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[2015] WASC 478
General information, not legal advice.
Supreme Court of WA
2015-12-22
Pritchard J
Original judgment source is linked above.
PART 1: INTRODUCTION, OVERVIEW AND LEGAL PRINCIPLES
1 Prior to 26 July 2006, the plaintiffs owned approximately 804 ha of land (the Kelliher land) located to the east of Fiegert Road and north of Old Mandurah Road in the Shire of Murray. On 26 July 2006 (the Date of Taking), the defendant compulsorily acquired 37.0221 ha of the Kelliher land (the Taken Land) pursuant to the provisions of pt 9 of the Land Administration Act 1997 (WA) (the LA Act) for the purposes of a public work. The public work in question was the construction of part of the Perth to Bunbury Highway (the Highway). The plaintiffs remain the owners of 767.3341 ha of the Kelliher land (the Remaining Land).
2 In this action, the plaintiffs seek compensation in accordance with the provisions of the LA Act in consequence of the taking of their land. For the reasons set out below, I have concluded that the plaintiffs are entitled to total compensation of $3,407,272 plus interest from the Date of Taking until the date the plaintiffs received an advance payment of compensation.
3 In these reasons, I deal with the following matters:
Part 1: Introduction, overview and legal principles
Part 2: The knowledge of the hypothetical Spencer parties statutory planning framework and planning instruments
Part 4: Other matters relevant to the development of the Kelliher land suitability for development, environmental constraints and connection to infrastructure
Part 5: The review of the IPRSP, the Southern Sectors Review, the Development of Amarillo and the RRF
Part 6: The planning advice the hypothetical Spencer parties would have received
Part 7: Conclusions which the hypothetical Spencer parties would have reached as to the prospects that the Kelliher land would be rezoned
Part 9: Conclusion as to compensation under s 241 of the LA Act
1. Introductory Matters (a) The Kelliher land lot numbers and location
4 The Kelliher land was contained in Lots 190, 202, 203, 204, 205 and 230 on Deposited Plan 2087 (Certificate of Title Volume 1396 Folio 402), Lots 206, 208 and 209 on Deposited Plan 2087 (Certificate of Title Volume 1124 Folio 20), and Lot 207 on Deposited Plan 2087 (Certificate of Title Volume 1127 Folio 536).
5 A map showing the location of the various lots of the Kelliher land, and a map depicting the location of the Kelliher land within the Peel Region, are included in Appendix 1 to these reasons.
6 Lot 190, the southernmost lot of the Kelliher land, had a street frontage to Old Mandurah Road in the south. Immediately to the west of Lot 190 were two lots of land - Lots 191 and 192 - which were, prior to July 2006, owned by Mr and Mrs McKay (the McKay land). Part of that land was also taken for the purposes of the Highway, and compensation in respect of the taking of the McKay land has been the subject of other proceedings in this Court, to which I refer in these reasons (the McKay decision)[1]. Furthermore, prior to the Date of Taking, part of the McKay land had been reserved for the Peel Regional Recreation Facility (the RRF).
7 Immediately to the north-west and north of Lot 190 were located Lots 203 and 204 respectively. Fiegert Road marked the western boundary of Lot 203.
8 Immediately north of Lots 203 and 204 were Lots 202 and 205 respectively. Fiegert Road marked the western boundary of Lot 202, while the north-eastern corner of Lot 205 was adjacent to Paterson Road. Rogers Road marked the northern boundary of each of Lots 202 and 205.
9 Immediately to the north of Lots 202 and 205 were Lots 207 and 206 respectively. Fiegert Road marked the western boundary of Lot 207, Paterson Road marked the eastern boundary of Lot 206, and Rogers Road marked the southern boundary of both Lots.
10 Immediately to the north of Lots 207 and 206 were Lots 208 and 209 respectively. Fiegert Road marked the western boundary of Lot 208 and Paterson Road marked the eastern boundary of Lot 209.
11 Immediately to the east of Lot 190 are lots 10, 11, 12 and 6. These lots are owned by interests associated with the Emmanuel family (the Emmanuel land).[2]
12 In these reasons, when I refer to the land at north Ravenswood, I am referring to the land north of Old Mandurah Road including the Kelliher land, the McKay land, and the Emmanuel land. To the south-east of Lot 190, and located between Old Mandurah Road and Pinjarra Road, is the small town of Ravenswood. Also to the south-east of Lot 190, and across Old Mandurah Road, to the east of Ravenswood, is an urban development known as Riverland Ramble.
13 On 26 July 2006, a Taking Order[3] was registered by the Western Australian Department of Land Information. The Taking Order pertained to the Taken Land, which was identified as follows:
14 The effect of the Taking Order was the immediate disposition of the Taken Land in fee simple in possession to the defendant, and the plaintiffs' interest and estate in the Taken Land was converted to a claim for compensation.[4]
16 Because much of the discussion in these reasons pertains to the Kelliher Land prior to the Date of Taking, it will be convenient to continue to refer to the Remaining Land by reference to those lot numbers which applied prior to the issue of new certificates of title after the Date of Taking.
17 The plaintiffs claim compensation pursuant to s 241(2) of the LA Act for the market value of the Taken Land as at the Date of Taking, discounting any increase or decrease in value attributable to the Highway.[5]
18 The plaintiffs also claim compensation pursuant to s 241(6) of the LA Act.[6] However, no basis for an award of compensation under s 241(6) was advanced in the evidence.
19 The plaintiffs also claim compensation pursuant to s 241(7) of the LA Act for the loss and damage they claim to have suffered as a result of the severing of the Remaining Land by the Highway (including but not limited to damage suffered as a result of the highest and best use of the Remaining Land west of the Highway reservation being limited to 'special rural' rather than 'urban') and as a result of the reduction in value of the Remaining Land as a result of the Highway.[7]
20 The plaintiffs claim compensation pursuant to s 241(8) of the LA Act. There is no dispute that an award for solatium should be in the sum of an additional 10% on any award of compensation pursuant to s 241(2) and s 241(7) of the LA Act.[8]
21 The plaintiffs acknowledge that any award of compensation to the plaintiff must necessarily deduct the amount of the advance payment already received, which was in the sum of $6,000,000.[9]
22 The plaintiffs also seek interest pursuant to the provisions of the LA Act, or alternatively pursuant to s 32 of the Supreme Court Act 1935 from the Date of Taking.
23 The defendant's case is that although the plaintiffs are entitled to compensation in accordance with s 241 of the LA Act, plus interest, the amount already paid equals or exceeds the full value of the compensation due.[10]
2. Overview of the parties' cases (a) Highest and best use of the Kelliher land - without the Highway
24 The plaintiffs' case is that in the absence of the Highway, a hypothetical purchaser at the Date of Taking would have considered the highest and best use of the Kelliher Land to be rezoning to urban within five years, in the following stages:[11]
25 The plaintiffs contend that after rezoning and subdivision, the total yield for the Kelliher Land would have been 9,679 dwellings, comprising:
26 The defendant's case is that absent the Highway, a hypothetical purchaser and vendor would have known that:
27 The defendant also contends that in the absence of the Highway, neither the IPRSP, the PRS, TPS 4, the draft TPS 5 or the draft local planning strategy proposed by the Shire of Murray (draft LPS) would have shown the RRF, and prior to the Date of Taking, no land would have been acquired for the RRF near the corner of Fiegert Road and Pinjarra Road Ravenswood.[14]
28 The defendant's case in relation to the highest and best use of the Kelliher land with the Highway relies on facts and circumstances of which the defendant says the hypothetical Spencer parties would be aware as at the Date of Taking. Those facts and circumstances are discussed in Part 2 below.
(b) Highest and best use of the Kelliher land - with the Highway
29 The plaintiffs' case is that with the Highway, they were no longer able to use the Taken Land.
30 The plaintiffs say that the highest and best use of the Remaining Land at the Date of Taking, having regard to the Highway was:[15]
32 The plaintiffs point to four effects of the Highway on the planning and development potential of the Remaining land:
33 The plaintiffs contend that the effect of the Highway was to reduce the overall potential lot yield for the Kelliher Land.[18] The plaintiffs say that upon rezoning and subdivision, the total yield for the Land would have been 8850 residential lots and 46 special rural lots, comprising:
34 The plaintiffs also contend that the effect of the Highway was to distort the potential lot yield for the Kelliher Land.[20] The plaintiffs say that this would result in a loss of 1,108 lots zoned R20, but an additional 245 lots zoned R40, an additional 34 lots zoned R60, no change in the number of lots zoned R100, and an additional 46 lots zoned special rural.[21]
35 The defendant says that the actual lot yield and lot sizes for the Kelliher land, and for the Remaining Land, would be dependent on securing approval for urban rezoning and subdivision, and the conditions of subdivision.[22] However, the defendant admits that the alteration in potential lot yields following subdivision of the Remaining Land, as compared with the Kelliher Land, is as claimed by the plaintiffs.[23]
36 The plaintiffs contend that the effect of the Highway would be to increase the costs of developing the Remaining Land, as a result of the need for noise abatement measures.[24]
37 The defendant does not admit that the effect of the Highway would be to increase the costs of developing the Remaining Land.[25]
38 The plaintiffs claim that because the Highway severed the Kelliher land, the highest and best use of that portion of the Remaining Land which is to the west of the Highway reservation has been limited to rezoning for 'special rural', that land has no linkage to urban centres or other urban development, and has no reasonable prospects for rezoning to 'urban'.[26]
39 The defendant admits that the potential for rezoning the Remaining Land west of the Highway would be limited to rezoning for 'rural residential' use.[27] However, the defendant says that the value of the Remaining Land west of the Highway was increased on account of the Highway because that land became suitable for rezoning to 'special rural' within three years.[28]
40 The plaintiffs claim that as a result of the Highway the realisation of the highest and best use of the Remaining Land east of the Highway reservation (that is, subdivision following rezoning to 'urban') has been delayed by at least 15 years.[29] The plaintiffs contend that this delay would arise from the following factors, as they applied at the Date of Taking[30]:
41 Although the Amarillo landholding has since been referred to as Keralup, for the sake of convenience in these reasons, I have continued to refer to the development as the Amarillo development.[31]
42 The defendant says that the hypothetical purchaser and vendor would, based on their knowledge of all relevant planning matters, have concluded that:[32]
43 The defendant admits that if the Highway had not been proposed, the potential for rezoning areas of the Remaining Land would have been the same within each lot.[33]
44 However, the defendant denies that the rezoning potential of the Kelliher Land as a whole was uniform, as the plaintiffs contend.[34] The defendant's case is that the potential for rezoning Lot 190 to 'urban' was greater and sooner than for the rest of the Kelliher Land, the potential for rezoning land south of Rogers Road to 'urban' was greater and sooner than for land north of Rogers Road, and that the potential for rezoning land north of Rogers Road to 'rural residential' was greater and sooner than for Land south of Rogers Road.[35]
45 These contentions about the conclusions the hypothetical parties would have reached were in turn based on facts and circumstances of which the defendant contended the hypothetical Spencer parties would be aware. These are discussed below in Part 7 of these reasons.
46 The defendant disputes the plaintiffs' claim that as a result of the Highway, the realisation of the highest and best use of the land to the east of the Highway reservation was delayed by at least 15 years.[36] The defendant says that the announcement made by the Premier on 13 September 2004 that the Highway was to be constructed by 2009 (the Highway announcement) had the effect of shortening the period during which the Remaining Land might be rezoned for urban residential or commercial uses, or alternatively, that the Highway announcement shortened the period that a reasonable hypothetical seller and purchaser would have perceived was likely for rezoning the Remaining Land for urban residential or commercial uses.[37]
47 The defendant disputes the plaintiffs' claim that the realisation of the highest and best use of the Remaining land east of the Highway was delayed because the Highway brought the Amarillo landholding into competition with the Remaining Land for rezoning to urban in the short to medium term.[38] The defendant says that at the Date of Taking, Amarillo was still being advanced for future urbanisation, and would be a matter considered in the Southern Sectors Review. However, whether and when Amarillo would be urbanised were uncertain.[39]
48 The defendant also says that the absence of the Highway would have affected, but not terminated, the prospects for the rezoning and urban development of Amarillo,[40] for two reasons. First, the defendant says that in the absence of the Highway, a different road network would have been established in the Peel and Southern Metropolitan regions before the Date of Taking. Secondly, the defendant also says that only a small part of Amarillo was capable of urban zoning and development in the short term with or without the Highway,[41] or alternatively, says that even if the short term urbanisation of part of Amarillo was attributable to the Highway, that that urbanisation did not affect the value of the Taken Land or of the Remaining Land.[42]
49 The defendant disputes the plaintiffs' claims that the Highway delayed the progress of the FPSP. It says that the Highway announcement was a catalyst to embark upon the FPSP, and that the proposed preparation of the FPSP did not proceed because the Peel Region Planning Committee (PRPC) took the view from 16 September 2005 that a more comprehensive approach was to be taken to the strategic planning of the region,[43] which became known as the Southern Sectors Planning Review.[44] The defendant says that the decision not to proceed with the FPSP but to include the Furnissdale - Pinjarra corridor in a wider study that would take longer to complete was not caused by the Highway.[45] The defendant also says that in any event, the advent of that wider study - the Southern Sectors Review - did not diminish the prospects of rezoning the Remaining Land for urban residential or commercial use.[46]
50 The defendant disputes the plaintiffs' claim that the realisation of the highest and best use of the Remaining land east of the Highway was delayed because the Highway was the catalyst for the Southern Sectors Review, which Review in turn caused uncertainty in the planning environment within the Peel region.[47] The defendant acknowledges that the Highway announcement was a catalyst to embark on the Southern Sectors Review, but says that the proposed Highway did not cause the Southern Sectors Review.[48] The defendant says that a review similar to the Southern Sectors Review would have been instituted at about the same time, whether or not the proposed Highway had been planned or the Highway announcement made.[49]
51 The defendant also says that the future development of Amarillo would have been included within the Southern Sectors Review whether or not the Highway had been proposed.[50]
52 The defendant's position is that at the Date of Taking, the advent of the Southern Sectors Review did not cause any greater uncertainty about the rezoning or development of the Remaining Land than would have existed without the Southern Sectors Review[51] and did not diminish the prospects of the Remaining Land being rezoned for urban residential or commercial use.[52]
53 The defendant contends that the Highway announcement caused an increase in the value of that part of the Remaining Land which was unaffected by traffic noise, vibration, odour or visibility from the Highway (the Unaffected Remaining Land) as compared to the value of that land had the Highway not been proposed.
54 The defendant's case is that that increase in value was attributable to the following considerations:[53]
55 The defendant says that not more than 20% of the value of the Unaffected Remaining Land is attributable to the Highway.[54]
3. Overview of the parties' contentions in relation to the knowledge of the hypothetical Spencer parties (a) The unaffected scenario (without the Highway)
56 The plaintiffs did not expressly plead the particular matters which they contended would be within the knowledge of the hypothetical Spencer parties.
57 In contrast, the defendant pleaded at some length various matters which the defendant contended would have been known to, or capable of becoming known by, the hypothetical Spencer parties, including as a result of the receipt of expert planning advice, in the scenario without the Highway. It is convenient to set out those matters of knowledge by reference to broad categories, namely land zoning; the Southern Sectors Review; the draft LPS and Shire support for rezoning the Kelliher land; Network City; the development of Amarillo; the supply of land; alternative developments; environmental considerations; factors favouring urbanisation at Ravenswood; and the prospects for rezoning the Kelliher land for urban use.
58 The defendant contended that the hypothetical Spencer parties would be aware of the following:
59 The defendant contended that the hypothetical Spencer parties would be aware of the following:
60 The defendant contended that the hypothetical Spencer parties would be aware of the following:
61 The defendant contended that the hypothetical Spencer parties would be aware of the following:
62 The defendant contended that the hypothetical Spencer parties would be aware of the following:
63 The defendant contended that the hypothetical Spencer parties would be aware of the following:
64 The defendant contended that the hypothetical Spencer parties would be aware of the following:
65 The defendant contended that the hypothetical Spencer parties would be aware of the following:
66 The defendant contended that the hypothetical Spencer parties would be aware of the following:
67 The defendant contended that the hypothetical Spencer parties would be aware of the following:
(b) The defendant's pleadings as to the knowledge of the hypothetical Spencer parties in the real world, as at the Date of Taking, with the Highway
68 The defendant's pleaded case in relation to the knowledge of the hypothetical Spencer parties - in the real world, as at the Date of Taking, with the Highway - was that the facts known or knowable to the properly informed hypothetical Spencer parties as at the Date of Taking were those that existed in fact,[95] and included the same facts that would have been known to the hypothetical parties in the scenario without the Highway, but with the some modifications,[96] which are set out below:
(a) the Land was further than 800 m away from an activity corridor;
(b) the Land was not designated 'future communities'; and
(c) Ravenswood was the location for urban consolidation;[98]
and in those premises, the following lands would have been available for urban rezoning and development in the locality in preference to the Land (other than Lot 190):
(i) Lots 300, 301, 185, 123 and 205 in North Yunderup;
(iii) Lots 190, 10, 11, 12 and 6 Old Mandurah Road.
4. The relevance of the McKay decision in these proceedings
69 The McKay decision was frequently mentioned during the trial. It involved a claim for compensation under the LA Act in respect of the McKay land (Lots 191 - 192) which is adjacent to the Kelliher Land on the northern side of Pinjarra Road and Old Mandurah Road, Ravenswood.
70 The counsel and solicitors, and many of the witnesses, in this trial were involved in the McKay proceedings. And there are references in the witness statements, in the submissions filed by the parties, and throughout these reasons, to the McKay decision.
71 Neither party suggested that the result, or the individual findings made by Justice Beech, in the McKay decision were binding on this Court. Clearly that is correct. Quite apart from the fact that the McKay decision pertained to different land, the issues raised by the pleadings in that case, and the evidence led at the trial, were not identical to the issues and evidence in this case. But even in respect of those issues which were similar, for the purposes of determination of the issues raised in this trial the findings made by Beech J in McKay effectively constitute no more than statements of opinion which are irrelevant.[103] And in any event, an appeal against the McKay decision succeeded in part, and some of the issues raised in those proceedings are to be the subject of a retrial.[104]
72 Nevertheless, counsel for the defendant submitted that 'it would be at least cautionary in this trial if tentative factual findings differed from findings in McKay'.[105] One of the difficulties with that submission is that, despite the fact that many of the factual issues in McKay were apparently also in issue in this trial, it was far from apparent that the evidence advanced in each trial was the same (and indeed, in some cases, the contrary was quite clear). The extent to which the evidence was different is not a matter which could be ascertained by this Court, even if it were relevant to do so. Some of the submissions made by counsel assumed that the Court would have a complete appreciation of the evidence which was adduced in the McKay trial. That was not the case.
73 Similarly, counsel for the defendant submitted that many questions of opinion in McKay were also reagitated in this trial in identical or similar terms. They also submitted that the documentary basis for those opinions in both trials was substantial and 'nearly identical'. With all due respect to counsel, it is not possible for the Court to ascertain the extent, if any, of relevant differences between the evidence in both trials and, in any event, it is apparent that the expert evidence was not the same, not least because the expert witnesses were not the same.
74 Consequently, other than to gratefully adopt Beech J's summary of the relevant legal principles (which were not challenged on the appeal against his decision), I have not relied upon the McKay decision for the purposes of reaching any finding or conclusion in the course of these reasons.
5. The principles governing the assessment of compensation pursuant to s 241 of the LA Act (a) General principles
75 The plaintiffs' claim for compensation in this case relied upon the provisions of the LA Act. Section 202(1) provides that every person who has an interest in land which is taken under pt 9 (as was the case here) is entitled, subject to pt 10, to compensation for that interest from the acquiring authority. The compensation which is payable to that person may be determined in a number of ways, including by an action for compensation brought against the acquiring authority in accordance with pt 10 of the LA Act.[106]
76 The means by which compensation is to be awarded for an interest in land taken under pt 9 is to be determined solely by reference to the matters referred to in s 241.[107] The provisions of s 241 which are of particular relevance in the present case are s 241(2), s 241(6), s 241(7), s 241(8), s 241(9), s 241(11) and s 241(12). It is convenient to set out the terms of those subsections in full.
(2) Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on
...
(c) in the case of an interest to which paragraphs (a) and (b) do not apply the date of the taking,
and discounting any increase or decrease in value attributable to the proposed public work.
...
(6) Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of
(a) removal expenses; or
(b) disruption and reinstatement of a business; or
(c) the halting of building works in progress at the date when the interest is taken and the consequential termination of building contracts; or
(d) architect's fees or quantity surveyor's fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest; or
(e) any other facts which the acquiring authority, the court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.
(7) If the fee simple in land is taken from a person who is also the holder in fee simple of adjoining land, regard is to be had to the amount of any damage suffered by the claimant
(a) due to the severing of the land taken from that adjoining land; or
(b) due to a reduction of the value of that adjoining land,
however, if the value of any land held in fee simple by the person is increased by the carrying out of, or the proposal to carry out, the public work for which the land was taken, the increase is to be set off against the amount of compensation that would otherwise be payable under paragraph (b).
(8) If the interest in land is taken without agreement, an amount considered by the court or the State Administrative Tribunal or, for the purposes of making an offer, by the acquiring authority, appropriate to compensate for the taking without agreement may be added to the award or offer.
(9) The additional amount under subsection (8) must not be more than 10% of the amount otherwise awarded or offered, unless the court or the State Administrative Tribunal, or, for the purposes of making an offer, the acquiring authority, is satisfied that exceptional circumstances justify a higher amount.
...
(11) If the interest in land taken does not produce any rents or profits, interest is to be paid at the rate prescribed under section 8(1)(a) of the Civil Judgments Enforcement Act 2004 as at the date of entry for construction or carrying out of the work or the date of registration of the taking order, whichever is earlier, and the interest is payable from
(a) the date of the service of the claim on the acquiring authority; or
(b) the date of entry for construction or carrying out of the work,
(c) when the offer was served on the claimant, if the compensation awarded by the State Administrative Tribunal or the court of competent jurisdiction is not more than the amount offered by the acquiring authority; or
(d) of settlement of the claim, in any other case.
(a) when any amount representing an advance payment of compensation is paid to a claimant, interest on the total amount of compensation is payable only to the date of the first payment, and interest is payable thereafter only on the balance outstanding from time to time; and
(b) when any amount is offered by the acquiring authority as an advance payment of compensation under section 248 and the offer is not accepted by the claimant within 30 days of the day on which it was made, no interest is payable thereafter in respect of the amount so offered.
77 The principles in relation to the application of most of these provisions are well established. To the extent that relevant subsections in s 241 were applied by Beech J in the McKay decision, the parties accepted that the principles were fully, and correctly, set out by his Honour. I am indebted to his Honour for his careful exposition of those principles. For the sake of convenient reference, those principles are summarised below.
78 One issue which did not arise in the McKay decision concerned the operation of s 241(7) of the Act. The parties each made detailed submissions in relation to the operation of that subsection. I have addressed that issue separately below.
79 The effect of s 241(2) is that compensation is to be awarded for the value of the Taken Land, assessed on the Date of Taking. Compensation for the 'value' of the land taken involves determining a money equivalent of the asset.[108] 'Value' means exchange value. In other words, the 'value' of something is determined by presupposing a person who is willing to give the thing that is being valued in exchange for money and another willing to give money in exchange for what is being valued.[109]
80 The classic statement for the test of value was set out by the High Court in Spencer v Commonwealth of Australia.[110] In that case, Griffith CJ stated the test in the following terms:
[T]he test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, ie, whether there was in fact on that day a willing buyer, but by inquiring What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?' It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.[111]
To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration.[112]
82 In summary, therefore, the 'value' of the Taken Land in this case falls to be determined by identifying the price of a notional bargain between a hypothetical vendor and purchaser, each of whom are prudent, well informed and willing, but not anxious, to complete the exchange (the hypothetical Spencer parties).[113]
83 The Spencer test has been consistently applied in subsequent cases. The test was re-stated and elaborated upon by McHugh J in Kenny & Good Pty Ltd v MGICA (1992) Ltd[114] where his Honour said:
Value is determined by forming an opinion as to what a willing purchaser will pay and a not unwilling vendor will receive for the property. In determining that value, there must be attributed to the parties a knowledge of all matters that affect its value. Those matters will include the predicted impact of future events as well as the experience of the past and the rates of return on other investments. As Isaacs J pointed out in Spencer v The Commonwealth:
We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property. (emphasis added by McHugh J)
The market for the property is, therefore, assumed to be an efficient market in which buyers and sellers have access to all currently available information that affects the property. (footnotes omitted)
84 That statement was approved by the High Court in Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority.[115]
85 The hypothetical purchaser should be regarded as prudent.[116] Consistently with that, the hypothetical purchaser is to be taken to act rationally.[117] In that sense, the exercise of identifying the price of the notional bargain is an artificial exercise when compared with the real world, in which sentiment and emotion may significantly influence decision-making.[118]
86 'Value' determined in accordance with the principles set out above reflects market value.[119] In some cases, land may have a 'special value' reflecting a value to the owner over and above the price which a hypothetical purchaser may pay,[120] but in this case, the plaintiffs made no claim of special value.
87 There are a number of methods of assessing value. The value of land may be assessed by an analysis of comparable sales. Sometimes a Hypothetical Subdivision Analysis (HSA) will be used. On other occasions, the discounted cash flow method may be appropriate. Which valuation method is appropriate will depend on the available evidence.[121] But whatever method is used, it is only a means to an end, namely to identify the price at which the hypothetical Spencer parties would reach a bargain.[122] If there are comparable sales, the comparable sales method is generally preferable to the HSA method.[123]
88 All of the valuers in the present case relied primarily on the comparable sales method, although one of them made reference to the HSA method as a means of checking the value she had reached by reference to the comparable sales method. It is therefore appropriate to say a little more about each of these methods of valuation.
89 The comparable sales method involves seeking out relatively contemporaneous sales of comparable properties between parties at arm's length, unaffected by special circumstances, and using those sales as a yard stick for the valuation of the land in question.[124] However, as no two parcels of land are identical in all respects, the valuer must consider whether, having regard to the circumstances pertaining to the parcel of land in question, and to the sale transaction, there are sufficient similarities to the circumstances pertaining to the subject land and to the notional sale presupposed by the Spencer test to warrant the court to reason to a value for the subject land, using the sale price paid under the allegedly comparable sale.[125]
90 Every time reasoning of that kind is undertaken, adjustments must be made to take account of differences between the comparable sale and the subject land: its topography, location, size, shape, land use (actual and potential), and the scope for, and difficulties of, development.[126]
91 In addition, adjustments may be required for the sale transaction itself. The valuer must weigh such things as the character, business and relationships of the parties, their motives, the terms and conditions in their contract of sale, and any other special considerations that induced, or may have induced, them to conclude the contract at the selling price agreed, as well as the dates when the contract of sale and the transfer were concluded or effected.[127]
92 As Beech J observed in the McKay decision, there is no hard and fast rule distinguishing sales that are comparable from sales that are not. It is a matter requiring the exercise of judgment by the valuer. Given that it is rare to find the sale, at the date of taking, of another piece of land which is identical in all respects to the subject land, some adjustment will always be necessary in respect of a comparable sale. At some point, too much adjustment will render it inappropriate to use in the comparable sales method, but that sale may nevertheless remain relevant to the overall analysis of the value of the subject land.[128]
93 A core requirement of the comparable sales method is that the comparable sales be sufficient in volume to justify a deduction or inferences to value. What is sufficient in volume 'will vary from case to case', but generally will require multiple (more than two) sales.[129] However, that does not mean that there must be at least two comparable sales before the comparable sales method has any application,[130] and the search for comparable sales should not be distorted by a perceived need for a minimum number of comparable sales.[131] Accordingly, even if there is only one comparable sale, it is not necessarily the case that the comparable sales method of valuation should be rejected.[132]
94 It is not appropriate to analyse each comparable sale in isolation. Instead, all the potentially relevant sales must be analysed individually and collectively to determine which, if any, of them are of assistance in deriving a value for the subject land, and what weight is to be given to each relevant sale.[133]
95 The question of the weight to be given to particular sales will vary with the circumstances. For example, the conclusion may be that several sales are relevant and of equal weight, or that one is by far the most important, or that only one sale is of any real assistance. Consequently, there is no requirement that a valuer identify a single most important comparable sale.[134] As Beech J observed in the McKay decision, 'there are no hard and fast rules; it all depends on the circumstances'.[135]
96 The HSA method involves notionally subdividing an en globo parcel of land to derive an expected profit from it.
97 In Closer Settlement Ltd v The Minister[136] Roper J described the methodology involved in the HSA method of valuation in the following way:
In arriving at the value of land which is suitable for subdivision a familiar and appropriate method ... is to estimate from whatever comparable sales of land in subdivision are available the price which would be realized by the land when sold; then to estimate the costs involved in the subdivision and the length of time that the realization would take, making provision for the payment of rates and taxes and for interest on money outstanding; and an estimated net return on the subdivision is obtained. It is of course clear that a person purchasing land en globo for the purpose of subdividing it would not pay the sum of money which is the present equivalent of the estimated return. Many factors in the calculation are speculative: the land in subdivision may not realize the prices which are at present expected, and the subdivision may take longer to realize than is at present anticipated. To compensate for the risk involved in the venture the purchaser would certainly discount the estimated returns.
98 The HSA method has its limitations. Three warrant particular mention in this case. First, although the HSA method has the appearance of a 'scientific' formula, it in fact involves numerous variables dependent on the exercise of a subjective judgment by the valuer, and small differences in those variables can have a significant impact on the result.[137]
99 A second, and related, problem is that one of the key inputs in the HSA method the 'profit and risk factor' is dependent upon the other factors applied in relation to the land. The range of matters to be taken into account in fixing a profit and risk factor will depend upon all the circumstances, including the demand for lots such as those from the land in question at the relevant time, the likely delay which would elapse in completing the subdivision, the dependence of successful subdivision for access on the subdivision of neighbouring lands, the prospect that neighbouring lands may come on the market at the same time or earlier, the availability of other subdivision land in the area, and the number of lots placed on the market at the one time in the course of subdivisions in the same area.[138] Sometimes valuers import a profit and loss figure from other developments. In Minister for the Environment v Florence,[139] Wells J set out the reasons why that approach was inappropriate:
The profit and risk factor is related to the other items in a calculation much as a key is related to the mechanism of a high security vault; all parts of the relevant mechanism must be completely co-ordinated. Judging as best I may from the evidence in this case, and from the authorities to which I have been referred, it seems to me that it is entirely contrary to principle to marshal your figures without the profit and risk factor, and then, drawing on materials whose origins place them beyond the reach and influence of the subject land and the hypothetical subdivision, to introduce a figure to make good the missing item. True it is that the factor may be affected by actual profits made in similar developments, that regard may be had, in a general way, to the percentage given to this factor by other developers when assessing other prospective developments. Such influences can only, however, be comparatively remote. What is far more important is the valuer's appraisal, as a whole, of the hypothetical subdivision under consideration, one of whose principal characteristics is the interdependence of its several parts. There seems to be a suggestion in some writings that a valuer is at liberty to take from valuations based on the hypothetical subdivision that have been examined or approved in decided cases the figure there stated, and use it in the valuation then being prepared. With all respect to those holding or advancing that view, that cannot be right. The actual obstacles to subdivision at the relevant time; the actual price set upon the lots; the actual period decided upon for selling the subject land in its hypothetical forum; and the type of land and the state of the market with respect to it, must all be looked at as a united whole in the particular circumstances of the case, and a percentage fixed accordingly.
100 Thirdly, the HSA method is what is described as a 'static' method of valuation because it involves estimating or assessing all revenue and expenditure in then current prices, notwithstanding that expenses will not be incurred, and revenue will not be received, until some later date. The problem which results is that by the time the expenditure is incurred, or revenue is received, prices are likely to have changed.
101 Consequently, the HSA method becomes less reliable the longer the period of time before the hypothetical subdivision is to be carried out and completed.[140] And at some point, the uncertainties involved in the application of current estimates in respect of anticipated future conditions will become so great as to render the HSA method of no utility.[141] For this reason, the HSA method is considered inappropriate when the land in question is not 'ripe' for subdivision or development, and that in itself may be a matter of dispute.
102 The notional sale postulated by the Spencer test involves the hypothetical purchaser purchasing the land 'for the most advantageous purpose for which it was adapted'.[142] This is often referred to as the land's highest and best use.[143] The highest and best use of land may be a single use or a package of alternative uses, depending on the evidence.[144]
103 The concept of highest and best use was explained by Biscoe J in Commonwealth Custodial Services Ltd v Valuer-General (NSW)[145] in the following passage:
There is no statutory definition of 'highest and best use'. It has been described in the High Court as 'the most advantageous purpose for which [the land] was adapted': Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418 at 441 per Isaacs J. It 'is the present value alone of such advantages that falls to be determined': Cedar Rapids Manufacturing and Power Co v Lacoste [1914] AC 569 at 576 per Lord Dunedin. In Park v Allied Mortgage Corporation Ltd (FCA, 5 July 1995, unreported) Hill J said at [70]: 'As Spencer's case itself makes clear the valuation must proceed by reference to the best use of the property. For this purpose the valuer will take into account not only the present use to which the land is applied, but any more beneficial use to which it may reasonably be applied. This is the process which a purchaser negotiating to purchase the property would undertake. Thus, it is not inappropriate in valuing property to take into account a potential development of the property, for among the range of hypothetical purchasers can be assumed to be a person who would undertake such a development as would maximise the usage of the land'. In Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415 (SC/SA) Jacobs J said:
Common experience shows that land ideally suited for commercial development will fetch a higher price per unit of area than residential land, but it does not follow that the highest and best use of all land is a commercial use, for the highest and best use means exactly what it says - the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential. The first task of the valuer is to determine what that use is and then to value the land on that basis. It is not appropriate to determine the highest and best use by reference only to value.
104 The same approach was taken by the Western Australian Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission[146] when it said:
The skill of the valuer lies in assessing (in this case) the market value of the ... land, had it been offered for sale on [the relevant date]. That value would reflect the highest and best use to which the land could be put, consistent with its zoning: Boland v Yates at [271].
As we have noted, in carrying out the valuation the valuer will take into account any potential the land may have for a higher and better use than permitted by the current zoning. In so doing the valuer should exercise an independent judgment about the likely perception of such matters in the relevant market.
105 Accordingly, if the most profitable use of the land is one not permitted by its current zoning, the concept of 'highest and best use' requires that the valuation take into account the potential of the land to be used for that more profitable use (after necessary planning approval). It does not require or permit an assumption that the necessary planning approval will be given. Instead, the prospects of such approval as determined on the evidence, viewed from the perspective of the hypothetical parties, will bear on the assessment of the value of that potential use.[147]
106 In the context of a question about the prospects, at the date of valuation, of future planning permission being given for a particular (more profitable) use, it is well established that the question is to be approached objectively, by reference to orderly and proper planning, not subjectively by reference to the likelihood of particular decision-makers approving the contemplated future use.[148]
107 The hypothetical Spencer parties are taken to have access to all currently available information that affects the property. The hypothetical parties are taken to be aware of all information relevant to the market price about which a prudent purchaser would inquire.[149]
108 The hypothetical purchaser would have such expert advice as a prudent purchaser would, in the circumstances of the case, have obtained.[150]
109 The court's role when there is conflicting expert evidence is to view the conflicting opinions through the eyes of the hypothetical purchaser. That may or may not involve the court resolving the conflicting opinion and determining the preferable opinion on a particular point. In some circumstances, the court may conclude that the hypothetical purchaser would instead take into account the existence of conflicting opinions.[151]
110 As many cases have made clear, valuation is an art not a science. It involves the exercise of many subjective judgments and the steps in reasoning are not always able to be articulated fully.[152] By its nature, valuation involves an inquiry about which reasonable minds may well differ widely.[153]
111 In assessing the value of land by reference to an analysis of comparable sales, adjustments may be required to take into account the differences between land the sale of which is thought to be comparable, and the land in question. Some of the adjustments to values deduced from comparable sales in order to arrive at a valuation may be 'nothing more than the best guess that can be made'.[154]
112 In determining the value of the land taken, the court relies on the evidence of professionally qualified valuers.[155] The court must act only on the basis of the evidence before it.[156] The court is not itself a valuation agency, and it has often been said that the court must not allow itself to be cast in the role of the 'third valuer'.[157] Valuers have their own experience, training and skill and that role must not be usurped by the court.[158]
113 However, it is clear that the court is not obliged simply to adopt one of the valuers' opinions, or rely on any evidence of any valuer whose evidence the court does not accept.[159] In a case in which competing expert opinion is proffered, the court's role is to determine what expert evidence is to be accepted, rejected and preferred. The court is not obliged to accept all or any of either of two competing expert opinions.[160] If the court rejects both experts' opinions on a particular question, then in an ordinary civil case the burden of proof may resolve the gap left by the rejection of that expert evidence. However, in a valuation case, the court cannot simply say that the value was not proven. The court is required to reach a conclusion on the question of value.[161]
114 The court can make such adjustments to value as are required by the evidence.[162] However, the court cannot adopt a valuation methodology that was not supported in any of the valuers' evidence, nor can it simply take an average of competing valuations in order to resolve their differences.[163] If the court finds any valuation evidence to be defective, incomplete or irreconcilable in some respect then it should use other evidentiary material to correct, complete or reconcile that evidence,[164] provided that in doing so it does not act as a third valuer, or fail to comply with the requirements of procedural fairness.[165]
115 It is also well established that in determining value for compensation purposes, doubts regarding the compensation payable to a dispossessed owner should be resolved in favour of a liberal estimate.[166] This does not mean that the court can ignore its obligation to adjudicate upon disputed issues of fact, including conflicting expert opinion.[167] In Sydney Water Corp v Caruso,[168] Allsop P elaborated upon this principle in the following way:
The general principle that in determining compensation to a dispossessed owner doubts should be resolved in favour of a more liberal estimate is well-known: see generally A Hyam The Law Affecting Valuation of Land in Australia (4th Ed 2009 Federation Press) at 316-318. That does not, however, detract from the need to engage with and evaluate evidence and competing witnesses. If, however, upon engagement and assessment, the judicial valuer finds, for example, as Anderson J did in Cook and Edwards v City of Stirling (1991) 4 WAR 469, that the reasoning of both valuers was not fallacious, that their respective capitalisation rates were open, that none took into account irrelevant considerations and no errors otherwise appeared, the proper conclusion might be that there are simply two open views on the relevant issue - as there can be in ascribing a value: cf Fenton Nominees Pty Ltd v Valuer-General (1981) 27 SASR 258 at 264; 47 LGRA 71 at 76-77. In such circumstances, applying the general principle would be uncontentious.
It is not helpful to examine the scope of the general principle in the abstract beyond saying that it is not a licence to accept one expert over another without undertaking the task of assessing the evidence in the usual way. If a judge properly undertakes that task, the evaluation of the evidence may well persuade the judge to accept the evidence favouring the resuming authority. That would be a product of assessing the evidence. That process is not to be abandoned ...
116 Outside of the sphere of valuation, there is no general limit on the use of later events as evidence relevant to and assisting in determining a situation at an earlier point in time.[169] However, in valuation cases, different considerations apply, depending on whether the subsequent event is said to bear upon market value, real value, special value, injurious affection, severance or other notions of value.
117 Special considerations apply when the question is one of market value. That is because in ascertaining market value, the knowledge imputed to the hypothetical purchaser and vendor is knowledge of facts and information available at the date of valuation.[170]
118 Accordingly, in assessing market value in cases (such as this) where what is in issue is the urban potential of the land, the court must ascertain what facts affecting values would have been in the contemplation of the notional buyer and seller at the relevant date, and what, if any, effect on values the existence of those facts would have had on the sum which the buyer was prepared to give, and the seller to receive. One relevant fact may be the probability or possibility that an event will later occur, and the existence or nonexistence of that contingency may have its effect on values, in which case it will be relevant. But the value must be ascertained in the light of the facts, including the probabilities then existing, and without taking notice of subsequent happenings.[171]
119 However, there are some limited exceptions to this general principle. By way of example, comparable sales after the date of taking can be taken into account in determining the value of the land.[172] Evidence of such sales is not admissible on the basis that the hypothetical parties would have known or could have foreseen them, but because it assists the court in identifying what price the hypothetical parties would have found acceptable for the land at the relevant time.[173]
120 In addition, evidence of advice given after the taking date may, in some cases, be admissible on the basis that the inference is open that the same or similar advice would have been given at the taking date.[174] However, evidence of matters which occurred after the land was taken is not admissible to 'confirm a foresight'.[175] Further, evidence of events or policy development which occurred after the taking, but which commenced prior to the taking, are not admissible.[176]
(b) The operation of s 241(2) the proposed public work
121 Section 241(2) requires the value of the Taken Land to be assessed as at the date of taking, but discounting any increase or decrease in value attributable to the 'proposed public work'.
122 The notice of intention which is required to be given when land is taken under the LA Act[177] is required to include particulars of the purpose of the public work for which the land is proposed to be taken.[178] That will often provide a clear indication of the proposed public work. In cases of dispute about the precise identity of the proposed public work, the court may need to make a finding about that issue, having regard to such evidence as is adduced on the question. It is unnecessary to say more about the identification of the proposed public work in the present case. There was no dispute between the parties about that matter, and the parties' agreement was clearly consistent with the terms of the notice of intention.[179] The proposed public work for the purpose of which the Taken Land was taken was the Highway.[180]
(c) The operation of s 241(2) valuation to discount any increase or decrease in value attributable to the proposed public work
123 The next question in determining the value of the Taken Land under s 241(2) requires consideration of the meaning of the word 'attributable'.
124 The requirement to discount any increase or decrease in the value of the land which is attributable to the proposed public work has its origins in what is known at common law as the Point Gourde principle. That is a reference to the observation made in Point Gourde Quarrying and Transport Co Ltd v SubIntendent of Crown Lands[181] that:
It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition.
125 However, while the common law Point Gourde principle may represent the history of s 241(2) of the LA Act, and provisions like it, it is the statutory embodiment of the Point Gourde principle, to which effect must be given in determining compensation under s 241(2).[182]
126 The word 'attributable' in s 241(2) of the LA Act has the same meaning as that word has been given in the context of claims for compensation under s 36(2b) of the Metropolitan Region Town Planning Scheme Act 1959 (WA).[183] Section 36(2b) required the price to be paid for land acquired following an amendment of the Metropolitan Region Scheme to be determined by the Court 'without regard to any increase or decrease, if any, in value attributable wholly or in part to the Scheme'.
127 When an increase or decrease in value can be said to be 'attributable' to something else whether a 'Scheme' or a 'public work' can be a difficult question to answer, especially in cases where the relationship between the step, or event, which immediately produced the increase or decrease in value on the one hand, and the public work itself on the other hand, is not clear cut.[184] In Housing Commission (NSW) v San Sebastian Pty Ltd,[185] Jacobs J (with whom the other members of the Court agreed) sought to explain the concept by considering whether the event or thing which caused the increase or decrease in value could be characterised as a 'step in the process' of the resumption for the public work.
128 The Court of Appeal in Mount Lawley adopted a similar approach, and reached the conclusions set out below about the meaning of the word 'attributable' in s 36(2b).[186] If the words 'attributable to the proposed public work' (in s 241(2) of the LA Act) are substituted for the words 'attributable to the Scheme' (in s 36(2b)) the conclusions reached by the Court of Appeal are as follows:
(a) It is not sufficient, in order that an increase or decrease in value be attributable to [the proposed public work], that something is a precursor to, leads up to or has some relation to [the proposed public work];
(b) The step or occurrence affecting value must be attributable to [the proposed public work] itself and not to some different notion that ultimately led to the creation of [the proposed public work];
(c) The step must be attributable to [the proposed public work], not vice versa. That requires that the step must have been taken in order to bring about the [proposed public work] itself or a variant of it that is not materially different;
(d) If it is to be attributable to [the proposed public work], the step must have been taken with the intention of facilitating or for the purpose of creating [the proposed public work];
(e) The effect on value of the characteristics or location of the land, or other factors affecting the land (such as population pressures), which always had 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 proposed public work].[187]
(d) The operation of s 241(7) Severance damage and injurious affection to the adjoining land; betterment
129 Subsection 241(7)(a) and (b) directs attention to the damage suffered by the owner of the taken land in respect of adjoining land also owned by that party. It is not in dispute that the lots which comprise the Remaining Land are all adjoining lots for the purposes of s 241(7) of the LA Act.
130 The subsection permits compensation for damage suffered in two ways. The first which is addressed in s 241(7)(a) is for damage suffered due to the severing of the taken land from the adjoining land (known as severance damage).
131 Secondly, compensation will be awarded for damage which arises by way of the reduction in value of the adjoining land pursuant to s 241(7)(b). Damage under s 241(7)(b) is commonly referred to in shorthand form as damage for 'injurious affection'. That label reflects the terminology employed in the provision's statutory predecessor. However, while that may be a convenient shorthand label (and one which I have on occasion employed in this judgment) it must be borne in mind that the governing principle is always the words used in the statute itself.[188]
132 However, the LA Act acknowledges the possibility that the public work, or the proposal to carry it out, may actually result in an increase in the value of some of the land owned by the claimant. This is known as 'betterment'. The final words of s 241(7) require that any betterment be set off against any compensation for injurious affection under s 241(7)(b).
133 While the parties were in agreement about the meaning and operation of s 241(2) of the LA Act, and s 241(7)(a), they disagreed about the meaning and operation of s 241(7)(b).
134 The question of the proper construction of s 241(7) emerged as an issue in the context of the plaintiffs' case that the Highway made possible the development of Amarillo, that as a result the WAPC concluded that planning issues in relation to the development of Amarillo should be encompassed within the Southern Sectors Review, and that that resulted in a delay in the urban development of the Remaining Land, when otherwise the plaintiffs claimed that they would have achieved urbanisation and proceeded with the development of that land. The plaintiffs' case was that that delayed potential for urban development would sound in a reduction in the value of the Remaining Land, which should be taken into account as damage they suffered for the purpose of s 241(7)(b).[189]
135 Counsel for the defendant submitted that Amarillo should not be taken into account for the purposes of determining whether there was a decrease in the value of the adjoining land, just as (on their submission) it should not be disregarded for the purpose of determining the value of the taken land under s 241(2).[190] The basis for that submission was that Amarillo was not the Highway, nor was it 'attributable to' the Highway (adopting the meaning given to that term in s 241(2)) because it was not a step leading to the Highway. (Counsel for the defendant adopted a similar view in respect of the defendant's case concerning betterment.[191])
136 There did not appear to be any dispute between the parties that compensation is payable for damage due to a reduction in the value of the claimant's adjoining land which was caused by the public work. The plaintiffs' submission was that 'put simply, the Act requires the plaintiffs to prove that the taking of their land has resulted in a reduction of value of the plaintiffs' adjoining land'.[192] In their opening submissions, the plaintiffs also submitted that 'the loss compensable under section 241(7)(b) is the reduction in value of the adjoining land attributable to the use of the land taken for the purpose for which it was resumed'.[193] The dispute between the parties thus concerned whether the damage compensated under s 241(7)(b) encompassed not only a reduction in value caused by the Highway itself, but any reduction in value caused by other factors (in this case, Amarillo) which were themselves said to be caused by the Highway. The dispute thus concerned the remoteness of the damage which may be compensated under s 241(7)(b).
137 The plaintiffs' case was that s 241(7)(b) simply required the plaintiffs to prove that the taking of their land resulted in a reduction of value in their adjoining land, and that s 241(7) should not be given a narrow construction by the implication of words which do not appear in that subsection, or by implication from the operation of other discrete subsections within s 241.
138 For the reasons outlined below, it is strictly unnecessary for me to resolve this question. That is because even if the plaintiffs' contentions about the construction of s 241(7)(b) are correct, I am not persuaded that the plaintiffs have established the factual premise on which their case depended, namely that the Highway enabled the urban development of Amarillo, which gave rise to a need to determine a planning structure which would accommodate Amarillo, which in turn gave rise to the Southern Sectors Review, and which in turn resulted in a deferral of the urbanisation of the Kelliher land, as compared with the timeframe for urbanisation in the absence of the Highway.
139 However, as the question of the construction of s 241(7)(b) was specifically raised and explored in submissions, it is appropriate that I express my view as to why the plaintiffs' construction of s 241(7)(b) should not be accepted.
140 Discerning the meaning of a statutory provision starts with a consideration of the ordinary meaning of the words used, considered in their context. That context includes matters such as the provisions of the Act as a whole and how they work together, and the purpose to which the Act was directed.[194]
141 The parties' submissions on s 241(7)(b) employed orthodox principles of statutory construction. However, the parties had different views about the purpose of s 241(7)(b), the use which could be made of the history of that provision, and the relationship (if any) between s 241(7)(b) and s 241(2).
142 Subsection 241(7)(b) does not contain any express reference to the cause of the reduction of value of adjoining land which constitutes damage for which compensation will be payable. But in view of the purpose of s 241 (which I outline below) it would be absurd to suggest that the Parliament intended that compensation would be payable for any reduction in the value of the adjoining land, whatever the cause of that reduction in value. Some limitation must necessarily be implied. The nature of that limitation in my view can be discerned having regard to the statutory context for s 241(7)(b), including the purpose of s 241, to the consequences of the construction for which the plaintiffs' contend, and to authority (to the extent that it is relevant).
143 In my view s 241(7)(b) should be understood as directing attention only to damage suffered as a result of a reduction in the value of a claimant's adjoining land which is caused by the carrying out of (that is, by the conduct or completion of) the public work, or the proposal to do so.
144 I start by considering the meaning of the express terms of s 241(7)(b).
145 The word 'damage', when used as a noun, includes 'injury or harm that impairs value or usefulness'[195] and 'loss or detriment caused by hurt or injury affecting estate, condition or circumstances'.[196] I note that the subsection uses the word 'damage' as opposed to the word 'damages', which has a particular meaning in legal contexts (such as in an action for negligence[197]). That is not surprising given that s 241 uses the language of 'compensation' rather than of 'damages'. The compensation which is awarded under s 241 takes into account each aspect of the 'damage' or loss suffered by a claimant under the various subsections in s 241.
146 The word 'due' means 'to be ascribed or attributed ... as an effect or result to its cause or origin; owing to'[198] and 'attributable, as to a cause'.[199] The words 'due to' in s 241(7)(b) thus import the need for a causal link between the damage suffered and the reduction of the value of the adjoining land.[200]
147 Accordingly, s 241(7)(b) requires that regard be had to the loss, detriment or injury suffered by the owner of the taken land which is attributable to, or which is caused by, a reduction of the value of that adjoining land.
148 It is not necessary to discuss the meaning of the words 'reduction of the value of that adjoining land' because they were not, of themselves, in dispute. It was not in dispute that the Remaining Land was adjoining land. Whether there has been a reduction of the value of the adjoining land will be a matter for expert evidence.
149 As I explain below, it is necessary to consider the words used in s 241(7)(b) within their context, which includes the closing words of s 241(7). In particular, those closing words refer to the value of land being increased 'by the carrying out of, or the proposal to carry out, the public work for which the land was taken'. It is convenient to note, at this point, that the meaning of the words 'carry out' is 'to conduct duly to completion or conclusion; to carry into practice'[201] and 'to accomplish or complete (a plan, scheme, etc.)'.[202]
150 The words in s 241(7)(b) must be construed within their context. Of particular significance are the concluding words in s 241(7) with which s 241(7)(b) must be read.
151 The first aspect of this context which is of significance is that the closing words of s 241(7)(b) refer to the increase in value caused by the carrying out of the public work (or the proposal to do so). Having regard to the meaning of the phrase 'carrying out', the 'carrying out of the public work' refers to the conduct or completion of the public work.
152 The concluding words of s 241(7) import the qualification that if the value of any land owned by the claimant is increased 'by the carrying out of, or the proposal to carry out, the public work for which the land was taken', that increase is to be set off against the amount of compensation that would otherwise be payable under s 241(7)(b). The fact that the only betterment which is to be accounted for is that which was caused by the carrying out of the public work (or the proposal to do so), supports the conclusion that the Parliament must have intended that any decrease in the value of adjoining land which is to be taken into account in assessing compensation should also be that which was caused by the carrying out of the public work (or the proposal to do so).
153 My view of the significance of the closing words of s 241(7)(b) differs from the opinion, expressed in obiter, by Parker J in Cerini v Minister for Transport. His Honour noted that the closing words of s 241(7)(b):
focuses on any increase in value of any land of the claimant, not just the retained land, 'by the carrying out of ... the public work for which the land was taken'. Any such increase in value is to be set off against any compensation under par (b). This provision appears distinct in object and subject from par (b), and it is not apparent that it can assist in the interpretation of s 241(7)(b).
154 While the closing words of s 241(7) do deal with a different subject from s 241(7)(b) (namely the increase in value of land owned by the claimant), I am respectfully unable to agree with his Honour's view of the object of those words. The object of those words in my view is the same object as underlies s 241 as a whole. That object is to compensate the claimant only for the damage which flows from the carrying out of the public work itself (whether by the taking of land for the public work, or by the reduction in value of adjoining land caused by the conduct or completion of the public work). The more precise object of the closing words of s 241(7) - which is to ensure that a claimant does not receive a windfall from any increase in value of any land which was caused by the carrying out of the public work - is entirely consistent with that broader object. The closing words ensure that the compensation awarded to a claimant having regard to s 241(7)(b) reflects only the net effect of the damage actually caused to that claimant.
155 The requisite causal link for betterment does not encompass all of the ramifications that the public work may have, but rather is limited to the carrying out (that is, the conduct or completion) of the public work or the proposal to do so. To my mind, that phrase militates against the conclusion that the Parliament intended that the causal link required under s 241(7)(b) would extend beyond the public work itself to all of the ramifications that that public work might have, or would encompass other factors which might operate in conjunction with the public work to result in a reduction in the value of land. Instead, the change in value which gives rise to damage under s 241(7)(b), or to betterment under s 241(7), is that which was caused by the conduct or completion of the public work. The necessary causal link is thus relatively confined in its ambit.
156 As s 241(1) makes clear, the purpose of s 241 as a whole is to identify those matters which are to be taken into account in determining the amount of compensation which is to be awarded for an interest[203] in land taken under pt 9 of the LA Act. What is immediately clear from the subsections which follow, however, is that s 241 does not attempt to provide for compensation for all persons affected by public works. On the contrary, it is only payable to a person who is the owner of the land, or the owner of an interest in the land[204] which is taken in accordance with the LA Act.
157 Furthermore, s 241 does not provide 'full compensation' or compensation for 'any damage' suffered by the owner of land which is taken for a public work.[205] On the contrary, the various subsections in s 241 provide specific 'heads' of damage for which compensation may be awarded.
158 Finally, the common theme running through s 241 is that the compensation which is payable is for damage which is caused to the owner of the land, by the public work itself, by its carrying out or by the proposal to carry it out. By way of example, the assessment of compensation is to take into account the value of the land taken for the public work,[206] damage incurred by reason of the fact that building works proposed for the taken land cannot be commenced or continued 'in consequence of the taking of the interest',[207] damage due to the severance of the taken land from adjoining land, and the amount of rent or profits produced from the taken land which the claimant will no longer receive after the land has been taken.[208]
159 For that reason, I am unable to accept the submission advanced by counsel for the plaintiffs that the purpose of the LA Act 'is to ensure that a dispossessed landowner is fully compensated'.[209] For the same reason, the plaintiffs' submission that 'nothing can be read into [s 241(7)] that limits the words 'any damage' must also be rejected.[210] The suggestion that s 241(7)(b) requires that an owner be compensated for the reduction of the value of the adjoining land, irrespective of the cause of that reduction in value or how tenuous the connection between that reduction and the public work, would be quite inconsistent with that legislative purpose.
160 Given the ambiguity in the meaning of s 241(7)(b), recourse to the legislative history of s 241(7)(b) is permissible as an aid to its construction. However, some caution is necessary as the wording of s 241(7)(b) differs from its legislative predecessor.
161 The predecessor to s 241(7) was s 63 of the Land Acquisition and Public Works Act 1902 (WA).[211] That section read:
In determining the amount of compensation (if any) to be offered, paid or awarded for land taken or resumed, regard shall be had solely to the following:
(a) ...
(b) The damage, if any, sustained by the claimant by reason of the severance of such land from the other adjoining land of such claimant or by reason of such other lands being injuriously affected by the taking, but where the value of other land of the claimant is enhanced by reason of the carrying out of the public work for which the land was taken or resumed, the enhancement shall be set off against the amount of compensation that would otherwise be payable by reason of such other land being injuriously affected by the taking.
162 Section 63 in turn appears to have been based on s 49 of the Lands Clauses Consolidation Act 1845 (UK) which relevantly provided:
... the Sum of Money to be paid by way of Compensation for the Damage, if any, to be sustained by the Owner of the Lands by reason of the severing of the Lands taken from the Lands of such Owner, or otherwise injuriously affecting such lands by the Exercise of the Powers of this or the special Act, or any Act incorporated therewith.
163 The second reading speeches given in respect of the Land Administration Bill (both on its first introduction in 1995, and upon its reintroduction in 1996/1997) recognised that the compensation provisions under the former legislation had been replicated in the Bill, with little, or minor, changes, but in plain English. For example, in his speech on the second reading of the Bill in the Legislative Council in 1995, the Hon George Cash (Minister for Lands) stated:[212]
Part 9 deals with compulsory acquisition of interests in land and part 10 deals with compensation for such acquisitions. The provisions of the Public Work Act 1902 dealing with the compulsory acquisition of land and compensation for this acquisition have been incorporated in parts 9 and 10 with very little change to the principles.
164 Similar observations were made in the second reading speech for the Bill in the Legislative Assembly in 1996 by the Hon Graham Kierath MLA (the Minister for Lands),[213] and by the Hon Max Evans MLC (Minister for Finance) in his speech on the second reading of the Bill in the Legislative Council in 1997.[214]
165 As was clear from the express provisions of the legislative predecessors to s 241(7)(b), the legislative purpose was to provide for compensation for injurious affection which was limited to the reduction in value of the adjoining land caused by the taking of land for the public work. In other words, a causal link was required between the taking of the land for the public work and the damage suffered by way of a reduction in the value of the adjoining land. The construction of s 241(7)(b) which I prefer is consistent with the limited ambit of compensation for injurious affection which was previously available.
166 In construing legislation, the courts will prefer a meaning that will avoid a consequence that appears irrational or unjust.[215]
167 If the compensation to be awarded having regard to s 241(7)(b) were not limited to a reduction in value of the adjoining land caused by the conduct, or completion of the public work itself, but instead extended to a reduction in value caused wholly, or in part, by other, unrelated factors or events, some unjust or irrational results would follow, in that the acquiring authority would be required to pay compensation for damage with no connection with or merely a tangential the public 'work'.
168 Similarly, if the increase in the value of land (betterment) which is to be set off against injurious affection under s 241(7) included an increase in value caused, in part, by the public work, and in part by some other factor, the claimant's overall compensation would be reduced. But to ignore the impact of the factor unrelated to the public work would produce a result which was unjust to the claimant.
169 The present issue in relation to the construction of s 241(7) has not been the subject of close analysis in any authority in this State. And little assistance can be drawn from authorities which have explored the meaning of legislative provisions concerning injurious affection in other jurisdictions, because those provisions are materially different from s 241(7).
170 The construction of s 241(7) was, however, discussed at some length by Parker J in Cerini v Minister for Transport[216] and subject to the qualification noted above at [153], the construction of s 241(7)(b) which I prefer is consistent with the tenor of his Honour's reasoning.
171 In Cerini, Parker J considered the meaning of s 241(7)(b), within its context and in light of its legislative history, and reached the conclusion that:
If compensation for a reduction of value by virtue of the compulsory taking only was intended by the legislature, it is difficult to see how that is to be distinguished from the alternative provided in par (a) of damage suffered due to the severing of the land taken from the adjoining land. The search for some wider meaning of part (b), intended by the legislature, encourages the view that it must be in some way a reduction in value for the adjoining land attributable to the use of the land taken for the purpose for which it was resumed. This was the general effect of reasoning which commended itself in a number of cases decided in this Court under the previous s 63(b) of the Land Acquisition and Public Works Act; see for example, Konowalow and Felber v Minister for Works ... . Nevertheless, the legislative history of s 241(7) and the reasoning in that line of authorities provides some indication that what was intended by the legislature in s 241(7)(b) was a reduction in value attributable to the use of the land taken for the purpose for which it was resumed.[217] (emphasis added)
172 His Honour then noted that in enacting s 241(7)(b) the Parliament chose to depart from the language used in s 63(b). His Honour went on:
It dispensed with the notion of damage due to injurious affection by taking and replaced it with the novel concept of damage suffered '(b) due to a reduction of value of that adjoining land'. In this form the words do not expressly relate the reduction in value to the public work for which the resumption was affected, let alone specifying whether the public work is relevantly limited to that carried out on the resumed land of the claimant (as in Edwards v Minister for Transport),or to the public work at large. Nor do they relate the reduction in value to the exercise of any statutory powers by the resuming authority as in Marshall v Director-General.
...
While s 241(7) is regrettably unclear, in particular because of the incompleteness of par (b), I am inclined to the view that par (b) is intended to allow compensation where retained adjoining land of a claimant is reduced in value by reason of the public work for which land of the claimant was resumed. ...[218]
Rather than attempting to any more exhaustive analysis of s 241(7) in this case, I will proceed on the basis that ... s 241(7)(b) would enable compensation for damage on land of the claimant directly caused by the carrying out of the public work for which adjoining land of the claimant was resumed.[219] (emphasis added)
174 Counsel for the plaintiffs submitted that that statement has to be seen in the context of that case which concerned a claim to physical damage done to the claimant's adjoining land. I do not read in his Honour's remarks any intention that his observations were to apply only to the particular factual circumstance governing the claim to injurious affection in that case. However, I do accept that his Honour was, in the end, dealing with a case where he was satisfied that the damage in question was directly caused by the carrying out of the public work, so it was unnecessary to consider the operation of s 241(7)(b) outside that factual context.
175 The defendant's case was that damage for injurious affection under s 241(7)(b) was confined to any reduction in value 'attributable to' the public work. There is no difference in meaning between a requirement that something be 'caused by' something else, and a requirement that something be 'attributable to' another thing.[220] For this reason, I did not understand the construction of s 241(7)(b) advanced by the defendant to be different from the construction of s 241(7)(b) which I have outlined above.
176 However, the significance of this submission by counsel for the defendant went further. The submission was ultimately directed to the way in which it would be established that a reduction in value of a claimant's adjoining land was caused by the carrying out of the public work (or the proposal to do so). The thrust of the submissions advanced on behalf of the defendant was that the Court should adopt the test for 'attributable to the proposed public work' under s 241(2) and apply that test to determine whether the reduction in value of adjoining land was caused by (or attributable to) the carrying out of the public work, for the purposes of s 241(7)(b):
The Defendant submitted that the San Sebastian and Mt Lawley 2007 cases applies to s 241(2) LAA, so that the only things to be disregarded were the public work and 'steps' in the processes of the public work. In effect, this means that 'attributable' (as it occurs in s 241(2)) takes the meaning explained in San Sebastian and Mt Lawley. The Defendant submitted that a similar approach should be taken to s 241(7)(b) - in determining the facts that give rise to injurious affection, one looks only to the fact of the Highway on the Taken Land and (if relevant) any steps in the processes toward construction of the Highway.[221]
177 Counsel for the defendant submitted that there was no reason in policy for a different approach as between s 241(2) and s 241(7):
a land owner is to be compensated for losses attributable to the Highway, whether by loss of land altogether or by influence on the retained land. What is and is not attributable to the Highway should not vary. This applies also to betterment it too should be assessed by comparison to the land's value assuming no effects attributable to the Highway.
178 I accept the logical force of that submission. Although the exercises engaged in for the purpose of s 241(2) and s 241(7) are different (in that s 241(2) looks to the value of the taken land, while s 241(7)(b) looks to the reduction in value of the adjoining land) nevertheless the exercise in each case is one involving a comparison. In each case, that comparison involves a common reference point, namely the landholding without the Highway. What is then compared is the land with the public work in contemplation or proposed and/or having been conducted or completed.
179 In addition, the loss or damage which is compensated under s 241(2) and s 241(7)(b) in each case reflects the underlying theme of s 241, namely that that loss or damage be caused by the public work, its conduct or completion, or the proposal to do so.
180 Consequently, much the same evidence will be relied upon in determining what is to be disregarded for the purposes of s 241(2) and what is taken into account for the purpose of s 241(7)(b).
181 In summary, the damage for which compensation will be payable under s 241(7)(b) is that which is due to a reduction in the value of the adjoining land which is caused by the conduct or completion of the public work or the proposal to do so. The facts encompassed by the carrying out (that is, the conduct or completion) of the public work, or the proposal to carry it out, will be the same facts relevant to determining what is 'attributable to' the public work under s 241(2), namely the public work itself and steps taken with the intention of facilitating, or for the purpose of creating, the public work.
182 The closing words of s 241(7) have a similar operation. Any increase in value to the claimant's land which is caused by (or attributable to) the conduct or completion of the public work, or the proposal to do so, must be set off against the damage under s 241(7)(b).
183 The plaintiffs seek an additional amount pursuant to s 241(8) of the LA Act to compensate for the taking of their land without agreement. The claim under s 241(8) is often referred to as 'solatium', even though that term is not used in s 241 of the LA Act.
184 Section 241(9) affects the fixing of the amount added under s 241(8). Section 241(9) does not create a distinct power to award compensation, or a new head of compensation.[222] It simply provides a limit of 10% of the amount otherwise awarded, unless the court is satisfied that exceptional circumstances justify a higher amount.
185 The plaintiffs seek interest on the award of compensation pursuant to s 241(11) and s 241(12) of the LA Act.
186 The entitlement to interest under s 241(11) applies if the interest in the land which is taken did not produce any rents or profits.
187 The interest rate which applies is that which was prescribed under s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA) on the earlier of two dates: the date on which the land taken was entered to carry out the work, or the date of registration of the taking order.
188 Interest is payable from the earlier of two dates: the date when the claimants served their claim for compensation on the acquiring authority, or the date of entry for the carrying out of the work for which the land was taken.
189 Interest is payable from that date until the date of settlement of the claimant's claim for compensation. However, in a case where the award of compensation by the court or the State Administrative Tribunal is less than an amount offered to the claimants, by way of settlement, by the acquiring authority, interest is payable only to the date on which that offer was served on the claimants.
190 In a case in which an advance payment of compensation has been made by the acquiring authority, s 241(12) takes that advance payment into account in the payment of interest. Interest is payable on the full amount of any award of compensation only for the period until the date of the advance payment (or the first of any advance payments) and thereafter interest is payable only on the balance outstanding. The limitation in s 241(12)(b) applies only in the event that a claimant does not accept an advance payment of compensation offered by an acquiring authority within 30 days of the date of that offer.
6. Overview of the evidence, other than the valuation evidence (a) The documentary evidence
191 The parties agreed to the tender, by consent, of a large number of documents, comprising documents containing evidence as to facts said to be relevant to the determination of the highest and best use of the Kelliher Land, as well as planning instruments and policy documents. The parties also agreed a chronology of events.[223]
192 At the outset of the trial, it appeared that the parties were at odds in relation to the information the hypothetical Spencer parties could have obtained, upon enquiry, about what became known as the Southern Sectors Review. The plaintiff's position changed somewhat during the course of the trial, bringing the parties closer together on this issue. Some disagreement persisted, however, and I deal with that later in these reasons.
193 It thus appeared that there was, in the end, little dispute about many aspects of the factual context for the questions requiring resolution. However, in the absence of any formal agreement between the parties as to the facts and the knowledge of the hypothetical Spencer parties, it remains necessary for me to make findings in relation to those matters.
195 Each of the planning experts clearly had extensive planning experience. Mr Allen and Mr Ferraro both worked for the DPI for many years, including at the Date of Taking. Mr Allen worked for the DPI (and its predecessor departments) for a total of 29 years. At the Date of Taking, he was the Executive Director of Statutory Planning in the DPI. He was appointed to that position in January 2006. In that position, Mr Allen had statewide responsibility for Statutory Planning matters. Prior to commencing in that position, he was the Director of Strategic Planning and Infrastructure. While in that position, on a number of occasions and lengthy periods, he acted as the Executive Director of the Strategic Planning Division.[229] Mr Ferraro was the Director, Metropolitan (South) and later for Peel, and reported to Mr Allen.[230]
196 Mr O'Neill worked in the DPI for many years, and for local government, and later had a number of years of experience as a planning consultant in the private sector. Mr Moran and Mr Kerr each had many years of experience in the private sector, including undertaking planning work in the Peel region. Mr Kerr's planning practice primarily involved work for private clients (including the Kellihers) but there was nothing to suggest that his expert evidence was other than impartial. On occasion, he very properly indicated that he could not give evidence on a particular question as he considered it outside his area of knowledge.[231]
197 In so far as the evidence of the planning experts encompassed their opinions on the practice, or what would have been the likely practice, of the DPI or the WAPC at the Date of Taking (or in the months prior to that time) I have taken the view that greater weight should be placed on the evidence given by Mr Allen, given his years of experience in working for the DPI.
199 All of the planning experts met to identify the issues in dispute between them, and provided a joint report of that conferral.[234]
200 All of the planning experts attended for cross examination in a concurrent session, and as a result of that cross examination, there proved to be far fewer differences of opinion between the planning experts than had initially appeared to be the case. Although the concurrent session proceeded in what counsel for the plaintiffs described as a 'fluid' process[235] (to which he made no objection[236]) the result was that the differences, and the significant measure of agreement, between the planning experts were exposed with far greater clarity than would have been possible in a more traditional forensic setting. This trial demonstrated very clearly the utility of receiving expert evidence in a concurrent session.
201 Generally speaking, I found the evidence given by the planning experts on most issues to be clear, and the bases for their opinions were adequately explained. On occasion, however, I found Mr Ferraro's evidence to be unclear, and his explanations, with respect, were lengthy or difficult to follow (or both).[237] In addition, on occasion, Mr Ferraro seemed to advance opinions without being certain of the underlying factual foundation for them.[238] Occasionally, those features of his evidence prompted me to prefer the evidence of the other planning experts to the evidence Mr Ferraro gave (as I indicate below).
202 It is appropriate to mention one further aspect of the planning experts' evidence. In one of his written reports,[239] Mr O'Neill commented that he thought Mr Ferraro's opinion was 'contrived'.[240] He also commented that he thought that the view expressed by Mr Ferraro was 'disingenuous'[241] and 'spurious'.[242] He referred to Mr Ferraro's opinion that the Highway actually prejudiced the urban development potential of the Kelliher land as being a 'spurious' contention and as one that, in his view, 'borders on the absurd'.[243] Some context for those observations is appropriate. By way of example, Mr O'Neill noted that in his report, Mr Ferraro had expressed the view that 'unlike other areas adjacent to the [Highway], the Kelliher landholding is not dependent on the Highway'.[244] Mr O'Neill said that he strongly disagreed with that conclusion. He considered Mr Ferraro's view namely, that the Highway actually prejudiced the urban potential of the Kelliher land to be contrived.[245] The basis for Mr O'Neill's view was set out in his report. It included the fact that the inference in Mr Ferraro's opinion, namely that urban expansion was independent of the primary regional road network, of which the Highway was an example was contrary to the well established principle of the integration of land use and transport which had most recently been set out in Network City.[246]
204 The following day, Mr O'Neill, of his own volition, sought to retract his concessions as to the meaning of the words used in his report to describe Mr Ferraro's opinions, and which he considered 'somewhat more vulgar' than the language he had used in his report.[250] Mr O'Neill also sought to apologise to Mr Ferraro for any offence he might have taken to what was said by Mr O'Neill in the course of his crossexamination.[251]
205 The language used by Mr O'Neill in his report and in his cross examination to describe certain opinions expressed by Mr Ferraro represented a departure from the professional courtesy that expert witnesses are entitled to expect from each other, and was regrettable for that reason. However, I did not form the view that Mr O'Neill's intemperate language was indicative of a lack of objectivity on his part. What it did demonstrate was that Mr O'Neill strongly disagreed with Mr Ferraro's opinion, and that he was, quite simply, unable to understand the reasoning behind the opinion, and was somewhat frustrated by that situation.
206 I explain below my views in relation to the evidence given by the planning experts, and the basis on which I have preferred the evidence of one or more of the planners, on issues about which there was disagreement.
207 The parties also relied on the evidence of various witnesses as to factual matters. Witness statements were tendered as the evidenceinchief of each of these parties. Not all of the witnesses were required for crossexamination. I have referred to the evidence of the witnesses at appropriate points in the reasons below. The witnesses concerned were:
208 In addition, the parties relied upon the evidence of a number of expert witnesses apart from the expert planners and the valuation experts. The parties tendered witness statements as the evidence in chief of each of these expert witnesses. Not all of the witnesses were required for crossexamination. The evidence of these witnesses is discussed at relevant points in the reasons for decision below. For present purposes, it suffices to make note of the identity of the expert witnesses and the thrust of their evidence:
209 In relation to matters where the likely approach of the WAPC and DPI was in issue, I placed greater reliance on the evidence of witnesses who worked within the DPI at the time, especially Mr Saunders, Mr Swasbrook, Ms Thompson, and Dr Montgomery.
PART 2: THE KNOWLEDGE OF THE HYPOTHETICAL SPENCER PARTIES STATUTORY PLANNING FRAMEWORK AND PLANNING INSTRUMENTS
210 The relevant question is: at the Date of Taking, and in the unaffected scenario (without the Highway) what facts and circumstances relevant to assessing the highest and best use of the Kelliher Land would have been known to the hypothetical Spencer parties?
211 Counsel for the defendant submitted that the hypothetical Spencer parties are presumed to be perfectly informed about those things relevant to price that are in the public domain or are matters about which a prudent purchaser would inquire,[263] and that 'once one is dealing with the transaction said to be worth $240 million, then prudence requires inquiry into virtually every briefing about the land. Even at $80 million, much due diligence is required'.[264] Judging from the extent of the documentary evidence and witness' evidence in this case, the hypothetical Spencer parties leave no stone unturned.
212 In these reasons, when I refer to matters that would have been known by the hypothetical Spencer parties I mean facts and circumstances which I am satisfied would have been known, or capable of being ascertained as a result of enquiries. In this section I deal first with those facts which would have been known in the unaffected scenario (that is, without the Highway). I deal with the facts that would have been known in the real world below.
213 When I refer to a document (in a footnote) as the source of a fact, I accept the document to be evidence of the existence of that fact, unless I indicate to the contrary.
(b) Factual matters not in dispute between the parties
214 The following features of the Kelliher land as at the Date of Taking, which were relevant to its highest and best use, were not in dispute:[265]
(c) The statutory planning regime in Western Australia
215 The hypothetical Spencer parties can be taken to be fully informed about the regulatory framework for the development of land in Western Australia, the hierarchy of planning instruments and the process for amendment of those planning instruments. The starting point in understanding that framework is the Planning and Development Act 2005 (WA) (the PD Act).[267]
216 The PD Act establishes the WAPC.[268] The functions of the WAPC which are relevant to this case include advising the responsible Minister on the co-ordination and promotion of land use, transport planning and land development in the State in a sustainable manner,[269] and on local planning schemes, and amendments to those schemes, made or proposed to be made for any part of the State;[270] to prepare and keep under review a planning strategy for the State and planning policies;[271] to keep under review strategic planning in any area to which a region planning scheme applies and to make recommendations to the Minister on that strategic planning;[272] to review each planning scheme if requested by the Minister and to submit amendments for approval;[273] to provide advice and assistance to any person on land use planning and land development and in particular to local governments in relation to local planning schemes;[274] to prepare State planning policies and region planning schemes,[275] and to do all things necessary for the purpose of carrying out the PD Act and region planning schemes.[276]
217 The WAPC is required by the PD Act to establish certain committees (set out in sch 2 to the PD Act) and may establish others. The role of these committees - which include the Statutory Planning Committee, and regional planning committees - is to provide the WAPC with advice on particular planning matters which will assist the WAPC in the performance of its functions. Some of those committees are referred to in the evidence discussed below.
