Re Board of Valuers;

[1999] WASC 54

RE BOARD OF VALUERS; EX PARTE BOND CORPORATION PTY LTD [1999] WASC 54

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 54
Case No:	CIV:1471/1999	Heard:	13 MAY 1999
Coram:	WHITE J	Delivered:	9/06/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Mandamus refused Costs awarded to applicant
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Parties:	BOND CORPORATION PTY LTD BOARD OF VALUERS
Catchwords:	Prerogative writ Respondent agreeing to perform its duty Mandamus refused but applicant awarded costs and leave to renew the application if respondent has not performed within three weeks Turns on own facts
Legislation:	Metropolitan Region Town Planning Scheme Act 1959, s 36 Metropolitan Region (Valuation Board) Regulations 1967, reg 3 and reg 4
Case References:	Re O'Reilly; Ex parte Australena Investments Pty Ltd [1984] 58 ALJR 36 Ex Parte Bond Corporation Pty Ltd, unreported; SCt of WA; Library No 980713; 14 December 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE BOARD OF VALUERS; EX PARTE BOND CORPORATION PTY LTD [1999] WASC 54 CORAM : WHITE J HEARD : 13 MAY 1999 DELIVERED : 9 JUNE 1999 FILE NO/S : CIV 1471 of 1999

MATTER : An application for a Writ of Mandamus against the BOARD OF VALUERS

EX PARTE

BOND CORPORATION PTY LTD
Applicant

Catchwords:

Prerogative writ - Respondent agreeing to perform its duty - Mandamus refused but applicant awarded costs and leave to renew the application if respondent has not performed within three weeks - Turns on own facts

Legislation:

Metropolitan Region Town Planning Scheme Act 1959, s 36

Metropolitan Region (Valuation Board) Regulations 1967, reg 3 and reg 4

Result:

Mandamus refused

Costs awarded to applicant

(Page 2)

Representation:

Counsel:

Applicant : Mr L A Stein
Respondent : Mr M G Pendlebury

Solicitors:

Applicant : McKie & Associates
Respondent : Clayton Utz

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

Re O'Reilly; Ex parte Australena Investments Pty Ltd [1984] 58 ALJR 36

Case(s) also cited:

Ex Parte Bond Corporation Pty Ltd, unreported; SCt of WA; Library No 980713; 14 December 1998

(Page 3)

1 WHITE J: This is an application for the issue of an order nisi directing the Board of Valuers constituted under the Metropolitan Region Town Planning Scheme Act 1959 ("the Act") to show cause before a single Judge of this Court why a writ of mandamus should not be issued against the Board of Valuers directing it to make a valuation of the land of the applicant that is subjected to injurious affection.

2 The applicant is the proprietor of a piece of land comprising 608.0604 hectares ("Lot 1010") in respect of which subdivisional approval has been given for the creation of two subdivisional lots with a combined area of 107.67 hectares ("the Land"). Amendment No 978/33 to the Metropolitan Region Scheme gazetted on 22 November 1996 altered the zoning of the Land from "Special Rural" to "Parks and Recreation Reserve, with effect from 14 November 1996. On 19 June 1997 the applicant gave notice of intention to sell the Land and applied to the Board of Valuers for a valuation of the Land as not affected. The Board of Valuers had a duty pursuant to s 36C of the Act to make that valuation.

3 By letter dated 11 March 1998, the Board of Valuers advised that it had valued the whole of the land at $2,100,000. The applicant contended that the Board of Valuers should have valued only the Land, that is, the two approved lots which were affected by the amendment to the Metropolitan Region Scheme. On 14 December 1998, on the return of an order nisi for certiorari, Miller J made the orders nisi absolute and ordered that a writ of certiorari issue, quashing the valuation made by the Board of Valuers. In so doing, his Honour upheld the applicant's submission that the Board of Valuers should have valued, not the whole of the property owned by the applicant but only the two approved lots which comprised the land adversely affected by the amendment to the Metropolitan Region Scheme which I have mentioned. The factual background to this matter is set out in his Honour's decision and it is unnecessary for me to repeat here what was then said.

4 Suffice it to say that, since that date, the applicant has requested that the Board of Valuers value the Land, in accordance with the decision of Miller J and the Board of Valuers has not yet done so.

5 The applicant now seeks an immediate order for the issue of a writ of mandamus, in view of the long delay on the part of the Board of Valuers in valuing the Land pursuant to the request made by the applicant as long ago as 19 June 1997. The applicant submits that mandamus will lie against the Board of Valuers, where time limits are not specified, if the

(Page 4)

Board of Valuers fails to carry out its duty within a reasonable time. It submits that the delay has been unreasonable because:

(a) there was no contribution to the delay by the applicant;

(b) the order absolute [for certiorari] was made on 14 December 1998; and

(c) counsel from the Crown Solicitor's Office represented the Board of Valuers at the hearing before Miller J and could have advised on the legal consequences of his Honour's decision.

