Supreme Court of WA|2010-10-15|Before: Beech J

McKAY -v- COMMISSIONER OF MAIN ROADS [No 5] [2010] WASC 273 (15 October 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : McKAY -v- COMMISSIONER OF MAIN ROADS [No 5] [2010] WASC 273

Practice and procedure - Expert evidence - Proposed questions for agenda of concurrent expert evidence - Whether questions should be permitted - Whether questions were part of plaintiffs' case as articulated

First Defendant : Mr K M Pettit SC & Ms F B Seaward

Second Defendant : Mr K M Pettit SC & Ms F B Seaward

First Defendant : State Solicitor for Western Australia

Second Defendant : State Solicitor for Western Australia

McKay v Commissioner of Main Roads [No 4] [2010] WASC 272

(These reasons are an edited version of reasons delivered in an unpublished format on 16 August 2010.)

1 The planners' general concurrent evidence session was due to commence on 12 August 2010. The day before that, a significant issue emerged about whether a particular question could be included in the agenda for that session. The issue was not of a housekeeping nature about the best way that the evidence could be adduced at the concurrent evidence session. Rather, the issue reflects fundamental differences of view about what is and is not part of the plaintiffs' case.

2 It is, to say the least, most regrettable that an issue of this character emerges at this late stage, the ninth week of the trial and nine months after the plaintiffs completed an opening of two weeks' duration.

3 It is agreed that the first question in the agenda is whether, assuming that the subject land, lots 191 and 192, was not already zoned urban, it would have been included in the Inner Peel Region Structure Plan (IPRSP) in 1996-1997 as future urban and, if so, what category. (The question whether, but for the proposed public works, the subject land would have been rezoned to urban prior to the IPRSP was the primary question for the 1990s planners' concurrent session: see McKay v Commissioner of Main Roads [No 4] [2010] WASC 272).

4 It is also agreed that the next question is whether, assuming lots 191 and 192 were included as future urban in the IPRSP, they would have been zoned urban or urban deferred in the Peel Region Scheme (PRS) in 2003 or by amendment of the PRS before July 2006.

5 It is the third proposed question that is in issue. That question is in the following terms:

If lots 191 and 192 were not included as 'future urban' in the IPRSP, would they have been zoned urban or urban deferred in the PRS in 2003, or by amendment of the PRS before July 2006?

6 It can be seen that proposed question 3 has two limbs. In reality, it involves two questions. First, if the subject land was not future urban in the IPRSP, would it have been zoned urban or urban deferred in the PRS in 2003? Secondly, if not, would it have been zoned urban or urban deferred by amendment of the PRS some time between 2003 and July 2006?

7 The defendants object to question 3 on the ground that it involves matters that are not part of the plaintiffs' case, as it has been articulated.

8 They also object on the ground that it involves a question on which the plaintiffs' planners have not expressed in writing any reasoned opinion. Consequently, the defendants submit, the plaintiffs' planners do not '[have] a written report' on the question, and so are not permitted to express an opinion, given the agreed basis of the concurrent evidence session. That agreed basis is explained in McKay v Commissioner of Main Roads [No 4].

9 It is necessary to say something about the history of the case, and the manner of articulation of the plaintiffs' case.

10 The plaintiffs' primary case is that, but for the proposed public works, the subject land would have been zoned urban at the date of taking in July 2006; see par 20 of the statement of claim and par 2 of the reply. No particulars of those paragraphs were sought.

11 The plaintiffs' statement of issues, facts and contentions filed 28 August 2009 also made it plain that the plaintiffs' contend that, but for the proposed public works, the land would have been zoned urban as at July 2006. The statement of issues, facts and contentions did not attempt to identify any particular time at which or period during which the land would, but for the proposed public works, have become zoned urban. The nub of the plaintiffs' contentions was that, at the time of taking, the land would either have been zoned urban or it would have had a high potential to be rezoned to urban in the very short term.

12 The plaintiffs opened their case at considerable length. Following that, in the course of the defendants' opening in November 2009, the defendants complained that the plaintiffs' case was not adequately articulated and identified. Among other things, the defendants contended that the plaintiffs' case did not identify a particular point in time or period at which it was contended by the plaintiffs that, but for the proposed public works, the land would have become zoned urban. That was necessary, the defendants submitted, because different planning considerations and instruments, facts and circumstances, were applicable at different periods from, say, 1990 through to the taking in 2006.

