McKAY -v- COMMISSIONER OF MAIN ROADS [No 7] [2011] WASC 223 (1 September 2011)

2 The overarching issue is the value of the land taken. Valuation of the land invites attention to its highest and best use. The plaintiffs contend that the highest and best use of the land is for residential development, or for commercial development combined with intensive residential development. The plaintiffs contend that the land should be valued on the basis that it was, by the date of taking, zoned urban. That is because the relevant statute requires that any increase or decrease in the value attributable to the proposed public works be discounted. The plaintiffs say that, but for the proposed public works, the land would have been zoned urban, and the absence of that zoning decreased its value.

3 The defendants contend that the land should be valued on the basis that, at the date of the taking, it was zoned rural with urban potential in the medium or long term.

4 A major issue in the case was whether, but for the proposed public works, the land would have been zoned urban or rural at the date of taking.

5 The plaintiffs' contentions as to the urban zoning of the land involve a series of alternatives. Each alternative has involved detailed attention to the town and regional planning regimes, broader planning environment, other rezoning applications and other circumstances applying during several different periods between 1990 and 2006. That has had consequences for the volume of evidence in the trial. The trial occupied 17 sitting weeks spread over more than 12 months; there were many hundreds of exhibits, occupying well over one hundred lever arch files.

6 The plaintiffs also contend, in the alternative, that the land should be valued on the basis that its highest and best use, and zoning or potential zoning, included commercial development for a district shopping centre.

(1) valued on the basis of its district commercial centre potential, the land was worth about $60 million to $70 million;

(2) valued on the basis that it was zoned urban, the land was worth about $60 million to $65 million; and

(3) valued on the basis that the land was zoned rural, with strong potential to be imminently rezoned to urban, the land was worth about $36 million to $40 million.

(1) as a matter of law, the land must be valued on the basis that it was zoned rural and had urban potential;

(2) alternatively, as a matter of fact, but for the proposed public works, the subject land would have been zoned rural and it should be valued on the basis of rural zoning with urban potential;

(3) the land's urban potential was uncertain and in the medium or long term; and

(4) valued on that basis, the land was worth about $6 million to $7 million.

(1) I do not accept the defendants' first contention;

(2) I find that, but for the proposed public works, the land would have been zoned rural, and it should be valued on the basis that it was zoned rural and had urban potential;

(3) I find that, in the assumed absence of the proposed public works, the urban potential of the land was reasonable, with a high degree of uncertainty; and

(4) valued on that basis, I find that the value of the land was $14.025 million.

10 The balance of this introductory section 1 is organised as follows. Section 1.2 explains the taking order and the land the subject of this action. Section 1.3 identifies the location and character of the subject land. I explain the regional setting in section 1.4. Section 1.5 provides an outline of the local and regional planning, to enable the plaintiffs' case to be understood. After explaining some aspects of the course of the trial in section 1.6, I summarise the plaintiffs' case in section 1.7. Finally, in section 1.8, I summarise the defendants' case and identify the eight major issues for determination. I also state my conclusions on those issues and explain the organisation of the rest of these reasons.

11 By Taking Order dated 18 July 2006 (the Taking Order), lots 191 and 192 on plan 2087, comprising 87.6587 ha, were taken under pt 9 of the Land Administration Act 1997 (WA) (the LA Act).

12 By the Taking Order, two other parcels of land were taken. One of those other parcels was lot 189 on plan 2087, also owned by the plaintiffs. In this action, the plaintiffs claimed compensation in respect of the taking of lot 189, as well as in respect of the taking of lots 191 and 192. In the course of the trial, the parties settled the plaintiffs' claims respecting lot 189. Consequently, this action now concerns, and these reasons relate to, compensation only in respect of the taking of lots 191 and 192. I will refer to lots 191 and 192 as the subject land.

13 In 1990, the plaintiffs acquired the subject land as part of a wider landholding known as Windsor Park. Windsor Park included lots 187, 188, 189, 191, 192 and lot 23 Pinjarra Road, North Yunderup. Lots 187 and 188 later became lots 300 and 301 respectively. Lot 23 is a small parcel west of lot 301 and north of lot 300. It was not part of the land taken.

14 The other parcel of land the subject of the Taking Order was a portion of lot 301 on deposited plan 44563. Until 2006, lot 301 was also owned by the plaintiffs. By the date of the taking, lot 301 had been transferred to other parties. Thus there is no claim in this action in respect of lot 301.

15 The transaction by which the plaintiffs sold lot 301 is relied on by the plaintiffs as a comparable sale in valuing the subject land. The transaction was referred to as the 'Clough/Rapley transaction' (reflecting the name of the acquiring parties).

16 The Taking Order was registered on 20 July 2006. Consequently, as is common ground, the date of taking is 20 July 2006. By s 241(2)(c) of the LA Act, the land is to be valued as on the date of taking.

17 The Taking Order stated that the taken land had been 'set apart for the purpose of the following public work, namely New Perth Bunbury Highway and Regional Open Space'.

18 When the land was taken, new lot numbers and titles were created. I will refer to the subject land by its lot numbers before it was taken. For ease of exposition, I will refer to lots 191 and 192 in the present tense, notwithstanding that they no longer exist.

19 Part of lot 192 was taken for the purposes of the New Perth Bunbury Highway and the balance for the purpose of Regional Open Space. All of lot 191 was taken for the purpose of Regional Open Space.

20 Lots 191 and 192 are on the northern side of Pinjarra Road and Old Mandurah Road in the locality of Ravenswood.

21 The land is about halfway between Mandurah and Pinjarra. It is about 9 km southeast of Mandurah and about 8 km northwest of Pinjarra.

22 Pinjarra Road is a fourlane road that is the main and only direct link between Mandurah and Pinjarra. The plaintiffs' case emphasises the benefits for the subject land of its location on Pinjarra Road.

23 As at 2006, the Kwinana Freeway ended at or around Baldivis. At that point, the freeway continued into Safety Bay Road. From that road, a traveller from Perth would travel on Mandurah Road (possibly via Ennis Avenue) to Mandurah. The subject land is about 69 km in a straight line south of the Perth CBD. In 2006, travelling by road it was something more than 80 km from the city.

24 The certificate of title for the subject land indicates the following (exhibit 270B, appendix JF 2). Lots 191 and 192 are broadly rectangular in shape, apart from an excised area of about 2.5 ha that is on the western boundary of lot 192. Lot 192 is located at the corner of Pinjarra Road and Fiegert Road. It is a little over 500 m wide along its northern boundary, and its southern boundary abuts Pinjarra Road for a length of about 520 m. From Pinjarra Road, it runs to the north for around 910 m along its eastern boundary. Lot 192 has a total area of 40.3977 ha. Lot 191 is immediately east of lot 192. It is around 480 m wide along its northern boundary. To the south, it abuts Pinjarra Road for about 280 m, and then Old Mandurah Road for a little less than 230 m. The lot runs to the north for a little more than 1 km along its eastern boundary. Lot 191 has an area of 47.2318 ha.

25 This suggests the total area of the subject land is 87.6295 ha.

26 However, the Taking Order suggests the total area of land taken is 87.6587 ha (exhibit 251B). The difference between these figures (0.0292 ha) is less than one threethousandth of the total area. I will adopt the higher figure of 87.6587 ha as the total area of the subject land.

27 Lots 191 and 192 are close to the Murray River. Lot 189 is on the southern side of Pinjarra Road, on the Murray River. It can be seen from exhibit 202, as shown below, that the river is at its closest point to Pinjarra Road at lot 189.

28 The subject land was at all relevant times serviced by electricity, water, telephone and, apart from sewerage, other services that might be required for a new urban development. The timing and conditions under which sewerage was available is dealt with in section 4 of these reasons.

29 At the time of the taking, the plaintiffs lived in the house on lot 188 (later lot 301), and used the subject land for grazing cattle.

30 The subject land was flat, sparsely vegetated, cleared rural land. It did not have any buildings or other improvements on it. The land was fenced, pastured and watered to accommodate the cattle grazing enterprise.

31 It is an agreed fact that the subject land does not have any environmental attributes of any significance that would prevent urban development of the land.

32 The setting of the land within its locality can be seen by reference to the orthophoto of March 2006 that is exhibit 202.

33 The land north of Old Mandurah Road and Pinjarra Road shown as 'McKay' is lots 191 and 192. The 'McKay' land south of those roads is lot 189. The land shown as 'Clough/Rapley' is lots 300 and 301. (The broken yellow line on the subject land does not reflect title boundaries.)

34 The small town of Ravenswood is south-east of the subject land, along Pinjarra Road.

35 There are some urban developments in the general locality that are emphasised by the plaintiffs.

36 In 1995, lots 20 and 21 Old Mandurah Road were rezoned to 'special development', permitting urban subdivision, subject to conditions. These lots were the urban development known as Riverland Ramble, situated south of Old Mandurah Road and, in part, adjoining the then existing town of Ravenswood.

37 The reference to 2004 regarding Riverland Ramble on exhibit 202 is to the year the first stage of the subdivision was released.

38 The plaintiffs' case involves attention to what occurred with Riverland Ramble in several respects. The plaintiffs contend that the approval of the rezoning of Riverland Ramble supports the conclusion that, absent the proposed public works, had application been made for urban rezoning of the subject land, the rezoning would have been approved.

39 They contend that the reasons leading to the rezoning of Riverland Ramble would similarly have applied to lots 191 and 192 and led to the same result. Indeed, as an alternative, they go further and contend that lots 191 and 192 would have been rezoned to urban in preference to Riverland Ramble. Further, one of the alternatives postulated by the plaintiffs is that, but for the proposed public works, they would have made a joint application with the owner of Riverland Ramble for the rezoning of both sets of land.

40 Consequently, in section 4 of these reasons, I give detailed attention to the progress of the rezoning and development of Riverland Ramble.

41 The plaintiffs also point to the approval, in 1996, of the rezoning of Murray River Country Estate. That estate was on the northwest outskirts of the townsite of Pinjarra, with part of that development on Pinjarra Road.

42 Further, the plaintiffs point to Austin Cove, near South Yunderup, southwest of the subject land and on the other side of the Murray River. In 1989, when first approved, the development was known as the Murray Lakes Golf Course Estate. In 1996, the owners proposed an amendment to increase the development from about 500 to 1,500 lots. That amendment was gazetted in 1998 .

43 Immediately to the west of lot 192, across Fiegert Road, is wetland and bush. Further west of that is the ruralresidential and special rural locality of Furnissdale and Barragup, to the south and north of Pinjarra Road respectively.

44 Immediately to the east of lot 191 is lot 190. That is part of a larger holding of lots to the north and east owned by the Kelliher family. The Kelliher land includes the land north from lots 190, 191 and 192, two lots beyond Rogers Road and east to Paterson Road. That land had, at 2006, been used for rural purposes for some time.

45 Immediately east of lot 190 are lots 10, 11, 12 and 6. These lots were owned by interests associated with the Emmanuel family. The land was zoned and used for rural purposes.

46 The defendants emphasise that the land to the north and east of the subject land was zoned and used for rural purposes at the date of taking and for many years before. They contend that that land is proxy for the subject land, but for the proposed public works. The plaintiffs submit that that land remained rural for other reasons, not applicable to the subject land, including that the owners did not then want to develop their land.

47 The location of the Ravenswood drag strip (lot 41) can be seen to the east of Ravenswood and Riverland Ramble.

1.5 Overview of local and regional planning and the zoning of the land

48 This introductory overview is intended to do no more than provide a context for understanding the various alternative parts of the plaintiffs' case. The history of local and regional planning will be considered in much more detail later in these reasons.

49 One part of the plaintiffs' case focused on rezoning under the Shire of Murray Town Planning Scheme No 4 (TPS 4) in the years prior to 1997. On 23 June 1989, TPS 4 was published in the Government Gazette and came into force under the Town Planning and Development Act 1928 (WA) s 7. Under TPS 4, some land was set aside for the purposes of a reserve. Other land was classified into various zones. The zones included residential, residential development, rural, special rural and commercial. Subsequently, in 1995, in approving the urbanisation of Riverland Ramble, a new zone class was created of 'special development' (see exhibit 25).

50 The parties prepared trial bundles in advance of the trial. The bundles were in four parts. Each part was divided into a (large) number of books. Each book was paginated continuously from the first page through to the last document. Exhibit 25 is found at part 1, book 11, pages 54 74. Throughout the trial, the parties referred to documents by their location in the trial bundle. I will do the same. I will use the shorthand of 1/11/54 to mean trial bundle part 1, book 11, page 54. Statements and reports of witnesses were referred to in a similar way. The shorthand 30/10 refers to page 10 of volume 30 of the witness statements and reports.

