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Report Details


Committee Name:

Public Administration and Finance Committee (2001 - 2005)

House:

Legislative Council
Report Type:Report

Title:

Impact of State Government Actions and Processes on the Use and Enjoyment of Freehold and Leasehold Land in Western Australia
Report No:7
No of Pages:683
Physical Location:Legislative Council Committee Office

Presentation Date:

05/14/2004
Inquiry Name(s):Impact of State Government Actions and Processes on the Use and Enjoyment of Freehold and Leasehold Land in Western Australia


Click here to view the Government's response to the report
Click here to view the Government's response to the report
Click here to view the Government's response to the report
Click here to view the Government's response to the report
Click here to view the Government's response to the report
Click here to view the report


Hide details for Executive Summary and RecommendationsExecutive Summary and Recommendations

1Shortly after the establishment of the Standing Committee on Public Administration and Finance upon the commencement of the Thirty-Sixth Parliament, the Committee resolved to undertake an inquiry into the impact of State Government actions and processes on the use and enjoyment of freehold and leasehold land in Western Australia. This inquiry picked up the threads of two separate inquiries that had been conducted over the course of the Thirty-Fifth Parliament, but which had not been concluded, by the former Legislative Council Standing Committee on Public Administration and the former Standing Committee on Constitutional Affairs respectively.

2The inquiry considered the two key issues, which were central to the previous two inquiries: the erosion of private property rights by the actions of the State Government, and land clearing restrictions on agricultural properties.

3 In addition, the inquiry has expanded far beyond the scope of the two previous incomplete inquiries and has encompassed a wide range of issues connected with private land ownership in Western Australia, such as the impact of mining leases on private land, and the imposition of heritage, planning and environmental restrictions on freehold land. Some of the specific impacts examined in detail by the Committee, and included in this report, are:

compulsory acquisition of interests in land;
transmission line and water pipeline easements;
land use zonings;
subdivisions and development approvals;
land clearing restrictions in agricultural areas;
environmental policies relating to urban bushland and wetland conservation;
industrial buffer zones;
heritage lists;
protection of endangered fauna and flora;
conflicting land uses within close proximity;
mining rights granted to third parties over privately held land; and
notification and recording of restrictions on land use.

4 Since the commencement of the inquiry in 2001, the Committee has received in excess of 200 written submissions, and has conducted more than 60 hearings.

5 Whilst the Committee is precluded under its Standing Orders from making findings on the merits of individual cases, it has included case studies throughout the report to illustrate examples of issues raised in the public evidence it received.

6 State Government actions that impact upon private land use can be a very emotive issue. An individual’s house and land is seen as their inviolable sanctuary from the stresses of everyday life. When the State exercises its power over privately-held land, however reasonably and with all due care for process, the stress on an individual landholder can be intense.

7Due to the emotive nature of some matters raised within this inquiry, a number of witnesses made statements of their opinion regarding certain matters that clearly do not reflect the correct facts and law applicable to the relevant issue. The Committee has nevertheless included a number of these statements verbatim, not as the Committee’s view or evidence as to the truth of the statements but simply to illustrate the impressions and emotions of people who are caught up in extremely frustrating situations. Where appropriate, counter-balancing responses to these statements have been obtained from the relevant parties.

8 Many of the complaints received by the Committee over the course of the inquiry related to the issue of adequate compensation for either the loss of land or the loss of a landholder’s economic viability.

9 The Committee has had to consider the issue of the State’s responsibility, if any, in resolving issues associated with the unmet financial expectations of landholders seeking to rezone, clear or develop land that they have, in many cases, held for a considerable period of time.

10The assessment of compensation on a particular block of land may be seen as an arbitrary, subjective, process which can only be finally determined by a court of law based on the evidence of expert valuers. In a number of cases, it is the Committee’s view that the application of restrictive legislation reduces and in some instances precludes the payment of compensation.

11The Committee also considered non-statutory policies which impact on the use and enjoyment of freehold and leasehold land.


Recommendations

12Recommendations are grouped as they appear in the text at the page number indicated:

Page 25
    Recommendation 1: The Committee recommends that a brief, plain English, information sheet be developed by the Department of Land Information which summarises the main aspects of land law in Western Australia and explains the rights and obligations of freehold and leasehold landholders. Such a publication should be made available to the public free of charge.

Page 25
    Recommendation 2: The Committee recommends that the Department of Land Information liaise with relevant stakeholder and industry bodies to facilitate the distribution of a plain English information sheet on land law in Western Australia, as recommended in Recommendation 1, from the offices of local governments, real estate agents and settlement agents, and to incorporate the information sheet’s contents within relevant standard conveyancing forms.

Page 80
    Recommendation 3: The Committee recommends the enactment of a single Act dealing exclusively with all aspects of the compulsory acquisition of land in Western Australia.

