Ivankovic v West Australian Planning Commission - [2020] WASC 401

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 Corporation [No 2] [2020] WASC 112
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
McKay v Western Australian Planning Commission [2011] WASC 109
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217
Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10
R v National Joint Council for the Craft of Dental Technicians (Disputes Committee) et el, ex parte Neal [1953] 1 QB 704
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456
Re Graham Anstee-Brook [2011] WASC 172; (2011) 42 WAR 35
Red Ink Homes Pty Ltd v Court [2014] WASC 52
Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281
Spaseski v Mladenovski [2019] WASC 65
TCL Air Conditioner (Zhongsan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533
The State of Western Australia v Mineralogy Pty Ltd [2020] WASC 58
Western Power Corporation v Normandy Power Pty Ltd [2001] WASC 202

TABLE OF CONTENTS

Introduction

ARB 6 of 2019 and the CA Act

CIV 2732 of 2019

Private or public arbitration

PD Act s 176

The CA Act

Public policy

Character of arbitration

Compensation calculation under s 179(1) PD Act

Other sundries

Interim regime

No dispute as to a right to compensation - s 176(1) PD Act

A $0 net compensation sum as determined by the arbitrator

Limited scope of the arbitration exercise

No appeal as to errors of fact or law

Section 179(1)(b) PD Act and 'what if'?

The Arbitration Agreement

The nature of this Arbitration Agreement

Consensual nature of agreement

Section 1(6) of the CA Act

Section 176(2) of the PD Act

Policy considerations

Conclusion on nature of arbitration under s 176(2)

The arbitral award (with the incorporated reasons) of 2 July 2019

The applicants' contended four errors

By illustration: formal ground 1 in ARB 6 of 2019

The four as distilled challenges upon contended key errors

The first error of challenge

Plans 1, 4 and 8

The second error of challenge

Conclusion as to second error

The third error of challenge

The fourth error of challenge

The nature of a challenge under s 34 of the CA Act

Judicial review of an arbitral award

Section 78B of the Judiciary Act

The applicants' argument in support of judicial review being available

No judicial review available here

Alternate challenges for jurisdictional review and certiorari of the arbitral award

Orders and Costs

KENNETH MARTIN J:

Introduction

I am dealing with two applications brought by way of challenge against an arbitrator's award (incorporating 51 pages of reasons) of 2 July 2019 arising from an arbitration conducted as between Ivan, Apolon and Danica Ivankovic (the applicants) and the Western Australian Planning Commission (WAPC) (respondent). Albeit served with the respective applications, the arbitrator, of course, participates only to the extent of submitting an appearance in this court which abides the outcome of the court's determination.

The arbitrator's award is essentially challenged from two perspectives under each action. First, by ARB 6 of 2019 the applicants would seek to challenge the award - so as to have it set aside pursuant to the provisions of s 34(2) of the Commercial Arbitration Act 2012 (WA) (the CA Act).
Secondly, CIV 2732 of 2019 is framed as a judicial review application sought to be pursued against the arbitrator's award on the contended basis of alleged jurisdictional error.
The arbitration conducted as between the parties was for the purpose of determining the amount of (and manner of payment of) compensation payable to the applicants under State planning legislation, following the reservation of the applicant's land. The arbitrator's end conclusion was that the sum total was $0.
The location of applicants' land is described by the arbitrator at [16] of his reasons as:
[A]pproximately 40 km from the Perth central business area and 19 km from the Joondalup city centre. It is situated to the west of Wanneroo Road primary regional road reserve and north of the Romeo Road reserve.
As an orientation aid I will incorporate at this point one of the tendered plans showing the applicants' land (three lots) in its green neighbourhood to the north and south. See 'City of Wanneroo DPS No 2 as at 27 Nov 2015', page 127 of the affidavit of Mr John affirmed 21 February 2020 and filed in CIV 2732 of 2019). This map shows the applicants' Lots 6287, 6288 and 6289 at Carabooda in the middle of the map and seen bordered to the right by Wanneroo road. See below.

ARB 6 of 2019 and the CA Act

To make matters explicitly clear at the outset, it needs to be said that the challenge put against the award under ARB 6 of 2019 is not and cannot be in the nature of an appeal. The CA Act s 34A addresses the subject of potential appeals which might be pursued. But that is only where the parties to an appeal agree, and only also where the court grants leave for the appeal under s 34A(3). A court must not grant such leave unless it is satisfied that there is a question of law to be determined. Here it is demonstrable that there is no appeal against the award under s 34A being pursued.
Consequently, the scope for challenges against an arbitrator's award under the CA Act is very narrow. It is limited to s 34(2) to 'an application for setting aside' - a challenge that is wholly distinct from that of any kind of appeal.
Within the context of the CA Act, s 5 should also be noted. It is conceived by reference to the underlying Article 5 of the UNCITRAL Model Law on International Commercial Arbitration (adopted by the United Nations Commission on International Trade Law on 21 June 1985, with amendments adopted by the Commission in 2006) and which wording it reflects. Section 5 of the CA Act reads in terms:
In matters governed by this Act, no court must intervene except where so provided by this Act.
With that legislative limitation in mind, I turn to s 34(1) of the CA Act which (reflecting the underlying Model Law, Article 34) reads in terms:
Recourse to the Court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3) or by an appeal under s 34A.
All the provisions of the current CA Act reflect a legislative policy object of minimal curial intervention with arbitral awards - by the very limited potential for curial recourse as is regulated by the CA Act against challenging an arbitral award.
I discussed that policy issue at some length in my 2019 reasons in Spaseski v Mladenovski [2019] WASC 65, under headings 'Arbitration principles', commencing at [49] of those reasons. I refer as well to my observations under the heading 'Natural justice under public policy in arbitrations' commencing at [59], and at the heading 'More Australian domestic arbitration case law' commencing at [63] and running to [68]. I repeat and incorporate all of what I said there by reference into these reasons, but do not repeat those paragraphs again verbatim.
It is readily apparent that a policy of minimum curial intervention is clearly articulated in the CA Act; is well established; and underlies the CA Act as a core legislative object. That position was not challenged on present arguments.
Some further history underlying the commencement of the CA Act is found explained in the reasons of former Chief Justice Martin under his reasons in Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10 at [28]. At [31] Martin CJ had observed:
The 2012 Act [the CA Act] forms part of a coherent scheme for the provision of uniform state and territory legislation covering both domestic and international commercial arbitration. Decisions in other jurisdictions with respect to the proper construction and effect of analogous legislation should therefore be given due weight and deference in this state: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ); Minister for Industrial Affairs v Civil Tech Pty Ltd (1997) 69 SASR 348, 335 (Lander J, Doyle CJ & Bleby J agreeing); Trans Pacific Investment Corporation Pty Ltd v Rusty Rees Pty Ltd (1995) 57 FCR 210, 214. There are decisions in other jurisdictions under legislation which is analogous to the 2012 Act which are consistent with the conclusion that the 2012 Act provides the legal regime governing the rights and obligations of parties to an arbitration agreement when an arbitration has not been commenced, in the sense described in s 43 of the 2012 Act, even if the agreement was made prior to the commencement of the legislation: see Gilgandra Marketing Co‑Operative Ltd v Australian Commodities & Marketing Pty Ltd [2010] NSWSC 1209 [42] (Slattery J); and Aquagenics Pty Ltd v Tasmanian Water and Sewerage Corp (Southern Region) Pty Ltd [2013] TASSC 13 [26] (Holt AsJ).
See also more generally as to s 5 and s 8 of the CA Act, Quinlan CJ's more recent discussion of these provisions in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 at [99] - [117].

CIV 2732 of 2019

The other application, CIV 2732 of 2019, was heard together with the first.
The same as submitted evidence is relied upon for both applications.
Under this judicial review application the same applicants now seek certiorari, or relief in the nature of certiorari, so as to quash the learned arbitrator's decision - on a basis of asserted jurisdictional errors. An early question arises as to whether such a challenge is even open.
The notion of a public law jurisdictional error challenge directed against an arbitral award made by a privately appointed arbitrator is unique. But the challenge is sought to be justified here, on a basis that the applicants contend that the award under challenge is not the subject of a private arbitration conducted under a private arbitration agreement. This is a controversial issue. My observations on the unique aspects canvassed by this action by challenging the arbitrator's award by judicial review on the basis that it was a public and not private arbitration can be found commencing at [223] below. Ultimately, I conclude, as I explain that the attempted invocation of public law principles cannot be accepted.
To that end, it is necessary to look immediately at the content of s 176(2) of the Planning and Development Act 2005 (WA) (the PD Act) and then to turn back to assess the asserted ramifications of s 1(6) of the CA Act towards an arbitration that is conducted under the regime of s 176(2) of the PD Act leading to an arbitral award made as to the quantum of compensation payable to a person affected by their land being made the subject of a reservation.

Private or public arbitration

PD Act s 176

Section 176 of the PD Act is located with Pt 11, under div 2 of that legislation. Part 11 presents under the heading 'Compensation and acquisition', and div 2 proceeds under the subheading 'Compensation where land injuriously affected by planning scheme'.
For the present, I pass over the important PD Act provisions of s 173(1) addressing land injuriously affected by a making or amendment of a planning scheme and the accompanying entitlement to compensation in respect of the injurious affection. Likewise, I pass over s 174(1)(a) concerning the phenomenon of the injurious affection of land by reason of land being reserved under the planning scheme for a public purpose. Instead, I proceed directly to s 176 itself.
Although the present focus is upon s 176(2) of the PD Act and its express engagement with the CA Act, it is, of course, necessary to see and appreciate all of s 176, noting particularly the character of the 'questions' which fall within the exclusive jurisdictional realm of the State Administrative Tribunal (SAT) by s 176(1), by juxtaposition with the other genre of 'questions' that may be otherwise determined by a path nominated under s 176(2).
Section 176 of the PD Act reads:
(1)A claimant or responsible authority may apply to the State Administrative Appeal Tribunal for determination of any question as to whether land is injuriously affected.
(2)Any question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid as compensation under this Division is to be determined by arbitration under and in accordance with the Commercial Arbitration Act 2012, unless the parties agree on some other method of determination.
In terms of the statutory history of s 176 within the PD Act, it is to be noted that in 2012, by amending Act number 23 (s 45), reference to what was then a commencement of the new (now current) CA Act was thereby incorporated into s 176(2). That 2012 amendment, in effect, was by way of an updating of the subsection's predecessor reference to the formerly applicable Act for Western Australia, namely, the Commercial Arbitration Act 1985 (CA Act 1985).
It seems that the PD Act from its 2005 inception had by s 176(2) referred a 'question' over the 'amount and manner of payment' of the 'sum' to be paid as compensation - to a commercial arbitration for determination and resolution, if the parties had not otherwise agreed on a different form of dispute resolution for those questions concerning the 'sum' paid as compensation.

