Western Australian Current Acts Western Australian Current Acts (1) Where —
(a)
compensation for injurious affection to land (the original compensation ) has
been paid to an owner of land in the circumstances set out in section 177; and
(b) as a
result of the planning scheme being amended or revoked the reservation of the
land for a public purpose is revoked or the area of the land the subject of
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 (the refund ) which is
determined by calculating the relevant proportion (as determined under
subsections (4) to (7)) of the value of the land as at the date on which the
refund becomes payable under subsection (2).
(2) The refund is not
payable by the owner of the land until the land is first sold or subdivided
following the date of the revocation or reduction referred to in subsection
(1)(b) unless otherwise agreed by the owner and the responsible authority.
(3) If the land is
owned by 2 or more people they are jointly and severally liable to pay the
refund.
(4) When the
reservation has been revoked the relevant proportion for the purposes of
subsection (1) is the same as the proportion referred to in section 180(1)(c)
in relation to the original compensation.
(5) Where the area of
the reservation has been reduced the relevant proportion for the purposes of
subsection (1) is to be determined as follows —
(a) a
notional amount of compensation is determined under sections 177 and 179 as if
—
(i)
the reservation had never occurred; and
(ii)
a reservation of the reduced area had occurred when the
reduction occurred; and
(iii)
the land were being sold;
and
(b) the
proportion (expressed as a percentage) which that notional amount of
compensation bears to the current value of the land (unaffected by the
existence of the reservation) is calculated; and
(c) the
relevant proportion is then determined by deducting the proportion calculated
under paragraph (b) from the proportion referred to in section 180(1)(c) in
relation to the original compensation.
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Example : Original compensation |
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Less | |
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Notional compensation |
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Relevant proportion = |
10% |
(6) Despite subsection
(4), where the reservation is revoked after an amount has been recovered under
subsection (2) in respect of a previous reduction of the reservation, the
relevant proportion is the same as the notional compensation proportion
calculated under subsection (5)(a) and (b) in respect of the previous
reduction.
(7) Despite subsection
(5), where the reservation is reduced after an amount has been recovered under
subsection (2) in respect of a previous reduction of the reservation, the
relevant proportion is to be determined as follows —
(a) a
notional compensation proportion is calculated under subsection (5)(a) and (b)
in respect of the subsequent reduction; and
(b) the
relevant proportion is then determined by deducting the proportion referred to
in paragraph (a) from the notional compensation proportion calculated under
subsection (5)(a) and (b) in respect of the previous reduction.
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Example : Notional compensation |
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Less | |
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Notional compensation |
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Relevant proportion |
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(8) For the purposes
of subsections (1) and (5)(b) the value of the land is to be determined by one
of the methods set out in section 188(2)(a), (b) or (c), but that value is to
be determined without regard to any increase in value attributable to factors
unrelated to the reservation or to its revocation or reduction.
(9) When the
responsible authority has an entitlement to recover an amount under subsection
(1) it has an interest in the land and may lodge with the Registrar a
notification in a form acceptable to the Registrar of the existence of that
interest, and may withdraw, in a form acceptable to the Registrar, any
notification so lodged.
(10) On receipt of the
notification or a withdrawal of notification from the responsible authority,
the Registrar is to register the notification or withdrawal of notification.
(11) Before selling or
subdividing land in respect of which a notification is lodged under subsection
(9), the owner of the land is to give written notice to the responsible
authority, in accordance with the regulations, of the owner’s intention
to sell or subdivide the land.
(12) Where a
notification is lodged under subsection (9) the Registrar of Titles is not to
register a transfer of the land without the consent of the responsible
authority.
(13) Where a
notification as to the land is lodged under subsection (9) with the Registrar
of Deeds and Transfers without the consent of the responsible authority,
registration of the document the subject of the notification is null and void.
(14) Subject to
subsection (15), in the case of land reserved under a region planning scheme,
subsection (1) has effect whether the reservation of the land occurred before
the commencement of this section or occurs after that commencement.
(15) In the case of
land reserved under the Metropolitan Region Scheme, where the reservation
occurred before the commencement of this Act, subsection (1) does not have
effect if —
(a) the
revocation or reduction of the reservation occurred before 1 July 1988; or
(b) the
sale or subdivision referred to in subsection (2) occurred before 1 March
1995,
but otherwise has
effect whether the revocation or reduction occurred before the commencement of
this section or occurs after that commencement.
(16) In any other case
subsection (1) has effect if the revocation or reduction occurs after the
commencement of this section.
(16A) The reference in
subsection (1)(b) to the planning scheme being amended or revoked includes, in
relation to land in the Swan Valley for which compensation for injurious
affection was paid before the scheme start day referred to in the
Swan Valley Planning Act 2020 section 9 —
(a) a
reference to that planning scheme ceasing to apply, and the first Swan Valley
Planning Scheme beginning to apply instead, under the Swan Valley Planning
Act 2020 section 9; and
(b) a
reference to the making of a subsequent Swan Valley Planning Scheme or the
amendment of the Swan Valley Planning Scheme.
(17) In this section
—
register means to register under the
Registration of Deeds Act 1856 or Transfer of Land Act 1893 , as the case
requires;
Registrar means the Registrar of Titles or the
Registrar of Deeds and Transfers, as the case requires.
[Section 181 amended: No. 28 of 2010 s. 63; No. 45
of 2020 s. 83.]