Devir v Western Australian Planning Commission
[2000] WASC 43
•25 FEBRUARY 2000
DEVIR & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2000] WASC 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 43 | |
| Case No: | CIV:1400/1999 | 12 JANUARY 2000 | |
| Coram: | HEENAN J | 25/02/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for certiorari dismissed. Consent order set aside. | ||
| PDF Version |
| Parties: | STEPHEN DEVIR MARCIA FRAGIADAKIS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Prerogative writs Order nisi for certiorari Town planning scheme Rezoning Written notice not given to landowners Determination by Minister Application out of time Valuation of land Rezoning for public purposes Claim by owners for injurious affection Election by Planning Commission to acquire land Action by owners for determination of value of land and compensation for consequential loss Mediation conference Consent order for sale and purchase of land Expressed as without prejudice to any other claims No other existing claim Application by owners to stay order Unconscionable for owners to be bound by order |
Legislation: | Metropolitan Region Town Planning Scheme Act 1959 s 36 |
Case References: | Nil Craig v South Australia (1995) 184 CLR 163 Legione v Hateley (1983) 152 CLR 406 Perpetual Trustees WA Limited v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999 Re Smith; Ex parte Rundle (1992) 5 WAR 295 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- MARCIA FRAGIADAKIS
Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant
Catchwords:
Prerogative writs - Order nisi for certiorari - Town planning scheme - Rezoning - Written notice not given to landowners - Determination by Minister - Application out of time
Valuation of land - Rezoning for public purposes - Claim by owners for injurious affection - Election by Planning Commission to acquire land - Action by owners for determination of value of land and compensation for consequential loss - Mediation conference - Consent order for sale and purchase of land - Expressed as without prejudice to any other claims - No other existing claim - Application by owners to stay order - Unconscionable for owners to be bound by order
(Page 2)
Legislation:
Metropolitan Region Town Planning Scheme Act 1959 s 36
Result:
Application for certiorari dismissed. Consent order set aside.
Representation:
Counsel:
Plaintiffs : In person
Defendant : Mr R J Andretich
Solicitors:
Plaintiffs : In person
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Craig v South Australia (1995) 184 CLR 163
Legione v Hateley (1983) 152 CLR 406
Perpetual Trustees WA Limited v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999
Re Smith; Ex parte Rundle (1992) 5 WAR 295
(Page 3)
1 HEENAN J: Mr Stephen Devir and Ms Marcia Fragiadakis, the plaintiffs, have brought two applications which have been heard together. In the first application, instituted by way of chamber summons issued on 23 September 1999 and subsequently amended to include grounds, they seek an order nisi for a writ of certiorari directing the Minister for Planning to "remove into Court for the purpose of being quashed" his approval of an amendment to the Metropolitan Region Scheme. In the second application, filed on 8 October 1999 and also subsequently amended to include grounds, they seek "a Stay of Consent Orders" made on 17 September 1999. The factual background can be summarised as follows.
2 In March or April 1996 the plaintiffs purchased a block of land comprising four hectares (or 9.88 acres), known as Lot 1 Old Northam Road Chidlow and being the whole of the land comprised in Certificate of Title Volume 2046 Folio 616. When they purchased the land it was zoned for rural use. At or about the same time the defendant resolved to rezone the land for public purposes to enable its inclusion in the Darling Range Regional Park. The plaintiffs did not receive any written notice of the proposed rezoning but early in June one of their neighbours told them about it. On 24 June they made a submission objecting to the proposal. Their objection did not prevail, and on 14 November 1996 the rezoning became effective.
3 Meanwhile, following correspondence and discussions between the parties, on 19 September 1996 the defendant had offered to purchase the land from the plaintiffs for $80,000 plus compensation of $5,000 to cover "associated costs". On 9 October the plaintiffs refused the offer and in turn offered to sell the land for $159,600 including compensation. On 30 November, when that offer was not accepted, they wrote to the Minister of Lands. He suggested that they contact the defendant with a view to having the purchase price determined by arbitration. However, they decided to pursue the matter in this Court.
4 According to the statement of claim in this action, on 3 January 1997 the plaintiffs applied to the local authority for approval to develop the land. The application was referred to the defendant. Because the land was zoned for public purposes the defendant promptly refused the application. On 14 August 1997 the plaintiffs applied to the defendant for compensation of $170,060 for injurious affection arising out of its refusal to permit the development. On 2 September 1997 the defendant elected to purchase the land in lieu of paying compensation, pursuant to s 36(2)(b)
(Page 4)
- of the Metropolitan Region Town Planning Scheme Act 1959, and offered to pay the plaintiffs $80,000.
