Western Australian Planning Commission v The Board of Valuers - [2018] WASCA 145

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WESTERN AUSTRALIAN PLANNING COMMISSION -v- THE BOARD OF VALUERS [2018] WASCA 145
CORAM:   MARTIN CJ
BUSS P
MURPHY JA

HEARD:   11 AUGUST 2017 & 19 FEBRUARY 2018
DELIVERED          :   21 AUGUST 2018
FILE NO/S:   CACV 102 of 2016
BETWEEN:   WESTERN AUSTRALIAN PLANNING COMMISSION
Appellant
AND
THE BOARD OF VALUERS
First Respondent
LOIS JOY PRESTAGE
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   BEECH J
Citation: WESTERN AUSTRALIAN PLANNING COMMISSION -v- THE BOARD OF VALUERS [2016] WASC 326
File Number             :   CIV 1229 of 2016

Catchwords:

Administrative law - Injurious affection of land - Appellant the responsible authority under the Planning and Development Act 2005 (WA) - Valuation of land by the Board of Valuers - Board owed a duty of procedural fairness to the appellant - Whether the duty of procedural fairness was breached - Whether in any event the procedure adopted by the Board in the valuation of the land was so unreasonable as to exceed its jurisdiction

Legislation:

Planning and Development Act 2005 (WA), s 7, s 14, s 15, s 173, s 176, s 177, s 179, s 182, s 183, s 187, s 188
Planning and Development Regulations 2009 (WA), reg 39, reg 40

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr K M Pettit SC & Mr J M Misso
First Respondent	:	No appearance
Second Respondent	:	Mr H H Jackson (11 August 2017) Mr P McQueen (19 February 2018)

Solicitors:

Appellant	:	State Solicitor for Western Australia
First Respondent	:	No appearance
Second Respondent	:	Lavan

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

Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231
Babalis v City of Adelaide (1985) 38 SASR 450
Carroll v Sydney City Council (1989) 15 NSWLR 541
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Director of National Parks and Wildlife v Barritt (1990) 102 FLR 392
Duncan v Independent Commission against Corruption [2016] NSWCA 143
Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309
Graham v Baptist Union of New South Wales [2006] NSWSC 818
Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Marsh v Australian Capital Territory [2014] ACTSC 81; (2014) 288 FLR 116
McKay v Commissioner of Main Roads [2013] WASCA 135
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966
National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396
Sharpe v Brown [1918] VLR 678
Somaghi v The Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527
West Australia Planning Commission v Navarac Pty Ltd [2009] WASC 399
Western Australian Planning Commission v The Board of Valuers [2016] WASC 326
Woollahra Municipal Council v Minister for Local Government [2016] NSWCA 380; (2016) 219 LGERA 180

Table of Contents

MARTIN CJ

Ground 1 of the appeal

Ground 2 of the appeal

BUSS P

The relevant statutory scheme

The evidence before the primary judge

The primary judge's findings of fact

WAPC's grounds of appeal before the primary judge

The primary judge's reasons

The grounds of appeal before this court

Ground 1 before this court: counsel for WAPC's submissions

Ground 1 before this court: counsel for Mrs Prestage's submissions

Ground 1 before this court: its merits

Ground 2 before this court: counsel for WAPC's submissions

Ground 2 before this court: counsel for Mrs Prestage's submissions

Ground 2 before this court: its merits

Conclusion

MURPHY JA

Compensation payable

Board of Valuers

Valuations by the Board

Regulations concerning valuation by the Board

Principles of procedural fairness

Disposition

Ground 1

Ground 2

Conclusion

MARTIN CJ:

This appeal should be dismissed essentially for the reasons given by the trial judge, and which have been elaborated by Murphy JA in terms with which I agree.

Ground 1 of the appeal

I respectfully agree with the entirety of the reasons given by Buss P in relation to ground 1 of the appeal other than his observation[1] that the Board of Valuers (the Board) would ordinarily be obliged to give the Western Australian Planning Commission (WAPC) (or another responsible authority) notice of, and an invitation to be heard in respect of, its valuation, and his reliance upon:
(a)the lack of evidence with respect to the matters specified in par 146 of his reasons; and
(b)the fact that WAPC did not receive a copy of the Volk Report until after the Board had determined the value of the land 'as not so affected'[2]

to support his conclusion that the Board was obliged to give express notice to WAPC of the procedural course it would follow, to expressly invite WAPC to put forward any evidence and to make any submissions prior to its meeting, and to expressly invite WAPC to appear before the Board at its meeting.

[1] [133].

[2] [150].

In my respectful view, in all of the circumstances of this case, the lack of evidence to which his Honour refers, and the fact that WAPC did not receive a copy of the Volk Report until after the Board's determination do not, either singly or in combination, sustain the conclusion that the Board was required to expressly advise WAPC of the various matters to which Buss P refers in order to avoid practical injustice.
The circumstances of this case are very different to, and distinguishable from, the circumstances in each of Babalis,[3] Carroll,[4] and Somaghi[5] cited by Buss P. The first two of those cases involved circumstances in which the relevant decision‑maker was not entitled to proceed on an assumption that the party who might be adversely affected by the exercise of the relevant power was aware of the right to be heard, and the manner in which that right could be exercised prior to the exercise of the power.
[3] Babalis v City of Adelaide (1985) 38 SASR 450.
[4] Carroll v Sydney City Council (1989) 15 NSWLR 541.
[5] Somaghi v The Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 100.
By contrast, in the present case, for the reasons given by the trial judge and Murphy JA, the Board was entitled to assume that WAPC, an agency of the State with detailed knowledge of and experience with the Board's exercise of the relevant statutory power and its consequences, was aware that it had the right to engage in the process of valuation and put evidence and submissions before the Board if it wished to do so. The Board was entitled to assume, from all the circumstances, including in particular Mr Hillyard's email of 16 July 2015 to the Board advising that the 'Notice of Intention to Sell should take its course' and that 'this will establish the unaffected value', that WAPC was aware of the process of valuation which would ensue and would, if it wished, give notice to the Board of any desire on its part to participate in the process of valuation by the provision of evidence or submissions to the Board. In those circumstances, the Board was entitled to assume, from the lack of any further communication from WAPC, that WAPC did not wish to exercise its right to engage in the process.
Further, as Buss P notes, it is of some significance that WAPC can be taken to have known that the statutory framework did not include an express obligation on the part of the Board either to communicate to WAPC the date of the meeting at which the Board would make its valuation, or to invite WAPC to put forward any evidence, or to make any submissions that WAPC might wish the Board to take into account in making its valuation.
Somaghi was a case in which practical injustice was found to arise from a decision‑maker's failure to give notice to a party who had engaged in the provision of evidence and submissions to the decision‑maker of the decision‑maker's intention to draw an adverse conclusion (described by Jenkinson J as an 'animadversion') which could not have been reasonably anticipated by the affected party.
By contrast, in the present case the Board was entitled to assume, and the court entitled to find, that WAPC was aware that:
(a)Ms Prestage was going to exercise her right to place evidence and submissions before the Board prior to its determination of the affected and unaffected values of the land; and
(b)the evidence and submissions that Ms Prestage would place before the Board were likely to be similar, if not identical to, the evidence and submissions she had presented to the State Administrative Tribunal in the proceedings that were discontinued; and
(c)the Board would be obliged to take into account the evidence and submissions presented on behalf of Ms Prestage; and
(d)the Board would proceed to make its determination of the affected and unaffected values of the land taking into account the evidence and submissions presented on behalf of Ms Prestage, and its own views of value formed in accordance with the procedures it was required to follow, unless WAPC exercised its right to present evidence and submissions to the Board prior to its determination of the affected and unaffected values of the land.
In these circumstances there is no practical injustice arising from the Board's failure to expressly advise WAPC of matters which the Board was entitled to assume WAPC knew.
In the circumstances of this case, the course followed by the Board did not involve any practical injustice to WAPC.

Ground 2 of the appeal

I also respectfully agree with the reasons given by Buss P in relation to ground 2 of the appeal, save for his conclusion that the Board's exercise of its powers was legally unreasonable because it denied WAPC procedural fairness,[6] essentially because of my view that the first ground of appeal must be dismissed. The other aspects of the second ground of appeal advanced by WAPC are without merit, for the reasons given by Murphy JA, with which I agree.
[6] [179].

BUSS P:

On 16 February 2016, the appellant (WAPC) made an application in the General Division of the Supreme Court for judicial review of a valuation made by the first respondent (the Board of Valuers) under s 183(1) of the Planning and Development Act 2005 (WA) (the PD Act) relating to land at Lot 1610, Barrett Road, Southern River (Lot 1610) owned by the second respondent (Mrs Prestage).
On 15 September 2010, Lot 1610 was reserved for 'Parks and Recreation' under the Metropolitan Region Scheme (the MRS) and the City of Gosnells Town Planning Scheme No 6.
On 3 July 2015, Mrs Prestage, by a single written notice addressed to WAPC and the Board of Valuers, informed WAPC of her intention to sell Lot 1610 and applied to the Board for a valuation of the land. In that notice Mrs Prestage informed the Board of her intention to be heard on the valuation of Lot 1610.
The Board of Valuers was required to value Lot 1610 as if it were unaffected by the reservation.
Grounds 1 and 2 of WAPC's application in the General Division of the Supreme Court alleged, in effect, that the Board of Valuers had failed to accord procedural fairness to WAPC and had acted unreasonably by basing the valuation on expert reports that Mrs Prestage had relied on previously in contentious proceedings in the State Administrative Tribunal (the Tribunal) without giving WAPC the opportunity to adduce evidence to the contrary and make submissions.
Ground 3 alleged, in effect, that in making the valuation the Board of Valuers misconstrued a relevant provision of the PD Act.
Grounds 4 and 5 alleged, in effect, that in making the valuation the Board of Valuers breached the procedural requirements of the Planning and Development Regulations 2009 (WA) (the PD Regulations).
The primary judge, Beech J, rejected each of the grounds and dismissed WAPC's application.
WAPC has appealed to this court on grounds which mirror substantially grounds 1 and 2 of WAPC's application before the primary judge.
I would allow the appeal and quash the Board of Valuers' valuation of Lot 1610. My reasons are as follows.