218 The hypothetical Spencer parties would be aware that the PD Act recognised that at the heart of the framework for land development in Western Australia are State Planning Policies (SPPs). SPPs are policies which are directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments.[277] They may apply generally or in relation to particular matters, and throughout the State or in specified portions of the State.[278] SPPs are prepared by the WAPC with the approval or on the direction of the Minister,[279] and have 'force and effect' once approved by the Governor and published in the Government Gazette.[280] (The PD Act also continued in force any statement of planning policy in force under the former Town Planning and Development Act 1928 (WA).[281])
219 Turning to more specific planning regulation, the starting point is the region planning schemes. A region planning scheme has legislative effect.[282] I find that the hypothetical Spencer parties would be aware that a region planning scheme is the planning instrument which governs the zoning of land in the area covered by that scheme.[283] Various regions are designated under the PD Act, including the Peel Region, which comprises the districts of Mandurah, Boddington, Murray and Waroona.[284]
220 Having regard to the evidence of Mr Allen,[285] which I accept, I find that the Spencer parties would be aware that a region planning scheme will typically deal with land use by zoning land for particular broad purposes (such as for urban use, or rural use), while more particular use of the land within those zones (such as the use of urban zoned land for particular commercial uses or for residential use) will be provided for in town planning schemes.
221 The PD Act continued any region planning schemes in force when the PD Act was enacted.[286] Accordingly, the Spencer parties would be aware that the PRS (which came into effect in 2003) continued to apply under the PD Act at the Date of Taking.
222 The hypothetical Spencer parties can also be taken to be aware of the means by which a region planning scheme can be amended. Amendments to a region planning scheme may be made at any time. Amendments may be proposed by agencies, but they may also be proposed by land owners.[287]
223 If there is to be a change to a region planning scheme, the WAPC may prepare a new region planning scheme, or an amendment to a region planning scheme, in respect of a region.[288] Once that is done, that document must be submitted to the Minister for consent to seeking public submissions on the proposed scheme or amendment.[289] After consideration of any submissions received during that public consultation, and compliance with requirements concerning environmental approvals, the proposed scheme or amendment is submitted to the Minister[290] with a view to its presentation to the Governor for approval.[291] The region planning scheme or amendment must then be laid before each House of Parliament and is subject to disallowance.[292] I find that the hypothetical Spencer parties would be aware that an amendment to a region planning scheme requires the support of the WAPC, and the approval of the Minister, and is subject to disallowance by the Parliament.
224 The PD Act does not expressly require that a region planning scheme be consistent with any other planning document. (The planning experts agreed that that was the case.[293]) Nevertheless, for practical purposes, a region planning scheme can be expected to be consistent with applicable SPPs. That is because the PD Act requires a town planning scheme to be consistent with both a region planning scheme, and a SPP. I find that the hypothetical Spencer parties would be aware that a region planning scheme must be consistent with the PD Act and the Regulations made thereunder, and will be consistent with applicable SPPs.
225 The next layer in the hierarchy of planning regulation contemplated by the PD Act is the local planning schemes. (These were formerly called town planning schemes under the Town Planning and Development Act 1928 (WA). To avoid confusion I will refer to all such schemes in these reasons as town planning schemes.) A town planning scheme has legislative effect.[294]
226 The hypothetical Spencer parties can also be taken to be aware of the means by which a town planning scheme is established and amended. The PD Act continues in force any town planning scheme made under the Town Planning and Development Act 1928 (WA).[295] I find that the hypothetical Spencer parties would be aware that Town Planning Scheme No. 4 for the Shire of Murray (TPS 4) continued in force under the PD Act.
227 Furthermore, the hypothetical Spencer parties would be aware that a local government may prepare a town planning scheme in relation to any land within its district, may adopt a town planning scheme proposed by all or any of the owners of any land,[296] and may amend a town planning scheme in relation to land within its district, but that the amendment must be approved by the Minister and then published in the Government Gazette.[297] Accordingly, I find that the hypothetical Spencer parties would be aware that while the Shire of Murray was entitled to propose an amendment to TPS 4, any such amendment had to have the support of the WAPC, and be approved by the Minister.
228 I find that the hypothetical Spencer parties would be aware of the process by which a town planning scheme is amended. A proposed new scheme, or amendment to an existing scheme, must be prepared by the local government and referred to the WAPC for its consideration. The WAPC is then required to make a recommendation to the Minister as to whether he or she should give consent for the proposed scheme or amendment to be advertised for public inspection.[298] The Minister is required to consider the proposed scheme to determine whether to give consent for the proposed scheme to be advertised, or advertised subject to modifications or on conditions.[299]
229 In addition, the local government is required to refer the proposal to the Environmental Protection Authority, and is also required to consult with public authorities and other persons who are likely to be affected by the new scheme or the amendment.[300]
230 The local government is then required to advertise the proposed new scheme or amendment for public inspection.[301] After the local government has considered any submissions made in respect of the proposed scheme or amendment, it is required to resolve whether or not to adopt the town planning scheme, and with or without modification.[302]
231 Once these steps are taken the local government is able to refer the proposed new scheme or amendment to the WAPC for its consideration.[303] The WAPC is then required to submit the proposed scheme or amendment to the Minister, together with its recommendations as to whether it should be approved.[304] The Minister can approve or refuse approval, or require the modification of the scheme or amendment.[305]
232 If the proposed new scheme or amendment does not comply with a region planning scheme, the Minister can direct the local government to amend it to ensure that it is consistent with the region planning scheme.[306] If the Minister considers that any modifications made to the proposed scheme or amendment were substantial he or she can direct a further process of advertising and submissions in respect of the modifications.[307]
233 If the Minister approves the scheme, the WAPC is required to publish the scheme or amendment in the Government Gazette and the local government is required to advertise it.[308] Only once it is approved by the Minister and published in the Gazette, does the scheme or amendment have full force and effect.[309]
234 The hypothetical Spencer parties would be aware that in preparing or amending a town planning scheme, a local government must have 'due regard' to any SPP which affects its district,[310] and that a town planning scheme may not be approved by the Minister unless its terms are consistent with a relevant region planning scheme.[311]
235 The hypothetical Spencer parties would also be aware that if a region planning scheme is inconsistent with a town planning scheme, the region planning scheme prevails over the town planning scheme to the extent of the inconsistency.[312] (In that event, the local government will be required to resolve to prepare an amendment or new scheme which is consistent with the region planning scheme.[313])
236 The PD Act contains other provisions which ensure that the provisions of a town planning scheme remain consistent with an applicable region planning scheme. For example, if a region planning scheme delineates, or it is proposed that a region planning scheme delineate, land comprised in a town planning scheme as land in an urban zone, the WAPC may publish a notice in the Government Gazette amending the town planning scheme insofar as it operates in relation to that land, so that the land will be zoned consistently with the delineation under the region planning scheme.[314] That amendment will take effect from the day of the notice, or the day on which the relevant region planning scheme comes into operation.[315] The town planning scheme will be amended as a result, and no further action to amend it is required.[316] The expert planning witnesses all agreed[317] that the possibility therefore exists that an amendment of a town planning scheme can occur at the same time as the amendment of a region planning scheme. I find that the hypothetical Spencer parties would be aware that if an amendment were made to the PRS to zone more land in the Shire of Murray for urban use, TPS 4 may be amended accordingly, without the need for a separate amendment process.
237 The hypothetical Spencer parties would also be aware that while a town planning scheme must be consistent with the applicable region scheme, the town planning scheme will also contain a more detailed range of land uses within particular land zones. So, for example, the land zoned urban in a region scheme may be the subject of a variety of permitted land uses (such as residential, commercial, open space) under the town planning scheme, all of which will fall within the umbrella of that urban zoning.[318]
238 The hypothetical Spencer parties can also be taken to be aware that if a local government proposes a new town planning scheme, or seeks to amend the zoning of land in an existing town planning scheme, those changes will need to be explained in a document called a local planning strategy (LPS) which itself requires approval by the WAPC. The applicable requirements were as follows.
239 If a proposed town planning scheme envisages the zoning or classification of land, the local government is required to prepare a report in relation to the proposed scheme in the form of a LPS, which is to be forwarded to the WAPC.[319] The function of the LPS is to 'set out the longterm planning directions for the local government', 'apply State and regional planning policies' and 'provide the rationale for the zones and other provisions of the Scheme'.[320] The certification of the WAPC that the LPS is consistent with that requirement is necessary before the local government is able to advertise the LPS.[321] The hypothetical Spencer parties can thus be taken to be aware that a LPS which is inconsistent with a SPP or a regional planning policy will not be approved for advertisement.
240 The proposed LPS is required to be the subject of public consultation. If, after that public consultation occurs, the WAPC endorses the LPS, the local government is required to publish notice of the LPS and the endorsement of the WAPC in a newspaper in the area, and to make the LPS available for public inspection.[322]
241 Only after that occurs is a local government able to resolve to proceed with the town planning scheme, and to adopt it in accordance with the PD Act.[323]
242 There was no dissent among the planning experts to the proposition that a LPS is a planning document which is intended to set out a long-term strategy (with a planning horizon in the order of 15 years or so) for the use of land which is subject to a local government's town planning scheme. The objective is that successive amendments of a town planning scheme (iterations of which will have a much shorter time frame) will be made by reference to that one, continuing strategy.[324] I find that the hypothetical Spencer parties would be aware of this underlying rationale for the existence of an LPS.
243 There was much discussion in this case about regional structure plans, and the IPRSP in particular. Regional structure plans are not referred to in the PD Act. As I explain below, however, they are referred to in SPP 1.
244 Regional structure plans are prepared by the WAPC. The evidence of the planning experts was to the effect that regional structure plans seek to encapsulate long term strategic planning for the use of land in a region (with a planning horizon in the order of 50 years or so).[325] So, for example, a regional structure plan may identify land as 'future urban', so as to signify that that land may be suitable for rezoning to urban land at some stage in the future. However, a regional structure plan would ordinarily be reviewed within a shorter time frame (after 10 to 15 years[326]) no doubt because the anticipated long-term needs of a region in relation to the use of land may change, as a result of changing circumstances in the region in the years following the adoption of the regional structure plan. In other words, the regional structure plan may require review well in advance of its long term planning horizon. I find that the hypothetical Spencer parties would be aware of the rationale for, and review of, regional structure plans, within the Western Australian planning landscape.
245 That position may be contrasted with the position of region planning schemes, which are intended to have a shorter time frame as compared with regional structure plans. Region planning schemes may be progressively amended over time[327] - for example to rezone (to urban) land which is identified as 'future urban' in a regional structure plan, as a need for more urban land in a region emerges.[328] None of the planning experts dissented from this view.[329] I find that the hypothetical Spencer parties would be aware of the different planning horizons of regional structure plans and Region Planning Schemes.
246 Having regard to the evidence of the planning experts, I find that the hypothetical Spencer parties would be aware that a region planning scheme will, in broad terms, reflect the regional structure plan, but may not coincide precisely with the structure plan.[330] That will be the case because the region planning scheme will include the current zoning of the land in the region, and will not include potential future uses of the land which may be identified in a regional structure plan.[331]
247 The planning experts agreed that if a comprehensive amendment to a region planning scheme were proposed, one would expect, as a precursor to that step, a review of the applicable regional structure plan, as the structure plan would set out the overall strategic approach to the land in the region.[332] I find that the hypothetical Spencer parties would be aware of the likelihood that this would occur.
248 It is also appropriate to mention at this point that the Spencer parties can be taken to be aware of the process for the approval of land for subdivision, which is as follows.
249 Subdivision of land may not be undertaken without the approval of the WAPC.[333] Subject to some exceptions which are presently irrelevant,[334] the WAPC is not to give approval to a subdivision that is inconsistent with the provisions of a town planning scheme.[335] A plan for subdivision approval may be forwarded by the WAPC to a local government, public authority or utility service provider if the WAPC considers it appropriate to do so.[336] The WAPC is required to try to determine the application for subdivision approval within 90 days.[337] The WAPC is entitled to require compliance by an applicant for subdivision with such conditions as the WAPC thinks fit before a diagram or plan of survey will be endorsed with the WAPC's approval.[338]
250 The planning experts' evidence touched on the process for subdividing land. In 2006, it was common for subdivision applications to be conditionally approved, in that approval for the subdivision was given, subject to compliance with a number of conditions, typically relating to the construction of roads, connection to water, sewerage and electricity, and so on.[339] Final approval for the subdivision would only be given once the WAPC was satisfied that there had been compliance with those conditions. In addition, the planning experts noted that after land was zoned for urban development, it was not necessary for the developer to immediately proceed with the subdivision of that land. Typically the subdivision of a large parcel of land would take place in stages (of perhaps 8 to 10 ha at a time).[340]
251 Once the WAPC had given final approval to the subdivision, titles for each lot of land could be issued by what was then known as the Department of Land Administration.[341] The Registrar of Titles was not able to create or register a certificate of title for land the subject of a plan of subdivision unless a diagram or plan of survey of the subdivision of that land had been endorsed with the WAPC's approval.[342]
(d) The hierarchy, status and content of relevant planning instruments
252 With some qualifications (which I discuss below), the planning experts agreed that a number of key planning documents were relevant to the determination of the development potential of the Kelliher land as at the Date of Taking, and to its future prospects for more intensive development.[343] Those documents were:
253 The planning experts also agreed that the following documents were also relevant to the prospects of the Kelliher Land being rezoned:
254 I find that the hypothetical Spencer parties would be aware that as at the Date of Taking, each of these planning instruments was relevant to the determination of the future development potential of the Kelliher Land. As I explain below, however, the hypothetical Spencer parties would not view these planning instruments as having equivalent relevance or as likely to be given equivalent weight in that determination.
255 In addition, given the significance of the SPPs in the State planning framework, I find that the hypothetical Spencer parties would be aware that SPPs were relevant to the determination of the development potential of the Kelliher land as at the Date of Taking. I explain the relevance of particular SPPs below.
256 Finally, it is convenient in this part of my reasons to mention the Furnissdale Structure Plan, not because the hypothetical Spencer parties would view that document as directly relevant to the development potential of the Kelliher land, but because they can be taken to be aware of it as part of the background to the proposal to conduct a Furnissdale to Pinjarra Structure Plan Review (FPSP Review).
257 For completeness, it is also appropriate to mention the State Planning Strategy because it was referred to by the plaintiffs[344] as being a planning instrument of relevance to the present case, although as I explain below, its relevance at the Date of Taking was limited.
258 In this section of my reasons, I discuss the key features of each of the planning instruments noted above. I find that the hypothetical Spencer parties can be taken to have been aware of the content of these planning instruments in assessing the prospects of the development potential of the Kelliher land as at the Date of Taking.
259 The hypothetical Spencer parties would be aware that in December 1997, the WAPC released the State Planning Strategy, which anticipated significant growth in the State's population and economy 30 years into the future and recognised the need for more strategic planning for land use during those years. The State Planning Strategy was intended to set out a vision for development in the State, provide a guide to the State Government on its land use planning response and on the programmes and actions required to achieve that vision, identify likely changes and prepare for them, and establish the mechanisms to ensure that the Strategy was implemented and kept current.[345]
260 The State Planning Strategy recognised that areas in the South-West of the State would experience growth problems similar to those which had until that time only been experienced in Perth, and that consequently planning within the south-west of the State would need to be more active than in the past.[346] The Strategy noted that Peel was expected to be the fastest growing of the regions, along with the south west.[347] The Strategy noted that planning 'must respond to the growing desire to discourage contiguous growth and facilitate the development of separate, sustainable towns'.[348]
261 An important outcome of the implementation of the Strategy was expected to be the preparation of statutory region schemes in various locations throughout the State, including the Peel Region.[349] The City of Mandurah, and the Shires of Murray and Waroona were identified as priority areas for Statutory Region Schemes in the Peel Region.[350] Accordingly, the State Planning Strategy noted that priority actions in the years prior to 2000 included preparing a Peel statutory region scheme, and promoting 'nodal settlement patterns, especially along the Murray River'.[351]
262 The Strategy noted that local government had a key role in the implementation of the State Planning Strategy, through the preparation and administration of town planning schemes, but also in the development and implementation of statutory region schemes and regional planning strategies.[352]
263 In my view, I find that the hypothetical Spencer parties would be aware that the practical significance of the State Planning Strategy was subsequently overtaken by the release of planning instruments noted above, which either were of general application, or which had direct application to the Peel and Murray regions and which encompassed the Kelliher land. Nevertheless, I find that the hypothetical Spencer parties would be aware that the State Planning Strategy would remain relevant to an overall consideration of rezoning prospects in a general sense, if only because the State Planning Principles were expressed as giving way to the State Planning Strategy in the event of any conflict between their provisions.[353]
264 I find that the hypothetical Spencer parties would be aware of the content and significance of SPP 1, which is entitled the State Planning Framework Policy. SPP 1 established the State Planning Framework, which linked up, and identified the interaction between, existing State and regional policies and plans which applied to land use and development in Western Australia.[354] The purpose of establishing that State Planning Framework in SPP 1 was to provide
a context for decision-making on land use and development in Western Australia. It informs the [WAPC], local government and others involved in the planning process on those aspects of State level planning policy which are to be taken into account, and given effect to, in order to ensure integrated decision-making across all spheres of planning.[355]
265 SPP 1 set out how the State Planning Framework was to be used. It provided that the WAPC and local governments 'must have due regard to the provisions that form part of this Framework in preparing planning schemes and making decisions on planning matters'[356] (emphasis added).
266 In addition, the WAPC was required to 'assess local government town planning schemes against the State Planning Framework to ensure the scheme is consistent with State and regional policies' included in the Framework.[357] I find that the hypothetical Spencer parties would be aware that the WAPC would be unlikely to lend its support to a proposed new, or amended, town planning scheme which was inconsistent with the planning instruments which formed part of the State Planning Framework.
267 I find that the hypothetical Spencer parties would be aware of this central role of SPP 1, and of the State Planning Framework established by it, in informing decision making in respect to planning matters in Western Australia.
268 The State Planning Framework in SPP 1 was divided into two parts: general principles for land use planning and development (Part A), and State and Regional provisions (Part B).
269 The principles forming the general principles for land use planning and development in Part A derived from the State Planning Strategy and were the 'underlying principles for all State and regional plans, policies and strategies'.[358] Those general principles in Part A of SPP 1 proceeded from the primary aim of providing for the sustainable use and development of land,[359] as defined by reference to five key principles which were identified in the State Planning Strategy: environment, community, economy, infrastructure, and regional development.[360] By way of example, the 'infrastructure' principle required that 'planning for land use and development [should allow] for the logical and efficient provision and maintenance of infrastructure' and should facilitate 'the efficient use of existing urban infrastructure and human services and [prevent] development in areas which are not well serviced, where services and facilities are difficult to provide economically.'[361]
270 Part B of SPP 1 contained the 'State and Regional Provisions'. All of the plans, policies and strategies that formed the State Planning Framework and which were listed in Part B were also 'called a provision for the purposes of this [SPP]'.[362]
271 These included various SPPs which in broad terms developed the five key planning principles referred to above, but with greater specificity, together with various regional strategy documents which had been endorsed by the WAPC as interpreting the State Planning Strategy at the regional level. Various regional and sub-regional structure plans were also endorsed by the WAPC and included in Part B of SPP 1. These 'provide[d] for the comprehensive planning of regions, sub-regions or particular locations to guide change in the short to medium term'.[363] In addition, various strategic policies which dealt with particular strategic planning issues were also endorsed by the WAPC in Part B of SPP 1.
272 Prior to the Date of Taking, the documents which had been included in Part B of SPP 1, and which are of particular relevance to this case, included SPP 2 (Environment and Natural Resources Policy), SPP 2.1 (the Peel-Harvey Coastal Plain Catchment Policy), SPP 3 (Urban Growth and Settlement) released in draft form in 2005, and published by the WAPC in March 2006,[364] Network City (in draft form), the Peel Regional Strategy, the IPRSP and a draft of the Liveable Neighbourhoods policy (Edition 3).
273 It is appropriate to mention at this point that planning policies, plans or strategies exist independently from the State Planning Framework within SPP 1, and they operate according to their tenor.[365] However, once a policy, plan or strategy was included in the State Planning Framework in SPP 1, that policy, plan or strategy would gain a new status because of the obligation on the WAPC and local government authorities to give 'due regard' to the provisions of the State Planning Framework. Consequently, the planning experts agreed that the draft of Network City (discussed below), which by the Date of Taking had not been released as a final document, nevertheless gained the status of being part of the State Planning Framework once it was included in SPP 1.[366] I find that the hypothetical Spencer parties would be aware of this significance of SPP 1 also.
274 Finally, Part B of SPP 1 also included various operational policies, which were 'largely subdivision and development control policies which have been adopted by the [WAPC] to guide its decision-making on subdivision and development applications'. These included, for example, DC 3.4 Subdivision of Rural Land, to which I refer later in these reasons. They also included Guidelines for the Lifting of Urban Deferment which set out the requirements for seeking the transfer of land from an urban deferred zoning to an urban zoning.[367]
275 The evidence of some of the planning experts touched on the practical operation and effect of SPP 1. In the end, the import of that evidence was somewhat ambiguous.
276 Mr Ferraro initially drew a distinction between SPPs included within the State Planning Framework, and other policies and strategies which on his understanding were not included within the State Planning Framework and did not form part of SPP 1, specifically the IPRSP.[368] In so far as Mr Ferraro appeared to suggest that the IPRSP did not form part of the State Planning Framework, his evidence was inconsistent with the clear terms of SPP 1, and I place no weight on it.
277 Mr Ferraro acknowledged that 'once these documents are in place, it [the WAPC] tends to follow them fairly carefully and fairly ... closely'.[369] Mr Ferraro suggested that it would be open to the WAPC to 'put the strategy aside and make a decision which would be contrary to it' although he acknowledged that 'would not happen very often' and instead the WAPC would usually 'expedite a review of those strategies to bring them into line with its current thinking'.[370]
278 Mr Allen initially indicated that he agreed with Mr Ferraro's view.[371] However, he later agreed that the various plans and strategies listed in Part B of the State Planning Framework were 'provisions' of the Framework to which the WAPC and local governments must have 'due regard'.[372] That evidence suggested that Mr Allen's view was not entirely in accordance with Mr Ferraro's view of SPP 1. Mr O'Neill agreed with the latter part of Mr Allen's evidence.[373]
279 To the extent that there was any practical difference between Mr Ferraro's view and the views of Mr Allen and Mr O'Neill, I prefer the evidence of Mr Allen and Mr O'Neill, which was consistent with the terms of SPP 1 itself.
280 Having said that (and as will be apparent from the discussion of the relevant planning instruments which follows) some of the planning instruments which formed part of the State Planning Framework were expressed in very general language, and were clearly not amenable to a literal or precise application. (The same point was made by Mr O'Neill and Mr Moran in their evidence.[374]) Consequently, in any given case there may be room for different views about the proper application of planning instruments containing terms expressed in more general language. (An example of that possibility appeared from the evidence of Mr O'Neill and Mr Allen in relation to the implications of Network City, which I discuss further below.[375])
281 I find that the hypothetical Spencer parties would have been aware of the terms of SPP 1, which made clear that the policy instruments identified in the State Planning Framework were the core policies and guidelines to which the WAPC, local government and others involved in planning decisions were required to give 'due regard'.
282 The hypothetical Spencer parties can also be taken to have been aware of SPP 2 the Environment and Natural Resources Policy. SPP 2 required that planning strategies, schemes and decision-making should take into account the potentially adverse environmental impact of land use proposals in a variety of ways, including by avoiding 'development that may result in unacceptable environmental damage', by 'actively seek[ing] opportunities for improved environmental outcomes including support for development which provides for environmental restoration or enhancement, and by taking 'account of the potential for on-site and offsite impacts of land use on the environment, natural resources and natural systems'.[376] SPP 2 noted that the primary measure for its implementation would be
through the preparation of strategic plans, regional and local statutory schemes, conservation and management strategies and other relevant plans to achieve the objectives of the policy. Implementation will also occur through the day to day process of decision-making on subdivision and development applications, and the actions of other State agencies in carrying out their responsibilities.[377]
283 The hypothetical Spencer parties can be taken to have been aware of SPP 2.1 which set out certain policy objectives relating to the development of land within the Peel-Harvey Coastal Plain Catchment area, and which were designed to protect the Peel-Harvey Estuarine system. The WAPC required all town planning schemes operating within the Peel-Harvey Coastal Plain Catchment area to require development to be subject to the provisions of SPP 2.1.[378]
284 SPP 2.1 required that proponents for changes to the zoning of land take account of the capability of that land for the proposed zoning, by reference to the net effect that rezoning was likely to have on the nutrient load discharging from the catchment area into the Peel-Harvey Estuarine system. In addition, SPP 2.1 provided that no land could be rezoned for urban purposes unless certification was received from the Water Authority confirming that adequate arrangements had been made for sewerage services for all lots in the subdivision.[379]
285 As the evidence of Mr Allen confirmed (see below at [961]), I find that the hypothetical Spencer parties would be aware that in determining whether the Kelliher land was suitable for future urban development, the WAPC would need to be satisfied that any such development was capable of complying with the requirements of SPP 2.1.
286 The hypothetical Spencer parties can be taken to have been aware of SPP 3 which dealt with Urban Growth and Settlement.[380] It is apparent from SPP 3 that the WAPC was concerned to ensure that development had regard to population growth, and to more compact urban development. In its introductory remarks to SPP 3 the WAPC observed:
There is increasing recognition that the spread of urban development intensifies pressures on valuable land and water resources, imposes costs in the provision of infrastructure and services, increases dependence on private cars and creates potential inequities for those living in the outer suburbs where job opportunities and services are not so readily available. ...
While the majority preference is still for the suburban home, community expectations and preferences are also changing towards more compact patterns of development. ... There is a greater interest in returning to established neighbourhoods.
...
The trend is to create more liveable communities in the new suburbs, revitalise and enhance neighbourhoods in existing urban areas, provide for variety in housing and living environments, widen the range of transport choices, conserve water and other natural resources, and provide for wider social interaction and opportunity.
Affordability of housing is a key issue. There is a need to maintain a supply of affordable land for housing and affordable housing products for all in the community including those with special needs. The majority of new affordable housing land is in the outlying suburbs reinforcing the need for medium and higher density housing in inner and middle suburbs for low to middle income households as well as in the growth corridors.
...
The overall aim of this policy is to facilitate sustainable patterns of urban growth and settlement by setting out the requirements of sustainable settlements and communities and the broad policy in accommodating growth and change. This policy should be taken into account in preparing regional and local planning strategies, and planning schemes and amendments, and given weight in statutory decision making in relation to urban growth and settlement.[381]
287 The objectives of SPP 3 were then set out. These were:
288 The key requirements for sustainable communities were said to include:
the growth of Perth will be carefully managed with a shift away from urban expansion on the fringe of the city to the consolidation of established urban areas whilst still maintaining an adequate supply of land for development in the growth areas. Bunbury, Busselton and Albany will continue to develop as major centres. Land between the towns and cities will be conserved in rural use for agricultural production, landscape, conservation and lifestyle purposes.
...
New settlements and major town expansions should only be considered where they will have a planned economic and employment base and where they can be efficiently serviced by local and regional infrastructure including roads, public transport, water supply, sewerage, drainage, energy, local parks, schools, shops, recreational facilities and other services.
...
Outside the metropolitan and regional growth centres, proposals for major new settlements, whether by large scale additions to existing settlements or new free standing settlements, are unlikely to prove to be a sustainable development option given the difficulties in providing a secure employment base, the cost of providing the full range of new services and infrastructure and the potential for diverting population and resources from existing settlements which could contribute to the decline of those settlements.[384]
290 SPP 3 also discussed the significance of local planning strategies in planning decisions at the local level. It was observed:
Local planning strategies are the main framework for planning at the local level enabling local government to plan ahead. They express the strategic vision, policies and proposals of the local government and reflect local needs and aspirations. They are also the key instrument for translating State and regional plans and policies to the local level and provide the rationale for the zonings and other provisions in local government town planning schemes. Local strategies should reflect and build on the urban growth and settlement policies set out in regional strategies and the land release plans and apply these at the most detailed local level taking into account local needs and variations. Local strategies should seek to identify sufficient land to meet future population and housing needs for at least a 10year period.
... Local governments should adopt a systematic approach towards identifying locations suitable for new housing development, redevelopment and infill and opportunities for increased densities particularly around activity centres and close to public transport nodes.[385]
291 Significantly, SPP 3 then made clear the approach which would be taken by the WAPC to planning for future urban growth. It provided:
The orderly planning of urban growth and settlement should be facilitated by structure plans ... . Structure plans may consist of a hierarchy of plans ranging from broad district structure plans to more detailed plans for neighbourhoods and precincts.
Proposals for future urban growth will be determined having regard to -
Speculative proposals for new urban subdivision and development in areas not identified in regional and local planning strategies and land release plans will not generally be supported.[386]
292 As for development in the Perth metropolitan area and Peel, SPP 3 recognised that 'Network City is the metropolitan strategy for Perth and Peel. It embodies the metropolitan land use strategy, the metropolitan transport strategy, a whole-of-government approach, a commitment to partnerships with local governments and a commitment to plan with communities.'[387] (Network City is discussed below.)
293 SPP 3 also made reference to planning decisions being made with regard to services and infrastructure:
Planning for new growth and settlements should be co-ordinated with the cost-efficient provisions of infrastructure and services such as roads, public transport, water supply, sewerage, electricity, gas, telecommunications, drainage, open space, schools, health and recreational facilities.
...
Greenfield developments that leapfrog the existing urban front should be required to prefund extensions to infrastructure, including extensions to major roads and utility networks, that would otherwise be provided by service providers.[388]
294 I find that the hypothetical Spencer parties would be aware of four key themes which emerged from SPP 3. First, SPP 3 contained a clear statement of intent by the WAPC that the unrestrained spread of urban development should not continue. Secondly, SPP 3 indicated that future development would build on existing communities and consolidate existing urban development, and that land between towns would be conserved for rural and agricultural use. Thirdly, SPP 3 made clear that speculative development in areas not identified for urban development in regional and local planning strategies would not be supported. Fourthly, SPP 3 put developers on notice that if they sought to develop land ahead of the existing urban front, they could expect to incur higher costs because they would need to prefund extensions to infrastructure themselves.
295 The hypothetical Spencer parties can also be taken to be aware of the Liveable Neighbourhoods policy developed by the WAPC, and which was included in SPP 8 (but which was also relevant to the developmental themes confirmed in SPP 3).[389] A draft of the third edition of the Liveable Neighbourhoods policy was released for public comment in October 2004.
296 The WAPC developed the Liveable Neighbourhoods policy in order to implement the objective of sustainable development for Western Australia (which was set out in the State Planning Strategy) and to implement the strategies set out in Network City. The Liveable Neighbourhoods policy replaced the WAPC's development control policies in relation to the structure planning and subdivision of land, particularly for greenfields and large infill sites.[390]
297 The Liveable Neighbourhoods policy made clear that it would be necessary for structure plans and large subdivision applications to comply with the policy.[391]
298 For present purposes, it suffices to note that I find that the hypothetical Spencer parties would be aware that one of the aims of the Liveable Neighbourhoods policy was
to provide for an urban structure of walkable neighbourhoods clustering to form towns of compatibly mixed uses in order to reduce car dependence for access to employment, retail and community facilities.[392]
299 The hypothetical Spencer parties can be taken to have been aware of the existence and content of the Peel Regional Strategy. That document set out the aims, objectives and priorities for action to resolve planning and development issues in the Peel Region. The Peel Regional Strategy provided a 'policy framework to ensure the continued growth of the region in an orderly, efficient and environmentally responsible manner'[393] and was intended to 'be the basis for land use decision making within the region through the regional office of the State Planning Commission and a regional planning committee'[394] and in that sense was intended to provide 'regional guidance for more detailed and localised planning and decision making'.[395] The Strategy noted that there was a 'need ... to plan further into the future and provide more regional and structural guidance in some parts of the Peel Region. These are areas which are now under significant pressure for development or are likely to be under pressure in the near future.'[396]
300 The Kelliher land was identified in the Peel Regional Strategy as falling within that part of the 'Rockingham/Mandurah/Pinjarra corridor of growth pressure' which intersected with the 'South East Corridor' in which the Serpentine to Pinjarra area was identified as an area for future growth.[397] The Peel Regional Strategy noted that in this corridor, 'the pressure for commercial and residential development adjacent to and in the vicinity of Pinjarra Road, particularly in the Furnissdale/Barragup location are important considerations'[398] and that this area 'in particular, is under pressure for development'.[399] In addition, the Peel Regional Strategy was accompanied by a Land Use Plan which 'provide[d] an indication of the broad emphasis of future land uses in different locations of the region'.[400]
identified the need for structure planning to show where areas suitable for urban development could be provided and acknowledged the pressure for commercial and residential development adjacent and in the vicinity of Pinjarra Road, particularly in the Furnissdale/Barragup location. That said, the Strategy pointed out Furnissdale/Barragup had a number of issues associated with its potential development as an urban area namely fragmented ownership, low lying land, lack of sewerage and the environmental impact on the PeelHarvey Estuarine System.[401]
302 The Peel Regional Strategy also noted that the suitability of Amarillo for urban purposes should be established, and noted that the implications of Amarillo for the transport needs of the area should be addressed.[402]
303 Counsel for the plaintiffs submitted that as at the Date of Taking, the relevance of the Peel Regional Strategy continued to be recognised in SPP 1.2. They submitted that the Peel Regional Strategy acknowledged rapid urban growth in the Peel Region and recommended planning for the Rockingham/Mandurah/Pinjarra corridor, which took into account the urban development strategy for the Peel Region.[403] Counsel for the plaintiffs submitted that the Peel Regional Strategy reinforced the expansion patterns for the Peel Region eastward along the spine of Pinjarra Road, where the Kelliher Land is located.[404]
304 Two observations can be made about those submissions. First, while counsel's submissions focused on part of the content of the Peel Regional Strategy, I find that the hypothetical Spencer parties would be aware of the entirety of the Peel Regional Strategy, including the Land Use Plan, which identified the Kelliher Land as 'Predominantly Grazing and Cropping' (and not future urban).[405] Secondly, I find that the hypothetical Spencer parties would be aware that there was nothing in the Peel Regional Strategy to indicate that the Kelliher land was identified as an area likely to be under pressure for development either in 1994 or in the short to medium term future thereafter.
305 The hypothetical Spencer parties can be taken to have appreciated that as at the Date of Taking, the WAPC and local government decision makers were still required to take into account the Peel Regional Strategy (because it was listed as one of the regional strategies forming part of the State Planning Framework).[406] The hypothetical Spencer parties can also be taken to be aware that the Peel Regional Strategy remained relevant in so far as it identified a corridor between Mandurah and Pinjarra for structure planning purposes.[407]
306 However, the hypothetical Spencer parties can also be taken to be aware that the identification of that planning corridor was not indicative of the likely timeframe for development in that corridor. In addition, in so far as the Kelliher Land was concerned, I find that the hypothetical Spencer parties would be aware that the general planning strategy identified in the Peel Regional Strategy had been effectively superseded by the more specific planning strategy for that area which was set out in the IPRSP.[408] (That this was so was recognised in the report which accompanied the IPRSP,[409] which noted that the purposes of the IPRSP included to 'give effect to the aims, objectives and action statements of the Peel Regional Strategy 1994 where these can be interpreted into physical land use arrangements'[410] and to 'interpret and apply' the strategic goals and objectives in the Peel Regional Strategy 'to the actual physical arrangement of land uses on the ground'[411] within the Inner Peel Region.[412] (The Inner Peel Region comprised the City of Mandurah and that portion of the Shire of Murray which was on the Swan Coastal Plain.)
307 I find that the hypothetical Spencer parties would be aware of the content of the IPRSP,[413] which was published in December 1997, and the content of the draft of the IPRSP which was released for public comment in July 1996 (the draft IPRSP).[414] (Those documents must be read together because the data, methodology and much of the discussion underpinning the IPRSP were set out in the draft IPRSP and not reproduced in full (or in some cases at all) in the IPRSP itself.[415] In so far as the draft IPRSP dealt with planning for the area comprising the Kelliher land, there were no significant modifications to those proposals in the IPRSP itself.[416])
308 The hypothetical Spencer parties would be aware that regional structure plans such as the IPRSP are 'primarily used by State and local government authorities as the basis for long-term planning and budgeting for the provision of infrastructure required to support future urban development'.[417]
309 The IPRSP did so by defining the 'extent and location of future urban land' and the 'arrangement and location of major activity centres, including employment areas; areas zoned for industry; major commercial hierarchy; major social institutions such as universities, regional hospitals and regional recreation facilities'.[418]
310 The functions of the IPRSP were to 'provide the basis for formulating and promulgating a regional planning scheme for the Peel Region', to 'provide the basis for statutory planning and development control ... [and thus to] provide a guide for further statutory amendments and reviews to the City of Mandurah Town Planning Scheme [and] the Shire of Murray Town Planning Scheme ... [and to] assist in the assessment of development and subdivision applications', to 'provide a basis for servicing and transport authorities to plan their future requirements' and to 'provide a basis for staging development'.[419]
311 The time frame for the planning framework outlined in the IPRSP (sometimes referred to as its planning horizon) was 30 to 50 years into the future.[420]
312 The 'urban form' described in the IPRSP was described as a
coastal urban corridor ... with discrete 'urban villages' developed along the Mandurah-Pinjarra axis and with Point Grey as a separate tourist resort. Amarillo would comprise a separate urban area, linked to Perth, Rockingham and Mandurah.'[421]
314 The content of the IPRSP demonstrates the significance of projected population growth in the identification of an adequate supply of urban land over the course of the planning horizon of the IPRSP.
315 The IPRSP relied on an estimated population potential for the region of about 255,000, including 55,000 people in the Shire of Murray alone.[424] Importantly, it was recognised that this was 'unlikely to be achieved within current forecasting periods, but on current trends could occur within 40 to 50 years'.[425]
316 Considerable attention was given to population projections in the preparation of the IPRSP. A Working Paper compiled in 1995 by the Department for Urban Development (as it was known then), in the course of preparing the IPRSP, was devoted to population forecasts (the Working Paper).[426] The Working Paper noted that the rate of anticipated population growth was important for planning purposes, because an underestimation could result in shortfalls in the supply of land for housing, and of the infrastructure necessary to support the population, while an overestimation could result in an over-supply of urban land and infrastructure, and a consequent waste of resources[427] and could 'lead to speculative developments with the consequent inefficient provision of social and servicing infrastructure'.[428]
317 The Working Paper drew on two population forecasts: the 1992 South West Area Transit study (the SWAT study), and forecasts compiled by the Department for Urban Development in 1994 in the course of developing a State Strategy Plan (the DPUD study). The SWAT study forecast a population for the Shire of Murray of 33,000 by 2021, equating to an annual growth rate of 4.5% or 805 people per year. In contrast, the DPUD study forecast that the population of Murray would increase to 20,000 in 2021, equating to an annual growth rate of 2.8% or 375 people per year. The Working Paper examined the probabilities of these forecasts being achieved. The SWAT study was 'regarded as an upper optimistic scenario used for calculating the best patronage outcomes which could be expected for ... [a] proposed rapid transit system in the south west corridor'.[429] The DPUD study was regarded as 'optimistic but more realistic'. Accordingly, the Working Paper concluded that 'it would not be unreasonable to regard the SWAT forecast of ... 33,000 for Murray as the upper limit for planning to the year 2021 but to treat the DPUD forecasts of ... 20,000 for Murray as the planning target population.[430]
318 The population projections on which the IPRSP were ultimately based were set out in the draft IPRSP. The draft IPRSP noted that population projections for the Shires of Mandurah and Murray between 1996 and 2026 estimated that the population would approximately triple in size, to a total population of 150,000. In raw terms, however, the population for the Shire of Murray was forecast to increase from 9,300 in 1996 to 15,000 by 2011 and to 26,000 by 2021.[431] Significantly, the planning approach favoured in the draft IPRSP allowed for a much greater projected increase in the population of the Peel Region, to a total of 260,000 comprising about 140,000 in the City of Mandurah, about 65,000 in nodal urban developments between Mandurah and Pinjarra, and about 55,000 in Amarillo. The draft IPRSP recognised that
this population potential is well beyond any forecasting period currently being contemplated but on current trends could occur somewhere between the years 2041 and 2051. ...
The rationale for this option is that it is more in line with current developer, local authority and landowner expectations for the future development of the region.[432]
319 This optimistic population projection (and the planning proposals which flowed from it) was adopted in the draft IPRSP because it was thought to strike a 'pragmatic compromise' between an approach which adopted an estimate of the land which would be required to meet future needs which was potentially too conservative, and which would not meet the needs of future development, and on the other hand, an approach which involved an 'excessive over-provision of future urban land, making it difficult to determine the priorities for the provision of urban infrastructure'.[433]
320 Population projections within this expressly optimistic range continued to underlie the planning approach taken in the IPRSP itself.[434] I find that the hypothetical Spencer parties would be aware that the IPRSP built in a significant over-estimation of population growth for the purpose of identifying the quantity of land which should be earmarked for urban development over the course of the planning horizon of the IPRSP.
321 The urban or proposed urban land identified in the IPRSP comprised 2,062 ha in the Shire of Murray (catering for a projected population of 55,000 people). The IPRSP identified land proposed to be used for urban purposes as 'urban', and future urban Categories A1, A2 and B. An 'urban' zoning indicated that the land was existing developed land and land already zoned for urban where there were no identifiable constraints to the urbanisation of the land within the short to medium term (of five to 10 years). Land identified as 'future urban Category A1' was land 'not yet zoned for urban but assessed as having no constraints to urban development in the short to medium term, generally within five to 10 years'.[435] Land identified as 'future urban Category A2' was land 'assessed as having constraints to immediate urbanisation but which should become available after 10 years'.[436] And land identified as 'future urban Category B' referred to areas which 'may be suitable for urbanisation but which have identified constraints. These areas could become available for development in the longer term (up to 2041)'.[437]
322 I find that the hypothetical Spencer parties would be aware that the IPRSP did not identify the Kelliher land as falling within any of these urban, or future urban, categories, but rather identified the Kelliher land as being zoned 'rural'. In other words, the IPRSP did not contemplate that the Kelliher land would be identified as potential urban land within the 30 to 50year planning horizon of the IPRSP.
323 However, the IPRSP identified the Ravenswood Urban Village as urban, and the land on its eastern boundary as 'future urban Category B', representing a population potential of 10,480 within a total of 388 ha of land.[438]
324 I note also that the IPRSP identified Amarillo as 'Future urban Category B' land, with an estimated total urban area of 1,914 ha, to cater for a total potential urban population of almost 52,000 people.[439] The IPRSP noted that 'Amarillo is unrelated to the existing roads or transport hierarchy existing within the region. An entirely new transport system will be needed to serve the area'.[440]
325 The hypothetical Spencer parties can also be taken to be aware that as at the Date of Taking, the IPRSP was the subject of a review, which is discussed below.
326 I find that the hypothetical Spencer parties would be aware of the existence and terms of the PRS which was gazetted in October 2002.[441]
327 The PRS applied to the Peel Region which comprised all of the districts of the City of Mandurah, the Shire of Murray and the Shire of Waroona.[442] The purposes of the PRS included to provide for the zoning of land for living, working and rural land uses, and to identify and protect land having strategic importance for industrial and future urban use.[443]
328 The aims of the PRS included to promote the sustainable development of land taking into account relevant environmental, social and economic factors, and to provide for future urban purposes and prevent development which could prejudice the future urban development of urban land.[444]
329 Having regard to the terms of the PD Act, and to the terms of the PRS itself, I find that the hypothetical Spencer parties would be aware that the PRS prevailed over any town planning scheme which applied in the Peel Region, to the extent of any inconsistency.[445]
330 The PRS classified land into zones including for urban use (to provide for residential development and associated local employment, recreation and open space, and shopping and community facilities) and urban referred (land identified as suitable for future urban development but where there were planning, servicing and environmental requirements which needed to be addressed before urban development could take place).[446]
331 The plaintiffs submitted that although the PRS was prepared with the expectation that it would provide land supply for the next 10 to 15 years, as the Scheme was based on the IPRSP it required review to provide short, medium and long term supply for housing the Peel Region.[447]
332 There was no dispute between the parties that the Kelliher Land was zoned for rural use under the PRS, with the exception of the north-south strip of land which was the subject of the reservation for the proposed Highway. But for that reservation, the whole of the Kelliher Land would have been zoned rural under the PRS.[448]
333 All of the planning experts agreed, and I accept that the hypothetical Spencer parties would be aware, that as at the Date of Taking the PRS governed the zoning of the land at north Ravenswood.[449] The rural zoning of the land north of Old Mandurah Road under the PRS (which included the Kelliher land), prevented its urbanisation in the absence of an amendment of the PRS.[450]
334 I find that the hypothetical Spencer parties would be aware of the existence and content of the planning document known as Network City, which was released for public comment in September 2004,[451] and the key elements of which are discussed below.
335 Network City highlighted 'key elements of planning for the future of Perth, Mandurah and Murray'[452] which were intended to encapsulate planning objectives for those areas in the longer term (2004 - 2030). Network City noted the significant anticipated growth in population in Perth and Peel (although not specifically in Murray) in the years up to 2031,[453] and emphasised the need to manage urban growth to limit urban sprawl through the staging of development, with the aim of providing 60% of required dwellings in existing urban areas, and 40% in new growth areas.[454]
336 I find that the hypothetical Spencer parties would be aware of this emphasis in Network City on accommodating future population growth primarily by increasing the density of existing urban areas, and with less emphasis on opening up new urban development. In the Peel area, it was anticipated that this would equate to the distribution of 1,000 new dwellings in existing urban areas between 2002 and 2010, 13,000 new dwellings in existing urban areas between 2002 and 2020, and a total of 26,000 new dwellings in existing urban areas between 2002 and 2030, while only 6000 new dwellings in new growth areas were anticipated during that entire period.[455]
337 The hypothetical Spencer parties can also be taken to be aware that that urban growth was to be accommodated 'primarily within a Network City pattern, incorporating communities by developing a Network City'.[456] 'Network City' was a concept used to described a planning outcome for Perth, Peel and Murray which focused on locating growth and development in and around 'activity centres', connected by 'activity corridors', and in which the movement of people and goods were channelled along nearby 'transport corridors'.[457] The activity centres were to be 'the focus of intensified urban development'.[458]
338 I find that the hypothetical Spencer parties would be aware that the Kelliher land was identified as a 'rural and resource' area within the Network City Framework, and was not one of the areas identified for 'future communities'.[459]
339 The hypothetical Spencer parties can also be taken to be aware that the major 'activity centre' located nearest to the Kelliher land was proposed to be Mandurah, with lesser 'activity centres' at Ravenswood and Pinjarra, connected by an 'activity corridor' along Pinjarra Road.[460] The planning experts explained that the concept of an 'activity centre' in Network City envisaged the use of land for retail purposes, commercial activities, recreational activities and residential development, with the idea that a consolidation of the location of those activities, and a focus on employment in those locations, would result in less need for cars to travel between different locations for those activities, and a greater use of public transport.[461]
340 In so far as transport was concerned, the objectives of Network City relating to transport included to accommodate urban growth primarily within a Network City pattern, incorporating communities to create medium and high density urban villages to support viable public transport corridors, and to align transport systems and land use to 'optimise accessibility and amenity' by building higher density town centres around public transport nodes (especially railway stations)'.[462]
341 It was noted that in order to facilitate these planning objectives, various planning instruments, including the Peel Region Scheme and local government town planning schemes, would need to be amended in order to achieve the outcomes desired by Network City.[463]
342 It was also intended that Network City would be the subject of an SPP which would also confirm that it replaced a planning instrument known as Metroplan as the basis for planning policy in the Perth and Peel Regions.[464]
343 I find that the hypothetical Spencer parties would be aware that Network City was intended to signal a real change in the approach to planning for the Perth and Peel Regions, both in terms of ongoing engagement with the community in relation to long term planning strategy, and for its emphasis on growth management, so as to contain urban sprawl, facilitated by the concentration of growth in activity centres, and integration of transport infrastructure to allow for the movement of people, vehicles and freight between those centres.[465]
344 Given the currency of Network City as at the Date of Taking, I find that the hypothetical Spencer parties would be aware that the principles of Network City were likely to strongly influence the outcome of the planning reviews which were then underway including the review of the IPRSP and the Southern Sectors Review (which are discussed below).
345 The hypothetical Spencer parties can therefore be taken to have anticipated that the application of those principles would militate against any proposal to rezone the Kelliher land for urban use other than in the very long term future, given that the Kelliher Land was not designated 'future communities', that Ravenswood was the nearest 'activity centre' around which urban consolidation would be focused, and given that most of the Kelliher land (other than Lot 190) was a considerable distance from the activity corridor on Pinjarra Road.[466] Furthermore, I find that the hypothetical Spencer parties would be aware that the principles of Network City were more likely to support the urbanisation of other land nearer Ravenswood and Pinjarra Road (for example, the McKay land and the Emmanuel land) ahead of the Kelliher land.
346 I find that the hypothetical Spencer parties would be aware of the existence and content of TPS 4, which was published in the Government Gazette on 23 June 1989.[467]
347 The hypothetical Spencer parties can thus be taken to be aware that under TPS 4, all of the Kelliher land was zoned rural, save for the northsouth strip of the Kelliher Land identified as the subject of a reservation for the proposed Highway. The planning experts agreed that but for the Highway reservation, all of the Kelliher Land would have been zoned rural under TPS 4.[468]
348 I find that the hypothetical Spencer parties would be aware of the existence of the Shire of Murray's Local Rural Strategy, which was published in July 1994. This document divided the Shire into a number of different precincts and set out planning objectives and development guidelines for those precincts, identifying areas which were potentially suitable for various forms of rural residential development and horticulture.[469] The Kelliher land was located in Planning Precinct No 7 (Ravenswood) in this document. I find that the hypothetical Spencer parties would be aware that the Kelliher land was not identified for future urban development potential, nor for special residential development, in the Local Rural Strategy.[470]
349 However, I find that the hypothetical Spencer parties would be aware that the age of the Local Rural Strategy, and its focus on rural development, meant that it was of little relevance in ascertaining the prospects of the future urban development of the Kelliher Land as at the Date of Taking.
350 The hypothetical Spencer parties can also be taken to be aware of the existence of the Furnissdale Structure Plan, the final report of which was published in November 2003. The Furnissdale Structure Plan was prepared after the Shire of Murray commissioned the preparation of a Structure Plan for the Furnissdale area between the Serpentine River and Tonkin Drive, as a result of the identification of that area in statutory planning documents, particularly the IPRSP, as suitable for urban development.[471] (The IPRSP had envisaged an urban village in the Furnissdale area which would accommodate just over 10,000 people in an area of 385 ha.[472])
351 On 13 August 2002, the WAPC resolved to advise the Shire of Murray that it would be prepared to adopt the Furnissdale Structure Plan as a guide to future development of the area (as provided for in the IPRSP).[473]
352 The Furnissdale Structure Plan canvassed a range of approaches for the development of the Furnissdale area, ranging from a 'maintain the status quo' approach (namely to maintain, with minimal change, the rural character of the area, with minimal expansion of the Furnissdale townsite) to a full-scale urban development. None were found to be entirely suited to the Furnissdale area at the time of the preparation of the Structure Plan. Accordingly, the Structure Plan provided for the retention of the predominantly rural character of the area, while allowing for limited subdivision associated with an expanded Furnissdale townsite, to form a rural village and to include a retirement community.[474]
353 In August 2005 the Council of the Shire resolved to adopt a new town planning scheme (the draft TPS 5), together with a new local planning strategy (the draft LPS).
354 The draft TPS 5 and the draft LPS were then forwarded to the WAPC for the purpose of obtaining the consent of the Minister for Planning to advertise them.[475] The documents were not in fact finalised and forwarded to the WAPC (via the DPI) until late November 2005.[476] As at the Date of Taking, neither the draft TPS 5 nor the draft LPS had been advertised, or received approval from the WAPC.
355 In 2005, when the draft TPS 5 was adopted by the Council of the Shire of Murray, all of the Kelliher Land remained designated as rural.[477]
356 I find that the hypothetical Spencer parties would be aware of the content of the draft LPS, of amendments made to the draft LPS by the Shire, and of the circumstances in which those amendments came to be made.
357 The draft LPS comprised text, explaining the strategy for land use in the Shire, and a land use plan which illustrated the designation of land within the Shire for particular purposes (urban, rural and so on).
358 In September 2005, amendments were made to the plan attached to the draft LPS to change the proposed zoning of certain land.[478] Those amendments involved significant changes to the proposed zoning of the Kelliher land: the Kelliher land north of Rogers Road (Lots 206 - 209) was to remain zoned 'rural', but the Kelliher land south of Rogers Road, with the exception of Lot 190, (that is, Lots 202 - 205) was proposed to be zoned 'urban'. Lot 190 was proposed to be largely zoned for Public Purposes, save for a portion of Lot 190 adjacent to Old Mandurah Road, which was to be zoned for Commercial use.[479]
359 The draft LPS was further amended by the Shire of Murray in June 2006, when the Council of the Shire resolved to identify for urban use a considerable volume of rural land located north of Pinjarra Road and Old Mandurah Road, including all of the Kelliher land located east of the proposed Highway which had not already been identified in the draft LPS for future urban development, together with the Emmanuel land.
360 Maps depicting the proposed urban land included in the land use plan attached to the draft LPS in September 2005 and June 2006 are included in Appendix 2 to these reasons.
361 I find that the hypothetical Spencer parties would be aware that in so far as the amended land use plan attached to the draft LPS identified the Kelliher Land for future urban use, it was inconsistent with the IPRSP, and with the PRS, and that the draft LPS could not be approved absent an amendment to the PRS.
362 In my view, the hypothetical Spencer parties would be aware of the following aspects of the content of the draft LPS which would have undermined its relevance, and persuasive force, in any consideration of whether the land at north Ravenswood (including the Kelliher land) should be designated for urban use in the IPRSP and the PRS.
363 First, the draft LPS was internally inconsistent as between the text of the draft LPS and the land use plan (as amended) which was attached to it. The draft LPS noted that one of its 'key objectives' was the 'identification of urban expansion areas and future residential areas in distinct 'nodal' areas to avoid urban sprawl separated by green belt buffers of rural and semi-rural landholdings'.[480] The 'Residential Development Strategy' outlined in the draft LPS recognised:
the need for Murray to retain its semi-rural character with urban growth nodes separated by 'greenbelt' buffers in the form of natural waterways, semi-rural and rural landholdings and agricultural practices.
The proposed pattern of residential growth envisaged in the [draft LPS] takes into account community concerns regarding continued urban sprawl extending along the coastal strip from Rockingham to Mandurah. ... The urban form ... has been based upon that contained in the Inner Peel Region Structure Plan where urban townsite areas have distinctive and clear boundaries with edges formed by major roads, regional open space corridors or semi-rural buffers from the surrounding agricultural areas.
...
The Residential Strategy emphasizes the need for creation of 'nodal' settlement patterns with non-urban wedges to separate townsites and urban areas. ...
The integrity of the urban form of these villages should not be allowed to degenerate by ad hoc additions or extensions, by intrusion into the green belt rural areas so as to contain urban development into discrete nodes.
...
A new urban cell has been identified in the Ravenswood locality adjacent to the proposed Regional Recreation site and the future Peel Highway Deviation. This future urban node replaces the future urban area, which was identified for the Furnissdale locality in the Inner Peel Region Structure Plan.[481]
364 In other words, the urban node in proximity to the Kelliher Land was identified as the Ravenswood precinct, which included the Riverland Ramble development. The draft LPS noted that this development comprised:
388 ha of existing and potential urban land representing a population in the vicinity of 10,000 people in the Ravenswood locality. ...
A major regional recreation facility site has been identified in the Inner Peel Region Structure Plan to the east of Fiegert Road and adjoining the proposed Peel Highway deviation. Potential exists for an increased urban area to border this regional recreation facility and provide an increased urban catchment to cater for regional sporting and recreation needs.[482]
365 The 'principal objectives' for this Ravenswood precinct were summarised as being to:
provide opportunities for urban expansion associated with the Peel Highway Deviation and major activity node at Pinjarra Road junction. Allow for consolidation of service infrastructure corridor separated from lower density residential development between Old Mandurah Road and Murray River.'[483]
366 Other 'principal objectives' for the Ravenswood precinct were:
Provide opportunities for major urban expansion activity node associated with the Peel Highway Deviation and the proposed Regional Recreation site at junction with Pinjarra Road, east of Fiegert Road.
Provide opportunities for residential commercial and recreation development and low key tourism north of Ravenswood Townsite and Murray River. These development opportunities to be provided with minimal detriment to the environmental and landscape values of the precinct.'[484]
The development guidelines for the Ravenswood precinct included to 'support the development of land to urban residential densities in the immediate vicinity of Ravenswood.[485] (emphasis added)
367 Commercial development objectives for urban nodes within the Shire were also canvassed. In relation to Ravenswood, the draft LPS referred to:
a major new district shopping centre in the Riverland Ramble subdivision proposed on the corner of Pinjarra Road and Old Mandurah Road. The location of this new site should also recognise that additional centres will be required on land north of Old Mandurah Road in the very long term.[486] (emphasis added)
368 In short, the text of the draft LPS proposed a concentration of development on urban nodes, rather than on continued urban sprawl. In so far as the land at Ravenswood and north Ravenswood was concerned, that urban node was intended to be the Ravenswood precinct, extending to land in the immediate vicinity of the proposed RRF.
369 In contrast, the amended land use plan identified a vast tract of rural land from Old Mandurah Road to north of Rogers Road, for urban development, without any concentration of that proposed urbanisation around a particular urban node.
370 Secondly, the draft LPS noted that the IPRSP had been used as the basis for land planning and land use distribution within the new Scheme (that is, draft TPS 5).[487] In contrast, in so far as the amended land use plan identified the Kelliher Land for future urban zoning, it was inconsistent with the IPRSP, and with the PRS.
371 Thirdly, the draft LPS was clearly influenced by population projections for the Shire of Murray, which were expressly referred to in clause 3.2 of the draft LPS. The draft LPS noted that the Shire's population had experienced steady growth. However, while the average intercensal growth in population for the Shire in the fiveyear period from 1996 to 2001 was said to be 16.9%, the actual population growth was a mere 1,575 people in that fiveyear period.[488] Furthermore, the draft LPS referred to projected population growth in the Shire. Those projections were said to suggest that the population of the Shire would increase to 31,000 or 38,000 by 2026 and to 60,000 or 75,000 by 2041, which was the basis for the conclusion that:
significant rate of growth means that substantial residential land needs to be appropriately zoned to satisfy current and projected demands. In addition, sufficient future urban land needs to be identified to accommodate the ultimate population.[489]
372 However, the population forecasts relied upon were considerably out of step with the population forecasts for the Shire which were set out in WA Tomorrow (and which are discussed below).
373 I find that the hypothetical Spencer parties would be aware of the circumstances in which the land use plan attached to the draft LPS was amended, in September 2005 and again in June 2006. In my view, knowledge of those circumstances would serve to confirm in the mind of the hypothetical Spencer parties that the draft LPS was unlikely to be given any significant weight in the review of the IPRSP, or in the Southern Sectors Review.
374 The hypothetical Spencer parties would form that view having regard to the evidence which suggested that the amendments to the land use plan made by the Council came about primarily in response to requests by landowners in the north Ravenswood area, rather than through consideration of principles of orderly and proper planning.
375 Evidence as to the amendment of the draft LPS was given by Mr Selby, who was the Manager for Planning, and later the Director for Planning, at the Shire of Murray in 2005 and 2006. Mr Selby was the officer within the Shire responsible for progressing the draft TPS 5 and the draft LPS, and who prepared the amendments to the land use plan attached to the draft LPS.[490] Mr Selby's evidence was that the completion of the draft LPS was the culmination of many years of work within the Shire of Murray.[491] While that may have been the case in respect of the text of the draft LPS, the amendment of the land use plan attached to the draft LPS does not appear to have been the result of such lengthy consideration. Mr Selby's evidence was that he had concluded that
the focus of urban development should occur in the Mandurah to Pinjarra corridor as this was the most logical area that could accommodate urban growth for a number of reasons, including the fact that the corridor provided the relevant infrastructure and a main transport route being Pinjarra Road.[492]
376 Mr Selby's evidence was that he reached this view because the land north of Pinjarra Road was an area that was capable of being serviced, had not been identified as having environmental constraints which would preclude urban development, the land at the junction of Old Mandurah Road and Pinjarra Road had been identified for a district commercial centre, and in view of Network City and the fact that Pinjarra Road was on an activity corridor, urban development was anticipated to radiate from the intersection of Old Mandurah Road and Pinjarra Road to the north and east.[493]
377 Mr Selby's view was that the land at north Ravenswood, including the Kelliher land and the Emmanuel land, was ideal for urban development radiating north from Pinjarra Road. He considered that the area bounded by Pinjarra Road, Old Mandurah Road and Patterson Road and down Fiegert Road represented the logical area of growth to the east of Mandurah because it provided access to Mandurah and to the employment areas nearby and the industrial area in Pinjarra.[494] Mr Selby's evidence was that he had formed the view that the land north of Pinjarra Road 'was needed to ensure continued supply of urban land in the Peel region in the short to medium term and was the most logical location for where land would be developed'.[495]
378 However, in cross examination, Mr Selby accepted that in reaching that view he had not undertaken any detailed survey of population projections akin to those undertaken by the DPI in WA Tomorrow.[496] Mr Selby's evidence did not satisfactorily explain why such a substantial area of land, capable of sustaining thousands of residential lots, was thought to be required for urban use, in the context of a local planning strategy which would have a likely period of operation of about 15 years.
379 One possible alternative explanation for the dramatic about face in the Shire's view of the zoning of the land at north Ravenswood appears to be the Shire's desire to ensure that the RRF was developed on the McKay land. In his evidence, Mr Selby acknowledged that the proposed urban zoning of lots surrounding the proposed RRF reflected a desire on the part of the Shire to ensure the delivery of the RRF within a reasonable timeframe by bolstering urban development nearby.[497] However, even that consideration does not explain why such a significant area of land some considerable distance from the RRF land was identified for urban use in the amended land use map attached to the draft LPS.
380 A more compelling explanation for the amendments made to the land use plan can be discerned from the Minutes of the meeting of the Planning and Development Services Committee of the Council of the Shire of Murray on 20 June 2006 (the PDS Committee Minutes).[498] Those Minutes disclosed that the PDS Committee resolved to recommend to the Council that it modify the draft LPS by changing the designation of certain land from 'farmlet' or 'rural residential' to 'urban'. The land in question comprised Lots 206 209 Rogers Road (part of the Kelliher land), Lot 230 Paterson Road (also part of the Kelliher land), Lots 210 213 and 225 Fiegert Road Nambeelup (the Mannion land), Lots 6 and 10 12 Old Mandurah Road (the Emmanuel land) and Lots 21 and 22 Paterson Road (owned by other landholders).[499]
381 The only documents referred to in the PDS Committee Minutes under the heading 'Statutory Environment' were the PD Act and the draft TPS 5, although the PDS Committee Minutes did make a brief mention of Network City. Furthermore, the 'Research Methodology' for the proposed change in the zoning of the land was described in the Minutes as 'Meeting with proponents. Examination of LPS.'[500]
382 The PDS Committee Minutes contained the following explanation for the proposed amendment of the land use map attached to the draft LPS:
Council, in 2005, adopted the [draft LPS] which is currently with the [WAPC] for consent to advertise. A request has been received from the three major landowners in this area to modify the LPS so that an urban designation appears for the area in question, not the different designations that are currently shown on the LPS. ...
... The land is owned by Mannions, Kellihers and Emmanuels and is a total of approximately 1550ha in area. The land is currently used for broadacre agricultural purposes. ...
The landowners in the area wish to advance development for options for urban purposes and hence will require the LPS to be modified, to facilitate this development.
The landowners' representatives addressed Council at the May 2006 round of meetings.[501]
383 The PDS Committee Minutes thus do not reflect a detailed or considered analysis of the existing statutory planning framework, nor of the application of orderly and proper planning principles. Those Minutes disclose very little discussion or analysis of the proposed urban designation of the land at north Ravenswood, within the context of the existing statutory planning framework, or any analysis of projected population growth having regard to available urban land in the Shire. Given that the Shire had originally been content for the Kelliher land to be designated 'rural' in the draft LPS, and subsequently amended the land use plan attached to the draft LPS to designate all of that land for urban use, and in the absence of the identification of any new factor justifying or explaining that proposed change, apart from a request from the landowners in question, the compelling inference is that the proposed change in designation of the land in question was largely (if not entirely) attributable to the request made by the landowners in question.
384 Mr Selby acknowledged that the amendment made to the map annexed to the draft LPS followed the receipt of a request by the three major landowners (that is, the Kellihers, the Emmanuels and the Mannions) to modify the local planning strategy.[502] His evidence was that
there was ongoing conversations with the landowners in that area ... that then the best and easiest way to present it to council was the fact that the three landowners put their case together and ultimately, as part of that, I suggested that the landowners prepare a concept structure plan to indicate how that area may be developed in time and, ultimately, that led to the presentation to the Shire of Murray with myself writing the report in 2006 to be considered by council.[503]
385 Mr Selby's evidence was that although he was of the view that the land at north Ravenswood should be shown as urban in the draft LPS map, by relying on the proposal from the landowners, he was able to show the Council that there was a viable proposal to develop the area.[504] It thus appears that in the absence of some evidence of the existence of demand for more urban land, Mr Selby appreciated that the designation of the land at north Ravenswood for urban use could not be justified.
386 The extent of the efforts made by landowners in north Ravenswood to secure the urban designation of their land under the draft LPS was apparent from the evidence given by Mr Kerr. His evidence was that in 2003 the Kellihers appointed his firm, Masterplan Consultants, to take action to progress the urban zoning and development of the Kelliher land holding. As early as December 2003, Mr Kerr met with Mr Flugge (who was then the Director of Planning and Development within the Shire of Murray) to discuss the future development potential of the Kelliher landholding. Mr Kerr's evidence was that the preliminary indication given by officers of the Shire was that they would support consideration of the urban development of the Kelliher land.[505]
387 Mr Kerr continued to liaise with representatives of the Shire and in August 2005, he spoke with Mr Selby 'who confirmed consideration within the draft LPS of at least a portion of the Kelliher land holding for urban purposes'.[506]
388 Mr Kerr's evidence was that, in August 2005, the Kellihers and the owners of adjoining land met to
discuss the implications of the draft LPS and working cooperatively to progress its initiatives. The land owners agreed to cooperate to progress the relevant district structure planning exercises required to progress the urban initiatives identified as part of the LPS with a joint landowner meeting with the Shire to be organised.[507]
389 A further meeting was held between the joint landowners in September 2005 to discuss progress on a range of planning initiatives including the draft LPS and the review of the IPRSP. Mr Kerr's evidence was that the landowners committed to jointly progress the coordinated planning of their joint land holdings in response to these planning initiatives.[508]
390 Mr Kerr met with officers of the Shire of Murray in April 2006 to discuss 'an ongoing coordinated approach by landowners in the vicinity of the Ravenswood node.'[509] He also noted that in May 2006:
the joint Ravenswood landowners group made a presentation to the Council of the Shire of Murray re the landowner vision and objectives for the Ravenswood north area as part of the landowners' engagement with the council to progress planning for the Ravenswood node.[510]
391 Mr Kerr's evidence thus clearly demonstrated that the Kellihers and other landowners in the north Ravenswood area had lobbied the Shire of Murray to seek amendments to the zoning of their land to permit its future urban development.
392 In my view, having regard to the evidence outlined above, the fully informed hypothetical Spencer parties would have reached the conclusion that the primary impetus for the amendment of the land use plan in the draft LPS, to designate the land at north Ravenswood for urban use, lay in the requests by landowners in the area to do so. Securing the urban development of land in the vicinity of the RRF also appears to have been pursued in order to secure the progress of the RRF itself. Despite Mr Selby's attempts to justify the amendments to the land use plan on the basis of orderly and proper planning considerations, the evidence does not support the conclusion that considerations of that kind were a significant factor in the Council's decision to pursue the urban zoning of such a large area of land at north Ravenswood.
393 There was some suggestion in Mr Selby's evidence that he had been in regular contact with officers of the DPI, particularly Mr Bulstrode, in relation to the draft LPS, and Mr Bulstrode appeared sympathetic to the Shire's desire to see the land at north Ravenswood rezoned for urban use. Mr Selby recalled a meeting in August 2005 at which Mr Bulstrode 'supported the focus of new urban development to be in the area North of Pinjarra Road' and bounded by Pinjarra Road, Old Mandurah Road, Patterson Road, and Fiegert Road.[511] Mr Selby also noted that 'as a result of my conversations with the Department of Planning and Infrastructure staff, which included Mr Cameron Bulstrode, I was never informed not to spend my, or the Shire's, time on developing the [LPS] with [a] focus on urban development between Mandurah and Pinjarra'.[512]
394 I have not given any weight to this evidence. It was vague, and did not constitute evidence of any indication by, or on behalf of, the WAPC, that it would support the Shire's desire that the land at north Ravenswood be zoned for urban use. Furthermore, the approach taken by the DPI following its receipt of the draft TPS 5 and the draft LPS in November 2005, confirmed that those documents would be considered in the usual way. The DPI proceeded to consult with relevant government agencies on the content of the draft TPS 5 and the draft LPS, with a view to providing advice to the Minister as to whether consent to advertise the draft TPS 5 should be given to the Council of the Shire of Murray.[513]
395 The evidence in relation to that consultation process suggests that irrespective of the progress of other planning reviews (such as the review of the IPRSP and the Southern Sectors Review), a decision as to whether approval should be given to the draft TPS 5 and the LPS was likely to take some time. That was because consultations with other agencies indicated that further consideration of the environmental impact of the proposed changes was necessary. Amongst other things, the DPI recommended that both the draft TPS 5 and the draft LPS be referred to the Environmental Protection Authority for its comments given the potential environmental impact of the proposed land use on the Peel Harvey estuarine system.[514]
396 In any event, irrespective of Mr Selby's understanding, the evidence demonstrated that it was clearly understood - both by officers of the DPI and the WAPC, and by the Shire's representatives - that a decision about the draft TPS 5 and the draft LPS was dependent upon the outcome of wider strategic planning reviews, and no decision could be made until those reviews were completed. By way of example, the PDS Committee minutes indicate that the PDS Committee clearly appreciated that all of the land at north Ravenswood was designated as rural (or was reserved for the RRF) under the PRS, that the PRS would need to be amended before any form of urban development could proceed, and that having regard to the progress of the review of the IPRSP (which was underway) it was 'unlikely that regional planning issues will be resolved in the next 12 months.'[515]
397 Similarly, in February 2006, the WAPC's Statutory Planning Committee was advised that in the draft LPS submitted by the Shire of Murray in November 2005, significant areas of 'urban' land had been identified north of Old Mandurah Road adjacent to its intersection with Pinjarra Road, but that "draft TPS 5 does not reflect these 'urban' and 'Commercial' areas'".[516] The Committee was advised that an assessment of the draft LPS and draft TPS 5 had been commenced by DPI but that 'the assessment of the draft LPS will have to be considered in light of the regional strategic planning work that will be undertaken for the review of the [IPRSP]'[517] and that as a result, it might be several months before a report was presented to the Committee on the proposed draft LPS.[518]
398 By May 2006, it was apparent that the regional strategic planning process was likely to take longer to complete than had initially been anticipated. In an email dated 19 May 2006 from Mr Bulstrode to Mr Eugene Ferraro (who at that stage was an officer in the DPI), Mr Bulstrode advised that:
we were mindful that at the time we received the documents the strategic planning exercise for the southern portion of the Metro region and the Peel sector was to be progressed at a priority. The outcomes of this strategic planning project may have provided some regional planning context to make informed planning assessment of Murray's proposed LPS.
It is now evident that after attending two strategic planning workshops and another workshop being proposed at the end of this year, that it will be at least another year before we have some reasonable strategic plan for the region to make some assessment of the major planning proposals in Murray's LPS.
...
Obviously Murray Shire Council will be upset about the situation with the proposed LPS ... . Although, it should be recognised that there are major issues with Council's proposed LPS, particularly as it proposes major new urban areas with very limited planning or environmental work.[519]
399 Finally, on 23 May 2006, Mr Bulstrode advised the Shire of Murray that the DPI had not undertaken a comprehensive analysis of the draft LPS as 'broader regional planning for the southern metropolitan and Peel regions is only in the early stages of review and is not sufficiently advanced to provide a basis upon which the LPS can be assessed'.[520]
400 Having regard to this evidence, as at the Date of Taking, I find that the hypothetical Spencer parties would be aware that consideration by the WAPC of the draft LPS would not take place in advance of the completion of the regional strategic planning reviews which were then underway (including what became known as the Southern Sectors Review). I discuss below the information available to the hypothetical Spencer parties as to the likely time frame for those reviews.
(e) The zoning of the Kelliher Land as at the Date of Taking
401 I find that the hypothetical Spencer parties would be aware that the Kelliher Land was zoned rural under the PRS, and under TPS 4, subject to the reservations for the Highway which I have mentioned above. (The planning experts also agreed that but for the Highway reservation, the land so reserved would have been zoned rural under both the PRS and TPS 4.[521])
402 Having regard to the evidence of the planning experts, the advice the hypothetical Spencer parties would have received as at the Date of Taking was that without the Highway, the Kelliher Land would have been restricted to rural use in accordance with its rural zoning under both TPS 4 and the PRS.[522]
403 Furthermore, having regard to the evidence of the planning experts, the advice the hypothetical Spencer parties would have received as at the Date of Taking was that had the draft TPS 5 (as it stood at that time) been approved, it too would have precluded the urbanisation of the Kelliher land.[523]
404 Having regard to the terms of the PD Act, I find that the hypothetical Spencer parties would be aware that a change in the zoning of the Kelliher Land to urban could not be brought about through the amendment of TPS 4, or of the Shire's LPS, in the absence of an amendment to the PRS to designate the Kelliher Land for urban development. Without such an amendment, the Shire's TPS, or its LPS, would be inconsistent with the PRS. In those circumstances, I find that the hypothetical Spencer parties would be aware that the WAPC would not support draft TPS 5 or the draft LPS in the absence of an amendment to the PRS.
PART 3: POPULATION GROWTH AND LAND SUPPLY (a) Population growth in the Shire of Murray
405 Mr Swasbrook gave evidence in relation to the collation of data by a research team within DPI and the publication of that data. His evidence was not challenged and I accept it.
406 Mr Swasbrook explained that the research team provided demographic advice and the analysis of statistics relating to the performance of the planning system, including land supply.[524]
407 Mr Swasbrook's evidence was that the research team within the DPI had the role of State demographer and was responsible for the production of population forecasts. As at the Date of Taking, the latest of those forecasts was WA Tomorrow, which was published by the WAPC in November 2005. Mr Swasbrook's evidence was that the WA Tomorrow analysis was based on the base population measure contained in the 2003 and 2004 estimated resident population figures published by the Australian Bureau of Statistics.[525]
408 Mr Swasbrook's evidence was that the estimated resident population statistics published in WA Tomorrow were 'used throughout the government to plan for the strategic delivery of government services which are heavily dependent on anticipating the future resident demography of locations to efficiently plan for the future deployment of resources, effort and attention'.[526] Mr Swasbrook noted that the projections aimed to be accurate over the longer term (25 years) forecasts,[527] and that 'the Department's projections are a very good mathematical estimate of the future based on a variety of assumptions'.[528]
409 I find that the hypothetical Spencer parties would be aware both of the fact that in November 2005, the WAPC published a report on population entitled WA Tomorrow,[529] and of the content of that report.
