Trandos v Western Australian Planning Commission
[2000] WASC 11
•31 JANUARY 2000
TRANDOS & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2000] WASC 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 11 | |
| Case No: | CIV:1497/1996 | 22-26, 30 NOVEMBER, 1, 2, 14, 15 DECEMBER 1999 | |
| Coram: | HEENAN J | 31/01/00 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Highest and best potential use related to tourist and recreational purposes and not to any use attracting a large volume of traffic | ||
| PDF Version |
| Parties: | NICHOLAS TRANDOS STAVROS TRANDOS HARISI TRANDOS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Valuation of land Resumption or acquisition Method of valuation Zoning restrictions Highest and best potential use |
Legislation: | Metropolitan Region Town Planning Scheme Act 1959 s 36 |
Case References: | Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 De Ieso v Commissioner of Highways (1981) 27 SASR 248 Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands (Trinidad) [1947] AC 56 The Crown v Murphy (1990) 64 ALJR 593 15 Lorimer Street Pty Ltd v Secretary of the Department of Infrastructure (1997) 97 LGERA 239 Boland v Yates Property Corporation Pty Ltd [1999] HCA 64 Claire Loch Gold Pty Ltd v State Planning Commission (1995) 14 SR (WA) 239 Coastal Estates Pty Ltd v Bass Shire Council (1993) 79 LGERA 188 Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358 Department of Transportation & Development v Hammons (1989) 550 So 2d 767 La App 2 CIR Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196 Joondalup Gate Pty Ltd v The Minister for Land as Delegate of the Ministry for Works, unreported; SCt of WA, Compensation Court; BC9603472; 31 July 1996 Lake Karrinyup Country Club Inc v Valuer General, unreported; SCt of WA (Parker J); BC9604209; 13 September 1996 March v City of Frankston [1969] VR 350 Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 Queensland v Blocksidge (1990) 14 QCLLR 1 Spencer v Commonwealth (1907) 5 CLR 418 TE Davis Properties Pty Ltd; Davis & Herbert Pty Ltd v Roads & Traffic Authority, unreported; NSW Land & Environment Court; 18 October 1995 The Minister v Matford Nominees Pty Ltd [1973] 2 NSWLR 58 The Minister v Stocks & Parkes Investments Pty Ltd (1973) 129 CLR 385 Turner v Minister of Public Instruction (1956) 95 CLR 245 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : TRANDOS & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2000] WASC 11 CORAM : HEENAN J HEARD : 22-26, 30 NOVEMBER, 1, 2, 14, 15 DECEMBER 1999 DELIVERED : 31 JANUARY 2000 FILE NO/S : CIV 1497 of 1996 BETWEEN : NICHOLAS TRANDOS
- STAVROS TRANDOS
HARISI TRANDOS
Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant
Catchwords:
Valuation of land - Resumption or acquisition - Method of valuation - Zoning restrictions - Highest and best potential use
Legislation:
Metropolitan Region Town Planning Scheme Act 1959 s 36
Result:
Highest and best potential use related to tourist and recreational purposes and not to any use attracting a large volume of traffic
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Representation:
Counsel:
Plaintiffs : Mr D H Solomon
Defendant : Ms C F Jenkins & Ms C V M Barton
Solicitors:
Plaintiffs : Solomon Brothers
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410
De Ieso v Commissioner of Highways (1981) 27 SASR 248
Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426
Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands (Trinidad) [1947] AC 56
The Crown v Murphy (1990) 64 ALJR 593
Case(s) also cited:
15 Lorimer Street Pty Ltd v Secretary of the Department of Infrastructure (1997) 97 LGERA 239
Boland v Yates Property Corporation Pty Ltd [1999] HCA 64
Claire Loch Gold Pty Ltd v State Planning Commission (1995) 14 SR (WA) 239
Coastal Estates Pty Ltd v Bass Shire Council (1993) 79 LGERA 188
Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358
Department of Transportation & Development v Hammons (1989) 550 So 2d 767 La App 2 CIR
Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111
Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196
Joondalup Gate Pty Ltd v The Minister for Land as Delegate of the Ministry for Works, unreported; SCt of WA, Compensation Court; BC9603472; 31 July 1996
(Page 3)
Lake Karrinyup Country Club Inc v Valuer General, unreported; SCt of WA (Parker J); BC9604209; 13 September 1996
March v City of Frankston [1969] VR 350
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Queensland v Blocksidge (1990) 14 QCLLR 1
Spencer v Commonwealth (1907) 5 CLR 418
TE Davis Properties Pty Ltd; Davis & Herbert Pty Ltd v Roads & Traffic Authority, unreported; NSW Land & Environment Court; 18 October 1995
The Minister v Matford Nominees Pty Ltd [1973] 2 NSWLR 58
The Minister v Stocks & Parkes Investments Pty Ltd (1973) 129 CLR 385
Turner v Minister of Public Instruction (1956) 95 CLR 245
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1 HEENAN J: On 16 January 1996 the defendant, the Western Australian Planning Commission, elected to acquire Lot 66 Wanneroo Road, a block of land owned by the plaintiffs. The price has not been agreed and the plaintiffs have applied for this Court to determine the value of the land pursuant to s 36(2b)(b)(ii) of the Metropolitan Region Town Planning Scheme Act 1959.
