OTAGO PTY LTD and CITY OF COCKBURN - [2021] WASAT 27

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   OTAGO PTY LTD and CITY OF COCKBURN [2021] WASAT 27
MEMBER:   PRESIDENT PRITCHARD
MS L EDDY, SENIOR MEMBER

HEARD:   6 FEBRUARY 2020
DELIVERED          :   10 MARCH 2021
FILE NO/S:   DR 344 of 2017
BETWEEN:   OTAGO PTY LTD
Applicant
AND
CITY OF COCKBURN
First Respondent
BOARD OF VALUERS WESTERN AUSTRALIA
Second Respondent
FES MINISTERIAL BODY
Third Respondent

Catchwords:

Town planning - Determination of whether land injuriously affected by the reservation of land - Whether land reserved under a structure plan was reserved under a town planning scheme - Whether land reserved for a public purpose - Whether provisions of structure plan incorporated into town planning scheme - Whether incorporation of structure plan into town planning scheme gave it the force of law - Where town planning scheme amended by deeming regulations - Whether reservation conferred vested but deferred right to compensation - Scope of Tribunal's jurisdiction to determine matters under s 176(1) of the Planning and Development Act 2005 (WA) - Operation of s 37 of the Interpretation Act 1984 (WA)

Legislation:

City of Cockburn Town Planning Scheme No 3
Commercial Arbitration Act 2012 (WA)
Interpretation Act 1984 (WA), s 5, s 37, s 37(1)(c)
Metropolitan Region Scheme
Metropolitan Region Town Planning Scheme Act 1959 (WA), s 36
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), r 10, Sch 2, cl 1, Pt 4, cl 14, cl 15(a)(iii), cl 16(1)(c), cl 27(1), cl 67, cl 67(2)(j)
Planning and Development Act 2005 (WA), s 37, s 75, s 87, Pt 11, Div 2, s 172, s 173, s 173(1), s 174(1), s 174(1)(a), s 176, s 176(1), s 176(2), s 177, s 178(1)(a), s 178(1)(b), s 179, s 179(1), s 179(2), s 180, s 181, s 181(4), s 183, s 183(1), s 183(3), Pt 14, s 252(1), s 256, s 257A, s 257B, s 257B(2), s 257B(3), s 257B(5)
Town Planning and Development Act 1928 (WA), s 36

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr M Hotchkin
First Respondent	:	Mr PL Wittkuhn
Second Respondent	:	No Appearance
Third Respondent	:	Mr J Skinner

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	McLeods
Second Respondent	:	State Solicitor's Office
Third Respondent	:	Thomson Geer - Perth

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

Scutti v City of Wanneroo [2018] WASCA 175
Australian Unity Property Limited v City of Busselton [2018] WASCA 38
Bond Corporation Pty Ltd v Western Australian Planning Commission [2000] WASCA 257
Brookton Co-operative Society Ltd v Federal Commissioner of Taxation [1981] HCA 28; (1981) 147 CLR 441
City of Canning and Avon Capital Estates (Australia) Ltd [2008] WASAT 46
Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 83
Cronulla Sutherland Leagues Club Ltd v Federal Commissioner of Taxation (1990) 23 FCR 82
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Envestra Ltd v Federal Commissioner of Taxation [2008] FCA 249; (2008) 169 FCR 300
Mandurah Enterprises Pty Ltd and Ors v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132
Swanbourne Estate Development Joint Venture and City of Nedlands [2008] WASAT 274
Two Rocks Investments Pty Ltd v WAPC [2019] WASAT 59
Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106

TABLE OF CONTENTS

Introduction

Background Facts and relevant aspects of the Planning Instruments Framework

Overview of the compensation provisions in Pt 11

The issues for resolution

The Tribunal's jurisdiction

Disposition

Question 1: Was that part of the Subject Land designated as POS under the Structure Plan reserved for public purposes under TPS3 from the adoption of the Structure Plan until the commencement of the Deemed Provisions?

The parties' submissions

Disposition

Question 2: If the answer to question 1 is yes, did the reservation confer on Otago a vested but deferred right to compensation?

Otago's submissions

The City's submissions

The FES' submissions

Disposition

Question 3: If the answer to question 2 is yes, did the commencement of the Deemed Provisions (and consequential amendments) abrogate that right to compensation?

Otago's submissions

The City's submissions

The FES' submissions

Disposition

Conclusion

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

From 19 April 1994 to 17 September 2017, Otago Pty Ltd (Otago) was the registered proprietor of land situated on North Lake Road Cockburn Central, and identified as Lot 55 on Diagram 60481 (Subject Land) which is located within the City of Cockburn District.[1] On 18 August 2017, Otago entered into a contract for the sale of the Subject Land to the FES Ministerial Body (FES).[2] On 18 September 2017, Otago transferred the Subject Land to the FES.[3]
[1] Amended Statement of Agreed Facts (AF) [3]. The Subject Land is identified as Lot 55 on Diagram 60481, Certificate of Title Volume 1593 Folio 807: Exhibit 2.1, 2.2.
[2] AF [27].
[3] AF [28].
Under s 173(1) of the Planning and Development Act 2005 (WA) (PD Act), and subject to Pt 11 of that Act, any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority. The responsible authority in this case is the first respondent, the City of Cockburn (City). Section 174(1) of the PD Act relevantly provides that land is injuriously affected by the making or amendment of a planning scheme if, and only if, it is reserved under that planning scheme for a public purpose.
Prior to entering into the contract for the sale of the Subject Land to the FES, Otago gave notice to the Board of Valuers, which assesses compensation under Pt 11 of the PD Act, of its intention to sell the Subject Land, and applied to the Board for a valuation of the Subject Land.[4] The Board of Valuers advised Otago that it was unable to proceed with a valuation as it considered the Subject Land was not injuriously affected by the making or amendment of a planning scheme.[5]
[4] Pursuant to s 183 of the PD Act.
[5] AF [23] [24]. The Board of Valuers is a respondent to these proceedings, but did not participate in these proceedings, and advised that it would abide the outcome.
On 6 March 2018, after it sold the Subject Land to the FES, Otago lodged with the City a claim for compensation for injurious affection in respect of the Subject Land.[6]
[6] AF [36]; see also Attachment A to the Applicant's Submissions dated 15 January 2020. Otago also lodged the claim for compensation with the Western Australian Planning Commission. However, there was no suggestion in these proceedings that the Commission is the responsible authority.
The City denies that the Subject Land is injuriously affected and denies that Otago is entitled to any compensation.[7]
[7] AF [37].
In these proceedings, Otago seeks a determination pursuant to s 176 of the PD Act as to whether the Subject Land is injuriously affected, for the purposes of Pt 11 of the PD Act, on the basis that part of the Subject Land was set aside as Public Open Space (POS) under a structure plan known alternatively as the Muriel Court District Structure Plan or the DA19 Structure Plan (Structure Plan).
For the reasons which follow, we have determined that part of the Subject Land can be regarded as having been reserved for a public purpose under a planning scheme between February 2010 and 19 October 2015, by reason of the fact that, during that period, part of the Subject Land was set aside as POS under the Structure Plan. However, that was not the case after 19 October 2015. Accordingly, none of the Subject Land is injuriously affected by the making or amendment of a planning scheme.

Background Facts and relevant aspects of the Planning Instruments Framework

The facts relevant to the Tribunal's determination are not in dispute. They were agreed by the parties and set out in an Amended Statement of Agreed Facts (AF). We refer to those facts only in so far as they are relevant to our reasoning.
In this part of our reasons, we also refer to those provisions of the relevant planning instruments in order to sketch out the circumstances in which Otago's claim for compensation has arisen. Later in these reasons we return to consider some of those planning instruments in more detail.

The zoning of the Subject Land – Metropolitan Region Scheme

Prior to December 1994, the Subject Land was zoned 'rural' under the Metropolitan Region Scheme (MRS).[8] From December 1994, the Subject Land was rezoned to 'urban deferred'.[9] Following an amendment of the MRS in 2009, the Subject Land was zoned 'urban'.[10]

The City of Cockburn Town Planning Scheme – Land classification

[8] AF [2].

[9] AF [4].

[10] AF [11].

The City of Cockburn Town Planning Scheme No. 3 (TPS3) was gazetted in 2002. The purposes of TPS3 included to 'set out the local government's planning aims and intentions for the Scheme Area', to 'set aside land as reserves for public purposes' and to 'control and guide land use and development' (bold in original).[11]
[11] TPS3 cl 1.5.1.
In so far as the use of land was concerned, Part 4 of TPS3 classified areas of land into zones, as shown on the Scheme Map.[12] The zones contemplated the use of land for specific purposes, such as residential, mixed business, business and industry.[13] The use of the various kinds of zoned land in particular ways was indicated in the zoning table as permitted, not permitted or not permitted without the exercise of discretion by the City.[14]
[12] TPS3 cl 4.1.1.
[13] TPS3 cl 4.2.
[14] TPS3 cl 4.3.
At the time when TPS3 was gazetted, approximately 40% of the Subject Land, located at the southern-most point of the Subject Land, was zoned 'Mixed Business' and the remaining part of the Subject Land, located at its northern-most point, was zoned 'Development'.[15]
[15] AF [6].
By September 2008, following amendments to the Scheme Map for TPS3 (Scheme Map), all of the Subject Land was identified as falling within 'Development Area 19' (DA19).[16]
[16] AF [7], [9], [10].
Under TPS3, Development Areas such as DA19 (which were included in Sch 11 to TPS3) were characterised as 'Special Control Areas'.[17] TPS3 provided that in respect of a special control area shown on the Scheme Map, the provisions applicable to that area applied 'in addition to the provisions applying to any underlying zone or reserve and any general provisions of the [TPS3]'[18] (emphasis added).
[17] TPS3 cl 6.1.1.
[18] TPS3 cl 6.1.2.
TPS3 provided that the local government was not to consider recommending subdivision or approving development of land within a Development Area unless there was a structure plan in place for the Development Area or relevant part thereof.[19]

The Structure Plan and the Subject Land

[19] TPS3 cl 6.2.4.1. TPS3 provided for the manner in which structure plans would be developed and would come into effect: TPS3 cl 6.2.6.4 - 6.2.12.1.

On 16 February 2010, following its adoption by the City and approval by the Western Australian Planning Commission (WAPC), the Structure Plan for DA19 became operative. The Structure Plan comprised a Structure Plan Report, and a Structure Plan Map.[20] (In these reasons, references to the Structure Plan are intended to refer only to the Structure Plan Report. We refer to the Structure Plan Map separately.)
[20] AF 14.
The Structure Plan noted that the majority of the land that was subject to the Structure Plan was zoned 'Development' under TPS3 within DA19, while a smaller part of the land covered by the Structure Plan, which had frontage to North Lake Road, was zoned 'Mixed Business'.[21]
[21] Structure Plan cl 5.0 p4.
Critically for present purposes, the Structure Plan Map for DA19 identified the northern portion of the Subject Land as 'Public Open Space'.[22]

Key provisions of TPS3 in relation to the Structure Plan

[22] Exhibit 2.3.

Clause 6.2.12.2 of TPS3 made clear that if a provision of a structure plan was inconsistent with a provision of TPS3, then the provisions of TPS3 would prevail to the extent of the inconsistency.
However, a number of clauses within TPS3 expressly provided that the terms of any structure plan which was adopted could impose classifications on the use of the land covered by the plan, and those classifications would, generally speaking, govern the use of that land. TPS3 required that 'the development of land within a Development Area is to comply with Schedule 11', and that 'the subdivision and development of land within a Development Area is to generally be in accordance with any structure plan that applies to that land'[23] (emphasis added).
[23] TPS3 cl 6.2.3.2.
Schedule 11 to TPS3 relevantly provided that in respect of DA19:
1.Structure Plan adopted to guide subdivision, land use and development.
2.To provide for residential development and mixed business development where appropriate.
3.Land Uses classified on the structure plan apply in accordance with clause 6.2.6.3. … .
(emphasis added)
Clause 6.2.6.3 of TPS3 provided:
Notwithstanding clause 6.2.12.2, and without limiting the provisions of clause 6.1.2 or the extent of any provisions which may be included for a Special Control Area in Schedule 11, a Structure Plan may:
(a)Impose a classification on the land included in it by reference to reserves, zones or the Residential Design Codes;
(b)Identify precincts or otherwise place a designation on any land as an alternative, or in addition to classifying the land in accordance with the preceding paragraph; and
(c)Indicate the permissibility of land uses within any part or all of the land in the Structure Plan,
and where a Structure Plan includes any such matter it shall have effect according to its tenor as if it were part of the Scheme, unless the provisions of Schedule 11 relating to the Special Control Area are to the contrary.
(emphasis added)
The effect of these provisions, in conjunction with the identification of the Subject Land as POS under the Structure Plan, are at the heart of this proceeding.

