FIRE LAKE PASTORAL PTY LTD ATF THE SIMON JENOUR FARMING TRUST and COMMISSIONER OF MAIN ROADS
[2024] WASAT 43
•8 MAY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LAND ADMINISTRATION ACT 1997 (WA)
CITATION: FIRE LAKE PASTORAL PTY LTD ATF THE SIMON JENOUR FARMING TRUST and COMMISSIONER OF MAIN ROADS [2024] WASAT 43
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD: 16, 19 - 22 JUNE AND 4 SEPTEMBER 2023
DELIVERED : 8 MAY 2024
FILE NO/S: DR 77 of 2022
BETWEEN: FIRE LAKE PASTORAL PTY LTD ATF THE SIMON JENOUR FARMING TRUST
Applicant
AND
COMMISSIONER OF MAIN ROADS
Respondent
Catchwords:
Compulsory land acquisition - Measure of compensation - Before and after methodology - Prospects of rezoning - Planning evidence - Pointe Gourde principle - Value of large sand resource - Legitimacy of methodology whereby sand valued as standalone asset - Adjoining land - Application of Merrick Tyler case - Consequential loss and damage
Legislation:
Land Administration Act 1997 (WA), s 177, s 178, s 217, s 219, s 220(c), s 241, s 241(2), s 241(2)(c), s 241(6)(b), s 241(6)(e), s 241(7), s 241(7)(b)
Result:
The respondent is to pay the applicant the sum of $1,885,338.12 plus interest (being a sum to be calculated by reference to the date of payment), minus the sum of $1,384,900 being a sum already paid
Category: B
Representation:
Counsel:
| Applicant | : | J Skinner |
| Respondent | : | IA Repper |
Solicitors:
| Applicant | : | Thomson Geer - Perth |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Avila and Main Roads Western Australia [2023] WASAT 79
Caltex Petroleum Pty Ltd v Commissioner for Main Roads [2004] WASC 239
Cerini v Minister for Transport [2001] WASC 309
Collins v Livingstone Shire Council (1972) 127 CLR 477,
Cook and Edwards v City of Stirling (1991) 4 WAR 469
DBW Reynolds Pty Ltd ATF the DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165
Italiano v The Water Corporation [No 2] [2020] WASC 112
Konowalow and Felber v Minister for Works [1961] WAR 40, 41; 8 LGRA 75
Lenz Nominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58
Lucas and Prindiville v Minister for Works unreported, 1966 Compensation Court of Western Australia, PWA1 of 1966, 27 June 1967
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
Merrick Tyler Pty Ltd v Commissioner of Main Roads [2015] WASCA 82
Pointe Gourde Quarrying and Transport Co v Sub Intendent of Crown Lands (Trinidad) [1947] AC 565
Wake v Minister for Works [1978] WASC 68
Text(s) referred to in decision(s):
A Hyam – The Law Affecting Valuation of Land in Australia (5th ed, 2014)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is an application to determine the compensation that is owed to the applicant by the respondent for land taken by the respondent for the construction of part of the Bunbury Outer Ring Road (BORR) pursuant to a Taking Order[1] issued on 25 September 2020 (Date of Taking) under s 177 and s 178 of the Land Administration Act 1997 (WA) (LA Act).
[1] Applicant's Bundle of Documents 18 November 2022 (ABOD), pages 1 - 4.
Following the Taking Order, the respondent made a formal Offer of Compensation to the applicant pursuant to s 217 of the LA Act of $1,384,900.[2]
[2] ABOD, pages 7 - 12.
The applicant accepted that amount by way of advance payment but otherwise rejected the formal offer of compensation pursuant to s 219 of the LA Act.[3] The formal service of that rejection gave rise to an election as to the means by which the compensation payable might be determined. Pursuant to s 220(c) of the LA Act, the applicant referred the claim to the Tribunal.
[3] ABOD, pages 13 - 14.
The difference in value as determined by the valuers called on behalf of the parties is quite substantial. However, as was helpfully identified by the parties, the vast majority of the difference turns on two main issues – the prospects of rezoning of certain portions of the land and what, if any, value should be given to a large sand resource located on the northern boundary of the land; the Northern Sand Resource (NSR).
These reasons deal primarily with those two issues. Other issues are also addressed, albeit much more quickly.
For the reasons that follow, I have determined that the compensation that is owed by the respondent to the applicant is the sum of $1,885,338.12 plus interest minus the sum of $1,384,900 being the sum already paid.
The land
Prior to the taking, the land was described as Lot 100 on Plan 23258, was comprised in Certificate of Title (C/T) Vol 2169 Folio 167,[4] was located at 11 Bussell Highway, Gelorup and measured 57.5393ha (Original Land).[5]
[4] Respondent's Bundle of Documents, 16 December 2022 (RBOD), page 66.
[5] Applicant's Statement of Issues, Facts and Contentions, 18 November 2022 (ASIFC), page 2.
The land taken by the Taking Order is described as Lot 107 on Deposited Plan 419255, is comprised in C/T Vol 2989 Folio 483[6] and measures 12.374ha (Taken Land).[7]
[6] RBOD, page 64.
[7] ABOD, page 4.
What is left of the Original Land after the Taking Order removed the Taken Land is now described as Lot 108 on Deposited Plan 419255, is comprised in C/T Vol 2989 Folio 483[8] and, by dint of subtraction, measures 45.16ha (Remaining Land).
[8] RBOD, page 65.
The land is located approximately 8km south of the City of Bunbury CBD and has primary frontage on its westernmost boundary to Bussell Highway.[9]
[9] ASIFC at [7(a)]; Respondent's Amended Statement of Issues, Facts and Contentions, 7 February 2023 (RSIFC) at [14].
The land is, more or less, in the suburb of Gelorup.[10] It is agreed that the western portion of Gelorup (towards Bussell Highway) predominantly comprises low-density, rural-residential land being lifestyle type lots[11] while the eastern and southern parts of Gelorup comprise rural land used for rural purposes.[12]
[10] The RSIFC admits that the land west of an unconstructed road (Allenville Road) is in Gelorup but says land to the east of that road is in the suburb of North Boyanup - RSIFC at [15].
[11] ASIFC at [7(b)(i)]; RSIFC at [15(c)].
[12] RSIFC at [15(c)].
The statutory regime and legal principles
The starting point and end point for the calculation of compensation for land taken under the LA Act is, and must be, s 241 of that Act.[13] A copy of its relevant provisions is set out in Annexure A to these reasons.
[13] Konowalow and Felber v Minister for Works [1961] WAR 40, 41; 8 LGRA 75 (Konowalow). Hereafter, all references to section numbers are references to sections of the LA Act.
The relevant principles applicable to such a claim were comprehensively described by Beech J (as his Honour then was) in McKay.[14] Edelman J (when a judge of the Supreme Court) then sought to summarise the principles in Lenz.[15] More recently, in DBW Reynolds,[16] Kenneth Martin J helpfully repeated the principles as summarised in Lenz, together with what he had said in Italiano.[17] Withrespect, there is nothing I can add to what has already been said in those decisions, which I gratefully adopt without repeating them.
[14] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223.
[15] LenzNominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58 (Lenz).
[16] DBW Reynolds Pty Ltd ATF the DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165 (DBW Reynolds) at [70] - [71].
[17] Italiano v The Water Corporation [No 2] [2020] WASC 112.
The approach to valuation – the before and after approach
As will be seen, the applicant's claim seeks compensation both for the Taken Land, which is to be assessed pursuant to s 241(2), as well as for the reduction in value suffered by the Remaining Land due to the taking, which is to be assessed pursuant to s 241(7). The parties proceeded in this regard[18] in a way neatly described in the Respondent's Outline of Closing Submissions:
The assessment of the compensation payable under s 241(2) involves ascertaining the value of the [Taken Land] in an 'unaffected scenario' that involves 'discounting any increase or decrease in value attributable to the proposed public work'.