The CA Act

The commencement in Western Australia of the CA Act brought with it a local alignment (that I explained in Spaseski) to the Model Law: see [49] of the reasons in Spaseski. Of course, the International Arbitration Act 1974 (Cth) had previously seen a distinction in this State, between international and domestic arbitrations. They were then being treated differently, in effect, under different legislative arbitration regimes. Substantive differences between those legislative regimes narrowed, with the commencement of the CA Act in this State, although that legislation, as I also explained in Spaseski, still refers to a domestic arbitration, under s 1(3).
Here, there appears to be no dispute over the engagement under present circumstances, for the purposes of s 1(1) of the CA Act, with the term 'domestic commercial arbitration'.
However, the applicants are at pains within ARB 6 of 2019 to contend that what unfolded was not a 'private' arbitration. That contention rests heavily upon a proper understanding of s 1(6) of the CA Act. So, I next turn to that subsection. But, in order to assess it in overall context, I will also refer to s 1(5) as part of the contextual evaluation.
Section 1(5) of the CA Act provides:
This Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act.
Then, s 1(6) provides:
Subject to subsection (5), this Act applies to arbitrations provided for in any other Act as if -
(a)the other Act were an arbitration agreement; and
(b)the arbitration were pursuant to an arbitration agreement; and
(c)the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement,
except in so far as the other Act otherwise indicates or requires.
I made a passing reference to equivalent earlier provisions by my reasons in McKay v Western Australian Planning Commission [2011] WASC 109 (delivered 21 April 2011). That was in the context then of a reference to substantially similar terms of s 3(4) within the former CA Act 1985 (see [3]). A passing reference to s 3(4) was rendered back then in the context of my observation to a link between the PD Act s 176(2) and the former CA Act 1985 - as regards the court appointing an arbitrator to fill a vacancy in the office of arbitrator. My earlier observations in McKay are not presently material.
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.

Public policy

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.
That, of course, does not mean or infer that the applicants' broader contended public policy argument is wrong. It simply means that the applicants are journeying into what is curially wholly virgin territory as to any prior identification of such a public policy.

Character of arbitration

Another s 176(2) PD Act argument of the applicants is also founded upon the asserted public character of such an arbitration. It is contended by the applicants that the public character of the rights opens up scope for judicial review - upon a basis of jurisdictional error. That is, of course, the core foundation for the accompanying application under CIV 2732 of 2019 to that end.
Because of these public right in character contentions as raised by the applicants towards s 176(2) and the subsequent arbitral award which is now sought to be 'set aside' under s 34(2) of the CA Act, or quashed by relief akin to certiorari, it is necessary I discuss at an early point the basis of the reference to the arbitrator and the purpose of him undertaking the arbitral exercise leading to his arbitral award that is presently sought to be impugned under both ARB 6 of 2019 and CIV 2732 of 2019.
However, before addressing the details of the current dispute, since I am in the realm of Pt 11 div 2 of the PD Act, it is convenient to first address s 179, to see the basis of the required calculation by which statutory compensation is payable for injurious affection to land, due to that land being 'reserved' under a planning scheme (albeit where no part of that land is yet taken to be purchased or acquired by the responsible authority).

Compensation calculation under s 179(1) PD Act

Again in order to provide the required context to that end, I need as well to set out s 179(2), showing the particular reference to s (2)(c) therein, as regards the consequences of unacceptable conditions - which presently was the criteria that was engaged.
It is uncontroversially accepted here that s 179(2)(c) occasioned the applicants' statutory right to receive statutory compensation for injurious affection of their land, under s 173(1). That was at 4 December 2015, by reason of the unacceptable condition to the applicants. Parts of their land (three contiguous lots) had been reserved as early as 1994, under gazetted amendments of that year to the Metropolitan Region Scheme (MRS). Under the MRS parts of their land in the northern outer Perth locality of Carabooda, were reserved for the purpose of a future road extension of the Mitchell Freeway - extending roughly north-west towards Yanchep.
I turn then to s 179(1) of the PD Act in order that its specified calculation criteria be better appreciated.
As will be seen, what is called for by s 179(1), essentially, is for a calculation exercise, made as between two valuation amounts which must both be ascertained and then subtracted from each other. This is on the basis of a s 179(1)(b) minus (1)(a) exercise. This subtraction calculation thereby derives the compensation amount which the compensation payable is specified as 'not to exceed'.
Thus, s 179(1) and (2) read (relevantly):
(1)Subject to this Division, the compensation payable for injurious affection due to or arising out of the land being reserved under a planning scheme, where no part of the land is purchased or acquired by the responsible authority, is not to exceed the difference between -
(a)the value of the land as so affected by the existence of such reservation; and
(b)the value of the land as not so affected.
(2)The values referred to in subsections (1)(a) and (b) are to be assessed as at the date on which -
(a)... ; or
(b)... ; or
(c)the approval is granted subject to conditions that are unacceptable to the applicant.

Other sundries

There are a few more matters to note before I leave these provisions of the PD Act.

Interim regime

First, the regime of statutory compensation for injurious affection to land arising out of a reservation of that land by way of a planning scheme (by s 173(1) and s 174(1)(a)) is effectively to be seen an interim regime of compensation - in anticipation what might, or might not, in the longer term eventuate as a substantive taking of that earlier reserved land. To that end, I mention without citing in full, s 181 of the PD Act - as regards refunds and potential credits, in effect, depending on the ultimate eventuality of a taking of the reserved land or not.

No dispute as to a right to compensation - s 176(1) PD Act

Next, I record that here there was never any earlier reference by these parties to the SAT, under s 176(1). In other words, there was no earlier question of controversy as to the reservation of the applicants' land under the MRS planning scheme in 1994. The reservation is for a Controlled Access Highway. It was made in the Metropolitan Regional Scheme Amendment 932/33 as gazetted on 10 May 1994 (MRS Amendment 932/33). Later the favoured terminology for a reserve for a major road such as this altered, to Primary Regional Road - abbreviated to 'PRR'.
As no earlier dispute arose over whether the applicants (as land owners) were entitled to receive compensation - in respect of an injurious affection, by reason of the reservation of parts of their land under the MRS Amendment of 932/33 - their statutory right to receive compensation then followed. There was an accepted injurious affection for the purposes of s 173(1) of the PD Act.
The present is not then a case, say, for instance, where some 'question' had arisen about whether or not the land was injuriously affected, which needed to be determined by the SAT under s 176(1) prior to the taking of steps, and then to an arbitrator (chosen by the parties) quantifying the amount of the sum payable to them as compensation.
Here it is not in dispute that the parties - that is, the applicants and the WAPC - engaged an arbitrator directly. They did that without any prior reference to the SAT. That was because the applicants' statutory right to compensation was never in issue. The only question relevantly in issue was over the 'amount' of the 'sum', for s 176(2) purposes.

A $0 net compensation sum as determined by the arbitrator

Third, I need to explain how it is here that the arbitrator's ultimate award as to what he determined as the 'amount' of the 'sum' payable as compensation to the applicants for injurious affection to their land by the reserve for a PRR, ultimately came to be quantified by him at $0. I turn to that issue discretely next.
At first blush, where parties accept that an applicant holds a statutory entitlement to receive compensation for an injurious affection to their land arising out of a reservation of parts of their land for a PRR, a following arbitral determination by award of a compensation sum of $0, might present as somewhat incongruous. Some clarification is called for to explain how that outcome eventuated here.
In short, the $0 compensation award sum result manifested here (as the arbitral award reasons display at their culminating final two paragraphs), essentially, because of two factors. First is the already seen underlying subtraction sum quantification exercise as dictated under s 179(1) of the PD Act, as between the two values for the land under s 179(1) subpars (a) and (b). More significantly here is a second factor, namely, the way in which the parties chose to proceed at their arbitration as I will explain.
These two determining factors leading to the $0 outcome can be illustrated by the two culminating paragraphs of the arbitrator's reasons. Under the heading 'Valuation evidence', they read as follows:
124As I indicated at the outset of these reasons, the valuers called by both parties reached agreement following conferral that if the land should be treated as a rural land when the existence of the reservation is ignored, then there is no difference between its value ignoring the reservation and its value as rural subject to the reservation. That was a matter expressly confirmed by counsel for the claimants during the course of the hearing.
125In light of the conclusions which I have reached, the consequence is that there is no difference between the value of the land as affected by the reservation and its value as not so affected. The Claimants are therefore not entitled to any payment for compensation for injurious affection. (my emphasis in bold)
At [124] of the reasons now seen above, the arbitrator was clearly referencing s 179(1)(b) of the PD Act, in referring to the land and 'its value ignoring the reservation'. The reference as seen to 'its value as rural subject to the reservation', evaluated in context, is a clear reference to s 179(1)(a). Reference to a 'difference', in that context of there being found to be no end difference as between the two values, was an application of the arithmetical subtraction methodology of two values exercise, as dictated by s 179(1), to determine the amount of the compensation sum.
The resultant calculated outcome of $0, therefore, is a product of a consensus reached as between the rival valuers in the arbitration over the consequence of a rural zoning of the land assessment if reached for the s 179(1)(b) valuation exercise conducted on a hypothesis towards the land when valued as 'not so affected'.
The arbitral determinations deliver a $0 conclusion upon the critical determination from the hypothesis accepted for the purposes of s 179(1)(b), towards the likely zoning of the subject land at issue being assessed as a continuing rural zoning. The rural zoning assessment for the land if it were 'not so affected' is fundamental to the outcome.
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)
It needs to be fully appreciated then, that the arbitral quantification of the compensation 'sum' exercise, conducted for the purposes of s 176(2) as regards the quantification question referred to this arbitrator, was limited. It was not a question over the disputed existence of injurious affection. Injurious affection ascertainment questions exclusively are matters for SAT, by s 176(1). Here, injurious affection was a given by reason of the reservation. So too was the valuation assessment date of 4 December 2015. Under s 176(2) an arbitrator can be consensually engaged only to resolve questions over the 'amount' of the 'sum' (there being no issue here as to a 'manner' of payment).

