Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] - [2008] WASCA 158

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MOUNT LAWLEY PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [No 3] [2008] WASCA 158

CORAM: STEYTLER P
McLURE JA
BUSS JA

HEARD: 17 MARCH 2008

DELIVERED : 28 JULY 2008

FILE NO/S: CACV 64 of 2006

BETWEEN: MOUNT LAWLEY PTY LTD
Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TEMPLEMAN J
Citation  :MOUNT LAWLEY PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASC 82
File No  :CIV 1550 of 1997

Catchwords:

Appeal - Practice and procedure - Judgment of trial judge set aside - Factual issues - Power of Court of Appeal to finally dispose of matter

Appeal - Town planning - Expert evidence - Valuation of land - Likely opinion a prudent purchaser would have formed concerning potential for upzoning of land - Evidence to be preferred in assessment of value of land - Determination of value

Legislation:

Metropolitan Region Town Planning Scheme Act 1959 (WA), s 36(2b)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25
Supreme Court Act 1935 (WA), s 59

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B W Walker QC & Dr J T Schoombee & Ms V M G Castiglioni
Respondent: Mr K M Pettit SC & Ms D E Quinlan

Solicitors:

Appellant: Ilberys Lawyers
Respondent: State Solicitor for Western Australia

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

Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499
Mount Lawley Pty Ltd v Western Australian Planning Commission [2008] WASCA 1
Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 235 LGERA 98
Spencer v The Commonwealth of Australia (1907) 5 CLR 418
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

JUDGMENT OF THE COURT: In these reasons, we deal with matters that were left over for further argument following the delivery of our reasons in Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499 (primary reasons). These reasons must be read together with the primary reasons and, to the extent that they are relevant, our reasons in Mount Lawley Pty Ltd v Western Australian Planning Commission [2008] WASCA 1. Definitions used in those reasons are applicable in these.
In our primary reasons we have explained how, in the re‑trial of these proceedings, the trial judge arrived at his valuation of the Mount Lawley land pursuant to s 36(2b) of the Metropolitan Region Town Planning Scheme Act 1959 (WA) (Scheme Act). He valued the land (resumed under the Scheme Act) at $4 million. We concluded that, in the course of doing so, he made a number of errors, summarised in [398(6) ‑ (10), (12) and (13)] of our primary reasons.
It is common cause between the parties that, having regard for this court's conclusions in the primary reasons, the trial judge's findings as regards the value of the land for the purposes of s 36(2b) of the Scheme Act were infected by the errors made by him. However, there is nothing in this court's reasoning that would necessarily have the consequence that the value arrived at by the trial judge was too high or too low. Consequently the question what, if any, was the consequence of those errors as regards the valuation of the Mount Lawley land remains to be considered.

The extant grounds

The grounds of appeal, cross‑appeal and contention that remain to be dealt with are ground 10, part of ground 11, ground 13 and part of ground 17 of the grounds of appeal; grounds 1 and 2(b) and (c) of the respondent's notice of contention in the appeal; grounds 2 and 3 of the cross‑appeal; and ground 5 of the appellant's/cross‑respondent's notice of contention in the respondent's cross‑appeal.
Ground 10 of the grounds of appeal contends that the trial judge erred in finding that the suitability for development of 175 hectares of dry land forming part of the Mount Lawley land was subject to matters which amounted to a considerable qualification. The appellant contends that he should have found that this dry land area should be valued as land with full urban development potential, subject to no, or very limited, qualification.
Ground 11 relevantly contends that the appellant's valuers, Messrs Logan, Rae and Zucal, correctly determined what was the highest and best use of the Mount Lawley land and that their evidence was cogent, with the consequence that the trial judge should have attributed at least the following values to the subject land:
(a)175 hectares of dry land suitable for urban development: $50,000 per hectare;
(b)75 hectares of wetlands, valued as rural, at $10,000 per hectare; and
(c)50 hectares of buffers around the wetlands with limited development potential, at $10,000 to $30,000 per hectare.
Ground 13 contends that the trial judge erred in holding that, at the valuation date, the hypothetical purchaser would only have been cautiously optimistic that there was potential for development of part of the Mount Lawley land in conjunction with neighbouring land owners at some indeterminate time which might be well into the future.
Ground 17 of the grounds of appeal contends, so far as it remains extant, that the trial judge erred in holding that Mr Wilson's valuation of the Mount Lawley land (prepared on behalf of the respondent) was correct. Mr Wilson valued the land at $4 million. The appellant contends that the trial judge should have arrived at a value calculated in accordance with ground 11, upon the basis that the land was unsuited for rural use and its highest and best use was urban development.
Grounds 1 and 2(b) and (c) of the respondent's notice of contention read as follows:
1.The trial judge's finding at [624] [that the suitability of the land for development was subject to a considerable qualification] should be upheld on the additional/alternative bases:
(a)the consistency of earlier reviews of the land's environmental value;
(b)the unusual number of floristic community types on the land;
(c)the width of buffers should be 100 m to ensure sustainability; and
(d)the existence on the land of vegetation at the extremes of habitats.
2.The trial judge's finding at [690] [valuing the land at $4 million] should be upheld on the additional/alternative bases [that]:
…
(b)his Honour should have allowed that a fauna corridor would have reduced the land he regarded as having some prospect of development;
(c)his Honour should have found that [there was] a substantial risk that the buffer would have been 100 m, alternatively wider than 50 m.
Ground 2 of the cross‑appeal contends that the trial judge erred in adopting rates of $10,000 per hectare applied by Mr Wilson to wetlands and a buffer zone, when those rates were incorrect. They are said to be incorrect because they were founded on assumptions inconsistent with the trial judge's findings that there was no urban potential for the wetlands or for the buffer zone. The respondent contends that the rate which reflected the absence of urban potential was the rural rate identified by Mr Wilson which, in effect, was one of $6,645 per hectare. The respondent also contends that the rates applied by Mr Wilson incorrectly assumed that there was a 'market for [the sale of] wetlands to government'. It contends that, if the trial judge had applied the rate of $6,645 per hectare to the area of the wetlands and buffer, he would have determined that the value of the Mount Lawley land was $3,462,270.
Ground 3 of the cross‑appeal challenges the trial judge's finding that, had any development of the Mount Lawley land been permitted, the buffer zone would have been 50 metres wide. The respondent contends that he should have assessed the risk that the buffer zone around the wetlands would include an area between 50 metres and 100 metres from the wetland margin and that he should have reflected that risk in a value less than $3,462,270, or alternatively less than $4 million.
Contention 5 of the cross‑respondent's notice of contention in the cross‑appeal contends that the trial judge's findings concerning the buffer zone should be upheld on the additional/alternative bases that it is supported by other evidence than that referred to by him, being identified extracts from the evidence given by four witnesses, Dr Paul Van der Moezel, Dr Alan Tingay, Mr Martin Bowman and Mr Garry Middle.

The orders sought by the parties

The orders sought by the appellant are that the appeal be upheld and that the valuation and costs orders of the trial judge be set aside; that the cross‑appeal be dismissed; that the respondent pay the costs of the appeal, the cross‑appeal and all notices of contention, with liberty to apply for special costs orders if these cannot be agreed; and, if the value of the Mount Lawley land is to be determined by this court, that the value should be fixed at between $10.05 million and $11.05 million.
The respondent has not set out the orders sought by it. However, it is plain that it seeks orders valuing the land at an amount less than, or not more than, that arrived at by the trial judge. It also seeks orders allowing grounds 2 and 3 of the cross‑appeal and dismissing the cross‑respondent's notice of contention. It would, no doubt, also seek consequential costs orders.

Can this court finally dispose of the matter?

This court raised with the parties the question whether it is open to it to deal with the remaining matters, particularly the issue of the valuation of the Mount Lawley land, or whether it was required to return the matter to the trial judge or to direct a re‑trial. That question raises issues of the kind discussed in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
In its written submissions, the appellant left the issue open. However, in his oral submissions, senior counsel for the appellant said that the parties had combined in saying that this court 'can, and on one view should, determine for itself on the papers' what, if any, change should be made to the value fixed by the trial judge (ts 303).
In its written submissions, the respondent contended that no re‑trial is necessary and that this court might determine a value on the evidence 'now admitted' (presumably intended to be a reference to the whole of the admissible evidence, as this court has determined it to be). That submission was confirmed, and elaborated upon, in oral submissions (ts 335 ‑ 341).
Given the consensus of the parties that this court is able itself to determine the value of the Mount Lawley land, and what we understand to be the further consensus that it should do so (a view expressed strongly on behalf of the respondent but, it must be said, only in luke‑warm terms on behalf of the appellant), we have determined that we should do so.
The parties acknowledge that we have the power to do so under s 59 of the Supreme Court Act 1935 (WA) (Act). This court is given wide powers under that section and under the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules). Under s 59(1) of the Act it may order a new trial or reference, or vary or set aside the verdict or reduce the damages awarded. Section 59(4) provides that the Court of Appeal may, if satisfied that it has all the materials necessary for formally determining the questions in dispute, or any of them, or for awarding any remedy or relief sought, give judgment accordingly. For that purpose, it has all of the powers and duties of the Supreme Court. Rule 25 of the Rules provides that the appeal is by way of rehearing unless another written law provides otherwise.
The relevant principles have recently been set out by Buss JA (with whom Steytler P and, relevantly, Pullin JA agreed) in Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460, [66] ‑ [67] as follows:
The requirements and limitations of a rehearing of the kind which occurs before this Court were described by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1 at [16] – [17]. His Honour said:
The form of rehearing so provided 'shapes the requirements, and limitations, of such an appeal'. The relevant 'requirements' are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing ... inferences and conclusions'.
The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole.
It is necessary to distinguish between the reasoning of a trial Judge which is based on a credibility determination on the one hand, and the reasoning of a trial Judge which is based on inferences drawn from facts that were undisputed or found by the trial Judge on the other. See Fox v Percy at 146 [88]. As Kirby J observed in CSR at [21] – [22]:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'.
Similarly, in Fox [22] ‑ [23], Gleeson CJ, Gummow and Kirby JJ pointed out that:
The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits …
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance': Dearman v Dearman (1908) 7 CLR 549 at 561 … . On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
See also Della Maddalena [16] ‑ [23] (Kirby J, Gleeson CJ concurring); Lackovic [65].
A principal purpose of providing for an appeal by way of rehearing is to ensure, within the appellate process, finality of litigation, correctly decided: Fox [44] (Gleeson CJ, Gummow & Kirby JJ). In the present case, neither party suggests that there is any issue of credit to be resolved or any other obstacle that should prevent us from dealing with the remaining issues. In the circumstances, and given the difficult history of the matter (recounted in [9] of our primary reasons), it would be a disservice to the parties if we were not to take on that responsibility.

