Farmer’s ‘nightmare’ sparks inquiry

Cally Dupe, Kim McDonald and Jenne BrammerCountryman
Cranbrook farmer Peter Swift pictured in bushland near Waroona.
Camera IconCranbrook farmer Peter Swift pictured in bushland near Waroona. Credit: Nic Ellis

The plight of a Cranbrook farmer who purchased land only to find himself embroiled in a bureaucratic and legal nightmare has sparked a parliamentary inquiry into private property rights.

Peter Swift, a former diesel mechanic, fulfilled his dreams by buying his own farm 12 years ago but said he had been “living a nightmare” since.

Shortly after the purchase, the State Government deemed 200ha of his 485ha property to be an Environmentally Sensitive Area, despite it being zoned as rural farmland by the Cranbrook Shire Council and carrying no ESA when he bought the property.

The ESA means he cannot graze cattle and therefore earn an income from almost half of his property.

Although a grazing permit can be issued, these apply for just two to five years and at any time can be revoked, meaning there was too much uncertainty to buy livestock, Mr Swift said.

He was subsequently precluded from developing his rural-zoned land for farming purposes and the restriction resulted in the property falling in value. Adding salt to the wound, Mr Swift was also blamed for illegally clearing the property by the then Department of Environmental Regulation.

In 2013, he was found innocent after a three-year court battle but was $360,000 out of pocket for legal costs in defending himself.

The State Government opened submissions on July 4 after Agricultural Region MLC Rick Mazza raised a number of issues in Parliament on June 12, namely the need for registration on the Certificate of Title of encumbrances including ESAs, bushfire-prone areas and implied easements for Western Power.

The inquiry will ponder the issues raised in the Australian movie The Castle, by considering whether to compensate land-owners after declaring their land environmentally sensitive.

It will also consider whether the Government-imposed environmental restriction needs to be documented on the Certificate of Title.

“Currently, Government can apply ESA restrictions without notifying landowners, who are expected to make their own inquiries,” Mr Mazza, below, said. “Any encumbrances need to be registered on the title to warn potential buyers.”

Mr Mazza said more than 98,000 parcels of privately owned land in WA had ESA restrictions, making it an offence to clear native vegetation unless done under legislative exemption or a permit, with heavy fines of $250,000 for individuals and $500,000 for companies.

The inquiry was prompted by Mr Swift’s case, who is a client of Perth law firm HopgoodGanim.

HopgoodGanim lawyer Karen Browne supported the calls to compensate owners, claiming environmental restrictions could drastically undermine property values. In some cases, the restrictions by imposing an ESA occurred after the land had been purchased for farming purposes.

Ms Browne said under the Land Administration Act 1997 (WA), compensation was payable when land was compulsorily acquired or reserved for public purpose.

It is not paid to WA property owners when the government restricts the landowner’s property rights by declaring an ESA, and nor is it mandatory to document an ESA on the Certificate of Title.

New South Wales and Victoria provide compensation to landowners when their property is declared an ESA. “(Australian movie) The Castle is premised on just terms compensation — that if the government is going to impose any adverse effect on your land, then you must be compensated,” Ms Browne said.

“But if the government puts an ESA on your land, you are not entitled to compensation.”

The inquiry could provide some answers for Mr Swift, who said in trying to find a resolution, he had been handballed between government departments and agencies, with nobody prepared to listen or take responsibility.

He said the ordeal meant he had suffered a mental breakdown.

Written submissions to the inquiry close at 5pm on July 31, however a request for an oral submission can be made. Findings will be delivered on March 12, 2020.

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