When a public acquisition overlay is applied to land, the Planning and Environment Act 1987 gives the owner of the land rights to seek compensation from the acquiring authority where, upon sale of the land, the sale price is lower than expected as a consequence of the existence of the overlay. In this decision, a public acquisition overlay was introduced, however the owner died before she was able to sell her land and trigger a claim for compensation.

In a recent decision, Capela v Minister for Energy, Environment and Climate Change [2018] VSC 360, a public acquisition overlay was introduced, however the owner died before she was able to sell her land and trigger a claim for compensation.

The executors of the estate of Mrs Liptak applied to the Supreme Court for a declaration to the effect that they were eligible to make a ‘loss on sale’ claim under the Planning and Environment Act 1987 upon sale of the subject land.

A public acquisition overlay was applied to the subject land in 2010. The landowner, Mrs Liptak, died on 22 January 2016, and the plaintiffs were appointed executors of her estate on 22 March 2016 upon probate being granted.

Justice Emerton found that the executors (despite having registered interests on the title to the land) were not ‘owners’ for the purposes of the loss on sale provisions of the Act as they did not own the land at the time that the land was reserved (2010): “Mrs Liptak’s entitlement to claim compensation from the planning authority for financial loss caused by the Reservation effectively dies with her” (at 67).

An alternative argument put forward by the plaintiffs was that executors were ‘entitled to be registered’ as proprietors of the land for the purposes of the definition of ‘owners’ in section 3 of the Planning and Environment Act 1987. Justice Emerton rejected this argument and found that the executors had no entitlement to be registered as proprietors of the land until the testator was deceased.