The task to be undertaken

As we have explained (primary reasons [398(8)]), the valuation is to be approached upon the assumption that the Mount Lawley land would have been zoned rural at the valuation date and that the upzoning of the Ellenbrook land and the reservation of the Mount Lawley land had to be ignored. Our task is consequently that of determining what, if any, premium the hypothetical purchaser of the Mount Lawley land would, as at the valuation date, be prepared to pay over and above its rural value in order to reflect its urban development potential. In undertaking that task it is necessary for us to have regard to findings of the trial judge that are not challenged and to the whole of the admissible evidence with respect to the remaining issues.
We have said that it is also necessary for us, when undertaking that task, to ignore not only the effect on value of Amendments 879/33 and 950/33 (the Scheme) as at the valuation date but also that of any 'steps' in the Scheme of the kind identified in the primary reasons, the nature of which is relevantly summarised in [398(4)] of those reasons.
It is accepted that the market value of the Mount Lawley land must be determined by applying the principle derived from the decision of the High Court in Spencer v The Commonwealth of Australia (1907) 5 CLR 418. That is to say, the value to be determined is the price 'which would be paid by a man desiring to purchase the land to a vendor willing to sell for a fair price but not desirous to sell' (Griffith CJ, 432). The hypothetical purchaser should be regarded as prudent and both parties must be regarded as being perfectly acquainted with the land and cognisant of all the circumstances which might affect its value, either advantageously or prejudicially (Isaacs J, 440 ‑ 441). (See also Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 [49]; Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209 [274]; Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413 [49], [50] and Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 235 LGERA 98 [489], where Ipp JA (Giles JA concurring) described the effect of these authorities as being that the hypothetical seller and purchaser are 'to be assumed … to be aware of all information relevant to the market price, about which a prudent purchaser would inquire'.)

It is consequently necessary to consider the oral evidence led, and the documents tendered at the trial (to the extent that they could be taken into account for this purpose) concerning the environmental attributes of the land, its location, the likely direction of the push for urbanisation and the physical characteristics of the land that rendered it suitable for development ([228] of our primary reasons).
We are assisted in our task, to some degree, by two critical facts that are common ground. The first is that 75 hectares of the Mount Lawley land comprised wetlands that could not be developed. The second is that, if development was to be permitted on the Mount Lawley land, a buffer zone of undeveloped land would be required to protect the wetlands. The appellant contends that this buffer zone should be an area of 50 hectares. The respondent contends that it should be a larger area, if any development was to be permitted at all. It follows that the remaining area of about 175 hectares of dry land, or less on the respondent's contention, was all that could have been developed.
We have pointed out ([398(4)] of our primary reasons) that the effect on value of the characteristics or the location of the land, or other factors affecting the land (such as population pressures), which always had the capacity to enhance, or reduce, its prospects of development, and hence its value, are not to be disregarded merely because they led, ultimately, to the Scheme. The same is true of inherent characteristics of, or other factors affecting, land that is adjacent to the subject land, so far as those characteristics or factors are capable, independently of the Scheme (and its steps), of affecting the development potential, and hence the value, of the subject land.

What the evidence reveals

Uncontested findings

It is important to start with the uncontested findings in the re‑trial reasons. The most important of these, for present purposes, are expressed in [624] of the re‑trial reasons (quoted in [84] of our primary reasons). That paragraph reads as follows:
In my view, it may be assumed that the hypothetical prospective purchaser of the reserved Mount Lawley land in May 1996 would have made enquiries which established the following facts:
(1)Some 75 ha of the land constituted wetlands which were protected under the Lakes EPP.
(2)It could be argued that the boundaries of the wetlands on plan 1815 had been mapped inaccurately in 1991, or had changed subsequently due to changes in the level of the water table. However, there would be little prospect of persuading the EPA to amend the Lakes EPP.
(3)Although the Lakes EPP did not prohibit development of wetlands, there was a presumption against it: and the EPA was likely to oppose development in this case, having regard to its view that the Lexia wetlands generally were of high conservation value. The EPA's view was arguable, but it was justifiable on the evidence: in particular, the unique combination on the Swan Coastal Plain of the size and pristine quality of the wetlands and their proximity to each other.
(4)The upland areas surrounding the wetland basins were well suited for urban development, being elevated and well drained.
(5)The vegetation on the upland areas was banksia woodland in very good condition.
(6)Large areas of woodland of that kind, containing the Heddle vegetation complexes to be found on the reserved Mount Lawley land were present in secure reserves elsewhere, but not in association with such a substantial group of wetlands in such pristine condition.
(7)There were no priority flora on the Mount Lawley land.
(8)The wetland areas provided a habitat for the Southern Brown Bandicoot, which was a protected species. This would not preclude development, but it would be necessary in any development to ensure that the habitat was preserved, and adequate corridors provided, to ensure free movement of the Bandicoots.
(9)It would be a requirement of any development that vegetation buffers be provided round the wetlands. Although the width of the buffers might be a matter for negotiation, the EPA's usual practice was to require the minimum width of 50 metres when wetlands were included in an urban development. This would involve some 50 ha of land.
(10)Other agencies ‑ and CALM in particular ‑ were more conservation inclined than the EPA, but only the EPA was empowered to prevent development, or to impose onerous conditions.
(11)Before any development could proceed, it would be necessary for a full environmental assessment to be carried out. This would enable all interested authorities, organisations and individuals to make submissions, which the EPA would take into account in considering its attitude to development.
(12)Subject to these matters (which amounted to a considerable qualification), some 195 ha of the Mount Lawley land would be suitable for development.
As we have previously pointed out, subject to two reservations, none of what is said in sub-par (1) to (11) is challenged. The first reservation is that it is common cause that the reference to 195 hectares of the Mount Lawley land should be one to 175 hectares of that land. It is consequently common ground that there were 175 hectares of dry land that was suitable for development (if looked at in isolation). As we have said, it is also common ground that 75 hectares of wetlands could not be used for development and that there would have to be a buffer zone of at least 50 hectares (with any greater amount having to be drawn from the 175 hectares of dry land that were otherwise suitable for development). The second reservation is that, as we have also said, the appellant contends that the trial judge was wrong, at the very least when regard is had to the whole of the evidence now found to have been admissible, to suggest that the matters raised in sub‑paras (1) to (11) amounted to a considerable qualification.

Evidence wrongly excluded

Next, although we have dealt with this in some detail in our primary reasons, it is convenient to mention, briefly, the principal items of evidence that were wrongly found to have been inadmissible in the re‑trial.
We have said ([132] of our primary reasons) that the trial judge disregarded, for the reasons given by him in [631] of his reasons, the evidence of Mr Raymond Stokes concerning the likely rezoning of the Mount Lawley land and also that given by Mr Peter Goff, Mr Timothy Auret, Mr James Singleton and Mr David Smith [632]. He also wrongly ruled out the whole of Mr Goff's report.
In our primary reasons we have explained that the trial judge erred in assessing the development potential of the Mount Lawley land on the assumption that the 1987 planning considerations were still applicable. This led him also to take out of account the prospect that those considerations might have altered, in particular, by way of the growth of the north‑eastern corridor. We have said that, while the extent to which this would or should have affected his valuation of the Mount Lawley land might be a matter for debate, it was a factor which had to be weighed in the balance, together with all of the other admissible evidence, in considering what, absent the Scheme and its steps, the development potential of the land would have been at the valuation date [185].
We have also said, in our primary reasons, that the trial judge erred in ruling inadmissible the reports that had been prepared on behalf of the appellant's valuers.

The principal features of the whole of the admissible evidence

That brings us to the principal features of the whole of the admissible evidence, as that evidence bears upon the issue of valuation. While it is unnecessary to repeat all that we have already said (in our primary reasons) in respect of this evidence, it is necessary to highlight some of its salient features. In doing this, we will draw substantially on unchallenged findings and descriptions of the evidence in the re‑trial reasons.

The principal witnesses

The witnesses, other than the valuers, whose evidence is principally relevant for present purposes (listed in the order in which they gave evidence) were Messrs Smith, Weaver, Tingay, Bowman, Middle, McNamara, Sippe, Sokolowski, Keighery, Trudgen, Semeniuk, Goff, Singleton, Auret and Stokes. We have found it unnecessary to refer to the evidence of other witnesses who address issues that are no longer relevant or whose evidence merely reflects what has been said by witnesses to whom we have referred and in respect of whom unchallenged findings have been made.

Mr Smith

In his evidence (including that wrongly considered to be inadmissible: see [299] ‑ [304] of our primary reasons), Mr Smith acknowledged that, in early 1991 (when he was the Minister for Planning), there was a shortage of land available for residential development and he was 'looking to add to the supply' (ts 6895). Similar evidence was given by others ([300] of our primary reasons). Mr Smith said that it was primarily the wetland significance of the Mount Lawley land that led to its reservation for parks and recreation. He also said (ts 912 ‑ 913 of exhibit 9001) that continuation of the land's rural zoning would not have secured it from clearing and that the land 'really needed a conservation zoning of some description that would give it complete protection rather than be left to the vagaries of what was permitted under a particular use'. He went on to say:
… [the] questions really were how much of it should be zoned for conservation purposes and then what you do with the remainder if there was any, and the only considerations that were sort of given to any special considerations was the question of whether or not it could be left in private ownership and managed privately. I certainly don't think anyone wanted it from a planning perspective to stay as rural.
As we have previously mentioned [303], Mr Smith went on to say (ts 913) that, if the land had not had any conservation value, it could ultimately have been zoned for urban purposes but that, in his view, it had 'very high conservation value'.