2 The land was zoned "Rural" under both the Metropolitan Region Scheme and the City of Wanneroo Town Planning Scheme No 1, the former being a town planning scheme for the metropolitan region of Perth and the latter being a scheme made by the City of Wanneroo. The provisions of the latter scheme are required by s 34 and s 35 of the Act to be in accordance with and consistent with the provisions of the former. In November 1994, by an amendment to the Metropolitan Region Scheme, approximately 60 per cent of the land was reserved for "Other Major Highways". During the following year the balance was reserved for "Parks and Recreation". Meanwhile, on 31 March 1995 the plaintiffs had applied to the defendant for approval to commence development on the portion already reserved. The application was refused. In October 1995 the plaintiffs served on the defendant a claim for compensation by reason of that refusal. The claim prompted the election to acquire the land, and the plaintiffs commenced this action shortly afterwards.
3 Pursuant to an order made on 17 June 1998 by consent of the parties the action came before me for trial of preliminary issues relating to the "highest and best use" of the land as at 16 January 1996 had it not been reserved for public purposes. The issues were drafted with the provisions of s 36(2b) of the Act in mind. By reason of those provisions the Court is required to determine the value of the land on the date the defendant elected to acquire it without regard to any alteration in value attributed wholly or in part to restrictions placed on the land as a result of its being reserved for public purposes. In that way statutory effect is given to the principle stated by the Privy Council in Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands (Trinidad) [1947] AC 565 at 572.
4 The phrase "highest and best use" does not appear in the Act nor, as far as I am aware, in other legislation. I have been unable to discover its precise origin, but over the past 30 years or more the phrase has been applied in many Australian cases dealing with compensation to the landowner for compulsory acquisition of his land. In Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415 Jacobs J said, "… the highest and best use means exactly what it
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- says - the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential." It is as well to note that at this preliminary stage the Court is not engaged in the valuation process. In other words, it is concerned not with how the hypothetical prospective purchaser or developer would have viewed such a potential in the light of all of the information available to her or him but rather with the prospects of the potential being achieved. To that extent the present task of the Court is different from that of Wells J in De Ieso v Commissioner of Highways (1981) 27 SASR 248.
Background to the acquisition
5 The land is located at Woodvale, about 19 km north of the Perth Central Business District, within the City of Wanneroo. It occupies 2.0286 ha and is rectangular in shape. It is situated at the north-western corner of the intersection of Wanneroo Road and Whitfords Avenue, with an 82.69 m frontage to the former road and a 245.26 m frontage to the latter. Wanneroo Road runs north and south, Whitfords Avenue east and west. The intersection is a "T" junction, Whitfords Avenue joining and ending at the western side of Wanneroo Road. About 800 m south of the intersection Gnangara Road, which like Whitfords Avenue runs east and west, joins the eastern side of Wanneroo Road.
6 Wanneroo Road is a State road, for which the Main Roads Department is responsible. It is classified by the Department as a "primary distributor", the function of which is to carry large volumes of generally fast moving traffic from one part of the metropolitan region of Perth to another. Whitfords Avenue forms part of the network of roads within the City of Wanneroo and is under the care and control of the City. It is classified by the Department as a "district distributor A", the function of which is to carry traffic between industrial, commercial and residential areas and generally to connect to primary distributors.
7 In his statement of evidence Mr Tony Lambert, a planning consultant who was employed by the defendant until 1986 and whose firm has been acting for the plaintiffs since 1989 or thereabouts, described the surrounding land uses as follows:
"To the north and west of the site, the largely vacant land which has been cleared of any significant vegetation as a result of intensive market gardening, grazing of livestock and the keeping of horses has been reserved for Parks and Recreation to complement the Walluburnup Swamp/Wetland. The land to the
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- east of Wanneroo Road which has been earmarked as an extension of the Wangara Industrial Estate (north of Gnangara Road) and residential development (south of Gnangara Road) comprises a mix of market gardens, retail nurseries, chiropractic centre and various residential dwellings. To the south of Whitfords Avenue is located the former Cherokee Indoor Sports Centre Complex recently converted into a Christian Outreach Sporting Centre, the Cherokee Mobile Homes and Caravan Park and the Special Residential Estate that includes a number of substantial houses overlooking Lake Goollelal.
A number of these land uses, particularly on the eastern side of Wanneroo Road are in a state of 'transition' as they await the residential and industrial expansion of Wangara and Landsdale."
- The area which is "reserved for Parks and Recreation to complement the Walluburnup Swamp/Wetland" now is known as the Yellagonga Regional Park.
8 The eastern boundary of Lot 66, which adjoins Wanneroo Road, faces what has been earmarked as an extension of the Wangara Industrial Estate. The southern boundary, which adjoins Whitfords Avenue, faces what was formerly the Cherokee Indoor Sports Centre Complex. The remaining two boundaries adjoin the Yellagonga Regional Park. In the words of Mr Oscar Drescher, a planning consultant who was formerly the planner for the City of Wanneroo, the plaintiffs' land is "land locked between the regional road system and the Yellagonga Regional Park".
9 In July 1974 the Metropolitan Region Planning Authority, a predecessor of the defendant, proposed that Gnangara Road be re-aligned so as to join Wanneroo Road directly opposite Whitfords Avenue, thereby forming a four-way intersection . Included in the proposal was an amendment to the Metropolitan Region Scheme reserving private land for the purpose. Lot 66, which was owned then by Mr and Mrs Dymock, was part of the land affected by the proposal. Mr and Mrs Dymock objected on the ground that they wished to continue operating their poultry farm as they had done for years. As a result of their objection, and others, the amendment was modified to exclude their land, leaving it zoned "Rural".
