Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63

HIGH COURT OF AUSTRALIA

McHUGH J, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ

WESTERN AUSTRALIAN PLANNING

COMMISSION APPELLANT

AND

TEMWOOD HOLDINGS PTY LTD RESPONDENT

Western Australian Planning Commission v Temwood Holdings Pty Ltd

[2004] HCA 63

9 December 2004

P90/2003

ORDER

1. Appeal allowed.

2. Orders 1, 2, 3 and 5 of the Full Court of the Supreme Court of Western Australia made on 22 May 2002 set aside. In their place order that the appeal to that Court be dismissed.

3. The appellant pay the respondent's reasonable costs of the appeal to this Court.

On appeal from the Supreme Court of Western Australia

Representation:

G T W Tannin SC with C J Thatcher for the appellant (instructed by the Crown Solicitor's Office of Western Australia)

D H Solomon with J C Giles for the respondent (instructed by Solomon Brothers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Western Australian Planning Commission v Temwood Holdings Pty Ltd

Town Planning (WA) – Statutory right to compensation conferred upon any person whose land or property was injuriously affected by the making of a specified planning scheme – Land injuriously affected by making of scheme not owned by respondent at time scheme was made but subsequently owned by respondent – Whether right to compensation passed with the land – Whether respondent had a statutory right to compensation.

Town Planning (WA) – Subdivision of land – Application for subdivision approval – Progressive subdivision of larger area – Town planning authority granted subdivision approval subject to a condition that a portion of the larger area be vested in the Crown free of cost and without any payment of compensation by the Crown – Whether condition imposed for a proper "planning purpose" – Whether condition fairly and reasonably related to the development permitted – Whether condition validly imposed.