Mr Weaver

We have mentioned ([87] of our primary reasons) that the trial judge also accepted evidence given by Mr Ian Weaver, an experienced civil engineer and hydrologist, to the effect that the Mount Lawley land was capable of supporting development. Mr Weaver said that, through the adoption of appropriate management methods, the Mount Lawley land was 'readily developable for urban residential purposes, albeit at a cost that is likely to be higher than the median broad‑acre cost for Perth residential lots'.

Dr Tingay

Dr Tingay produced three reports. The most important of these were his second and third reports respectively dated 1 September 1999 (a report in the form of a PER of the kind that might have been required had there been a proposal to develop the Mount Lawley land in 1996) and January 2005. We have said [101] that, in his second report, Dr Tingay concluded that the wetlands on the Mount Lawley land:
(1)represent a very small proportion of wetlands within the Jandakot Suite which occur over a large geographic area on the Swan Coastal Plain;
(2)have relatively low conservation values compared to many other wetlands in the Jandakot Suite;
(3)are of types which are well represented in reserves or on land owned by the Commonwealth or State Governments;
(4)are of types which are well represented in the nearby Melaleuca Park;
(5)in only two cases satisfy the criteria for inclusion in the Environmental Protection (Swan Coastal Plain Lakes) Policy, 1992; and
(6)are not of national or regional conservation significance.
Dr Tingay's third report repeated much of what had been said by him in the second, but conclusion (6) was replaced by a conclusion that the wetlands on the Mount Lawley land exhibited 'a high degree of similarity in terms of vegetation types associated with the different wetland types across the properties'.
The trial judge placed little reliance on Dr Tingay's reports and was critical of each of the conclusions arrived at by him ([442] ‑ [449] of the re‑trial reasons). He also regarded the second report as inadmissible because Dr Tingay had not worked upon the basis that, as at May 1996, the reserved Mount Lawley land was zoned rural. We have said ([317] of our primary reasons) that, while that was an error on Dr Tingay's part, there was no reason why it was not open to the appellant's experts to express an opinion that the Mount Lawley land, or a part or parts of it, would inevitably, or would probably or possibly, have been rezoned urban, absent the Scheme, at some time in the future. Consequently, we concluded that the only impact of Dr Tingay's failure to work upon the basis that the land was zoned rural can be on the weight to be given to his report.
However, the reasons why the trial judge placed little reliance on Dr Tingay's conclusions had nothing to do with Dr Tingay's failure to assume a rural zoning. He said [442] ‑ [449]:
Contention (1) is correct, in an arithmetic sense. However, reference to plan 1815 demonstrates that nowhere on the Swan Coastal Plain is there an assembly of wetlands of comparable size to those on the Mount Lawley land, nor in such close proximity to each other. Further, the existence of other Jandakot suite wetlands does not detract from the fact that in 1996 those on the Mount Lawley land were in virtually pristine condition, having been retained in that state for over 100 years.
Dr Tingay regarded the term 'pristine' as being unscientific (TS 7514). However, with due respect, that seems to me to be an unreasonable point to take, given that such a quality must be obvious to any informed observer.
Contention (2) is based on Dr Tingay's understanding of the classification of wetlands in the Wetland Atlas. He said, for example, that the Lexia wetlands had lower values than 17 per cent of the Jandakot suite sumplands. However, he accepted that it was equally true to say that compared with 82 per cent of wetlands, the Lexia sumpland had a high conservation value (TS 7813).
In any event, I do not consider this kind of comparison to be valid. It assumes that the classification in the Wetland Atlas to involve a ranking of wetlands. But according to Dr Semeniuk (a co-author of the work) whose evidence I have referred to above (and which I accept), that was not the intention.
Contentions (3) and (4) may be taken together …
The fact that Jandakot suite wetlands have been preserved in Melaleuca Park says nothing about the quality of those wetlands. Dr Tingay had visited Melaleuca Park, but, as I understand his evidence, only for the purpose of comparing vegetation types (TS 7567).
Contention (5) is based on Dr Tingay's acceptance of the opinions expressed by Dr Davies and Dr van der Moezel 'as being the only reliable evidence that we were able to discover' (TS 7443). However, for reasons given above, I consider that reliance was misplaced.
The difficulty with contention (6) is that as Mr Middle said (and as I accept) there was at May 1996, no single document by which the national or regional conservation significance of wetlands could be assessed: each case was assessed individually.
In our respectful opinion, each of these criticisms was rightly made, for the reasons given by the trial judge.

Mr Bowman

The principal features of Mr Bowman's evidence have been summarised in [106] and [107] of our primary reasons. His opinion was that, in May 1996, the EPA would have been unlikely to approve a proposal to develop the whole of the Mount Lawley land. He suggested that a purchaser would have expected to set aside some of the wetlands for conservation purposes. In considering how much of the wetlands should be set aside, he relied upon evidence given by a consultant hydrologist, Dr James Davies, that was found to be untenable by the trial judge. However, as we have previously pointed out [106], nothing now turns upon this given that the trial judge's finding as regards the area of wetlands that meets the lakes EPP criteria is not challenged.
Mr Bowman regarded Ellenbrook as having had environmental features that were reasonably comparable to those on the Mount Lawley land. He said that, in the Ellenbrook development, 22% of the land was proposed to be reserved for the purpose of protecting fauna linkages and wetlands and he considered that a similar percentage of the Mount Lawley land might appropriately be reserved.
Mr Bowman's opinion in this last respect was criticised by the trial judge for three reasons. Two of those are relevant. The first was that it was based on Dr Davies' opinion which, as we have said, was found to have been untenable. The second was that, 'when it is clear that the conservation significance of a wetland (or a proposal to develop a wetland) is a matter for individual assessment … [there is] no justification for applying to the Mount Lawley wetlands, a percentage derived from another location, albeit one which is near'. We agree with that criticism (which appears at [458] of the re‑trial reasons). Also, it is worth mentioning that, as the trial judge pointed out [458], Dr Tingay also regarded that approach as invalid (ts 7556).

Mr Middle

Mr Middle is a lecturer in environmental planning at Curtin University. In 1990 ‑ 1991 he was a project officer and consultant to the Water Authority. Between May 1991 and November 1991 he was employed by the EPA as a senior environmental officer. In 1994, he was promoted to manager of the Environmental Planning Branch of the Evaluation Division of the EPA.
He was commissioned by the Water Authority to identify significant wetlands on the Swan Coastal Plain and, in February 1991, produced a paper in that respect.
Mr Middle placed the Lexia wetlands (which extended over part of the Mount Lawley land) in a conservation category (C) covering land that has 'a high degree of naturalness'. A bulletin published by the EPA in respect of classification procedures in November 1990 (Bulletin 374) recorded that management objectives for this category were to 'maintain and enhance natural attributes and functions'.
In his February 1991 paper (which was expressed to be designed to provide the Shire of Swan 'with an important planning tool to help with wetland protection' (page 5)), Mr Middle said:
The Lexia wetlands are, most likely, a linked system, both hydrological and as a wildlife habitat, and as such may well be unique as a largely intact wetland/dryland system. Given that this area may be developed for housing, it is important that this 'system' nature of this area is studied in more detail. Further, given the C [conservation] rating of these wetlands, any development will need to be carried out in a way that maintains their important natural values.
In cross‑examination, Mr Middle accepted that he had not undertaken any detailed hydrological investigation, nor made a fauna or flora survey of the Lexia wetlands. He had also not undertaken any analysis of the floristic community and he had not undertaken a geomorphological survey (ts 7965).
It is apparent from Mr Middle's evidence that the Lexia wetlands are more concentrated than those in the Melaleuca and Whiteman Parks. Mr Middle said that the Lexia wetlands are 'almost in … a large single basin' (ts 7960) which, as the trial judge understood his evidence [307], contributed to his view that the Lexia wetlands might constitute a unique system.
Mr Middle said that the removal of the wetlands would change the upland vegetation, and vice‑versa (ts 7990). However, as the trial judge pointed out [496], Mr Middle did not suggest that in every case in which wetlands were surrounded by upland vegetation, the entire area should be reserved. Mr Middle said, in this respect:
If you are prepared to accept loss of the wetland because it's in an urban context and it's not regionally significant and the planning system takes over, then you could clear the upland vegetation because you would get other benefits, but you would have to accept the fact that the wetland would change and probably lose some of its conservation values, but if you want to conserve a wetland and the unit because it is high conservation value, it is regionally significant, then you have to protect that as a unit, so it's a question of what your objectives are.

The trial judge accepted this evidence [497]. However, he inferred that the effect on a wetland caused by the removal of nearby vegetation would be less marked as the distance between them increased [497].
Mr Middle impressed the trial judge as an impartial and fair‑minded witness. He considered that Mr Middle's opinion as to the value of the Lexia wetlands carried considerable weight [308]. However, the trial judge accepted that, as Mr Middle had pointed out, the management category of a wetland is only a guide to its regional significance and is not a determining factor [308].

Mr McNamara

At the time of the trial, Mr Kieran McNamara was the Executive Director of CALM. Between 1992 and 2001 he was that body's Director of Nature Conservation.
His evidence (exhibit 2916 [20]) was that, in 1996, CALM's position was that the Mount Lawley land was 'environmentally significant and of a high priority for protection'. As the trial judge pointed out [593], he had not visited the Mount Lawley land himself. He relied on other officers of CALM (including Mr G J Keighery, whose evidence is mentioned below) in forming that view (ts 8107).
Mr McNamara had, in June 1992, prepared a letter for Dr Syd Shea, the then Executive Director of CALM, that was sent to the chairman of the EPA in relation to the Ellenbrook PER. The letter recorded that banksia woodlands in the proposed Ellenbrook area (which then encompassed the Mount Lawley land) were regarded by CALM as being of significant conservation value. The woodlands were said to be in good condition and to have provided an opportunity to conserve a relatively undisturbed area of that vegetation type. The letter also recorded that the preservation of some of the banksia woodland community would enhance the nature conservation value of the wetland areas being proposed for reservation. Mr McNamara said in evidence (ts 8115) that it was 'fairly fundamental in terms of conservation principles that, where you have vegetation intermingled with wetland systems, you seek to conserve the whole'.
The letter prepared by Mr McNamara also said that elements of the fauna of the area were dependent on the different vegetation structures for habitat and food resources and that the preservation of single community types might cause the loss of certain species of fauna that required a diversity of vegetation.
In his oral evidence, Mr McNamara said (ts 8115) that 'trade‑off decisions' were often made concerning development and conservation. He said that there were many examples of wetlands that had been saved without 'fringing vegetation', with the result that degradation of the wetlands had been 'unstoppable'.