51 Some of the scheme maps for TPS 4 are exhibit 13. In TPS 4, a small portion of lot 192 was reserved for the purposes of a major highway. The rest of lot 192 and all of lot 191 were zoned rural.

52 The land surrounding the subject land was also zoned rural in TPS 4 when it was promulgated in 1989.

53 The town planning scheme could be amended by the shire, subject to approval of the Minister: Town Planning and Development Act s 7.

54 One major part of the plaintiffs' case contends that, but for the proposed public works, TPS 4 would have been amended, upon the plaintiffs' application, some time between 1994 and 1997 so that the subject land was zoned urban (the preIPRSP rezoning case). The parties and witnesses often referred to land being rezoned 'urban' in this period, meaning 'residential' or other zoning permitting urbanisation of the land. I will do the same.

55 Another alternative strand of the plaintiffs' case has, as its foundation, the designation of the subject land, but for the proposed public works, as future urban in the Inner Peel Region Structure Plan (IPRSP). One of the purposes of the IPRSP was to provide a basis for a regional planning scheme for the Peel region.

56 In July 1996, the WAPC published the 'for public comment' version of the IPRSP (the 1996 IPRSP) (exhibit 7, 1/10/54 178).

57 In December 1997, the WAPC published the final IPRSP (the 1997 IPRSP) (exhibit 6, 1/6/260 323).

58 The IPRSP designated land in a number of ways. Some land was designated for public purposes. The public purposes included 'Open Space Recreation' and 'State Highways and Roads Existing and Proposed'. It also designated land for private uses. The designations included rural, rural living, urban, and several categories of future urban. The designations only indicated existing and proposed future zonings and did not effect any rezonings.

59 Part of lot 192 was designated for the purpose of 'State Highways and Roads Existing and Proposed', for the Perth Bunbury Highway. The balance of lot 192 and all of lot 191 was designated 'Open Space Recreation'.

60 Both the 1996 IPRSP and the final 1997 IPRSP stated that the form of urban development proposed by the IPRSP was in discrete urban villages. Apart from Shire of Murray's main town of Pinjarra, urban villages were contemplated at Ravenswood, Furnissdale/Barragup and Yunderup/Murray Lakes.

61 It is a major part of the plaintiffs' case that, but for the proposed public works (if not already zoned urban), the subject land would have been designated future urban in the IPRSP and would have been part of the proposed urban village of Ravenswood. Future urban designation in the IPRSP was an important step towards being zoned urban in the Peel Region Scheme.

62 From 1997 until 2002, work was done on the preparation of the Peel Region Scheme in light of the IPRSP.

63 The Peel Region Scheme 2003 (the PRS) was published in the Government Gazette on 23 October 2002. It comprises the scheme text and the scheme map sheets numbered 1 to 20. The scheme text is exhibit 116 (1/8/11 21). The scheme map is exhibit 2.

64 Clause 10 of the scheme provides for the reservation of land for public purposes, including Regional Open Space and Primary Regional Roads.

65 By cl 11, land is classified into zones under the scheme. Each zone has a stated purpose. The zones include urban, urban deferred and rural.

66 The scheme map reserves lot 191 and part of lot 192 for Regional Open Space. The balance of lot 192 is reserved for Primary Regional Roads.

67 The scheme map, in the locality, is set out in section 6.1 below.

68 A large area of land south of Old Mandurah Road around Ravenswood is zoned urban. It includes the land comprising the Riverland Ramble estate and Settlers Village. It is bordered on the east by lot 52 Old Mandurah Road. Lot 52 is zoned rural. The urban zoned area takes in the Ravenswood townsite and extends to the junction of Old Mandurah Road and Pinjarra Road.

69 Lot 41 Old Mandurah Road and part of lot 2, both east of lot 52, are zoned urban deferred.

70 None of the land north of Old Mandurah Road is zoned urban or urban deferred. It is all zoned rural.

71 There is an area zoned urban at Yunderup, and another urban area further south that is Austin Cove stage 2.

72 One part of the plaintiffs' case contends that, had the land been designated future urban in the IPRSP, the land would have been zoned urban or urban deferred in the PRS from the time the PRS came into force.

73 Alternatively, if the land had been zoned rural in the PRS as at 2003, the plaintiffs contend that the land would have been zoned urban or urban deferred by amendment to the PRS made some time between 2003 and the date of taking.

74 The plaintiffs also have, as an alternative, an urban potential case. The plaintiffs say that if, contrary to their primary contentions, but for the proposed public works, the land would have been zoned rural, its highest and best use would nevertheless have been urban, and, as at the taking date, it would have had a very high likelihood of being rezoned to urban in the near future.

75 As I will explain in detail in section 2, the defendants contend that the only question is in the urban potential of the land. They contend that its urban potential was uncertain and only in the medium to long term.

76 Some of the planning matters relevant to the question of the subject land's urban potential at July 2006 are as follows.

77 In September 2004, the WAPC published Network City. See exhibit 4A (1/13/1); exhibit 4B (1/13/2 131); exhibit 4D (4/2/338). In November 2005, the WAPC published 'Network city a milestone in metropolitan planning', exhibit 4C (1/13/132 143). There are issues between the parties and between their respective planners about how Network City bore on the prospects of urbanisation of the subject land as at July 2006.

78 Also in 2004, the Peel Region Planning Committee of the WAPC determined that amendments to the PRS needed to be considered and there needed to be a review of the IPRSP. I will give detailed attention to the progress and status of the review, as at July 2006, in section 7.

79 On 13 September 2004, the State Government announced the construction of the New Perth Bunbury Highway: see exhibit 9.

80 In August 2005, the shire adopted draft Town Planning Scheme 5 (TPS 5) (exhibit 5A and exhibit 5B) and the draft Local Planning Strategy (the draft LPS) (exhibit 47). Those documents had been in the course of preparation for many years. Officers of the shire had communications with and input from officers of the Department for Planning and Infrastructure (the DPI), including Mr Cameron Bulstrode.

81 The draft TPS 5 identified a significant amount of land as 'development areas'. That included land to the north and east of the subject land.

82 The draft LPS included land north of Old Mandurah Road as 'urban'.

83 In late 2005, the shire forwarded the draft LPS and TPS 5 to the WAPC.

84 On 20 June 2006, the Planning and Development Services Committee of the shire resolved to modify the draft LPS to include additional land north of Old Mandurah Road in the triangle bounded by the Highway, Paterson Road and Old Mandurah Road (exhibit 11). Thus by the date of taking, all of the land in that triangle, as far east as lot 6, other than the subject land, was designated urban in the draft LPS.

85 It is common ground that TPS 5 required the approval of the Minister and that the draft LPS required the endorsement of the WAPC before they would come into operation. See for TPS 5, Town Planning and Development Act s 7 and Planning and Development Act 2005 (WA) s 87; and for the draft LPS, Town Planning Regulations 1967 (WA) reg 12B.

86 It is also common ground that the WAPC's consideration of the draft LPS and TPS 5 would, as at July 2006, take place in the context of the WAPC's then pending review of the IPRSP. There is an issue as to the prospects of that review producing a view of future urban land consonant with that stated in the draft LPS. More broadly, there are issues as to what the wellinformed hypothetical purchaser would have expected, as at July 2006, about the timing and likely outcome of the WAPC review.

87 There are also issues between the parties as to:

(a) the extent to which the draft LPS enhanced the prospects of shortterm urbanisation of the subject land, but for the proposed public works; and

(b) the extent to which what is shown in the draft LPS is relevantly attributable to the proposed public works.

1.6 The plaintiffs' case and the course of the trial

88 It is convenient to outline the plaintiffs' case in the context of outlining the course of the trial. On a number of occasions in the course of the trial, issues have arisen about what is and is not part of the plaintiffs' case. Over the course of the action there have been changes in the plaintiffs' case. That is not said as a criticism, but for the purposes of exposition and clarity.

89 It was clear, well before the trial, that the plaintiffs' primary case was that, but for the proposed public works, the subject land would have been zoned urban at the date of taking: see the statement of claim [20] and reply dated 24 August 2009 [2]. No particulars of those paragraphs were sought. The defendants joined issue with those pleas, pleading that, but for the proposed public works, lots 191 and 192 would have been zoned rural under the PRS and TPS 4 (the defence [10]). No particulars were sought of the statement of claim [20] and the reply [2].

90 For reasons which I explained in McKay v Commissioner of Main Roads [No 5] [2010] WASC 273, in my view, the high level of generality of the pleadings meant that they could not fairly serve as the exclusive statement of what was the plaintiffs' case. See, in particular, [34] [36], [74] [79].

91 Some of the history of the proceedings is outlined in McKay [No 5].

92 Because it appeared to me, before the trial, that the real issues in the action did not emerge clearly from the pleadings, at a directions hearing in May 2009, with the agreement of the parties, I ordered that the parties exchange statements of issues, facts and contentions.

93 The plaintiffs' Statement of Issues, Facts and Contentions (SIFC) filed 28 August 2009 contended that, but for the proposed public works, the subject land would have been zoned urban as at July 2006. The SIFC 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 in the SIFC 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.

94 The plaintiffs' SIFC foreshadowed what was referred to as the 'split taking' case. Before the SIFC, the action had proceeded on the basis that the plaintiffs' case was that the effect of both proposed public works the highway and the regional recreational facility was to be discounted. The split taking case involved the contention that the land taken for each of the two purposes should be treated separately. In the case of the land taken for the highway, the regional recreation facility was not to be discounted. Similarly, in the case of the land taken for the regional recreation facility, the presence of the highway was not to be discounted.

95 The trial was listed for six weeks to commence on 19 October 2009.

96 On 16 September 2009, the plaintiffs served substantial further evidence in support of the split taking case, including statements from planning and engineering experts.

97 On 18 September 2009, the plaintiffs filed and served valuation reports based on the split taking approach.

98 The split taking case contended that the highest and best use of the subject land was for substantial commercial development, including a district shopping centre, together with intensive residential development. That marked a change in the plaintiffs' case. The plaintiffs' planning evidence exchanged up to August 2009 put forward a number of concept plans said to reflect a suitable development for the subject land. There were three plans prepared by Greg Rowe & Associates and several development plans prepared by Mr Butterly of Whelans. None of those plans involved a district shopping centre.

99 Earlier, in May 2009, the valuers had agreed during their conferral that for the purpose of their hypothetical subdivision analysis, as part of their valuation, the urban development concept plan number 1 prepared by Greg Rowe & Associates (the GRA concept plan) (exhibit 191A, 25/392) was the plan to be adopted by them in relation to lots 191 and 192. Thereafter, the parties had acted on the basis that the GRA concept plan represented the plaintiffs' case as to the appropriate development of lots 191 and 192 for the purposes of the valuation of those lots. The plan showed the bulk of the land dedicated to the production of more than 1,000 residential lots, with 2 ha in the southeast corner designated for commercial development.

100 On 18 September 2009, the defendants filed an application seeking orders to the effect that the plaintiffs be precluded from advancing the split taking case. The defendants' application was made returnable on 22 September 2009.

101 On 21 September 2009, the plaintiffs' solicitors advised the defendants' solicitors and the court that the plaintiffs abandoned the split taking case.

102 The trial commenced as planned on 19 October 2009.

103 On 28 October 2009, the eighth day of the trial, in the course of opening, the plaintiffs indicated that they relied on part of one of the reports of their valuer, Ms Jennifer LeFevre, which had been exchanged as part of the split taking case. The report stated that the land was to be valued on the basis that its highest and best use was for a district centre, and valued the land accordingly. The defendants immediately objected. With the parties' agreement, I directed that the issue about the plaintiffs' proposed reliance on evidence supporting the district centre case be dealt with at the completion of the plaintiffs' opening.

104 The defendants filed an affidavit in support of their opposition to the plaintiffs' reliance on the district centre case.

105 On 3 November 2009, the plaintiffs indicated that, in light of the defendants' affidavit, they did not propose to lead evidence in support of the district centre case (ts 1180).

106 On or about 9 November 2009, the plaintiffs served a number of new witness statements on the defendants. The concurrent expert evidence session of the planners was then due to commence on or about 11 November 2009.

