Castledine Gregory Law and Mediation

No compensation for ‘injurious affection’ for land identified as public open space in structure plan


In Scutti v City of Wanneroo [2017] WASC 70, the WA Supreme Court ruled that land identified as ‘public open space’ under a structure plan is not land ‘injuriously affected’ by a planning scheme  and as a result, the landowners are not entitled to compensation under that regime.




The appellants made two development applications to the City of Wanneroo (City): one for the construction of a shed and the other for the development of group housing. Both applications were refused. One ground for refusal common to both applications was that, even though the land was zoned for ‘urban development’ under the City of Wanneroo District Planning Scheme No 2 (DPS2), the subsequent structure plan identified parts of the land within an area of public open space, and granting the applications would affect the future planned use of the site.


Part 11 of Division 2 of the Planning and Development Act 2005 (WA) (Act) makes provision for compensation where land is injuriously affected by a planning scheme. Section 174(1) of the Act provides that land is injurious affected by the making or amendment of a planning scheme if:


  • the land is reserved under the planning scheme for a public purpose; or
  • the scheme permits development on the land for no purpose other than a public purpose; or
  • the scheme prohibits wholly or partially the continuance of any non-conforming use of that land, or the erection of any building in connection with any non-conforming use of the land.


The City applied to the State Administrative Tribunal (SAT) for a determination as to whether the appellant’s land had been injuriously affected by the identification of the relevant land as public open space under the structure plan. The SAT held that the appellant’s land had not been injuriously affected.


The appellants obtained leave to appeal the decision of the SAT to the Supreme Court, and argued that the SAT erred in law in finding that none of the three circumstances contemplated under section 174(1) of the Act applied.


The Court’s decision


The Supreme Court dismissed all three grounds of appeal.


Ground 1 was that the SAT erred in law in determining that the land had not been reserved for a public purpose. The appellants argued that a proper interpretation of the Act, DSP2 and the structure plan, meant that their land was reserved for a public purpose and this reservation afforded them the right to compensation for injurious affection. The appellants’ argument was that ‘reserved’ means ‘setting aside’ and a scheme reserves land for a public purpose if the land is set aside for that purpose, regardless of whether the word ‘reserve’ is used.


The Court noted that the key provision was clause 9.8.2 of DPS2.  That clause  provides that a structure plan applies ‘as if its provisions were incorporated in [DPS2]’, only if the structure plan ‘imposes a classification on land ‘’by reference to reserves, zones [etc.]’. Therefore, land was capable of being injuriously affected by a structure plan and the operation of clause 9.8.2 of DPS2. However, the structure plan in question defined the subject land as merely public open space and did not impose a classification ‘by reference to reserves’. The structure plan therefore does not have the effect of amending DPS2 to reserve the land for a public purpose.


Ground 2 was that the SAT erred in law in failing to find that DPS2 permitted development on the land for no purpose other than a public purpose. The Court noted that the effect of clause 27(1) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) is that a decision-maker is to have ‘due regard to, but is not bound by’ a structure plan when deciding an application. Therefore, the City (and the SAT) was to have regard to, but was not bound by, the structure plan’s identification of the land as public open space, in deciding the application for planning approval.


In any case, the City had refused the approval in the exercise of its discretion, taking into consideration other matters relevant to the development application, and not because it considered that the structure plan and DPS2 permitted development for no purpose other than the provision of public open space.


Ground 3 was that the SAT erred in law in finding that DPS2 did not prohibit the continuance of a non-conforming use (or the erection of any building in connection with that non-conforming use). A non-conforming use arises when a planning scheme is made or amended, and causes a previously lawful use of land to become prohibited.  However, the Court disposed of this ground of appeal by noting that the provisions of DPS2 which deal with non-conforming uses clearly do not prohibit such uses.


As the Court held that none of the three circumstances contemplated in section 174(1) of the Act applied, the Court concluded that the landowners were not entitled to compensation for injurious affection under that regime.


Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.


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