Nicoletti v Western Australian Planning Commission

[2006] WASC 131

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   NICOLETTI & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASC 131

CORAM:   MCKECHNIE J

HEARD:   31 MAY 2006

DELIVERED          :   29 JUNE 2006

FILE NO/S:   CIV 2477 of 2005

BETWEEN:   MICHAEL NICOLETTI

MARIA NICOLETTI
Plaintiffs

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant

Catchwords:

Town planning and development - Claim for injurious affection - Metropolitan Region Town Planning Scheme Act 1959 (WA) s 36 - Whether more than one claim is permitted

Legislation:

Metropolitan Region Town Planning Scheme Act 1959 (WA), s 36

Town Planning and Development Act 1928 (WA), s 11, s 17

Result:

Declarations made

Category:    A

Representation:

Counsel:

Plaintiffs:     Mr R I Viner QC & Ms L E Rowley

Defendant:     Ms L E Christian

Solicitors:

Plaintiffs:     Deacons

Defendant:     State Solicitor

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

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

Case(s) also cited:

Mills v Meeking (1990) 169 CLR 214

1. MCKECHNIE J: The question posed in this application for a declaration is simple. Does s 36 of the Metropolitan Region Town Planning Scheme Act 1959 (WA) (now s 177 of the Planning and Development Act 2005 (WA)) permit more than one claim for compensation?

2. The plaintiffs are the registered proprietors of Lot 14 Woodloes Street, Cannington, which is wholly reserved for parks and recreation under the Metropolitan Region Town Planning Scheme.  The plaintiffs have lodged three applications for approval to commence development in respect of the land and two formal claims for compensation.  The plaintiffs lodged a development application dated 9 December 2002 and a claim for compensation dated 6 March 2003.  On 2 May 2003 the defendant notified the plaintiffs that it elected to purchase the land in lieu of paying compensation.  The plaintiffs lodged a further development application dated 16 December 2003 and a claim for compensation dated 15 April 2004.

3. Contrary to its position earlier in the proceedings, the defendant now concedes that the claim for compensation dated 6 March 2003 is valid as is its election to purchase the subject land. The defendant accepts that nothing in s 36 prevents a landowner from lodging multiple applications to develop reserved land. The plaintiffs accept that compensation can only be paid once.

4. It is necessary to give a sensible construction to s 36 because it is not possible to discern Parliament's intention to resolve a problem that arises rarely. Although the parties conducted a textual examination of the relevant sections of the Acts the construction I have determined depends on what flows from the decision in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273.

5. Section 36 provides for the payment of compensation only on the happening of certain triggering events. If, as the defendant concedes and as I accept, there can be more than one application for development, then there can be more than one claim for compensation because a landowner might withdraw a claim for compensation and retain the land: Mount Lawley Pty Ltd v Western Australian Planning Commission at [257]. The land remains injuriously affected. I do not construe s 36 to deny a landowner the right to claim compensation if a revised development plan is later submitted. Such a construction would not promote the objects of the Act.

6. The defendant submits that a landowner only has a right to claim compensation following the first refused development application. It is argued that if s 36(3) is interpreted to permit a claim for compensation after the refusal of any development application rather than the first one following reservation of the land for a public purpose, s 36 would be capricious and unworkable. I am unable to agree because although there might, in theory, be multiple claims, compensation is only paid once.

7. Although I hold that more than one development application may be made and, as a consequence, more than one claim for compensation can be made, this does not mean that a landowner is free under s 36 to simply lodge application after application and claim after claim. Section 36, read with s 11 and s 12 of the Town Planning and Development Act, sets out a process for the resolution of a claim. Once the process is in train it must be brought to a conclusion or else withdrawn. Until the claim dated 6 March 2003 is withdrawn or resolved no further claim under s 36 is allowed. Under that claim the defendant has elected to acquire the land. If the plaintiffs accept the election the claim for compensation for injurious affection is resolved. If the plaintiffs reject the election they can only do so by withdrawing their claim for compensation. In that event, nothing in s 36 precludes a later application for development and a later claim for compensation.

8. Finally, I note that both parties have drawn support for their contentions from the judgments in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30. I have found the judgments too Delphic to provide guidance. This is not because of any lack of clarity in the judgments but because the issue for decision in Temwood was different.  The difference between the issue in Temwood and the issue here requires such elliptical reasoning as to be unhelpful in determining this case.

9. I make the following declarations:

   1.On a proper construction of s 36 of the Metropolitan Region Town Planning Scheme Act 1959 if a person to whom s 36(3)(b) applies has made a claim for compensation but no compensation has been paid to that person then that person can, in respect of a later application under the Metropolitan Region Scheme to carry out development to which s 36(3)(b) applies, make a claim for compensation under the Act and be entitled to recover compensation pursuant to s 36(3)(b) and s 36(5) of the Act in respect to the later claim; and

   2.The plaintiffs' claim for compensation dated 6 March 2003 is a valid claim for compensation and the defendant is bound by its election made under s 36(2)(b) of the Metropolitan Region Town Planning Scheme Act to acquire the land.