107 On 11 November 2009, the defendants objected to the plaintiffs' reliance on parts of the newly served witness statements. The case supported by the witness statements was, in broad summary, that, but for the proposed public works, the plaintiffs would have joined with the developers of Riverland Ramble in the 1990s to seek rezoning of the subject land to urban, and that the same result would have occurred in relation to the subject land as occurred for Riverland Ramble, in a similar time frame. The additional witness statements brought into significantly sharper relief the question of whether, but for the proposed public works, the land would have been rezoned to urban in the mid1990s.

108 By that stage, it was abundantly clear that, regardless of the proposed new evidence, the trial would not be completed in the two weeks remaining of the allocated trial dates.

109 After hearing submissions, I gave oral reasons for concluding that:

(a) the defendants would be prejudiced if the plaintiffs were permitted to rely upon the new evidence in the then remaining two weeks; and

(b) the plaintiffs should be permitted to rely on the evidence, but only on the basis that the trial of the issues associated with the new evidence be adjourned (see ts 1782 1788).

110 Following the delivery of my reasons, the parties identified witnesses whose evidence could be taken in the then remaining two weeks that the trial was listed. Evidence was received over that remaining period, and the trial was adjourned partheard.

111 Difficulties with the availability of counsel meant that the trial could not resume until July 2010.

112 From an early stage of the trial, the defendants contended that the plaintiffs had not adequately identified their case in certain important respects. 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.

113 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). The request sought articulation of the reasoning for changes in the hypothetical scenario (as against the actual historical situation) by reference to such points in time or periods as were relied on in the plaintiffs' past hypothetical rezoning case (see, for example, ts 1436 1438, 1679 1681).

114 On 19 November 2009, the last day of the trial before it was 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; 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].

116 The Changes Document contends 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 TPS 4 to that effect would have been achieved: [34], [40] [41]. (I will refer to this as the preIPRSP rezoning case.) 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].

117 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.

118 At a directions hearing on 9 December 2009, the plaintiffs confirmed that another alternative part of their case (although not spelled out in the Changes Document) was that, but for the proposed public works, the land would have been designated future urban in the IPRSP. (I will refer to this as the hypothetical IPRSP case.)

119 At the directions hearing on 9 December 2009, the exchange of further evidence and expert evidence was programmed.

120 The plaintiffs exchanged substantial further proposed evidence and expert evidence on or about 31 March 2010. That evidence primarily concerned the preIPRSP rezoning case. It also included evidence in support of a contention that, but for the proposed public works, the highest and best use and zoning or potential zoning of the subject land would have been for a district centre with associated commercial and intensive residential use. There was no objection to the addition of that latter contention to the plaintiffs' case.

121 The defendants' expert reports in reply responded to those elements of the plaintiffs' case.

122 In the ninth week of the trial, in August 2010, an issue emerged about the scope and content of the plaintiffs' hypothetical rezoning case. The issue emerged in the context of the identification of questions for the agenda for the concurrent expert planning session. The issue was whether a question proposed by the plaintiffs for the planners' concurrent session should be permitted. The question was in these 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?

123 That directed attention to the scope of the plaintiffs' hypothetical past rezoning case, as it had been articulated in the pleadings, SIFC, opening and the Changes Document.

124 I delivered reasons for decision on 16 August 2010, later published: McKay [No 5]. In summary, I decided that:

(a) the plaintiffs had not articulated a case that the subject land (assuming it to be rural in the hypothetical IPRSP) would have been rezoned to urban between 1997 and 2003;

(b) the plaintiffs should not be permitted to advance a case to that effect; and

(c) notwithstanding that the plaintiffs had not, in the Changes Document or otherwise, articulated a case of rezoning between 2003 and 2006, subject to further objection from the defendants in the event of prejudice by way of surprise, the plaintiffs were permitted to advance a case that the land would have been rezoned by amendment of the PRS between 2003 and 2006.

As to (c), my attention was not drawn in argument to something said by senior counsel for the plaintiffs in the course of the defendants' opening. Counsel articulated a case of rezoning between 2003 and 2006 (ts 1321), although the Changes Document did not include that contention. In any event, I did not disallow that case, and the case was run.

125 The main elements of the plaintiffs' case may be summarised as follows.

(1) The land is to be valued on the basis that, as at the date of taking, it was zoned urban. That is because, but for the proposed public works, it would have been zoned urban. I will refer to this as the plaintiffs' past hypothetical rezoning case. That case arises in the following three alternative ways. But for the proposed public works:

(a) the plaintiffs would have applied in the early to mid1990s for the rezoning of the land, and the land would have been rezoned to urban/residential prior to 1997 (the preIPRSP rezoning case);

(b) if not, the land would have been designated future urban in the IPRSP and would have been zoned urban in the PRS in 2003 (the hypothetical IPRSP case); or

(c) alternatively, if the land had been rural in the IPRSP and the PRS in 2003, it would have become urban or urban deferred in the PRS by amendment to the PRS between 2003 and 2006 (the 2003 2006 rezoning case).

(2) Alternatively to (1), if, but for the proposed public works, the land would have been zoned rural at July 2006, it would then have had a high probability of being imminently rezoned to urban.

(3) Further to (1) and, perhaps, (2), the highest and best use and zoning or potential zoning of lots 191 and 192 would have been for a district commercial centre.

(4) There are some additional elements to the plaintiffs' claim:

(a) a claim for an indemnity in respect of the transfer duty payable on a 'replacement property';

(b) an additional amount under s 241(8) of the LA Act to compensate for the taking without agreement; and

(c) interest under s 241(11) of the LA Act on the compensation awarded.

I will deal with these claims in section 10 of these reasons.

126 The valuers relied on by the plaintiffs have provided valuations on each of bases (1), (2) and (3). The plaintiffs' valuers value the land as follows:

(1) urban approximately $60 million to $65 million;

(2) rural with urban potential approximately $36 million to $40 million; and

(3) district centre potential $60 million to $70 million.

1.8 Overview of the defendants' case and the main issues

127 The defendants take legal and factual issue with the plaintiffs' contention that the land should be valued on the basis that it is zoned urban. First, the defendants contend that such an approach is impermissible as a matter of law. They contend that a past hypothetical rezoning, absent the proposed public works, cannot be used as a foundation of valuation. Rather, the only question is as to the urban potential of the land with rural zoning. I will explain the defendants' position in detail in section 2, dealing with legal principles.

128 Secondly, the defendants take issue with the plaintiffs' case at the factual and evidentiary level. Assuming the past hypothetical rezoning question arises, the defendants contend that, but for the proposed public works, the land would have been zoned rural. They deny that the plaintiffs would have made an application in the first half of the 1990s for rezoning and deny that, if made, the application would have been successful. They deny that, but for the proposed public works, the land would have been designated future urban in the IPRSP. They deny that any application to amend the PRS between 2003 and 2006 would have been successful.

129 In summary, the defendants contend that the only permissible inquiry at law, alternatively the relevant inquiry on the evidence, is as to the urban potential of the subject land. They contend that the subject land would have had an uncertain urban potential and that any urbanisation would have been in the medium or long term.

130 The defendants' valuers expressed the opinion that the land, valued on the basis that it is rural with urban potential, is worth something between $6 million and $7 million.

131 In May 2007, the defendants made an (open) offer of compensation to the plaintiffs under s 217 of the LA Act. The plaintiffs rejected the offer. On 16 May 2007, the defendants made an offer to make an advance payment in partial discharge of the plaintiffs' claim. The plaintiffs accepted that offer. On 22 May 2007, the defendants paid the sum of $10,063,956.16 by way of advance payment, of which $9.6 million was principal compensation. The balance was interest on that sum at 6% from 1 August 2006 until payment.

132 The defendants counterclaim for the return of some of the advance payment on the basis of mistaken payment or total failure of consideration. That counterclaim rests on the defendants' contentions about the value of the subject land. The parties agreed that the submissions on and resolution of the counterclaim should be deferred pending the court's determination of the value of the subject land.

133 At a broad level, the major issues involve the following eight questions. (My answer to the question, and the section of the reasons dealing with the issue, is identified in parenthesis.)

(1) As a matter of law, is it relevant and permissible to inquire what the zoning of the land would have been, but for the proposed public works? (Yes; see section 2)

(2) But for the proposed public works, would the land have been rezoned to urban in the years up to 1997, as a consequence of an application by the plaintiffs for rezoning? (No; see section 4)

(3) If not, but for the proposed public works, would the land have been designated future urban in the IPRSP, and as a result been zoned urban in the PRS in 2003? (No; see section 5)

(4) If not, but for the proposed public works, would the land have been rezoned to urban or urban deferred by amendment of the PRS between 2003 and 2006? (No; see section 6)

(5) If not, but for the proposed public works, what was the urban potential of the land at the date of taking? (Reasonable, but highly uncertain, and the odds did not favour approval of short-term rezoning; see section 7)

(6) But for the proposed public works, would the land have been zoned or had the potential to be zoned for commercial use so as to permit a district centre in the way suggested by the plaintiffs' commercial planner? (No; see section 8)

(7) Once the appropriate planning basis for the valuation is identified, what is the value of the subject land? ($14.025 million; see section 9). I will outline the major valuation issues in section 9. Among the broad issues are:

(a) what, if any, sales are useful as comparable sales?

(b) what is the proper analysis of the sales relied on as comparable sales?

(c) what are the preferable assumptions and inputs for a hypothetical subdivision analysis of the subject land?

(d) what are the relative merits, in this case, of the comparable sales method as against hypothetical subdivision analysis?

(8) What amounts, if any, should be awarded in respect of the plaintiffs' additional claims? (10% compensation for the taking without agreement, and interest; see section 10).

134 There were numerous objections to evidence. I made many rulings during the trial. The parties were content for rulings on some categories of objections to be given, to the extent necessary, in the course of my reasons. I deal with those in section 3.

Section 2: Legal principles 2.1 The statutory framework

135 In any valuation case it is fundamental that the statutory framework must be kept squarely in mind. That has been repeatedly emphasised in the cases, and more so in recent years.

136 As I have said, the subject land was taken under pt 9 of the LA Act. By s 202 of that Act, every person having an interest in land that is taken under pt 9 is entitled, subject to pt 10 of the LA Act, to compensation for the interest from the acquiring authority.

137 The amount of compensation is fixed by one of the following mechanisms under s 217, s 219 and s 220:

(a) acceptance by a claimant of the offer made by the acquiring authority, or by a subsequent agreement between those parties;

(b) an action for compensation by the claimant against the acquiring authority; or

(c) reference of the claim to the State Administrative Tribunal.

138 The plaintiffs commenced this action for compensation under s 220 and s 223 of the LA Act. The WAPC is the acquiring authority in relation to the land (lot 191 and part of lot 192) acquired for the purpose of Regional Open Space (ROS). The first defendant is the acquiring authority in relation to the land (part of lot 192) taken for the purpose of the extension to the Perth Bunbury Highway.

139 Section 241 of the LA Act governs the assessment of compensation in an action for compensation. Section 241(1) and s 241(2) of the LA Act are in the following terms:

(1) In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land taken under Part 9, regard is to be had solely to the matters referred to in this section.

(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 -

(a) in the case of an interest taken for a railway or other work authorised by a special Act - the first day of the session of Parliament in which the Act was introduced;

(b) in the case of an interest taken by agreement under section 168 - the date of the execution of the agreement, unless the agreement provides otherwise; or

(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.

140 In dealing with the plaintiffs' additional claims in section 10 of these reasons, I will refer to subsections (6), (8), (9), (11) and (12) of s 241.

141 Section 241(1) makes s 241 an exhaustive statement of the matters to which regard may be had in determining the amount of compensation.

142 On a proper construction of s 241, the effect of s 241(1) and s 241(2) is that compensation is to be awarded for the value of the land taken, assessed on the relevant date according to whichever of pars (a), (b) or (c) of s 241(2) is applicable.

143 Section 241(2) requires that any increase or decrease in value attributable to the proposed public work be discounted. What is involved in and permitted by that discounting requirement is a substantial issue in the action. I will deal with that in section 2.7 of these reasons.

144 Compensation for the value of the land involves determining a money equivalent of the asset: Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547, 570. 'Value' means exchange value. Value 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: Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418, 431; Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209 [79].

145 In summary, value is determined by identifying the price of a notional bargain between hypothetical vendor and purchaser who are prudent, well informed and willing, but not anxious, to complete the exchange.

146 In Spencer v The Commonwealth, Griffith CJ stated the test of value 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 (432).

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 (441).

