved for a proposed secondary road in the South Melbourne Planning Scheme. Such language again necessarily reflects a claim made pursuant to s 98(1)(b). It is true that the recitals then go on to state that the Minister is liable to pay for financial loss suffered as the natural, direct and reasonable consequence of the refusal of the permit and that this statement taken in isolation might be thought to reflect an admission of liability pursuant to s 98(2). Nevertheless taken in the context of the preceding recitals the better view is that the refusal is properly to be understood as the necessary trigger under s 99. Moreover the recitals reflect the basis on which the defendant’s value flowing from the reservation assessed the loss of value calculated by reference to the highest and best use of the land. In this case that loss was established by reference to the value of the highest and best use from which the permit was refused.
The recitals go on to refer to the fact that the Minister has agreed to pay compensation ‘for diminution in value of the land’. Such compensation sensibly refers to compensation paid pursuant to s 98(1)(b). It is not apt to describe loss caused by a refusal of permit only.
The release goes on to provide as follows:
NOW THIS RELEASE WITNESSETH that in consideration of the sum of two million, nine hundred and forty thousand dollars, (the receipt of which is hereby acknowledged) the Claimant hereby forever quits, releases, discharges and indemnifies the Minister and the land from all claims, actions, costs, suits, damages, losses and demands arising out of or from the diminution in value of the said land.
In my view it is plain that this release constituted a release given by the defendant in respect of the claim previously made pursuant to s 98(1)(b). It was expressed however in sufficiently broad terms to also encompass any claim that might have been made arising out of or from the diminution in value of the land in the circumstances referred to in the recitals. Those circumstances included a refusal in terms giving rise to a claim pursuant to s 98(1)(b) and triggered in accordance with s 99(a)(i). They embraced loss of value resulting from the land being partly reserved for a proposed secondary road under the planning scheme.
Section 110
Section 110 provides as follows:
110 Compensation paid to be noted on title
(1)Any person who has paid compensation under this Act or a corresponding previous enactment to the owner or occupier of any land and who has not already done so under that enactment must lodge a statement with the Registrar of Titles without delay.
(2)The statement must in the prescribed manner—
(a)describe the land for which the compensation was paid; and
(b) give the prescribed particulars of the compensation.
(3)On receiving a statement, the Registrar of Titles must make any recordings in the Register which are necessary to bring the statement to the notice of anyone searching the Register.
(4)At the request of any person who lodged a statement under subsection (1) or a corresponding previous enactment, the Registrar of Titles must delete from the Register a recording made under subsection (3).
In the present case, a statement was lodged on behalf of the plaintiff dated 13 May 1992. It stated under the heading DETAILS OF COMPENSATION
Amount paid
$2,940,000
Reason For Compensation
Permit Refusal To Develop Land
COMPENSATATION PAID UNDER SECTION 98 OF THE PLANNING AND ENVIRONMENT ACT (OR OTHER ACT AS THE CASE MAY BE).
The defendant contends that the statement that the reason for compensation was ‘permit refusal to develop land’ constitutes a conclusive admission by the plaintiff that the compensation was paid pursuant to s 98(2) of the P & E Act and not pursuant to s 98(1)(b). I do not accept this submission. It seems to me that the statement does not distinguish between s 98(1) and s 98(2). The permit refusal was a necessary pre‑condition to the right to compensation pursuant to s 98(1)(b).
Even if I am wrong in this respect however and the statement can be regarded as an admission, it could not estop the plaintiff from relying on the evidence as a whole, as to the basis on which compensation was paid. The claim was not settled in reliance upon this statement. The defendant has not acted to its detriment in reliance upon this statement[9].
[9]Commonwealth v Verwayen (1990) 170 CLR 394.
The statement may not give the reason for compensation[10] in a full and complete sense, but it cannot change the character of that payment of compensation.
[10]Which the plaintiff accepts was a prescribed particular in terms of s 110.
Section 111
Section 111 of the P & E Act provides:
111 Recovery of compensation previously paid
(1)Any person who has paid compensation under this Part in respect of land as a result of a reservation or proposed reservation may recover the amount of compensation which is set out in a statement lodged under section 110(1) in respect of the land from the present owner of the land if—
(a)the planning scheme is amended to remove the reservation; or
(b)the amendment which proposed to reserve the land lapses; or
(c) the declaration under section 113 is cancelled.
(2)The owner must pay the amount—
(a)on getting a demand in writing; or
(b)within any further period—
(i)agreed with the person entitled to demand payment; or
(ii) which the Minister allows under subsection (3).
(3)The Minister administering the Land Acquisition and Compensation Act 1986 may allow the amount owing to be paid—
(a)by a day later than the demand; or
(b)on the sale or transfer of the land—
if the Minister thinks that it would cause hardship to the owner to pay the amount on demand.
(4)Any compensation which is repayable to any person under this section is a charge on the land.