Similarly, the assessment of compensation payable under section 241(7) can be determined by ascertaining the value of the [Remaining Land] in the same 'unaffected scenario', and subtracting from that the actual ('affected') value of [the Taken Land].
Hence, a comparison of values of the applicant's land 'before and after' the taking (more properly 'unaffected and affected'), as at the valuation date of 2 October 2020, will determine the sum of compensation payable under sections 241(2) and (7).[19]
[18] Although, note my later comments in relation to Mr Miller's approach as to the NSR.
[19] Respondent's Outline of Closing Submissions, 15 August 2023 (Respondent's Written Closing) at [10] ‑ [12].
Such an approach is entirely orthodox,[20] and I find that it is appropriate and suitable for the purpose.
[20] See, for example, A Hyam The Law Affecting Valuation of Land in Australia (5th ed, 2014), pages 164 ‑ 170.
A description of the land, a brief overview of the case and the resulting issues
As indicated above, there are two main issues in contention, one of which concerns the prospects of rezoning of certain parts of the land in both the Before/Unaffected Scenario and After/Affected Scenario. It is therefore necessary to identify the relevant parts of the land.
Both prior to and after the taking, the western third of the land was zoned Residential with a coding of R2.5 while the eastern two thirds were, and remain, zoned Rural pursuant to both the Greater Bunbury Regional Scheme (GBRS) and the Shire of Capel's Local Planning Scheme No. 7 (LPS7).
That zoning follows the Shire of Capel Town Planning Scheme No. 3 (TPS3), which took effect in 1976 and remains in force as a 'guided development scheme'. TPS3 was amended in 1987 and the current scheme map dates from that time.[21]
[21] Witness Statement of Neil Leslie Foley, 31 March 2023 (Foley Statement), (Exhibit 16), Annexure NF3 at [4.3].
The TPS3 scheme map shows the scheme (and zone) boundary on a north-south alignment for some kilometres to the south of the land.
For almost all of its alignment, the scheme/zone boundary is represented by Jules Rd. However, just to the south of the land (a little to the north of Sleaford Road, which runs more or less east‑west from Bussell Highway) Jules Rd diverts to run in a northeast direction before returning to a northerly direction and intersecting with Centenary Road, which represents the northern boundary of the land. The result is the creation of what was referred to in the hearing as the 'Jules Rd arc'.
Both prior to and after the taking, the land located to the east of the TPS3 scheme/zoning boundary but to the west of the unmade Jules Rd arc (the 'Jules Rd arc land') was zoned Rural.
The result, for these proceedings, is that the Original Land can be considered, and was so at the hearing, as divided into three portions:
(a)Area A – the R2.5 zoned land;
(b)Area B – the Jules Rd arc land; and
(c)Area C – the rural zoned land to the east of the Jules Rd arc.[22]
[22] The plan shown is taken from the Joint Conferral Statement of Valuation Experts, 29 May 2023 (Valuers Joint Conferral Statement), page 19.
The Taken Land includes land for the construction of Jules Rd but on an alignment slightly to the east of the alignment shown in the TPS3 map. The result is that the Jules Rd arc land in the After/Affected Scenario extends further to the east then it does in the Before/Unaffected Scenario. I will call this the Jules Rd arc extension land or, as per the below, Area A2.
In addition, the taking divided the rural zoned land to the east of the Jules Rd extension by a south-eastern extension of Centenary Road (now named Lillydale Road) which, rather than continue the previous alignment of Centenary Road along the northern boundary of the land, veers south-east at or after its intersection with Jules Rd. The result is two almost triangular pieces of land one of which is located between Jules Rd and Lillydale Road and one which is to the east of Lillydale Road with the land's eastern lot boundary and the unmade Centenary Road reserve to the north as the other two sides.
Finally, it is necessary to note at this stage that an unmade road (Allenville Road) divides the eastern-most triangular piece of land in a (more or less) north-south direction. The Allenville Road reserve is of very long-standing and predates the taking. The division of land created by it is of no consequence in the valuation of the Original Land. However, in the After/Affected Scenario, the issue arises whether the land to the east of Allenville Road is 'adjoining land' to the Taken Land for the purposes of s 241(7)(b).
The result, for these proceedings, is that the Remaining Land can be usefully divided into five portions:[23]
(1)Area A1 – the remainder of Area A (the R2.5 zoned land) minus the Taken Land which is, in this case, located along its northern boundary;
(2)Area A2 – the land between the R2.5 boundary and the (new) Jules Rd extension (Jules Rd arc extension land);
(3)Area B – the triangular portion of land between the Jules Rd arc extension and the Lillydale Road extension;
(4)Area C1 – the land between the Lillydale Road extension and Allenville Road; and
(5)Area C2 – the land to the east of Allenville Road.
[23] The plan shown is taken from the Valuers Joint Conferral Statement, page 20. The Taken Land is that to the north of Area A1 and Area A2 and either side of Area B.
The experts (and parties) are agreed, more or less, that:
(a)In the Before/Unaffected Scenario, Area A would have been zoned Residential R2.5 and would have had a value of $120,000/ha to $125,000/ha; and
(b)In the After/Affected Scenario, Area A1 would have been zoned Residential R2.5 and would have had a value of $95,000/ha to $100,000/ha.[24]
[24] Valuers Joint Conferral Statement, s 7.1, pages 40 - 43.
However, there is little agreement thereafter.
The applicant's case is that:
(a) In the Before/Unaffected Scenario:
(i)Area B would have been zoned Rural with a potential for short-term rezoning to Residential R2.5 and would have had a value of $100,000/ha;[25] and
(ii)Area C would have been zoned Rural with a potential for medium-term rezoning to Special Rural and would have had a value of $45,000/ha (Mr Nichols) to $70,000/ha (Mr Miller).
(b)In the After/Affected Scenario:
(i)Area A2 would have been zoned Rural with a potential for short-term rezoning to Residential R2.5 and would have had a value of $60,000/ha (Mr Miller) to 70,000/ha (Mr Nichols); and
(ii)Areas B, C1 and C2 would have been zoned Rural with a potential for rezoning to Special Rural and have had a value of $20,000/ha to $30,000/ha.[26]
[25] Both Mr Miller and Mr Nichols filed evidence, including in the Valuers Joint Conferral Statement, that in the Before/Unaffected Scenario, Area B would be zoned R2.5. At the commencement of their viva voce evidence, they altered that evidence on the basis, they said, of the viva voce evidence of the planners that they had heard earlier in the hearing, but they failed to identify which aspect of that evidence was such as to alter this regard. Mr Miller also said that Area C had a long-term potential for zoning to Light Industrial, but that issue was not pursued and I will not address it again.
[26] Mr Miller values Areas C1 and C2 at $20,000/ha and Area B at $30,000 while Mr Nichols values all three Areas at $25,000/ha.
The respondent's case is that:
(a)In the Before/Unaffected Scenario, both Areas B and C would have been zoned Rural with no potential for rezoning and would have had a value of $25,000/ha (Mr Schifferli) to $27,500/ha (Mr Molony); and
(b)In the After/Affected Scenario:
(i)Area A2 would have been zoned Rural with a potential for rezoning to R2.5, due primarily to the hard boundary created by the Jules Rd extension and, therefore, would have a slightly higher value than in the Before/Unaffected Scenario, offset by the negative amenity effects of the Taken Land as a road and therefore would have had a value of ~ $21,500/ha (Mr Schifferli) to $27,500/ha (Mr Molony).