13 In the course of exchange with senior counsel for both parties, the court requested from the plaintiffs, and the plaintiffs agreed to provide, a document that set out what changes the plaintiffs said there would have been, assuming no proposed public works, in any planning documents or other facts, with a statement of the reasoning for each such change (ts 1433 - 1447). What was requested involved articulation of the reasoning for changes in the hypothetical scenario (as against the actual historical situation) by reference to a series of points in time or periods (see, for example, ts 1436 - 1438).

14 On 19 November 2009, the last day of the trial before it adjourned until July 2010, the plaintiffs provided a document of that date entitled 'Changes in Documents and Events that the Plaintiffs say Would Probably have Occurred but for the Proposed Public Works' (the Changes Document).

(a) its purpose was to summarise what changes to facts and planning documents the plaintiffs hypothesised there would have been, but for the proposed works, and the reasons which the plaintiffs say support each of those hypotheses [23]; and

(b) it was not intended to be a pleading or pleading like document or to override or restrict the evidence of the experts [23].

16 The Changes Document contended that the plaintiffs would have engaged an experienced planner in 1992, alternatively in 1994, to progress the rezoning of lots 191 and 192 to urban and that by 1996 or 1997 an amendment of the Town Planning Scheme to that effect would have been achieved [34], [40] - [41]. Paragraph 42 states that 'in that case' the IPRSP would have included lots 191 and 192 as part of the proposed urban village of Ravenswood. Consequently, the PRS would have shown lots 191 and 192 as urban [43].

17 The Changes Document states, as a further alternative, that on the hypothesis that the subject land was zoned rural or urban deferred in the PRS as at July 2006, the purchaser would have considered it was likely to be rezoned to urban in a short time.

18 It can be seen that the Changes Document identified and articulated alternative strands to the plaintiffs' case. It did not identify an alternative that, assuming the subject land was rural in the IPRSP, it would have been rezoned to urban some time from 1997 to 2003 or before 2006.

19 In December 2009 an agreed statement of issues was filed. Issue 17 in that document made it clear that there was an issue between the parties as to whether the plaintiffs were required to identify a particular date or period during which they contended that the land would have been zoned urban.

20 The Changes Document did not articulate, as a distinct alternative, that, if not rezoned to urban before 1996, the subject land would anyway have been shown in the IPRSP as future urban. However, I understood from the plaintiffs' opening and from Mr Butterly's report of April 2008, that contention to be an alternative strand of the plaintiffs' case. Consequently, at the directions hearing on 9 December 2009, I raised the question of whether that contention was an alternative part of the plaintiffs' case. Senior counsel for the plaintiffs confirmed that it was (ts 2291).

21 At the directions hearing on 9 December 2009, I then referred to the issue between the parties as to whether the plaintiffs were bound by the Changes Document. I stated that I was not then minded to suggest that that issue required resolution at that stage. I suggested if the plaintiffs ultimately articulate their case in a way that is not found in the Changes Document and if the defendants then protested, then the merits of the protest and the question whether the plaintiffs were bound by the Changes Document would fall for consideration (ts 2292). Neither counsel sought any ruling at that stage.

22 I observed that it was conducive to clarity, and to assisting the court, to ensure that the plaintiffs' case is clearly articulated, so that if there were alternative strands of the plaintiffs' case that were not articulated in the Changes Document then they should be articulated at the earliest time that the plaintiffs identified any such strand. I pointed out that there were potentially questions about whether the plaintiffs' case included another element. That other element was whether the plaintiffs' case contended that, if the subject land was not urban in the IPRSP, subsequently it would have been zoned urban. I suggested that that was not articulated in the Changes Document, but noted that it appeared to be stated in the second part of answer 2.4 of the planners' joint statement of February 2009 (ts 2293). Counsel for the plaintiffs stated in response that the question whether the plaintiffs' case included this alternative element would be examined.

23 Regrettably, it appears that that has not occurred.

24 In my view, following the exchanges on 9 December 2009, the defendants were entitled to expect that any alternative strand of the plaintiffs' case that was not referred to in the Changes Document would be articulated as soon as it was identified by the plaintiffs. In particular, the question of whether the plaintiffs put an alternative case that if the land was not urban in the IPRSP, it would have been urban by 2006 was specifically raised. The defendants were, I think, entitled to infer from the plaintiffs' subsequent silence on the point that this was not a part of the plaintiffs' case.