It can be seen that s 111(1) potentially embraces payments of compensation pursuant to s 98(1) of the P & E Act. In particular payments paid in consequence of a proposed reservation.
In the present case, the reservation which led to the refusal of planning permit was subsequently included in the planning scheme. In turn it has been removed in two stages. The defendant submits that the documentation tendered to the Court does not demonstrate with precision the ambit of the first stage of removal. I accept that this is so but the documentation as a whole demonstrates that at the conclusion of the two stage removal the whole of the reservation in issue was removed.
The defendant’s principal contention is however that the plaintiff does not fall within the description of a person who has paid compensation under this Part of the P & E Act in respect of land ‘as a result of a reservation or proposed reservation’. It is submitted that the payment consequent upon the refusal of permit was made pursuant to s 98(2) and as such was not a payment ‘as a result of a proposed reservation’. It is submitted that the distinction postulated by Ashley J in Fitzwood v Whittlesea City Council should be accepted:
The reference in s 111(1) to “any person who has paid compensation under this Part” is qualified by the words “as a result of a reservation or proposed reservation”. That is the language of s 98(1). Moreover, the circumstances set out in subpars (a), (b) and (c) deal with developments in the situations addressed by s 98(1)(a), (b) and (c). It seems to me inescapable that s 111 does not address the recovery of compensation paid by a responsible authority under s 98(2) ‑ unless it could somehow be said that such a refusal requires the existence of an s 98(1) situation. Whilst, not least because of the s 111 consequences, it would be tempting to construe the critical words in s 98(2) to address circumstances dealt with by s 98(1), those circumstances founding refusal on the ground that land “is or will be needed” for a public purpose, I consider that such a construction is not open. I have already referred to some pertinent considerations. In addition, if s 98(2) was to be so limited, why have it all? To the contrary, s 99 contemplates different grounds of refusal by a responsible authority, by powerful implication based upon different circumstances. The consequences in respect of the operation of s 111 simply highlights once again deficiencies in Pt 5 of the Act.[11]
I am prepared to accept for present purposes that this detailed analysis is correct, but it is unnecessary having regard to the facts in this case to finally decide the question whether rights under s 98(1) & (2) are necessarily mutually exclusive and the provisions are not free from some difficulty.
[11]98 LGERA 28, 52.
In my view, it is plain that in the present case the compensation was in fact paid under s 98(1)(b), for the reasons I have set out regarding the terms of the permit refusal, the terms of the claim and the terms of the release. Conversely, I am satisfied that the refusal did not give rise to a right to compensation under s 98(2), nor was the claim made under that subsection. In turn, the payment was made in settlement of the claim that was in fact made and any liability as a result of the refusal which stated grounds falling within the terms of s 98(1)(b) and 99(a)(i). It was made in respect of the admitted diminution in value caused by the proposed road reserve.
Section 111 limits the amount of compensation that may be recovered pursuant to its provision by reference to the amount of compensation which is set out in a statement lodged under s 110(1). I am satisfied that the necessary statement was lodged pursuant to s 110(1).[12]
[12] Note a s 110 statement also has effect with respect to the provisions of s112.
If (which I do not accept) the statement is to be regarded as substantially deficient in the particulars noted under the heading ‘Reason for Compensation’, it is not those particulars which are critical to the application of s 111(1). This sub‑section refers specifically to the amount of compensation which is set out in the statement.
Further, it could not be concluded that compliance with the prescribed particulars in respect of the reason for compensation, was intended to be a necessary pre‑condition to recovery under s 111[13].
[13]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390
“A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.
Nor could it be said that a deficiency in the particulars made subsequent recovery from the owner inequitable. The owner was fully aware of the circumstances in which compensation was originally paid.
Accordingly, the Minister has brought himself within the terms of s 111.
It is next submitted on behalf of the defendant that the repayment of compensation would be inequitable. It is submitted that the compensation paid was calculated by reference to capitalisation of rentals that would have been achieved if the permit originally sought had been granted. It is submitted that those rentals have in fact been lost. The short answer to this contention is that the defendant has had the use of the capitalised sum since the refusal of permit. Upon the removal of the reservation it will be open to it to now redevelop and use the land free of the constraint which founded the right to compensation. I do not accept that this leads to an inequitable result. Further, and in any event, both the defendant’s right to compensation in the first instance and the plaintiff’s right to repayment are governed by a statutory scheme. That scheme provided for the payment of compensation in the first instance but now requires that compensation to be repaid.
For the above reasons the plaintiff is entitled to judgment.
112 Reimbursement of compensation paid
(1) If—
(a)any person has lodged a statement under section 110(1); and
(b)another person acquires the land or part of the land in respect of which the statement was lodged—
the second person must pay to the first person an amount equal to—
(c)the compensation set out in the statement; or
(d)if only part of the land is acquired, the proportion of the compensation which is attributable to that part.
(2)Despite anything to the contrary in any Act, a public authority or municipal council may pay out of its funds any amount which it is required to pay under this section.
0
4
0