(ii)Areas B, C1 and C2 would have been zoned Rural with a potential for subdivision to create a separate lot for each of Area B and a combined lot of C1 and C2 as a result of the natural lot boundaries created by the construction of Jules Rd and Lillydale Road and, therefore, a slightly higher value, offset by the negative amenity effects of the Taken Land as a road and would therefore have had a value of ~ $22,000/ha.[27]
[27] Mr Schifferli values each area as $21,500 while Mr Molony values each area as $22,500. All of the information in paragraphs 29 and 30 is taken from the Table in s 7.1 of the Valuers Joint Conferral Statement.
As the above summary indicates, the difference in the valuations of various portions of land is, principally, the result of different views as to the prospects of rezoning of those parts of the land to the east of the R2.5 zoned land. The valuers called by the applicant have proceeded on the basis that land to the east of the R2.5 zoned land had various prospects of rezoning in the Before/Unaffected Scenario whereas the respondent's valuers have proceeded on the basis that that land had no such prospects. This is the first issue for determination.
The second issue for determination concerns the NSR which was located along the western half of the Original Land's northern boundary and which was included in the Taken Land. It was therefore available for use in any development scenario in the Before/Unaffected Scenario but is not available for such use in the After/Affected Scenario.
Mr Miller and Mr Nichols for the applicant have valued the NSR as a separate resource while Mr Molony and Mr Schifferli have not given the NSR any separate value. Rather, they have, in effect, incorporated any value of the NSR in their valuation of the Original Land.
The second issue requires the determination as to which, if either, approach is correct.
There are several other minor issues. The third issue is whether, in the After/Affected Scenario, Area C2 is 'adjoining land' within the meaning of s 241(7), which only allows for compensation to be paid for injurious affection where the owner of taken land is also owner of 'adjoining land' which suffers a reduction in value as a result of the taking.
The respondent says that the unmade Allenville Road creates, in effect, a barrier between the Taken Land and Area C2 such that the latter does not 'adjoin' the former.
The fourth issue is the extent to which the applicant has suffered any loss and damage pursuant to s 241(6) which damage is often known colloquially as 'consequential' loss or damage.
The final issue for determination is solatium, which can be addressed briefly at the end of these reasons. The issue of interest will also be addressed at the end and is the subject of agreement between the parties.
A brief overview of the evidence
Each party called expert evidence in the fields of acoustics, engineering, planning and valuation. In each of those fields of expertise conferral was held between the respective experts and a joint statement of evidence was prepared reflecting the outcome thereof.
As to acoustics, the applicant called Mr Tim Reynolds[28] and the respondent called Mr Terry George.[29] There was considerable agreement between the acoustic experts.[30] Its significance lies in the use to which other experts relied upon it to understand the impact of traffic noise on the land. To that end, there is little to no further reference to the acoustic evidence in these reasons save as to note that the hearing proceeded on the basis that there was a need for an earthern bund along the western boundary (Bussell Highway) to shield the land from traffic noise. That appears in the written evidence of the engineers,[31] although it doesn't appear to be to be something about which the acoustic engineers opined upon.
[28] Witness Statement of Tim Reynolds, dated 2 February 2023 (Exhibit 11).
[29] Witness Statement of Terry George, dated 27 February 2023 (Exhibit 12).
[30] Joint Statement of Experts: Tim Reynolds and Terry George (Exhibit 13).
[31] Supplementary Joint Conferral Statement of Experts: Robert Wayne Edgeloe and Enzo Biagioni-Froudist, 9 June 2023 at [4]; ts 257 - 258, 21 June 2023.
As to engineering, the applicant relied upon the evidence of Mr Robert Edgeloe and Mr Brendan Oversby while the respondent relied upon Mr Enzo Biagoni-Froudist. All three of them participated in the expert conferral but the evidence of Mr Oversby[32] was accepted by the respondent without the need for him to be called. His evidence went only to groundwater levels below the surface of the land. The other experts agreed that his evidence provides an 'indicative basis for the mapping of groundwater levels' which were agreed to 'reflect the likely annual maximum groundwater levels'.[33] They were not referred to in submissions and to the extent that they were relied upon by other experts, it is unnecessary for me to address the issue.
[32] Witness Statement for Brendan Charles Oversby, dated 19 January 2023 (Exhibit 25).
[33] Joint Conferral Statement of [Engineering] Experts, 15 March 2023 (Engineers Joint Conferral Statement) (Exhibit 27) at [2] and [3].
The evidence of Mr Edgeloe[34] and Mr Biagoni-Froudist[35] went primarily to the extent to which the NSR would have been necessary to service subdivision of the land in the Before/Unaffected Scenario and the After/Affected Scenario. It is therefore addressed in that regard below.
[34] Witness Statement for Robert Wayne Edgeloe, dated 6 February 2023 (Exhibit 23); Corrections to Statement of Evidence of Robert Wayne Edgeloe, dated 22 February 2023 (Exhibit 24).
[35] Witness Statement of Enzo Biagoni-Froudist, dated 7 March 2023 (Exhibit 26).
As to planning, the applicant called Mr Matthew Raymond while the respondent called Mr Neil Foley. The matter of primary significance for their evidence is the extent to which various parts of the Original Land (Areas B and C) and the Remaining Land (Areas A2, B, C1 and C2) may have had potential for rezoning. It is therefore addressed in that regard below.
As to valuation, the applicant relied upon the evidence of Mr Julian Nichols[36] and Mr Glenndin Miller[37] while the respondent relied upon the evidence of Mr David Molony[38] and Damien Schifferli.[39]
[36] Witness Statement of Julian Andrew Nichols, dated 12 July 2020 (Exhibit 29).
[37] Witness Statement of Glenndin Miller, dated 12 July 2023 (Exhibit 30).
[38] Witness Statement of David James Molony, dated 12 May 2023 (Exhibit 31).
[39] Witness Statement of Damien Paul Schifferli, dated 12 May 2023 (Exhibit 32).
The evidence of the valuers is critical to the determination of the two principal issues in dispute, but to a very significant extent, their evidence turns on the evidence of others. So, as to the value of the Original Land to the east of the Residential R2.5 zoning boundary, the valuation evidence largely turns on the extent to which I find that that land was capable of being rezoned as at the Date of Taking. That is the issue dealt with immediately below, in the next section of these reasons.
The valuers also gave evidence as to the value of the NSR. That evidence turns on the manner in which they considered it. Mr Nichols and Mr Miller have considered it as an asset separate from the land, all of which would be used in the development of the Original Land in the Before/Unaffected Scenario and none of which is available in the After/Affected Scenario. They have valued the sand as a separate entity on a $/m3 basis on the basis that the prospective purchaser would need to import a volume of sand equivalent to that of the NSR in the After/Affected Scenario. Mr Molony and Mr Schifferli disagree and the respondent submits that the approach taken by the valuers called by the applicant is wrong in law. That issue is addressed below, under the heading 'Value of the Northern Sand Resource'.
Finally, as to evidence given, the applicant called Mr Simon Jenour, who is both a director of the applicant and appointor of the Simon Jenour Farming Trust of which the applicant is trustee. His evidence covered a variety of topics, including explaining certain landforms seen during the view taken of the land, aspects of the history of the land and land to its south, the family's approach to the basalt resource to the south-east of the land and historical approvals for the subdivision of the R2.5 zoned portion of the land. It is only this last topic which it is necessary to address; it goes to the claim for 'consequential' loss/damage.
The prospects of rezoning
As noted above, the parties proceeded on the basis that the appropriate valuation approach to be adopted in this case is the 'before and after' approach.
Such an approach, as was also noted above, addresses both the claim for the Taken Land under s 241(2) as well as the claim for severance and injurious affection under s 241(7).