The relevant statutory scheme

WAPC was established by s 7(1) of the PD Act. Section 7(2) provides that WAPC is a body corporate with perpetual succession. By s 8, WAPC is an agent of the State and has the status, immunities and privileges of the State.
Section 14 and s 15 confer on WAPC extensive functions and powers in relation to land use planning and land development in the State.
Part 11 of the PD Act is headed 'Compensation and acquisition'. It comprises s 171 to s 197.
Division 2 of pt 11 is concerned with compensation where land is injuriously affected by a planning scheme.
Section 173(1) provides that, subject to pt 11, any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.
By s 177(1), relevantly, when under a planning scheme any land has been reserved for a public purpose, no compensation is payable by the responsible authority for injurious affection to that land, alleged to be due to or arising out of such reservation, until:
(a)the land is first sold following the date of the reservation; or
(b)the responsible authority refuses an application made under the planning scheme for approval of development on the land or grants approval of development on the land subject to conditions that are unacceptable to the applicant.
Section 179(1) provides, subject to div 2 of pt 11, that the compensation payable for injurious affection due to or arising out of the land being reserved under a planning scheme, where no part of the land is purchased or acquired by the responsible authority, is not to exceed the difference between:
(a)the value of the land as so affected by the existence of such reservation; and
(b)the value of the land as not so affected.
Section 179(2) provides that the values referred to in s 179(1)(a) and (b) are to be assessed as at the date on which:
(a)the land is sold; or
(b)the application for approval of development on the land is refused; or
(c)the approval is granted subject to conditions that are unacceptable to the applicant.
By s 176(1), a claimant or responsible authority may apply to the Tribunal for determination of any question as to whether land is injuriously affected. By s 176(2), any question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid as compensation under div 2 of pt 11 is to be determined by arbitration under and in accordance with the Commercial Arbitration Act 2012 (WA), unless the parties agree on some other method of determination.
Section 177(3)(a)(ii) provides that an owner claiming compensation after selling the land must have given written notice to the responsible authority of their intention to sell.
The Board of Valuers was established by s 182(1). The Board consists of a chairperson and three other members appointed by the Governor. By s 182(2)(a), the chairperson of the Board is nominated by WAPC. Section 182(2)(b) provides that the three other members of the Board are to be nominated by The Real Estate Institute of Western Australia. By s 182(3), each of the persons appointed to the Board must be an Associate or a Fellow of the Australian Property Institute.
By s 183(1), an owner who has given notice of their intention to sell and claim compensation is, unless the responsible authority waives the requirement, to apply to the Board of Valuers in the prescribed manner for a valuation of the land as not so affected, and the Board of Valuers is to make the valuation.
Section 183(2) provides, relevantly, that a valuation made by the Board of Valuers under s 183(1) is to be communicated to the land owner and to the responsible authority, and for the purposes of div 2 of pt 11 is final. Section 183(3) provides that upon receipt of a valuation made by the Board under s 183, the responsible authority is to advise the owner of the subject land of the minimum price at which the land may be sold without affecting the amount of compensation (if any) payable to him or her under div 2 of pt 11.
Regulations 39 and 40 of the PD Regulations provide:
39.Application for valuation (Act s. 183(1))
(1)For the purposes of section 183(1) an application by an owner of land for a valuation of the land must be made by posting or delivering a written application to the Board at the office of the Commission.
(2)The application must ‑
(a)describe the land to which it relates; and
(b)state whether the owner wants to be heard by the Board on the making of the valuation.
40.Board of Valuers, procedure for
(1)On receiving an application made under section 183(1) the Board’s chairperson must -
(a)appoint a member of the Board (other than the chairperson) to -
(i)inspect the land concerned; and
(ii)prepare and summarise the data necessary for the making of a valuation; and
(iii)give the Board a preliminary report,
before the day fixed for the making of the valuation; and
(b)give the applicant written notice of the day and time fixed for the making of the valuation.
(2)Any evidence presented to the Board by an applicant must be in the form of a statutory declaration.
(3)An applicant is entitled to be heard by the Board, either in person or by counsel.
(4)The Board may adjourn its proceedings from time to time and from place to place.
(5)Proceedings of the Board shall not be impugned for want of formality.
Section 187(1) of the PD Act confers on the responsible authority an option, where compensation for injurious affection is claimed, to elect to acquire the affected land instead of paying compensation.
By s 187(3), if no agreement is reached, the price of the land is to be the value of the land as determined under s 188.
By s 187(4), prior to the determination of the price, the owner may withdraw the claim for compensation and, upon that withdrawal, the responsible authority's election has no effect.
Section 188 is concerned with the valuing of land to be acquired under s 187, and provides:
Land to be acquired under s. 187, valuing
(1)The value of the land referred to in section 187(3) is to be ‑
(a)the value of the land on the date the responsible authority elects to acquire the land under that section; and
(b)determined without regard to any increase or decrease, if any, in value attributable wholly or in part to the planning scheme.
(2)Subject to subsection (4), the value of the land referred to in section 187(3) is to be determined -
(a)by arbitration in accordance with the Commercial Arbitration Act 2012; or
(b)by the State Administrative Tribunal on the owner of the land applying to it for a determination of that value; or
(c)by some other method agreed upon by the responsible authority and the owner of the land.
(3)If arbitration has not commenced under subsection (2)(a), an application has not been made under subsection (2)(b), and no method has been agreed under subsection (2)(c), within 12 months of the date on which the responsible authority elected to acquire the land, the responsible authority may -
(a)refer the matter for determination by arbitration in accordance with the Commercial Arbitration Act 2012; or
(b)apply to the State Administrative Tribunal for a determination of that value,
and the value determined under this subsection is to be the value of the land for the purposes of section 187.
(4)Where a dispute is referred for determination under subsection (3)(a) there is to be taken to be, for the purposes of the Commercial Arbitration Act 2012, an arbitration agreement to refer the dispute, and the parties to the agreement are to be taken to be the owner of the land and the responsible authority.

The evidence before the primary judge

The evidence before the primary judge comprised:
(b)an affidavit of Stephen Willey sworn 31 March 2016;
(b)an affidavit of Robert Ferguson sworn 6 May 2016; and
(c)an affidavit of Timothy Hillyard sworn 10 June 2016.
None of the deponents was required for cross‑examination.

The primary judge's findings of fact

APC does not challenge the primary judge's findings of fact. The following recitation of the facts is taken from his Honour's reasons.
The land, the subject of the judicial review application, was Lot 1610.
At all material times, Mrs Prestage and Ralph George Prestage (deceased) owned Lot 1610.
In 1993, there was a proposal under Amendment 927/33 to rezone Lot 1610 from rural to urban under the MRS. The Environmental Protection Agency opposed the rezoning of part of Lot 1610 where a wetland is located. In the event, Lot 1610 was not rezoned. Its zoning remained rural.
In 2000, Lot 1610 was included in a policy document entitled 'Bush Forever'. In 2010 it was included in State Planning Policy No 1 and State Planning Policy No 2.8.
On 15 September 2010, Lot 1610 was reserved under the MRS and the City of Gosnells Town Planning Scheme 6.
On 21 August 2013, Mr and Mrs Prestage applied to develop Lot 1610. WAPC refused the application.
On 17 October 2013, Mr and Mrs Prestage lodged a claim for compensation for injurious affection under pt 11 of the PD Act.
On 27 November 2013, WAPC elected under s 187 of the PD Act to acquire Lot 1610 instead of paying compensation.
On 9 May 2014, WAPC made an offer to acquire Lot 1610 for $1,635,000. Mr and Mrs Prestage rejected the offer.
On 27 May 2014, Mr and Mrs Prestage lodged an application in the Tribunal, pursuant to s 188(2)(b) of the PD Act, for a determination of the value of Lot 1610.
In late 2014, the parties exchanged expert witness reports in relation to environmental and planning matters that affected the value of Lot 1610. Environmental and planning matters were contentious between the parties.
In January 2015, Mr Prestage died.
On 20 February 2015, Mrs Prestage sought leave from the Tribunal to withdraw the application. On 25 February 2015, leave was granted and the proceedings in the Tribunal were discontinued. Mrs Prestage withdrew her claim for compensation and, consequently, WAPC's election to acquire Lot 1610 was terminated automatically pursuant to s 187(4) of the PD Act.
On 3 July 2015, Mrs Prestage, by a single written notice addressed to WAPC and the Board of Valuers, informed WAPC of her intention to sell Lot 1610 and applied to the Board for a valuation of the land. In that notice Mrs Prestage informed the Board of her intention to be heard on the valuation of Lot 1610.
On 16 July 2015, the Secretary of the Board of Valuers sent an email to WAPC and the Department of Planning. The email inquired whether WAPC, as the responsible authority, wished to waive the requirement of notice under s 183(1) of the PD Act and to negotiate the purchase of Lot 1610. Later on 16 July 2015, Mr Hillyard, the Chief Property Officer of the Department of Planning, responded that the 'notice of intention to sell should take its course' and 'this will establish the unaffected value'. Mr Hillyard's email noted that Mrs Prestage had withdrawn a previous claim for compensation.
At all material times, Mr Hillyard managed the team within the Department of Planning that was responsible for the purchase or acquisition of reserved land on behalf of WAPC.
On 17 July 2015, an officer of WAPC wrote to Mr Ferguson, as agent for Mrs Prestage, acknowledging receipt of Mrs Prestage's notice of 3 July 2015. The letter stated that the Secretary of the Board of Valuers would be in contact to arrange a meeting date and the requirements for any information Mrs Prestage may wish to present to the Board.
Between 24 and 27 July 2015, Mr Ferguson, on behalf of Mrs Prestage, sent three separate emails to the Board of Valuers attaching various documents, including reports by Martin Wells, Calibre Consulting, Eugenio Ferraro and Glennin Miller.
No member of WAPC was aware of the materials supplied to the Board of Valuers for the purposes of valuing Lot 1610, including Mr Ferraro's report and the evidence of Peter Keating.
On 30 July 2015, Jenni Johnston, on behalf of the Department of Planning, sent an email to Mr Ferguson. In the email Ms Johnston stated that she 'will be the contact person once the Board of Valuers provides advice to the WAPC as to the unaffected value of [Lot 1610] … and that the Board of Valuers will make contact with you in due course'.
On 16 August 2015, Dennis Volk, the member of the Board of Valuers who was appointed to provide the Board with a preliminary report under reg 40 of the PD Regulations, completed the report (the Volk Report).
On 21 September 2015, Mr Ferguson and Mr Miller, who were engaged by Mrs Prestage as her valuers, made oral representations to the Board of Valuers as to the unaffected value of Lot 1610. On that day, the Board of Valuers determined the value 'as not so affected' to be $6,235,000 (exclusive of GST). The Board also resolved to advise WAPC 'for … information' that it consider the 'as affected' value to be in the range of $1,785,000 to $1,930,000 (exclusive of GST).
On 23 September 2015, the Board of Valuers notified WAPC that the value of Lot 1610 'as not so affected' was assessed as $6,235,000 (exclusive of GST) and the 'as affected' value was assessed as in the range of $1,785,000 to $1,930,000 (exclusive of GST).
On 25 September 2015, WAPC was given a copy of the Volk Report.