410 I find that the hypothetical Spencer parties would be aware that WA Tomorrow was significant because the population forecasts in that document were relied upon by the WAPC itself, and by government agencies, in planning for land use development and the provision of infrastructure at the regional and local level.[530]
411 The WA Tomorrow report estimated that the population in the Peel Region would be 82,800 by 2006, and would increase to 97,100 by 2011, to 112,100 by 2016 and to 127,300 by 2021.[531] However, I find that the hypothetical Spencer parties would be aware that the actual population increases estimated for the Shire of Murray were far more modest. The WA Tomorrow report estimated that the population of the Shire would be 12,400 by 2006, and would increase to 13,600 (an additional 1200 people) by 2011, to 16,800 (an additional 3200 people) by 2016 and to 22,000 (an additional 5,200 people) by 2021.[532]
412 The expert planning advice which the hypothetical Spencer parties would have been given was that the WA Tomorrow report was particularly significant for two reasons. First, the WA Tomorrow Report was relied upon by the WAPC to the exclusion of other population forecasts.[533] Secondly, the population projections in the WA Tomorrow report were used by the WAPC in assessing the demand for urban land, and the adequacy of the supply of land already zoned urban, for the purposes of determining whether additional land should be zoned for urban use.[534]
413 The hypothetical Spencer parties can also be taken to be aware of the existence and content of the Metropolitan Development Program for 2005/06 to 2009/10 (MDP Report), which was published by the WAPC in January 2006.[535]
414 The objective of the MDP Report was to provide information upon which key planning decisions - concerning future housing needs and the coordination of urban infrastructure - could be made, and thus to 'facilitate orderly and economic development through the timely provision of land, services and infrastructure'.[536] In order to achieve that objective, the MDP Report set out recent and proposed residential subdivision and development statistics, monitored residential growth, population growth and infrastructure development trends, and provided up to date data about the likely future development of the Perth and Peel regions.
415 The MDP Report included figures about projected population growth in the Peel Region, drawn from the WAPC's population data. Those figures indicated that the residential population of Mandurah was estimated to increase from 58,500 in 2004 to 78,400 in 2011. In contrast, the residential population of the Shire of Murray was estimated to be 11,900 in 2004, 12,400 in 2006 and 13,600 in 2011. Accordingly, I find that the hypothetical Spencer parties would be aware that although the MDP Report noted that between 2006 and 2011 the population of the Peel Region was anticipated to increase by 14,200 persons (in total) 'making it the fastest growing sector in the MDP region'[537] the actual (rather than percentage) population increase in the Shire of Murray was anticipated to be very modest indeed (less than 2000 people over that fiveyear period).
416 Mr Kerr's evidence was that other population projections were available as at the Date of Taking, additional to WA Tomorrow, including Australia On The Move, the Peel Economic Perspective Report and Peel Region Demographics. The plaintiffs relied on these and other documents which they contended were indicative of an acceptance that future planning in the Peel Region needed to accommodate what was perceived to be a rapidly increasing population in the region. I do not accept that that was so, having regard to Mr Swasbrook's evidence.
417 Mr Swasbrook observed that 'by quoting a "range" of "various" projections, Mr Kerr promotes an impression that there is a diversity of population forecast in expertise and opinion in the public realm'.[538] However, Mr Swasbrook's evidence was that the population projections contained in those alternative sources were either not reliable, not based on WA Government sources, or, when properly analysed, were not different from those set out in WA Tomorrow.[539]
418 Mr Swasbrook also deposed that the DPI had undertaken consultations with local government proponents of alternate forecasting models, but that the DPI
remain[ed] unpersuaded that the alternate forecasts are better or that the assumptions used in the [DPI's] model are not valid. At each of these consultations, all local government authorities agreed that the WA Tomorrow forecasts were reasonable within the bands of the confidence intervals presented.[540]
419 Mr Swasbrook's evidence left no doubt that WA Tomorrow was the source of population projections relied upon by the WAPC. I accept his evidence.
420 Nevertheless, for the sake of completeness, I have discussed other population forecasts relied upon by the plaintiffs below and have noted other reasons why, in my view, the hypothetical Spencer parties would give them no weight.
421 The plaintiffs relied upon the Minutes of a meeting of the PRPC on 16 July 2004, which recorded that in the context of discussion of the review of the PRS, the PRPC resolved:
to request that the Department for Planning and Infrastructure review the need for possible amendment of the Peel Region Scheme to accommodate the increasing population of the region, such review to include an examination of the priority that should be given to the project, its cost, and the funding requirements necessary for the 2005/06 financial year.[541]
422 The reference to the 'increasing population of the region' was in very general terms, pertained to the Peel Region as a whole, and was hardly definitive in so far as it acknowledged merely the need for a 'possible' amendment of the PRS. Consequently, in my view, the hypothetical Spencer parties would not give any significant weight to the Committee's reference to the need for a possible amendment of the PRS to accommodate the increasing population of the Region.
423 The plaintiffs also pointed to a report entitled Australia on the Move: Population Growth and Dwelling Demand 2001 - 2031 (Australia on the Move Report), written by Mr Bernard Salt, and commissioned by the Property Council of Australia.[542] The Australia on the Move Report identified Mandurah as a city where the demand for housing would increase between 2001 and the 2020s.[543] (The Report defined Mandurah as comprising the whole of the City of Mandurah and including all of the Shire of Murray, including the town of Pinjarra.) The Report noted that:
population growth across urban Mandurah (including Murray) peaked at 7.5 per cent per year in the five years to 1991 but has since scaled back to 5.4 percent in the five years to 2006. The trend forecast allows for the further diminution of this city's growth rate to 3 percent per year throughout the 2020s.[544]
424 The Australia on the Move Report estimated that the population of Mandurah (as defined) would increase by 4% between 2011 and 2016, by 3.5% between 2016 and 2021, and by 3% between 2021 and 2026.[545] In absolute population terms, this equated to an estimated additional 3,823 people in urban Mandurah between 2006 and 2011, an additional 4,192 people between 2011 and 2016, and an additional 4,453 people between 2021 and 2026.[546]
425 In my view, quite apart from their appreciation of the WAPC's reliance on WA Tomorrow, the hypothetical Spencer parties would not give the Australia on the Move Report any significant weight in assessing the prospects of urban development of the Kelliher land, for two reasons. First, the estimated population referred to in the Report, in both percentage and absolute terms, did not distinguish between the Shire of Murray and the City of Mandurah. In contrast, I find that the hypothetical Spencer parties would be aware that other sources of population information in relation to the region (particularly WA Tomorrow) suggest that different rates of population increases could be expected in those areas.
426 Secondly, the Australia on the Move Report was commissioned by the Property Council of Australia, which is an advocacy body on behalf of developers and property investors. The Council was described in the Report as 'the chief advocate for the property investment and development sector'. The hypothetical Spencer parties can be taken to appreciate that that Report was unlikely to adopt a conservative estimate of population growth, because the existence of a perceived (if not actual) need for land releases would be to the advantage of developers seeking new opportunities.
427 The plaintiffs also relied on a report entitled Positive Ageing in Murray, prepared in June 2006 (the Positive Ageing Report). The Positive Ageing Report concluded that
current projections indicate that the Shire of Murray will experience some of the rapid growth that is being experienced by other adjacent local government areas in the Peel and South West region. ... Given current projections, the Shire is expected to have a relatively steep growth from 2012 onwards, which can be attributed to inclusion of population starting to grow at the Amarillo development.[547]
428 The Positive Ageing Report also noted that the WA Tomorrow projections were based on data drawn from the 2001 census. The Positive Ageing Report suggested that:
projections based on the 2001 census statistics are viewed within the context in which they were generated. In the last few years, the planning context in the Shire has changed. The demand for housing in the Peel region has rapidly accelerated. There have been several major new developments planning within the Shire that have not been included in current projections. These developments alone could be expected to draw a population of well over 30,000 people into the Shire by 2020.[548]
429 The 'new developments' referred to included Ravenswood and its surrounds, Amarillo, and also included the RRF together with a 'proposal for a large residential development of 12,000 lots in this area which is north of the Old Mandurah Road and is bounded by the proposed Perth Bunbury Highway and Paterson Road'.[549] (The latter appears to be a reference to the proposed development of the Kelliher land.)
430 Taking these (and other) developments into account, the Positive Ageing Report concluded that the more likely population projection for the Shire of Murray would be that approaching 50,000 by 2021. The Positive Ageing Report noted that this was a 'startling' result in that it was more than double, and was almost triple, the 'formal projections' (that is, those in WA Tomorrow).[550]
431 In my view, quite apart from their appreciation of the WAPC's reliance on WA Tomorrow, the hypothetical Spencer parties would give no weight to the population projections in the Positive Ageing Report for two reasons. First, those projections depended, in part, on a substantial increase in the population as a result of the Amarillo development. But that was a projected population increase for an area quite discrete from the balance of the Peel Region and the Shire of Murray in particular. An increase in the projected population in that area could not be relied upon to support a projected increase of the same magnitude in other parts of the Shire of Murray.
432 Secondly, the Positive Ageing Report clearly relied on the impact of developments which had not been given approval, including the rezoning to urban of the Kelliher land in particular.
433 The plaintiffs also pointed to a Report entitled Housing Industry Projections 2005/06 and 2006/07 prepared by the Western Australian Housing Industry Forecasting Group in May 2006.[551] That Report indicated that population growth was expected to accelerate in Western Australia in 2006/2007, having regard to the growth in the Western Australian economy, the economic outlook, and statistics in relation to population growth including overseas migration and natural population growth.[552] The report noted that the South West of Western Australia had increased its population by a significant 8,335 people (or 3.8%) in 2004/05.[553]
434 In my view, the hypothetical Spencer parties would not place any weight on this report, given the generality of the information relied upon, none of which was based on an analysis of the position in relation to the Shire of Murray.
435 Finally, the plaintiffs also relied upon a report entitled Peel Economic Perspective prepared by the Peel Development Commission and the Department of Local Government and Regional Development in July 2006.[554] That Report noted that the DPI had forecast that the Shire of Murray would play a much more prominent role in the future population growth of the Peel Region, as a result of the growth of the City of Mandurah and from the expansion of the Perth metropolitan area, 'resulting in urban population growth accelerating in these adjacent shires'.[555]
436 In my view the hypothetical Spencer parties would place little weight on this Report, given the generality of its observations in relation to the future population of the Shire of Murray.
437 The next issue for resolution is what the hypothetical Spencer parties can be taken to have known about the supply of urban-zoned land available for development in the Shire of Murray as at the Date of Taking, and what they would have concluded about the approach the WAPC was likely to take to the supply of land (as part of its consideration of whether the Kelliher land should be rezoned in the future).
438 Mr Saunders gave evidence as to the information available within the DPI in relation to the supply of urban zoned land. His evidence was that in August 2003, the WAPC published a discussion paper entitled 'Greater Perth Residential Land Balance Discussion Paper No 6', which Mr Saunders principally researched and wrote, in his capacity as a member of the geospatial analysis team in the DPI. The research in the discussion paper disclosed that, as at 2002, there were approximately 20,900 ha of undeveloped urban zoned land, 10,600 ha of partially developed land and 34,800 ha of fully developed urban zoned land (when measured at a net size level) in the Perth, Peel and Greater Bunbury regions.[556] The research in the discussion paper also contained an analysis of the sufficiency of the stock of residential/urban zoned land as at 2002. That research identified that there was sufficient zoned land for between 40,360 and 50,960 additional homes in the Peel region without the need for rezoning. Having regard to the WAPC's population and housing projections, it was estimated that, in 2031, there would be surplus land in the Peel region sufficient for a further 5,950 to 16,010 new homes without the need for further rezoning or a need for uptake on partially developed lots.[557] Mr Saunders' evidence was that the information within that discussion paper remained the Department's most recently published data covering the issue of zoned land supply within the Perth Metropolitan and Peel regions as at the Date of Taking.[558]
439 Mr Saunders also outlined the work undertaken by the geospatial analysis team within the DPI to assess the availability and sufficiency of land zoned for urban development (either zoned urban or urban deferred) in the Perth Metropolitan region, Peel region and Greater Bunbury region. Modelling which was available within the DPI prior to the Date of Taking revealed that in November 2005, a preliminary estimate was made that there were 4,417 undeveloped hectares of urban or urban deferred land in Mandurah and Murray. An enhancement of that modelling permitted a more refined estimate to be made, namely that as at February 2006, there were 3,750 undeveloped hectares of urban or urban deferred land in Mandurah and Murray, excluding nonresidential zones in local planning schemes.[559]
440 Insofar as the supply of land was concerned, the evidence of Mr Saunders was not challenged by the plaintiffs in crossexamination, nor was an expert called to contest Mr Saunder's evidence as to the supply of urban zoned land, including en globo land zoned for urban use, in the Peel region. I accept his evidence.
441 I find that the hypothetical Spencer parties would be aware that the WAPC published information in relation to the availability of lots for residential development, and of what that information revealed about the supply of residential land in the Shire of Murray as at the Date of Taking.
442 The WAPC published quarterly State Lot Activity Reports which recorded the number of residential lots for which approval was made, the number of lots in respect of which approval was pending, the number of residential lots for which preliminary approval was given, and the number of residential lots for which final approval was given.
443 Mr Swasbrook explained that the DPI's research team compiled the State Lot Activity Reports produced by the WAPC. Mr Swasbrook's evidence was that the purpose of the State Lot Activity Reports was 'to inform government and the public on the land supply situation as required under the [PD Act] and provides the key annual report performance indicators for both the [DPI] and the WAPC. The bulletin also acts as a workload indicator'.[560]
444 The State Lot Activity Report showed that in the Shire of Murray in the 2003-4 financial year, only 79 residential lots had received final approval, while in the 20045 financial year, 109 lots in the Shire of Murray received final approval.[561]
445 The published figures for the entire Peel Region, in the September 2005 quarter alone, revealed that 22 applications for approval were made (in respect of 704 proposed residential lots), 38 applications were pending (in respect of 1,723 residential lots), 43 preliminary approvals had been given (in respect of 912 residential lots) making a total to the end of that quarter of 228 current preliminary approvals (in respect of 6,846 residential lots).[562] However, only 23 final approvals (in respect of 532 residential lots) were given in Peel in the September 2005 quarter.[563] The same trend can be seen in the published figures for land in the Shire of Murray. In the September 2005 quarter, 282 lots were the subject of applications for approval, 299 lots were the subject of pending applications, 206 lots had been given preliminary approval in that quarter (making a total of 1,057 lots with preliminary approval in the Shire), but only 48 lots in the Shire of Murray received final approval.[564]
446 In the March 2006 quarter, in the entire Peel region, 32 applications for approval were made (in respect of 510 proposed residential lots), 47 applications were pending (in respect of 2,159 proposed residential lots), 28 preliminary approvals were given (in respect of 359 residential lots), making a total of 229 preliminary approvals (in respect of 6,551 residential lots) to that point in time, but only 34 final approvals were given in that quarter (in respect of 533 residential lots).[565] The same pattern was reflected in the figures for the Shire of Murray in the March 2006 quarter. Applications were received in respect of 51 residential lots, there were 849 applications pending, no lots received preliminary approval in that quarter, but there were 933 lots on hand with preliminary approval, and only 84 residential lots received final approval in that quarter.[566]
447 The MDP Report also contained data in relation to subdivision approvals. The MDP Report noted that in the period 2000 - 2001 to 2004 2005 there were, on average, 70 final lot approvals each year in the Shire of Murray, and there were 883 approved lots (that is, lots with conditional subdivision approval[567]) on hand (that is, accumulated[568]) in the Shire as at 30 June 2005.[569]
449 The MDP Report also contained information about building approvals in the Peel Region as a whole in the same period. In the period from 2000-2001 to 2004-2005, there were 7367 net building approvals, which the Report noted equated to 4.3 years' worth of short-term housing supply and 3.6 years' worth of medium term housing supply,[572] or in other words, amounted to a total of just under seven years' worth of housing supply on hand.
450 The conclusion reached in the MDP Report was that there was 'an ample short and medium-term housing supply available across the MDP region with about seven years' worth identified to date'.[573]
451 That finding was repeated in the foreword to the MDP Report by the then Minister for Planning, Ms MacTiernan MLA, who said:
A key finding of this year's MDP Report is that there exists an ample supply of new residential lots either approved or in the approval 'pipeline' of the statutory planning system.[574]
452 I find that the hypothetical Spencer parties would be aware of the information about land supply which was contained in the State Lot Activity Reports and the MDP Report, and which supported two conclusions. First, the published figures in the State Lot Activity Reports and in the MDP Report did not support the inference that there was an inadequate supply of land zoned for urban development (relative to the projected increases in population set out in WA Tomorrow). However, that published information indicated that there were a limited number of lots with final approval which were available within the Peel Region, and within the Shire of Murray in particular, at that point in time, and a significant volume of lots awaiting final approval. Secondly, the State Lot Activity Reports suggested that a bottleneck existed in the approvals process, at the point where applications were awaiting approval, and in relation to applications with preliminary approval which had not yet received final approval.
453 There was no dispute between the parties that in the months prior to the Date of Taking, land prices in the Peel Region had been rising, and media reports suggested that there was a public perception that there was a shortage of land for urban development.[575]
454 There was evidence that officers in the DPI considered that rising land prices were attributable to speculative land purchases by developers. By February 2006, officers in the DPI were so concerned about speculative land acquisitions that they urged the Minister for Planning and Infrastructure to issue a media release warning of the dangers of land speculation in the Peel Region east of the Peel-Harvey Estuary.[576] A briefing note prepared for the Minister by the Director General of the DPI, dated 3 February 2006, noted that:
the commitment and funding to construct the Peel Deviation (PerthBunbury Highway) together with the current very buoyant property market has seen a significant acquisition program by developers of large broadacre rural properties west of Pinjarra in close proximity to the Peel Deviation. ... This investment activity has in part been fuelled by a draft planning strategy by the Shire of Murray identifying large areas for urban development without any apparent scientific analysis of land capability, sustainability or regard to regional planning.
... [T]he Western Australian Planning Commission (WAPC) is concerned that recent speculative activity by major industry players in the area is such that the market should be cautioned. The land on the eastern side of the Peel-Harvey estuary and Serpentine River has significant environmental limitations ... .
...
The review of the Inner Peel Structure Plan could identify lands east of the Peel Harvey [estuary] as unsuitable for development and therefore developers speculating on rezoning will have made a poor decision and investment. It is important that speculators are reminded that rezoning and subdivision are not 'rights' or a fait accompli, and that rezoning and development will not be considered without a proper regional assessment of the suitability of the land for sustainable development, including environmental limitations, employment and infrastructure needs.[577]
455 The Minister proceeded to issue a press release in which she noted that the WAPC was 'alarmed about the increasing speculation in rural land in the region' and warned that investment schemes 'based solely on the prospects of rural land being rezoned and subdivided might be purely speculative'.[578] She stressed that 'new urban development would have to follow the Peel Region Scheme, the Metropolitan Region Scheme or the planned Greater Bunbury Region Scheme' which would 'be used to prevent sprawl and to avoid the loss of precious environmental assets'.[579]
456 I note that the Minister's press release did not pertain to the Kelliher land. (Mr Allen explained that the Minister's press release in fact pertained to land at Birchmont.[580]) Counsel for the defendant acknowledged that that was so.[581] Nevertheless, in my view, the hypothetical Spencer parties would see significance in the sentiment behind that press release. Notwithstanding speculative purchases by developers, the WAPC intended to continue to apply orderly and proper planning principles in determining whether rural land should be rezoned for urban use.
457 The hypothetical Spencer parties would be aware that concern about rising prices and the perceived shortage of land saw the Minister for Planning call a summit of land developers and officers of the DPI, in order to identify the cause of this apparent shortage of land for urban development.[582] The purpose of the Land Supply Summit was to explore an anomaly that had emerged in relation to the high number of lots with conditional approvals but the shortage of constructed and titled residential lots.[583] The Land Supply Summit was held on 7 June 2006.
458 At its meeting on 27 June 2006, the WAPC received a report on the Land Supply Summit. The WAPC noted that Ms Marion Thompson had been appointed as a 'Land Release Coordinator ('trouble shooter') to unblock bottlenecks in the various agencies in order to facilitate clearance of conditions'.[584]
459 Ms Thompson gave evidence as to her role as Land Release Coordinator, and as to the outcomes of the Land Supply Summit. Ms Thompson noted that the Land Supply Summit identified a number of bottlenecks in the approval process for residential lots, but that none of those bottlenecks included a shortage of zoned land.[585]
460 Ms Thompson noted that the State Lot Activity Bulletins produced by the WAPC showed that as at March 2006 there was a land bank of 44,235 residential lots with preliminary or conditional subdivision approval in the Perth Metropolitan and Peel sectors. While that figure had increased between September 2005 and March 2006, the number of residential lots constructed and given final subdivision approval in each quarter in the Perth Metropolitan and Peel regions had declined over the same period. Ms Thompson's evidence was that the priority given to her as Land Release Coordinator was
to focus on expediting the 40,000plus conditional residential subdivision approvals, including investigating why so many conditionally approved lots were inactive.
The zoning of more land was not communicated to me as a priority by the Minister at the time of land shortages in 2006/2007.[586]
461 Ms Thompson's evidence was that her primary tasks as Land Release Coordinator included reviewing clearance procedures and recommending potential changes to streamline and expedite efficient clearances of conditions on approved subdivisions, reviewing the approvals process to ensure that conditions being placed on subdivisions were relevant and achievable, identifying and removing agency 'bottlenecks' in the approvals process and marshalling and reporting to government on procedural changes which would streamline agency performance on approvals.[587]
462 Ms Thompson also noted that the fact than land was zoned for urban use did not necessarily mean that it would be developed. She explained that the WAPC had no power to compel the development of such land. Ms Thompson also noted that developers may choose to progressively develop land for a number of good reasons, including, for example, that market demands did not warrant the development of that land.[588]
463 Having regard to the population projections in WA Tomorrow, to the data in the State Lot Activity Bulletins and the MDP Report and to the evidence of Ms Thompson and of Mr Saunders as to the supply of land zoned 'urban' in Peel, there can be no doubt that as at the Date of Taking the hypothetical Spencer parties would have formed the view that there was not a shortage of en globo land zoned urban or urban deferred in the Peel region or in the Shire of Murray. Furthermore, the hypothetical Spencer parties would know that the WAPC was aware that the perceived shortage of available residential lots as at the Date of Taking was in fact the result of delays in final approval being obtained for conditionally approved lots. The hypothetical Spencer parties would appreciate that rezoning more rural land for urban use could not have any impact on those delays.
PART 4: OTHER MATTERS RELEVANT TO THE DEVELOPMENT OF THE KELLIHER LAND SUITABILITY FOR DEVELOPMENT, ENVIRONMENTAL CONSTRAINTS AND CONNECTION TO INFRASTRUCTURE (a) Environmental constraints on the development of the Kelliher land
464 Ms Brookes' evidence addressed whether there were environmental constraints on the development of the Kelliher land. Ms Brookes was asked to report on such areas as would be required to be set aside for the purposes of drainage of the Kelliher land, both with and without the Highway.[589] In order to do so, Ms Brookes developed two models, one with the Highway and one without the Highway, and ran simulations of storm events to predict the water flow entering and leaving the site in both the pre and postdevelopment scenarios.
465 Using a 100year average recurrence interval rainfall event model, Ms Brookes concluded that, without the Highway, approximately 87 ha of the Kelliher land would be inundated, thus permitting the potential development of 810 ha of land. In contrast, with the Highway, approximately 77 ha of land would be inundated with the result that 709 ha of the Kelliher land would be able to be developed. Ms Brookes found that 'in each of the model's development scenarios, 11% of the proposed development area is required to be given up for water management purposes and it is my opinion that the presence of the Highway has had a negligible effect on the land requirements for drainage'.[590]
466 Ms Brookes' evidence supports the finding that the Highway had a negligible effect on the drainage requirements applicable to the Kelliher land.
467 Also attached to Ms Brookes' report was a copy of a district water management strategy prepared by Ms Brookes on behalf of the Kellihers in June 2012. The purpose of the report appeared to be to demonstrate how key principles and strategies of applicable water management plans could be addressed in the course of planning and development of the Kelliher land.[591] Ms Brookes' report also attached a copy of a letter from the Department of Water which confirmed that the Department of Water had reviewed the district water management strategy prepared by Ms Brookes and that the Department was satisfied that the content of that strategy document was consistent with the requirements of SPP 2.9 (Water Resources and Better Urban Management, 2008).
468 The defendant did not contest the evidence of Ms Brookes and I accept her evidence.
469 Mr Bowyer conducted an analysis of the engineering requirements that would need to be taken into account for the development of the Kelliher land.
470 Mr Bowyer noted that land with a shallow water table, such as the Kelliher land, is capable of development, but specific strategies for the management of drainage were required. He noted that the shallow ground water level on the land was similar to many nearby developments such as Riverland Ramble, the Murray River Country Estate and Austin Cove. Mr Bowyer's evidence was that, whilst
it can be said that shallow ground water is a major engineering issue affecting the [Kelliher land] from a development perspective ... this does not mean, however, that the land is not capable of development, but simply that the costs of developing the land will be higher than the costs of development for land that does not have similar shallow ground water level.[592]
471 This aspect of Mr Bowyer's evidence was not contested, and I accept it.
472 The evidence of Ms Brookes and of Mr Bowyer supports a finding that, insofar as the Kelliher land was subject to environmental constraints pertaining to the need to manage storm water, ground water and waste water, those constraints could be overcome with proper planning strategies and so would not have precluded the rezoning of the Kelliher land for urban development.
473 However, there was no evidence to support the conclusion that the hypothetical Spencer parties, as at the Date of Taking, knew or could have known, that the environmental constraints on the development of the Kelliher Land were able to be managed or overcome and so did not preclude its development.
474 Accordingly, I find that, as at the Date of Taking, it was not known whether environmental constraints applicable to the Kelliher land would impede its development. Instead, the hypothetical Spencer parties can be taken to have been aware that before approval would be given for the urban development of the Kelliher land, it would be necessary to assess any environmental implications of that use, in accordance with the requirements of SPP 2.1 (see below).
(b) Provision of services and infrastructure to the Kelliher land for the purposes of urban development
475 In 2012, Mr Bowyer provided a report in which he considered whether the Kelliher land was capable of being provided with essential services such as water supply, sewerage, power, gas and communications.
476 Mr Bowyer's opinion in relation to water supply was that he anticipated that the water reticulation main in Pinjarra Road would be able to serve the initial development stages of the Kelliher land until more distribution mains were provided to serve the balance of the Kelliher land. His evidence was that an engineer would, in conjunction with the Water Corporation, inquire as to whether existing nearby water mains had some spare capacity to serve initial stages of the Kelliher land.[593]
477 Mr Bowyer also addressed the question whether the Kelliher land was capable of being provided with essential services including power, gas and communications. As at 2012, natural gas had not been connected to north Ravenswood.[594] As for power, his opinion was that the land could be served by means of progressive extensions and upgrading works, and in relation to communications, his view was that new facilities would be able to be provided. However, he noted that the Kelliher land was a very large parcel of land which would, in time, need major facilities to support it. However, his view was that infrastructure could be provided and funded within reasonable economic criteria.[595]
478 It was clear from the evidence of Mr Bowyer that servicing of the Kelliher land for its initial stages of development would depend on connections to existing nearby services, on a temporary basis. It was also apparent from Mr Bowyer's evidence that whether that could be done would depend on the outcome of inquiries which would need to be made by engineers responsible for the development of the Kelliher land, and service providers.
479 Accordingly, I find that the evidence supports the conclusion that the Kelliher land could be provided with water, power, gas and communications but there was no evidence to support the conclusion that this was known as at the Date of Taking, or that these services would be immediately available to the entirety of the Kelliher land as at the Date of Taking. What temporary connections to existing nearby services might be utilised would depend on inquiries, the outcome of which was not clear.
480 Mr Hiller was asked to provide his opinion on possible waste water and sewer connections to the Kelliher land. His evidence was that, although there was a waste water pressure main passing nearby to that land, a connection could not be made to that pipe because it was a pressure main. Mr Bowyer's evidence as to waste water was that the Kelliher land could be served by a series of waste water pumping stations connected to the existing waste water treatment plant, or to a proposed new water treatment plant in north Pinjarra.[596] Mr Bowyer appeared to disagree with Mr Hiller's view that it would not be possible to connect the Kelliher land to a sewer pressure main passing the McKay land. He noted that 'in some infrequent cases, a pressure main from another [waste water pumping station] is connected into or partway along the root of another pressure main'.[597] Mr Bowyer's evidence was that it would be necessary for an engineer in conjunction with the Water Corporation to 'explore the feasibility of making such a connection for pumped waste water arising from the first or initial stages of development of the land'.[598]
481 As for a sewer connection, Mr Hiller's evidence was that although a potential sewer connection existed in the Riverland Ramble estate, a connection from the Kelliher land to that point may not be feasible.[599]
482 Mr Bowyer agreed with Mr Hiller that a permanent sewer connection from the Kelliher land to Riverland Ramble Estate may not be feasible. However, in his view, an engineer would, in conjunction with the Water Corporation,
inquire as to whether some parts of the sewer reticulation network in Riverland Ramble and the [waste water pumping station] that serves it had some spare capacity to accept flows initially and temporarily from the Kelliher land.[600]
483 It is not possible to resolve this difference between the views of Mr Hiller and Mr Bowyer. In my view, it suffices to say that while Mr Bowyer's evidence suggests sewerage connections could be established, as at the Date of Taking it was uncertain as to how readily that could be done.
PART 5: THE REVIEW OF THE IPRSP, THE SOUTHERN SECTORS REVIEW, THE DEVELOPMENT OF AMARILLO AND THE RRF
484 In this section of my reasons, I deal with a number of inter-related questions relating to the review of the IPRSP, the proposal for a FPSP review, the Southern Sectors Review, the proposal to develop Amarillo and the RRF.
485 The plaintiffs' case is that the Southern Sectors Review and Amarillo were 'attributable to' the Highway, and thus should be disregarded for the purpose of assessing the highest and best use of the Kelliher land in the unaffected scenario (without the Highway). In order to determine whether that is so, it is necessary to make factual findings about how the Southern Sectors Review came about, within the surrounding factual context of the review of the IPRSP, and about how the development of Amarillo came to be proposed.
486 If the Southern Sectors Review and Amarillo are not to be disregarded in assessing the highest and best use of the Kelliher land in the unaffected scenario, it is then necessary to consider what information in relation to those matters would have been known to the hypothetical Spencer parties.
487 In addition, the defendant advanced an alternative case that even if the Highway had not proceeded, an alternative highway or major road network would have been developed between Perth and the Peel Region. It is necessary to make findings in relation to whether the evidence supported that conclusion, and if so, to consider what the implications of that alternative road network were for the prospects of the development of Amarillo, and for the Kelliher land, in the absence of the Highway.
488 It is also necessary to consider the factual foundation for the assessment of damages for injurious affection and betterment under s 241(7) of the LA Act. The plaintiffs' case was that in the real world (with the Highway), the effect of the Southern Sectors Review, and the planned development of Amarillo, was to delay the rezoning of the Kelliher land and that would adversely impact on the hypothetical Spencer parties' view of the highest and best use of that land as at the Date of Taking, and on its value. It is therefore necessary to determine whether Amarillo and the Southern Sectors Review were caused by the carrying out of the Highway, or the proposal to do so. If not, any effect those developments may have had on the value of the Kelliher land will not fall to be assessed as injurious affection.
489 Finally, the defendant advanced an argument that the RRF was caused by the carrying out of the Highway, or the proposal to do so, and thus that the impact of the RRF on the highest and best use of the Kelliher land, and any consequent increase in the value of that land, should be taken into account as betterment in assessing compensation under s 241(7)(b).
490 Accordingly, in this section of my reasons, I deal with the following matters:
(a) The parties' cases in relation to the development of Amarillo, the proposal for a FPSP review, and the Southern Sectors Review;
(b) Findings of fact in relation to the acquisition of Amarillo, and proposals to develop it, the review of the IPRSP, the FPSP review, and the Southern Sectors Review;
(c) Can it be said that the proposed development of Amarillo was 'attributable to' the Highway, so that it should be disregarded for the purposes of considering the highest and best use of the Kelliher land in the unaffected scenario (without the Highway)?;
(d) Can it be said that the proposed development of Amarillo was attributable to the Highway, so that any damage due to a reduction of the value of the Remaining Land, caused by the carrying out of the Highway (and thus of Amarillo) sounds as damage for injurious affection under s 241(7)(b)?;
(e) Can it be said that the Southern Sectors Review was 'attributable to' the Highway, so that it should be disregarded for the purposes of considering the highest and best use of the Kelliher land in the unaffected scenario (without the Highway)?;
(f) Can it be said that the Southern Sectors Review was attributable to the Highway, so that any damage due to a reduction of the value of the Remaining Land, caused by the carrying out of the Highway (and thus of the Southern Sectors Review) sounds as damage for injurious affection under s 241(7)(b)?;
(g) Would an alternative road network have been established in the absence of the Highway?;
(h) Findings of fact in relation to the decision to reserve the RRF land for the RRF;
(i) How did the RRF Land come to be selected as the site for the RRF?;
(j) Can it be said that the decision to reserve the RRF land for the RRF was attributable to the Highway, or was caused by the carrying out of, or the proposal to carry out, the Highway?; and
(k) As at the Date of Taking, and in the unaffected scenario (without the Highway) what would the hypothetical Spencer parties have known about the review of the IPRSP, the FPSP review, the Southern Sectors Review, and the proposal to develop Amarillo?.
(a) The parties' cases in relation to the development of Amarillo, the proposal for a FPSP review, and the Southern Sectors Review
491 The plaintiffs' pleaded case in relation to Amarillo was as follows:[601]
492 The plaintiffs say that without the Highway, at the Date of Taking, the Amarillo landholding would not have been identified for potential rezoning to urban in the short or medium term in TPS 5 or the IPRSP, would not have been able to be progressed for rezoning until alternative road networks were completed to service the development and would not have been considered a candidate for short term rezoning to urban.[602]
493 The plaintiffs contend the Highway brought the Amarillo landholding into competition with the Remaining Land for rezoning to urban in the short to medium term, because the Highway provided transport and access links to the Amarillo landholding.[603]
494 The defendant disputes the plaintiffs' claim that the realisation of the highest and best use of the Remaining Land east of the Highway was delayed because the Highway brought the Amarillo landholding into competition with the Remaining land for rezoning to urban in the short to medium term. The defendant's case in relation to Amarillo was as follows.
495 The defendant says that at the Date of Taking, Amarillo was still being advanced for future urbanisation, and would be a matter considered in the Southern Sectors Review. However, whether and when Amarillo would be urbanised were uncertain.[604]
496 The defendant also says that the absence of the Highway would have affected, but not terminated, the prospects for the rezoning and urban development of Amarillo,[605] for two reasons.
497 First, the defendant says that in the absence of the Highway, a different road network would have been established in the Peel and Southern Metropolitan regions before the Date of Taking, either by an upgrade of Paganoni Drive from Mandurah Road to Amarillo Farm; or by an extension of the Kwinana Freeway to the proposed Northern Mandurah Bypass Link (known as Mandjoogoordap Drive), connecting with the Northern Mandurah Bypass and then connecting to the Mandurah Bypass Road; or by the upgrade of other regional roads in the region, such as Safety Bay Road, Mandurah Road and Baldivis Road so as to provide an upgraded connection between Paganoni Drive and the Kwinana Freeway.[606]
498 Secondly, the defendant also says that only a small part of Amarillo was capable of urban zoning and development in the short term with or without the Highway,[607] or alternatively, says that even if the short term urbanisation of part of Amarillo was attributable to the Highway, that that urbanisation did not affect the value of the Taken Land or of the Remaining Land.[608]
499 The plaintiffs contend that until November 2005, the focus of planning in the Peel region was on an area known as the 'Furnissdale to Pinjarra corridor' (which encompassed the Kelliher Land).[609] They contend that until November 2005, a review of structure planning along the Furnissdale to Pinjarra corridor had been underway (FPSP review) and was due to be completed by December 2006.[610] The plaintiffs claim that Mr Cameron Bulstrode of the DPI had been in the process of actively developing a structure plan for that area, known as the Furnissdale to Pinjarra Structure Plan (FPSP).[611] The plaintiffs claim that the FPSP review was to include a consideration of issues pertaining to the Highway, and the timing of the development of the Amarillo landholding.[612]
500 The plaintiffs' case is that in late November 2005, a broader planning review (which ultimately became known as the Southern Sectors Review)[613] was proposed for the Peel region.[614] They say that one of the primary purposes of the Southern Sectors Review was to provide a regional context for the Amarillo landholding, in order to support the rezoning of that land to urban.[615]
501 The plaintiffs claim that once the Southern Sector Review was commenced, no further substantive work was done on the FPSP review prior to the Date of Taking,[616] and that the FPSP was effectively put on hold pending completion of the Southern Sectors Review.[617] The plaintiffs contend that the Southern Sector Review thus delayed the progress of the structure planning being undertaken in relation to the Furnissdale to Pinjarra corridor.[618]
502 The plaintiffs say that as a result of the fact that little substantive work was undertaken in relation to the FPSP between November 2005 and the Date of Taking, the FPSP was still in development at the Date of Taking.[619]
503 The plaintiffs' case is that if work had continued on the FPSP review between November 2005 and the Date of Taking, the FPSP would have been at an advanced stage of preparation by the Date of Taking, with expected completion in or around December 2006.[620]
504 The plaintiffs contend that without the Highway, at the Date of Taking, the Southern Sectors Review would not have existed, or would not have commenced,[621] preparation of the FPSP would have continued unabated between November 2005 and the Date of Taking,[622] and a hypothetical purchaser would have been confident that the Kelliher Land would be identified for rezoning to urban in the FPSP when completed.[623]
505 The defendant disputes the plaintiffs' claims that the Highway delayed the progress of the FPSP. It says that from 19 August 2005, the PRPC (which advised the WAPC on planning issues in the Peel region) understood that as part of the IPRSP review a structure plan was proposed for an area from Furnissdale to Pinjarra, that the Highway announcement was a catalyst to embark upon the FPSP, and that the proposed preparation of the FPSP did not proceed because the PRPC took the view from 16 September 2005 that a more comprehensive approach was to be taken to the strategic planning of the region.[624]
506 The defendant says that prior to the Date of Taking, that decision to adopt a comprehensive approach to planning encompassed the southwest Metropolitan corridor, and that became known as the Southern Sectors Planning Review (which is referred to herein as the Southern Sectors Review).[625]
507 The defendant says that the decision not to proceed with the FPSP but to include the Furnissdale to Pinjarra corridor in a wider study that would take longer to complete was not caused by the Highway.[626] The defendant also says that in any event, the advent of that wider study - the Southern Sectors Review did not diminish the prospects of rezoning the Kelliher Land for urban residential or commercial use.[627]
508 The plaintiffs contend that the Southern Sectors Review was intended to be a planning framework to assist with the preparation of regional structure planning work,[628] and to take into account considerations arising as a result of the Highway, including the provision of access links to Amarillo.[629] The plaintiffs contend that one of the primary purposes of the Southern Sectors Review was to provide a regional context for the Amarillo landholding, by reviewing the South West Corridor Structure Plan and the IPRSP,[630] and to support the rezoning of the Amarillo landholding to urban.[631]
509 The plaintiffs' case is that without the transport and access links afforded by the Highway, it would not have been possible to provide a regional context for the Amarillo landholding prior to the Date of Taking, and the Southern Sectors Review would therefore not have been commenced.[632] The plaintiffs contend that without Highway, the Southern Sectors Review would not have existed, or would not have commenced.[633]
510 The plaintiffs also contend that no information about the potential outcomes of the Southern Sectors Review would have been available to the public at the Date of Taking.[634]
511 Finally, the plaintiffs contend that the Southern Sectors Review created uncertainty about the future planning environment in the Peel region.[635]
512 The defendant acknowledges that the Highway announcement was a catalyst to embark on the Southern Sectors Review, but says that the proposed Highway did not cause the Southern Sectors Review.[636]
513 The defendant says that a review similar to the Southern Sectors Review would have been instituted at about the same time, whether or not the proposed Highway had been planned or the Highway announcement made.[637]
514 The defendant also says that the future development of Amarillo would have been included within the Southern Sectors Review whether or not the Highway had been proposed.[638]
515 The defendant's position is that at the Date of Taking, the advent of the Southern Sectors Review did not cause any greater uncertainty about the rezoning or development of the Kelliher Land than would have existed without the Southern Sectors Review[639] and did not diminish the prospects of the Kelliher Land being rezoned for urban residential or commercial use.[640]
516 The plaintiffs' case thus raises questions of whether the development of Amarillo and the Southern Sectors Review were caused by or attributable to the Highway and hence whether they should be disregarded or taken into account for the purposes of s 241(2) or s 241(7) of the LA Act respectively. It is somewhat artificial to separate the consideration of the evidence about these matters into discrete parts. The evidence is more appropriately viewed as the evolution of events over time.
(b) Findings of fact in relation to the acquisition of Amarillo, and proposals to develop Amarillo, the review of the IPRSP, the FPSP review, and the Southern Sectors Review
517 The evidence established that the construction of a highway from the southern metropolitan region of Perth to the south west of Western Australia, had been in contemplation since the 1970s.[641]
518 A report prepared by TS Martin in 1974 on the development of the South West Corridor (TS Martin Report)[642] noted that there was a need for the Main Roads Department to conduct a study of the future transportation network in the South West Corridor, including for the purpose of determining Highway alignments.[643] The TS Martin Report demonstrates that even in 1974 (when the Kwinana Freeway did not yet extend as far south as Leach Highway in Perth[644]) it was contemplated that the major entry to the South West Corridor would be via the Kwinana Freeway.[645] The Report noted that 'there is a general aim to extend 'the Freeway' south to provide, by the year 2000, a direct link to the south-west of the State'.[646] However, the route for the Freeway had not been determined, and more than one route was canvassed.[647]
519 A road reservation for the Peel deviation of the Highway was included in the West Murray Town Planning Scheme in 1976. However, the land reserved did not reflect the precise route for the Highway which was ultimately chosen. Mr Broadhurst pointed out that the Highway route announced in 2004 was east of the alignment the subject of the reservation in that town planning scheme.[648]
520 A Planning Strategy for the South-West Corridor[649] which was released for public discussion in 1980 reveals that it was clearly contemplated at that time that a Perth to Bunbury Highway would proceed south beyond Safety Bay Road. That document recognised that there was a need for strong primary and secondary road networks in both a northsouth and an eastwest direction, together with a PerthBunbury Highway.[650] Although the precise location of those roads was not settled,[651] the proposed network nevertheless featured links to a PerthBunbury Freeway via a Rockingham Highway and Mundijong Highway.[652]
521 In his evidence, Mr Broadhurst also shed light on early planning for the Highway. He confirmed that early planning for the extension of the Kwinana Freeway from Thomas Road to the boundary of the Metropolitan Region Scheme area had commenced in the 1970s and continued during the 1980s, during which time numerous alignment options for the highway were considered and assessed.[653]
522 I find that the construction of a highway, extending from the Kwinana Freeway in the southern metropolitan area of Perth to the Peel Region, had been in contemplation since the 1970s.
523 Prior to 2001, the Kwinana Freeway did not extend beyond Safety Bay Road.[654]
524 Although the Highway had been in contemplation since the 1970s, its construction and the precise route for that part of the Highway which was to be initially constructed, was not announced until 2004. In September 2004, the then Premier, Mr Geoff Gallop MLA, announced that the government would commit funds to the construction of the Highway, with work to commence in 2007 and be completed by 2009.[655] The work was to comprise 70 km of dual carriageway which would stretch from the Kwinana Freeway at Safety Bay, around the eastern side of the Peel Inlet and Harvey Estuary, to join the existing dual carriageway on the Old Coast Road near Lake Clifton.[656]
525 In December 1991, Cabinet approved the purchase by Homeswest of land at Karnup known as Amarillo farm, and directed that a committee of key government agencies consider rezoning the land for urban purposes.[657]
526 The Amarillo farm was just under 4000 ha in size. Half of its area fell within the City of Rockingham and its southern half fell within the Shire of Murray.[658] The landholding straddled the Serpentine River, with about 25% of the land on the western side and 75% on the eastern side of the river.[659] Of the total 4000 ha approximately 3000 ha on the eastern side was considered for possible urban development, and approximately 120 ha west of the river was considered by Homeswest to have urban potential.[660]
527 The Cabinet minute of December 1991 noted that it was anticipated that the 3000 ha of Amarillo land would provide approximately 22,000 housing lots.[661]
528 The rationale for the purchase of the Amarillo landholding was:
A major objective of the Department of Housing and Works is the continuity of land supply and the provision of sites for public housing. This objective has been pursued by adopting a policy of ensuring that an adequate supply of residential land is available through the maintenance of a landbank.
The Department of Housing and Works acquired the Amarillo property at Karnup as a strategic source of land in the Southwest Metropolitan sector.
Amarillo is a strategic land bank situated in a corridor experiencing a strong demand for land. The Amarillo landholding is capable of providing a twenty five (25) to thirty (30) year land supply.
The size and uniqueness of Amarillo will enable the Department to provide a variety of housing products and presents the Department of Housing and Works with an excellent opportunity to assist with housing affordability.[662]
529 In addition, the Cabinet minute in 1991 referred to the fact that the metropolitan land supply was continuing to be exacerbated by 'opposition to the urbanisation of many localities'[663] and that the Amarillo purchase provided an opportunity for the government to meet its commitment to maintaining the supply of land.
530 It thus appears that the impetus for the purchase of the Amarillo landholding was that the Department of Housing and Works wished to acquire a landholding which would enable it to meet its objectives of providing public housing and ensuring a supply of affordable housing.
531 There is nothing at all in the Cabinet minute from December 1991 which supports the conclusion that the Highway was the reason for the purchase and planned development of Amarillo. The Cabinet minute itself does not mention the Highway.
532 A submission which accompanied that Cabinet minute discussed a number of issues in relation to the development of the Amarillo land, including the isolation of the area and transportation. That submission referred to the extension of the Kwinana Freeway, and to its anticipated programme of construction. It was contemplated that early development of the Amarillo land would precede the construction of the Freeway extension.
533 And in so far as the Highway was concerned, documents attached to the Cabinet Minute made clear that at the time when the Amarillo landholding was acquired, the route for the Highway had not been finally determined. However, the submission attached to the Cabinet Minute noted that the Amarillo development would 'eventually' be served by either of the two preferred routes for the Highway which were then under consideration.[664]
534 This evidence supports the conclusion that Amarillo was not acquired because of the Highway. However, it was acknowledged that the existence of the Highway might in due course be advantageous for the development of Amarillo.
535 The purchase of the large Amarillo landholding on the outer limits of the Perth metropolitan area, but which also straddled the Peel Region, raised questions as to how the Amarillo development would be integrated into planning for future urban growth in the southern metropolitan region, and the Peel Region.
536 In 1992, Transperth commissioned a study[665] by Martin Goff and Associates (the Goff Study) about land use for the South West, as a means of informing consideration of future transport needs in the area. The Goff Study discussed possible areas for future urban development within the Shire of Murray, including Amarillo. The authors of the Goff Study clearly contemplated that the timing of these developments was far from certain, and in relation to Amarillo, depended upon government providing impetus for its development:
The Murray Shire has in the past experienced the promise of rapid population growth based in the early 1970's by the alumina refinery and later by canal development at Yunderup. Growth from those stimuli has been slow and in fact the urban area of Pinjarra has been de-zoned in recent years.
Even so, there are areas at Amarillo, Barragup and Ravenswood which have potential for urban settlement. Amarillo has been acquired by Homeswest as a future urban development project with the corporation beginning to explore the opportunities and difficulties of such a large programme. ...
government initiatives to direct public administration, health and education investment to Amarillo [may be required] as catalysts to development rather than following settlement as normal, suburban, social services.[666]
538 The Goff Study also noted that if urban development in the South West Area was to be accelerated by developing Amarillo then an extension would need to be constructed to the Freeway south of Thomas Road, Kwinana, and that in any event traffic between Perth and the South West of the State would require an extension to the Freeway to allow economic development to proceed efficiently.[667]
539 The Goff Study provides further support for the conclusion that the acquisition of the Amarillo landholding was not effected as a step in the carrying out of the Highway. The development of Amarillo was proposed well in advance of any decision about the route for the Highway.
540 In a memorandum in January 1994 from Mr Brett Flugge, then the Acting Regional Manager (Peel), to the Acting Chief Executive of the Ministry for Planning (as the DPI was known then), Mr Flugge noted that there was a need for clarity as to how and where Amarillo sat within the longer term strategic planning in the South West corridor. In the absence of a clear position on the Amarillo development, Mr Flugge expressed concern that land use strategies for the Peel region could not be finalised.[668]
541 At a meeting of the Peel Regional Planning Advisory Committee on 1 March 1995, Mr Berzins, the Regional Manager of the Peel Office of the Ministry for Planning indicated that 'it was important for the Committee to form a position on Amarillo as quickly as possible as the inclusion or exclusion of Amarillo had a marked effect on Structure Planning in the locality given its size and potential lot yield'.[669]
542 At the same meeting, Mr Auret, a Senior Structure Planner with the Ministry for Planning, discussed a working paper on population which had been prepared for the purposes of the structure planning exercise which was then underway for the Inner Peel Region (and which culminated in the preparation of the IPRSP). The minutes of the meeting record that Mr Auret:
then expressed his personal opinion that based on population projections, the Amarillo proposed urban development was not needed and that the site posed problems for urban development, in that it had poor soils and even poorer drainage characteristics. Mr Auret indicated to the Committee that in his opinion there was a case for Amarillo not being developed for urban purposes.[670]
543 Similar sentiments were set out in a draft departmental position paper on Amarillo, dated 8 March 1995, which was also prepared by Mr Auret. Mr Auret went on to set out five broad issues which existed in relation to Amarillo, and which required resolution. First, Mr Auret noted that there were environmental issues in relation to Amarillo, especially relating to drainage of the land and the potential for the export of nutrients into the Peel-Harvey Estuary via the Serpentine River. Secondly, Mr Auret noted that there were servicing issues relating to transport, because Amarillo was isolated and difficult to access. Mr Auret observed that
[e]verything will depend on the timing of the Kwinana Freeway extension, at least as far as Paganoni Road, which is most important to opening up Amarillo.
Public transport is also a major issue.[671]
544 Thirdly, Mr Auret noted that there were planning issues concerning the need for urban land at Amarillo, which had not been adequately addressed.
545 Mr Auret looked at population projections and concluded that 'with Amarillo the South West Corridor and the Inner Peel Region is 80% overprovided to 2021. Even without Amarillo it is 53% overprovided to 2021. ... In these circumstances, it is difficult to argue for Amarillo on grounds of need before 2021. Even in the longer term need is doubtful'.[672]
546 Fourthly, Mr Auret noted that there were issues relating to Amarillo's capability and suitability for urban development relative to other potential areas for urban development in the region.
547 Fifthly, Mr Auret noted that there were social, political and administrative issues to be resolved. Mr Auret noted that the scale and location of Amarillo meant that it would need special consideration for development, as it straddled two local authority schemes and two regional authorities with different planning legislation.
548 Accordingly, Mr Auret proposed that the Ministry should recommend that Amarillo be regarded as a long term, government owned, land bank with unspecified use, and that Amarillo not be designated as urban land in current structure plans or statutory schemes.[673]
549 Although the paper Mr Auret prepared was clearly a draft,[674] he expressed the same sentiments in a memorandum to other officers of the Ministry for Planning dated 31 May 1995, in which Mr Auret observed that 'my research shows that, at worst, Amarillo is not needed ever or, at best, it is not needed for a long time.[675]
550 Mr Auret's views demonstrate that from the outset, there were strongly held concerns within the then Ministry for Planning about the need for, and suitability of, Amarillo for urban development.
551 Mr Auret's view of the development of Amarillo was not shared across government. In a letter dated 20 June 1995, the Minister for Housing wrote to the Minister for Planning in relation to Amarillo. The Minister for Housing noted that
Homeswest is confident that the investigations and ongoing management commitments in respect to planning and environmental issues will enable the project to gain the necessary approvals.
I have been made aware of certain resistance within the Ministry for Planning. ...
Up front environmental assessment is being pursued by Homeswest in line with the processes contained in the changes to planning legislation and as a prerequisite to requesting initiation of ... rezoning (northern half of the site) in the near future.
The Amarillo project is of considerable importance in maintaining Government commitments for future residential land supply.[676]
552 Amarillo was ultimately included in the structure planning process which resulted in the drafting of the IPRSP.[677]
553 Amarillo was eventually identified as future urban Category B in the IPRSP when the IPRSP was finalised in December 1997. The Category B designation referred to areas that may be suitable for urbanisation but which had identified constraints. These were areas which it was considered 'could become available for development in the longer term (up to 2041)'.[678]
554 In August 1996, Homeswest lodged a formal proposal with the City of Rockingham for an amendment to the Metropolitan Region Scheme to designate the Amarillo land for urban use.[679] In support of that application, consultants engaged by Homeswest prepared a report for submission to the WAPC. That report was entitled the Amarillo Master Plan (the Amarillo Master Plan).[680]
555 The Amarillo Master Plan noted that the 'the urbanisation and development of Amarillo will result in significant environmental benefits and economic benefit to the State'.[681] Among the benefits listed was a reference to the fact that 'the urbanisation of Amarillo at this time will coincide with the extension of the Freeway system to the area'.[682]
556 The Amarillo Master Plan also referred to the Highway Network as part of its analysis of transport links to Amarillo. The Amarillo Master Plan noted:
The location of the Kwinana Freeway abutting the western boundary of Amarillo ensures excellent regional accessibility. The Freeway provides a strong north-south link to Perth and Mandurah. As stated earlier, the Freeway is to be extended to Folly Road, only 5km north of Amarillo, by the year 2002.
The strategic road network planned for Amarillo has been designed to maximise connectivity to the proposed freeway at two locations; one at the northern end of the project, and one centrally located.[683]
557 On 23 February 1999, the WAPC resolved to endorse the final draft of a Memorandum of Understanding (MOU) with Homeswest[684] with respect to Homeswest's proposal to develop Amarillo. The MOU was signed on 30 March 1999.[685] The purpose of the MOU was to 'clarify the expectations and obligations of the parties with respect to the Subject Land'.[686]
558 The Preamble to the MOU contrasted the different perspectives of Homeswest and the WAPC in relation to Amarillo. The Preamble noted that Homeswest's statutory responsibility
is to make better provision for housing and improving housing standards and conditions in the State, to encourage the use, development and redevelopment of land for housing and related purposes. ... Homeswest purchased the Subject Land in December 1991 for that purpose. Homeswest wishes to commence development of the Subject Land commencing in the year 2000.[687]
559 In contrast, the position of the WAPC as stated in the Preamble was:
The Commission's statutory authority gives it responsibility for all regional land use planning and zoning in the State of Western Australia ... . The Commission requires to be satisfied that the Homeswest proposal is appropriate and, if acceptable, is implemented with maximum community return.[688]
560 The objectives of the MOU were to identify the form and scope of the documentation required by the WAPC in its consideration of Homeswest's proposal to develop Amarillo and the WAPC's requirements for the overall development.[689] The MOU noted that an Amarillo Master Plan would be required which dealt with, amongst other things, Homeswest's overall vision for the project, the strategic context and justification for the proposed development in regional planning terms, any aspect of the proposed development that varied from existing regional objectives for the area as set out in the South West Corridor Structure Plan or the IPRSP, the timing of the project, the transportation (roads and public transport) needs of the proposed development and how those needs could be integrated with regional transportation proposals.[690]
561 It was made very clear in the MOU that there was no guarantee that the WAPC would approve the proposed development of Amarillo, or would do so in any given timeframe. The MOU noted that 'if and when' the Master Plan was endorsed by the WAPC, Homeswest would be required to prepare a Comprehensive Development Plan before each stage of the development.[691] The MOU also noted that the development would be subject to the standard assessment and statutory approvals process provided for in town planning and other legislation, and that nothing in the MOU would prevent the WAPC 'from exercising its statutory obligations under existing legislation'.[692]
562 In October 1999, a report was prepared by the Ministry for Planning for the Executive, Finance and Property Committee of the WAPC. The report and the recommendations which accompanied it dealt with the stance the WAPC should adopt in relation to the Amarillo Master Plan which Homeswest had by then submitted for formal approval. The report recommended that the WAPC should decline to endorse the Amarillo Master Plan, and to advise Homeswest that the WAPC did not support the proposed urban development of Amarillo 'because of the lack of an adequate strategic planning framework' and that the WAPC considered that 'in accordance with the [IPRSP] Amarillo may be suitable for urbanisation in the longer term (up to 2041)'.[693]
563 The report outlined a number of reasons why the WAPC should refuse to endorse the Amarillo Master Plan, or the proposed development of Amarillo more generally. For present purposes it is necessary to mention only two of those reasons. First, the report noted that there was 'no structure planning or land supply justification to bring the Amarillo project forward at this time in the Metropolitan South West Corridor or Inner Peel Region'.[694]
564 Secondly, the report noted that 'Amarillo has not been brought into future transport infrastructure planning and Transport agencies have serious concerns about unplanned and unfunded transport infrastructure that would be required to service the development.'[695]
565 Notwithstanding these recommendations, the Executive, Finance and Property Committee instead resolved on 2 November 1999 to defer the question of the Amarillo Master Plan for a further report.
566 Officers of the Ministry for Planning, and the Executive, Finance and Property Committee of the WAPC continued to express concerns about the inadequacy of the Amarillo Master Plan in many respects, including in relation to planning, and roads and public transport, in the following months.[696]
567 Nothing in the evidence concerning the decision to acquire Amarillo or early consideration (up to late 1999) of whether it should be zoned for urban use, suggests that its acquisition and development were pursued because it was anticipated that the Highway would be constructed. No determination had been made as to when the Highway would be constructed, or the route it would take. Although transport links to Amarillo were clearly a concern, the major impetus for the pursuit of the development of Amarillo until this point was the desire of the Department of Housing and Works to secure urban land for future use for a supply of affordable housing.
568 By late 2004, the need for a review of the IPRSP was being acknowledged by departmental officers, Shire representatives, and officers of the WAPC itself.
569 The PRPC (which is a sub-committee of the WAPC[697]) met on 10 December 2004. The Minutes of that meeting reveal that the Chairman of the Committee met with senior officers from the DPI to request that the DPI convey to the WAPC the PRPC's position that a review of the IPRSP was urgently needed.[698]
570 In February 2005, senior policy officers from the DPI - Mr Mike Mouritz, Mr Mike Allen and Mr Andrew Montgomery - met with Mr Cameron Bulstrode (an officer of the DPI with responsibility for the Peel Region), to discuss a possible review of the IPRSP. At that meeting it was agreed that there was an urgent need to review the IPRSP. It was also agreed that the Urban Policy Division of the DPI, with input from the Peel Region Office, would prepare a preliminary study brief for the review.[699]
571 On 18 March 2005, Mr Bulstrode advised the PRPC that consultants were researching and preparing a study brief for the review of the IPRSP and that this was expected to be completed in late April 2005.[700]
572 On 4 May 2005, Mr Bulstrode sent an email to officers of the DPI advising that the draft study brief for the review of the IPRSP had been completed.[701] That draft study brief was entitled 'Peel Region Structure Plan Project Brief (Coast to Darling Scarp)' (the IPRSP Review Brief).[702] The IPRSP Review Brief provides some insight into the genesis for the proposed review. The IPRSP Review Brief noted:
The [IPRSP] provided the basis from which the Peel Region Scheme (PRS) was prepared. Since the PRS was gazetted in March 2003 there have been several amendments to the PRS.
...
The [IPRSP] has been in effect since December 1997. The [IPRSP] acknowledged the need for the [IPRSP] to be updated and reviewed over time as circumstances and priorities change. In particular, since its adoption there have been a number of key state government planning initiatives that are likely to impact on the future planning for the region including the Western Australian State Sustainability Strategy and Network City.[703]
573 The objectives of the review outlined in the IPRSP Review Brief included to assess the performance of the IPRSP in meeting its objectives, as well as the currency of those objectives, to identify the capacity of the Region to accommodate future growth with regard to sustainability principles, to identify land requirements for a sustainable pattern of urban growth, and associated infrastructure and conservation demands, over the next 30 years, and to provide clear and specific direction in relation to these objectives.[704]
574 One of the key issues for the review of the IPRSP was identified as land use, including for urban growth. The IPRSP Review Brief noted:
Within the past five years, the region has experienced unprecedented demand for residential land, with the consequence that the planned urban expansion areas within the IPRSP are developing at a substantially faster rate than originally projected. On this basis, it is anticipated that the region will start to experience residential land shortages within the next five to 10 years unless new directions for urban expansion are identified.[705]
575 Among the matters the review of the IPRSP was to cover were a review of land use, a review of key demographic considerations, and a review of the factors which should be taken into consideration in determining future land use, including the sustainability considerations for any development outside activity centres.[706]
576 On 18 May 2005, officers of the DPI met with representatives of the Shires of Mandurah, Waroona and Murray to discuss the IPRSP Review Brief. The minutes of that meeting indicate that a 'key issue' which the Shire representatives wished to see emphasised in the review brief was urban growth and the need to ensure an adequate land supply.[707]
577 On 23 May 2005, the Chairman and representatives of the WAPC met with representatives of the Shire of Murray and the City of Mandurah to discuss regional planning issues, including the review of the IPRSP.[708] It is clear that at that stage, the manner in which the review should be undertaken had not been finalised. After the meeting, the Chief Executive Officer of the City of Mandurah wrote to the WAPC to suggest that the proposed review of the IPRSP should focus on how to manage population growth and timely infrastructure provision, provide employment opportunities and protect the environment'.[709]
578 By early June 2005, officers of the DPI had formed the view that the review of the IPRSP should focus on planning issues for particular regions within the study area for the review. The 'first priority' identified at that stage was the Mandurah-Pinjarra corridor, including North Pinjarra.[710]
579 The proposed review of the IPRSP was discussed at a meeting held on 25 July 2005, attended by representatives of the DPI, including Mr Bulstrode, and of the Shires of Mandurah, Murray and Waroona.[711] At that meeting, it was estimated that a review of the IPRSP would take three years. That estimate generated some concern, given the development pressures which Shire representatives anticipated would arise within the next five years in some areas.[712] That concern appears to have prompted discussion of an alternative approach, namely the review, as a matter of priority, of a structure plan for a smaller area (from Furnissdale to Pinjarra), and a broader review, in the longer term, of a structure plan for the area from the Swan Coastal Plain to the Darling Scarp.[713]
580 By August 2005, officers of the DPI had formed the view that the preferable approach to the review of the IPRSP would be to undertake the review in stages, because of the need for a review of structure planning for the area between Furnissdale and Pinjarra (which included the Kelliher land) as a matter of priority. At a meeting of the PRPC on 19 August 2005, Mr Bulstrode advised that:
a structure plan is proposed for an area subject to increasing pressures, extending from Furnissdale and Pinjarra (and surrounding areas) as part of the review of the [IPRSP]. The study area has been determined in consultation with the local government planners and is regarded as a priority area for review.[714]
581 The DPI therefore recommended to the PRPC that the review of the IPRSP should be undertaken as two projects the Furnissdale to Pinjarra review, and a Peel Planning Strategy (which would involve the preparation of a planning strategy covering the whole Swan Coastal Plain and Darling Scarp within the Peel region).[715]
582 The rationale for conducting a separate review of structure planning for the Furnissdale to Pinjarra area was explained in a memorandum prepared by Mr Bulstrode and submitted to the meeting of the PRPC held on 16 September 2005.[716] Mr Bulstrode said:
Since the finalisation of the IPRSP a significant portion of the 1,147 ha of future urban Category A1 areas (short to medium term urban eg Seascapes, Mariners Cove, Southport, Meadow Springs) and portions of the 1,068 ha Future urban areas Category A1 areas (medium term eg Lakelands Estate) identified in the structure plan have either been developed or are currently in the process of being developed.
It is now considered that the IPRSP is becoming less effective in providing specific guidance for the future development of the area for developers, local governments and the various State government agencies involved in providing community services and service infrastructure. Furthermore, the IPRSP needs to be reviewed in view of the following:
(i) The structure plan was essentially prepared in the mid 1990s having regard to then current planning philosophies and principles;
(ii) Numerous structure plans, precinct plans and outline development plans have been prepared and approved by the Councils and the Commission, many of which propose variations to the IPRSP ...;
(iii) ...
(iv) The Shire of Murray has adopted a draft Local Planning Strategy, which will soon be forwarded to the Commission for consent to advertise. This Strategy proposes various variations to the planning proposals recommended in the IPRSP, including additional future urban areas.'[717]
583 Mr Bulstrode explained that the Furnissdale to Pinjarra area had been identified
as it is currently subject to substantial development pressures and there are numerous planning issues that need to be addressed as a matter of priority. Furthermore, within this area the Shire of Murray has proposed additional future urban areas in its proposed Local Planning Strategy. It is also understood that some owners of substantial rural holdings along Old Mandurah Road have already engaged planning consultants to prepare future development concept plans for their landholdings having regard to the Shire of Murray's proposed Local Planning Strategy.
The intention would be to progress this structure planning project for this critical area as a matter of high priority and undertake this project concurrently with the assessment and finalisation of the Shire of Murray Local Planning Strategy. ...
The aim would be to appoint consultants to undertake the project to January 2006 and finalise the proposed Structure Plan by February 2007.[718]
584 I note that Mr Bulstrode's memorandum also made clear that despite the pressure from landholders along Old Mandurah Road, and from the Shire of Murray itself (through the draft LPS), for the development of further urban areas in the Shire of Murray, that pressure did not reflect a shortage of land allocated for urban development under the IPRSP relative to the projected population. Mr Bulstrode noted that the projected population for the Shire was not anticipated to exceed that which was the basis for the IPRSP: land within the Shire of Murray which was delineated for urban and future urban use was intended to cater for a population potential of about 55,000 in that Shire. In contrast, the population projections for the Shire were for a population of 12,374 in 2006 and 22,025 by 2021.[719]
585 A draft brief was then prepared by the DPI for the proposed FPSP review (the Furnissdale to Pinjarra Review brief). The brief acknowledged the need for clear guidance on future development as a counterpoint to the existence of pressure for increased development:
The land within the study area is expected to be subject to significant development pressures in the short to medium terms, due to the construction of the New Perth-Bunbury Highway and as a result of the continued rapid uptake of available urban zoned land within the City of Mandurah. Therefore, there is a need as a matter of priority to prepare a structure plan for the study area to provide clear guidance for the future development of the area in a manner that is sustainable in environmental, economic and social terms.[720]
586 In so far as urban growth was concerned, the Furnissdale to Pinjarra review brief noted that:
Within the past five years, the Peel region has experienced unprecedented demand for residential land, with the consequence that the planned urban expansion areas within the IPRSP are developing at a substantially faster rate than previously projected. Investigation is required to determine whether additional future urban land is required within the study area and, if so, to determine appropriate areas for this purpose.[721]
587 The Furnissdale to Pinjarra review brief contemplated that the key objectives in the preparation of a FPSP would include identifying
the capacity of the area to accommodate future population and economic growth with due regard to sustainability principles' and that the structure plan would 'embody contemporary planning principles in relation to community formation and sustainability including reduced car dependency.[722]
588 (The latter observation appears to be a reference to the principles of Network City.)
589 In other words, the DPI officers who prepared the Furnissdale to Pinjarra review brief did not approach the proposed FPSP review on the basis that the identification of further urban land at any particular location in the area was actually necessary. Rather, the point of the proposed FPSP review was to ascertain whether further land should be identified for urban development, and to do so having regard to the contemporary approach to urban development (under the principles of Network City) with its focus on the reduction of urban sprawl and on the consolidation of communities around nodes of activity.
590 Nothing in the Furnissdale to Pinjarra review brief suggested that there was any expectation that the FPSP review would identify a need to designate further land for future urban development, or that the Kelliher land would be identified for future urban use.
591 I note for completeness that the evidence given by Mr Allen (who worked for the DPI at the time) was that he had always taken the view that the FPSP review was a subset of the review of the IPRSP but was a priority task within that review.[723] Mr Ferraro was of the same view.[724] Their evidence was consistent with the documentary evidence to which I have referred.
592 All of the planning experts also agreed that as a matter of orderly and proper planning, it was to be expected that the FPSP review would be incorporated into the review of the IPRSP.[725]
593 At its meeting on 16 September 2005, the PRPC decided not to accept the DPI's recommendation to pursue the FPSP review first, followed by the balance of the IPRSP review. The minutes of that meeting note that the PRPC:
agreed that the substantial population growth and consequential development pressures make it necessary to review the Inner Peel Region Structure Plan as a priority. However, ... there was a need to ensure that a comprehensive approach is taken to the strategic planning of the region and this matter will be discussed when the Western Australian Planning Commission visits the region later in the year.[726]
594 The PRPC thus resolved to simply note the proposed Furnissdale to Pinjarra review brief and noted that the WAPC would give consideration to how best to proceed with strategic planning for the region.[727]
595 Further insight into the reason why a more comprehensive strategic planning review was considered desirable can be discerned from a briefing paper prepared for the WAPC's visit to the Peel Region in October 2005. That briefing note identified the anticipated growth in the population of the entire Peel Region as one of the reasons why a review of structure planning in the area was necessary:
Department projections of population growth for 2004 - 2021 estimate that the City of Mandurah and the Shire of Murray will experience a high rate of growth of over 3% ... . It is expected that the growth in the City of Mandurah will be higher in the early part of this period and then over time subside, while the Shire of Murray's growth will increase to its peak in the latter part of this 2004 - 2021 period. ...
There is a need to assess the capacity to accommodate this growth, and identify additional land for urban growth.[728]
596 In addition, the briefing note also made reference to the expectation that the Highway 'will generate interest in the development of land along the Highway which is currently zoned rural'[729] and indicated that a 'strategic study [was] required to identify opportunities, constraints, and appropriate land use responses'.[730]
597 At its meeting on 25 October 2005, the WAPC considered the issues raised in this briefing note, together with issues raised during the WAPC's visit to the Peel Region. The WAPC recognised that there may be merit in developing a strategic approach for the whole of the Peel Region, to be undertaken by a senior regional planning officer within DPI dedicated to that task. It was agreed that this proposal should be considered at the next meeting of the WAPC, and that a report should be prepared for that purpose, outlining possible terms of reference for a broader Peel Region strategic planning review.[731]
598 The WAPC considered that proposal at its meeting on 22 November 2005. A report, entitled Urban Growth Management Program - Peel Region Coordination of Growth Management,[732] which was prepared for the meeting, proposed:
a coherent Action Program to co-ordinate the Urban Growth Management in the Peel Region. There are presently a large number of State agencies and two local Government Authorities that are involved with growth and development on a day-to-day basis. ...
There are a number of projects that are currently in progress that need to be co-ordinated into a single overall direction. For example, the DPI has prepared a program for a review of the Structure Planning along the Furnissdale to Pinjarra Corridor. This needs to proceed soon to ensure that the future land allocation realises the Network City strategies. The Peel Development Commission is already preparing a Peel 2020 Vision Statement and an Infrastructure Study.
In order that we do not duplicate work that has already been undertaken and to ensure that the communities do not become fatigued by an uncoordinated workshopping process, it is proposed that a Structure Planning Program be modified to combine the processes of all the agencies in the region.[733]
599 The WAPC was advised that funding was being pursued for that position. The WAPC noted that a major output of the work would be the endorsement of a Structure Plan for the Furnissdale area, but that there would be a number of other outputs. The WAPC requested a further report be prepared, which would outline in more detail the scope of work to be undertaken in the Peel Region.[734]
600 The plaintiffs' case in relation to the FPSP review at times appeared a little nebulous. The plaintiffs did not plead that the review of the IPRSP, or the FPSP review, were attributable to the Highway, and the evidence does not permit that inference to be drawn in any event.
601 Having regard to the evidence, I find that the FPSP review never came to fruition. That is, it never amounted to more than a proposal submitted to the WAPC. I find that the review of the IPRSP was commenced because the passage of time (which in any event would have warranted a review of a structure plan such as the IPRSP), development in the region, pressure from Shires (including the Shire of Murray) and landowners, and anticipated population growth in the Peel Region, were thought to warrant it.
602 I find that although it was proposed that a FPSP review should proceed in advance of the review of the IPRSP, that proposal was not endorsed by the WAPC. Instead, the WAPC's preferred course was to undertake a more comprehensive review of structure planning for the region. The proposal to conduct the FPSP review not having been taken up, there is no basis, in my view, for the conclusion that FPSP review was then delayed by the Highway. The contention that the FPSP review would have been completed by December 2006 was similarly not supported by the evidence.
603 In my view, it cannot be said that the decision not to pursue a separate FPSP review ahead of the review of the IPRSP was attributable to the Highway in the sense that phrase is used in s 241(2) or that that decision was caused by the carrying out of the Highway or the proposal to do so.
604 Although anticipated interest in developing land along the Highway, and the opportunities that presented, was one factor considered by the WAPC in determining not to proceed with the proposed FPSP review, it was not the only consideration. And in any event, it cannot be said that the proposed FPSP review or the decision not to pursue a separate FPSP review was a 'step' leading to the Highway.