10 Until 1993 Lot 66 still was used as a poultry farm. Presently it is used for the growing of hydroponic cucumbers. From the mid-1980s onwards the plaintiffs made a number of applications to have all or part of it rezoned. In November 1986 the City of Wanneroo refused their
(Page 7)
- application for rezoning to accommodate a service station. The refusal was based on the ground that "the proposal is an ad hoc request to create a spot zoning unrelated to other commercial activity". Mr Nicholas Trandos, who is one of the plaintiffs and who was a councillor of the City and chairman of its Town Planning Committee, had declared an interest in the application and abstained from voting. It seems that on other occasions in the mid-80s the City itself had initiated amendments to the zoning of the land and, while he was employed by the defendant, Mr Lambert had actually refused those amendments.
11 In February 1990 on behalf of the plaintiffs Mr Lambert's firm submitted an application to the City of Wanneroo for rezoning of Lot 66 to accommodate six small family restaurants/takeaway food premises and a service station. In July 1990 the City resolved to initiate Amendment No 542 to its Town Planning Scheme No 1 to rezone the land from "Rural" to "Special Zone (Restricted Use) Service Station, Restaurants/Fast Foods". The Minister for Planning declined several requests from the City for his consent to advertising of the proposed amendment for public comment. In May 1992 the plaintiffs submitted an amended design which included a "Convention/Function Centre".
12 The design as amended was substantially the same as that which the plaintiffs were to submit to the defendant on 31 March 1995 with their application for approval to commence development on the land. The design provided for a service station, three fast food restaurants, three restaurants and three function centres. The service station and one of the fast food restaurants (a McDonalds outlet) were to occupy the easternmost quarter of the land, the service station occupying the northern part of the quarter and facing Wanneroo Road and the McDonalds outlet occupying the southern part of the quarter. The remaining two fast food restaurants were to occupy the adjoining quarter. The function centres and the restaurants were to occupy the western half of the land. Access from Wanneroo Road was to be by way of a deceleration lane commencing about 30 m north of Whitfords Avenue and leading to an entry at the north-eastern corner of the land. There were to be two means of access from Whitfords Avenue. At the south-western corner of the land (about 240 m from Wanneroo Road) there was to be a driveway with one entry lane and two exit lanes, one of the latter for vehicles turning right and the other for vehicles turning left. Further, there was to be a deceleration lane commencing about 160 m from Wanneroo Road and leading to an entry about 80 m further east. Within the site there were to be appropriate parking areas and driveways.
(Page 8)
13 The City resolved that the amendment be modified to incorporate the amended design. Again the application was submitted to the Minister. Again, the Minister withheld his consent. On 13 January 1993 the Acting Town Clerk wrote to the Minister. The letter set out in detail the terms of the City's resolution and requested the Minister to reconsider his decision. On this occasion, after reading the letter and discussing the proposal with Mr Nicholas Trandos, the Minister gave his consent. In doing so he acted contrary to the recommendation of the Committee for Statutory Procedures, a committee to which the defendant delegates its powers in respect of development applications. By letter dated 18 February 1993 the secretary of the Committee informed the City of the Minister's decision. The letter included the following passage:
"The Hon Minister has concerns however regarding the proposal for a service station in this location and the access and circulation arrangements which appear unsatisfactory.
Consent to advertise was granted notwithstanding a recommendation from the Committee for Statutory Procedures that the rezoning should be refused for the following reasons:
1. The proposed rezoning and subsequent development would give rise to excessive traffic generation at the intersection of Wanneroo Road/Whitfords Avenue which would interfere with the free flow of traffic and create a potential traffic hazard.
2. The proposal conflicts with the Metropolitan Centres Policy which advocates that commercial development should be located in planned centres. The proposal would result in ad hoc ribbon development contrary to the objectives of the Policy.
3. The proposal would be detrimental to the visual amenity of the Yellagonga Regional Park.
4. The proposal has not been designed to promote integration with land to the north of the site and therefore does not satisfy the objectives of the Yellagonga Regional Park Report.
5. Part of the site of the proposed rezoning may be required for road improvements and the proposal could prejudice this requirement.
(Page 9)
- Council is requested to respond to concerns in 2 and 3 above if and when the Amendment is submitted for final approval."
- Later in February 1993 the proposed amendment was advertised. Eleven submissions were received. The submission of the Main Roads Department and seven others were against the proposal, two supported it and one requested the retention of trees. The City did not proceed with the amendment.
14 Against that background it is convenient first to deal with two submissions made on behalf of the plaintiffs: one arising from application of the Pointe Gourde principle and the other arising from the Minister's granting his consent to advertising of the proposed Amendment No 542.
Pointe Gourde principle
15 As mentioned earlier, the principle requires that the value of the land be determined without regard to any alteration in value attributed wholly or in part to restrictions placed on the land as a result of its being reserved for public purposes. In Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 at 434 the Privy Council explained that under the principle a resuming authority cannot by its project of resumption destroy the developmental potential of the land and then assess compensation for its resumption on the basis that the destroyed potential had never existed.