WAPC's grounds of appeal before the primary judge

In the primary proceedings WAPC sought declaratory relief and the issue of a writ of certiorari. The writ was sought to quash the Board of Valuers' valuation of the 'as not so affected' value of Lot 1610.
The grounds relied on by WAPC before the primary judge were, relevantly, that the Board of Valuers had erred in law and acted outside its jurisdiction, as follows:
1.By failing to accord procedural fairness to [WAPC].
2.By issuing a valuation which was decided in a manner that was so irrational that no reasonable tribunal could have done so, in that the valuation was based on planning opinion evidence and environmental opinion evidence presented by Mrs Prestage, and originating as evidence to be called by Mrs Prestage in earlier contentious proceedings in [the Tribunal] on the same issue of valuation, without regard to planning opinion evidence and environmental opinion evidence filed and served by [WAPC] in [the Tribunal].
3.By assuming for the purposes of s 183(1) PD Act that a 'not so affected' valuation entails valuing Lot 1610 as if it had no constraints to rezoning and development arising from its native vegetation.
4.By taking account of evidence presented by Mrs Prestage that was not in the form of a statutory declaration, contrary to reg 40(2) Planning and Development Regulations 2009.
5.By failing to itself make a valuation of Lot 1610 based on data collected.

The primary judge's reasons

It is necessary to recount the primary judge's reasons in relation to grounds 1, 2 and 4 of the application for judicial review.
I will begin with his Honour's reasons in relation to ground 1.
The primary judge held that the interests of WAPC, as the responsible authority, were sufficiently affected to engage the presumption that the principles of procedural fairness applied to the exercise by the Board of Valuers of its statutory power to value Mrs Prestage's land under s 183(1) of the PD Act. His Honour observed that:
(a)a responsible authority is bound to pay compensation under pt 11 of the PD Act;
(b)the amount of the compensation is the difference between the affected value and the unaffected value; and
(c)consequently, the Board of Valuers' determination of the unaffected value, which is made final by s 183(2), sets one of two integers for determining the amount payable by WAPC [44].
His Honour rejected Mrs Prestage's submission that the statutory scheme, including the PD Regulations, excluded any right for a responsible authority to be heard. His Honour was of the opinion, however, that the features of the statutory scheme referred to by Mrs Prestage, namely:
(a)the fact that the PD Regulations provide for a right on the part of a landowner to be heard and no such right on the part of the responsible authority; and
(b)the fact that the PD Act permits the responsible authority to waive the requirement for a landowner to proceed under s 183, in which event the unaffected value, like the affected value, is to be determined by arbitration,
were to be borne in mind in assessing what procedural fairness requires [45] ‑ [46].
The primary judge was not persuaded that the Board of Valuers had breached the requirements of procedural fairness in relation to WAPC.
His Honour noted that:
(a)WAPC did not contend that, in every case, the Board of Valuers' duty to accord procedural fairness required it to invite submissions from the responsible authority;
(b)rather, WAPC contended that the circumstances of the particular case 'gave rise to a duty to alert … WAPC and to invite it to make submissions' [50].
The circumstances of the particular case which WAPC contended 'gave rise to a duty to alert … WAPC and to invite it to make submissions' were these:
(a)before the Board of Valuers, Mrs Prestage proposed to rely on the expert planning, environmental and valuation reports on which she had relied in the proceedings before the Tribunal; and
(b)the Board of Valuers knew that the proceedings before the Tribunal had been contentious, and that issue had been joined in the Tribunal between Mrs Prestage and WAPC [51].
WAPC submitted to the primary judge that, in those circumstances, procedural fairness required the Board of Valuers to inform WAPC that it may determine the value by reference to the material on which Mrs Prestage had relied in the proceedings before the Tribunal, and to invite WAPC to make submissions to the Board of Valuers [52].
His Honour concluded, taking into account the statutory scheme and the circumstances of the particular case, that the Board of Valuers was not obliged, in order to afford procedural fairness, to invite WAPC to make submissions as to the unaffected value [53]. His Honour elaborated:
In short, that is because the Board of Valuers was entitled to act on the basis that the WAPC knew that the Board of Valuers was proceeding to determine the unaffected value of the land, and would do so on the basis of material relied on by the landowners unless the WAPC chose to make submissions. The WAPC did not take any step to make submissions to the Board of Valuers.
It is an element of the statutory scheme that the responsible authority will know of a landowner's intention to sell the land, as the landowner is required to give notice to that effect to the responsible authority. The responsible authority can also be taken to know that the landowner must, in that circumstance, unless the responsible authority waives the requirement, apply to the Board of Valuers for an unaffected value valuation. The responsible authority has the power to waive that requirement. Further, the prescribed form contains both the notice of intention to sell and the request for valuation.
In the circumstances of this case, the Board of Valuers was entitled to believe, and it was the fact, that the WAPC was well aware that the Board of Valuers would proceed to make a valuation of the unaffected value of the land, and would, unless the WAPC made submissions to it, proceed to do so on the basis of the submissions and material relied upon by the landowner. The WAPC received a copy of the notice of intention to sell and application to the Board of Valuers for a valuation. The Secretary of the Board of Valuers requested advice as to whether the WAPC wished to waive the requirement. The WAPC responded by saying that the notice of intention to sell should take its course and that that would determine the unaffected value. Ms Johnson's email of 30 July 2015 and the WAPC's email of 17 July 2015 reinforce that the WAPC knew the process was underway and that the result of the process would be that the Board of Valuers would provide advice as to the unaffected value of Lot 1610.
In these circumstances, procedural fairness did not require the Board of Valuers to invite submissions from the WAPC [53] ‑ [56].
The primary judge also concluded that the rules of procedural fairness did not require the Board of Valuers to draw to WAPC's attention that Mrs Prestage relied on material on which she had relied in the proceedings before the Tribunal and which WAPC had contested in those proceedings. His Honour rejected WAPC's contention that it could not reasonably have anticipated that the Board of Valuers would proceed to value Lot 1610 on the basis of the material on which Mrs Prestage had relied in the proceedings before the Tribunal, without regard to the material relied on by WAPC in those proceedings, and without inviting submissions from WAPC. His Honour found that, at all material times, WAPC knew that:
(a)the Board of Valuers was undertaking a valuation of Lot 1610;
(b)Mrs Prestage had a right to be heard in that process and had indicated that she wanted to be heard;
(c)in the proceedings before the Tribunal, Mrs Prestage had filed and served expert planning and environmental reports;
(d)in the proceedings before the Tribunal, the parties had exchanged statements of facts, issues and contentions which revealed that planning and environmental issues were in dispute, and that there was an issue between the parties as to whether policies and documents earlier than the Bush Forever Amendment were to be disregarded; and
(e)in the proceedings before the Tribunal, Mrs Prestage asserted that, but for the reservation, Lot 1610 would have been zoned urban and ripe for residential subdivision [59].
His Honour held that the Board of Valuers was entitled to proceed on the basis that WAPC knew of the matters referred to in [77(a) and (b)] above and that, as a party to the proceedings before the Tribunal, WAPC was familiar with the contentions of the parties and the competing evidence [60].
The primary judge was of the opinion that, in the circumstances, objectively:
(a)it was reasonably to be anticipated by a party in WAPC's position that:
(i)in the proceedings before the Board of Valuers, Mrs Prestage may rely on the material she had relied on in the proceedings before the Tribunal, or the substance of that material, without reference to the material relied on by WAPC in the proceedings before the Tribunal;
(ii)the Board of Valuers may proceed to determine the value of Lot 1610 having regard to the material put forward by Mrs Prestage; and
(iii)if WAPC, as the responsible authority, wanted to make a submission to the contrary, it should do so; and
(b)the Board of Valuers was entitled to act on that basis [61].
His Honour observed that it was open to WAPC to inform the Board of Valuers that it wanted to make a submission and that the Board did nothing to preclude or discourage that course of action [62].
In summary, the primary judge was not persuaded that the Board of Valuers breached its duty to accord procedural fairness to WAPC by:
(a)failing to inform WAPC that Mrs Prestage relied on the material she had relied on in the Tribunal;
(b)failing to inform WAPC that the Board may determine the value of Lot 1610 by reference to that material; and
(c)failing to invite WAPC to make submissions to the Board.
I turn to his Honour's reasons in relation to ground 2. His Honour said that, for the reasons he had given in relation to ground 1, he rejected ground 2. His Honour elaborated:
As I explained in dealing with ground 1, in my view the Board of Valuers was entitled to act on the basis that the WAPC would reasonably have anticipated that Mrs Prestage may rely on the materials she relied on in [the Tribunal], and that the Board of Valuers may proceed to determine the value having regard to that material, and that if it wished to make a submission or put material before the Board of Valuers it should do so [66].
I turn to his Honour's reasons in relation to ground 4. His Honour said that it was not a purpose of the PD Act that a valuation, made in breach of any procedural requirement that may be imposed by regulations prescribing the procedure to be followed on an application for valuation, would be, on that account, invalid [125]. WAPC accepted, at the hearing before his Honour, that that was so (ts 27). His Honour noted that s 263 of the PD Act confers power to make regulations, relevantly, as to the procedure to be followed on an application for a valuation. His Honour held that the general phrase in s 263(2)(a), which empowers the Governor to make regulations making provision 'for or with respect to the making of applications and the manner in which applications are to be made and the procedure to be followed', did not evince an intention to confer a power to make regulations which impose procedural requirements that are a condition of the valid exercise of the Board of Valuers' power to make a valuation under s 183(1) of the PD Act [127]. Consequently, ground 4 failed. His Honour went on to express the view that even if (contrary to his Honour's opinion) the PD Act confers a power to make regulations that impose a procedural requirement and to make compliance with that requirement a condition of the valid exercise of the Board of Valuers' power to make a valuation, reg 40(2) of the PD Regulations does not reveal any such intention [128] ‑ [130].

The grounds of appeal before this court

WAPC relies on two grounds in its appeal to this court.
Ground 1 alleges that the primary judge erred in law by ruling that 'the Board of Valuers had no duty to give [WAPC] notice of, and an invitation to be heard on, [the Board of Valuers'] valuation of [Mrs Prestage's] land under s 183(1) [of the PD Act], which valuation would bind [WAPC] for all purposes in [WAPC's] payment of compensation to [Mrs Prestage]'.
Ground 2 alleges that his Honour erred in law by failing to address ground 2 of WAPC's application for judicial review and by failing to rule that the procedure adopted by the Board of Valuers was 'so unreasonable as to exceed the jurisdiction of the Board of Valuers'.