605 In May 2004, the Minister for Housing and Works, wrote to the Minister for Planning and Infrastructure to advise that he intended to seek support for the rezoning of the land at Amarillo to urban deferred.[735] The Minister for Housing clearly saw the Highway (the extension of which had by then been announced) as making the development of Amarillo more attractive:
With the proposed extension of major Government funded infrastructure in the form of rail and road links there are significant benefits associated with Amarillo by comparison with the extension of urbanisation in other metropolitan corridors. It is apparent that there are planning benefits associated with the urbanisation of Amarillo, as opposed to continuing the push further north from the city where rail and road links are many years away.[736]
606 A draft response to this letter, from the Chief of Staff for the Minister for Planning, addressed to the Chief of Staff for the Minister for Housing and Works was in evidence. That draft appears to have been prepared in about August 2004.[737] There was no evidence as to whether this reply was, in fact, sent. Nevertheless, the content of the draft reply provides an insight into the views of the DPI, and the likely views of the Minister for Planning and Infrastructure, about the proposed Amarillo development at the time.[738] The reply noted that the DPI had raised a number of objections to the proposal to rezone the Amarillo land. These objections included that there was no need to rezone large areas of additional land in the Perth and Peel regions for urban purposes, as the existing land bank of zoned land would be sufficient for many years.[739]
607 A further objection was that the Amarillo site was remote from major activity centres such as Mandurah and Rockingham, and its remoteness from activity centres would exacerbate the cardependence of a future urban population in Amarillo.[740]
608 In September 2004, Cabinet deferred the consideration of a submission from the Minister for Housing and Works proposing the rezoning of land at Amarillo for urban development.[741] A briefing note prepared for the Minister for Planning and Infrastructure shortly after that meeting noted that development at Amarillo would run counter to the 'urban containment' principles of Network City.[742]
609 It appears that it was then determined that the preferable way to address issues in relation to the development of Amarillo was through a working group comprising representatives of the DPI and of the Department of Housing and Works.[743]
610 The Minister for Housing and Works subsequently announced that the development of Amarillo would be proceeding and that a steering committee would be established (the Amarillo Steering Committee) to facilitate the project. The Minister also suggested 'that the PerthBunbury Highway may need to be directed through the development'.[744]
611 The Amarillo Steering Committee comprised representatives of the Department of Housing and Works, together with representatives of the DPI and other relevant agencies, including Main Roads.[745]
612 The first meeting of the Amarillo Steering Committee was held on 16 November 2005.[746] At that meeting, Taylor Burrell Barnett (the town planners engaged by the Department of Housing and Works to act as team leaders on the Amarillo project) made a presentation outlining the history of the project, and noting that the aim of the Department of Housing and Works was to 'achieve all zoning approvals within five years'.[747]
613 Mr Lindsay Broadhurst, from Main Roads, attended the Steering Committee meeting. Mr Broadhurst reported that it was recognised that a review of the strategic regional transport planning for the area was 'one of the major issues', and that it had been proposed that 'a transport strategy for the area would be developed as part of the new [Amarillo] Master Plan', which was to be completed by mid-2006.[748]
614 Mr Broadhurst also noted that the question of the realignment of the Highway through Amarillo had been raised at the meeting but that Mr Burrell of Taylor Burrell Barnett 'quashed' the idea, because to do so 'would not achieve the type of town/living environment' envisaged for Amarillo.[749]
615 By memorandum dated 8 December 2005, the Minister for Housing and Works wrote to the Minister for Planning and Infrastructure in relation to the meeting of the Amarillo Steering Committee. The Minister for Housing and Works, who had attended the meeting, noted that the discussion at the Steering Committee included the need for a broader level of regional planning having regard to the development of Amarillo. The Minister also noted that concerns were raised by stakeholders on the progress of the review of the IPRSP.[750]
616 The Minister for Housing and Works also requested that representatives of DPI and the Public Transport Authority be active participants in the Amarillo Steering Committee in the future (as neither agency had been represented at the first meeting of the Committee). In addition, the Minister requested that the Minister for Planning and Infrastructure clarify the timeframe in respect of the review of the IPRSP.[751]
617 Meanwhile, officers within the DPI remained unconvinced about the merits of progressing the development of Amarillo in the short term. In a briefing note prepared in October 2005 for the Minister for Planning and Infrastructure, the Director General of the DPI recommended that the Minister indicate that the government 'would view any development at Amarillo in the overall context of the development of the metropolitan region, with specific emphasis on the south-west corridor, and before development can occur it is recognised that a number of major issues have to be satisfactorily addressed'.[752]
618 Those issues included that it was open to question whether there was a need for Amarillo land to be released in the short term in order to address the need for a timely and adequate land supply.[753] Another issue was that Amarillo was not shown on Network City's spatial plan, which had been released the previous year.[754] In addition, the Director General advised the Minister that any development at Amarillo should be considered in the context of the review of the IPRSP, given that the IPRSP showed Amarillo as a long-term urban prospect.[755]
619 The Director General also referred to the suggestion made by the Minister for Housing that the Highway may need to be diverted through Amarillo. The Director General advised the Minister that that suggestion should not be supported because the route for the Highway had already been reserved in the Metropolitan and Peel Region Schemes, and because re-routing the Highway through Amarillo may add considerably to its expense, given the need for bridge crossings and the low lying and waterlogged land it would have to traverse.[756]
620 At a meeting of the WAPC on 22 November 2005, Amarillo was discussed, and it was confirmed that the
WAPC's interest is understanding how any proposal regarding Amarillo fits into the proposed review of the [IPRSP]. Further WAPC have asked for DPI to bring back information on how the 'brief' or study process for that work will [be] adapted to ensure consideration of Amarillo within that broader context.[757]
621 On 1 December 2005, officers of the DPI met with Mr Broadhurst from Main Roads, and consultants engaged on the Amarillo project (including Taylor Burrell Barnett) to discuss transport issues for Amarillo and the wider region. The discussion then turned to planning issues for the wider region. The minutes of that meeting[758] record that:
It was generally discussed and agreed that strategic planning for the region was considerably lacking and now well behind the continuing development demand and push for growth within the region.
It was acknowledged that although the Amarillo team will consider regional context and connections for Amarillo, the DPI needs to undertake a 'parallel' process to consider the strategic issues relating to the region itself.[759]
622 In short, it was recognised that there was a need for strategic planning for the transport needs of the entire corridor from Rockingham in the north, to Lake Preston in the south, for the next 50 to 100 years, and there was agreement that that planning should be conducted in parallel with an analysis of the transportation needs of the Amarillo development itself.[760] One of the DPI officers suggested that that analysis by DPI 'would need to be undertaken as soon as possible, and recommended that a timeframe of six months for completion was necessary'.[761] It was then agreed that in order to investigate these issues, a workshop should be undertaken by the DPI and by the Department for Housing and Works early in 2006.[762]
623 The view that the development of Amarillo should be considered within a regional planning context, including the review of the IPRSP, was reflected in a draft response prepared by the DPI for the Minister for Planning and Infrastructure in reply to the memorandum from the Minister for Housing dated 8 December 2005 (to which I have referred above).[763] (The copy of that draft response which was adduced in evidence was signed, but a note on it suggested that the response may have been superseded by other correspondence, and perhaps was not sent. Nevertheless, the draft response is indicative of the view held within DPI that Amarillo should be considered within the context of the review of the IPRSP.) The draft response said:
Together with Network City, a key planning framework for the northern Peel region, of which Amarillo forms part, is the upcoming review of the Peel Region Structure Plan. I note that Amarillo was earmarked as a longterm urban prospect in the structure plan when it was released in 1998. The district-scale assessments to be undertaken by the Department of Housing and Works' planning consultants, through the steering committee, will provide a significant input to the Peel Region Structure Plan review, and DPI and PTA staff will provide appropriate technical advice and support. At the same time, the independent role of DPI/Western Australian Planning Commission (WAPC) as the principal advisory agency to government on regional land use planning and infrastructure coordination should be recognised by the steering committee members.
Major or precedent-making proposals for urban rezoning are necessarily preceded by WAPC endorsed regional structure plans. Construction of the extension of the [Highway] will bring about pressures for the development of previously inaccessible landholdings to the south of Amarillo.
Therefore it is conceivable that land developers will approach the WAPC seeking amendments to the Peel Region Scheme. Such applications will also need to be assessed on an orderly and comprehensive basis in light of Network City and other planning policies.
...
...Although such structure plans typically take about two years to complete ... I expect the review to be substantially completed before the end of 2006.[764]
624 The Amarillo Steering Committee met again on 24 January 2006. The Agenda for that meeting included an item for discussion of 'DPI Regional Level Work Relation to Amarillo; DPI Workshop'.[765] Notes for a presentation given by Mr Burrell at that meeting were also in evidence. Those notes indicated:
Parallel process considering the wider regional issues now being undertaken by DPI. External consultant appointed by DPI.
DPI workshop has been arranged for 2 and 3 February.
Representatives of the Amarillo team to attend workshop.[766]
625 Mr Gary Norwell, the Executive Director Technology and Environment in Main Roads Western Australia, also attended this meeting of the Amarillo Steering Committee. In a file note he prepared about the meeting, Mr Norwell noted that the key points from Mr Burrell's presentation included the lack of regional planning in place to guide the development, concern about the regional context, particularly for transport and employment, and that the constraints in relation to the site included access to regional transport routes.[767]
626 Mr Norwell asked Mr Burrell about proposed road connections between Amarillo and the Highway, and was advised that the only two connections proposed were via the Paganoni and Karnup interchanges, both of which were shown on the draft concept design plans for the Highway.[768] Mr Norwell also noted that DPI were 'doing some work on transport infrastructure at the regional level' and that Mr Chortis from DPI was organising a transport workshop for the first week of February, which would address the needs of the region beyond Amarillo.[769]
627 The Amarillo Steering Committee also recognised that issues in relation to the development of Amarillo should be addressed as part of the consideration of wider regional issues which was being undertaken by the DPI.[770]
628 The Amarillo Steering Committee also discussed a forthcoming workshop at which issues relating to the design of Amarillo were to be discussed. Those issues were to include regional issues, such as transport, planning and employment, and local issues (such as the neighbourhood and town centre design).[771] That workshop the Amarillo Design Workshop was held on 23 and 24 February 2006.[772] Mr Broadhurst attended that workshop on behalf of Main Roads. In a file note he made after the workshop, Mr Broadhurst noted that one of the major issues addressed was that of transport and access to Amarillo, including discussion of an additional connection point between the Highway and Amarillo.[773]
629 The Amarillo Steering Committee met for the third time on 7 March 2006. At that meeting, rail connections to Amarillo were discussed. Mr Burrell from Taylor Burrell Barnett advised that 'the construction of the Karnup Station is vital to the Amarillo development and will need to be provided when Amarillo first develops'.[774]
630 Despite the number of issues which required resolution before the development of Amarillo could proceed, the Department of Housing and Works was determined to press ahead with the development of Amarillo. In April 2006, the WAPC's Statutory Planning Committee was advised that following the Amarillo Design Workshop, the Department of Housing and Works proposed to seek Cabinet approval to undertake further detailed planning and environmental work for the Amarillo Project.[775]
631 The evidence to which I have referred above highlights the ongoing tension within government at the time in relation to the development of Amarillo. On the one hand, the Department of Housing and Works sought to progress the development of Amarillo as quickly as possible. On the other hand, it appears to have been appreciated by the key government agencies involved in the development of Amarillo that the pursuit of a very significant urban development on the border of the Perth metropolitan region and the Peel Region gave rise to planning issues which were identical, or similar, to issues which had come to a head for the Peel Region as a whole, including the supply of land, and the provision of transport and other infrastructure. Officers of the DPI and the WAPC clearly felt that the application of orderly and proper planning principles required that those issues first be resolved at the regional level. And for that reason, despite the pressure from the Minister for Housing, and from the Department of Housing and Works, to proceed with the development of Amarillo as quickly as possible, the strongly held view within the DPI and the WAPC was that the development of Amarillo should not proceed before the resolution of those wider regional planning issues.
632 In some quarters, concerns were expressed that that regional structure planning process was being unduly rushed as a result of the pressure to develop Amarillo. In an email dated 19 January 2006, Mr Auret (Senior Planner in the DPI) told a supervisor that he did not want to be involved further in preparation for a workshop planned for 2 and 3 February 2006 (discussed below), as he felt that 'this whole exercise is a rushed snow job for Amarillo'.[776]
633 At the same time as consideration was being given to issues relating to the development of Amarillo, the DPI continued to undertake consideration of planning issues for the Southern Metropolitan and Peel Regions as a whole.
634 On 2 and 3 February 2006, the DPI held a Workshop which was described as a 'Scoping Workshop.'[777] The purpose of the Scoping Workshop was variously described in the evidence. It was clearly seen as a forum in which to consider the scope of the proposed planning review which to that date had been focused on the IPRSP.[778] However, by the time the Scoping Workshop was held, it appears to have been contemplated that the 'study area' for the proposed review should be considerably expanded. The invitation to the Workshop indicated that the 'areas to be covered' would be 'SW Sector (Rockingham), Amarillo (Rockingham/Murray), Mandurah/Pinjarra Corridor and South Metropolitan and Peel rural areas (Murray/Serpentine-Jarrahdale)'.[779] Notes of the Scoping Workshop discussion, which appear to have been made by officers of the DPI, described the Workshop as a 'Briefing Workshop' for the 'Southern Sectors Review'.[780] Dr Montgomery also regarded this workshop as forming part of the Southern Sectors Review.[781]
635 However, there was other evidence to suggest that the Workshop was held because it was recognised that future planning for the region needed to accommodate the long-term transport needs of the region. Even so, it was clearly intended that the discussion at the Workshop would extend well beyond transport issues. In preparation for the Scoping Workshop, Mr Auret of the DPI was asked to prepare a working plan showing the main projects presently being undertaken within the Southern Metropolitan and Peel Regions, and to prepare a preliminary 'Opportunities and Constraints' map of the study area.[782]
636 The minutes of the Scoping Workshop indicate that it was attended by officers from the DPI, the Department of Housing and Works, the Public Transport Authority, Landcorp, the Department of the Environment, Main Roads, and the Peel Development Commission, as well as representatives of the Town of Kwinana, the City of Rockingham, the City of Mandurah, the Shire of Murray and the Shire of Serpentine/Jarrahdale, and representatives from Taylor Burrell Burnett, Syme Marmion and Angela Clare Consultancy Services (consultants engaged by the Department of Housing and Works to work on the Amarillo project).
637 Attendees at the Scoping Workshop were invited to provide, prior to the Workshop, a list of the principal issues and key sites that were relevant to structure planning in the areas under discussion.[783] Mr Vernon Langdon, from the Department of Housing and Works, responded to that invitation by suggesting that Amarillo was the key site for development in the region.[784] In contrast, Mr Syme from Syme Marmion responded by identifying a range of what he described as the 'principal issues for the South West Corridor and Peel', namely land supply, options for settlement patterns (including land use and density of development, environmental constraints and transport sustainability) and employment in the regions, and suggested that the key sites in the region were the area covered by the Jandakot District Structure Plan, Amarillo, Nambeelup industrial area and the Mandurah central business district.[785]
638 The breadth of the issues discussed at the Scoping Workshop is apparent from notes of the meeting which were in evidence. The meeting commenced with an overview by Mr Mike Mouritz, of the DPI, of the planning 'initiatives' being undertaken in the South Metropolitan and Peel Regions, namely Network City, urban growth management, the Highway, the Perth-Mandurah railway, 'environmental constraints', 'Amarillo impacts' and 'ensuring broad scale structures are compatible'.[786]
639 The facilitator who led the Scoping Workshop, Ms Wendy Morris, then outlined the structure of the Scoping Workshop and 'stressed the need for sustainable regional planning and the use of principles that would ensure its delivery'.[787] According to the meeting notes, Ms Morris 'provided examples of broad-scale regional structure planning that had been undertaken in other large cities/metropolitan regions and stressed that we need to plan long term (100 years) and then work back to shorter term planning horizons'.[788]
640 Officers of DPI addressed the Scoping Workshop. Their topics covered the implications of the Metropolitan Development Program in the South Metropolitan and Peel Regions, the balance between greenfield land supply and Network City intentions, commercial centres in the South Metropolitan and Peel region, public transport services in the South Metropolitan and Peel region, and the existing and planned regional roads in the region.[789]
641 Mr Bill Burrell from Taylor Burrell Burnett provided an overview of the proposed Amarillo development. The discussion that followed his presentation included discussion of 'linkages back to Mandurah', 'DPI regional planning considerations', 'absence from Network City' and 'the need for a sustainability audit'.[790]
642 There were also presentations dealing with environmental issues in the region, Landcorp's interests in the region, and issues being faced by each of the local governments in the region.
643 Notes made by those who attended the Scoping Workshop understandably focused on issues of significance to their agency and area of responsibility. Mr Cameron Bulstrode, from the DPI's Mandurah Office, suggested that 'planning is dated' and that a 'review of Structure Plan [was] urgent.'[791] Mr Richard Elliott from the Department of Housing and Works, focused on the Amarillo development. He described it as a 'timely provision of land', in circumstances where 'buyers are needing to camp out to purchase land' and 'Housing and Works [is] trying to tackle [demand] in balanced way, therefore pushing Amarillo'.[792] Mr Broadhurst attended the Scoping Workshop on behalf of Main Roads.[793] In a file note he prepared about the Workshop, Mr Broadhurst noted that the issues discussed included residential and industrial development along the Kwinana Freeway and the Highway, where there was pressure to rezone land (which was currently zoned rural) for urban development, location of railway stations and the extension of passenger rail beyond Mandurah.[794]
644 The participants at the Scoping Workshop agreed that a further workshop should be held in May to continue discussion of these issues, and to assess a number of land use scenarios.[795] It was proposed that another workshop be held to identify the preferred land use and transport scenario once more detailed modelling and assessment was completed.[796]
645 The evidence in relation to the Scoping Workshop illustrated three things. First, it was clearly appreciated that the planning issues which required consideration pertained to a wide area across the Southern Metropolitan and Peel Regions. Secondly, although transport and access to Amarillo was one of the drivers for the Scoping Workshop, the discussion was not intended to be, nor was it in fact, confined to Amarillo, or to transport issues pertaining to Amarillo, or to the particular planning issues which would need to be resolved for the development of Amarillo. Instead, a wide range of planning issues pertaining to the Southern Metropolitan and Peel regions were discussed. Thirdly, at least within the DPI, the Scoping Workshop was seen as the commencement of a planning review process encompassing the entire Southern Metropolitan and Peel regions, and which was referred to in shorthand as the 'Southern Sectors Review'.
646 The next Scoping Workshop was held on 3 and 4 May 2006.[797] Representatives of the same organisations and agencies as had attended the first Scoping Workshop were again invited to attend.[798] The workshop was attended by approximately 60 stakeholders from local government and State government agencies and some of their consultants.[799]
647 The agenda for that Scoping Workshop which was referred to as an 'Enquiry-by-design Scoping Workshop' indicates that after updates on issues discussed at the first Workshop, and an overview of the key issues and their implications for strategic planning in the region, the Workshop was to focus on discussion of strategic planning for the region. The aim of the Workshop was to identify additional information which was required, to discuss hypothetical growth scenarios, to prepare a preliminary urban structure concept plan for the region in response to those various scenarios, and to identify any new issues which emerged which required further investigation and the next steps required to be taken 'to progress the regional structure plan for Metro South/Peel'.[800]
648 The notes of this Workshop - which referred to it as the 'Southern Sectors Review - Enquiry by Design Workshop[801] - indicate that issues identified in the Workshop included the development of Mandurah and Rockingham, questions about infrastructure including 'questions about diverting freeway around Amarillo',[802] the implications of Network City (including the location of an activity corridor from Mandurah to Ravenswood or Mandurah to Pinjarra, and whether a new commercial node should be created on Old Mandurah Road), environmental issues (including the sensitivities of the Serpentine River and the need to protect sources of drinking water), urban growth (including development of the Ravenswood centre and the extent of the Ravenswood residential area), and Amarillo (including the fact that a high density development in Amarillo would mean less urban land would be required in the south Pinjarra corridor, whereas if Amarillo did not go ahead, the Furnissdale/Pinjarra corridor could be developed).[803]
649 These issues were explored by reference to seven different development scenarios.[804] These envisaged different time frames for development across the region, and the different kinds and location of development which could be pursued. Only one of those scenarios postulated a 'Freeway (Highway)-induced market led growth, including south of Pinjarra, through Shire of Murray. (The laissez-faire option)'.[805] This scenario envisaged that Amarillo would be developed, that land south of Pinjarra along the Highway extension would be developed as predominantly residential, and that Ravenswood would be developed as a major centre at the Highway interchange.[806]
650 After the second Scoping Workshop was held, Dr Montgomery from the DPI prepared a progress report for the WAPC dated 25 May 2006 (the Southern Sectors Review Progress Report).[807] In the Southern Sectors Review Progress Report, Dr Montgomery referred to the Scoping Workshops as part of the 'Southern Sectors Review'.[808] By that stage, it thus appears that the Scoping Workshops had come to be seen as the commencement of a project aimed at considering planning issues in general, and structure planning in particular, for the South West, Peel and South East regions.
651 In the Southern Sectors Review Progress Report, Dr Montgomery explained the purpose of the Southern Sectors Review as being 'to plan for the next 30 years and beyond, with the development of a potential regional structuring (sic) plan for the next 100 years.' He noted that the key objectives of the Southern Sectors Review included 'to plan for the coordination of land use, transport, utility infrastructure, conservation and other key strategic planning issues in the Southern Sectors', 'to plan for the increasing land development pressures in the Southern Sectors, particularly in the South West and Peel', 'to develop a 30year planning and management strategy for the Southern Sectors', 'to engage appropriate stakeholders' and to develop partnerships.[809] It was intended that 'Sector Managers' would be appointed for each region, whose role would be to 'participate in the Southern Sectors Review and to establish priorities for the next five to 10 years' including 'to identify the 'hot spots' for priority planning' and to ensure 'an urban land bank' in each region.[810]
652 In the Southern Sectors Review Progress Report, Dr Montgomery also expanded on the issues identified in the second Workshop. He noted that these included the 'role of Amarillo - urban land bank or relief valve for land supply/affordability' and 'role of the WAPC in managing land development pressures, especially around the extended freeway'.[811]
653 Dr Montgomery noted that the next workshop in the Southern Sectors Review was to be held in July 2006 at which the aim would be to refine the scenarios already considered and 'to create some viable options for structuring the area'.[812]
654 The Southern Sectors Review Progress Report recommended that the WAPC 'recognise the Southern Sectors Review as an important implementation project'.[813]
655 At its meeting on 30 May 2006, the WAPC resolved to accept that recommendation.[814] It was also agreed that there 'was a need to develop high order policy directions for the Peel region' and that 'this particular situation highlighted the need to progress Network City as quickly as possible'.[815]
656 Clearly, then, from May 2006, the WAPC formally recognised that the Southern Sectors Review planning exercise was underway. Each of the planning experts acknowledged that that was the case,[816] although Mr Kerr's evidence was that he was not aware of the description of the review as the 'Southern Sectors Review' as at the Date of Taking.[817]
657 At its meeting on 27 June 2006, the WAPC considered both the Southern Sectors Review and Amarillo. Dr Montgomery's evidence was that at that meeting, the WAPC received a briefing in relation to the proposal by the Department of Housing and Works for the development of Amarillo.[818] The WAPC resolved to 'request DPI to consider Amarillo in the current structure planning review of the Southern Sectors'.[819]
658 By June 2006, Taylor Burrell Barnett had prepared an Amarillo Position Paper (the Amarillo Position Paper) which included a further draft Amarillo Master Plan, for review by the Amarillo Steering Committee at its meeting in June 2006. The Department of Housing and Works intended that it would then seek endorsement of the Amarillo Master Plan from government before undertaking expenditure associated with the next phase of the rezoning process.[820]
659 The Amarillo Position Paper referred to Regional Planning and noted that:
The key outcome to date has been the acceptance that regional planning is urgently needed in the South metropolitan and Peel regions to ensure that structure problems are avoided and planning decisions are made on a sound basis. Land supply and the key question of affordability also need to be addressed.
Regional planning has provided a strong context for Amarillo and at the same time raised questions for the future role of Mandurah as a regional centre, the need for an integrated transport study involving high speed rail, heavy rail, light rail and bus networks, and the future of the Nambeelup/Ravenswood locality within the Pinjarra growth corridor.[821]
Amarillo, Nambeelup and Ravenswood form the natural extension of the South-West Corridor and an obvious hinterland to Mandurah.
Amarillo fits into the district structure planning by virtue of the access afforded by the Kwinana Freeway and the activity corridor linking Stake Hill and Karnup stations with Amarillo Town Centre, its three villages, Nambeelup industrial area via Lakes Road and Gordon Road to Mandurah.
An integrated transportation study is needed for the Mandurah/Rockingham district to evaluate fixed route public transport links to the railway route and in particular Karnup station ... .[822]
661 The draft Amarillo Master Plan was published in July 2006 by Taylor Burrell Barnett.[823]
662 In the draft Amarillo Master Plan, Taylor Burrell Barnett summarised the 'unique' features of the Amarillo land as including its connection to the Highway at Paganoni Road, and its direct link to the future Karnup railway station.[824] Its strategic importance was described as follows:
A large, single ownership land parcel located on transport infrastructure warrants close attention in regional planning terms. When viewed in relation to Nambeelup and Ravenswood it is of strategic planning and economic importance for its ability to deliver affordable land, employment and infrastructure for the wider area. The rationale for the Amarillo development strategy may be summarised as follows:
When viewed in the context of Mandurah and the Pinjarra Growth Corridor, Amarillo is a logical part of the district structure and needs to be planned and developed in a timely manner to meet local demand for housing, jobs and community facilities.'[825]
664 The draft Amarillo Master Plan also suggested that Amarillo would be developed in 7 stages. Proposed stage 1 was a small development to the west of the Serpentine River immediately adjacent to the proposed intersection of the Highway with Paganoni Road. Proposed Stages 2 to 7 were all located east of the Serpentine River.
665 The Amarillo Steering Committee met on 25 July 2006 to consider the draft Amarillo Master Plan. One of the issues discussed at that meeting was access to Amarillo from the Highway. Mr Van Den Dries, who attended that meeting on behalf of Main Roads Western Australia noted that no reliable traffic modelling had been done that included Amarillo, and that 'the inclusion of Amarillo may ... increase pressure on the current planned route of [the Highway]'.[828]
666 Both Mr Ferraro, and Mr Allen, who worked within the DPI in 2006, gave evidence of their knowledge and understanding of the Southern Sectors Review and its purpose. Mr Ferraro's evidence was somewhat inconsistent and confusing on this issue. His evidence was that the purpose of the Southern Sectors Review was to provide a regional context to enable Amarillo to be progressed as a result of the Highway.[829] Mr Ferraro's view was that, without Amarillo, the Southern Sectors Review was not necessary as the regional structure planning between Rockingham and Mandurah, and between Mandurah and Pinjarra, was largely in place, although the latter would have been reviewed through the preparation and completion of the FPSP.[830] However, Mr Ferraro also expressed his agreement with the evidence of Mr Allen in the concurrent session.[831] Mr Allen's evidence was not consistent with Mr Ferraro's evidence. Mr Ferraro also expressed the view that the purpose of the Southern Sectors Review was to apply Network City to the IPRSP.[832] That was an odd view, not least because the Southern Sectors Review covered a vastly larger area of the southern sectors and Peel regions than did the IPRSP itself.[833]
667 I prefer the evidence given by Mr Allen and especially that given by Dr Montgomery in relation to the purpose of the Southern Sectors Review.
668 Mr Allen's evidence was that the Southern Sectors Review emerged from the realisation in early 2006 that it was necessary to bring an ordered approach to the variety of different projects that were underway, or proposed, or under discussion, in relation to the Peel region and to the southern end of both the southwest and southeast corridors of the Perth metropolitan region.[834] He noted that as at the Date of Taking, it was not entirely clear to him what the objective of the Southern Sectors Review was, because it was not directed to establishing a new structure plan for the region.[835] (Mr Ferraro agreed.)[836] However, Mr Allen's evidence was that he would defer to the evidence of Dr Montgomery on the question of the objectives of the Southern Sectors Review.[837]
the purpose of the Southern Sectors Review was to plan for the next 30 years and beyond, with the development of a potential regional structuring plan for the next 100 years. The Southern Sectors Review covered the SouthWest Peel and SouthEast Sectors.[838]
670 On 25 July 2006, Dr Montgomery prepared a report to the WAPC on the progress of the Southern Sectors Review (the Peel Sector Issues Report).[839] Dr Montgomery explained that the purpose of his report was to 'highlight the issues and challenges raised in the Southern Sectors Review and to seek direction from WAPC'.[840] The Peel Sector Issues Report contains a useful summary of developments in relation to the review of structural planning issues in the Peel region which had taken place during the two years prior to the Date of Taking, and the issues arising from those developments which were likely to be of concern to the WAPC.
671 Dr Montgomery noted that in July 2004, the PRPC requested consideration of amendments to the PRS. In September 2005, the PRPC considered a proposal to initiate a FPSP (to be conducted within a short time frame) and a review of the IPRSP (to occur over a longer time frame). However, Dr Montgomery noted that ultimately the PRPC had resolved that a wider review should be undertaken:
[P]rior to strategic planning at the district or region level, a wider strategic planning overview which encompassed the South West corridor was required due to the development pressure in Rockingham and Amarillo. As a result of the above, the Urban Growth Management Division is progressing a South Metropolitan and Peel Sector Review.[841]
672 The Peel Sector Issues Report also acknowledged urban growth pressures in the Peel Region, including the following:
Land Adjoining the Perth-Bunbury Highway to Pinjarra
As development pressures have continued the Shire has been in favour of significant additional urban land release between the proposed freeway in the west, Patterson Road in the north and Greenlands Road in the south. ...[S]tructure planning ... has currently progressed on behalf of land developers between Patterson Road and Pinjarra Road east of the freeway. The Shire of Murray has prepared and adopted a Local Planning Strategy and referred it to the WAPC for advertising in November 2005 together with a Town Planning Scheme Amendment.[842]
673 The Peel Sector Issues Report also dealt with developments in relation to the implementation of Network City, and the Southern Sectors Review. Dr Montgomery noted:
The Network City framework is in diagrammatic form and graphically indicates how the principles of Network City may be applied. More substantive development of these concepts is currently progressing, together with work that is developing the metropolitan structure. In the southern sectors the application of Network City concepts is being progressed on a large scale.
Work on the Southern Sectors Review including the objectives, the workshops held in February and May 2006, the issues and challenges raised, and the subsequent work ... have been previously reported to the WAPC. The Southern Sectors Review covers the South West, South East and Peel Sectors.
At this macro level this work has progressed our understanding of the challenges and opportunities of applying Network City principles to metropolitan planning in the southern sectors.[843]
674 The Peel Sector Issues Report then referred to issues arising from the implementation of Network City principles in three specific areas in the Peel Region, one of which was the land east of the Highway, including Amarillo, Nambeelup, and southern growth areas. Dr Montgomery made the following observations:
South of Nambeelup the Peel Region Scheme identified isolated pockets of urban zoned land at Ravenswood, and South Yunderup. This area is low lying and much of it lies close to the Murray River. As planning for these areas has progressed it has begged the question whether this should anticipate additional development of adjoining land in the future. The Shire of Murray and the WAPC has had to address these questions in practice when considering structure planning proposals. The Shire has declared itself clearly in favour of large scale urbanisation through this area in its adopted Local Planning Strategy which has fuelled speculative acquisition by land developers. The WAPC needs to respond when it is satisfied that the strategic planning implications in relation to Network City have been fully assessed.[844] (emphasis added)
675 Finally, Dr Montgomery posed a large number of questions which it was suggested arose in relation to planning in these areas, including questions relating to the environmental impacts of development, the criteria which should be adopted to ensure Network City principles were embodied in future development, and the impact of Amarillo and Nambeelup on Mandurah.[845]
676 I accept that the Peel Sector Issued Report provides the most recent summary of the history and areas of inquiry for the Southern Sectors Review, as at the Date of Taking.
Shire of Murray and the WAPC has had to address these questions in practice when considering structure planning proposals. The Shire has declared itself clearly in favour of large scale urbanisation through this area in its adopted Local Planning Strategy which has fuelled speculative acquisition by land developers. The WAPC needs to respond when it is satisfied that the strategic planning implications in relation to Network City have been fully assessed.[846] (emphasis added)
677 Finally, Dr Montgomery posed a large number of questions which it was suggested arose in relation to planning in these areas, including questions relating to the environmental impacts of development, the criteria which should be adopted to ensure Network City principles were embodied in future development, and the impact of Amarillo and Nambeelup on Mandurah.[847]
678 I accept that the Peel Sector Issued Report provides the most recent summary of the history and areas of inquiry for the Southern Sectors Review, as at the Date of Taking.
(c) Can it be said that the proposed development of Amarillo was 'attributable to' the Highway, so that it should be disregarded for the purposes of considering the highest and best use of the Kelliher land in the unaffected scenario (without the Highway)?
679 In my view, the evidence does not provide any basis for the conclusion that Amarillo was 'attributable to' the Highway, in the sense in which that phrase is understood within the context of s 241(2) of the LA Act. That is, the evidence does not support the conclusion that the proposed development of Amarillo was pursued in order to bring about the Highway, or with the intention of facilitating, or for the purpose of creating, the Highway.
680 The Highway was being planned long before the purchase of the Amarillo landholding. There was nothing in the evidence in relation to the acquisition of the Amarillo landholding to suggest that that land was purchased so as to bring about, or facilitate the construction of the Highway. And there was nothing in the evidence in relation to the steps taken by the Department of Housing and Works, or the DPI or the WAPC, in relation to the proposed development of Amarillo to suggest that the proposed development was pursued with the intention of facilitating the construction of the Highway. Instead, the proposed development of Amarillo was driven by a belief within the Department of Housing and Works that there was a shortage of land for development, which was driving prices up, and that Homeswest should acquire a large bank of land to support its objective of providing affordable housing.
681 The focus of the plaintiffs' case was that the Highway itself made the development of Amarillo possible, and that without the Highway, Amarillo had no realistic prospects for development in the short or medium term.[848] The evidence supported the conclusion that the proposed construction of the Highway was considered advantageous for the proposed development of Amarillo. But in my view, the evidence does not support the conclusion that the proposed construction of the Highway made the development of Amarillo possible, when otherwise Amarillo had no realistic prospect of urban development in the short to medium term. I have outlined the basis for that view below.
682 In any event, the key point for present purposes is that to ask whether the Highway facilitated the development of Amarillo is the wrong question for the purposes of assessing the value of the Taken Land under s 241(2) of the LA Act. And it is the wrong question for assessing the value of any injurious affection to the Remaining Land under s 241(7)(b) of the LA Act. The question for the purposes of s 241(2) is not whether the Highway facilitated the development of Amarillo, but whether Amarillo facilitated the development of the Highway, or was a step in the development of the Highway, and thus was 'attributable to' the Highway. Similarly, the question for the purposes of s 241(7)(b) is whether the carrying out of the Highway (including the steps attributable to the Highway), or the proposal to carry out the Highway, caused a reduction in the value of the adjoining land. In the latter respect, the question again is whether Amarillo was attributable to the Highway.
683 In my view, there is no basis for concluding that the proposed development of Amarillo was 'attributable to' the Highway within the meaning of that phrase in s 241(2) of the LA Act. Accordingly, the proposed development of Amarillo need not be disregarded for the purpose of assessing the prospects of the Kelliher land for rezoning in the unaffected scenario, for the purpose of assessing the value of the Taken Land under s 241(2) of the LA Act.
(d) Can it be said that the proposed development of Amarillo was attributable to the Highway, so that any damage due to a reduction of the value of the Remaining Land, caused by the carrying out of the Highway (and thus of Amarillo) sounds as damage for injurious affection under s 241(7)(b)?
684 For the same reasons that I have concluded that the proposed development of Amarillo was not 'attributable to' the Highway, the proposed development of Amarillo cannot be equated with the Highway for the purposes of s 241(7)(b) either. Consequently, in considering whether the carrying out of the Highway caused a decrease in the value of the Remaining Land, the adverse impact (if any) of the proposed development of Amarillo on the value of the Remaining Land is not taken into account for the purposes of assessing compensation for injurious affection under s 241(7)(b) of the LA Act.
(e) Can it be said that the Southern Sectors Review was 'attributable to' the Highway, so that it should be disregarded for the purposes of considering the highest and best use of the Kelliher land in the unaffected scenario (without the Highway)?
685 There is nothing in the evidence which supports the conclusion that the Southern Sectors Review was conducted in order to facilitate the Highway, or that the Southern Sectors Review was a step in the process leading to the Highway. Nor is there any evidence which supports the conclusion that issues relating to the development of Amarillo were included within the Southern Sectors Review in order to facilitate the Highway.
686 Accordingly, in my view, it cannot be said that the Southern Sectors Review was attributable to the Highway. As a result, there is no need to disregard the Southern Sectors Review for the purpose of considering the unaffected scenario in determining the value of compensation for the Taken Land under s 241(2) of the LA Act.
(f) Can it be said that the Southern Sectors Review was attributable to the Highway, so that any damage due to a reduction of the value of the Remaining Land, caused by the carrying out of the Highway (and thus of the Southern Sectors Review) sounds as damage for injurious affection under s 241(7)(b)?
687 For the same reasons that I have concluded that the Southern Sectors Review was not 'attributable to' the Highway, the Southern Sectors Review cannot be equated with the Highway for the purposes of s 241(7)(b) either. Consequently, in considering whether the carrying out of the Highway caused a decrease in the value of the Remaining Land, the adverse impact (if any) of the Southern Sectors Review on the value of the Remaining Land is not to be taken into account for the purposes of assessing compensation for injurious affection under s 241(7)(b) of the LA Act.
688 The plaintiffs advanced a broader construction of s 241(7)(b) than that which I adopted. In this part of my reasons, I consider whether the case the plaintiffs advanced in relation to Amarillo and the Southern Sectors Review was made out on the evidence.
689 As I have already mentioned, the plaintiffs' case is that without the transport and access links afforded by the Highway, it would not have been possible to provide a regional context for Amarillo, and the Southern Sectors Review would therefore not have been commenced. The plaintiffs' case is that the Highway made the development of Amarillo possible, that the development of Amarillo necessitated the Southern Sectors Review and that the Southern Sectors Review caused delay in the completion, and uncertainty as to the likely outcome, of the review of the IPRSP, particularly uncertainty as to whether the Kelliher land would be rezoned for urban use.[849] The plaintiffs say that the hypothetical Spencer parties would have concluded that the timeframe for the urban development of the Kelliher land was much less certain, and that as a result they would have concluded that the Kelliher land would not be zoned for urban development and ripe for subdivision for a further three to five years (as compared with the position in the unaffected scenario). The plaintiffs' case is that that would have sounded in a reduction in the value of the Kelliher because otherwise the Kelliher land would have been zoned for urban use, and ripe for subdivision, within five to six years from the Date of Taking.
690 For the reasons set out below, the plaintiffs did not make out the case they advanced. That is, the evidence does not support the conclusion that the Highway itself made possible the development of Amarillo, or that the development of Amarillo necessitated the Southern Sectors Review. (For the avoidance of any confusion, it is appropriate to mention here that for the reasons I set out later in these reasons, I have also concluded that the plaintiffs did not make out their case that the Kelliher land would have been rezoned and ripe for subdivision within five to six years from the Date of Taking. Consequently, it cannot be said that as a result of the Southern Sectors Review, there would be any delay in the rezoning and subdivision of the Kelliher land.) Accordingly, even if the plaintiffs' view on the construction of s 241(7)(b) is correct, I am not persuaded that either Amarillo or the Southern Sectors Review caused a reduction in the value of the Remaining Land which supports a claim for injurious affection damage under s 241(7)(b) of the LA Act.
691 This part of the plaintiffs' case was based on the evidence given by Mr Burrell. Mr Burrell's view was that the urban development of Amarillo was dependent on regional road access. Mr Burrell's opinion was that
the major transport link provided by the Highway extension provided the impetus to allow Amarillo to be progressed despite the resistance from the DPI and other government agencies.
Without the access provided by the Highway extension, it is my view that the Amarillo development would have stalled until and unless an adequate alternative road network was constructed.[850]
692 Mr Burrell's evidence was that, in the absence of the Highway, there would not have been any substantial progress in the development of Amarillo until an adequate road network was constructed. Consequently, it was his opinion that 'absent the Highway extension in July 2006, the Amarillo development would not have had any viable prospects for urbanisation until at least 2016, and possibly much later'.[851]
693 Mr Burrell's evidence was that prior to the Date of Taking, and in the real world (with the Highway), planning in relation to the Amarillo development had been concerned with the development of the whole of Amarillo, within its regional setting. The Amarillo Masterplan contemplated that the development of Amarillo would ultimately house 90,000 people, although one projection involved accommodating as many as 120,000 people.[852] In his witness statement, Mr Burrell said that at the Date of Taking, the planning of the Amarillo development was:
substantially progressed and had reached the point where:
(a) strategic regional planning was underway and key issues had been clearly identified;
(b) environmental studies were largely completed;
(c) the vision for [Amarillo] as a Smart Growth New Town based on mixed use and transit oriented development had been clearly defined;
(d) stage 1, comprising 1,200 lots, had been designed and was being seriously contemplated for urban deferred zoning;
(e) overall, there was a viable business case for the short-term urbanisation of Amarillo ...; and
(f) although there was a broader strategic assessment of the region being undertaken, I had a high degree of confidence that the outcome of that assessment would be support for the short-term urbanisation of Amarillo.[853]
694 The planning experts also gave evidence of their opinion of the significance of the Highway for the development of Amarillo. Mr Allen's evidence was that:
... I consider it to be a fair statement that Amarillo needed the [Highway] to add weight to the arguments in favour of it being developed. This is not to say that it does not have other hurdles to overcome, but without the Highway it would potentially become a dysfunctional community and very hard to justify as a major development area in the Peel and southwest metropolitan regions.[854] (emphasis added)
695 Although Mr Allen expressed the view that 'Amarillo [was] critically dependent on the [Highway] for its development to occur',[855] he did not suggest that the Highway of itself made the development of Amarillo viable. On the contrary, he observed that
Amarillo would have struggled to earmark as a potential development area in the IPRSP and subsequent planning discussions had it not been for the fact that it is a governmentowned landholding and represents a significant land bank. I believe that being a government landholding is of even more significance for its development potential than its access to the [Highway].[856] (emphasis added)
696 The significance of the Highway for the development of Amarillo was also explored in the planning experts' concurrent session. The planning experts were asked to consider a scenario in which the Kwinana Freeway terminated at Safety Bay Road and the existing road network remained the same, without a relatively direct regional road south of Safety Bay to connect Amarillo. Mr O'Neill's view was that that would have restricted or inhibited the prospects for development of the Amarillo land and delayed those prospects.[857] Mr Allen broadly agreed with Mr O'Neill's view. He saw the absence of the Highway as a 'significant impediment' in terms of the timing of the Amarillo development.[858] Mr Allen's view was that if there was no major road adjacent to the Amarillo landholding, such a road would have to be provided to bring Amarillo into prospects for urban development. Mr Kerr and Mr Ferraro agreed with that view.[859]
697 I accept that the Highway was an important factor in ensuring the viability of the development of Amarillo. But it was clearly not the only factor which had to be resolved before the development of Amarillo could proceed. Although the evidence given by Mr Burrell in his witness statement, which I have quoted above, paints a very optimistic picture about Amarillo's prospects for urban development, Mr Burrell's evidence in cross examination demonstrated that that view was, with respect, excessively and unrealistically, optimistic. In my view, the evidence as a whole does not support the conclusion that the Highway itself made the development of Amarillo viable, when it would otherwise not have been viable for urban development in the short to medium term. I have reached that view for the following reasons.
699 Secondly, Mr Burrell sought to suggest that proposed development of Amarillo had broad government support. The evidence did not support that conclusion. In his witness statement, Mr Burrell said that the position at the Date of Taking was that Stage 1 of Amarillo was being 'seriously contemplated' by government agencies, particularly the DPI.[862] I understood that evidence to mean no more than that government agencies were assessing whether Stage 1 of the urban development of Amarillo could, and should, be pursued.
700 The proposal to develop stage 1 of the Amarillo development , which was located west of the Serpentine River, had emerged in 2006.[863] The stage 1 development of Amarillo was of a very small size: it was envisaged that it would only involve about 1,200 lots, which would house approximately 3,500 people.[864]
701 In contrast, the evidence I have discussed above at some length amply demonstrates that notwithstanding the efforts of the Department of Housing and Works, there remained considerable reservations within government, and particularly within the DPI and the WAPC, as to whether the urban development of Amarillo should be pursued. Mr Burrell accepted that as at the Date of Taking, there was substantial resistance within the DPI to the development of Amarillo.[865] And as I have noted above, the WAPC had made clear that it would approach the proposed development of Amarillo on the basis that its urban development would need to be justified by orderly and proper planning principles. As at the Date of Taking, the reservations expressed by the DPI and the WAPC about the development of Amarillo clearly had not been alleviated by the announcement that the Highway would be constructed.
702 Mr Burrell also pointed to the fact that a 'full diamond' intersection had been included on the Highway in order to facilitate a third entry into the Amarillo development at the point known as Lymon Road.[866] Mr Burrell's view was that the inclusion of that diamond intersection was fundamental to the Amarillo Masterplan because it provided the southernmost link into the Amarillo development.[867] Mr Burrell appeared to view the inclusion of that diamond intersection as a sign of support from Main Roads for the development of Amarillo. That was not the case. Mr Broadhurst disputed that the importance of that intersection to the development of Amarillo was the reason why Main Roads modified its concept for that intersection. Mr Broadhurst's evidence was that the major consideration in Main Roads' decision was that a diamond intersection would avoid the need (and cost) of constructing an additional bridge over the Highway to provide access to the rural residential areas of land to the east of the Highway. Given Mr Broadhurst worked for Main Road at the time, I prefer his evidence. And in cross examination, Mr Burrell accepted that access to the rural residential areas east of the Highway had to be provided in some way and that changing to a full diamond intersection served that purpose.[868]
703 Mr Burrell also accepted that the progress which had been made in relation to the planning of the Amarillo development up until the Date of Taking had been largely achieved because of the resources the Department of Housing and Works was able to devote to the project, and that 'a lot of resources were going in, particularly in 2006'.[869]
704 Thirdly, the evidence established that other than in respect of the Stage 1 development of Amarillo, a number of considerable hurdles stood in the way of the development of Amarillo. Mr Burrell also accepted that there were other issues that needed to be resolved for the development of Amarillo beyond stage 1.[870] They included road construction and upgrades, including the upgrading of Paganoni Road, and the upgrade of other northsouth and eastwest roads.[871] In addition, Mr Burrell accepted that it would be necessary to construct a bridge over the Serpentine River.[872] Furthermore, Mr Burrell accepted that as at 2006, there had been no commitment from the Water Corporation to build the infrastructure required for sewerage connections necessary for the development of the land east of the Serpentine River.[873]
705 The planning experts (other than Mr Moran, who did not comment on the issue) all agreed that, as at the Date of Taking, the development of Amarillo east of the Serpentine River faced three obstacles, namely environmental issues related to the water table, access to deep sewerage services and the environmental and cost impediments of building a bridge over the Serpentine River.[874] Mr Broadhurst also agreed that it would be necessary to construct a new bridge over the Serpentine River.[875] And he noted that while the development of Amarillo would have necessitated a major upgrading of a number of key eastwest and northsouth roads,[876] a viable business case had not been prepared for the necessary upgrading of those roads.
706 Fourthly, the proposed Highway did not resolve all of the transport and access issues which needed to be resolved before the development of Amarillo would be possible. Mr Burrell acknowledged that the development of Amarillo could not proceed unless and until public transport links into Amarillo, including a railway station at Karnup, had been established[877] and he acknowledged that it would also be necessary to construct a public transport route through Amarillo to provide connections to Karnup railway station.[878]
707 Mr Broadhurst's opinion was that the development of the Highway did not resolve all of the regional transport infrastructure issues for Amarillo.[879] Mr Broadhurst's evidence was that Main Roads did not support the urban rezoning of Amarillo beyond stage 1 because further work was needed to resolve its regional road and transport connections, especially the link to the Mandurah entrance road.[880] He noted that as at the Date of Taking, there had been no environmental studies undertaken for the regional road and transport upgrades that would be required to support the development of Amarillo beyond stages 1, 2 and 3. He also noted that the proposed road link to the Mandurah entrance road had not been subject to alignment or environmental studies despite the fact that this road was considered vital to support the traffic demands of the Amarillo development. Mr Broadhurst's view was thus that 'from the perspective of infrastructure, [Amarillo] still had many hurdles to overcome'.[881]
708 Finally, the evidence suggested that the existence of these obstacles to the development of Amarillo (beyond stage 1) cast real doubt over whether the urban development of Amarillo beyond stage 1 would be possible at all. Although Mr Burrell's evidence was that, as at the Date of Taking, he was very confident that the development of stage 1 at Amarillo would proceed 'within five to 10 years'.[882] However, he acknowledged that as at the Date of Taking, he was much less confident about the timeframe for the development of the remaining stages of the Amarillo development east of the Serpentine River, and he accepted that those subsequent stages of development would not proceed for at least 10 years.
709 The planning experts took an even more pessimistic view. They were asked whether they agreed that as at the Date of Taking, it was 'anybody's guess' whether, and when, the Amarillo land east of the Serpentine River would be rezoned for urban development. Mr Ferraro agreed.[883] Mr Allen observed that there were 'still many areas of uncertainty in terms of what land or how much of the land could actually be designated for urban purposes' and agreed that it was 'an open question' as to when that land might be zoned for urban use.[884] And Mr Kerr agreed that there was 'a fair bit of uncertainty' in relation to the timeframe for the rezoning of the eastern part of Amarillo.[885]
710 Accordingly, in my view, it cannot be said that the Highway made the development of Amarillo viable, in the sense that of itself the Highway made the development of Amarillo viable.
711 The plaintiffs appeared to place little reliance on the Southern Sectors Review, of itself, for the purposes of a claim to injurious affection under s 241(7)(b).[886] As I have already explained, the essence of the case they advanced was that the development of Amarillo necessitated the Southern Sectors Review, and that the hypothetical Spencer parties would have concluded that as a result of the development of Amarillo and that Review, the rezoning of the Kelliher land was less likely to occur in the short term, and would have applied a deferment of three to five years in that rezoning taking place. The case the plaintiffs advanced in relation to the Southern Sectors Review appeared, in the end, to be no different to the case they advanced in relation to Amarillo. Counsel for the plaintiffs acknowledged that the two were inextricably linked.[887]
712 However, to the extent that the plaintiffs maintained an argument that the Southern Sectors Review itself was caused by the Highway, it is appropriate to set out my conclusion on that aspect of their case. In my view, the evidence to which I have referred at some length above does not provide any support for the conclusion that without the Highway, the Southern Sectors Review would not have been commenced.
713 In my view, the evidence clearly supports the conclusion that the Southern Sectors Review evolved over time as a result of the operation of a number of different factors the need to review the IPRSP, a recognition of the need for infrastructure planning across the broader region (stretching from the southern fringe of metropolitan Perth, through the Peel Region to Mandurah and Pinjarra and across to the Serpentine and Jarrahdale region) and in particular a need for planning to meet the transport needs of those regions, pressure for the development of parts of that broader region (including Amarillo) and the consequential need to resolve planning issues relating to the possible development of those areas (including the identification of future urban areas), and from the need to determine how environmental issues would be managed in the context of ongoing development of the Peel Region, and of Amarillo, and of the broader southern sectors. In short, the need to resolve some of the planning issues associated with the proposed urban development of Amarillo contributed to the evolution of the Southern Sectors Review. However, the proposed urban development of Amarillo was merely one of a number of factors which came to be considered as part of the Southern Sectors Review.
714 The planning experts gave evidence of their opinions as to whether a review similar to the Southern Sectors Review would have occurred whether or not the Highway had been planned, or the Highway announcement made. In so far as that evidence appears to have been directed to the question whether the Southern Sectors Review was attributable to the Highway, or caused by the Highway or necessitated by the development of Amarillo (which are questions of fact) I have treated the planning experts' evidence as relevant either because it assists in identifying any link (or lack thereof) between the Highway and the Southern Sectors Review as a matter of orderly and proper planning principles, or because that evidence provided a means to test the factual finding which I have otherwise found to be supported by the evidence.
715 Mr Allen's opinion was that there were sufficient drivers other than the Highway to generate the need for what was described as the Southern Sectors Review. Accordingly, in his view the Southern Sectors Review would have been undertaken whether or not the Highway had been planned.[888] Mr O'Neill was also of the view that the Southern Sectors Review would have been undertaken whether or not the Highway had been planned.[889] Mr Moran thought the Southern Sectors Review would have been conducted in one form or another even if the Highway had not been planned.[890] And Mr Kerr did not offer an opinion on the issue due to his lack of knowledge about the Southern Sectors Review.[891] Mr O'Neill, Mr Moran, Mr Allen and Mr Kerr also agreed that Amarillo would have been considered as part of the Southern Sectors Review even if the Highway had not been proposed.[892]
716 As to the timing of the Southern Sectors Review, Mr Moran and Mr Allen were of the opinion that the Southern Sectors Review would be likely to have happened at the same time irrespective of whether the Highway had been planned,[893] whereas Mr O'Neill's opinion was that the Highway hastened the Southern Sectors Review.[894]
717 In contrast, Mr Ferraro's evidence was that he did not agree that the Southern Sectors Review would have been undertaken in the absence of the Highway.[895] And he did not agree that Amarillo would have been included within the Southern Sectors Review if no Highway had been proposed.[896] However, Mr Ferraro did not provide any explanation for that view, and it was thus not clear why he did not agree with the view of the other planning experts that other factors would have resulted in the conduct of the Southern Sectors Review in any event. In that circumstance, I prefer the evidence given by the other planning experts on this issue.
718 I turn next to the question whether the proposed development of Amarillo necessitated the Southern Sectors Review. The evidence does not support that conclusion either. The Southern Sectors Review was underway prior to the resolution made by the WAPC on 27 June 2006 that Amarillo should be included within the Southern Sectors Review. That fact alone suggests that the development of Amarillo did not necessitate the Southern Sectors Review.
719 Furthermore, the issues which, by the Date of Taking, appeared to be under consideration in the Southern Sectors Review (environmental constraints, population growth, urban spread and the implications of Network City) were issues that had arisen not just in relation to Amarillo, but in relation to urban development in the Peel Region, and across the southern sectors more generally. And the various agencies which would need to grapple with issues concerning the urban development of Amarillo were already participating in the Southern Sectors Review. It was thus hardly surprising that the WAPC concluded that issues relating to the urban development of Amarillo should properly be considered within the context of the Southern Sectors Review.
720 I have already alluded to the fact that there is a further reason why the plaintiffs' case - in so far as it is based on the development of Amarillo and the conduct of the Southern Sectors Review - must fail. The upshot of the plaintiffs' case was that the Southern Sectors Review gave rise to uncertainty about the prospects of the rezoning of the Kelliher land. Mr Burrell's opinion was that at the Date of Taking and in the real world (with the Highway), 'the progression of strategic regional planning providing context for Amarillo ... had a significant detrimental effect on the development timeframes for land in the Furnissdale to Pinjarra corridor such as the Kelliher landholding'.[897] I am unable to accept that that was so.
721 There can be no doubt that the commencement of the Southern Sectors Review meant that it would likely be longer before the WAPC made a decision in relation to whether the IPRSP should be amended, and in particular, as to whether to designate the Kelliher land for urban or future urban development in the IPRSP. However, a mere delay in the timing of the decision as to whether the Kelliher land should be rezoned to urban, would not of itself have any effect on the prospects that the Kelliher land would be rezoned for urban use, unless that delay was so significant that a decision would not be made until after the time in which it would otherwise be expected that the Kelliher land would be rezoned and ripe for subdivision. The evidence of the planning experts, which I discuss below, does not support that conclusion.
(g) Would an alternative road network have been established in the absence of the Highway?
722 The defendant advanced an additional argument in its case on Amarillo, which was that even if the Highway had not been planned for its current route (past Amarillo and past the Kelliher land) nevertheless an alternative highway or major regional road network would have been developed, which would have extended beyond Safety Bay Road and down to the Peel Region along another route. As I understood the argument, the upshot of it was that if Amarillo was only viable with the Highway, then even if there were no Highway, an alternative road network would have been constructed to service Amarillo. Consequently, the argument went, the development of Amarillo would not have had any impact on the prospects of the Kelliher land being rezoned for urban use.
723 The case was not advanced as an argument in relation to the features of the hypothetical 'unaffected' scenario for the purpose of s 241(2) of the LA Act. Rather, as I understood the argument, it was advanced solely for the purpose of dealing with the plaintiffs' case, based on Amarillo, under s 241(7)(b) of the LA Act. Nevertheless, I have serious doubts as to whether it is open to the defendant to advance this alternative case, given that it purports to rely upon the 'unaffected' scenario and but then imports a variation of the very same public work that is excluded in the unaffected scenario. However, as it is not necessary for me to determine this question because the plaintiffs' case on the impact of Amarillo relevant to s 241(7)(b) fails for other reasons. It is, nevertheless, appropriate for me to make findings of fact relevant to whether the defendant established this aspect of its case.
724 In my view, the evidence clearly supported the conclusion that in the absence of the Highway, an alternative highway or road network would have been pursued, that alternative routes were open, and that such a highway or road network would have been planned and constructed within about the same time as the Highway.
725 I find that an alternative highway or road network would have been pursued in the absence of the Highway. That finding is supported by the following evidence. First, the evidence established that a highway from southern metropolitan Perth to Peel and the South West, had been planned since the 1970s, although its precise route was not decided until 2003.
726 Secondly, Mr Broadhurst's evidence was that alternatives to the Highway were under consideration until the publication of a report in February 2003 (the 'Peel Regional Road Network Development Strategy, Final Summary Report'). That Report recommended that the construction of the Kwinana Freeway extension and Peel deviation be pursued, rather than the alternative of progressively upgrading of existing regional roads.[898]
727 Thirdly, the planning experts agreed that it was possible that even if the Highway had not extended south of Safety Bay Road, the fact that Amarillo was in government ownership and that it had the potential to house such a large number of people, would drive some further road infrastructure tailored to support the development of Amarillo.[899]
728 Finally, Mr Burrell was similarly of the view that if the Highway had not proceeded on its current route, strategic planning would have ensured some kind of alternative road network.[900] Mr Burrell also agreed that, had the Highway not taken its current route, the IPRSP would have provided for some alternative road network system.[901]
729 Having regard to the evidence below, I find that an alternative highway or major road which proceeded south past Amarillo to the Peel Region, would have been planned and constructed.
730 Mr Broadhurst gave evidence of his opinion of how the road network would have developed in the event that the Kwinana Freeway was not extended beyond Safety Bay Road, and in the event that the development of Amarillo proceeded. Mr Broadhurst's evidence was:
There would have needed to be a regional northsouth road route developed as an alternative to the Kwinana Freeway to meet the regional traffic demands between Perth and Mandurah/Bunbury. The most likely option would have been to upgrade the existing regional roads which would have included Safety Bay Road, Innes Ave, Mandurah Road (including the Mandurah northern bypass) and Old Coast Road. This was one of the options considered in the 1993 'Kwinana Freeway route extension south of Thomas Road' report by Mains Roads, but was not the recommended option.[902]
731 Mr Broadhurst explained that it was difficult to identify potential alternative routes for the Highway because the 'alternative alignment options for the Kwinana Freeway from Safety Bay Road to Mandurah are constrained by various environmental and existing developments and infrastructure'.[903] However, he suggested that another potential regional road option would have been possible, by extending the Kwinana Freeway south to the Mandurah entrance road and from there, providing a high standard connection to the current Mandurah bypass which connected with the Old Coast Road.[904] (That alternative route was broadly consistent with a possible route for the Highway which had been identified in the 1991 Cabinet Submission in relation to the purchase of the Amarillo farm.[905])
732 Mr Burrell doubted the viability of that alternative route, because he doubted that the bridge at the Mandurah estuary could have accommodated the increased traffic.[906] Mr Broadhurst acknowledged that there would have been 'severe capacity issues' at the point of the Mandurah estuary bridge, but put pointed out that from about 2004, planning had been put in place for the duplication of that bridge.[907] Mr Broadhurst's evidence, which I accept, supports the finding that if the Highway had not proceeded along its current route, an alternative route for a highway or major road was possible, and I accept his evidence that as an alternative road network from southern Perth to Peel was necessary, it would have been constructed.
733 The evidence also established, and I find, that if an alternative highway or major road network had been constructed, which proceeded past Amarillo and then south to the Peel Region, Amarillo's prospects for urban development would have been no different from their prospects in the real world. In cross examination, Mr Burrell was asked to assume that the Highway had not proceeded on its current route but had instead proceeded along an alternative route further west to meet the old Mandurah bypass. He agreed that if that had occurred, the Amarillo development would have been relatively unaffected because it would still have had its gateway at Paganoni Road.[908] The planning experts also agreed that had the Highway taken a route past Amarillo, but then proceeded on a more westerly route closer to Mandurah, rather than through Ravenswood, Amarillo's prospects would not have changed.[909]
734 Mr Broadhurst also gave evidence as to the likely timing for road upgrades that would have been required if the Kwinana Freeway had not been extended beyond Safety Bay Road. His evidence was that
the alternative routes (Safety Bay Road, Innes Ave, Mandurah Road and Old Coast Road ...) would most likely have been progressively upgraded beginning at around the same time that the Kwinana Freeway/Forrest Highway route was constructed. This is because there would have been pressure on government to commence upgrading the alternative route as the existing coastal route would have been coming under increasing traffic demands resulting in significant level of congestion and delays.[910]
735 Mr Broadhurst's evidence was that the upgrading works would likely have been completed as a series of separate projects which would have taken a 10year period to plan, develop and construct. After that, further upgrades to provide for a full freeway/expressway standard route could have been undertaken, again as a series of separate projects.[911] Mr Broadhurst also expressed the view that had the alternative road option to which he referred been pursued namely the extension of the Kwinana Freeway beyond Safety Bay Road to the Mandurah entrance road - there would have been a similar pressure on the government to commence constructing that route in accordance with the same timeframe that applied to the Highway as at 2006.[912]
736 I accept Mr Broadhurst's evidence. I find that on the balance of probabilities, had the Highway not proceeded along its current route, an alternative highway or major road network would have been constructed within the same timeframe.
(h) Findings of fact in relation to the decision to reserve the RRF land for the RRF
737 As at the Date of Taking, it was proposed that at some stage in the future, a regional recreational facility designed to cater for the needs of the Peel Region (the RRF) would be constructed on a parcel of land comprising part of the McKay land, namely the whole of Lot 191 and part of Lot 192 on the northern side of Pinjarra Road and Old Mandurah Road (the RRF land). The RRF land is located immediately to the west of Lot 190 of the Kelliher Land, and immediately to the east of the Highway, at its intersection with Pinjarra Road.
738 In July 2006, the RRF land was acquired by the Commissioner of Main Roads for the purpose of Regional Open Space (and the balance of Lot 192 was acquired for the purpose of the Highway).[913]
739 The defendant's case is that the RRF was attributable to the Highway, and therefore should be disregarded for the purposes of assessing the value of the Taken Land.
740 The defendants also say that for the purposes of the plaintiffs' claim for compensation in respect of the Remaining Land, that the Highway caused the RRF land to be selected as the site for the RRF, that the prospects for the rezoning of the Remaining Land east of the Highway were improved by the location of the RRF, and that the consequent increase in value of that land constituted a betterment. (The defendants say that if the Highway did not cause the RRF land to be selected as the site for the proposed RRF that the RRF cannot be relevant to any betterment of the Remaining Land.)
741 In this part of my reasons, I deal first with the factual question whether the identification of the RRF land as the preferred site for the proposed RRF was attributable to the Highway.
742 Later in my reasons, I deal with the planning evidence relevant to the question whether the proposed location for the RRF on the RRF Land improved the prospects for rezoning of the Remaining Land.
(i) How did the RRF land come to be selected as the site for the RRF?
743 There was little evidence as to the way in which the RRF land came to be selected as the site for the RRF.
744 In a draft Working Paper prepared for the purpose of drafting the IPRSP in 1995, it was recognised that the contemplated structure plan for the Peel region should identify a site for a regional sports facility.[914] The Working Paper noted that four potential sites for such a facility had been identified within the City of Rockingham and in the Inner Peel Region within the area covered by the Peel Region Structure Plan.[915] The RRF Land was not among the sites identified at that stage. The four sites identified were the Lark Hill Sporting Complex, land at West Amarillo, land at North Mandurah just east of Mandurah Road, and a site of approximately 60 ha located east of the Ravenswood townsite, between Pinjarra Road, and the proposed Highway.[916] The Working Paper noted that 'the exact configuration of the site will need to be determined after more precise study of site conditions'.[917]
745 The first occasion on which the RRF land appears to have been considered as a possible location for the RRF appears to have been in January 1996, when the Council of the Shire of Murray suggested that the then Ministry for Planning give consideration to the RRF Land (which had previously been considered as a possible site for the location of a Peel TAFE College) as the site for the proposed RRF.[918] The letter in which that suggestion was made did not set out any justification for the suggestion of the RRF land as the site for the proposed RRF. (For completeness, I note that in a study done in 1992, the RRF land was identified as the preferred location for a TAFE college in the Peel Region. That conclusion was reached having regard to a range of criteria including the location of that site adjacent to the proposed southern extension of the Highway,[919] its relative proximity to Mandurah,[920] its perceived central location for the Shires of Murray, Boddington and Waroona,[921] and the opportunity to use the site to introduce a range of facilities to complement new urban areas at Ravenswood, Murray Lakes and Yunderup.[922] Ultimately, however, a different site was chosen as the preferred location for the TAFE college.[923])
746 The suggestion by the Council of the Shire of Murray that the RRF land be designated as the site for the proposed RRF appears to have met with favour. In the draft IPRSP released for public comment in July 1996, it was noted that
the regional recreational strategy being jointly produced by the Ministry for Planning and the Ministry of Sport and Recreation has identified the need for a regional recreational facility to serve the Peel Region. The preferred site for such a facility is in the Ravenswood locality. At the request of the Shire of Murray the selected site has been taken as that formerly identified as a prospective TAFE site located just north of Old Mandurah Road and just east of the future Kwinana Freeway extension. The site is very well located to serve the region and regional accessibility to the site via the Kwinana Freeway will be excellent.
Groundwater for irrigation purposes is not expected to be a problem and there are no wetlands or other environmental areas in the vicinity which could be adversely affected. The site measures approximately 60 ha.[924]
747 The reasons for the identification, within the IPRSP, of the RRF land as the site for the proposed RRF thus appear to have been the location of the RRF land in the Ravenswood locality, the fact that that location was conducive to the RRF land servicing the entire Peel Region, the proposed Highway which would make for easy access to the RRF, the prospect of access to groundwater for irrigation, the absence of environmental constraints, and the size of the site.
748 By December 1997, when the IPRSP was released, the RRF land was designated in the IPRSP as land for Open Space - Recreation.[925]
749 It was not until 2002, however, that any serious consideration was given to the proposal for an RRF on the RRF land, for planning purposes. In June 2002, consultants engaged by the Department for Planning to undertake a study of the long-term needs of the Peel region for recreational facilities, the existing provision of such facilities in the region, and opportunities for the future provision of recreational facilities, provided a report to the Department (the RRF study).[926] The major recommendation of the RRF study was to plan for the development of a major sport and recreation complex on the RRF land.[927] The authors of the RRF study noted that
the proposed location for the regional recreation complex is consistent with the [IPRSP] which identifies an area of approximately 60ha at the intersection of the Perth-Bunbury Highway (Peel deviation) and Pinjarra Road for open space recreation.[928]
750 The authors of the RRF study considered the RRF land to be a favourable site for the RRF having regard to the identification of the RRF land, where the extension of the Highway would emerge at the Fiegert Road and Pinjarra Road intersection, in the IPRSP.[929] They noted that the RRF land was zoned for recreational use in the IPRSP and represented 'an ideal location for a major regional facility'.[930] The authors of the RRF study noted that locating the RRF at that site would give it 'major exposure' and a 'high profile'.[931] In other words, the attraction of the RRF land as the site for the proposed RRF lay in the fact that it had already been zoned for recreational use in the IPRSP, and in the fact that by virtue of its location adjacent to a major road intersection (between the proposed Highway and Pinjarra Road), the RRF land would have a 'high profile'.
751 In 2005, consultants were engaged by the Peel Development Commission, on behalf of the Department of Sport and Recreation, the Shire of Murray and the City of Mandurah, to investigate the suitability and feasibility of establishing a RRF on the RRF land, as had been proposed in 2002 (the RRF feasibility study). The RRF feasibility study report recommended that there be recognition of the long term importance of the development of the RRF land as a RRF which could be jointly developed by Commonwealth, State and local government, that the State secure ownership of the RRF land, and that the Shire of Murray town planning scheme be amended to reflect residential, public purposes, education and commercial zonings in the area adjacent to the site.[932]
752 The documentary evidence supported the conclusion that the choice of the RRF land as the location for the proposed RRF was, in part, a result of the location of the RRF land adjacent to the proposed Highway. But nothing in that evidence supported the conclusion that the reservation of the RRF Land for the purposes of the RRF was a step taken in order to bring about the Highway or with the intention of facilitating or for the purpose of creating the proposed Highway, so that it may be said that the RRF was attributable to the Highway (in the sense described in Mount Lawley, as discussed above at [128]).
753 The planning experts' evidence in relation to the RRF
754 The planning experts were not in a position to give evidence as to what, in fact, led to the selection of the RRF land as the preferred site for the proposed RRF. However, the planning experts gave evidence as to whether in the absence of the Highway, and on the application of orderly and proper planning principles, the RRF reservation would still have applied to the RRF land. In giving their opinion on this question, the planning experts were asked to assume that the Highway had not been proposed for its present route, but that the Kwinana Freeway had instead extended further on its present alignment south of Safety Bay and then turned west and linked up with the old Mandurah by-pass, on a route identified in a 1991 Cabinet submission which outlined alternative routes for the proposed Highway.[933]
755 If this evidence was relevant to the factual question of why the RRF land was chosen for the RRF, it can only have been relevant for the purpose of assisting the Court to understand why the location of the Highway was a factor taken into account (as it clearly was) in the selection of the RRF land as the preferred site for the RRF.
756 Mr Allen's view was that selecting the location of the RRF would start with a consideration of the catchment area for the RRF. His view was that if the catchment was predominantly drawn from Mandurah and Murray, then Pinjarra Road was a suitable location for the RRF. He thought the location of the RRF on the RRF land[934] and on the east-west route from Mandurah to Pinjarra was a suitable location.[935]
757 Mr Moran's evidence was that the feasibility studies undertaken in respect of the RRF in 2002 and 2005 reflected
the then current planning framework in which there was no existing or planned urban development around the designate centre and a recognition that a regional recreation facility would not survive on regional attraction alone and that a population catchment would need to be manufactured around the proposed centre in order to make it viable to develop in the shorter term. This strongly suggests to me the influence the Highway had in its selection. This also reinforces the point that the prospects for urban rezonings in the Ravenswood area were enhanced by both the location of the Highway and the regional recreation centre.[936]
758 Mr Moran's evidence was that, in the absence of the Highway, the RRF would have been located at a site with good regional access but in an area where there was an existing planned local catchment. He was of the view that there were other sites around Ravenswood and nearer Mandurah that could have been chosen. He reached that view having regard to the identification of four alternative sites for the RRF, not including the McKay land, in the draft working paper prepared for the purpose of drafting the IPRSP in 1995 in which the location of a regional sports facility was discussed. Mr Moran's evidence was that he saw 'no reason why this site (that is, the RRF land) would be preferred to others in the Peel region or in Ravenswood'.[937]
759 Mr Moran's evidence was that the two criteria which would determine the appropriate site for the RRF would be location (or accessibility), and proximity to the catchment population. Mr Moran felt that the RRF land would still have merit and could still be selected for the site of the RRF even if the Highway were located elsewhere. However, in his view, if the Highway had taken a different route, other locations for the RRF may have become more attractive.[938] In essence, Mr Moran's view thus appeared to support the conclusion that as a matter of orderly and proper planning principles, the proximity of the RRF land to the Highway was not determinative, but made it a more favourable location for the RRF.
760 Mr O'Neill's view was similar, namely that in the absence of the Highway, the existing site was less likely to be the preferred location for the RRF, subject to the availability of land in alternative locations along Pinjarra Road.[939] Mr O'Neill's view was that the Highway 'contributed towards the rationale of locating the ... RRF ... in the general vicinity of its eventual location (adjacent to the intersection of Pinjarra Road and the Highway)'.[940] In Mr O'Neill's view, in the absence of the Highway, it was possible that an alternative site adjacent to a major regional road, such as Mandurah Road in the north of Mandurah, may have been identified for the RRF, but it was also possible that the RRF would have been located adjacent to, or readily accessible from, Pinjarra Road. However, Mr O'Neill acknowledged that 'given the extent of land required, and that limited availability of suitable, large landholdings, [the RRF] may still have been located as it was or close to that location'.[941]
761 Mr O'Neill's reasoning was that the RRF was intended to be a regional facility, and part of the South West corridor, so that its catchment area would include urban areas within the Shire of Murray and the City of Mandurah, as well as urban areas to the north of Mandurah within the South West corridor. Mr O'Neill noted that the City of Mandurah comprised just over 80% of the population of the Peel region, while the Shire of Murray comprised just under 20% of the population of that region. Having regard to those considerations, his view was that in the absence of the Highway, 'there would be a case for moving this location closer to the City of Mandurah ... to service the combined population more effectively'[942] by being 'closer to the centre of gravity of the larger population'.[943]
762 In addition, bearing in mind the catchment area from the South West corridor, Mr O'Neill concluded that if land were available, a location 'close to any alternative north-south major regional road would be desirable and preferable to one without such an access'.[944] In short, Mr O'Neill considered that in the absence of the Highway, a location on a north-south regional road, closer to or adjacent to, the intersection of that road with Pinjarra Road, would be the preferable location if land were available.[945] As there was no evidence as to whether suitable land may have been available in that alternative location, I placed less weight on this aspect of Mr O'Neill's evidence.
763 Mr Ferraro's view was that in the absence of the Highway, the application of orderly and proper planning principles would still have seen the RRF reservation applied to the same site. He did not agree that a location closer to Mandurah would have been preferable in order to take advantage of access from the alternative route for the Highway.[946] Mr Ferraro also did not consider that access to the RRF via a major regional road was necessary.[947] In the latter respect, Mr Ferraro's opinion appeared to be at odds with the reasoning actually underlying the selection of the RRF land for recreation within the IPRSP. I place no weight on this aspect of his evidence for that reason.
764 Mr Ferraro saw the catchment for the RRF as lying on an east-west plane, rather than a north-south plane, having regard to the RRF feasibility study, which had suggested that 62% of users of the RRF would be drawn from the City of Mandurah and 32.8% would be drawn from the Shire of Murray.[948] Mr Ferraro noted that the location of the RRF was suitable because it was close to the outer perimeter of Mandurah and to the outer perimeter of the urban area of Pinjarra. While he accepted that the RRF could have been located anywhere in Ravenswood, he thought that a location on Pinjarra Road rather than Old Mandurah Road was preferable because Pinjarra Road was the route for access to the RRF via public transport.[949] Mr Ferraro also noted that a further reason why the RRF land would remain the preferable location for the RRF even in the absence of the Highway was that it offered a lot size which was suitable for the RRF, whereas lots further west were smaller and could not accommodate the facility.[950]
765 The evidence of Mr Allen, Mr Moran and Mr Ferraro served to confirm how the catchment areas for the proposed RRF would operate on the choice of the preferred site, as a matter of orderly and proper planning principles. Their evidence confirmed why it was that the RRF land was considered the preferable site, having regard to those considerations of the catchment area for users of the proposed RRF.
766 However, what was clear from the IPRSP, including the draft of the IPRSP, and from the RRF study, and what was also apparent from the evidence of the planning experts, was that a range of factors would contribute to the identification of land for a facility such as the RRF. One of those factors was access from, and proximity to, a major road. The evidence of the planning experts did not support the conclusion, on the balance of probabilities, that on the application of orderly and proper planning principles, the RRF land would not have been chosen for the RRF in the absence of the Highway. Much would have depended on the availability of an alternative site of suitable size which also met the various criteria for the location of such a facility.
(j) Can it be said that the decision to reserve the RRF land for the RRF was attributable to the Highway, or was caused by the carrying out of, or the proposal to carry out, the Highway?
767 Having regard to the documentary evidence, and the evidence of the planning experts, there was no evidence to support the conclusion that the reservation of the RRF site as the location for the proposed RRF was a step taken to bring about the Highway, or that it was a step taken with the intention of facilitating, or for the purpose of creating, the Highway.
768 Accordingly, I do not see any basis on which it could be said that the proposed location of an RRF on the RRF land could be said to be 'attributable' to the Highway, in the sense in which that word is used in s 241(2) of the LA Act. Consequently, in my view, the identification of the RRF site as the location for the proposed RRF does not need to be excluded from consideration for the purposes of assessing the value of the Taken Land under s 241(2) of the Act. The defendant accepted that, if the Court approached the meaning of the word 'attributable' in s 241(2) of the LA Act in the way outlined by Beech J in McKay [No 7], (as I have done in these reasons) the RRF should not be discounted in assessing the value of the taken land, because the RRF was not a step taken with the intention of facilitating or for the purpose of creating the public work, namely the Highway.[951]
769 For the same reason, I am not persuaded that for the purposes of s 241(7) of the LA Act, it can be said that the RRF was caused by the carrying out of the Highway, or the proposal to do so.