As is provided for in s 241(2)(c), a claim under that subsection must be made on the basis that any change to the value of the land taken as a result of the works for which the land was taken (the public work) must be disregarded. This is sometimes known as the Pointe Gourde principle.[40]
[40] Pointe Gourde Quarrying and Transport Co v Sub Intendent of Crown Lands (Trinidad) [1947] AC 565.
In the ordinary course, a planner engaged to consider a claim such as this will hypothetically recreate the planning history of the relevant land and its surrounding locality by imagining the planning instruments and planning decisions which, it is said, would have been promulgated and otherwise made had the public work, and its preliminary 'steps', not been included in, and affected, the relevant planning instruments. Kenneth Martin J put it this way (citations omitted) in DBW Reynolds:
Thus, the hypothetical valuation exercise following a compulsory acquisition of land for a public work concerns the assessed value of the taken land upon the premise it had not been taken and, assuming further, that the public work for which it was taken, were not in prospect.
One correlative consequence of the Pointe Gourde principle as codified by s 241 is that earlier 'steps' taken by a public authority towards the later taking of land, are also to be disregarded. Hence any public advertising of a scheme amendment so as to reserve land for a public work, or for the undertaking of preparatory physical works as preparatory steps along the process of an ultimate eventual taking, must, as regards their effect(s) upon value, also be disregarded.
Applying the Pointe Gourde principle, it is usually asked what the position would be for the land had the taking not occurred, or been a subject of the planning steps to that end. In that context a series of hypothetical planning decisions for the unaffected scenario are to be made for the purposes of a valuation.[41]
[41] DBW Reynolds at [71(o) - (q)]. Emphasis in original.
Such an approach is ordinarily necessary to be undertaken in order to demonstrate that the planning status that, it is said, would have eventuated but for the public work, was not determined in an arbitrary or ad hoc manner; that the principles of orderly and proper planning have been applied.[42]
Did the planning for the Bunbury Outer Ring Road influence the land‑use planning of the land?
[42] See, for example, DBW Reynolds at [71(r)].
The applicant's case is that the planner called on its behalf, Mr Raymond, carried out such an exercise, while (the applicant says) Mr Foley, who was called by the respondent, should have but did not carry out such an exercise.[43]
[43] Applicant's Outline of Closing Submissions, 14 August 2023 (Applicant's Written Closing) at [35] - [38].
I agree that Mr Foley did not undertake the task. Indeed, his written evidence includes a clear explanation as to why he did not undertake that task. In both his primary evidence (the Foley Statement) and his contribution to the Planners' Joint Conferral Statement he, in effect, says that he considers that the public work (whether that is the Southern Section of the BORR or its entirety) had 'no real bearing' on the prospects of rezoning of any of part of the rural zoned land. That is, in his view, decisions regarding the land use in the vicinity of the land 'have been independent' of the BORR.[44]
[44] Foley Statement, Annexure NF3 at [20.3] and [20.7]; Joint Conferral Statement of Expert Witnesses (Town Planners), 31 May 2023, (Planners' Joint Conferral Statement), s 4.0, Item 1.1.
I have some sympathy for that proposition. There are two main reasons for that.
First, I have not been taken to any document, whether planning instrument or otherwise, that suggests that the BORR has influenced the outcome of the landuse planning decisions made regarding the land.
Certainly it is the case that neither planner identified any document in that way and my own examination of the documents has been unable to identify any apparent influence, save as for the construction of Centenary Road, which is a matter to which I will return below.
The main document having influence on the use of the land and the land to its south is TPS3, which I have discussed briefly above. That document was created in 1976 and remains, in very large part, relevantly unchanged to the present day. While the BORR had been in contemplation since 1972,[45] there is no evidence from either of the planners that TPS3 mentions it at all and, indeed, Mr Foley's evidence noted above is to the effect that it does not.
[45] The 1972 Bunbury Region Plan shows an indicative BORR. I make that finding despite not sighting that document. Despite being mentioned in each of the Raymond Supplementary Statement, the Planners' Joint Conferral Statement and the Applicant's Responsive Submissions, no copy of the 1972 Bunbury Region Plan was tendered. However, in cross-examination, Mr Raymond confirmed that the 1972 plan did not differ in any material respect from the 1980 plan that was tendered (Exhibit 19) - see ts 155 and 244. The 1980 Bunbury Region Plan shows Centenary Road running from an area to the west of Bussell Highway, east to the Southwest Highway, slightly north of what is clearly the BORR.
My own examination of its text and map is to no different effect.
The only matter worth noting is cl 2.2(b) which states, as a matter of policy, that roads shown on the map 'are to be regarded as essential to both traffic circulation and the subdivision pattern for the Scheme Area and should be provided generally in the location and to the widths shown on the Scheme Map'. As noted previously, Centenary Road is shown on the Scheme Map.
TPS3 does, therefore, proceed on the basis that Centenary Road will be constructed but, for the purposes of that scheme, it appears irrelevant whether Centenary Road is a standalone connector road between Bussell Highway and Southwest Highway or part of the BORR.
The second reason has some considerable overlap with the first. It is that Mr Raymond's evidence (by which he purports - in my view incorrectly - to have carried out the hypothetical recreation of the planning regime without the influence of the BORR), relied entirely on documents which identify the BORR.
This requires a little explanation.
It was Mr Raymond's evidence that he had undertaken an analysis of 'the subdivision and development potential in the "hypothetical unaffected before scenario" disregarding the Public Work in its entirety.'[46]
[46] Supplementary Witness Statement of Matthew Phillip Raymond, 19 May 2023 (Supplementary Raymond Statement) at [1.1]. See, also at [1.6] - [1.8].
In my view, and I find that, Mr Raymond did not undertake that task. Indeed, in cross-examination he all but conceded that that was the case when he accepted that each and every planning instrument that he relied upon for the proposition that, but for the BORR, the Original Land to the east of the R2.5 zoned land would have (at least)[47] had the benefit of a potential for up-zoning, was a planning instrument in the 'real world'.[48]
[47] I say 'at least' because in [10.10] - [10.19] of his primary evidence, the Witness Statement of Matthew Phillip Raymond, 14 April 2023 (Raymond Statement), which deal with the Jules Rd arc land, he both says that that land 'would most likely have been zoned Residential R2.5' (at [10.10]) and that the option of rezoning 'was available to and could have been explored' as at the Date of Taking at [10.12].
[48] ts 164, 20 June 2023.
Such a concession was, in my view, properly made. As noted above, the earliest planning instrument relied upon by Mr Raymond is the 1972 Regional Plan, which shows the BORR on its map. Each of what follows (as in the planning instruments produced after that point) either include the BORR on the relevant map or refer to it in the text or both. The exception appears to be TPS3 which, as noted above, shows Centenary Road but not the BORR.
It is true that in those planning documents dated from 1972 to about the mid-1990's, the alignment and projected timing of the BORR is a little different to that in later documents.[49] But on no account, in my view, can it be said that Mr Raymond has carried out the task which is described by Kenneth Martin J in DBW Reynolds.
[49] The issue is addressed by the Applicant's Responsive Submissions at [8]. See also, Applicant's Written Closing at [36].
Mr Repper was critical of Mr Raymond in this regard. Regardless, in my view, Mr Raymond's evidence provides considerable support for the view that the BORR had little, if any, material influence on the landuse planning decisions concerning the Original Land.
The reality is that two very experienced planners gave remarkably similar evidence about the likely planning status of the Original Land in the Before/Unaffected Scenario, one of whom supposedly disregarded any influence of the BORR and one who did not. They both said that the western third of the Original Land would have been zoned Residential R2.5 and they both said that the remaining portion would have been zoned Rural. In doing so, both of them relied upon the same planning documents. In my view, that tends to strongly indicate that the influence of the BORR on the landuse decisions affecting the Original Land was weak to non-existent.