Limited scope of the arbitration exercise

The observation as to the very limited scope of a s 176(2) PD Act arbitration exercise in quantification is important, as regards evaluating the contention of the applicants that the arbitration affected public rights. That is only so in a loose sense. It is not my assessment of the true position. Here, the public right to compensation for injurious affection was already fully established. Instead, the arbitral exercise was directed only towards a quantification of the sum of compensation. Moreover, a quantification exercise was not to be conducted at large by the arbitrator once engaged upon that question. There were statutory criteria applicable to that quantification exercise, by the two values subtraction exercise as mandated under s 179(1).
For this particular arbitration, the parties had, as between their respectively engaged expert valuers, already agreed upon what the outcome of the two values subtraction exercise was to be, if the hypothesised zoning of the reserved land as unaffected land was determined at the end to be a rural zoning. The gap was to be $0. That was how things happened to turn out here, as regards the arbitral end determination as to a likely rural zoning for the s 179(1)(b) component of value of the reserved land, if unaffected.

No appeal as to errors of fact or law

I must render again my self evident observation that, in a context of an arbitral challenge made by s 34(2) of the CA Act, to set aside the award, there is no right of appeal available grounded on errors of law or fact by the arbitrator.
It will soon be seen, however, that a very substantial component of the assembled grievances of the applicants would seek to direct attention to 'error' suggestions, for instance, first, that the arbitrator conducted the exercise at the wrong valuation date. That is a surprising suggestion, given that under a few paragraphs which I have already cited from his reasons so far, it is overt the arbitrator made express reference to the correct valuation date. See, for instance, the sentence '[t]he question which must be determined is whether, as at the relevant date ... ' in [122]. Express reference to the correct date of 4 December 2015, can be seen in the concluding sentence of [123].
Even so, the applicants would seek to contend that, read as a whole, there is error because the reasons may be inferred to show that the learned arbitrator conducted the valuation exercise at an earlier date (I assume that submission was that it was conducted at 1994, although I was left pondering over that). But even were that so, there is no appeal open under the CA Act to be taken over such an error.
A second and recurrently expressed error grievance by the applicants in seeking to challenge the arbitral award is to the effect that the arbitrator ignored or did not deal with an alternate case run - which had been temporally directed at a suggested enhanced potential of the land for urban rezoning, as at May 2015.
The foundations of this error submission (which I repeat is not open to challenge by any appeal) was that at May 2015, a draft publication issued for public comment by the WAPC and the Department of Planning, effectively, had just been ignored by the arbitrator.
The relevant planning instrument was a May 2015 draft 'North-West Sub‑Regional Planning Framework Towards Perth and Peel @ 3.5 million' (2015 draft planning framework). This 64 page document is found at PWW28 of Mr Weeks' affidavit sworn 31 January 2020.
Essentially, it was put that within the 64 pages of this draft, that one of the found plans there (being draft Plan 8 at page 41) displayed, by its use of six grey 'dots' positioned to the west of the applicants' land, had showed proposed ecological linkages at places other than the applicants' Subject Land. So depicted, they were seen as dotted and sequenced as dots in the nature of something of a 'dog leg', lying to the west of the Subject Land, in the vicinity of Alkimos. The consequence being inferred from all that by the applicants, was that an ecological (green) linkage was no longer then being required for their Subject Land (as between national parks to the north and south of their land). Hence, it was said the arbitrator had just ignored the resulting potential arising out of that plan for what would be instead, an urban zoning and development of their land at that time, given its proximity to an urban rezoning proposed for the Alkimos area to the west. The contention is once again difficult to accept, given the highlighted in bold several references found within [122] and [123] of the arbitrator's reasons (seen above at [61] and [62]), to the very concept of an urban potential for the land, being expressly rejected.

The first was in the reference phrase 'right for immediate urban zoning and development' in parenthesis within [122]. (Perhaps the word 'right' was instead intended to read 'ripe', but it does not matter, as the arbitral sentiment being addressed is the same.) Potential for zoning for urban use was in the express contemplation of the arbitrator, but was dealt with and rejected.
Further, there is to be observed in the [123] reasons a reference to 'zoning for urban use as at 4 December 2015', followed by the arbitrator's further words 'or even would have had immediate urban potential as at that date'.
Nevertheless, error arguments about the arbitrator allegedly ignoring an urban potential alternative argument were pressed.

Section 179(1)(b) PD Act and 'what if'?

My last observation of a preliminary character is that the necessarily hypothetical nature of a 'what if' (the land were not affected) exercise that is required under s 179(1)(b) of the PD Act, is unique. The required task is not a matter of determining an existence or otherwise, of a disputed but tangible fact. Rather, the required task is a wholly counter-factual exercise to be conducted as a matter of projection and judgment as to the future based on the underlying negative assumption. It is in the nature of an opinion or future projection to be reached upon an issue, over which reasonable minds might well differ. That is the projective nature of the valuation task necessarily required.
Whilst the s 179(1)(b) exercise as to value of the land, assessed as unaffected must be conducted paying due regard to the submitted admissible evidence and to expert opinions adduced as part of all the overall evidence before the arbitrator, a resulting properly formed opinion is not to be lightly second-guessed, even if a review were open to be conducted as a full blown appeal under a rehearing exercise (which, of course, it is not).
In other words, an arbitrator does not arrive at a projected value conclusion by some idiosyncratic approach without regard to all the evidence put before him. Out of all that evidence the arbitrator was entitled (indeed, obliged) to accept or reject rival opinion evidence as he saw fit.
As one example taken from the report of the WAPC's valuation expert Mr Wilson dated 11 December 2018 as adduced at the arbitration (exhibit 60 in the arbitration) there was manifest, as expert evidence, what is seen at par 124 and par 125 - to support an end zoning projection conclusion required under s 179(2)(b) and necessarily leading to the learned arbitrator's $0 net outcome. Mr Wilson had said:
[124]This position of including/excluding the north-south ecological link is the major difference between the two town planners and I think it represents the crux of the argument. My view is, the greenbelt and landscape attributes of the subject land have been represented in government documentation for many years. I think it is incorrect to disregard these environmental assets, the north-south ecological linkage and disregard the Rural/General Rural zonings in favour of urban potential.
[125]I think the SPC made its intentions very clear and with or without the PRR reservation I do not think that the SPC (now WAPC) would disregard the EPA, or the north-south linkage and it would not have rezoned the land in the MRS from Rural. I agree with Mr Foley and Mr Taylor (environmentalist) whose report I discuss next in this report, that the subject land would have been required to form part of the north-south ecological linkage whether the PRR reservation was in place or not. (my emphasis in bold)
I only cite those passages from Mr Wilson's report to illustrate the point that a rural zoning conclusion by the arbitrator, which dictated in the end $0 net outcome by applying the s 179(1) PD Act calculation criteria, was not an idiosyncratic selection of evidence. Rather, it had a firm basis to choose that likely rural zoning result out of some evidence put before the arbitrator, that he was entitled to choose to accept.
Once that conclusion is reached, the error suggestions, in effect, that the arbitrator effectively went 'rogue' so as to ignore the true valuation date, or to ignore arguments as to finding a potential in the land for its urban rezoning at or around 2015, simply do not withstand scrutiny. That is especially so in the environment of a very limited scope of available challenge to set aside (but not to appeal) under s 34(2) of the CA Act, or as asserted jurisdictional errors.
With all those observations in mind, I can move to examine the document which implemented the engagement of the arbitrator for the purposes of s 176(2) of the PD Act.
Further to those observations, I note again (see par 6) that the PRR reserve for a possible future northwards extension to the Mitchell Freeway can be seen depicted in red, and running essentially to the north-west, seen with Wanneroo Road to its east - essentially running parallel. It will also not be forgotten that a north-south railway line runs as well located in the middle of the Mitchell Freeway reserve.

The Arbitration Agreement

A written Arbitration Agreement perfected as between the applicants (as claimants), the WAPC (as respondent) and the arbitrator was incorporated into the materials before me by the applicants (see attachment PWW1 to Mr Weeks' affidavit sworn 31 January 2020 filed in CIV 2732 of 2019).
I highlight the following aspects of that Arbitration Agreement.
Recitals A and B read in the following terms:
A.The Claimants and the Respondent (Dispute Parties) are in dispute in respect of certain matters set out in clause 1 of this agreement (Dispute).
B.The Arbitrator has agreed, on the terms and conditions of this agreement, to act as the arbitrator in the Dispute.
Ensuing provisions designate the governing law as that of Western Australia, with the date of arbitration agreement specified as (in effect) 25 August 2018, when the parties signed by counterparts.
Relevantly to the perspective of the as submitted 'Dispute' to the arbitrator and, thereby, to arguments as to a 'setting aside' of the ensuing award under s 34(2)(a)(iii) of the CA Act, on the basis of the arbitrator venturing too wide so as then to determine matters beyond the scope of the submission to arbitration, I highlight cl 1 of the Arbitration Agreement. It appears under a heading, 'General terms' and reads:
1.The Dispute
The Dispute has arisen between the Dispute Parties in relation to the amount of compensation that the Claimants are entitled to, arising from injurious affection to portions of the Claimants' land (Lot 6287 and Lot 6288 Wanneroo Road, and Lot 6289 Reinhold Place Carabooda) caused by the reservation of those portions of the Claimants' land under the Metropolitan Region Scheme for Primary Regional Roads - Mitchell Freeway and the Dispute Parties agree to refer the Dispute to the Arbitrator to determine and award the amount of (and manner of payment of) compensation payable pursuant to section 176(2) Planning and Development Act 2005.
By clause 2(a) the Dispute Parties duly agreed to the appointment of this arbitrator. By cl 2(b) the arbitrator then accepted an appointment to act under the terms and conditions 'of this agreement'.
Clause 2(b) is then seen to address the proportions upon which the parties were responsible for meeting the arbitrator's fees and reasonable disbursements, at a designated rate per hour plus GST.
Clauses 3 and 4 are also important. They provided in the following terms:
3.Arbitrator's role
(a)The Arbitrator will conduct the arbitration in accordance with the Commercial Arbitration Act 2012 or any legislation enacted as a replacement of or in substitution for the said Act.
(b)The Arbitrator shall decide the dispute according to the laws of Western Australia and may direct that any preliminary conference, directions, hearings or other hearings, or the taking of any evidence, be conducted by telephone, video conference or other electronic means.
4.Conduct of arbitration proceedings
The parties agree that for the purpose of conducting the arbitration the Arbitrator has the powers conferred under s 19 of the Commercial Arbitration Act 2012.
It is unnecessary to elaborate on the terms of s 19 of the CA Act, which deals with rules for the determination of arbitral procedure and is modelled upon Article 19 of the Model Law. However, I note that by s 19(3) of the CA Act, the arbitrator's power extends to determining the admissibility, relevance, materiality and weight of any evidence.
Clause 5 of the Arbitration Agreement deals with the confidentiality of the arbitration and of the information and documentation associated with the arbitration. Certain exceptions, which I observe but do not need to discuss further, are identified under ensuing subclauses 5(b) and 5(c).