Mr Sippe

Mr Robert Sippe was employed by the EPA during 1991 as the Director of its Evaluation Division.
In a letter dated 15 November 1991 written by him to Dames & Moore, consultants who had been engaged by Feilmans to undertake additional work in relation to environmental matters in the then proposed Ellenbrook area, Mr Sippe said:
The work proposed in your facsimile is acceptable to the Authority. However, as discussed with you the Authority is concerned that the studies proposed do not fully evaluate the Banksia woodlands between the wetlands. That is, the study treats the wetlands as a system and treats the woodlands as another separate system. A predictable conclusion reached is that the woodlands are represented elsewhere on the Swan Coastal Plain and are therefore of diminished environmental importance, which could be considered a technically valid determination when the woodlands are examined in isolation.
The Authority considers what is needed is an evaluation which will not only examine the wetlands as a functional habitat type but also considers their interaction with the woodlands within which the wetlands are found ie the whole system is evaluated. This should then be compared broadly with other systems eg: Melaleuca Park, Yanchep National Park which will enable the systems representativeness or uniqueness to be more accurately assessed. It is the Authority's view that this information will greatly assist in the determination of the most desirable management strategy for the area.
The trial judge, rightly in our respectful opinion, regarded this letter as important because it demonstrated that the concern of the EPA was not limited to the wetlands, but included the banksia woodlands as a component of an entire system [207]. He mentioned [208] that a similar concern seemed to have been raised by a group of local landowners known as the Ellenbrook Conservation Group. Mr David Hatt, then the Chief Executive of the Department of Planning and Urban Development (exhibit 268) referred to this group in a briefing note prepared by him on 11 March 1992. He said that it was 'requesting that a 950 ha area of wetlands and native vegetation in the location shown on the attached plan be set aside as an A class nature reserve'. As the trial judge found [208], the area nominated included all of the land owned by Mount Lawley.

Mr Sokolowski

We have said ([46] of our primary reasons) that Mr Ronald Sokolowski was a senior technical officer with CALM and that, in August 1989, he was asked to undertake a general appraisal of part of the Mount Lawley land, seemingly for the purpose of considering the creation of a possible nature reserve. His assessment, which was preliminary, led him to recommend that the 'commendable' floristic diversity and richness of the land appraised by him made it worthy of protection and proper management. He said that there were 'valuable ecosystems which currently display no environmental damage and must, therefore, be very valuable habitat zones'.
His evidence at the re‑trial (which was accepted by the trial judge) was that his opinion, in August 1989, had been that the land should be acquired and managed by a state instrumentality such as CALM (ts 8211). He emphasised that this was only a preliminary assessment (ts 8212). He accepted that there was nothing unusual or extraordinary about the area appraised by him, to the extent that it comprised banksia woodlands, other than the general health of those woodlands (ts 8208). He also acknowledged that banksia woodlands are a fairly common feature of the Swan Coastal Plain.
All of Mr Sokolowski's evidence was accepted by the trial judge [150].

Mr Keighery

Mr G J Keighery, together with Mr A Burbidge, prepared a report on behalf of CALM in respect of the revised Ellenbrook PER on 2 June 1992 (exhibit 2097, referred to in [75] of our primary reasons).
The importance of the report rests in the factual information that it contained concerning environmental qualities of the Mount Lawley land. The authors said, amongst other things, that:
Various amateur herpetologists have apparently recently recorded over 40 reptiles and amphibians in the study area during a very brief survey. This compares very favourably with the number (44) known from Yanchep National Park (the nearest comparable area for which data exist), and for which there is a long history of data collection including two detailed surveys. The Ellenbrook area is therefore of significance well above that claimed in the PER. It is likely that the area is also of considerable significance for other animal groups.

Mr Trudgen

In December 1999 Mr Malcolm Trudgen, an experienced consultant botanist, prepared a report containing an extensive flora and vegetation survey of the Mount Lawley land (exhibit 2017). In his comprehensive report, Mr Trudgen recorded 292 species of native flowering plants, one native cycad and one fern ally on the Mount Lawley land. He did not regard the number of species as either particularly high or particularly low. In his oral evidence he accepted that, in terms of flora species, the Mount Lawley land was not as high in value as 'the overall Ellenbrook Estate' (ts 8579). He also accepted (ts 8580) that, while the Ellenbrook Estate had a high conservation value for flora, that was not true of the Mount Lawley land on the basis of the numbers and types of species.

Dr Semeniuk

Dr Vic Semeniuk, a prominent environmental scientist, has carried out a great deal of work in relation to wetlands. On 22 September 1999 he prepared a report in respect of the wetlands on the Mount Lawley land on behalf of the respondent. Because there is now agreement concerning the absence of any development potential of the wetlands, his evidence in that respect (as with that of others who gave evidence concerning the conservation value of the wetlands) is no longer significant, save for comments made by him in respect of buffer zones. He said, in this last respect (part 8.0 of his report):
If wetlands that are recognised as significant are to be protected, it is necessary that they be enclosed by buffer zones, particularly if they are to occur in an urban setting. It has long been recognised that wetlands need buffers for their protection. Indeed, many wetlands in the urban setting in the Perth metropolitan area are surrounded by some type of buffer zone that isolates them from the surrounding land uses, and provides a filter system for groundwater seepages. However, to date, there have been inadequate buffers established around important wetlands. There are two reasons for this: the definition of a wetland and its boundary has not been rigorously addressed; and the various functions that buffers can perform have not been adequately accounted for in management systems.
He went on to examine this issue at some length before concluding, in respect of the Mount Lawley land, that the wetlands required wide buffers in excess of 100 metres. He suggested a range of 100 metres to 200 metres was necessary in order to act as ecologic, hydrologic and nutrient buffers.
In his oral evidence, Dr Semeniuk acknowledged that the dryland areas of the Mount Lawley land had simple sand stratigraphy, which would be suitable for urbanisation (ts 8769).

Mr Goff

We have previously referred, at some length, to Mr Goff's evidence ([92], [93], [108] ‑ [110], [189], [275] ‑ [290], [309] and [311] ‑ [316] of our primary reasons). We will not repeat all that we have said. However, it is necessary to highlight some of Mr Goff's evidence.
In his report dated 31 May 2005, Mr Goff arrived at the following ultimate conclusion (par 7.5):
Having regard to the general suitability of Lots 46 and 47 in terms of the lack of impact from 'global' constraints, the change in planning philosophy recognisable in the Review of the Corridor Plan in 1987 onwards containing the extension of the city's urban corridors and introducing a North-East corridor, I conclude that Lot 46 and the subject portions of Lot 47 would in all probability have been zoned 'Urban' at the relevant dates of 12 February and 9 May 1996. Urban development in the form of housing with associated retail centres, schools and open spaces, in my opinion, represents the highest and best use of the land at 1996.
In his oral evidence, he said that he had taken out of account the Scheme but that 'the imperatus that led to those amendments being initiated in the first place would still have been there and … there would have been another amendment process commenced at around about the same time leading to the land being rezoned at those dates' (ts 9041).
Mr Goff's evidence concerning the likely rezoning of the Mount Lawley land by May 1996 was regarded by the trial judge as irrelevant. This was because it ignored the requirement (as the trial judge saw it) that the 1987 planning considerations should have been treated as being still applicable. He also concluded that, because Mr Goff's report dated 31 May 2005 was based on the opinions of Dr Tingay and Mr Bowman 'without regard to any evidence expressing contrary views', relevant matters had not been addressed in that report. We have said that the trial judge was mistaken in both respects.
As to the former, we said [189]:
In his evidence (to which we will return later in these reasons), Mr Goff made it clear that, even absent the documents which demonstrated advances in the thinking concerning the north-eastern corridor, he considered that, when regard is had for the basic geographical features of the metropolitan area and the facts that had led to the form of the city's growth (all of which had been referred to in the first section of his report), there was 'a clear indication that the area [of the Mount Lawley land] has urban potential from just that geographical point of view' (ts 9008). Mr Goff also said that the DPUD brochure was 'the first document produced by a government agency which indicated the exact potential of the land in the area' (ts 9008). He expressed the opinion that the zoning process had been rushed and badly managed and that a better managed process might have produced a different outcome (ts 9042). All of this evidence seems to us to have been admissible and of sufficient weight to justify it being taken into account. Although Mr Goff's opinions depended, to some degree, on his examination of documents that either were, or were accepted to be, steps, as we understood his evidence he would have arrived at his ultimate conclusion even without regard to the Corridor Plan Review and Metroplan. To what extent the weight of that conclusion is affected if these documents are disregarded was, in our opinion, a matter for assessment by the trial judge.
As to the second of the errors to which we have referred, we have previously pointed out that, at the time that Mr Goff produced his report, the respondent's environmental and planning experts had yet to produce their reports. Once those reports were received, Mr Goff produced a responsive statement (exhibit 3015). We have said [314] that his responsive statement concluded by saying that he had made all enquiries which he believed to be desirable and appropriate and that no matters of significance which he regarded as relevant had, to his knowledge, been withheld from the court. By the time he gave evidence, he was aware of the respondent's evidence bearing upon the opinions given by him. We have said [315] that there is no reason to think that, if any of this had caused him to change his initial opinions, he would not have informed the court accordingly.
In the course of our discussion of Mr Goff's evidence in our primary reasons (especially at [276] and following), we mentioned his opinion that the form of Perth's urban growth was dictated by what he described as a number of primary or global constraints. We identified these at [276] ‑ [280] of our primary reasons. They included the physical nature of the Perth landscape, including that of the Mount Lawley land, population pressures and preferences, the establishment of the north‑eastern corridor and a number of other matters. It might be accepted from Mr Goff's evidence (and from that of others, including Mr Auret) that, were it not for the environmental constraints on the land, the 175 hectares of dry land to which we have earlier referred would have been ideal, or at least suitable, for urban development.
Mr Goff recognised the conservation values of the wetlands on the Mount Lawley land. However, he was dismissive of the notion that these would have been a constraint on the development of the land, or a substantial part of it. In identifying the conservation values, he seems to have relied largely upon what had been said by Dr Tingay and Mr Bowman. After discussing the various proportions of land required to be set aside on the approaches that those two men had adopted, he arrived at the conclusion (par 7.5 of his report) that the Mount Lawley land would in all probability have been zoned urban, with the wetlands being protected by a condition of development approval or protected by a reservation for parks and recreation.
While Mr Goff did refer to, and place some reliance upon, documents that were required to be treated as steps in the Scheme (including the Corridor Plan Review and Metroplan), we have previously concluded that, if he had not done so, he would still have reached the conclusion arrived at by him.
Mr Goff also placed some reliance upon the 1991 DPUD brochure. He said that this was the first occasion on which there had been some intimation that parts of the Mount Lawley land might be zoned urban (ts 9003). He also said that the brochure had had a degree of credence beyond what one might otherwise imagine. This was because it was the only document released by the authorities prior to initiating the Scheme amendment and because it revealed that the Mount Lawley land was regarded by the planning agencies at the time as having had urban potential.
Mr Goff was confident that, absent the Scheme, the Ellenbrook area would in any event have been rezoned and developed, as would the dryland portion of the Mount Lawley land. Indeed, as we have previously mentioned [287], he believed that the process would have been better managed than that which in fact took place.
Mr Goff's evidence did not proceed, as it should have done, from a starting point that assumed a rural zoning. However, we have already concluded that this provided no basis for the exclusion of his evidence [309] and that the weight to be given to his evidence, in the light of that error, was a matter for the court, having regard to the whole of the admissible evidence.

