Western Australian Current Acts

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PLANNING AND DEVELOPMENT ACT 2005 - SECT 174

174 .         When land is injuriously affected

        (1)         Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if —

            (a)         that land is reserved (whether before or after the coming into operation of this section) 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.

        (2)         Despite subsection (1)(c)(ii), a planning scheme which prescribes any requirement to be complied with in respect of a class or kind of building is not to be taken to have the effect of so prohibiting the erection, alteration or extension of a building of that class or kind in connection with, or in furtherance of that class or kind in connection with, or in furtherance of, non-conforming use.

        (3)         Where a planning scheme wholly or partially prohibits the continuance of any non-conforming use of any land or the erection, alteration or extension of any building in connection with or in furtherance of a non-conforming use of any land, no compensation for injurious affection is payable in respect of any part of the land which immediately prior to the coming into operation of the scheme or amendment does not comprise —

            (a)         the lot or lots on which the non-conforming use is in fact being carried on; or

            (b)         if the prohibition relates to a building or buildings standing on one lot, the lot on which the building stands or the buildings stand; or

            (c)         if the prohibition relates to a building or buildings standing on more than one lot, the land on which the building stands or the buildings stand and such land, which is adjacent to the building or buildings, and not being used for any other purpose authorised by the scheme, as is reasonably required for the purpose for which the building or buildings is or are being used.

        (4)         If any question arises under subsection (3) as to whether at any particular date, any land —

            (a)         does or does not comprise the lot or lots on which a non-conforming use is being carried on; or

            (b)         is or is not being used for any purpose authorised by a scheme; or

            (c)         is or is not reasonably required for the purpose for which any building is being used,

                the claimant or responsible authority may apply to the State Administrative Tribunal for determination of that question.



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