Wittenoom Closure Act 2022

The Act introduces a handful of defined terms that anchor its operation. “Wittenoom land” means land comprised in any lot specified in Schedule 1 (s 3). Schedule 1 lists 11 lots, each described by deposited plan and certificate of title reference. The lots are the remaining freehold parcels within the former townsite - the core is lot 193 (item 1), and the others are scattered residential or small commercial blocks. “Date of taking” adopts the LA Act definition (s 151(1)) and is the point at which title vests in the Crown. “Former principal proprietor” is defined in s 12(1) as the holder of the fee simple immediately before the land is taken. This person is the only party entitled to compensation under the Act. “Notice of intention” and “registered” also take their meanings from the LA Act. The key conceptual departure from standard compulsory acquisition law is the displacement of LA Act Part 10, the usual compensation code. Instead of market value based on highest and best use, plus severance, disturbance and solatium, the Act provides a fixed statutory sum. The amounts in s 12 are not linked to any valuation, and no provision is made for improvements, betterment, or injurious affection. The Act also abridges procedural safeguards. Under s 8, a notice of intention is deemed to be registered in relation to Wittenoom land, which means the acquiring authority does not need to apply for registration; the deemed registration triggers the rest of the modified Part 9 process. Under s 9, a taking order may be made “as if it were consistent with a notice of intention registered in relation to the land”, which removes the requirement that the order align with an actual, pre-registered notice. The concept of “compensation” under this Act is thus a fixed, legislated entitlement, not a judicial determination. The Act also introduces the concept of apportionment of rates and taxes (s 13), which is carried over from LA Act principles but specifically tied to the date of taking or the date possession is given up. The distinction between occupied and unoccupied land determines the apportionment date, affecting who bears the burden of outstanding charges. Finally, the concept of “taking” under LA Act Part 9 is said to be “as if for a public work”, even though the purpose is closure rather than a public work in the traditional sense. This is a legal fiction to bring the acquisition within the existing statutory framework.

The primary persons affected are the registered proprietors of the 11 lots listed in Schedule 1. They are the only persons entitled to compensation (s 12(1)). Section 3 defines “former principal proprietor” as the holder of the fee simple immediately before taking. The Act does not distinguish between an owner-occupier and an absentee owner; the fixed sum is the same regardless of personal circumstances. Persons who hold other interests in the land - such as mortgagees, charges, lessees, licensees, or those with mining, petroleum or geothermal energy rights - are directly affected because they receive no compensation. Section 11(2) states that except as provided in Part 3, a person who has an interest in Wittenoom land taken under s 6(1) is not entitled to any compensation. The only interest compensable is the fee simple. A mortgagee, for example, would lose its security without any payment from the State. The Act does not address whether the former principal proprietor must account to other interest holders from the compensation it receives; that is left to private law. Section 6(2) clarifies that native title rights and interests and certain statutory rights under LA Act s 164(1)(a) to (c) are not taken; they survive the acquisition. This means native title holders and holders of certain mining or other reservations are not dispossessed, but they also receive no compensation (since their interests are not taken). The Minister, as acquiring authority (s 7(1)), bears the duty to pay compensation and to manage the acquisition process. The Act binds the Crown (s 5), so the State is responsible for meeting the compensation payments. Local governments and rating authorities are affected by the apportionment provisions in s 13. They may need to adjust rates and taxes accounts and will have any outstanding amounts deducted from compensation and paid to them. Occupiers of the land who are not the proprietor are affected because the Act does not provide for their relocation or disturbance costs. Section 14(2) prevents the Minister from paying compensation (other than the $50,000 removal component for item 1) until the former principal proprietor has given up possession of all land for which it is entitled to compensation. This creates an incentive for the proprietor to vacate, but also puts pressure on any tenants or other occupiers. The most significant hidden class affected are the creditors of the former principal proprietor. If the land is subject to a mortgage or charge, the fixed compensation sum may be less than the debt secured, leaving the proprietor personally liable for the shortfall. The Act provides no mechanism to protect such creditors.