148 These statements have been consistently applied in cases since then. The position was summarised by McHugh J in Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413 [49] [50] in a passage cited with approval by the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 (Walker HCA) [51]. McHugh J said as follows:

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 [49] [50]. (footnotes omitted)

149 The hypothetical purchaser should be regarded as prudent: Spencer (440 441); Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158 (Mount Lawley [No 3] (2008)) [25]. Consistently with that, the hypothetical purchaser is to be taken to act rationally: Mir v ValuerGeneral [2009] NSWLEC 139 [43] [45]. I think the same notion is implicit in what Callinan J said in Boland v Yates [265] [269], in contrasting the artificial exercise of identifying the price of the notional bargain with the real world in which sentiment and emotion may significantly influence decisionmaking.

150 The value determined in the way explained above reflects market value.

151 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. See, for example, Boland v Yates [16] and [292]; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 (Mount Lawley (2004)) [281] [287]; Arcus Shopfitters Pty Ltd v Western Australian Planning Commission [2002] WASC 174; (2002) 125 LGERA 180 (Arcus Shopfitters (2002)) [70] [75]. In this case, the plaintiffs made no claim of special value to the owner.

152 There are a number of methods of assessing value. One method, often the primary method, is by analysis of comparable sales. Other methods may be appropriate, depending on the expert evidence: Bronzel v State Planning Authority (1979) 21 SASR 513, 516; Boland v Yates [79], [280] [291].

153 Whatever method is used, it must be borne in mind that the method is only a means to an end. The end the ultimate task is to identify the price at which the hypothetical Spencer parties would reach a bargain: Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 559 560, 576 578; Minister for the Environment v Florence (1979) 21 SASR 108, 116 117; Minister of Environment v Petroccia (1982) 30 SASR 333, 362; Kelly v Western Australian Planning Commission [2006] WASC 208 [157] [158].

154 I will say more about the choice between competing methods of valuation in section 9.

155 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': Spencer (441). This is often referred to as the land's highest and best use.

156 In a passage adopted by the Court of Appeal of Victoria in ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447 [40], Biscoe J explained the concept of highest and best use in Commonwealth Custodial Services Ltd v ValuerGeneral (NSW) [2006] NSWLEC 400; (2006) 148 LGERA 38 [15]:

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.'

See also Trandos v Western Australian Planning Commission [2001] WASCA 346 [72].

157 In Mount Lawley (2004), the Full Court said as follows:

The skill of the valuer lies in assessing (in this case) the market value of the reserved Mount Lawley land, had it been offered for sale on 7 May 1996. 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 [184] [185].

158 Thus if the most profitable use of the land is one not permitted by its current zoning, the concept of highest and best use requires the potential of the land to be used for that more profitable use, after necessary planning approval, to be taken into account. It does not require or permit an assumption that the necessary planning approval will be forthcoming. 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.

159 In a particular case, the highest and best use of land may be a single use or a package of alternative uses, depending on the evidence: ISPT v Melbourne City Council [57].

2.4 The knowledge to be attributed to the hypothetical parties

160 The knowledge of and information available to the hypothetical parties is expressed in the passages in Spencer (441) and Kenny & Good v MGICA [49] [50] set out in section 2.2 above. The hypothetical parties are taken to have access to all currently available information that affects the property.

161 The hypothetical parties are taken to be aware of all information relevant to the market price about which a prudent purchaser would inquire: Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGERA 98 [489]; Mount Lawley [No 3] (2008) [25].

162 The hypothetical purchaser would have such expert advice as a prudent purchaser would, in the circumstances of the case, have obtained: Cook v Roads and Traffic Authority of New South Wales [2007] NSWLEC 136 [12]; Coundrelis v Roads and Traffic Authority of New South Wales [2008] NSWLEC 72 [51]; Taylor v Port MacquarieHastings Council [2010] NSWLEC 113 [49]. See also De Ieso v Commissioner of Highways (1981) 27 SASR 248, 252; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2004] NSWLEC 315; (2004) 134 LGERA 195 [123] (overturned on appeal, but not on this point). 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 in 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 note and take into account the existence of conflicting opinions.

2.5 The nature of valuation and the role of the court

163 In determining the value of the land taken, the court relies on the evidence of professionally qualified valuers. The court is not itself a valuation agency: Mount Lawley (2004) [183].

164 By its nature, valuation involves an inquiry about which reasonable minds may well differ widely: Boland v Yates [12], [174]; Mount Lawley (2004) [182].

165 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. In The Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373, the Privy Council said as follows:

It is quite true that in all valuations, judicial or other, there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others. Everyone who has gone through the process is aware of this lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures, of more or less weight according to his experience and personal sagacity. In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there is little experience, there is more than ordinary room for such guesswork; and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at (391).

That passage has been cited with approval in a number of cases in the High Court, beginning with Spencer, and in other Australian appeal courts.

166 Some of the adjustments to values deduced from comparable sales in order to arrive at valuation may be 'nothing more than the best guess that can be made': Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 434; Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156, 182 183. See also Duffy v The Minister for Planning [2003] WASCA 294 (Duffy (2003)) [29] [31].

167 It has often been said that the court must not allow itself to be cast in the role of the 'third valuer': Brewarrana Pty Ltd v Commissioner of Highways (No 2) (544 545); Bronzel v State Planning Authority (523); Arcus Shopfitters (2002) [76]; Tyler v Thomas [2006] FCAFC 6; (2006) 150 FLR 357 [55] [56]. Valuers have their own experience, training and skill and that role must not be usurped by the court: Bronzel (523).

168 On the other hand, it is clear that the court is not obliged simply to adopt one of the valuers' opinions. The court can make such adjustments to value as are required by the evidence: Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499 (Mount Lawley (2007)) [391]; Arcus Shopfitters (2002) [76]; Corporation of the City of Adelaide v City of Port Adelaide Enfield [2000] SASC 271; (2000) 110 LGERA 153 [88] [89]. 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: Brewarrana (545).

169 This invites attention to what precisely is impermissible.

170 There was no issue between the parties in this respect. The parties agreed that the court cannot adopt a valuation methodology that was not supported in any of the valuers' evidence. Further, the parties agreed that the court cannot simply take an average of competing valuations in order to resolve their differences. I am content to accept those propositions. However, I note that there is room for doubt about the first proposition: see Downie v Sorell Council [2005] TASSC 74; (2005) 141 LGERA 304 [33]. The parties did not identify anything else that is impermissible.

171 At the risk of stating the obvious, I would add that, in valuation as in all spheres of the judicial function, the court must act only on the basis of evidence.

172 In this case, the valuers have expressed different opinions about the weight to be given to the comparable sales method as against the hypothetical subdivision analysis method. Further, they disagree on the proper analysis of various of the sales relied by some as comparable sales; and they disagree on whether and to what extent various sales are comparable with the subject land. Further, the valuers disagree on a number of the inputs in their hypothetical subdivision analyses. The parties agreed that in considering those issues, the court was not obliged to simply to choose among the competing view of the experts. Rather, it is open to the court to come to a conclusion on any of these issues that was not specifically espoused by any valuer (see ts 7289 7295, 7363 7367).

173 It is a conventional element of the judicial task to resolve competing expert opinion. The judge determines what expert evidence is to be preferred, what evidence is accepted and what evidence is rejected. The judge is not obliged to accept all or any of either of two competing expert opinions. In an ordinary civil case, if the judge rejects both experts' opinions on a question, the burden of proof may resolve the gap left by the rejection of all the expert evidence on a particular point. In a valuation case, the burden of proof does not always provide a means to resolve an absence of evidence on a question of valuation. The court must come to a conclusion on the question of value; it cannot say that the value was not proven. The notion that the court is not a third valuer expresses limits on the role of the court in a valuation case. In my opinion, those limits do not require the court to act on any evidence of any valuer which, for proper reason, the court does not accept.

174 As will be seen in section 9 of these reasons, in the end I reject the major elements of the reasoning of all of the valuers. I identify those sales which I think assist in deriving a value, and analyse what each sale indicates. My views do not accord, even broadly, with any of the valuers. After looking at the sales evidence as a whole, I derive a value from the sales I find of assistance. It might be said that, in substance, this means that I undertake my own valuation. I do not think that is the question. In light of the findings I make in section 9, I see no alternative but to do what I do.

2.6 Doubts to be resolved in favour of the dispossessed owner

175 The plaintiffs emphasised the often stated principle 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. The principle was stated by Dixon J in Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd [1947] HCA 10; (1947) 74 CLR 358, as follows:

I should like, however, to add for myself that there is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court's attitude in the application of the test. In a case of compensation doubts are resolved in favour of a more liberal estimate (373 374).

176 The principle was approved by Callinan J in Boland v Yates [356], [100] (Gaudron J), [111] (Gummow J). The principle has been applied in many cases. See, for example, Cook & Edwards v City of Stirling (1991) 4 WAR 469, 473.

177 This principle is not a substitute for the undertaking by a court of its duty to evaluate and adjudicate upon disputed issues of fact, including conflicting expert opinion: Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of NSW (1998) 101 LGERA 30, 50. The position was explained by Allsop P in Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 [3] [4] , (Sackville AJA agreeing [191]):

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 316318. 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 7677. 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 as the statement of the judge at [81] of her reasons would suggest she did [3] [4].

178 The different approach taken by Tobias JA [140] [148] was a minority view. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWLEC 219; (2009) 173 LGERA 155 [30], Biscoe J applied what was said by Allsop P. I propose to do the same.

2.7 'Discounting any increase or decrease in value attributable to the proposed public work'

179 Section 241(2) of the LA Act requires the value of the land to be assessed on the date of taking 'discounting any increase or decrease in value attributable to the proposed public work'.

180 The parties put fundamentally different positions about what the application of the discounting element of this section required or permitted in this case.

181 Before dealing with those issues, it is convenient to deal with two matters that were not in substantial controversy between the parties. The first is the identification of the 'proposed public works' in this case; the second is the proper construction of the word 'attributable' in s 241(2).

182 The parties were agreed as to the identification of the proposed public works in this case and the action was conducted on that basis.

183 Part of lot 192 was taken for the purpose of 'New Perth Bunbury Highway'. The parties agreed that the proposed public work is the 70 km of new road to link the Kwinana Freeway, where it previously terminated at Safety Bay Road in Baldivis, to connect to the Old Coast Road at Lake Clifton. In these reasons I will refer to that by the shorthand 'the Highway'.

184 In opening, the defendants accepted that notwithstanding that, at different times from the 1970s until 2006, there were differences in the proposed alignment of the Highway (although not over lot 192), the references in planning and other documents to the Highway were, from the 1970s, attributable to the proposed public work (ts 1317 1319); cf Mount Lawley (2007) [29], referred to below.

185 The rest of lot 192 and all of lot 191 were taken for the purpose of ROS. It was pleaded in the statement of claim and admitted in the defence that this land was resumed for the purpose of ROS with the intention of constructing the Regional Recreation Facility (RRF). The plaintiffs' SIFC stated that the land was taken for ROS, the relevant public work being 'more specifically the [RRF]': [3].

186 The plaintiffs' opening, and other documents provided by the plaintiffs, including the Changes Document, proceeded on the basis that the proposed public work of ROS encompassed the RRF and that the effect of the proposed RRF on the value of the subject land was part of what was to be discounted under s 241(2). The plaintiffs adhered to that position in closing (ts 7326 7328). In closing, the plaintiffs also pointed out that the purpose of the taking was ROS, so that any use within that broader purpose would be consistent with the purpose of the taking. That may have significance for other purposes; for present purposes, the plaintiffs accepted that the proposed public work encompassed the ROS and the RRF.

187 Given the parties' agreement as to the identification of the proposed public works, it is not necessary to give detailed attention to the process by which the proposed public work is to be identified. The following are among the matters that might be relevant.

188 The power to take land is exercised under LA Act s 161. If no agreement to take the land is reached, a notice of intention to take must be given under s 170. The notice of intention must include particulars of the public work for which the land is proposed to be taken: s 171(1)(b)(i).

189 The taking order must contain the matters required by s 178. One of the things a taking order must do is designate appropriately any land or interest in land required for the purpose of the public work: s 178(1)(d). 'Designate' is defined in s 151 to mean 'to reserve, declare, covenant, dedicate, set apart or otherwise mark off for use for a specified purpose by means of an annotation on or instrument registered against the certificate of title or certificate of Crown land title'. Section 241(2) refers to the proposed public work, not in terms to the designated purpose.