16 The evidence shows that as early as 27 July 1992, in the course of a discussion with officers of the defendant regarding the plaintiffs' application for rezoning, officers of the Main Roads Department commented that projected traffic volumes seemed to suggest that grade separation (ie the use of some sort of flyover or underpass) would be required at the intersection of Wanneroo Road and Whitfords Avenue, a consideration which would have implications for the application. By mid-October 1992 Mr Muttaqui, a planning engineer in the Department, had informed an officer of the defendant that grade separation was required and that a preliminary design showed that its construction would severely affect Lot 66, thereby limiting its development potential. After further consideration had been given to this aspect of the matter, on 16 December 1992 there was a meeting between officers of the Department, the defendant and the City of Wanneroo at which it was confirmed that grade separation would be required in order to maintain "a satisfactory level of service" for the intersection and that the Department would initiate an amendment to the Metropolitan Region Scheme once the defendant and
(Page 10)
- the City of Wanneroo had agreed on the location of a ramp on the eastern side of Wanneroo Road.
17 On 2 April 1993, following advertising of the proposed amendment, an officer of the Department wrote to the Town Clerk of the City of Wanneroo stating that the Department "is opposed to this Amendment as the proposal allows for the establishment of a high traffic generating development adjacent to the Wanneroo Road/Whitfords Avenue intersection". Having commented that "this form of development should be contained within planned regional shopping centres" the letter went on to make further comments, the last of which was that grade separation was "being proposed" at the intersection and that an amendment to the Metropolitan Region Scheme "will be required to allow for this".
18 When they learnt that the City did not intend to proceed with the amendment the plaintiffs arranged to meet representatives of the City, the Main Roads Department and the defendant in order to discuss the matter. At the meeting, its seems, it was agreed that the best option was to investigate acquisition of the land at the earliest possible time in order to allow the plaintiffs to relocate their poultry farm. On 2 June 1993 a senior officer of the defendant wrote to the Commissioner Main Roads proposing that the Department purchase the land, with some contribution by the defendant in respect of that part which was not required for the purposes of grade separation and which was to be incorporated into the Yellagonga Regional Park. In the course of relating the history of the matter the author of the letter wrote:
"It came to light during the advertising period that Main Roads had undertaken some traffic forecasting which had given rise to the potential need for a grade-separated crossing at the intersection of Wanneroo Road and Whitfords Avenue."
- That passage misstated the true situation. As we have seen, the potential need for grade separation had been discussed as early as 27 July 1992, well before the advertising period.
19 Counsel for the plaintiffs submitted that the form of objection by the Department in its letter of 2 April 1993 and the misstatement in the defendant's letter of 2 June 1993 were calculated to conceal the fact that the requirement for grade separation was the true reason for objection to the proposed amendment. The submission, I believe, is unfounded. As early as 1990 the Main Roads Department had objected to the proposed rezoning for reasons of traffic safety and amenity and the defendant had objected because the proposal presented an ad hoc development, included
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- a service station and could prejudice the development of the Yellagonga Regional Park - grounds substantially the same as those upon which they have relied ever since.
20 I am far from satisfied that there was any attempt to mislead the plaintiffs or anyone else as to the true reason for the objection. Nevertheless, I am satisfied that there was a direct connection between the perception by the authorities of the need for grade separation and the failure of the plaintiffs' application to have the land rezoned. Thus application of the Pointe Gourde principle to the circumstances of this case requires that, in deciding whether the land would have been rezoned, I should ignore not only the reserving of the land for public purposes but also the potential need for grade separation (see the observations of the High Court in The Crown v Murphy (1990) 64 ALJR 593 at 594-5).
Minister's consent to advertising
21 Counsel for the plaintiffs submitted that, but for the objection by the Main Roads Department, the proposed Amendment No 542 would have been finally approved by the Minister and a development in the form of, or not materially different from, that proposed by the plaintiffs in March 1995 would have been completed long before 16 January 1996. The submission was based substantially on the fact that, contrary to the recommendation of the Committee for Statutory Procedures, the Minister had consented to advertising the proposed amendment and, despite a request by the Committee to reverse his decision, he had adhered to it.
22 When granting his consent the Minister had endorsed the Town Clerk's letter of 13 January 1993 as follows:
"Having read this letter I am prepared to reconsider and allow this to go to advertising. However, it should be noted that I do so with the following specific reservations:-
1. Having a service station on this site especially in the position and with the access indicated.
2. The traffic entry and circulation which seem to me to be almost unworkable.
……..
The access ways in general should not go through car parking areas - especially where children are likely to be.
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- It is also sometimes better to have more vegetation on site than on the verge.
- 3. The approval to advertise is only that and the final approval will depend on public submissions and some resolution of the issues I have raised.
David Smith
18/1/93"
- In evidence, Mr Lambert referred to the Minister's consent as being "a very significant step". In his supplementary statement of evidence Mr Anthony Shrapnel, a town planner who gave evidence on behalf of the plaintiffs, said:
"1. The planning process deliberately includes both technical and political aspects. While it is the role of the planning professional to advise political masters, the responsibility for decision making (quite rightly) rests squarely with the politicians. While a responsible politician will properly consider technical advice, he or she will always consider the wider social and political context when making decisions. This is a valuable part of our democratic process and is a safeguard against our society being run by technocrats. It is common enough for politicians to make decisions contrary to the technical advice provided. This is particularly the case in planning matters.
2. Securing the Hon. Minister's consent to advertise a scheme amendment, rather than being an event of no account, is in any attempt to rezone land the first major hurdle. When you secure consent to advertise, you are not still standing in the blocks, … you are definitely off and running. Normally, after advertising you could fairly well count on achieving final approval, provided there was no major public opposition to the proposal expressed during the advertising period. If there is major public opposition, then you have a second major hurdle that you need to overcome.