TPS3 Development areas

For completeness, it is convenient to say something about Development Contribution Areas (DCAs) under TPS3. TPS3 provided that land could be prescribed as part of a DCA. DCAs were noted on the Scheme Map and were also listed in Schedule 12 to TPS3.[24] DCAs were also characterised as Special Control Areas under TPS3.[25]
[24] TPS3 cl 6.1.1.
[25] TPS3 cl 6.1.1(b).
In May 2010, a DCA known as DCA 11 Muriel Court (DCA 11) was prescribed under TPS3.[26] DCA 11 included the Subject Land.[27]
[26] AF [20].
[27] AF [20].
The purpose of a DCA was to identify areas requiring cost contributions for 'infrastructure'[28] in a particular area, and to provide for the equitable sharing of the costs of infrastructure between the landowners in that area.[29] When a DCA was prescribed under TPS3, all landowners within that DCA would be required to make a cost contribution in accordance with an applicable Development Contribution Plan (DCP).[30]
[28] 'Infrastructure' was defined to mean 'services and facilities, which, in accordance with the [WAPC's] policy, it is reasonable for Owners to make a Cost Contribution towards': TPS3 cl 6.3.2.
[29] TPS3 cl 6.3.1.
[30] TPS3 cl 6.3.3(a).
TPS3 required the local government to establish and maintain a reserve account for each DCA into which cost contributions for the DCA would be paid, and from which all payments for the cost of infrastructure in the particular DCA would be paid.[31]
[31] TPS3 cl 6.3.7.
While contributions under a DCP were intended to cover the cost of infrastructure in that area, TPS3 recognised that matters which required land to be contributed (that is, ceded) by landowners, such as public open space, should be treated, under the DCP, as the cost of infrastructure with any necessary adjustments to establish, where appropriate, a money equivalent.[32]
[32] TPS3 cl 6.3.4(b)(iii).
Costs Contribution Schedules for DCA 11 were adopted by the City from time to time.[33]

TPS3 - Reserves

[33] AF [20].

Because this case is said to involve injurious affection by reason of the reservation of the Subject Land as a reserve, it is convenient at this point to outline, in general terms, how TPS3 dealt with the classification of land, and in particular with land classified as a reserve.
Land described as a 'Reserve' was not zoned, and the zoning table did not refer to the development or uses which were permitted for land described as a 'Reserve'. Instead, 'Reserves' were dealt with separately in Part 3 of TPS3. The term 'Reserves' was not defined, but its meaning was illustrated by example. TPS3 provided that certain lands within the Scheme area were classified as either Regional Reserves or Local Reserves.[34]
[34] TPS3 cl 3.1.1.
Regional Reserves were not reserved by TPS3 itself.[35] Rather, 'Regional Reserves' were lands reserved under the MRS.[36] Regional Reserves were shown on the Scheme Map in order to comply with the Metropolitan Region Town Planning Scheme Act 1959 (WA) (MRTPS Act).[37] The Regional Reserves shown included Regional Reserves for railways, water catchments, and regional roads, as well as 'Regional Reserves for Public Purposes'.[38]
[35] TPS3 cl 3.2.2.
[36] TPS3 cl 3.2.1.
[37] TPS3 cl 3.2.1.
[38] Exhibit 2.5a.
The approval of the City under TPS3 was not required for the commencement or carrying out of any use or development on a Regional Reserve.[39]
[39] TPS3 cl 3.2.3.
Of more relevance for present purposes are 'Local Reserves', which were delineated and depicted on the Scheme Map according to the legend on the Scheme Map.[40] Examples of Local Reserves included Local Reserves for Parks and Recreation, Lakes and Drainage, Local Roads and Public Purposes.[41]
[40] TPS3 cl 2.3.1.
[41] Exhibit 2.5a.
TPS3 provided for the use and development of Local Reserves in the following way:
3.4.1A person must not
(a)use a Local Reserve; or
(b)commence or carry out development on a Local Reserve,
without first having obtained planning approval under Part 9 of the Scheme.
3.4.2In determining an application for planning approval the local government shall have due regard to
(a)the matters set out in clause 10.2; and
(b)the ultimate purpose intended for the Reserve.
3.4.3In the case of land reserved for the purposes of a public authority, the local government is to consult with that authority before determining an application for planning approval.
Clause 10 of TPS3 dealt with the procedure for dealing with applications for planning approval for land within the Scheme Area. In the case of land reserved under the Scheme for the purposes of a public authority, the local government was required to consult that authority before making its determination.[42]
[42] TPS3 cl 10.1.2.
Clause 10.2.1 provided that in considering an application for planning approval, the local authority:
shall have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development [the] subject of the application
(a)the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the Scheme Area, including the [MRS];
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
...
(g)in the case of land reserved under the Scheme, the ultimate purpose intended for the reserve;
…
(y)any relevant submissions received on the application;
(z)the comments or submissions received from any authority consulted…; and
(za)any other consideration the local government considers relevant.

Deemed Provisions

On 19 October 2015, the majority of the regulations in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) came into force. The LPS Regulations prescribed various provisions,[43] including model provisions which were required to be included in a local planning scheme.[44] The LPS Regulations also prescribed provisions which were identified as 'deemed provisions' namely those which, as amended from time to time, 'have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force'[45] (Deemed Provisions).
[43] LPS Regulations r 10(1). The LPS Regulations were made pursuant to s 256 of the PD Act.
[44] PD Act s 257A; LPS Regulations r 10(2).
[45] PD Act s 257B(2); LPS Regulations r 10(4).
The PD Act provided that in so far as the Deemed Provisions were inconsistent with another provision of any local planning scheme, the Deemed Provisions prevailed to the extent of the inconsistency.[46] Furthermore, each local government was obliged to ensure, when preparing a local planning scheme or the consolidation of an existing scheme, that the scheme was consistent with any Deemed Provision.[47]

The Deemed Provisions concerning structure plans

[46] PDS Act s 257B(3); LPS Regulations r 10(1) and (4).

[47] PD Act s 257B(5).

The Deemed Provisions dealt with structure plans, which were defined as plans 'for the coordination of future subdivision and zoning of an area of land'.[48] Structure plans were permitted to be prepared in certain circumstances including when an area was identified in the relevant Scheme as an area requiring a structure plan to be prepared before any subdivision or development is undertaken.[49] The Deemed Provisions required that structure plans set out key information including, amongst other things, any major land uses, zoning or reserves proposed by the structure plan.[50] The Deemed Provisions defined a 'reserve' as 'land reserved under this Scheme for a public purpose'.[51]
[48] LPS Regulations Schedule 2 cl 14.
[49] LPS Regulations Schedule 2 cl 15(a)(ii).
[50] LPS Regulations Schedule 2 cl 16(1)(c).
[51] LPS Regulations Schedule 2 cl 1.
Furthermore, cl 67 of the Deemed Provisions provided that in considering an application for development approval the local government was to have 'due regard to [a list of matters], to the extent that, in the opinion of the local government, those matters [were] relevant to the development the subject of the application'. The list of matters included any structure plan, and 'in the case of land reserved under this Scheme, the objectives for the reserve and the additional and permitted uses identified in this Scheme for the reserve'.[52]
[52] LPS Regulations Schedule 2 cl 67(2)(j).
Most significantly for present purposes, the Deemed Provisions provided that a decision maker for an application for development approval or subdivision approval in an area covered by a structure plan 'is to have due regard to, but is not bound by, the structure plan when deciding the application'[53] (emphasis added).

The amendment of TPS3 to reflect the Deemed Provisions

[53] LPS Regulations Schedule 2 cl 27(1).

Following the introduction of the Deemed Provisions, TPS3 was formally amended[54] so that it conformed to the Deemed Provisions (TPS3 as amended). That occurred by Amendment 111 which took effect from 26 August 2016.[55] TPS3 as amended thus was operative by the date on which the Subject Land was sold to the FES.
[54] The amendment of TPS3 made by Amendment 111 was effected pursuant to s 75 and s 87 of the PD Act. A copy of the Government Gazette from 26 August 2016, which set out Amendment 111 of TPS3, was attached to the Third Respondent's Submissions.
[55] AF [22].
As a result of those amendments, cl 3.4 of TPS3 was renumbered cl 2.4, and, as amended, was in the following terms:[56]
[56] Exhibit 2.6 p20.
2.4.1A person must not
(a)use a Local Reserve; or
(b)commence or carry out development on a Local Reserve,
Without first having obtained planning approval under Part 7 of the Deemed Provisions.
2.4.2In determining an application for planning approval the local government shall have due regard to
(a)the matters set out in clause 67 of the Deemed Provisions; and
(b)the ultimate purposes intended for the Reserve.
2.4.3In the case of land reserved for the purposes of a public authority, the local government is to consult with that authority before determining an application for planning approval.
The amendments to TPS3 included the deletion of the provisions of cl 6 of TPS3 concerning structure plans while Special Control Areas and Development Areas were thereafter dealt with in Part 5 of TPS3 as amended. Relevantly, Part 5 of TPS3 as amended provided:[57]
[57] Exhibit 2.6 p77.
5.1.1The following Special Control Areas are shown on the Scheme Map
(a)Development Areas shown on the Scheme Map as DA with a number and included in Table 9.
(b)Development Contribution Areas shown on the Scheme Map as DCA with a number and included in Table 10.
5.1.2In respect of a special control area shown on a Scheme Map, the provisions applying to the special control area apply in addition to the provisions applying to any underlying zone or reserve and any general provisions of the Scheme.
…
5.2.1Table 9 describes the Development Areas in detail and sets out the specific purposes and requirements that apply to the Development Areas.
5.2.2Subdivision and Development in Development Areas
5.2.2.1The development of land within a Development Area is to comply with Table 9.
5.2.2.2 The subdivision and development of land within a Development Area is to generally be in accordance with any structure plan that applies to the land.
(emphasis added)
Table 9 of TPS3, as amended, made provision for DA19, including as follows:[58]
1. An approved Structure Plan together with all approved amendments shall be given due regard in the assessment of applications for subdivision, land use and development in accordance with clause 27(1) of the Deemed Provisions.
(emphasis added)
2. To provide for residential development and mixed business development where appropriate.

The terms of the Structure Plan, as at 18 September 2017, when the Subject Land was conveyed to the FES

[58] Exhibit 2.6 p94.

The Subject Land was sold to the FES on 18 August 2017, and was transferred to the FES on 18 September 2017. At those points in time, the relevant terms of the Structure Plan were not different from those set out above.