Would Centenary Road have been constructed in any event?
The evidence of the planning experts as to whether the non-Residential zoned land would, in the Before/Unaffected Scenario, have had a potential for upzoning but for the BORR turned in large part on the question whether or not Centenary Road would have been constructed but for the BORR.
Mr Raymond's evidence was that Centenary Road was a gazetted road well before the first planning instruments appeared in 1972. In particular, he relied upon a decision taken in 1968 by the Shire of Capel to widen the Centenary Road reserve as evidence that, but for the public work, Centenary Road would have been constructed.[50]
[50] Supplementary Raymond Statement at [1.3].
That, in turn, was said by the applicant to support its case that, but for the public work, land to the east of the R2.5 zoning boundary would have been, at least, in prospect for upzoning at the Date of Taking.
I have some sympathy for the proposition that, irrespective of the public work, Centenary Road would have been constructed by the Date of Taking. That is for the following reasons.
Firstly, regardless of whether the BORR is or is not constructed, it is plainly and obviously necessary that there should be an east‑west road connecting Bussell Highway in the west to the Southwest Highway in the east, and located in (more or less) the approximate location of Centenary Road, being at a location to the south, but not too far to the south, of the Bunbury CBD.
Secondly, the decision by the Shire in 1968 to widen the road reserve appears to support the view that at that stage there was an intention to construct it. At least at that stage the road appears to represent a reasonably significant road; the Gazettal entry states that 11 acres, 5 roods and 55 perches (nearly 5.1ha) of land was taken.[51] Equally, the Scheme Map to TPS3 shows an arrow pointing to that portion of Centenary Road with the Scheme Area annotated by the text stating '5 metre widening requirement'.[52] Further, as noted above, by cl 2.2(b) of the TPS3 scheme text, Centenary Road is described as 'essential' to traffic circulation and the subdivision pattern for the Scheme.
[51] Supplementary Raymond Statement at [1.3].
[52] See Foley Statement at [4.3].
Thirdly, Mr Jenour's evidence was that for as long as he could remember, his father, all the real estate agents and everybody else in the area had spoken in terms to the effect that they expected Centenary Road to be constructed but for the BORR.[53] I accept that Mr Jenour is far from a disinterested party, but he struck me as honest and appeared to give his evidence in an open and straightforward manner.
[53] ts 90, 19 June 2023.
The complication in this regard is the changing designation of Centenary Road as shown on the various planning maps:
(a)The initial 1980 draft of the Bunbury Region Plan shows Centenary Road as a Sub-Regional Road - CAH (i.e. Controlled Access Highway), but the final 1987 plan does not.[54]
(b)The 1992 Usher, Gelorup & Dalellyup Structure Plan shows Centenary Road as a Primary Distributor (CAH) road,[55] while the 1995 Greater Bunbury Structure Plan identifies Centenary Road as a District Distributor road distinctly different to, and lower in the hierarchy to the BORR which was noted as a Primary Distributor.[56]
(c)The 2000 draft Greater Bunbury Region Scheme (GBRS) does not appear to give Centenary Road any status at all, save that is remains shown on the maps[57] and that is reflected in the final GRBS in 2007.[58]
[54] See Foley Statement, pages 15 - 21.
[55] Foley Statement, page 27.
[56] Foley Statement, pages 29 - 30.
[57] Foley Statement, pages 33 - 34.
[58] Foley Statement, page 36.
One possible reason for the later, apparent 'downgrading' of Centenary Road is its reservation as part of a broader Regional Open Space.[59]
[59] See Foley Statement at [10.8].
The ultimate design of the works for which the Taken Land was taken, as described above, does not include any of the Centenary Road reserve at all. Rather, as described above, the (new) Lillydale Road traverses the northern boundary of the land to the south of the Centenary Road reserve as far as Jules Rd after which it veers south‑east and cuts across the Remaining Land and then continues on that trajectory until it meets the BORR some considerable distance from the land.[60]
[60] RBOD, page 13 (Document 4, Drawing BORR-02-SK-RD-0371, dated 23 June 2020).
That design appears very late in the piece. Mr Skinner suggests it was in 2019[61] although he does not provide a reference. The 2007 GBRS map referred to above appears to be the most recent planning instrument before me and, as noted above, does not include any part of Centenary Road (as it was) or Lillydale Road (as it is) as a major road.[62]
[61] Applicant's Responsive Submissions at [8(d)].
[62] See Foley Statement at [10.5].
In my view, although complicated (and in some senses inconsistent) that history provides a fourth reason in support of the view that Centenary Road would have been constructed in any event. In my view the planning maps evidence an uncertainty as to whether Centenary Road would form part of the BORR but are clear that there would be some form of east-west connector road more or less in the vicinity of the northern boundary of the land.
That changing status also makes clear to me that Centenary Road was not part of the 'public work'.
Some time and effort was spent in closing submissions seeking to precisely identify the 'public work'.[63]
[63] For example, Applicant's Responsive Submissions at [1] - [3].
In my view the changing status of Centenary Road, and its ultimate omission entirely from the works actually carried out, make it clear to me (and I find) that it cannot be said to form part of the 'public work' for which the Taken Land was taken.
But the impact of that finding, of itself, is somewhat limited because, as I have already found, (firstly) the BORR, in its various guises in different planning instruments has had no material impact on the land use decisions concerning the Original Land or the land to its south in TPS3 and (secondly) but for the BORR, Centenary Road would likely have been constructed as at the Date of Taking.
Those findings must now be considered for their effect, if any, on the value of the Original Land having regard to their impact on the prospects for the rezoning of Area B and Area C.
The Prospects of rezoning Area B
The applicant's case, based on Mr Raymond's evidence, is that as at the Date of Taking all of the rural zoned portions of the Original Land were capable of being re-zoned to more valuable zonings.
Mr Raymond's evidence is that such a finding should be made based on the various 'real-world' planning instruments.
At paras 10.9 - 10.11 of his primary report, he says:
10.9In my opinion it is logical and likely that Jules Rd would form the ‘hard planning edge’ to the Residential or urban zoned land in Gelorup. This association appears to be adopted in the Bunbury-Wellington Region Plan, the Usher, Gelorup and Dalyellup District Structure Plan, the Greater Bunbury Structure Plan, the GBRS and current LPS7.
10.10Consequently, an additional portion of the Land and portion of former Lot 101, between Bussell Highway and the continuation of Jules Rd, beyond the current Urban/Residential R2.5 zoned portion of the Land, would most likely have been zoned Residential R2.5.
10.11The alignment of Jules Rd has effectively guided residential land use zoning over the western extent of the Land. This relationship is evidenced in the TPS 2 scheme map, the Bunbury- Wellington-Region Plan and Greater Bunbury Structure Plan and the GBRS. In 1987, under the TPS 3 scheme map, the alignment of Jules Rd was shown deviating to the north-east and forming the Jules Rd Arc Extension (see paragraph 7.8 above).
He also points to various locational attributes of the land.[64]
[64] Raymond Statement at [10.13].
The respondent's case is, in effect, that Mr Raymond's argument is contrary to the 'real world' planning instruments upon which he (Mr Raymond) relies in the 'Before/Unaffected Scenario'.
There is much to commend the respondent's position as to Area C. But for Area B the situation is more nuanced.
As Mr Raymond notes at para 10.9 of his Report, some historic strategic planning instruments indicated Jules Rd as the 'hard planning edge' to the urban/residential zoned land.
There are, however, difficulties with that proposition.