Mr Singleton

We have said that Mr Singleton was the 'Director, Sustainability' at DPI and had been so since 2004. We have also said ([95] of our primary reasons) that he accepted (ts 9083) that the Mount Lawley land was deliberately excluded from consideration as a possible location for future urban development. He said that this was because of his recommendation that it should be included within a regional park. That recommendation resulted from the opportunity constraints exercise (referred to earlier in our primary reasons) that had been conducted prior to the Corridor Plan Review and that led to the production of Working Paper 17. Mr Singleton also accepted that, if his recommendation had not been made, the land might possibly have been considered as a possible location for future urban development.
Mr Singleton was in a strong position to consider the environmental significance of the Mount Lawley land. We have said [271] that he had previously practised as an environmental geographer and regional planner and as a consultant environmental planner. He had been involved in the preparation of the Lakes EPP. He had also been a member of the review group whose research and investigations led to the preparation of the Corridor Plan Review. He was a co‑author of Working Paper No 17. While some of his evidence was regarded by the trial judge as irrelevant, all of that to which we have referred is relevant and admissible, for the reasons we have previously given. The trial judge accepted all of his evidence [135].
We have said [43] that Working Paper 17 constituted a comprehensive assessment of bushland and wetlands prepared for the purpose of explaining 'the thinking behind the recommendations for the metropolitan open space system'. The paper said that wetlands were to be 'a principal focus of community concern with the region's environment'. It also suggested that many wetland environments were being incorporated into new reserves. It explained the importance of the wetlands to the region's ecology in considerable detail. The paper said that the function of the wetlands as waterfowl habitats and summer refuges for inland and migratory birds was recognised internationally.
The trial judge quoted extensively from the paper. He said [128] ‑ [133]:
The Working Paper classified natural resources into a number of categories, including bushland and wetlands. As to wetlands, it was noted that:
' … only in latter years has the real value of certain natural features been recognised, and hence their subsequent incorporation into regional parks has occurred. Wetlands are perhaps the best example. Historically most were considered worthless as landscapes, having social value mainly as sites for market gardens around their peripheral margins. Their ecologies, revered by pre-european Aboriginal society, were neither understood nor appreciated by the colonial community at large except in a purely utilitarian sense. This has quite recently changed. Wetlands today are a principal focus of community concern with the region's environment. Hence, from alienated tenure following first settlement, many wetland environments are now being incorporated into new reserves and being acquired back into public ownership. Major portions of Lake Joondalup and the East Cockburn wetland chain for example, have only been reserved in the MRS and acquired by governments in the last two decades.'
Later in the Working Paper, there was a description of the wetlands and an explanation of their importance:
'The wetlands of the coastal plain are surface expressions of the groundwater table. They are numerous, varied in physical character and changeable in size and occurrence. Size varies from the largest such as Lake Joondabup at over 1km width or Lake Joondalup at +3kms in length, to the smallest swamps which sprinkle portions of the region in large numbers. Some are permanent with open water to 2m depth but most are shallow and lose their standing waters each summer as the water table drops and massive summer surface evaporation rates (3 metres per year) take their toll. Some 67% of 15,700 hectares of all wetlands on the Swan Coastal Plain are lost each summer in this way.
The wetlands are important because they are biologically the most productive environments of the plain. They are therefore a significant part of the region's ecology. They feature a diversity of vegetation in their waters, along their margins and on adjacent drier ground. Their function as waterfowl habitats and summer refuges for inland and migratory birds is recognised internationally.
The occurance [sic] of wetlands reflects the changing land form. Many occur in chains running parallel to the coast in association with the different dune systems. Hence wetlands of one type or another are found throughout the coastal plain, and as such represent an important opportunity for landscape interest and wildlife value.'
And later again:
'In the last 10 years the wetlands have gained great conservation interest. Although it is estimated that between 60 to 80 percent of the original stock of wetlands have disappeared, there still remains a large wetland resource. Wetlands located within the urban area have mostly been substantially modified, and inevitably so. Retention of wetlands in unchanged, natural condition requires almost total isolation from all surrounding land use. Even then regional changes in groundwater quality over the wide area can still influence the character and condition of a wetland.
The greatest risk to the overall capacity of the wetland system is that it will diminish due to excessive lowering of the water table. This could result from continued, unchecked pumping of water from the aquifer, particularly from private bores.
Another concern is that individual decisions will continue to be made to drain, fill in or clear the associated vegetation of small and ephemeral wetlands, especially those in rural locations. It is easy to compromise and attach little importance to the loss of any one wetland. But over a long period the cumulative effect may lead to a serious depletion of the total stock. The varied wildlife dependent on them, particularly waterfowl, will consequently diminish also.'
The Working Paper referred also to the geological setting of the Swan Coastal Plain:
'The coastal plain has been the focus for the majority of urban development in the region.
The plain is comprised of sedimentary rocks culminating in a geologically very recent series of dune systems running parallel to the coastline. These form the dominant but variable landscape character of the plain (Figure 2).
Nearest the coast are the most recent Quindalup and Spearwood Dune Systems. These are relatively fertile and exhibit the steepest terrain and most interesting topography of the plain. Midway occurs a broad band of Bassendean Sands. These are extremely infertile, higher in elevation (up to 60m AHD) and feature an open landscape with wide horizons.'
The Mount Lawley land is situated on the infertile Bassendean Sands. However, the Working Paper noted the importance of the northern banksia woodlands on the Bassendean Sands.
Reference was made also to the importance of groundwater in the Swan Coastal Plain, and in particular, the superficial or unconfined aquifer mentioned above: the Gnangara Mound:
'The larger Gnangara Mound to the north has a north south ridge rising to 70 metres AHD, a total volume of 65,000 million cubic metres and volume of stored water estimated at 13,000 million cubic metres. The southern, smaller Jandakot Mound has an elevation of 25 to 30 metres only and a storage capacity estimated at 5000 million cubic metres.
These two water bodies are not only principal sources of water for the urban population, but are essential components of the region's ecology. The vegetation and animals of the region are directly dependent upon the groundwater. They are also a dominant feature of the water balance of the region. Without their existence the coastal plain would be barely habitable.
Seepage from the aquifers supplies water into the few surface water courses that exist, and where the water table is exposed at the ground surface there occur the distinctive swamps and lakes of the plain.'

Mr Singleton gave evidence concerning the Working Paper. The trial judge said, of that evidence [135] ‑ [139]:
Mr Singleton's evidence, all of which I accept, was that one purpose of the Working Paper was to explain succinctly how an 'opportunity constraints analysis' was undertaken. This involved, ultimately, the preparation of a 'constraints map' on which environmental, social and engineering factors were combined, so that their composite effect on urban development could be assessed. In this way, it would be possible to devise a planning strategy for the Metropolitan Region.
The working diagrams produced by Mr Singleton (exhibit 2883) indicated that the Mount Lawley land was in an area of largely medium and partly low constraint. However, as Mr Singleton explained in his evidence, planning for the Metropolitan Region did not, at that stage, envisage the north-east corridor as being as extensive as it became later. For this reason, the Mount Lawley land did not 'get heavily considered for a major growth area for urbanisation' in the 1987 study (TS 9083).
The Mount Lawley land was recognised in 1987 as having a high conservation value. Mr Singleton said it was one of the few locations he visited for the purpose of the study; and that he did so 'because it was such an unusual find … a superb piece of bush (Banksia Woodland)'. He referred to the high quality of the woodland, which had not been cleared previously; to the wetland features and to the topography. This featured a series of dunal ridgelines which partially enclosed the site and hence provided additional landscape interest and a degree of natural protection.
For these reasons, the Mount Lawley land 'was deliberately excluded from consideration as a possible location for future urban development'. Indeed, Mr Singleton prepared a plan which showed the Mount Lawley land (and some land to the east containing wetlands) as an accretion to the land already in public ownership, thereby extending the Metropolitan Park System to that extent. He accepted that the inclusion of the Mount Lawley land was not essential solely for the purposes of linking areas of parkland (TS 9078). Further, Mr Singleton contemplated that the Mount Lawley land would be subject to restricted development if in private ownership, or that it would be acquired for public purposes by negotiation, or compulsorily (TS 9080).
In my view, Mr Singleton was well qualified to express the opinions referred to above. His first degree in geography (1973) included subjects relating to environmental science. His Master's degree had a component of environmental planning and involved a thesis on urban wetlands. He is the author of a chapter entitled 'Environmental Planning for the Swan Coastal Plain' in a 1992 work 'Regional Planning in WA', and he has practised as an environmental geographer and regional planner since 1974, this work involving planning and environmental studies.

