ALERT DIGEST 3 of 1995

LAND (REVOCATION OF RESERVATIONS) BILL

1.1

This Bill was introduced into the Legislative Assembly on 8 March 1995 by the Honourable Geoff Coleman MP with The Honourable Bill McGrath MP.

1.2

This Bill removes several reservations over land described in the Schedules to the Bill. It also makes other minor amendments.

1.3

Clause 3 revokes the reservation of land in Maryborough. The Committee notes the comments in the Second Reading Speech:-

"Clause 3 of the Bill deals with an area of land at Maryborough reserved as a public park in 1863 under the control of the city of Maryborough by virtue of a crown grant. Maryborough golf club occupies an area of approximately 50 hectares at this location; 16.4 hectares of which is freehold land and the remainder crown land. Maryborough golf club has occupied the land for approximately 85 years and has expressed interest in acquiring the crown land portion of the golf course. The Bill provides for the revocation of the permanent reservation to facilitate the sale of the land.

The City of Maryborough supports the application by the golf club and has agreed to the surrender of the Crown grant, revocation of the public park reservation and sale of the land provided its use as a public golf course continues. The sale will be subject to a section 173 agreement under the Planning and Environment Act 1987, restricting use of the land to golf club purposes and controlling land use."

Clause 4 revokes the reservation of land in Ballarat. The Committee notes the comments in the Second Reading Speech:-

"Clause 4 deals with an area of land located to the North of Ballarat. The land is part of the Ballarat general cemetery. This land was permanently reserved as a site for a cemetery in 1879 and a Crown grant issued to the Ballarat general cemetery trust. The Roads Corporation as part of its upgrade of roads associated with the Western Freeway proposes to establish a roundabout at this location. A small area of 572.8 square metres of the cemetery reserve is required to accommodate the new intersection.

The Department of Health and Community Services and the Ballarat General Cemetery Trust have agreed to the excision of this small portion of the reserve which has not been used for burials. The Bill revokes the permanent reservation and the crown Grant in order to facilitate its use by the roads corporation."

Clause 5 revokes the reservation of land in Bendigo. The Committee notes the comments in the Second Reading Speech:-

"Clause 5 deals with an area of land located in Bendigo which was permanently reserved for market purposes in 1878, 1889 and 1890. The area has been reduced by a number of excisions and now covers approximately 8 hectares. The land is controlled by the City of Greater Bendigo by virtue of a Crown grant. The grant contains conditions that restrict the use of the land to the purpose of the reservation and prohibit the sale of the land unless authorised by a law enacted after the date of the grant. The land remains in use as stockyards.

The land has been assessed as surplus to government requirements. The Bill revokes the permanent reservations and the Crown grant to enable the site to be sold to the City of Greater Bendigo for future re-development."

1.4

Clause 6 deems the land to be unalienated land of the Crown freed and discharged from all trusts and encumbrances and revokes the appointment of any committee of management. Clause 7 gives the Registrar-General and Registrar of Titles the power to make any necessary amendments to any records.

1.5 _¯ Variation of section 85 of the Constitution Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)

Clause 8 provides that no compensation is payable by the Crown in respect of anything done or arising under the Act. Clause 9 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from awarding compensation in respect of anything done under or arising out of this Act. The Committee notes the comments in the Second Reading Speech:-

"Clause 9 of the Bill provides that it is intended to alter or vary the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from awarding compensation in respect of anything done or under or arising out of the Bill. The reason for preventing the Supreme Court from awarding compensation is as follows:

To enable the Crown to change the status of reserved land, it is necessary to ensure that the land is no longer subject to any interests and rights arising out of the former use. The existence of these interests and rights and claims for compensation based on them or on the former use of the land could delay or prevent a change in the use or status of the land that is for the benefit of the community as a whole. To facilitate future use of some of the land to which this Bill applies, it is also necessary to revoke or excise from several Crown Grants."

The Committee wrote to the Minister on 16 March 1995 seeking his advice as to the following matters:-

• Are there any private legal interests which may be affected?
• If there are no private legal interests which may be affected, is it necessary to use the clause in its current form in the first instance/
• Alternately, is it appropriate to insert a clause which allows for clear title so that the Government can deal with the land but allows for compensation if there are any interests which may be affected?

