Western Australian Planning Commission v The Board of Valuers
[2016] WASC 326
•13/10/16
WESTERN AUSTRALIAN PLANNING COMMISSION -v- THE BOARD OF VALUERS [2016] WASC 326
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 326 | |
| Case No: | CIV:1229/2016 | 31 AUGUST 2016 | |
| Coram: | BEECH J | 13/10/16 | |
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | WESTERN AUSTRALIAN PLANNING COMMISSION THE BOARD OF VALUERS LOIS JOY PRESTAGE |
Catchwords: | Administrative law Valuation by Board of Valuers Whether Board owes duty of procedural fairness to responsible authority Context of duty of procedural fairness Whether duty of procedural fairness was breached Whether Board made jurisdictional error by misconstruing statute Whether non-compliance with procedural requirements rendered valuation invalid Turns on own facts |
Legislation: | Planning and Development Act 2005 (WA), s 183, s 188 Planning and Development Regulations 2009 (WA), reg 40 |
Case References: | Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 Mount Lawley v Western Austrailan Planning Commission [2007] WASCA 226; (2007) 34 WAR 499 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Seiffert v The Prisoners Review Board [2011] WASCA 148 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 West Australian Planning Commission v Navarac Pty Ltd [2009] WASC 399 Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE BOARD OF VALUERS
First Respondent
LOIS JOY PRESTAGE
Second Respondent
Catchwords:
Administrative law - Valuation by Board of Valuers - Whether Board owes duty of procedural fairness to responsible authority - Context of duty of procedural fairness - Whether duty of procedural fairness was breached - Whether Board made jurisdictional error by misconstruing statute - Whether non-compliance with procedural requirements rendered valuation invalid - Turns on own facts
Legislation:
Planning and Development Act 2005 (WA), s 183, s 188
Planning and Development Regulations 2009 (WA), reg 40
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr K M Pettit SC & Dr S J Willey
First Respondent : No appearance
Second Respondent : Mr H H Jackson
Solicitors:
Applicant : State Solicitor for Western Australia
First Respondent : No appearance
Second Respondent : JNC Legal
Case(s) referred to in judgment(s):
Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Mount Lawley v Western Austrailan Planning Commission [2007] WASCA 226; (2007) 34 WAR 499
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Seiffert v The Prisoners Review Board [2011] WASCA 148
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
West Australian Planning Commission v Navarac Pty Ltd [2009] WASC 399
Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471
1 BEECH J: The applicant in these proceedings (the WAPC) seeks an order quashing a valuation made by the first respondent (the Board of Valuers) under s 183 of the Planning and Development Act 2005 (WA) (the PD Act) relating to land owned by the second respondent, Mrs Prestage.
2 Grounds 1 and 2 complain that the Board of Valuers breached the requirements of procedural fairness and acted unreasonably by basing the valuation on expert reports Mrs Prestage had relied on in contentious proceedings in the State Administrative Tribunal (SAT) without hearing submissions and evidence to the contrary from the WAPC. Ground 3 alleges that in making its valuation the Board of Valuers misconstrued a provision of the PD Act under which it acted. Grounds 4 and 5 assert that the valuation was made in breach of procedural requirements imposed by the Planning and Development Regulations 2009 (WA) (the PD Regulations) and is accordingly invalid.
3 For the reasons that follow, I would reject each of these grounds and dismiss the application.
4 It is convenient to begin by setting out the legislative framework, as it assists in understanding the events that occurred.
The legislative scheme
5 Part 11 of the PD Act creates a regime for compensation of landowners for the injurious affection of land by the making or amendment of a planning scheme.
6 No compensation is payable until:
(a) the land is first sold following the date of the reservation; or
(b) the responsible authority refuses, or grants on unacceptable conditions, a development application by the landowner.1
7 The amount of such compensation is the difference between the value of the land as so affected by the existence of the reservation and the value of the land as not so affected, to be assessed at the time of the refusal of the development application or at the time of sale.2
8 Any question as to the amount of compensation is to be determined by arbitration under the Commercial Arbitration Act 2012 (WA), unless the parties agree on another method of determination.3
9 An owner claiming compensation after selling the land must have given written notice to the responsible authority of their intention to sell.4
10 An owner who has given notice of its intention to sell 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 of Valuers is to make the valuation.5
11 With an immaterial exception, a valuation made by the Board of Valuers under s 183(1) is to be communicated to the landowner and to the responsible authority, and for the purposes of div 2, namely s 172 - s 183, is final.6
12 Upon receipt by the responsible authority of the Board of Valuers' valuation under s 183, the responsible authority is to advise the owner of the minimum price at which the land may be sold without affecting the amount of compensation payable.7
13 As E M Heenan J explained in West Australian Planning Commission v Navarac Pty Ltd,8 the unaffected value is an important element of the calculation of compensation. The object and effect of s 183(1) and s 183(2) is to produce a determination of the unaffected value of the land that is binding for the purposes of calculating compensation.
14 The reason for the requirement upon the responsible authority under s 183(3) to advise of the minimum price is to give an assurance to the landowner that they may proceed to sell at 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.9
15 Regulations 39 and 40 of the 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.
(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.
17 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, in which case the responsible authority's election has no effect.
18 Section 188 provides the following as to the process of valuing the land:
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 facts
19 The facts are not in dispute.
20 The land the subject of the application is Lot 1610 at 31 Barrett Street, Southern River (Lot 1610). At all relevant times the owners of Lot 1610 were Mrs Lois Joy Prestage and Mr Ralph George Prestage (dec).10
21 In 1993 there was a proposal under Amendment 927/33 to rezone Lot 1610 from rural to urban under the Metropolitan Region Scheme (MRS). The Environmental Protection Agency opposed the rezoning of a portion of Lot 1610 where a wetland is located. Lot 1610 was not rezoned, and was left zoned rural.11
22 In 2000 Lot 1610 was included in a policy document entitled 'Bush Forever'. It was subsequently included in State Planning Policy No 1 and State Planning Policy No 2.8 in 2010.12
23 On 15 September 2010, Lot 1610 was reserved under the MRS and the City of Gosnells Town Planning Scheme 6.13
24 On 21 August 2013, Mr and Mrs Prestage applied to develop Lot 1610. The application was refused by the WAPC.14
25 On 17 October 2013, Mr and Mrs Prestage lodged a claim for compensation for injurious affection compensation pursuant to pt 11 of the PD Act.15
26 On 27 November 2013, the WAPC elected under s 187 of the PD Act to acquire Lot 1610 instead of paying compensation.16
27 On 9 May 2014, the WAPC made an offer of $1,635,000 for Lot 1610, which Mr and Mrs Prestage rejected.
28 On 27 May 2014, Mr and Mrs Prestage lodged an application in the SAT pursuant to s 188(2)(b) for a determination of the value of Lot 1610.17
29 In late 2014 the parties exchanged expert witness reports in relation to environmental and planning matters that impact the value of Lot 1610. It was apparent that both environmental and planning matters were contentious between the parties.18
30 Mr Prestage died in January 2015.19
31 On 20 February 2015, Mrs Prestage sought leave to withdraw the application. Leave was granted on 25 February 2015 and the SAT proceedings were discontinued.20 The WAPC's election to purchase was automatically terminated pursuant to s 187(4).