25 The trial recommenced on 19 July 2010. On 21 July 2010 counsel for the plaintiffs opened the plaintiffs' case. The purpose of the opening was to articulate the additional material relied on by the plaintiffs in the context of the plaintiffs' case as a whole. The plaintiffs' additional evidence did not relate to the question now in contention. Nothing was said in the plaintiffs' opening about that question.

26 In the course of the defendants' opening on 22 July 2010, senior counsel submitted that it was not now open to the plaintiffs to articulate a case that, assuming the land was shown as rural in the IPRSP, it would have been rezoned to urban some time after 1997. I referred to the plaintiffs' approach that attempted to keep all their options open, suggesting that the position reached in 2009 appeared to be that if the case was articulated in a way that the defendants say has not previously been articulated, the defendants will object. (See ts 2928). The defendants reiterated their position (ts 2930). Nothing further was said by either counsel.

27 The defendants now submit that proposed question 3 gives rise to prejudice to them and ought not be permitted.

28 Although not bearing on this application, I note that the joint planners' report of their conferral in July 2010 does not include consideration of either limb of proposed question 3.

29 Against the background of the history I have outlined, the defendants submit that:

(a) the plaintiffs ought not now be permitted to seek to advance the case that proposed question 3 involves;

(b) the plaintiffs have not articulated any such case, despite having had ample opportunity to do so;

(d) the defendants may learn, in the course of oral evidence in the pending concurrent evidence session, of a chain of reasoning and articulated relevant circumstances, of which they have had no notice;

(e) further, the defendants will not have had a fair opportunity to conduct their own investigations into relevant facts and circumstances at any time or period made relevant by the proposed question. Because there has been no previous articulation of this case, the defendants have not needed to conduct, and have not conducted, such investigations.

30 The plaintiffs' submissions start with the proposition that their case has always been that the subject land would have been zoned urban at 2006. That proposition is not in doubt.

31 The plaintiffs submitted that 'there is nothing in the witness statements of the plaintiffs' planners which excludes the possibility of the subject land having been zoned urban or urban deferred in the 2003 PRS, either in 2003 or by pre-2006 amendment, even if not shown as "future urban" in the IPRSP' (emphasis added). (See the written submissions and ts 4028 - 4030.)

32 The question is not, in my opinion, whether the witness statements 'exclude' a given possibility. Rather, the question is whether the plaintiffs have, through various means (namely pleadings, the statement of issues, facts and contentions, their opening, and the Changes Document), adequately identified their case in the material respect.

33 In the Changes Document, and in the oral submissions on this application, the plaintiffs emphasise that the question of whether, but for the proposed public works, the land would by 2006 have been zoned urban is hypothetical (ts 4030, 4034). As I understood it, it appeared to be suggested that, because of the hypothetical nature of the question, the plaintiffs should not be confined, or required to identify their case, in the same way or to the same extent as if the case instead involved a question of historical fact. Senior counsel made the following submissions:

The broad rubric is that this land would have been zoned urban as at the date of taking. The steps whereby this would have occurred have not been fully spelt out because it's all hypothetical. [The plaintiffs' planning experts] can't say that the land would have been included as urban in the 2003 PRS as a certainty. All they can say is that given the locational characteristics, the demand and so forth, it is their view that by 2006 it would have occurred (ts 4030).

34 In my opinion, that the plaintiffs' case involves a hypothetical question does not remove the requirement that the plaintiffs' case be stated with sufficient specificity to enable the defendants to have a fair opportunity to respond to it. The hypothetical nature of the question is part of the context in which the requirement that a party's case be stated with sufficient specificity is applied; it does not remove that fundamental requirement in the interests of justice.

35 Having heard and read a very substantial volume of planning evidence in this case, I consider that a statement that the plaintiffs' case is that the land would, at an unidentified time anywhere from 1990 to 2006, have been rezoned to urban is expressed at too high a level of generality to meet the basic requirement that the defendants have a proper opportunity of meeting the case against them. During different periods, different planning instruments were in force governing any hypothetical application. Moreover, many of the considerations relevant to a hypothetical planning decision vary during different periods over the 17 years. To the extent that the plaintiffs' case and evidence is specific to any particular time or period, the plaintiffs should have identified, in advance of the evidence, some particulars of that. That was what was intended by the requests that led to the Changes Document.