Ground 1 before this court: counsel for WAPC's submissions

Counsel for WAPC submitted that the primary judge's reasons contained a number of errors.
First, it was alleged that his Honour erred, at [53] of his reasons, in deciding that the content of procedural fairness may be determined by what the decision‑maker is entitled to assume is known by the affected person. Secondly, it was alleged that his Honour erred, at [55] of his reasons, in holding that the Board was entitled to assume that WAPC anticipated or knew that the Board would decide the valuation by accepting the opinions of Mrs Prestage's witnesses unless WAPC applied to be heard. Thirdly, it was alleged that his Honour erred, at [62] of his reasons, in holding, in essence, that the Board assumed (or was entitled to assume) that, if WAPC was concerned that the Board would rely solely on the evidence of Mrs Prestage's witnesses, then WAPC would have intervened and, because it did not intervene, the Board was entitled to assume that all was well.
Counsel also submitted that it is fundamental to procedural fairness that a 'fair procedure' is adopted (original emphasis). It was submitted that the primary judge 'appears to have erroneously held that every case of procedural fairness may be determined by inquiry into what should have been known'. Counsel submitted that 'what the [decision‑maker] knew or was entitled to assume about the affected person is not determinative ‑ a fair procedure should be applied regardless' (original emphasis).

Counsel argued that:
(a)while a matter is before a decision‑maker, the content of procedural fairness does not turn on what the decision‑maker is entitled to assume about the affected person's knowledge;
(b)that 'thought process' by the decision‑maker will always risk making a false conclusion;
(c)the risk arises because notice is not given and the affected person is not invited to be heard; and
(d)the 'thought process' endorsed by his Honour in the present case cannot be allowed to supplant fair procedure.
Counsel for WAPC relied on the following passage in McKay v Commissioner of Main Roads[7] in the context of a judge's duty to accord procedural fairness to parties to litigation in relation to potential findings by the judge and the adducing of evidence and the making of submissions at trial:
[7] McKay v Commissioner of Main Roads [2013] WASCA 135 [156] - [158] (Murphy JA; Martin CJ & Buss JA agreeing).
Generally speaking in litigation, the parties must anticipate combinations and permutations of various findings and adduce evidence and make submissions at the trial on all the potential findings of fact on the issues litigated. Any gap in the evidence on an issue will generally operate to the detriment of the party carrying the burden of proof on that issue. Nevertheless, procedural fairness may require the judge to hear the parties further if certain matters emerge in the judge's consideration of the case after trial which the judge regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial.
In this context the observations of the Full Court in Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 - 592 to which both parties referred, are pertinent:
'Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case …
The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:
"1The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).
2The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634."
His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases …'
Questions of procedural fairness ultimately involve matters of degree and judgment. They are not susceptible to hard and fast rules and the forensic context in which such questions fall to be determined is relevant.
It was submitted that McKay is authority for the proposition that, in court proceedings and with counsel in attendance, the 'entitlement' of the court to assume that the parties had 'anticipated' the court's proposed disposition, is confined to dispositions that are 'obvious and natural'.
Counsel argued, on the basis of McKay, that the Board of Valuers 'could not have greater freedom than a court to deny notice to an affected person'.
It was also argued that his Honour's opinion that in the circumstances, objectively, it was reasonably to be anticipated by a party in WAPC's position that, in the proceedings before the Board, Mrs Prestage may rely on the materials she had relied on in the proceedings before the Tribunal and that the Board would proceed to determine the value by accepting those materials, was not an 'obvious and natural evaluation' for the Board, whose duty is to assess value objectively by the Board's own independent investigations.
Counsel acknowledged that WAPC's case before the primary judge was confined to the contention that the Board of Valuers had a duty to give WAPC notice of, and an invitation to be heard on, the Board of Valuers' valuation of Lot 1610 in the circumstances that had arisen; namely, the Board's proposed reliance on the opinions of Mrs Prestage's witnesses in the proceedings before the Tribunal when it was apparent from those opinions that the opinions had been contentious in those proceedings. In its written outline of submissions dated 31 March 2016 before the primary judge, counsel for WAPC asserted:
WAPC is a person whose interests may be adversely affected by a valuation by the Board, and was entitled to be heard in the circumstances of controversy. The Board's decision has adversely affected the interests of WAPC without WAPC being heard, and the decision should be set aside [23].
Counsel sought to advance in the appeal the contention that, 'in order to ensure the fairness of the procedure, the duty of the Board must extend to notice and invitation in all cases initiated under section 183(1) [of the] PD Act'. Counsel's rationale for the submission was that, otherwise, the Board may have no duty if, for example, Mrs Prestage had provided redacted expert opinions that did not disclose their contentious nature or their origin in previous contested proceedings between Mrs Prestage and WAPC. As counsel put it, '[t]he process must not be open to a party's manipulation of the Board's assumptions'.

Ground 1 before this court: counsel for Mrs Prestage's submissions

Counsel for Mrs Prestage made two principal submissions in answer to ground 1 of the appeal.
First, it was submitted that the knowledge of an affected person (or what the decision‑maker can reasonably expect the affected person to know) is relevant to the content of procedural fairness. Secondly, it was submitted that the facts and circumstances of the present case, including the knowledge of WAPC (or what the Board of Valuers could reasonably expect WAPC to know), were such that the Board was not obliged to give notice to or invite submissions from WAPC as alleged in ground 1.
Counsel relied on the following passage in Apache Northwest Pty Ltd v Agostini [No 2]:[8]
A person to whom procedural fairness must be accorded is, ordinarily, `entitled to have brought to his or her attention the critical issues or factors on which the decision is likely to turn, if and to the extent that those issues or factors are not apparent from the nature or terms of the inquiry or decision-making process, so as to give the person an opportunity to deal with them. This entitlement ordinarily includes the right to comment on adverse material from third parties which is before the decision-maker and is credible, relevant and significant to the decision in question. See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 - 592 (Northrop, Miles & French JJ); Re Minister for Immigration andMulticultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22] (Gleeson CJ, Gummow & Heydon JJ); Minister for Immigration and Multicultural and Indigenous Affairs vLat [2006] FCAFC 61; (2006) 151 FCR 214 [47] (Heerey, Conti & Jacobson JJ). Further, the person is, ordinarily, entitled to put relevant information or material before the decision-maker and to make submissions on the critical issues or factors. See Annetts, 600 - 601 (Mason CJ, Deane & McHugh JJ). (emphasis added)
[8] Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [215] (Buss JA; Wheeler & Newnes JJA relevantly agreeing).
It was submitted that Apache Northwest is authority for the proposition that notice need only be given as to the 'critical issues or factors' to the extent that they are not otherwise apparent. In particular, if the affected person knows or should reasonably be expected to know what the critical issues or factors are, then the decision‑maker is not obliged to bring them to the notice of the affected person. It was also submitted, in effect, that what a decision‑maker can reasonably assume will be apparent to the affected person involves (but is not limited to) an objective evaluation having regard to the circumstances of the affected person (including, for example, whether the affected person is an agent or emanation of the State or a private individual) and the extent to which (if at all) the affected person is familiar with the role or function of the decision‑maker and its processes.
Counsel submitted that:
(a)the primary judge did not impute to WAPC the knowledge that the Board of Valuers 'would decide the valuation by accepting the opinions of Mrs Prestage's witnesses unless [WAPC] applied to be heard';
(b)his Honour did not proceed on the basis that the Board was obliged to accept the evidence of Mrs Prestage's witnesses in the absence of other material from WAPC;
(c)WAPC's knowledge, and the Board's awareness of what WAPC knew, were relevant to the content of the Board's obligation to accord procedural fairness to WAPC; and
(d)his Honour's findings at [53] and [55] of his reasons were consistent with the law of procedural fairness and the evidence before his Honour as to the knowledge of WAPC and the awareness of the Board.
Counsel for Mrs Prestage submitted that, in the circumstances, it was reasonable for the Board of Valuers to assume that, if WAPC wanted to be heard, it would inform the Board that it wanted to make a submission. The Board was not obliged, in the circumstances, to give notice to or invite submissions from WAPC.

Ground 1 before this court: its merits

The implication of the rules of procedural fairness in a statute is arrived at by a process of construction. In Saeed v Minister for Immigration and Citizenship,[9] French CJ, Gummow, Hayne, Crennan and Kiefel JJ said the implication proceeded upon 'the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann (Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ; at 451 per Jacobs J)' [12]. This assumption is derived from the principle of legality referred to by Gleeson CJ in Electrolux Home Products Pty Ltd v The Australian Workers' Union.[10] See also Momcilovic v The Queen.[11]
[9] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.
[10] Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 [21].
[11] Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [43] (French CJ).
The principles and presumptions of statutory construction, to the extent they are not qualified or displaced by an applicable interpretation statute, are part of the common law of Australia. In Plaintiff S10/2011 v Minister for Immigration and Citizenship,[12] Gummow, Hayne, Crennan and Bell JJ explained:
It is in this sense that one may state that 'the common law' usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100 - 101 [39] - [41]). If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive [97].
[12] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636.
When deciding whether the exercise of a statutory power is conditioned by the rules of procedural fairness, it is necessary to take into account the practical context in which the decision-maker must consider whether to exercise the power. See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah.[13]
[13] ReMinister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 [31] (Gleeson CJ & Hayne J).
Procedural fairness is concerned with procedures rather than with outcomes. See Minister for Immigration and Border Protection v WZARH.[14]
[14] Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 [55] (Gageler & Gordon JJ).
If observance of the rules of procedural fairness is a condition of the grant of a statutory power, and governs the exercise of the power, a failure to comply with the rules will render any decision made, in purported exercise of the power, invalid. See Salemi v MacKellar [No 2];[15] Saeed [13].
[15] Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396, 401 (Barwick CJ).
In the present case, it was not in dispute before this court that the Board of Valuers was obliged to accord procedural fairness to WAPC in relation to the exercise by the Board of its power under s 183(1) of the PD Act to value Mrs Prestage's land.
In my opinion, the primary judge was correct, generally for the reasons he gave, in deciding that the interests of WAPC, as the responsible authority, were sufficiently affected so as to engage the presumption that the principles of procedural fairness applied to the exercise by the Board of Valuers of its statutory power to value Mrs Prestage's land.
The law of procedural fairness is, of course, concerned not only with whether a decision‑maker is obliged to accord procedural fairness, but also with what is necessary, in the circumstances of the particular case, for compliance with an obligation to accord procedural fairness and with whether, in the circumstances of the particular case, any such obligation has been met.
The content of a decision‑maker's obligation to accord procedural fairness will be informed by the statutory context; in particular, the terms of the statute which creates the decision‑maker's function, the nature of the function and the administrative framework in which the statute requires the function to be performed. See National Companies and Securities Commission v News Corporation Ltd.[16]
[16] National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 326 (Brennan J).
Procedural fairness is flexible and adaptable to the circumstances of the particular case. What is required to accord procedural fairness is variable and will depend on the circumstances and requirements of each case. See Kioa v West;[17] Saeed;[18] Duncan v Independent Commission against Corruption.[19]
[17] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 612 (Brennan J).
[18] Saeed [18].
[19] Duncan v Independent Commission against Corruption [2016] NSWCA 143 [693] (Basten JA; Bathurst CJ & Beazley P relevantly agreeing).
The circumstances of a particular case include:
(a)what is known by the affected person and what can reasonably be expected to be known by the affected person in relation to the decision‑maker and its processes: Sharpe v Brown;[20] Graham v Baptist Union of New South Wales;[21] and Marsh v Australian Capital Territory;[22] and
(b)the practical context in which the decision‑maker is to exercise the power.
[20] Sharpe v Brown [1918] VLR 678, 685 (Hood J).
[21] Graham v Baptist Union of New South Wales [2006] NSWSC 818 [31] - [37] (Young CJ in Eq).
[22] Marsh v Australian Capital Territory [2014] ACTSC 81; (2014) 288 FLR 116 [134] (Refshauge J).
The determination of what is required, in a particular case, for compliance with an obligation to accord procedural fairness and of whether, in a particular case, any such obligation has been met, must be made having regard to the following observations of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam:[23]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice [37].
See also Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc.[24]
[23] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.
[24] Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 [34] (Bathurst CJ, Beazley P & Tobias AJA).
A fair hearing contemplates that the parties to the hearing are properly informed of the critical issues or factors on which the decision‑maker's decision is likely to turn, so that each party has an opportunity to deal with those issues or factors. See Kioa;[25] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd;[26] Ex parte Lam;[27] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs;[28] Warkworth.[29]
[25] Kioa v West (587) (Mason J).
[26] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 590 - 591 (Northrop, Miles & French JJ).
[27] Ex parte Lam [81], [83] (McHugh & Gummow JJ).
[28] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32] (Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ).
[29] Warkworth [35] - [37].
In Alphaone, Northrop, Miles and French JJ said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question (591 ‑ 592).
That passage was referred to with apparent approval by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme.[30]
[30] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22].
A decision‑maker will fail to accord procedural fairness if the decision‑maker uses information in a manner that could not reasonably have been expected and a party adversely affected was not given an opportunity to respond to the intended use of the information. See Ex parte Miah;[31] Muin v Refugee Review Tribunal;[32] Warkworth;[33] WoollahraMunicipal Council v Minister for Local Government.[34]
[31] Ex parte Miah [142] (McHugh J).
[32] Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 [128] - [134] (McHugh J).
[33] Warkworth [40].
[34] Woollahra Municipal Council v Minister for Local Government [2016] NSWCA 380; (2016) 219 LGERA 180 [143] (Beazley P; Bathurst CJ & Ward JA agreeing).
Procedural fairness may require a decision‑maker to give a party an opportunity to comment on a matter, even where the matter is known to the party, if the party could not reasonably have been expected to provide information about the matter because the party reasonably perceived the matter to be irrelevant to his or her situation or circumstances. See Ex parte Miah.[35]
[35] Ex parte Miah [142] (McHugh J).