32 On 3 July 2015, by a single page notice, Mrs Prestage advised the WAPC of her intention to sell Lot 1610 and applied to the Board of Valuers for a valuation.21 In the notice she indicated her intention to be heard on the making of the valuation.
33 On 16 July 2015, the Secretary of the Board of Valuers sent an email to the Department of Planning and the WAPC requesting advice as to whether the WAPC, as responsible authority, wished to waive the requirement of the notice. The same day, Mr Hillyard responded saying that the 'notice of intention to sell should take its course' and that 'this will establish the unaffected value'.22 That email referred to the fact that Mrs Prestage had withdrawn a previous compensation claim.
34 On 17 July 2015, an officer on behalf of the WAPC wrote to Mr Robert Ferguson, agent for Mrs Prestage, acknowledging receipt of Mrs Prestage's notice of 3 July 2015.23 The letter stated that the secretary of the Board of Valuers would be in contact to arrange a meeting date.
35 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 Mr Martin Wells, Calibre Consulting, Mr Eugenio Ferraro, and Mr Glen Miller.24
36 No member of the 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 Dr Peter Keating.25
37 On 30 July 2015, Ms Jenni Johnston of the Department of Planning sent an email to Mr Ferguson stating 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 … the Board of Valuers will make contact with you in due course …'26
38 On 16 August 2015, Mr Dennis Volk, the board member appointed to give the Board of Valuers a preliminary report under reg 40 of the PD Regulations, completed the report (Volk Report).27
39 On 21 September 2015, Mr Ferguson and Mr Miller, valuers engaged by Mrs Prestage, made oral representations to the Board of Valuers as to the unaffected value of Lot 1610.28 On that day, the Board of Valuers determined the value 'as not so affected' to be $6,235,000. It also resolved to advise the WAPC 'for information' that it considers the as affected value to be in the range of $1,785,000 to $1,930,000.29
40 On 23 September 2015, the Board of Valuers notified the WAPC that the value of Lot 1610 'as not so affected' was assessed at $6,235,000 and the 'as affected' value was assessed in the range of $1,785,000 - $1,930,000.30
41 On 25 September 2015, the WAPC was served with a copy of the Volk Report.
The application and grounds
42 The applicant seeks a writ of certiorari and a declaration quashing the Board of Valuers' valuation of the not so affected value of Lot 1610. The grounds are that it erred in law and acted outside its jurisdiction:
1. By failing to accord procedural fairness to the Western Australian Planning Commission.
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 State Administrative Tribunal on the same issue of valuation, without regard to planning opinion evidence and environmental opinion evidence filed and served by Western Australian Planning Commission in the State Administrative 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 and
Ground 1: Procedural fairness
43 Generally speaking, absent a clear legislative intention to the contrary, a statutory power must be exercised in a way that affords procedural fairness to a party whose interests might be adversely affected by its exercise.31 It is not only powers that affect existing legal rights which are presumptively conditioned on procedural fairness. The presumption that the principles of natural justice condition the exercise of statutory power 'may apply to any statutory power which is apt to affect any interest possessed by an individual, whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation.'32
44 The interests of the WAPC as responsible authority are sufficiently affected to engage the presumption. A responsible authority is bound to pay compensation under pt 11 of the PD Act. The amount of the compensation is the difference between the affected value and the unaffected value. Consequently, the Board of Valuers' determination of unaffected value, made final by s 183(2), sets one of two integers for determining the amount payable by the WAPC.
45 Mrs Prestage submits that the statutory scheme, including the PD Regulations, excluded any right for a responsible authority to be heard.33 In support of that, counsel points to:
(1) the fact that the PD Regulations provide for a right on the part of a landowner to be heard and no such right to the responsible authority;
(2) 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.
46 I do not accept that the statutory scheme evinces the clear intention necessary to exclude the implication of procedural fairness. However, the features of the statutory scheme that are emphasised by Mrs Prestage are to be borne in mind in assessing what procedural fairness requires.
47 The content of the requirements of procedural fairness is flexible and varies with the circumstances of the case and, especially, the statutory context.34
48 A court required to determine whether a decision-maker has departed from the requirements of procedural fairness must analyse all the facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purpose of ascertaining whether there has been practical injustice in the particular case.35
49 For the reasons that follow, I am not persuaded that the Board of Valuers breached the requirements of procedural fairness in this case.
50 The WAPC did not contend that, in every case, the Board of Valuers' duty of procedural fairness requires it to invite submissions from the responsible authority. The WAPC submits that the particular circumstances of this case gave rise to a duty to alert the WAPC and to invite it to make submissions.36
51 The WAPC points to the following circumstances as giving rise to that duty:
(1) 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 SAT;
(2) the Board of Valuers knew that the proceedings in SAT had been contentious, and that issue had been joined in SAT between Mrs Prestage and the WAPC.37
52 The WAPC submits that, in those circumstances, procedural fairness required the Board of Valuers to inform the WAPC that it may determine the value by reference to the material Mrs Prestage had filed in SAT, and to invite the WAPC to make submissions to the Board of Valuers.38
53 In my view, taking into account the statutory scheme and the particular circumstances of this case, it was not incumbent upon the Board of Valuers, in order to afford procedural fairness, to invite the WAPC to make submissions as to the unaffected value. 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.
54 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.
55 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.39 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.40 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 1610.41
56 In these circumstances, procedural fairness did not require the Board of Valuers to invite submissions from the WAPC.
57 Nor, in my opinion, did it require the Board of Valuers to draw to the attention of the WAPC that Mrs Prestage relied on material that had been prepared in the SAT proceedings and was contested by the WAPC in the SAT proceedings.
58 The WAPC's submissions emphasised the sharp difference between the respective positions in the SAT proceedings, contending that procedural fairness required the Board of Valuers to invite submissions from the WAPC before proceeding to determine value on the basis of, or having significant regard to, the case of only one side in the SAT proceedings.
59 I do not accept the WAPC's submission42 that it could not reasonably have been anticipated that the Board of Valuers would proceed to value Lot 1610 on the basis of the material relied on by Mrs Prestage in SAT without regard to the material relied on by the WAPC in SAT, and without inviting submissions from the WAPC. The WAPC knew that:
(1) the Board of Valuers was undertaking a valuation of Mrs Prestage's property;43
(2) Mrs Prestage had a right to be heard in that process, and had indicated that she wished to be heard;44
(3) in the proceedings in SAT, Mrs Prestage had filed and served expert, planning and environmental reports;45
(4) in SAT, the parties had exchanged statements of facts, issues and contentions showing 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;46 and
(5) in SAT, Mrs Prestage contended that but for the reservation, Lot 1610 would have been zoned urban and ripe for residential subdivision.47
60 The Board of Valuers was entitled to proceed on the basis that the WAPC knew the matters in (1) and (2) and that, as a party to the SAT proceedings, the WAPC was familiar with the parties' contentions and competing evidence.