After the letter was written, the Chairman consulted with the Minister. That consultation led to the Committee writing a further letter to the Minister and letters to the Attorney-General, Crown Counsel and Chief Parliamentary Counsel with specific suggestions as to possible methods of dealing with the issues raised by Section 85 clauses in general. The Committee received a response from Mr Greg Craven, Crown Counsel dated 4 April 1995. The relevant extract is set out:-

"Thank you for your letter concerning the use of privative clauses in connection with legislation dealing with reserved land.

As I indicated to you in our telephone conversation yesterday, I believe that there is something to be said for an approach which secures the ability of Government to deal freely with land by extinguishing all interests in that land, while preserving a right to compensation in any affected person.

However, I make this comment subject to the following strict reservations:

1. A section 85 clause would still be required if the effect outlined above were to be achieved;

2. It would be imperative for the workability of such a legislative approach that the relevant legislation did in fact extinguish all interests in the land in question, and prevented the taking of interlocutory and other proceedings with a view to frustrating the Government dealing with the land;

3 . It would be highly desirable that practice in relation to such clauses was, so far as possible, uniform across Government. Nevertheless, such practice would have to recognise that there would be certain circumstances (for example, where extraordinary complexities of title were involved) where a no-compensation clause would be the only responsible course.

4. Finally, and most importantly, any such legislative practice should not be instituted without full and careful inquiry by SARC. You will recall that amendments to section 32 of the Interpretation of Legislation Act some years ago were made without proper consideration of their full impact, and most unfortunate consequences ensued. The potential for such unforseen consequences clearly would arise in connection with the present proposal."

Following informal consultation, the Committee has resolved to adopt the approach outlined by Crown Counsel. This will be communicated to all Ministers in respect of Section 85 clauses and enable the development of a Government approach.

The Committee received a letter from the Minister in respect of its original letter to him dated 16 March 1995. The relevant extract from the Minister's letter is set out:-

"I refer to your letter dated 16 March 1995.

The provisions referred to are common to all Bills of this type and are included to ensure that no actions for compensation arise over changes in the status of reserved land. I am not aware of private legal interests which are likely to be infringed by the limitation of the Supreme Court's jurisdiction contained in the Bill.

The provisions are based on a desire to achieve sound administrative practices and are not intended to unduly interfere with the rights of any private person with an interest in the land."

The Committee concedes that it is unlikely that there are any private legal interests which may be affected. Nevertheless, the Committee has some difficulty with a provision which may inadvertently remove existing private legal interests. The Committee notes that Governments of both persuasions have adopted the policy of using these type of provisions.

However the Committee is required under Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968 to examine each Section 85 provision and assess whether it is "appropriate and desirable" in all the circumstances. The Committee has a responsibility to determine whether there may be more appropriate or better ways of achieving the same ends. The Committee does not find that the provision is appropriate and desirable in all the circumstances.

PLANNING AND ENVIRONMENT (AMENDMENT) BILL

2.1

This Bill was introduced into the Legislative Assembly on 8 March 1995 by The Honourable Rob Maclellan MP with The Honourable Bill McGrath MP.

2.2

The main purpose of this Bill is to amend the Planning and Environment Act 1987 in relation to compensation and to the purchase of land required for public purposes. It provides for a total review of Part 5 of the Planning and Environment Act 1987.

2.3

Clause 4 substitutes a new Part 5 into the Planning and Environment Act 1987. Part 5 relates to land purchase and compensation. New clause 99 sets out the application of the division. It applies to land which has been reserved for a public purpose under a planning scheme. The Committee notes the comments in the Second Reading Speech that the Bill relates to land in respect of which there is no current action for acquisition by the relevant authority. New clause 100 sets out who is the relevant authority.

2.4

New clause 101 provides that the owner may request the relevant authority to purchase the land. New clause 102 specifies the form of the request. New clause 103 provides that the relevant authority must make an offer to the owner to purchase the land within 3 months of receiving a request. New clause 104 specifies the form of the offer. If the amount offered for a purchase is different from the amount specified in the request to purchase, the offer must be accompanied by a copy of the relevant certificate of valuation.