Overview of the compensation provisions in Pt 11

In order to give some context to the discussion which follows, it is convenient to set out, by way of overview, the key provisions in Pt 11 of the PD Act which are relevant to Otago's application.
As we have already noted, the entitlement to compensation lies in s 173(1) of the PD Act, which provides that subject to Pt 11, a person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.
Subsection 174(1) of the PD Act explains when land is 'injuriously affected by reason of the making or amendment of a planning scheme'. Land will be injuriously affected in that way 'if and only if' one of a number of alternative events – to which we were refer as 'trigger' events – occurs. Those trigger events are:
(a)that land is reserved … under the planning scheme for a public purpose; or
(b)the scheme permits development on that land for no purpose other than a public purpose; or(c) the scheme prohibits wholly or partially
(i)the continuance of any non-conforming use of that land; or
(ii)the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non-conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated.
In the case of injurious affection arising from reservation of land, under a planning scheme, for a public purpose, s 177 of the PD Act determines when compensation will be payable.[59] Subsection 177(1) provides that in such a case:
no compensation is payable by the responsible authority for injurious affection to that land alleged to be due or arising out of such reservation until
(a)the land is first sold following the date of the reservation; or
(b)the responsible authority
(i)refuses an application made under the planning scheme for approval of development on the land; or
(ii)grants approval of development on the land subject to conditions that are unacceptable to the applicant.
[59] Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106.
We digress to note that at various points the parties referred to the date of the contract for the sale of the Subject Land (18 August 2017) and the date on which title to the Subject Land was transferred to the FES (18 September 2017) as the date on which the Subject Land was first sold. In our view, the reference in s 177(1)(a) of the PD Act to the date when 'the land is first sold' should be understood as a reference to the date on which the land is actually conveyed from the owner (at the date of reservation) to the purchaser, at which point the purchase price will be paid.[60] In these reasons, we therefore refer to 18 September 2017 as the date on which the Subject Land was first sold for the purposes of s 177(1)(a).
[60] Cf Bond Corporation Pty Ltd v Western Australian Planning Commission [2000] WASCA 257, [33] (Ipp J, Wallwork J and Owen J agreeing).
Under Pt 11, compensation for injurious affection is payable only once,[61] unless, after compensation is paid, further injurious affection to the land arises from an alteration of the existing reservation, or the imposition of another reservation.[62]
[61] PD Act s 171(1); s 177(2).
[62] PD Act s 177(2).
A claim for compensation for injurious affection arising from the making or amendment of a planning scheme may be made only by the owner of the land at the date of the reservation.[63] Subsequent purchasers of the land may be taken to be aware of the status of the land as subject to a reservation, and to adjust the purchase price accordingly, leading to the loss, by the owner of the land at the time of the first sale, for which compensation will be payable.[64]
[63] PD Act s 173(1); Southregal [36], [45] (Kiefel and Bell JJ), [67] - [68] (Gageler and Nettle JJ).
[64] Southregal [46] (Kiefel and Bell JJ).
Payment of that compensation is dealt with in s 177(2) of the PD Act.[65] In those cases where the injurious affection arises from the reservation of land for a public purpose, the compensation is payable to the person who was the owner of the land at the date of the reservation.[66] In those cases where an application for planning approval has been refused, or granted on unacceptable conditions, compensation is also payable to the person who was the owner of the land at the date of the application for planning approval[67] (even though the application for planning approval may have been made by a developer, rather than by the owner of the land[68]).
[65] Southregal [44], [55] (Kiefel and Bell JJ).
[66] PD Act s 177(2)(a).
[67] PD Act s 177(2)(b).
[68] Southregal [44] (Kiefel and Bell JJ), [73] – [87], [94] (Gageler and Nettle JJ).
In those cases where the injurious affection from the making or amendment of a planning scheme arises from the reservation of the land for a public purpose, or from the fact that the scheme permits development on the land for no purpose other than a public purpose (that is, those cases in sub-ss 174(1)(a) or (b)) a claim for compensation for the injurious affection must be made within six months after the land is sold, or the application for approval is refused or granted on unacceptable conditions.[69] In other cases of injurious affection – that is, those described in s 174(1)(c) – the claim must be made within any time limit imposed by the planning scheme itself.[70]
[69] PD Act s 178(1)(a).
[70] PD Act s 178(1)(b).
Before compensation is payable the owner of the land must, amongst other things, give notice to the responsible authority of their intention to sell the land.[71] An owner of land which is subject to injurious affection arising from the land being reserved under a planning scheme for a public purpose may give notice of their intention to sell the land and must apply to the Board of Valuers for a valuation of the land as not affected by the reservation.[72] That enables the responsible authority to advise the owner of the minimum price at which the land may be sold without affecting the amount of compensation payable under Pt 11.[73]
[71] PD Act s 177(3)(a)(ii).
[72] PD Act s 183(1).
[73] PD Act s 183(3).
In the case of compensation sought when the land is first sold following the reservation, the compensation will reflect the fact that the owner has sold the land at a lesser price than the owner might reasonably have expected to receive had there been no reservation of their land under the planning scheme.[74] Furthermore, in the case of compensation for injurious affection arising out of the land being reserved under a planning scheme, where no part of the land has been purchased or acquired by the responsible authority, the compensation is not to exceed the difference between the value of the land as affected by the existence of the reservation, and the value of the land as not so affected.[75] Those valuations are to be assessed as at the date on which the land is sold, or alternatively, the date on which the application for planning approval is refused, or granted on unacceptable conditions.[76]
[74] Cf PD Act s 177(3)(a).
[75] PD Act s 179(1).
[76] PD Act s 179(2).
If compensation is paid, but as a result of a subsequent amendment or revocation of the planning scheme, the reservation of the land for a public purpose is revoked, or the area of the land subject to the reservation is reduced, the responsible authority is entitled to recover from the owner of the land at the date of the revocation or reduction of the reservation an amount calculated in accordance with s 181 of the PD Act.
When compensation has been paid for injurious affection to land, the responsible authority may lodge a notation for registration on the title for the land held by the Registrar of Titles.[77] That no doubt serves as a public record of the payment of compensation, but also places any subsequent owner on notice of the amount of compensation (or a proportion thereof) which may be recoverable from them in the event that the reservation is revoked or the land to which it applies is reduced.[78]

The issues for resolution

[77] PD Act s 180.

[78] Cf PD Act s 181.

For ease of reference we will refer to the period between February 2010 (when the Structure Plan was adopted) and 18 October 2015 (immediately before the Deemed Provisions came into effect) as the Operative Period.
Otago contends – implicitly by reference to the Operative Period – that the Subject Land fell within the area covered by the Structure Plan, that the Structure Plan was a 'structure plan' within the meaning of TPS3, and that cl 6.2.6.3 of TPS3 permitted a structure plan to impose a classification on the land included in the structure plan, and contemplated that that classification would be by reference to reserves, zones or Residential Design Codes (RD Codes).[79] None of those contentions appear to be controversial.
[79] Applicant's Contention [1] - [4].
Otago also contends – again, implicitly by reference to the Operative Period – that the Structure Plan classified the Subject Land as a POS (Local Reserve), and thereby 'imposed a classification on the land' for the purposes of TPS3. Otago further contends that the effect of cl 6 of TPS3 was that the Subject Land was thereby classified as if it was correspondingly reserved under TPS3.[80]
[80] Applicant's Contentions 21 June 2019 [5] - [6].
Otago contends that the Subject Land was thereby injuriously affected, for the purposes of s 174(1)(a) of the PD Act, because:[81]
(a)it was classified as a reserve by the Structure Plan;
(b)the provisions of the Structure Plan were incorporated into TPS3;
(c)the requirement in cl 6 of TPS3 which provided that the Subject Land be treated as if it were reserved under TPS3 had the force of law; and
(d)the reservation of the Subject Land was a reservation for a public purpose.
[81] Applicant's Contentions 21 June 2019 [7].
Finally, Otago submits that on a proper construction of s 37 of the Interpretation Act 1984 (WA), the commencement of the Deemed Provisions under the LPS Regulations did not remove the injurious affection by effecting a 'de-reservation' of the Subject Land.[82]
[82] Applicant's Contentions 21 June 2019 [8].
Otago submitted that the proceedings fell to be resolved by the determination of three principal questions:
1.     Was that part of the Subject Land designated as POS under the Structure Plan reserved for public purposes under TPS3 from the adoption of the Structure Plan until the commencement of the Deemed Provisions?
2.     If the answer to question 1 is yes, did the reservation confer on Otago a vested but deferred right to compensation?
3.     If the answer to Q2 is yes, did the commencement of the Deemed Provisions (and consequential amendments) abrogate that right to compensation?
Otago says that the answers to those questions are:
1.     Yes;
2.     Yes;
3.     No.
For the reasons set out below, we have concluded that the answers to those questions are:
1. Yes;
2. No;
3. Unnecessary to answer. In any event, s 37 of the Interpretation Act 1984 (WA) had no application in this case. The right to compensation relied on this case arose under s 173, read with the remaining provisions in Div 2 of Pt 11 of the PD Act. None of those provisions was repealed by the Deemed Provisions or the amendments to TPS3 which were made in August 2016. Furthermore, neither when the Deemed Provisions commenced, nor when TPS3 was amended in August 2016, had any right to compensation for injurious affection of the Subject Land been established or accrued.

The Tribunal's jurisdiction

Prior to determining the issues for resolution, it is appropriate to consider the source and extent of the Tribunal's jurisdiction in these proceedings, as there was a dispute between the parties as to the scope or extent of the Tribunal's jurisdiction in this case.
The Tribunal's jurisdiction derives from s 176(1) of the PD Act which provides that 'a claimant or responsible authority may apply to the … Tribunal for determination of any question as to whether land is injuriously affected'. However, any question as to the amount, and manner of payment of the sum which is to be paid as compensation is to be determined by arbitration, pursuant to the Commercial Arbitration Act 2012 (WA), unless the parties agree otherwise.[83] Consequently, while the Tribunal's role is to determine whether the Subject Land is injuriously affected, it is no part of the Tribunal's role to determine what amount of compensation, if any, is payable in the event that the Subject Land is injuriously affected.
[83] PD Act s 176(2).
Counsel for the City contended that the jurisdiction of the Tribunal under s 176(1) of the PD Act was 'confined to determinations as to the legal and factual status as at August/September 2017'.[84]
[84] First Respondent's Principal Contentions [4].
The basis for the City's submission was that in the case of injurious affection resulting from the reservation of land for a public purpose, the entitlement to compensation depended upon the land being injuriously affected as at the date of one of the trigger events in s 177. Counsel for the City submitted that the Tribunal's jurisdiction did not extend to determining whether land was injuriously affected at some point in time prior to the relevant trigger event.[85] In this case, the City submitted that because the only relevant event was the sale of the Subject Land, the legal and factual position under earlier versions of TPS3, prior to that point in time, was irrelevant.'[86]
[85] First Respondent's Outline of Submissions [5].
[86] First Respondent's Principal Contentions [4].

Counsel for the City also submitted that the word 'claimant' in s 176 should be understood to accord with the meaning of 'claim' and its derivatives where those terms were used elsewhere in Div 2 of Pt 11 of the PD Act.[87] Consequently, he submitted that the term 'claimant' referred to a person claiming (rather than purporting to claim[88]) compensation for injurious affection.[89]
[87] First Respondent's Outline of Submissions [12].
[88] First Respondent's Outline of Submissions [14].
[89] First Respondent's Outline of Submissions [13].
In relation to the use of the simple present tense in s 176(1), counsel for the City submitted that that simply reflected what may be (but need not necessarily be) the usual position, namely that the question whether land was injuriously affected would have the same answer as at the date of the trigger event in s 177 and the date of the Tribunal's determination. However, the City submitted that that may not always be the case.[90] The City therefore submitted that the use of tense was neutral on the question whether the Tribunal's jurisdiction under s 176 was confined to the trigger event in s 177(1).[91]
[90] First Respondent's Outline of Submissions [25].
[91] First Respondent's Outline of Submissions [26].
In the alternative to his submission that the Tribunal did not have jurisdiction to consider whether the Subject Land was injuriously affected prior to August or September 2017, counsel for the City sought a determination by the Tribunal that the Subject Land was not injuriously affected at the date of the sale of the Subject Land, even if it was injuriously affected at an earlier point in time.[92]
[92] First Respondent's Outline of Submissions [30].
Counsel for Otago submitted that the reference in s 176 to whether land 'is' injuriously affected did not carry any requirement for the currency of the injurious affection. He submitted that the Tribunal's jurisdiction was 'to determine any question as to whether … land is injuriously affected in a way which contains some operative effect'.[93]
[93] ts 7, 6 February 2020.
Counsel for the FES submitted that the Tribunal's specific and limited jurisdiction under s 176(1) of the PD Act is to determine questions as to whether land is, or is not, injuriously affected in any of the three ways defined in s 174(1) of the PD Act.[94]
[94] Third Respondent's Responsive Submissions [13].
Counsel for the FES submitted that as a matter of fact Otago had made a claim under Div 2 of Pt 11 and therefore was a 'claimant' for the purposes of s 176(1). FES submitted that the limitation on the Tribunal's jurisdiction under s 176(1) was that it was limited to determining any question as to 'whether land is injuriously affected'.[95]
[95] Third Respondent's Responsive Submissions [2].
Counsel for the FES disagreed with the submissions of counsel for the City in so far as the City contended that the Tribunal's jurisdiction was limited to determining whether land was injuriously affected at the time of a trigger event under s 177(1).[96] Counsel for the FES submitted that while it was not the function of the Tribunal to determine the amount of compensation that may be payable arising out of a reservation, or whether any compensation is payable, it was open to the Tribunal, in determining whether land is, or is not, injuriously affected, to determine whether that land was reserved for a public purpose at a particular point in time, and also that that land was not reserved for a public purpose (and thus not injuriously affected) as at, or from, a different point in time.[97]

Disposition

[96] Third Respondent's Responsive Submissions [9].

