Ivankovic v West Australian Planning Commission

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   IVANKOVIC -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2020] WASC 401

CORAM:   KENNETH MARTIN J

HEARD:   8 & 9 SEPTEMBER 2020

DELIVERED          :   6 NOVEMBER 2020

FILE NO/S:   ARB 6 of 2019

BETWEEN:   IVAN IVANKOVIC

First Plaintiff

DANICA IVANKOVIC

Second Plaintiff

APOLON IVANKOVIC

Third Plaintiff

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Defendant

THE HON JOHN A CHANEY SC

Other Party

FILE NO/S:   CIV 2732 of 2019

BETWEEN:   IVAN IVANKOVIC

First Applicant

APOLON IVANKOVIC

Second Applicant

DANICA IVANKOVIC

Third Applicant

AND

THE HON JOHN A CHANEY SC

Respondent

WESTERN AUSTRALIAN PLANNING COMMISSION

Other Party


Catchwords:

Public law - Land injuriously affected by planning scheme - Dispute over amount of compensation payable - Arbitration under s 176(2) of the Planning and Development Act 2005 (WA) of dispute in relation to 'question' as to the 'amount' of the 'sum' of compensation payable - Award of $0 compensation given by arbitrator - Application under s 34 of the Commercial Arbitration Act 2012 (WA) - Whether award fell outside submission to arbitration or contained decisions on matters beyond the scope of determination - Whether decision affected by error or against public policy - Whether an award under s 176(2) of the Planning and Development Act may be subject to judicial review - Considerations of a challenge under s 34 Commercial Arbitration Act - Permissible scope of such a challenge

Legislation:

Commercial Arbitration Act 2012 (WA)
Judiciary Act 1903 (Cth)
Planning and Development Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Applications dismissed

Category:    B

Representation:

ARB 6 of 2019

Counsel:

First Plaintiff : Mr K Pettit SC & Mr P McQueen
Second Plaintiff : Mr K Pettit SC & Mr P McQueen
Third Plaintiff : Mr K Pettit SC & Mr P McQueen
Defendant : Mr R Lancaster SC & Mr N John
Other Party : Submitting appearance

Solicitors:

First Plaintiff : Weeks & Co
Second Plaintiff : Weeks & Co
Third Plaintiff : Weeks & Co
Defendant : State Solicitor for Western Australia
Other Party : Submitting appearance

CIV 2732 of 2019

Counsel:

First Applicant : Mr K Pettit SC & Mr P McQueen
Second Applicant : Mr K Pettit SC & Mr P McQueen
Third Applicant : Mr K Pettit SC & Mr P McQueen
Respondent : Submitting appearance
Other Party : Mr R Lancaster SC & Mr N John

Solicitors:

First Applicant : Weeks & Co
Second Applicant : Weeks & Co
Third Applicant : Weeks & Co
Respondent : In Person
Other Party : State Solicitor for Western Australia

Case(s) referred to in decision(s):

Certa Civil Works Pty Ltd v Ghosh [2017] WASC 327

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393

Colin Joss & Co Pty Ltd v Cube Furniture Pty Ltd [2015] NSWSC 735

Delmere Holdings Pty Ltd v Green [2015] WASC 148

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77

Italiano v The Water…

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Details
Case
[2020] WASC 401
Decision Date

CaseChat Overview and Summary

Ivankovic v West Australian Planning Commission involved a dispute over the amount of compensation payable to the Ivankovics for land injuriously affected by a planning scheme. The case was arbitrated under section 176(2) of the Planning and Development Act 2005 (WA), which mandated arbitration to determine the compensation amount. The arbitrator awarded $0 in compensation, prompting the Ivankovics to seek judicial review of the award under section 34 of the Commercial Arbitration Act 2012 (WA). The legal issues before the court were whether the award fell outside the scope of the arbitration submission, whether it contained decisions on matters beyond the scope of determination, whether it was affected by an error or against public policy, and whether an award under section 176(2) of the Planning and Development Act could be subject to judicial review.

The court examined the scope of the arbitration and the permissible grounds for challenging the award. It found that the award did not fall outside the scope of the arbitration submission and did not contain decisions on matters beyond the scope of determination. The court also found that the award was not affected by error or against public policy. Regarding the permissibility of judicial review, the court held that while arbitrations under section 176(2) of the Planning and Development Act are typically considered private arbitrations, they could still be subject to judicial review if they involved the enforcement of public rights derived from statute. The court found that the arbitration in this case involved the exercise of a statutory function in determining public rights and was therefore amenable to judicial review. However, the court held that the Ivankovics' challenge under section 34(2)(b)(ii) of the Commercial Arbitration Act was not supported by any precedential case authority and did not constitute a recognised public policy.