61 In the circumstances I think, objectively:
(1) it was reasonably to be anticipated by a party in the WAPC's position that:
(a) in the proceedings before the Board of Valuers, Mrs Prestage may rely on the material she had relied on in SAT, or the substance of that material, without reference to the material relied on by the WAPC in SAT;
(b) the Board of Valuers may proceed to determine the value having regard to the material put forward by Mrs Prestage; and
(c) if it as responsible authority wished to make a submission to the contrary, it should do so; and
(2) the Board of Valuers was entitled to act on that basis.
62 It was open to the WAPC to advise the Board of Valuers that it wished to make a submission. The Board of Valuers did not do anything to preclude or discourage that.
63 The WAPC submits that the procedural fairness obligations of a decision-maker are not diminished by the fact that the decision-maker may suspect that an aggrieved person knows of adverse material put against it.48 In my view, the content of a duty of procedural fairness, and whether it has been breached, can be influenced by what the other party knew, and what the decision-maker could reasonably have taken the other party to know. Those considerations bear on whether there has been any practical injustice, the lodestar of whether a duty of procedural fairness has been breached.
64 For the reasons I have given, I am not persuaded that in failing to inform the WAPC that Mrs Prestage relied on the material she had filed in SAT, and that the Board of Valuers may determine the value by reference to that material, and to invite the WAPC to make submissions to the Board of Valuers, the Board of Valuers breached its duty of procedural fairness.
Ground 2: unreasonableness
65 The complaint made by ground 2 is that the Board of Valuers acted so unreasonably as to exceed its statutory powers in that it valued Lot 1610 based on planning opinion evidence and environmental opinion evidence presented by Mrs Prestage which had its origins in the contentious proceedings in SAT, and did so without regard to the planning opinion evidence and environmental opinion evidence filed by the WAPC in SAT.
66 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 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 SAT, 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.
Ground 3: error in statutory construction?
67 The WAPC contends that the Board of Valuers erred in law in its approach to the meaning of the 'as not so affected' value of the land, thereby identifying the wrong issue or asking itself the wrong question and committing a jurisdictional error. The WAPC contends that the Board of Valuers assumed that disregarding the reservation entailed disregarding all the native vegetation impediment to zoning the land as urban and developing it for residential purposes. It contends that the only thing to be disregarded is the existence of the reservation and any steps taken to create or facilitate the reserve.49 The WAPC submits that the Board of Valuers disregarded the native vegetation on the land and the legal or policy context for assessing rezoning and developing on such vegetated land, and that to do so was an error of statutory construction.
68 By definition, whether the Board of Valuers made the jurisdictional error alleged by the WAPC in ground 3 invites attention to the decision and reasoning of the Board of Valuers. However, as will be seen, the reasoning of the Board of Valuers is limited in detail, and involved the adoption of the value assigned by Mr Volk in the Volk Report. The relevant aspect of the Volk Report referred to, evidently relied upon and arguably adopted, the reasoning of a planner, Mr Ferraro. In order to determine ground 3 as it was argued on behalf of the WAPC, it is necessary to give detailed attention to Mr Ferraro's report, the Volk Report, and to what the Board of Valuers decided. I begin with Mr Ferraro's report.
Planning report of Mr Ferraro
69 Mr Ferraro sets out a summary of the relevant strategic planning documents and their influence on the reservation of Lot 1610.50
70 He observed that in 1991 the State Planning Commission (now the WAPC) initiated MRS Amendment No 927/33, in which, in the amendment as initiated, the whole of Lot 1610 was included in the urban zone. Following submissions from the EPA, Lot 1610 was removed from the urban zone. Those submissions were focused on the need for the protection of wetlands and adequate buffers.51
71 After consideration of Amendment 927/33, the Department of Planning produced a draft structure plan for the area covered by that amendment. Lot 1610 was included as open space, reflecting the EPA's submissions.52
72 Mr Ferraro refers to the fact that in the Water Resources Management Study for Middle Swan Catchment, Lot 1610 was identified as seasonally waterlogged and remnant vegetation area.53
73 In January 2001 the WAPC published a District Structure Plan (DSP) for a broader area encompassing Southern River. Its purpose was to provide a framework for land use and development including Bush Forever sites. A number of options for the DSP were canvassed by the WAPC. The adopted structure plan includes all of Lot 1610 within both the 'Parks and Recreation Reservation' and Bush Forever (subject to adjustment) designation.54
74 The next section of Mr Ferraro's report is headed 'The purpose of the reservation'.55 Paragraphs 37 - 39 are in the following terms:
37. Amendment 1082/33 to the Metropolitan Region Scheme that was finalised and came into effect on 15 September 2010 established the Special Control Area and the Parks and Recreation Reservation over Lot 1610. The amendment report states that:
• This amendment was part of a suite of measures to implement the Bush Forever 2000 policy;
• Bush Forever is a whole of government policy and implementation plan designed to:
• Identify, protect and manage regionally significant vegetation within the Swan Coastal Plan portion of the Perth Metropolitan Region;
• Preserve the biodiversity of the region; and
• Achieve a sustainable balance between the consideration of bushland and development within the Perth Metropolitan Area.
'The documented vegetation complex for this site is the Southern River Complex, of which 10% is proposed for protection under Bush Forever. The site also contains an extensive wetland system that includes Conservation Category, Multiple Use and Resource Enhancement Wetlands. Lot 1603 is documented as containing Declared Rare Flora.
While this area includes various private landowners, it is considered environmentally significant and therefore the Western Australian Planning Commission is in consultation with the landowners regarding purchase and reservation of these lots.'
39. The Bush Forever Final Report (2000) includes Lot 1610 within Bush forever Site 125 'Holmes Street Bushland, Southern River Huntingdale.' The document includes the following statement relating to Site 125:
'Location of conservation category wetlands. Location for schedule fauna, Perth's Greenway No 91. Within 500m buffer of a poultry farm. Identified as Proposed parks and Recreation in the draft Southern River-Forrestdale-Brookdale-Wungong Structure Plan. Private Ownership.'
76 The next section of the report is headed 'The most likely zoning if not reserved'. In the first part of that section, Mr Ferraro expresses the view that:
Aside from the environmental issues, there are no physical or locational constraints affecting Lot 1610. Therefore, if not for the reservation I am of the view that the entire Lot 1610 would have been included in the urban zone of the MRS.58
77 He expresses the view that, if not for the reservation, the whole of Lot 1610 would have been included in the Residential Development Zone in the City of Gosnells Town Planning Scheme, under which an outline development plan (ODP) would need to be prepared.59 He also expressed the view that under the ODP the residential density would be predominantly R20.60
78 Mr Ferraro then proceeds to consider questions of wetland buffers and conservation category wetlands (CCW).61 He refers to the view of an environmentalist, Dr Keating, that it is not the intrinsic environmental value of Lot 1610 that makes it an important part of the conservation estate, but its role as a buffer to other areas within Bush Forever.62 He considers other developments around CCWs.63 He says that based on Dr Keating's opinion he understands that no part of Lot 1610 is affected by a wetland.64 He concludes that in the absence of the reservation and Bush Forever, no portion of Lot 1610 would need to be set aside as a buffer for the nearby wetlands, saying that is consistent with the approach taken in other nearby areas.65
79 Mr Ferraro's report then considers other land, in the nearby area, where land containing remnant vegetation has been cleared.66 He refers to other sites that were identified as having remnant vegetation which had subsequently been zoned urban in the MRS67 and land that has been subsequently cleared or approved for clearing in an adopted structure plan.68 He concludes that the identification of land containing remnant vegetation has not necessarily been a constraint to the development and urbanisation of land in the DSP area.69 He further concludes that in the absence of the reservation and Bush Forever, given the number of other remnant vegetated sites that have been zoned urban, and in light of the advice from Dr Keating, in his opinion Lot 1610 was wholly suitable and capable of accommodating urban development.70
80 Mr Ferraro proceeds to consider a number of case studies of other developments in the locality.71 That analysis is directed to the question of the likely density of the potential urban development of Lot 1610.
