Analysis Situations of the Concepts of Land Takeover and Compensation - Case Study Example

Comparison and contrast of 2 cases Name Date Course Comparison and Contrast of 2 Cases Introduction The planning and development Act 2005 (WA), came into force in 2006 and it consolidated three previous Acts. The Acts that was consolidated includes Town planning and development Act 1928, Metropolitan region scheme Act 1959 and Western Australian planning commission Act 19851. The Planning and development Act 2005 WA commonly referred to as the planning Act. The planning Act led to the establishment of Western Australia Planning Commission which is has the power of a takeover of land and compensation. The government through the minister also has the powers of a takeover under the Act. When a takeover of land is takes place, the issues of compensation usually occur. However depending on whether the land was reserved or unreserved, the party to be compensated may differ. The takeovers of the land by the government or its agencies should be for the purpose of developing it. On the other hand, the public land should be utilized for public purposes according to the planning Act. However, compensation should be carried out in accordance to the recommendations by the Western Australia Planning Commission. Compulsory takeover of the land may occur when all the channel of negotiations have been negotiated. However, the government or its agencies are not supposed to abuse their takeover powers to forcefully takeover land from its owners. Two prominent court cases of takeover and compensation of land are Planning Commission (WA) V Temwood Holdings pty Ltd and Griffiths v Minister for Lands, Planning and Environment. The paper thus compares contrasts the two cases in relation to the concepts of land takeover and compensation. Planning Commission (WA) V Temwood Holdings pty Ltd Overview In the case of Planning Commission (WA) V Temwood Holdings pty Ltd, the High Court ruled that the foreshore developer had no right to compensation for the foreshore reserve that was taken over by the Crown2. Temwood had acquired the land in 1992 and it intended to develop it for the purposes of building an estate, primary school and recreational facility. However, the Metropolitan Region Scheme had gazette a 200 meters wide, 20 hectares strip at the frontshore as a reserve for the recreational area. During the gazettement, the owner at the time was not paid any compensation. The area that was reserved was then conferred for the compulsory acquisition by the West Australia Town Planning and Development Act. Although the power was not taken up, the Metropolitan Regional Scheme forbade any development on the parcel of land. Three applications were lodged by Temwood in 1999 for subdivision of the land. The Planning Commission approved each of the application with a condition that the foreshore reserve is ceded to the crown without any compensation being paid. Temwood appeal the conditions to the Town Planning Appeal Tribunal and the appeal was dismissed. The decision was appealed at Western Australia Supreme court arguing that the condition was invalid, improper and the commission had no powers of imposing it. The appeal was dismissed again on the ground that the commission properly exercised its powers and Temwood did not deserve any right for compensation. Temwood later appeal to the Full court of the Supreme Court which accepted the appeal on the grounds that no planning purpose intended for the land and it also ruled that Temwood deserved compensation. The commission appealed the judgment to the High Court which reinstated the decision of the Commission by stating that it had the powers to do so and the person who owned the land during the reservation was the only one who deserved the compensation. Temwood therefore lost the right for compensation. Griffiths v Minister for Lands, Planning and Environment Overview In the case of Griffiths v Minister for Lands, Planning and Environment, the Northern Territory government had filed for a compulsory acquisition of the native land in Timber Creek Township. In 1997, a holder of a grazing license filed for the purchase of the land for development and commercial enterprises3. The Northern Territory government in 2000 issued three notices to acquire all the native title and interest in the particular block. The intention of the notices was to acquire lease for granting of lease. However, it brought about the argument of whether the Crown had the powers of acquiring the private rights of one citizen for the benefits of other citizens. According to section 43 of the Northern Territory Land Acquisition Act, the minister had the powers of acquiring land for any purpose as long as the pre-acquisition procedures were complied with. Section 9 of the Crown Lands Act also allowed the minister to lease crown land. The purpose of the acquisition of the land was in question as the minister intended to lease the land to a private developer. The court also referred to the Common laws which protects the basic rights of the individuals from arbitrary deprivation by the state. The court also noted that section 43 does not allow for the acquisition of land independently of purpose. Section 24MD(6A) of the Native Title Act gave the native title holders the same rights as the other ordinary title holders and they were thus eligible for compensation incase of compulsory acquisition. The court therefore ruled in favor of Griffiths and held that the actions of the minister resulted to the discrimination of the natives in favor of a private developer. The acquisition was thus hated by the High Court of Australia. Comparison and contrast Both cases are related to the compensation of the land after the acquisition by the sate or its agencies in accordance with the planning Act. In the case of Planning Commission (WA) V Temwood Holdings pty Ltd, Western Australia Planning commission has the right for compulsory acquisition under section 15 of the Planning Act. The Commission was thus exercising its duties in this case since Temwood was demanding for compensation. The planning Commission therefore reserves the right for compulsory acquisition. This is similar to the case of Griffiths v Minister for Lands, Planning and Environment. The government in Northern territory has the right to acquire land for any purpose. This is in accordance to section 43 of Land Acquisition Act (1997). The minister has a right of acquiring land private or public land for the purposes of leasing or any other purpose. The two situations are thus similar in terms of the right of the government agencies to acquire the land. However, there is a difference in the case of Planning Commission (WA) V Temwood Holdings pty Ltd, the land in question was already a