770 Accordingly, in my view, if there was any increase in the value of the Remaining Land which resulted from the RRF, that increase in value need not be offset, as betterment, against any decrease in value caused by injurious affection, pursuant to s 241(7).
(k) As at the Date of Taking, and in the unaffected scenario (without the Highway) what would the hypothetical Spencer parties have known about the review of the IPRSP, the FPSP review, the Southern Sectors Review, and the proposal to develop Amarillo?
771 In my view, all of the factual material outlined above in relation to the acquisition and proposed development of Amarillo, the review of the IPRSP and the proposed FPSP review, would have been known by, or able to be obtained, by the hypothetical Spencer parties upon enquiry, as at the Date of Taking.
772 At the commencement of the trial, it appeared that the plaintiffs' case was that no information would have been available to members of the public about the Southern Sectors Review as at the Date of Taking. In their closing submissions, counsel for the plaintiffs submitted that as at the Date of Taking, the hypothetical Spencer parties 'would not have known anything about the Southern Sectors Review, other than (possibly) that workshops had been held in February and May 2006.'[952] However, they acknowledged that 'all of the individual components which would come under the umbrella of that review had been the subject of public announcement', including Amarillo.[953]
773 In so far as the existence of the Southern Sectors Review is concerned, there is no doubt that prudent enquiries by the hypothetical Spencer parties would enabled them to ascertain that the Southern Sectors Review was underway as at the Date of Taking. Mr Allen accepted that although the objective of the Southern Sectors Review may not have been entirely clear at that stage, the individual projects and reviews being considered under the umbrella of that Review were all publicly known.[954] And Dr Montgomery explained that copies of the reports prepared for the WAPC (including those concerning the Southern Sectors Review) were made available to any members of the public upon request after the report was tabled at a WAPC meeting.[955]
774 Accordingly, I find that there was no secrecy about the fact that the Southern Sectors Review was being conducted, and that the hypothetical Spencer parties could have obtained the information discussed above, on enquiry.[956] I find that inquiries by a hypothetical purchaser in respect of any planning reviews or inquiries relevant to the land at north Ravenswood, including the Kelliher land, would have resulted in the disclosure of Dr Montgomery's reports to the WAPC in respect of the Southern Sectors Review, and of documents pertaining to the Scoping Workshops in February and May 2006.
775 Accordingly, I find that reasonable inquiries by the hypothetical Spencer parties would have revealed that the Southern Sectors Review was being undertaken, and would also have disclosed the wide ranging nature of the issues which were being considered in the course of the Southern Sectors Review (and which were discussed in the documents to which I have referred above).
776 What is far from clear from the documentary evidence as at the Date of Taking, however, was the likely outcomes of the Southern Sectors Review. That that was the case was clearly due to the fact that the Southern Sectors Review was only in its very early stages as at the Date of Taking, and clearly much work remained to be done in refining the issues which the Southern Sectors Review was intended to consider, even before the resolution of those issues could occur. Similarly, it was also far from clear from the documentary evidence, as at the Date of Taking, what the likely duration of the Southern Sectors Review would be. There was no evidence of the WAPC's expectations as to the likely duration of that review as at the Date of Taking. However, the hypothetical Spencer parties would have taken expert planning advice in relation to the likely, or possible, outcomes of the Southern Sectors Review, and its likely duration. I consider the evidence in relation to that advice below.
PART 6. THE PLANNING ADVICE THE HYPOTHETICAL SPENCER PARTIES WOULD HAVE RECEIVED
777 Armed with the knowledge of all relevant facts concerning the Kelliher land, and of the planning instruments relevant to the rezoning of the Kelliher land, there is no doubt that the prudent hypothetical Spencer parties would have sought expert planning advice to assist them to assess the likely prospects of, and time frame for, the rezoning of the Kelliher land to urban, with a view to enabling them to assess, as at the Date of Taking, what premium should be paid for the Taken Land over and above its value as rural-zoned land. The hypothetical Spencer parties would also have sought expert planning advice to assist them to assess whether the prospects of the rezoning of the Kelliher land would be affected by the review of the IPRSP, the Southern Sectors Review, the development of Amarillo and the RRF. The evidence given by the planning experts enabled the Court to ascertain the advice likely to have been available to the hypothetical Spencer parties.
778 It is convenient to deal with the evidence as to this advice by reference to three themes: the process which would be involved in rezoning and then subdividing the land, the likely time frame for the rezoning of the Kelliher land for urban use, and the prospects of the land being rezoned to urban use (both in the unaffected scenario and with the Highway).
(a) Expert planning advice as to the process for rezoning and subdivision of the Kelliher land
779 As I have already concluded, I find that the hypothetical Spencer parties would be aware that in order to have the Kelliher land rezoned from rural to urban, it would be necessary for the PRS to be amended, followed by (or concurrently with) an amendment to the TPS, and to the LPS, for the Shire of Murray.
780 The evidence of the planning experts was that the process for that to occur in this case was as follows. First, the review of the IPRSP would need to result in an amendment to the IPRSP to delineate the Kelliher land for urban, or future urban, development.[957] Following the amendment of the IPRSP the PRS could then be amended to delineate the Kelliher land as subject to an 'urban' zoning.[958] In view of the review of the IPRSP, it would not be necessary to have a separate review of the PRS prior to its amendment.[959] The planning experts agreed that once the PRS was amended, the Shire's TPS 4 would then need to be amended in order for the Kelliher land to be developed for urban purposes[960] and the Shire's LPS would also need to be amended in the same way.[961]
781 I find that the hypothetical Spencer parties would have received advice reflecting the evidence set out above.
782 There was general agreement between the planning experts that the completion of the review of the IPRSP, which was commenced prior to the Date of Taking, was a prerequisite to any decision about the future urbanisation of the Kelliher Land.[962]
783 The views expressed by Mr Allen and Mr Ferraro represented slight variations on this consensus. Mr Allen's view was that the review of the IPRSP would need to be completed, at least to the extent of completion of a FPSP.[963]
784 Mr Ferraro acknowledged that if, as at the Date of Taking, an application to rezone the Kelliher land were before the WAPC, the WAPC would be bound to refuse that application given that no planning instrument identified that land for urban development (save for the draft LPS which had not even been endorsed by the WAPC for advertising and public submissions).[964] However, his opinion was that the WAPC might not make a decision on the application because of the 'potential for change on the horizon',[965] which I understood to refer to the review of the IPRSP which was underway as at the Date of Taking.
785 Mr Ferraro's view was that the review of the IPRSP was being undertaken through two processes, the Coast to Scarp Structure Plan and the FPSP review, and that the FPSP review was likely to proceed independently of the completion of the entire review of the IPRSP.[966] His view was that the conclusion of the FPSP review would have been necessary before the WAPC was likely to entertain any amendment to the PRS to accommodate the urbanisation of the Kelliher Land.[967] In cross examination, Mr Ferraro clarified his position as being that the review of the IPRSP would proceed to the point where it became clear that there was a need for more urban land in the Furnissdale to Pinjarra area, at which point a structure plan could be prepared for that area, leaving other land not ripe for urban rezoning to be considered in the review of the IPRSP.[968]
786 Having regard to my finding (above) that by the Date of Taking the proposal to proceed with the FPSP review in advance of the review of the IPRSP had not found favour with the WAPC. I find that the hypothetical Spencer parties would have received advice that it could reasonably be expected that the WAPC would not make a decision in respect of the rezoning of the Kelliher land until the review of the IPRSP was completed.
787 By the Date of Taking, however, the Southern Sectors Review had been commenced. The planning experts agreed that as at the Date of Taking, the WAPC would have deferred any decision on an application to rezone the Kelliher land, until the Southern Sectors Review was completed.[969]
788 All of the planning experts agreed that the question whether the Kelliher land should be rezoned to urban would therefore be one which would arise for consideration in the context of the Southern Sectors Review, rather than in the context of a separate application to rezone that land in particular.[970] (That is, the question whether to rezone the Kelliher land would be considered in the context of a strategic review of planning for the region as a whole, rather than in the context of a 'spot rezoning' application[971]).
789 I find that the hypothetical Spencer parties would have received expert planning advice that no decision would be made by the WAPC on the rezoning of the Kelliher land until the Southern Sectors Review was completed.
790 The evidence of Mr O'Neill and Mr Allen was that because of the different timeframes (or planning horizons) of the IPRSP and the PRS, not all of the land identified in a review of the IPRSP as suitable for future urban development would be immediately zoned for urban development under the PRS.[972] None of the other planning experts dissented from this view.[973]
791 All of the planning experts also agreed that it was likely that the review of the IPRSP would identify different categories of future urban land, and that some of these would not involve immediate or short-term urbanisation.[974] (Mr O'Neill and Mr Allen pointed out that characterisation of urban land in this way in the IPRSP was merely one way of sequencing the urban development of land.[975])
792 Mr O'Neill also pointed out (and none of the other planning experts dissented from his view) that even the intention of the draft LPS appeared to be that development of the land would be in a staged process.[976]
793 I find that the hypothetical Spencer parties would have received advice that it was likely that the review of the IPRSP would have identified different categories of future urban land, some of which did not involve immediate or short-term urban development. Accordingly, even if the Kelliher land were identified as suitable for urban development under the review of the IPRSP, it could not be expected that all of that land would be immediately rezoned for urban use. Instead, any rezoning of that land for urban use would likely take place in stages.
794 The planning experts also gave evidence as to their views about the sequencing of the urban development of land at north Ravenswood (which included the Kelliher land) in the absence of the Highway.
795 Mr Allen's evidence was that having regard to SPP 3 and SPP 3.1 those lots of land abutting Old Mandurah Road, namely Lot 190 of the Kelliher land, and Lots 10, 11 and 12 (that is, the Emmanuel land) would be developed in advance of Lots 203 and 204 of the Kelliher land.[977] Mr Moran agreed with that view.
796 Mr O'Neill also agreed. His view was that the development of the Kelliher land (possibly with the exception of Lot 190) in advance of Lots 10, 11 and 12 would be quite inconsistent with SPP 3 and SPP 3.1.[978] Mr O'Neill's view was that any urban development of the Kelliher land would most likely have taken the form of 'frontal expansion of the existing Ravenswood urbanresidential estate'.[979] Mr O'Neill's view on the prospect that the Kelliher land could be subject to ad hoc development fronts was that:
Although the prior experience of residential subdivision in the Shire of Mandurah had been somewhat sporadic and uncoordinated, the need for coordination of utility infrastructure (sewerage, drainage, water supply), as well as increasing recognition of the need for better coordinated community services and consolidation of urban development (as proposed in Network City 2004), would suggest constraints on further ad hoc and isolated urban development being approved.[980]
797 Further, as I have already noted, Mr Bowyer's evidence as to the provision of infrastructure for essential services to the Kelliher land was based on the assumption that the initial stage or stages of development of the Kelliher land would be able to be serviced by temporary connections to existing services on Old Mandurah Road and Pinjarra Road. For that reason, I accept the submission of counsel for the defendant that 'in addition to the planning imperative for logical frontal development from the existing Ravenswood town site, on Mr Bowyer's evidence, it is also an engineering necessity that the initial stages of development of the land proceed in that way'.[981]
798 Mr Kerr was also of the view that the development of the Kelliher land would expand northwards from the existing urban front (that is, at Ravenswood).[982]
799 Mr Moran and Mr Allen both acknowledged that once the land was zoned for urban development, a developer would be free to start development on the land anywhere in that urban zone.[983] Mr O'Neill agreed with that view.[984] Mr Kerr's evidence initially appeared to go further. His evidence was that once the land was zoned, the developer might start the development further north and work back towards Old Mandurah Road.[985] However, Mr Kerr subsequently made clear that his view was in fact that development would progress northwards from the south of the Kelliher land (starting at some point within Lot 190, although not necessarily immediately adjacent to Old Mandurah Road).[986] I note also that the plans provided by Mr Kerr for the development of the Kelliher land anticipated that subdivision would commence on Lot 190 around its boundary with Lot 204, and would thereafter radiate out to the other Kelliher land in a staged development.
800 Mr Kerr noted that as the Kelliher land, and Lots 10, 11 and 12 had different owners, the approach to the development would be a matter for them.[987] It thus appeared that Mr Kerr's evidence as to the likely spread of the development was not markedly different from the evidence of Mr Allen, Mr Moran and Mr O'Neill.
801 I find that the hypothetical Spencer parties would have received advice that if the land at north Ravenswood were designated for urban use, the most likely pattern of development, having regard to SPP 3 and SPP 3.1, would be that the land adjacent to Old Mandurah Road (namely Lot 190 of the Kelliher land, and Lots 10, 11 and 12) would be developed first. However, the hypothetical Spencer parties would be advised that it would be up to the individual developer or developers to determine where to commence development (as between any lots designated for urban use) and to determine where, within a particular lot or lots, the development should be commenced. In other words, even if Lot 190, and Lots 10, 11 and 12 were zoned for urban development, that did not mean that all of those lots would be developed at the same time, or that any particular lot or lots would be developed first.
802 The planning experts explained that in the urban development of a large landholding, the usual approach would be to obtain an urban zoning for the landholding, and then to develop the land in a staged fashion through the subdivision of smaller parcels of land, the size of which may vary, but which would ordinarily be in the vicinity of about 8 to 10 ha (although Mr Ferraro suggested about 2 to 3 ha was more likely for subdivision).[988]
803 Mr Kerr, Mr Moran, Mr Allen and Mr O'Neill thought it unlikely or very unlikely that the demand for urban land would be such as to justify the development of the Kelliher land on more than one urban front (for example a subdivision of land on the northern boundary of Lot 190, concurrently with a discrete subdivision of land further north).[989] Mr Ferraro's evidence was that he was unable to comment on demand, but he pointed out that there was nothing in SPP 3 to preclude development on more than one front if demand existed and the Kellihers were prepared to fund the infrastructure to permit that development (as required by SPP 3).[990] While that position might be theoretically possible, it seems to me that the approach taken by developers was far more likely to reflect the demand for urban land. Having regard to the projected population growth for the Shire of Murray and other existing residential lots in the area, it is difficult to envisage why a developer would wish to outlay the significant expenditure for multiple development fronts, or why another developer or developers would be inclined to pursue a discrete subdivision if a subdivision was already underway on the Kelliher land, in the absence of a reasonable prospect of return from sales. Accordingly, I find that the hypothetical Spencer parties would be advised that it was unlikely that the development of the Kelliher land would proceed on more than one urban front at a time.
(b) As at the Date of Taking, and in the absence of the Highway, what advice would the hypothetical Spencer parties have received in relation to the likely time frame for the rezoning and subdivision of the Kelliher land?
804 There was some disagreement between the planning experts about the timing of future urbanisation of the Kelliher Land (if it were assumed that that Land would be rezoned to urban). That disagreement related to both the completion of the planning reviews which were underway as at the Date of Taking (particularly the Southern Sectors Review) and the timing (and particularly the staging) of future subdivisional development.[991]
806 On the assumption that the entire review of the IPRSP would have been required to be completed before rezoning could be pursued, Mr Allen's estimate was that that process would take until the end of 2007.[995] However, he acknowledged that that represented a best case scenario.[996] Mr Allen also expressed the view that the review of the IPRSP could have been partially completed (in the form of the FPSP review), at the earliest by the end of 2006.[997]
807 Mr Ferraro agreed that the completion of the review of the IPRSP was likely to take two years. However, as I have already noted, he thought the more likely option would be that the review of the IPRSP would proceed to the point where a FPSP was drafted.[998]
808 In his oral evidence, Mr O'Neill appeared to depart from the pretrial consensus. Mr O'Neill's view was that the review of the IPRSP would be unlikely to be completed by the end of 2008 but was more likely to be completed within a further year (that is, by the end of 2009).[999] However, it may be that Mr O'Neill's estimate of the time frame was intended to accommodate the intervening commencement of the Southern Sectors Review.
809 Given the general consensus reached in the joint conferral of the planning experts, and having regard to their oral evidence, I am satisfied that the hypothetical Spencer parties would be advised that it was reasonable to expect that the review of the IPRSP would be completed by the end of 2007.
810 However, this estimated time frame does not take into account the impact of the Southern Sectors Review on the time frame for completion of the review of the IPRSP. As I have already noted, the hypothetical Spencer parties can be taken to have been aware that by the Date of Taking, the review of the IPRSP had been overtaken by the Southern Sectors Review. The hypothetical Spencer parties would have been advised that it could reasonably be expected that the WAPC would not make a decision in respect of the rezoning of the Kelliher land until the Southern Sectors Review itself was completed.
811 I turn, then, to deal with the planning experts' evidence as to the likely time frame for completion of the Southern Sectors Review.
812 All of the planning experts agreed that as at the Date of Taking, the Southern Sectors Review was wide ranging and was in an early stage.[1000] As is apparent from the documentary evidence (to which I have already referred) and as Mr Allen confirmed,[1001] the position at the Date of Taking was that there remained considerable uncertainty about the objectives of the Southern Sectors Review, and what outcome it was intended to achieve.
813 That necessarily had the consequence that as at the Date of Taking, the likely time frame for the completion of the Southern Sectors Review was uncertain, and this was confirmed by the planning experts' evidence. All of the planning experts (other than Mr Kerr, who did not take the Southern Sectors Review into account[1002]) agreed that as at the Date of Taking, the likely time frame for the completion of the Southern Sectors Review was uncertain.
814 Mr Allen agreed that as at the Date of Taking it was impossible to assume that the Southern Sectors Review would be finished by December 2006 (which was his estimate of the earliest possible date for completion of at least that part of the review of the IPRSP necessary to deal with the zoning of the Kelliher land). Mr Allen said he would defer to an estimate given by Mr Bulstrode, an officer in the DPI, before the Date of Taking, that if the Southern Sectors Review were pursued, it would take three years to complete.[1003] Later in his evidence, Mr Allen expressed the view that he was 'a little bit hesitant' to estimate the duration of the Southern Sectors Review given the uncertainty about its objectives, but thought that two years was a reasonable estimate.[1004]
815 Mr O'Neill agreed that two years was probably the best estimate of the duration of the Southern Sectors Review.[1005]
817 Mr Ferraro's evidence as to the likely time frame for the Southern Sectors Review was somewhat inconsistent. Initially, his evidence was that he understood that it was intended that the Southern Sectors Review should be completed by approximately mid-2006.[1008] This understanding was based on minutes of the meeting held on 1 December 2005 (discussed above) attended by officers of the DPI, Mr Broadhurst, and consultants.[1009] At that meeting, Mr Chortis of the DPI expressed the view that a broader regional review should be conducted, and should be completed within 6 months (that is, by approximately mid-2006). Mr Ferraro saw that document as signalling the emergence of the Southern Sectors Review.[1010] However, the meeting in question preceded other developments relating to the parameters of the Southern Sectors Review which occurred prior to the Date of Taking, and in my view, cannot be relied upon as indicative of a reasonable estimate of the likely time frame for the Southern Sectors Review as at the Date of Taking.
818 Subsequently, both Mr Ferraro and Mr Kerr agreed that they would defer to the evidence of Dr Montgomery (the officer within the DPI responsible for the Southern Sectors Review), as to the anticipated time frame for the Southern Sectors Review as at the Date of Taking.[1011]
819 Still later in the trial Mr Ferraro's evidence was that he was not willing to estimate a time frame for the duration of the Southern Sectors Review, but simply agreed that its likely duration was uncertain.[1012]
820 Mr O'Neill [1013]and Mr Ferraro[1014] agreed with the proposition that as a result of the Southern Sectors Review, there was additional uncertainty about the timing of any future urban rezoning of the Kelliher land. Mr Allen agreed with this proposition.[1015] Mr Kerr also agreed, although he thought that the timing was uncertain because the result of the Southern Sectors Review was unknown.[1016] Mr Moran did not agree, but only because he thought there was uncertainty about the timing of any future rezoning of the Kelliher land in any event.[1017]
821 Having regard to the documentary evidence to which I have referred, the hypothetical Spencer parties would be advised that as at the Date of Taking, the likely duration of the Southern Sectors Review was uncertain, but that the best estimate at that point in time was that the Southern Sectors Review was likely to take about two years. Furthermore, the hypothetical Spencer parties would also be advised that as at the Date of Taking, the advent of the Southern Sectors Review and the uncertainty about its outcome added to the uncertainty of the prospects of the Kelliher land for any future urban rezoning.
822 Following their pretrial conferral, Mr Allen, Mr Kerr and Mr Ferraro were of the view that the amendments to the PRS and rezoning of the Kelliher Land could have commenced immediately upon the outcome of the review of the IPRSP becoming a seriously entertained proposal, and that structure planning could have been progressed concurrently with these scheme amendments, followed by subdivisional approval, with the first stage of subdivision being completed by around 2011.[1018] In summary, their estimate was that the first stage of the subdivision of the Kelliher land could be completed within four years of the completion of the review of the IPRSP. However, as they made clear, this estimate was based on the assumption that the level of pressure for development being experienced in 2006 in the Peel Region generally would be maintained.[1019]
823 These planning experts explained this estimate in their oral evidence. Mr Kerr confirmed that, in his view, this timeframe would have been adequate for a resolution of environmental issues in relation to the Kelliher land.[1020]
824 Similarly, Mr Allen's evidence was that after the completion of the Southern Sectors Review and the review of the IPRSP, the rezoning of the Kelliher land would take another two years.[1021] He acknowledged that that represented a best case scenario.[1022] Mr Allen broadly agreed with Mr Kerr's estimate of the total time frame to subdivision.
825 Mr Moran and Mr O'Neill expressed general agreement with these time frames, but were of the view that they represented a best case scenario.[1023] Mr Moran agreed that after rezoning, the completion of the remaining steps for subdivision would take until 2011 to 2012, on a best case scenario.[1024] (In reaching this view, Mr Moran pointed out that the Kelliher land was likely to have been categorised for urban development only upon the resolution of issues concerning the provision of infrastructure and drainage of the soil.[1025])
826 However, both Mr Moran and Mr O'Neill thought there was considerable uncertainty as to whether all or any of the Kelliher Land would necessarily have been rezoned immediately following its identification for future urban development in a review of the IPRSP.[1026]
827 Mr O'Neill thought that it was unlikely that the Kelliher land would have been rezoned immediately after the review of the IPRSP, which in turn would have delayed any subdivision of that land.[1027] Mr O'Neill's view was that any rezoning of the Kelliher land would be effected in stages, because there was already (at the Date of Taking) a significant amount of land in the Shire of Murray which was in the pipeline for development, or anticipated for development on existing urban land, and that land was likely to be developed first, in accordance with Network City principles.[1028] Given the volume of that available land, Mr O'Neill expected that it would be almost 20 years before it could be expected that amendments would be made to the PRS to rezone the Kelliher land to urban.[1029] Furthermore, given the size of the Kelliher landholding, Mr O'Neill would have expected to see some staged development of that land also.[1030]
828 Having regard to the planning experts' evidence, I find that the hypothetical Spencer parties would have been advised that if the review of the IPRSP resulted in the identification of the Kelliher land for future urban use, then on a best case scenario, the first stage of subdivision of the Kelliher land could be expected to be completed within four years after the completion of the review of the IPRSP.
829 However, having regard to the evidence of Mr Moran and Mr O'Neill, in particular, I find that the hypothetical Spencer parties would also have been advised that there was some uncertainty as to whether any of the Kelliher land would be immediately zoned for urban use following the review of the IPRSP, given the existing supply of urban land, and the potential for environmental constraints in relation to the Kelliher land, which would need to be resolved.
830 The planning experts were generally agreed that after the rezoning of the Kelliher Land for urban development, the staging of any subdivision of that Land would have been dependent upon the demand for residential lots at the time. All of the planning experts expressed some uncertainty about the future rate of sales of serviced, residential lots once subdivision commenced.[1031]
831 Mr Kerr, Mr Allen and Mr Ferraro were of the view that based on what was known at the Date of Taking, it was likely that the demand for residential lots at the estimated time (2010 - 2011) of subdivisional approval of the Land would have been expected to be relatively high, assuming the level of development pressure which had been experienced in 2006 in the Peel Region generally was maintained.[1032]
832 Mr Moran and Mr O'Neill were of the view that as other land in the vicinity was already zoned for urban development, and was in the process of being subdivided and was the subject of structure planning, that this could delay the commencement and rate of development of the Kelliher Land.
833 It suffices to say that having regard to all of this evidence, I find that the hypothetical Spencer parties would have been advised that there was some uncertainty about the likely rate of subdivision of the Kelliher land once it was rezoned, as this would depend upon the existing supply of residential land, and the demand for residential lots for some years into the future.
834 The primary matter about which the hypothetical Spencer parties would have sought advice would be the prospects for the rezoning of the Kelliher land for urban use.
835 There was no dissent by any of the planning experts from the proposition that the application of orderly and proper planning principles required the planning decision maker in a particular case (for example, the WAPC) to take into account all of the factors in favour of, and militating against, a particular proposal, and in making a decision, to apply the law as set out in the PD Act, and the policies included under the umbrella of the State Planning Framework set out in SPP 1.[1033]
836 The evidence of the planning experts focused on the significance they considered likely to be attributed to, or the conclusion likely to be reached by, the WAPC, in relation to the following factors:
(i) The existing zoning of the land under the IPRSP, and the principles from the IPRSP which would bear upon the decision whether to rezone the Kelliher land;
(ii) Factors which would be taken into account in the Southern Sectors Review;
(iii) The application of the principles of Network City;
(v) The advent of the Southern Sectors Review and the review of the IPRSP;
(vii) Population projections and the adequacy of the existing supply of land identified for urban use or future urban use in the IPRSP;
(ix) The likely position if the Highway had taken a more westerly route.
837 The planning experts agreed that as at the Date of Taking, the IPRSP would militate against any rezoning of the land north of Old Mandurah Road.[1034]
838 The planning experts were asked to identify principles from the IPRSP as at the Date of Taking which would bear upon a proposal to rezone the Kelliher land to urban use. Mr Moran pointed to the fact that the IPRSP favoured urban form in the form of nodal urban development with green belts,[1035] and nodal development which was concentrated on urban villages, so as to counter urban sprawl.[1036] Mr Moran also noted that the IPRSP was concerned with striking a balance between too little provision of future urban land and too much provision of future urban land. He explained that in the development of the IPRSP, three planning scenarios were considered, and ultimately the IPRSP favoured an option mid-way between a conservative development approach and a laissez faire market approach.[1037] He clearly envisaged this approach being maintained in the review of the IPRSP.
839 Mr Allen agreed with Mr Moran's views in relation to the likely approach which would be taken to the supply of urban land. He accepted that, in a structure plan, there was a need for a balance to be struck between identifying sufficient land, as opposed to identifying more than sufficient land, for future urban development.[1038] Mr Allen agreed that the over provision of urban land made it difficult to determine priorities in the provision of urban infrastructure.[1039]
840 Mr Ferraro was the only expert planner to dissent from the views expressed by Mr Moran and Mr Allen. Mr Ferraro's evidence was that in 2006, it would not entirely reflect the application of good planning policy for the review of a structure plan to adopt a 'middle road' position as had been adopted in the IPRSP. Mr Ferraro's evidence was that in identifying land for future urban development and determining what was an adequate supply of land, planners needed to consider the question of 'ultimate capacity'[1040] - that is, the upper end of potential growth, and thus of demand for urban land. Mr Ferraro's view was that that analysis should consequently not be limited by any notion of a planning horizon of 40 to 50 years (as applied under the IPRSP).[1041]
841 The other planning experts did not agree with Mr Ferraro's view. Mr Allen's evidence was that the approach which was adopted to structure planning in 2006 (and thus which would apply to a review of the IPRSP) was not to adopt the 'ultimate' scenario suggested by Mr Ferraro.[1042] Rather, the approach was to adopt a reasonable horizon and consider the population projections within that horizon.[1043] He agreed that population projections available to the WAPC would be 'very relevant' to the amount of land identified for future urban in the review of the IPRSP.[1044]
842 Mr Kerr also agreed that population projections for the region would be taken into account and would 'guide the process' of analysing how much land should be identified for future urban development.[1045] He accepted that without population projections to warrant doing so, it was not likely that the review of the IPRSP would result in the identification for 'future urban' of all of the land delineated as urban under the draft LPS.[1046]
843 Mr Moran was also of the view that Mr Ferraro's evidence as to the adoption of the 'ultimate position' did not represent a sound planning approach. He pointed out that the 'ultimate position' referred to by Mr Ferraro assumed continuous growth and that was not a valid assumption in projecting populations over a 100year period.[1047] In addition, the bases for long-term projections could change over time and even within the life of the IPRSP prior to 2006, there had been a number of relevant changes. Those changes included a change in the planning approach in relation to the density of urban living (which would affect the amount of land that would be required for future urban development),[1048] a change in government policy (from permitting unfettered urban sprawl to containing urban sprawl)[1049] and a change in population forecasts.[1050] Mr Moran's evidence was that all of those changes suggested that less land would be required for urban development in the future than had previously been estimated in the IPRSP.[1051]
844 Mr O'Neill's view was that Mr Ferraro's reference to 'ultimate capacity' made 'no sense' and that it was quite illogical to plan for such a long term future as Mr Ferraro had suggested.[1052] Mr O'Neill also noted that many factors could change in the future, and in addition to those discussed by Mr Moran, he pointed to climate change, communications technology, social changes and population changes as factors which may bear upon the amount of land required for future urban development in the long term.[1053] A further reason identified by Mr O'Neill as demonstrating the undesirability of the 'ultimate capacity' approach advocated by Mr Ferraro was that if land is identified as future urban, it is very difficult to reverse that position subsequently so as to delineate the land for rural use. By comparison, it is easier to urbanise rural land.[1054]
846 I am unable to accept Mr Ferraro's evidence that in the review of the IPRSP, the WAPC would look to 'ultimate capacity' in determining whether more rural land should be rezoned for urban use. That opinion seemed to me to be contrary to the principles of proper and orderly planning, which require that planning principles identified in relevant planning instruments (discussed above) will be applied in decisionmaking by the WAPC. Nothing in any of those documents suggests that the WAPC should take into account considerations of 'ultimate capacity' in determining the extent of land which should be zoned for urban use. I prefer the evidence of the other planning experts on this question, for the reasons given by them.
847 I find that the hypothetical Spencer parties would be advised that in considering the question whether to rezone the Kelliher land for urban use, the WAPC would apply the principles identified in the IPRSP, including the preference for urban development in the form of nodal urban development with green belts, and urban development which was concentrated on urban villages, so as to counter urban sprawl. In addition, the hypothetical Spencer parties would be advised that in identifying what would be an adequate supply of urban land, the WAPC would be concerned to strike a balance between too little provision of future urban land, and too great a provision of future urban land. Population projections available to the WAPC which pertained to a reasonable planning horizon, such as the planning horizon adopted under the IPRSP, would be considered very relevant to its determination of what was an adequate supply of future urban land.
848 Mr Moran, Mr O'Neill, Mr Allen and Mr Kerr agreed that as at the Date of Taking, it could be expected that broad regional and strategic considerations, including population forecasts, urban land supply and demand would inform the outcome of the Southern Sectors Review.[1057] In addition, they agreed that other factors, including environmental factors, infrastructure and services availability, would also inform the outcome of the Southern Sectors Review.[1058] All of them recognised that this list of considerations was not necessarily exhaustive.
849 Mr Ferraro also emphasised that the considerations identified were not exhaustive of those which may inform the Southern Sectors Review.[1059] Mr Ferraro's views about the factors mentioned were more equivocal, but ultimately he agreed all of the factors were relevant on the basis that this was not an exhaustive or determinative list.[1060]
850 Given the uncertainty which existed as at the Date of Taking in relation to the objectives of the Southern Sectors Review, there could be no certainty in relation to the factors which would determine its outcome. However, in my view, the hypothetical Spencer parties would have been advised that a range of factors may inform the outcome of the Southern Sectors Review, and that these were likely to include broad regional and strategic considerations, including population forecasts, urban land supply, demand for land, environmental factors, infrastructure and services availability.[1061]
851 I have discussed above at [334] - [345] the key principles from Network City of which the hypothetical Spencer parties would be fully informed.
852 There is no doubt that the principles of Network City would be relevant in the review of the IPRSP and in the Southern Sectors Review. All of the planning experts agreed that it was to be expected that in the review of the IPRSP and in the Southern Sectors Review, the principles set out in Network City would be adopted.[1062] None of the planning experts dissented from the proposition that the principles within Network City in relation to urban consolidation were very likely to be applied in the course of the review of the IPRSP,[1063] or from the proposition that in the review of the IPRSP, it was very unlikely that there would be a significant departure from the principles in Network City.[1064]
853 It is also clear, as Mr Allen's evidence confirmed,[1065] that the principles of Network City would be relevant in the WAPC's consideration of any proposal to rezone land under the PRS.
not a blueprint or a structure plan in the generally accepted of that term. What it provided was a framework for the development of the Perth and Peel regions, based around a vision and set of values and principles. Objectives were set and eight themes developed. The intention was that, any development that was undertaken subsequent to Network City being produced should be done in accordance with those themes, objectives, principles and values.[1066]
855 The key question, however, concerned the likely implication of the application of those principles in relation to the prospect of the Kelliher land being identified for urban development following the review of the IPRSP or the Southern Sectors Review.
856 Again, some matters were not in dispute. In Network City, the major activity centre in the vicinity of the Kelliher land was Mandurah, and Ravenswood and Pinjarra were lesser activity centres located nearby to that land, connected by an 'activity corridor' along Pinjarra Road. The planning experts all agreed that in the unaffected scenario, the prospects of Ravenswood attracting the status of an 'activity centre' under Network City would have been no different that is, that area would still be the location of an activity centre within Network City principles.[1067]
857 The planning experts all agreed that land identified as 'future communities' in the spatial plan which accompanied Network City was either very likely,[1068] or likely (but not guaranteed[1069]) to be identified in the review of the IPRSP as suitable for urban residential development. The planning experts also agreed that land which was not identified as 'future communities' in the spatial plan which accompanied Network City would 'have a harder job of being included' (which I understand to mean would be less likely to be identified as suitable for near-term urbanisation in the review of the IPRSP, than land identified for 'future communities' in Network City).[1070] As I have already observed, the Kelliher land was not included within the land identified in the IPRSP for 'future communities'.
858 None of the planning experts dissented from the proposition that it was possible to deduce from Network City the principle that greenfields areas should not be zoned urban unless there was a need to do so which could not be accommodated by urban consolidation and infill.[1071]
859 Mr Allen accepted that a principle from Network City which would be very likely to be applied in the review of the IPRSP was that more efficient use should be made of existing urban land than had been in the past.[1072] But there was also no dissent from the proposition that that principle would not preclude the identification of such land as being suitable for urban zoning at some point in the future.[1073]
860 The area of disagreement between the planning experts boiled down to the likelihood that the Kelliher land would be identified for urban development in the review of the IPRSP, when it was identified in Network City as greenfields land for rural use, and not identified as land designated for 'future communities'.
861 Mr O'Neill's view was that Network City contained 'no indication of support for the Kelliher land [being rezoned to urban]'[1074]. Similarly, Mr Moran's evidence was that a great deal of weight could not be placed on Network City as supporting the rezoning of the Kelliher land. However, he acknowledged one positive factor from Network City in relation to those rezoning prospects, namely that there was 'an activity centre there'[1075] (by which I understood Mr Moran to mean that the activity centre at Ravenswood was located nearby to the Kelliher land).
862 Mr Allen's view was that although Network City did not identify the Kelliher land as the location for an urban development, that did not preclude its urban development within the parameters of Network City.[1076] Mr Ferraro was also of the view that the fact that the Kelliher land was not identified for 'future communities' in Network City would not be fatal to its identification for future urbanisation in the review of the IPRSP. However, he acknowledged that to identify the Kelliher land for urbanisation in the review of the IPRSP would require 'more planning argument'.[1077]
863 Taking all of the documentary and expert evidence into account, in my view the hypothetical Spencer parties would have been advised that the principles of Network City would be applied in the review of the IPRSP, that under Network City the Kelliher land was not designated for urban development or for future communities, but rather as greenfields land for rural use, that the identification of the Kelliher land for urban development in the review of the IPRSP (or in the Southern Sectors Review) was not precluded by the principles in Network City, but that it would be reasonable to expect that a departure from those principles would require a very sound planning justification. For the reasons set out below having regard, in particular, to population projections, and to the existing supply of urban and future urban land under the IPRSP - in my view, the hypothetical Spencer parties would be advised that it was unlikely that the WAPC would consider that a sound planning justification existed for the urban development of the Kelliher land, other than in the very long term future.
864 The planning experts agreed that as at the Date of Taking, it would be necessary to apply SPP 3 in the course of the review of the IPRSP.[1078]
865 None of the planning experts dissented from the proposition that SPP 3 contained principles in relation to the need for urban consolidation which were comparable to those expressed in Network City, or from the proposition that the principles in SPP 3 would very likely be applied in the review of the IPRSP.[1079]
866 I have set out the principles from SPP 3 above in some detail because in my view they clearly militated against the rezoning of the Kelliher land for urban use. Mr O'Neill, Mr Moran and Mr Allen addressed the impact of SPP 3 in relation to the designation of urban land in the draft LPS (see below) and I consider the impact of SPP 3 in more detail at that point. For present purposes, one example will suffice: a clear principle from SPP 3 was that speculative proposals for subdivision and development in areas not identified in the regional and local planning strategies would not generally be supported. That seems to me to be an apt description of the proposal to rezone the Kelliher land.
867 In my view, the hypothetical Spencer parties would receive advice that the principles in SPP 3 would be applied in the review of the IPRSP, and that those principles would militate against the rezoning of the Kelliher Land for urban use.
868 All of the planning experts other than Mr Ferraro agreed that as at the Date of Taking, the advent of the Southern Sectors Review did not cause any greater uncertainty about the rezoning or development of the Kelliher land than would have existed without that review.[1080] (In other words, the rezoning of the Kelliher land was uncertain. The Southern Sectors Review of itself did not add to that uncertainty.) Mr Ferraro was unable to express a view because he felt it impossible to measure uncertainty.[1081]
870 Mr Moran and Mr O'Neill were of the view that the advent of the Southern Sectors Review and the review of the IPRSP did not 'diminish the prospects' of the Remaining Land being rezoned for urban use.[1084] In other words, they agreed that the Southern Sectors Review and the review of the IPRSP did not make it less likely (than it otherwise was) that the Remaining land would be rezoned. In expressing his agreement with that view, Mr Allen made clear that he agreed that the Southern Sectors Review and the review of the IPRSP did not diminish the level of uncertainty that otherwise existed for the rezoning of the Kelliher land.[1085] Mr Kerr agreed with Mr Allen's view.[1086] Mr Ferraro also agreed, but emphasised that his answer did not take into account any impact on the timing of the rezoning.[1087]
871 I find that the hypothetical Spencer parties would have been advised that neither the Southern Sectors Review nor the review of the IPRSP altered the already uncertain prospect of the Kelliher land being rezoned for urban use.
872 Although Mr Allen, Mr Ferraro and Mr Kerr considered that the Southern Sectors Review affected the timing of the rezoning of the Kelliher land, that evidence must be understood in its context. The conduct of the Southern Sectors Review clearly impacted on the time it would take to complete the reviews, the outcomes of which the WAPC could be expected to await, prior to making a decision in respect of the rezoning of the Kelliher land. Whether or not the Kelliher land would be rezoned depended on the outcome of those reviews, and of the WAPC's approach to the various factors identified above, and not the point of time when the outcome of the reviews became known. Accordingly, I do not accept that the hypothetical Spencer parties would have received advice that the advent of the Southern Sectors Review and the review of the IPRSP would have resulted in a delay in the rezoning of the Kelliher land.
873 As at the Date of Taking, the planning experts considered that draft TPS 5 either had a 'relatively minor role' in relation to any rezoning of the Kelliher land because it was not an operative scheme as at that date,[1088] or was irrelevant.[1089] In my view, the hypothetical Spencer parties would have received advice to that effect.
874 The evidence of the planning experts in relation to the draft LPS was more nuanced. In my view, the hypothetical Spencer parties would have concluded that there was no immediate prospect that the WAPC would approve the draft LPS submitted by the Shire of Murray, because the draft LPS was inconsistent with the IPRSP, in so far as it identified the Kelliher land as urban when that land was identified as rural under the IPRSP.
875 The fact that the review of the IPRSP, and the Southern Sectors Review, were underway as at the Date of Taking meant that it was possible that there may be some change to the zoning of land in the Shire of Murray. The planning experts gave evidence as to the significance, if any, of the draft LPS in those reviews, and specifically in relation to the prospects of the Kelliher land being rezoned.
876 While the reasoning of the experts in relation to the status of the draft LPS did not appear to differ, Mr Allen, Mr Kerr and Mr Ferraro were of the view that as at the Date of Taking, in relation to the question of the rezoning of the Kelliher land, the draft LPS could not be ignored,[1090] whereas Mr O'Neill and Mr Moran thought that the draft LPS was irrelevant.[1091]
877 Mr O'Neill's view was that but for the review of the IPRSP, the draft LPS would have been sent back to the Shire of Murray by the DPI on the basis that it was plainly inconsistent with the PRS and the IPRSP.[1092] Mr O'Neill interpreted that as 'an automatic administrative process which enabled the referral agencies to comment on it prior to or concurrently with the assessment which was to be undertaken by the Department'.[1093] Mr O'Neill rejected the suggestion that the decision by the DPI to refer the draft LPS to other agencies for their comments suggested that the 'planning environment was somewhat fluid'.[1094]
878 Mr Ferraro did not agree that the referral to other agencies could be described as 'automatic', but did not suggest that any particular significance could be attached to that referral. He felt that the course adopted would instead depend on the view of the manager within WAPC who had responsibility for that region as to how to deal with such an application.[1095]
879 Having regard to the evidence of the planning experts, in my view, the hypothetical Spencer parties would have been advised that as at the Date of Taking, little weight could be attached to draft TPS 5 or the draft LPS, as factors supporting the rezoning of the Kelliher land (independently of the outcome of the review of the IPRSP), because those documents were not consistent with the PRS and the IPRSP (in so far as the zoning of land at north Ravenswood was concerned) and had not been endorsed by the WAPC. Consequently, the existence of the draft TPS and the draft LPS, in the terms in which they stood as at the Date of Taking, did not of itself increase the prospects of the Kelliher land being rezoned for urban use.
880 However, the hypothetical Spencer parties would have been advised that the draft LPS could not be entirely ignored. The hypothetical Spencer parties would be aware that the draft LPS in effect represented the views of the Shire as to the appropriate zoning of land within the Shire, and those views would be likely to be expressed within the review of the IPRSP (and in the Southern Sectors Review also).
881 I accept the submission by counsel for the defendants that it cannot be concluded that the WAPC would determine to rezone the land at north Ravenswood, including the Kelliher land, simply on the strength of the draft LPS, and irrespective of its lack of planning merit. The evidence of the planning experts supports the conclusion that the only way the land at north Ravenswood would be identified for rezoning to urban use would be if the WAPC formed the view on proper and orderly planning principles that that rezoning was warranted.
882 All of the planning experts agreed that in the review of the IPRSP, the draft LPS and the draft TPS 5 would be taken into consideration and seriously considered, along with every other submission to the review.[1096] The question about which the hypothetical Spencer parties would have sought advice was how much weight those documents were likely to be given in the review of the IPRSP.
883 Four of the planning experts accepted that the weight which would be given to the draft TPS 5 and the draft LPS in the review of the IPRSP would depend upon the logic of the underlying reasoning expressed in the draft LPS.[1097] Mr Moran did not appear to deny that the logic underlying the draft LPS would be relevant, but took the view that a stronger consideration would be whether the view taken by the Shire in the draft LPS fitted in with the overall framework for wider regional development in the State.[1098] In my view, there is a considerable overlap between those two considerations.
884 In the course of his evidence, Mr Ferraro expressed the opinion that at the time he had formed the view that there was an 'underlying logic' to the Shire's rationale for the draft LPS.[1099] Mr Ferraro explained that in 2005 and 2006, officers in his team within the DPI were struggling to cope with a heavy workload of planning applications (of all kinds) relating to the Peel Region.[1100] Mr Ferraro's view was that that workload pressure, together with anecdotal discussions with officers of the Shire of Murray and the City of Mandurah, and members of those Councils, suggested to him that there was pressure for development, and that Mandurah was growing at a rate greater than elsewhere.[1101] Mr Ferraro explained that in that environment he had taken the view that the draft LPS had an 'underlying logic' because the urbanisation of the Shire of Murray, as proposed in the draft LPS, 'was the logical outlet, the logical next step of growth in the Peel region beyond the coast. It was a logical progression of a development of the Peel region'.[1102] He explained that that view was not based on any analysis as to timing.[1103]
885 I am unable to accept Mr Ferraro's view of the draft LPS, which, with respect, I found wholly unpersuasive. In so far as the 'underlying logic' identified by Mr Ferraro depended on a perceived demand for urban land in north Ravenswood, the extent of that demand was not confirmed by any analysis of data collated by the DPI, or of population projections.[1104] Mr Ferraro accepted that none of the anecdotal 'evidence' of development pressure to which he referred was based on any study of population, or of land availability.[1105] And in so far as the workload pressure in the DPI was concerned, he accepted that that workload did not derive from planning applications pertaining to the north Ravenswood area.[1106] Furthermore, in so far as Mr Ferraro considered that the development of north Ravenswood reflected a logical step in growth, he accepted that his logic was 'simply that there would be development in between Furnissdale and Pinjarra' and that 'this was the logical place for growth'.[1107] That appears, with respect, to have been a wholly arbitrary conclusion which was not referable to any principle of orderly and proper planning.
886 I find that the hypothetical Spencer parties would have been advised that the draft LPS and the draft TPS 5 would be taken into consideration, and seriously considered, in the review of the IPRSP, along with every other submission to that review. The weight given to the draft LPS in that review would depend upon the logic of the reasoning underlining that document.
887 In addition, the hypothetical Spencer parties would be aware that having regard to the approach it took to land proposed for urban use, the draft LPS appeared, on its face, to be quite inconsistent with the principles in SPP 3.
888 Mr O'Neill, Mr Allen and Mr Moran agreed that SPP 3 militated against, or 'would not be helpful to', the endorsement of the extent of future urban land advanced by the Shire of Murray in the draft LPS.[1108] Although Mr Allen pointed out that in practice there may be variability in the extent to which the principles identified in SPP 3 were adhered to, he accepted that there was no way to predict where exceptions to SPP 3 might be applied.[1109]
889 Mr Kerr's view was not dissimilar. His view was that the more likely outcome of the application of SPP 3 would be that the Shire would be asked to revisit the draft LPS in view of its principles, and that that would have an impact on the extent of the land the Shire then identified for future urban development.[1110]
890 In contrast, Mr Ferraro was of the view that the draft LPS 'ticks boxes in terms of creating [the] sorts of requirements for a sustainable community' which were set out in SPP 3.[1111] I am unable to accept Mr Ferraro's opinion, for three reasons. First, the basis for Mr Ferraro's view was not adequately explained, and it was far from clear how his opinion could be reconciled with the terms of SPP 3 itself. Secondly, Mr Ferraro's opinion appeared to be inconsistent with other evidence he gave in relation to the draft LPS. That evidence was that in his capacity as the Director, Metropolitan and Peel, within the DPI, Mr Ferraro attended a meeting in 2005 between officers of the Shire of Murray and of the DPI,[1112] at which the 'rationale for the concept' behind the draft LPS was discussed.[1113] Mr Ferraro acknowledged that the proposal for the draft LPS raised 'alarm bells' for him because the proposal 'wasn't consistent with the strategy'.[1114] By that, I understood that Mr Ferraro meant that the draft LPS was not consistent with the applicable planning documents for the region, including the IPRSP, Network City, and SPP 3. Thirdly, Mr Ferraro's opinion that the draft LPS 'ticked boxes' with the principles in SPP 3 was inconsistent with the views of the other planning experts.
891 Taking all of this evidence into account, in my view the hypothetical Spencer parties would receive advice that the principles in SPP 3 militated against the endorsement of the extent of future urban land proposed by the Shire of Murray in the draft LPS. That advice would have suggested to the hypothetical Spencer parties that the inconsistency between the draft LPS and SPP 3 would render it unlikely that the WAPC would endorse the urbanisation of the Kelliher land as proposed in the draft LPS.
892 I digress at this point to observe that the planning experts had different views as to whether the draft LPS had to apply Network City and SPP 3. Mr Allen, Mr Ferraro and Mr Kerr took the view that a local government had to 'have regard to'[1115] or give 'due regard to'[1116] SPPs but was not bound to apply them. Mr O'Neill's understanding was that a local government was required to apply SPPs,[1117] and Mr Moran's understanding was that a LPS had to be consistent with SPPs.[1118] The understanding of Mr O'Neill and Mr Moran correctly reflects the legislative requirement in the Town Planning Regulations 1967 (WA) that a LPS must 'apply' State and regional policies.
893 Counsel for the defendant submitted that this evidence demonstrated that Mr O'Neill and Mr Moran 'were better informed than their colleagues'.[1119] I am not persuaded that the planning experts' evidence on this question warrants any general conclusion about the reliability of their evidence. That is because it was not apparent that the planning experts' understanding of the precise legal position made any practical difference to the outcome of their analysis. By way of example, the planning experts were asked whether the draft LPS would be required to be consistent with Network City. Mr Allen's view was that 'due regard' would have to be given to Network City,[1120] and that in doing so, the Shire would have to address the principles Network City set out, rather than any particular land use configuration.[1121] Mr O'Neill's view was that the general principles espoused in Network City would have to be 'applied' to the draft LPS,[1122] but he recognised that Network City's general principles would have to be applied with 'some discretion and some judgment'.[1123] Given the generality with which the principles in Network City are expressed, it is far from clear that there would be any difference in applying those principles, or giving 'due regard' to them.
894 Furthermore, Mr Moran pointed out that although the draft LPS had to be 'consistent' with the IPRSP, there was nevertheless scope for a LPS to set out a local government's planning vision. In that sense, a LPS was aspirational,[1124] and could serve as a means for a local government to provide input into reviews of the regional structure plan.[1125] Mr Kerr agreed with that view.[1126]
895 All of the planning experts agreed that the draft LPS did not adequately explain why the quantity of land proposed for future urban use in the draft LPS was actually required for urban development. Mr Kerr acknowledged that the draft LPS made reference to population projections but did not draw a connection between those projections and the quantity of land proposed for future urban development.[1127] Mr Allen agreed with that view,[1128] as did Mr Moran,[1129] and Mr O'Neill.[1130] Mr Ferraro agreed that the 'analysis was on the thin side' and that he 'would have expected a much more comprehensive analysis'.[1131]
896 The draft LPS included some reference to population projections, but without identifying the source of those projections. More significantly, the projected population growth figures included in the draft LPS did not reflect those set out in WA Tomorrow.[1132]
897 Mr O'Neill,[1133] Mr Moran,[1134] Mr Kerr[1135] and Mr Ferraro[1136] agreed that in assessing the expected future population in the course of the review of the IPRSP, the WAPC would use the projections in WA Tomorrow (version 6) or its successor forecasts. Mr Allen also agreed with this proposition, although he noted that the WAPC would use the latest information available to it.[1137]
898 Four of the planning experts - Mr Allen, Mr Moran, Mr Kerr and Mr O'Neill - agreed that because the draft LPS did not make a connection between expected population growth (drawing on the figures in the latest available version of WA Tomorrow) and the volume of land identified for future urban use, the draft LPS and draft TPS 5 were unlikely to be adopted in their entirety in the review of the IPRSP.
899 Mr Allen thought it 'unlikely' that all of the future urban land identified in the draft LPS would be endorsed in the review of the IPRSP as warranting identification as future urban land. He noted that, in addition, the suitability of the land for development would also need to be considered.[1138]
900 Mr Kerr also thought it unlikely that the extent of future urban land identified in the draft LPS would be adopted.[1139] However, his view was that in identifying the land which was likely to be proposed for future urban development in the review of the IPRSP, other considerations would be taken into account, and Mr Kerr was confident that the north Ravenswood area best met the likely criteria for suitability for urban development.[1140]
901 Mr Moran agreed with both Mr Allen and Mr Kerr that it was unlikely that all of the land identified for future urban use in the draft LPS would be endorsed in the review of the IPRSP.[1141] He was doubtful about a number of the factors relied upon by the Shire as the basis for its decision to amend the plan attached to the draft LPS so as to identify all of the Kelliher land for urban development. In particular, he thought that the Shire's view - that the designation of the land as urban would alleviate the demand for urban land in the future - was open to debate.[1142]
902 Mr O'Neill went as far as to say he thought it 'extremely unlikely' that the land identified for future urban would be approved in the review of the IPRSP, and that the absence of any analysis of population in the draft LPS was a fundamental deficiency in that document.[1143] Mr O'Neill considered that the reasons relied upon by the Shire of Murray for amending the land use plan attached to the draft LPS to expand the land designated as urban were 'generic reasons' which did not alter his view as to the cogency (or lack thereof) of the planning rationale for the draft LPS.[1144]
903 Mr Ferraro took a somewhat different view. He doubted whether the WAPC would adopt in full the land identified for future urban in the draft LPS.[1145] To that extent, at least, he agreed with the other planning experts. However, Mr Ferraro rejected the suggestion that population projections would be the single most important consideration in determining whether the land identified for urban use in the draft LPS should be endorsed by the WAPC in the review of the IPRSP.[1146] In so far as Mr Ferraro appeared to suggest that the land identified for urban use in the draft LPS may carry weight in the review of the IPRSP, I am unable to accept his evidence, which, with respect, was far from compelling.
904 Mr Ferraro explained that population projections had two uses in strategic planning decisions to plan for what is presently anticipated to be the population growth in an area into the future, and to promote population growth in a particular area.[1147] However, he accepted that there was no evidence that the WAPC wished to encourage population growth at north Ravenswood.
905 Mr Ferraro initially suggested that the decision by the PRPC, that a structure plan for the Furnissdale to Pinjarra region should be prepared, signalled that the WAPC was intent on the urban development of that region, and that for that reason, population projections may not have been determinative in whether the future urban land identified in the draft LPS would be endorsed in the review of the IPRSP. However, he later accepted that that view could not be sustained in light of the fact that the preparation of the Furnissdale to Pinjarra structure plan was put on hold pending the outcome of the review of the IPRSP.[1148]
906 In addition, Mr Ferraro did not directly explain why, in the review of the IPRSP, other factors (apart from population projections) would have warranted weight being given to the land identified for urban use in the draft LPS. (Other aspects of his evidence about matters which would be taken into account in the review of the IPRSP more generally are considered below.)
907 Accordingly, I find that the hypothetical Spencer parties would have received advice that the fact that the draft LPS failed to establish any connection between projected population in the Shire of Murray, and the quantity of land it proposed should be designated for future urban use, meant that it was at the least 'unlikely', and possibly 'very unlikely', that in the review of the IPRSP the WAPC would endorse the development of all of that land for future urban use.
908 In deciding whether more rural land should be rezoned for urban development in a particular region - in this case, the Shire of Murray - the WAPC would undertake two levels of inquiry. The first was to determine whether there was a need to rezone rural land in the Shire for urban use. The second enquiry was directed to the identification of the particular land which should be rezoned, and that would require a consideration of a range of factors, such as available services and infrastructure, and employment in the area.[1149]
909 As to the first level of enquiry, the planning experts agreed that the review of the IPRSP and any amendment of the PRS likely to result from that review, would be likely to aim to ensure that sufficient land was identified to provide a rolling 15year supply of undeveloped urban zoned land over a planning horizon of at least 30 years,[1150] and possibly longer[1151] (perhaps as much as 40 to 50 years).[1152]
910 All of the planning experts agreed that as a matter of orderly and proper planning, the following matters would be taken into account by the WAPC (although no individual matter would necessarily be determinative[1153]):
(i) population forecasts for the Shire of Murray, and for the broader Peel Region;
911 Each of these considerations are explained below. In addition, Mr Ferraro expressed the opinion that the WAPC would also take into account the rising price of residential land, and its impact on housing affordability. I also consider the evidence in relation to that matter below.
912 Before doing so, it is appropriate to mention a further aspect of the factors which would be taken into account by the WAPC in determining whether more land should be made available for urban use, and which was explored in some detail in the planning experts' evidence. The planning experts all agreed that in determining how much land should be made available for urban development in a particular location, the WAPC would be guided by the principle that there should be allowed an 'ample margin for freedom in the choice of sites'.[1154] That phrase was drawn from a plan for Perth prepared by Gordon Stephenson and Alistair Hepburn in 1955 and which was the foundation for the first Metropolitan Region Scheme.[1155] While the planning experts agreed that this principle was still relevant as an aspect of orderly and proper planning, they did not entirely agree about what the principle meant.
913 Mr Allen saw the application of the principle of ensuring 'ample margin for freedom in the choice of sites' as requiring that within the principle of orderly and proper planning, the WAPC should seek to ensure competition in the market so as to provide:
a sufficient number of development areas to provide a range of opportunities, be it in terms of location, lifestyle choices, whatever phrase you want to use. But essentially it's all about competition and, in particular, you want to avoid the situation where ... one landowner is in a position to control the release of land in any particular area and ... corners the market.[1156]
914 Mr Moran also agreed that the principle was directed to ensuring that there was competition in the provision of urban land, although as he pointed out, the WAPC's ability to ensure competition existed in the market was limited by the fact that it could only zone land, and could not compel landowners to develop land once it was zoned for urban use.[1157]
915 In contrast, Mr Kerr's evidence was that the application of the principle required the WAPC to seek to ensure an adequate supply of land, which provided a range of housing options from which purchasers might choose, but which ensured land supply did not exceed the capacity for infrastructure to service the land.[1158]
916 Mr Ferraro's view was that in determining whether there was an 'ample margin for freedom in the choice of sites', the WAPC would consider a range of factors, including whether the available urban land was ample in terms of addressing housing affordability.[1159] His view was that ensuring that there was an ample margin for freedom in the choice of sites required the WAPC to respond to what was happening in the market at any given time, and to land prices and land affordability. He saw it as requiring a qualitative and not merely a quantitative analysis.[1160] However, he agreed that the reference to 'choice' referred to the need for competition in the housing market, so as to avoid a monopoly in the production of lots in any one location.[1161] Mr Ferraro saw the existence of competition as important so as to ensure that prices didn't 'go through the roof'.[1162]
917 Mr O'Neill pointed out that when the principle of ensuring an 'ample margin for freedom in the choice of sites' was first advanced, it was directed to the provision of sufficient land for urban use. However, since 1955 there had been numerous developments in planning in the State which had circumscribed and clarified what was intended by the word 'ample' within this context. In Mr O'Neill's view, what constituted 'ample' land was now to be understood by reference to the statutory planning framework. It was by reference to the various planning instruments, and the timeframes for the development of land within those instruments, that the word 'ample' was now to be understood. Mr O'Neill referred, by way of example, to regional structure plans which identified land for long-term future urban use as well as short-term urban use, and local planning schemes and strategies which focused on shorter timeframes. His evidence was that in making a judgment about what was 'ample' within that context, it was necessary to take into account population projections, and lot supply.[1163] Mr O'Neill agreed that the principle of ensuring an 'ample margin for freedom in the choice of sites' encompassed a need for competition.[1164]
918 Mr Allen, Mr Moran and Mr Kerr agreed with Mr O'Neill that the statutory planning framework was the basis for making a judgment about what was 'ample'.[1165] Mr Ferraro also agreed, but emphasised that in determining what was an ample margin, each area or region - such as the Peel region - had to be considered independently.[1166]
919 What was clear from all of this evidence was that the principle of 'ample margin for freedom in the choice of sites' did not operate independently of the factors identified by the planning experts as being encompassed by that principle. All of the suggested components of the principle adequacy of land supply, competition, housing affordability, and the statutory planning framework - were independently explored in the evidence as matters the WAPC would take into account in applying orderly and proper planning principles to the question whether more rural land should be rezoned for urban use.
920 I turn, then to consider the planning experts' evidence in relation to those matters which the WAPC would take into account in determining the answer to that question.
921 The planning experts all agreed that in determining whether more land in the Shire of Murray should be rezoned for urban use, the WAPC would look at population forecasts for the whole of the Peel Region, as well as for the Shire.[1167] The planning experts agreed that population growth and development pressure in Mandurah would be relevant because Mandurah was the principal population centre in the north Ravenswood region.[1168]
922 Mr Allen confirmed that WA Tomorrow was the source of the population projections on which the WAPC relied.[1169]
923 The planning experts also agreed that the availability of land for urban development would be relevant.[1170] That availability had different components: the availability of en globo land which was zoned for urban use, and the availability of housing lots with either conditional or final approval for subdivision.
924 There did not appear to be any dispute that the WAPC's primary source of evidence in relation to the availability of land lay in the State Lot Activity Reports and the MDP Report (discussed above). I have already discussed the knowledge of the hypothetical Spencer parties in relation to the contents of the MDP Report (which measures urban-zoned lots) and the State Lot Activity Reports and as to what those documents revealed about the supply of urban-zoned land in the Peel Region generally, and in the Shire of Murray in particular, as at the Date of Taking.
925 Some of the planning experts noted that surveys of developer intentions were sometimes used as sources of information about land supply. However, Mr Allen pointed out that such surveys were not reliable sources of information about the supply of urban land which would be available for development in any given period, because they tended to overestimate the number of lots which would be available.[1171]
926 I find that the hypothetical Spencer parties would be advised that the WAPC would rely upon the State Lot Activity Reports and the MDP Report, as the sources of evidence in relation to the availability of land for urban development as at the Date of Taking.
927 The planning experts were asked on several occasions about their opinion as to whether, at the Date of Taking, there was a shortage of land zoned for urban use, or identified for future urban use, in the Peel Region.
928 Mr Allen, Mr O'Neill and Mr Ferraro agreed that in the Peel Region at the Date of Taking there was no shortage of en globo land which was zoned urban.[1172]
929 The planning experts were also asked whether they agreed that the MDP Report did not support the view that there would have been an insufficient supply of urban zoned land in the short and medium terms in the Shire of Murray.[1173] Mr O'Neill[1174] and Mr Allen[1175] agreed that that was the position. (Mr Moran and Mr Kerr did not comment on the figures in that Report.[1176]) However, Mr Ferraro's evidence on this issue was, with respect, somewhat confusing, and inconsistent with his earlier evidence. Mr Ferraro disagreed with the proposition put. As I understood his evidence, he appeared to have understood references in the MDP Report to the proposed Furnissdale to Pinjarra Structure Plan, and to the proposed development of Amarillo, as evidence that the WAPC considered that there was a need for more land to be made available for urban development. (His reasoning was that the WAPC would not have mentioned those projects if it were not considered necessary to provide more land for urban development.)[1177] However, Mr Ferraro appeared to be unsure about the references to those projects in the MDP Report, as he conceded that if the Report did not in fact mention those sources, then he would reconsider his answer.[1178]
930 I prefer the evidence of Mr O'Neill and Mr Allen to that of Mr Ferraro on this issue. While the MDP Report does refer to Amarillo and to the Furnissdale to Pinjarra corridor, it mentions those projects in the context of a discussion of the review of the IPRSP,[1179] and not in a context which in any way suggests that the WAPC was of the view that the supply of land zoned for urban use in the Peel Region would be insufficient in the short to medium term.
931 Mr O'Neill,[1180] Mr Moran[1181] and Mr Allen[1182] agreed that the WAPC and DPI were likely to take the view that there was adequate urban zoned land, or land identified for future urban use, to comfortably meet demand in Peel for 30 years. Mr Kerr did not deal with this question in his report, and did not express an opinion on it.[1183] Mr Ferraro, however, disagreed (apparently for the reason that he thought the WAPC would be likely to release more land to counter rising land prices).[1184] I set out below the reasons why I do not accept this aspect of Mr Ferraro's evidence. I prefer the evidence of the other planning experts to Mr Ferraro's evidence on this question.
932 The planning experts were also asked whether they agreed with the proposition that in the review of the IPRSP, the WAPC was unlikely to come to the view that there was any short-term or medium-term shortage of land zoned for urban use in Ravenswood and in the Shire of Murray. Mr O'Neill agreed with this proposition,[1185] and so too did Mr Moran.[1186] Mr Allen's evidence was that he was unable to express a view because, as at the Date of Taking, the review of the IPRSP was not sufficiently finalised.[1187] However, he accepted that if certain assumptions were made about the 'input' into the review of the IPRSP namely the existing data as to the quantity of identified urban land, the quantity of lots produced as described in the MDP Report, and population forecasts for the region then the inference from that data was that there was already sufficient land identified for urban use (even if not actually zoned urban) and consequently it was reasonable to assume that 'unless something very strange was revealed during the review process itself, that that would still be the conclusion reached at the end'.[1188]
933 Mr Ferraro did not agree to this proposition for the reasons discussed above.[1189]
934 Mr Kerr's view was that he could not predict what the WAPC would conclude but that he would expect the review of the IPRSP to consider the best land for future urban use, and in his view, the Kelliher land, and land at north Ravenswood, met the criteria for that description better than most of the other available land.[1190] In other words, Mr Kerr did not grapple with the question of the likely view of the WAPC as to whether there was an adequate supply of urban zoned land, or land identified for future urban use, but rather focused solely on the second level of inquiry, namely that if more urban land was required, which land that should be.
935 Finally, the planning experts were asked whether they agreed that in the review of the IPRSP, the WAPC was unlikely to come to the view that there was any short-term or medium-term shortage in Ravenswood and Murray of land identified for future urban use (but not yet zoned for urban use).[1191] Mr O'Neill, Mr Moran and Mr Allen agreed.[1192] Mr Kerr did not give an answer to this question. Mr Ferraro did not agree because he considered it likely that the WAPC would want to identify more land for urban use in order to contain rising land prices.[1193] My reasons for rejecting Mr Ferraro's evidence on that issue are set out below. Accordingly, I accept the evidence of Mr O'Neill, Mr Moran and Mr Allen.
936 Mr Allen, Mr Ferraro and Mr O'Neill also agreed that that there was no shortage of conditionally approved housing lots as at the Date of Taking.[1194] But they agreed that there was a shortage of housing lots with final subdivision approval, and which were available for purchase.[1195] One of the reasons for that shortage was a bottleneck in the clearance rate for compliance with conditions of subdivision approval.[1196] Another reason was a backlog of applications for final approval which the WAPC was struggling to process in a timely manner.[1197] A further reason for the disparity between the volume of land with conditional subdivision approval and land with final subdivision approval was that it was comparatively inexpensive for developers to obtain conditional approval for subdivision, and it was then open to those developers not to proceed to meet the conditions for final approval (and to incur significant expense in doing so) for several years.[1198]
937 Having regard to the documentary evidence to which I have already referred, and to the evidence of the planning experts, I find that the hypothetical Spencer parties would have been advised that as at the Date of Taking the WAPC was very likely to conclude that there was an adequate supply of en globo land actually zoned for urban use, or identified (but not yet zoned) for urban use in the Peel Region, and in the Shire of Murray in particular, both in the short and medium term future.
938 Having regard to the documentary evidence, and to the evidence of Ms Thompson, I also find that the hypothetical Spencer parties would have been advised that as at the Date of Taking, the WAPC was very likely to conclude that there was no shortage of conditionally approved housing lots, but there was a shortage of housing lots with final approval for subdivision. The hypothetical Spencer parties would be advised that that shortage was the result of delays in confirming compliance with conditional subdivision approval, delays within the WAPC in processing the backlog of applications for final approval, and delays by developers in seeking to meet conditions for final subdivision approval. Those delays were not related to the availability of en globo land zoned for urban use, or identified for future urban use.
939 The planning experts all agreed that in considering whether more rural land within the Peel Region should be zoned for urban use, the WAPC would be concerned to ensure a number of developments were pursued in each area, so as to keep a sufficient level of competition in the market, and thus to keep prices under control.[1199]
940 However, Mr O'Neill, Mr Allen and Mr Kerr agreed that there was sufficient competition in respect of the provision of urban land in the Shire of Murray in 2006.[1200] (Mr Moran agreed that there was sufficient competition in the Peel region more generally, but did not think he was sufficiently familiar with the position in Murray to express an opinion about it.)[1201]
941 Having regard to this evidence, I find that the hypothetical Spencer parties would have been advised that the WAPC would be concerned to ensure a number of developments were pursued in each area, so as to keep a sufficient level of competition in the market. However, as at the Date of Taking, the WAPC was likely to conclude that there was sufficient competition in respect of the provision of urban land in the Shire of Murray, with the result that this factor would not support the rezoning of more rural land in the Shire for urban use.
942 I have already referred to the evidence of rising land prices in the Peel Region in the months leading up to the Date of Taking. Some of the planning experts gave evidence of their opinion as to the cause of rising land prices at the time. Mr Allen's evidence was that it was clear that a number of factors were contributing to rising land prices in the entire Perth metropolitan and Peel regions at the time. Some were based on perception, and others on reality. Mr Allen's evidence was that the WAPC was considering all of these factors.
943 Mr O'Neill's evidence was that the major development pressure that was occurring at the Date of Taking related to speculation in rural land.[1202] He reached that conclusion in light of the fact that there was a surfeit of residential lots (as shown in the MDP Report) at that time, and that there was also a surfeit of lots in train for subdivision approval. In contrast, speculation was driving development pressure in relation to the development of rural land. Mr Ferraro agreed with that evidence.[1203]
944 Mr Ferraro's evidence was that the WAPC would take into account such development pressures (even those resulting from speculation, as in this case) as manifested in rising land prices, and public and political concern about that because those pressures impacted on housing affordability.[1204] Mr Ferraro's opinion was that the real cause for concern within the WAPC was not the possibility of a shortage of land, but rather the increase in the price of land, and consequently housing affordability (which he noted was referred to in SPP 3). Mr Ferraro's evidence was that rising land prices called into question the reasons for the increase in price, and what action the WAPC could take to address the affordability of housing.[1205] Mr Ferraro's evidence was there were only two things that the WAPC could do to address housing affordability. One was to provide information to the community about the issue.[1206] The other was to zone more land for urban development, with a view to bringing more developers into the market,[1207] apparently in the hope that that would eventually result in the availability of more urban land for sale.
945 Clearly the WAPC acknowledged the existence of the development pressure in the Peel Region, and sought to understand the causes of it. However, in so far as Mr Ferraro suggested that one response the WAPC could have taken as at the Date of Taking to address rising land prices and housing affordability in the Peel Region would have been to zone more land for urban development (despite the fact that Mr Ferraro agreed that there was not a shortage of land zoned for urban use), I am unable to accept his evidence, for four reasons.
946 First, Mr Ferraro accepted that the reason for the shortage of residential land available for sale in the Peel Region at the Date of Taking was that there were delays in compliance with conditions for subdivision relating to the provision of roads, water and power to land.[1208] He also accepted that in 2006 there was no shortage of landowners applying for subdivision, but rather a surfeit of them.[1209] Given that situation, it was, with respect, not at all clear how zoning more land for urban development, in the hope that that would bring more developers into the market, would have done anything to address the shortage of residential land which was available for sale in the Peel region.
947 Secondly, as I have already observed, nothing in the evidence suggested that the WAPC was minded to depart from its usual approach of acting in accordance with the statutory planning framework and the principles of orderly and proper planning.
948 Thirdly, Mr Ferraro's evidence was at odds with the evidence of the other planning experts, and I prefer their evidence on this issue. Mr Moran noted that although development pressure and the availability of land might have been taken into account in determining whether land in the Shire of Murray should be rezoned, the WAPC's response to the existence of development pressure did not suggest that it felt the situation required an urgent response. Mr Moran noted that the WAPC had instead established a series of studies or reviews which would probably take two to three years to complete.[1210]
949 Mr Moran was also of the view that zoning more land for urban development was a very blunt instrument for getting more land into the market for urban development, because it was possible for a developer to proceed to conditional subdivision approval, but without any incentive to proceed to obtaining final approval.[1211] Mr Moran did not agree that obtaining conditional approval and postponing final approval was a tool used by developers to control supply and demand.[1212] Consequently, he did not agree that releasing more land to urban zoning would improve housing affordability.[1213]
950 Mr O'Neill agreed with Mr Moran's view. He added that there was already a surfeit of lots on the market, given that lot sales in the Shire of Murray at that time were in the vicinity of about 70 per year. In addition, in his opinion, developers were unlikely to be inclined to seek to develop more urban-zoned land when there were at least three estates being developed in the region at the Date of Taking. Of those, Riverland Ramble was the most significant, and Austin Cove (which was a significantly larger development again) was due to become available in the future.[1214]
951 Mr Allen agreed that the WAPC was concerned about identifying the cause of increasing land prices and what the WAPC could do about increasing prices.[1215] However, his evidence was that all of the indications available at the Date of Taking suggested that the then Minister for Planning was not likely to 'give in' to speculative purchasers (and to support the release of more land for urban development). He noted that the Minister 'was cautioning against it quite strongly,'[1216] as had the Chairman of the WAPC.[1217]
952 While Mr Kerr's view was that recognition of the development pressure would have been taken into account in relation to the question of whether there was sufficient land available,[1218] I did not understand his evidence to be that the WAPC was likely to release more land for urban development in response to that pressure.
953 Fourthly, the WAPC is a creature of statute, which exercises power pursuant to statute in this case, the PD Act. It is a well recognised principle of statutory construction that a statutory power will be construed as subject to an implied requirement that that power should be exercised reasonably.[1219] Mr Ferraro's evidence was that the WAPC would have considered making more land in the Shire of Murray available for urban development, notwithstanding that the evidence before the WAPC suggested that there was already ample land available, or identified, for urban development under the IPRSP in the short to medium term future. In those circumstances, to accept Mr Ferraro's evidence would, in my view, be tantamount to accepting that the WAPC would have been prepared to act in a way which was manifestly unreasonable or irrational, and thus in a manner which was inconsistent with its statutory power. I do not accept that it should be concluded that it was likely that the WAPC would have acted in that way.
954 Consequently, in my view, the advice which the hypothetical Spencer parties would have received about the approach likely to be taken by the WAPC having regard to rising land prices was as follows.
955 First, the WAPC was clearly conscious that increasing land prices in the Peel Region were not necessarily attributable to an inadequate supply of en globo land zoned for urban use or identified for future urban use.
956 Secondly, the WAPC's own published statistics demonstrated that although there was a more limited supply of land with final approval, there was an adequate supply of land zoned for urban development in the Peel Region, and in the Shire of Murray, in the short to medium term future, having regard to the WAPC's population forecasts set out in WA Tomorrow.
957 Thirdly, it is clear that by the Date of Taking, the WAPC had proposed a response to what by then had been identified as a reason for the delay in final approval for residential lots, and thus for the limited supply of lots with final approval. That response was to address the bottleneck in the approvals process.
958 Fourthly, nothing in the WAPC's response suggested that it would depart from its usual approach in determining whether land should be zoned for urban development, namely to apply the principles of orderly and proper planning. Indeed, the press release issued by the Minister (to which I referred at [455]) served to confirm that proposals for land to be rezoned to urban would continue to be dealt with in accordance with the existing statutory planning framework.
959 The defendant did not dispute the fact that there was in fact no significant environmental impediment to the development of the Kelliher land. However, the defendant contended that this fact was not known as at the Date of Taking, before the review of the IPRSP was completed.
960 I accept that there was no evidence to suggest that as at the Date of Taking, it was known that there were no environment constraints in relation to the development of the Kelliher land. The evidence was that the hypothetical Spencer parties would have been advised that development of the Kelliher land would not be permitted unless it was consistent with policies pertaining to environmental damage and nutrient management in the area.
