Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, CRENNAN AND BELL JJ

MANDURAH ENTERPRISES PTY LTD & ORS APPELLANTS

AND

WESTERN AUSTRALIAN PLANNING COMMISSION RESPONDENT

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission

[2010] HCA 2

3 February 2010

P15/2009

ORDER

1. Appeal allowed in part.

2. Declare that:

(a) the taking order of 5 August 2003 made under s 177 of the Land Administration Act 1997 (WA) relating to:

(i) Lot 7 on Plan 8565, being the whole of the land contained in Certificate of Title Volume 1936 Folio 292 ("lot 7");

(ii) Lot 8 on Plan 8565, being the whole of the land contained in Certificate of Title Volume 1936 Folio 291 ("lot 8");

(iii) Lot 30 on Diagram 74229, being the whole of the land contained in Certificate of Title Volume 1838 Folio 943 ("lot 30"); and

(iv) Lot 49 on Plan 17900, being the whole of the land contained in Certificate of Title Volume 1957 Folio 286,

was invalid so far as it purported to apply to those portions of lots 7 and 8 zoned urban under the Peel Region Scheme and that portion of lot 30 zoned industrial under the Peel Region Scheme; and

(b) the interests of the appellants in those portions of lots 7 and 8 zoned urban under the Peel Region Scheme and in that portion of lot 30 zoned industrial under the Peel Region Scheme were not extinguished pursuant to s 179(b) of the Land Administration Act 1997 (WA) following registration of the taking order under s 179.

3. Set aside orders 1, 3, 4 and 5 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 17 October 2008, save for so much of orders 1, 3 and 4 as allow the appeal in respect of the zoned portion of lot 30, and in lieu thereof order that:

(a) the appeal be allowed in respect of the zoned portions of lots 7 and 8; and

(b) the orders of the primary judge made on 23 February 2007 be set aside.