The content of procedural fairness in a particular case may be affected by the decision‑making process adopted by the decision‑maker, including anything said or done or not said or done during that process. See Haoucher v Minister for Immigration and Ethnic Affairs;[36] SZBEL.[37]
[36] Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, 657, 660 (Dawson J).
[37] SZBEL [34] ‑ [35].
In Babalis v City of Adelaide,[38] the first plaintiff, Mr Babalis, was the registered proprietor of a house and land in Adelaide. He resided at the property with his wife, the second plaintiff. The Local Board of Health for the defendant municipality, acting upon the reports of the defendant's health inspector, declared that an insanitary condition existed in the house and, pursuant to s 58 of the Health Act 1935 (SA), served a notice upon the plaintiffs, as the occupiers of the property, requiring that certain specified work be carried out to remove the insanitary condition. In the Supreme Court of South Australia, Cox J held that the rules of procedural fairness obliged the Local Board to give the plaintiffs adequate warning of its proposal to issue a notice against them and the opportunity to make submissions on whether part of the premises were or should be declared to be in an insanitary condition and, if so, whether the Local Board should, in the exercise of its discretion, resolve to serve the notice upon them. His Honour said that the procedure he had described was 'a better procedure than leaving it to the owner or occupier to try and persuade the [Local Board] to reverse a decision that it [had] already made' (463). His Honour decided that the plaintiffs had been denied procedural fairness. His Honour elaborated:
It is not, in my opinion, a sufficient compliance with an implied statutory obligation to give an owner or occupier a hearing that he is free to put in a submission if he chooses to do so on his own initiative. The authority's obligation is to notify him expressly of his rights in that respect. It should not just leave him to discover the position for himself. There is no reason to suppose that requiring a local board to give reasonable notice to the person concerned before proceeding under s 58 would involve it in much trouble or delay (463).
[38] Babalis v City of Adelaide (1985) 38 SASR 450.
In Carroll v Sydney City Council,[39] the respondent adopted the Amusement Parlour Resolution 1981. The resolution, which stated that it was passed pursuant to s 362 and s 363 of the Local Government Act 1919 (NSW) and the respondent's other powers under that Act, made rules for the use of amusement parlours within the City of Sydney. Section 362 and s 363 provided that the respondent may control and regulate premises and appliances used for public amusements and the conduct of people therein. After the resolution was adopted, the respondent served the appellant with a letter which asserted that his premises were being used unlawfully and notified him that unless an application was made for a licence to use the premises, legal proceedings would be commenced against him. The Court of Appeal of New South Wales held that for a resolution against specific individuals to be validly made pursuant to s 362 and s 363, notice that the individual may make representations as to whether the resolution should be enforced against him may be given after the resolution is made. The primary judge had decided that the respondent was not in breach of the rules of procedural fairness because it had given a copy of the resolution to the appellant and informed him that, unless he made an application for a licence, legal proceedings would be commenced against him. However, the Court of Appeal decided that that procedure did not comply with the rules of procedural fairness. It was necessary that the appellant be expressly informed of the opportunity to be heard. It was not sufficient that the appellant could, if he knew of his rights, have made representations. McHugh JA (Kirby P & Clarke JA agreeing) referred to Babalis and said:
I think that at the present time obligations imposed by the rules of natural justice are not fulfilled simply because the person affected, if he knew his rights, could make representations. For a public authority to comply with its statutory duty to give a person affected by the exercise of its powers the opportunity to be heard, the authority, as Cox J pointed out in Babalis, must expressly inform the person affected 'of his rights in that respect' (549).
[39] Carroll v Sydney City Council (1989) 15 NSWLR 541.
The object of giving a person affected by the exercise of a statutory power prior notice and an opportunity to be heard is to enable the person to participate fairly and appropriately in the decision‑making process. The terms of the prior notice, and the nature and extent of the participation, that are fair and appropriate depend upon the circumstances of the particular case, including the applicable statutory framework.
In Somaghi v The Minister for Immigration, Local Government and Ethnic Affairs,[40] the appellant, who was an Iranian citizen, was detained in custody as a prohibited non‑citizen. While in custody, he wrote a letter to the Iranian Embassy in Canberra in which he expressed opposition to the current Iranian Government. The appellant applied to be recognised as a refugee under the Migration Act 1958 (Cth). The decision‑maker rejected the application on the ground, amongst others, of his conclusion that the appellant had not acted in good faith in writing to the Iranian Embassy. This conclusion was never put to the appellant. A majority of the Full Court of the Federal Court (Jenkinson and Gummow JJ) held that procedural fairness required that the decision‑maker make known to the appellant what he judged to have been the appellant's purpose in writing the letter and take into consideration whatever response the appellant made.
[40] Somaghi v The Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100.
Jenkinson J said:
[T]he preponderance of authority favours a rule or principle that an administrative decision-maker's evaluative conclusions on the material before him do not have to be communicated to an applicant so that considerations influencing the decision-maker's mind adversely to the applicant's interest may be reviewed before the decision is made in the light of any submission or evidentiary material the applicant may desire to tender in response to the communication. But there are observations, which may be thought to constitute a gloss on the general rule, that favour a requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587, per Mason J; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517, per Burchett J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481 ‑ 482. There are other observations, which may be thought to constitute another gloss on the general rule, that an unfavourable animadversion, by the decision‑maker or expressed by a departmental officer to the decision‑maker, upon the conduct of an applicant, or even of another person whose interest in a decision favourable to the applicant is to be weighed by the decision-maker, should be disclosed to the applicant so that he may respond, if the animadversion is not an obviously natural response to the circumstances which have evoked it: see Minister for Immigration, Local Government and Ethnic Affairs v Kumar (unreported, Federal Court, Davies, Foster and Hill JJ, 31 May 1990); Kioa v West (supra) (at 573, 588, 634), where two members of the High Court treated such an animadversion, in par 21 of a submission to the decision-maker, as discoverable to the applicants. I do not stay to consider whether these observations are better regarded as the glossing of a rule or as discoveries of what procedural fairness requires in particular circumstances, that which was called a rule being conceived as but another such discovery. Either way those observations have to be taken into account in determining what procedural fairness required in this case (108 ‑ 109).
Jenkinson J did not state that a decision‑maker is not entitled, in any circumstances, to make an adverse finding in relation to a party's case, unless the finding is 'an obviously natural response to the circumstances which have evoked it' (108). His Honour's observations concerned the formation by the decision‑maker in Somaghi of 'an unfavourable animadversion' in relation to the appellant's purpose and state of mind and whether that unfavourable animadversion was 'an obviously natural response to the circumstances which have evoked it' (108).
Gummow J dealt with this point by noting that, ordinarily, an applicant for an entry permit cannot complain if, without further notice, the material put forward by the applicant is rejected. His Honour then qualified that proposition as follows:
However, in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question (119).
The content of procedural fairness is not fixed or rigid. As I have mentioned, procedural fairness is flexible and adaptable to the circumstances of the particular case. The reference by Jenkinson J in Somaghi to the obligation of a decision‑maker to put to a party for his or her response 'an unfavourable animadversion', if the animadversion is not 'an obviously natural response to the circumstances which have evoked it', has not been (and is not to be) transposed into a principle that a decision‑maker may not, in any circumstances, make a finding adverse to a party's case unless the finding is an obvious and natural evaluation of the material put before the decision‑maker by any or all of the parties.
The decision of this court in McKay is not authority for the proposition that, in court proceedings and with counsel in attendance, the 'entitlement' of the court to assume that, on the material and information supplied by or known to the parties, the parties had 'anticipated' the court's proposed disposition, is confined to dispositions that are 'obvious and natural'. As this court noted in McKay [158], questions of procedural fairness ultimately involve matters of degree and judgment. They are not susceptible to hard and fast rules. The forensic context in which such questions fall to be determined is relevant.
In the present case, on a fair reading of his Honour's reasons as a whole, the primary judge did not hold that every case of procedural fairness may be determined by inquiry into what a party or the parties should have known. Similarly, on a fair reading of his Honour's reasons as a whole, his Honour did not allow his conclusion that the Board of Valuers was entitled to proceed on the basis that WAPC knew of the matters referred to in [77(a) and (b)] above and that, as a party to the proceedings before the Tribunal, WAPC was familiar with the contentions of the parties and the competing evidence, to supplant fair procedure.
Regulation 39 and reg 40 of the PD Regulations prescribe the Board of Valuers' procedure on receiving an application by an owner of land under s 183(1) of the PD Act for a valuation of the land. By reg 39(2)(b), the application must state whether the owner wants to be heard by the Board on the making of the valuation. Regulation 40(3) provides that an applicant is entitled to be heard by the Board, either in person or by counsel. The right to be heard includes a right to present evidence to the Board. By reg 40(2), any evidence presented to the Board by an applicant must be in the form of a statutory declaration.
However, neither the PD Act nor the PD Regulations makes express provision for the Board of Valuers to give the responsible authority notice of, and an invitation to be heard on, a valuation by the Board of an owner's land under s 183(1). What implication, if any, is to be made in relation to the content of the Board's obligation to accord procedural fairness to the responsible authority?
In my opinion, the content of the Board of Valuers' obligation to accord procedural fairness to the responsible authority depends on the circumstances of the particular case, including what is known by the responsible authority and what can reasonably be expected to be known by the responsible authority in relation to the Board and its processes, and the practical context in which the Board is to exercise its power of valuation. Ordinarily, the Board would be obliged to give the responsible authority notice of, and an invitation to be heard on, the Board's valuation of the land. However, that is not a fixed or rigid requirement in each and every case. The content of the Board's obligation to accord procedural fairness to the responsible authority is flexible and adaptable to the circumstances of the particular case and the avoidance of practical injustice. The Board does not necessarily have a duty to give notice to the responsible authority of, and an invitation to be heard on, the Board's valuation under s 183(1) of the PD Act in any and all circumstances and in each and every case.
In the present case, WAPC was the responsible authority. WAPC is an agent of the State and has the status, immunities and privileges of the State. See s 8 of the PD Act. WAPC has extensive functions and powers in relation to land use planning and development in the State. See s 14 and s 15 of the PD Act.
WAPC has very significant experience, as a State instrumentality, in the practical operation of the PD Act and the PD Regulations. WAPC is involved regularly in disputes with respect to the valuation of land that has been reserved for public purposes.
Section 177(3)(a)(ii) of the PD Act provides in effect that, before compensation is payable by the responsible authority under s 177(1), the owner of any land that has been reserved for a public purpose under a planning scheme must give written notice to the responsible authority, before selling the land, of the owner's intention to sell the land. Section 183(1) of the PD Act provides that the owner of land that is subjected to injurious affection due to, or arising out of, the land being reserved under a planning scheme for a public purpose, who gives notice of intention to sell the land and claim compensation, must, unless the responsible authority waives the requirement, apply to the Board of Valuers for a valuation of the land as not so affected. By reg 39(1) of the PD Regulations, for the purposes of s 183(1), an application by an owner of land for a valuation of the land must be made by posting or delivering a written application to the Board of Valuers at the office of WAPC. By reg 39(2)(b) of the PD Regulations, the application must state whether the owner wants to be heard by the Board on the making of the valuation. So, in the present case, where WAPC was the responsible authority, WAPC received, on behalf of the Board, Mrs Prestage's written application for a valuation together with her statement that she wanted to be heard by the Board on the making of the valuation.
The question before the Board of Valuers, in the present case and in every other case involving a valuation by the Board under s 183(1) of the PD Act, is: what is or will be the value of the land 'as not so affected by the reservation'?
The resolution of that question requires:
(a)an appreciation as to the nature and extent of the reservation and the steps taken to effect the reservation, in order to determine the value of the land without regard to the reservation and the relevant steps; and
(b)an assessment as to the highest and best use of the relevant land on the basis that the reservation had not been made.
In the present case, those matters, which are common to all such valuations, were in issue in the proceedings before the Tribunal in relation to the valuation of Lot 1610.
At all material times, WAPC knew of Mrs Prestage's position in the proceedings before the Tribunal in relation to the valuation of Lot 1610 as not so affected by the reservation. Also, at all material times, the Board of Valuers was aware that WAPC and Mrs Prestage had been involved in those proceedings.
Ordinarily, as a matter of fact, the critical issues or factors on which the Board of Valuers' decision as to value is likely to turn will be, or at least can reasonably be assumed by the Board to be, apparent to the responsible authority where, as in the present case, WAPC is the responsible authority.
At all material times, WAPC knew each of the following facts and circumstances:
(a)Mrs Prestage had asked the Board of Valuers to value Lot 1610 as not so affected by the reservation. See attachment SJW12 to Mr Willey's affidavit sworn 31 March 2016 and attachment RJF4 to Mr Ferguson's affidavit sworn 6 May 2016.
(b)The Board was required to perform that task upon written request unless WAPC waived the requirement. See s 183(1) of the PD Act and attachment SJW13 to Mr Willey's affidavit.
(c)WAPC had a right to waive the requirement for the Board to make the valuation, but it had informed the Board that it had decided not to do so. WAPC told the Board that the notice of intention to sell should take its course and that that would determine the unaffected value of Lot 1610. See attachment SJW13 to Mr Willey's affidavit; his Honour's reasons at [55].
(d)The Board was obliged to allow Mrs Prestage the opportunity to put material before it on which she relied and to appear before it and make submissions either in person or by counsel. See reg 39(2)(b) and reg 40(3) of the PD Regulations and attachment RJF4 to Mr Ferguson's affidavit.
(e)Mrs Prestage had given notice of her intention to be heard by the Board in relation to the valuation of Lot 1610. See attachment SJW12 to Mr Willey's affidavit and attachment RJF4 to Mr Ferguson's affidavit.
(f)The valuation of Lot 1610 would affect WAPC's interests.
(g)After it received Mrs Prestage's request, the Board was obliged to and did appoint a valuer (namely Mr Volk) to prepare a report, determine a date on which it would make its valuation and communicate that date to both Mrs Prestage and the appointed valuer. See reg 40(1) of the PD Regulations and attachments RJF4 and RJF13 to Mr Ferguson's affidavit.
(h)Mr Volk, as the appointed valuer, was obliged to summarise the relevant data (which included anything provided in advance by Mrs Prestage) and the preliminary report had to be given to the Board prior to the date fixed by the Board for the making of the valuation. See reg 40(1) of the PD Regulations.
(i)WAPC knew that the process was underway and that the result of the process would be that the Board would provide advice as to the unaffected value of Lot 1610. See his Honour's reasons at [55].
Further, it is to be inferred from the facts and circumstances set out at [134] ‑ [142] above that, at all material times, WAPC knew that the statutory framework did not include an express obligation on the part of the Board of Valuers either to communicate to WAPC, as the responsible authority, the date of the meeting at which the Board would make its valuation or to invite WAPC to put forward any evidence or to make any submissions that WAPC might wish the Board to take into account in making its valuation.
WAPC's knowledge, and the Board's awareness of what WAPC knew, were relevant to the content of the Board's obligation to accord procedural fairness to WAPC.

