Recovering paid compensation if reservation revoked or reduced
181 Recovering paid compensation if reservation revoked or reduced
Where —
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
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).
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.
If the land is owned by 2 or more people they are jointly and severally liable to pay the refund.
When the reservation has been revoked the relevant proportion for the purposes of subsection (1) is the same as the proportion referred to in section 180(1)(c) in relation to the original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.
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 notional amount of compensation is determined under sections 177 and 179 as if —
the reservation had never occurred; and
a reservation of the reduced area had occurred when the reduction occurred; and
the land were being sold;
and
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
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.
Example: Original compensation |
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Less | |
Notional compensation |
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Relevant proportion = | 10% |
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.
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 notional compensation proportion is calculated under subsection (5)(a) and (b) in respect of the subsequent reduction; and
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.
Example: Notional compensation |
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Less | |
Notional compensation |
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Relevant proportion |
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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.
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.
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.
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.
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.
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.
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.
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 —
the revocation or reduction of the reservation occurred before 1 July 1988; or
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.
In any other case subsection (1) has effect if the revocation or reduction occurs after the commencement of this section.
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 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
a reference to the making of a subsequent Swan Valley Planning Scheme or the amendment of the Swan Valley Planning Scheme.
The reference in subsection (1)(b) to the planning scheme being amended or revoked includes, in relation to land in the metropolitan region for which compensation for injurious affection was paid before commencement day —
a reference to the Metropolitan Region Scheme being amended by the amendment Act; and
a reference to the making of a subsequent Metropolitan Region Scheme or the amendment of the Metropolitan Region Scheme.
In subsection (16B) —
amend, the Metropolitan Region Scheme, includes delete, without substitution, a provision of the Scheme;
amendment Act means the Planning and Development Amendment (Metropolitan Region Scheme) Act 2024;
commencement day means the day on which section 19 of the amendment Act comes into operation.
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; No. 41 of 2024 s. 19.]
This provision refers to the regulations (the regulations
). Made under this Act:
- By-law providing for enforcement of any by-law made under section 30 · Regulation
- By-law under the Second Schedule of the Town Planning and Development Act 1928, clauses 4 and 11 · Regulation
- By-laws for the Control of Hoardings · Regulation
18 more instruments made under this Act are listed on the Act’s overview.
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