Mr Auret

We have said ([86] of our primary reasons) that the trial judge accepted evidence given by Mr Auret, an experienced town planning consultant, to the effect that the reserved land was suitable for development (environmental considerations aside). The trial judge said [363]:
Mr Auret's evidence at trial was that at the time, while he recognised that there was significant remnant vegetation on the site of the proposed Ellenbrook project (including the Mount Lawley land), the land was elevated and was 'superb urban land' (TS 4065): absent any conservation factors, it would have been responsible planning to zone the land urban or urban deferred. In his evidence at the retrial, Mr Auret said he would have to qualify this opinion, but only to the extent that it would be subject to there being no other strategic reason not to develop the land (TS 9113). I accept this evidence, which is consistent with the policy of the State Government in wanting to expedite development in the north-east corridor.
Mr Auret was influenced in his evidence concerning the urban potential of the Mount Lawley land by the fact that it was located in the general area of the planned north‑eastern corridor. It was this that led the trial judge to disregard his evidence in respect of the urban potential of the land. As we have said, that was an error.
We have previously quoted from Mr Auret's statement dated 30 September 2005 that was tendered at the trial [293]. The more material paragraphs of that statement (pars 34 ‑ 38), for present purposes, read as follows:
The identification of the environmental value of the Mount Lawley land has a fundamental bearing on its suitability for alternative uses such as urban development. It is a powerful factor that in my opinion would have led the WAPC or the local authority in 1996 to oppose any request to rezone the land for urban purposes.
As at 7 May 1996, had not Lot 46 and part of Lot 47 been reserved for Parks and Recreation in the Metropolitan Region Scheme, the Mount Lawley land, subject of this case, would have comprised two severely constrained broadacre rural land holdings of very limited agricultural potential.
…
To my knowledge as at 7 May 1996 neither the Council nor the Western Australian Planning Commission were supporting subdivision of broadacre rural land to more intensive forms of land use such as small hobby farms or rural residential in this part of the North East Corridor.
Given the severe environmental constraints that had been identified prior to 7 May 1996, it is my opinion that the land was unsuitable for urban development and furthermore that approval would not have been given to subdivide the Mount Lawley land for a more intensive form of rural land use at that time.

Mr Stokes

We have previously said ([90] of our primary reasons) that Mr Stokes was the urban development coordinator at DPI. We have said that, in his evidence, he concluded (par 216 of his statement) that, if the Mount Lawley land had not been reserved in 1992, it would, in any event, have been reserved for parks and recreation by a subsequent amendment to the MRS. We have also mentioned that he said (ts 9213 ‑ 9214) that, if the Mount Lawley amendment had not been initiated, it was likely that the respondent would itself have initiated a similar amendment after 1994. He said that, if the Ellenbrook land had not been rezoned, it was highly unlikely that the State Planning Commission would have contemplated the rezoning of the Mount Lawley land in isolation. There is, in this last respect, no contention to the contrary.
In his written statement (exhibit 2922), Mr Stokes expressed his opinion in relation to the probable planning status of the Mount Lawley land as at 7 May 1996. We have previously mentioned [267] that the opinion was based upon a disregard of the Scheme, but not of the circumstances concerning the land which were relevant to the planning status or likely planning status of the land. Mr Stokes referred, in this last respect, in particular to all attributes of the land (including both environmental attributes and the potential for urban development) and the attitude or likely attitude of the state and local government authorities to those attributes. He commenced (rightly), from a starting point that the land was zoned 'Rural' in the MRS and 'General Rural' in the Shire of Swan Town Planning Scheme 9.
Mr Stokes took into account 'relevant policies and strategies of the [respondent]', including the Corridor Plan Review conducted in 1987, Metroplan and the 1994 Structure Plan. This last plan was published in order to provide the framework for the development of the north‑east corridor and the associated amendments to the MRS which had been made more than a year prior to the publication of the 1994 Structure Plan. The 1994 Structure Plan showed the Mount Lawley land as an existing regional open space. It referred to that land as the 'Lexia Wetlands' regional reserve. We have said [267] that, having discussed the contents of the Structure Plan, Mr Stokes concluded that, due to the 'environmental significance of the land, the most likely outcome would have been that, had that part of the subject land reserved for parks and recreation in Amendment 879/33 in 1992 not been so reserved, then the land would have been reserved for parks and recreation by a subsequent MRS amendment' (par 216 of his statement).
The evidence wrongly disregarded by the trial judge consisted primarily of Mr Stokes' conclusion that, by May 1996 at the latest, the Mount Lawley land would have been rezoned so as to implement the 1994 Structure Plan. The trial judge excluded this evidence upon the basis of his mistaken belief that the 1987 planning considerations should have been treated as if they were still applicable at the time of valuation.
While that was an error, we have said [270] that it seems to us that the excluded evidence relied to a substantial degree on the fact of the 1994 Structure Plan which, in turn, relied upon the Scheme. We said that it consequently seemed to us that any effect on the value of the Mount Lawley land that was attributable to the 1994 Structure Plan was, in turn, attributable to the Scheme. However, as we have also said [270]:
Notwithstanding this, if, as his evidence appears to indicate, Mr Stokes considered that, even in the absence of Amendment 879/33 and the 1994 Structure Plan, a structure plan that included the Mount Lawley land as planned regional open space would still have been initiated, the excluded opinion may not have been based upon an impermissible assumption. Whatever may be the position in that respect, Mr Stokes' opinion seems to us to be of no assistance to the appellant and, indeed, its exclusion may have benefited the appellant. While he did say (ts 9203) that there 'was a period [between November 1991 and August 1992] when some interpretation could have been reached that the Mount Lawley land could have been zoned for urban deferred, at least part of it', he added (also ts 9203) that the plans and policies of the respondent had consistently shown that it was unsuitable for urban purposes (see also ts 9216).

The documents

In our primary reasons we have referred, at some length, to the relevant documents. However, we will repeat what we regard as some of the more important aspects of those documents.

The Corridor Plan Review

We have previously said that, because the trial was fought upon the basis that the 1987 Corridor Plan Review (exhibit 2231) was a 'step' in the Scheme, we are obliged to treat it accordingly. However, as we have also said, admissible factual information concerning characteristics of, or objective factors affecting, the land that was contained in that document, and in other documents constituting 'steps', remains relevant.
The Corridor Plan Review forecast that Perth would need 171,000 new dwellings by 2001 and that there was a need for additional vacant land for building purposes. However, it also mentioned that the Perth Coastal Plain was 'a delicately balanced environment' and that the coastal wetlands system was 'under the greatest pressure from both use and development'. The wetlands referred to included a system encompassing the Mount Lawley land. The Review also mentioned the increasing importance of groundwater resources, in particular the Gnangara Mound which extended, in part, below the Mount Lawley land.

DPUD Statements

We have discussed the draft and final DPUD Statements at [48] ‑ [55] and [168] ‑ [169] of our primary reasons. We have said that they are important documents and that they reassess previous proposals in respect of urban expansion. They reveal developments in the thinking that had attached to the corridor plan, in particular as regards the development of a north‑eastern corridor.
The 1990 draft DPUD Statement (which was produced so as to invite public comment) referred to the need to accommodate the rapidly increasing population in the Perth metropolitan region. However, it mentioned that there were constraints on urban development in the coastal plain area, including the need to protect the Gnangara Mound and 'significant environmental areas, including wetland areas'.
The draft (which referred to the receipt of some 1,200 submissions from the public) identified two categories of potential new urban land. Category A included those areas most likely to be urbanised in the normal course of development within the next 30 years. Category B included those areas that were currently constrained by major issues that would need to be resolved to enable urbanisation to occur within the next 30 years. The Mount Lawley land was not included in either of those categories. It remained in an area designated as rural.
When the 1990 final DPUD Statement emerged, it identified a north‑eastern corridor of proposed urban development. This had, at its northern end, a black arrow which, according to the legend, denoted 'future urban growth option'.
Page 4 of the final DPUD Statement highlighted the fact that population pressures had placed the original corridor plan under strain and that there had been a high demand for housing in the 'new urban fringe suburbs'. The statement recorded that it 'provides for continued growth, with emphasis on', amongst other things, 'the establishment of a major new urban growth area in the north‑east, extending between Midland and Upper Swan on each side of the Swan Valley'.
We have said [169] that these two documents were 'general planning framework documents' and that they affected a potential area wider than that which was subsequently encompassed by the Scheme.

The 1991 draft Ellenbrook PER

We have mentioned [60] that, in July 1991, Feilmans submitted the draft Ellenbrook PER to the EPA. Although the document was accepted by both parties as having constituted a step in the Scheme, it remains of significance in that it identifies characteristics bearing upon the conservation significance of the Mount Lawley land. Page 4 of the document reads as follows:
A detailed analysis of the wetlands was conducted to establish the nature of the vegetation. It was found that the vegetation associations and assemblages, while not being particularly significant in themselves, have considerable conservation value because of the small number of remaining wetlands on the Coastal Plain. The management issues involved in retaining all or some of the wetland area have been assessed and the conclusion reached that the best approach will be to preserve an area of approximately 100 ha by reservation under the Metropolitan Region Scheme. This is the portion of the total wetland area which exhibits the greatest diversity of characteristics and is best suited to long-term management. The total area which embraces the wetlands exceeds 400 ha and it has been concluded, following discussions with Officers from CALM that resources would not be available to effectively manage such a large area. Without adequate management the area would quickly deteriorate due to feral animal and weed intrusion.
The report mentions that the total area, 'which embraces the wetlands', included banksia woodlands which, while not 'particularly unusual', varied considerably in both physiognomy and species composition (page 31). It also mentions that 'there are no assemblages of species which are recognised as being particularly unusual' and (page 32) that the value of the Ellenbrook land lay 'purely in the fact that most of the (flora) habitats on the Swan Coastal Plain are destroyed or heavily degraded'.