reserve. On the other and, the land in question in the case of Griffiths v Minister for Lands, Planning and Environment a native land. The native land under section 24MD (6A) of the Native Title Act 1993 (Cth) (NTA) has the same rights as any other title holders4. This means that any acquisition will require compensation. However, in the case of reserve land the compensation will not be required. The Land Administration Act 1997 (LAA) provides for the procedures under which land acquisition should be carried out. According to the Act, compulsory acquisition can only take place after all the reasonable attempts for negotiations have been exhausted5. The government as well as its agencies has their own policies which are derived from the act. In the case of Griffiths v Minister for Lands, Planning and Environment, no negotiations took place but the government in the Northern Territory instead chose to file a notice for acquiring all the titles of the native land. This is an indication that the Land Administration Act 1997 was ignored by the government. In the case of Planning Commission (WA) V Temwood Holdings pty Ltd, reasonable negotiations took place. The planning Commission agreed to approve the subdivision that the company had applied for on condition that it ceded the reserve land to the crown without any compensation. This is an indication that the provision of Land Administration Act was considered by the Planning Commission. It is also important to note that Planning Commission was acting in accordance with the compulsory acquisition order that had been place before by Western Australia Town Planning and development Act 19856. The company was not supposed to be compensated but the original owner was as ruled out by the High Court. As compared to the case of Griffiths v Minister for Lands, Planning and Environment, where the court noted that the actions of the minister amounted to discrimination of the natives as they had the same rights as the other title holders. According to section 178(1), of the planning and development Act 2005, the original owner of the land has a right to compensation incase of injurious effect when the scheme or amendment initially took effect. In the case of Griffiths v Minister for Lands, Planning and Environment, the minister did not offer any form of compensation. This is despite the natives being the original owners of the land and the injury was caused directly on them. This is an indication that the minister was unjust to the natives and the action as noted by the High court amounts to the discrimination of the natives in favor of a private developer. However, in the case of Planning Commission (WA) V Temwood Holdings pty Ltd, the high court ruled that the original owner of the land was entitled to compensation and not the company. This is because the original owner is the one who had suffered damages as a result of the land being declared a reserve. In the case of Vincent Nominees Pty Ltd v WAPC and Board of Valuers the original owner was awarded compensation for the acquisition land7. It is also important to note that the Planning commission was acting in accordance with the planning and development Act 2005. The actions of the planning commission were also in good faith as it had agreed to approve the subdivision of the land by the commission. In both cases, the authorities had a right to acquire the land but the Minster in the Northern Territory did not follow the due procedures as required by the Land Acquisition Act 1997. It is due to this reason that the high court ruled against the decision of the Minister. Although the government and its agencies have the right for compulsory takeover of land, the affected parties have a right to appeal the decision of the government or the agencies. In both cases, the court played an important role in the decision making process. According to section 14 of the planning and development Act 2005, the Planning commission is supposed to maintain and put into good use the reserve land. In the case of Planning Commission (WA) V Temwood Holdings pty Ltd, the planning commission intended to use the reserve land for recreational facility for the members of the public. This is due to the nature of the location of the land. This is an indication that the commission intended to put the land into good use. In the case of Griffiths v Minister for Lands, Planning and Environment, the government in the Northern Territory intended to lease the land to a private developer. This was not good use of the land as it intended to benefit an individual. In the case of Mandurah Enterprises Pty Ltd and Graham v WAPC, the high court considered the acquisition of land valid as it was for building the railway line8. It is for this reason that the question of whether the government has a right to acquire the property of an individual or groups and allocate it to another individual for their own benefits. The powers of the government and its agencies to acquire land should not be misused for the purposes of benefiting an individual as the court noted. It is also important to note that the two cases show that the acquisition of land should ensure that it the procedure is carried out in a considerable manner. Conclusion In conclusion, it is evident that the government and its agencies have the powers to acquire land including on a compulsory basis. The owners of the land acquired also have a right to be compensated if they are eligible for the compensation process. On the other hand, it is evident that the Planning Commission plays an essential role in the management and acquisition of land in Western Australia. The Planning and Development Act 2005 is also an important legislation that guides the operations of the government and its agencies. The Land Administration Act 1997 is also important during the process of acquisition of land by the government and its agencies. The rights of the land owners should also be observed during the process. It is evident that the minister violated the rights of the natives during the compulsory acquisition of the land in the case of Griffiths v Minister for Lands, Planning and Environment. It is also evident in the case of Planning Commission (WA) V Temwood Holdings pty Ltd that the planning commission acted in accordance with the provisions of the Planning and Development Act 2005. References Griffiths v Minister for Lands Planning and Environment [2008] HCA Commission (WA) and Temwood Holdings pty Ltd [2004] HCA Vincent Nominees Pty Ltd v WAPC and Board of Valuers [2008] CIV 2665. Mandurah Enterprises Pty Ltd and Graham v WAPC [2010] HCA 2. Planning and Development Act 2005 (Cth). Land Administration Act 1997 (LAA). Western Australia Town Planning and development Act 1985 (WA). Native Title Act 1993 (Cth). Read More