3. I have been involved with rezoning proposals that were refused permission to advertise time and again, then finally allowed after an extended period of persistent
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- effort by the applicant, often at the political level. I have been involved with rezonings that have been advertised, and met severe public opposition, with this subsequently being countered by extensive public relations activity, ultimately turning the situation right around in the applicant's favour. These activities have all eventually resulted in successful commercial developments serving the community.
- The main point I wish to make is that an approval by a planning minister to advertise a rezoning in opposition to the technical advice being given is not inconsequential, but rather a major step along what can be a tortuous trail for an applicant. Good developments will often result from this process, if the applicant persists."
- In his evidence-in-chief Mr Shrapnel acknowledged that approval of a rezoning proposal is not a necessary consequence of ministerial consent to advertising. But he went on to say,
"… the only thing from that point that will subsequently undo the applicant would be significant public opposition to the proposal. That would then make subsequent ratification impossible for a council. So really it's all over bar the shouting, literally, once you have got to advertising. … If there's no shouting you can more or less be quite certain that you will proceed to final approval. … It has been my experience that a kind of a kite-flying type of proposal that doesn't have intrinsic merit from a planning point of view will tend to fall by the wayside after a refusal because it doesn't have rationale and the energy to keep going, but where a proposal appears to be fundamentally sound and the applicant knows that it's sound for the purpose, and his consultants believe that it's sound for the purpose, then the chances are he will try again and again and may eventually be successful where he wasn't in the first instance, and I have direct experience on some of these processes that have taken up 5 to 7 years to eventually achieve the applicant's aim."
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- was content for the time being to draw attention to some issues of a practical nature which appeared obvious and, perhaps, easy to resolve, and to defer his consideration of issues of policy. In retrospect, the issue of traffic circulation within the site might well have been resolved, but the problem posed by having a service station on the site was of a different type, likely to be contentious and difficult to resolve.
24 In those circumstances, and bearing in mind the Minister's own specific reservations, one cannot properly draw an inference from the granting of his consent to advertising as to whether or not the Minister would have given final approval to the proposed amendment or even as to whether or not he was disposed to give such approval. As it happened, there was a change of government on 16 February 1993 and the Minister was replaced. There is no evidence as to what the attitude of his successor might have been.
The argument as to the proposed development
25 Lot 66 is situated just inside the eastern border of the North-West Corridor, one of the four major urban corridors defined by the Corridor Plan which was adopted by the State Government in 1973 as a broad framework for the future development of the metropolitan area of Perth. The corridors primarily followed the existing growth pattern along the four major road arteries leaving Perth. The Plan was designed to ensure the extension of development along those roads and to discourage development occurring between them. In general terms the North-West Corridor relates to the area bounded by Two Rocks in the north, Wanneroo Road in the east, Hepburn Avenue in the south and the coast in the west. It has experienced the highest rate of growth in the metropolitan area and its rate of growth is likely to increase as the remaining land in the middle suburbs is developed. The area east of Wanneroo Road has, it is said, the potential to accommodate up to 80,000 people.
26 As we have seen, Lot 66 is within a strip situated between Wanneroo Road and the chain of wetlands which forms part of the Yellangonga Regional Park. In his statement of evidence Mr Lambert commented,
"This strip of land has always represented a bit of a dilemma to the planners and decision makers - should the regional open space be rounded off and included in the 'Parks and Recreation' Reserve; should it be left as Rural to reflect the various mix of rural/semi rural activities such as market gardening, horse
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- agistment, poultry farming, etc or should it be developed for residential/urban purposes."
- In 1993 planners employed by the City of Wanneroo prepared a draft report dealing with the strip of land. In the report they recommended that the strip be zoned "Urban" under the Metropolitan Region Scheme and that under the City of Wanneroo Town Planning Scheme there should be "various Residential, Special Residential and Tourism and Recreation Development zones." They recommended also that Lot 66 be included in an area which was proposed as "Urban" in the Metropolitan Region Scheme and "Tourism" under the City of Wanneroo District Town Planning Scheme, pointing out that the area had "very little landscape value and that views from Wanneroo Road to Walluburnup Swamp and Yellagonga Regional Park were "limited". The draft report was never formally adopted by the City, but a number of its recommendations have been implemented.
27 It is common ground that, in view of the scale and intensity of development in the locality, it would be unreasonable to regard the present use of Lot 66 as its highest and best use. In essence, the plaintiffs' case is that at the relevant time there was a reasonable likelihood that the land would have been rezoned in accordance with Amendment No 542, enabling its use as a service station/restaurant/function centre or that at least it would have been rezoned to allow residential use of a density of R40 (that is, 40 residential dwellings per hectare or lots of not more than 250 square metres). In general terms, the case in favour of the former use is that Lot 66 occupies a prominent position, situated as it is at the junction of two major arterial roads close to residential and industrial areas, and that such use would not have any adverse effect on the pleasant features of the nearby residential/tourist areas. As Mr Lambert pointed out, its location on the "homeward bound" side of both roads would be of particular commercial value, enabling people to purchase petrol on their way home from the Perth Central Business District when time often is less critical than it is on their way to work. The objections raised by the defendant to that use of the land essentially are that the proposed development
(a) would be detrimental to traffic safety and efficiency at the Wanneroo Road and Whitfords Avenue intersection,
(b) would result in ad hoc ribbon development and
(c) would be detrimental to the amenity of the adjacent Yellagonga Regional Park.
(Page 16)
- There is no issue as to the prominence of the site nor as to the commercial value of that use. The real argument arises from the objections raised by the defendant. I shall deal with those objections now.