The central duty is imposed on the Minister: to pay compensation to a former principal proprietor who is entitled to it (s 14(1)). The amount is fixed by s 12. The Minister must also apportion rates and taxes in accordance with s 13 and deduct or add amounts as required. The duty to pay arises upon the taking, but payment is conditional on the proprietor giving up possession of all relevant land (s 14(2)). The only exception is the $50,000 removal expense component under s 12(2)(a)(ii), which may be paid even if possession has not been given up - though the Minister is not required to do so (the section states “despite subsection (1), the Minister is not required to pay compensation … if the person has not given up possession … (other than compensation payable under section 12(2)(a)(ii))”). This creates a permissive power but not an obligation. The former principal proprietor has a right to the fixed compensation sum, but no right to argue for a higher amount or for additional compensation for any other interest. The right is limited to the fee simple; all other interests are excluded. The proprietor also has a right to an apportionment of rates and taxes. If the land is not occupied by or on behalf of the proprietor on the date of taking, the apportionment is as at that date (s 13(1)). If the land is occupied, apportionment is as at the date possession is given up or a date agreed (s 13(2)). The proprietor can require that any rates or taxes paid for a period after the apportionment date be added to the compensation (s 13(3)(b)). Conversely, the Minister is entitled to deduct any outstanding rates and taxes from the compensation (s 13(3)(a)). A critical right is that the proprietor is exempt from the duty to disclose contamination under s 68(1) of the Contaminated Sites Act 2003 in relation to an agreement to sell the fee simple to the Minister under LA Act s 168(1)(a) (s 10). This removes a potential liability for the proprietor: normally, a vendor of contaminated land must disclose the contamination status to the purchaser; failure to do so can lead to penalties and civil liability. The Act waives that obligation for a voluntary agreement to sell to the Minister, presumably to facilitate negotiated outcomes. However, the proprietor has no right to refuse the acquisition; it is compulsory. The Minister holds the right to take the land under the modified Part 9 process, including the right to issue a taking order without a pre-registered notice of intention. The Minister also has the right to withhold compensation until possession is given up, creating a powerful lever to secure vacant possession. The Act does not confer any right of review or appeal against the acquisition or the compensation amount. The usual mechanisms under the LA Act (reference to the State Administrative Tribunal, or judicial review) are heavily curtailed by the disapplication of numerous sections and the exclusion of Part 10.

The Act itself does not create criminal offences or pecuniary penalties. Enforcement is achieved through the compulsory acquisition process under the modified LA Act Part 9, supplemented by the Minister’s power to withhold compensation (s 14(2)). If a former principal proprietor refuses to give up possession after the taking order is made and the land vests in the Crown, the Minister may have recourse to the general law remedies for possession (e.g. ejectment) available to an owner of land. The LA Act provides that a person who occupies land without authority after it has been taken can be removed, but those provisions are not specifically incorporated here. The practical enforcement mechanism is economic: unless the proprietor gives up possession, they get no compensation (except possibly the $50,000 removal component, and even that is not mandatory). This creates a strong financial incentive to vacate. There is no provision for penalties for non-compliance with the acquisition process itself; the taking order, once made and registered, transfers title. Section 8 deems a notice of intention to be registered, which means the usual procedural delays associated with registration are eliminated. The Minister can proceed to a taking order under s 9 without proving consistency with an actual notice. This reduces the opportunity for an owner to challenge the procedure on the basis that the proper steps were not followed. The disapplication of LA Act sections 175, 176, 181, and 186(3)(b) removes several provisions that would otherwise allow an owner to object, seek an inquiry, or have the taking order set aside for non-compliance. Enforcement against third parties (such as occupiers who are not the proprietor) is less clear. The Act does not directly impose obligations on occupiers; the duty to give up possession falls on the former principal proprietor. However, if the proprietor cannot give up possession because of a tenant or licensee, the Minister may need to deal with that under general law (e.g. notice to quit, or the LA Act’s provisions for taking of leasehold interests, but those interests are not compensable). The exemption from contaminated sites disclosure (s 10) means that if the proprietor decides to enter an agreement to sell voluntarily under LA Act s 168(1)(a) rather than be compulsorily taken, no enforcement action under the Contaminated Sites Act 2003 will arise from non-disclosure. This removes a potential penalty risk for owners who might otherwise be tempted to hide contamination. The Minister is not subject to penalty for failing to pay compensation on time; the Act does not specify a deadline for payment. The only duty is to “pay” the amount (s 14(1)), but it is qualified by the requirement for possession to be given up. The apportionment of rates and taxes mechanism (s 13) effectively enforces payment of outstanding charges: the Minister deducts them from compensation and passes the sums to the relevant authority. This bypasses the usual recovery processes. Overall, the enforcement structure relies on compulsion through title vesting and financial incentives, rather than criminal sanctions.