The nature of this Arbitration Agreement

Consensual nature of agreement

The Arbitration Agreement had identified what was the relevant 'Dispute' to be resolved. As seen, it was an exercise in relation to 'the amount of compensation that the Claimants are entitled to …' (my emphasis in bold).
That description in the agreement of the referred Dispute accurately describes a PD Act s 176(2) 'question', that was fully capable of being referred to an arbitrator to be conducted as an arbitration under the CA Act (or to some other mode of dispute resolution had the parties consensually chosen another mode of dispute resolution process), as the words of s 176(2) permit.
Here the parties chose and selected their arbitrator as a matter of their own free choice. They then deliberately entered an enforceable contractual relationship with him under the perfected Arbitration Agreement, as seen. They were each responsible to meet the arbitrator's fees and disbursements. The nature of the dispute resolution exercise to be conducted under the CA Act was, as one essential hallmark of a private arbitration process, to be confidential.

Section 1(6) of the CA Act

What is the basis of the applicants' argument to the effect that the arbitral exercise as undertaken here was not a private arbitration under the CA Act? The key contention seems to be that the claimants for compensation had been compelled to arbitration and the exercise necessarily thereby dealt with what were public rights to compensation - with the arbitrator performing a public function, notwithstanding his contractual engagement by the parties. And to that, the applicants advance a contention that it was the PD Act itself, not the agreement of 25 August 2018, that was the parties' arbitration agreement for the purposes of the arbitration and these applicants. The basis for that argument is tied in turn to the suggested true interpretation of s 1(6) of the CA Act.
Nevertheless, the as contented position of the applicants as to a public character of an arbitration being conducted by reason of an engagement arising from s 176(2) of the PD Act, is not my assessment of the true position. In the first place I assess s 1(6) of the CA Act, the terms of which have now been seen, to relevantly say nothing more than that where, as has transpired here, another Act (ie, the PD Act) either permits, allows or directs an invocation of arbitral process under the CA Act for arbitrations as provided for in that other Act, that, in such circumstances, the full import of the CA Act will be delivered - unless the other Act says otherwise. And here the PD Act does not say otherwise.
Hence, my assessment of s 1(6), contrary to the applicants' submission, is that it does not designate the PD Act as the parties' arbitration agreement. Instead, the Arbitration Agreement is found in the private contractual document of 25 August 2018 which the dispute parties consensually perfected as between themselves with their chosen arbitrator.
It may be that the generic reference in s 1(6) of the CA Act to any other Act could be read to address other situations where parties are more generically referred merely to arbitration. But that was not the case here under s 176(2) of the PD Act, given the explicit reference to the CA Act.

Section 176(2) of the PD Act

As I have discussed, the provisions of s 176(2) of the PD Act are express as regards what is, in effect, a privatisation of a process that the parties will use, if there are any questions between them over the 'amount' of the 'sum' (or the manner of payment of the sum) which the party entitled to compensation will receive. Parties, if they do not otherwise agree, are directed by s 176(2) towards an arbitration to be conducted under the CA Act. However, those same parties, also by s 176(2), are left perfectly free to resolve any such s 176(2) 'questions' by using any other agreed modes of dispute resolution to resolve the question, thereby embracing, for instance, under a consensually agreed upon mediation, expert determination, or sui generis agreement to abide essentially by the quantification determination of the 'sum' as arrived at by an appointed and agreed upon neutral third party (such as a senior counsel, or Queen's counsel).
In other words, I must reject the applicants' base contention that the PD Act here was the parties' arbitration agreement. It was not. The parties entered a private Arbitration Agreement of 25 August 2018 with their chosen arbitrator. That was all done as a matter of their choice.
The dispute resolution process for the compensation question was chosen by them and under the PD Act. In my view, it carries a wholly private character as an arbitration conducted under the full and unqualified engagement of the CA Act. There was no public character to the arbitration.
A private character conclusion is buttressed by juxtaposition of s 176(2) and s 176(1). If there had been (but, of course, there was not) any substantive disputed questions over the applicants' entitlement to statutory compensation resulting in a dispute, say, over injurious affection to their land, then that public statutory right question would have been only for the SAT to resolve. That exercise would obviously carry a public character.
But here the applicants' entitlement to compensation was already recognised by the parties as being engaged under the statute by reference to s 173(1) of the PD Act. There was no question or dispute over that question at all.
Consequently, the only issue to be resolved under s 176(2) was the compensation quantification exercise, over the 'amount' of the 'sum'. That limited question was perfectly appropriate for a private resolution as directed by s 176(2), in effect, that if the parties remained in dispute over it, that they could then select their own medium of dispute resolution but otherwise were directed to an arbitration, to be conducted under the CA Act - an arbitration carrying all the features of such a private CA arbitration process. Such features would include speed, relative informality, relaxed evidentiary thresholds, confidentiality and a highly constricted potential reviewability of an award result under the CA Act.
It also should not be forgotten for present circumstances that this private and confidential arbitral regime would bind the WAPC as much as it bound the applicants in terms of a resolution process outcome over the 'sum', where there would be only very minimum scope for a later curial intervention.

Policy considerations

The policy desirability of an arbitral result that would be swift and certain and not vulnerable to be delayed or diverted by subsequent curial challenges by either side and carrying all the other benefits of a forceful diversion away from the judicial system, are obvious.
Although my research has essentially turned up nothing concerning any expressed legislative motivations driving s 176(2), as it was introduced into the PD Act by it then effectively 'privatising' an exercise in dispute resolution over questions of quantification and manner of payment of compensation sums as a matter of objective assessment. As I would objectively assess matters of underlying legislative intent, there was every reason to understand why a legislature would as a matter of policy discern a considerable attraction from a private dispute resolution process that would be confidential as to the results of quantification exercises for statutory compensation amounts. The desirability of a flexible, private regime that disputant parties would have to fund between themselves, would thereby provide inducement for them to achieve consensus. If they could not agree over the 'sum' then they would, in effect, as between themselves have to wear the cost of resolving that question. Thereafter, the result over the award 'sum' would be known only to them to thereby avoid any wider publication. The policy advantages therefore in a s 176(2) choice of such a private dispute resolution process towards quantification of compensation amounts remaining in dispute are evident.

Conclusion on nature of arbitration under s 176(2)

Consequently, I must reject the applicants' foundational contention to the effect that what took place here with the parties' chosen arbitrator was anything other than a private arbitration that was conducted under the CA Act and in unqualified fashion by reference to that Act. Correlative to that conclusion, I must also reject the submission by the applicants that the arbitrator did anything here other than resolve the very 'Dispute' (they themselves defined) that was contractually referred to him under s 176(2) and then requiring only that the valuation subtraction exercise, as mandated under s 179(1)(a) and (b), be applied. The concluding four paragraphs of the arbitrator's reasons as now seen display he did just that (see [43], [47] and [48] above).
I can turn then to render some further observations about the arbitral award itself and the incorporated reasons.

The arbitral award (with the incorporated reasons) of 2 July 2019

The arbitrator's award was delivered on 2 July 2019. It is attachment PWW2 to the affidavit of Mr Weeks sworn 31 January 2020. Page 1 of the award reads:
Award
1.For the reasons that follow I assess compensation for injurious affection as $0.
Thereafter, following pages 2 through 52 contain the arbitrator's detailed reasons culminating at the four concluding paragraphs [122] through [125] and that I earlier set out (arbitrator's reasons).
In amplification towards the context of the arbitrator's award and the reasons, I should observe that the arbitration hearing ran for 10 days during 2019, over 31 January, 1 February, 11 - 14 February, 13 - 14 May and 21 - 23 May 2019.
Given the unique character of the current applications, seeking to set aside or quash the arbitrator's award (which I assess includes his arbitrator's reasons), for a number of reasons I will take an unorthodox step of appending as Annexure B to my reasons the entirety of the arbitrator's award and reasons (in aggregate 52 pages).
There are several reasons for that course. First, as will be seen, various 'set aside' challenges directed against the award by reference to s 34(2)(b)(ii) of the CA Act, contend that the award was in conflict with the public policy of the State of Western Australia. Given that charge, it is necessary to see the entirety of the award, including the arbitrator's incorporated reasons across some 51 pages, in evaluating that policy contention.
Secondly, in multiple respects the arbitrator's award is sought to be challenged upon an expressed basis, that it is 'unreasonable, illogical and irrational'. To fairly evaluate a challenge of that nature, once again the entirety of the detailed reasons that were provided by the arbitrator to support the award need to be seen to provide full context for the evaluation.
Thirdly, some arguments raised in way of attempted challenges call into question some limited aspects of the arbitrator's reasons about them leading to the respondent, WAPC, raising in way of answer, the need for all of the reasons to be appreciated in their overall full context, rather than just being 'cherry-picked' as it responded. Consequently, during the oral arguments of respective senior counsel I was taken to virtually every paragraph of the 52 pages of the arbitrator's reasons. Therefore, very little within them can be safely ignored.