961 Mr Allen noted that a prospective purchaser would have been advised of the requirements of the PeelHarvey Coastal Catchment State Planning Policy (that is, SPP 2.1) which may have impacted on the viability of some developments because of the need to meet the objectives and standards being set by that policy.[1220]
962 Mr O'Neill,[1221] Mr Moran,[1222] and Mr Ferraro[1223] agreed that one of the matters under consideration in the review of the IPRSP review was the effect of nutrient management in the Peel Region, and that consequently, any consideration of the Kelliher land for possible future urban development would have faced additional scrutiny associated with environmental issues, particularly nutrient management. Mr Allen agreed with that view, on the basis that SPP 2.1 would be an important consideration in determining whether the Kelliher land was environmentally suitable.[1224] Mr Kerr also agreed with that view, although he was of the view that scrutiny from the perspective of such environmental issues applied equally everywhere.[1225]
963 In my view, the hypothetical Spencer parties would be advised that as at the Date of Taking, approval of the Kelliher land for future urban development would have required confirmation that it was environmentally suitable for such development, particularly having regard to the requirements of SPP 2.1 in relation to nutrient management. The hypothetical Spencer parties would have been advised that at the Date of Taking, the question whether the Kelliher land was suitable for urban development, having regard to environmental concerns, and to the requirements of SPP 2.1, added to the uncertainty of its prospects for being rezoned for urban use in the future.
964 The planning experts were also asked whether the prospects of the Kelliher land being rezoned for urban use, as proposed in the draft LPS, would have been affected if the Highway had taken a more westerly route closer to Mandurah.
965 The views of the planning experts on this issue can be divided into three camps. First, Mr O'Neill[1226] and Mr Moran[1227] were of the view that in the absence of the Highway (or if the Highway had taken a different route, in a more westerly direction, closer to Mandurah) the prospects of the Kelliher land being rezoned would have been significantly worse than they were with the Highway. In other words, the Highway improved the (low) prospects of the Kelliher land being rezoned to urban. Mr O'Neill noted that the Highway established pressures for the urbanisation of land and provided opportunities for the development of land, and that this was recognised in the draft LPS.[1228] Mr Moran noted that the absence of the Highway may change the configuration of any urban expansion of Ravenswood, with less emphasis on the north-south axis to more emphasis on an east-west axis.[1229]
966 The second view - expressed by Mr Allen - was that the Highway did not make much difference to the prospects of the urbanisation of the Kelliher land.[1230] Mr Allen acknowledged that with the Highway there would be additional pressure for north-south development, and that the Highway might introduce the potential for urban development in both the local area and the broader region, but in his view there was 'not much in it one way or the other'.[1231] Mr Allen's view was that even without the Highway, there remained east-west development pressures[1232] and pressure for development along the Mandurah to Pinjarra corridor.[1233] However, Mr Allen observed that that demand was 'either perceived or real' and that while there was some 'very concrete demand' there was also an 'element of speculation based on a perception of demand'.[1234] Mr Allen's evidence was that the manifestation of that demand was the fact that large parcels of rural land were being bought up, or options were being secured over that land with a view to pursuing applications for changes of use.[1235] Mr Allen saw the WAPC's decision to conduct the review of the IPRSP as prompted by its desire to 'be certain that the drivers for additional land being identified for urban were real drivers as opposed to perceived drivers'.[1236] In his view, without a proper review, it would not have been possible to determine whether the demand being manifested in the purchase of rural land was a real demand, driven by population change, or merely speculative land purchases.[1237]
967 Mr Allen did not accept that in the absence of the Highway, the imperative to initiate the FPSP would have been reduced. His view was that the review of the IPRSP would have proceeded at least to the point where it established with some certainty that there was a legitimate demand, rather than speculative demand, for extra urban land in the area before the WAPC would have proceeded to a structure plan for the Furnissdale to Pinjarra area.[1238]
968 Mr Allen's view thus was that the prospects for development of the Kelliher land (with or without the Highway) would depend on the outcome of the review of the IPRSP.
969 Thirdly, Mr Kerr and Mr Ferraro were both of the view that without the Highway, there existed sufficient east-west development pressure and locational factors which supported the prospects of the rezoning of the Kelliher land. Mr Kerr's evidence was that the absence of the Highway, or the adoption of a more westerly route for the Highway, would direct regional traffic links back along Pinjarra Road as the main east-west access, but that the locational factors which were otherwise relevant to the urban development of the Ravenswood node would still apply.[1239] Mr Kerr felt that there would still exist continuing demand for growth in urban development in that area, and that north Ravenswood (including the Kelliher land) met relevant criteria to support new urban growth in that area. He noted, for example, that Ravenswood was at the centre of four major employment areas, namely Mandurah, Pinjarra, Greenlands Road industrial area and the future Nambeelup Road.[1240]
970 Similarly, Mr Ferraro's view was that, even without the Highway, there would remain east-west development pressures for land on the Mandurah to Pinjarra corridor.[1241]
971 However, Mr Kerr and Mr Ferraro accepted that the Highway resulted in an additional source of demand for the Kelliher land, and an additional pressure for urbanisation, which sounded in additional development drivers for the urbanisation of the Kelliher land.[1242] And Mr Ferraro accepted that without the Highway there would be even less demand for the rezoning (having regard to population) than with the Highway.[1243]
972 On closer analysis, the position of the planning experts was thus that all of them agreed that the Highway was a, or an additional, source of pressure for the development of the Kelliher land. The real difference between them was their starting point that is, whether the Kelliher land had sound prospects of being developed regardless of the Highway. All that can be said on this issue is, therefore, that the hypothetical Spencer parties would have been advised that the presence of the Highway was a source, or an additional source, of pressure for the development of the Kelliher land which was likely to reduce the time frame in which that development might occur. However, the extent of that reduction in the time frame was uncertain. Both Mr O'Neill and Mr Allen expressed the view that the absence of the Highway was likely to make a difference to the timeframe for any urbanisation of the Kelliher land. Mr Allen's evidence was that if the Highway had taken a different route, proceeding closer to the coast rather than through the Kelliher land, that may have delayed the demand for development of the Kelliher land, but he was not able to estimate the likely period of that delay.[1244] In contrast, Mr O'Neill thought the absence of the Highway would have made a significant difference to the timeframe for urbanisation of the Kelliher land. He saw the presence of the Highway as reducing the timeframe for the likely development of the land, although that development would still be within the long-term.[1245]
(c) As at the Date of Taking, and with the Highway, what advice would the hypothetical Spencer parties have received in relation to the prospects of the Kelliher land being rezoned?
973 It is useful to commence by noting the evidence given by the planning experts as to the factors which they considered were in favour of the rezoning of the Kelliher land, and the factors which they considered were not in favour of the rezoning of the Kelliher land, before turning to consider the planning experts' views as to the impact of the Highway itself on the prospects of the Kelliher land being rezoned.
974 All of the planning experts expressed the view that the factors each of them identified as supporting the urban development of the Kelliher land, or as militating against rezoning, in the unaffected scenario (without the Highway) were also factors that militated against rezoning in the real world (with the Highway).[1246]
975 All of the planning experts also saw the existence of the Highway as favouring the rezoning of the Kelliher land. Mr Ferraro saw the existence of the Highway itself as a factor in favour of the rezoning of the land.[1247] And Mr Kerr pointed to the proximity of the Kelliher land to the Highway itself, which provided accessibility to major interregional transport links, as an additional factor favouring the rezoning of that land to urban use.[1248] Mr Allen's view was that the existence of the Highway itself would be an advantage to the prospects for rezoning the land to urban, because the presence of the Highway may enable more of the Kelliher land to the north to be developed as it was expected that the Highway would increase the demand for land in the area.[1249]
976 Mr Moran also considered that the presence of the Highway was itself a factor in favour of rezoning because the Highway opened up the area to the metropolitan market as opposed to solely the local market.[1250] He also considered that the prospects of rezoning the north Ravenswood land further north of Old Mandurah Road improved with the Highway because it provided a 'spine of access' to that land, whereas Pinjarra Road would otherwise have become the focus for services and infrastructure.[1251]
977 Similarly, Mr O'Neill's view was that the presence of the Highway, and with it, the proximity of the north Ravenswood land both to Perth and to facilities and employment in Perth, and to the proposed Nambeelup industrial area, were additional factors in favour of rezoning.[1252]
978 In their joint report, the planning experts expressed general agreement that the prospects of the future urban development of the Kelliher Land were not significantly enhanced by the proposed RRF.[1253]
979 Mr Ferraro's evidence was that the location of the RRF would not affect the prospects of rezoning of north Ravenswood.[1254]
980 Mr Kerr's view was that the location of the RRF was not determinative of the prospects for urban rezoning of the north Ravenswood land (in that if the RRF was not proposed to be located on the RRF land, that would not preclude urban zoning of the north Ravenswood land). Mr Kerr was of the opinion that the presence of the RRF reservation would assist the prospects for rezoning the land at north Ravenswood, but thought that that assistance would be marginal.[1255]
981 Mr Allen noted that in the suitability study undertaken in respect of the RRF in 2005, it was noted that the Shire of Murray was investigating opportunities to establish commercial, residential and educational precincts surrounding the regional open space. Mr Allen noted that the proposed RRF 'was designed to provide a regional facility and that may have happened irrespective of the possibility of the land adjacent to it being earmarked for urban land uses'.[1256] Mr Allen therefore considered that the RRF would not drive the decision to rezone the land at north Ravenswood but would marginally increase the prospects of that land being rezoned.[1257]
982 Mr Moran felt that the presence of the RRF reservation would have improved the prospects for the rezoning of the north Ravenswood land, because the 'Peel Region Sport and Recreation Facilities Plan Final Report'[1258] recommended that consideration be given to identifying opportunities to increase the residential capacity of the areas within the catchment area of the proposed RRF, and Mr Moran thought that that would be of 'some' influence on the WAPC.[1259] Mr Moran did not indicate the extent of the improvement which this factor might add to the prospects of rezoning of the north Ravenswood land. In light of the other evidence in relation to the factors likely to be taken into account by the WAPC, it seems unlikely that this particular factor would have been accorded particular significance by the WAPC in the decision whether the north Ravenswood land should be rezoned for urban use.
983 Similarly, Mr O'Neill emphasised that he did not see significant prospects for the urbanisation of the north Ravenswood land in the first place. In that context, his opinion was that if that land was to be urbanised, the location of the RRF may assist the prospect of that occurring.[1260] Mr O'Neill's view was thus that the location of the RRF would have 'some impact' on the prospects of rezoning the land at north Ravenswood.[1261]
984 Quite apart from the question of the prospects of the north Ravenswood land being rezoned for urban use, the planning experts agreed that the proposed RRF would have been seen as a positive attribute to the general amenity of the north Ravenswood area (which included the Kelliher Land). By way of example, Mr Ferraro noted that the location of the RRF was an amenity that would make the adjacent land attractive to future residents, and that would be an advantage for a developer in selling lots nearby.[1262] And Mr Allen explained that the WAPC would take the RRF into account as contributing to the overall community facilities which would be provided to support an urban area on the north Ravenswood land.[1263]
985 The planning experts also opined on whether the proximity of the north Ravenswood land to the RRF land would affect the timing of any rezoning of the north Ravenswood land. Mr Ferraro's evidence was that the location of the RRF would not affect the timing of rezoning of the land at north Ravenswood.[1264] However, the tenor of the evidence given by the remaining planning experts (other than Mr Kerr, who did not express an opinion on this issue), was that proximity to the RRF land may reduce the time for the rezoning of the land at north Ravenswood.
986 There was differing evidence as to the impact that proximity to the RRF land was likely to have on the time frame for any such rezoning. Mr Allen was of the opinion that the RRF reservation may impact on the timing of when the land might be rezoned, but he did not put much weight on that factor. Mr O'Neill thought that the location of the RRF may assist the timing of any rezoning of the land at north Ravenswood, and may reduce the amount of time likely to lapse before that rezoning took place.[1265] In contrast, Mr Moran was of the view that the RRF would have a 'significant' impact on the timeframe for development of the rezoned land, although he did not explain why its impact would be 'significant'.[1266]
987 Taking this evidence into account, I find that the hypothetical Spencer parties would receive advice that it was possible that the proximity of the north Ravenswood land (including the Kelliher land) to the RRF may have some impact on the prospects of that land being rezoned for urban use, but any impact was unlikely to amount to more than marginal assistance. The hypothetical Spencer parties would also receive advice that the proposed RRF would have been seen as a positive attribute to the general amenity of the north Ravenswood area. Finally, the hypothetical Spencer parties would also receive advice that it was possible that proximity to the RRF may reduce the period before the land at north Ravenswood was rezoned to urban, but that the extent of any such impact was uncertain.
988 In the report of the joint conferral of the planning experts, Mr Allen, Mr Kerr and Mr Ferraro agreed that as at the Date of Taking, there was a reasonable prospect of the Kelliher Land being identified and subsequently zoned and developed for urban purposes.[1267]
989 At no point did either Mr Allen or Mr Kerr give an opinion as to the likely timeframe in which the Kelliher land could be expected to be rezoned.
990 Mr Ferraro's view was that, in the absence of the Highway, the land would have been rezoned and ripe for subdivision within five years.[1268]
991 Mr Moran's opinion was that, because the Kelliher land was zoned rural under the PRS and the operative TPS for the Shire of Murray, 'it could not be expected or assumed that a rezoning to allow for residential or rural residential development was imminent or likely'.[1269]
992 Mr Moran' view was that there was a reasonable prospect of the Kelliher Land being identified and subsequently zoned and developed for urban purposes in the very long term, but considered that there was no prospect of such rezoning and development in the short to medium term. Mr Moran was also of the view that the prospects of rezoning of the Kelliher Land were limited to that part of the Kelliher Land south of Rogers Road, at least in the foreseeable future.[1270]
given the planning history of the area and the fact that the Kelliher land was in a strategic position situated midway between Mandurah and Pinjarra and opposite the Murray River, which has been recognised as a development corridor in the longer term development scenario, there could be some reasonable expectation for a change of use in the longer term as the region developed.[1271]
994 Mr Moran's opinion was that, at the Date of Taking and in the absence of the Highway,
there was no prospect [that] any of the [Kelliher land] could be developed for urban purposes in the short to medium term (in the order of 30 40 years) ie 2041 51 if we assume that the provisions in the final IPRSP ... are sufficient to meet their forecast population estimates and that these estimates are still valid.
In the longer term (post2041 2051), the subject land could be considered for possible residential development.[1272]
in the longer term (in the order of 40 years from the Date of Taking), it is possible that the [Kelliher land] south of Rogers Road, if it had not been developed for rural residential in the interim, could have potential for urban development subject to being able to be adequately serviced and environmental constraints being managed within acceptable standards.
North of Rogers Road in the absence of the Highway, the prospects for future urban would be more uncertain. And in the absence of the Highway, the timeframe could be in the order of 2075 as indicated in the [IPRSP] Option 3.[1273]
996 These timeframes were based on the assumption that the Kelliher land alone was zoned urban. Mr Moran explained that if it were assumed that all of the land proposed for future urban use in the draft LPS were to be zoned urban (rather than just the Kelliher land), then a 'conservative estimate' would see a doubling of the urban zoned land in Ravenswood.[1274] Mr Moran noted that, even if the analysis were confined to the land north of Old Mandurah Road which was identified for urban use in the draft LPS, then having regard to population projections for the Shire of Murray in WA Tomorrow, the land allocated for urban purposes in the draft LPS north of Mandurah Road would represent at least a 45year supply (assuming all urban development in the Shire occurred only at Ravenswood).[1275]
997 Mr Moran also noted that, if it were assumed that the existing zoned land at Riverland Ramble and elsewhere in the vicinity constituted only a fiveyear supply, then at the Date of Taking, the development front moving northwards and eastwards from Old Mandurah Road would arrive at Rogers Road in approximately 2041. Mr Moran explained that, based on those assumptions, the land north of Rogers Road could be considered for rezoning to urban in 2026, which would provide a 15year lead time to the commencement of its development.[1276]
998 Mr O'Neill was of the view that the prospects for future urban development of the Kelliher Land as at the Date of Taking were unclear and uncertain, but unlikely in the foreseeable future.[1277] Mr O'Neill's view was that in the absence of the Highway, the timeframe for subdivisional development of the Kelliher land would be in the order of 20 years of more. This view was based on the assumption that the Kelliher land would be developed in sequence, some time after completion of the current Ravenswood estate and the intervening land to the north of Old Mandurah Road (including the Emmanuel and McKay land). That estimate for subdivisional development was based on the assumption that the Kelliher land had been identified for future urban residential development.
999 Mr O'Neill was of the view that the proposed Highway would have enhanced any prospects of future urbanisation of the Kelliher Land.[1278]
1000 Mr Moran's evidence was that the Highway had the effect of improving the certainty for rezoning of the land south of Rogers Road to urban and reducing its timeframe for development from long term to medium term. In addition, he thought the Highway introduced the possibility for the land north of Rogers Road to be rezoned to urban in the longer term.[1279]
1001 However, Mr Moran's opinion was that 'the prospects for the rezoning of all or part of the [Kelliher land] at the Date of Taking for urban residential use in the absence of the Highway was highly speculative with between 2041 2075 being the timeframe'.[1280] Mr Moran's view was that, optimistically, a rezoning may have been foreseen in 2026 for the land south of Rogers Road and longer for the land north of Rogers Road.[1281] Mr Moran's view was that, as at the Date of Taking and with the Highway, the likelihood of urban zoning of the Kelliher land 'was increased significantly for all of the land but particularly for the land north of Rogers Road'.[1282]
1002 In addition, Mr Moran's view was that, 'as a result of the severance created by the [Highway], in my opinion, it is quite likely that the strip of land between Fiegert Road and the Highway reservation ... could, as a result of its severance from the main property, be considered for a change of land use to rural residential'[1283] within two to three years.
1003 Mr Allen was of the view that the proposed Highway would not have made much difference to the prospects of future urban development of the Kelliher Land, but agreed that it may have justified some expansion of such development to the north.[1284] Similarly, Mr Kerr was of the view that the proposed Highway would not have made any significant difference to the prospects for future urban development of the Kelliher Land, but would have been of some benefit to urbanisation.[1285]
1004 Mr Ferraro expressed the view that the proposed Highway would have reduced the prospects of the future urban development of the Kelliher Land, and would have made urban development of the Kelliher land less likely.[1286] However, this evidence was inconsistent with his evidence (discussed at [971] above) that the Highway was an additional source of pressure for the urban development of the Kelliher land. (In fairness to Mr Ferraro, it may be that his evidence at this point had in mind his view of the impact of the development of Amarillo on the prospects for development of the Kelliher land. However, his reasoning was not clear.)
1005 Given that Mr Ferraro's view stood in stark contrast to the views of the other planning experts, and was not consistent with his other evidence on the impact of the Highway itself, I prefer the evidence of the other planning experts. In my view, the hypothetical Spencer parties would have been advised that the extent to which the presence of the Highway would have enhanced any prospects of the future urbanisation of the Kelliher land was uncertain, but either the Highway enhanced the prospects of the land being rezoned, or would not make much difference to those prospects. Any impact would most likely be seen in enhancing the prospects of the urban development of the land north of Rogers Road.
1006 The planning experts were asked to give their opinion of the prospects as at the Date of Taking that in the real world (with the Highway) the Kelliher land would be identified for future urban zoning in the review of the IPRSP. They were asked whether, taking all of the factors discussed above into account, they agreed with the proposition that the prospects that the Kelliher land would be identified for future urban zoning in the review of the IPRSP were 'substantially less than reasonable, and were highly uncertain'. Mr O'Neill agreed with that proposition, on the assumption that the review of the IPRSP adopted a 30year planning horizon for the supply of urban land.[1287]
1007 Mr Moran agreed with the proposition in respect of the Kelliher land north of Rogers Road. However, in relation to the Kelliher land south of Rogers Road, Mr Moran's view was that whether the IPRSP adopted a 30 or 50year planning horizon for future urban land, there were reasonable prospects that that land would be identified in the review of the IPRSP for future urban rezoning.[1288]
1008 Mr Allen agreed with Mr Moran.[1289]
1009 Mr Kerr's view was that it was to be expected that the land south of Rogers Road would be rezoned and developed before the land north of Rogers Road.[1290]
1010 In contrast, Mr Ferraro appeared to be of the view that the whole of the Kelliher land had the same prospects of rezoning, but that the development of that land was likely to take place in stages, as had been suggested by Mr Kerr in his earlier evidence (see above).[1291] Mr Ferraro's evidence was that the planned Highway did not change the suitability of the Kelliher land for urban purposes, but 'effectively brought other land that was seen as more desirable by the government into contention for urban development'.[1292] His view was that the Highway 'distorted the regional planning outcomes by providing other urban opportunities along the Highway, such as Amarillo. This distortion complicated the urban framework and removed the Furnissdale to Pinjarra area as the priority urban development area in favour of other large government landholdings'.[1293]
1011 The planning experts were then invited to consider the position as at the Date of Taking, but in the unaffected scenario (without the Highway). Again, they were asked whether, taking all of the factors discussed above into account, they agreed with the proposition that the prospects that the Kelliher land would be identified for future urban zoning in the review of the IPRSP were substantially less than reasonable, and were highly uncertain.
1012 Mr O'Neill agreed with this proposition, but thought that the prospects for rezoning were 'slightly more highly uncertain'.[1294]
1013 Mr Moran thought that there was no difference in the prospects for rezoning the land south of Rogers Road (whether with, or without, the Highway). However, without the Highway, he thought that the prospects of rezoning the Kelliher land north of Rogers Road were 'almost zero'.[1295]
1014 Mr Allen's evidence was that he did not think that the Highway 'made an awful lot of difference' to the prospects for the Kelliher land being rezoned. However, like Mr Moran, he accepted that without the Highway, there was no prospect that in the review of the IPRSP the Kelliher land north of Rogers Road would be identified for future urban zoning.[1296]
1015 Mr Kerr's evidence was that without the Highway, 'if anything, the prospects for the Kelliher land [being identified for future urban zoning] might be slightly improved, or improved in comparison to other potential competing sites'.[1297]
1016 Mr Ferraro's evidence was that there was no difference in the prospects of the Kelliher land being identified for future urban zoning, in the course of the review of the IPRSP, whether with the Highway, or in the scenario without the Highway.[1298] Mr Ferraro's view was that the urbanisation of the Kelliher land was a matter of 'when' not 'if'.[1299] Mr Ferraro's view was that, without the Highway, it was likely that the Kelliher land would have been included in the urban zone, or at least have a high likelihood of being included in the urban zone to address short and medium term housing issues in the Peel region.[1300]
1017 Having regard to all of the factors discussed above, and to the content of the relevant documents which are also discussed above, I am not persuaded that Mr Ferraro's evidence should be accepted as evidence of the advice likely to be given to the hypothetical Spencer parties of the outcome of the application of orderly and proper planning principles having regard to the information available as to population growth and the existing supply of urban land for the short to medium term future. In addition, the proposition that all of the Kelliher land had the same prospects of being rezoned for urban use appears to me to be quite at odds with the principles forming part of the statutory planning framework, particularly SPP 3 and Network City and their focus on development around activity centres, the nearest of which was at Ravenswood. On the other hand, there was a considerable symmetry in the views of Mr O'Neill, Mr Moran and Mr Allen. And the views of Mr Kerr at least in relation to the position in the real world (with the Highway) were not inconsistent with those views, in that even though he did not seek to quantify, or describe, the prospects for the rezoning of the Kelliher land, he accepted that the prospects for rezoning of that land south of Rogers Road were better than for the land north of Rogers Road.
1018 Accordingly, I find that the hypothetical Spencer parties would have received the following advice.
1019 In so far as the land south of Rogers Road was concerned, the hypothetical Spencer parties would have been advised that, as at the Date of Taking and in the real world (with the Highway) and having regard to the lengthy 30 to 50year planning horizon for the IPRSP, the prospects of that land being identified for future urban rezoning were uncertain and ranged from reasonable to 'substantially less than reasonable'.
1020 In so far as the land north of Rogers Road was concerned, however, the hypothetical Spencer parties would have been advised that having regard to the planning horizon for the IPRSP, the prospects of the land north of Rogers Road being identified for future urban rezoning were 'substantially less than reasonable' and highly uncertain.
1021 In the unaffected scenario (without the Highway), the advice given to the hypothetical Spencer parties would not have been markedly different.
1022 I find that the hypothetical Spencer parties would have been advised that in the unaffected scenario without the Highway, at the Date of Taking, the prospects that the Kelliher land south of Rogers Road would be identified in the review of the IPRSP for future urban zoning, even within the 30 to 50year time frame of the IPRSP, were uncertain and ranged from reasonable to substantially less than reasonable.
1023 In so far as the land north of Rogers Road was concerned, however, the hypothetical Spencer parties would have been advised that within the lengthy 30 to 50year time frame for the IPRSP, the prospects of that land being identified for future urban rezoning ranged from 'substantially less than reasonable' to 'almost zero'.
Planning experts' evidence as to the rezoning of the land west of the Highway for special rural use
1024 It was not in dispute that the subdivision of land zoned for rural use had to be undertaken in accordance with the provisions of the Local Rural Strategy, the WAPC's Rural Subdivision Policy (DC 3.4) and its Agricultural and Rural Land Use Policy (SPP 11). A minimum lot size of 40 ha was required. Mr Kerr's evidence was that, in the unaffected scenario (without the Highway), had the Kellihers wished to subdivide the Kelliher land based on its rural zoning, the original Kelliher lots could have been amalgamated and resubdivided to create regular shaped lots all with substantial frontage to Fiegert Road ranging in size from 47 to 53 ha each. He considered this to be the optimum 'rural' lot subdivision outcome based on the 40 ha minimum policy requirement.[1301]
1025 Mr Kerr and Mr O'Neill agreed that, with the Highway, there would be a reasonable prospect of four further rural lots being approved, because the WAPC would permit some smaller rural zoned lots than would otherwise be permitted, in view of the division of the land as a result of the Highway.[1302] However, Mr Kerr expressed some uncertainty as to whether the WAPC would support the creation of separate rural lots for the land west of the Highway and, as a consequence, thought that the Highway would dilute the optimum rural subdivision potential of the Kelliher land.[1303]
1026 However, the expert planners also agreed that with the Highway, the excision of the Remaining Land to the west of the Highway, coupled with the then current rural residential (special rural) zoning of adjacent land to the west of Fiegert Road, would improve the prospects of the Remaining Land to the west of the Highway being rezoned for rural residential (special rural) development. Lots zoned for special rural use were required to have a minimum lot size of 1 to 2 ha. That zoning represented an 'intermediate zoning between residential and rural living.[1304] The WAPC's approach to special residential zones was that they should be used only sparingly, and in special circumstances, because they were less efficient in terms of land use and utilisation of services.[1305] However, the planning experts agreed that given the dimensions of the land involved, rezoning to special rural use represented the highest and best use of the land west of the Highway. The planning experts noted that the rezoning of this land had been foreshadowed in the draft LPS prepared by the Shire and submitted to the WAPC for certification in conjunction with draft TPS 5 in July 2005, but was not at that time shown as special rural under the draft TPS 5.[1306]
1027 In view of this evidence, I find that the hypothetical Spencer parties would have been advised that with the Highway, the highest and best use of the Remaining Land west of the Highway would have been as rural land with potential for rezoning to special rural use.
1028 Counsel for the defendant submitted that the Court should make a finding that rezoning to special rural for land west of the Highway would have been permitted without delay upon an application being made. They submitted that this conclusion followed from the fact that long before the Date of Taking, when the alignment of the Highway was being considered, it had been contemplated that the highest and best use of land west of the Highway would be for special rural use.
1029 The defendant pointed to a letter from the Minister for Transport to Mr J Kelliher dated 30 March 1998, by which time a preferred route for the Highway had been identified. In that letter, the Minister advised that the Main Roads Department had
made informal enquiries of relevant authorities regarding the possible effect of the preferred alignment [of the Highway] on property zoning in the area. The Shire of Murray has advised that its Local Rural Strategy document indicates that land west of the alignment could be utilised for special rural developments and the land to the east should remain as ruralBroadacre Farming.
Based on the above informal discussions, it appears that properties west of the Peel Deviation alignment and north of the Murray River could be subdivided as special rural, subject to the normal sub-divisional approval process.[1307]
1030 Counsel for the defendant submitted that the existence of that correspondence would have served to confirm, in the mind of the hypothetical Spencer parties that there was a strong likelihood that the remaining land west of the Highway would be rezoned to special rural without delay.
1031 That letter was written long before the Date of Taking, and long before the review of the IPRSP and the Southern Sectors Review were commenced. It is difficult to see how the hypothetical Spencer parties could have excluded the possibility that the WAPC may have deferred a decision on any rezoning of the Kelliher land until the completion of those reviews. That was Mr Moran's view.[1308] Accordingly, I find that the hypothetical Spencer parties would have formed the view that there was a very strong likelihood that the land west of the Highway would be rezoned for special rural use upon application being made, but that there remained the possibility that the WAPC would defer making a decision on any rezoning of the Kelliher land until the review of the IPRSP, and the SSR, were completed.
1032 Mr O'Neill noted that, as at the Date of Taking, it was generally recognised that special rural subdivision gave rise to significant difficulties and constraints upon any subsequent development for urban residential purposes. Accordingly, if the Kelliher land were identified for medium to long term urban residential use as a result of the review of the IPRSP, it was unlikely that special rural subdivision would have been permitted as an interim measure in the meantime.[1309]
1033 In view of that evidence and as the plaintiffs' case was run on the basis that the land north of Rogers Road was rural with the prospect of rezoning for urban use, I find that the hypothetical Spencer parties would not have been advised that the highest and best use of that land reflected the prospect of rezoning for special rural use, as an interim measure prior to future urban rezoning. Rather, the advice given to the hypothetical Spencer parties would have been directed solely to the prospects for urban zoning of the land north of Rogers Road.
PART 7: CONCLUSIONS WHICH THE HYPOTHETICAL SPENCER PARTIES WOULD HAVE REACHED AS TO THE PROSPECTS THAT THE KELLIHER LAND WOULD BE REZONED
1034 The conclusions I have reached in relation to the knowledge of the hypothetical Spencer parties about the statutory planning framework, the content of relevant planning instruments, and the surrounding factual context, together with the planning advice which the hypothetical Spencer parties would receive, leave little room for doubt about the conclusion the hypothetical Spencer parties would reach as to the prospects of the Kelliher land being rezoned for urban use, in the unaffected scenario, and in the real world with the Highway.
Prospects for urban development of the Kelliher land - unaffected scenario
1035 The hypothetical Spencer parties would conclude that no decision would be made by the WAPC as to whether to rezone the Kelliher land for urban use (that is, a decision whether to amend the PRS, and to approve TPS 5 and the draft LPS) until the completion of the Southern Sectors Review, and the review of the IPRSP (at least to the extent of a determination as to the use of land the subject of the proposed FPSP review). The duration of those reviews was uncertain but the best estimate was that those reviews would be completed within about two years of the Date of Taking.
1036 The outcome of those reviews was uncertain, and particularly so in the case of the Southern Sectors Review, given the uncertainty (as at the Date of Taking) as to its precise objectives. The hypothetical Spencer parties would have concluded that there was necessarily uncertainty about the conclusion the WAPC would reach as to whether, and in what time frame, the WAPC might permit the rezoning of the Kelliher land for urban use.
1037 However, one thing about which the hypothetical Spencer parties would be certain was that the WAPC would apply the principles of orderly and proper planning in making decisions about the zoning of land in the Peel Region. Accordingly, while the WAPC was concerned to understand the causes of rising house prices and to ascertain the reality underlying the perception, within the property market, of a shortage of residential housing lots, and while the WAPC was aware of the desire of the Shire of Murray - as manifested in the draft LPS - to see a considerable volume of land (particularly at north Ravenswood) rezoned for urban use, the WAPC would make decisions about land use having regard to the policies and principles comprising the State Planning Framework, in light of the data available to it about actual and projected population growth, and land supply, in the Region.
1038 The hypothetical Spencer parties would conclude that of all of the planning policies comprising the State Planning Framework, the most significant for the rezoning of the Kelliher land (in terms of the likely outcome of the reviews of the IPRSR, and the Southern Sectors Review) were the principles contained in the IPRSP itself, the principles in Network City, and the principles set out in SPP 3.
1039 Having regard to the terms of the IPRSP, and to the planning advice they would receive, the hypothetical Spencer parties would conclude that the underlying principles of the IPRSP as a structure plan - namely its 30 to 50year planning horizon, its objective of ensuring a rolling 15year supply of urban land, its use of categories to designate land for immediate, and future (including long term future) urban use, and its objective of ensuring a balance between too little and too much urban land having regard to anticipated population growth - would be maintained by the WAPC. Accordingly, the hypothetical Spencer parties would conclude that in relation to the Kelliher land, the question was to ascertain the likelihood that the WAPC would designate the Kelliher land for urban use, either within the immediate or short term, or within the longer term planning horizon of the IPRSP.
1040 Having regard to the principles set out in the IPRSP, in the SPP 3 and most recently emphasised in Network City, and to the planning advice they would receive, the hypothetical Spencer parties would conclude that the WAPC was very likely to continue to be concerned to contain urban sprawl, and to locate urban development around existing activity centres (noting that the Kelliher land was not within the existing areas earmarked for 'future communities' under Network City, and that apart from Lot 190, the Kelliher land was quite removed from the existing activity corridor between Mandurah and Pinjarra). The hypothetical Spencer parties would conclude that having regard to the terms of the IPRPS, SPP 3 and Network City alone, the rezoning of the Kelliher land for urban use, was quite inconsistent with those principles.
1041 The hypothetical Spencer parties would conclude that in order to depart from the existing principles in the IPRSP, SPP 3 and Network City, the WAPC would need to be satisfied that there was a very sound planning justification for doing so. The hypothetical Spencer parties would conclude that a key focus point in the WAPC's consideration would be its own data as to the existing supply of urban zoned land, and on projected population growth, in the Shire of Murray and the Peel Region. In terms of the objective of ensuring a rolling 15year supply of urban land, the immediate question would be whether the existing supply of land, compared with projected population growth, suggested a need for more urban land within the 15year period following the Date of Taking (that is, up to 2020).
1042 Having regard to the WAPC's own data in relation to the supply of housing lots, and in relation to projected population growth, and to the advice of the planning experts, the hypothetical Spencer parties would conclude that the WAPC was very likely to determine that under the IPRSP, there was an adequate supply of en globo land already zoned for urban use, or identified (but not yet zoned) for urban use within the Peel Region, and in the Shire of Murray in particular, both in the short to medium term future, and in the longer term (30year) future. In addition, the hypothetical Spencer parties would accept the planning advice given to them that the WAPC was likely to conclude that although there was a shortage of housing lots with final approval for subdivision, there was no shortage of conditionally approved housing lots, and delays in developers obtaining final approval for subdivision were unrelated to the existing supply of land zoned for urban use, or designated for future urban use, under the IPRSP.
1043 As for the views of the Shire of Murray, as manifested in the draft LPS, the hypothetical Spencer parties would conclude that the draft LPS did not set out any sound justification for the significant expansion of urban land proposed in the land use plan attached to the draft LPS. The hypothetical Spencer parties would also conclude that the WAPC was aware of the influence of local landowners in persuading the Shire to expand the land proposed for urban use under the draft LPS (given that documents submitted to the WAPC made reference to the efforts of those landowners to do so).
1044 Having regard to their knowledge of the Kelliher land, to the statutory planning framework, and to the planning advice they would receive, the hypothetical Spencer parties would conclude that uncertainty over whether the Kelliher land was suitable for urban development, having regard to environmental constraints and to the requirements of SPP 2.1, would add to the uncertainty of its prospects for being rezoned for urban use in the future.
1045 Having regard to all of these matters, and to the planning advice they would receive, the hypothetical Spencer parties would conclude that in the unaffected scenario, the prospects that the Kelliher land would be identified, in the review of the IPRSP, for urban zoning, even within the 30 to 50year planning horizon of the IPRSP, were uncertain.
1046 The hypothetical Spencer parties would conclude that in respect of the Kelliher land south of Rogers Road, those prospects ranged from substantially less than reasonable, to slightly better than that. Within that 30 to 50year horizon of the IPRSP, there was a greater prospect of urban or future urban zoning for Lot 190 and the southernmost Kelliher lots.
1047 In respect of the Kelliher land north of Rogers Road, the hypothetical Spencer parties would conclude that there were no reasonable prospects of that land being identified for future urban rezoning within the 30 to 50year planning horizon of the IPRSP.
Prospects for urban development of the Kelliher land - with the Highway
1048 Having regard to the matters outlined above, and to the planning advice they would receive, the hypothetical Spencer parties would conclude that in the real world (with the Highway), the prospects that the Kelliher land would be identified, in the review of the IPRSP, for urban zoning, even within the 30 to 50year planning horizon of the IPRSP, remained uncertain.
1049 Based on the planning advice they would receive, the hypothetical Spencer parties would conclude that the Highway would not adversely affect the prospects of the Kelliher land being rezoned, and may slightly improve the prospects of the rezoning of the Kelliher land, particularly for the land north of Rogers Road.
1050 The hypothetical Spencer parties would conclude that in respect of the Kelliher land south of Rogers Road, those prospects of urban development within that 30 to 50year time frame remained substantially less than reasonable, although there was a greater prospect of urban or future urban zoning for Lot 190.
1051 However, in respect of the Kelliher land north of Rogers Road, the hypothetical Spencer parties would conclude that the prospects of that land being identified for future urban rezoning within the 30 to 50year planning horizon of the IPRSP were slightly improved, and would range from substantially less than reasonable to reasonable.
1052 Having regard to the evidence discussed above, I find that the hypothetical Spencer parties would have concluded that the highest and best use of the land west of the Highway, as at the Date of Taking, was for rural use, with potential for rezoning to special rural and subdivision within about three years.
1053 The hypothetical Spencer parties would conclude that while the RRF reservation may have some impact on the prospects of the Kelliher land being rezoned for urban use, its impact was unlikely to be of more than marginal assistance.
1054 Having regard to the principles in SPP 3 and Network City, and to the planning advice they would receive, the hypothetical Spencer parties would conclude that if the WAPC decided that any land at north Ravenswood should be rezoned for urban use in the short term future, it was most likely to be land located along the activity corridor on Pinjarra Road, and along Old Mandurah Road, nearest to the existing activity centre at Ravenswood, and adjacent to the existing urban development at Riverland Ramble, namely the McKay land, Lot 190 of the Kelliher land, and Lots 10, 11 and 12 (that is, the Emmanuel land).
1055 In addition, the hypothetical Spencer parties would conclude that if the WAPC determined to designate more of the Kelliher land for future urban use in the longer term, it was likely that that progression to urban would radiate northwards from Old Mandurah Road, so that the more southerly of the Kelliher lots would move from future urban to urban zoning in advance of the northernmost Kelliher lots. In other words, development would extend north from Lot 190 to Lot 204, and to Lot 203, and then further north in due course, with the land north of Rogers Road being made available for urban development last of all.
1056 Having regard to the planning evidence, the hypothetical Spencer parties would conclude that if the WAPC decided to rezone the Kelliher land for urban or future urban use, then on the best case scenario, the first stage of that urban development (that is, the land closest to Old Mandurah Road, namely Lot 190) could be expected within about four years after the completion of the review of the IPRSP, or about six years after the Date of Taking (2011). However, the hypothetical Spencer parties would appreciate that even if the land adjacent to Pinjarra Road and Old Mandurah Road were zoned for urban use in the short term future, that did not mean that all of that land would actually be developed immediately, or at the same time. The starting point for development, and the rate of any development, would be a matter for individual developers.
1057 In addition, given their knowledge of the projected population growth for the Shire of Murray, and the existing supply of urban land in proximity to north Ravenswood at the Date of Taking, the hypothetical Spencer parties would conclude that even if the WAPC determined to designate some or all of the Kelliher land for future urban use in the long term future, it was unlikely that demand for urban land would justify the development of the Kelliher land on more than one urban front at a time.
Whether the development of Amarillo would adversely affect the prospects that the Kelliher land would be rezoned
1058 In my view, the hypothetical Spencer parties would conclude that it was very unlikely that the development of Amarillo would affect the prospects of the Kelliher land being rezoned, for two reasons.
1059 First, there was no evidence to suggest that prior to the Date of Taking, the proposed development of Amarillo had had any impact on the prospects of the Kelliher land being rezoned for urban use. On the contrary, the Shire of Murray sought to progress the draft LPS, including urbanisation of the land at north Ravenswood, notwithstanding that the development of Amarillo was receiving consideration from the DPI and from the Department of Housing. There is nothing to suggest that the view was taken, within the Shire or within the DPI or WAPC, that the development of Amarillo would impact upon the decision whether to permit the urban development of north Ravenswood.
1060 Secondly, the hypothetical Spencer parties would be aware that as at the Date of Taking, the land at Amarillo was zoned rural. There remained deep divisions within government about the merits of the development of Amarillo, and it is apparent that the DPI and WAPC remained unconvinced about the merits of its development. Furthermore, as the evidence of the planning experts, and of Mr Burrell and Mr Broadhurst, clearly demonstrated, there were a number of significant hurdles standing in the way of the future development of Amarillo (other than stage 1) including the need for road upgrades, the need for a bridge over the Serpentine River, the need to construct deep sewerage connections, and finally environmental issues which cast doubt on the suitability of the land at Amarillo east of the Serpentine River for urban development. Consequently, in my view, the hypothetical Spencer parties would conclude that as at the Date of Taking, the prospects of the rezoning of the land at Amarillo for urban use were uncertain, and that other than for Stage 1, it was unlikely that the development of Amarillo would take place other than in the long term future.
1061 As for Stage 1, the hypothetical Spencer parties would be aware that the proposed Stage 1 development at Amarillo involved a small parcel of land which it was anticipated would comprise about 1200 lots. In my view, the hypothetical Spencer parties would conclude that a small development of that size, even if it were to proceed, would not have any impact on the WAPC's determination as to whether the Kelliher land should be rezoned for urban use.
1062 In this section of my reasons, I consider the evidence as to the value of the loss sustained by the plaintiffs arising from the taking of the Land, and in respect of the other claims of loss and damage made by the plaintiffs under s 241 of the LA Act.
(b) Evidence as to increased costs of development of the Remaining Land;
(d) The matters agreed between the valuation experts;
(e) The key areas of difference in the opinions of the valuation experts;
(f) Summary of the evidence given by the valuation experts;
(g) Why I do not rely on the opinions advanced by Ms Le Fevre and Mr Cameron in relation to the valuation of the Kelliher land in the unaffected scenario (without the Highway) and with the Highway;
(h) Why the comparable sales relied on by Ms Le Fevre and Mr Cameron were not comparable
(i) Why I accept the opinion advanced by Mr Wilson as to the valuation of the Kelliher land in the unaffected scenario (without the Highway) and with the Highway
1064 Mr Kerr's evidence was that he had calculated the impact of the Highway on the residential lots which could be developed on the Kelliher land by superimposing the Highway alignment over his 'before plan' and comparing the 'before' and 'after' plans to calculate the difference in lots (the 'before' and 'after' plans).[1310] Mr Kerr's evidence was that the total lot yield for the entire Kelliher land holding in the 'before plan' was 9,679 dwellings. The total lot yield for that portion of the Kelliher land holding which was affected by the Highway, namely Lots 202, 203, 207 and 208, was identified as 3,202 dwellings. The total lot yield in the after plan for the entire Kelliher land holding was calculated as 8,850 dwellings while the total lot yield in the after plan for Lots 202, 203, 207 and 208, had been calculated as 2,142 lots. A total of 428 lots had been identified as falling wholly or partially within the area of the Taken Land.
1065 Mr Kerr calculated that a total of 454 lots based upon the 'before' plan had been identified west of the Highway which, as a consequence of the Highway, could no longer be developed for urban purposes. However, the 'after' plan acknowledged that the potential for development of 46 special rural lots in this area west of the Highway.[1311]
1066 Apart from Mr Kerr, only Mr Moran and Mr O'Neill addressed the question of the difference in lot yield. Their opinions were predicated upon the assumption that the whole of the land was to be developed for urban residential purposes (and thus did not constitute an expression of opinion as to the prospects for future urban development, or of the timing of any such development, of the Kelliher land).
1067 There was general agreement between the expert planners that as a consequence of the Highway there would be a reduction in lot yield from the Remaining Land east of the Highway of between 879 lots and 882 lots, but against this, 46 rural residential lots would be able to be created from the Remaining Land to the west of the Highway.[1312]
1068 In the end, the issue of lot yields largely fell away, for two reasons. First, the 'loss' of lots identified by Mr Kerr did not represent actual lots unable to be developed in consequence of the taking of the Kelliher land. Rather, the 'loss' of lots represented only the difference in the notional 'before' and 'after' subdivision plans prepared by Mr Kerr, and was entirely dependent on choices made by Mr Kerr about the location of lots in the subdivision represented in his 'before' plan. Had Mr Kerr chosen to locate open spaces (for example for public use, or for drainage purposes) in his 'before' plan to coincide precisely with the alignment of the Highway, then there would have been no 'loss' of lots in the after plan at all. Secondly, Mr Cameron was the only valuer who valued the 'loss' of the lots as a discrete aspect of the loss of value of the land. Leaving to one side the flaws in that valuation approach, which need not be canvassed here, and as I discuss below at [1203] - [1204], Mr Cameron subsequently came to appreciate that the differences in the 'before' and 'after' plans did not represent an actual 'loss' of lots, and hence abandoned that aspect of his valuation.
1069 There was one respect, however, in which the 'loss' of lots remained in issue.
1070 In his report, Mr Kerr also noted that district level planning might require an additional intersection between the Highway and the north Ravenswood area, north of the planned intersection with Pinjarra Road.[1313] Accordingly, in his 'after' plan he identified a diamond interchange at an intersection between the Highway and Patterson Road.[1314]
1071 Counsel for the plaintiffs submitted that that requirement for a diamond interchange, and the consequential loss of the value of the 40 lots which could otherwise have been developed on the area taken up by that interchange, should be accounted for as a loss due to the Highway, which should be compensated for under s 241 of the LA Act.[1315] That submission must be rejected for two reasons. First, there was no evidence from any witness with expertise in relation to the necessary road configuration that supported the conclusion that as at the Date of Taking, it could be said that a diamond intersection would be required at the juncture of the Highway and Patterson Road. The only evidence was Mr Kerr's speculation that an intersection of that kind may be required. Secondly, in the event that a diamond intersection at the intersection of the Highway and Patterson Road is considered necessary at some future stage, the land necessary for the construction of that intersection will no doubt be acquired, and if that acquisition is a compulsory acquisition under the LA Act, compensation will be payable at that point. It is not appropriate to compensate a claimant under s 241 for a future taking of land.
(b) Evidence as to increased costs of development of the Remaining Land
1072 Mr George was commissioned to examine the noise impact from the Highway to the Kelliher land east and west of the Highway in Lots 202, 203, 207 and 208. His analysis was undertaken having regard to the location of lots based on Mr Kerr's subdivision plans for urban development and special rural development with the Highway.
1073 Mr George assessed the noise impact from the Highway by reference to the requirements of SPP 5.4 Road and Rail Transport Noise and Freight Consideration in Land Use Planning.[1316] Mr George's evidence was that, although SPP 5.4 was not gazetted until 2009, identical criteria applied as at the Date of Taking because SPP 5.4 existed in draft form as at that date. Consequently, the requirements of the policy applied to the subject land unchanged as at the Date of Taking.[1317]
1074 SPP 5.4 established noise level targets and limits measured by reference to noise (measured in decibels) during the day and at night. The objectives of the policy were to achieve acceptable indoor noise levels in noisesensitive areas such as bedrooms and living rooms and a reasonable degree of acoustic amenity in at least one outdoor living area on each residential lot. The policy required that, if a noisesensitive development was located in an area where outdoor noise levels would meet the target noise level, no further measures would be required. In areas where the target noise level would be exceeded, but noise levels were likely to be less than the noise level limit, mitigation measures were required to be implemented with a view to achieving the target levels in at least one outdoor living area on each residential lot. In areas where the noise level limit would be exceeded, customised noise mitigation measures would be required with a view to achieving the target noise level in at least one outdoor living area on each residential lot or, if that were not practicable, to at least bring the noise level below the noise level limit.
1075 Mr George's modelling revealed that the noise level limit would be exceeded approximately 105 m from the Highway reserve while the noise level target would be exceeded approximately 290 m from the Highway reserve.[1318] If a noise wall were constructed, houses could be constructed within 105 m of the Highway, provided that architectural treatments were implemented. The noise impact was likely to be confined to the first three rows of houses from the Highway.
1076 Mr George's evidence was that if a noise wall was not incorporated between the Highway reserve and the residential or special rural lots to the east and west, the effect of SPP 5.4 was that no houses would be permitted within 105 m of the Highway, while houses between 105 m and 290 m of the Highway would have to incorporate architectural treatments designed to bring the noise level to within acceptable limits.
1077 Mr George's evidence was that a noise barrier was usually constructed by an earth bund with a wall constructed on the top of that bund,[1319] while architectural treatments required that a residence be constructed to a higher standard than would normally be required, essentially by requiring a thicker glazing.[1320]
1078 Mr George proposed three noise control options in this case. Noise Control Option 1 comprised a noise wall of a total length of 1,500 m comprising 95 m at 3 m high and 1,408 m at 3.5 m high. The wall proposed was not a continuous, uniform wall, and contained significant gaps. It was possible to use vegetation to fill in gaps in the noise wall, not for acoustic purposes, but purely for visual amenity.[1321]
1079 The construction of this noise wall would have the result that all dwellings on the eastern side of the Highway would have noise levels no more than the noise level limit, but residences where the noise level exceeded the target but was less than the limit would require architectural treatments. On the western side of the Highway, no noise wall was proposed but rather noise control would be achieved by way of separation of residences from the Highway, and all residences would require architectural treatments to ensure noise levels were below the target levels.[1322] The noise wall under Option 1 was not continuous because it was not necessary to have a continuous wall for the full length of the subdivision to ensure noise levels did not exceed the noise limit. That was because the proposed subdivision land plan involved houses being further removed from the Highway in some areas.[1323]
1080 Under Noise Control Option 2, Mr George proposed that a continuous wall be constructed, comprising 2,890 m at 3 m high and 210 m at 3.5 m high. Construction of this noise wall would result in all houses on the eastern side of the Highway having noise levels no more than the noise level limit. For those houses where noise levels would exceed the noise level target, architectural treatments would be required to bring noise levels to below the target level. Architectural treatments to houses on the western side of the Highway would remain the same as those proposed under Noise Control Option 1.[1324] Mr George noted that it would be possible to pursue this option using a noise barrier which was not continuous, but a continuous barrier was a more common approach. Because the noise barrier was continuous, the height of the wall was able to be reduced whilst achieving noise level objectives.[1325]
1081 The objective of Noise Control Option 3 was to avoid the need for architectural treatments on any houses on the eastern side of the Highway. However, achieving this objective required the wall to be of varying heights, including up to 8 m high in some places. Mr George's opinion was that the heights involved meant that it was unlikely that such a barrier would be considered practicable.[1326] Furthermore, even with a noise wall some houses on the eastern side of the Highway near the ends of the noise wall of this kind would still require architectural treatments.[1327] Architectural treatments to houses on the western side of the Highway would remain the same as proposed order Noise Control Option 1.[1328]
1082 There was no dispute that of three noise control options proposed by Mr George, only Options 1 and 2 would be viable in practice.
1083 Mr George assessed the total cost of the architectural treatments required for all houses under Noise Control Option 1 at $183,260.[1329] He assessed the total cost of the architectural treatments for all houses under Noise Control Option 2 at approximately $175,000.[1330] There was thus only a marginal difference in the total cost of the architectural treatments for residences under Options 1 and 2 (a total of $7,700).[1331]
1084 Two conclusions may be drawn from Mr George's evidence, which I accept. First, Mr George's evidence made clear that the effect of SPP 5.4 is not to mandate the construction of a noise wall to ameliorate the effects of noise from the Highway. A noise wall would only be required if houses were to be located within 105 m of the Highway. Alternatively, it would be open to a developer to accommodate the requirements of SPP 5.4 by ensuring that houses were not located within 105 m of the Highway, and by ensuring that houses between 105 m and 290 m from the Highway had appropriate architectural treatments. Accordingly, the cost of construction of a noise wall will not necessarily fall to be assessed as an aspect of injurious affection under s 241(7)(b). However, if a noise wall is not constructed, that may have implications for the value of the adjoining land, which will itself be reflected in damage for injurious affection.
1085 Secondly, even if a developer chose to construct a noise wall, Mr George made clear that in order to comply with SPP 5.4, it was not necessary for the noise wall to be constructed until the subdivision had reached within 290 m of the Highway.[1332] In the present case, having regard to the findings I make below, the land without 290 m of the Highway is not likely to be developed for decades. There is considerable force in the submission by counsel for the defendant that in that circumstance, it would not be appropriate to treat the cost of a noise wall as an upfront cost to be incurred at the Date of Taking.[1333] However, it is not necessary to say more about that matter as the approach taken by Mr Wilson, whose valuation I largely accept, was to value the land on the basis that no noise wall would be necessary because no houses would be constructed within 105 m of the Highway. Instead, the reduction in the value of the land within 290 m from the Highway would sound in injurious affection.
1086 As Mr Wilson and Mr Zucal explained, the cost of the architectural treatments to houses within the zone where noise from the Highway would impact, would constitute an additional cost to the ultimate purchaser of the affected lots, with the effect that the price a hypothetical purchaser would be willing to pay for the land would be reduced (and hence the value of the lot to the developer would be reduced).[1334]
1087 Mr Bowyer gave evidence as to the cost of constructing the noise walls proposed by Mr George. Mr Bowyer's evidence was that the cost of constructing the noise wall in Noise Control Option 1 was $2,538,720, while the cost of constructing the noise wall in Noise Control Option 2 was $3,255,500, a total difference of $716,480.[1335]
1088 Mr Bowyer's evidence was that Option 2 was preferable to Option 1 on aesthetic grounds,[1336] because a developer would not wish to build a series of walls along the edge of the Highway with a range of heights. In Mr Bowyer's view,
the result would have been unattractive and commercially unacceptable in an integrated Estate. The walls must be of a 'uniform' standard. The walls would be essential to visually shield the development from the unattractive aspects of the [Highway].
Unscreened views of the [Highway] would have a negative impact on the development.
It is preferred that the wall height would be maintained all the way along the [Highway] boundary regardless of whether in some points there may be less noise as heard by a resident located away from the edge of the [Highway] ... .
As well as noise, the [Highway] creates a noticeable visual impact on the adjoining land and if the [Highway] can be seen, there is a pronounced negative impact on the land especially its perceived amenity. The [Highway] is perceived as being noisy and a visual intrusion (street lights, trucks passing etc) and has a major impact on and the severing of the land/district. One would try to take all reasonable measures to screen and hence separate the land from the [Highway].
Option 1 may be less expensive that Option 2 but over the whole of the potential Estate, the difference in average cost per lot is not so great as to make a developer choose Option 1 just because it is less expensive. All of the other matters amongst those cited above will be taken into account.
...
I remain of the view that Option 2 is the better and hence preferred option for development of the Kelliher land holding.[1337]
1089 In advancing this opinion, Mr Bowyer relied on his involvement with many developments which required noise attenuation measures. His view, based on his experience, was that a prudent developer would always want to mask the development visually from a major road such as a freeway or highway. Mr Bowyer's evidence was that vegetation was generally unsuitable for that purpose, both due to practical issues such as the need to transplant mature trees and shrubs and also because it is much less effective at screening than a noise wall. Mr Bowyer said that by building a uniform fence or wall, the developer retained absolute control of the amenity of the development with respect to the major road and was able to minimise the impact on value of the lots. Mr Bowyer's evidence was that, in his experience, developers 'prefer the certainty of a fixed cost over the uncertainty that comes with an impact on visual amenity and noise, the effect of which cannot be ascertained until lots are actually released to the market'.[1338]
1090 Because I adopt the approach to valuation of the Kelliher land adopted by Mr Wilson, it is, strictly speaking, unnecessary to determine which Noise Control Option should be accounted for, if it were assumed that a noise wall would be constructed. For the sake of completeness, however, I accept Mr Bowyer's evidence and I find that if the construction of a noise wall was to be accounted for as injurious affection, Noise Control 2 represents a reasonable option in the circumstances.
1091 Mr Bowyer also gave evidence as to the costs of developing the Kelliher land, which would include substantial costs associated with earthworks on the site.[1339]
1092 Mr Bowyer's assessment of the likely development costs for the Kelliher land was based on construction rates and charges as at the Date of Taking. His assessment of those costs was based on Mr Kerr's 'before' and 'after' plans.
1093 Mr Bowyer's evidence was that as at the Date of Taking, the likely development costs of the Kelliher land for each urban zoned lot, both in the unaffected scenario (without the Highway) and with the Highway would be the same in the order of $74,700 per lot (plus GST).[1340] (That development cost excluded the cost of noise abatement measures.)
1094 Mr Bowyer also assessed the likely development costs of the special rural lots which would be created on the land west of the Highway. His analysis of the development costs for these lots assumed that a noise wall would not be constructed along the Highway's western boundary, that all houses would be no more than 50 m east of Fiegert Road, and that each house would be equipped with a package of architectural features to achieve additional noise attenuation. Mr Bowyer's evidence was that the likely development costs as at the Date of Taking in respect of each of the special rural lots would be in the order of $91,250 per lot (plus GST).
1096 Each of the parties relied on the opinion evidence of valuers (the valuation experts). The plaintiffs relied on the evidence of Ms Jenny Le Fevre and Mr Duncan Cameron. The defendant relied on the evidence of Mr Keith Wilson and Mr Brian Zucal. All are experienced valuers, and their expertise was not in dispute.
1097 Each of the valuation experts prepared written reports which stood as their evidence in chief. Prior to the trial, they conferred about their evidence and produced a statement of that conferral which set out the areas about which they agreed[1341] together with a schedule setting out the agreed facts in relation to the sales evidence which was relied upon by each valuer.[1342]
1098 The valuation experts were then examined in a concurrent session in the trial, which clarified the bases for their different views and assisted the Court's understanding of their approaches to the valuation exercise they had been asked to undertake.
1099 Having carefully considered all of their evidence, I have reached the conclusion that I am unable to accept the evidence of Ms Le Fevre and Mr Cameron. While I accept the evidence of Mr Wilson and Mr Zucal, I prefer the approach taken by Mr Wilson. However, the quantum of his valuation derives broad support from the valuation undertaken by Mr Zucal.
(d) The matters agreed between the valuation experts
1100 The valuation experts agreed that the total Kelliher landholding could be treated as capable of being sold as a single parcel or as multiple parcels.[1343]
1101 All of the valuation experts agreed that a comparable sales analysis was the preferable method of assessing the value of the Kelliher land and that a HSA was either not appropriate in this case, or was not the preferable means of analysis. They were of the view that factors such as the scale of the property, its potential lot yield, the potential development timeframe of the project, the potential deferral period prior to development occurring and the overall time frame of any potential HSA, would render a HSA less reliable than a comparable sales analysis.[1344] However, Ms Le Fevre,[1345] Mr Cameron and Mr Zucal used a HSA to test certain aspects of their valuations[1346] or to conduct discrete aspects of their analysis.
1102 The valuation experts agreed that there was very limited evidence of sales of en globo land in the north Ravenswood area at the Date of Taking.[1347]
1103 The valuation experts agreed that the market as at the Date of Taking was 'extremely buoyant' in regard to residential en globo and endlot purchases.[1348]
1104 The valuation experts agreed that as at the Date of Taking, the market for en globo residential land was characterised by land-banking purchases by experienced developers and investors.[1349]
1105 The valuation experts agreed that the Highway provided the opportunity for speculation on future land use in other 'isolated' locations due to increased accessibility.[1350]
1106 Subject to a qualification adopted by Mr Zucal in relation to the rezoning potential for the land north of Rogers Road (which is noted below), the valuation experts agreed that the Kelliher land had future rezoning potential for development for residential use, but that this was dependent upon the conclusions of the review of the IPRSP, and the timeframe in which that urban potential might be realised.[1351]
1107 The valuation experts agreed that as at the Date of Taking, and with the Highway, the land in the western severed portions of Lots 202, 203, 207 and 208 would have the potential for rezoning to special rural.[1352]
1108 All of the valuation experts agreed that this rezoning could be achieved within one to two years, albeit with some minor qualifications. Mr Wilson noted that there was a question as to whether the review of the IPRSP would cause a delay to that rezoning process, as had been contemplated by Mr Moran in his report.[1353] Ms Le Fevre was of the view that rezoning may not be required at all, as the western severed portions of these lots could readily be sold as single farmlet allotments, which would not require rezoning or mains water connection, and that they would be likely to attract a similar level of value as en globo land likely to be rezoned for special rural development in the short term.[1354]
1109 The valuation experts agreed that the effect of the Highway would include a noise impact, but that that impact would be contained within approximately 290 m of the Highway without the construction of a noise wall. If a noise wall were constructed, the noise impact of the Highway was likely to be contained to approximately the first three rows of houses from the Highway.
1110 The valuation experts all agreed that the value of the end-lots within those areas of noise impact would be affected. Ms Le Fevre, Mr Cameron and Mr Wilson agreed that the effect would be a reduction of 20% in value, while Mr Zucal thought a 10% reduction in value would be likely.
1111 The valuation experts all agreed that the noise impact and thus valuation consequences could be mitigated if the development commenced beyond 105 m from the Highway (that is, beyond the minimum distance permitted from the Highway).
1112 The valuation experts all agreed that the value of the en globo land within 290 m of the Highway would be adversely affected by the decrease in the value of the end-lots in that area, and by the cost of construction of a noise wall (if development were undertaken up to the Highway alignment). If a noise wall were not constructed, then the value of the en globo land within 290 m of the Highway would be adversely affected by the decrease in the value of the end-lots situated between 105 m and 290 m from the Highway. However, Mr Zucal's view was that a multiple use corridor for the whole of the Kelliher land could be located within the 105 m buffer zone from the Highway and that that would mean that no damage would be suffered by a loss in value of the land within 105 m of the Highway.[1355]
(e) The key areas of difference in the opinions of the valuation experts
1113 The valuation experts disagreed about precisely the way to factor the price increases during that period into their assessment of sales in the months before and after the Date of Taking, and adopted a range of approaches to make adjustments for the boom market in assessing the value of land sold in the 12 months before and after the Date of Taking. Mr Zucal used an escalation rate of 3.5% per month (compound). Mr Wilson used a rate of 3.63% per month (compound) up to the Date of Taking, and 2.12% per month (compound) after the Date of Taking, to take into account a slowing of the market.
1114 Mr Cameron agreed that there was a rapid escalation from mid2005 to the March quarter of 2007, but that thereafter the growth slowed to a more long term rate until the end of 2007 when values declined.[1356]
1115 Ms Le Fevre did not think that the growth in values was reflected in a continuous straight line escalation, but rather that there were price 'hikes'. In her view, between November 2005 and the Date of Taking, there was a total increase in price of about 50% to 60%, including a 'hike' in late March/early April, the rate continued to October 2006, and then it slowed to more moderate rates to March 2007 and to lesser rates from then to late 2007.[1357]
1116 The most significant difference between the valuation experts lay in the underlying premise they adopted in relation to the urban potential of the Kelliher land (in both the unaffected and affected scenarios).
1117 The premise adopted by Ms Le Fevre and Mr Cameron was that as at the Date of Taking, and in the unaffected scenario (without the Highway), all of the Kelliher land was likely to be rezoned in five to six years (that is by 2011 2012), and would be ripe for development in approximately the same time (that is, by 2011 - 2012, although Ms Le Fevre valued on the basis that the land would be ripe for development between 2011 2013).[1358]
1118 Ms Le Fevre and Mr Cameron thus proceeded on the basis that Lots 207 and 208 had the same rezoning potential as Lots 202 and 203.[1359] Ms Le Fevre valued on the basis that Lots 207 and 208 would be subdivided within the same time frame as Lots 202 and 203 because she took the view that there was potential for creating multiple subdivision fronts along Fiegert Road.[1360]
1119 Mr Cameron valued on the basis that the timing of the subdivision of Lots 207 and 208 would depend upon a number of factors including the staging of any urban development of the whole of the Kelliher land, services, the strategy of the developer, and the performance of the property market.[1361]
1120 In contrast, Mr Zucal operated on the premise that Lots 202 and 203 had potential for future urban subdivision but that at the Date of Taking, the time frame in which that would occur was uncertain, and was dependent upon the outcome of the review of the IPRSP including the conclusion that that land should be identified for urban development at some stage in the future. Although Mr Zucal valued on the basis that rezoning was likely to occur within six years of the Date of Taking (that is, by 2012) he took the view that there was no certainty about that time frame and factored in the possibility that rezoning may not occur until 10 years after the Date of Taking (that is, by 2016). Most significantly, however, the premise of his valuation was that irrespective of the time frame for the rezoning, Lots 202 and 203 would not be ripe for residential subdivision until well into the long term (approximately 37 years).[1362]
1121 In relation to Lots 207 and 208, Mr Zucal concluded that the prospect of urban rezoning and subdivision would be so far into the future that Lots 207 and 208 should be valued on the more favourable basis that their highest and best use at the Date of Taking was their potential for subdivision into special rural lots, which could be achieved within two years of the Date of Taking.[1363]
1122 Mr Wilson noted that if the review of the IPRSP concluded that Lots 207 and 208 should be identified for future long-term urban potential, then a special rural rezoning would not be open. However, if the review of the IPRSP did not conclude that Lots 207 and 208 should be identified for future urban development, then it would be appropriate to value Lots 207 and 208 on the basis that its highest and best use was future special rural zoning. Mr Wilson considered that that zoning could be achieved within three to five years of the Date of Taking.[1364]
1123 Mr Wilson also valued on the basis that rezoning would occur in five to six years (that is, by 2011 - 2012) but he took the view that the land would not be ripe for subdivision until well into the future. He valued on the basis that it would be at least 12 years before the land was ripe for subdivision.[1365]
1124 The premise on which Ms Le Fevre valued the Remaining Land was that the market would conclude that the Highway would make possible the development of other isolated areas (including Amarillo, Austin Lakes and Point Grey), and would bring those other areas into competition with the Kelliher land for development, and that this would delay the development of the Kelliher land. However, Ms Le Fevre valued on the basis that this delay in development was unlikely to be more than five years beyond the five to six years she had envisaged in the unaffected scenario, by virtue of the strategic location and the unconstrained nature of the Kelliher land. In other words, Ms Le Fevre valued on the basis that the Kelliher land would be developed within five years from the rezoning of the land, and thus by 2016 2017. (Ms Le Fevre was of the opinion that the market would view the impact of the Highway on Lots 207 and 208 in a similar manner to Lots 202 and 203.[1366])
1125 Mr Cameron effectively proceeded on the same basis as Ms Le Fevre. He saw the Highway as creating greater uncertainty for the outcome of the review of the IPRSP because the Highway would provide greater access to Amarillo, and localities along the Highway route, and would open up development competition in the Highway corridor, including at Point Grey and at Amarillo. He proceeded on the basis that as a result, the time frame for development of the Kelliher land was likely to be extended by a further five years, and accordingly he too valued on the basis that the Remaining Land was likely to be developed for urban use by 2016 - 2017. Mr Cameron was of the same opinion in relation to the impact of the Highway on Lots 207 and 208, namely that the timeframe for rezoning and development would be more uncertain due to the impact of the review of the IPRSP and the fact that the Highway would permit greater access to land along the Highway corridor, and thus greater competition for development.[1367]
1126 Neither Mr Wilson nor Mr Zucal assumed that the Highway would delay the time frame in which the rezoning of the Remaining Land could be expected to occur. Neither of them valued on the basis that the Highway would adversely affect the timing of the subdivision of the Kelliher land. Mr Zucal thought that the Highway could improve the time frame in which the subdivision of the Kelliher land would occur, by about five years.
1127 In respect of Lots 207 and 208, Mr Zucal and Mr Wilson were each of the view that the potential for urban development of those Lots with the Highway would be the same as in the unaffected scenario (without the Highway).[1368]
1128 Ms Le Fevre was of the view that the Kelliher land could have been subdivided into as many as six or seven separate parcels and sold. She appeared to envisage that this would have enabled the establishment of several different development fronts, which had proved beneficial in other 'fringe' development areas.[1369]
1129 Similarly, Mr Cameron considered that it was possible that 'development could also commence from the north and move southwards in addition to the logical primary development front moving northwards from Pinjarra Road'.[1370]
1131 Because of their starting points in relation to the likely time frame in which the Kelliher land would actually be developed for urban use, the valuation experts had different views about the sales which could properly be used as comparable sales to value the Kelliher land. These are discussed below.
1132 The valuation experts expressed different views about the use which could be made of the rate of sales in Riverland Ramble. Ms Le Fevre thought the rate of sales in this area should not be relied upon to indicate an annual demand for lots in the area because of the very passive way that that estate had been managed and marketed.[1373] In contrast, Mr Wilson was of the view that Riverland Ramble sales could not be ignored because that development was the only one in the immediate locality to the Kelliher land. Mr Wilson also relied upon the population forecasts for the Shire of Murray (as set out in WA Tomorrow) as indicative of the selling rates which could be expected for the Ravenswood area.[1374]
1133 As for the price achieved for end lots in Riverland Ramble, Mr Cameron had regard to those prices as an indicator of end-lot prices in the Ravenswood locality, and Mr Zucal thought that the sales of those end-lots would be significant in the event of an HSA.[1375]
1134 Ms Le Fevre's view was that the Highway would have an adverse impact on these lots as a result of severance and as a result of the deferred rezoning and subdivision potential of these lots. Mr Cameron also concluded that the Highway was likely to have an adverse impact on the value of these lots by virtue of a deferment in the likely timeframes for rezoning and subdivision, and by virtue of significantly increased competition.
1135 In contrast, Mr Zucal and Mr Wilson did not consider that there would be any injurious affection for these lots as a result of the Highway.
1136 Ms Le Fevre thought that the Highway brought a minimal benefit that was outweighed by injurious affection. Mr Cameron also thought that while the Highway opened up access to the region, that benefit was offset by the negative impacts of uncertainty in relation to the review of the IPRSP and the increased competition for developments in the locality.
1137 Having regard to sales after the Highway was announced, Mr Wilson's opinion was that the Highway would enhance the development potential of Ravenswood and surrounding areas.
1138 Ms Le Fevre, Mr Cameron and Mr Wilson agreed that it was difficult, if not impossible, to differentiate between increases in land values resulting from betterment as a result of the Highway and value increases resulting from the boom in the property market at the time. Mr Zucal took a different view. He concluded that there would be considerable betterment to the Kelliher land as a result of the Highway, by virtue of increased population growth in the locality. In his opinion, the resulting increased demand for housing was likely to reduce the time for subdivision of the Kelliher land by at least five years, and this would impact favourably on the holding costs incurred by developers while the land awaited development. He also envisaged a significant benefit to the Kelliher land as a result of the presence of the RRF.[1376]
(f) Summary of the evidence given by the valuation experts
1139 The plaintiffs tendered three reports prepared by Ms Le Fevre, dated 31 March 2014,[1377] 23 April 2014,[1378] and 5 June 2014,[1379] together with an undated schedule of vacant end-lot resales prepared by Ms Le Fevre.[1380] (Ms Le Fevre's reports of 23 April 2014 responded to the views expressed by Mr Wilson and Mr Zucal in their primary reports.)
1140 In broad overview, the key features of Ms Le Fevre's valuation of the Kelliher land (other than those reflected in the discussion above of matters which were agreed between the valuation experts) were as follows.
1141 Ms Le Fevre's valuation of the Kelliher land in the unaffected scenario (without the Highway) relied on the view that 'the whole of the lands would have had short term urban potential for residential development with services available for extension.'[1381] She noted that 'the land had strong potential for subdivision of a residential nature, with a variable interpretation as to the timeframe, however, within the short term of say five years'.[1382] She thus valued the land on the basis that it was zoned rural with potential for rezoning to urban and subsequent residential/urban development being likely to commence within a three to fiveyear period.[1383]
1142 In the affected scenario, Ms Le Fevre's valuation was based on the view that the 'highest and best use potential' for the Remaining land east of the Highway was 'urban/residential'.[1384]
1143 In relation to the Remaining Land east of the Highway, Ms Le Fevre's valuation was based on the view that the strong urban potential would continue to exist as all of the influencing factors remained essentially the same. However, she took into account some differences, namely that the Highway opened up the opportunity for other large scale land holdings to be developed (such as Amarillo) and that the Highway was a catalyst for the Southern Sectors Review, which delayed the progress of the FPSP.[1385] Ms Le Fevre's view was that 'this would have given the market good reason, notwithstanding the very strong demand and lesser availability for en globo future urban land, to have been much less confident that rezoning and development could occur in regard to the urban development of the subject lands in the short term'.[1386] Ultimately she concluded that the same zoning and potential use would apply as in the unaffected scenario, but that the Highway would cause a delay or deferment to the likely rezoning timeframe and overall staging of development.[1387]
1144 Ms Le Fevre also noted that the future end-lots in close proximity to the Highway would be affected by the presence of the Highway (including noise, lights and visual pollution) and noise attenuation walls adding to the development costs.[1388]
1145 In addition, Ms Le Fevre considered that further damage would be caused to the Remaining land east of the Highway by virtue of the fact that Rogers Road would be cut off by the Highway, so that the Land would have no direct access to the Fiegert Road/Lakes area, the opportunity for a Fiegert Road subdivision front would be lost, and other large landholdings with development opportunities may cause the rezoning of the Remaining Land to be deferred.[1389]
1146 Ms Le Fevre's view was that there would be little, if any, tangible benefit to the Remaining Land from the Highway.[1390]
1147 In relation to the Remaining Land west of the Highway, Ms Le Fevre noted that this land no longer had urban potential. Instead, its highest and best use was in its potential for rezoning to special rural, with a 1 ha to 2 ha subdivision.[1391] Ms Le Fevre's view was that the market would consider this land ripe for subdivision and it would be likely to be approved for rezoning in the immediate future.[1392]
1148 However, Ms Le Fevre noted that the lots west of the Highway would be shallow in depth and affected by the presence of the Highway.[1393]
1149 In identifying the highest and best use of the Kelliher land, Ms Le Fevre drew on the expert planners' reports. However, she made clear that 'notwithstanding the planners' arguments'[1394] she also brought to bear her own interpretation of the market's view of the highest and best use of the Kelliher land. Ms Le Fevre noted that 'our investigations strongly indicate that the land had a higher and better use than its existing rural zoning, both with and without the Highway'.[1395]
1150 The factors Ms Le Fevre took into account in reaching this conclusion were as follows. She noted that the location and features of the Kelliher land provided a strong opportunity for urban development. Those services and features included the proximity of the Land to established and proposed future facilities, to the main Activity Corridor in the Peel Region, to the future Nambeelup Industrial area, and to existing established residential estates and amenities, plus the fact that it constituted the nearest available large parcel of land east of Mandurah which was suitable for urban development, which was not environmentally constrained, which was not held in fragmented ownership and which was cleared land with services readily made available.[1396] Ms Le Fevre concluded that the
interpretation of the market place [which] is that irrespective of the anticipated outcome from the [review of the IPRSP] and whether or not that review was to cause a delay, the factors outlined above contributed to the subject land being likely to be viewed as the most logical and suitable urban development opportunity in the immediate and surrounding localities.[1397]
1151 Ms Le Fevre also concluded that 'any delay caused by the influence of the Highway in bringing other lands into being suitably located, would be most likely considered to be a short to medium term, say five to seven years, rather than a longer deferral to achieve a rezoning'.[1398] For that reason, she concluded that a total deferral of eight years should be applied to reflect the delay caused by the Highway, combined with the time frame in which a subdivision of the land would be achieved.[1399]
1152 Because of the limited number of sales of en globo land in the vicinity of the Kelliher land as at the Date of Taking,[1400] Ms Le Fevre also looked to other sales in the Peel Region and beyond.[1401] Ms Le Fevre assessed large en globo land sales at Point Grey (Carrabungup Road, Point Grey), 30 North Yunderup Road North Yunderup, Lot 300 Towera Road and Lot 301 Pinjarra Road North Yunderup, Lots 81, 82 and 83 Pinjarra and Boys Roads, Pinjarra, Lot 41 Old Mandurah Road, Ravenswood, Lots 709, 459 and 447 Baldivis Road, Baldivis, Lots 921 and 922 Baldivis Road Baldivis, Lots 2 and 105 Doghill Road Baldivis, and Lots 6 and 8 and Part Lot 5067 Rowley and Kargotich Roads Forrestdale (although the latter did not proceed to completion). However, of these, Ms Le Fevre concluded that the Point Grey sale was the 'most significant and relevant', and that the Rowley Road Forrestdale sale was also very relevant.[1402]
1153 Because of the significance Ms Le Fevre attributed to those sales, it is appropriate to refer to her reasoning in relation to them in more detail.
