WESTERN AUSTRALIAN PLANNING COMMISSION and SCUTTI

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   WESTERN AUSTRALIAN PLANNING COMMISSION and SCUTTI [2019] WASAT 99

MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT

HEARD:   21 MAY 2019 - FURTHER DOCUMENTS FILED ON 30 MAY 2019 AND FURTHER SUBMISSIONS FILED ON 4 JUNE 2019 AND 11 JUNE 2019

DELIVERED          :   28 OCTOBER 2019

FILE NO/S:   DR 428 of 2015

BETWEEN:   WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

AND

CARMELA SCUTTI

First Respondent

ANTONIO GIUSEPPE SCUTTI

Second Respondent

PAOLA SCUTTI

Third Respondent

GIUSEPPE ALESSANDRO SCUTTI

Fourth Respondent


Catchwords:

Practice and procedure - Costs - Land valuation proceedings - Western Australian Planning Commission commenced proceedings under s 188(3) of the Planning and Development Act 2005 (WA) for determination by Tribunal of value of part of landowners' land injuriously affected by reservation for public purpose ('Primary Regional Roads') under Metropolitan Region Scheme which Western Australian Planning Commission elected to acquire instead of paying compensation for injurious affection - Valuation date for SAT proceedings is date on which Western Australian Planning Commission elected to acquire reserved land instead of paying compensation for injurious affection - Commissioner of Main Roads and landowners subsequently entered into agreements under s 168 of the Land Administration Act 1997 (WA) for acquisition by Commissioner of Main Roads of whole of landowners' land requiring Commissioner to pay compensation in accordance with the Land Administration Act 1997 (WA), with valuation date being date of s 168 agreements - SAT proceedings withdrawn by Western Australian Planning Commission (subject to determination of landowners' application for costs), because proceedings rendered unnecessary and without purpose - Whether Tribunal has power to make costs order for expenses incurred by landowners in relation to development application, refusal of which was 'triggering event' for landowners' claim for compensation for injurious affection, making claim for compensation and valuation of reserved land prior to commencement of proceedings - Exercise of discretion - Whether it is fair and reasonable that landowners be reimbursed by Western Australian Planning Commission for costs of proceedings, including expenses resulting from the matter because of which proceedings were brought - Whether Western Australian Planning Commission's conduct in connection with proceedings impaired attainment of Tribunal's objectives - Whether Western Australian Planning Commission acted unreasonably in commencing and in conducting proceedings - Whether Western Australian Planning Commission (and Commissioner of Main Roads) made decision to compulsorily acquire whole of landowners' land thereby creating new valuation date and rendering all expenses incurred by landowners in relation to claim for injurious affection and valuation as at date on which Western Australian Planning Commission elected to acquire reserved land 'useless'

Legislation:

City of Wanneroo District Planning Scheme No. 2
Land Administration Act 1997 (WA), s 168, s 168(1), s 168(1)(a), s 168(1)(b), s 169, s 169(1), s 241, s 241(2), s 241(2)(b), s 241(2)(c), Pt 10
Legal Profession Act 2008 (WA), s 275
Main Roads Act 1930 (WA), s 9, s 16, s 29(1)(b)
Metropolitan Region Scheme, cl 5, cl 12(1), cl 23(1), cl 23(2), cl 28
Planning…

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Details
Case
[2019] WASAT 99
Decision Date

CaseChat Overview and Summary

The case involved the Western Australian Planning Commission and the Scutti family, who were landowners. The dispute centered around the valuation and acquisition of land reserved for public purposes under the Planning and Development Act 2005 (WA). The Commission initiated proceedings under s 188(3) of the Act to determine the value of the reserved land, which the Scuttis claimed was injuriously affected by the reservation. The case's complexity was compounded by subsequent agreements for the acquisition of the entire land parcel by the Commissioner of Main Roads under the Land Administration Act 1997 (WA), which set a different valuation date. This case was before the State Administrative Tribunal.

The central legal issues revolved around whether the Tribunal had the authority to order the Commission to reimburse the Scuttis for costs incurred in relation to their development application, which was denied and subsequently triggered their claim for compensation. Additionally, the court had to determine if it was fair and reasonable to reimburse the Scuttis for these costs, given the Commission's conduct in initiating and managing the proceedings. Another issue was whether the Commission's actions impaired the Tribunal's objectives and if they acted unreasonably.