190 The term 'proposed public works' is also used in s 182(1) and in s 186.

191 In the Clause and Committee Notes, Land Administration Bill 1997 (WA), 190 it is said of s 241(2) that '[i]n considering the valuation of the land and improvements the future impact of the public work is disregarded'. The reference to 'future impact' should be noted. Nevertheless, for reasons which will emerge, I do not consider that the discounting required by s 241(2) relates only to the future impact of the public work. Rather, this section requires also that an increase or decrease in value occurring or caused by something prior to the taking, and attributable to the proposed public work, is to be discounted. The contrary was not argued by the defendants.

192 In this statutory context, the terms of the notice of intention may be relevant to the identification of the proposed public works. In this case, the notice of intention is not in evidence.

193 In any event, as I have said, the parties agreed as to the identity of the proposed public works.

2.7.2 The meaning of 'attributable' in s 241(2)

194 In Mount Lawley (2007), the Court of Appeal construed s 36(2b) of the Metropolitan Region Town Planning Scheme Act 1959 (WA) (the Scheme Act). That section stated that the value of land acquired by the WAPC was to be determined 'without regard to any increase or decrease, if any, in value attributable wholly or in part to the Scheme'.

195 At [26] [27] and [29] [30], the court said as follows:

In considering what is, or is not, a 'step' in the context of s 36(2b), the question to be answered is, as we have said, whether or not an increase or decrease in the value of the land to be acquired by the respondent is 'attributable to' the Scheme. Any number of events having an effect on the value of land, including political, scientific, social or commercial occurrences, might be precursors to, or lead up to or have some relation to, a Scheme, but that is not to say that those changes in value are necessarily attributable to the Scheme itself. They may or may not be so.

The difficulty is most acute when considering 'steps' that precede the Scheme. On the face of it, they will have an impact on value attributable to the Scheme only if that impact is attributable in whole or in part to the proposed Scheme itself as, for example, the advertising of the Scheme or a publication of some other kind that is a prerequisite to the coming into effect of the Scheme. However, proposed Schemes may alter as they develop and foreknowledge of their likely occurrence can be obtained by the property market during the development stage. In Wilson v Liverpool Corporation [1971] 1 All ER 628 Lord Denning said:

'A scheme is a progressive thing. It starts vague and known to few. It becomes more precise and better known as time goes on. Eventually it becomes precise and definite, and known to all. Correspondingly, its impact has a progressive effect on values. At first it has little effect because it is so vague and uncertain. As it becomes more precise and better known, so its impact increases until it has an important effect. It is this increase, whether big or small, which is to be disregarded as at the time when the value is to be assessed. (634)'

Just when this effect on value is attributable to a step in 'the Scheme' (as opposed to something less than or different from the Scheme) raises difficult questions in the application of s 36(2b).

...

It is true that a Scheme is 'a progressive thing'. However, as we have said, the step or occurrence affecting value must be 'attributable' to the Scheme itself and not (as we understand s 36(2b)) to some different, or as yet unformed, notion that ultimately led to the creation of the Scheme. A step must be attributable to the Scheme, not the Scheme to a step. That is to say, the step must have been taken in order to bring about the Scheme itself, or a variant of it that is not materially different. As to this last proposition, it seems to us that a step may be attributable to a Scheme even if the form which the proposed Scheme then took differed from that which the Scheme ultimately took, so long as the difference is not such as to lead to the conclusion that the Scheme ultimately created was not substantially that which had been proposed. It also seems to us that the step must be taken with the intention of facilitating the Scheme or for the purpose of creating it, if it is to be attributable to the Scheme. So, for example, some proposed general planning consideration that may or may not lead to a Scheme of the kind ultimately implemented could not be said to be attributable to the Scheme merely because, as matters turned out, a Scheme which adopted that planning consideration was subsequently implemented (cp the approach taken in respect of the different legislation in San Sebastian (213)).

Also, the words 'attributable to the Scheme' plainly have the consequence that the effect on value of 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 Scheme. That is so even if they are specifically identified, or otherwise referred to, by the Scheme: see in this respect the approach adopted (albeit in the context of different legislation) by Basten JA in Walker No 1 [63]. The same is true of inherent characteristics of, or other factors affecting, land that is adjacent to the subject land, so far as those characteristics or factors are capable, independently of the Scheme (and its steps), of affecting the development potential, and hence the value, of the subject land. Regard to characteristics and factors of either kind might lead a hypothetical, informed purchaser to anticipate, independently of the Scheme and its steps, an outcome similar to that which in fact happened as a result of the Scheme. In such a case the Scheme (or knowledge of steps leading to it) may have no impact on the value of the land.

196 The following propositions emerge from these passages.

(a) It is not sufficient, in order that an increase or decrease in value be attributable to the Scheme, that something is a precursor to, leads up to or has some relation to the Scheme [26].

(b) The step or occurrence affecting value must be attributable to the Scheme itself and not to some different notion that ultimately led to the creation of the Scheme [29].

(c) The step must be attributable to the Scheme, not vice versa. That requires that the step must have been taken in order to bring about the Scheme itself or a variant of it that is not materially different [29].

(d) If it is to be attributable to the Scheme, the step must have been taken with the intention of facilitating or for the purpose of creating the Scheme [29].

(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 Scheme [30].

197 In opening (ts 251 252) and closing submissions (ts 7375) the plaintiffs submitted that the approach in Mount Lawley (2007) to the construction of 'attributable to the Scheme' was applicable to the proper construction of 'attributable to the proposed public work' in s 241(2). The defendants also invited application of the approach in these paragraphs of Mount Lawley (2007) (closing submissions pars 72, 82, 100).

198 Consistently with this, in Startrail Pty Ltd and Main Roads Western Australia [2009] WASAT 243 [42], Chaney P held that the discussion in Mount Lawley (2007) regarding increases or decreases in value attributable to the Scheme was applicable to the proper construction of increases or decreases in value attributable to the proposed public works in s 241(2). That is the approach I propose to adopt.

199 In section 4.5 I will make findings about what matters, if any, prior to 1995 are attributable to the ROS/RRF.

2.7.3 Does s 241(2) invite or permit attention to the hypothetical zoning of the land, absent the proposed public works?

2.7.3.1 Hypothetical zoning question: introduction

200 As I have explained in section 1, the plaintiffs contend and the defendants deny that, in this case, s 241(2) has the effect that the subject land should be valued on the basis of the zoning which it would have had, but for the proposed public works (the past hypothetical rezoning). The plaintiffs contend that, in order to do so, the court should make a finding about what zoning the land would have had, but for the proposed public works.

201 As I have outlined already, the plaintiffs' case is that:

(1) as a matter of fact, the retention of the rural zoning and the reservation of the land were attributable to the Highway and the ROS/RRF;

(2) but for the proposed public works, the land would have been zoned urban at the date of taking;

(3) accordingly, the retention of that rural zoning and the reservation of the land decreased the value of the subject land;

(4) consequently, under s 241(2), that decrease in value must be discounted; and

(5) the practical effect of this, or at least an appropriate means of discounting under s 241(2), is to value the land as if it had been zoned urban at the date of taking.

202 The defendants say that the plaintiffs' past hypothetical rezoning approach is impermissible in law, being contrary to both principle and authority. The defendants contend that s 241(2) requires the discounting, not the disregarding, of increases or decreases in value. It does not require the disregarding of any facts. They contend that s 241 does not permit the construction or postulation of an assumed state of affairs (a 'hypothetical universe') without the proposed public works, or the making of a finding about what the zoning would have been. Further, they contend that, for the purposes of valuation, the only question is about the potential, as at the taking date, of rezoning from rural to urban. The making of a finding, on the balance of probabilities, about what the zoning would have been at that time is impermissible. Consequently, the defendants object to the voluminous evidence of witnesses called by the plaintiffs bearing on the past hypothetical rezoning case, on grounds of irrelevance. The defendants agreed that I should rule on the objection in the course of my reasons for decision.

203 The issues between the parties can be explained by reference to the IPRSP and the PRS. In the IPRSP, the subject land was designated for public purposes: 'State Highways and Roads Existing and Proposed' and 'Open Space Recreation'. In the PRS it was reserved for Regional Open Space and for Primary Regional Roads. The plaintiffs contend that, but for the proposed public works, the subject land would have been designated future urban in the IPRSP (if not already urban under TPS 4) and zoned urban in the PRS. The defendants contend that that is an impermissible approach, and that the land must be valued on the basis that it was designated and zoned rural.

204 For the reasons that follow, I do not accept these contentions of the defendants and would reject the defendants' objection on grounds of relevance. In my view, the discounting requirement of s 241(2) is capable of being given effect to in the manner contended by the plaintiffs.

205 The defendants' contention that the plaintiffs' past hypothetical rezoning approach is contrary to authority invites attention to the decided cases. In my view, the weight of authority supports the permissibility of the past hypothetical rezoning question. I begin in this section 2.7.3.2 with a general survey of the cases on what has, in the past, been termed the Pointe Gourde principle (Pointe Gourde Quarrying and Transport Company Ltd v SubIntendent of Crown Lands [1947] AC 565). I then move in section 2.7.3.3 to cases which support the past hypothetical rezoning approach.

206 Recent cases have emphasised that a question about how a section like s 241(2) applies to a case must be approached as a matter of construction of the particular statutory provision, in the context of the statute as a whole. In construing statutes, the court must give effect to the purpose of the legislation. The primary guide to understanding the purpose of legislation is the natural and ordinary meaning of the words of the legislation. Courts should not 'slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation': Walker HCA [31]. It is the terms of the relevant legislation that are determinative. It should not be assumed that legislation reproduces or attempts to reproduce an understanding of 'principles' stated in other cases such as Pointe Gourde: Walker HCA [47]. See also to the same effect Mount Lawley (2007) [15]; Trandos v WAPC [70].

207 Nevertheless, as the Court of Appeal observed in Mount Lawley (2007) [15], the cases concerning the Pointe Gourde principle and various statutory emanations of it are helpful. Of course, the various different statutory contexts of the cases must be kept in mind. I turn to some of those cases.

208 In Pointe Gourde (572) it was held 'that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition'.

209 In Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426, the Privy Council held that the principles stated in Pointe Gourde apply equally to any decrease in the value of the land due to the scheme underlying the acquisition. The Privy Council said as follows:

A resuming authority cannot by its project of resumption destroy the potential of the whole 37 acres for development as a drive-in shopping centre, and then resume and sever on the basis that that destroyed potential had never existed. Moreover, in their Lordships' opinion the principle remains applicable in a case such as the present, notwithstanding that planning permission had not been given for the whole 37 acres and would not have been given, when the lack of such permission was manifestly due to the expressway project, and it is established that, without the expressway project, such planning permission would have been given for the whole 37 acres. To hold otherwise in this case would enable the acquiring authority to inflict by its project the same injustice at one remove (434).

210 The Privy Council's statement of the purpose of the Point Gourde approach was adopted by the High Court in The Crown v Murphy [1990] HCA 42; (1990) 64 ALJR 593 to which I will refer shortly. Similar statements of the purpose can be found in many cases. See, for example, Rees v Minister for Planning and Housing (1991) 76 LGRA 167, 171; Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143, 149 150.

211 In Housing Commission of New South Wales v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196, the court was concerned with s 124 of the Public Works Act 1912 (NSW). That section provided that compensation for land compulsorily acquired should be assessed without regard to any alteration to the value of the land arising from the establishment of any public works upon or for which the land was resumed. Jacobs J (205) described s 124 as stating in statutory form a principle which had been developed in the cases independently of express statutory provision, referring to Pointe Gourde. (In this respect, what his Honour said must be taken as having been overtaken by what is said in Walker HCA [29] [47].) Jacobs J then said:

A difficulty which arises in the application of this principle is that valuation is in the ordinary case based on market value and, if the proposed public purpose and the possibility or likelihood of resumption therefore has become known prior to the date of resumption, the market value at the time of resumption will probably reflect by way of increase or decrease the possibility or likelihood of resumption for that public purpose. Therefore that value cannot be accepted. Yet it is inevitably in most cases the starting point of the process of valuation. With the actual market value at the time of resumption as the starting point it is then necessary to determine whether that value has been depressed or elevated by the market's foreknowledge of the possible or likely public purpose and consequent resumption. It is therefore inevitable in such circumstances that the public purpose has to be taken into account in the process of valuation but it can be taken into account only for that purpose (205 206).