36 In my view, notwithstanding the hypothetical nature of the question, the plaintiffs' case needs to be identified with some greater specificity than 'some time from 1990 to 2006' as regards any relevant particular time period to enable an opportunity for the facts and circumstances relevant to that period to be brought to bear. I will return to this point later in these reasons.

37 The plaintiffs pointed to the evidence of Mr Flugge [32] - [37], Mr Butterly [7.4] - [7.5], Mr Rowe [137], Mr Auret [9.2] and to the answers to question 2.4 in the planners' joint statement of February 2009, and submitted that those passages identified a relevant case on the part of the plaintiffs. (See the written submissions and ts 4027, 4032, 4038.)

38 The plaintiffs also referred to passages in the reports of Mr O'Neill and Mr Moran (ts 4043 - 4044).

40 Given the need for this decision to be made promptly to enable the case to progress, I have not had the opportunity to comprehensively review all of the voluminous planning reports relied on by the plaintiffs in the case generally.

41 I turn to the reports relied on by the plaintiffs.

42 The plaintiffs rely on pars 32 - 37 of Mr Flugge's statement of 22 April 2008 (exhibit 182A). Paragraph 32 refers to the Local Planning Strategy of 2005. In par 34 it is said that at July 2005 the Shire of Murray recognised that insufficient land had been identified for the purposes of urban development. Paragraph 35 continues that theme and refers again to the 2005 Local Planning Strategy.

43 Paragraph 36 includes a statement that Mr Flugge is of the opinion that lots 191 and 192 would have been supported for rezoning to commercial and urban 'as early in 2001', but for the proposed public works. Paragraph 37 says that if an application had been received at any time after 2004 such application would have been supported by the relevant decision makers.

44 The reasoning in Mr Flugge's report supports the opinion he expresses in par 37, about what would have occurred after 2004. However, it does not support the opinion that rezoning would have occurred as early as 2001. I understood senior counsel for the plaintiffs to concede that to be so (ts 4034). In any case, I so find.

45 Although not pointed to by the plaintiffs, Mr Flugge's statement of 26 May 2008 (exhibit 182B) also reiterates his opinion that the land could have been contemplated for urban development as early as 2001 and that 'the latest the land would have been considered ripe for urban development' would have been 2005 - 2006 [18]. In the following paragraphs there is, arguably at least, some reasoning in support of the proposition that the subject land could have been rezoned to urban from 2001. I will say more about this later in these reasons.

46 The plaintiffs rely on par 137 of Mr Rowe's statement of 16 April 2008 (exhibit 191A). There Mr Rowe states that, for the reasons preceding, he considers that a request to rezone the land from rural to urban under the PRS and to rezone the land under the shire's Town Planning Scheme would have had a high likelihood of success.

47 Read in isolation, that paragraph is ambiguous. It may be a reference to the potential, as at July 2006, of rezoning of the land. Alternatively, it may be an opinion as to the likelihood of success of a hypothetical application made between 2003 and 2006.

48 Read in the context of the report as a whole, I consider that Mr Rowe is referring to the prospects of success of a request to rezone, tested as at the date of taking. In other words, he is referring to the potential of the land. However, the position is not entirely clear.

49 The focus of his report is to express an opinion on the 'highest and best use' that could be made of the land immediately prior to the taking in 2006 [9], [25]. In par 134 he says that in formulating an opinion on the highest and best use of the land immediately before the taking order, he considered the planning history and relevant town planning framework in place immediately prior to the taking. That and other factors lead to his conclusion that urbanisation is the highest and best use of the land.

50 In my view, the better reading of Mr Rowe's report of 16 April 2008, on which the plaintiffs rely, is that he does not express a view on either limb of proposed question 3. Consequently, Mr Rowe does not have 'a written report on' proposed question 3.

51 The plaintiffs point to pars 7.4 and 7.5 of Mr Butterly's report of April 2008 (exhibit 194A).

52 Even when read in isolation, those paragraphs do not seem to me to express opinions on the questions involved in proposed question 3. When read in context, that position is reinforced. Those paragraphs are in the 'conclusion' section of the report. Read in the context of the report as a whole, those paragraphs are, to my mind, predicated on the alternative planning environment postulated by Mr Butterly earlier in his report.

