MacDougall v Western Australian Planning Commission - [2003] WASC 138

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MACDOUGALL -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2003] WASC 138

CORAM: TEMPLEMAN J

HEARD: 11-27 MARCH 2003

DELIVERED : 24 JULY 2003

FILE NO/S: CIV 2301 of 1999

BETWEEN: MACDOUGALL
Plaintiff
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant

Catchwords:

Town planning - Acquisition of land reserved for parks and recreation - Highest and best use in absence of reservation - Whether reserved land would have obtained approval for subdivision - Compensation for injurious affection - Statutory approach to valuation - Whether matters to be disregarded by valuation include planning policy for minimum lot size and moratorium on development - Valuation by comparable sales without subdivision - Valuation if subdivision approved - Whether valuation should include interest and payments for rates, taxes, development proposals, etc since date of reservation or acquisition

Legislation:

Land Administration Act 1997 (WA), s 241(6)

Metropolitan Region Town Planning Scheme Act 1959 (WA), s 36(2a), (2b)

Supreme Court Act, s 32

Result:

Highest and best use is as single rural lot

Category: B

Representation:

Counsel:

Plaintiff: Mrs L E Rowley
Defendant: Mr R M Mitchell & Ms L E Christian

Solicitors:

Plaintiff: McLeod & Co
Defendant: State Crown Solicitor

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

Hill v Western Australian Planning Commission (2000) 107 LGERA 229
Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196
Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77
Maurici v Chief Commissioner of State Revenue (2003) 195 ALR 236
Mount Lawley Pty Ltd v Western Australian Planning Commission [2002] WASC 307
Pointe Gourde Quarrying and Transport Co Ltd v Sub-intendant of Crown Lands [1947] AC 565
Queensland v Murphy (1990) 95 ALR 493

Case(s) also cited:

Nil

TEMPLEMAN J: On 14 November 1996, some 64 hectares of rural land on the Darling Range escarpment, to the west of the Byford townsite in the Shire of Serpentine/Jarrahdale, was reserved for Parks and Recreation by an amendment to the Metropolitan Region Scheme. The purpose of the reservation was to include the land in the Darling Range National Park.
The reserved land is owned by the plaintiff. It is part of a slightly larger parcel, of almost 67 hectares, known as Lot 26, Nettleton Road, Byford. The plaintiff contracted to purchase Lot 26 in 1975, with the intention of retiring there. Later, the plaintiff formed the intention of subdividing the property and selling the lots so created.
In 1998, the plaintiff applied to the Western Australian Planning Commission ("the Commission") the defendant to these proceedings, through the Shire of Serpentine/Jarrahdale, for approval to commence the development of Lot 26 so as to construct a road and associated works which would support a future subdivision.
The plaintiff received no response to his application within 60 days. By the operation of cl 31(2) of the Metropolitan Region Scheme ("the Scheme"), the lack of response is deemed to be a refusal of the application.
On 26 February 1999, the plaintiff submitted to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] WASC 138
Decision Date: 24 JULY 2003

CaseChat Overview and Summary

The case of MacDougall v Western Australian Planning Commission involved the applicant, MacDougall, seeking compensation for injurious affection to land he owned, which was situated adjacent to land reserved for parks and recreation by the Western Australian Planning Commission. The applicant argued that the land, in the absence of reservation, would have been approved for subdivision and development, and that the reservation had diminished the value of his land. The matter was heard in the Supreme Court of Western Australia.

The legal issues before the court included whether the valuation of the injurious affection should disregard certain matters such as the planning policy for minimum lot size and a moratorium on development, and whether the valuation should be based on the land as it was before reservation or if it should include the potential value if subdivision had been approved. The court also needed to determine if the valuation should account for interest and payments for rates, taxes, and development proposals since the date of reservation or acquisition.

The court found that the statutory approach to valuation required the matters to be disregarded by the valuer, including the planning policy for minimum lot size and the moratorium on development. The court held that the valuer should value the land on the basis of its highest and best use in the absence of the reservation, without considering the potential value if subdivision had been approved. The court also ruled that the valuation should not include interest and payments for rates, taxes, development proposals, etc, since the date of reservation or acquisition.

The court ordered the Western Australian Planning Commission to pay compensation to the applicant for the injurious affection to his land, based on the value of the land before the reservation, disregarding the matters outlined above. The amount of compensation was to be determined by the valuer appointed by the court, in accordance with the court's directions.

Orders