212 Jacobs J dealt first with situations where there was what he called a 'direct relationship' between the imposition of restrictions on land use and the proposed establishment of the public works. Those cases encompassed situations where the explicit or practical use of the land was restricted to a use for a public purpose for which the land might be resumed and where such a restriction had been imposed as a result of consultation with or direction by the public authority concerned with the carrying out of the relevant public purpose. In such situations the effect on value of the zoning or restriction must be ignored (206).

213 His Honour then went on to consider situations where the relationship between the zoning and the proposed public work is not so clear cut. He explained, by way of an example, as follows:

Assume an area of land on the outskirts of existing settlement, and assume a planning authority concerned to designate land uses in a planning scheme. The land is designated open space. Thereafter it is resumed for the purpose of a public reserve. The fact that the land was zoned as open space may have depreciated its value. Does the resuming authority pay compensation at the depreciated value of open space or at some other value? The question cannot be correctly answered without knowing whether there was any connexion between the zoning as open space and the subsequent resumption. If the zoning was done with the intent or in anticipation that the land should be resumed for a purpose such as a public reserve or if the zoning was proposed or dictated by the resuming authority then s 124 requires that the zoning be ignored. It is only a step in the process of subsequent resumption. But in other circumstances the resumption may be unconnected with the act of zoning. It may be that the resuming authority selects the land for resumption as a public reserve because it is zoned open space; if it does so it is doing no more than ensuring that it, as well as others, conforms to the planning scheme. In those circumstances there is no relevant relationship between the zoning and the public purpose. No public purpose, existing or anticipated, intended, or urged by the zoning authority, leads to the zoning; rather, the zoning leads to the public purpose and consequent resumption (206 207).

214 The reference to something being 'a step in the process of subsequent resumption' has been taken up in many other cases. The notion of a step should not be accorded statutory force. Section 241(2) directs attention to what is 'attributable to the proposed public work'. In Mount Lawley (2007) [19] the court adopted the parties' approach of treating the notion of a 'step' in the Scheme as reflecting something that was attributable to the Scheme.

215 These passages which I have set out were cited with approval in Mount Lawley (2007) [17] [18].

216 In these passages Jacobs J described two situations where the zoning was to be ignored as a step in the process of subsequent resumption:

(a) if the zoning was done with the intent or in anticipation that the land should be resumed for a purpose such as a public reserve; or

(b) if the zoning was proposed or dictated by the resuming authority.

217 Jacobs J considered that the question of what the zoning would have been, but for the purpose of public housing for which the land rezoned, was relevant to the amount of compensation payable under s 124 (211 212).

218 In San Sebastian, Jacobs J construed the words 'establishment of public works' as being:

[W]ide enough to cover the whole subject matter of the establishment of the particular public work - proposal or requirement by the relevant authority, intention of the planning authority by such a zoning to induce the establishment of a public work, even urging by outside bodies that the public work should be established (213).

219 With reference to that passage, the Court of Appeal in Mount Lawley (2007) [25] pointed to the wider language of the NSW statute, compared to s 36(2b) of the Scheme Act.

220 In The Crown v Murphy, the High Court was concerned with a resumption under the Acquisition of Land Act 1967 (Qld). Land zoned rural was resumed under that Act for environmental protection purposes (namely, the protection and preservation of a turtle rookery). An application to rezone the land to residential had earlier been refused by the local authority because of the detrimental effect on the turtle rookery, having also received submissions to that effect from the National Parks and Wildlife Service.

221 The Queensland Full Court had stated that restrictions on land use maintained as a result of consultation with the resuming authority must be ignored for the purpose of assessing the value of the resumed land. The High Court described that statement of principle as unexceptionable (595). The court said as follows (595):

One purpose of this principle is to ensure that a resuming authority does not employ planning restrictions to destroy the development potential of the land and then assess compensation for its resumption on the basis that the destroyed potential had never existed: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426, 434. The principle applies in cases where there is a direct relationship between the planning restriction and the scheme of which resumption is a feature and extends to cases where there is merely an indirect relationship, provided that the planning restriction can properly be regarded as a step in the process of resumption: Housing Commission of New South Wales v San Sebastian Pty Ltd, at 206 207.

222 This passage was applied in Mount Lawley (2007) [14].

223 The High Court went on to point out that a characteristic or attribute of the land, affecting its value, must be taken into account in the assessment of compensation even if the planning restriction that was a step in the process of resumption was dependent upon or directed to that characteristic or attribute. Ultimately, that point was of decisive significance in the case.

224 In Walker HCA, land owned by Walker Corporation was acquired by the Sydney Harbour Foreshore Authority 'for the purposes of the Sydney Harbour Foreshore Authority Act 1998' [4]. The applicable legislation entitled an owner of land to compensation. One of the matters required to be considered was the market value of the land on the date of its acquisition. 'Market value' was defined by s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Just Terms Act) to require that 'any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired' be disregarded.

225 For many years before the announcement of the acquisition by the Foreshore Authority, the local council had maintained industrial zoning of the land to prevent development for residential purposes with a view to the land later being acquired by the council or by the State Government for use as a public park.

226 Section 3(1)(a) of the Just Terms Act provided that one of its objects was 'to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition'.

227 The High Court at [53] [54] held that in this statutory context it was not sufficient that there be an 'indirect relationship' as identified in San Sebastian, where the maintenance of the planning restriction by the local council was seen as a 'step in the process of resumption', in order that the effect of the restriction on the land's value could be disregarded. That is because the court construed s 56(1)(a), in light of s 3(1)(a), as directing attention to a proposal of the resuming authority, not of some other entity such as the local council. The policy revealed by the section was to require a disregard only of that increase or decrease in value for which the resuming authority was responsible.

228 In this case, although the defendants' written closing submissions suggested otherwise, the defendants accepted that a like conclusion could not be drawn in relation to s 241(2). I am content to proceed on that basis, which seems to me to be correct. The discounting required by s 241(2) is not limited to decreases or increases in value caused by the conduct of the acquiring authority. It is any decrease in value attributable to the proposed public works that is to be discounted. For example, a decrease in value attributable to a reservation by the shire, in the relevant town planning scheme, for the purposes of a proposed public work for which the land is later taken by an acquiring authority is to be discounted under s 241(2), notwithstanding that the reservation of the land is not an act of the acquiring authority.

2.7.3.3 The cases: past hypothetical rezoning question?

229 There are a number of valuation cases concerning other legislation which support an approach along the lines invited by the plaintiffs in this case, to the following effect. If the zoning or reservation of land is attributable to the scheme/acquisition/public work and decreases the value, the court should, or at least may, determine what the zoning of the land would have been but for the scheme/acquisition/public work, and then value the land on that basis.

230 In RTA v Perry [2001] NSWCA 251; (2001) 52 NSWLR 222 [14] Handley JA stated, quoting the speech of Lord Hope of Craighead in Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] UKHL 10; [2000] 2 AC 307, 315, that 'the whole question must be approached upon a consideration of the state of affairs which would have existed if there had been no scheme'.

231 In the passage from Melwood Units I have set out above there is specific reference to the fact that, but for the resumption, certain planning permission would have been given.

232 In Rukavina v The Council of the City of Wagga Wagga [1993] NSWLEC 29, Pearlman J applied s 56(1)(a) of the Just Terms Act, the provision dealt with in Walker HCA. Pearlman J described the task of the judicial valuer as being to determine what planning controls would apply to the land had it not been reserved or zoned for a particular purpose. Pearlman J acknowledged that that determination may by its nature be 'largely conjectural'.

233 The plaintiffs relied heavily on the threestep approach enunciated in Smith v Roads and Traffic Authority of New South Wales [2005] NSWLEC 438 [63]. In that case, McClellan CJ stated that the traditional approach under s 56(1)(a) of the Just Terms Act involved three steps:

1. Identify the zoning of the land at the date of acquisition.
2. Determine whether that zoning was imposed or retained in order to facilitate the implementation of the public purpose for which the land was acquired.
3. If the answer to question 2 is yes, that zoning is notionally set aside, and the potential of the land and ultimately its market value is assessed by determining how the land would have been zoned, at the date of acquisition, but for the proposal to carry out the public purpose [63].

234 His Honour cited a number of decisions in this regard.

235 The defendants submit that Smith supports making a finding as to the zoning of the land on the taking date, but does not support making a finding about the zoning of the land at any date before the taking date (ts 7119, 7122 7123). I do not accept that submission. In Smith, the taking date was in 2004, though the location of the public work, a bypass road, had been fixed since the early 1970s [131]. McClellan CJ found that the land would have been zoned in a certain way under a 1989 plan and zoned that way at the date of acquisition [124], [131]. It was implicit that the zoning under the 1989 plan would have endured to the date of taking.

236 The approach in Smith was considered by the New South Wales Court of Appeal in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (No 2) [2006] NSWCA 386; (2006) 68 NSWLR 487 (Walker CA (No 2)) [57] [62]. In summary, the Court of Appeal emphasised the need to formulate questions with reference to the statutory language. It commented that if the three questions from Smith [63] were reformulated to reflect the statutory language, that approach would be legitimate. The second question was reformulated to reflect the statutory language in NSW as follows:

1. Determine whether the imposition or retention of that zoning was part of the carrying out of the public purpose or part of the proposal to carry out the public purpose for which the land was acquired [60].

If it was, and if it caused a change in the value of the land, the change needed to be disregarded. One method of doing that was for the court, consistent with the third question in Smith, to determine, on the probabilities, the zoning which would have otherwise applied and to assess value on that basis: [59] [61].

237 In the present context, if an analogous approach would be taken to LA Act s 241(2), the question would be whether the zoning of the land was attributable to the proposed public works. If it was, and if caused a change in the value of the land, one method of discounting that change is to determine the zoning that would have otherwise applied at the taking date and to assess value on that basis.

238 Contrary to the defendants' submissions set out below, that determination considers the alternative zoning of the land from the point in time at which the zoning was first attributable to the proposed public works. In short, that approach supports the plaintiffs' contentions.

239 What was said in Walker CA (No 2) in this regard was considered in Mount Lawley (2007). The defendants submit that in Mount Lawley (2007) the court said that the approach in Walker CA (No 2) and in Smith was generally inapplicable. For reasons to be developed, I do not accept that submission. I will deal with it in the context of considering Mount Lawley (2007).

240 These New South Wales decisions must now be understood in light of the decision in Walker HCA. The effect of the High Court decision is that in New South Wales, it is only changes in value for which the resuming authority is responsible that must be disregarded. That means it is only if the imposition or retention of the zoning is caused by the resuming authority's proposal that the zoning must be disregarded and the zoning that the land would otherwise have had, but for the proposal, must be determined: Caruso v Sydney Water Corporation [2008] NSWLEC 320 [36] [38]. As I have stated above, the limit explained by the High Court in Walker HCA does not apply to s 241(2).

241 In a number of cases concerned with Public Works Act 1902 (WA) s 63 (at one time called the Land Acquisition and Public Works Act 1902 (WA)), judges at first instance in this court have given attention to what the zoning of the land would have been, but for the reservation or public work.

242 Section 63 of the Public Works Act provided that the value of land was to be determined 'without regard to any increased value occasioned by the proposed public work'. The courts have applied this section on the footing that it also applies to a decrease in value caused by the proposed public work.

243 In Duffy v The Minister for Planning [2002] WASC 201 (Duffy (2002)) [17] [18], McKechnie J made a finding that the City Northern Bypass Reservation (CNBR) had blighted the land in question and surrounding land. He made a finding as to the most probable zoning of the land under the applicable scheme if the CNBR had not existed [39].

244 Further, in considering comparable sales, McKechnie J stated that the blight caused by the CNBR needed to be brought to account, as follows:

In the present case the blight increases the need and speculation by valuers and town planners looking back to 1963 and then hypothesising as to future development which may have occurred without the CNBR. Thirtytwo years have passed affecting the land within the CNBR. There was clearly a blighted effect caused by the reservation. The best that can be done is to hypothesise as to the probable development of Newcastle Street over a third of a century. Necessarily, this gives rise to possible differences of opinion, each opinion being reasonably held. Each opinion is a forecast of the future in hindcast.

What is a Judge to do? I perceive the task to be to listen to the experts' opinions, select those which seem, for one reason or another, to be the most persuasive and credible, and determine from those opinions, and other evidence, the probable development of a blighted area had a reservation over land not existed. A Judge usually decides which sales of land are most comparable to the subject land. From this the Judge is to reach a conclusion as to the fair market value for the land at the time of the resumption. In this exercise, the Judge is not an investigator. These are adversarial proceedings and the plaintiff carries the onus of establishing the fair market value on the balance of probabilities. Nor is the Judge a valuer. The Judge must decide on the factual evidence having regard to such expert opinion evidence or part thereof which the Judge accepts [115] [116].