81 Mr Ferraro's report then explains, and attaches, five notional ODPs of Lot 161072 and figures 25 - 29.73 The concept plans make varying assumptions as to the extent of land available for subdivision.
82 Mr Ferraro expresses his conclusion as follows:
102. Since the early 1990's Lot 1610 Barrett Street was located in an area identified as being suitable to accommodate urban growth. While the lot was originally proposed to be rezoned to Urban, the EPA submission during the advertising period raised the issue of needing to protect the Balfour Street wetlands and its buffers. In a subsequent amendment to the MRS Lot 1610 was reserved for Parks and Recreation for the purposes of protecting both the vegetation and wetlands.
103. Lot 1610 was identified as a Conservation Category Wetland in the Wetlands Database. Environment investigations now show that Lot 1610 is not affected by any wetland, with the Balfour Street wetland being located on the other side of Barrett Street.
104. The identification of Lot 1610 as a Conservation Category Wetland affected the outcomes of the DSP prepared to guide the planning and development of the area. Various draft concepts of the DSP identify a need for Lakey Street to be continued past Lot 1610 to connect communities on either side of the Balfour Street wetland. The desire to consolidate the wetlands with the adjoining open space overrode the Lakey Street extension, which ultimately resulted in Lakey Street meandering around the open space, rather than providing a direct and convenient route.
105. In removing the reservation, Lot 1610 would have been included in the Urban zone. Its development would have been subject to normal planning requirements. The environmental analysis that proves that Lot 1610 is not a wetland and that the vegetation is not environmentally significant would ensure that the entire property would be available for development. Concept Plan 2 is, therefore, the most likely outcome that can be achieved under this hypothetical scenario.
106. In the unlikely event that the Conservation Category Wetland remains in place, Concept Plan 3 would be the most likely outcome. Concept Plan 3 provides for a separation between urban development and the wetland area similar to what has occurred in other areas throughout the DSP. Concept Plan 3 provides for a reasonable balance between providing a suitable separation distance between the wetland and urban development of the unaffected land.
The Volk Report
83 In preparing his report, it is clear that Mr Volk was well aware that Lot 1610 was included in Bush Forever site 125, and that the north-east portion of the land had been identified as a CCW.74 Mr Volk stated that the clearing of native vegetation was prohibited unless a clearing permit is granted or the clearing is for an exempt purpose, and Lot 1610 falls within an area known to have native vegetation.75
84 In considering and assessing the development potential of Lot 1610, Mr Volk referred to, and quoted from, the five ODPs prepared by Mr Ferraro in his report.76 Mr Volk's report states that he considers concept plan 3 to be a fair and reasonable interpretation of the urban development potential of the site as does Mr Ferraro, having regard to the quantum of the CCW, its location and of other developments within the immediate area of Bush Forever site 125.77 (In fact, as can be seen from the outline of Mr Ferraro's report set out above, Mr Ferraro did not consider concept plan 3 to be the most likely. He favoured concept plan 2). Immediately following this passage of his report, Mr Volk says that the calculation of a potential lot yield was as set out below. That is evidently based upon concept plan 3. Under the heading of 'general comments', Mr Volk says as follows:78
It is apparent from the review of planning documentation and information provided by Mr Eugenio Ferraro of Ferraro Planning and Development Consultancy that the subject property would more than likely have been zoned urban if not having been withdrawn from MRS's amendment 927/33.
The subject was removed from amendment 927/33 and subsequently zoned 'parks and recreation'. The subject property has approximately one hectare classified as CCW, being part of the Balfour Furley Road Stamp Land, and being that area to the northern portion or Barrett Road boundary the subject property.
With the exception of the subject property and the associated lands within Bush Forever site 125 the surrounding area has been developed as residential land with associated retail and commercial facilities and community amenities.
However we consider retention of the CCW as part of any ODP to be a fair and reasonable planning and development outcome in this instance in assessing the unaffected value of the Property.
85 In section 13 of his report, Mr Volk explains his valuation approach. By reference to comparable sales, he considers an amount of $1.15 to $1.25 million per hectare as fair and reasonable for the developable residential portion of the subject property and $275,000 per hectare for the CCW. He also uses a hypothetical static analysis to derive a valuation. The comparable sale approach produced a value in the region of $5.985 to $6.480 million and the hypothetical static analysis produced a figure of $5.8 million. He adopted the value of $6.235 million.79
The Board of Valuers' valuation
86 The minutes of the Board of Valuers' meeting of 21 September 2015 record that:
(1) Mr Ferguson and Mr Miller made a presentation on behalf of Mrs Prestage;
(2) the chairman invited Mr Volk to speak to his valuation report, which he did;80 and
(3) Mr Volk said, among other things:
(a) the land rate for the subject property was in the range of $1.1 to $1.2 million per hectare and he could not support $1.5 million per hectare;
(b) the one hectare area of wetland included a buffer, and to add a further buffer around the identified wetland could be considered a harsh imposition;
(c) the wetland area would likely have a value of $300,000 to $350,000 per hectare; and
(d) he considered that option 3 of Mr Ferraro's report was a reasonable outcome.81
(4) the Board of Valuers discussed the evidence and methodology applied in Mr Volk's valuation, along with the valuation provided by Mr Miller, and concluded that the local market is unlikely to support a land rate of $1,500,000 per hectare to $2 million per hectare for Lot 1610;82
(5) the Board of Valuers considered that an interested party might enter the market to purchase Lot 1610 in its reserved state for potential environmental offset land, noting that land for environmental offsets is an emerging market and that some offsets are being required close to the developments;83
(6) the Board of Valuers accepted Mr Volk's unaffected value of Lot 1610 and his informal advice on a suggested range for the affected value of Lot 1610;84
(7) the Board of Valuers determined the value of the whole of Lot 1610 as not so affected by the reservation to be $6.235 million.85
Analysis and disposition
87 Section 188(1) of the PD Act requires the value of the land to be determined without regard to any increase or decrease in value attributable wholly or in part to the planning scheme.
88 Ground 3 asserts that the Board of Valuers assumed that, for the purposes of s 188(1) of the PD Act, a 'not so affected' valuation entailed valuing Lot 1610 as if it had no constraints to rezoning and development arising from its native vegetation.
