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01-11-2012

Why does the government avoid Planning Control Areas?

In regards to the Planning & Development Act, when government first indicates interest in privately owned land for a public requirement, a Planning Control Area (PCA) should immediately be declared over that land.

 

Reasons:

The value of such land is, in many cases, severely affected by that interest from the day government indicate their intention. For example the government’s Bush Forever (Bush Plan) policy has affected the value of privately owned land for in excess of 10 years. The System 6 report (1983) also recommended reservations which were not implements for over 20 years later. The intention of the WAPC is to reserve this type of land in the Metropolitan Region Scheme as Parks & Recreation. Reservation gives owners the right to claim compensation.

 

A PCA is a temporary reservation, lasting 5 years, giving time for government authorities time to resolve various issues. A PCA gives owners the same compensation rights as if it was fully reserved. A PCA can be implemented within weeks not years as is the case for reservation.

The WAPC do use PCA’s but are in the habit of implementing them, in some cases, after negotiations have been finalized. This could be seen as a form of blackmail.

 

A problem being experienced in WA is that because of the great time lag in implementing reservations, valuers, government authorities and judiciary appear to be accepting the forerunner policies as the norm. Consequently private owners are receiving values that are affected by the very purpose they were reserved. This is contrary to long established legal precedents.

 

The following quote from Melwood Units Ltd v Commissioner of Main Roads Privy Council 1979 was re iterated in the Murphy case in the High Court (1990) as follows:“One purpose of this principle (the Pointe Gourde Principle*) is to ensure that a resuming authority does not employ planning restrictions to destroy the development potential of the land and then assess compensation for its resumption on the basis that the destroyed potential had never existed !!”

 

“The principle applies in cases where there is a direct relationship between the planning restriction and the scheme of which resumption is a feature, and extends to cases where there is merely an indirect relationship, provided that the planning restriction can properly be regarded as a step in the process of resumption” Housing Commission of New South Wales v San Sebastian Pty Ltd High Court (1978)

 

*The Pointe Gourde Principal emanates from: Pointe Gourde Quarrying & Transport Company Ltd v Sub-Intendent of Crown Lands 1941 Privy Council decision.

 

Other policies that affect land owners rights and values are Priority 1 Underground Water Pollution Control Areas, Heritage listings, rare flora, wetland buffers etc. All of these policies reflect the purpose of why the land is eventually reserved.