245 An appeal from McKechnie J's decision was dismissed: Duffy (2003). These aspects of the decision did not seem to be in question. At [11], McLure J (Anderson and Steytler JJ concurring) observed that it was not in dispute that the valuers had to make allowance for decreases in market value as a result of the CNBR. At [18], McLure J said that the trial judge found that in the absence of the CNBR the land would have been zoned in a particular way and that finding was not contested. There was no suggestion it was the wrong question.

246 In Arcus Shopfitters (2002) Pullin J referred to the difficulties that arise when a reservation had been in place for over 30 years. He said that the court can consider 'careful professional informed speculation to arrive at conclusions about what conditions would have been relevant to the development of the subject land' on the date of resumption, had there been no CNBR [59]. He posed the question, and made a finding about, what the zoning of the land would have been if there were no reservation: [64] [65]. There was no challenge to that finding on appeal: Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [15] (McLure J, Anderson and Steytler JJ concurring). Nor was it suggested that the finding was directed to an irrelevant question.

247 In Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122; (2003) 27 WAR 403 [12] [16], Pullin J set out what he described as the scheme leading to the resumption. He found that part of the scheme was carried into the shire local rural strategy: [13]. He concluded as follows [17]:

For the purposes of assessing compensation, these restrictive provisions in the Oakajee Industrial Scheme which adversely affect the value of the subject land must be disregarded because it was the Oakajee Industrial Scheme which led to the resumption. See Pointe Gourde Quarrying & Transport Co Ltd v Sub Intendent of Crown Lands [1947] AC 565; Housing Commission (NSW) v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196; R v Murphy [1990] HCA 42; (1990) 95 ALR 493 at 496; Wilson v Liverpool Corporation [1971] 1 All ER 628 at 634 and 635; Roads & Traffic Authority of New South Wales v Perry [2001] NSWCA 251; (2001) 52 NSWLR 222 at 232; Rees v Minister for Planning & Housing (1991) 76 LGRA 167 at 171. These authorities indicate that in assessing compensation, there must be excluded from consideration those planning restrictions on the land which result from a scheme for the implementation for a public purpose for which the land was acquired. Such a scheme may be an evolving and progressive process, and may involve several statutory authorities. The ultimate question then becomes one of determining the planning status and value of the subject land as if the public purpose for which it was resumed had never been contemplated (RTA v Perry (supra) at 232).

248 Startrail and Main Roads concerned a claim by Startrail for compensation from Main Roads in relation to land compulsorily taken for the purposes of the Perth Bunbury Highway. The parties proceeded by way of preliminary determination of certain questions. The first question was what would the zoning of the taken land and remaining land have been if not for the primary regional road reservation for the Perth Bunbury Highway. The preliminary questions were framed by the parties, not by the Tribunal. Nevertheless, there is nothing in the Tribunal's reasons to indicate that it considered the first preliminary question to be the wrong question. To the contrary, the Tribunal's discussion of s 241 of the LA Act, and of Mount Lawley (2007) and San Sebastian, appears to me to indicate that the Tribunal considered that the question properly arose in the application of s 241: see [41] [44].

249 Contrary to the approach taken in all these cases, the defendants contend that no question can arise as to whether the land would, but for the proposed public works, have been zoned urban. Rather, the only question is about the potential for rezoning from rural to urban at the date of taking.

250 The defendants support the submission in a number of ways.

251 First, the defendants say that this approach is compelled by the decision of the Court of Appeal in Mount Lawley (2007). I will return to that submission.

252 Next, the defendants refer to cases which state that the court cannot treat as an actuality what is merely a potentiality, and that it is the land's potentiality, not its later realised potential or hypothetically realised potential that is to be assessed. The defendants refer, among other cases, to Turner v Minister of Public Instruction [1956] HCA 7; (1956) 95 CLR 245 and to McKenna v Municipality of Burnie [1970] Tas SR 279; (1970) 22 LGRA 402, 409. I do not think that these cases, or the other cases relied upon in this respect by the defendants, are of assistance in determining the issues now under consideration. The comments in those cases were directed to the general approach to valuation, not to the disregarding or discounting of the effects on value of the proposed public work or scheme in question.

253 Next, the defendants point to the language of s 241(2) of the LA Act. They emphasise that what is required to be done is to discount an increase or decrease in value, not to disregard facts or events. I accept what the defendants say about the language of s 241(2).

254 The defendants pointed to the decision of the trial judge in Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82 (Mount Lawley (2006)) [49] [50] in support of their submission. However, in Mount Lawley (2007) the Court of Appeal considered that the trial judge had, in that respect, erred. The court explained the position as follows:

The trial judge appears to have accepted a submission to the effect that s 36(2b) of the Scheme Act does not require or authorise the Scheme itself to be ignored, but only the effect on value of the Scheme [49]. Then, he said that this construction led to the submission that, if the Scheme was not to be ignored, it was not permissible to inquire what the zoning of the relevant land might have been, had there been no Scheme [50]. If the effect on value is to be ignored, it will ordinarily be necessary, as it was in this case, to ask what would have been the market perception of the likely zoning in the absence of the Scheme, here the reservation of the Mount Lawley land and the upzoning of the neighbouring land. There is, consequently, no relevant distinction, at least for the purposes of this case, between ignoring the Scheme and ignoring its effect on value. However, it seems to us that this error had no consequence of any significance. It is apparent, from the judgment read as a whole, that the trial judge accepted that it was permissible to consider what was the prospect of upzoning of the Mount Lawley land as at the valuation date and that he regarded the issue of the likely zoning as being foreclosed only in the sense that he was required to assume, as at that date, that the land was still zoned rural [247].

255 The position may be understood in the way explained in Walker CA (No 2). If it is shown, for example, that zoning of the land was attributable to the proposed public work, and if that zoning affected the value, then one way of discounting the increase or decrease attributable to that zoning, in accordance with the command of s 241(2), is to determine what the zoning of the land would have been, but for the proposed public work, and value the land on that basis. As I have said, that is the approach that has been adopted in a number of cases. That is not to say that it is the only permissible approach. Another approach might be along the lines of the prima facie approach explained by Jacobs J in San Sebastian (205 206). One could begin by ascertaining the actual market value, then identify the increase or decrease brought about by the public work, and adjust the market value accordingly.

256 Next, the defendants submit that the approach invited by the plaintiffs involves too many imponderables and is a practically impossible task. While I certainly accept the difficulties inherent in the task, I do not think that it can be said that the difficulties support the conclusion that the approach invited is wrong in principle. In many of the cases I have mentioned the difficulties of the required hypothetical exercise are acknowledged: see, for example, Duffy (2002), Arcus Shopfitters (2002), Rukavina.

(a) by their past hypothetical rezoning case, the plaintiffs are seeking compensation for opportunities that were lost some time before the taking date for reasons independent of the proposed public works and so not still in existence at the taking date; and

(b) compensation must be assessed at the taking date, so that opportunities not still existing at the taking date are not compensable.

(See the defendants' closing submissions pars 77 80, 104 114; see also ts 7160 7171.)

258 The defendants give a number of examples of respects in which they contend that the plaintiffs seek to be compensated for opportunities they had lost prior to the taking date. For example, the defendants submit that the plaintiffs' past hypothetical rezoning case seeks to take advantage of the permissive planning environment applying before the IPRSP so as to obtain a hypothetical rezoning before 1997. The defendants submit that the planning environment pertaining before the IPRSP was long gone by the taking date, given the IPRSP in 1997 and the PRS in 2003, and that the only question by 2006 was how the subject land would be treated in the WAPC review then underway.

259 The defendants rely on Griffith City Council v Polegato (1990) 20 NSWLR 696; Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335; and Goodman v Roads and Traffic Authority of New South Wales [2000] NSWLEC 185.

260 The plaintiffs deny, that for the purpose of these authorities, their case is properly characterised as involving a lost opportunity. For reasons to be developed below, I accept the plaintiffs' submission in this regard.

261 Griffith City Council v Polegato concerned a claim for special value to the owner. Land was resumed in October 1980. Earlier, in 1976, the owners had obtained development consent and building approval to erect shops and residential flats on the land. Some work commenced in 1977. Work ceased after a council officer said, in effect, that work should not take place because there was a strong possibility that the council would require the whole of the land for a car park. The primary judge found that the development project was viable in 1977 until May 1979, but that by October 1980 it had become nonviable. He found that the council's conduct led to the owners abandoning their development project (698 699).

262 The primary judge reasoned that in order for the compensation to be fair, the whole resumption process had to be taken into account, which meant that the viability of the project was to be tested in 1977 or 1978, not 1980 (699).

263 The Court of Appeal upheld an appeal against this part of the primary judge's decision. The court held that the special value must exist at the date of resumption and valuation (701). On the primary judge's findings, that special value, constituted by the opportunity to develop in accordance with the development approval, no longer existed at the date of assessment (701).

264 The court made the following observations about the decision in San Sebastian:

The decision in Housing Commission of New South Wales v San Sebastian requires courts, when assessing compensation for a resumption, to disregard the effect of the proposed acquisition in either depressing or increasing land values. It also requires them to disregard the effect on value of any step in the proposed resumption including any re-zoning of the land undertaken or procured by or at the request of the resuming authority to facilitate the fulfilment of the relevant public purpose. However, the decision goes no further than authorising the assessment of compensation for the land taken at the date it was taken on a basis which disregards the effect on value at that time of the resumption and the proposed use of the land for public purposes.

...

The principles applied in Housing Commission of New South Wales v San Sebastian require the land to be valued at the relevant date on the artificial, but just, assumption that such value has not been affected by the resumption process. It does not require or authorise the court to disregard facts themselves independent of the resumption process such as costs of building and general market values at the date of resumption (700 701).

265 Contrary to the defendants' submissions, Griffith City Council v Polegato was referred to in Smith v Roads and Traffic Authority (NSW): see [85]. I do not consider Smith to be inconsistent in any way with the reasoning in Polegato.

266 In my view, in Polegato, the court was concerned with an issue of a different character to cases like Smith and to the question, in the present case, of whether the past hypothetical rezoning question is a permissible inquiry under s 241(2). In Polegato, the claim was for special value to the owner. The special value was constituted by an opportunity to develop in accordance with the approved development plans. By reason of economic circumstances, by the date of the assessment, that opportunity had no value. The plaintiffs' past hypothetical rezoning case does not, on a proper analysis, involve a claim for a lost opportunity which no longer existed at the date of taking. Rather, the plaintiffs' case is that, but for the proposed works, the land would have been rezoned to urban in the preIPRSP period, or in 2003 under the PRS (in consequence of a future urban designation under the IPRSP) and that zoning would have endured to the date of taking.

267 For corresponding reasons, I do not consider that the decision in Roads and Traffic Authority (NSW) v Mosca assists the defendants. That case also relevantly concerned an award of compensation in respect of lost opportunities.

268 The primary judge found that the subject land was undeveloped at the resumption date because of the blighting or deterrent effect of the relevant road proposal: [5], [8]. He stated that that planning blight had caused the owner to lose opportunities that earlier development had offered, including:

(1) the value of the lost opportunity to realise the development potential by implementing the detailed planning provisions of certain planning instruments as they affected the subject land and neighbouring land;

(2) the value of the lost opportunity to realise that development potential by either selling the land to a developer or by a joint enterprise between the applicant and neighbouring landowners; and

(3) the value of the lost opportunity to realise that development potential by adopting a particular drainage solution.

269 He said that although the losses had been incurred before the date of compulsory acquisition they decreased the value of the land at that date: see [12] [13].

270 The Court of Appeal held that none of these claimed lost opportunities were relevant to the assessment of compensation. Neither of the first two opportunities were lost. The development potential of the land was to be assessed ignoring the effect of the road proposal at the resumption date, so that the first two opportunities still existed at the taking date: [15] [17]. The third opportunity was lost because of a change in drainage policy by the shire, unconnected with the resumption process. Consequently, its effect on value was not something to be ignored: [18] [19].

271 The third case relied on by the defendants is Goodman v Roads and Traffic Authority (NSW). In my view, that case deals with the specific question of whether the disregarding of the effects of the proposal to carry out the public purpose justifies hypothesising that a landowner would have taken particular steps, such as the making of a planning or development application: see [34] [36]. That is a separate ground of objection raised by the defendants to the past hypothetical rezoning approach. I will deal with that in section 2.7.3.7.