89 I accept Mrs Prestage's submission that ground 3 succeeds only if the WAPC demonstrates that:
(1) in making its valuation, the Board of Valuers disregarded constraints on the rezoning and development of Lot 1610 arising from its native vegetation; and
(2) it did so because it misconstrued s 188(1) of the PD Act.
90 The merits of the ground must be assessed in a context where the Board of Valuers did not say anything as to what, if any, matters it disregarded or the basis on which any such matters were to be disregarded.
91 The WAPC submits that:
(1) the Board of Valuers adopted Mr Volk's valuation of Lot 1610;
(2) it should be inferred that, in doing so, the Board of Valuers adopted Mr Volk's approach to the identification of what is to be disregarded and on what basis;
(3) Mr Volk evidently adopted the approach of Mr Ferraro;
(4) both Mr Ferraro and Mr Volk proceeded on the basis that were it not for the reservation of the land, Lot 1610 would have been zoned urban;
(5) both of them evidently did so on the basis that one is required to disregard the purpose of the reservation, namely the protection of vegetation and wetlands, or the presence of those features on Lot 1610;
(6) such an approach reveals jurisdictional error;
(7) further, both Mr Ferraro and Mr Volk disregarded Bush Forever, and that also reveals an error in construing s 188 of the PD Act;
(8) further and in any event, Mr Volk's report reveals a statutory misconstruction in that he focused on and identified the zoning of the land as at 1991 if the land had not been withdrawn from the urban zone of Amendment 927/33.
92 The parties agree that in determining what is to be disregarded under s 188(1) of the PD Act, the reasoning of the Court of Appeal in Mount Lawley v Western Australian Planning Commission86 is to be applied. That case was concerned with a section that stated that the value of land acquired by the WAPC was to be determined 'without regard to any increase or decrease, if any, in value attributable wholly or in part to the scheme'. In that context, the Court of Appeal held that it is not sufficient, in order that an increase or decrease in value be attributable to the scheme, that something is a precursor to, leads up to or has some relation to the scheme. The step or occurrence must be attributable to the scheme itself and not to some different notion that ultimately led to the creation of the scheme. The step must be attributable to the scheme, and not vice-versa. That requires that the step must have been taken in order to bring about the scheme or a variant of it that is not materially different. If it is to be attributable to the scheme, the step must have been taken with the intention of facilitating or for the purpose of creating the scheme. The effect on value of the characteristics or location of the land, or other factors affecting the land like population pressures, which always have the capacity to enhance or reduce its prospects of development, and hence its value, are not to be disregarded merely because they led, ultimately, to the scheme.87
93 Where, by the scheme, land is reserved for a use precluding urban development, and where that scheme is to be disregarded, attention may be directed to the zoning that the land would have had but for the scheme.88
94 For the reasons that follow, I do not accept that any misconstruction of s 188(1) is revealed by Mr Ferraro's report.
95 I begin with the question of whether the disregarding of Bush Forever reveals jurisdictional error.
96 It is clear that Mr Ferraro disregarded Bush Forever as well as the reservation itself.89
97 The WAPC submits that the disregarding by Mr Ferraro of Bush Forever reveals an error in construction of s 188(1). The WAPC emphasises that, in order for a step to be disregarded, the step must be attributable to the reservation, and not vice versa. The WAPC submits that, on a proper analysis, the reservation is attributable to Bush Forever, so that the identification in Bush Forever of Lot 1610 as containing significant bushland is not something to be disregarded.90
98 There would be some force in the WAPC's submission if the question of whether Bush Forever is attributable to the scheme was one to be determined by the court. However, I am not persuaded that the adoption by Mr Ferraro of the view that Bush Forever was attributable to the scheme reveals an error of construction. The question of whether an alleged step in a scheme is attributable to the scheme is a fact sensitive, evaluative judgment. It invites attention to whether the alleged step was taken with the intention of facilitating or for the purpose of creating the scheme. Mr Ferraro's conclusion is consistent with his simply having come to a different view on the factual question of whether the step was attributable to the scheme, including whether it was taken with the intention of facilitating or for the purpose of creating the scheme. It was open for Mr Ferraro to come to the view he did on that factual question.91
99 The WAPC accepted that whether Bush Forever was a step is a question of fact, but that the test to be applied is a question of statutory construction.92 That is true, but there is nothing in Mr Ferraro's report that expresses the test to be applied. For the reasons already given, the conclusion reached as to Bush Forever does not reveal that the statute was misconstrued.
100 The WAPC submits that Mr Ferraro's approach to the hypothetical zoning of Lot 1610 reveals error. It submits that:
(1) in assessing the most likely zoning of Lot 1610 if it was not reserved, Mr Ferraro put aside environmental issues;93
(2) immediately before that, he had concluded that the purpose of the reservation was the protection of vegetation and bushland;94
(3) the proper inference is that he considered the purpose of the reservation was to be disregarded, and that is why he put aside environmental issues;
(4) thus, Mr Ferraro adopted an approach that the notional zoning of the land was to be assessed without regard to any consideration of the protection of wetlands;
(5) that approach can only be explained by an error of statutory construction as to what is entailed by disregarding increases and decreases in value attributable to the planning scheme within the meaning of s 188 of the PD Act.
101 There is some force in these submissions, particularly if paragraphs [37] - [42] of Mr Ferraro's report are read in isolation. However, for the reasons that follow, when Mr Ferraro's report is read as a whole, I do not accept these submissions.
102 As I have outlined, Mr Ferraro's report deals with the question of the zoning of the land if it had not been reserved under the scheme.95 The report then deals with the yield and development potential of Lot 1610.96 In dealing with development potential, Mr Ferraro had regard to the existence of the CCW, and the vegetation on Lot 1610, and assessed whether, in the legal and policy context remaining after the disregarding of the reservation and Bush Forever, necessary approvals would have been given to permit developments of the density and yield referred to in the competing ODPs. In doing so, Mr Ferraro had regard to what had occurred in relation to development of other properties in the general vicinity. For example, that can be seen at [46] - [54] of Mr Ferraro's report, outlined earlier, in which the question of whether and to what extent the presence of a CCW and the need for any wetland buffer would have constrained the extent of potential development of Lot 1610. What Mr Ferraro says does not involve disregarding the wetland on Lot 1610, or the legal and policy context. Rather, it represents Mr Ferraro's view as to how that legal and policy context (disregarding the reservation and Bush Forever) would be applied to the wetland on Lot 1610.
103 In [58] - [62] Mr Ferraro considered, having regard to approvals given for nearby sites, whether and to what extent the presence of remnant vegetation would constrain urban development of Lot 1610. Those paragraphs demonstrate that Mr Ferraro did not disregard constraints on development of Lot 1610 arising from its native vegetation. To the contrary, Mr Ferraro considered how the legal and policy context (disregarding the reservation and Bush Forever) would be applied to Lot 1610, including its remnant native vegetation. In doing so, Mr Ferraro had regard to the extent to which the identification of land containing remnant vegetation has been a constraint to it being included in the urban zone and developed.97
104 Mr Ferraro's conclusion at [105] - [106] is expressed in a way that demonstrates he has not simply assumed that questions of wetland and vegetation are to be ignored. It reflects his assessment of the most likely position in the absence of the reservation and Bush Forever.
