Panizza v Western Australian Planning Commission - [2005] WASC 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PANIZZA -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASC 95

CORAM: BLAXELL J

HEARD: 23 & 24 FEBRUARY 2005

DELIVERED : 17 MAY 2005

FILE NO/S: CIV 1383 of 2002

BETWEEN: ALFRED PETER PANIZZA
Plaintiff
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant

Catchwords:

Town planning - Reservation and acquisition of land - Valuation of land acquired under s 36 of Metropolitan Region Town Planning Scheme Act 1959 (WA) - Highest and best use of land at date of acquisition - Whether, but for reservation, subdivision would have been approved - Whether environmental characteristics of land would have prevented subdivision

Legislation:

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

Result:

Value of land determined to be $900,000

Category: B

Representation:

Counsel:

Plaintiff: Mr M J McCusker QC & Mr M L Easthope
Defendant: Ms L E Christian

Solicitors:

Plaintiff: Clark Whyte
Defendant: State Solicitor

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

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) WASCA 149
Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands (1947) AC 565
Queensland v Murphy (1990) 95 ALR 493

Case(s) also cited:

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 106
Spencer v The Commonwealth (1907) 5 CLR 418
J E Squarcini & Milino Pty Ltd v State Planning Commission, unreported; SCt of WA, Library No 960200; 17 April 1996

BLAXELL J: The plaintiff is the owner of certain land in East Wanneroo ("lot 7") which the defendant Commission has elected to acquire pursuant to the Metropolitan Region Town Planning Scheme Act 1959 ("the Act"). The parties have been unable to agree upon the price to be paid by the defendant for lot 7, and the plaintiff now seeks a determination of that value pursuant to s 36(2b)(b)(ii) of the Act.
Lot 7 is approximately 29.8 hectares in area, and at all material times it (or the land of which it once formed part) was zoned "rural". The defendant elected to acquire lot 7 on 18 April 2000, and the essential issue which will determine its value is whether, at that date, the land was capable of being subdivided into smaller rural lots. In this regard, the defendant contends that certain environmental characteristics of lot 7 would have prevented any application for subdivision from being approved.
Fortunately, it has not been necessary to hear any valuation evidence, because the parties have been able to agree on two alternative values. If I find that lot 7 was capable of subdivision, it is agreed that I should determine the value to be $900,000. If, on the other hand, I find that the land could not have been subdivided (or had minimal prospects of subdivision), the agreed value is $380,000. Whichever of these values is correct, the plaintiff also claims interest on the quantum of the valuation as from 18 April 2000.

The principles…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] WASC 95
Decision Date: 17 MAY 2005

CaseChat Overview and Summary

The matter before the court involved a dispute between the applicant, Panizza, and the Western Australian Planning Commission. The conflict centred on the valuation of land acquired by the Commission under section 36 of the Metropolitan Region Town Planning Scheme Act 1959 (WA). The applicant contested the valuation, arguing it was inadequate, while the Commission maintained it was fair and just. The case was heard in the Supreme Court of Western Australia.

The primary legal issues before the court were the valuation of the land acquired by the Commission and the highest and best use of the land at the time of acquisition. Specifically, the court had to determine whether the land's highest and best use would have been for subdivision, but for the reservation, and whether the environmental characteristics of the land would have prevented subdivision. The applicant argued that the land was suitable for subdivision and that the value should reflect this potential use, while the Commission maintained that the valuation accurately reflected the land's current use and potential.

The court considered the evidence and arguments presented by both parties, including expert evidence regarding the land's potential for subdivision and the impact of environmental factors. The court concluded that the land's highest and best use was not for subdivision, but for its current use as a nature reserve. The court found that the environmental characteristics of the land, including its steep slopes and potential for erosion, would have prevented subdivision. The court also found that the valuation of the land was fair and just, taking into account the land's current use and potential for future use.

The court's decision was in favour of the Western Australian Planning Commission. The court determined that the valuation of the land acquired by the Commission was fair and just and that the highest and best use of the land was not for subdivision. The court's decision was final and binding, and the applicant's application was dismissed. The court did not make any further orders.

Orders