The Act sits within a web of existing legislation, which it both relies upon and overrides. Its primary interaction is with the Land Administration Act 1997 (LA Act). The taking is authorised under LA Act Part 9, but with extensive modifications (s 7). Part 10 of the LA Act (compensation) is expressly excluded (s 11(1)). This is a significant displacement: an owner who might otherwise claim market value, disturbance, and severance under the LA Act is confined to the fixed sums in s 12 of this Act. The interaction with the Contaminated Sites Act 2003 is also critical. Section 10 exempts an owner from the duty under s 68(1) of that Act to disclose contamination when entering into an agreement to sell the land to the Minister under LA Act s 168(1)(a). Without this exemption, the owner would be obliged to inform the Minister that the land is classified as contaminated (as the former Wittenoom townsite is heavily contaminated with asbestos). The exemption facilitates voluntary sales but also reduces the information available to the State. The Public Works Act 1902 is referenced only indirectly: the taking is said to be “as if for a public work as defined in the Public Works Act 1902 section 2” (s 6(1)). This brings the acquisition within the scope of LA Act Part 9, which typically applies to public works, but no other provisions of the Public Works Act are engaged. The Act interacts with rating and taxing laws. Section 13 requires apportionment of rates and taxes that are a charge on the land. These charges arise under separate legislation (e.g. the Local Government Act 1995 for council rates, the Land Tax Assessment Act 2002 for land tax). The apportionment mechanism overrides the usual payment dates and obligations, ensuring the State does not inherit unpaid charges. The Act also interacts with the Transfer of Land Act 1893 and the Registration of Deeds Act 1856 for the registration of the taking order and the vesting of title. The LA Act Part 9 process eventually results in registration of the Crown’s title, and this Act ensures that process is streamlined. There is potential interaction with the Native Title Act 1993 (Cth). Section 6(2) provides that native title rights and interests are not taken under this Act. This means the acquisition does not extinguish native title. However, future acts under the Native Title Act may still be relevant if the State wishes to use the land in a way that affects native title. The relationship with the Planning and Development Act 2005 is not addressed in the Act, but the acquisition and closure of the townsite would likely require planning scheme amendments and other approvals; the Act does not provide any exemptions from those processes. The Act binds the Crown (s 5), so it applies to State instrumentalities. The interaction with the Criminal Code and other general laws is not relevant; the Act is civil in nature. Critically, the Act does not interact with the Australian Constitution or the Western Australia Constitution Act 1889 in any way that is apparent on its face, but the fixed compensation regime could theoretically be challenged on the basis that it does not provide “just terms” if the acquisition is for a purpose not within the State’s legislative competence. However, the Act is a State law and appears to be within power.

The Wittenoom Closure Act 2022 was enacted as Act No. 6 of 2022. It received Royal Assent on 29 March 2022. Part 1 (preliminary provisions) commenced on the same day. The remainder of the Act (Parts 2 and 3, and the Schedule) commenced on 30 March 2022 (s 2). The compilation table records a single amendment: the Land and Public Works Legislation Amendment Act 2023 (No. 4 of 2023), Part 4 Division 13, which amended the Act. That amendment received Royal Assent on 24 March 2023 and commenced on 10 August 2023. The amendment modified section 6(2) by inserting a reference to “section 151” - the compilation note after s 6 reads “[Section 6 amended: No. 4 of 2023 s. 151.]”. Section 151 of the amending Act made a minor textual adjustment to s 6(2) of the Wittenoom Closure Act. The pre-amendment version of s 6(2) read: “However, subsection (1) does not authorise the taking of the following interests in Wittenoom land under the LA Act Part 9 , (a) native title rights and interests; (b) rights referred to in the LA Act section 164(1)(a) to (c).” The 2023 amendment appears to have been a renumbering or cross-reference update, or possibly a clarification that the prohibition on taking those interests extends across the whole Part 9 process. The compilation does not show the pre-amendment text, but the current version includes the reference to s 151. There have been no other amendments. The Act remains in its original form (as amended once). No further bills to amend or repeal the Act have been introduced as of the date of the compilation (2023). The amendment history is sparse, indicating that the Act has been stable and not subject to substantial policy changes. Given the specific, one-off nature of the Act (closure of a specific townsite), this is not surprising. The 2023 amendment may have been part of a broader consolidation of LA Act provisions; the amending Act covered various land and public works legislation. The fact that only a minor technical amendment has been made suggests that the core structure - fixed compensation, modified procedure, exclusion of Part 10 - has not been reconsidered by Parliament since enactment.