Page 80
    Recommendation 4: The Committee recommends that where multiple agencies are involved in the compulsory acquisition of land for significant major public works projects, that a lead agency be appointed to carry out all of the acquisitions.

Page 94
    Recommendation 5: The Committee recommends that all land acquiring State Government departments, agencies and bodies appoint a field officer for each specific land acquisition project and ensure that that field officer remains the primary point of contact for the department, agency or body with each affected landholder for the duration of the project.

Page 106
    Recommendation 6: The Committee recommends that, wherever practical, State Government departments, agencies and bodies use existing easements and service corridors for their infrastructure projects.

Page 118
    Recommendation 7: The Committee recommends that Western Power Corporation notify landholders of the intended use of chemicals on electricity transmission line poles on the landholders’ property. Such notice should:

    (a) be in writing and be sent to the landholder;

    (b) specify the chemicals to be used; and

    (c) be provided well in advance of the intended treatment date.


Page 118
    Recommendation 8: The Committee recommends that Western Power Corporation arrange, at the request of any landholder and at the expense of Western Power Corporation, for the independent testing of both electricity transmission line poles treated with chemicals and any livestock that may have come into contact with such poles.

Page 124
    Recommendation 9: The Committee recommends that the details of all significant communications between Western Power Corporation field officers and landholders be confirmed in writing to the landholder, and that all other communications be confirmed in writing when requested by the landholder.

Page 135
    Recommendation 10: The Committee recommends that an appropriate method and level of compensation should be established by legislation for those landholders whose land is subject to an electricity transmission line easement. To achieve that end, the Committee recommends that one of the following two options be implemented by the State Government:

    (a) Section 45(2) of the Energy Operators (Powers) Act 1979 be repealed; and

    (b) The Land Administration Act 1997 be amended to expressly provide for compensation to a landholder for injurious affection to the landholder’s land arising from the acquisition by a State Government department, agency or body of any interest in that landholder’s land. The calculation of injurious affection should also take into account the value of the land covered by the easement.

    Or

    Both the Energy Operators (Powers) Act 1979 and the Land Administration Act 1997 be amended to provide that the compensation to be paid to a landholder for the acquisition by Western Power Corporation of an electricity transmission line easement must include a component for land value that is equivalent to one hundred per cent of the land value of the land covered by the easement.


Page 135
    Recommendation 11: The Committee recommends that the Energy Operators (Powers) Act 1979 be amended to require that Western Power Corporation shall obtain an easement for all electricity transmission lines constructed on freehold land.

Page 135
    Recommendation 12: The Committee recommends that the Attorney General, independent of the amendment to the Land Administration Act 1997 contained in Recommendation 10, refer the broad issue of compensation for injurious affection to land in Western Australia to the Law Reform Commission of Western Australia for review.

Page 163
    Recommendation 13: The Committee recommends that the State Government review the circumstances of any former landholders who settled the sale of their properties to LandCorp for the purposes of the Hope Valley-Wattleup Redevelopment Act 2000 prior to the Cabinet decision introducing a relocation payment, to ascertain whether there is any justification, on equity grounds, for an ex gratia payment.

Page 182
    Recommendation 14: The Committee recommends that confidentiality agreements/contract provisions not be entered into between land acquiring State Government departments, agencies or bodies and landholders unless at the express request of the landholder.

Page 204
    Recommendation 15: The Committee recommends that all land acquiring government departments, agencies and bodies should accompany their initial offer of compensation to a landholder in a compulsory acquisition of any interest in land with an advance payment of ninety percent of that offer. Such a payment is not to be regarded as prejudicing in any way the affected landholder’s right to continue negotiations as to the final compensation figure.

Page 217
    Recommendation 16: The Committee recommends that any future review by the State Government of the Western Australian constitutional legislation should include detailed consideration as to whether a ‘just terms’ or ‘fair’ compensation provision needs to be incorporated into the legislation with respect to the acquisition by the State Government for public purposes of privately-held property.

Page 229
    Recommendation 17: The Committee recommends that land acquiring State Government departments, agencies and bodies pay the reasonable costs of landholders obtaining independent land valuation and compensation assessment advice (up to the amount determined by the Land Valuers Licensing Board’s Scale of Fees), in relation to both voluntary and compulsory acquisitions of interests in land.

Page 231
    Recommendation 18: The Committee recommends that land acquiring State Government departments, agencies and bodies pay the reasonable costs of landholders obtaining independent legal advice on their rights and on any offer and associated documentation in relation to both voluntary and compulsory acquisitions of interests in land.

Page 231
    Recommendation 19: The Committee recommends that the State Government establish a standard scale of costs in relation to legal advice provided to landholders with respect to their rights and on any offer and associated documentation in relation to both voluntary and compulsory acquisitions of interests in land, to be observed by all land acquiring State Government departments, agencies and bodies when making payments to landholders.