[97] Third Respondent's Responsive Submissions [8].

The jurisdiction of the Tribunal under s 176 is to determine 'any question as to whether land is injuriously affected'. The italicised words identify key components of the conferral of jurisdiction, over and above the meaning of the words 'injuriously affected' which is established by the other provisions of Pt 11 of the PD Act to which we have referred.
The reference to 'any' question conveys that the Tribunal's jurisdiction is not confined to determining whether land is in fact injuriously affected. The reference to 'any' question suggests that the Tribunal may be asked more than one question which is relevant to the determination of that ultimate question. That much was acknowledged in City of Canning and Avon Capital Estates (Australia) Ltd,[98] where Chaney DP (as his Honour then was) observed that s 176(1) serves the purpose 'of conferring on the Tribunal the task of determining what are essentially planning issues that may be contentious and which arise under s 174(1)(b) and (c) in particular'.
[98] [2008] WASAT 46 [27].
The use of the words 'any question as to whether land is injuriously affected' supports the same conclusion. In their context, the words 'as to' must be construed as having a meaning equivalent to 'in relation to', which (subject always to contextual considerations) tend to have a broad connotation.[99] If the Parliament had intended that the only question able to be determined by the Tribunal was whether land is injuriously affected, s 176 need only have referred to a claimant applying for a determination of the (sole) question of 'whether land is injuriously affected'.
[99] O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, 374 (Toohey and Gaudron JJ), 376 (McHugh J).
Furthermore, in our view, the use of the present tense in relation to the Tribunal's determination (whether land is injuriously affected) is significant. It conveys a temporal limitation.[100] The Tribunal is required to consider whether, at the date of the application to it under s 176, the land in question is injuriously affected. That is not surprising. To require the Tribunal to consider whether land was, or may have been, injuriously affected at some stage in the past, when that state of injurious affection no longer exists and no right of compensation has been preserved, or to consider whether land might be injuriously affected in the future, would be to require the Tribunal to determine a hypothetical question, or one without any practical utility.
[100] Cf Brookton Co-operative Society Ltd v Federal Commissioner of Taxation [1981] HCA 28; (1981) 147 CLR 441; Cronulla Sutherland Leagues Club Ltd v Federal Commissioner of Taxation (1990) 23 FCR 82; Envestra Ltd v Federal Commissioner of Taxation [2008] FCA 249; (2008) 169 FCR 300 [34].
That conclusion is also supported by the fact that under s 176(1), only a 'claimant' (or a responsible authority) may apply to the Tribunal for the determination of any question as to whether land is injuriously affected. The ordinary meaning of the word 'claimant' means a person 'who makes or enters a claim; one who has a claim upon anything'.[101] That implies that at the time of the application, the person must be someone who has made a claim for compensation (which has not yet been determined) or who has a claim, in the sense of being entitled to make a claim for compensation, even if that claim has not yet been made. In either case, the person is one whose claim to compensation for injurious affection is current, as opposed to spent or merely hypothetical.
[101] Oxford English Dictionary Online.
That construction of the word 'claimant' in s 176 is also consistent with the fact that under s 178, a claim for compensation must be made within 6 months after the land is sold or the planning application is refused, or granted on unacceptable conditions.
In order to make its determination as to whether the land is, at the time of the Tribunal's determination, injuriously affected, the Tribunal may need to take into account legal and factual circumstances which pertained to the land in question at earlier points in time. To that extent, we reject the submission made by counsel for the City that for the purposes of the Tribunal's exercise of jurisdiction under s 176, the factual and legal position under versions of TPS3 prior to the date of the sale of the Subject Land in September 2017 was irrelevant. As we explain below, the position under TPS3 prior to the commencement of the Deemed Provisions is highly relevant to the determination of whether the Subject Land is (now) injuriously affected.

Question 1 arises from the terms of the statutory criteria governing the entitlement to compensation for injurious affection. Counsel for Otago conceded that if Question 1 was decided against Otago, then its application would necessarily be dismissed.[102]
[102] ts 2, 6 February 2020.
The entitlement to obtain compensation for injurious affection derives from s 173 of the PD Act (see [50] above). As for when land is to be regarded as being injuriously affected by the making or amendment of a planning scheme, in this case Otago relies only s 174(1)(a) of the PD Act, and says that the Subject Land was reserved under the planning scheme (TPS3) for a public purpose.[103]
[103] Outline of Applicant's Submissions [27].
The Subject Land was not expressly identified as a 'Reserve' in TPS3 itself. Instead, Otago relies on the fact that part of the Subject Land was identified as 'POS' in the Structure Plan. The issue raised by question 1 is whether, having regard to the effect of the Structure Plan prior to the commencement of the Deemed Provisions, the identification of part of the Subject Land as POS in the Structure Plan constituted, or amounted to, that land being 'reserved under the planning scheme' for a public purpose.
That question in turn requires consideration of four other questions arising from s 174(1)(a) of the PD Act:
(i)What is the meaning of the term 'reserved' in the phrase 'land is reserved … under the planning scheme'?
(ii)Did the identification of part of the Subject Land as POS in the Structure Plan mean that the Subject Land was 'reserved under the planning scheme' for the purposes of s 174(1)(a) of the PD Act?
(iii)If so, was the Subject Land reserved 'for a public purpose'?
(iv)If so, can it be said that the Subject Land was reserved 'under the planning scheme' given that it was identified as POS in the Structure Plan, rather than in TPS3?

The parties' submissions

Otago's case

Counsel for Otago submitted that the term 'reserve' as used in TPS3 bore its ordinary meaning, which was informed by the way in which that term was used in the PD Act.[104]
[104] ts 13, 6 February 2020.
Counsel for Otago submitted that the approach taken by the Court of Appeal in Scutti v City of Wanneroo[105] in relation to the meaning of the terms 'local reserves' and 'reserve' in the scheme in that case applied 'directly and equally' to the use of the words in TPS3.[106] Counsel for Otago submitted that Scutti supported the conclusion that to be reserved for a public purpose, land did not need to be designated as a 'Reserve'.[107]
[105] [2018] WASCA 175; (2018) 53 WAR 417.
[106] ts 14, 6 February 2020.
[107] ts 5, 6 February 2020.
Counsel for Otago also submitted that Scutti supported the conclusion that the term 'reserve' in TPS3 was 'wide enough to include the classification of land, by reference to a reserve for public open space. So in other words, the fact that it is public open space is something that is for a public purpose'.[108] Counsel for Otago submitted that there was no basis in the legislation for distinguishing between land set aside for public open space, and any (other) kind of reservation, on the basis that one was a reserve and the other was not.[109]
[108] ts 14, 6 February 2020.
[109] ts 6, 6 February 2020.
Counsel for Otago also relied on the definition of 'public purpose' in s 172. He submitted that there was 'no basis for distinguishing between a Reserve, as commonly understood, and a public purpose which a Reserve is meant to effect or support or facilitate'.[110] Counsel for Otago submitted that a 'public purpose' was a purpose which at some point in time would serve the interests of the public.[111]
[110] ts 5, 6 February 2020.
[111] ts 5, 6 February 2020.
In his submissions in reply, counsel for Otago also indicated his agreement with the submissions of counsel for the FES as to the meaning of 'reserved' in s 174 of the PD Act.
Counsel for Otago submitted that when cl 8.6 of the Structure Plan, which set out the rationale for setting aside land for public purposes, was considered, it was apparent that there was an undertaking or commitment by the local government that once the land was ceded to it, and funds were available through contributions made pursuant to a DCP, money would be spent on developing the land for the identified public purpose.[112] He submitted that that was also confirmed by the incorporation, into the Structure Plan, of the WAPC's Policy DC 2.3 'Public Open Space in Residential Areas'[113] (POS Policy).[114] He submitted that the POS Policy confirmed that once land was reserved for POS, that was a signal that the local government intended to initiate the means by which the land would be ceded and delivered to the Crown free of cost.[115] The effect of the POS Policy was that when an owner applied for subdivision, the reserved land would be required to be ceded as a condition of subdivision because of its reservation under the Structure Plan.[116]
[112] ts 24, 6 February 2020.
[113] Structure Plan cl 8.6 p20, 21.
[114] Exhibit 5.
[115] ts 24-25, 6 February 2020.
[116] ts 25-26, 6 February 2020.
Counsel for Otago submitted that the Subject Land was reserved for a public purpose under TPS3 during the Operative Period because, in that period, a structure plan was required before any development in a Development Area could be approved; the Structure Plan provisions were incorporated into TPS3 by virtue of cl 6.2.6.3 of TPS3 at that time, which gave the Structure Plan effect as if it were part of TPS3; and part of the Subject Land was classified as POS by the Structure Plan and the classification of the Subject Land in that way was a reservation for a public purpose. Counsel for Otago also submitted that s 174 does not provide that land will only be injuriously affected by a reservation under a planning scheme if the land is reserved by the text or other provisions of the scheme immediately upon the making of the scheme.[117]
[117] Applicant's Submissions [25], referring to Scutti at [147].
Counsel for Otago submitted that cl 6.2.6.3 of the Scheme made clear that a structure plan would have the status of subsidiary legislation.[118] Further, he submitted that cl 6.2.6.3 of TPS3 must be taken as something more than being limited to the establishment of a local reserve, which required delineation on the Scheme Map.[119]
[118] ts 28, 6 February 2020.
[119] ts 73-74, 6 February 2020.
Counsel for Otago submitted that the Court of Appeal in Scutti held that a reference to the amendment of a planning scheme was a reference to any instrument by which a planning scheme might be amended in effect, rather than solely a scheme amendment.[120] He submitted that the Court of Appeal determined that, properly construed, the structure plan in that case had amended, or would be regarded as an amendment of, the planning scheme, so that the land could be regarded as having been reserved under the planning scheme for a public purpose.[121]
[120] ts 5, 6 February 2020.
[121] ts 5-6, 6 February 2020.
Counsel for Otago submitted that the relevant provisions of TPS3 were materially similar to those in Scutti, so that the approach taken in that case was applicable in the present case, and consequently that the provisions in TPS3 classifying the Subject Land '(in effect) as a Local Reserve apply to the land as if they were incorporated into TPS3 and are binding and enforceable in the same way'[122] and that the development control procedures apply as if the Subject Land was correspondingly reserved under TPS3.[123]
[122] Applicant's Submissions [26].
[123] Applicant's Submissions [26].
In respect of the City's contention that land set aside as POS would not be a 'true reserve' if a DCP applied to it, counsel for Otago submitted that that contention rested on an assumption that the impact of a DCP was to place an owner in the same position it would have been in if it were compensated under Div 2 of Pt 11 of the PD Act. Counsel for Otago submitted that there was no evidence to justify that assumption, and, in any event, that the legislation did not require a 'true' reservation before an entitlement to compensation arose. Further, he submitted that the existence of a DCP had no impact on how cl 6.2.6.3 of TPS3 was to be construed, or as to whether a reserve had been created.[124] Counsel for Otago submitted that the only question for consideration was whether there is a reservation (regardless of its purpose) and any impact of a DCP would be part of the factual enquiry to be undertaken as to whether compensation is ultimately payable.[125]

The City's case

[124] ts 74, 6 February 2020.