5 By writ issued on 16 April 1999 the plaintiffs commenced this action. They plead that, because of the preceding negotiations for compensation, the defendant was not entitled to elect to acquire the land. In the event that the defendant was so entitled, they plead also that, as the "highest value for best use" of the land is $170,060, the amount offered does not reflect "a fair compensatory value" and that in determining a fair price for the land the Court should take account of "the need to compensate the Plaintiffs adequately for the effect of the Metropolitan Region Scheme on their planned use of the Land." In their prayer for relief they seek two substantive remedies: first, compensation pursuant to s 11 of the Town Planning and Development Act 1928 and s 36, s 37(3) and s 37(4) of the Metropolitan Region Town Planning Scheme Act in the sum of $170,060; secondly, a declaration that the fair value of the landfor the purpose of acquisition is $170,060, pursuant to s 36(2)(a) of the latter Act.
6 The plaintiffs had pleaded also that the defendant was in breach of the provisions of the Trade Practices Act and the Fair Trading Act in that its employees made deceptive and misleading representations to them as to the payment of reasonable compensation, the prompt purchase of the land for a fair value and various other matters. They sought relief by way of damages for breaches by the defendant of the provisions of those Acts. On 13 August 1999 the plea of misrepresentation and the consequent prayer for relief by way of damages were struck out by Master Bredmeyer. At the same time the learned Master ordered that the parties submit to a mediation conference relating to various matters arising in the action.
7 The conference took place on 17 September 1999 before Registrar Boyle. At the end of the conference the solicitor for the defendant and each of the plaintiffs signed a handwritten memorandum of a consent order pursuant to O 43 r 16. The text of the memorandum reads as follows:
"The parties consent to the making of the following orders without prejudice to the claims of the plaintiffs in this action, save that under ss 36(2b) of the Metropolitan Region Town Planning Scheme Act for determination of purchase price, and without prejudice to the defendant's rights to defend any other claim, and without any admission by any party:
(Page 5)
- (1) the plaintiffs sell and the defendant purchase the land in C/T Vol 2046 Folio 616 for $89,000 in accordance with the General Conditions for the Sale of Land, settlement by no later than 28 days from the date of these orders."
Writ of certiorari
8 The grounds upon which the plaintiffs seek an order nisi for a writ of certiorari essentially are that
(a) the owners of the land affected by the proposed rezoning were not advised in accordance with s 33(2)(c) of the Metropolitan Region Town Planning Scheme Act,
(b) the responsible authority failed to consider adequately or at all the submissions of the plaintiffs objecting to the proposed rezoning and
(c) the report to the Minister on the submissions received contained misrepresentations and errors of fact.
9 As to ground (a), there is evidence before the Court that the defendant caused notice of the proposed rezoning, in the appropriate form, to be inserted at least three times in each of the publications specified in s 33(2)(c) of the Act. There is some confusion as to precisely when the notices appeared but it does seem that they all appeared between 3 May and 14 July 1996, each stating that any person desiring to make a submission either supporting or objecting to the proposed rezoning might do so by lodging the appropriate form on or before Friday 9 August 1996. As we have seen, the plaintiffs were informed of the proposal and made a submission well within the specified time.
10 As to ground (b), the plaintiffs provided a written submission for consideration by the defendant. The submission was interpreted - fairly, it seems - as containing a request that the defendant purchase the land then, rather than later, and led to the negotiations to which reference has been made. Even so, on 5 September 1999 the plaintiffs attended before a committee of the defendant and Mr Devir was heard in support of their objection. As it happened, much of what he said was irrelevant to the question as to whether or not the rezoning should proceed. It related primarily to the claim for compensation and amounted to a restatement of the formal submission of 24 June 1996.
11 As to the ground (c), the submissions of the plaintiffs and others were considered by the committee in its report to the defendant and there
(Page 6)
- is no evidence showing that the report contained misrepresentations or any relevant error of fact.
12 The papers before the Court do not show any arguable case for prerogative relief. In any event, almost three years have passed since the amendment to the Scheme was approved. Bearing in mind the negotiations which have taken place and the institution of this action in the meantime, the delay would debar the plaintiffs from relief.