Section 179 of the PD Act provides:
179.Injurious affection due to land being reserved, amount of compensation for
(1)Subject to this Division, the compensation payable for injurious affection due to or arising out of the land being reserved under a planning scheme, where no part of the land is purchased or acquired by the responsible authority, is not to exceed the difference between -
(a)the value of the land as so affected by the existence of such reservation; and
(b)the value of the land as not so affected.
(2)The values referred to in subsection (1)(a) and (b) are to be assessed as at the date on which -
(a)the land is sold as referred to in section 178(1)(a); or
(b)the application for approval of development on the land is refused; or
(c)the approval is granted subject to conditions that are unacceptable to the applicant. (emphasis added)
The term 'planning scheme' referred to in s 179(1) is defined to include a 'local planning scheme' and a 'region planning scheme'. A 'region planning scheme' includes the 'Metropolitan Region Scheme'.[50]

Board of Valuers

[50] Definitions of those terms in PD Act s 4.

Section 182 of the PD Act provides:
182.Board of Valuers
(1)A Board of Valuers is established.
(2)The Board consists of the following members appointed by the Governor -
(a)a chairperson nominated by the Commission; and
(b)3 other members nominated by the body known as The Real Estate Institute of Western Australia, an incorporated association under the Associations Incorporation Act 2015.
(3)Each of the persons appointed to the Board is to be an Associate or a Fellow of the Australian Property Institute, an association incorporated under the laws of South Australia.
(4)Judicial notice is to be taken of the signature of the chairperson on any finding of the Board.
(5)Schedule 9 has effect.
The 'Commission' referred to in s 182(2) is the WAPC.[51]
[51] Definition of 'Commission' in PD Act s 4.
Schedule 9 of the PD Act provides:
1.Term used: Board
In this Schedule -
Board means the Board of Valuers established under section 182.
2.Term of office
Subject to clause 4 a member of the Board holds office for a term of 2 years and is eligible for reappointment.
3.Constitution of Board
The Board is constituted by the chairperson of the Board and any 2 other members of the Board and may meet despite there being a vacancy on the Board.
4.Resignation or removal from office
(1)A member of the Board may resign by written notice.
(2)The Governor may remove a member of the Board from office if the member -
(a)misbehaves or is incompetent; or
(b)is suffering from a permanent physical or mental incapacity that impairs the performance of the member’s functions.
5.Remuneration of members
(1)The members of the Board are entitled to such fees and expenses, in respect of attendances at meetings of, or while engaged in the business of, the Board, as the Minister may from time to time determine.
(2)In determining under subclause (1) fees to which members of the Board are entitled while engaged in the business of the Board, the Minister may adopt -
(a)wholly or in part; and
(b)with or without alteration,
all or any of the maximum amounts of remuneration fixed under section 25 of the Land Valuers Licensing Act 1978 for the various kinds of services rendered by licensed valuers and those maximum amounts of remuneration, if so adopted are to be taken to be fees determined under subclause (1) as fees to which the members of the Board are entitled while engaged in the business of the Board.
(3)An adoption made under subclause (2) may be made by reference to the citation of the relevant notice published in the Gazette under section 25 of the Land Valuers Licensing Act 1978 and to any provisions of that notice, and it is not necessary to set out in the relevant determination made under subclause (1) the full text of that notice or of any provision of the notice.