For example, the Greater Bunbury Structure Plan in the Bunbury‑Wellington Region Plan[65] shows Jules Rd apparently as a straight line; that is, without the arc which has been in place since at least 1976. I also disagree that 'the GBRS and current LPS7' support Mr Raymond's view. But the Usher, Gelorup and Dallyellup District Structure Plan 1992 clearly shows the Jules Rd arc as the eastern edge of urban development.
[65] Raymond Statement at [8.28].
However, in my view, the strongest support for Mr Raymond's contention as to the Before/Unaffected Scenario comes from the planners' agreed position as to the After/Affected Scenario.
Both planning experts expressed the view that in the After/Affected Scenario the Rural zoned land to the west of Jules Rd (Area A2) would have been open to rezoning (under both the GBRS and TPS7) to Residential R2.5. They did so on the basis that the rezoning:
… could be supported by a planning argument that the physical boundary provided by the new portion of Jules Rd would enable a 'rounding off' of the urban area and that it would replace some of the existing 'Urban/Residential' R2.5 zoned land 'lost' to subdivision due to the taking of land.[66]
[66] Planners' Joint Conferral Statement, s 3 at [3.3].
The passage above, taken from the Joint Statement, cross‑references Mr Foley's Statement. In the relevant paragraph, Mr Foley states that, in his 'experience, planners and planning authorities prefer 'hard' physical boundaries between zones'.[67] He also notes that the rezoning 'would not strictly follow the strategic planning policy framework that applied'.[68]
[67] Foley Statement at [21.4].
[68] Foley Statement at [21.4].
That is, in effect, the same as Mr Raymond's position as stated in paragraph 10.9 of his Statement; that the construction of Jules Rd would create a 'hard barrier' or 'hard planning edge' up to which the Residential R2.5 could abut, and which is otherwise absent if the TPS3 plan is strictly adhered to.
In my view, and I find, that argument should be accepted.
The reality is that the endorsed plan to TPS3 leaves an awkward gap between the zone boundary and the Jules Rd arc which, as Mr Foley's evidence makes clear, is inconsistent with good planning as there is no 'hard' boundary between the R2.5 land and the rural land.
In cross-examination, Mr Foley agreed that, had Jules Rd been constructed in the Before/Unaffected Scenario, it would have formed a logical boundary between the residential and rural zones.[69]
[69] ts 192, 10 June 2023. In doing so, he appears to have implicitly accepted that Jules Rd if constructed would constitute a higher-level road than a local road, given the provisions of Development Control at [3.4]; see ts 146, 20 June 2023.
He also agreed that the construction of Jules Rd would, absent a rezoning, create a portion of rural land too small to farm.[70] Plainly, there would also be a barrier between it and any rural zoned land to the east.
[70] ts 192, 20 June 2023.
Those concessions appear to me to be properly made and are consistent with the plain and obvious situation.
At this point it is useful to return to the issue of Centenary Road. As I have already found, I think it likely that, but for the BORR, Centenary Road would have been constructed as at the Date of Taking.
But even if I am wrong, its construction must have, at least, been in contemplation.
In my view, and I find, the completion of the development anticipated and facilitated by TPS3 requires the completion of Jules Rd and its connection in the north to a road running east-west. That is, Jules Rd needs a northern terminus. That might be a road which is, in effect, no more than an internal subdivisional road such as the three east-west roads to the south of the land - Sleaford Drive, Maynard Parade, Loretta Avenue and Frances Road, all of which end at Jules Rd. Or it might be a road closer in status to that of Hasties Road, further to the south, which extends beyond Jules Rd. Or it might be a road of a higher status again, as was shown in the early planning documents noted above at paragraph 77(a) and (b).
Given its location as the northern Scheme boundary, and given the terms of TPS3 which, as noted above, provide for a five-metre widening, it seems much more likely to me that it would constitute, at least, a higher order road comparable to Hasties Road.
If, as at the Taking Date, Centenary Road was constructed (or was, at least, in contemplation for such), it seems to me illogical to suggest that Jules Rd would not have been constructed so as to intersect with it. Had Jules Rd been constructed, it would have made absolutely no sense for the rural zoned land to the west of Jules Rd to remain so zoned.
Indeed, Mr Foley appeared to agree with that proposition although he also appeared to suggest that, instead of following the current TPS3 alignment, in the Before/Unaffected Scenario, Jules Rd would have been built along the zoning boundary.[71]
[71] ts 196 - 198, 20 June 2023.
In giving that evidence he appeared to rely on the absence of any upzoning of the rural zoned land between the TPS3 zoning boundary and Jules Rd.
In my view, that argument was fairly described by Mr Skinner as circular in that Mr Foley appeared to say that Jules Rd would not be constructed with an arc unless and until the rural zoned land was upzoned to Residential R2.5 but such zoning would not occur unless and until Jules Rd was constructed.[72]
[72] ts 191 - 195, 20 June 2023, esp 195.
The other factor which, in my view, supports the applicant's argument that the land between the current zoning boundary and Jules Rd would, as at the Date of Taking in the Before/Unaffected Scenario, have been realistically viewed as open to rezoning, is the 2016 subdivisional approval granted to the applicant for the subdivision of the Residential R2.5 zoned land.[73] Amongst other things, it approves a road network which clearly anticipates residential development of the (rural zoned) land to the east of the zoning boundary.
[73] Applicant's Bundle of Documents, pages 15 - 22.
That subdivision was, plainly, approved at a time when the BORR was contemplated in some form although I am uncertain as to what, if any, design was in contemplation at that time as the documents before me do not appear to allow anything more than speculation.
But the design merely gives effect to what is plain, that the Jules Rd arc represents the logical eastern boundary of residential development.
For these reasons, I find that as at the Date of Taking in the Before/Unaffected Scenario, a purchaser would have been confident that, even if Jules Rd had not been constructed, a proposal for the rezoning of Area B would have been likely to have been approved. If Jules Rd had not been constructed, by the time of any rezoning application, such an application would have undoubtably proposed the construction of Jules Rd so as to create the necessary 'hard' boundary to the rezoned land.
I acknowledge that that finding is not supported by any current planning instrument, which I have otherwise found to reflect the Before/Unaffected Scenario. I also acknowledge that the applicant has had some time to pursue a rezoning of Area B but does not appear to have done so, which might be said to militate against my conclusion.
Nonetheless, such a conclusion is, in my view, entirely consistent with orderly and proper planning in that the alternative is a situation where there is no physical boundary or marker at all between Rural zoned land and Residential R2.5 zoned land and where the rural land is too small for rural use and is cut off from other rural land by Jules Rd.
The size of Area B
The finding immediately above does not address the particular alignment of Jules Rd and, therefore the size of Area B.
Mr Raymond's evidence is that the Jules Rd arc was created out of necessity, due to the presence of a landform over which Jules Rd could not easily travel and around which the arc was drawn so as to avoid it.
That view appears to be borne out by a review of the relevant maps which show contour lines indicating an escarpment which runs from, more or less, behind the caretaker's residence[74] to a landform which was referred to during the hearing as the 'finger'.[75] The TPS3 alignment avoids the escarpment by traveling to the immediate east of the 'finger'.
[74] Visible in the plan at para 22 above just to the west of the line separating Area A from Area B.
[75] ts 184, 20 June 2023.
Mr Raymond's evidence included the creation of a hypothetical subdivision of all the land to the west of Jules Rd that, he said, could have been undertaken in the Before/Unaffected Scenario, which includes an alignment of Jules Rd which is further to the east of that shown in the map to TPS3.[76]
[76] Annexure 3 to the Raymond Statement.