Mr Briggs' letter

We have said [65] that in his letter dated 23 October 1991 (exhibit 2396) addressed to the executive director of the EPA, Mr A D Briggs, who was the District Manager for the Perth District of CALM, commented on the draft Ellenbrook PER. He said that, because of the significance accorded by that draft to the wetlands, 'the north‑west wetland should be reserved to include the surrounding sand dune ridge'. He said that this would provide a buffer against the possible introduction of die‑back and preserve a natural vegetation filter and ecosystem supporting the wetland. He took exception to the inference (raised in the 1991 Draft Ellenbrook PER) that CALM's resources would be inadequate to justify reservation of more than 90 hectares of the 400 hectares identified as having wetland conservation value.
We have previously said that the letter was merely a recommendation from one government body to another, neither of which is a planning authority [174].

DPUD brochure

We have said [64] that, in October 1991, DPUD published a brochure for the purpose of eliciting public response to two possible development options for the north‑eastern corridor. Its main objective was expressed to be 'to start people talking about the issues and get feedback from the local community'. Two broad options, one linear and one cellular, were identified. Drawings in the brochure reflecting these options appear to show that a little less than half of the Mount Lawley land would become urban, with the remainder being designated as 'rural, conservation and open space'. However, as the trial judge pointed out [182], the possible urban areas are different in the case of each option. Neither drawing reflected the proposed reservation then under consideration. The brochure also recorded that 'it will be important to make sure that the whole range of environmental factors is taken into account and important landscape and environmental features are preserved'.
We have previously concluded [202] that the brochure was of some significance. It revealed that the department responsible for planning was at least prepared to contemplate, if only on an indicative basis, that the areas depicted (encompassing the Mount Lawley land) might be zoned urban. However, as the trial judge mentioned [185], it was published before the environmental issues had been resolved.

Minutes of the meetings of the Metropolitan Planning Council in November and December 1991 and associated matters.

We have referred ([66] ‑ [70]) to the Council minutes in November and December 1991 and to associated documents. These (particularly the briefing note prepared by Mr Hatt on 11 March 1992) are significant only because they illustrate the number of issues that remained outstanding at that time. We said, in that respect [70]:
These included the resolution of environmental issues, including the identification of the land to be set aside for wetland protection, the preparation of a drainage and water resource management plan and the prospect of further changes to the proposed urban deferred boundary depending upon the findings of the PER. The draft Ellenbrook PER that had been prepared by Feilmans was regarded as unsatisfactory. Also, the EPA then still had a number of concerns that required to be addressed, which were set out in a letter to Feilmans from Mr Rob Sippe of the EPA (exhibit 2405). One of these related to its belief that nothing had been done, or was proposed to be done, to evaluate, fully, the banksia woodlands between the wetlands. The EPA considered that an evaluation was required which would examine not only the wetlands as a functional habitat, but also their interaction with the woodlands within which they were found. Similar concerns had been raised by a group of local land owners known as the Ellenbrook Conservation Group.

Bulletin 625

The trial judge placed some reliance upon EPA Bulletin 625, issued in April 1992. This was headed 'Guidance Notes'. In the bulletin, the EPA advised that:
The value of remnant vegetation is commensurate with its size, rarity and representativeness ‑ they are relative values. Generally, representative examples on private land, that are in good condition, should be retained where feasible.
The trial judge found [502], in this respect, that it was generally agreed between the experts that the banksia woodlands on the Mount Lawley land were in good condition. He also found that they might be taken as having been in that condition in 1996. He pointed to the fact that, in 1992 (albeit in the context of a proposal for a land exchange), the appellant had itself suggested in its submission on the Ellenbrook PER (exhibit 2486) that:
The Government in consultation with the community should decide upon the land to be reserved for conservation purposes on the principle that such land in its pristine state is too valuable to the community to be developed.

We take into account that, as the trial judge inferred from Mr Middle's evidence, the effect on a wetland caused by the removal of nearby vegetation would be less marked as the distance between them increased. We also take into account the fact that Mr Middle had not undertaken any detailed studies or analysis of the Lexia wetlands.
Mr McNamara's evidence was similar in effect to that given by Mr Middle. We have said that he regarded it as being 'fairly fundamental in terms of conservation principles' that, where vegetation is intermingled with wetland systems, the whole should be conserved. Although there was nothing in his evidence to suggest that the whole of the banksia woodland area on the Mount Lawley land should necessarily be conserved, he regarded that woodland as having significant conservation value. We have said that in 1996 he (and CALM) regarded the Mount Lawley land as environmentally significant and as having a high priority for protection.
Mr Sippe, too, understood the importance of treating the wetlands and dry lands as one functional unit. Importantly, when he made this point in his letter dated 15 November 1991, he was, as we have said, employed by the EPA as the Director of its Evaluation Division. When dealing with Mr Sippe's letter, earlier in these reasons, we mentioned that similar concerns had been raised by the Ellenbrook Conservation Group.
Mr Sokolowski's general appraisal of part of the Mount Lawley land, carried out in August 1989 on behalf of CALM, is also important. We have said that, although he accepted that there was nothing unusual or extraordinary about the banksia woodlands, other than their general health, his preliminary assessment was that the land appraised by him should be acquired and managed by a State instrumentality such as CALM. We have also said that he considered that the area had 'commendable' floristic diversity and richness and that the valuable ecosystems displayed no environmental damage and must consequently be very valuable habitat zones. In this last respect, we have mentioned that Mr Keighery, too regarded the fauna living on the Mount Lawley land as being of considerable significance.
Mr Singleton's evidence (which, as we have said, was accepted by the trial judge) seems also to us to have been important. The trial judge rightly found him to be well qualified to express the opinions offered by him [139]. We have said that the trial judge quoted extensively from Working Paper 17, of which Mr Singleton was a co‑author. While his principal concern seems to have been with the wetlands, the working paper noted the importance of the northern banksia woodlands and the groundwater in the region, particularly the Gnangara Mound. We have said that Mr Singleton regarded the banksia woodland as an unusual find, comprising 'a superb piece of bush'. We have also said that he regarded the series of dunal ridge lines which partially enclosed the area as having provided additional landscape interest and a degree of natural protection.
The trial judge also accepted Mr Auret's evidence. We have mentioned that he regarded the dry land portion of the Mount Lawley land as superb urban land. However, he regarded the land as being unsuitable for urban development because of the 'severe environmental constraints'.
We have referred, also, to Mr Stokes' evidence. To the extent that it was admissible, it tended to suggest that the most likely outcome from a planning perspective, absent the Scheme and its steps, was that the Mount Lawley land's environmental attributes would have resulted in the land being reserved.
Next, we have mentioned Mr Briggs' letter, dated 23 October 1991, written on behalf of CALM. We have said that he considered that the north‑west wetlands should be reserved in such a way as to include the surrounding sand dune ridge and that he took exception to the inference that CALM's resources would be inadequate to justify reservation of more than 90 hectares of the 400 hectares identified as having wetland conservation value. We have also mentioned that the Australian Conservation Council wanted the area of over 400 hectares containing wetlands and high quality banksia woodland to be reserved. Similarly, as we have said, the Shire of Swan's attitude (on 1 July 1992) was that the Lexia wetlands should be preserved as a conservation area in accordance with scenario 1 of the Ellenbrook PER. It is, of course, necessary to keep in mind, as the trial judge rightly found [624(10)], that although other agencies, and CALM in particular, were more conservationally inclined than the EPA, only the EPA was empowered to prevent development or to impose onerous conditions.
That said, the approach of the EPA, as it appears from Bulletins 625 and 642, seems to have been that representative examples of remanent vegetation in good condition should be retained where feasible. Moreover, Bulletin 642 makes it apparent that there was a good deal of public concern that the remaining wetlands on the Swan Coastal Plain should be protected, as should other areas having significant conservation values. That bulletin noted, as we have said, that the 'majority of public submissions supported the exclusion of the entire northern portion of the project area from urban development on the basis of its regional conservation significance'. We have also said that Recommendation 2 in the bulletin was that the proponent should set aside approximately 450 hectares in order to protect the Lexia wetlands in the north‑west corner of the proposed area, encompassing three quarters of the Mount Lawley land.
While each of these bulletins post‑dated the valuation date, they indicate the kind of information that might have been obtained by a prudent purchaser of the Mount Lawley land at the date of valuation, had all appropriate enquiries been made of relevant conservation groups.

What would the hypothetical purchaser have thought?

We agree with Mr Wilson that, faced with all of the information concerning the environmental significance of the land and conflicting opinions in respect of it, the prudent purchaser would have adopted a conservative approach to the price that he or she would have been prepared to pay for the Mount Lawley land. As he points out, it would have been unrealistic for a purchaser to expect that there would be no objection to urban development from the EPA, CALM, Water and Rivers Commission, Water Corporation and the Western Australian Planning Commission. The evidence to which we have referred demonstrates that, on making enquiries, the prospective developer would have received an adverse reaction from CALM, the Water Corporation, the Shire of Swan and the EPA itself. Moreover, that person would, no doubt, have predicted adverse reactions from the Australian Conservation Council and from the Ellenbrook Conservation Group.
We also accept what was said by Mr Carey [par 107 of his report] to the effect that the most likely profile of the buyer of the Mount Lawley land would be either a wealthy individual or a land developer and, in either case, the land would not be acquired without very detailed due diligence. In any event, when valuing the land it is necessary to assume that the parties to the hypothetical sale are perfectly acquainted with the land and cognisable with the circumstances that might affect its value: Spencer (440 ‑ 441).
When regard is had to the evidence to which we have referred, it seems plain enough that the prospective purchaser would have regarded it as inevitable that the wetlands and a buffer area would be preserved, as the appellant acknowledges. It also seems to us to be apparent from the evidence that the prospective purchaser would have believed that there was limited scope for optimism concerning the prospect of upzoning of the remaining Mount Lawley land. As we have said, the evidence pointing against the prospect of upzoning of the Mount Lawley land overwhelmed that in favour of it and most of this evidence would have been available to a prospective purchaser making enquiries for due diligence purposes. In circumstances in which it seems very probable that the purchaser would have learned of the differing opinions in respect of the land, the likely opposition from such organisations as CALM, the Shire of Swan, the Water Corporation, the Australian Conservation Council and the Ellenbrook Conservation Group, and what also seems to us to have been the strong probability of opposition from the EPA, it is hard to imagine that the purchaser, being prudent, would be prepared to pay a substantial premium over the rural value of the land. The purchase would have to take into account not only the fact that the risk appeared to be unlikely to pay any dividend but, as Mr Carey points out, also the fact that the purchase price might sit 'idle' for many years before the outcome was known.
However, we are not persuaded that, if development had been permitted, a buffer zone of more than 50 m would have been thought to be likely to be required at the material time. We have said that Dr Semeniuk's report was prepared in September 1999, long after the valuation date. We have also referred to the trial judge's uncontested finding [624(9)] that, while the width of buffers was a matter for negotiation, the EPA's usual practice was to require the minimum width of 50 m when wetlands were included in an urban development. As the trial judge said, this involved some 50 hectares of land.
While there was some evidence, apart from that of Dr Semeniuk, suggesting that a wider zone might have been required (this evidence is discussed, and rejected, by the trial judge ‑ for reasons with which we agree ‑ in [615] ‑ [621] of the re‑trial reasons), the preponderance of evidence favoured the proposition that, if development was permitted, a buffer zone of 50 metres would be required.
Mr Bowman's evidence was that he was only aware of one case (a deep lake of particular ecological significance) in which the EPA had required a buffer wider than 50 metres (ts 7660, 7667 ‑ 7668). Dr Tingay could see no reason why there would be anything other than the 'standard' 50 metre buffer. Dr Van der Moezel said (ts 7202) that 'the 50 metre minimum buffer has in practice turned out to be the maximum buffer around residential developments … '. Mr Middle, too, said (ts 7974) that the EPA's standard approach was to recommend a 50 metre buffer.
We should add, before leaving this issue, that the respondent placed some reliance on Bulletin 642 in support of its argument that a wider buffer zone would have been required, because that bulletin recorded that the EPA considered there should be a conservation area of approximately 450 hectares. We do not accept that this supports the argument advanced. It supports only the proposition that the EPA considered that the whole area should be conserved.