Valuations by the Board

Section 183 provides:
183.Valuations by Board
(1)The owner of land that is subjected to injurious affection due to, or arising out of, the land being reserved under a planning scheme for a public purpose who gives notice of intention to sell the land and claim compensation is to, unless the responsible authority waives the requirement, apply to the Board of Valuers in the prescribed manner for a valuation of the land as not so affected and the Board is to make the valuation.
(2)Subject to subsection (4), a valuation made by the Board under subsection (1) is to be communicated to the applicant and to the responsible authority and, for the purposes of this Division, a valuation so made is final.
(3)Upon receipt of a valuation made by the Board under this section, the responsible authority is to advise the owner of the subject land of the minimum price at which the land may be sold without affecting the amount of compensation (if any) payable to him or her under this Division.
(4)Where any land with respect to which a valuation has been made under this section is not sold within a period of 6 months from the making of the valuation, the Board may, at the request of the owner of the land, if in the circumstances of the case it thinks it just to do so, review the valuation and either confirm the valuation or vary it.
(5)Where the Board reviews a valuation under subsection (4), it is to notify the owner of the land and the responsible authority accordingly and upon that notification subsection (3), with such modification as circumstances require, applies to the valuation as reviewed by the Board. (emphasis added)
Section 4 of the PD Act defines 'responsible authority' as:
responsible authority, except as provided in regulations made under section 171A(2)(a), means -
(a)in relation to a local planning scheme or local interim development order, the local government responsible for the enforcement of the observance of the scheme or order, or the execution of any works which under the scheme or order, or this Act, are to be executed by a local government; and
(b)in relation to a region planning scheme, regional interim development order or planning control area, the Commission or a local government exercising the powers of the Commission; and
(c)in relation to an improvement scheme, the Commission[.] (emphasis added)

Regulations concerning valuation by the Board

Regulations 39 and 40 of the Planning and Development Regulations 2009 (WA) (PD Regulations) provide as follows:
39.Application for valuation (Act s. 183(1))
(1)For the purposes of section 183(1) an application by an owner of land for a valuation of the land must be made by posting or delivering a written application to the Board at the office of the Commission.
(2)The application must -
(a)describe the land to which it relates; and
(b)state whether the owner wants to be heard by the Board on the making of the valuation.
40.Board of Valuers, procedure for
(1)On receiving an application made under section 183(1) the Board’s chairperson must -
(a)appoint a member of the Board (other than the chairperson) to -
(i)inspect the land concerned; and
(ii)prepare and summarise the data necessary for the making of a valuation; and
(iii)give the Board a preliminary report,
before the day fixed for the making of the valuation; and
(b)give the applicant written notice of the day and time fixed for the making of the valuation.
(2)Any evidence presented to the Board by an applicant must be in the form of a statutory declaration.
(3)An applicant is entitled to be heard by the Board, either in person or by counsel.
(4)The Board may adjourn its proceedings from time to time and from place to place.
(5)Proceedings of the Board shall not be impugned for want of formality. (emphasis added)

Principles of procedural fairness

The cases on procedural fairness are legion. For present purposes, it is sufficient to refer to the decisions of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[52] and Minister for Immigration and Border Protection v WZARH.[53]
[52] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
[53] Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326.
In SZBEL, the High Court said: [54]
It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation:
'[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity ["to correct or contradict any relevant statement prejudicial to their view"] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. …
In the present case, attention in argument, both in this Court and in the courts below, was directed more to the particular circumstances of the case than to the relevant statutory framework, but it is necessary to notice some aspects of that framework. Unless that is done, the argument proceeds at too high a level of abstraction and may proceed upon assumptions that are ill founded. (footnote omitted) (emphasis added)
[54] SZBEL [26].
In WZARH, Gageler and Gordon JJ observed:[55]
Gaudron and Gummow JJ pointed out in Re Refugee Review Tribunal; Ex parte Aala:
'[T]he conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures.'
The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration.
Such a breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of 'the possibility of a successful outcome'.
That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to 'avoid practical injustice', and with his Honour's conclusion in that case that there was no denial of procedural fairness where '[n]o practical injustice ha[d] been shown'. The absence of practical injustice in Lam lay in the fact that '[t]he applicant lost no opportunity to advance his case'; it was not 'shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment'.
… What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process. (footnotes omitted) (emphasis added)
[55] WZARH [54] ‑ [58].

Disposition

Ground 1

The judge found,[56] and it is common ground, that the rules of procedural fairness apply to the Board's determination of the unaffected value of land pursuant to s 183 of the PD Act. The issue is the content of the requirements of procedural fairness in the particular circumstances of this case.
[56] Primary decision [43] - [46].
The 'precise defect alleged to have occurred in the [Board's] decision‑making process'[57] in this case is the failure 'to give the [WAPC] notice of, and an invitation to be heard on, the Board's valuation of the [landowner's] land under s 183(1) [of the PD Act]'.[58]
[57] WZARH [58].
[58] Appeal ground 1.
The WAPC contends, in effect, that by the Board not giving notice of, and not issuing an invitation to be heard on, the Board's determination of value, the WAPC was denied, or lost, the opportunity to present a case to the Board concerning the valuation of the landowner's land.
In my view, that submission cannot be accepted. In my view, the judge was correct, with respect, generally for the reasons he gave, that the WAPC did not suffer 'practical injustice'[59] as alleged by the WAPC. The matters set out below are by way of elaboration.
[59] WZARH [58] citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.
The following features of the statutory framework seem to me to be bear upon, and detract from, the suggested stringency of the content of procedural fairness required of the Board as contended for by the WAPC in this appeal:
1.Whilst the decision on the question of valuation might financially affect, in this case, the State, through the agency of the WAPC,[60] the WAPC, in the present statutory context, had no 'case to answer'. Nor was it the subject of criminal or civil proceedings. Nor was it the subject of any potential adverse findings in relation to its conduct. The nature of the decision‑making process was effectively inquisitorial rather than adversarial.[61]
2.The nature of the inquiry, and the purpose of the decision‑making, is to determine (finally)[62] the unaffected value of the land in question. The legislature has established and appointed the Board, an independent body[63] with specialist qualifications, to undertake the task of valuation. Further, the Board is not comprised of one individual, and its decision is evidently intended to be the result of a deliberative process of three minds within the field of land valuation. Accordingly, the task of valuation is not left to a lay person who would ordinarily be expected to be reliant on an assessment of the relevant evidence with the benefit of submissions from the parties. Nor is it even left to only one valuer.
3.The Board's procedures in this context are not at large. The chairperson of the Board must appoint one of the Board members (not the chairperson) to inspect the land, prepare and summarise the data necessary for the making of a valuation, and give to the Board a preliminary report.[64]
4.There is no requirement on the part of the responsible authority to advise the Board, or the landowner, of the responsible authority's view of the unaffected value of the land. The express statutory duty on the part of the WAPC (in s 183(3) of the PD Act) concerns, in effect, the responsible authority's assessment of the affected value of the land for compensation purposes.[65] The purpose of this, at least in general terms, is to give an assurance to the landowner that he or she may proceed to sell above that price without being faced with an allegation, in the proceedings for the determination of the amount of compensation payable for injurious affection, that the land was not sold in good faith or after reasonable steps to obtain a fair and reasonable price.[66]
5.The PD Regulations provide, in effect, that the owner of the land may adduce evidence and make submissions on the question of value. [67] There is no express corresponding entitlement given to the WAPC.
6.The Board's decision is made in the context of an intention by the landowner to sell the land. Any sale is effectively at the time and in the circumstances of the landowner's choosing. Provision is made for the possibility of revaluation by the Board if the land is not sold within six months of the date of the original valuation by the Board.[68] In this context, it is doubtful that the legislature contemplated that in the ordinary course, there may be contested hearings before the Board with evidence and submissions from the WAPC, with their attendant delays.
[60] PD Act s 8.
[61] cf Director of National Parks and Wildlife v Barritt (1990) 102 FLR 392, 401 - 406.
[62] PD Act s 183(2).
[63] Although its chairperson is appointed by the WAPC. See PD Act s 182(2)(a).
[64] PD Regulations reg 40(1)(a).
[65] The responsible authority is to 'advise the owner … of the purchase price at which the land may be sold without affecting the amount of compensation': PD Act s 183(3).
[66] West Australia Planning Commission v Navarac Pty Ltd [2009] WASC 399 [39], [45].
[67] PD Regulations reg 39(2)(b), reg 40(1)(b), reg 40(2), reg 40(3).
[68] PD Act s 183(4), s 184(5).
In this case, the statutory scheme operates in circumstances where:
1.On 3 July 2015, the landowner's agent wrote to the Board enclosing a 'Notice of Intention to Sell the … property that is wholly reserved in the Metropolitan Region Scheme for Parks & Recreation'. The attached notice, signed by the landowner, stated 'it is my intention to be heard on the making of the valuation'.[69]
[69] GB 14 - 15; primary decision [32].
2.On 16 July 2015, the secretary of the Board sent an email to Mr Ryan of the Department of Planning, copied to Mr Hillyard of the WAPC. The email stated:
[The landowner] has submitted the attached Notice of Intention to Sell for the Board … to determine the unaffected value of the [land].
The WAPC previously elected to purchase the whole of the property from her late husband with a negotiating range of $1,635,000 to $1,665,000. [The landowner and WA Land Compensation] referred the matter to the [Tribunal]; however, [the action was discontinued].
…
Before I refer the Notice to the Board, could you please advise whether the WAPC (as responsible authority) wishes to waive the requirement for the Notice and negotiate the purchase of the property.[70]
3.Mr Hillyard on behalf of the WAPC responded to the above email in terms including the following:
As [the landowner] withdrew her previous compensation claim and the WAPC election to purchase is no longer effective, the Notice of Intention to Sell should take its course. This will establish the unaffected value …
Please discuss with the A/LDC to see if he has a contrary view on the approach the [Department of Planning] should recommend to the WAPC.[71]
4.On 17 July 2015, an officer on behalf of the WAPC wrote to the landowner's agent acknowledging receipt of the landowner's notice of 3 July 2015. The letter stated that the secretary of the Board would be in contact to arrange a meeting date.[72]
5.On 30 July 2015, an officer of the Department of Planning sent an email to the landowner's agent stating that she 'will be the contact person once the Board … provides advice to the WAPC as to the unaffected value of [the land] … the Board … will make contact with you in due course …'.[73]
6.The WAPC, an instrumentality of the State, must be taken to have familiarity with the role of the Board and its functions and powers under the PD Act, and its procedures.[74]
[70] GB 16 - 17; primary decision [33].
[71] GB 16; primary decision [33].
[72] Primary decision [34].
[73] Primary decision [37].
[74] See, eg, points 3 - 5 above; cf Graham v Baptist Union of NSW [2006] NSWSC 818 [32] - [35].

