McCormack v Commissioner of Taxation (Cth) [1979] HCA 18

High Court of Australia Barwick C.J. Gibbs, Stephen, Jacobs and Murphy JJ. McCormack v Commissioner of Taxation (Cth) [1979] HCA 18

ORDER Appeal allowed with costs. Order of the Full Court of the Federal Court of Australia set aside and in lieu thereof order that the appeal to that Court be allowed with costs, the order of that Court be set aside and the matter remitted to the Supreme Court of Western Australia for hearing and determination in accordance with the directions of this Court, the costs of the hearing before the Supreme Court to abide the order of that Court.

Cur. adv. vult.

The following written judgments were delivered:—

1979, April 5 Barwick C.J.

The appellant purchased an allotment of land in close proximity to the city of Perth, containing about two acres, in the month of December 1963. There was erected on the land a house containing six rooms with a partly enclosed verandah. The house was in considerable disrepair.

At the time of this purchase, there were current two restrictions on the use of the land. One derived from the Metropolitan Region Town Planning Scheme (gazetted in October 1963) ("the planning scheme"), which included the land in an area put aside for possible use in the construction of a bridge across the Swan River to South Perth. Any development of the land was made subject to the approval of the authority set up by the planning scheme. The planning scheme contained compensation provisions which secured compensation to the owner of land where, because of the restriction imposed by the planning scheme, the full value of the land was not obtained on sale or if the authority set up by the planning scheme did not consent to the development of the land. In either of these events, the authority was bound to pay appropriate compensation.