Traffic safety and efficiency
28 Wanneroo Road is the only north/south primary distributor east of Lake Joondalup and is likely to remain so for the foreseeable future. Because of the presence of the lake system Whitfords Avenue is one of the few carriers of east/west traffic in the district. For that reason and also because the intersection is only a short distance north of Gnangara Road, which serves the growing residential and industrial areas further east, Whitfords Avenue is a key district distributor.
29 At the trial much time and energy was devoted to presenting evidence as to whether or not - and, if so, to what extent - the proposed development would have increased the number of vehicles passing through the intersection. It is unnecessary, I believe to canvass that evidence now. Since well before 1996 Wanneroo Road and Whitfords Avenue each has carried a large volume of traffic. It is inevitable that the volume will increase as the North West Corridor continues to expand. Those responsible for planning the use of the adjoining land must give careful consideration to the implications of that use upon the safety and efficiency of the intersection.
30 If Lot 66 had been developed as proposed by the plaintiffs, the site would have attracted a lot of customers, almost all in motor vehicles. Many would have gone to the service station and to the fast food restaurants during the morning and evening rush hours when the volume of traffic passing through the intersection is at its peak. Mr Garry Mason, a consulting engineer with long experience in traffic management, road safety and transport systems, testified that the proposed development would have had a significant impact on the heavy traffic carried by the intersection. He expressed concern mainly with the level of turning traffic. He gave two reasons for that concern. The first reason is that there is potential for a crash every time a motor vehicle turns either left or right. The second reason is that drivers have to slow down to turn, thereby reducing the efficiency of the intersection. He stressed that the increase in the number of vehicles is of far less significance than the increase in the level of turning traffic, particularly when vehicles are entering and leaving a site close to such an intersection. In his statement of evidence Mr Mason amplified his concern in the following way:
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- "Also, motorists travelling through this intersection itself are required to exercise a higher level of concentration than when some distance away. For example:
• Which lane do they need to be in on the approach to the intersection?
• Can they change lanes readily if required?
• What is the state of the traffic signals?
• If turning left through a Give Way sign, are there any conflicting vehicles approaching from other directions?
• What are the vehicles in front doing?
The close proximity of this site to a major intersection adds to the complexity of the decision making that approaching motorists have to undergo and hence a greater probability of error. In my view, it is the increase in complexity of traffic movements at intersections that is a major contributor to road crashes at these locations."
- Mr Mason posed the traffic problem in a way which I found helpful and convincing. The problem would have arisen not as much from increase in traffic passing through the intersection as from disruption which would have been generated by vehicles turning into and out of the proposed development. Such considerations have led the defendant to apply "a general presumption against service stations and other development involving access to freeway and controlled access highways …(and) against the development of service stations on modern major roads when access is limited to a few side roads … and regional and distributor roads servicing the newly developed urban areas" and to adopt the policy that such development should be confined to "more convenient and accessible sites associated with shopping and commercial centres in the new suburbs" (see the Draft Policy of the State Planning Commission of July 1992 on The Location and Development of Service Stations par 4.3).
Ribbon development
31 The Metropolitan Centres Policy Statement, which a predecessor of the defendant published in December 1991, was designed to provide "a framework for the planning of metropolitan centres, retailing, offices and
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- associated development in the Perth metropolitan area". Relevant passages in this Statement include the following:
"2.7 Containing commercial ribbon development
Piecemeal ribbon development of retail and commercial uses along the major roads into the city is a dominant and often unattractive feature of the urban environment. Such development can adversely affect residential amenity, impair traffic flows and safety, and result in lost opportunities to capitalise on development in more appropriate locations. It can also be difficult to serve by public transport.
Commercial ribbon development should be avoided in the planning of new areas. In existing urban areas it is recognised that there are many locations where land with frontage to a major road is already zoned for commercial purposes. In these areas there is a need to contain extensions to the commercial strip and to provide a planning framework to improve traffic circulation, safety and the quality of the environment.
…..
5.4 Commercial Ribbon Development
Commercial ribbon development of land fronting main roads will be considered as a suitable land use where it:
• represents a rounding off of existing commercial development in the area;
• is consistent with a local commercial strategy;
• forms part of an overall land use strategy for the area which includes measures to control access to and from individual properties, provides adequate car parking and safe and convenient access for pedestrians and cyclists, and addresses urban design considerations, such as building design and appearance, landscaping and advertising.
In these circumstances, planning approvals may be subject to conditions requiring shared access arrangements, contributions to road improvements, and other works which may be necessary as a result of the development.
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- Other than the situations outlined above, commercial ribbon development of land fronting main roads will generally not be supported. The location of residential land adjacent to a major road is not a justification for the redevelopment of that land for commercial purposes."
32 Although agreeing that, as a rule, developments such as that proposed by the plaintiffs should be located within shopping centres Mr Lambert went on to say:
"… this one represented a fairly unique site where you have the opportunity of providing a facility that could service both the industrial workforce and also the surrounding residential area without having an adverse impact on the amenity of the area. Often when you are locating service stations and fast food outlets, people want them but certainly don't want them adjacent to them. This one here provided a really great opportunity. It was a strategic site where you could service the growing residential population of East Wanneroo, also the existing industrial workforce. It had good exposure, good accessibility but it didn't have the disadvantage of being adjacent to a residential area which could impact on the amenity of those residents."