In these circumstances, and in light of the statutory framework referred to in [205] above, the proper inference is that both the Board and the WAPC assumed and understood, and, moreover, the Board reasonably assumed and understood, that if the WAPC[75] wished to make submissions on the valuation to be conducted by the Board, it would let the Board know. If it did that, the Board would be obliged, as a matter of procedural fairness, to give the WAPC the opportunity to do so and make the necessary arrangements. However, the opportunity to be heard which a 'reasonable' person in the Board's position ought 'fairly to give in the totality of the circumstances'[76] did not require the issue of a notice or an invitation to the WAPC. Putting it another way, the opportunity to make submissions in this case was not lost because the Board denied the WAPC an opportunity to do so, but because the WAPC failed to inform the Board that it wished to avail itself of the opportunity undoubtedly open to it, under the legislative scheme. In my view, in the circumstances of this case, the WAPC has not established 'practical injustice'.[77]
[75] With, evidently, ready access to advice from the Department of Planning - see points 2 - 5 of [206] above.
[76] See the observations of Gordon and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 [59] referred to in the passage from WZARH quoted in [200] above.
[77] See WZARH [57] - [58].
The foregoing conclusion is not altered by the fact that the Board received evidence from the landowner which the WAPC had disputed in earlier proceedings before the Tribunal. The Board was entitled to receive evidence from the landowner.[78] The WAPC must be taken to have known this, and the Board would reasonably assume that to be the case. What the Board made of the evidence is another matter; it was not bound to accept the evidence. Insofar as the WAPC in this appeal runs an argument based on the proposition that the judge incorrectly made a finding to the effect that the WAPC anticipated or knew in advance that the Board would accept the evidence of the landowner,[79] its premise for the argument is wrong. The judge did not make that finding.
[78] PD Regulations reg 39(2), reg 40(1)(b), reg 40(2), reg 40(3).
[79] Appellant's written submissions, par 10; WB 7.
Nor is there any particular significance[80] in the fact that the evidence of value would involve a consideration of both environmental and planning issues. If environmental and planning issues affected the determination of value, the Board would be required to address those issues. Again, the WAPC must be taken to have known this, and, moreover, a reasonable person in the position of the Board would have proceeded on that basis.
[80] Compare the appellant's submissions at appeal ts 7.
Although the WAPC did not know the date on which the Board would meet to determine the question of value, it knew, or must be taken to have known, that a meeting would be held within a reasonable time, at or prior to which the Board would receive material from the landowner. Again, the Board would reasonably have understood that to be the case. There is no suggestion that the Board proceeded with undue haste in fixing a meeting for 21 September 2015, so as effectively to deny the WAPC a reasonable opportunity to consider its position and decide whether it wished to adduce evidence or make submissions to the Board.
The two particular cases relied on by the WAPC provide no real assistance to it. Those cases are Babalis v City of Adelaide[81] and Carroll v Sydney City Council.[82]
[81] Babalis v City of Adelaide (1985) 38 SASR 450.
[82] Carroll v Sydney City Council (1989) 15 NSWLR 541.
In Babalis, the local board of health had, and exercised, a power to declare that an insanitary condition existed in a house, and served a notice on the occupiers requiring them to carry out specified works to remove the insanitary condition. The occupiers had not been given an opportunity to address the local board on these matters prior to the declaration made by the local board and the service of the notice. The local board contended that the rules of natural justice did not apply. The court found that they did. The court then went on to consider the 'difficulty' of whether procedural fairness was satisfied in these circumstances if the occupier is allowed to make submissions after the declaration and notice, but before the local board exercises its authority to ensure compliance with the notice. Cox J said:[83]
One may observe that most people would regard it as a distinct disadvantage to be given the opportunity of putting their case only at a time when it was a matter of persuading a public authority to change an opinion it had already formed and to countermand or modify a course of action it had already authorised. Besides, there is nothing provisional or contingent, let alone appealable, about a notice issued under s 58. If the person to whom it is addressed does not comply with it, he commits an offence and the local board may prosecute him. Some of the judicial statements that may be thought to support the view that it is enough to hear the owner or occupier after the authority has made up its mind were made in cases that were decided when the principle in question was in its formative stage. More is required of administrative bodies now. It is noteworthy that in Twist v Randwick Municipal Council Mason J was inclined to think that, despite the earlier cases to which I have referred, the Randwick Municipal Council's duty to act fairly might well involve it in giving an owner the opportunity to present his case before proceeding to the making of an order, although as it happened the existence of the appeal provision in that case offered the owner no redress in the event of the Council failing to do so. I do not think that the contrary reasoning in Knuckey v Peirce should be applied in this case. It is not, in my opinion, a sufficient compliance with an implied statutory obligation to give an owner or occupier a hearing that he is free to put in a submission if he chooses to do so on his own initiative. The authority's obligation is to notify him expressly of his rights in that respect. It should not just leave him to discover the position for himself. There is no reason to suppose that requiring a local board to give reasonable notice to the person concerned before proceeding under s 58 would involve it in much trouble or delay. (footnotes omitted)
[83] Babalis (462 - 463).
In Carroll, the question, again, relevantly, was whether the requirements of procedural fairness were satisfied if the person affected by the resolution in that case was given an opportunity, after the resolution, to make representations that it should not be enforced against him. McHugh JA (Kirby P & Clarke JA agreeing) said:[84]
In the present case Brownie J … held that the Council was not in breach of the rules of natural justice because it had given a copy of the [relevant resolution] to the defendant and informed him that, unless he made an application for a licence, legal proceedings would be commenced against him. However, I think that at the present time obligations imposed by the rules of natural justice are not fulfilled simply because the person affected, if he knew his rights, could make representations. For a public authority to comply with its statutory duty to give a person affected by the exercise of its powers the opportunity to be heard, the authority, as Cox J pointed out in Babalis, must expressly inform the person affected 'of his rights in that respect'.
…
In my opinion the decision in Woollahra Municipal Council v Clarke should not be followed in so far as it held that the rules of natural justice are complied with if a person had the opportunity to make representations even though he was not informed of his right to do so and did not make any representations.
[84] Carroll (549 - 550).
In the present case, there is no question that if the Board denied WAPC the opportunity to put a case on valuation prior to the Board's determination, it would be too late to do so after the determination had been made. The determination is final. However, Babalis and Carroll related to statutory contexts materially different from the one presently under consideration. Further, they related to the creation of conditions upon which an individual could be subject to the coercive power of a local authority.
I would dismiss ground 1.

Ground 2

Ground 2 of the appeal alleges that the judge erred in law by:
1failing to address ground 2 of its application for judicial review; and
2failing to rule that the 'procedure adopted by the Board … was so unreasonable as to exceed the jurisdiction of the Board …'.
As noted earlier, ground 2 of the judicial review application alleged that the Board 'erred in law and acted outside its jurisdiction':[85]
By issuing a valuation which was decided in a manner that was so irrational that no reasonable tribunal could have done so, in that the valuation was based on planning opinion evidence and environmental opinion evidence presented by [the landowner], and originating as evidence to be called by [the landowner] in earlier contentious proceedings in the … Tribunal on the same issue of valuation, without regard to planning opinion evidence and environmental opinion evidence filed and served by [the WAPC] in the … Tribunal. (emphasis added)
[85] Primary decision [42.2].
His Honour said, with respect to ground 2 of the WAPC's application in the primary proceedings that:[86]
The complaint made by ground 2 is that the Board … acted so unreasonably as to exceed its statutory powers in that it valued [the land] based on planning opinion evidence and environmental opinion evidence presented by [the landowner] which had its origins in the contentious proceedings in [the Tribunal], and did so without regard to the planning opinion evidence and environmental opinion evidence filed by the WAPC in [the Tribunal].
For the reasons I have given in relation to ground 1, I would reject ground 2. As I explained in dealing with ground 1, in my view the Board … was entitled to act on the basis that the WAPC would reasonably have anticipated that [the landowner] may rely on the materials she relied on in [the Tribunal], and that the Board … may proceed to determine the value having regard to that material, and that if it wished to make a submission or put material before the Board … it should do so.
[86] Primary decision [65] - [66].
In my view, it is plain that the judge did deal with ground 2 of the judicial review application. The WAPC's contention to the contrary should be rejected. The first part of ground 2 should be dismissed.
The second part of ground 2 is concerned with whether the 'procedure adopted by the Board' was so unreasonable as to exceed the Board's jurisdiction.[87]
[87] See [216] above.
On this question, the WAPC makes three points. First, it says that 'faced with [the landowner's expert report] originating [in the Tribunal proceedings], the Board should have taken its own independent planning advice'.[88] Secondly, it is said that insofar as the judge found that the WAPC anticipated or knew that the Board would decide the valuation on the basis of the landowner's expert evidence, the finding 'condemns the Board under ground 2'.[89] Thirdly, it observes that the facts or opinions in the expert evidence relied on by the landowner were not by statutory declaration.[90]
[88] Appellant's written submissions, pars 28 - 30.
[89] Appellant's written submissions, pars 31 - 32, read with par 10.
[90] Appellant's written submissions, pars 33 - 34.
As to WAPC's first point, the question of whether the Board should have obtained its own planning evidence must depend, at least in part, on its assessment of the evidence it had. In the primary proceedings, the WAPC had contended, in effect, that the landowner's expert evidence, to which Mr Volk, and the Board, had regard and to some extent adopted, reflected a misconception of the relevant statutory requirements.[91] The judge rejected that contention[92] and there is no appeal against that finding. Further, the judge found that 'Mr Volk formed his own view as to the likely zoning of the land and as to the prospects of urban development and the likely yield of [the relevant land]'.[93] If, as is the case, the evidence was directed to the correct legal question, and there being no suggestion that the evidence was obviously or inherently untenable or unreliable, it was reasonably open to the Board not to obtain its own, additional, planning evidence. The fact that the landowner's evidence was available to the Board is a consequence of the statutory scheme under which the Board acts. Insofar as the WAPC appears to suggest that there was an obligation on the Board to obtain the planning evidence available to the WAPC and upon which the WAPC had relied in the Tribunal, the submission overstates and misstates what reasonableness required in all the circumstances. Even though the Board knew (it may be accepted) that the WAPC had contested the landowner's planning evidence in the Tribunal, absent an indication by the WAPC that it wished to be heard on the planning issues, it was not unreasonable for the Board not to seek out the evidence which the WAPC had adduced in the earlier Tribunal proceedings.
[91] Primary decision [91].
[92] Primary decision [94] ‑ [117].
[93] Primary decision [137].
As to the WAPC's second point, that point rests upon the proposition that the judge made the finding alleged. As indicated earlier (at [208] above), his Honour did not.
As to the third point, the WAPC accepts the judge's conclusion that this did not invalidate the valuation, but says that it 'aggravates the unreasonableness of relying wholly on evidence presented by [the landowner].[94] In my view, the WAPC has not established the underlying unreasonableness for which it contends this was an aggravating factor.
[94] Appellant's written submissions, par 35.
I would dismiss ground 2.

Conclusion

The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS
21 AUGUST 2018