1154 Ms Le Fevre noted that that was a sale of 275 ha on the open market in November 2006 for $92 million, which equated to a value of $383,000/ha over the 240 ha of developable land. The land was zoned urban deferred. There was a substantial Peel Inlet frontage, although Ms Le Fevre was of the view that because of the reserves applicable to the land, there would be little direct waterfront area available in the development itself, although she acknowledged there would be some elevated ridge areas within the development which would provide lots with significant water views. Ms Le Fevre's opinion was that although the Point Grey land had several advantages which would result in a higher endlot value for some lots than for the 'average' lot in the Point Grey development, nevertheless the majority of the land at Point Grey would be these 'average-type lots' and it would be doubtful that those 'average' lots at Point Grey would achieve the same value as lots in a development of the Kelliher land, because of the isolated location of the Point Grey development.[1403]
1155 In addition, Ms Le Fevre pointed to the environmental constraints which applied to the Point Grey land, and to the fact that a 'full environmental assessment was required'.[1404] Ms Le Fevre though it likely that these environmental constraints would result in a combination of greater development costs and significantly lower lot yields than the Kelliher land.[1405]
1156 Ms Le Fevre's view as to the 'disadvantages' of the Point Grey land as compared with the Kelliher land was as follows:
three major influences [which] when weighed up weaken the advantage of the 'advanced zoning' and waterfront location of the Point Grey; that is, the Highway was needed for Point Grey, but not for Ravenswood/Nambeelup, the urban deferred zoning was no guarantee of urban going ahead or the extent it might be zoned urban, and with the environmentally challenged land all would be likely to decrease certainty and increase the rezoning period, and that the waterfront benefit had to be considered against the loss of land for buffers, reserves, and cost of getting services to an isolated location.[1406]
1157 In addition, Ms Le Fevre took the view that the Kelliher land could have been sold in multiple lots to two or three purchasers.[1407]
1158 Accordingly, Ms Le Fevre concluded that 'if the Kelliher land had been zoned urban deferred as at the date of the taking ... the factors of influence for the Point Grey land would have contributed to that land having a lower value than the subject land'.[1408]
1159 Ms Le Fevre concluded that the zoning difference between the Point Grey land and the Kelliher land equated to 'an additional two years to obtain an urban deferred zoning' for the Kelliher land.[1409] She then also adjusted for the effect of the waterfront premium for some of the lots within the Point Grey development and reached a value for the Kelliher land of $305,000/ha.[1410]
1160 Ms Le Fevre noted that this 'sale' was for an area of 101.78 ha, all of which was developable. The contract was entered into in April 2006 for $26 million, but did not complete because of a delay in issue of the titles. The land was zoned rural, but had the potential for urban development, albeit not before 2031. The sale price at April 2006 equated to $255,442/ha. Ms Le Fevre increased that figure by 25% to reach an adjusted sale rate for the Kelliher land of $319,303/ha as at the Date of Taking. The basis for that increase was not entirely clear. Some of it was no doubt attributable to escalation to account for the boom market. The other influence appears to have been what Ms Le Fevre regarded as greater environmental uncertainty about its development as compared with the Kelliher land.[1411]
1161 Ms Le Fevre concluded that the sales figures she had identified as most relevant, adjusted for time of sale and 'taking into account the assumption of being able to offer the subject land either in three equal parcels or as some seven parcels ... suggests that the subject land would have sold at [the Date of Taking] for in the order of $300,000/ha'.[1412]
1162 In relation to the Remaining Land east of the Highway, Ms Le Fevre relied on the same analysis of the Point Grey and Forrestdale sales to reach a market value of $300,000/ha, unaffected by the Highway.[1413]
1163 Ms Le Fevre concluded that although the planners indicated that the Highway may benefit the urbanisation of the locality, that was a very long term outcome and she did not envisage that causing an increase in value of the en globo land.[1414]
1164 Ms Le Fevre did not consider that there was anything about the Highway which was likely to add any tangible value to the end lots, and any additional value in its attraction to purchasers who would commute was likely to be minimal.[1415]
1165 However, Ms Le Fevre noted that Mr Ferraro's view was that the inclusion of Amarillo as a development area due to the linkage provided by the Highway was 'likely to set back the rezoning of the subject locality some 10 to 15 years'.[1416] Although Ms Le Fevre agreed with that sentiment, she reached her own conclusion which was that:
the circumstances of the review of the IPRSP together with a developerdriven planning scenario, would have given the market some confidence that the subject locality already being reviewed and providing environmentally unconstrained land would more likely than not, achieve rezoning within a period of eight years or so.[1417]
1166 She did, however, accept that the influence of Amarillo 'no doubt created a greater uncertainty and it is likely that the market would perhaps factor in a slightly longer holding period than has been allowed for in establishing the unaffected rate'.[1418] She concluded, however, that the whole of the land was not likely to sustain a significant loss in value by virtue of this factor.[1419] Ms Le Fevre valued this delay which she estimated at an additional three years to achieve an amendment of the PRS as resulting in a reduction of $16,323/ha, resulting in a value of $283,677/ha.[1420]
1167 Ms Le Fevre noted that the cost of the preferred noise wall option according to the report of Lloyd George Acoustics was $3,255,500 (plus GST).
1168 In addition, Ms Le Fevre considered that there would be further injurious affection to the land east of the Highway, in the form of loss of value to the end-lots by virtue of noise (even after noise attenuation measures), visual pollution, fumes, and additional development costs. She adopted a 15% discount on the average lot price for end-lots three rows from the Highway, resulting in a discount of $25,000 per lot, or $250,000/ha of lost gross sales income. Over the 45 ha of affected land, that resulted in a total loss in gross sales of $11,250,000 (including GST). Using an en globo to gross sales income ratio of 20%, Ms Le Fevre concluded that this equated to a reduction in the total value of the en globo land of $2.25 million.
1169 In relation to the land west of the Highway, Ms Le Fevre considered the following sales:[1421]
1170 Having regard to these sales, Ms Le Fevre concluded that the 'applicable rate for the subject 40ha [of the Kelliher land west of the Highway] is likely to be greater than $107,000 and less than $257,000'.[1422]
1171 Ms Le Fevre concluded that the most comparable sales were the sales at West Pinjarra and at Dawesville, and concluded that this resulted in a comparable value of $130,000/ha.[1423] Over the total land of 60.5821 ha for the land west of the Highway, Ms Le Fevre calculated the value of that land in the affected scenario to be $7,875,673.
1172 Ms Le Fevre also undertook an HSA in respect of the land west of the Highway to check her comparable sales analysis. That analysis gave rise to a value of $111,593/ha for that land.[1424] However, she did not adopt this value but instead proceeded on the basis of a value of $130,000/ha.
1173 Ms Le Fevre also undertook an HSA but concluded that it resulted in a value of the Kelliher land which was too low, taking into account market behaviour' and the prospect of two or more development fronts.[1425]
1174 Ms Le Fevre's opinion as to the value of the total compensation payable under s 241 of the LA Act was as follows. (Ms Le Fevre assessed the quantum of the injurious affection/severance damage as the difference between the net loss of value of the land in the affected scenario (ie $38 million) and the value of the land taken.)
Value of land taken (unaffected scenario) 37.0221 ha at $305,000/ha
Value of injurious affection/severance damage ($38 million less $11,291,740)
1175 In her report dated 4 June 2014, Ms Le Fevre noted that she had understood Mr Kerr's 'after' plan as indicating a considerable reduction in the lot yield as a result of the need to keep land adjacent to the Highway free for drainage purposes. If that was not in fact correct, she noted that the amount of injurious affection compensation which she had calculated at $2,250,000 should be reduced to $1,375,000.
1176 However, Ms Le Fevre pointed out that her original calculation was not undertaken by reference to the lot yield for the area thought to be required for drainage, but was calculated by reference to the decrease in the end lot value of the number of houses in the first three rows of houses adjacent to the Highway (eastern side). Consequently she maintained that her original interpretation of the position was more in keeping with the view the market would take when considering the likely effect of the Highway on the adjacent affected land.[1426]
1178 In broad overview, the key features of Mr Cameron's valuation of the Kelliher land were as follows.
1179 Mr Cameron noted that there were differences of view between the planning experts as to the prospects for the Kelliher land being identified and subsequently zoned and developed for urban purposes. Although he noted the views of the defendant's planners, Mr Cameron ultimately concluded (consistently with his understanding of the views of the plaintiffs' planning experts) that the whole of the land had a reasonable prospect of being identified and subsequently zoned and developed for urban purposes.[1431]
1180 As for the time frame for rezoning and subdivision, Mr Cameron appears to have understood the evidence of the planning experts as amounting to a conclusion that this would in fact have occurred within five years of the Date of Taking.[1432] In this respect, Mr Cameron relied on the fact that the land had been supported for urban development by the Shire of Murray, and that 'the statutory planning process to effect this land use and zoning change was only partially complete at the Date of Taking. The likely timeframe for its completion was considered to be in the order of five years'.[1433]
1181 In other words, like Ms Le Fevre, Mr Cameron effectively viewed the rezoning to urban as a certainty, rather than as a possibility, and valued on that basis. Mr Cameron noted the planning advice that the land to the south of Rogers Road had the most probable prospect of any urban development, and so he 'placed greater likelihood and prospect of the land to the south of Rogers Road being available for urbanisation in the medium term (ie approximately five years from the date of taking) than the land to the north of Rogers Road.'[1434] He calculated that the land south of Rogers Road would yield approximately 5,850 residential lots, and concluded that 'based on approximate indicative selling rates of say roughly 150 to 250 lots per annum ... this precinct would take approximately 25 years or longer to develop and sell, which when added to the pre-development rezoning period would equate to a total development horizon in excess of approximately 30 years'.[1435] Consequently, he concluded that 'the precinct north of Rogers Road would be considered an extremely long term development prospect, in the practical development sense'.[1436] Accordingly, he applied different land values to the land north of Rogers Road 'to reflect its longer term planning and practical development horizon'.[1437]
1182 The primary comparable sale relied upon by Mr Cameron was the sale of land at Carrabungup Road, Point Grey. The key details of the sale are noted above at [1154].
1183 Mr Cameron's description of the Point Grey land as compared with the Kelliher land was as follows:
Based on our inspection the land is: topographically and aesthetically superior to the [Kelliher land] due to its setting on a peninsula in the PeelHarvey Estuary and presence of mature trees and other vegetation. The property enjoys significant direct water frontage. The soils are sandy soils and appear more free-draining relative to the [Kelliher land]. The land rises from the northern tip of the peninsula to the south and views are obtained from parts of the north and west over the estuary. The property had a superior urban Deferred zoning but had to undergo a rezoning process including more detailed planning and environmental approvals due to a proposed marina. Despite its visual appeal the land is more remote from urban centres and the development front. Also to facilitate development the access road had to be upgraded from the highway to the property being a distance of approximately 15km; power services extended from Pinjarra; and self sufficient water and waste water treatment infrastructure had to be installed on site at significant upfront cost. The property is relevant to the [Kelliher land] due to its scale; urban potential and location. The impetus to the property's sale was no doubt linked to the extension of the [Highway] that enhanced the accessibility of the property relative to the access pre-construction of the Highway. Notwithstanding the sale is considered relevant to the pre-taking scenario due to its location relative to a major transport link that provided access and underpinned its development. Similarities exist to the [Kelliher land] due to its location on a major access and transport corridor, Pinjarra Road.[1438]
1184 After adjustments (including a 25% downward adjustment due to the superior features of the Point Grey land compared to the Kelliher land), Mr Cameron concluded that the Point Grey sale gave rise to an adjusted comparable sale price of $265,000/ha.
1185 Mr Cameron also considered other comparable sales:[1439]
1186 In relation to the land north of Rogers Road, Mr Cameron considered rural land which had some identifiable long term planning study or notation indicating that urban development may be contemplated at a future date.[1440]
1188 In so far as the prospects for urban rezoning of the Kelliher Land in the affected scenario were concerned, Mr Cameron briefly noted the differing views of the planning experts,[1441] but did not explicitly set out the view on which he relied. It appears that he proceeded on the basis that the Highway itself would not have made much difference to the prospects of future urban development of the Kelliher land, although it may have justified some expansion of development to the north.[1442]
1189 In respect of the Kelliher land south of Rogers Road, Mr Cameron proceeded on the basis that the Highway opened up land in the immediate Peel region and east Mandurah by increasing its accessibility, and was the impetus for major development projects being considered, acquired and initiated in the eastern Peel area, including Point Grey in particular. Consequently, he concluded that the Highway brought greater localised development competition to the locality, particularly from Austin Cove and Point Grey, and also assisted in the appeal of Riverland Ramble and other estates around Pinjarra.[1443] Mr Cameron also concluded that the Highway 'immediately enhanced and overcame prior accessibility constraints of Amarillo'.[1444] In this respect he proceeded on the basis that the Highway, and the prospect of Amarillo, led to the Southern Sectors Review, and that the Southern Sectors Review had the effect of delaying any potential rezoning of urban land within the wider region.[1445]
1190 Mr Cameron concluded that the time frame in which the Kelliher land could be rezoned, with the Highway, appeared 'inherently uncertain', and that the prospect of additional competition and alternative development options (especially Point Grey) could add to the uncertainty of a rezoning of the Kelliher land, and potentially extend the rezoning period in comparison to the unaffected scenario (without the Highway).[1446]
1191 Mr Cameron noted that the planning experts agreed that the prospects for the Remaining Land west of the Highway would be improved in the affected scenario, in that that land could be rezoned for special rural development of one to two ha lots.[1447]
1192 Mr Cameron relied primarily on the Point Grey sale as the comparable sale for the land south of Rogers Road, but also took into account the Whitby and Mundijong sales which he had also considered in relation to the unaffected scenario.
1193 In respect of the land north of Rogers Road, the matters Mr Cameron took into account included the following. Mr Cameron noted that there was potential for increased uncertainty due to the impact of the SSR and the introduction of Amarillo 'as a major planning consideration in this southern corridor'. He accepted that the Highway would have delivered additional accessibility to the property, but that it also opened up additional land and development projects in the region. Because of the size of the property and the potential for multiple development fronts, Mr Cameron considered that 'there is the prospect that development could also commence from the north and move southwards in addition to the logical primary development front moving northwards from Pinjarra Road'.[1448]
1194 In addition to the sales he had considered in the unaffected scenario, Mr Cameron also took into account the following sale:
1195 In relation to the Remaining Land west of the Highway, in valuing this land on the basis that it could be rezoned for special rural, Mr Cameron relied upon the following sales:
1196 With 'slight adjustments', Mr Cameron considered that these sales reflected values of approximately $150,000 to $200,000/ha.
1197 In relation to the land south of Rogers Road, Mr Cameron concluded that the likely market value of that land was in the range of approximately $215,000 to $265,000/ha, and concluded that the market value of this land was $250,000/ha.
1198 In relation to the land north of Rogers Road, Mr Cameron noted that comparable sales gave rise to land rates of approximately $100,000/ha (for rural land with little or no apparent redevelopment potential) to $130,000/ha (for rural land with long term development potential).[1449] He concluded that the market value of the land north of Rogers Road was $125,000/ha.[1450]
1199 In relation to the land south of Rogers Road, but east of the Highway, Mr Cameron concluded that the likely market value of that land was in the range of approximately $200,000 to $215,000/ha, and concluded that the market value of this land was $200,000/ha.
1200 In relation to the land north of Rogers Road, but east of the Highway, Mr Cameron concluded that due to the long term nature of any likely development for this land, the value of the land would 'largely remain unaffected in value compared to the 'pre-taking' scenario'.[1451] Accordingly, he concluded that a rate of $125,000/ha should be adopted for this land.
1201 In relation to the Remaining Land west of the Highway, Mr Cameron concluded that this land had a value of approximately $175,000/ha.
1202 Mr Cameron was also of the view that a prudent developer would incur the cost of a noise attenuation wall in order to maximise the lot yield of the land, and to mitigate the loss in value of retail prices due to the impact of the Highway. Accordingly, he applied the cost of $3.25 million 'as injurious affection impact in lieu of the potential loss in value in the retail lot values and resultant flow on impact on the en globo land value'.[1452]
1203 Mr Cameron initially took into account what he understood to be an implication from the proposed subdivision set out in Mr Kerr's 'after' plan, namely that there would be a loss of 224 residential lots on the eastern side of the Highway due to the Highway necessitating vacant land to its immediate east to be used for drainage purposes.[1453] He therefore took into account the loss of the value of these lots in calculating the injurious affection impact of the Highway on the land east of the Highway, resulting in a loss of $3,733,209.
1204 However, in his report dated 4 June 2014, Mr Cameron noted that he had misunderstood the latter part of Mr Kerr's 'after' plan. Subsequent discussions amongst the valuation experts caused Mr Cameron to realise that this multiple use area adjacent to the Highway in the 'after' plan was simply a redistribution of the multiple use areas originally included in Mr Kerr's 'before' plan. (Mr Kerr had distributed these areas immediately adjacent to the Highway because that would minimise the effect of the Highway on adjacent lots, but with no net effect on the total lot yield.[1454]) Accordingly, Mr Cameron accepted that there would not be any loss of lot yield on lots east of the Highway and south of Rogers Road in the affected scenario, based on Mr Kerr's proposed subdivision plan.[1455]
1205 However, Mr Cameron considered that there would still be a loss of lots in the affected scenario due to a 'necessary highway interchange or traverse point' north of Rogers Road. This diamond shaped interchange would, in Mr Cameron's view, result in a loss of 40 lots from the total lots yield which could be expected, having regard to Mr Kerr's 'after' plan. Mr Cameron calculated the value of this loss of 40 lots in the land north of Rogers Road as amounting to a total loss of value of $415,681 in value.[1456]
1206 Mr Cameron considered that the impact on the value of the lots west of the Highway (resulting from the change from urban potential to special rural zoning) should be treated as injurious affection. In respect of those parts of Lots 202 and 203 which were west of the Highway, he concluded that the loss in value amounted to a total value of injurious affection of $2,281,493. However, on the same basis, he concluded that the value of parts of Lots 207 and 208 which were west of the Highway but north of Rogers Road would increase as a result of the Highway, and that that increase should be treated as a betterment, the total value of which was $1,510,360. Accordingly, in respect of all of the Remaining Land west of the Highway, he considered the net value of the injurious affection to those lots was $771,133.
1207 Mr Cameron did not attribute any betterment impact in respect of the Remaining Land east of the Highway.
1208 In relation to injurious affection for the Remaining Land east of the Highway, Mr Cameron was of the view that even with a noise attenuation wall in place, there would still be an approximately 20% loss in end value for the lots on the first three rows or streets adjacent to the Highway (both north and south of Rogers Road).[1457] In his initial report, Mr Cameron did not indicate a value for this injurious affection but in his report dated 3 June 2014, he attempted to quantify the impact of this loss in value. He concluded that the best way to value this loss would be using an HSA. He concluded that the total loss in value for all of the lots affected would amount to $1,554,210.[1458]
1209 Accordingly, Mr Cameron's valuation of the compensation payable under s 241 of the LA Act was as follows:
Loss in value of lots due to noise impact on residential lot prices
1210 The defendant tendered five reports prepared by Mr Wilson, dated 14 November 2013,[1459] 6 March 2014,[1460] 14 April 2014,[1461] 30 April 2014,[1462] and 23 May 2014.[1463] (Mr Wilson's report dated 14 April 2014 was a response to the views expressed in the reports of Ms Le Fevre and Mr Cameron.)
1211 In his first report, Mr Wilson provided his opinion on the value of the Taken Land, and of Lots 202, 203, 207 and 208 of the Kelliher land after the Date of Taking. In his second report, Mr Wilson provided his opinion on whether there was likely to be any impact on the value of the balance of the Remaining Land after the Date of Taking.
1212 Mr Wilson closely considered the views of the planning experts. In considering the likely time frame for any future urban development of the Kelliher land, he noted that neither Mr Allen, Mr Kerr nor Mr Ferraro had estimated the time in years before the Kelliher land was likely to be zoned for urban use and developed. But he noted that the views of Mr Kerr, and Mr Ferraro, and to a lesser extent Mr Allen, gave the impression that urban rezoning could be expected in the short term, whereas Mr O'Neill and Mr Moran emphasised that urban development would take place only in the longer term.[1464] Mr Wilson concluded that notwithstanding the boom conditions in the residential market, a prospective purchaser would not exclude the expert opinions advanced by Mr Moran and Mr O'Neill as to the longerterm timeframes on the future urban use of the Kelliher land.[1465]
1213 Mr Wilson took into account the amount of available land which was already available for urban development in Ravenswood, and the volume of land which (according to the draft LPS) was identified for future urban development (along with the Kelliher land).
1214 Mr Wilson calculated the likely effect of competition for urban land in the region, by reference to the evidence of sales per year, and evidence as to population growth. He noted that the population of Ravenswood around the Date of Taking was less than 1000 people. Sales at the Riverland Ramble estate commenced in September 2004 (which he noted was the same time the Highway was given approval for construction) and by December 2006, 221 lots had been sold in Riverland Ramble, which equated to a population growth to that area of approximately 550 people in 18 months. In other words, about 100 lots were being sold per year. As at December 2006, there remained a further 368 ha of land zoned for urban use and available for residential subdivision in Ravenswood, but as yet undeveloped. That land size would accommodate approximately 9,900 more people. Mr Wilson's opinion was that at the existing rate of sales of 100 people per year, there was sufficient land remaining in Ravenswood alone to absorb residential demand for many years into the future.[1466]
1215 If the land at north Ravenswood were zoned urban and if the development front proceeded northwards from Old Mandurah Road and Pinjarra Road, Mr Wilson noted that that would mean that Lot 190 of the Kelliher land (which comprised 600 lots) would compete for development with the McKay land (1000 lots), Riverland Ramble (400 lots), and the Emmanuel land (4,700 lots) (a total of 6,700 lots). Mr Wilson noted that that would suggest a very long lead time before any of the remainder of the Kelliher land would be ripe for subdivision. Mr Wilson noted that Mr O'Neill had suggested a likely time frame of at least 20 years.[1467]
1216 He also noted that according to Mr Kerr's report (and the 'after' plan attached to it), the Kelliher landholding held the potential for 9,679 lots, and at an average of 2.2 people per lot, that meant that just under 22,000 people could be accommodated on the Kelliher land.
1217 As the draft LPS also identified the McKay, Mannion, Emmanuel and Nambeelup landholdings for urban use, Mr Wilson considered how many residential lots could be created if they were developed. His estimate was that these landholdings would yield sufficient lots to accommodate nearly 30,000 people, in addition to the 10,000 people who could be accommodated in the Ravenswood development at full utilisation.[1468]
1218 Having regard to the information in relation to population and lot sales in urban developments in the Ravenswood area, Mr Wilson concluded that without the Highway, the land already identified for future urban use in the Ravenswood area would meet demand for urban development beyond 15 to 20 years from the Date of Taking, without further rezoning. That view accorded with Mr O'Neill's opinion that the time frame for commencing residential development of the Kelliher land would be at least 20 years or more.[1469]
1219 Accordingly, Mr Wilson concluded that a hypothetical purchaser would calculate his or her purchase price to reflect a risk attaching to any rezoning application being approved, in the medium to long term, but not in the short term after the Date of Taking.[1470] Mr Wilson's opinion was that the prudent purchaser would 'view the land south of Rogers Road as having urban rezoning/development potential in say 15 to 20 years'.[1471] In reaching that view, Mr Wilson relied on the evidence of the planning experts to conclude that the likely outcome of the review of the IPRSP would be to recognise the need for additional urban development around the RRF, as well as to identify the Kelliher land for future urban development in approximately 15 to 20 years.[1472]
1220 In respect of the land north of Rogers Road (Lots 207 and 208), Mr Wilson relied on the planning experts' opinions which suggested that the prospects of rezoning were even more uncertain, and would not be ripe for residential development for many years. Consequently, he concluded that the value of that land would attract little more than base rural value.[1473] He noted that a prudent purchaser may consider the land as being more likely to be zoned special rural, and capable of rezoning and development in the shortterm (say five years), which would give rise to a higher value than valuation on a purely rural zoning, although that valuation approach would not be open if it were concluded that the land was likely to be recognised as having future urban potential.[1474]
1221 In short, without the Highway, Mr Wilson concluded that:
it is likely a prospective purchaser may take a somewhat optimistic view and have been prepared to pay a premium above rural land value, in anticipation of some long term future higher potential use for the land north of Rogers Road and I also consider an informed purchaser would likely pay a premium above rural land value but less than residential potential value for the land to the south of Rogers Road.[1475]
1222 Mr Wilson concluded that having reviewed all of the planners' opinions,
the most optimistic outlook for the [Kelliher land] may be the potential for urban rezoning six years after the [Date of Taking] for the land south [of] Rogers Road and the potential for special rural zoning within a fiveyear timeframe for the land to the north of Rogers Road.
But I am also of the opinion the land south of Rogers Road, commencing with Lot 203, would not realistically be subdivided into residential lots within 15 years from the Date of Taking and the land to the north of Rogers Road could likely be developed into 1ha special rural lots within five years of the Date of Taking, although special rural would be 'off the table' if all of the Kelliher's land was identified for future urban residential development. ...[1476]
1223 Mr Wilson's view was that a deferment for development of Lots 203 and 202 of 15 years would be a very optimistic approach.[1477]
1224 When he came to make adjustments to the sale price for sales which he considered potentially comparable, Mr Wilson proceeded on the basis that Lot 203 would logically be developed before Lot 202 (as Lot 203 was closest to the commencement point for the urban front, namely Old Mandurah Road), and allowed for a further deferment time for Lot 202 to take into account that the likely progression of the development would be that Lot 203 would be developed before the development proceeded into Lot 202. Accordingly, the value of the land in Lot 202 was less than the value of the land in Lot 203.
1225 Mr Wilson commenced by considering sales of land zoned for rural use within the region at around the Date of Taking. He considered six such sales and concluded that values for rural farmland with little or no higheruse potential, even in the short term, were in the range of $18,000 to $22,500/ha.[1478]
1226 In ascertaining the value of Lots 202 and 203, Mr Wilson then considered 6 sales of rural landholdings at around the Date of Taking, which reflected 'some measure of optimism for future higher-use potential and for which premium values were paid',[1479] namely:
one of the few sales of a significant site which occurred within the general locality at the time. While I do not believe a direct comparison can be made on a rate per ha basis because of the large differences in land areas I do think it is possible to look at this sale in light of other sales and draw some comparison with the subject land, albeit the analysis becomes judgmental, given the overall lack of evidence.[1481]
1227 Mr Wilson then analysed a further four sales involving private acquisitions of rural land with assumed residential potential, or residential land, within the general locality, to provide a measure of comparison. That analysis was as follows:
1228 However, Mr Wilson placed less weight on Lot 23 Pinjarra Road (because of its small land area), on the Gold Fortune transaction and 352 Old Mandurah Road (because those properties did not sell).[1491] He concluded that the best evidence was provided by the following two sales the sales of Lot 301 Pinjarra Road and Lot 9007 Old Mandurah Road because they were sold close to the Date of Taking and there was sufficient information about those transactions to enable a reasoned analysis of them.[1492] Given his focus on these two sales, it is appropriate to explain his analysis in a little more detail.
1229 Mr Wilson identified a number of sales of rural land the sale price for which suggested that the land had the potential above their rural zoning. He appears to have considered the sale of Lot 1 (870) Greenlands Road Nirimba, and Lots 223, 279, 280 and 197 Greenlands Road Nirimba, in particular, reflected potential for special rural development.[1496] The land in each case was zoned rural under TPS4 but the sale price clearly reflected a premium above rural value.
1230 Lot 1 Greenlands Road was involved land of a comparable size (71.1 ha) and after adjustments for the date of sale, and the likely time frame for special rural development (as compared with the Kelliher land) Mr Wilson considered that this sale gave rise to a value of $65,064 to $75,890 for the Kelliher land.
1231 Lots 223, 279, 280 and 197 Greenlands Road ranged between 31.5 ha and 91.5 ha. After adjustments for the date of sale, and having regard to the likely time frame for special rural development, Mr Wilson considered that this sale gave rise to a value of $45,000 to $52,400/ha.
1232 In addition, Mr Wilson also considered the sale of a number of lots at Greyhound Retreat, by way of comparison, as those lots were zoned special rural. Mr Wilson considered that these sales also provided a good comparison for the Kelliher land because of their nearby location in Nambeelup, and because the sales occurred in the 12 months before or after the Date of Taking.[1497]
1233 In addition, Mr Wilson took into account a likely deferral in the time in which subdivision would be achieved, of about six years.
1234 Mr Wilson adopted a special rural land value of $70,000/ha for land on the western side of the Highway.[1498]
1235 Mr Wilson thus concluded that an overall value of $110,000/ha for Lot 203 and a value of $52,500/ha for Lot 202 was appropriate. (In doing so, he assumed that the review of the IPRSP would support rezoning to urban for these lots, which would preclude a rezoning to special rural for this land.)[1499]
1236 As for the value of Lots 207 and 208 (north of Rogers Road) Mr Wilson concluded that a much longer time frame would be required for urban development, and the effect of an allowance for that lengthy deferral would bring the value of those lots to below rural land value.[1500] Consequently Mr Wilson concluded that the same rate as he assessed for Lot 202 (namely $52,500/ha) should instead be adopted for Lots 207 and 208 to reflect a 'reasonable speculative value which may have been anticipated in the booming real estate market of mid-2006 for rural land with perhaps (not guaranteed) very long term urban potential'.[1501]
1237 Mr Wilson also assessed ten sales to determine the likely reduction in value as a result of the Kelliher property immediately abutting the Highway (as compared with nearby property which did not abut the Highway). The sales were not analysed for the purpose of ascertaining land value, but for the purpose of ascertaining an appropriate allowance for injurious affection. Mr Wilson concluded that the price differential in these sales as between land adjacent to the Highway and land away from the Highway was generally less than 10%. However, Mr Wilson recognised that the sales assessed were to developers, likely to pay a premium to consolidate a larger development site. Accordingly, he concluded that a reasonable depreciation factor for land abutting the Highway would be up to 20%. Mr Wilson's view was that the full 20% depreciation would apply to the landholding on the western side of the Highway (in the affected scenario).[1502]
1238 Mr Wilson also concluded that for the lots on the eastern side of the Highway nearest to the Highway, a developer would create lots of approximately the same size as on the western side of the Highway (to take account of the fact that no houses can be built within 105 m of the Highway), and that those lots should thus be assessed as having a special rural value, with the discount for injurious affection applied to that value.[1503] For lots between 190 m and 290 m from the Highway reserve on the eastern side of the Highway, Mr Wilson considered that the 20% discount to the value of the lots should be applied to recognise injurious affection by virtue of proximity to the Highway.[1504]
1239 Finally, Mr Wilson assessed the sale of en globo landholdings in various suburbs, not for the purpose of ascertaining the value of the Kelliher land, but for the purpose of ascertaining whether a prudent purchaser would discount value if a portion of a larger landholding had to be held and quarantined for use until it became ripe for development and sale.[1505] Mr Wilson concluded that the evidence from these sales supported the argument that there should be a discount applying to a larger allotment compared with a smaller lot, assuming that both parcels of land had a similar development potential. He concluded that a rate of approximately 22.5% was within the range of evidence from the sales which he examined.[1506]
1240 Mr Wilson concluded that the Highway 'had a beneficial impact on values [of land in the region] but I don't believe it is possible to isolate with accuracy such betterment from the natural growth in values which occurred during the 'boom' period from 2004 2006'.[1507] Mr Wilson noted that in McKay Beech J had allowed for betterment, but nevertheless Mr Wilson found it 'difficult to differentiate 'betterment' from market growth in the boom period of 2006/07'.[1508] Mr Wilson concluded that the preferable approach was that the land west of the Highway should be valued as having 'special rural' rather than 'urban' potential, and that that should be considered an element of betterment.[1509]
1241 Mr Wilson reached the following conclusions about the value of Lots 202, 203, 207 and 208 in the unaffected and affected scenario:
West of Highway: 15.9723 ha @ $70,000/ha depreciated 20%
East of Highway: area up to 190 m from Highway 15.9723 ha @ $70,000/ha depreciated 20%
East of Highway: area between 190 m and 290 m from Highway 8.9531 ha @ $52,500/ha depreciated 20%
East of Highway land beyond 290 m 32.9532 ha @ $52,500/ha
(difference between value without Highway and value with Highway)
West of Highway: 14.4476 ha @ $70,000/ha depreciated 20%
East of Highway: area up to 190 m from Highway 14.4476 ha @ $70,000/ha depreciated 20%
East of Highway: area between 190 m and 290 m from Highway 7.5707 ha @ $110,000/ha depreciated 20%
East of Highway land beyond 290 m 29.0886 ha @ $110,000/ha
(difference between value without Highway and value with Highway)
West of Highway: 12.4464 ha @ $70,000/ha depreciated 20%
East of Highway: area up to 190 m from Highway 12.4464 ha @ $70,000/ha depreciated 20%
East of Highway: area between 190 m and 290 m from Highway 6.6423 ha @ $52,500/ha depreciated 20%
East of Highway land beyond 290 m 25.9851 ha @ $52,500/ha
(difference between value without Highway and value with Highway)
West of Highway: 17.7608 ha @ $70,000/ha depreciated 20%
East of Highway: area up to 190 m from Highway 14.6053 ha @ $70,000/ha depreciated 20%
East of Highway: area between 190 m and 290 m from Highway 7.6870ha @ $52,500/ha depreciated 20%
East of Highway land beyond 290 m 29.6195 ha @ $52,500/ha
(difference between value without Highway and value with Highway)
1242 Mr Wilson considered that compensation under s 241 of the LA Act could be apportioned in the following way:
Injurious affection reduction in value of adjoining land
20% of 15.9723 ha @ $70,000/ha (for the land west of the Highway)
20% of 15.9723 ha @ $70,000/ha (for the land up to 190 m east of the Highway) and
20% of 8.9531 ha @ $52,500/ha (for the land between 190 m and 290 m east of the Highway)
increase in value to land comprising 15.9723 ha on the east and west of Highway by virtue of assessing that land at special rural zoning value, rather than at rural value
(calculated as 14.476 ha of land west of Highway, plus 14.476 ha of land east of Highway, now valued at $70,000/ha reflecting development potential of special at $110,000/ha respecting rural only, rather than at $110,000/ha, reflecting rural with potential for urban development constituting a loss in value of $40,000/ha)
Injurious affection for total reduction in value of adjoining land (remaining difference after deducting value of taken land, and value of severance damage from total compensation represented by before and after value of Lot 203)
Injurious affection for total reduction in value of adjoining land (calculated as the sum of:
20% of 12.4464 ha @ $70,000/ha (for the land west of the Highway)
20% of 12.4464 ha @ $70,000/ha (for the land east of the Highway up to 190 m) and
20% of 6.6423 ha @ $52,500/ha (for the land east of the Highway between 190 m and 290 m)
Offset completely by betterment increase in value to land east and west of Highway by virtue of assessing at special rural zoning value rather than at rural value (that is, total of 24.8928 ha @ $17,500/ha (difference between $70,000/ha and $52,500/ha))
Injurious affection for total reduction in value of adjoining land (calculated as the sum of:
20% of 17.7608 ha @ $70,000/ha (for the land west of the Highway)
20% of 14.6053 ha @ $70,000/ha (for the land east of the Highway up to 190 m) and
20% of 7.6870 ha @ $52,500/ha (for the land east of the Highway between 190 m and 290 m)
Offset completely by betterment increase in value of land east and west of Highway by assessing at special rural zoning value (that is, total of 32.3661 ha @ $17,500/ha (difference between $70,000/ha and $52,500/ha))
1243 Accordingly, Mr Wilson assessed the total compensation for all four lots as:
1244 Mr Wilson then considered the position if the Kelliher land was not assessed as having urban potential, and instead the land was assessed as having potential for a special rural zoning, both in the unaffected scenario and the affected scenario. The two major differences in that analysis (apart from a different value being ascribed to the land, based on a special rural zoning value) were that there was no severance damage attributed to any lot, and no betterment as a result of the Highway. Mr Wilson still made an allowance for injurious affection damage in the value of lots proximate to the Highway on both the eastern and western sides of the Highway (represented by a 20% depreciation in the value of the affected land within each Lot).
1245 On that analysis, Mr Wilson assessed the total compensation as follows:
1246 Mr Wilson concluded that the Highway would have a greater impact on the land if it were regarded as having potential for a special rural zoning, and that this would produce a larger quantum of compensation, and so preferred to assess compensation on this basis.
1247 As I mentioned at the outset, in his second report,[1510] Mr Wilson assessed the impact of the Highway on Lots 190, 204, 205, 230, 206 and 209, which he had not considered in his first report.
1248 Mr Wilson concluded that the Highway only detrimentally impacted the value of the lots which directly abutted the Highway - namely Lots 202, 203, 207 and 208, and had no detrimental impact on the remaining lots. The basis for that conclusion was that no question of severance damage would arise in respect of lots 190, 204, 205, 230, 206 and 209, and that those lots were approximately 600 to 700 m away from the Highway, and so beyond the impact of any noise, vibration or visual effects from the Highway,[1511] with the result that there would be no loss in value for injurious affection on that account.
1249 In addition, in his second report, Mr Wilson was also expressly asked to undertake a separate valuation, on the assumption that such progress as had occurred in relation to Amarillo as at the Date of Taking was to be disregarded. Mr Wilson concluded that the prudent purchaser would not factor in additional competition from Amarillo when ascertaining the value of the Kelliher land with the Highway. The foundation for this view appears to have been Mr Wilson's conclusion about the total volume of land likely to be identified for urban development, and otherwise available for subdivision, if the Kelliher land was identified for future urban development in the review of the IPRSP. Mr Wilson proceeded on the basis that if the Kelliher land was identified for future urban development in the review of the IPRSP, then it was likely that the other land also identified as future urban in the draft LPS, would also be identified for future urban development in the review of the IPRSP. Were that to occur, a further 1,997 ha of land, amounting to approximately 20,447 lots, would be available for urban development made up as follows: Emmanuel land (393 ha, 4,716 lots), Clough/Rapley and Gold Fortune Land (53 ha, 690 lots), Riverland Ramble (38 ha, 450 lots), Austin Cove (508 ha, 2,500 lots), Nambeelup (201 ha, 2,412 lots).[1512]
If and when Amarillo proceeds it will assist in providing a potential workforce for the proposed industrial land and also the Highway will offer commuter access to northern and southern suburbs.
However, as already established, there would be approximately 20,500 residential lots available for development in Ravenswood, Nambeelup, North and South Yunderup (including all the Kelliher land) and likely 10,000 residential lots available for development in the balance of Ravenswood, North and South Yunderup and on the northern side of Pinjarra/Old Mandurah Roads prior to the 4 affected lots and the remaining Kelliher landholdings (excluding Lot 190) being economically subdivided for residential development.
...
Amarillo/Keralup, when/if it does proceed will, in my opinion, have two significant impacts.
Firstly, it will be such a large estate that it alone will act as a drawcard, to attract large volumes of potential home buyers to this locality, where they would not have been previously attracted. This may have some beneficial 'spin-off' to Ravenswood, which is relatively close-by but generally has not attracted first-home buyers and may offer a slightly superior land/housing product than could be expected from the government housing agency.
Secondly, Amarillo/Keralup will compete with Ravenswood and surrounding areas for lot sales. Had there been very limited potential for urban rezoning in Ravenswood at the time (ie say limited solely to the Kelliher land) then I think this potential competition from Amarillo/Keralup would have had a detrimental impact on land values in Ravenswood. Imminent subdivision and lot sales in Ravenswood would have been affected.
The potential in Ravenswood and surrounding areas is for more than 20,000 lots from numerous individual property owners. All would be keen to develop their own land, which would create its own massive competition. This would reduce land values accordingly, to the extent that I don't think an informed prospective purchaser for the Kelliher landholdings would look beyond the immediate competition. I do not believe such purchaser would factor in Amarillo/Keralup at all.[1513]
1252 Mr Zucal had regard to the views of the expert planners, as to the likely time for the rezoning of the Kelliher land[1518] which he noted were 'wide and varied'.[1519] Mr Zucal considered that irrespective of the time frame for the rezoning of the land, the more important question for valuation purposes was the likely time frame in which the land would become ripe for subdivision.[1520] This required consideration of the existing supply of land already zoned for urban use, the likely demand for lots, and the likely progression of any development.
1253 Mr Zucal concluded that even if all of the Kelliher land were eventually rezoned to urban use, Lots 202 and 203 were not likely to be ripe for residential subdivision for a minimum of 37 years from the Date of Taking.[1521] Mr Zucal reached this conclusion having particular regard to the fact that approximately 3,697 residential lots were already available in the Ravenswood area as at the Date of Taking, comprising the Murray River Country Estate development (2000 lots), Lot 330 Pinjarra Road Ravenswood (1,100 lots), Lots 650 and 300 Pinjarra Road North Yunderup (500 lots) and Lot 9001 Lloyd Avenue Ravenswood (97 lots). In addition, he noted that a further 3,390 lots could potentially be developed for urban use in the medium term, namely Lot 9007 Riverland Ramble (390 lots) and the Austin Cove development (3000 lots). Mr Zucal also noted that at the Date of Taking there was en globo land zoned for urban development within the Pinjarra townsite, which would encompass at least 1000 lots, and a further estimated 3000 lots in Ravenswood.
1254 Mr Zucal therefore concluded that as at the Date of Taking, and in the unaffected scenario (without the Highway), a prudent purchaser would anticipate a supply of approximately 11,000 lots in the area which could compete with a staged residential subdivision of the Kelliher land.[1522] If a demand of 300 lots per annum were assumed (which Mr Zucal considered to be an optimistic estimate), those 11,000 lots would involve a minimum supply for 37 years.[1523]
1255 Mr Zucal concluded that as a result, the development of Lots 207 and 208 would be even further deferred, so that the highest and best use of that land at the Date of Taking should be regarded as rural, with potential for special rural.[1524] Mr Zucal's view was that this land would have 'almost immediate potential for subdivision into 1 to 4 ha lots following completion of the [review of the IPRSP]' subject to the provision of a water supply to the lots, and rezoning of those lots.[1525]
1256 Mr Zucal then tested these views by considering the likely development front. His view was that it was likely that there would be 'only one urban development front ... which would emanate outwards from Ravenswood townsite in a semi-circular ripple effect eastwards, north and north-westerly of the Ravenswood townsite'.[1526] In his view, the natural progression of that development front would involve a take-up of lots immediately available around Ravenswood and Pinjarra (some 6,500 lots) excluding Austin Cove, and was then likely to progress across old Mandurah Road to Lots 11 and 10 then westwards to Lot 190, and Lots 191 and 192 (a total of 4,800 lots), or 37 years supply, before demand required the development front to encompass Lot 203 of the Kelliher land.[1527]
1257 Mr Zucal considered the possibility that there may be more than one development front, but was of the view that the Ravenswood locality could not support a number of development fronts north of Old Mandurah Road, given the existing nodal developments encapsulated in small estates within the locality as at the Date of Taking, and the subdued demand for residential lots, which for 'economical subdivision reasons' would best be met by the development of en globo urban-zoned land adjoining those nodes.[1528] In other words, multiple fronts of development were likely to be economically unviable.[1529]
1258 Accordingly, Mr Zucal concluded that in the unaffected scenario (without the Highway), at the Date of Taking, even if Lots 202 and 203 were considered likely to be rezoned for urban development within six years, those lots would not be ripe for subdivision for 35 to 40 years.[1530] He also concluded that for the land north of Rogers Road, namely Lots 207 and 208, that land would have immediate potential (following the review of the IPRSP) for subdivision into special rural lots, depending on the provision of water supply to those lots.[1531]
1259 Mr Zucal concluded that the value of Lots 202 and 203, based on rural zoning but with a potential for future urban subdivision, was $110,000/ha.[1532] In reaching that conclusion, Mr Zucal had regard to the following sales:
1260 Mr Zucal considered that Lot 23 Pinjarra Road was the best sale available for comparison with Lots 202 and 203. However, he nevertheless tempered that view with consideration of the following sales, which were sales of rural-zoned land to experienced developers, which in his view reflected market value for large en globo landholdings.[1534] Those sales were:[1535]
1261 Mr Zucal took the view that these sales could be utilised as reflecting threshold values for rural land with distant future urban potential (of say 40 years or more).[1536]
1262 Mr Zucal also had regard to the assessment of the value of the McKay land undertaken by Beech J in the McKay decision, to 'test' the value of $110,000/ha he had reached having regard to comparable sales.[1537] He did so noting that the McKay decision was subject to a retrial.[1538] After adjustments for the differences due to the location and timing of subdivision for the McKay land, he concluded that the valuation of the McKay land gave 'generous support to our adopted value of $110,000/ha for Lots 202 and 203 based on prospective future urban potential'.[1539]
1263 Mr Zucal adopted a value of Lots 207 and 208 of $75,000/ha, based on special rural potential, having regard to the following sale transactions:
1264 Mr Zucal relied upon the Nambeelup 'sale' as confirming his conclusion that Lots 207 and 208 had special rural potential and that that was the basis on which they should be valued.[1542]
1265 Mr Zucal also took into account one further sale transaction which he considered to be comparable in respect of the value of Lots 207 and 208 in the affected scenario, namely Lot 332 Parkhills Lane, Nirimba a sale of 60.7 ha of rural zoned land in December 2005. With adjustments for the time of sale and location, Mr Zucal considered that this sale gave rise to an adjusted comparable sale price in the order of $60,000/ha.[1543]
1266 Mr Zucal also undertook a comparative 'check' HSA for this value of the whole of the land on the western side of the Highway using the development costs identified in Mr Bowyer's report and having regard to Mr George's assessment of required architectural treatments. That analysis suggested a value of $58,600/ha.[1544]
1267 Mr Zucal concluded that the adverse impact of the Highway on land on the western side of the Highway within Lots 202 and 203 occurred as a result of its severance from the parent lot in each case, resulting from a downgrade of any urban potential to special rural potential.
1268 In addition, there would be injurious affection to Lots 202 and 203 as a result of noise and night lights.[1545]
1269 The land within lots 202 and 203 east of the Highway would suffer injurious affection for the same reason.[1546]
1270 Mr Zucal concluded that Lots 207 and 208 would not suffer severance damage (given the absence of urban potential in the first place, and his view that the more likely potential was for special rural zoning) but would suffer injurious affection by virtue of noise and lights from the Highway.[1547] The land on the eastern side of the Highway within Lots 207 and 208 would also suffer injurious affection for the same reason.[1548]
1271 Mr Zucal concluded that a value of $55,000/ha was appropriate for Lots 207 and 208 (reflecting the impact of injurious affection only).[1549]
1272 Mr Zucal was of the view that apart from injurious affection caused by noise and night lights, there would be no injurious affection to Lots 202, 203, 207 or 208 as a consequence of the Highway.[1550]
1273 Mr Zucal was also of the view that severance damage was not an issue in respect of Lots 190, 204, 205, 206, 209 and 230, and nor was there any injurious affection damage as a result of noise or lights from the Highway.[1551]
1274 In so far as Mr Kerr's 'after' plan suggested that lots to the west and east of the Highway would be 'lost' because they would have to be put to an alternative land use, Mr Zucal noted that the 'lots' referred to were not in fact 'lots' but rather en globo land, with possible potential for residential subdivision at some time in the future, and so should not be treated as 'lots' for compensation purposes.[1552]
1275 In respect of the eastern side of Lots 202 and 203, Mr Zucal took into account injurious affection by valuing the land having regard to the noise attenuation measures which would be required (for the land between 105 m and 290 m of the Highway) (which Mr Zucal valued at $103,000/ha), and to the 105 m strip of land in which no houses could be constructed (warranting a rural land value of $20,000/ha). However, Mr Zucal noted that a large proportion of the land within 105 m of the Highway could be used for drainage (as shown on Mr Kerr's 'after' plan), thereby avoiding the loss of any development potential for this land as a result of the Highway (and warranting an 'unaffected' value of $110,000/ha).[1553]
1276 Mr Zucal adopted a similar approach in respect of the land on the eastern side of Lots 207 and 208. He concluded that the eastern side could be notionally subdivided into lots of a depth of 290 m which abutted the Highway, and which fully mitigated the effects of the Highway (valued at $55,000/ha) and the balance of the land in each lot valued at the unaffected value of $75,000/ha.[1554]
1277 Mr Zucal noted that some planners had expressed the opinion that the Highway had an impact by virtue of the prospect of Amarillo being developed as a consequence of the Highway. While he took those views into account,[1555] Mr Zucal's conclusion was that the anticipation of the Highway had 'undoubtedly impacted favourably on the en globo value of Kelliher lots'.[1556] Furthermore, having regard to the views of the expert planners, Mr Zucal concluded that the Highway would favourably impact on the development potential of Lots 202 and 203 in the sense that with the Highway, the land would become progressively ripe for subdivision sooner rather than later.[1557] In addition, he concluded Lots 207 and 208 would have potential for subdivision to special rural use within two years.[1558] This would also result in reduced holding costs for the land, which he considered represented betterment.[1559]
1278 Having regard to the expert planners' reports, Mr Zucal concluded that the RRF formed an integral part of the 'public work' and he assessed betterment on that basis. Mr Zucal concluded that development of the RRF would have a favourable effect on the value of the Kelliher land, because:
[the Highway] considerably reduces the holding costs of the en globo land in the 'after' scenario, by increasing accessibility to Ravenswood and thus contributing to increased residential densities in the area and reducing the time lag for economic subdivision of Lots 202 and 203.
The [RRF] forming part of Lots 191 and 192 will have an enhancing effect on the value of adjoining Lots 190 and 202/203 ... by increasing gross realisation, reducing selling periods and reducing profit and risk factor.
In addition, the reduction of some 87 ha of land from Lots 191 and 192 of what would otherwise have been subdivisional land will enhance the future prospects of subdivision of the Kelliher land by reducing the supply of residential lots [in that area]. ...
We draw a distinction between Lots 202 and 203 and Lots 207 and 208. It is our view that as the highest and best use [at the Date of Taking] of Lots 207 and 208 was subdivision into special rural lots in the short term, we do not believe the [RRF] will have any significant impact on the special rural lot values.[1560]
1279 However, he also observed that if the RRF was not found to be part of the 'public work' that betterment would still exceed injurious affection.[1561]
1280 Accordingly, Mr Zucal reached the following conclusion about the value of the Kelliher land in the unaffected scenario:
Eastern side: 24.7 ha (combined total of land valued at $110,000, $20,000 and $103,000/ha)
Eastern side: 33.1786 ha @ $110,000/ha (no injurious affection)
Eastern side: 21.8 ha (combined total of land valued at $110,000, $20,000 and $103,000/ha)
Eastern side: 29.2069 ha @ $110,000/ha (no injurious affection)
Eastern side: 25.8178 ha @ $75,000/ha (no injurious affection)
1281 Having regard to the value of the land taken from each lot, Mr Zucal attributed the following values to severance and injurious affection:
1282 Mr Zucal then calculated the severance component in respect of Lots 202 and 203 as being the difference in value for the total area formerly valued at $110,000 and subsequently valued at $75,000 (that is, a difference of $35,000/ha in severance damage).
1283 Mr Zucal valued that component as follows:[1562]
1284 The total injurious affection component for the four lots was therefore as follows:
1285 Mr Zucal calculated betterment in respect of Lots 202 and 203. He calculated betterment as the reduction in the likely time for subdivision of those lots (because of higher demand as a result of increasing population to the locality in view of the Highway). In his view, this would result in a reduction of seven years in the subdivision time. Mr Zucal concluded that the value of that betterment was a reduction in the holding costs which would be incurred in respect of those lots. He calculated the reduction in those holdings as being valued at $2,011,225 (in respect of Lot 202) and $1,139,756 (in respect of Lot 203) totalling $3,150,981.[1563]
1286 In respect of Lots 207 and 208, Mr Zucal concluded that the betterment caused by the Highway would result from an increased rate of sales for the subdivided special rural lots as a result of increased population to the area caused by the Highway, which would translate into a value as a reduction of the holding costs for those lots. He considered that in the before scenario, seven lots per year were likely to be sold, whereas in the scenario with the Highway, 11 lots per year were likely to be sold. He calculated that betterment as being valued at a total of $1,125,988 in respect of both Lots 207 and 208.[1564]
1287 Accordingly, the total betterment calculated by Mr Zucal in respect of Lots 202, 203, 207 and 208 was $4,276,969.[1565]
1288 Mr Zucal also considered that the Highway would enhance the subdivisional prospects of Lots 190, 204, 205 and 230, which again would translate into a reduction in the holding costs for those lots. He valued that aspect of betterment at a total of $1,403,110.[1566]
1289 Finally, Mr Zucal considered the value of betterment as a result of proximity of Lots 190, 203 and 204 to the RRF. On the basis of a HSA of the position with and without the Highway, he concluded that this aspect of betterment could be assessed as valued at $1,506,647.[1567]
1290 The total betterment calculated by Mr Zucal was therefore $7,186,726.
1291 That figure exceeded the total value of the injurious affection damage to the Kelliher land (valued at $2,520,158).
1292 Mr Zucal's assessment of the value of the total compensation payable under the LA Act was as follows:
1293 Mr Zucal also provided his opinion on the likely impact of Amarillo on the value of the Kelliher land, and was asked to proceed on the assumption that Amarillo was attributable to the Highway. Mr Zucal concluded that despite the purchase of Amarillo land in 1991, there had been very little progress in its urban development. His view was that 'the market place would likely conclude that the inordinate delay experienced in bringing the Amarillo/Keralup land on stream was due to the host of environmental concerns affecting the land'.[1568]
1294 He also observed that the likely costs which would be involved in developing Amarillo (including a very substantial volume of land fill) would significantly exceed the value of the lots. Accordingly, he concluded that a hypothetical purchaser would 'likely come to the conclusion that Amarillo/Keralup was a non-event for at least many years to come'[1569] and that 'it was so fraught with environmental and economic concerns that there was a very real likelihood that the project would not eventuate at least in the foreseeable future'.[1570]
1295 Mr Zucal also concluded that as at the Date of Taking, the very large number of residential lots, or en globo residential land, available in Ravenswood, Nembeelup, Austin Cove, Pinjarra and West Pinjarra was sufficient to meet demand for the next 50 years. Accordingly, he concluded that even if Amarillo were eventually to be developed it would have little impact on the Kelliher land. Mr Zucal's view was that 'Amarillo/Keralup is likely to be seen as forming part of urbanised Mandurah whilst Ravenswood and Nambeelup are likely to be more provincial in nature with a differing class of buyer (but with an overlap).'[1571]
(g) Why I do not rely on the opinions advanced by Ms Le Fevre and Mr Cameron in relation to the valuation of the Kelliher land in the unaffected scenario (without the Highway) and with the Highway
1296 I am unable to accept the valuation evidence of Ms Le Fevre or Mr Cameron for the following reasons.
1297 First, Ms Le Fevre and Mr Cameron based their valuations on conclusions about the highest and best use of the Kelliher land (and of the prospects for the urban zoning, and subdivision, of the Kelliher land) which were very different from the findings I have made, based on the documentary and expert planning evidence in this case. Neither of them allowed for the effect of any uncertainty as to whether the outcome of the review of the IPRSP would result in either the amendment of the PRS to permit the rezoning of the Kelliher land to urban, or the designation of the Kelliher land for future urban use under the IPRSP. In effect, they valued the Kelliher land as if rezoning for urban use were a certainty.
1298 Secondly, both Ms Le Fevre and Mr Cameron proceeded on the basis that not only would the Kelliher land be rezoned to urban by 2011 - 2012, but that some or all of that land would be subdivided within that time frame. Ms Le Fevre assumed that lots 202, 203, 207 and 208 would be ripe for subdivision by 2013. Mr Cameron proceeded on the basis that Lots 202 and 203 would be ripe for subdivision by 2011 - 2012, while the timing of the subdivision for Lots 207 and 208 may be later.
1299 Those assumptions are so markedly different from the findings I have made about the conclusions which would be reached by the hypothetical Spencer parties in relation to the prospects for redevelopment of the Kelliher land that the sales on which Ms Le Fevre and Mr Cameron relied cannot be considered suitable for comparison with the Kelliher land. Counsel for the plaintiffs accepted that that would follow if I found that the development horizon for the Kelliher land was 'decades away'.[1572]
1300 Thirdly, in the latter respect, the valuations of Ms Le Fevre and Mr Cameron were based on the assumption that there would be sufficient demand for residential lots in north Ravenswood to warrant the subdivision of some or all of the Kelliher land - assuming it was rezoned within five years of the Date of Taking - within the same time. (Ms Le Fevre proceeded on the basis that there was a 'drastic under supply' of en globo urban-zoned land in the Shire of Murray,[1573] while Mr Cameron assumed that the supply of en globo land which was zoned for urban purposes was 'tight'.[1574]) Those assumptions are inconsistent with the finding I have made that the hypothetical Spencer parties would conclude, as at the Date of Taking, that there was already an adequate supply of land zoned urban within the Shire of Murray, having regard to anticipated demand in the short to medium term future. The calculations undertaken by Mr Wilson and Mr Zucal, in relation to the number of residential lots already available, and the small number of sales of those lots, illustrated that the assumptions made by Ms Le Fevre and Mr Cameron as to when the Kelliher land would be ripe for subdivision were not sound.
1301 Ms Le Fevre and Mr Cameron proceeded on the basis that it was possible that there would be more than one urban development front within the development of the Kelliher land. That assumption is contrary to the finding I have made as to the conclusion which would be reached by the hypothetical Spencer parties based on expert planning advice, namely that the likely pattern of development would be that Lot 190 and Lots 10, 11 and 12 on Old Mandurah Road would be developed first. The assumption of more than one development front also did not grapple with the projected population growth, so as to explain how that modest growth (and thus the modest demand for residential lots) could possibly sustain multiple urban development fronts. And nor did that assumption grapple with the fact that multiple development fronts were likely to be economically unviable, as Mr Zucal explained.
1302 Fifthly, the valuations of Ms Le Fevre and Mr Cameron were based on the assumption that the Highway itself, and the Amarillo development which they concluded was made possible by the Highway and was the catalyst for the Southern Sectors Review, would in turn delay the progress of the FPSP review and would delay the development of the Kelliher land.[1575] That assumption was also contrary to the findings I have made in relation to whether Amarillo, and the Southern Sectors Review, were attributable to the Highway and as to the prospects for rezoning and development of the Kelliher land with the Highway.
1303 Sixthly, I am not persuaded that the sales on which Ms Le Fevre and Mr Cameron relied as comparable sales in determining the value of the Kelliher land (other than the land west of the Highway) can properly be considered comparable. I explain the basis for this view below.
1304 Seventhly, even if the assumptions made by Ms Le Fevre and Mr Cameron in relation to the time frame for urban rezoning and subdivision had been consistent with my findings, their analysis of comparable sales also resulted in valuations of the Kelliher land which cannot be considered reliable. In reaching this conclusion I accept the analysis undertaken by Mr Wilson of those sales, using the assumptions relied upon by Ms Le Fevre and Mr Cameron as to the time frame for subdivision. Mr Wilson examined the sales of Point Grey, Lots 300 and 301 Pinjarra Road, and Lot 9007 Old Mandurah Road, and concluded that those sales suggested a rate of $200,000/ha for Lots 202 and 203 of the Kelliher land. His reasoning, which I accept, was as follows.
1305 Using the assumptions as to urban development adopted by Ms Le Fevre and Mr Cameron, Mr Wilson reached the conclusion the Point Grey sale involved 250 ha of developable land, for an equivalent value (allowing for date of sale) of $338,400/ha. After allowances for differences in the land for Point Grey's waterfront location, and for the larger size of the Kelliher land Mr Wilson concluded that this sale suggested a starting valuation for the Kelliher land (south of Rogers Road) was in the order of $200,000/ha.[1576]
1306 As for Lots 300 and 301 Pinjarra Road, using the assumptions as to urban development adopted by Ms Le Fevre and Mr Cameron, Mr Wilson concluded that this sale of 42 ha of developable land located on the Murray River (opposite Lot 190 of the Kelliher land), for an equivalent value (allowing for date of sale) of $472,000/ha, when adjusted for differences in the land for the proximity to water, and for the considerable disparity in the size of the land suggested a starting valuation for the Kelliher land (south of Rogers Road) in the order of $190,000/ha.[1577]
1307 Finally, using the assumptions as to urban development adopted by Ms Le Fevre and Mr Cameron, Mr Wilson concluded that the sale of Lot 9007 Old Mandurah Road Ravenswood, involving 38ha of land for an equivalent value (allowing for the date of sale) of $406,000/ha, after adjustments for the disparity in the size of the land, and having regard to the lower development costs applicable to Lot 9007,[1578] suggested a starting valuation for the Kelliher land (south of Rogers Road) of $203,000.
1308 Eighthly, both Ms Le Fevre and Mr Cameron relied on their own views, or their opinions as to what they thought 'the market's' view would be, of the prospects of the urban development of the Kelliher land, rather than relying solely on the evidence of the planning experts. That approach was flawed, not least because it suggested a misunderstanding of their role as valuation experts. There were a number of examples of this erroneous approach. Perhaps the most stark example can be seen in Ms Le Fevre's primary report, where she made clear that 'notwithstanding the planners' arguments'[1579] she also brought to bear her own interpretation of 'the market's' view of the highest and best use of the Kelliher land. Ms Le Fevre noted that 'our investigations strongly indicate that the land had a higher and better use than its existing rural zoning, both with and without the Highway'.[1580] She outlined the factors she considered supported that view[1581] and then reached the conclusion that the effect of the Highway on the prospects for the rezoning and subdivision of the Kelliher land would be a short to medium term delay of about eight years, rather than a longer deferral.[1582]
1309 Mr Cameron adopted the same approach. He took into account the planning experts' evidence, but also brought to bear his own analysis of what the 'market' was, as a result of which he formed his own independent conclusion as to the prospects that the Kelliher land would be rezoned, and as to the timeframe in which that was likely to occur.[1583]
1310 Similarly, in making determinations based on the likely population growth, and the demand that that growth in population would generate in the Shire of Murray and in the Peel Region more generally, Ms Le Fevre took into account the official forecasts of population growth, but then concluded that those statistics did not reflect her view of what developers thought was the potential population of the area. Even if that were a legitimate point for analysis, Ms Le Fevre had no evidence as to what the views of developers were on those matters, other than the fact that developers had been accumulating land banks.[1584]
1311 Mr Cameron also analysed population projections and concluded that it was uncertain as to whether there was sufficient available urban land capable of being, and projected to be, developed to deliver sufficient residential lots to the market to meet population growth. However, Mr Swasbrook's evidence which I prefer given his expertise in preparing and analysing population data was that 'the reality was the opposite of the statement'.[1585] Mr Swasbrook's evidence was that 'the availability of land in both Mandurah and Murray was very well known in extensive detail nearly all of it in the public realm'.[1586] He noted that 'nearly all of this knowledge concerning residential land availability and how forecast population and dwellings were modelled to ensure their fit was publicly available in departmental publications'.[1587]
1312 Mr Swasbrook provided a report[1588] in which he analysed population projections relied upon by Mr Cameron in his report. Mr Swasbrook's evidence was that 'Mr Cameron's simple method to estimate future land demand doesn't bear comparison to the highly credible and detailed land auditing and forecast population and dwelling modelling within the workings of the Department's MLUFS (Metropolitan Land Use Forecasting System) model that iteratively integrated with the WA Tomorrow cohort component method of population projection'.[1589]
1313 Ninthly, Ms Le Fevre undertook an HSA, apparently as a means of checking the valuation she had reached as a result of the comparable sales analysis. Despite the limitations of an HSA in this case, Ms Le Fevre's analysis at least indicated that the valuation she had reached as a result of her comparable sales analysis was too high, having regard to the costs likely to be involved in the development. Rather than reconsider the result of her comparable sales analysis, Ms Le Fevre concluded the HSA was not reliable. She concluded that 'the HSA results in a present value rate lower than would be considered applicable by the market and lower than would be assessed taking into account market behaviour' for a variety of reasons, including the prospect (which Ms Le Fevre considered to be open) of two or more development fronts over a land parcel of this size.[1590]
1314 There were two further problems with the HSA undertaken by Ms Le Fevre. First, she applied it to Lots 202 and 203, and ignored the planning evidence which suggested that the urban development front at north Ravenswood was likely to commence at Old Mandurah Road, on one of Lot 190, or Lots 10, 11 or 12. The volume of potential lots suggests that that initial stage of development was likely to provide the equivalent of many years' supply of residential lots, before that urban front proceeded further north. Secondly, Ms Le Fevre undertook the HSA only by reference to Lot 203 which she then applied to Lots 203, 207 and 208 (a total land area of 303.5753 ha) rather than to the whole 804ha of the Kelliher landholding. However, she then treated the results as applicable to the considerably larger total landholding. In consequence, Ms Le Fevre failed to take into account the very significant holding costs which inevitably would be incurred by a developer in the many years which would be involved in the development of such a large landholding.
1315 Tenthly, the valuations reached by Ms Le Fevre and Mr Cameron do not withstand scrutiny, when assessed having regard to the costs and income for a developer of the Kelliher land. I have reached that conclusion having regard to an analysis undertaken by Mr Wilson of the income potential of the Kelliher land. The point of his analysis was to test whether Ms Le Fevre's valuation was substantiated, having regard to the costs and income for the developer.[1591] Ms Le Fevre's valuation proceeded on the basis that the Kelliher land would be rezoned and that development would commence within a short time frame. In that circumstance, it was Mr Wilson's view that 'there has to be some relationship between a value established from en globo sales analysis and a value established by analysing the actual development potential of the land'.[1592]
1316 Mr Wilson explained the basis for his analysis in this way:
Progressive subdivision and sale of created lots will incur ongoing costs and income for the developer. The costs will include the purchase price of the land, plus stamp duty on the purchase and ongoing holding costs, such as rates, taxes and interest on the land, either at a rate to recognise a lost opportunity cost (ie what the developer's cash could have otherwise been invested in to return an income) or most likely at a borrowings cost.
Where there is a delay before subdividing and selling lots, these holding costs will increase at a compounding rate, until development occurs and then such costs will be reduced or offset by income from the progressive development and sale of created lots. If all factors are realistic (lot development timeframe, lot selling rates, lot selling prices and of course land purchase price) then the project should start to return a positive income flow, it should reach a break-even and become profitable.'[1593]
1317 In conducting this analysis, Mr Wilson used Ms Le Fevre's valuation of $300,000/ha in respect of lots 202, 203, 207 and 208, and also used the figures she drew on in her HSA, namely sales of 150 lots per year over six years. Mr Wilson's evidence was that his analysis showed that even with Ms Le Fevre's very optimistic timetable:
the results based on Ms Le Fevre's analysis do not support her value assessment. ...
Applying her analysis does not show a development profit, in fact just the opposite, with an increasing shortfall between income and ongoing land ownership and holding costs. Her use of a static analysis [HSA] suggests to me that she has overstated the value of the Kelliher landholding and disregarded the very long time it will take to develop and selling 3,640 lots (303.5753ha @ 12 lots per hectare) in this location.[1594]
1318 Mr Wilson's analysis revealed that based on Ms Le Fevre's valuation, costs would outstrip income from sales, and the developer would not return a profit.[1595] The hypothetical Spencer parties could not be expected to fix on a price for the Kelliher land that would never return a profit for the developer of that land. Mr Wilson's analysis thus suggested that Ms Le Fevre's valuation was not sound.
1319 Mr Wilson also conducted a similar assessment of Mr Cameron's valuation of the Kelliher land, on the same basis. In doing so, however, he used Ms Le Fevre's estimate of sales of 150 lots per annum. He did so despite the fact that Mr Cameron adopted an even more optimistic view that there existed the potential to sell up to 250 lots per annum.[1596] In deciding to disregard Mr Cameron's estimate of lots sold each year, Mr Wilson noted that the WA Tomorrow report only identified a requirement for 250 to 300 lots per year for the whole of the Shire of Murray. In Mr Wilson's view:
With existing competition from Riverland Ramble Estate and Murray River Country Estate and forthcoming competition from Austin Cove by 2008, plus the potential competition from land immediately adjoining and opposite the Kelliher land, to me it is completely unrealistic to assume one landholding in Ravenswood would account for nearly all of the Shire's residential land sales. In fact, based on this information [ie the WA Tomorrow report] I consider a selling rate of 150 lots pa to be too high.[1597]
1320 Even using the rate of 150 sales per year, Mr Wilson concluded that if Mr Cameron's view of the value of the Kelliher land were used, land ownership costs would continue to outstrip income for the duration of the development.[1598]
1321 Mr Wilson's view was that even if it were assumed that the land could be considered ready for subdivision by 2011, that would not make it economical to actually subdivide in 2011, and a prudent purchaser would take that into account.[1599]
1322 Based on this analysis, Mr Wilson's conclusion was that the land values attributed to the Kelliher land by Ms Le Fevre and by Mr Cameron could not be supported.[1600]
1323 Eleventhly, other aspects of the evidence given by Ms Le Fevre and Mr Cameron caused me to doubt the reliability of the valuations they produced. On a number of occasions, the reasoning in Ms Le Fevre's written reports, and her oral evidence, was difficult to follow, or appeared illogical. By way of example, Ms Le Fevre considered that 'average' lots at Point Grey were unlikely to achieve the same value as lots within the Kelliher landholding, despite the fact that the Point Grey lots would be in close proximity to the Peel Inlet (even if they did not enjoy waterfront views) and would be in what Ms Le Fevre acknowledged was considered a 'unique' location.[1601]
1324 While I found the reasoning in Mr Cameron's reports easier to follow, his oral evidence was, on occasion, rather less clear, and at times during the course of the concurrent session, he appeared reluctant to unambiguously state his own approach to the valuation he had undertaken.[1602] Furthermore, there were occasions when it was not clear that Mr Cameron fully understood the planning evidence (which he took into account in reaching a valuation). By way of example, Mr Cameron said that his understanding was that the WAPC's function was to try to alleviate the pressure in the market by rezoning more land for urban development.[1603] Further, Mr Cameron understood Mr Kerr's evidence to be that there would be a loss of lots as a result of the Highway because a diamond interchange would need to be constructed at an intersection of Patterson Road and the Highway.[1604] However, as I have explained above, as at the Date of Taking, there was no diamond interchange at that location, and the Taken Land did not include land for such an interchange. It therefore was not appropriate to compensate for the possible future loss of that land.
1325 I note that neither Ms Le Fevre nor Mr Cameron undertook an alternative valuation based on assumptions which were more closely aligned to the planning evidence on which my findings have been based. In this respect, Mr Wilson's and Mr Zucal's valuations were not contradicted by any other evidence.[1605]
1326 I turn to explain the reasons why I was not persuaded that the sales on which Ms Le Fevre and Mr Cameron relied in valuing the Kelliher land (other than the land west of the Highway) were comparable to the Kelliher land.
(h) Why the comparable sales relied on by Ms Le Fevre and Mr Cameron were not comparable
1327 In my view, the Point Grey land cannot be regarded as comparable to the Kelliher land having regard to the following matters which were established on the evidence.
1328 The land at Point Grey was zoned regional open space, rural and urban deferred in the PRS.[1606] A large central portion of the land was zoned urban deferred and had been since the PRS took effect in 2003.[1607] That land was bounded by regional open space and rural areas. (All of the urban deferred zoned land at Point Grey was included within the transaction relied upon by Mr Le Fevre and Mr Cameron.)
1329 The Point Grey land is located across the Harvey Estuary from Port Bouvard and Dawesville and the land at Point Grey was marketed as a waterfront development opportunity.[1608] Ms Le Fevre accepted that the waterfront area at Point Grey constituted an outstanding amenity, while Mr Cameron agreed that Point Grey was a 'unique' site and a 'trophy site'.[1609]
1330 The potential of the land at Point Grey for urban use had long been recognised in various planning instruments, including the draft Mandurah and Districts Planning Study (1984) (which favoured Point Grey for urban development),[1610] and the IPRSP (which identified Point Grey as part of a tourist development).[1611] The draft LPS also identified the land at Point Grey as having tourist, urban and rural residential potential. The area was described as a significant development project.[1612]
1331 Furthermore, the requirements for the urban deferred zoning to be changed to 'urban' use had been considered by the WAPC and set out by it.[1613]
1332 The development of Point Grey for urban use would inevitably have been subject to the approval of environmental agencies. However, some comfort that environmental approval for its development was likely to be given lay in the fact that, in 1999, a proposal to amend TPS 4 to include land at Point Grey in a 'Special Development Zone' had been approved by the Minister for the Environment, save for an application to include a marina, which was referred to the Environmental Protection Authority.[1614]
1333 Although that proposed development and the amendment to TPS 4 did not proceed,[1615] nevertheless the fact that it received environmental approval suggests that environmental considerations at Point Grey would not impede the development of that land.
1334 I accept the submission by counsel for the defendant that the Point Grey land is not comparable to the Kelliher land because of its clearly identified urban or tourist development potential, the fact that it has enjoyed urban deferred zoning in the PRS since 2003, its unique amenity and the fact that the WAPC has identified the steps to lift its urban deferred status.[1616]
1335 Furthermore, having regard to the evidence of Mr Wilson, in my view, it is simply not possible to make sufficient adjustments to the sale price for the Point Grey land so as to be able to accurately analyse a comparable value for the Kelliher land.[1617]
1336 I am not persuaded that the Baldivis sales relied upon by Ms Le Fevre can properly be considered comparable to the Kelliher land. The differences in the Baldivis land and the Kelliher land were highlighted by a series of questions put to Ms Le Fevre during the concurrent session. Ms Le Fevre agreed that Baldivis attracted people who work in the Perth metropolitan area, due to its proximity to the Kwinana Freeway, whereas the market for Ravenswood would be for people working in Peel. Ms Le Fevre accepted that Baldivis was an establishing suburb, with subdivisions in place, and had an established market for residential lots. Ms Le Fevre also agreed that there had been a substantial number of en globo sales in Baldivis, whereas that was not the case in Ravenswood. Ms Le Fevre agreed that end lot prices were substantially higher in Baldivis than in Ravenswood, and she agreed that purchases of urban land in Baldivis during 2006 were made in the expectation of the likely rezoning of that land.[1618]
1337 I note that Mr Wilson and Mr Zucal also did not consider that the Baldivis sales were comparable to the Kelliher land.[1619] I agree with that conclusion, having regard to the matters with which Ms Le Fevre agreed.