13 Incidentally, as the relief sought is against the Minister, it would have been necessary to join him as a party had I been minded to make the order.
Consent order
14 The grounds upon which the plaintiffs rely for a stay of the consent order are expressed in their application as follows:
"1. That the Orders consented to had implied a different meaning to the Plaintiffs than the Defence and hence no meeting of the minds was reached.
2. That the Orders consented to had implied a meaning taken by the Plaintiffs which would mitigate their immediate circumstance and not prejudice the action.
3. That the Orders consented to had implied a meaning taken by the Defence, so that the orders could not but prejudice the action of the Plaintiffs.
4. That the consent of the Plaintiffs to the Orders was given under duress."
- In support of their grounds the plaintiffs rely upon the facts to which Mr Devir has deposed in his affidavit of 22 October 1999. Those facts can be summarised as follows.
15 The mediation conference began at about 9.30 am on 17 September 1999. By noon no resolution had been reached and the parties then were separated. In order to "mitigate the immediate circumstances and find resolution to the cause of the claim for aggravated damages" Mr Devir requested, as I understand it, that the defendant lodge a caveat to secure its own interest in the land and to pay out the mortgage which was costing the plaintiffs $450 per month. He put that suggestion to the defendant's
(Page 7)
- representatives but it was rejected. Then the defendant made an offer of $89,000 "toward a 'purchase amount' to mitigate the accruing interest of the claim upon them". They separated again and "the mediator moved between the parties to determine the wording of an agreement". In par 9 of his affidavit Mr Devir concluded his version of what happened at the conference in the following way:
"After returning to the conference the Plaintiffs supplied a copy of the MRTPSA which gave direction to the order only in so much that ss 36(2b) is relevant to providing authority to the Court. The Plaintiffs were assured that by use of the word 'purchase price' effect as to establishing or determining 'value' was not prejudiced nor could be. With the inclusion in the preamble to the order - '… without prejudice to the claims of the plaintiffs in this action,' and '… without any admission by any party' we felt we were able to mitigate our circumstance without prejudice to the action. Mindful of the late hour, now after 2.00 pm, and that no arrangements had been made for my juvenile son, and having assurances as to the orders inability to affect the action I consented to it being made in the terms couched as did Marcia and (the solicitor for the defendant)."
17 It seems that the plaintiffs now are prepared to accept much less than they sought in their statement of claim. In a letter dated 30 September 1999 which they wrote to "The Secretary Western Australian Planning Committee", they described their claim for compensation in these terms:
"In accordance with the laws of equity we believe compensation in the amount of $50,000 is claimable to return us to the position which we enjoyed prior to the affects caused by the Amendment, that is, with sufficient to purchase 4 hectares. We advise for the purposes of determining the value contained in the property for highest and best use that our immediate intention was to plant 100 Paulownia Trees, 30 Grevillea Robusta and establish vermiculture production with 60 kilograms of worms. The property was also to be developed to provide a residence for the owners."
(Page 8)
18 In their statement of claim the plaintiffs have sought what appear to be two substantive remedies. But, in my opinion, on the undisputed facts only one of those remedies was available when the consent order was made - namely, the remedy which was the subject of the claim referred to in the order as "that under ss 36(2b) of the Metropolitan Region Town Planning Scheme Act for determination of purchase price". The other remedy, expressed in the statement of claim as being compensation pursuant to s 11 of the Town Planning and Development Act 1928 and s 36, s 37(3) and s 37(4) of the Metropolitan Region Town Planning Scheme Act, is for injurious affection. The provisions of s 37(3) and s 37(4) of the latter Act have no application in the present circumstances and, by reason of the provisions of s 36, the claim for injurious affection ceased to exist when the defendant elected to acquire the land.
19 In its terms the consent order purports to recognise the existence of a claim other than "that under ss 36(2b)" but, as we have seen, there was no other claim in existence. The order was based on a misunderstanding which, it seems, was shared by both parties and which, I am satisfied, led to the signing of the handwritten memorandum by the plaintiffs on 17 September 1999. In those circumstances, the order cannot stand.
20 Although the plaintiffs have sought merely a stay of the order, I am satisfied that the only appropriate course is for the order to be set aside and for the parties to attend before a Case Management Registrar for further directions as to the progress of the action.
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