The source text does not record any litigation under the Act. The compilation notes and defined terms list include no references to court decisions. The Act is relatively recent (2022) and applies to a small number of landowners (11 lots). It is possible that some owners have challenged the acquisition or the quantum of compensation, but the source does not disclose any case law. The deeming of a notice of intention to be registered (s 8) and the power to make a taking order without a pre-registered notice (s 9) are designed to minimise the scope for procedural challenges. The exclusion of LA Act Part 10 (s 11) removes the most common basis for compensation disputes. The fixed sums in s 12 are not open to interpretation or valuation argument. Nevertheless, potential grounds for legal challenge include: (a) constitutional challenge on the basis that the compensation is inadequate - but the Act binds the Crown and the State has plenary power to legislate for the acquisition of property; (b) judicial review of the Minister’s decision to take the land, on grounds such as improper purpose or unreasonableness - but the purpose (closure of the former townsite) is clearly stated in s 4, and the Act expressly provides for the taking; (c) challenge by a mortgagee or other interest holder whose rights are extinguished without compensation - this could raise issues under the Property Law Act 1969 or equitable principles, but the Act expressly excludes such interests; (d) native title claims: the Act does not take native title rights and interests, so any challenge would be about whether the acquisition affects native title indirectly; (e) under the Administrative Decisions (Judicial Review) Act 1977 (Cth) - but the Minister’s decision may not be a “decision under an enactment” in the relevant sense if it is a legislative rather than administrative function. The absence of reported cases may simply mean that no owner has mounted a challenge, or that any challenges have been resolved quietly. It may also be that the owners have accepted the fixed amounts, given the extremely low market value of heavily contaminated land. The Act is a bespoke, narrow piece of legislation; it is unlikely to generate a body of litigation. However, if further issues arise (e.g., dispute over the boundary of a lot in Schedule 1, or a claim that the Minister failed to pay compensation), those would be resolved in the ordinary courts. The Act does not create a specialised tribunal or appeal mechanism. Any litigation would likely be in the Supreme Court of Western Australia.

Several features of the Act are likely to trap unwary owners or advisers who assume the usual acquisition rules apply. First, the fixed compensation amounts in s 12 are not negotiable. An owner who believes their land is worth more has no avenue to argue for a higher sum. This is a complete departure from the market-value principle that underpins Part 10 of the LA Act. Second, only the fee simple holder is compensated. A person who holds a mortgage, charge, lease, licence or easement over the land gets nothing from the State. The Act does not require the Minister to pay out mortgagees, nor does it provide for the discharge of securities. The former principal proprietor receives the fixed sum; it must then deal with its creditors privately. If the fixed sum is less than the amount secured, the mortgagee could sue the proprietor for the shortfall, but cannot claim against the State. Third, s 14(2) withholds all compensation (except possibly the $50,000 removal component) until the former principal proprietor gives up possession of “all Wittenoom land in respect of which the person is entitled to compensation”. This means a proprietor who owns multiple lots under one title (e.g., item 10 which comprises two lots) cannot receive compensation for any of the lots until all are vacated. Partial possession is not enough. Fourth, the apportionment of rates and taxes under s 13 can result in a deduction from compensation if the proprietor has unpaid charges. However, the apportionment calculation is based on the date of taking (or date possession is given up), and the proprietor may not know the exact amount due until after the deduction. Fifth, s 8 deems a notice of intention to be registered. Under the usual LA Act, an owner has a period after registration to object or negotiate. Here, the notice is deemed registered from the day the Act commenced (or when the Minister decides to act), truncating any opportunity to challenge the validity of the notice. Sixth, s 9 allows a taking order to be made as if it were consistent with a deemed notice. This means the Minister does not need to have actually served a notice or obtained registration; the process can be swift and without direct notice to the owner until the order is made. Seventh, the exemption from contaminated sites disclosure (s 10) is double-edged. It removes the owner’s obligation to inform the Minister of contamination if the owner agrees to sell. However, it also means the owner cannot rely on a failure to disclose as a basis to set aside the agreement later. If the owner voluntarily sells under LA Act s 168(1)(a), they are deemed to have waived any right to complain about the State’s knowledge of contamination. Eighth, the Act does not provide for compensation for improvements, fixtures, or personal property left on the land. The fixed sum is for the fee simple only. A proprietor who has built structures or left chattels will not be separately compensated for their value. Ninth, the Act does not address what happens if a lot is owned by multiple persons (joint tenants or tenants in common). The fixed compensation sum is payable to the “former principal proprietor”, which may be more than one person. The Act does not specify how the sum is to be divided among co-owners. They will need to agree or resort to equitable accounting. Tenth, the Act does not provide for interest on compensation if payment is delayed. Under the usual LA Act, interest accrues from the date of taking. Here, silence means no statutory right to interest. Finally, s 14(2) does not state a deadline for possession; the Minister can withhold compensation indefinitely until possession is given up. This gives the Minister an extremely strong bargaining position.