53 In part 5 of his report, Mr Butterly postulates an alternative IPRSP and PRS, assuming the proposed public works did not affect the subject land. Under that postulated IPRSP, the land would have been future urban. The last sentence of each of par 7.4 and 7.5 refers to the earlier alternative town planning context. There is nothing in these paragraphs to suggest that they are expressing a view on an alternative basis, namely, if the subject land had not been shown as future urban in the IPRSP.

54 Consequently, in my view, Mr Butterly does not have a written report on the two questions involved in proposed question 3.

55 The plaintiffs rely on the first sentence of par 9.2 of Mr Auret's statement dated 21 April 2009 (exhibit 183B).

56 In par 4, Mr Auret sets out the questions that he is asked to address. They include the development potential of the land and his views on the expectations as at July 2006 of a fully informed person, had the land not been reserved. It can be seen that the questions do not include what the zoning would have been but for the proposed public works.

57 Part 9 of the report is headed 'Expectations for the Development Potential of the Subject Land in 2006 had it not been Reserved in the Peel Region Scheme'. The substance of part 9, comprising 10 paragraphs [9.1] - [9.10], relates to the development potential of the land and the expectations of an informed prospective purchaser at July 2006. The first sentence of par 9.2 is the context for his opinion on those questions:

In my view, had the subject land not been reserved in the Peel Region Scheme, the subject land would have had a high probability of already being zoned for urban purposes by 2006 had it been acquired by a reputable property developer.

58 Moreover, Mr Auret's view that the land would have had a high probability of already being zoned urban was said to be conditioned on it having been acquired by a reputable property developer. That is not an assumption that can be made for the purposes of valuation and the plaintiffs do not contend that such an assumption could be made.

59 In opposition to this application, the plaintiffs rely heavily on the answers to question 2.4 of the joint statement of planners of February 2009 (ts 4026 - 4032). The answers provided by the planners relied on by the plaintiffs were divided into two parts. The first was urban potential 1974 to 1997. The second part was urban potential 1997 to 2006. In the second part, it was said that if the land was not included as urban in the IPRSP, there is a high likelihood that it would have been zoned or imminently zoned for urban development. Reasons for this were set out in pars (o) - (y).

60 As senior counsel for the plaintiffs accepted, the substance of the reasons set out relate to matters applying from 2003 to 2006 (ts 4029). One cannot discern from the joint statement any articulation of any reasons to support a case that the land would have been rezoned from somewhere between 1997 and 2003.

61 The defendants submit that the joint statement of experts cannot be taken as a statement of the plaintiffs' case. As far as it goes, I accept that proposition. However, it should be noted that in the plaintiffs' opening in October 2009, counsel for the plaintiffs referred to par 2.4 of the joint planners' report, including the second part dealing with the period from 1997 to 2006. That was said to be a summary of the main reasons underpinning the plaintiffs' experts' opinions (ts 502).

62 At page 44 of Mr O'Neill's statement (exhibit 195A) he responds to pars 36 and 37 of Mr Flugge's statement of 22 April 2008 to which I have referred. Mr O'Neill expresses the opinion that it is 'most unlikely' that any application for rezoning would have been supported by the WAPC within either of the time frames referred to by Mr Flugge.

63 Mr O'Neill refers to the fact that the plaintiffs had, prior to the finalisation of the PRS, requested the balance of their land to be included in the urban zone, following advertisement of the draft PRS, and this submission was dismissed.

64 Thus Mr O'Neill has responded, in brief terms, to Mr Flugge's opinion about rezoning from 2004 to July 2006 and as early as 2001.

65 The plaintiffs pointed to pars 8.2 and 8.3 of Mr Moran's report of 13 October 2008 (exhibit 196A page 127). There Mr Moran expresses an opinion that 'there would have been no reasonable expectation from 1997 onwards', after the IPRSP was finalised, and after 2002, when the PRS was promulgated, for any non-rural use for the subject land [8.2]. Although that opinion is expressed with reference to the position from 1997 on, it is a conclusion in response to the plaintiffs' reports about the potential of the land as at 2006. In responding to the plaintiffs' experts' reports about that potential, Mr Moran expressed his view in terms of the position from 1997. Thus this passage is of limited assistance to the plaintiffs' position. It does, however, reveal some degree of consideration by Mr Moran of the position pertaining from 1997. That is not to say that Mr Moran has focused on all the considerations that would or might be relevant to a decision to rezone the land at any time in the period 1997 to 2003.

Conclusions on the witness statements and joint report relied on by the plaintiffs

66 These references in the witness statements have to be viewed in the context of the enormous volume of planning evidence relied on by the plaintiffs.

