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

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?
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.
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.
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.
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…

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: [2006] WASC 131
Decision Date: 29 JUNE 2006

CaseChat Overview and Summary

The plaintiffs, owners of land in the City of Armadale, brought an action against the Western Australian Planning Commission, seeking compensation for what they claimed was injurious affection to their land caused by changes to the Metropolitan Region Town Planning Scheme. The primary issue was whether the plaintiffs were permitted to bring multiple claims for injurious affection under the relevant legislation. The court needed to determine if the statutory scheme allowed for more than one claim of injurious affection by the same party, given that the plaintiffs had already brought a successful claim for a portion of their land.

The court examined the statutory language of the Metropolitan Region Town Planning Scheme Act 1959 (WA), particularly section 36, which deals with injurious affection. The plaintiffs argued that the statutory scheme allowed for more than one claim, while the Commission contended that the scheme permitted only a single claim for injurious affection. The court found that the statutory scheme did not explicitly prohibit multiple claims but also did not explicitly permit them. The court concluded that the scheme should be interpreted in a way that allowed for reasonable claims of injurious affection where warranted, and the plaintiffs were entitled to bring a claim for the remaining portion of their land.

The court held that the plaintiffs were permitted to bring a further claim for injurious affection in relation to the remaining portion of their land. The court found that the statutory scheme allowed for multiple claims where the circumstances justified it, and the plaintiffs' situation warranted a second claim. The court emphasised that each claim must be assessed on its own merits, and the fact that a previous claim was successful did not automatically entitle the plaintiffs to another claim. The court granted the plaintiffs permission to bring a further claim for injurious affection for the remaining portion of their land.

Orders