105 When Mr Ferraro's report is read as a whole, I am not persuaded that the manner in which he addressed the question of the zoning of the land in the absence of the reservation reveals any error of construction of the statute. Mr Ferraro addresses that question in [42] - [44], immediately following his outline of the purpose of the reservation. Mr Ferraro's opinion in [42] is expressed in the terms 'aside from the environmental issues'. That phrase invites the question of what is put aside, and why. If what Mr Ferraro means by that phrase is that he was assuming the vegetation and the wetland on Lot 1610 were to be disregarded, that would reveal an error of construction of the PD Act.98 However, I am not persuaded that Mr Ferraro's report should be read in that way. In the passages immediately preceding [42] Mr Ferraro said:
(1) Bush Forever was designed to protect native vegetation;99
(2) Amendment 1082/33, by which the reservation was made in the MRS, was part of the implementation of Bush Forever;100
(3) inclusion of Lot 1610 in Bush Forever was to protect wetlands and vegetation;101
(4) the purpose of the reservation of Lot 1610 was the protection of vegetation and wetlands.102
106 I read Mr Ferraro's report as saying, in effect, that when the reservation and Bush Forever are disregarded, nothing in the (remaining) legal and policy context relating to the zoning of the land would have meant that the protection of vegetation or wetlands would prevent Lot 1610 from being zoned urban. Consistently with that, Mr Ferraro referred to other properties in the vicinity of Lot 1610 that contained remnant vegetation but had subsequently been included in the urban zone of the MRS.103 Mr Ferraro's approach does not reveal or reflect an assumption that everything in the legal and policy context relating to the protection of vegetation and wetlands is to be disregarded. Such an approach would be entirely inconsistent with the approach taken by Mr Ferraro in assessing the likely subdivision yield of Lot 1610.
107 In any case, ultimately, the question is whether the valuation by the Board of Valuers involved the disregarding of something on the basis of an error in construing the legislation. The Board of Valuers' decision refers to, and adopted, the value proposed by Mr Volk. Mr Ferraro's report was not before the Board of Valuers at its meeting of 21 September 2015.
108 I turn to Mr Volk's report.
109 In his report, Mr Volk stated that 'it is apparent from the review of planning documentation and information provided by [Mr Ferraro] that the subject property would more than likely have been zoned urban if not having been withdrawn from MRS Amendment 927/33'. Read in isolation, that passage of Mr Volk's report provides some support for the WAPC's contentions. That amendment occurred in or about 1991. It is difficult to identify a basis upon which attention is to be directed to the zoning of Lot 1610 had it not been withdrawn from the urban zone of Amendment 927/33. One reading might be that the withdrawal was based on the environmental characteristics of the land, namely the presence of CCW or vegetation, and those matters are to be disregarded. Another might be that it was based upon a concern to protect wetlands, and any such concern is to be disregarded.
110 However, Mr Volk's report must be read as a whole. The paragraphs immediately following the passage referring to Amendment 927/33:
(a) complete the historical narrative regarding Lot 1610;
(b) state that other surrounding land, not within Bush Forever site 125, has been developed as residential land; and
(c) express the view that retention of the CCW as part of any ODP is a fair and reasonable assessment of the likely planning outcome in the absence of the reservation.
111 Earlier, in his report, Mr Volk identified the fact that Lot 1610 had a CCW and was within Bush Forever site 125 as major issues,104 and as weaknesses.105 He observed that being a Bush Forever site meant that s 5.1 of State Planning Policy applied.106 He recognised that the native vegetation on Lot 1610 could only be cleared if a permit was obtained.107 Mr Volk explained Mr Ferraro's 5 ODPs, and then he expressed his opinion as to the most likely assessment of the urban development potential of Lot 1610 in the hypothetical environment where the reservation does not exist.108 In that respect, Mr Volk referred (among other things) to other nearby developments.
112 When Mr Volk's report is read as a whole, I think the proper conclusion is that, like Mr Ferraro, Mr Volk disregarded the reservation and Bush Forever, and assessed how the vegetation and wetlands on Lot 1610 would have affected its development potential in that hypothetical legal and policy environment.
113 In speaking to his report at the Board of Valuers' meeting, Mr Volk dismissed the effect of the wetland on Lot 1610, the extent of the need for a buffer, and how that would affect the value of Lot 1610.109
114 For these reasons, in my opinion the fact that the Board of Valuers adopted Mr Volk's assessment of unaffected value does not sustain the WAPC's assertion, by ground 3, that the Board of Valuers valued Lot 1610 'as if it had no constraints to rezoning and development arising from its native vegetation' or, as put in the WAPC's submissions, by disregarding 'all and any native vegetation impediment to zoning [the Property] urban and its development for residential purposes'.110
115 More generally, I am not persuaded that the Board of Valuers made the assumption asserted in ground 3, namely 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.
116 The WAPC also points to aspects of the valuation conducted by Mr Miller, which Mrs Prestage presented to the Board of Valuers. However, I am not satisfied that the Board of Valuers relied in any material way on Mr Miller's valuation.
117 For these reasons, I would dismiss ground 3.
Ground 4: evidence not in the form of a statutory declaration
118 Ground 4 asserts that the Board of Valuers erred in law and acted outside its jurisdiction by taking account of evidence presented by Mrs Prestage that was not in the form of a statutory declaration, contrary to reg 40(2). The WAPC submits that Mr Volk had regard to and relied upon the statement of evidence from Mr Ferarro and Mr Ferarro in turn relied on the statement from Dr Keating. None of the facts or opinions in Mr Ferarro's evidence or Mr Keating's evidence were by statutory declaration.
119 It is clear that some of the material relied on by Mrs Prestage before the Board of Valuers was not in the form of a statutory declaration as required by reg 40(2).
120 The question is whether that means that the Board of Valuers' decision is beyond jurisdiction. Whether an act done in breach of a condition regulating the exercise of a statutory power is invalid is a question of statutory construction of the Act, to be determined in accordance with the principles in Project Blue Sky v Australian Broadcasting Authority.111 That question invites attention to whether it is a purpose of the PD Act that a valuation in breach of the provision is invalid. That is to be determined having regard to the language of the relevant provision, the scope and object of the PD Act as a whole and the consequences for the parties of holding void all acts done in breach of the condition.112
121 The use of imperative language is a factor in determining whether compliance with a provision is essential to the validity of the exercise of a power.113
122 Any public inconvenience flowing from invalidity is also a consideration.114
123 In the enquiry dictated by Project Blue Sky, it is relevant to notice that the requirement that evidence be in the form of a statutory declaration is contained within a regulation, not within the PD Act itself. Regulations 39 and 40 are made under s 263(2)(a) which empowers the making of regulations providing for or with respect to the making of an application, and the procedure to be followed. That creates a challenging framework for a contention that a valuation in breach of a procedural requirement, imposed under the regulation, is invalid.
124 The WAPC framed its ground, and its submissions in relation to Project Blue Sky, by reference to the specific content of reg 40(2).115 As I will explain, in the enquiry dictated by Project Blue Sky, whether one breaches the content of the regulation depends upon the construction of the Act, including the provision containing the regulation making power.
