Mercer v Western Australian Planning Commission - [2008] WASC 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MERCER -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASC 124

CORAM: JENKINS J

HEARD: 12 - 23, 29 & 30 NOVEMBER 2007, 3, 12 & 13 DECEMBER 2007, 20 FEBRUARY 2008

DELIVERED : 30 JUNE 2008

FILE NO/S: CIV 2597 of 2004

BETWEEN: ROBERT WILLIAM MERCER
RICHARD TAUNTON SAUNDERS
First Plaintiffs
MICHELLE JONNINE McALLISTER & CRAIG DOUGLAS McALLISTER as Executors of MABEL JOYCE PALMER
Second Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant

Catchwords:

Resumption or acquisition of land - Compensation - Valuation of land - Valuation methodology

Legislation:

Heritage of Western Australia Act 1990 (WA), s 11
Land Administration Act 1997 (WA), s 177, s 202, s 211, s 220, s 241, s 244, s 248
Metropolitan Region Town Planning Scheme Act 1959 (WA), s 37A
Railway (Jandakot to Perth) Act 2002 (WA)
Supreme Court Act 1935 (WA), s 142

Result:

Compensation awarded in the sum of $2,264,625 plus interest

Category: B

Representation:

Counsel:

First Plaintiffs               :     Ms L E Rowley
Second Plaintiffs           :     Ms L E Rowley
Defendant:     Mr B J King & Ms D E Quinlan

Solicitors:

First Plaintiffs               :     Deacons
Second Plaintiffs           :     Deacons
Defendant:     State Solicitor for Western Australia

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

Arcus Shopfitters Pty Ltd v Western Australian Planning Commission [2002] WASC 174
Brewarrana Pty Ltd v Commissioner of Highways (1973) 6 SASR 541
Bronzel v State Planning Authority (1979) 21 SASR 513
Clifford v Shire of Busselton [2007] WASAT 89
Duffy v The Minister for Planning [2003] WASCA 294
Kenny & Good v MGICA (1999) 199 CLR 413
Mt Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Palmer v McAllister (1991) 4 WAR 206
Spencer v The Commonwealth of Australia (1907) 5 CLR 418
The Commonwealth of Australia v Arklay (1952) 87 CLR 159
Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295

TABLE OF CONTENTS

Introduction

Issues
Detailed description of the subject land and adjoining land
The Public Work
Heritage considerations
Town planning
Highest and best use

Valuation
Mr Terrence Dix
The approach to the remaining valuation evidence
Mr Duncan Cameron
Mr Graham Kennedy
Mr Keith Wilson
Conclusions as to value of the subject land
Acquisition costs in respect of a replacement property

Solatium

Interest

Conclusion

JENKINS J:

Introduction

This is an application, pursuant to the Land Administration Act 1997 (WA) (LA Act), s 202 and s 220, for compensation for the plaintiffs' interest in certain land taken under the LA Act, pt 9 on 5 September 2003 (the date of taking).
The land which is the subject of this application was comprised of two adjoining parcels of land. The first parcel was lot 7 on deposited plan 26511 and being the whole of the land contained in certificate of title vol 1228 folio 191. The parcel was 395 sqm and a building, known as the Commercial Building, was constructed on it. The Commercial Building was demolished on or about 4 October 2004 in…

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: [2008] WASC 124
Decision Date: 30 JUNE 2008

CaseChat Overview and Summary

The matter involved the applicant, Mercer, who sought compensation for land that had been resumed by the Western Australian Planning Commission. The parties contested the valuation of the land and the appropriate methodology for determining its value. The case was heard in the Supreme Court of Western Australia.

The central legal issues before the court were the correct valuation of the resumed land and the appropriate methodology to be applied in determining this valuation. Mercer argued for a higher valuation, while the Commission contended that the valuation provided by their expert witness was accurate. The court had to consider the evidence presented by both parties and determine the appropriate compensation for the resumption of the land.

In delivering the judgment, the court held that the valuation provided by Mercer's expert witness was more reliable and accurate than that provided by the Commission's expert. The court found that the Commission's expert had not taken into account certain relevant factors, such as the potential for future development of the land, in their valuation. The court also found that the Commission's expert had placed undue weight on certain evidence that was not relevant to the valuation of the land. Based on this reasoning, the court awarded compensation of $2,264,625 plus interest, in favour of Mercer.

The final orders of the court were that compensation in the sum of $2,264,625 plus interest be paid to Mercer by the Western Australian Planning Commission.

Orders

Orders of the court

Compensation awarded in the sum of $2,264,625 plus interest

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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