Fourthly, incorporating the arbitrator's reasons in full will provide a helpful reference point for me for the relevant provisions of the PD Act, particularly within Pt 11 which are found usefully discussed there (see particularly [18] to [22] of the arbitrator's reasons) to relieve me of repeating that exercise.
Fifth, both applications here were argued on the basis of the applicants, through senior counsel, proceeding on a basis that none of the very many facts as were found by the learned arbitrator, were now challenged (see ts 36 - 37). Hence, the essence of the present challenges were effectively distilled to four asserted key errors - as something of a suggested truncation to the scope of otherwise somewhat more complex formal grounds, raised either to set aside the award, or pursuing suggested judicial review, on the basis of alleged jurisdictional errors.
At the hearing in this court a key part of the error challenges were advanced on a basis of what was said to not be determined by the learned arbitrator's reasons, at least as I understood the submission (see ts 80 -81). Consequently it is necessary to first see the arbitrator's reasons and exactly what the learned arbitrator did address - in order to properly evaluate the omission grievances.
Hence, in the next phase of the reasons, I propose to attempt, as best I can, to summarise the distilled four key grounds of error challenge as relied upon by the applicants, conveyed through their senior counsel. As I understood senior counsel for the applicants' submission, these four key error challenges were being run under both s 34(2) of the CA Act but, alternatively, also as alleged jurisdictional errors to be redressed by certiorari. I should point out towards such latter relief as sought that certiorari, of course, is an ultimately discretionary remedy. The review aspect of the application was argued accordingly.
Likewise I would assess that for s 34(2) of the CA Act in terms of the capacity in the court, which may set aside an arbitral award, as also providing for what is a discretionary statutory intervention by the court, but only then in identified respects.
Consequently, given discretions under both applications, I admitted a late affidavit by one of the applicants, Mr Apolon Ivankovic sworn 31 January 2020, the last two paragraphs of which were substantively objected to by WAPC, on the basis of their asserted inadmissibility. At the end, however, I decided to admit all of that evidence, on a basis that it might theoretically become relevant to assessing any arising arguments directed to a grant of discretionary relief.
The next section of these reasons is directed at exposing the distilled four key grounds of challenge, as advanced by the applicants.

The applicants' contended four errors

As a matter of formality, I ought note that under the further amended originating summons to set aside the award by s 34(2) of the CA Act in ARB 6 of 2019, there were there identified four grounds of that application, numbered one through four respectively. Under CIV 2732 of 2019, seeking judicial review, there were two grounds raised under what was the further amended application for judicial review to support jurisdictional errors as contended.
As those two applications came to be argued at the hearing, it looked to be the case that all grounds in both applications had been distilled by senior counsel for the applicants to four contended key errors - as identified under the applicants' written outline of submissions of 16 March 2020 and filed in support of both applications (a document of 35 pages, appending a list of authorities which ran to 32 cases, excluding secondary materials). The same four contended aggregate errors were the subject matter of the applicants' written submissions by reply of some 18 pages - with an extra eight further cases relied upon.
The WAPC, as respondent, by its written submissions of 13 May 2020 (of some 20 pages and a list of 20 case authorities) responded seriatim against the suggested four key errors for which the applicants contended.
Verbal addresses by senior counsel for the applicants and senior counsel for the WAPC at the hearing both proceeded as well, on the basis of the applicants' distilled aggregate challenges (under both ARB 6 of 2019 to set aside and in CIV 2732 of 2019 asserting jurisdictional error) by reference to the same four as distilled errors.
Consequently, I inferred that the formal grounds of application seen in ARB 6 of 2019 and the two further grounds of application in CIV 2732 of 2019 may effectively be put to one side, so both applications would be evaluated by reference to a distilled essence of the applicants' case - namely, the four contended errors.
However, neither by the applicants' written submissions (in either tranche), nor verbally through senior counsel was that position ever made express. Ordinarily, that would not be a problem and the inference that the grounds of challenge had essentially been distilled to their essence would be an easy conclusion to draw by way of contrast to the formal grounds with the submissions. However, here the formal grounds of both applications are long, complex and, with respect, present as being drafted akin to the nature of Pandora's box.

By illustration: formal ground 1 in ARB 6 of 2019

As will be seen, I will eventually proceed upon the basis of evaluating the four distilled essential errors as contended for by the applicants. But before that, I need to illustrate what was a commencing problem, by exploring only one of the formal grounds of the further amended originating summons in ARB 6 of 2019. I do that only by reference only to its ground 1 as drafted.
First, there looks to be a chapeau applicable to all of the ensuing grounds, reading in the following terms:
This application relies on the Commercial Arbitration Act 2012 s 34(2)(a)(iii) and/or s 34(2)(a)(iv) and/or s 34(2)(b)(ii).
The grounds of this application are:
1....
I must highlight the unhelpfulness of that commencing chapeau. It, effectively, injects at the start a three-fold multiplier potentiality scenario in respect of the basis upon which the ensuing grounds of the application are to be viewed in reference to what are three quite distinct statutory provisions. I also note that under the applicants' written outline of submissions (first tranche of 16 March 2020, par 36(a) and (b)), there is a reference made only to s 34(2)(a)(iii) and s 34(2)(b)(ii). Consequently, I infer (as did the WAPC) that there was an abandonment, in effect, of my reliance upon s 34(2)(a)(iv) CA Act -although again, this was not ever said expressly. Section 34(2)(a)(iv) delivers potential for a setting aside of an award in circumstances where the 'arbitral procedure was not in accordance with the agreement of the parties'.
So, that earlier expressed area of challenge may, for present purposes, be put to one side. That leaves two remaining 'set aside' spheres by challenges grounded on s 34(2)(a)(iii), or on s 34(2)(b)(ii). These s 34(2) aspects of the CA Act are thus critical provisions from a 'set aside' of the award challenge perspective. Consequently, I will set out those relevant components below. Again, I do that accompanied by the local context of s 34(1) (the provision itself being a local implementation of Model Law Article 34).
Section 34(1) and (2) relevantly say:
(1)Recourse to the Court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3) or by an appeal under s 34A.
(2)An arbitral award may be set aside by the Court only if -
(a)the party making the application furnishes proof that -
(i)... ; or
(ii)...; or
(iii)the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
(iv)... or
(b)the Court finds that -
(i)...; or
(ii)the award is in conflict with the public policy of this State.
In passing it might also be observed that what is an obviously limited basis allowed under s 34(2) for recourse to a court for a purpose of setting aside an award is substantively mirrored in the text of the ensuing s 36(1), as regards a basis upon which a recognition or an enforcement of an arbitral award may be refused by a court: see s 36(1)(a)(iii) and (b)(ii). Like wording is demonstrably used across the two provisions. That is by design, assessed by reference to the Model Law, Articles 34 and 36.
Bearing in mind an expressed dual reliance by the applicants on their founding materials at the outset upon s 34(2)(a)(iii) and s 34(2)(b)(ii), some self evident pre-requisites present, which one might expect to be addressed by the formal grounds on which the award is sought to be set aside. Obvious inputs to be addressed would be, first, what is the dispute the award dealt with that falls outside the terms of the submission to arbitration, or falls outside of the scope of the submission to arbitration? Secondly, as regards s 34(2)(b)(ii), what is the actual public policy of the State of Western Australia that the award is said to be in conflict with?
With a search for those base level criteria in mind, I return to formal ground 1 of ARB 6 of 2019, presenting under the chapeau as already set out. It reads:
1.The award did not fall within the terms of the parties' submission to arbitration, and/or contain decisions on matters beyond the scope of submission to arbitration in that:
(a)the submission required the arbitrator to determine, pursuant to s 176(2) of the Planning and Development Act 2005 (Act) the amount of compensation to be paid by the Defendant to the Plaintiffs under s 179 of the Act (Compensation Amount) for injurious affection to the portion of the Plaintiffs' lands (Subject Land) reserved as Controlled Access Highway by Metropolitan Scheme Amendment 932/33 gazetted on 10 May 1994 (now described as a Primary Regional Road) (the Reserve);
[Interim observation: So far this would appear to be an attempted invocation of s 34(2)(a)(iii). And, so far, the subject matter of subpar (1)(a), looks essentially to be largely uncontroversial factual narrative.]
(b)the award, in determining the Compensation Amount, contained decisions, in effect, that, as at the date for assessing compensation, namely 4 December 2015 (Valuation Date) no compensation was payable because:
(i)absent the Freeway alignment on the Subject Land, the Freeway would have been a short distance west with precisely the same effect on the Subject Land; and
(ii)the Subject Land, absent the Reserve, would have served the purpose of a regional ecological link; and
...
[Still in ground 1, I pause to render a further interim observation. Subparagraph (1)(b) manifests an elliptical reference to 'contained decisions'. What decisions? It is true the award concluded at the end that no compensation was payable. However, over 50 pages of arbitrator's reasons were provided to support that conclusion, as I have explained. They are now in Annexure B to these reasons. As might be now seen from the content of Annexure B, a reference to the alignment of the Mitchell Freeway being a short distance to the west of the Subject Land was only a small component of those reasons. In any event, that is an unchallenged factual assessment reached by reference to evidence adduced in the arbitration. Specifically, that was evidence from traffic engineers, to be seen from the arbitrator's reasons at [101], referring there to a fourth option, as was identified by a Mr Kleidon, an expert called by the WAPC. See then [102] of the arbitrator's reasons and ensuing pars [103] and [104]. Consequently, there was an evidentiary platform for the arbitrator's eventual determination as seen. It was not some aberrant or idiosyncratic idea that emerged without regard to the evidence. See at [110]:
In my view, and I find, the likelihood is that, consistent with the constant approach of the planning authorities to maintaining rural zoning of the Subject Land, if the freeway had not been placed over the Subject Land, it would have been aligned a short distance to the west. The evidence is clear that that would have resulted in precisely the same approach to zoning of the subject land as was in fact taken.
At this point in the arbitrator's reasons, in reference to an evaluation of expert evidence given by rival traffic engineers, it may be seen the arbitrator was evaluating all that traffic engineer expert evidence for a purpose of a counter-factual value exercise, that was mandated by s 179(1)(b) of the PD Act, as regards assessing the unaffected value of the reserved land. Furthermore, if there was some error made in this respect as regards evaluating that evidence, it would not be, in any event, an error outside the terms of the parties' submission to arbitration, or upon a matter beyond the scope of the submission to arbitration. That is essentially obvious, since determining the 'dispute' over the compensation 'sum' as referred to the arbitrator under s 176(2) of the PD Act necessarily required that hypothetical value exercise to be conducted for the purpose of deriving an unaffected value. The way the case was conducted at arbitration, that task, in turn, necessarily required a determination to be reached upon the likely future zoning of the subject land, unaffected, including the reserved land, at a valuation date of 4 December 2015. All that is essentially obvious so far.]
Ground 1 had continued on:
(c)such decisions were beyond the scope of submission to arbitration in that:
(i)the terms of the arbitration agreement required the arbitrator to determine the Compensation amount in accordance with the laws of Western Australia; and
[Further interim comment: I have already referred to the express terms of the actual Arbitration Agreement that was entered between the arbitrator and the parties of 25 August 2018. But the reference in (c)(i) there appears a subterranean reference to what is a different alleged arbitration agreement, this being a s 1(6) CA Act grounded argument that the PD Act was the parties' arbitration agreement. I earlier discussed and rejected that argument of statutory construction. Were that argument accepted it, effectively, would open up a back door to a quasi appeal in a commercial arbitration conducted under the CA Act, on a basis of errors of law by alleged departures from the contended application of the statute.]
Ground 1(c) runs:
(ii)the decisions were not in accordance with the Act or the laws of Western Australia in that they were:
A.unsupported by and contrary to the evidence as to planning circumstances at the Valuation Date; and
B.inconsistent with proper ascertainment of the value of the Subject Land unaffected by the reservation for the purposes of s 179(1)(b) of the Act; and
C.unreasonable, illogical and irrational.
[I render a final interim observation on that formal ground 1. So seen, concluding aspects of ground 1(c)(ii) deliver a masterpiece of obscurity. Reference to 'unsupported by and contrary to evidence as to planning circumstances at the Valuation Date' (being 4 December 2015) lacks any substantive content - ie, to what planning circumstances. Worse, it betrays an underlying attempted re-agitation over the factual merits of what was determined before the arbitrator. Subground 1(c)(ii)(B) is tendentious and elliptical - ie, there was a value ascertainment, but not a proper ascertainment, for some unknowable reason(s). Reference to an adjectivally profligate 'unreasonable, illogical and irrational' is also presumably an attempted invocation of the public law concept of procedural fairness in the private arbitration. Effectively, this looks like adjectival camouflage to cloak a de facto merits review challenge made by facts challenge arguments which are completely impermissible under s 34(1) of the Act.]
It is not surprising then that the formal as filed grounds submitted under ARB 6 of 2019 and CIV 2732 of 2019 (as amended) did not feature within the written and verbal arguments of the applicants. As indicated, I infer that the as distilled arguments (still extensive) directed at four key contended errors had been arrived at in something of an evolutionary sense, by counsel.

