WILSON and WESTERN AUSTRALIAN PLANNING COMMISSION - [2009] WASAT 119

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LAND ADMINISTRATION ACT 1997 (WA)

CITATION: WILSON and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 119

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)

HEARD: 17, 18 AND 19 NOVEMBER 2008

DELIVERED : 19 JUNE 2009

FILE NO/S: DR 53 of 2007

BETWEEN: TERENCE GRATTON WILSON EXECUTOR OF THE ESTATE OF DULCIE ELIZABETH WILSON
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Resumption of Land - Compensation - Approach to valuation - Piecemeal approach - Comparable sales - Hypothetical subdivision - Whether flood fringe capable of development - Whether land developable if reason for taking ignored - Foreshore premium - Severance

Legislation:

Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Health Act 1911 (WA)
Land Administration Act 1997 (WA), s 241(2), s 241(7), s 241(8), s 241(9), s 241(11), s 241(12), s 248
Metropolitan Region Scheme, cl 12, cl 30A
Metropolitan Region Town Planning Scheme Act 1959 (WA), s 32
Supreme Court Act 1935 (WA), s 142
Swan River Trust Act 1988 (WA), s 5, s 7, Sch 1
Town of Vincent Town Planning Scheme No 1

Result:

Compensation assessed at $1,330,958 plus interest

Category: B

Representation:

Counsel:

Applicant: Mr P McGowan and Ms L Rowley
Respondent: Ms DE Quinlan and Ms R Howlett

Solicitors:

Applicant: N/A
Respondent: N/A

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

Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170
Commonwealth v Arklay (1952) 87 CLR 159
Flotilla Nominees Pty Ltd and Western Australian Land Authority [2003] WASC 122
Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 195 ALR 236
Merivale Motel Investments v Brisbane Expo Authority (1987) 64 LGRA 108
Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565
Queensland v Murphy (1990) 64 ALJR 593
Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The respondent compulsorily resumed approximately one-third of the applicant's land which abutted the Swan River in Mt Lawley. The area of land taken comprised the flood plain of the river. It was previously reserved for parks and recreation. Part of the reserved land comprised floodway, and the other part comprised flood fringe.
Valuers engaged by the parties disagreed as to the appropriate method of valuation, and as to the value of the land taken. Part of the reason for the valuers differing was because they made different assumptions, based on different expert views, as to the possibility of development of the taken land. The developability of the land was affected by the proximity of the river and a gas pipeline which passes through the reserved land.
The Tribunal reviewed the expert evidence as to the possibility of developing the land. It considered the alternative development scenarios put forward by the parties. Having reached conclusions on those matters, it considered the approaches of the valuers and determined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] WASAT 119
Decision Date: 19 JUNE 2009

CaseChat Overview and Summary

The applicant, Wilson, sought review of a decision made by the Western Australian Planning Commission regarding the resumption of their land. The dispute was heard in the Supreme Court of Western Australia. The crux of the matter was the valuation of the land and the subsequent compensation to be awarded to the applicant.

The central legal issues revolved around the correct approach to valuing the land, specifically whether a piecemeal approach was appropriate given the circumstances, and the applicability of a foreshore premium. Additionally, the court had to determine if the land was developable if the reason for the taking was disregarded, and whether a hypothetical subdivision could be considered in the valuation process. The potential for development of the flood fringe area was also examined.

The court held that a piecemeal approach was appropriate in this instance, considering the unique nature of the land and the circumstances surrounding its resumption. The court found that a foreshore premium was applicable and that the land was not developable if the reason for the taking was ignored. The hypothetical subdivision approach was deemed relevant in determining the value of the land. The court also concluded that the flood fringe was not capable of development, which impacted the overall valuation. The court awarded the applicant compensation of $1,330,958, less any advance payment already made, with interest on the sum of $384,958 from 5 April 2005 to 27 June 2006. The respondent was also granted liberty to apply in relation to the question of costs within 21 days of the date of these orders.

Orders

Orders of the court

1. The respondent is to pay the applicant compensation in the sum of $1,330,958 (less any advance payment already made) together with interest on the sum of $384,958 from 5 April 2005 to 27 June 2006. 2. Either party have liberty to apply in relation to the question of costs within 21 days of the date of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGE J

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Ratio Decidendi

Legal Principle Established

Established by: JUDGE J

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