- Mr Shrapnel supported what Mr Lambert said, commenting that the uses in the proposed development are all clearly of the type of commercial outlet which may, under the right circumstances, be suitable not only for inclusion in a commercial centre but also for a highway location unrelated to a centre. In his second statement of evidence, after acknowledging that commercial ribbon development is "a blight on the urban landscape" Mr Shrapnel added,
"1. Commercial ribbon development as commonly understood in planning circles and in relation to the (Metropolitan Centres Policy) is comprised of showrooms, showroom warehouses, bulky goods retail outlets, car and truck sales yards (with flags) and sometimes low rise office development adjacent to highways extending over considerable distances. Sections of Albany Highway and Scarborough Beach Road are prime examples. The proposed development on Lot 66 is mainly comprised of restaurants and function centres, uses uncharacteristic of commercial ribbon development. Though service stations and fast food
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- outlets may exist within some ribbon developments, these are not the uses that give rise to the main concerns about ribbon development.
- 2. Notwithstanding the point discussed above, in my opinion, the planning context of Lot 66, including other existing and planned uses in the locality, will preclude any significant ribbon development at this location in the future. The site is bound to remain a specific node of development, rather than be a catalyst triggering a process of commercial ribbon development."
33 With the above considerations in mind I think that it is unhelpful to speculate as to whether the proposed use of the land would have led to commercial ribbon development along Wanneroo Road or Whitfords Avenue. The correct approach, in my opinion, is to recognise, as Mr Shrapnel has done, that one of the key aims of the Metropolitan Centres Policy is to manage or prevent such development but that, in the proper exercise of their discretion and while taking heed of that aim, the planning authorities would be influenced rather by factors such as the suitability of the site itself for the particular uses proposed, taking into account traffic safety and efficiency and the presence of Yellagonga Regional Park.
Yellagonga Regional Park
34 As Mr Foley related in his statement of evidence, Yellagonga Regional Park was the product of a report which was released for public comment in November 1992. Occupying some 1500 ha comprising Lake Joondalup, Walluburnup and Beenyup Swamp and Lake Goollelal, the Park includes some of the most significant wetlands in the metropolitan region of Perth. The wetlands support an abundance of wildlife and provide summer refuge for water-fowl from inland and other areas. The Park was planned so that existing wildlife and wetlands would be retained, a variety of "passive recreation facilities" developed around the lakes and a system of bicycle, pedestrian and nature trails constructed to enable people to move around the Park itself. "Recreation, Sports and Leisure" were proposed for the area adjacent to Lot 66. The final report stated that "there is a need to ensure that appropriate planning controls are in place on land abutting the Park to ensure there is no detrimental impact on the lake system" and that "structure planning and development guidelines for new developments proposed adjacent to Yellagonga Regional Park should be examined with the objective of maintaining the Park's social, environmental and recreation values and that the design of
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- new development should consider storm water drainage, principles of water sensitive design, retaining and re-establishing native vegetation, managing public access and control of development works."
35 Obviously, it is desirable that use of Lot 66 should not conflict with the functions and purposes of the Park. As to this, in his statement of evidence Mr Foley said:
Uses such as service stations and fast food restaurants which are oriented towards passing traffic, would not be proper planning for Lot 66. They would not build upon the opportunity presented by the Park (which has been acquired at considerable public expense) by integrating with and addressing it, resulting in potential detrimental impacts on the amenities of the locality including possible visual, noise, lighting, odours and fume impacts and increased potential for litter and anti-social behaviour. In addition, the amenities and landscape values of the locality and the Park could be detrimentally impacted when viewed by motorists in passing traffic given the visual prominence of this corner site. …."
36 The North-west Corridor Structure Plan which was issued in October 1977 identified the area in which Lot 66 is located as being subject to further investigations prior to inclusion in the City of Wanneroo Local Structure Plan. In March 1993 officers of the City of Wanneroo prepared a report in which it was recommended that the land be used for "Tourism and Recreation", uses which could include such things as a restaurant oriented towards the Park and tourists, a caravan park, chalets or, perhaps, a motel. The report was never adopted by the City and, in order to facilitate higher forms of development, some of its recommendations were not followed.
37 As it happens, the plan or sketch of the development proposed by the plaintiffs shows that the service station and the fast food restaurants would have been oriented towards either Wanneroo Road or Whitfords Avenue, because that is where the vehicles would have come from. The function centres and the other restaurants, being located on the higher part of the land, could well have overlooked the Park.
Conclusion
38 The written statements and oral testimony of the planning experts, traffic engineers and other witnesses who gave evidence at this trial,
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- supplemented by the reports and other documents which were tendered, have provided a great deal of information. Of that information I have considered not only that which is touched upon in these reasons but also that which I believe is relevant and helpful.
39 When speaking of relevance, there is one particular matter to which I believe reference should be made. Towards the end of his cross-examination of Mr Drescher counsel for the plaintiffs put questions which related to matters not relevant to the proceeding and which were designed to affect the credit of the witness. Until then the cross-examination had been directed to amplifying or clarifying what the witness had said in chief and to eliciting other facts which were helpful to the plaintiffs' case. His credibility did not appear to be in issue. The questions to which I refer concerned findings made by a Royal Commissioner following enquiry into the administration of the City of Wanneroo. It seems that the Royal Commissioner found that while he was the City planner, Mr Drescher had acted inappropriately on one occasion by accepting favours from a developer who had dealings with the City, on another two occasions by misleading councillors of the City as to the extent of the leasable area he was recommending for rezoning approval and on one of the two latter occasions by deliberating misleading the council as to the history and significance of the existing zoning restrictions in order to conceal his role in the formation of the agreements by which they were created. The Royal Commissioner criticised Mr Drescher also for not objecting to the acceptance by his planning staff of lunches and other benefits, and for what the Royal Commissioner found was inadequate record keeping and extremely poor administration practice in his department.