The four as distilled challenges upon contended key errors

The first error of challenge

Even reduced to paper by the written submissions, the distilled grounds are still hard to grapple with.
The first error is the subject of pars 38 - 46, found in the first tranche of written submissions of the applicants. Those submissions culminate at par 46 (as corrected in the opening of senior counsel for the applicants - see ts 36), as follows:
In conclusion: The evidence as at Valuation Date was perfectly clear, and was actually found by the Arbitrator to be, that no ecological link was proposed for the Subject Property; it was instead mooted for Sports Ground use, which use did not imply a retention of the rural zone. Nevertheless, the Arbitrator found that the Subject Property as at Valuation Date would remain rural by reason of the ecological link, which the Arbitrator found was 'a planning imperative'.
[Referring to [74] of the arbitrator's reasons.]
The so-called first error looks, on its face, to be merely a factual merits error grievance. That assessment is confirmed by the description of this ground in opening by senior counsel for the applicants in the following terms at ts 38:
Well, the first error, your Honour, as I say, is that the valuation date has to be addressed on the facts and the law as they stand on 4 December 2015. And if on that day there is not an ecological link proposed, then it cannot be taken into account ...
As it came to be explained, the essence of this grievance is tied back to the 2015 draft planning framework. This is the document referred to at [70] - [72] above. The grievance challenge appears to concern 'Plan 8' of the 2015 draft planning framework. More specifically, it arises from six grey dots on Plan 8, found to the west of the Subject Land (east of a reference to Alkimos). For convenience, I attach Plan 8 as Annexure A to these reasons.
Plan 8 itself is not found expressly mentioned in the arbitrator's reasons. But from within the arbitrator's reasons at [93], there is the observed reference to this 2015 draft planning framework. The learned arbitrator advances there to consider its Plans 1 and 4 therein.
The arbitrator's assimilation of all that evidence at this section of the arbitrator's reasons presents under a heading 'Planning for Alkimos post 1994' (commencing at [83]). It culminates at [96], in the following terms:
The [S]ubject [L]and has retained its rural zoning both under the MRS and under the applicable local planning scheme at all relevant times. In the course of evidence, [a] number of other planning instruments were referred to. There is no doubt that the alignment of the Mitchell Freeway impacted upon the general planning for the area. On the other hand, there are no planning instruments predating 4 December 2015 which suggest anything other than rural zoning for the subject land. Beyond those general observations, it is not necessary to give any detailed analysis to those documents.
An analysis of the planning documents towards the planning history of the land had commenced at [40] of the arbitrator's reasons. It began with a discussion of the Stephenson/Hepburn Report - Plan for the Metropolitan Region Perth and Fremantle in 1955. As the arbitrator noted, that report was implemented in 1963 by the Metropolitan Region Town Planning Scheme Act 1959 (WA) - showing the Subject Land to be rural with Wanneroo Road as the major north-south connector road in the vicinity of the Subject Land.

.

78 The Claimants lodged a submission opposing the proposed reservation of the Subject Property. That submission was summarised in the SPC report on submissions published in April 1994³³. The response to the Claimants' submission was dealt with in large part in s 9.3 of the report on submissions. The report explained that the proposed open space link was intended to perform several functions including providing an ecological corridor between wetland systems, a connecting link between the Neerabup and Yanchep National Parks and Yallalonga Regional Park, and a green belt or buffer between urban development west of the Mitchell Freeway and possible future urban development in the very long‑term on the eastern side of Wanneroo Road. It identified a particular advantage of the proposed Parks and Recreation reservation in that location being that the Mitchell Freeway and Wanneroo Road form hard edges to the boundary of the reservation which would assist future management and fire control.

The report on submissions also recognised that land east of Wanneroo Road has higher intrinsic environmental attributes than the land between the Mitchell Freeway and Wanneroo Road. It noted that the option of extending the Parks and Recreation reservation on the eastern side of

³¹ Exhibit 2, Tab 6, letter EPA to SPC dated 9 September 1993

³² Exhibit 2, Tab 7, EPA submission on Amendment No 932/33
³³ Exhibit 2, Tab 8, SPC Report on Submissions, Vol 1 dated April 1994.

Wanneroo Road had been examined in the preparation of the 1992 Structure Plan. It noted, however, that more of the land east of Wanneroo Road is in private Ownership and is fragmented creating practical difficulties in assembling an equivalent Parks and Recreation link between Yanchep and Neerabup National Parks. It questioned whether the regional open space objectives could be adequately secured by retaining land in the rural zone, but noted that the objectives of the north‑south green link could be secured by retaining some of the land in the rural zone but with greenbelt and landscape values protected through special town planning scheme controls. In recommending a modification to the boundaries of the Parks and Recreation reserve where it provides a link between Neerabup and Yanchep National Parks, the SPC opined that the revised proposals would still maintain a green link between the Yanchep and Neerabup National Parks whilst providing protection to the more sensitive environmental areas. The modified boundaries were said, 'importantly' to substantially reduce the impact on private land and property.

Amendment 932/33 incorporating the changes recommended in the Report on Submissions was gazette in May 1994 and came into effect after being laid before Parliament on 17 August 1994. It rezoned large areas in the Alkimos-Eglinton area from Rural to Urban and Urban Deferred.
Consistently with the Report on Submissions, the Parks and Recreation reservation over the Subject Land was not pursued in the amendment and consequently the balance of the Subject Property remained zoned Rural. The alignment of the PRR reservation was retained however, and approximately 7.83 ha of the Subject Property in aggregate was reserved.

The claimants' primary case is that, had the freeway alignment not be placed on the subject land, then the land would have been zoned for an urban purpose in amendment 932/33. That proposition turns in large part on the contention that, because the subject land has no particular environmental attributes, the only reason that it was identified as providing a linkage was because of its position between the hard edge of urban development provided by the Mitchell Freeway alignment to its west and Wanneroo Road to the east. In my view, however, although the alignment of the Mitchell Freeway on the eastern edge of the proposed link area was seen as having certain advantages, I do not accept that the area was designated to provide a linkage simply because of the location of the freeway reserve.

Planning for Alkimos post 1994

In June 1995 the City released a Preliminary Draft Local Rural Strategy for public comment. The Preliminary Draft Strategy include the Subject Land and other lots west of Wanneroo Road in 'strategy area 2'. It referred to the deletion of the proposed Parks and Recreation reservation from Amendment 932/33 as a consequence a suggested that planning policies should be directed to maintaining the status quo in terms of land use, development and subdivision, and that there was a likelihood that protective zoning would be necessary for the area which contributes to an effective and diverse landscape linkage between the two national parks.
Mr Dykstra noted that the subject land has not subsequently been subjected to protective zoning, but simply retained its rural zoning under the current local planning scheme. He contended that that is a recognition of the fact that the subject land does not have exceptional

landscape qualities that require special protection.34 The environmental experts called by each party agreed that there are no exceptional landscape qualities on the subject land, and that proposition was not in issue in the proceedings. The preliminary draft rural strategy does, however, reflect a continuing objective of retaining the land in its rural state so as to provide a linkage between the two national parks.