6 The application is opposed and there is an affidavit sworn by Brett Cross, the Secretary to the Board of Valuers, in which the deponent says, inter alia, that on 5 February 1999 the Crown Solicitor's Office informed the applicant's solicitors that the matter was going back before the Board. Mr Cross then alleges that it had not proved possible to convene a meeting of the Board of Valuers to consider the decision of Miller J, until 5 March 1999. On that day, the meeting was held and was attended by a representative of the applicant together with its counsel and solicitors. No facts have been advanced as to why it was not "possible" to convene a meeting at an earlier date than 5 March 1999.

7 Regulations 3 and 4 of the Metropolitan Region (Valuation Board) Regulations 1967 provides:

"3. Application for compensation under section 36

(1) An owner intending to sell land that is subjected to injurious affection due to, or arising out of, the land being reserved under the Scheme shall, if intending to claim compensation pursuant to section 36 of the Act, –

(a) give notice to the Authority of his intention to sell; and

(b) apply to the Board for a valuation of the land,

in accordance with the form set out in the First Schedule to these regulations, lodged with the Authority.

(2) The owner shall indicate on the form lodged in accordance with sub-regulation (1) of this regulation whether or not it is his intention to be heard on the making of the valuation.

(Page 5)

(3) An applicant may be heard in person or by counsel.

4. Valuation required

Unless the Authority waives the requirement for a valuation, it shall present the application made pursuant to regulation 3 of these regulations to the Board and shall notify the applicant of the day and time fixed for the making of the valuation."

8 Mr Cross says that at that meeting, which it is said was not a meeting pursuant to that regulation, the Board of Valuers decided to adjourn further consideration of the matter until it had obtained legal advice regarding the method of undertaking a valuation of the Land "so that the valuation methodology used accorded with the decision of the Honourable Justice Miller and one of its members (Mr John Martin), carried out a valuation of the land in accordance with [that] decision … and the legal advice received by the Board". Acting on the instructions of the Chairman of the Board of Valuers, Mr Cross wrote on 10 March 1999 to Messrs Clayton Utz seeking an opinion and to Mr Martin requesting that he undertake a valuation of the Land. Messrs Clayton Utz furnished an opinion on 1 April 1999.

9 By a letter dated 28 April 1999 to the applicant's solicitors, Mr Cross advised that the valuation of the Land was nearing completion but that the Board of Valuers was awaiting further advice from Messrs Clayton Utz prior to finalising the valuation and that, once the valuation had been completed a meeting of the Board of Valuers would be convened shortly thereafter and the solicitors would be advised of the time and date for which the meeting was scheduled. The Board of Valuers' solicitor has been on leave, returning on 19 May 1999. There is no indication in the affidavit as to when the valuation will in fact be completed.

10 Both counsel agreed that the relevant principles to the issue of delay before me are set out in Re O'Reilly; Ex parte Australena Investments Pty Ltd [1984] 58 ALJR 36. That case concerned a complaint that the Commissioner of Taxation had failed to comply with his obligation to disallow an objection or to allow it in whole or in part, within a reasonable time. However, the court was provided with an adequate explanation of the delay which had occurred - the affairs of the objectors were very complicated and during almost a year after the objections, more than 3,000 man hours had been spent by taxation officers in the investigations. Murphy J held that the facts did not disclose a failure on the part of the Commissioner to perform his duty to determine the objections within a

(Page 6)

reasonable time. In the case presently before me, the Board of Valuers has not condescended to particularity in relation to an explanation of the delay which has taken place between 14 December 1998 and 13 May 1999 (the date of the hearing before me.)

11 The Board of Valuers has, in my opinion, in the absence of any full explanation, taken an unreasonably long time to deal with the applicant's request for a valuation. Its legal position has, I consider, been clear since it received the writ of certiorari pursuant to the order of Miller J in mid-December 1998. It has had the applicant's application before it for more that five months now and has still not completed the valuation of the Land. The Board of Valuers took nearly three months to convene a meeting after receipt of the writ of certiorari. The applicant wrote to the Board of Valuers with requests relating to the provision of the valuation on 15 November, 1998, 31 December 1998, 15, 19 and 25 January 1999 but received no response to those letters. No satisfactory explanation has been furnished by the Board of Valuers for the delays which have taken place in this matter. As I have said, I find that the affidavit filed on behalf of the Board of Valuers is deficient in particularity.

12 I am satisfied in these circumstances that the applicant was justified in seeking an order nisi for a writ of mandamus. However, in view of the assurance from the Board of Valuers that the valuation is nearly complete, and its apparent willingness to comply with its obligations, I shall, in the exercise of my discretion, not direct the issue of an order nisi at this stage. However, I shall direct the Board of Valuers to pay the costs of the application and I shall grant leave to the applicant to renew the application upon the same papers, supplemented as may be necessary, if the Board of Valuers shall not have made a valuation of the land within three weeks of the date of this decision.