Indeed, Mr Raymond's proposed alignment is further again to the east of the alignment of that part of the Taken Land taken for Jules Rd, which is itself to the east of the TPS3 alignment.
At the hearing Mr Raymond provided a map which showed each of the three alignments.[77] He explained that there were three reasons for his proposed easternmost alignment:
(a)to straighten Jules Rd (i.e. remove some of the curvature of the 'arc'), which he said improves safety by creating a 90o interchange with Centenary Road;
(b)to create more regular lots along the boundary of Jules Rd; and
(c)to put some distance between Jules Rd and the 'finger', and thereby obtain a usable lot, which would not otherwise be possible.[78]
[77] Exhibit 21 - in fact two maps were tendered, both of which showed contour lines under the proposed subdivisional lot boundaries but only one of which was superimposed on to an aerial photograph.
[78] ts 183 - 184, 20 June 2023.
Mr Repper's cross-examination of Mr Raymond in this regard suggested that the proposed re-alignment was little more than a cynical landgrab.[79] In that regard I note that an annotation on Mr Raymond's three-alignment plan (Ex 21) shows a 'land area difference of 2.4021ha', which I assume refers to the difference between the alignment of Jules Rd in Mr Raymond's subdivision plan compared to its alignment in TPS3.
[79] ts 186 - 187, 20 June 2023.
Mr Raymond denied Mr Repper's suggestion but, in my view, it has some considerable merit.
In my view, and I find, there is no apparent difference between the degree at which Jules Rd intersects with Centenary Road in any of the three alternative alignments. That is, all three appear to me to show the two roads intersecting at 90o. Put another way, I do not accept that Mr Raymond's revised alignment would create a different, let alone safer (for which there was no other evidence) angle of intersection than that shown in TPS3.
The other two reasons given by Mr Raymond also appear to me to be without merit. The shifting of Jules Rd to Mr Reynold's preferred alignment achieves another four lots (of 0.4ha, 0.43ha, 0.48ha and 0.5ha respectively) as well as what appears to be a doubling in size of another lot (located in the 'elbow' of the intersection) to 1.03ha in size.
None of those new lots, nor the nearly doubling in size of the 'elbow' lot, would be possible were Jules Rd to retain its original/TPS3 alignment, but that does not mean that the original alignment would necessarily have produced difficult or unusable shapes or sizes.
Rather, in my view (and I find) that if the original TPS3 alignment were retained:
(a)the 'elbow' lot could be combined with its neighbour to the east to create two lots of ~ 0.75ha, which are comparable in size to the seven lots to the west of those two lots, all of which are 0.8ha in size; and
(b)the lot containing the 'finger', and the lot immediately to its south, would both be just a little larger but, in either case, the 'finger' lot would be unusable.
Accordingly, I see no reason why I should, in assessing the compensation payable to the applicant, proceed on the basis of Mr Raymond's proposed alignment. That is, I find that there is no reason why Jules Rd would not have been constructed along its TPS3 alignment and, if at the Date of Taking it was not constructed, a hypothetical purchaser would have assumed that it would be constructed along that alignment.
The Rural zoned land to the east of Jules Rd has no prospects for rezoning
The applicant's case in the Before/Unaffected Scenario was that the land to the east of Jules Rd would also have been in prospect for rezoning.
Mr Raymond's evidence was that a prospective purchaser would have contemplated that this land could be rezoned 'from "Rural" to "Special Rural" zone to achieve a transitional area where rural residential lots provide for an average lot size of two hectares'.[80]
[80] Raymond Statement at [10.8(b)] and [10.20] - [10.30]. I note that Mr Miller suggested that Area C also had a medium‑term potential for rezoning to Light Industrial - see, for example, page 19 of the Planners' Joint Conferral Statement. Mention of this alternative was not raised either at the hearing or in written submissions and I have not considered it further, not least because Mr Raymond made no mention of it.
I disagree. That contention lacks support from relevant planning instruments. More relevantly, I find that there would have been no need for a 'transitional area' between the residential zone to the west and the rural zoned land to the east. That is because, consistent with my previous finding, Jules Rd would have provided a 'hard edge' to create the eastern boundary to the Residential R2.5 zone and the western edge of the Rural zone, just as it does to the balance of the land in TPS3 located to the south of the land.
As I have found, the land to the west of Jules Rd would have had, at least, good prospects for rezoning despite very little support for such a proposal in the relevant planning instruments because the implementation of TPS3 would create, in effect, an orphan rural lot between the R2.5 zoned land and Jules Rd, with no obvious physical barrier between them.
In contrast, the case for the proposed rezoning of land to the east of Jules Rd cannot call on either historic strategic planning instruments or the reality relied upon in the case of the land to its west.
I find that the rural zoning of the land to the east of Jules Rd is entirely consistent with the planning instruments which both planning experts relied upon in support of their views as to the Before/Unaffected Scenario of Jules Rd.[81]
[81] Mr Raymond, at [10.23] of his Statement, suggests that the 1999 Land Use Strategy 'considered the area south of Centenary Road and bounded by the public work may support long term urban development'. That is so, but the timeframe given is 40 - 50 years and no other mention appears to have been made of this reference.
As the respondent submits,[82] TPS3 (which, for reasons set out above, I consider can be relied upon as a planning instrument in the 'Before/Unaffected Scenario') makes no provision for the upzoning of the land to the east of the zoning boundary.
[82] Respondent's Outline of Closing Submissions, (Respondent's Written Closing) at [49].
In his contribution to the Planner's Joint Conferral Statement, Mr Raymond referred to, and relied upon, various decisions of the WAPC to rezone Rural land as 'Special Rural' along the Bussell Highway corridor in the lead up to the Date of Taking.[83]
[83] Planners' Joint Conferral Statement, s 4.0 at [1.2].
However, as the respondent submits, and as Mr Raymond accepted in cross-examination,[84] each of those upzonings are specifically identified in the 1999 Shire of Capel Land Use Strategy.[85] By contrast, as the respondent correctly submits,[86] none of the Original Land is so identified in that document.
[84] ts 227, 20 June 2023.
[85] Respondent's Written Closing at [42]; Exhibit 2, tab 9.
[86] Respondent's Written Closing at [42].
Further, the respondent submits, as Mr Raymond accepted, the Greater Bunbury Strategy provides that special rural rezonings will only be considered for land which has been identified as such in the local planning scheme or planning strategy.[87] Mr Raymond also agreed that the WAPC has promulgated policy and strategy to the same effect. Again, none of the Original Land is so identified.[88]
[87] ts 228, 20 June 2023,
[88] ts 228, 20 June 2023; Respondent's Written Closing at [43].
The respondent pursued this line in its cross‑examination of Mr Raymond, during which he conceded that there has been no statutory or strategic planning document that has proposed to alter the zoning of land on either side of the Jules Rd arc since TPS 3.[89]
[89] ts 228, 20 June 2023. As is evident from the previous discussion, TPS3 does not propose the rezoning of such land either.
The respondent's case is that, in effect, the applicant's suggestion that Rural zoned land would have been available for upzoning at the Date of Taking is contrary to the established planning regime which, as per my findings above, relevantly reflects the Before/Unaffected Scenario as to the existing and current landuse of the Original Land.
Mr Raymond points out that the rural zoned land has many attributes that make it attractive for development as Special Rural zoned land, including proximity to Dalyellup District Shopping Centre and Dalyellup Beach, access to regional open space (Manea Park) to the immediate north, access to Bunbury CBD, schools and other facilities.[90]
[90] Raymond Statement at [10.21].
That is true, but it is not enough. As I have identified above, any decision I make as to the likely zoning of (any part of) the Original Land must be consistent with orderly and proper planning. Accordingly, the submissions of the respondent have considerable force.