The court ultimately upheld the arbitrator's award and dismissed the Ivankovics' application for judicial review. The court found that the arbitrator had properly considered the evidence and had not made any errors or acted against public policy in determining the amount of compensation payable. The court also found that the Ivankovics' challenge under section 34(2)(b)(ii) of the Commercial Arbitration Act was not a permissible ground for setting aside the award. The court's decision reinforces the principle that arbitrations under section 176(2) of the Planning and Development Act are generally considered private arbitrations but may still be subject to judicial review in certain circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue of linkages was dealt with Section 3.5.5 in Part A of Volume 2 of Bush Forever. Map 7 in Bush Forever depicted the Subject Property within what was described as a 'contiguous or largely contiguous corridor of bushland wetland areas'. Section 3.5.5 reads:BackgroundThe natural processes occurring in ecosystems are complex and poorly understood, though it is generally accepted that large consolidated areas are the best options for viable conservation of natural ecosystems and populations. Within the Perth Metropolitan Region there are few large areas available for conservation, many of the Bush Forever sites being relatively small in size (less than 100 hectares) and isolated from other conservation areas. …..… … … …As a consequence, the consideration of surrounding land uses and connectivity between Sites is important in the selection of conservation areas and the design of a conservation area network. Some sites are of particular significance as they provide corridors through otherwise highly cleared land and provide linkages of regional significance. The inclusion of the subject land within the linkage depicted on map 7 in Bush Forever is consistent with the linear open space link identified in the 1992 Structure Plan. It is consistent with the maintenance of the rural zoning of the land and the proposal (which did not come to fruition) to rezone the subject land Parks and Recreation. In broad summary, Mr Taylor's view was that the importance of the linkage was so great that the EPA would have concluded, in the event that a proposal for urban rezoning of the subject land had been made, that the proposal was incapable of being environmentally acceptable. Mr Hick's view was, as indicated above, that because of the lack of onsite environmental value of the subject land, the EPA would not have reached that conclusion. In the alternative, Mr Hick considered that if the EPA had required that there be a link between the Neerabup National Park and the Yanchep National Park, that link could have been more appropriately provided over land to the east of Wanneroo Road, or alternatively through remnant vegetation to the west of the Subject Property over land which is presently proposed for the urban development in the Alkimos centre (referred to in the hearing as the 'dog leg proposal'). A final alternative proffered by Mr Hick was that if the EPA required a linkage west of Wanneroo Road through the Subject Property, it would have It may well be that, if one were looking at planning the Alkimos area in a context where the historical planning of the area had not occurred, planning and environmental authorities may have been persuaded that the desired ecological link between the two national parks could have been provided over some route other than through the subject land. There may be good reasons why those authorities may not have been so persuaded. For example, there are difficulties with the proposal that the linkage might be established east of Wanneroo Road including the interruption to the linkage which Wanneroo Road itself provides, and difficulties with maintenance and management of the linkage over the greater number of lots and accompanying greater number of landowners east of Wanneroo Road compared with west of Wanneroo Road55. With respect to the dog leg proposal, difficulties might arise with the establishment of the linkage in an area dividing areas of urban usage. It is not, however, necessary in my view to undertake a detailed analysis of the arguments offered by each party as to where a linkage might best be established. That is because the requirement to value the land without regard to the existence of the reservation does not require, or permit, the planning history of the area to be set to one side.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The conclusions the learned arbitrator ultimately reached are explained within 51 pages of preceding reasons. As regards rural zoning, the determination as to a continued hypothesised likely future zoning for the reserved land, if it were otherwise unaffected - this is illustrated in the learned arbitrator's reasons, where he was discussing (from [111] onwards) the expert evidence as it had been adduced in the arbitration on environmental issues. At [122] and [123], at the culmination of that section, he had said this:122Central to the Claimants' case is the proposition that the historical planning for the area which preserved the rural zoning of the subject land and contemplated its functioning as an ecological link between the national parks was a direct result of the decision to locate the PRR [referring in fact to the road reservation for the intended extension of the Mitchell Freeway northwards across approximately one-seventh of the applicants' three lots on the western area of those lots] reservation of the subject land. I have already concluded that the desire to maintain the ecological link, in the rural zoning of the subject land, was independent of the decision as to the location of the PRR reservation. Once that position is reached, hypothetical arguments about whether or not some alternative location for a linkage may have been appropriate or desirable falls away. The question which must be determined is whether, as at the relevant date, if one were to ignore the existence of the reservation, the subject land would have been zoned for urban use (or on the claimants' alternative argument would have been right for immediate urban zoning and development). That question is not answered by identifying different hypothetical approaches which may have been taken by the relevant authorities and the approaches which they actually took. In my view, the reasons which I have explained above, if the PR [sic, PRR] reservation over the Subject Land did not exist, the treatment of the land by relevant planning authorities would have maintained its zoning as rural. (my emphasis in bold) The learned arbitrator had continued at [123]:123As observed above, Mr Hick [the environmental expert whose evidence was adduced at the arbitration for the Claimants] proffered a suggestion that, if contrary to his opinion, the Subject Property was required for a linkage between the national parks, a 200 metre strip of land would have been sufficient. That suggestion is inconsistent with the statement of the EPA in Bulletin 1207 that the EPA considered a minimum ecological linkage width to be 300 - 500 metres. Even accepting that the EPA recognised that exceptions might be made to that requirement in recognition of the poor condition of the land involved, I do not consider it open to find on the balance of probabilities that, if the existence of the reservation is ignored, that approach would have been taken by the EPA and planning authorities so that the Reserved Land would have been zoned for urban use as at 4 December 2015, or even would have had urban potential as at that date. (my emphasis in bold)

