Western Australian Repealed Acts Western Australian Repealed ActsThis legislation has been repealed.
(1) Where land or
property is alleged to be injuriously affected by reason of any provisions
contained in a town planning scheme, no compensation shall be payable in
respect thereof if or so far as the provisions are also contained in any
public general or local Act, or in any order having the force of an Act of
Parliament, in operation in the area, or are such as would have been
enforceable without compensation, if they had been contained in local laws
lawfully made by the local government.
(2) Land or property
shall not be deemed to be injuriously affected by reason of the making of any
provisions inserted in a town planning scheme which, with a view to securing
the amenity, health, or convenience of the area included in the scheme, or any
part thereof, prescribe the space about, or limit the number of, or prescribe
the height, location, purpose, dimensions, or general character of buildings,
or any sanitary conditions in connection with buildings, or the quantity of
land that may be taken for parks or open spaces, which the local government,
having regard to the nature and situation of the land affected by the
provisions, considers reasonable for the purpose or which provide for the
conservation of any land to which the Heritage of Western Australia Act 1990
applies.
(2a) (a)
In this subsection, unless the context otherwise
requires, the expression —
"appointed day" means the day on which the Town Planning and Development Act
Amendment Act 1956 , comes into operation 1 ;
"land" includes any building or structure on land;
"non-conforming use" means a use of land which, though lawful immediately
prior to the coming into operation of a town planning scheme, is not in
conformity with any provision of that scheme which deals with a matter
specified in clause 10 of the First Schedule;
"public purpose" means a purpose which serves or is intended to serve the
interests of the public or a section of the public and includes a public work
within the meaning of the expression “public work” in the
Public Works Act 1902 .
(b)
Subject to the provisions of paragraph (c), land shall not be deemed to be
injuriously affected by reason of any provision of a town planning scheme
which comes into force on or after the appointed day, and which deals with any
of the matters specified in clause 10 of the First Schedule, unless the scheme
(i)
permits development on that land for no purpose other
than a public purpose; or
(ii)
prohibits wholly or partially the continuance of any
non-conforming use of that land or the erection, alteration or extension on
the land of any building in connection with or in furtherance of, any
non-conforming use of the land, which, but for that prohibition, would not
have been an unlawful erection, alteration or extension under the laws of the
State or the local laws of the local government within whose district the land
is situated.
(c)
Notwithstanding the provisions of paragraph (b) a provision of a town planning
scheme which prescribes any requirement to be complied with in respect of a
class or kind of building shall not be deemed to have the effect of so
prohibiting the erection, alteration or extension of a building of that class
or kind in connection with, or in furtherance of non-conforming use.
(d)
Where a town planning scheme, which comes into operation on or after the
appointed day, wholly or partially prohibits the continuance of any
non-conforming use of any land or the erection, alteration or extension of any
building in connection with or in furtherance of a non-conforming use of any
land, no compensation for injurious affection is payable in respect of any
part of the land which immediately prior to the coming into operation of the
scheme, does not comprise
(i)
the lot or lots on which the non-conforming use is in
fact being carried on; or
if the prohibition
relates to a building or buildings standing on one lot,
(ii)
the lot on which the building stands or the buildings
stand; or
if the prohibition
relates to a building or buildings standing on more than one lot,
(iii)
the land on which the building stands or the buildings
stand and such land, which is adjacent to the building or buildings, and not
being used for any other purpose authorised by the scheme, as is reasonably
required for the purpose for which the building or buildings is or are being
used.
(e)
Notwithstanding the provisions of section 11, if any question arises under
paragraph (d) as to whether at any particular date, any land does or does not
comprise the lot or lots on which a non-conforming use is being carried on, or
is or is not being used for any purpose authorised by a scheme, or is or is
not reasonably required for the purpose for which any building is being used
that question shall, on the application of the claimant or the responsible
authority be determined by arbitration under and in accordance with the
Commercial Arbitration Act 1985 , unless the parties agree on some other
method of determination.
(3) When a person is
entitled to compensation under this Act in respect to any matter or thing, and
is also entitled to compensation in respect to the same matter or thing under
any other enactment, he shall not be entitled to compensation in respect of
that matter or thing both under this Act and that other enactment, and shall
not be entitled to any greater compensation under this Act than he would be
under such other enactment.
[Section 12 amended by No. 79 of 1956 s. 4; No.
109 of 1985 s. 3(1); No. 97 of 1990 s. 14; No. 14 of 1996 s. 4.]