As Mr Miller's own contribution to the Valuers Joint Conferral Statement acknowledges, no one has quantified the volume of sand needed to construct such a bund, let alone how much it would cost.[190]
[190] Valuers Joint Conferral Statement, page 11.
Accordingly, I am unable to nominate an amount, even if I were to find it compensable, which I do not. That is because the cost of such a bund (which is not the subject of any other evidence) is a development cost that would be borne (if at all) at the stage of development of the Remaining Land. It is therefore a matter which is properly addressed by determining the value of the Remaining Land in the After/Affected Scenario, rather than as a cost for which compensation is payable under s 241(6).
I then turn to the final matter that must be addressed under the heading of 'Consequential Losses'; that of the costs of the 2016 subdivisional approval. Mr Jenour's viva voce evidence included evidence about the 2016 subdivisional approval.[191] In particular, he tendered five invoices which he said were 'the costs that [were] incurred in 2016 in progressing the renewal of the 2016 subdivision approval'.[192]
[191] ts 83 - 84, 19 June 2923. A copy of the approval is Document 10 of the RBOD, pages 34 - 41.
[192] ts 83, 19 June 2023.
The total sum of the five invoices is $13,458.13.
The question is whether those costs were, in effect, thrown away as a result of the taking. The respondent submits that they were not. Rather, it submits that they were incurred as part of Mr Jenour's practice of keeping on-foot a valid subdivisional approval and that, therefore, no compensation is payable.[193]
[193] Respondent's Written Closing at [138] - [140].
I accept that submission. The invoices were all incurred in the first few months of 2016 and include the WAPC's lodgement fees - they are the costs of obtaining the 2016 subdivisional approval.
Mr Jenour's evidence is that he had a practice of maintaining a valid subdivisional approval for the R2.5 zoned land from approximately 2001 or 2002[194] but that he had intended giving effect to the 2016 subdivisional approval in 2020. His evidence was that he had been unable to do so due to the arrival in March 2020 of the COVID pandemic.[195]
[194] ts 78 - 79, 19 June 2023.
[195] ts 87, 19 June 2023.
He also agreed that to that stage he had taken no steps towards implementing that approval. Most relevantly, he had not taken any steps to further that subdivisional approval, such as the production of a plan identifying building envelopes or an environmental management plan, both of which are required as subdivisional conditions.[196] Further, as the respondent submits,[197] Mr Jenour did not say that he would have commenced the implementation of the 2016 approval but for the Taking. Rather, as noted above, to the extent that his evidence addressed the reason why the approval was not progressed, it was to the effect that it was the COVID pandemic which prevented him from implementing it.
[196] ts 89, 19 June 2023.
[197] Respondent's Written Closing at [139].
In my view, and I find, there is no basis to find that the costs incurred in obtaining the 2016 subdivisional approval were 'lost' as a result of the Taking and they cannot, therefore, be claimed under s 241(6)(e) of the LA Act.
Total loss and damage
For the reasons set out above, the total loss and damage, save for solatium and interest, suffered by the applicant due to the Taking, is $1,713,943.75.
Solatium and interest
Subsection 241(8) of the LA Act provides a discretion to award an amount, known as solatium, 'to compensate for the taking [of the land] without agreement'.
I emphasise that the statutory language makes it clear that there is no right to a sum by way of solatium. That is reinforced by the authorities.[198]
[198] In this State see, for example Cook and Edwards v City ofStirling (1991) 4 WAR 469 (Cook) at [478].
A line of WA authorities is to the effect that it is appropriate to award an additional sum as solatium where the decision maker is satisfied that the sum otherwise payable as compensation is unlikely to put the landowner in the same position that they would have been had they retained their property and not suffered the taking of their land.[199]
[199] Cook at [478] - [479]; Wake v Minister for Works [1978] WASC 68; Lucas and Prindiville v Minister for Works unreported, 1966 Compensation Court of Western Australia, PWA1 of 1966, 27 June 1967
I am satisfied that that is the case here. Mr Jenour's evidence was that he and his father had developed land to the south over many years. But for the taking I have no doubt that would have continued in relation to the Original Land at a time and in a manner most beneficial to the applicant. Payment of a sum of 10% of the loss and damage suffered (i.e. $171,394.38) will go some way to addressing any unquantifiable loss and inconvenience.
Finally, the parties are agreed that simple interest is payable on the total amount of compensation at 6% from 2 October 2020 to the date of payment.[200] I cannot, therefore, calculate that sum and will hear the parties as to what orders should be made in this regard.
[200] Respondent's Written Closing at [142]; Applicant's Responsive Submissions at [69].
Result
The respondent is to pay the applicant the sum of $1,885,338.12 plus a sum as to interest, calculated to the date of payment, minus the sum of $1,384,900 being the sum already paid.
I will hear the parties as to the final form of orders, including any consequential matters.
Annexure A
Section 241 of the Land Administration Act 1997 (WA)
(1)In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land taken under Part 9, regard is to be had solely to the matters referred to in this section.
(2)Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on —
(a)… or
(b)… ; or
(c)in the case of an interest to which paragraphs (a) and (b) do not apply — the date of the taking,
and discounting any increase or decrease in value attributable to the proposed public work.
(3)…
(4)No regard is to be had to the value of any improvements made without the consent of the Minister after the registration of a notice of intention.
(5)…
(6)Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of —
(a)removal expenses; or
(b)disruption and reinstatement of a business; or
(c)the halting of building works in progress at the date when the interest is taken and the consequential termination of building contracts; or
(d)architect's fees or quantity surveyor's fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest; or
(e)any other facts which the acquiring authority, the court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.
(7)If the fee simple in land is taken from a person who is also the holder in fee simple of adjoining land, regard is to be had to the amount of any damage suffered by the claimant —
(a)due to the severing of the land taken from that adjoining land; or
(b)due to a reduction of the value of that adjoining land,
however, if the value of any land held in fee simple by the person is increased by the carrying out of, or the proposal to carry out, the public work for which the land was taken, the increase is to be set off against the amount of compensation that would otherwise be payable under paragraph (b).
(8)If the interest in land is taken without agreement, an amount considered by the court or the State Administrative Tribunal or, for the purposes of making an offer, by the acquiring authority, appropriate to compensate for the taking without agreement may be added to the award or offer.
(9)The additional amount under subsection (8) must not be more than 10% of the amount otherwise awarded or offered, unless the court or the State Administrative Tribunal, or, for the purposes of making an offer, the acquiring authority, is satisfied that exceptional circumstances justify a higher amount.
(10)If the interest in land taken produces any rent or profits …
(11)If the interest in land taken does not produce any rents or profits, interest is to be paid at the rate prescribed under section 8(1)(a) of the Civil Judgments Enforcement Act2004 as at the date of entry for construction or carrying out of the work or the date of registration of the taking order, whichever is earlier, and the interest is payable from —
(a)the date of the service of the claim on the acquiring authority; or
(b)the date of entry for construction or carrying out of the work,
whichever is earlier, to the date —
(c)when the offer was served on the claimant, if the compensation awarded by the State Administrative Tribunal or the court of competent jurisdiction is not more than the amount offered by the acquiring authority; or
(d)of settlement of the claim, in any other case.
(12)Subject to subsections (10) and (11) —
(a)when any amount representing an advance payment of compensation is paid to a claimant, interest on the total amount of compensation is payable only to the date of the first payment, and interest is payable thereafter only on the balance outstanding from time to time; and
(b)when any amount is offered by the acquiring authority as an advance payment of compensation under section 248 and the offer is not accepted by the claimant within 30 days of the day on which it was made, no interest is payable thereafter in respect of the amount so offered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PN
Associate to Deputy President Judge Jackson
8 MAY 2024
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