The Tribunal ruled that it had the authority to order the Commission to reimburse the Scuttis for the costs incurred in relation to their development application and the subsequent claim for compensation. The Tribunal found that the Commission's decision to acquire the entire land parcel under s 168 of the Land Administration Act 1997 (WA) created a new valuation date, rendering all previous expenses related to the injurious affection claim and the initial valuation 'useless'. The Tribunal concluded that it was fair and reasonable to reimburse the Scuttis for these costs, considering the Commission's conduct in initiating and managing the proceedings. The Tribunal also found that the Commission's actions did impair its objectives and that the Commission acted unreasonably in commencing and conducting the proceedings.

The final orders were that the Western Australian Planning Commission was to reimburse the Scutti family for the costs incurred in relation to their development application, the claim for compensation, and the initial valuation, as these expenses became 'useless' due to the subsequent acquisition of the entire land parcel. The Tribunal also found that the Commission's actions impaired its objectives and that the Commission acted unreasonably in initiating and managing the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

In accordance with an order made on 14 November 2018, the parties filed the following agreed statement of facts for the purposes of the determination of the costs application (agreed facts):[9][9] Agreed statement of facts (Exhibit 1) (original emphasis; references to agreed bundle of documents (Exhibit 2) omitted).Background1.The [Commission] was at all material times, and is, a statutory body corporate established under the Planning and Development Act 2005 [(WA)](PD Act), with functions and powers under that Act.2.The [Scuttis] were at all material times the registered proprietors of [L]ot 1 on Diagram 107998, known as [L]ot 1 ([No.] 614) Wanneroo Road, Pearsall, WA, contained in Certificate of Title Volume 1765 Folio 911 (Lot 1) based on a 20% share, 35% share, 20% share and 25% share respectively.3.[Carmela Scutti] was at all material times the registered proprietor of Lot 8 on Diagram 83055, known as [L]ot 8 ([No.] 590) Wanneroo Road, Pearsall, WA contained in Certificate of Title Volume 1946 Folio 866 (Lot 8).4.Lots 1 and 8 are located on the corner of Wanneroo Road and Ocean Reef Road. Both roads are Primary Regional Roads which means, inter alia, that the provisions of the Main Roads Act 1930 [(WA)] apply.5.Portions of Lots 1 and 8 are reserved for the public purpose, [namely] Primary Regional Road[s] in the Metropolitan Region Scheme (MRS) and the local planning scheme (Reserved Land). The remaining portions of Lots 1 and 8 are zoned Urban in the MRS, and Urban Development under the City of Wanneroo District Planning Scheme No[.] 2 (DPS2), and classified as 'Public Open Space' under Agreed Local Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6 (ASP 6) (Classified POS Land). The Classified POS Land is treated as if it were a Local Reserve for the purposes of DPS 2: Scutti and Others v City of Wanneroo [2018] WASCA 175[;] [(2018) 53 WAR 417;] (2018) 232 LGERA 395 ('Scutti WASCA') at [125] points 6, 7, 9 and 10.6.In Scutti WASCA, the Court made final orders following the delivery of its reasons which included an order in the following terms:' that: (a) the [Scuttis'] land was injuriously affected by reason of the making of DPS2 in that the land was reserved under DPS2 for a public purpose within [the meaning of] s 174(1)(a) of the Planning and Development Act 2005'.7.By development application received by the City of Wanneroo (City) on 19 April 2013, the [Scuttis] applied to construct a rural shed on Lots 1 and 8 (April 2013 Development Application).8.On 4 July 2013, the City refused to approve the April 2013 Development Application on the basis that:'(i)The City considers that the proposed shed addition to the above property would constitute an intensification of a 'Rural Use' in an area zoned 'Residential' which may have an adverse impact on the surrounding locality.(ii)The proposal does not meet the objectives of the 'Residential Precinct' as outlined in [cl] 4.1 of [ASP 6] as approval of the proposed shed will compromise the development of the precinct for residential purposes in the medium and long term.