1338 Ms Le Fevre also relied on the Forrestdale transaction, which was not in fact a sale, as Ms Le Fevre herself noted.[1620] The Forrestdale transaction pertained to 101.7843 ha of land on three lots on Rowley Road in Forrestdale. The Forrestdale land is thus located significantly closer to Perth than the Kelliher land. The Forrestdale land was zoned rural with special rural surrounds. However, it fell within an area identified as a 'possible future urban area' within the Southern River/Forrestdale/Brookdale/Wungong District Structure Plan. Ms Le Fevre acknowledged that the purchasers had had planning advice that it may be possible to obtain the rezoning of that land to 'urban deferred' within five to 10 years, notwithstanding that the Structure Plan noted that the land may not be required for urban purposes until 2031.[1621] Given the different location of this land, its very different urban potential as compared with the Kelliher land, and the fact that this was not a sale, I am not persuaded that the Forrestdale transaction can properly be regarded as a comparable sale for present purposes.
1339 Apart from the Point Grey sale, Mr Cameron relied on sales at Busselton Bypass (Ambergate), Australind Bypass, Byford, Mundijong and Whitby. I am not persuaded that those sales can properly be regarded as comparable sales having regard to the location of the land in each case and to its very different prospects for urban development.
1340 In relation to the Busselton Bypass (Ambergate) sale, the land in question was identified for future urban use in the Ambergate North District Structure Plan which had been endorsed by the WAPC prior to the sale.[1622] The Structure Plan designated land for use for residential and commercial uses and for a school. Mr Cameron accepted that the land sold was the 'next logical ... urban development front' for Busselton, and agreed that it was certain that this land would be rezoned to urban.[1623] In addition, the land was located near Busselton, in a very different location to Ravenswood.
1341 Mr Cameron also relied on the sale of land at the Australind Bypass. This land was also located in a very different location to Ravenswood. It was adjacent to the Collie River on the eastern fringe of Australind. The land was zoned urban deferred in the Greater Bunbury Region Scheme. The Australind Bypass land was surrounded by residential developments,[1624] and Mr Cameron accepted that the urban prospects of that land were certain.[1625]
1342 Mr Cameron also relied on the Byford sale. The land was well removed from the Kelliher land. The land in question was zoned urban under the Metropolitan Region Scheme and urban development under the relevant TPS. Subdivision approval had been given in respect of part of the land.[1626] The very different location, together with the urban zoning of that land, mean that it cannot be regarded as comparable to the Kelliher land.
1343 Similarly, in relation to the sales at Mundijong and Whitby on which Mr Cameron also relied, the land in each case was located a considerable distance from the Kelliher land, some sixteen kilometres from Armadale, and was zoned urban or urban deferred under the PRS and urban development under the relevant TPS. The very different location of the land plus its better prospects of urban development mean that these sales cannot be regarded as comparable sales.
1344 I turn to explain why I accept the evidence of Mr Wilson and Mr Zucal as to the value of the Kelliher land, but prefer the approach taken by Mr Wilson.
(i) Why I accept the opinion advanced by Mr Wilson as to the valuation of the Kelliher land in the unaffected scenario (without the Highway) and with the Highway
1345 For the reasons set out below, generally speaking, I accept the opinions advanced by Mr Wilson and Mr Zucal as to the valuation of the Kelliher land, as set out in their reports, and explained further in their evidence in the concurrent session. But for the reasons also set out below, in respect of the value of the Taken Land and in respect of the land east of the Highway, I prefer to rely on the evidence given by Mr Wilson, in preference to that of Mr Zucal. (Nevertheless, Mr Zucal's valuation provides broad support for Mr Wilson's conclusions.) As I explain below, in respect of the land west of the Highway and the severance damage pertaining to that land, I prefer the evidence of Mr Wilson.
1346 I accept the evidence of Mr Wilson and Mr Zucal for three broad reasons, namely:
(i) The assumptions underlying their valuations are, generally speaking, consistent with the findings I have made having regard to the documentary evidence and the planning experts' evidence;
(ii) The sales evidence on which they relied comprised properly comparable sales;
(iii) The clarity of the evidence they gave (in their reports and in the concurrent session) and their clear command of the valuation principles applicable in this case.
1348 At the outset, I note that both Mr Wilson and Mr Zucal approached the valuation of the Kelliher land from the starting assumption that all of the Kelliher land would be rezoned for urban use within five to six years of the Date of Taking. Their assumption that the Kelliher land would in fact be rezoned following the review of the IPRSP assumes a certainty as to outcome which was not supported by the evidence, and which is not consistent with my findings. However, Mr Wilson and Mr Zucal both took the view that apart from Lot 190, the Kelliher land would not be ripe for subdivision for many, many years. Consequently, even if the assumption made by Mr Wilson and Mr Zucal that the Kelliher land would be rezoned to urban can be said to have had any discrete impact on the outcome of their valuations, that impact must necessarily have been to the plaintiffs' advantage and I do not disregard their evidence on that basis.
1349 In addition, Mr Wilson had regard to the planning evidence and valued on the basis that the development of Lots 202 and 203 would be deferred for 15 years from the Date of Taking, an assumption which he acknowledged was a very optimistic one.[1627] That assumption is more optimistic than the findings I have made, based on the documentary evidence, and the planning experts' evidence, but not so inconsistent as to warrant rejecting his evidence (which by virtue of this assumption also works in favour of the plaintiffs). His approach to the land north of Rogers Road (lots 207 and 208)[1628] was broadly consistent with the findings I have made about the view the hypothetical Spencer parties were likely to reach in relation to the prospects of that land being rezoned for urban use, and its likely time frame for development. Furthermore, Mr Wilson's assumptions about the likely urban development front were also consistent with the findings I have made based on the planning experts' evidence. Mr Wilson's conclusion that there was no injurious affection damage for the remaining Kelliher lots apart from Lots 202, 203, 207 and 208 is consistent with my findings also.
1350 Mr Zucal also proceeded on the basis that in the absence of the Highway, there would be a long delay before Lots 203 and 202 were ripe for residential subdivision. Mr Zucal considered that delay would be even longer than the delay factored in by Mr Wilson. Mr Zucal proceeded on the basis that Lots 202 and 203 would not be ripe for subdivision for 37 years from the Date of Taking. Mr Zucal was also of the view that it would be even longer before Lots 207 and 208 would be ripe for subdivision, so much so that he considered the preferable course (having regard to the compensation payable) was to value those lots on the basis that they had potential for special rural zoning only. Mr Zucal's view is also broadly consistent with the conclusions I have reached on the planning evidence.
1351 Counsel for the defendant noted that neither Mr Wilson nor Mr Zucal took account of Amarillo, which accords with both the law and the planning evidence.[1629] The approach taken by Mr Wilson and Mr Zucal in relation to the development of Amarillo is consistent with the findings I have made.
1352 However, Mr Zucal's approach to the impact of the RRF is inconsistent with the conclusion I reached, namely that the RRF was not caused by the carrying out of the Highway, or the proposal to do so, with the result that any increase in the value of the Kelliher land by virtue of its proximity to the RRF, and its improved prospects of urban zoning as a result, should not be regarded as betterment. (That is one of the reasons why I have preferred Mr Wilson's valuation to that reached by Mr Zucal.)
1353 I am satisfied that the sales evidence on which Mr Wilson and Mr Zucal relied constituted sales of land which can be viewed as comparable to the Kelliher land, although I prefer the comparable sales relied upon by Mr Wilson to those relied upon by Mr Zucal in determining the value of the Kelliher land in the unaffected scenario and with the Highway.
1354 Mr Wilson relied primarily on the sale of Lot 301 Pinjarra Road, and the sale of Lot 9007 Old Mandurah Road, because they were sales of land in the same locality as the Kelliher land.[1630] Mr Wilson's view was that it was preferable to rely upon sales of land which was close to the Kelliher land:
principally in light of the fact that there was a big unknown, a big question mark hanging over the acceptance or otherwise of the draft [LPS in the course of the review of the IPRSP]. And to suggest that that was a fait accompli, a foregone conclusion that it would be accepted and the Kelliher land would be developed for urban development, I think was too big a step and so hence I tried to analyse sales that better reflected the position with that unknown LPS in mind.[1631]
1355 In respect of the value of the Kelliher land in the unaffected scenario, the primary sales relied upon by Mr Wilson were the sale of Lot 301 Pinjarra Road and the sale of Lot 9007 Old Mandurah Road. There were a number of similarities between Lot 301 and the Kelliher land which warranted this sale being viewed as comparable. The land was of a reasonable size and was in close proximity to the Kelliher land. The sale occurred eight months prior to the Date of Taking. And the land in question was likely to have been purchased on the basis that it had good prospects of being zoned for urban development, which was the assumption made by Mr Wilson in respect of the Kelliher land.
1356 Counsel for the plaintiffs submitted that the sale of Lot 301 could not be relied upon for the reasons identified by Ms Le Fevre,[1632] namely that this was never a sale, that it was a contingent contract with clauses for market movement, development could not take place unless those contingencies were fully met, the vendor had rights to buy back the land prior to full settlement in certain circumstances, and that in the property boom market at the Date of Taking, a vendor would have had little incentive to enter into such a complex contract and bear the risk associated with non-satisfaction of the conditions. Counsel for the plaintiffs relied upon the conclusion reached by Beech J in McKay that the contract for Lot 301 was highly complex and conditional, and one which his Honour would have disregarded had there been other comparable sales of assistance in assessing the value of the McKay land.[1633] Counsel for the plaintiffs pointed to the fact that consequently Beech J relied upon the sale of Lot 301 only in a very limited way (as representing a 'floor' price for Lot 301).[1634]
1357 While the contract in respect of Lots 301 Pinjarra Road and 300 Towera Road was a complex one, as Mr Wilson himself accepted,[1635] and there must necessarily be some degree of uncertainty in extrapolating the sale price from that transaction, in my view that is not a basis for rejecting the use of the transaction to determine the sale price when this sale is otherwise capable of being used as a comparable sale. That is particularly so in the present context where there were so few comparable sales.
1358 Mr Wilson undertook an analysis of the transaction, and in particular, that component of which pertained to the sale of Lot 301. He set out in detail[1636] his analysis of the terms of the contract, the adjustments he felt were warranted, and the basis on which he reached his conclusion as to the comparable sale price from this transaction, as at the Date of Taking.
1359 In particular, I note Mr Wilson's explanation for why he disagreed with the conclusion reached by Beech J in McKay that the sale price as at the Date of Taking should be viewed as indicative only of a 'floor' price for Lot 301 because the contract provided for possible additions to the purchase price in five years:
Justice Beech suggests this is the 'floor' price of Lot 301, but at the date of contract I consider that this price would have been taken at face value (ie market value) by an intending buyer. The contract provided for possible additions to the purchase price in five years, based on valuation, but only if rezoning had not been achieved within that five-year period from the contract date. In my opinion, a possible adjustment based on value in five years is too far into the future to consider as having an impact on market value as at July 2006, particularly in the booming market circumstances at the time.'[1637]
1360 The analysis was not challenged during the concurrent session. Nothing in Mr Wilson's analysis caused me to doubt the conclusion he reached as to the adjusted sale price. I accept Mr Wilson's explanation for why he considers that the adjusted purchase price (as at the Date of Taking) in respect of Lot 301 can properly be relied upon as reflecting market value of the land at that time.
1361 There were a number of similarities between Lot 9007 and the Kelliher land: the size of the landholding, its close proximity to the Kelliher land, and the fact that this land comprised the balance of the Riverland Ramble estate.
1362 In his primary report, and in his evidence in the concurrent session,[1638] Mr Wilson provided a detailed explanation of why he regarded Lot 9007 as a comparable sale, and of his analysis of the land value for the Kelliher land, which could be derived from Lot 9007. In my view, his evidence was compelling.
1363 The primary challenge advanced against reliance on Lot 9007 was that it was not an arm's length transaction. Ms Le Fevre's evidence (in her supplementary report, and in the concurrent session) was that this sale was not comparable because the land was not sold on the open market, but rather was sold to a syndicate of persons known to the vendor, that the sale price was based on a valuation completed for mortgage purposes in May 2006[1639] and notwithstanding the booming market at the time, no price escalation was made despite the fact that the contract was not entered into until October 2006, that the May 2006 market value was in any event based on even earlier sales evidence, and that Lot 9007 had a low gross lot yield, and contained a school site which was to be serviced and ceded free of charge.[1640]
1364 Counsel for the plaintiffs pointed[1641] to evidence about the relationship between the vendor and the purchaser which was referred to by Beech J in the McKay decision.[1642] Counsel for the plaintiffs submitted that Mr Wilson's conclusion that these factors did not detract from the use of this sale as an arms-length transaction - was not tenable.[1643]
1365 I was not persuaded by those submissions that this sale should not have been relied upon. At the outset, I note that the evidence of the vendor (Mr Jones) which was adduced in the McKay trial, and to which counsel for the plaintiffs referred, was not in evidence in this trial. Furthermore, I note that Beech J did not consider it necessary to resolve the question whether the sale price for Lot 9007 constituted a reliable indication of the market value of that land, having regard to the preexisting relationship between the vendor and the purchaser (or, more correctly, the persons who apparently stood behind those corporate bodies).[1644]
1366 In the course of his evidence in the concurrent session, Mr Wilson gave evidence (to which there was no objection) of his own knowledge of Mr Jones (the director of the vendor). That evidence was that Mr Jones was a very experienced property developer, that Mr Jones and Mr Armstrong (one member of the syndicate of purchasers) had been in partnership for a number of years,[1645] and that as Mr Jones had decided to sell the property in boom market conditions, Mr Wilson was 'very confident' that Mr Jones 'would have sought to maximise the return that he got from his property under those market circumstances'.[1646] Mr Wilson then explained:
Mr Jones would have, like anybody else who was selling a major property at that time, would have anticipated and expected to maximise the return he got from his land. The fact that there was no escalation in the price in my opinion pinpoints to Ravenswood being in its infancy at the time, and perhaps not the ideal property investment locality.[1647]
1367 Mr Wilson also explained the circumstances in which the transaction contemplated that Mr Jones was to be engaged under a project management contract in respect of Lot 9007 (namely that nature of the purchaser means that it would have needed to outsource the project management role).[1648] I accept Mr Wilson's explanation as to why that would not be considered an unusual or unreasonable arrangement, so as to detract from the use of the contract as an arms' length market transaction.
1368 Counsel for the plaintiffs submitted that Mr Zucal's reliance on Lot 23 should be rejected because he did not identify it as comparable as a result of his own independent analysis, but rather relied upon it because it had been identified by Beech J in McKay as being comparable to the McKay land.[1649] They submitted that in the concurrent session, Mr Zucal accepted that that was the basis for his reliance on Lot 23.[1650] That was not an accurate reflection of Mr Zucal's analysis in his primary report, nor of what he said in the concurrent session.
1369 In his primary report, Mr Zucal made clear that:
There is little comparable sales evidence in the subject locality as at valuation date. Justice Beech was presented with a wide range of sales evidence in McKay ... .
Justice Beech concluded there is only one comparable sale relevant to the McKay land and that was Lot 23 Pinjarra Road. This was the sale we included in our 'basket of evidence' relevant to our valuation reports ... as expert evidence in the McKay matter.
We are of the view that Lot 23 is the predominant sale in the Kelliher matter applicable to the urban potential of Lots 202 and 203. ... .[1651]
1370 There is nothing to suggest that Mr Zucal only considered Lot 23 because Beech J had considered it a comparable sale (with respect to Lots 190 and 191) in the McKay decision. Moreover, it is clear from the analysis which followed in his primary report, that Mr Zucal did not rely upon the conclusions reached by Beech J in McKay (as to the sales which were comparable with Lots 190 and 191), as being determinative of what sales were comparable with the Kelliher land. Mr Zucal took the view that the more favourable location of the Clough/Rapley land and the Gold Fortune land on the one hand, and the timetable for development of the Kelliher land on the other hand, meant that the sale of the Clough/Rapley land and the Gold Fortune land were not comparable sales for the purpose of determining the value of the Kelliher land.[1652] Contrary to the submission of counsel for the plaintiffs, there was no concession by Mr Zucal in the course of his evidence in the concurrent session that he relied upon the sale of Lot 23 only because Beech J considered that sale a comparable sale in relation to Lots 190 and 191.
1371 In addition, counsel for the plaintiffs submitted that Lot 23 was not comparable with the Kelliher land (for the reasons given by Ms Le Fevre[1653]) namely that Lot 23 was vastly smaller than the Kelliher landholding, had no potential for residential urban development, was not purchased by a major developer, was purchased for a possible retirement village but without any indication in the planning framework that it would be rezoned for that purpose, and was not advertised and sold on the open market.[1654] Counsel for the plaintiffs submitted that the only evidence Mr Zucal claimed to have relied upon for the expectation of underlying urban potential in relation to Lot 23, was a report by Mr Montgomery in July 2006, several months after the sale.[1655]
1372 Mr Zucal accepted that the size of Lot 23 meant that it was not directly comparable with the Kelliher land.[1656] He also accepted that Lot 23 would not support urban development of the same intensity as Lots 202 and 203 of the Kelliher land.[1657] However, Mr Zucal made an allowance for the difference in size, and thus the timeframe for development, between Lot 23 and Lots 202 and 203. As for the urban potential of the land, Mr Zucal relied upon the stated intention of the purchaser to pursue an urban rezoning, and the quantum of the purchase price itself. In addition, Mr Zucal's evidence was that the potential of the land for a higher use than its rural zoning was confirmed by attachments to the Peel Sector Review - Issues Report. Attachment 6 to that Report identified land (including Lot 23) which comprised 'areas of intense urban development pressure'.[1658]
1373 In my view, the substantial difference in the size of Lot 23, and the likely intensity of the urban development to which it could be subject, as compared with that for Lots 203 and 202, suggest that Lot 23 represents a less comparable sale to the Kelliher land than Lot 301 Pinjarra Road, or Lot 9007. I prefer Mr Wilson's analysis for that reason. Nevertheless, the value for Lots 202 and 203 which Mr Zucal derives from his analysis of the sale price for Lot 23 is consistent with the analysis undertaken by Mr Wilson, and provides support for the valuation undertaken by Mr Wilson.
1374 As I have already noted, Mr Zucal concluded that the potential for urban development of Lots 207 and 208 was likely to be deferred so far into the future that the highest and best use of that land as at the Date of Taking should be regarded as rural, with potential for special rural. He valued those lots on that basis.
1375 Although Mr Wilson noted that a prudent purchaser may consider Lots 207 and 208 as being more likely to be zoned special rural and able to be developed for that purpose in the short term, he nevertheless recognised that that option would not be open if it were concluded that the land was likely to be recognised as having future urban potential. He therefore approached the valuation of Lots 207 and 208 on the basis that a much longer time frame would be required for urban development than for Lots 202 and 203. Mr Wilson concluded that the price which should be adopted for Lots 207 and 208 should be the same as for Lot 202, to reflect a highest and best use of rural, but with a recognition of its very long term urban potential.
1376 Given that the parties have approached the case on the basis that the central task has been to ascertain the prospects of the Kelliher land being rezoned for urban use, and the value that the hypothetical Spencer parties would attribute to the land, having regard to that possible future use, over and above its existing rural use, I consider Mr Wilson's approach to the valuation of Lots 207 and 208 to be preferable to that adopted by Mr Zucal.
1377 The evidence given by Mr Wilson and by Mr Zucal in their reports and in the concurrent session was clear, their valuation methodology was, generally speaking, transparent, and their reasoning (including as to the adjustments they made in respect of the sales they identified as comparable) was logical. It was apparent that both Mr Wilson and Mr Zucal were completely in command of the material. They were able to convey their analyses to the Court in a manner that was readily able to be understood. And Mr Zucal, and Mr Wilson in particular, frankly acknowledged the difficulties caused by the limited sales evidence in respect of properties which might be considered comparable, and of the exercises in judgment which had to be made in those circumstances.[1659]
1378 Both Mr Wilson and Mr Zucal relied upon the evidence of the planning experts (rather than relying upon their own views as to the prospects of the Kelliher land), and on the WAPC's statistics on projected population growth, in so far as the likely demand for residential lots was concerned.
1379 Counsel for the plaintiffs were critical of Mr Wilson and Mr Zucal for their references to the findings made by Beech J in McKay. They submitted that 'the reliance on the McKay decision by the Defendant's valuers is an error that infects every facet of their reports, and undermines the independence and objectivity of the opinions expressed therein'.[1660] That was a curious criticism given that the valuation experts relied upon by the plaintiffs also had regard to the findings made by Beech J in McKay. In any event, while it is certainly the case that Mr Wilson and Mr Zucal both referred to the findings made by Beech J in McKay in their reports,[1661] it was hardly surprising that they did so. His Honour's judgment was the most recent authoritative examination of very similar issues to those on which they had been asked to provide an opinion. It would have been very odd had they made no reference to his Honour's views.
1380 The key question, however, is what use Mr Wilson and Mr Zucal made of his Honour's conclusions. Turning first to Mr Wilson, there is no basis for any assertion that Mr Wilson simply adopted the findings made by Beech J, nor can it be said that Mr Wilson abrogated his role as an expert by simply agreeing with, and applying, the findings made by Beech J. Instead, it was apparent that Mr Wilson either formed his own conclusions from the evidence, and then referred to the findings made by Beech J (usually, but not always, by way of confirmation of his own views) or indicated that he agreed with the findings made by Beech J, and proceeded to explain why that was so, by reference to evidence of sales.[1662] On occasion, Mr Wilson took an approach which was different from that taken by Beech J.[1663]
1381 Similarly, while Mr Zucal also had regard to some of the findings made by Beech J, he also did not simply adopt and apply those findings. By way of example, he noted that in assessing the value of the McKay land, Beech J compared the sales of the Clough/Rapley land and the Gold Fortune land. Mr Zucal did not consider it was appropriate to compare those transactions with Lots 202 and 203 of the Kelliher land because the McKay land had a better location, and was likely to be subdivided before Lots 202 and 203.[1664] Similarly, he did not think that those sales would assist in the valuation of Lots 207 and 208 given that he had assumed the special rural zoning of those lots in due course.[1665]
1382 Counsel for the plaintiffs submitted that the valuation evidence of Mr Wilson and Mr Zucal should be rejected for a further reason, namely that there was no basis for their assumption that there would be a delay in the subdivision of the Kelliher land. Counsel for the plaintiffs submitted[1666] that the approach taken by Mr Wilson and Mr Zucal namely that while the Kelliher land would be rezoned within five to six years from the Date of Taking, but not be subdivided for decades after that - was based on three assumptions, which were not made out by the evidence.
1383 First, they submitted that Mr Wilson and Mr Zucal wrongly assumed that other landholdings adjacent or nearby to the Kelliher land (including the Emmanuel land) would be in competition with the Kelliher landholding at or around 2011/2012. They submitted that there was no evidence before the Court to establish that any of the land in nearby proximity to the Kelliher land (including the McKay and Emmanuel land) was on the market or being progressed for urban development.[1667] They also submitted that evidence that landowners, including the Emmanuels, were interested in progressing the urbanisation of the land could not support a finding that the Emmanuel land would have been in competition with the Kelliher land for development. And they submitted that the evidence of Mr Kerr was that the Emmanuel family wished to progress their other property interests before developing the landholding at north Ravenswood.[1668]
1384 I am unable to accept these submissions. The evidence to which I referred at [380] - [392] above clearly supports the conclusion that the owners of other land at, or in the vicinity of, north Ravenswood, including the Emmanuels and the Mannions, were pursuing the rezoning of their land. The clear inference which can be drawn is that they wished to develop the land upon its being rezoned, or to sell the land to a developer, once it was rezoned.
1385 Secondly, counsel for the plaintiffs submitted that Mr Wilson and Mr Zucal wrongly assumed that even if the Kelliher land was rezoned in 2011/2012, the developer of the land would wait for other land closer to Old Mandurah Road to be developed first, due to the 'ripple effect'. Counsel for the plaintiffs submitted that the evidence of the planning experts was that the sequencing of development within an area would be a matter for the developers (based on a range of commercial factors), and it could not be assumed that a prudent developer would defer development of its own landholdings because a competitor's landholding was closer to an existing urban front.[1669]
1386 Counsel for the plaintiffs also submitted the basis for the assumption of the 'ripple effect' appeared to lie in SPP3, and in Mr O'Neill's evidence that development of the Emmanuel land would have been quite inconsistent with SPP 3[1670] and with Network City. Counsel for the plaintiffs submitted that Mr O'Neill's view reflected a misunderstanding of the effect of SPP 3, which did not preclude greenfield developments 'leapfrogging' the existing urban front, but rather contemplated that if greenfields developments were to do so, developers would be required to prefund extensions to infrastructure.[1671]
1387 I do not accept these submissions either. The approach taken by Mr Wilson and Mr Zucal was, broadly speaking, consistent with my findings. The finding I made was that the hypothetical Spencer parties would conclude that if the WAPC decided to rezone any of the land at north Ravenswood for urban use in the short term future, it was most likely to be the land located along Pinjarra Road and Old Mandurah Road, and that any subsequent urban zoning of the Kelliher land in the longer term would radiate to the north. The approach taken by Mr Wilson and Mr Zucal reflected the net effect of that finding (albeit by a different route, namely that the land (other than Lot 190) would not be ripe for subdivision for many years).
1388 Thirdly, counsel for the plaintiffs submitted that Mr Wilson and Mr Zucal wrongly assumed that a developer purchasing the Kelliher land would base their estimated future sale rates for the project primarily on the levels of local demand at the date of sale, notwithstanding the nature and size of the project and the fact that the duration of the development would span a number of decades. They submitted that the size, location and characteristics of the Kelliher landholdings differentiated its development from the development of other nearby parcels of land with urban potential. Counsel for the plaintiffs submitted that:
the development of the Kelliher landholding would be a long term project, spanning over several decades and a number of market cycles, with the potential to generate its own demand due to the size and nature of the development.[1672]
1389 They relied upon the evidence of Mr Cameron and Ms Le Fevre, both of whom expressed the view that a developer who purchased the Kelliher landholding would wish to progress development as quickly as possible after rezoning. Mr Cameron's evidence was that a developer may contemplate progressing multiple development fronts, and that they would 'put in display villages and ... it becomes almost a destination outside of the actual region itself'.[1673] Ms Le Fevre's evidence was that 'by continuing to put the product on the market, the[y] increase the attraction of the area and they increase the sale rate'.[1674]
1390 Counsel for the plaintiffs submitted that as a result, the local demand as indicated by WA Tomorrow would not be a factor of any significance to a hypothetical purchaser in those circumstances, and that that purchaser would be concerned with whether the landholding was capable of being developed as a large, master planned estate which could be subdivided in stages over a number of years, and whether the area was one in which it was viable to progressively develop a large urban estate over a number of decades.[1675]
1391 I do not accept these submissions either. In my view, the approach taken by Mr Wilson and Mr Zucal was broadly consistent with my finding that the hypothetical Spencer parties would conclude that the WAPC would require a sound justification before departing from the principles in the IPRSP, Network City and SPP 3, and that the application of those principles would take into account the WAPC's data on the anticipated population growth and the supply of land. Accordingly, it was appropriate to take into account the likely demand for residential land in considering the timeframe in which subdivision (if not rezoning itself) would occur. Furthermore, these submissions are inconsistent with my finding that the hypothetical Spencer parties would be advised that it was unlikely that demand would support more than one development front at a time.
1392 I am not persuaded that the evidence of Mr Cameron and Ms Le Fevre in relation to the value of the western land with the Highway should be adopted, for all of the reasons outlined above. In addition, the sales relied upon by Mr Cameron, with one exception, were outside the Shire of Murray, and in very different locations. I am not persuaded that the differences in location can be adequately accounted for by adjustments. It was also not entirely clear how Mr Cameron reached his valuation, having regard to the broad range of values he derived from the sales to which he had regard.
1393 In so far as Ms Le Fevre drew on sales of land outside the Shire of Murray, I am also not persuaded that the difference arising from the different locations of those properties can be adequately accounted for the adjustments.
1394 Finally, both Ms Le Fevre and Mr Cameron considered the sale of Lot 604 Beacham Road, West Pinjarra as a comparable sale. Mr Zucal also analysed this sale and concluded that it gave rise to a comparable sale value of $70,000/ha. In my view, the allowances made by Mr Zucal for the date of sale and the size of the lot more appropriately reflect the differences between the Lot 604 Beacham Road property and the Kelliher land.
1395 Counsel for the defendant submitted that I should accept the valuation reached by Ms Le Fevre as a result of the HSA she undertook in respect of the land west of the Highway. I am not persuaded that Ms Le Fevre started with a land value of $300,000 to $330,000/ha, which in my view was too high a starting point, having regard to the evidence. Secondly, Ms Le Fevre applied a deferral of 1.5 years, to account for a small delay in subdivision, when I have concluded that the hypothetical Spencer parties would take the view that the land west of the Highway could be rezoned to special rural, and subdivided, within three years. I prefer to rely upon the valuation reached by Mr Wilson and Mr Zucal through an analysis of comparable sales. The valuation each of them reached - prior to applying a deferral for the anticipated period prior to rezoning and subdivision - was $70,000/ha for the special rural potential of the land.
1396 I am satisfied that the sales relied upon by Mr Wilson and Mr Zucal in reaching this value were sales of land which was comparable to the land west of the Highway. As I have noted above, Mr Zucal relied on the sale of Lot 604 (113) Beacham Road, West Pinjarra and Lot 332 Parkhill's Lane, Nirimba. The latter sale appears to me to have been quite closely comparable. It involved land which abutted the Highway which was zoned rural with potential for rural residential, it was in a location near to the Kelliher land, a land holding of almost identical size and the sale occurred within the 12 months prior to the Date of Taking. Lot 604 Beacham Road was also in a very similar location, and was a sale reflecting a rural zoning with special rural potential.
1397 Counsel for the defendant submitted that Mr Zucal's analysis was erroneous in two respects. First, Mr Zucal applied a twoyear deferral for the zoning and subdivision of the western land to special rural use, when in counsel's submission the rezoning was virtually assured and would have proceeded immediately upon application. Secondly, Mr Zucal assumed a special rural subdivision into fourhectare lots due to the lack of water service, when counsel for the defendant submitted that, for a rural residential development along Fiegert Road, water was available from the existing rural residential development on Fiegert Road. The application of a twoyear deferral is not inconsistent with my finding that the hypothetical Spencer parties would conclude that the highest and best use of the land west of the Highway was for rural use with potential for rezoning to special rural, and subdivision, within three years. Mr Zucal's twoyear deferral is slightly more generous. And having regard to the evidence, Mr Zucal's allowance for some uncertainty about the water supply (which would determine the lot size) was not, in my view, unreasonable.
1398 I turn to Mr Wilson's analysis. He also drew on the sales of rural land which had potential for special rural rezoning (Lot 1 (870) Greenlands Road Nirimba and Lots 223, 279, 280 and 197 Greenlands Road Nirimba) and also drew, by way of comparison, on sales of lots at Greyhound Retreat, which were lots already zoned for special rural use. Each landholding in question was located close to the Kelliher land, and the sales were in close proximity to the Date of Taking. Mr Wilson proceeded on the basis that the rezoning for special rural use, and subdivision, of the Kelliher land would not take place for six years after the Date of Taking, and the valuation of $70,000 he reached reflected that period of deferral. Counsel for the defendants submitted that Mr Wilson's valuation should not be accepted because no deferral should have been applied at all.
1399 Having regard to the finding I have made that the highest and best use of the land west of the Highway was for rural use, with potential for rezoning to special rural, and subdivision within three years, Mr Wilson's valuation cannot be accepted without adjustment. I am otherwise satisfied that his analysis of special rural value for the land west of the Highway may be accepted, and I am content to proceed on the basis of his valuation with adjustment to take account of a period of deferral which reflects my findings.
1400 Mr Wilson's valuation of $70,000/ha assumed a deferral for six years. A deferral for three years is warranted, having regard to my findings. If that deferral is removed for three years, the resulting valuation is $88,180/ha for the land west of the Highway, which can be rounded to $88,200/ha. As I note in the table at the end of these reasons, using this valuation, the total severance damage comes to $630,020.
1401 The starting point in assessing injurious affection is Mr Wilson's valuation of the Kelliher land in the unaffected scenario. Having regard to my conclusion that the hypothetical Spencer parties would take the view that the Highway would not adversely affect the prospects of the Kelliher land being rezoned, and may slightly improve the prospects of the rezoning of that part of the Kelliher land north of Rogers Road, the only adverse effect of the Highway which must be accounted for under s 241(7)(b) pertains to the effect on the value of the Remaining land within 290 m of the Highway as a result of its proximity to the Highway, and its visual and acoustic impact.
1402 Mr Wilson assessed the reduction in the value of the Remaining Land located within 290 m of the Highway, arising from its proximity to the Highway, and its visual and acoustic impact, as amounting to a depreciation of the value of the land by 20%. I note that Ms Le Fevre and Mr Cameron also agreed that the loss in value of the end-lots within the noise impact zone should be assessed at 20% of their value.[1676]
1403 It was not necessary for Mr Wilson to account for the value of a noise wall, because he proceeded on the basis that a prudent developer would accommodate the noise restrictions applicable to land within 290 m of the Highway by larger lots within 105 m of the Highway, and by the use of architectural treatments between 105 m and 290 m of the Highway. For the reasons set out above at [1084] - [1086] no error is disclosed in that approach.
1404 Having regard to the findings I have made in relation to the development of Amarillo and the Southern Sectors Review, they do not found a claim for damage for injurious affection under s 241(7)(b) of the LA Act. And as explained above, the plaintiffs' claim for injurious affection based on loss of lot yield fails.
1405 Having regard to my conclusion that the RRF was not caused by the carrying out of the Highway, or the proposal to do so, the impact (if any) of the RRF on the value of the Remaining Land does not fall to be considered under s 241(7). (In any event, I have found that the hypothetical Spencer parties would have concluded that the RRF was unlikely to have more than a marginal impact on the prospects that the Kelliher land would be rezoned.)
1406 However, the evidence suggested that the Highway did have a positive effect on the value of the Remaining Land. First, the land to the west of the Highway was given a higher valuation by virtue of its prospects of special rural zoning. Mr Wilson also approached his valuation on the basis that to allow for the visual and acoustic impact of the Highway, lots to the immediate east of the Highway would be larger, and would be properly valued at the equivalent of the rate for the lots on the western side of the Highway. Mr Wilson was of the view that in so far as the value of that land on the basis of its special rural potential was higher than the value it otherwise would have, that increase should be treated as betterment (that is, effectively severance betterment). In my view, it is appropriate to treat that increase in value as betterment.
1407 Finally, as I have noted above, Mr Wilson was of the view that the Highway had had a beneficial impact on land values but he did not consider it possible to isolate the effect of betterment from the effect of the natural growth in value which was occurring during the booming property market at the time. There was no evidence as to the proportion of that increase in value that would be represented by betterment. Mr Wilson observed that he considered the assessment of betterment (of 6.25% of the value of the land in that case) which was made by Justice Beech in McKay was reasonable, but he evidently did not consider that that rate was applicable in the present case, because he did not proceed to apply it.
1408 Counsel for the defendant submitted that it would be a mistake of law to decline to apply a betterment set off on the ground that it was too hard to quantify. That may be so. But it is not for the Court to make a guess as to betterment which is not supported by any evidence.
1409 In any event, it is unnecessary to make any determination as to this aspect of betterment because the betterment identified by Mr Wilson arising from the special rural zoning potential of the land adjacent to the Highway, which I have accepted, wholly offsets the reduction in value of the Remaining Land caused by the Highway.
PART 9: CONCLUSION AS TO COMPENSATION UNDER S 241 OF THE LA ACT
1410 In summarising the compensation which in my view is payable under s 241, it is convenient to set out the approach taken by Mr Wilson, which I have accepted, save as to the value of the land west of the Highway which is to be valued as rural with potential for rezoning to special rural and subdivision within three years. The analysis is thus as follows:
1411 Using Mr Wilson's calculations to apportion compensation, the results are:
Injurious affection reduction in value of adjoining land
20% of 15.9723 ha @ $88,200/ha (for the land west of the Highway)
20% of 15.9723 ha @ $88,200/ha (for the land up to 190 m east of the Highway) and
20% of 8.9531 ha @ $52,500/ha (for the land between 190 m and 290 m east of the Highway)
increase in value to land comprising 15.9723 ha on the east and west of Highway by virtue of assessing that land at special rural zoning value ($88,200), rather than at rural value ($52,500) ie 31.9446 ha @ $35,700
(calculated as 14.476 ha of land west of Highway, plus 14.476 ha of land east of Highway, now valued at $88,200/ha reflecting development potential of special rural only, rather than at $110,000/ha, reflecting rural with potential for urban development, constituting a loss in value of $21,800/ha)
Injurious affection for total reduction in value of adjoining land (remaining difference after deducting value of taken land, and value of severance damage from total compensation represented by before and after value of Lot 203)
Injurious affection for total reduction in value of adjoining land (calculated as the sum of:
20% of 12.4464 ha @ $88,200/ha (for the land west of the Highway)
20% of 12.4464 ha @ $88,200/ha (for the land east of the Highway up to 190 m) and
20% of 6.6423 ha @ $52,500/ha (for the land east of the Highway between 190 m and 290 m)
Offset completely by betterment increase in value to land east and west of Highway by virtue of assessing at special rural zoning value rather than at rural value (that is, total of 24.8928 ha @ $35,700/ha (difference between $88,200/ha and $52,500/ha))
Injurious affection for total reduction in value of adjoining land (calculated as the sum of:
20% of 17.7608 ha @ $88,200/ha (for the land west of the Highway)
20% of 14.6053 ha @ $88,200/ha (for the land east of the Highway up to 190 m) and
20% of 7.6870 ha @ $52,500/ha (for the land east of the Highway between 190 m and 290 m)
Offset completely by betterment increase in value of land east and west of Highway by assessing at special rural zoning value (that is, total of 32.3661 ha @ $35,700/ha (difference between $88,200/ha and $52,500/ha))
1412 The plaintiffs sought solatium of 10% in this case, and the defendant did not dispute that the plaintiffs should be awarded an additional amount calculated as 10% of the amounts awarded under s 241(2) and s 241(7) of the LA Act.[1677]
1413 I add an additional amount under s 241(8) of the LA Act, as compensation for the taking without agreement, of 10% of the amount otherwise ordered.
1414 Accordingly, the compensation payable to the Kellihers under s 241 of the LA Act is as follows:
s 241(7)(a): Damage suffered due to the severing of the Remaining Land west of the Highway from the adjoining land
s 241(7)(b): Damage suffered due to a reduction of the value of the adjoining land (caused by the carrying out of the Highway, or the proposal to carry it out)
Less the value of any increase in the adjoining land by the carrying out of the Highway, or the proposal to carry it out (completely offsetting damage suffered)
1415 The interest rate applicable under s 241(11) of the LA Act is that which applied at the date of Taking, under s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA), namely 6% per annum. Accordingly, there will be an order that the defendant pay interest on the award at the rate of 6% per annum from the Date of Taking until 5 April 2007 (the date when the advance payment of compensation was made to the plaintiffs). No interest will be payable after the date on which the advance payment was made given that the advance payment exceeds the total compensation I have determined should be awarded.
1416 The parties should confer as to a minute of orders to give effect to these reasons.
[1] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (Beech J).
[2] ts 212. There was some confusion in the course of the trial as to whether all lots were owned by the Emmanuels or whether one or more lots were owned by the Mannion family. For present purposes, it matters not what the position was and I have proceeded on the basis that all of these lots were owned by the Emmanuels.
[4] See Land Administration Act 1997 (WA) s 179(b).
[5] Substituted Statement of Claim [36].
[6] Substituted Statement of Claim [37].
[7] Substituted Statement of Claim [38].
[8] Substituted Statement of Claim [39]; Substituted Defence [26].
[9] Plaintiff's Statement of Fact and Issues [13].
[11] Substituted Statement of Claim [10].
[12] Substituted Statement of Claim [11].
[15] Substituted Statement of Claim [13] - [14].
[18] Substituted Statement of Claim [18(a)].
[19] Substituted Statement of Claim [15].
[20] Substituted Statement of Claim [18(b)].
[21] Substituted Statement of Claim [17].
[22] Substituted Defence [3], [5], [7].
[24] Substituted Statement of Claim [18], [35].
[26] Substituted Statement of Claim [18], [21].
[29] Substituted Statement of Claim [18], [23].
[30] Substituted Statement of Claim [24].
[43] Substituted Defence [16(a)] - [16(c)].
[103] National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (formerly Hillier, Parker (Qld) Pty Ltd [2001] FCA 237; (2001) 183 ALR 700 [48] (Full Court).
[104] McKay v Commissioner of Main Roads [2013] WASCA 135.
[105] Defendant's Closing Submissions, 18.
[108] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [144] (Beech J), citing Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547, 570 (Mahoney JA).
[109] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [144] (Beech J), citing Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418, 431(Griffith CJ); Boland v Yates Property Corp Pty Ltd [1999] HCA 64; (1999) 167 ALR 575, 595 - 596 [79] (Gleeson CJ).
[110] Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418.
[111] Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418, 432 (Griffith CJ).
[112] Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418, 441 (Isaacs J).
[113] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [145] (Beech J).
[114] Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413, 436 [49] - [50] (McHugh J).
[115]Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259, 276 [51] (the Court).
[116] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [149] (Beech J), citing Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418, 440 - 441 (Isaacs J) and Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158 [25] (the Court).
[117] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [149] (Beech J), citing Mir v ValuerGeneral [2009] NSWLEC 1309 [43] - [45] (Brown C).
[118] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [149] (Beech J), citing Boland v Yates Property Corp Pty Ltd [1999] HCA 64; (1999) 167 ALR 575, 648 - 649 [265] - [269] (Callinan J).
[119] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [150] (Beech J).
[120] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [151] (Beech J), citing Boland v Yates Property Corp Pty Ltd [1999] HCA 64; (1999) 167 ALR 575, 580 [16] (Gleeson CJ), 654 [292] (Callinan J) and Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, 329 - 330 [281] - [287] (the Court); Arcus Shopfitters Pty Ltd v Western Australian Planning Commission [2002] WASC 174; (2002) 125 LGERA 180, 196 - 197 [70] - [75] (Pullin JA).
[121] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [152], [2229] (Beech J), referring to Boland v Yates Property Corp Pty Ltd [1999] HCA 64; (1999) 167 ALR 575, 652 - 654 [280] - [291] (Callinan J); Bronzel v State Planning Authority (1979) 21 SASR 513; (1979) 44 LGRA 34, 516 (Wells J); Coastal Estates Pty Ltd v Bass Shire Council [1993] VicRp 92; [1993] 2 VR 566; (1993) 79 LGERA 188, 577 (Gobbo J); ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447 [87] (the Court).
[122] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [153] (Beech J), citing Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 559 - 560, 576 - 578 (Wells J); Minister for the Environment v Florence (1979) 21 SASR 108; (1979) 45 LGRA 127, 116 - 117 (Wells J); Minister of Environment v Petroccia (1982) 30 SASR 333; (1982) 55 LGRA 244, 362 (Wells J); Kelly v Western Australian Planning Commission [2006] WASC 208 [157] - [158] (Simmonds J).
[123] McKay v Commissioner of Main Roads [No 7] [2011] WASC 22 [2226] - [2229] (Beech J), citing Coastal Estates Pty Ltd v Bass Shire Council [1993] VicRp 92; [1993] 2 VR 566; (1993) 79 LGERA 188, 576 - 577 (Gobbo J); ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447 [88] - [90] (the Court).
[124] Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 212 CLR 111, 120 [16] (the Court).
[125] Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 550 - 551 (Wells J); approved in Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [49] (McLure J, Anderson & Steytler JJ agreeing); and see McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2216] (Beech J).
[126] Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 550 - 551 (Wells J); approved in Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [49] (McLure J, Anderson & Steytler JJ agreeing); and see McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2216] (Beech J).
[127] Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 550 - 551 (Wells J); approved in Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [49] (McLure J, Anderson & Steytler JJ agreeing); and see McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2216] (Beech J).
[128] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2217] (Beech J), citing Duffy v The Minister for Planning [2003] WASCA 294; (2003) 129 LGERA 271 [25] (McLure J, Anderson & Steytler JJ agreeing); Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122; (2003) 27 WAR 403, 408 [21] (Pullin J).
[129] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2218] (Beech J), citing Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [51] (McLure J, Anderson & Steytler JJ agreeing).
[130] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2220] (Beech J), citing Arcus Shopfitters Pty Ltd v Western Australian Planning Commission [2004] WASC 85 [18] - [23] (Pullin JA).
[131] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2222] (Beech J), referring to ISPT Pty Ltd v Valuer General [2009] NSWCA 31; (2009) 165 LGERA 25, 33 [27] (Giles JA).
[132] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2221] (Beech J), citing AMP Henderson Global Investors Ltd v The Valuer General [2004] NSWCA 264; (2004) 134 LGERA 426, 440 [68] (Tobias JA).
[133] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2219] - [2220] (Beech J), citing Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [52] (McLure J, Anderson & Steytler JJ agreeing).
[134] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2223] (Beech J), referring to Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [51] (McLure J, Anderson & Steytler JJ agreeing).
[135] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2220] (Beech J).
[136] Closer Settlement Ltd v The Minister (1942) 17 LGR (NSW) 62, 65 (Roper J), cited with approval in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, 316 [213] (the Court); see also McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2224] (Beech J).
[137] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2224] (Beech J), citing Turner v Minister of Public Instruction [1956] HCA 7; (1956) 95 CLR 245, 268 (Dixon CJ), 15 Lorimer Street Pty Ltd v Secretary to the Department of Infrastructure (1997) 97 LGERA 239, 252 (Byrne J), Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, 316 [214] (the Court), Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [65] (McLure J, Anderson & Steytler JJ agreeing).
[138] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2234] (Beech J), citing Thomson v Valuer-General (1949) 17 LGR (NSW) 120 (Sugerman J).
[139] Minister for the Environment v Florence (1979) 21 SASR 108; (1979) 45 LGRA 127, 130 - 131 (Wells J); McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2232] (Beech J); see also Turner v Minister of Public Instruction [1956] HCA 7; (1956) 95 CLR 245, 264 (Dixon CJ).
[140] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2230] (Beech J).
[141] See 15 Lorimer Street Pty Ltd v Secretary to the Department of Infrastructure (1997) 97 LGERA 239, 253 (Byrne J), cited with approval in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, 316 [215] (the Court); McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2231] (Beech J).
[142] Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418, 441 (Isaacs J), cited in McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [155] (Beech J).
[143] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [155] (Beech J).
[144] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [159] (Beech J), citing ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447, 462 [57] (the Court).
[145] Commonwealth Custodial Services Ltd v Valuer-General (NSW) [2006] NSWLEC 400; (2006) 148 LGERA 38 [15] (Biscoe J) (quoted in McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [156] (Beech J)); adopted with approval by the Victorian Court of Appeal in ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447 [40]; see also Trandos v Western Australian Planning Commission [2001] WASCA 346; (2001) 117 LGERA 256 [72] (Anderson J, Wheeler J & Einfeld AJ agreeing).
[146] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [184] - [185] (the Court), cited in McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [157] (Beech J).
[147] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [158] (Beech J).
[148] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [307] (Beech J), citing Trandos v Western Australian Planning Commission [2001] WASCA 346; (2001) 117 LGERA 256 [73] (Anderson J, Wheeler J & Einfeld AJ agreeing); see also De Ieso v Commissioner of Highways (1981) 27 SASR 248; (1981) 47 LGRA 412, 253 (Wells J).
[149] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [161] (Beech J), citing Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGERA 98 [489] (Ipp JA); Mount Lawley Pty Ltd v Western Australian Planning Commission [2008] WASCA 158 [25] (the Court).
[150] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [307] [162] (Beech J), citing Cook v Roads and Traffic Authority of New South Wales [2007] NSWLEC 136 [12] (Jagot J); Coundrelis v Roads and Traffic Authority of New South Wales [2008] NSWLEC 72 [51] (Biscoe J); Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 113 [49] (Biscoe J); De Ieso v Commissioner of Highways [2004] NSWLEC 315; (1981) 27 SASR 248; (1981) 47 LGRA 412) 134 LGERA 195 [123] (Talbot J) (overturned on appeal, but not on this point).
[151] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [162] (Beech J).
[152] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [165] (Beech J), referring to The Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373, 391(PC); see also Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418, 442 (Isaacs J).
[153] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [164] (Beech J), citing Boland v Yates Property Corp Pty Ltd [1999] HCA 64; (1999) 167 ALR 575, 579 [12] (Gleeson CJ), 623 - 624 [174] (Hayne J); Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, 311 [182] (the Court).
[154] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [166] (Beech J), citing Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 434 (Moffitt P); Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156; (1991) 73 LGRA 47, 182 - 183 (Handley JA); see also Duffy v The Minister for Planning [2003] WASCA 294; (2003) 129 LGERA 271 [29] [31] (McLure J, Anderson & Steytler JJ agreeing).
[155] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [163] (Beech J), citing Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, 311 [183] (the Court).
[156] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [171] (Beech J).
[157] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [167] (Beech J), citing Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 544 - 545 (Wells J); Bronzel v State Planning Authority (1979) 21 SASR 513; (1979) 44 LGRA 34, 523 (Wells J); Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [76] (McLure J, Anderson & Steytler JJ agreeing); Tyler v Thomas [2006] FCAFC 6; (2006) 150 FCR 357, 370 [55] - [56] (Branson J).
[158] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [167] (Beech J), citing Bronzel v State Planning Authority (1979) 21 SASR 513; (1979) 44 LGRA 34, 523 (Wells J).
[159] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [168], [173] (Beech J).
[160] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [173] (Beech J).
[161] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [173] (Beech J).
[162] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [168] (Beech J), citing Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499, 593 [391] (the Court); Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [76] (McLure J, Anderson & Steytler JJ agreeing); Corporation of the City of Adelaide v City of Port Adelaide Enfield [2000] SASC 271; (2000) 110 LGERA 153 [88] - [89] (Bleby J).
[163] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [170] (Beech J), although noting Downie v Sorell Council [2005] TASSC 74; (2005) 141 LGERA 304 [33] (Slicer J).
[164] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [168] (Beech J), citing Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 545 (Wells J).
[165] McKay v Commissioner of Main Roads [2013] WASCA 135 [154] - [163] (Murphy JA, Martin CJ & Buss JA agreeing).
[166] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [175] - [176] (Beech J), referring to Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of South Australia Ltd [1947] HCA 10; (1947) 74 CLR 358, 373 - 374 (Dixon J); approved in Boland v Yates Property Corp Pty Ltd [1999] HCA 64; (1999) 167 ALR 575, 601 [100] (Gaudron J), 603 [111] (Gummow J), 669 [356] (Callinan J); see also Cook & Edwards v City of Stirling (1991) 4 WAR 469, 473 (Anderson J).
[167] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [177] (Beech J), referring to Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of NSW (1998) 101 LGERA 30, 50 (Bignold J).
[168] Sydney Water Corp v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 [3] - [4] (Allsop P), (Sackville AJA agreeing [191]), although cf [140] - [148] (Tobias JA); applied in Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWLEC 219; (2009) 173 LGERA 155 [30] (Biscoe J).
[169] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [377] (Beech J), citing Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 [68] (Basten JA, Beazley & Tobias JJA agreeing).
[170] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [337] - [338] (Beech J), referring to Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413, 436 [49] - [50] (McHugh J), and Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418, 440 (Isaacs J).
[171] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [339] - [343] (Beech J), citing Longworth v Commissioner of Stamp Duties (1953) 53 SR (NSW) 342, 348 (Owen J); Multari v Roads and Traffic Authority (NSW) [2004] NSWLEC 649 [30] (Talbot J); Maidment v Roads and Traffic Authority of NSW [2006] NSWLEC 606; (2006) 153 LGERA 249 [47] (Biscoe J); Gosford Shire Council v Green (1980) 48 LGRA 201, 207, 210 - 211 (Reynolds JA); Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547; (1981) 50 LGRA 334, 576 (Mahoney JA); Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGERA 98 [157] - 158] (Santon JA in dissent).
[172] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [320] (Beech J), citing Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426, 436; Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [79] (McLure J, Anderson & Steytler JJ agreeing); Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547; (1981) 50 LGRA 334, 576 (Mahoney JA).
[173] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [320] (Beech J), referring to Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547; (1981) 50 LGRA 334, 576 (Mahoney JA).
[174] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [357], [377] (Beech J), citing McDonald v Roads & Traffic Authority (NSW) [2009] NSWLEC 105; (2009) 169 LGERA 352 [26] (Biscoe J); and Caruso v Sydney Water Corp [2008] NSWLEC 320 [83] (Pain J).
[175] McKay v Commissioner of Main Roads [No. 7] [2011] WASC 223 [377], citing Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547; (1981) 50 LGRA 334, 576 - 577 (Mahoney JA, cf 558 (Hope JA)); Multari v Roads and Traffic Authority (NSW) [2004] NSWLEC 649 [26] - [37] (Talbot J); Sorell Council v Downie [2005] TASSC 2 (Evans J); Hyam A, The Law Affecting Valuation of Land in Australia (4th ed, 2009), 502.
[176] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [371] - [372], [377], referring to Chino Pty Ltd v Transport Infrastructure Development Corp [2006] NSWLEC 768; (2006) 153 LGERA 136 [95] [106] (Pain J).
[179] Defendant's Statement of Facts & Issues [16].
[181] Point Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565, 572.
[182] Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499 [15] (the Court).
[183] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [198]; Re Startrail Pty Ltd and Main Roads Western Australia [2009] WASAT 243 [42] (Chaney P). Section 36(2b) of the Metropolitan Region Town Planning Scheme Act 1959 (WA) provided that the value of the land compulsorily acquired which was to be provided as compensation was 'the value thereof on the date the Commission elects to acquire the land ... and that value shall be determined without regard to any increase or decrease, if any, in value attributable wholly or in part to the Scheme'.
[184] Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499 [17] - [18] (the Court).
[185] Housing Commission (NSW) v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196, 206 - 207 (Jacobs J).
[186] Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499, 510 - 511 [29] - [30] (the Court).
[187] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [196] (Beech J), referring to Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499, 510 511 [29] - [30] (the Court).
[188] Boland v Yates Property Corp Pty Ltd [1999] HCA 64; (1999) 167 ALR 575 [174] (Jayne J); Leichhardt Council v Roads & Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439 [35] (Spigelman CJ); Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58 (Edelman J); see also Cerini v Minister for Transport [2001] WASC 309 [224] (Parker J).
[189] Plaintiffs' Closing Submissions [163] - [170].
[190] Defendant's Supplementary Closing Submissions [4].
[191] Defendant's Closing Submissions [60].
[192] Plaintiffs' Supplementary Submissions [4.1.3].
[193] Plaintiffs' Opening Submissions [194].
[194] Thiess v Collector of Customs [2014] HCA 12; (2012) 250 CLR 664 [22] - [23] (the Court); CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ).
[196] Oxford English Dictionary Online.
[197] Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, 527 (Gibbs CJ, Mason, Wilson, Brennan & Dawson JJ).
[198] Oxford English Dictionary Online.
[200] Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58, 92 [238] (Edelman J).
[201] Oxford English Dictionary Online.
[203] As defined in Land Administration Act 1997 (WA) s 3.
[204] See Land Administration Act 1997 (WA) s 241(1), s 241(2), s 241(3), s 241(6) (in its reference to 'claimant' which must take its meaning from s 241(1)), s 241(7), s 241(10), s 241(11).
[205] Merrick Tyler v Commissioner for Main Roads [2014] WASC 166; (2014) 201 LGERA 359 [17] (Le Miere J).
[209] Plaintiffs' Supplementary Submissions [3.13.2].
[210] Plaintiffs' Supplementary Submissions [7.5].
[211] Later referred to as the Public Works Act 1902 (WA).
[212] Western Australia, Parliamentary Debates, Legislative Council, 6 December 1995, 12405 (George Cash, Minister for Lands).
[213] Western Australia, Parliamentary Debates, Legislative Assembly, 27 June 1996, 3468/1, 3472/1, 3473/1 (Graham Kierath, Minister for Lands).
[214] Western Australia, Parliamentary Debates, Legislative Council, 26 March 1997, 909/2, 914/1 (Max Evans, Minister for Finance).
[215] Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336, 350; Hall v Jones [1942] NSWStRp 22; (1942) 42 SR (NSW) 203, 208 (Jordan CJ); see also Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78] in relation to taking consequences of a particular construction into account.
[216] Cerini v Minister for Transport [2001] WASC 309.
[217] Cerini v Minister for Transport [2001] WASC 309 [225] (Parker J).
[218] Cerini v Minister for Transport [2001] WASC 309 [228], [230] (Parker J).
[219] Cerini v Minister for Transport [2001] WASC 309 [234] (Parker J).
[220] To 'cause' something means to bring it about, or to induce or produce it, while one thing is 'attributable' to another if it is owing to or produced by that other thing: see Oxford English Dictionary Online.
[221] Defendant's Supplementary Closing Submissions [2].
[222] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2805] (Beech J), citing Cerini v The Minister for Transport [2001] WASC 309 [287] (Parker J).
[232] List of Outstanding Objections dated 14 April 2014.
[235] ts 517 (and similarly, in relation to the concurrent evidence of the valuers: ts 1735).
[237] See, eg, ts 406 - 408, ts 603 - 604.
[247] ts 490 (Mr O'Neill), see also ts 517 (Mr O'Neill).
[263] Defendant's Closing Submissions, 156.
[264] Defendant's Closing Submissions, 157.
[265] See Substituted Statement of Claim, dated 22 January 2014 [9]; Substituted Defence, dated 20 February 2014 [2].
[267] Relevant provisions in the Planning and Development Act 2005 (WA) commenced operation prior to the Date of Taking.
[275] Planning and Development Act 2005 (WA) s 14(g) - (h).
[282] See Planning and Development Act 2005 (WA) s 33. See also Interpretation Act definition of subsidiary legislation which includes such schemes.
[283] The expert planners all agreed that this was so: ts 281.
[284] Planning and Development Act 2005 (WA) s 4 (definition of 'region') and sch 4.
[285] ts 281 (evidence of Mr Allen, from which none of the expert planners dissented)n see also ts 281 (evidence of Mr Ferraro).
[287] As for example, with a proposal to amend the PRS which was made on behalf of the Kellihers in June 2012, a copy of which formed part of the witness statement of Mr Kerr: see Exhibit C1, Appendix 4; see also ts 585 (Mr Kerr).
[292] Planning and Development Act 2005 (WA) s 56. In the case of amendments to a region planning scheme which the Minister considers to be minor amendments, a more streamlined approval process is involved (see Planning and Development Act 2005 (WA) s 57 - s 62). However, there was no suggestion that that approval process would be appropriate in the present case.
[294] See Planning and Development Act 2005 (WA) s 68. See also Interpretation Act definition of 'subsidiary legislation' which includes such schemes.
[298] Town Planning Regulations 1967 (WA) reg 13(2).
[299] Town Planning Regulations 1967 (WA) reg 14(1).
[301] Planning and Development Act 2005 (WA) s 84; see also Town Planning Regulations 1967 (WA) reg 15.
[302] Town Planning Regulations 1967 (WA) reg 17(2).
[303] Town Planning Regulations 1967 (WA) reg 18.
[304] Town Planning Regulations 1967 (WA) reg 19.
[307] Town Planning Regulations 1967 (WA) reg 20.
[308] Planning and Development Act 2005 (WA) s 87(3), s 87(4B); see also Town Planning Regulations 1967 (WA) reg 23.
[310] See, eg, Planning and Development Act 2005 (WA) s 77(1).
[313] Planning and Development Act 2005 (WA) s 124(2). The Minister may also direct a local government to prepare a town planning scheme or an amendment to a town planning scheme to ensure its consistency with a region planning scheme: Planning and Development Act 2005 (WA) s 125(1).
[316] Planning and Development Act 2005 (WA) s 126(6). Each of the expert planners accepted that the Planning and Development Act 2005 (WA) operated in this way: ts 286.
[319] Town Planning Regulations 1967 (WA) reg 12A(1).
[320] Town Planning Regulations 1967 (WA) reg 12A(3).
[321] Town Planning Regulations 1967 (WA) reg 12B(1).
[322] Town Planning Regulations 1967 (WA) reg 12B(4), reg 12B(5).
[323] Town Planning Regulations 1967 (WA) reg 13(1).
[325] ts 293 - 294 (Mr O'Neill, Mr Moran, Mr Allen).
[326] ts 291 - 292 (Mr Kerr), ts 293 - 294 (Mr O'Neill), ts 294 (Mr Moran, Mr Allen).
[332] ts 296 (Mr Allen, Mr O'Neill agreeing: ts 296). The other expert planners did not dissent.
[344] Plaintiffs' Written Outline of Opening Submissions [46].
[349] Exhibit A32, 25, Map 2 and Table 2.
[366] See ts 302, 305 (Mr O'Neill), ts 302 (Mr Moran), ts 304 (Mr Allen).
[374] ts 302 (Mr Moran), ts 302 (Mr O'Neill).
[375] See ts 306 (Mr O'Neill, Mr Allen) in relation to Network City.
[378] Exhibit A38 (and see also Exhibit A47) cl 7.1.
[379] Exhibit A38 (and see also Exhibit A47) clause 5.
[393] Exhibit A26, iii (Foreword by Minister for Planning).
[394] Exhibit A26, iii (Foreword by Minister for Planning).
[403] Plaintiffs' Opening submissions [12].
[404] Plaintiffs' Opening submissions [20].
[442] Exhibit A33, cl 3 of the Scheme.
[443] Exhibit A33, cl 5 of the Scheme.
[447] Plaintiffs' Opening Submissions [23].
[461] ts 321 - 322 (Mr O'Neill), ts 322 (Mr Kerr), ts 322 - 323 (Mr Allen), ts 323 (Mr Ferraro). Mr Moran did not disagree with the explanation.
[467] Chronology of Events dated 30 July 2014.
[522] Exhibit G; see also ts 356 (Mr Allen).
[533] ts 629 (Mr O'Neill), ts 630 (Mr Moran), ts 630 (Mr Allen), ts 630 (Mr Kerr), ts 630 - 632 (Mr Ferraro).
[575] ts 591 (Mr Allen) (none of the expert planners disagreed with Mr Allen's evidence on this issue).
[594] Exhibit T1, Appendix H, 14 - 15.
[599] Exhibit U, 3 - 4; Attachment SMH2 - SMH3.
[601] Substituted Statement of Claim [28].
[602] Substituted Statement of Claim [30].
[603] Substituted Statement of Claim [29].
[609] Substituted Statement of Claim [31].
[610] Substituted Statement of Claim [32].
[611] Substituted Statement of Claim [34(a)].
[612] Substituted Statement of Claim [32].
[613] Substituted Statement of Claim [34(c)].
[614] Substituted Statement of Claim [33].
[615] Substituted Statement of Claim [34].
[616] Substituted Statement of Claim [34(b)].
[617] Substituted Statement of Claim [34(j)].
[618] Substituted Statement of Claim [33].
[619] Substituted Statement of Claim [34(j)].
[620] Substituted Statement of Claim [34(i)].
[621] Substituted Statement of Claim [34(k)].
[622] Substituted Statement of Claim [34(k)].
[623] Substituted Statement of Claim [34(k)].
[624] Substituted Defence [16(a) - (c)].
[628] Substituted Statement of Claim [34(d)].
[629] Substituted Statement of Claim [34(b)].
[630] Substituted Statement of Claim [34(e)].
[631] Substituted Statement of Claim [33], [34(d)] and [34(e)].
[632] Substituted Statement of Claim [34(h)].
[633] Substituted Statement of Claim [34(k)].
[634] Substituted Statement of Claim [34(f)].
[635] Substituted Statement of Claim [34(g)].
[647] Exhibit A17, 66 [7.24] - [7.25].
[650] Exhibit A19, 97 [11.2.8], 103 [11.3.4].
[652] Exhibit A19, 103 - 104 [11.3.4] - [11.3.11].
[684] Exhibits A268, A400; see also Exhibit A267.
[737] Exhibit A291. The copy in evidence is not dated. Handwritten amendments on the document are dated 2 August.
[738] The Minister for Planning and Infrastructure wrote to the Minister for Housing and Works in October 2004, expressing some of the concerns set out in the reply: see Exhibit A313.
[743] Exhibits A292, A296, A297, A313.
[777] Exhibits A190, A316, A317, A348.
[804] It appears that six scenarios were initially envisaged (Exhibit A368) but a seventh was subsequently included (see Exhibit A370)
[826] That road was referred to as 'Road A'.
[839] Exhibit P, 4. Dr Montgomery explained that, although the document is dated 20 April 2007, it was prepared and completed by him on 25 July 2006: Exhibit A134.
[848] Plaintiffs' Closing Submissions [168].
[874] ts 725 (Mr O'Neill), ts 726 (Mr Allen), ts 726 (Mr Kerr), ts 727 (Mr Ferraro).
[886] See Plaintiffs' Closing Submissions [166].
[887] Plaintiffs' Closing Submissions [164].
[889] ts 816. Mr O'Neill expressed his evidence as disagreeing with the proposition that the Southern Sectors Review would have occurred at the same time, whether or not the Highway had been planned or announced, but he explained that his disagreement pertained to the timing of the Southern Sectors Review, not to whether it would have been undertaken in any event.
[899] ts 734 (Mr O'Neill), ts 734 (Mr Allen), ts 734 (Mr Kerr), ts 736 (Mr Ferraro). See also ts 739 (Mr O'Neill, Mr Allen, Mr Kerr), ts 740 (Mr Ferraro).
[913] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [19] (Beech J).
[919] Exhibit A56, 22; see also Exhibit A59.
[934] The expert planners referred to the RRF land as the McKay land.
[951] Defendant's Closing Submissions, 14.
[952] Plaintiffs' Closing Submissions [273].
[953] Plaintiffs' Closing Submissions [272].
[954] ts 469 - 474 (Mr Allen), see also ts 767 - 772.
[956] Cf Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGERA 98 [489] (Ipp JA, Giles JA agreeing).
[957] ts 366 (Mr Ferraro), ts 368 (Mr Allen), ts 367 (Mr Kerr), ts 371 (Mr Moran), see also ts 372 (Mr O'Neill).
[958] ts 366 (Mr Ferraro), p368 (Mr Allen), ts 367 (Mr Kerr), ts 371 (Mr Moran), see also ts 372 (Mr O'Neill).
[960] ts 367 (Mr Kerr), ts 369 (Mr Allen), ts 372 (Mr O'Neill), see also ts 366 (Mr Ferraro).
[962] Exhibit G; see also ts 307 - 308.
[969] ts 798. Mr O'Neill agreed with the proposition that the WAPC would 'not approve' an application for rezoning pending the completion of the Southern Sectors Review. In their (subsequent) evidence the other planning experts preferred to say that the WAPC would defer any decision. It was not clear that Mr O'Neill intended to suggest that the WAPC would in fact make a positive decision to 'not approve' such an application. It seems more likely that what he meant was that the WAPC would not make a decision (to approve) the application to rezone until after the Southern Sectors Review had been completed.
[970] ts 799 (Mr Moran, Mr Kerr, Mr Ferraro).
[971] ts 799 (Mr Allen, and to similar effect, Mr O'Neill).
[974] ts 824, see also ts 450 (Mr O'Neill); ts 450 (Mr Allen, Mr Kerr); ts 456 457 (Mr Moran).
[981] Defendant's Closing Submissions [93].
[1026] Exhibit G; see also ts 449 (Mr Moran).
[1068] ts 318 (Mr O'Neill), ts 318 (Mr Moran), ts 318 (Mr Allen).
[1069] ts 319 (Mr Kerr), ts 319 (Mr Ferraro).
[1078] ts 403 (Mr O'Neill), ts 405 (Mr Moran), ts 405 (Mr Allen), ts 405 (Mr Kerr), ts 406 (Mr Ferraro).
[1084] ts 819 (Mr O'Neill), ts 820 (Mr Moran).
[1089] ts 372 (Mr Moran), ts 372 (Mr O'Neill).
[1090] ts 367 (Mr Ferraro), ts 367 (Mr Kerr), ts 369 (Mr Allen).
[1091] ts 372 (Mr Moran), ts 372 (Mr O'Neill).
[1096] ts (Mr Ferraro), ts 374 (Mr Kerr), ts 375 (Mr Allen), ts 377 (Mr Moran), ts 378 (Mr O'Neill).
[1097] ts 379 - 380 (Mr O'Neill), ts 380 (Mr Ferraro), ts 380 (Mr Kerr), ts 380 (Mr Allen).
[1108] ts 403 (Mr O'Neill), ts 405 (Mr Moran), ts 405 (Mr Allen).
[1116] ts 289 - 290 (Mr Ferraro), ts 291 - 292 (Mr Kerr).
[1119] Defendant's Closing Submissions [132], [136].
[1132] ts 392 (Mr Moran), ts 392 (Mr O'Neill).
[1149] ts 668 (Mr Ferraro). None of the planning experts dissented from this view.
[1152] ts 797 (Mr Moran, Mr Ferraro).
[1154] ts 645 (Mr Ferraro), ts 647 (Mr Allen), ts 648 (Mr O'Neill), ts 648 (Mr Moran), ts 649 (Mr Kerr).
[1155] See Exhibit A86 (foreword to the MDP Report).
[1168] ts 675 (Mr Allen, Mr Moran, Mr O'Neill, Mr Ferraro, Mr Kerr).
[1170] ts 668 - 669 (Mr Ferraro), ts 669 (Mr Kerr), ts 669 (Mr Allen), ts 670 (Mr O'Neill).
[1172] ts 595 (Mr Ferraro), ts 607 (Mr Allen), ts 610 (Mr O'Neill).
[1194] ts 604 (Mr Ferraro), ts 607 (Mr Allen), ts 610 (Mr O'Neill).
[1195] ts 604 (Mr Ferraro), ts 607 (Mr Allen), ts 610 (Mr O'Neill).
[1196] ts 603, ts 605 (Mr Ferraro), ts 605 - 607 (Mr Allen)
[1198] ts 609 (Mr Moran), ts 609 - 610 (Mr Allen).
[1199] ts 568 - 669 (Mr Ferraro), ts 669 (Mr Kerr), ts 669 (Mr Allen), ts 670 (Mr O'Neill).
[1219] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 362 [63] (Hayne, Kiefel & Bell JJ) and the cases cited by their Honours; 371 [92] (Gageler J).
[1240] ts 418 (Mr Kerr), ts 424 (Mr Ferraro).
[1246] ts 540 (Mr Kerr), ts 552 (Mr Allen), ts 564 (Mr O'Neill), ts 550 (Mr Ferraro).
[1248] Exhibit C1, 40; ts 539 (Mr Kerr).
[1304] Exhibit A42 (WAPC Policy No DC 2.5), dated June 1998.
[1305] Exhibit A42 (WAPC Policy No DC 2.5), cl 3.3.1.
[1313] Exhibit C1 [256]; ts 525 (Mr Kerr).
[1315] Plaintiffs' Closing Submissions, 123, dated 24 July 2014.
[1333] Defendant's Closing Submissions, 22.
[1334] ts 1485 (Mr Wilson); ts 1486 (Mr Cameron); ts 1487 (Mr Zucal).
[1335] Exhibit T4, 2, Exhibit T2, 7 - 8.
[1344] See, eg, Exhibit W1, 43 (Mr Cameron); Exhibit Y1, 100 (Mr Wilson).
[1346] See, eg, Exhibit Z1, 62 (Mr Zucal) (in relation to the land west of the Highway, in the valuation with the Highway).
[1347] See, eg, Exhibit Y1, 97 (Mr Wilson), Exhibit Z1, 33 (Mr Zucal).
[1424] Exhibit V1, 119 (Attachment JL9).
[1541] He relied on Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122; (2003) 27 WAR 403 [27] (Pullin J): see Exhibit Z1, 36.
[1572] Plaintiffs' Closing Submissions, 89, dated 24 July 2014.
[1573] Ms Le Fevre's Responsive Report [6]; ts 1179 - 1180 (Ms Le Fevre).
[1605] Defendant's Closing Submissions, 152.
[1616] Defendant's Closing Submissions, 199.
[1617] Exhibit Y3, 14. See also Exhibit Z3, 13 (Mr Zucal).
[1619] Exhibit Y3 [112] - [118], Exhibit Z4 [111] - [116].
[1621] Exhibit V1 [305] - [307], Exhibit EE, 83; ts 1633 - 1635.
[1629] Defendant's Closing Submissions, 154.
[1633] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2438].
[1634] Plaintiffs' Closing Submissions, 94, dated 24 July 2014.
[1640] Exhibit V2, 287; ts 1727 (Ms Le Fevre).
[1642] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2624].
[1643] Plaintiffs' Closing Submissions, 96, dated 24 July 2014.
[1644] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [2612].
[1649] Plaintiffs' Closing Submissions, 90, dated 24 July 2014.
[1650] Plaintiffs' Closing Submissions, 91, dated 24 July 2014, referring to ts 1683.
[1654] Plaintiffs' Closing Submissions, 91 - 92, dated 24 July 2014.
[1655] Plaintiffs' Closing Submissions, 91, dated 24 July 2014, referring to ts 1708.
[1658] Exhibit A134, Attachment 6; ts 1710.
[1660] Plaintiffs' Closing Submissions, 127, dated 24 July 2014.
[1661] For example, Exhibit Y1, 59, Exhibit Z1, 29 - 30.
[1666] Plaintiffs' Closing Submissions, 74, dated 24 July 2014.
[1667] Plaintiffs' Closing Submissions, 74 - 75, dated 24 July 2014.
[1668] Plaintiffs' Closing Submissions, 76, dated 24 July 2014.
[1669] Plaintiffs' Closing Submissions, 77, dated 24 July 2014.
[1670] Plaintiffs' Closing Submissions, 77 - 78, dated 24 July 2014.
[1671] Plaintiffs' Closing Submissions, 78, dated 24 July 2014.
[1672] Plaintiffs' Closing Submissions, 80, dated 24 July 2014.
[1675] Plaintiffs' Closing Submissions, 80, dated 24 July 2014.
(1991) 4 WAR 469
(2001) 183 ALR 700
(2008) 233 CLR 259
(2004) 29 WAR 273
(1973) 6 SASR 541
(2006) 148 LGERA 38
(1991) 24 NSWLR 156
(1998) 101 LGERA 30
(2006) 153 LGERA 249
(2006) 149 LGERA 439
(2012) 186 LGERA 58
(2012) 250 CLR 664
(1998) 194 CLR 355
(1985) 156 CLR 522
(2013) 249 CLR 332
(2005) 141 LGERA 304
(1947) 74 CLR 358
(2009) 170 LGERA 298
(2009) 173 LGERA 155
(2006) 153 LGERA 136
(1978) 140 CLR 196
(2008) 20 VR 447
(1979) 21 SASR 108
(1982) 30 SASR 333
(2003) 212 CLR 111
(2003) 27 WAR 403
(2009) 165 LGERA 25
(2004) 134 LGERA 426
(1956) 95 CLR 245
(2001) 117 LGERA 256
(1981) 27 SASR 248
(2004) 135 LGERA 98
(2006) 150 FCR 357
(1907) 5 CLR 418
(1981) 27 SASR 258
(1999) 167 ALR 575
(1999) 199 CLR 413
(2002) 125 LGERA 180
(1979) 21 SASR 513
(1993) 79 LGERA 188
(2003) 129 LGERA 271
(1997) 97 LGERA 239
(2007) 34 WAR 499
(2000) 110 LGERA 153
(2009) 169 LGERA 352
(1997) 187 CLR 384
(2014) 201 LGERA 359
(1975) 132 CLR 336