For a former principal proprietor of Wittenoom land (as listed in Schedule 1), compliance with the Act is largely passive: the acquisition will happen regardless of the owner’s wishes. However, there are steps the owner should take to ensure they receive the compensation they are entitled to and avoid adverse consequences. Step 1: Confirm that the land is indeed Wittenoom land by checking Schedule 1 and the certificate of title reference. The Act applies to specific lots only. Step 2: Monitor for any notice from the Minister regarding the acquisition. Even though a notice of intention is deemed registered (s 8), the Minister must still serve documents as modified by s 7(2)(c). The modified s 177(5) requires the taking order to be served on the principal proprietor of the land, together with advice about entitlement to compensation under Part 3 of this Act. The owner should expect to receive a taking order and a notice of the compensation entitlement. Step 3: Decide whether to enter into a voluntary agreement to sell under LA Act s 168(1)(a). Section 10 exempts the owner from the contaminated sites disclosure obligation if they do so. A voluntary agreement may avoid the formal taking order process and could be quicker, but the compensation is still the fixed statutory amount - there is no scope to negotiate a higher price. Step 4: If the land is subject to a mortgage or other security, notify the secured creditor. The compensation will be paid to the fee simple holder, who is then responsible for discharging the debt. The creditor cannot claim directly from the Minister. The owner should discuss with the creditor how the compensation will be applied to the debt and whether any shortfall will be pursued. Step 5: Arrange for payment of all outstanding rates and taxes. The Minister will deduct any unpaid amounts from the compensation (s 13(3)(a)). To avoid a reduction, the owner should pay all charges up to the date of taking (or the date possession is given up, if occupied). Step 6: Prepare to give up possession of the land. Section 14(2) makes compensation (except the $50,000 removal component) conditional on the proprietor giving up possession of all land for which they are entitled to compensation. This means vacating the premises, removing any personal property, and surrendering control to the Minister. The owner should document the condition of the land and retain records of any improvements or chattels left behind, as no separate compensation is payable for those. Step 7: Complete a claim for compensation. The Act does not prescribe a form, but the Minister will likely require a formal notice providing details of the owner’s identity, the land, and bank account for payment. The owner should respond promptly to any request for information. Step 8: If the owner believes they have other interests in the land (e.g., a lease or licence as well as the fee simple), seek legal advice. Those other interests are not compensable under the Act, but they may affect the obligation to give up possession or the timing of apportionment. Step 9: Keep a copy of all correspondence with the Minister, the taking order, and any agreement to sell. The Act does not provide a right of review, but if the Minister fails to pay the correct amount, the owner may sue for breach of statutory duty. Step 10: For owners of lot 1 only, note that the $50,000 removal component is payable regardless of whether possession is given up (s 14(2) exception). The owner can apply for that sum immediately, even if other conditions are not met. However, the Minister is not obliged to pay it, so a prompt written request is advisable. The Minister’s duty to comply is to pay compensation under s 14(1) generally, but the qualification in s 14(2) only withholds the other compensation. The better view is that the $50,000 is payable upon taking, regardless of possession. For the Minister, compliance involves following the modified LA Act Part 9 process: serving the taking order on the principal proprietor (with the modified content under s 7(2)(c)), ensuring the order is registered, and paying the fixed compensation amounts upon the proprietor giving up possession. The Minister must also arrange for apportionment of rates and taxes. The Minister should also consider any native title issues, as native title rights are not taken (s 6(2)) and may require separate management.