2.5

New clause 105 sets out the factors which the relevant authority must have regard to in determining the offer. New clause 106 governs requests in respect of contaminated land. The request may be referred to the Tribunal. New clause 107 provides that the owner of the land must accept the offer, withdraw the request to purchase or refer any dispute to the Tribunal, (ie: the Land Division of the Administrative Appeals Tribunal) within 3 months of receipt of the offer. New clause 108 provides that any disputes may be referred to the Tribunal. The Tribunal is obliged to make a determination of any dispute or matter in accordance with clause 105.

2.6

New clause 110 sets out the matters which the Tribunal may take into consideration in determining costs. Any order for costs which is made in favour of the owner of the land is conditional on the completed sale of the land to the relevant authority. New clause 111 provides that the relevant authority must make an offer not less than the amount of the determination by the Tribunal, within 30 days of the making of the determination. The owner must accept or refuse such an offer within 30 days. New clause 113 provides that the relevant authority after the lapsing or withdrawal of an offer of a request to purchase or a determination must lodge a statement with the Registrar of Titles. The Registrar of Titles must make the necessary recordings in the Register. Those recordings must be deleted 2 years after the lapsing of the offer. Pursuant to new clause 113A the Minister may by instrument declare land to be reserved for public purposes.

2.7

New clause 113B gives the owner of any land which is affected by the closure of a road by a planning scheme the right to claim compensation. The right to compensation arises when the relevant provision of the planning scheme comes into operation. If compensation is payable, the owner may also claim expenses. New clause 113E governs small claims. A planning authority may reject a claim for compensation if the financial loss is less than the greater of $500 or any greater amount prescribed by regulation or 0.1% of the value that the land would have had if access had not been restricted.

The Committee was concerned that the words "or any greater amount prescribed by regulation" may lead to a large sum being introduced which unduly restricts claimants in the future. The Committee noted that any such amount must be prescribed by regulation, nevertheless took the view that the words "or any greater amount" should be removed from the clause. The Committee wrote to the Minister on 17 March 1995. The Minister responded by way of letter dated 23 March 1995. The relevant extract is set out:-

"Thank you for your comments on this Bill.

New proposed section 113E of the Act (actually part of Clause 4 of the Bill) is identical to the existing Section 103 of the Act, but will be much more limited in its application. Sec. 103 currently applies to all compensation claims - financial loss, loss on sale, and loss associated with closure of a road by a planning scheme. Under the new arrangements, its effect would be confined to loss associated with closure of a road by a planning scheme, it having been the intention that this Bill would not materially change compensation arrangements in these rare cases.

Given that the section has been part of the Act and in operation for over 7 years, that no amounts have in that time been prescribed, and that new arrangements will give this section a much more restricted relevance than is presently the case, the Committee's concerns appear somewhat theoretical. This is particularly so having regard to the rigorous process needed to justify any Regulation of this type - including the Committee's own opportunity to scrutinise the Regulation.

However, the fact that the concern is theoretical also indicates that the provision currently in the Act and proposed to be reproduced by the Bill is somewhat irrelevant. Since the matter is of concern, I propose that in Clause 4, proposed Section 113E paragraph (a) be modified to delete "or any greater amount prescribed by the regulations". The section would then read:

"A planning authority may reject a claim for compensation under this Division if the financial loss is less than the greater of-

(a) $500; or

(b) 0.1% of the value that the land would have had if access to the land had not been restricted by the closure of a road by a planning scheme."

New clause 113F sets out the maximum amount of compensation payable. New clause 113G provides that the relevant parts of the Land Acquisition and Compensation Act 1986 are to apply. New clause 113H provides that persons who are not the owners of the land at the time the right to compensation arose, are not eligible to claim compensation. New clause 113I is a transitional provision. A person who has been paid compensation under the Planning and Environment Act 1987 or earlier legislation cannot require an authority to purchase land in accordance with the new provisions.

The Committee makes no further comment.

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