40 When counsel for the defendant objected to the questions counsel for the plaintiffs raised an allegation of bias against the witness. When the questions were put to him Mr Drescher admitted the findings and acknowledged that they were justified in part. In his closing address counsel for the plaintiffs argued that the evidence adduced by the questions presented Mr Drescher as a witness whose evidence "should be very cautiously accepted". As it happens, the findings of the Royal Commissioner have not affected my opinion as to the credibility of Mr Drescher on the matters to which he testified. Indeed, I found him to be a convincing witness. Even if I had not done so, it is unlikely that my conclusions would have differed in any way. The objections to the proposed development which occupied the attention of counsel and the Court for the greater part of the trial were those of the defendant and not of the City of Wanneroo or Mr Drescher. In retrospect I believe that I
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- should have informed Mr Drescher, pursuant to s 25(1) of the Evidence Act 1906, that he was not obliged to answer any of the questions.
41 I have concluded that as at 16 January 1996 Lot 66 had clear potential for some form of urban use and that even then it was ripe for development. While its situation at the intersection of Wanneroo Road and Whitfords Avenue gave it prominence and made it attractive from a commercial point of view, that same factor rendered it unsuitable for a service station, for a fast food outlet or outlets or for any use which would attract a large volume of traffic. Even if the land were zoned in accordance with Amendment No 542 a development application would need to have been made. Bearing in mind that it would have required the approval both of the defendant and the Main Roads Department (see the evidence of Mr Lambert under cross-examination) it is unlikely that the development could have proceeded.
42 On the other hand, the land was suitable for uses which would attract no more than a small volume of traffic and which would either enhance the attractiveness of Yellagonga Regional Park or at least complement its function and purposes. Such a use, as suggested by counsel for the defendant, would be a conventional restaurant and function centre not dependent on passing trade, a caravan park, a camping ground or other low key tourist accommodation.
43 As to the possibility of using the land for residential purposes, in my view the correct approach is that expressed by Mr Foley in his statement of evidence as follows:
"Higher density residential or aged persons developments are not considered to be appropriate uses for the site. Whilst, if carefully designed, such uses could take advantage of the adjoining Park and would be adjacent to a bus route, the site is not in close proximity to district and local centres and other community facilities, would be relatively isolated and would need to have safe vehicular access from the adjoining roads without adverse affects on the efficiency or safety of those roads."
- If there had been a residential development on Lot 66 it would have needed protection from the heavy traffic at the intersection. An estate wall - whilst providing protection, comfort and community for the residents - might also be concealed, or even rendered attractive, by trees, shrubs and imaginative landscaping.
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44 There are areas to the north of Ocean Reef Road - such as that bounded by Wanneroo Road, Ocean Reef Road, Lake Joondalup and Timberlands - which have been earmarked as "Urban" and "Special Residential" and in which there are portions, with a density from as low as 4,000 sq m and as high as R15, developed for single residential purposes. There is another area just north of Hepburn Avenue, opposite the recently developed Kingsway Shopping Centre, which has a density of R40. But, as Mr Drescher testified in cross-examination, the higher density residential development is to be found around local centres in the district. The closest such centre is about 2 km from Lot 66.
45 In my opinion, although Lot 66 is suitable for residential development, there is a strong likelihood that the density of that development would be not more than R15 or R20. The zonings and uses proposed by counsel for the defendant are those which should be adopted.
46 The preliminary issues in the order of 17 June 1998 and my answers to the questions posed by them are as follows:
Issue (a)
What highest and best use Lot 66 potentially had as at 16 January 1996 assuming that it had not been reserved for public purposes under the Metropolitan Region Scheme ("the MRS")?
Answer
Low traffic generating and low visual amenity impact tourist related and recreational purposes (such as conventional restaurant and function centre not dependent on passing trade, caravan park, camping ground or other low key tourist accommodation) which are complementary to, and capable of being integrated with, the adjacent Yellagonga Regional Park.
This use would have been subject to the proper traffic and access arrangements and public amenity considerations (in terms of both the view from Yellagonga Regional Park to the land and from the adjoining roads).
Issue (b)
What uses other than the highest and best use Lot 66 had or potentially had as at 16 January 1996 assuming Lot 66 had not been reserved for public purposes under the MRS?
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- Answer
The land had potential for rural pursuits, special residential (ie 2,000-4,000 sq m) or residential development to a density of not more than R20.
Issue (c)
What zonings under the MRS and relevant Town Planning Scheme ("the TPS") of the Local Authority would have been consistent with proper planning to accommodate each such use?
Answer
In respect of rural pursuits, "Rural" under the MRS and the TPS.
In respect of special residential development, "Urban" or "Rural" under the MRS and "Special Residential" under the TPS.
In respect of R20 residential development, "Urban" under the MRS and "Residential Development R20" under the TPS.
Issue (d)
What would have been the highest and best zoning or potential zoning of Lot 66 under the MRS and the TPS as at 16 January 1996 if Lot 66 had not been reserved under the MRS?
Answer
"Rural" with the potential for "Urban Deferred" or "Urban" under the MRS and
"Rural" with the potential for "Special Purpose (Tourism/Recreation)" or "Residential Development" under the TPS.
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