125 In this context, I think the enquiry dictated by Project Blue Sky must begin with the provisions of the PD Act, and not the PD Regulations. The first question is whether it is 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 be, on that account, invalid. In my view, the answer to that question is, plainly, no. The WAPC accepted that that is so.116 There is no reason to think that the legislature intended that any breach of any procedural requirement contained in the PD Regulations would render a valuation invalid. Such a construction would give rise to a highly inconvenient result in a context where a procedural requirement might be formal in nature and be incapable of affecting the substance of a valuation.
126 The next question is whether the PD Act, and in particular the regulation making power under s 263, empowers the making of a regulation that imposes a procedural requirement and makes compliance with that procedural requirement a condition of the valid exercise of power under s 183(1).
127 It is by no means clear to me that the regulation making power in s 263 should be construed in this fashion. The Board of Valuers' power to make a valuation under s 183(1) is conferred in broad terms, and without the expression of any constraints on the manner in which the Board of Valuers is to act in making the valuation. Section 263 confers power to make regulations, relevantly, as to the procedure to be followed on an application for a valuation. I do not discern, in that general phrase, an intention to confer a power to make regulations which impose procedural requirements that are made a condition of the valid exercise of the Board of Valuers' power in s 183(1). Consequently, ground 4 must fail.
128 In any case, even if, contrary to my view, the PD Act confers a power to make regulations that impose a procedural requirement and make compliance with that requirement a condition of the valid exercise of the Board of Valuers' power to make a valuation, for the reasons that follow, I am not persuaded that reg 40(2) reveals any such intention.
129 As the WAPC emphasises, reg 40(2) uses imperative language: 'must'. However, the regulation is directed to, and imposes a requirement upon, the applicant for a valuation, not the Board of Valuers as decision-maker. Thus, a valuation is not made in breach of reg 40(2); it may be made after a breach of that regulation by the applicant. That feature of reg 40(2) tends against construing it as revealing an intention that compliance by an applicant with reg 40(2) is a condition of the valid exercise of power by the Board of Valuers under s 183(1).
130 The evident object of the requirement in reg 40(2) is to provide a degree of comfort as to the integrity of the evidence presented to the Board of Valuers by an applicant. A statutory declaration is not the only manner in which that object can be achieved. If an applicant fails to comply with reg 40(2), that is a matter which the Board of Valuers can take into account in the exercise of its broad powers under s 183(1). Among other things, the Board of Valuers might take into account the reasons for non-compliance, and the question of whether the form of the evidentiary material sufficiently satisfies the need to ensure the integrity of the evidence presented. By contrast, on the WAPC's construction, in every instance where material presented by an applicant is not in the form of a statutory declaration, any valuation by the Board of Valuers would be invalid regardless of the reasons for non-compliance with the requirement of a statutory declaration, and regardless of any other steps taken to ensure the integrity of the evidentiary material presented. In my view, it is very unlikely that such a construction was intended.131 For these reasons, I would dismiss ground 4.
Ground 5
132 Ground 5 contends that the Board of Valuers exceeded its jurisdiction by failing to itself make a valuation of Lot 1610 based on data collected and summarised by an appointed member, and by failing to ensure that the data was collected and summarised as required by reg 40(1) of the PD Regulations.
133 In essence, ground 5 contends that the Board of Valuers must itself do the valuation, and must have the necessary data before it or summarised before it.117
134 In support of ground 5 the WAPC contends:
(1) that the Volk Report did not comply with reg 40(1)(a)(ii), and consequently the Board of Valuers did not receive material in compliance with that requirement, because it did not summarise all the data necessary for the making of a valuation in that it did not summarise the data in the reports of Mr Ferraro, Dr Keating, and Mr Wells;118
(2) when s 183 and reg 40 are read together, the Board of Valuers must make its valuation after having received the data prepared and summarised by the appointed member in accordance with reg 40(1)(a)(ii), and compliance with that requirement is a condition of the validity of a valuation.
135 For the reasons that follow, I do not accept either of these contentions.
136 In my view, s 183(1) and reg 39 and reg 40 are to be construed in the framework that, by its nature, the valuation of property involves a significant element of judgment on which reasonable minds may well differ widely.119 The requirement that the appointed member prepare and summarise the data 'necessary for the making of a valuation' must be construed in that framework. The task of preparing and summarising data necessary for making a valuation entrusts to the appointed member the making of subjective judgments, involving the expertise of a valuer, about what data is necessary for that purpose. In judicial review proceedings the court will be slow to second guess the judgment of an appointed member as to what data is necessary.
137 It is apparent from the outline I have already given that Mr Volk formed his own view as to the likely zoning of the land and as to the prospects of urban development and likely yield of Lot 1610. I am not persuaded that compliance with reg 40(1)(a)(ii) required a more detailed summary of Mr Ferraro's report than Mr Volk provided. Mr Volk adopted the view that Concept Plan 3, involving the retention of the CCW, was a fair and reasonable assessment of the likely planning outcome in the absence of the reservation. In that light, Dr Keating's view that the wetland was not a CCW and could be ignored could reasonably be seen as not being data necessary for the making of the valuation.
138 Further, I am not persuaded that any of the features of Mr Wells' report highlighted by the WAPC120 are such that the failure to include those features, or Mr Wells' report generally, meant that Mr Volk's report did not comply with reg 40(1)(a)(ii). By way of illustration, and as the 'high point' of its case in this respect, the WAPC submits that Mr Wells' opinion that any hypothetical application for a clearing permit is unlikely to have been granted was necessary data.121 Mr Volk formed the view that necessary approvals for urban subdivision were likely to have been obtained, taking into account, among other things, the clearing and subdivision of land in the vicinity of Lot 1610. I am not persuaded that the failure to include or summarise that aspect of Mr Wells' opinion meant that Mr Volk's report failed to comply with reg 40(1)(a)(ii).
139 In any event, even if, contrary to my view, Mr Volk's report did not comply with reg 40(1)(a)(ii), I am not persuaded that receipt by the Board of Valuers of a report that complies with that provision is a condition of the validity of a valuation by the Board of Valuers. In that regard, I repeat what I have said in relation to ground 4 in [125] to [127]. Further, even if, contrary to my view, the PD Act confers power to make a regulation that imposes a procedural requirement and makes compliance with that requirement a condition of validity, for the reasons that follow, I am not persuaded that reg 40(1) reveals any such intention.
140 Regulation 40(1)(a) requires the appointment by the Chairperson of a member to do three things: inspect the land; prepare and summarise the data necessary for the making of a valuation; and give the Board of Valuers a preliminary report. The WAPC contends that compliance by the appointed member with the second of those requirements is essential to the validity of a valuation by the Board of Valuers. Given the structure and language of reg 40(1)(a), it is difficult to construe that regulation as revealing an intention that compliance with the second of those requirements is essential without compliance with the first and third requirements also being essential. I do not construe reg 40(1)(a) as revealing an intention that if the appointed member fails to inspect the land, in all cases a subsequent valuation by the Board of Valuers is on that account invalid. Whether the regulation reveals an intention that a valuation done when there has been a breach of reg 40(1)(a)(ii) is invalid takes into account the consequences of holding void all acts done in breach of that provision. Given the variety of ways in which that provision might not be complied with, it is very difficult to conclude that the PD Regulations reveal an intention that a valuation made following a breach of the provision is on that account invalid. For example, non-compliance with reg 40(1)(a)(ii) may occur because the Board of Valuers is provided with all relevant data, but the appointed member fails to summarise that data.