In July 1995 the Alkimos Eglinton District Strategy Plan was produced in support of bringing the City of Wanneroo TPS 1 in 1ine with MRS Amendment 932/33.
In December 1995, the WAPC published the 'Metropolitan Rural Policy: a Policy Statement for Rural Land in the Perth Metropolitan Region'. Figure 8 of the policy identified the Subject Property as included in an area of 'Additional Regional Open Space Including Rural Landscape and Conservation Areas'. This is a further document consistent with the ongoing objective of retaining the subject land as rural.
A major review of the land development options for the area was undertaken in 1996 for the two major landowners, Eglinton Estates and LandCorp. The Alkimos-Eglinton Review Environmental Report was prepared by Alan Tingay & Associates in 1997 as part of this review. This review resulted in the preparation of a second DSP - the Alkimos-Eglinton District Structure Plan (DSP2) which proposed a number of significant changes to the location and areas set aside for major land uses. The Subject Land fell outside of the structure plan area.
In 2000, the City adopted an Interim Local Rural Strategy. Mr Foley explained that a draft local rural strategy had been advertised for public

34 Exhibit 22, Responsive Statement of Henry Dykstra pages 7 - 9

comment concurrently with the readvertising of a draft of DPS 2. In granting approval to readvertise a draft of DPS 2 in 1999, the Minister for Planning had required that modifications be first made, including that the proposed 'Rural' zones be replaced with 'Rural Resource' and 'General Rural' zones giving higher priority to the protection of agricultural and other resource uses in the city. This resulted in four rural type zones in draft DPS 2. The interim strategy includes the subject lots in Planning Policy Area 2. That area was to be shown as 'General Rural' on the Scheme map. Clause A5.15.2 required that the City develop appropriate mechanisms to facilitate the enhancement of the area's natural attributes in consultation with landowners and relevant agencies, and include consideration of conservation covenants, and landowner applications for rezoning to Special Rural or Rural Community (with possible opportunities for further subdivision), subject to detailed site analysis.

A complementary 'Subdivision of Rural Zoned Land Policy' was also adopted by the City at the time of the adoption of the Interim Strategy to apply to the General Rural and Rural Resources zones. The subdivision of rural land policy, provided for minimum lot sizes on subdivision. On Mr Foley's interpretation of the policy, the minimum lot sizes for any subdivision of the Subject Land would have been 20 ha. While that view was not challenged by Mr Dykstra, he observed that more intensive subdivision might be possible if the land were rezoned under both the MRS and DPS 2 following appropriate site-specific planning, environmental, land capability, engineering, servicing and other relevant studies. The interim local rural strategy demonstrates, however, that as at July 2000, the local planning authority, the City, continued to treat the subject land in accordance with its General Rural zoning. Mr Dykstra agreed that the idea of the document at the time was to keep the subject

area zoned in a way that permitted the enhancement of the natural attributes of the area³⁵. The 2000 Interim Local Rural Strategy remains the applicable local rural strategy for the City at the present time.³⁶

In August 2000 the WAPC initiated MRS Amendment 1029/33 to implement the important elements of DSP2. The amendment area was bounded by the Indian Ocean to the west and the Mitchell Freeway to the east and so did not deal with the Subject Land which remained zoned 'Rural'. The proposed MRS Amendment 1029/33 was referred to the EPA. The EPA resolved to formally assess the proposed Amendment. In November 2005, the EPA published Bulletin 1207 containing its report and recommendations in relation to Amendment 1029/33. The Bulletin does not deal directly with the subject land or any question of north-south linkages between the two national parks. It does deal with linkages between the coast and Yanchep National Park and Neerabup National Park, and in that context advises that the EPA considers a minimum width for regional ecological linkage as 300-500 m although it was prepared to countenance narrower linkages in isolated sections of the amendment area in recognition of their poor condition³⁷_. The question of the minimum width of linkages is relevant to hypothetical structure plans prepared by Mr Dykstra as indicative of possible alternative locations for linkages between the two national parks, a matter touched on later in these reasons.

³⁵ Transcript 13/2/2019 page 469

³⁶ Transcript 13/2/2019 page 470

³⁷ Exhibit 3, Tab 84 page 8448

Metroplan was succeeded by 'Network City' in 2004 which adopted the proposed alignment of the Mitchell Freeway as the eastern boundary to the NW Corridor.
In October 2014 the City published a pamphlet on Open Space requirements in the City of Wanneroo. It described a project of land acquisition in order to meet the active open space requirements for the growing population. It described the project aim as a securing sufficient land for active regional open space with key components including reservation of land for active regional open space in the MRS and acquisition of land by the State government. Reference was made to the indication in the Alkimos Eglinton District structure plan of a 50 ha site for future active regional open space being required to the east of the structure plan area.³⁸
In mid-2015 the WAPC published the Sub-Regional Planning Framework (Framework) for public submissions. The Framework document for the North West Corridor maintained the alignment adopted for the Mitchell Freeway. Plan 1 shows the Subject Land as 'Open Space'.³⁹ In relation to sport and recreation, the draft framework identified regional facilities including 'a site to the east of the Alkimos town centre between the Mitchell Freeway and Wanneroo Road of approximately 50 ha'. It specified that the preliminary the sites identified may require further investigation⁴⁰. Plan 4 appears to show an area including the subject land designated as 'open space-sport investigation'.

³⁸ Exhibit 1, Tab 18, p58

³⁹ Exhibit 3, Vol 6 Tab 67 p4871

⁴⁰ Exhibit 3, vol 6, Tab 67 p4884

Planning consultants for the Claimants (Creative Planning + Design) made a submission that the Subject Property be considered for higher order Urban or other uses complementing the Alkimos City Centre.41
The WAPC did not accept the submission on the Framework document made on behalf of the Claimants and issued the final Framework document in March 2018 showing the Subject Property as Open Space in Plan 1 (Planning Framework),42 and Open Space-Sport Investigation in Plan 4 (Community and Social Infrastructure).⁴³ In both their statement of issues facts and contentions and in their closing submissions, the Claimants submitted that the Framework document contemplated that the open space over the subject land would be achieved under a proposed Parks and Recreation reservation. Those submissions, were not cross-referenced to the evidence, and I have been unable to locate any proposed Parks and Recreation reservation over the subject land within the Framework document. The nature of the land usage does, however, suggests that a Parks and Recreation reservation would be the most effective way of achieving that use of the land. That is clearly what is contemplated by the earlier pamphlet issued by the city. Contrary to suggestions made by Mr Dykstra in his evidence on the second last day of hearing, I find no support in the document for the proposition that the subject land would be zoned urban or city centre on the basis that it would be dedicated for active recreation use by some sort land exchange or arrangement with other landowners in relation to public open space dedication.

⁴¹ Exhibit 1, Tab 20

⁴² Exhibit 3, Vol 6, Tab 74 p5317

⁴³ Exhibit 3, Vol 6, Tab 74 p5335

The subject land has retained its rural zoning both under the MRS and under the applicable local planning scheme at all relevant times. In the course of evidence, number of other planning instruments were referred to. There is no doubt that the alignment of the Mitchell Freeway impacted upon the general planning for the area. On the other hand, there are no planning instruments predating 4 December 2015 which suggest anything other than rural zoning for the subject land. Beyond those general observations, it is not necessary to give any detailed analysis to those documents.

General observations on the planners' evidence

A fundamental difference in the approach of each of Mr Foley and Mr Dykstra was as to the assumptions they made as to the impact of the freeway alignment on the general approach to planning of the Subject Property and the other rural lots immediately to the north and south of the Subject Property east of the freeway alignment. Mr Dykstra said that, setting aside the freeway, either removing it from its alignment or having it as a lower order road, would have meant that the question or how far urban development would have extended towards Wanneroo Road would have been explored. Because of his instruction to ignore the alignment of the freeway and the steps that led to that, he considered that planning instruments after 1994 were of relevance only in demonstrating what transpired about the idea of a link between the two national parks.⁴⁴ Mr Foley's approach, on the other hand, was that the planning approach to the subject land was not a consequence of the freeway alignment, but rather of the general planning objective of retaining the rural character of the land and providing a link between the two national parks.

⁴⁴ Transcript 13/2/2019 page 470 - 471

In my view, the analysis of the planning instruments I have set out above supports Mr Foley's opinion which I accept. The instruments demonstrate a consistent planning objective to maintain a non urban zoning of the Subject Property. The objective did not arise because of the decision to align the freeway on the Subject Property. Rather, the proposal to maintain a green linkage between the national parks may have influenced the decision to align the PRR reservation along the eastern side of the corridor so as to provide a convenient barrier between urban development and the proposed green linkage.