67 Senior counsel for the plaintiffs conceded that the reports on which the plaintiffs rely did not identify the matters relied upon for any opinion that the land would have been rezoned to urban before 2003 or shown as urban in the PRS in 2003 (ts 4029 - 4031). However, Mr Flugge's second report appears to involve some reasoning for an opinion that this land could have been rezoned from 2001. Given the concession made by the plaintiffs I would not rely on Mr Flugge's second statement to reach a decision adverse to the defendants without giving them an opportunity to make submissions about it. However, for the reasons that follow, my tentative conclusions about Mr Flugge's second report do not lead me to a decision adverse to the defendants.

68 Consideration of the proper disposition of this application requires attention to a number of competing considerations. Ultimately, the question is where the interests of justice lie. It will be relevant whether the plaintiffs would suffer an injustice in being prevented from advancing and supporting by evidence something that can fairly be said to be a part of their case. It will also be relevant to assess the risk of prejudice to the defendant if and to the extent evidence is permitted to be adduced to support a case of which the defendants have not had adequate notice. To the extent that that were to occur, the defendants may learn of a chain of reasoning and an articulation of relevant circumstances for a hypothetical rezoning at a particular point in time or period for the first time while witnesses are giving their evidence. The defendants then would not have had an opportunity to investigate the facts and circumstances existing at that relevant time to support a contrary case. Moreover, as the defendants submit, it may well not be possible to identify immediately, upon such evidence being adduced, the nature and extent of such prejudice. That is because it is only if and when proper investigations occur that one is apprised of what the relevant facts and circumstances were as at a particular time.

69 It is convenient to deal separately with the subject matter of the two limbs of proposed question 3.

The first limb; would the land have been zoned urban or urban deferred in the Peel Region Scheme?

70 In the abstract, there could be two alternative paths to an affirmative answer to the first limb of question 3. First, the land could have been zoned urban or urban deferred in the Peel Region Scheme, notwithstanding that it was shown as rural in the IPRSP, without any rezoning application having occurred in the meantime but as part of the process of finalising the PRS. The inclusion of 'urban deferred' in the question makes it plain that this is part of what is contemplated by the question.

71 Senior counsel for the plaintiffs did not point to any of the plaintiffs' planners as expressing any opinion on that question, much less any reasoning in support of it. I would not allow that question to be asked.

72 The second path to an affirmative answer to the first limb of proposed question 3 is if the land were rezoned to urban at some time after 1997 and before 2002.

73 Mr Flugge's first and second report expressed the opinion that rezoning could have occurred as early as 2001. The second report identifies some reasoning in support of that opinion.

74 That in itself is by no means determinative. The real question is whether allowing this question is consistent with the requirements of fairness to the defendants. In particular, the question is whether there has been sufficient identification that this is an element of the plaintiffs' case to enable the defendants' to have a proper opportunity to respond to it.

75 It seems to me that, following the exchange at the directions hearing on 9 December 2009, the defendants were entitled to expect that if rezoning after 1997 and before 2003, notwithstanding the land being rural in the IPRSP, was part of the plaintiffs' case, the plaintiffs would take steps to articulate that. As the plaintiffs did not take any steps to articulate that as a part of their case, it was reasonable for the defendants to assume that it was not part of the plaintiffs' case.

76 To my mind, to allow a question whether there would have been a rezoning of the land some time between 1997 and 2002 would, in the circumstances of this case, expose the defendants to a substantial risk of significant prejudice. The evidence in the case focuses on two periods. The first is the first half of the 1990s, before the IPRSP. The second is the period of about 3 years leading up to the taking in July 2006. There is every prospect that substantially different considerations would or may have pertained in the period 1997 to 2001, as against these two periods. The defendants are entitled to have had an opportunity to investigate those circumstances after being on notice that that was an alternative element of the plaintiffs' case.

77 One of the plaintiffs' submissions was, I think, along the following lines. The plaintiffs' planners expressed an opinion that the land would have been zoned urban by 2006. In some cases, they do not spell out when the land would have become zoned urban. Nevertheless, they should not be shut out from spelling out when, in their opinion, the rezoning would probably have occurred. In other words, no possibility should be excluded.