[125] Applicant's Responsive Submissions [15].

Counsel for the City submitted that the requirement under s 174(1)(a) of the PD Act was that the land was 'reserved' – and not merely designated – for a public purpose.[126] Counsel for the City submitted that the phrase 'reserved under the planning scheme' in s 174(1)(a) referred to land having a legal status under the scheme.[127]
[126] ts 34, 6 February 2020.
[127] ts 43, 6 February 2020.
Counsel for the City also submitted that the term 'reserve' referred to land earmarked for future acquisition for a public purpose.[128] He submitted that that understanding underlay the observations of the Court of Appeal in Scutti.[129]
[128] ts 37, 6 February 2020.
[129] ts 37, 6 February 2020. Counsel referred to par [58] of Scutti.
Counsel for the City acknowledged that there was nothing in TPS3 which dictated that land which was expressly designated as a 'reserve' had to be acquired by the local authority. He submitted, however, that TPS3 assumed that reserved land would be acquired by the local authority, and in support of that submission, pointed to cl 11.6.2 which provided that 'the local government may deal with or dispose of land acquired by it for the purposes of a local reserve upon such terms and conditions as it thinks fit. The land must be used and preserved for a use compatible with the purpose for which it was reserved.'[130]
[130] ts 43, 6 February 2020.
Counsel for the City submitted that Scutti did not support Otago's contentions. First, he submitted that as at August/September 2017, there were no provisions in TPS3 which were equivalent to those relied on in Scutti. By that time, TPS3 as amended required a decision maker only to have 'due regard' to the Structure Plan.[131] Secondly, he submitted that the planning scheme in Scutti was significantly different to TPS3, in that in Scutti the word 'reserve' was defined in the planning scheme to mean 'any land reserved for a public purpose'. Thirdly, in Scutti the relevant scheme expressly provided that 'where land is classified as a local authority reservation, rights, provisions and procedures shall apply as if the land was correspondingly reserved under the scheme'. Fourthly, he submitted that the Court's analysis in Scutti needed to be understood by reference to the terms of the planning scheme in that case, and in particular, its observation[132] that 'cl. 9.8.2 [the relevant provision in that scheme] is intended to operate so as to permit the classification of land under an agreed structure plan by reference to local reserves beyond those delineated on the scheme map'. (Counsel for the City pointed out that in Scutti the designation was POS, but there was no delineated POS reserve category within the Scheme Map in this case.[133])
[131] First Respondent's Outline of Submissions [69].
[132] At [104] of Scutti.
[133] ts 39-40, 6 February 2020.

Counsel for the City also submitted that Scutti was distinguishable by virtue of the differences in the terms of the applicable scheme. He submitted that TPS3 permitted a structure plan to impose a classification on land by reference to reserves, zones or the RD Codes. He submitted that in that context, the meaning of 'reserves' in TPS3 was 'reserves for the purposes of part 3 of the scheme'. Counsel for the City submitted that the meaning of 'reserve' was established in cl 3.1.1 of TPS3 – namely Regional Reserves and Local Reserves. Local Reserves were 'delineated and depicted on the Scheme Map according to the legend on the Scheme Map'.[134] Counsel for the City submitted that those clauses covered the field exclusively as to what could be reserved for the purposes of the scheme. He submitted that neither in the text of TPS3 itself nor in the Scheme Map was there any category of POS.[135]
[134] TPS3 cl 3.3.1.
[135] ts 44, 6 February 2020.
In short, the submission of counsel for the City was that for the purposes of TPS3, a 'reserve' could only be either a 'regional reserve' or a 'local reserve'.[136] Counsel for the City submitted that, unlike the position in Scutti, there was no room in TPS3 for a residual category of 'reserve' when applying cl 6.2.6.3 of TPS3.[137] Counsel for the City thus contended that it could not be said that the Subject Land was reserved under TPS3 at any time because a POS designation 'could not be said to correspond with any category of reservation provided for under TPS3'.[138]
[136] ts 40, 6 February 2020.
[137] ts 40, 6 February 2020.
[138] First Respondent's Principal Contentions [5].
Furthermore, counsel for the City submitted that Otago mischaracterised the nature and effect of the Structure Plan. He submitted that even for that portion of land designated as POS, it was inapposite to liken the effect of the Structure Plan to a reservation, having regard to the overall intent of the Structure Plan's processes and outcomes.[139] The thrust of that submission was that the provisions of the Structure Plan were directed to the development of the land in the Development zone, and were intended to be beneficial rather than deleterious, in so far as the owners of that land were concerned.[140] In developing that submission, he pointed to the fact that historically the land in question was zoned rural, TPS3 then imposed a Development zone, and the Structure Plan was adopted in relation to land zoned for Development. The provisions of TPS3 indicated that the purpose of the Development zone was to provide for the comprehensive and integrated development of the area, subject to a structure plan. Furthermore, the Structure Plan was to operate in conjunction with a DCP, which had the result that moneys were collected by the City to fund, amongst other things, the purchase of land for POS. Counsel for the City pointed out that under the POS Policy, land reserved for POS would ordinarily be vested free of cost. In contrast, in this case, the operation of the DCP meant that the landowner would be paid market value for the acquisition of the land for POS.[141] Counsel for the City submitted that in those circumstances, the land could not be regarded as having been injuriously affected by the making of TPS3.
[139] ts 45, 6 February 2020.
[140] ts 46, 6 February 2020.
[141] ts 45, 6 February 2020.
Counsel for the City also submitted that the fact that a Structure Plan generally only lasted for 10 years (as illustrated by cl 28(1) of the Deemed Provisions) and was a plan for the co-ordination of future subdivisions and zoning of an area, supported the conclusion that designations on a structure plan should not be regarded as the equivalent of zonings or reservations, in the absence of clear and specific contrary provisions in a planning scheme.[142]
[142] First Respondent's Outline of Submissions [70].
Counsel for the City also submitted that the fact that the Subject Land was within a DCA meant that the Land could not be said to have been subject to a reservation for a public purpose.[143] The basis for that argument appeared to be that because the cost contribution items under DCA 11 included the provision of land for POS as shown on the Structure Plan, and the cost of landscaping and bushland/wetland restoration, the effect of the DCP would be to restore an owner of land designated POS to the same position as if that land were not designated for POS. That was because the City would buy the land designated POS at market value, using funds accumulated pursuant to the DCP. The City submitted that 'this could not be said of the effect of a true reserve'.[144]
[143] First Respondent's Outline of Submissions [58].
[144] First Respondent's Outline of Submissions [62].
Counsel for the City submitted that there had not been a state of injurious affection at any time during Otago's ownership of the Subject Land. The City submitted that the designation of part of the Subject Land as POS did not equate with any category of reservation under TPS3, because there was no correspondence between the Structure Plan's designation of POS and any of the various kinds of Local Reserves delineated and depicted on the Scheme Map (such as parks and recreation).[145] For that reason, counsel for the City submitted that the Subject Land was not injuriously affected at any stage during the Operative Period.[146]

The FES' submissions

[145] First Respondent's Outline of Submissions [76].

[146] First Respondent's Outline of Responsive Submissions [1].

Counsel for the FES submitted that the word 'reserved' in s 174 of the PD Act had its ordinary meaning, 'in the sense of being identified or set aside'.[147] However, he emphasized that s 174 did not refer to land being reserved in any particular way, but rather referred only to 'land reserved under a planning scheme for a public purpose'.[148]
[147] ts 70, 6 February 2020.
[148] ts 70, 6 February 2020.
Counsel for the FES submitted that TPS3 contemplated that land might be designated as a Reserve, and that would constitute being 'reserved' under a planning scheme for the purpose of s 174, but that was not the only way in which land might be reserved under a planning scheme, for the purposes of s 174. By way of example, he submitted that land might be reserved by zoning it for use only for certain purposes.[149]
[149] ts 70-71, 6 February 2020.
Counsel for the FES submitted that as at 16 February 2010, by the operation of cl 6.2 of TPS3, and of those provisions of TPS3 concerning DA19, the Structure Plan was a structure plan for the purpose of cl 6.2.12.1 of TPS3, the Structure Plan Map imposed a land use 'classification' of POS on a portion of the Subject Land and that had effect according to its tenor as if it were part of TPS3, and thus was classified, and required to be treated, as if it was correspondingly 'reserved' under TPS3.[150] Counsel for the FES submitted that by virtue of those provisions, it was unnecessary for the Scheme Map to depict the land use classification of POS on the Subject Land as a 'local reserve'.[151]
[150] Third Respondent's Submissions [5].
[151] Third Respondent's Submissions [6].
Counsel for the FES submitted that the 'reservation' created by the Structure Plan was not an actual reservation, but rather was a reservation in effect.[152]
[152] ts 68, 6 February 2020.
Counsel for the FES thus submitted that from 16 February 2010, the Subject Land was injuriously affected for the purposes of s 174(1)(a) of the PD Act because of, or in consequence of, the making of TPS3, in that the Subject Land was reserved in accordance with, or pursuant to, TPS3 for a public purpose.[153] In that respect, counsel for the FES agreed with the submissions made on behalf of Otago.
[153] Third Respondent's Submissions [7], relying on Scutti.
Counsel for the FES submitted that there was no material difference between the provisions of the town planning scheme considered in Scutti and those in TPS3, with the result that the reasoning of the Court in Scutti was equally applicable to this case.[154] In his submission, the crucial provision in TPS3 was that the Structure Plan was taken to have effect as if it was part of the scheme, which had the effect that the provisions of the Structure Plan, and its designation of the Subject Land as being for POS, essentially constituted a reservation of that Land.[155]
[154] ts 69, 6 February 2020.
[155] ts 69-70, 6 February 2020.
Counsel for the FES submitted that once the Deemed Provisions commenced, the Structure Plan provisions did not amend TPS3.[156] Counsel for the FES submitted that the effect of the Deemed Provisions was that cl 6.2.6.3 and 6.2.12.2 of TPS3 were inconsistent with cl 27(1) of the Deemed Provisions, and, pursuant to s 257B of the PD Act, were of no effect to the extent of that inconsistency.[157] Consequently, after the Operative Period, the requirement that the Subject Land be treated as if it were reserved for a public purpose (as POS) under TPS3 ceased to have the force of law. From 19 October 2015, a decision maker was required to have 'due regard' to, but was no longer bound by, the provisions of the Structure Plan.[158] Counsel for the FES submitted that the effect of the Deemed Provisions was, therefore, to remove any injurious affection of the Subject Land.[159]
[156] Third Respondent's Submissions [11], referring to S and L Lenz Pty Ltd v Shire of Serpentine Jarrahdale [2017] WASC 191.
[157] Third Respondent's Submissions [12].
[158] Third Respondent's Submissions [13].
[159] ts 69, 6 February 2020.
In summary, counsel for the FES submitted that:
(a)Applying the decision in Scutti¸ the Subject Land was injuriously affected as from 16 February 2010, by reason of the provisions of the Structure Plan and the effect of cl 6.2.6.3 and cl 6.2.12.2 of TPS 3;
(b)The Subject Land ceased to be injuriously affected on 19 October 2015, when the Deemed Provisions commenced, and the de-reservation of the Subject Land was effected. That was because the provisions of TPS3, which gave the Structure Plan's designation of part of the Subject Land as POS the force of a provision of TPS3 itself, ceased to have effect. That was long before any trigger event relied upon by Otago;
(c)Alternatively, the Subject Land ceased to be injuriously affected, at the latest, on 26 August 2016, on the amendment of TPS3 by Amendment 111, at which point cl 6.2.6.3 and 6.2.12.2 and the provisions of TPS3 in relation to DA 19 were expressly deleted. That was also months before the trigger event, of the sale of the Subject Land;
(d)From 19 October 2015, or at the latest, 26 August 2016, and since the sale of the Subject Land (on 15 September 2017) the Subject Land was not, and has not, been injuriously affected for the purposes of s 174(1)(a) of the PD Act.