(iii)Approval of the proposed shed will prejudice the future planned use of the site. In this case being for public open space, contrary to [cl] 4.1(c) of ASP6.'9.By application dated 3 December 2013, the [Scuttis] applied for planning approval in relation to the whole of Lots 1 and 8 to develop 20 grouped dwellings (December 2013 Development Application) under the PD Act. The Development Application was lodged with the City as required by [cl] 28 of the MRS.10.On 25 March 2014, the Metro North-West Joint Development Assessment Panel refused the December 2013 Development Application on the basis that the proposal was inconsistent with and contrary to:(i)[cl] 6 and [Sch] 3 of ASP 6 as the ability for the provision of Public Open Space would be compromised;(ii)the objectives of the 'Primary Regional Road' reservation for which the land is reserved under the MRS, and would significantly compromise the availability of the land for future road works.11.Reason (i) was relevant to the Classified POS Land and reason (ii) was relevant to the Reserved Land.12.On 3 April 2014, the [Scuttis] lodged a joint claim for compensation for injurious affection in respect of Lots 1 and 8 with both the City (in relation to the Classified POS) and the [Commission] (in relation to the Reserved Land).13.By letter dated 14 May 2014, the [Commission] acknowledged receipt of the claim for compensation for injurious affection.14.On 25 June 2014, in lieu of paying injurious affection compensation, the [Commission] elected to purchase the Reserved Land, pursuant to s 187(1) of the PD Act and informed the [Scuttis] by letter dated 3 July 2014.15.By letter dated 3 July 2014, the City's solicitors informed the [Scuttis'] solicitor that the City had elected not to acquire the POS.16.On 9 September 2014, the [Commission] made offers of an acquisition price in respect of the Reserved Land.17.The parties were unable to reach agreement on value. In particular:a)on 3 March 2015 the [Commission] enquired as to progress; b)on 27 July 2015 the [Scuttis] wrote to the [Commission] making a counter[-]offer; andc)by letter dated 11 September 2015 the [Commission] refused the counter[-]offer.18.By letter dated 29 September 2015, the [Scuttis] gave the [Commission] 30 days' notice of their intention to commence proceedings in the Supreme Court.19.By email dated 20 November 2015 to the representatives of the [Commission] and City, the [Scuttis'] solicitor proposed arbitration in relation to the claims, as 'we have a combination of an election to purchase and injurious affection.'Tribunal proceedings20.By email dated 26 November 2015 sent at 12.02pm to the [Scuttis'] solicitor, the [Commission's] solicitor advised that the [Commission] did not wish to have the purchase price of the Reserved Land determined by arbitration and that she was instructed to make an application in the State Administrative Tribunal (Tribunal).21.At 2.51pm the [Scuttis'] solicitor replied by email on the same date asking why the [Commission] objected to arbitration.22.On the same date, the [Commission] applied to the Tribunal, pursuant to s 188(3)(b) of the PD Act, for a determination of the value of the Reserved Land, which the [Commission] elected to acquire under s 187 (DR 428/2015). The application was served on the [Scuttis'] [solicitor] by email at 4.40pm. In that email, the [Commission's] solicitor informed the [Scuttis'] [solicitor] that the reason for taking this course of action, including that:(i)the City did not concede that the Classified POS Land was injuriously affected by the local planning scheme;(ii)there was no basis for contemplating a proceeding that would involve the [Commission] and the City being parties to a single arbitration on the basis of a joint injurious affection claim;(iii)the [Commission] had accepted that the Reserved Land was injuriously affected and had elected to purchase that land; and(iv)more than 12 months had elapsed since the [Commission's] election to purchase and the [Commission] was entitled to commence proceedings to resolve the matter.23.By letter dated 27 November 2015 the [Scuttis'] solicitor wrote to the [Commission's] solicitor inviting the [Commission] to withdraw the Tribunal proceedings and foreshadowing a strike[­]out application and an application for costs with respect to DR 428/2015.24.By letter dated 2 December 2015, the [Commission's] solicitor advised the [Scuttis'] solicitor that the strike[-]out application would be opposed.25.By letter dated 2 December 2015, the [Scuttis'] solicitor advised the [Commission's] solicitor that a strike-out application pursuant to s 50 was now being issued and[,] on 3 December 2015, the [Scuttis] filed an application in the Tribunal to strike out the [Commission's] claim pursuant to s 50(1) of the State Administrative Tribunal Act 2004 (s 50 application).26.At the first directions hearing in the Tribunal on 11 December 2015, the Tribunal listed the s 50 application for hearing on 25 February 2016 and ordered the preparation of affidavit evidence and submissions.27.The parties each filed affidavits in support of and against the s 50 application respectively.28.By Originating Motion filed on 16 December 2015, the [Scuttis] applied to the Supreme Court for the appointment of an arbitrator under the Commercial Arbitration Act 2012 (WA) (ARB 8/2015).29.On 22 December 2015, the City applied to the Tribunal pursuant to s 176(1) of the PD Act seeking a determination as to whether the Classified POS Land was injuriously affected by operation of the DPS2 (DR 470 of 2015).30.In January 2016 the solicitors for the City and [the Scuttis] corresponded on the question of listing together the two sets of Tribunal proceedings (DR 470/2015 and DR 428/2015), which the City opposed. The [Commission] also opposed that course of action.31.At the directions hearing in DR 470/[2015] on 22 January 2016, the Tribunal vacated the hearing of the s 50 application on 25 February 2016 and ordered 'in lieu thereof the Tribunal is to consider on that day the [[Scuttis'] application in DR 470/[2015]] in connection with proceeding DR 428/2015'. The Tribunal also ordered all parties to file and serve a 'summary of their application in the form of points for discussion'. The hearing was subsequently relisted on 26 February 2016.32.Subsequently the City, the [Commission] and the [Scuttis] respectively prepared and filed points for discussion for the hearing on 26 February 2016 in DR 470/[2015].33.In the [Scuttis'] Points for Discussion document filed on 8 February 2016 in DR 470/2015, the [Scuttis] sought programming orders for a hearing in DR 470/2015 (paragraph 15) and sought that DR 428/2015 'be suspended in its entirety until DR 470/2015 is finally resolved' (paragraph 16).34.After hearing from the parties on 26 February 2016, the Deputy President of the Tribunal ordered that DR 428/[2015] is 'adjourned to a further directions hearing at 10.00am on 29 July 2016, in order to list the application for a strike out of the proceeding under s 50 of the State Administrative Tribunal Act 2004 (WA) if pressed, and otherwise to list for final hearing.'35.By the parties' agreement and request, the Tribunal subsequently further adjourned DR 428/2015 administratively by orders dated 25 July 2016, 8 September 2016, 28 March 2017, and 21 November 2017.36.ARB 8/2015 was adjourned pending the outcome of the proceedings relating to DR 470 of 2015, and was ultimately withdrawn on 2 November 2018 with no order as to costs.37.The Tribunal delivered its reasons in DR 470/2015 on 23 August 2016 (City of Wanneroo [and] Scutti and others [sic] [2016] WASAT 102). Appeal proceedings in the Supreme Court subsequently ensued: Scutti and Others v City of Wanneroo [2017] WASC 70[;] (2017) LGERA 144 (heard on 17 January, delivered on 21 March 2017) and Scutti WASCA (heard on 19 April 2018 and delivered on 12 October 2018).38.In January 2018 the Commissioner [of] Main Roads approached the [Scuttis] with regard to a proposal to resume the whole of [L]ots 1 & 8 by way of either a s 168 agreement to take or a taking on an involuntary basis under the Land Administration Act 1997 [(WA)]. The resumption proceeded by way of s 168 agreement which required a taking order to be registered.39.On 9 August 2018, a taking order was registered at Landgate by the Commissioner [of] Main Roads for the whole of Lots 1 and 8 for the purpose of 'Wanneroo Road and Ocean Reef Road interchange' rendering the proceedings in DR 428/2015 of no utility to either party.40.The parties have taken no further steps in relation to DR 428/2015 pending resolution of the appeals in respect of DR 470/2015, other than to agree [to] adjournments of the directions hearing, and then to bring DR 428/2015 to an end by agreement pursuant to orders made on [14] November 2018, subject to resolution of the [Scuttis'] claim for costs.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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