Re the Honourable Alannah MacTIERNAN Mla, Minister for Planning and Infrastructure & Ors; Ex Parte McKAY & Anor

[2007] WASCA 35

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Land Law
2. › Compulsory acquisition
3. › Power to take land for public work
4. › Meaning of 'authorised' in s 161 of Land Administration Act 1997 (WA)
5. › Whether acquiring authority must have obtained all approvals necessary to undertake the public work before exercising power of compulsory acquisition
6. › Whether Commonwealth environmental approval under EPBC Act a precondition to exercise of State compulsory acquisition power
7. › Land Administration Act 1997 (WA), s 161
1. Statutory Interpretation
2. › Meaning of 'authorised'
3. › Contextual interpretation
4. › Legislative history as aid to construction
5. › Consistency of meaning within a statute
6. › Land Administration Act 1997 (WA), s 161
7. › Public Works Act 1902 (WA), ss 2, 10, 11
1. Environmental Law
2. › Environment Protection and Biodiversity Conservation Act 1999 (Cth)
3. › Controlled actions
4. › Relationship between Commonwealth environmental approval requirements and State compulsory acquisition powers
5. › Whether determination that action is 'controlled action' constrains State power to acquire land
6. › Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 67, 68, 75, 133
1. Prerogative Writs
2. › Certiorari
3. › Application to quash taking order for compulsory acquisition of land
4. › Whether taking order made without power

Quick Take

The word 'authorised' in s 161 of the Land Administration Act 1997 (WA) requires only that the public work be within the scope of powers conferred by legislation; it does not require that all approvals necessary to complete the work (including Commonwealth environmental approval under the EPBC Act) be obtained before land can be compulsorily acquired. A determination by the Commonwealth Minister that a proposed action is a 'controlled action' under the EPBC Act does not constrain State compulsory acquisition powers. The scope and effect of s 191 of the Planning and Development Act 2005 (WA) as an alternative source of compulsory acquisition power was left open.