Disposition

What is the meaning of the term 'reserved' in the phrase 'land is reserved … under the planning scheme'?

While the parties' submissions focused, to a large extent, on the meaning of the term 'reserve' in TPS3, the starting point must be the meaning of the term 'reserved' in the phrase 'reserved … under the planning scheme' in s 174(1)(a) of the PD Act.
The term 'reserved' is not defined in the PD Act. None of the parties sought to submit that it was a term of art. Orthodox principles of statutory construction must therefore be applied.[160]
[160] Mohammadi v Bethune [2018] WASCA 98, [31] – [36].
The word 'reserve' has a number of meanings. As a verb its meanings include 'to keep back or save for future use, disposal, treatment', and 'to set apart for a particular use, purpose, service'.[161] The word may also be used as a noun, in which case its meanings include 'a tract of public land set apart for recreation, as a public reserve, or for a special purpose, as a nature reserve' and 'an area of land set aside by a government for indigenous people, to allow them to pursue a traditional lifestyle or to concentrate them under supervision and control'.[162]
[161] Macquarie Dictionary Online.
[162] Macquarie Dictionary Online.
The context in which the word 'reserved' is used in s 174(1)(a) of the PD Act conveys that, under the applicable planning scheme, land must be designated as being set aside for a public purpose. As we explain below, it is implicit in the phrase 'for a public purpose' that the reservation indicates that the land is to be used for a public purpose.
That meaning of the term 'reserved' is consistent with the use of the term 'reserved' in the legislative predecessors to s 174 of the PD Act. The reservation of land in the context of s 36 of the MRTPS Act was discussed by the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission.[163]Under s 36, compensation was payable for injurious affection due to or arising out of the land being 'reserved under the Scheme for a public purpose'. In considering the proper construction of s 36, the Full Court had regard to the relevant legislative history, commencing with a report prepared for the government of Western Australia by Gordon Stephenson and J.A. Hepburn in 1955 (Stephenson and Hepburn Report). The Court observed:
[163] [2004] WASCA 149; (2004) 29 WAR 273.
[243]The authors recognised that, where all forms of development were prohibited on a particular parcel of land, the land should be reserved, requiring its subsequent acquisition. They said that, while it would obviously be more advantageous for the Regional Planning Authority to make the acquisition immediately, this would be difficult to achieve without a considerable sum of money being available. They went on to say… :
It is important, however, to ensure that as and when these reservations are required the necessary land can be bought without any value accruing to it by reason of additional substantial development. …
Consequently, it is considered that where development threatens a reservation for regional purposes, and provided no minor adjustment in detail is possible, the land should be acquired.
In the case of some of the longer term regional proposals there is nothing to prevent the present use of the land being carried on for a number of years, and it is anticipated that in some of the outer areas this may well be the case.
…
The authors said … :
Where land is required for a public purpose, and is shown as such in a town planning scheme, zoning does not always meet the case. Even though the land may not be required for the public purpose for many years, and the present use may continue to be enjoyed during that time, the ultimate use will exclude private development.
In a town planning scheme such land should be classified as a reservation which carries with it the inherent obligation on the part of the planning authority to purchase it. As a planning scheme envisages development for many years ahead it is likely that a number of reservations will not actually be required for their planned use until perhaps one or two decades have passed, and it is possible that they need not be acquired until just before that time. However, because the reservation virtually prevents the use of the land for other than its existing use and perhaps a limited extension, it is necessary to make provision for the reservation or any part of it to be acquired if the owner desires to develop it and the reservation prevents such development.
(emphasis added)
This discussion of the history of the reservation of land for public purposes was quoted, with implicit approval, by the Court of Appeal in Scutti.[164]
[164] Scutti at [58].
The Stephenson and Hepburn Report thus contemplated that in the course of town planning, it would be necessary to identify land which it was contemplated would ultimately be required for use for purposes inconsistent with the private development of that land. The intended uses of that land meant that the land would ultimately need to be acquired from private landholders by government. However, the ultimate purpose for the use of the land might not be pursued until many years into the 'life' of the planning scheme. If that were the case, the land could remain in private ownership in the interim. However, because the ultimate purpose for which the land was to be used would preclude any, or should at least preclude any significant, inconsistent development of the land in the interim, it was desirable for the land to be identified in some way in the planning scheme as earmarked for that ultimate purpose. Furthermore, the intended ultimate purpose for which the land was to be used meant that it did not fall within the kinds of land uses encompassed by zoning designations traditionally employed in town planning schemes, so a different means of designating or identifying the land – by describing it as having been reserved for a public purpose – was used. Furthermore, land reserved for a public purpose could then be acquired by the relevant public authority if the owner sought to develop the land in a manner inconsistent with the ultimate purpose for which the land was to be used.
That history of the reservation of land for public purposes, including the assumption that the land would ultimately be acquired by a public authority in order to realise the public purpose for which it had been reserved, was adverted to in legislative debates when compensation provisions in the MRTPS Act were amended in 1962. The Full Court in Mount Lawley quoted from the Minister's speech in support of the amendment of the Town Planning and Development Act 1928 (WA) (TPD Act) to include s 36(3), (4) and (5) and said:
[253]At the time of the introduction of these provisions, the then Minister … said …:
The Bill also amends the compensation provisions in respect of the [MRS]. This amendment arises from a consideration of the financial resources of the metropolitan improvement fund and problems of planning authorities in other States where claims for compensation have totalled many millions of pounds – far beyond the resources of the responsible authorities. …
[I]t is quite impossible to contemplate the acquisition immediately, or over a short period of time, of land which will not be required for many years ahead and the cost of which will, in the aggregate, run to many millions of pounds. However, as the Act stands, the authority could be confronted with a heavy claim for compensation in respect of the whole of the land reserved under the scheme and far beyond its financial ability to meet. Nevertheless, it is necessary that the land be reserved in the scheme for this future need; and the reservation imposes an obligation in respect of compensation.
It can properly be argued that reservation under the scheme depreciates the value of land. However, the depreciation is, in many cases, hypothetical and becomes real only when the land is sold at a price which reflects this depreciation, or when development is frustrated by as refusal of consent under the scheme. The amendment proposes that compensation for injurious affection be limited to two circumstances: where a sale is effected at a depressed value attributable to reservation under the scheme, or where consent to develop is refused on the ground of reservation under the scheme.'
(emphasis added)
The role of reservations in Western Australian planning legislation was summarised by McLure JA (as her Honour then was) in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission.[165]Her Honour there said:
[47][T]he reservation of land for public purposes has a long history under Western Australian planning legislation as explained in Mount Lawley Pty Ltd v Western Australian Planning Commission. The purpose of a reservation is to indicate the intention that the land will be purchased or taken by government for public purposes. … [P]urpose is to be determined by reference to the terms of the relevant scheme and the PRS [that is, the scheme which applied in that case] classifies land into that reserved for public purposes and other land for primarily (if not wholly) private uses.
(citation omitted)
[165] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276. Although that decision was the subject of a successful appeal to the High Court (see Mandurah Enterprises Pty Ltd and Ors v Western Australian Planning Commission [2010]HCA2; (2010)240CLR409 nothing in the appeal judgment cast doubt on the correctness of her Honour's explanation of the role of reservations under Western Australian planning legislation.

Counsel for the FES also submitted that it was possible that a reservation of land could continue to have some effect for the purposes of the assessment of compensation, notwithstanding that the reservation had ceased.[263] However, the latter submission was not explained. In his oral submissions, counsel for the FES acknowledged that it was difficult to see how there could be any compensation due to or arising out of the land being reserved if, by the time the land was sold, it was no longer reserved.[264] Ultimately, counsel for the FES acknowledged that it was 'extraordinarily difficult to see how this regime works if a reservation is revoked before a claim for compensation is triggered or able to be made'.[265] Nevertheless, he disavowed 'discounting the possibility that it might be able to be made to work'.[266]
[263] Third Respondent's Responsive Submissions [7].
[264] ts 67, 6 February 2020.
[265] ts 68, 6 February 2020.
[266] ts 68, 6 February 2020.
Furthermore, counsel for the FES agreed that it 'would certainly be bizarre' if a claimant was able to obtain compensation in circumstances where a reservation was revoked prior to the first sale of the land, whereas a claimant would be required, under s 181 of the PD Act, to return compensation if a reservation was revoked after the compensation had been paid.[267]
[267] ts 68, 6 February 2020.
In the present case, counsel for the FES noted that Otago had asserted that the FES had paid less for the Subject Land than it would have been worth without the reservation. However, he submitted that it was difficult to see how Otago would be able to satisfy an arbitrator of that fact in circumstances where the reservation had been revoked many months before the date of sale.[268] He submitted that if less had been paid for the Subject Land, it could not have been because of, or due to, or arising out of, the reservation, when the reservation had been revoked two years earlier.[269] However, in the end, his submission was that it was not up to the Tribunal to make that determination, but was instead a matter for the arbitrator in assessing whether any compensation was payable.[270]

Disposition

[268] ts 67, 6 February 2020.

[269] ts 67, 6 February 2020.

[270] ts 67, 6 February 2020.

We are unable to accept Otago's contention that once part of the Subject Land was reserved under TPS3 (in the manner we have described) Otago thereafter enjoyed a right to compensation for injurious affection under s 173 (irrespective of the later revocation of that reservation) but that the payment of that compensation was merely deferred to a later date. Nor are we able to accept Otago's alternative argument that the right conferred by s 173 was a right to apply for compensation, or a right to commence arbitration proceedings under s 176(2), to determine if it was entitled to compensation.
In our view, these key planks of Otago's case must be rejected for two reasons: the contentions are not supported by the proper construction of the provisions of Pt 11 of the PD Act, and they are contrary to authority.