Ratio Decidendi

Legal Principle Established

McKechnie J also looks to have made passing reference to s 3(4) of the former CA Act 1985 at [44] of his reasons in Western Power Corporation v Normandy Power Pty Ltd [2001] WASC 202. At [44] and [45] his Honour then observed:[44]The Commercial Arbitration Act provides by s 3(4) that its provision shall apply to arbitrations provided for in any other act as if the other Act were an arbitration agreement.[45]The effect of the Goldfields Gas Pipeline Act s 4 is to bring the agreement under the Commercial Arbitration Act. The current debate is over whether or not I am presently in the environment of what the WAPC contends as a wholly private and consensual CA Act commercial arbitration over a 'question' about a compensation 'sum', as provided for by s 176(2) of the PD Act but then conducted as a private arbitration. Or, as the applicants contend, in effect, is this arbitration, by its statutory derivation back at s 176(2) of the PD Act, a determination of statutory rights and, therefore, something other than a purely private arbitration? Hence, the applicants submit, any resulting arbitral award is amenable to judicial review. That submission looks to be invoking, or attempting to invoke, some observations as made by the plurality in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533 at [45]. There, the plurality reasons at footnote 114 say:The term 'private arbitration' refers to arbitration undertaken in fulfilment of an agreement to submit a dispute to arbitration. Private arbitration is distinguishable from arbitration concerned with the enforcement of public rights derived from statute, such as arbitration to resolve industrial law disputes. By reference to the terms of s 176(2) of the PD Act, the applicants also contend that the present arbitration (conducted before the Hon John Chaney SC - a former justice of this court) was 'compelled' and that it involved the arbitrator 'exercising a statutory function' under what was a determination of public rights by his award. From that public rights at issue platform, the appellants launch dependent arguments essentially contending, as I assess their submissions, for a wider contended engagement of State public policy objectives. The public policy as suggested is identified in terms of a chosen s 176(2) arbitration over a 'sum' of compensation needing to faithfully apply the statutory provisions of Pt 11 of the PD Act, as matters of law. That public policy argument they submit thereby opens up the potential in ARB 6 of 2019 for challenges via s 34(2)(b)(ii) of the CA Act. That CA provision allows for an arbitral award to be 'set aside' by a court (only) if the court finds that the award is in conflict 'with the public policy of this State'. On my assessment, that is a wholly novel public policy argument that lacks any precedential case authority support to date in this State. It broadens and is a long way from the more well recognised public policies over matters such as those against fraud, corruption, arbitral bias or a denial of fundamental human rights. It is also different to another recognised public policy of the requirement to afford natural justice or procedural fairness in order to allow a fair hearing of the matters in dispute.