Preferred approach to valuation

It necessarily follows from what we have said that little weight can be placed on the valuations of Messrs Logan, Rae and Zucal. In each case, their reasons for assuming a probable urban zoning are unconvincing and, as we have shown, against the weight of evidence. In each case the 'comparable' sales relied upon by these valuers seem to us to have been not at all comparable to the Mount Lawley land. We have said that, in Mr Zucal's case, all but one of the comparable sales analysed by him were of land that was zoned either urban or urban deferred. In the case of Mr Rae, all but one of the six sales that he considered to have had particular relevance were sales of land that was zoned urban at the date of sale. We have said that, of the 20 sales primarily relied upon by Mr Logan, only two were sales of rural land and one was a sale of land zoned 'Rural X'. All of the others were sales of land with an urban zoning. The valuation ascribed to the wetlands by each of Mr Zucal and Mr Rae was unrealistic. As we have said, the appellant does not now seek to support it.
On the other hand, Mr Wilson's approach seems to us to have been realistic.
As will be apparent from what we have earlier said, he took into account the prospect of further expansion of the north‑east corridor into other rural areas and the short supply of large en globo landholdings with perceived urban potential. He had read reports provided by a number of environmental consultants and town planners, including Messrs Tingay, Bowman, Semeniuk, Trudgen, Goff, Stokes, Auret, McNamara, Middle and Singleton. We have said that he described their reports as being 'pivotal to an informed purchaser of the Mount Lawley land' and that he reviewed each report. His own inspection of the land told him that it lacked suitability for long term agricultural use. He acknowledged that the potential for expansion within the north‑east corridor would suggest that the land, or part of it, might have had urban potential. However, when he took into account the environmental issues affecting the land, he was satisfied that these would have adversely influenced any rezoning/development potential.
Mr Wilson did not see it as his position to question the accuracy of the various expert reports, but rather to attempt to interpret a purchaser's mind‑set in respect of them. He was consequently prepared to accept that there was no compelling argument, one way or another, concerning the likely reservation, or urbanisation, of the Mount Lawley land. We have already said that, in our opinion, the available evidence favoured the probable reservation of the whole of the Mount Lawley land. It consequently seems to us that Mr Wilson was right in his conclusion that the purchaser would have been extremely cautious in establishing a purchase price for the land and would have regarded the property as having only a slim chance of achieving an urban deferred or urban rezoning.
In these circumstances, it seems to us that the lots regarded by Mr Wilson as being comparable were of more assistance that those relied upon by the appellant's valuers. The rates applied to the land by Mr Wilson, and the proportions of the land to which they were applied, seem to us also to have been appropriate. We consequently consider that the valuation of $4 million by Mr Wilson (reflecting a premium of some $2,500,000 over the rural value) was appropriate and should be accepted.
We have said that the principal challenge to Mr Wilson's valuation rested upon his overly pessimistic view of the urban potential of the land and also his assumption that the Ellenbrook land still had a rural zoning at the relevant time. As to the former, we have said that we do not regard him as having been pessimistic. Rather, we support his approach. As to the latter, we have said that Mr Wilson was right to assume that all of the land was zoned rural at the time of his valuation. However, as we have said, the appellant also challenged his valuation upon the basis that it did not allow, in any way, for the hypothetical parallel development of Ellenbrook. It seems to us that Mr Wilson did allow for this. We have said that, in his report, he took into account the likely growth of the north‑eastern corridor. In the course of re‑examination (ts 9475) he confirmed that, although he did not assume any rezoning of the land that became Ellenbrook, he had considered that there was potential for the rezoning of that land as a result of the promotion of the north‑east residential corridor. In any event, it seems to us that, allowing for the probability that there would have been a hypothetical parallel development of Ellenbrook, the values arrived at by Mr Wilson in respect of the Mount Lawley land were appropriate, given its conservation value and the approach then being adopted by conservation groups and the EPA to land of that kind.
Counsel for the appellant also said that Mr Wilson was inconsistent in his assessment of when any development was likely to occur. In his 2005 report, he referred to the potential of the Mount Lawley land to be re-zoned 'in due course' (par 125). In his 1996 report he said that 'it could be argued that the land would have … been suitable for residential subdivision in the medium term' (page 4), that it would take in excess of 10 years 'before the land would be developed' (page 10) and that 'the most optimistic time frame for the … land to be economically developed would be a minimum of say three to five years hence' (page 11). In a letter dated 29 November 2005 (exhibit 2955) to the respondent's legal advisers, commenting upon the appellant's valuations, he said (par 172) that the Mount Lawley land had 'questionable urban potential, which could be long‑term or not eventuate at all, because of environmental constraints necessitating the ultimate approval of relevant authorities'. In his oral evidence concerning his 1996 valuation, he confirmed (ts 9433) that a model attached to that report (the model had been developed by Chesterton International) had assumed that development of the land for urban purposes would take place over a time frame of between 5 and 12 years. Finally, in his oral evidence he also said (ts 9446) that the land had only 'a slim chance' of achieving an urban deferred or urban zoning.
To the extent that there is any inconsistency in these different comments, it is very minor and not such as could cast any doubt over his valuation methodology. As will be apparent, his valuation was based on his central assumption, borne out by the preponderance of the evidence, that the land had limited development potential over any reasonable time frame.
Mr Carey's valuation was not as sound as Mr Wilson's valuation, in our respectful opinion. We agree with the trial judge's assessment [689] that Mr Carey was overly pessimistic in his conclusion that access to the land was 'somewhat problematic'. The problems identified by him would largely have been overcome by what was then the probability that the Ellenbrook land would be developed and that the development could be done in such a way as to provide access to the Mount Lawley land: see the trial judge's comment in this respect at [685] of the re‑trial reasons. However, his valuation seems to us nevertheless to have been far more realistic than those prepared by the appellant's valuers. Mr Carey, like Mr Wilson, considered the vast majority of the available expert reports and witness statements. In our opinion, he was right to conclude, from that information, that the information that might have been obtained by a hypothetical buyer would have suggested that the state of the existing wetlands and uncleared uplands was cause for caution and concern.
As to the proposition that Mr Carey's valuation did not allow for the prospect that the Ellenbrook land might be rezoned, we have said that, in his oral evidence (ts 9495), he said that he believed that the market would have reflected some prospect of a rezoning of that land. He also said (ts 9495) that he thought that 'Ellenbrook probably would have gone ahead anyway'.

Remaining issues

The conclusions at which we have arrived make it unnecessary for us to deal (to the extent that we have not already done so) with grounds 1 and 2 of the respondent's notice of contention in the appeal. Those grounds support the valuation arrived at by the trial judge.
As to ground 2 of the cross‑appeal, we are prepared to accept that, in all of the circumstances of this case, it was appropriate to allow a rate of $10,000 per hectare for the wetlands and buffer zone. In his report, Mr Wilson said that he based this 'on the highest rural values applicable in the locality at the time, which also compares favourably with government purchases of wetlands' (par 256). In the course of cross‑examination (ts 9466 ‑ 9467) he said that, because the Mount Lawley land had some urban potential, 'a purchaser becomes far more discerning in looking at the use potential that they can put [sic] the various parts of the land' and that this was the reason he had adopted a higher rate than the base rural value (which he considered to be $5,000 per hectare). This approach seems to us to have been reasonable. Mr Logan adopted a similar approach in ascribing a value of $10,000 per hectare to the wetlands area. He said (page 16 of his report) that 'a purchaser would recognise the attributes of this lower lying portion of the land‑holding as adding some value to the balance'. In any event, having advanced Mr Wilson's valuation at the trial, the respondent should not now be permitted to challenge this aspect of it.

That leaves ground 3 of the cross‑appeal and contention 5 of the cross‑respondent's notice of contention in the cross‑appeal. We have already said that, in our opinion, if development had been permitted on the Mount Lawley land, it was very probable that a buffer zone of 50 hectares would have been required, in accordance with the then usual practice. It is consequently unnecessary to give these grounds further attention.

Conclusion

Consequently, it is our opinion that, notwithstanding the errors made by the trial judge, the land was rightly valued by him at $4 million. That being so, it seems to us to be appropriate to dismiss the appeal, even though some of the grounds of appeal have been made out. Also, the cross‑appeal should be dismissed. We will hear further from the parties concerning the orders that should now be made, including orders concerning the costs below and in this court.