141 I am not persuaded that the PD Regulations reveal an intention that if the appointed member of the Board of Valuers fails to prepare and summarise the data necessary for the making of a valuation, a valuation is thereby rendered invalid.
142 For these reasons, I would dismiss ground 5.
Conclusion
143 For the reasons I have given, I would dismiss each of the WAPC's grounds. Consequently, the application must be dismissed.
144 I will hear from the parties in relation to the question of costs.
1 s 177(1).
2 s 179(1) and s 179(2).
3 s 176(2).
4 s 177(3)(a)(ii).
5 s 183(1).
6 s 183(2).
7 s 183(3).
8West Australian Planning Commission v Navarac Pty Ltd [2009] WASC 399 [39], [47].
9WAPC v Navarac [47].
10 Affidavit of Stephen James Willey sworn 31 March 2016 [5]; SJW1.
11 Mr Willey's affidavit [6] - [7].
12 Mr Willey's affidavit [8].
13 Mr Willey's affidavit [10]; SJW5.
14 Mr Willey's affidavit [11].
15 Mr Willey's affidavit [12]; SJW6; Affidavit of Robert James Ferguson sworn 9 May 2016 [7].
16 Mr Willey's affidavit [13]; Mr Ferguson's affidavit [8].
17 Mr Willey's affidavit [13]; SJW7; Mr Ferguson's affidavit [10]; RJF3.
18 Mr Willey's affidavit [17], [18]; Mr Ferguson's affidavit [11].
19 Mr Willey's affidavit [19].
20 Mr Willey's affidavit [19]; SJW10; SJW11; Mr Ferguson's affidavit [12] - [13].
21 Mr Willey's affidavit [20]; SJW12; Mr Ferguson's affidavit [14].
22 Mr Willey's affidavit SJW13.
23 Mr Ferguson's affidavit RJF4.
24 Mr Ferguson's affidavit [18].
25 Mr Willey's affidavit [31]; Affidavit of Timothy Michael Hillyard sworn 10 June 2016 [15].
26 Mr Ferguson's affidavit RJF13.
27 Mr Willey's affidavit SJW15.
28 Mr Willey's affidavit [30]; SJW21; Mr Ferguson's affidavit [27].
29 Mr Willey's affidavit SJW21.
30 Mr Willey's affidavit [22]; SJW14.
31Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [11] - [13]; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 [97]; Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134 [113].
32Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 619; Plaintiff S10/2011 [66].
33 Mrs Prestage's submissions [7] - [18]; ts 32 - 34.
34Kioa v West 584 - 585, 612; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [81] - [83]; Polo Enterprises Australia [114].
35Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [37]; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [4].
36 ts 10, 11, 14.
37 ts 11 - 12; WAPC's submissions [23].
38 ts 12.
39 Mr Willey's affidavit SJW13.
40 Mr Willey's affidavit SJW13.
41 Mr Willey's affidavit SJW17.
42 ts 13, 20, 22, 55.
43 Mr Willey's affidavit SJW12; SJW13; Mr Ferguson's affidavit RJF4.
44 Mr Willey's affidavit SJW12.
45 Mr Willey's affidavit [18].
46 Mr Willey's affidavit [17].
47 Mr Willey's affidavit [63]; SJW8.
48 ts 11 - 12, 13, 21.
49 WAPC's submissions [29] - [30].
50 Report of Eugenio Ferraro (Mr Ferraro's report) [18] - [36]; Mr Willey's affidavit SJW16.
51 Mr Ferraro's report [23] - [26].
52 Mr Ferraro's report [27].
53 Mr Ferraro's report [29].
54 Mr Ferraro's report [30] - [36].
55 Mr Ferraro's report [37] - [41].
56 Mr Ferraro's report [40].
57 Mr Ferraro's report [41].
58 Mr Ferraro's report [42].
59 Mr Ferraro's report [43].
60 Mr Ferraro's report [44].
61 Mr Ferraro's report [46] - [54].
62 Mr Ferraro's report [46] - [47].
63 Mr Ferraro's report [48] - [49].
64 Mr Ferraro's report [52].
65 Mr Ferraro's report [54].
66 Mr Ferraro's report [58] - [62].
67 Mr Ferraro's report [59] - [60]
68 Mr Ferraro's report [59].
69 Mr Ferraro's report [61].
70 Mr Ferraro's report [62].
71 Mr Ferraro's report [68] - [86].
72 Mr Ferraro's report [87] - [101].
73 Mr Ferraro's report pages 225 - 229.
74 Volk Report pages 126, 129 and 142.
75 Volk Report page 144.
76 Volk Report pages 149 - 150.
77 Volk Report page 150.
78 Volk Report page 163.
79 Volk Report page 159.
80 Mr Willey's affidavit SJW21; pages 258 - 259.
81 Mr Willey's affidavit SJW21; pages 258 - 259.
82 Mr Willey's affidavit SJW21; page 259.
83 Mr Willey's affidavit SJW21; page 259.
84 Mr Willey's affidavit SJW21; page 259.
85 Mr Willey's affidavit SJW21; page 260.
86Mount Lawley v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499.
87Mount Lawley [26] - [30]; McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [196].
88 See McKay v Commissioner of Main Roads [200] - [292].
89 See, for example, Mr Ferraro's report [54], [62].
90 ts 9.
91 See the passages in the Amendment Report referred to in Mrs Prestage's submissions [69] - [70].
92 ts 58 - 59.
93 Mr Ferraro's report [42].
94 Mr Ferraro's report [40].
95 Mr Ferraro's report [42] - [44].
96 Mr Ferraro's report [46] - [101].
97 Mr Ferraro's report [60] - [61].
98 See Mount Lawley [29].
99 Mr Ferraro's report [37].
100 Mr Ferraro's report [37].
101 Mr Ferraro's report [38], [39].
102 Mr Ferraro's report[40].
103 Mr Ferraro's report [58], [60].
104 Volk Report page 126.
105 Volk Report page 129.
106 Volk Report page 142.
107 Volk Report page 144.
108 Volk Report page 150.
109 Volk Report page 258.
110 WAPC's submissions [29].
111Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Seiffert v The Prisoners Review Board [2011] WASCA 148 [173].
112Project Blue Sky [91]; Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116 [30].
113SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 [133] - [136], [165] - [166], [205] - [208]; Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 [204].
114Project Blue Sky [97].
115 ts 25 - 26, 27.
116 ts 27.
117 WAPC's submissions [35]; ts 30 - 31.
118 ts 30 - 31.
119McKay v Commissioner of Main Roads [No 7] [164] - [165].
120 ts 4 - 6.
121 ts 6, 60.
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