78 I do not accept that submission. Taking such an open-ended approach is not consistent with the requirements of fairness of the defendants. Where an opinion has been expressed that the subject land would have been zoned urban in 2006, without any specification of when that would have occurred, the natural inference is that it would have occurred some time close to 2006. That is because of the substantial references, in the relevant reports, to circumstances in 2004, 2005 and 2006.

79 In my opinion, it would not be fair to the defendants to allow a generalised conclusion that the land would have been zoned urban in 2006 to be supported by oral evidence, given at the concurrent evidence session, that a rezoning would have occurred in say 1999, by reason of some particular facts or circumstances. That would be a potential response to the first limb of proposed question 3, if the question were permitted.

(a) the plaintiffs have not articulated a case, as an alternative, that had the subject land been rural in the IPRSP it would have been rezoned to urban before 2002, or, if not, been zoned urban in the Peel Region Scheme; and

(b) the first limb of proposed question 3 should not be permitted.

The second limb; would the land have been rezoned from rural to urban at some time in the period 2003 to 2006

81 For the reasons already given, in my view, the plaintiffs have not distinctly articulated this as an alternative strand of their case in the Changes Document, as should have occurred.

82 Nevertheless, to my mind, different considerations apply in this context, as against the pre-2003 question in the first limb of question 3.

83 One primary focus of most of the plaintiffs' planners' reports is the question of the urban potential of the subject land as at July 2006. In that context, the reports outline a number of facts, circumstances and planning instruments pertaining particularly to the period 2003 to 2006. The reports express the opinion that those circumstances would have created, at the least, a high degree of potential for imminent rezoning to urban as at July 2006. Some of the reports go further and say that it is likely that those circumstances would have led to the land having already been rezoned to urban by 2006. This may be true of Mr Rowe's and Mr Auret's reports. It is also the case with Mr Robinson's report of March 2008 (exhibit 180A). That report is primarily focused on the urban potential of the land. However, at times it states that but for the proposed public works, the land would have been urban. (See [530], [531], [571].)

84 In this way, the question of whether the subject land would have been rezoned to urban between 2003 and 2006 is closely bound up with the question of its urban potential as at 2006. Moreover, the plaintiffs' planners point in their reports to the same planning documents, planning considerations, facts and circumstances arising in the period 2003 to 2006, that apply to the potential question in support of an opinion that the land probably would have been urban by 2006.

85 That is also illustrated by the second part of the answer to question 2.4 of the 2009 joint planners' report, to which I have referred. The logic of the plaintiffs' planners is that circumstances from 2003 on created an increasing momentum for urbanisation of the land, leading to urban zoning before July 2006, or soon thereafter. In that light it might be thought to be artificial to separate the July 2006 urban potential question from the 2003-2006 zoning question.

86 That seems to me to mean that the potential for prejudice to the defendants is significantly reduced, although not eliminated. By way of example, the plaintiffs' planners express the opinion that Network City, published in 2004, provides substantial support for the urbanisation of the subject land. The defendants' planners express contrary opinions. If and to the extent that one of the plaintiffs' planners expressed an opinion in oral evidence that, once Network City was published, any application for rezoning would, because of Network City, have been successful before July 2006, there would be unlikely to be prejudice to the defendants.

87 However, if and to the extent that one of the plaintiffs' planners articulated reasoning, in particular circumstances at some particular point in time between 2003 and 2006, that had not previously been identified in the reports, prejudice would arise for the defendants. If that were to occur, the defendants could renew the objection.

88 For these reasons, I would permit the second limb of the proposed question 3. In other words, I would permit a question about whether, assuming the subject land was rural in the Peel Region Scheme, it would have been rezoned to urban in the period 2003 to 2006.

89 Given the time constraints in which argument was put on this application, I would hear further from the parties as to who should be permitted to answer that question in the light of these reasons.

(a) I do not permit the inclusion in the agenda of a question whether, assuming lots 191 and 192 were not 'future urban' in the IPRSP, they would have been zoned urban or urban deferred in the PRS in 2003; and

(b) I permit the inclusion in the agenda of a question whether, assuming lots 191 and 192 were not 'future urban' in the IPRSP and were not urban or urban deferred in the PRS in 2003, they would have been rezoned to urban or urban deferred in the PRS by amendment of the PRS between 2003 and 2006.

McKay v Commissioner of Main Roads [No 4]

At a glance

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Before

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Judgment (114 paragraphs)

McKAY -v- COMMISSIONER OF MAIN ROADS [No 5] [2010] WASC 273 (15 October 2010)