Page 237
    Recommendation 20: The Committee recommends the establishment of a single, independent, land acquisition agency, with the sole purpose of acquiring interests in land at a fair price, to undertake all land acquisitions on behalf of State Government departments, agencies and bodies.

Page 238
    Recommendation 21: The Committee recommends that the State Government adopt the Committee’s model land acquisition procedure (see paragraph 5.151) for all interests in land acquired by State Government departments, agencies and bodies.

Page 239
    Recommendation 22: The Committee recommends that the State Government amend relevant legislation to provide that any voluntary acquisition of an interest in land for public purposes is on the same terms and level of compensation as if it were a compulsory acquisition under Parts 9 and 10 of the Land Administration Act 1997.

Page 255
    Recommendation 23: The Committee recommends that the Department of Industry and Resources publish an updated version of the Great Southern Development Corporation’s Code of Conduct for the Owners of Farming Properties and Persons Exploring or Mining on Private (Agricultural) Land in the Central Great Southern and Guide for the Owners of Farming Properties in Relation to Exploring and Mining on Private (Agricultural) Land in the Central Great Southern incorporating mining issues affecting all Western Australian landholders.

Page 349
    Recommendation 24: The Committee recommends that as a matter of course the Department of Environmental Protection provide all applicants for a land clearing permit under Part V, Division 2, of the Environmental Protection Act 1986 (as amended by Part 9 of the Environmental Protection Amendment Act 2003), with details of the content of all submissions received on their application from public authorities and persons who have been invited to comment.

Page 351
    Recommendation 25: The Committee recommends that the Department of Agriculture and the Department of Environmental Protection investigate the feasibility of establishing ‘limit markers’ to monitor land degradation on agricultural properties.

Page 384
    Recommendation 26: The Committee recommends that where private land is required for a public purpose which will alter the existing granted land use (as distinguished from anticipated land use) on that private land, the Crown should either compensate fairly for the downgrading of the permissible land use or acquire the property outright.

Page 384
    Recommendation 27: The Committee recommends that the State Government examine the feasibility of tax and rate assistance to landholders as an incentive for the preservation of natural vegetation.

Page 385
    Recommendation 28: The Committee recommends that the State Government review the operation of Part V, Division 2, of the Environmental Protection Act 1986 (as amended by Part 9 of the Environmental Protection Amendment Act 2003), within two years of its commencement in order to determine whether further statutory timeframes need to be introduced into the land clearing application process to ensure that applications are dealt with expeditiously.

Page 403
    Recommendation 29: The Committee recommends that the State Government undertake a review of both the administrative processes of the Western Australian Planning Commission and existing statutory timeframes within planning legislation in order to address the decline in the percentage of planning applications processed within statutory timeframes.

Page 412
    Recommendation 30: The Committee recommends that the State Government undertake an investigation into the types of planning applications for which an environmental bond may be practical.

Page 416
    Recommendation 31: The Committee recommends that the State Government review those provisions of the planning legislation relating to the resolution of inconsistencies between local and regional planning schemes so as to establish whether additional/alternative statutory time frames are required to ensure that inconsistencies are resolved in the shortest possible time.

Page 451
    Recommendation 32: The Committee recommends that all landholders affected by a proposed reservation or zoning change under a draft region scheme should be contacted in person by the Department for Planning and Infrastructure, and provided with copies of all relevant documentation free of charge.

Page 454
    Recommendation 33: The Committee recommends that the Land Administration Act 1997 and relevant planning legislation be amended to provide that an acquisition of land by the State or a local government following a claim for injurious affection under the planning legislation, is to be treated on the same terms and conditions as a compulsory acquisition of land under Parts 9 and 10 of the Land Administration Act 1997.

Page 494
    Recommendation 34: The Committee recommends that the Department of Land Information maintains a comprehensive and publicly available list of all policies, strategies and plans which impact on administrative decision-making pertaining to land use.

Page 530
    Recommendation 35: The Committee recommends that, in the short term, the Department of Land Information continue to implement its aim of establishing itself as a ‘one stop shop’ database of all interests affecting land as an urgent priority.

Page 530
    Recommendation 36: The Committee recommends that, for the long term, the Department of Land Information introduce, as soon as practical, an electronic three dimensional certificate of title which records all interests affecting the land described on the certificate of title.

Page 530
    Recommendation 37: The Committee recommends that the Government introduce, after a two year phase in period, legislative requirements that:

    (a) any policy, strategy, plan or other document impacting on administrative decision-making with respect to land use that affects one or more specific certificates of title, is to be of no effect unless it is registered with the Department of Land Information; and

    (b) all policies, strategies, plans or other documents impacting on administrative decision-making with respect to land use that are specific to a certificate of title are to be, upon registration with the Department of Land Information, cross-referenced with the relevant certificate of title.