Traffic Engineers' evidence

As noted earlier in these reasons, the traffic experts called by each party, Mr Laybutt by the Claimants and Mr Kleidon by the respondent, gave consideration to the possible likely location of the freeway in the event that it had not been aligned through the Subject Property. That evidence was adduced to consider the hypothetical position of ignoring, for the purposes of valuation, the existence of the reservation on the subject land.
Mr Laybutt initially provided a report as to the traffic issues which would flow from the development of the subject land in accordance with a structure plan prepared by Mr Dykstra on the assumption that the subject land would have formed part of the Alkimos urban development. He compared the capacity of two alternative options to the current freeway alignment (Option 1). They were (Option 2) an alternative freeway alignment to the west in the centre of the NW corridor allowing urban

development of the subject land, and (Option 3) an alternative freeway alignment merging onto Wanneroo Road. It can be noted that Mr Laybutt's Option 2 was the first of the four options considered and not taken up in the 1977 Report. The third option considered in the 1977 Report, namely a freeway outside the corridor through the rural wedge, was not depicted diagrammatically in the 1977 Report, and its relationship to Wanneroo Road is unclear. It would seem, however, to have some similarity to Mr Laybutt's Option 3

Mr Kleidon identified a fourth option being (Option 4) realigning a short relevant section of the freeway 150 m to the west so as to leave the Subject Property unaffected by the PRR reserve.
Both experts agreed that Option 4 and the current Mitchell Freeway alignment are essentially the same for the purposes of assessing a preferred corridor for the freeway.⁴⁵
In a supplementary statement of evidence responding to Mr Kleidon's statement of evidence dated 5 December 2018. Mr Laybutt touched on Option 4 but said 'I have been instructed that this option will be objected to therefore I have not provided any comment on this aspect of Mr Kleidon's report'.⁴⁶ It is not clear what objection was being referred to, but in opening, counsel for the claimants said that Option 4 was 'a de facto form of public work'. He continued 'in other words, if you hadn't have put the freeway in that location, which is what we have to ignore, you would have been able to develop it. You can't then say, well, I will

⁴⁵ Exhibit 43, Joint memorandum (No2) of traffic experts [10]
⁴⁶ Exhibit 15, Supplementary Statement of Mr Laybutt dated 17 December 2018 [10]

move it just to the west – you don't ignore that – and that would have sterilised your land anyway. That is my submission'.⁴⁷

I do not accept that submission. It reflects an impermissible extension of the requirement to ignore the existence of the reservation. That requirement does not demand that matters that might influence planning decisions in the event that the freeway reservation had not been placed on the Subject Property must be disregarded if they may have had an adverse effect on the claimant's land similar to or the same as the effect of the reservation. The requirement is to ignore the existence of the reservation on the subject land. To the extent that that requires determination of how planning might otherwise have progressed in the locality, it calls for a hypothetical assessment of most likely planning outcomes having regard to the factors which actually influenced planning.
Mr Kleidon calculated that Option 3 would likely result in an additional 3 million vehicle km per year based on Mr Dykstra's structure plan showing the freeway being separated from the urban corridor at Alkimos Drive. He said that similar issues may result in other East-West roads, depending on the extent of the Mitchell Freeway remaining on the Wanneroo Road alignment.⁴⁸ Mr Laybutt agreed with that estimate.⁴⁹
It was also not in issue that option 3 would require the excision of an area of land in the Neerabup National Park. Mr Kleidon was of the view that planning authorities 'would not go there'. That was a view shared by Mr Foley. Mr Kleidon maintained that the loss of an area of National

⁴⁷ Transcript 11/2/2019 page 233.

⁴⁸ Exhibit 41 Responsive statement of Mr Kleidon [15]
⁴⁹ Exhibit 43, Joint Memorandum of traffic engineers dated 3 May 2019 [8]

Park would not have resulted in Option 3 being unacceptable. He noted that the existing alignment of the freeway required the excision of an area of Neerabup National Park, although the concerns of the environmental authorities were met by the addition of a greater area of land to the National Park to compensate for the area lost.

Although not expressly put this way by the Claimants, it would appear that the only basis upon which a decision may have been made to deviate the freeway alignment across the Neerabup National Park to align with Wanneroo Road would be in order to facilitate the urban development of the Subject Property. That assumes the planning authorities would have seen that as desirable and been prepared to trade off the disadvantages of aligning the freeway with Wanneroo Road for a short distance in order to gain the benefit of urbanising the Claimants' land. In my view, there is no basis to conclude on the evidence that such a desire existed or would have existed if the alignment of the freeway over the Subject Property had not occurred. To the contrary, as l have concluded above, there has been a historical consistent desire to retain the subject land and the lots to the north and south of it as either rural or as reserved for Parks and Recreation in order to provide a continuing link between the Neerabup National Park and Yanchep National Park.
Option 2 was clearly an option available to and considered by, planning authorities at the time of the 1977 Report. It was rejected for the reasons explained in the report. There is no reason to conclude that, if the freeway alignment did not traverse the subject land, the idea of a centrally located freeway would have prevailed.
There can be little doubt that, in order to cater for the urban development in the North West corridor, a primary regional road reservation was

necessary to service north-south traffic. That appears to be inherent in the position taken by both parties in these proceedings.

In my view, and I find, the likelihood is that, consistent with the constant approach of the planning authorities to maintaining rural zoning of the Subject Land, if the freeway had not been placed over the Subject Land, it would have been aligned a short distance to the west. The evidence is clear that that would have resulted in precisely the same approach to zoning of the subject land as was in fact taken.

The expert evidence on environmental issues

Each of the parties called an expert in relation to environmental matters. The claimants called Mr David Hick, an environmental consultant. The respondent called Mr Kim Taylor. Apart from completing two courses in relation to groundwater hydrogeology and hydrology, Mr Taylor's formal qualifications consist of a bachelor of engineering degree (including units in geology, hydrology and hydrogeology) but do not otherwise include any formal environmental studies. He has, however, had extensive experience in the office of the EPA. In various positions at the office of the EPA he has been involved in some 5000 planning schemes in the context of assessing the impact on the environment of rezonings or scheme amendments. He was also responsible for overseeing the development and application of environmental studies and policies approved and applied by the EPA between 1996 and 2017. He was at times responsible for assessing reports received from external fauna and ecology experts. This experience included reading and applying the Bush Forever policy. Although I accept that Mr Taylor's capacity to express opinions as to the particular ecological characteristics of particular sites is limited by his lack of formal qualifications in

environmental studies, I find that he is well qualified to express opinions at to the likely approach by the EPA if invited to assess particular planning and land use proposals.

Mr Hick also has experience in relation to the assessment process of planning and development applications by the EPA in the context of his representing proponents of development applications and is qualified to express opinions in relation to how a particular proposal might be approached by the EPA. I also accept Mr Hick was qualified to express a view as to the environmental values of particular sites given his formal qualifications and experience.
The evidence of the environmental experts occupied a substantial amount of time in the course of the hearing. Much of that evidence was directed to the question whether or not there was any justification for requiring the subject land for the provision of a linkage between the Neerabup National Park and the Yanchep National Park. That question involves consideration of the relative environmental merits of the subject land as against other land, both east of Wanneroo Road and west of the subject land and whether those locations might have better served the purpose of providing an ecological link having regard to their environmental values.
The relevance of all the evidence turned upon the proposition that, absent the PRR reservation over the subject land, the planning authorities and the EPA would have taken a significantly different approach from that which they did in relation to the question of the provision of a link between the two national parks. Implicit in that proposition is that the freeway would have been located either on the alignment of Wanneroo Road, or through the central spine of the North West corridor, or perhaps alternative road system not involving a freeway would have been

developed. I have expressed above my conclusion that, in order to facilitate the urban development in the North West corridor, a primary regional road would have been required, and were it not to pass through the subject land, would most likely have been a short distance to the west of the Subject Land. It was effectively conceded by the claimants that, were that to have occurred, the planning consequences flowing from the location of the road would have been precisely the same as the consequences of the freeway being placed over the reserved land. There is no reason to conclude that the approach of planning authorities would have been any different in that event. To that extent, is not to the point to consider whether some alternative approach should have been taken by the relevant authorities to that which, as a matter of fact, they have actually taken.

It was accepted by both environmental experts that the subject land did not have significant on-site biodiversity values, and given the use to which the land has been put and that only a relatively small portion retains remnant vegetation, the environmental values of the land, would not significantly affect or impair its development potential.⁵⁰ Where the environmental experts differed was as to the environmental importance of the subject land arising from its capacity to provide a linkage between the two national parks. Mr Taylor considered that the connection between the national parks was, and would have been treated by the EPA as, regionally significant.⁵¹ Mr Hick considered that the absence of vegetation and the rural use of the land would result in the land not only

⁵⁰ Exhibit 6, Joint Statement of Environmental Experts p1.

⁵¹ Transcript 31/1/2019 p22

failing to provide fauna habitat , but also failing to provide a passage or encourage for fauna movement through the site.⁵²

In 2000, the government adopted Bush Forever which was a strategic plan for the conservation of bushland on the Swan Coastal Plain. It was a 10 year strategic plan to protect some 51,200 ha of regionally significant bushland in 287 Bush Forever sites. Despite being expressed as a 10 year plan, Mr Taylor said⁵³, and I accept, that Bush Forever remains the primary conservation policy and strategy for bush management in the Perth region and is a document to which the EPA has high regard. The Subject Property is not part of a Bush Forever site, but the national parks to its north and south are.
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:
Background
The 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.

⁵² Transcript 31/1/2019 p23
⁵³ Transcript 31/1/2019, p43

After referring to map 7, the section identified one of three categories of linkages being:
(iii)regionally significant potential bushland/wetland linkage
·potentially regionally significant bushland/wetland linkages being those regional scale links that follow existing features or bridge gaps between existing regionally significant areas of bushland/wetland. As stated, these linkages could potentially form links and with some management and/or revegetation could be restored.

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

accepted a snip 200 m wide along the eastern edge of the Subject Property leaving the Reserved Land free for urban development. Mr Dykstra prepared a structure plan that reflected that approach (which showed the Option 2 freeway alignment).54

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.
Central to the Claimants' case is the proposition that the historical planning for the area which preserved the rural zoning of the subject land

⁵⁴ Exhibit 44, Supplementary Statement Dykstra Appendix D.

⁵⁵ See [77] above

and contemplated its functioning as an ecological link between the national parks was a direct result of the decision to locate the PRR reservation on 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 reservation over the Subject Land did not exist, the treatment of the land by relevant planning authorities would have maintained its zoning as rural.

As observed above, Mr Hick proffered a suggestion that, if contrary to his opinion, the Subject Property was required for a linkage between the national parks, a 200 m 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 m. 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 immediate urban potential as at that date.
Valuation evidence

As I indicated at the outset of these reasons, the valuer's called by both parties reached agreement following conferral that if the land should be treated as a rural land when the existence of the reservation is ignored, then there is no difference between its value ignoring the reservation and its value as rural subject to the reservation. That was a matter expressly confirmed by counsel for the claimants during the course of the hearing.
In light of the conclusions which I have reached, the consequence is that there is no difference between the value of the land as affected by the reservation and its value as not so affected. The Claimants are therefore not entitled to any payment for compensation for injurious affection.

John A Chaney SC

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin
6 NOVEMBER 2020