The nature of the entitlement to compensation under s 173 of the PD Act

A landowner's right to obtain compensation for the injurious affection of his or her land is conferred by s 173 of the PD Act.
At the outset, it is appropriate to give close consideration to the nature of what is conferred under s 173(1). That subsection refers to a landowner being 'entitled' 'to obtain' 'compensation'. The word 'entitled' in that context means 'having a legitimate claim to a right'[271] and describes a person having 'a legal right or just claim to do, receive, or possess something'.[272] The entitlement is an entitlement to 'obtain' compensation. The word 'obtain' in that context means 'to gain, acquire, or get something',[273] 'to secure (a victory, prize, etc.), to win',[274] or to come into possession of; get or acquire'.[275] Finally, the word 'compensation', on its ordinary meaning, relevantly refers to 'something given or received as an equivalent for … loss, suffering, etc'.[276] It is apparent from the ordinary meaning of those words that what is conferred by s 173 is an entitlement (that is, a right), to obtain (that is, to get or to acquire), compensation (namely a sum of money given to reflect the loss suffered by the landowner). (For that reason alone we are therefore unable to accept one of the arguments advanced by counsel for Otago, in the alternative, namely that what is conferred by s 173 is a right to apply for compensation, or to commence proceedings to ascertain whether it is entitled to compensation. Furthermore, nothing in the language used in other provisions of Div 2 of Pt 11 provides any support for that construction.)
[271] Macquarie Dictionary Online.
[272] Oxford English Dictionary Online.
[273] Oxford English Dictionary Online.
[274] Oxford English Dictionary Online.
[275] Macquarie Dictionary Online.
[276] Macquarie Dictionary Online.
It is immediately apparent that the content of the right to obtain compensation which is conferred by s 173 is fleshed out in other provisions of Pt 11 of the PD Act. Three considerations make that clear. First, s 173(1) provides that '[s]ubject to this Part any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection'. The words 'subject to this Part' direct attention to the balance of Pt 11. Secondly, it is apparent from the absence of any definition or explanation within s 173 of the meaning and operation of its key terms – 'injurious affection' and 'compensation' – that what is meant by those terms, and thus the content of the right to obtain compensation, must be discerned from elsewhere in the PD Act. Finally, the nature and existence of the provisions in the balance of Pt 11 itself (which, for example, explain the means by which compensation is calculated), leave no doubt that the conferral, and content, of the right to compensation under s 173 is determined by satisfaction of, and compliance with, the requirements set out in those other provisions of Pt 11.
The first requirement which must be met to give rise to the right to compensation under s 173 is the requirement that the land is injuriously affected. The circumstances in which that criterion will be satisfied are set out in s 174(1) of the PD Act.
The next relevant requirement which must be met (because it concerns cases where the injurious affection arises by virtue of the reservation of land) is the occurrence of one of the trigger events referred to in s 177(1) of the PD Act. Section 177(1) provides that 'no compensation is payable' unless one of those trigger events occurs. Because the right in s 173 is a right to obtain compensation, s 177(1) cannot be construed as merely deferring the payment of compensation. Compensation cannot be 'obtained' under s 173 unless and until the compensation becomes payable upon the occurrence of one of the trigger events in s 177(1). That is also confirmed by s 178 which provides for when a claim for compensation may be made. The fact that a claim may only be made within 6 months after the trigger event occurs supports the conclusion that the right to the payment of compensation does not arise until the occurrence of that trigger event. Were that not the case, it is difficult to see why a claim to compensation could not be made immediately upon the injurious affection of the land as described in s 174(2).
The third relevant requirement concerns the nature or amount of the compensation which the landowner is entitled to obtain. The right to compensation is a right to obtain compensation calculated in accordance with s 179 of the PD Act, which amount and the manner of its payment is to be determined by arbitration (s 176(2)).
In addition to the requirements which must be met before a right to obtain compensation under s 173 will come into existence, there are a number of limitations upon that entitlement to compensation which appear in Pt 11. By way of example, s 178 imposes a limitation on the time within which an application for compensation may be made. Section 171 makes clear that the entitlement to compensation is an entitlement to be paid once, in respect of any particular injurious affection of the land. Finally, s 181 makes clear that the right to obtain compensation under s 173 is subject to the later recovery of that compensation in certain circumstances, if the reservation of the land (and thus, the cause of its injurious affection) is revoked after that compensation has been paid.
It is a fundament principle of statutory construction that the provisions of an Act must be read in such a way that they will fit with one another, to give effect to harmonious goals.[277] When the provisions of Div 2 of Pt 11 are considered together, in our view, they operate cohesively and consistently only on the basis that the right to compensation arises when one of the trigger events in s 177 occurs, in circumstances where the land in question is injuriously affected at the time of the trigger event.
[277] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70].
Three considerations, in particular, strongly support that conclusion. First, under s 179, the assessment of the 'affected' value of land which is subject to a reservation assumes that the land is in fact injuriously affected at that date of the trigger events identified in s 179(2). This is most clearly reflected in s 179(1)(a) which refers to 'the value of the land as so affected by the existence of such reservation'. In our view, nothing in s 179 suggests that that provision may be understood to encompass the value of the land as affected by the previous (but not continuing) existence of a reservation.
Secondly, it is abundantly clear from s 181 that the policy of Div 2 of Pt11 is that a landowner, whose land is reserved under a planning scheme, is not entitled to the benefit of a windfall in the event that compensation is paid on the occurrence of a trigger event in s 177 (for example, the refusal of an application for planning approval) but the reservation is subsequently revoked or the area of land subject to the reservation is reduced. In such cases the owner is required to refund the compensation paid, or a proportion thereof, in accordance with s 181. (We note that s 181 makes no allowance for the possibility (now advanced by Otago) that even after a reservation is revoked, the value of the land in question may still be adversely affected by that reservation.[278]) Otago's contention that it should be able to claim, and keep, compensation for any continuing effect of the reservation of the Subject Land, even after the reservation has ceased to apply, because the reservation ceased to apply before Otago sold the Subject Land, is wholly inconsistent with that legislative policy. We agree with counsel for the City that such an outcome would be anomalous having regard to the underlying legislative policy.
[278] Cf PD Act s 181(4).
Finally, as counsel for the City also pointed out, if compensation remains payable even after the revocation of a reservation, the only event which could trigger that entitlement would be the sale of the land. A local authority could not be expected to refuse planning approval because of previous existence of a reservation which no longer applies to land the subject of the application for planning approval. The construction advanced by Otago would mean that s 177(1)(b) would be otiose in circumstances where a reservation was revoked before the landowner applied for compensation.
From 15 February 2010, therefore, while part of the Subject Land can be considered to have been reserved for a public purpose under TPS3 (by virtue of the operation of the Structure Plan and the provisions of TPS3, in the manner we have explained) Otago had not accrued any right to obtain compensation for injurious affection for the land. Otago did not, and would not, enjoy a right to obtain compensation until such time as all of the criteria in Pt 11 for the existence of that right were satisfied. Those criteria included, in particular, the continued existence of the state of injurious affection (that is, the Subject Land continued to be subject to the reservation) at the time of the occurrence of the trigger event (namely the date on which the Subject Land was sold to the FES on 18 September 2017). At that date, the Subject Land was no longer injuriously affected because the operation of the Deemed Provisions, and the amendments to TPS3 that followed, meant that the Subject Land could no longer be regarded as reserved for a public purpose under TPS3. For that reason, Otago did not have a right to compensation under s 173 of the PD Act, at the date of the sale of the Subject Land on 18 September 2017. For the avoidance of doubt, Otago did not have a right to compensation for injurious affection, attributable to the designation of part of the Subject Land for POS under the Structure Plan, at any time from 16 February 2010 until the date of the sale of the Subject Land on 18 September 2017.

Authority in relation to the right to obtain compensation under Part 11

In our view, the weight of authority is also clearly contrary to the case Otago advances in these proceedings.
In Bond the Full Court of the Supreme Court considered the operation of the provisions of s 36 of the TPD Act which were relevantly similar to s 177 of the PD Act.[279] Ipp J (with whom Wallwork J and Owen J agreed) considered, in some detail, the underlying philosophy of s 36 of the TPD Act in so far as it applied to the payment of compensation. His Honour recognised that the reservation of land for public purposes (which precluded or limited an owner's ability to develop that land) in and of itself necessarily resulted in a loss, in the form of a reduction in the market value of that land.[280] However, that loss was, at that point, no more than a 'paper loss' because it did not, at that stage, result in any tangible loss, such as the owner of the land receiving less for the sale of the land, or being unable to use the land in a manner then intended.[281] His Honour discerned the philosophy underlying the deferment of payment of compensation as provided for by the legislation as being that compensation for injurious affection should only be payable when the owner of the land involved suffers a significantly more tangible loss than that which occurs when the land is reserved.[282] His Honour's reasoning explains that the legislative policy is that no right to compensation arises until a tangible loss is suffered by the landowner. For present purposes that means that no right to compensation can be said to exist until such time (if ever) as a trigger event in s 177 occurs, while the land in question remains injuriously affected (as defined in s 174).
[279] Section 36(3) of the TPD Act relevantly provided that 'where under the scheme any land has been reserved for a public purpose, no compensation is payable by the responsible authority for injurious affection to that land alleged to be due to or arising out of such reservation until (a) the land is first sold following the date of the reservation'.
[280] Bond [34].
[281] Bond [35].
[282] Bond [37].
The observations of Ipp J in Bond were considered by Justice McHugh, and Justices Gummow and Hayne, in Temwood,[283] which also concerned the operation of s 36 of the TPD Act. (In considering their analysis, for ease of reference, we will refer to equivalent provisions of Pt 11 of the PD Act, rather than to the provisions of the legislation in Temwood itself.)
While McHugh J, and Gummow and Hayne JJ, did not agree in respect of all aspects of the construction of provisions equivalent to those in Pt 11 of the PD Act, their views did not differ on all aspects of the construction of those provisions either.[284] Significantly for present purposes, their Honours all agreed that the equivalent of s 173(1) of the PD Act conferred on the owner of land injuriously affected by a planning scheme an entitlement to compensation.[285] Furthermore, it is also apparent that their Honours did not regard that entitlement as capable of amounting to a 'right' to compensation, until one of the trigger events in the equivalent of s 177 occurred. McHugh J held that the equivalent of s 177(1) of the PD Act had the effect of postponing the entitlement to compensation conferred by the equivalent of s 173 of the PD Act, and held that until one of the three trigger events listed in s 177 occurred, there was no interest, right or privilege that the owner of the land could enforce against anyone.[286] Until one of those events occurred, the entitlement to compensation was best described as a 'liberty' or 'expectation' rather than a 'right'.[287]
[284] See the analysis undertaken by Kiefel and Bell JJ in Southregal at [14].
[285] Southregal [15].
[286] Southregal [16] referring to McHugh J at [31].
[287] Southregal [16] referring to McHugh J at [30].
Gummow and Hayne JJ also held that the effect of the equivalent of s 177(1) of the PD Act was to defer the payment of compensation until one of the events referred to in the section occurred.[288] Until one of those trigger events occurred, any entitlement under s 173 was something less than a 'right' to compensation.[289] Their Honours adverted to the possibility that that entitlement might survive the repeal of the equivalent of s 173 of the PD Act, by virtue of the operation of s 37 of the Interpretation Act.[290] However, that passing observation cannot, with respect, be regarded as a determination of that question, much less a finding that a landowner would enjoy something amounting to a right to compensation, irrespective of whether the reservation of its land was later revoked, prior to the first sale of the land.
[288] Southregal [16] referring to Gummow and Hayne JJ [102].
[289] Temwood [109].
[290] See Temwood [96]; see also Southregal [15].
In our view, the analysis of McHugh J, and of Gummow and Hayne JJ, supports the conclusion that the entitlement to obtain compensation under s 173 of the PD Act does not amount to a 'right' to obtain compensation for injurious affection until such time as all of the criteria set out in Pt 11 of the PD Act (which we have identified above) are satisfied.
In Southregal the High Court considered the operation of s 173 and s 177 of the PD Act. That case concerned the Peel Region Scheme (PRS) which came into effect in March 2003, and which reserved certain land, including the land the subject of the appeal (Land), for regional open space. The respondents purchased the Land after it became subject to the reservation. They later sought approval to develop the land and their application for compensation was refused by the Western Australian Planning Commission on the basis that compensation was only available to the person who owned the Land at the time of its reservation. That decision was upheld in the appeal to the High Court.[291] In the course of the appeal, Kiefel and Bell JJ and Gageler and Nettle JJ analysed the provisions of Pt 11 of the PD Act, and held that compensation under Pt 11 was payable only to the person who was the owner of the land as at the date when the reservation was imposed. Their Honours' analysis of the provisions of Pt 11 is also applicable to the question posed by the present proceeding.
[291] Keane J dissented for reasons which do not presently require elaboration.
Kiefel and Bell JJ held that s 173 conferred an entitlement to compensation in the event that land is injuriously affected by a planning scheme. They held that the opening words of s 173 ('subject to this Part') require that s 173(1) be read with what follows so as to produce a harmonious result.[292]
[292] Southregal [54].
Kiefel and Bell JJ also held that s 173(1) conferred an entitlement to obtain compensation on the landowner at the date of the reservation (as evinced by the words 'any person whose land').[293] A subsequent purchaser of the land did not fall within the description of a person whose land was affected by the making of a planning scheme.[294] The entitlement to compensation was provided because the person's land was injuriously affected by 'the making or amendment of a planning scheme'. Those words were reiterated in s 174(1) and s 175.[295] Their Honours held that s 173(1) provided for an entitlement 'to obtain compensation'. They noted that compensation was not payable simply in the event that the land became reserved under a planning scheme for a public purpose. Instead, s 177(1) provided the point at which the responsible authority became liable to pay compensation. Their Honours accepted that it was only when one of the trigger events in s 177(1) occurred that a claim could be made for compensation (because compensation 'will not be payable until' one of those events occurs).[296] In that case, since the Land had already been 'first sold' to the Respondents, the refusal of their development applications could not trigger a further claim for compensation.[297]
[293] Southregal [28].
[294] Southregal [31].
[295] Southregal [29].
[296] Southregal [32].
[297] Southregal [33].

