Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where compensation
is sought under subsection (2) —
(a) the
monetary value of that compensation shall be assessed having regard to any
measures of the kind referred to in section 29(13)(g) which are agreed
and are to be taken into account; and
(b) it
need not be a condition of the payment of compensation that a Heritage
Agreement be entered into by the parties.
(2) Where the
operation of section 78, or the making of a Stop Work Order in respect of
a place whether or not entered in the Register, has as a consequence the
revocation, modification, or suspension of, or a delay in the implementation
of, a permission or authorisation granted under any relevant Act and a person
interested in the land to which the order relates has reasonably incurred
expenditure in carrying out work rendered abortive and thereby sustained loss
directly attributable to the revocation, modification, suspension or delay,
being a loss which —
(a) is
capable of being assessed by way of a liquidated amount;
(b)
arises out of a contractual or statutory obligation incurred prior to the
making of the Order;
(c)
except in so far as subsection (3) provides, does not include any element
of capital costs or capital depreciation;
(d)
takes into account any opportunity for recovery of taxes or diminution of tax
liabilities; and
(e) is
not capable of recovery or mitigation, or further recovery or mitigation,
the person may, within
the time and in the manner prescribed, make a claim for compensation in
respect of that loss, and the Minister shall thereupon cause inquiry to be
made and make recommendations to the Treasurer as to whether any, or what
amount of, compensation should be payable to that person by the Treasurer.
(3) For the purposes
of subsection (2) —
(a)
relevant Act means —
(i)
the Local Government (Miscellaneous Provisions)
Act 1960 ;
(ii)
the Planning and Development Act 2005 ;
[(iii) deleted]
(iv)
the Strata Titles Act 1985 ; or
(v)
any other Act relating to planning or the development of
land which is prescribed for the purposes of this section;
(b) any
expenditure incurred in the preparation of plans for the purposes of any work,
or upon other necessary matters preparatory to the work, shall be taken to be
included in the expenditure incurred in carrying out that work;
(c) the
assessment may take into account the cost of, and the circumstances relating
to, the acquisition of the land by the claimant;
(d) loss
or damage in respect of which compensation is payable may include a sum
payable in respect of a breach of contract caused by the necessity of
discontinuing or countermanding any works on account of the revocation,
modification or delay;
(e) no
account shall be taken of any prospective use of the land, other than the
restoration and conservation of a place of cultural heritage significance;
(f)
where permission or authorisation for the development of some other land is
made possible or is beneficially affected by a Heritage Agreement, an Order
under section 38, or otherwise by the operation of, or in consideration
of the attainment of the objects of, this Act and the claimant benefits
thereby, account shall be taken of that benefit in mitigation of the loss or
damage sustained; and
(g) in
considering whether any expenditure was or was not reasonably incurred,
where —
(i)
any land affected was included in a publicly available
list of places that for historic or other reasons should be protected; or
(ii)
the person concerned had received, or ought to have
taken, notice of the cultural heritage significance attributable to the place,
regard shall be had to
that fact and to the consequential possibility that legislation was likely to
be enacted to effect that protection or to conserve that heritage, whereby a
reasonable person intending to incur expenditure would have been likely to
proceed with caution and in consultation with relevant authorities and
interested bodies.
(4) The Minister shall
make known to the Treasurer any recommendations required by
subsection (2) within 60 days of receipt by the Minister of any
claim, and in default the claimant may require that the Treasurer determine
the matter forthwith, and the claim may be thereupon refused by the Treasurer
but if it is not so refused the Treasurer shall be liable to pay to that
person such amount as —
(a) is
agreed between the Treasurer and that person; or
(b) in
default of agreement, is determined by —
(i)
a valuer appointed by agreement between the Treasurer and
that person; or
(ii)
in default of agreement on that appointment, under and in
accordance with the Commercial Arbitration Act 1985 ,
unless the parties
agree on some other method of determination,
taking into account
the factors referred to in subsection (3) and otherwise required under
this Act.
[Section 75 amended by No. 14 of 1996
s. 4; No. 38 of 2005 s. 15.]