In this Alert, Special Counsel Karen Browne and Associate Olivia Williamson consider the Taking of Property on Just Terms Bill 2014 (Draft Bill) recently introduced to the Western Australian Parliament.

Key Points:

The Draft Bill seeks to address:

  • the common law right to compensation on just terms for the taking of property (including land) even where the taking instrument does not expressly provide for payment on such terms; and
  • an avenue of review to a person aggrieved by a public authority taking their land 

The Draft Bill clarifies that a public authority must not take, or otherwise interfere with, property, whether by direct or indirect means and whether intentionally or otherwise, except on “just terms”.

Although a number of Acts in Western Australia (the Taking Acts) which provide for the taking of land[1] contain express provisions that the compensation payable as a result is to be paid on “just terms”, there are also legislative instruments which may interfere with property or effectively take or interfere with land[2] which do not contain an express provision for the payment of compensation.  The Draft Bill has been introduced to remedy this situation and expressly provide for the payment of compensation on just terms in all circumstances where a public authority takes, or otherwise interferes with, property rights.  The first reading contemplates examples of interference arising from environmental protection policies, wetlands, buffer areas, water protection zones and policies, bush forever policies, land clearing provisions, environmental assessment conservation areas and the blocking of development pursuant to the Environmental Protection Act 1986.

The Draft Bill also allows a person who is aggrieved by the taking of their property by a public authority to apply to the State Administrative Tribunal (SAT) to review that taking.  The powers of the SAT on review are broad and the SAT may substitute any order it considers just in the circumstances.

It appears to have been considered that the implicit “just terms” qualification (said to be evident from the Commonwealth Constitution, the Taking Acts and reflected in the common law) was inadequate in today’s society where private property is interfered with in a wider variety of circumstances than was previously the case.

The explanatory notes to the Draft Bill indicate that clarification is considered necessary to prevent any incorrect use of legislative instruments to limit the rights of property owners.

In the event that the Draft Bill is passed, public authorities will be required to consider compensation where there has been a taking, or interference with, property including in circumstances where that taking may be indirect or unintentional.  Further, it is important to note that the provisions of the Draft Bill relate to the taking of relevant “property” in any form and is therefore not intended to be limited to just the taking of land.  “Property” is defined in the Draft Bill to mean “property of every kind, whether real or personal, tangible or intangible, corporeal or incorporeal, and any interest in property”.