Gageler and Nettle JJ reached a very similar view about s 173(1) and s 177(1). They held that compensation was payable only to the owner of the land when the reservation was imposed. They held that s 177(1) of the PD Act conveyed the meaning that there is but one right to compensation, which inures in favour of a person whose land is injuriously affected by its reservation for a public purpose under a planning scheme, and which becomes payable to that person only once, upon the first to occur of the triggers specified in s 177(1).[298]
[298] Southregal [67].
The four members of the Court also examined the legislative history of the predecessors to s 173(1) and s 177 and reached the same view in relation to the rationale for the provision of a right to compensation for the benefit of the landowner at the time the reservation was imposed. They held that the rationale for the payment of compensation was to protect the owner of the land at the time the scheme, or amendment, included land in a reservation. Subsequent purchasers were assumed to be aware of the scheme provisions giving rise to injurious affection and could be expected to adjust the purchase price accordingly. That was the loss which the statute predicted the original owner would suffer, and for which compensation was payable.[299] The rationale for the deferral of the payment of compensation for injurious affection until one of the trigger events occurred reflected the fact that public authorities may not have the resources to compensate all owners whose land might be injuriously affected by the reservation of large amounts of land which were to be reserved under planning schemes. For that reason, compensation was deferred until the injurious affection resulting from the reservation of the land came home to the owner upon sale of the land, or upon rejection, or grant subject to unacceptable conditions, of an application for development approval.[300]
[299] Southregal [46] (Kiefel and Bell JJ); [75] (Gageler and Nettle JJ).
[300] Southregal [72].
In our view, the analysis undertaken by the members of the Court in the majority in Southregal supports the conclusion that the right to compensation does not arise at the time when the land in question becomes subject to the reservation. Rather, the right arises, and compensation becomes payable, only if and when a trigger event in s 177 occurs, while the land continues to be injuriously affected by the existence of the reservation.

Question 3: If the answer to question 2 is yes, did the commencement of the Deemed Provisions (and consequential amendments) abrogate that right to compensation?

Because we have concluded that Otago did not have a right to compensation for injurious affection at 18 September 2017 when the Subject Land was sold to the FES, there is no need for us to answer question 3. However, as the matter was fully argued, it is appropriate that we express our view on that question, which concerns the operation of s 37 of the Interpretation Act 1984 (WA). That section relevantly provides:
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears —
…
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
…
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.

Otago's submissions

Counsel for Otago advanced two arguments in relation to question 3: that the reservation of the Subject Land had not been revoked. However, even if the reservation had been revoked, Otago's right to compensation survived that revocation, by virtue of the operation of s 37 of the Interpretation Act.
Counsel for Otago submitted that if it had a right to compensation from 16 February 2010, albeit a deferred right to compensation, that right 'is not to be extinguished without clear words. The promulgation of the Deemed Provisions did not manifest a clear intention to extinguish the right of a landowner to be compensated for the injurious affection to land caused by it being set aside for public purposes, simply by altering the status of an adopted Structure Plan'.[301]
[301] Applicant's Submissions [38].
Counsel for Otago submitted in the alternative that the effect of the Deemed Provisions was to render of no effect those provisions of TPS3 which required the Structure Plan to be treated as if it were part of TPS3. He submitted that the Deemed Provisions 'had the effect of 'rescinding, revoking, cancelling or deleting' those inconsistent provisions' in TPS3, and that that constituted a 'repeal' within the meaning of s 37 of the Interpretation Act.[302]
[302] Applicant's Submissions [37], citing Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1.
Counsel for Otago submitted that the question was whether the effect of the Deemed Provisions was to disentitle Otago, when it sold the Subject Land, from claiming any compensation to which it had previously been entitled, by virtue of the existence of the reservation.[303] He submitted that Otago's right to compensation for injurious affection accrued under the provisions of TPS3 prior to the amendments to that Scheme which were brought about by, and consequential on, the Deemed Provisions, and that that right to compensation 'has not been abrogated' by the Deemed Provisions, because the effect of s 37(1)(c) and (f) of the Interpretation Act was that Otago's right to compensation, and its right to commence and continue legal proceedings for the purpose of determining whether any compensation should be paid, was preserved, or alternatively constituted a liberty with sufficient substance to be preserved, by the Interpretation Act.
[303] Applicant's Responsive Submissions [2].
Counsel for Otago submitted that s 37(1)(c) of the Interpretation Act preserved Otago's right or entitlement to compensation, which arose immediately upon the reservation of the Subject Land. However, he also submitted that if the Tribunal was against Otago on that point, it also relied on s 37(1)(f) to preserve its entitlement to pursue a legal proceeding (or the factual inquiry, at arbitration) in respect of that right.[304] In that respect, he submitted that Otago's case was that it had an 'entitlement to compensation' which in this case amounted to a right to compensation subject to the conduct of an investigation, legal proceeding or remedy'.[305] In effect, he submitted, the right was an entitlement to compensation which was only realised and assessed on completion of a factual inquiry.[306] He submitted that the requirement for that investigation to occur did not affect the existence of the right or entitlement to compensation itself.[307]
[304] ts 20.
[305] ts 20.
[306] ts 20.
[307] ts 20.
Counsel for Otago submitted that this aspect of its case was supported by observations in Temwood, which were referred to in Southregal.[308]
[308] Applicant's Submissions [40], [41], and ts 30, referring in particular to the joint judgment of Justices Hayne and Gummow, and to the judgment of Justice McHugh, in Temwood, and to the analysis thereof in Southregal.
Counsel for Otago thus submitted that s 37 of the Interpretation Act 'operated to enable [Otago] to ask an arbitrator to determine whether, in fact, [it] did suffer loss'.[309] Consequently, he submitted that Otago was entitled to proceed to arbitration to determine what amount of compensation (if any) should be paid.[310] Counsel for Otago submitted that that made sense because if Otago did suffer loss, and if it could establish the relevant causal nexus between that loss and the reservation of the Subject Land, it would be unfair to deprive Otago of compensation for that loss simply because of the effect the Deemed Provisions had been found to have on the Structure Plan.[311] Counsel for Otago submitted that the nature of the right meant that the investigation (in the course of the arbitration) could be commenced even after the Deemed Provisions had come into effect.[312]

The City's submissions

[309] ts 17.

[310] ts 29.

[311] ts 17-18.

[312] ts 21.

While counsel for the City acknowledged that s 173(1) created 'a right of sorts'[313] he submitted that it was vital to correctly identify the content of the right, before it could be established whether the alleged repeal interfered with that right.[314]
[313] First Respondent's Outline of Responsive Submissions [5], referring to Southregal at [28], [70], [83].
[314] ts 50.
Counsel for the City submitted that the right here was an entitlement to obtain compensation, from the responsible authority, in respect of the injurious affection by the making of the planning scheme, subject always to Pt 11 of the PD Act.[315] The City submitted that the fact that the right was subject to Pt 11 of the PD Act, meant that 'the content of the right has the in-built limitations that no compensation is payable until, relevantly, the land is first sold; and that compensation is not to exceed the difference between the unaffected and affected values as at the date of sale'.[316]
[315] First Respondent's Outline of Responsive Submissions [7].
[316] First Respondent's Outline of Responsive Submissions [8].
The City submitted that 'there is no interference with the right conveyed by s 173(1), once it is understood that the scheme of Pt 11 made the right inherently susceptible to any de-reservation that might occur in the intervening time before sale'.[317]
[317] First Respondent's Outline of Responsive Submissions [8]; ts 51.
Counsel for the City submitted that the 'right' in this case was 'a unique kind of right, an unusual kind of right. It's deferred in an unusual way, but the law is no stranger to inchoate rights, rights that are conditional or subject to defeat by a condition subsequent'.[318] For that reason, he submitted, there was no abrogation of the right by virtue of the Deeming Provisions coming into effect.

The FES' submissions

[318] ts 51-52.

Counsel for the FES agreed with the City's submissions that as a result of the operation of the Deemed Provisions (or by the amendment to TPS3 made in Amendment 111), the Subject Land was not reserved for a public purpose for the purposes of s 174(1)(a), and therefore was not injuriously affected as from either 19 October 2015 (when the Deemed Provisions commenced) or from 26 August 2016, when Amendment 111 was gazetted.[319]
[319] Third Respondent's Responsive Submissions [11].
Counsel for the FES submitted that there was no need for the Tribunal to determine whether Otago had a 'vested but deferred right' or merely a 'liberty' to apply for compensation as a result of the Subject Land being injuriously affected as from 16 February 2010. Nor, in his submission, was there any need for the Tribunal to determine whether or not any such 'right' or 'liberty' was impacted by the operation of either the Deemed Provisions or Amendment 111, or the effect (if any) of s 37 of the Interpretation Act.[320]

Disposition

[320] Third Respondent's Responsive Submissions [12].

In our view, s 37 of the Interpretation Act has no operation in this case. That section preserves the operation of legislation in certain respects, including in so far as that legislation has created rights, if that legislation is repealed.
In the case of legislation conferring a right (such as the right to compensation under s 173 of the PD Act), it is the repeal of the legislation which confers the right itself which then enlivens s 37, which operates to preserve that right. That much is evident from the terms of s 37(1)(c) which provides that 'where a written law repeals an enactment, the repeal does not … affect any right … created, acquired, [or] accrued … prior to the repeal'. Necessarily the right must have been created by the repealed enactment. The repeal of another enactment would not affect the existence of the right. Furthermore, as s 37(1)(c) makes clear, that provision will have no work to do unless the right was created or had accrued prior to the repeal of the legislation which conferred it.
These aspects of the operation of s 37, in the context of planning legislation, are illustrated by the decision of the Court of Appeal in Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd.[321] The change to the relevant legislation in that case concerned the deletion of a definition of the term 'service station' in the relevant planning scheme. That change did not in any way affect the right which had been identified, which was the right conferred by s 252(1) of the PD Act (namely the right to a review, in accordance with Pt 14 of the PD Act, of the responsible authority's decision) and which amounted to a right to have the development application considered by the Tribunal, having due regard to the provisions of the planning scheme in force at the time of the Tribunal's determination. That right was not a right to have the application determined in accordance with the provisions of the planning scheme at a particular point in time, namely prior to the amendment of the scheme. Further, the deletion of the definition of 'service station' did not affect the classification of the proposed use of the land as a convenience store for the purposes of the planning scheme. Rather, it was the introduction of a new definition of 'service station' which was said to have altered the classification of the proposed use under the planning scheme. The Court held that the introduction of that new provision was not a repeal to which s 37 could apply. In any event, the introduction of that new definition did not affect the right of review under s 252(1) of the PD Act. Consequently the Court of Appeal held that there was no work for s 37 to do.[322]
[321] Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213.
[322] Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd[102] - [107].
In our view, the application of the same process of reasoning leads to a similar conclusion in this case. Here, the source of the right of any person to injurious affection lies in s 173 of the PD Act, the content of which is spelled out in the other provisions of Div 2 of Pt 11 of that Act. Neither s 173 nor any other provision in Pt 11 was repealed, nor was their operation in any way affected, by the commencement of the Deemed Provisions or by the consequential amendments subsequently made to TPS3.
Furthermore, even if there is room for argument that, as a matter of substance, the amendments to TPS3 in August 2016 to delete cl 6.2.6.3 of TP3 in particular, effected a 'repeal' of an enactment which might enliven s 37 of the Interpretation Act, that provision still has no work to do in this case, because no right to compensation had been established or had accrued, prior to the point in time when the amendments to TPS3 were made in August 2016. Different arguments would have arisen had the Subject Land been sold prior to those amendments being made, but before compensation was paid. However, that was not the case here, and it is unnecessary to explore that issue further.

Conclusion

After 19 October 2015, and in particular, as at 18 September 2017, when the Subject Land was sold, it was not reserved under TPS3 for a public purpose, and thus was not injuriously affected by the making or amendment of a planning scheme so as to found a right to obtain compensation under s 173 of the PD Act. Consequently, the Subject Land is not injuriously affected by virtue of its designation as POS under the Structure Plan.
We will hear from the parties as to the terms of any orders which should be made in light of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GD
Associate to the Honourable Justice Pritchard
10 MARCH 2021