272 The defendants submit that these three cases support this proposition: whatever effects the proposed public works may have had at any time before the taking date, it is only the effects of the proposed public works on the value of the subject land, continuing as at the taking date, that are relevant to the assessment of compensation (closing submissions par 112). In my view, the plaintiffs' past hypothetical rezoning case is consistent with that proposition. The past hypothetical rezoning case contends that:

(a) at various alternative points in time before the taking date, but for the proposed public works, the land would have been rezoned to urban; and

(b) that urban zoning would, but for the proposed public works, have applied at the taking date.

273 Thus, on the plaintiffs' past hypothetical rezoning case, the zoning effects of the proposed public works continued to have effect on the taking date.

274 That brings me, finally, to the decision of the Court of Appeal in Mount Lawley (2007).

275 As I have said, the defendants rely heavily on this decision, suggesting that it required that in this case the only question be of the potential, as at the taking date, for the land to be rezoned. I do not accept that submission. In Mount Lawley (2007), the Court of Appeal held that the only question in that case was of the urban potential of the land. In my opinion, that was based on the circumstances of that case it does not dictate a like conclusion for this and all other valuation cases under s 241(2).

276 It is necessary to put the case into its factual and statutory framework. In the late 1980s there was a proposal (by others, not the acquiring authority) to develop land (the Ellenbrook land) located near to the land the subject of the appeal (the Mount Lawley land). The Ellenbrook land to be developed was rezoned from rural to urban deferred by way of an amendment to the Metropolitan Region Scheme (Amendment 879/33). That amendment also effected the reservation of 301 ha of the Mount Lawley land for parks and reservations. Another portion of the Mount Lawley land was reserved for a controlled access highway. The unreserved portion (around 12 ha) was rezoned by Amendment 879/33 to urban deferred. Before that, all of the Mount Lawley land had been zoned rural.

277 Subsequently, Mount Lawley applied to the WAPC for approval to develop earthworks for urban development on the Mount Lawley land. The development application was refused. The appellant claimed compensation for injurious affection brought about by the making of a town planning scheme. The applicable statutory regime meant that the WAPC was the authority responsible for compensation in respect of amendments to the Metropolitan Region Scheme (the MRS). The terms of the legislation gave the WAPC an option to pay compensation or to elect to acquire the affected land. The WAPC elected to acquire the land. Section 36(2a) of the Scheme Act required that the price to be paid was the value of the land as determined in accordance with s 36(2b). Subsection (2b) read as follows:

The value of the land referred to in subsection (2a) shall be the value thereof on the date the Commission elects to acquire the land under that subsection, and that value shall be determined -

(b) ...

(ii) by the Supreme Court - if the value of the land claimed by the owner thereof is more than $1000;

or

(c) by some other method agreed upon by the Commission and the owner of 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.

The 'Scheme' was defined in the legislation: see Mount Lawley (2007) [7].

278 Both parties proceeded on the basis that Amendment 879/33 and a later amendment (Amendment 950/33, which rezoned the Ellenbrook land and the unreserved portion of the Mount Lawley land from urban deferred to urban) were the Scheme for the purposes of s 36(2b): [8].

279 After noting the parties' agreement as to the Scheme [16], the court said the next question was to determine what decreases in the value of the land are 'attributable wholly or in part to the Scheme' [17]. The court described that question as one that can be difficult to answer.

280 The court emphasised that the agreement about what constituted 'the Scheme' did not relate to other amendments to the same effect that might have been made to the MRS, in the absence of Amendments 879/33 and 950/33 [21].

281 The court referred [20] to the decision of the New South Wales Court of Appeal in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251; (2005) 63 NSWLR 407 [85] (Walker CA (No 1)) where it was said that:

(a) the lesson of San Sebastian is that no narrow view should be taken of steps which may affect the value of the land; and

(b) 'it is necessary to distinguish between conduct which constitutes a proper exercise of planning powers irrespective of the ultimate resumption and a use of planning powers in pursuit of the proposed resumption'.

282 The court stated that it was not open to make a finding on the balance of probabilities that the same planning decisions would have been made prior to the valuation date [23]. In explaining why that was so, the court emphasised that the amendments giving effect to the reservation of the Mount Lawley land and the upzoning of the Ellenbrook land amounted to the Scheme itself, not to a step in the Scheme [23]. That seems to me of critical significance to the court's reasoning. It does not apply in the present case: the reservation or zoning of the land is not the proposed public work it is, or is contended to be, attributable to the proposed public work.

Section 36(2b) requires that the value of the Mount Lawley land is to be determined as at the valuation date without regard to any increase or decrease in value attributable wholly or in part to the amendments that constitute the Scheme. That is to be done by ignoring, as at the valuation date, the reservation and upzoning given effect to by those amendments. Ignoring the effect on value of the amendments as at the valuation date has the consequence of reviving the pre-amendment rural zoning for both the Mount Lawley land and the Ellenbrook land. Accordingly, consistently with what was held in the first appeal ([141], [162], [185]), we are required to ignore the fact of the upzoning (and reservation) and the issue to be determined is what, if any, premium the hypothetical purchaser would be prepared to pay over and above the rural value in order to reflect the urban development potential of the Mount Lawley land [24].

284 The defendants rely on what was said in [24], but I do not consider that it assists their argument. Paragraph 24 explains why, in Mount Lawley (2007), the effect of ignoring the Scheme was to ignore the amendment to the zoning and reservation of the land and so to revive the rural zoning. That in turn explains why the focus was consequently on the potential for urban development and the premium that a purchaser would pay above the rural value. I do not think that what is said in Mount Lawley (2007) controls the present case. In Mount Lawley (2007), the Scheme had rezoned the land from rural. Thus when the scheme was ignored, that made the zoning rural. See also [398(3)]. In this case, the question remains what the zoning would have been if the proposed public work is ignored. Would it have been rural or urban?

285 In Mount Lawley (2006), the trial judge relied on the 'traditional approach' identified in Smith v Roads and Traffic Authority (NSW). The Court of Appeal considered that approach, and the observations about it made in Walker CA (No 2). The court concluded that, in the Mount Lawley (2007) case, the questions proposed by McClellan CJ in Smith were irrelevant [245]. The defendants submitted that the Court of Appeal rejected the approach in Smith and Walker CA (No 2) as being inapplicable. In my opinion, the court in Mount Lawley (2007) found that the questions posed in Smith were irrelevant because those questions were directed to a statutory scheme where the issue was whether or not the zoning of land was a step in the relevant process and therefore something to be ignored. As the Court of Appeal noted [23], in those cases the zoning of the subject land can be a neutral planning decision that does not need to be disregarded in assessing value. However, in Mount Lawley (2007), the reservation and upzoning constituted the Scheme itself and so had to be ignored. Consequently, when the Scheme was ignored the land was to be treated as rural, with the result that what was required to be determined was the development potential of the land absent the Scheme [245].

286 That reasoning does not seem to me to reject the potential utility of the questions posed in Smith (as reformulated in Walker CA (No 2)) for all cases. In Mount Lawley (2007), the court set out without disapproval what was said in Walker CA (No 2) [57] [61]. The court found that in Walker CA (No 2) the NSW Court of Appeal had not rejected the traditional steps formulated by McClellan CJ in Smith, but it emphasised that the questions must be posed with close regard to the applicable statutory language: Mount Lawley (2007) [243].

287 Moreover, earlier in their reasons in Mount Lawley (2007), the court appeared to acknowledge the potential utility, in some cases, of considering what the zoning would have been, but for the acquisition for a public purpose. The trial judge identified three categories of cases: first, where the subject land had no development potential because of its unique characteristics; second, where the land is ideally suited for development but is acquired for a public purpose thereby destroying a potential development which would have otherwise been realised; third, where the land is between these two extremes, being suitable for development but having some environmental attributes warranting its conservation: Mount Lawley (2006) [104] [106]. The trial judge said that for land that in the second category of cases it is appropriate to consider what the zoning would have been but for the acquisition. The Court of Appeal described that approach as being plainly correct: Mount Lawley (2007) [125]. The Court of Appeal made further reference to this at [228] when they observed that, as the trial judge had said, when dealing with land that is ideally suited to the development, but which is acquired for public purpose, it is appropriate to consider what the zoning would have been but for the acquisition.

288 Thus, as I read the decision, the Court of Appeal in Mount Lawley (2007) did not reject the threestep approach in Smith generally. Rather, the court explained why it did not assist in the circumstances of the Mount Lawley case.

289 In my opinion, in this case, as in the New South Wales cases as identified in Mount Lawley (2007), a central issue in valuing the subject land is whether the zoning of the land was a step attributable to the proposed public works.

2.7.3.6 Past hypothetical rezoning question: conclusions

290 In my opinion, the application of the discounting element of LA Act s 241(2) is capable of permitting the plaintiffs' past hypothetical rezoning case as outlined in section 2.7.3.1. That seems to me to be consistent with the language and evident purpose of the section, and to be supported by authority.

291 In my view, the purpose of the Pointe Gourde approach identified in Melwood Units (434) and The Crown v Murphy (595) applies to the discounting element of s 241(2). A purpose of that approach is to ensure that an acquiring authority cannot by a proposed public work, cause planning restrictions to destroy development potential of land and then assess compensation for its taking on the basis that the destroyed potential had never existed. It is consistent with that purpose to construe s 241(2) as being capable of being given effect to in the manner contended by the plaintiffs as outlined in section 2.7.3.1.

292 The weight of authority in Western Australia and in other jurisdictions supports that approach, albeit that the cases deal with other legislation. In Startrail and Main Roads, the court determined as a preliminary question the zoning of the land but for the proposed public works [45].

2.7.3.7 Past hypothetical rezoning based upon landowner application

293 The defendants advance an alternative contention against the plaintiffs' past hypothetical rezoning case. As a matter of fact, the plaintiffs' past hypothetical rezoning case relies, in substantial part at least, on a hypothetical application for rezoning by the plaintiffs. For example, it is an essential element of the plaintiffs' preIPRSP rezoning case that the plaintiffs would, but for the proposed public works, have applied to the shire for the rezoning of the subject land to urban. It is part of the plaintiffs' case that in the preIPRSP period, rezoning of land and was 'developer driven'. In other words, land was not rezoned at the initiative of the shire. It was rezoned if and when a landowner sought to have the land rezoned in order to subdivide and develop. This is discussed in section 4.1 below.

294 The defendants contend that if, contrary to their primary position, the past hypothetical rezoning question arises, that question must be answered by reference to objective criteria of orderly and proper planning. The past hypothetical rezoning cannot, the defendants contend, be founded upon a hypothetical application for rezoning by the landowner.

295 In support of that contention, the defendants point to the inherently objective character of the process of valuation. If the past hypothetical rezoning, absent the proposed public works, can be founded on a hypothetical application by the landowner, the landowner's personal characteristics will bear upon whether any such application would have been made. The defendants submit that it is antithetical to that objective character that the land would be valued differently depending upon the personal and subjective characteristics of the landowner.

296 Further, the defendants submit that such an approach is liable to give rise to inherent contradictions of a kind illustrated by the facts of this case. On the plaintiffs' preIPRSP rezoning case, the plaintiffs would have applied to rezone the land so that they could develop it and subdivide it, and the shire would have approved the rezoning so that it could be developed. Yet by definition, the land cannot be valued on the basis that it was developed and subdivided. Rather, it would be valued on the basis of an urban zoning, but on the assumption that it had remained, for some 10 or so years, a large undeveloped en globo lot of urbanzoned land.

297 Further, the defendants submit that there is no authority supporting hypothetical rezoning based upon a hypothetical application by the landowner, but that there is some authority against it.

298 The plaintiffs did not identify any case in which hypothetical rezoning had been based upon a hypothetical application for rezoning by the landowner. My research has not revealed any such case.

299 The defendants rely on the decision in Goodman v Roads and Traffic Authority (NSW). One of the issues in that case was the market value of the applicant's land, resumed by compulsory acquisition. The highest and best use of the resumed land (disregarding the proposal for which the land was acquired) lay in its potential to be developed for medium density residential units in the form of five townhouses. In determining the value of that potential, the applicant submitted that if the property had not been affected by the road widening proposal, the applicant would have obtained development consent for five townhouses on the site the year before the date of acquisition. Consequently, the applicant submitted, the land could be valued on the assumption that the property would have been offered for sale with the benefit of that consent, together with a building approval or construction certificate at the date of acquisition [34].

300 In rejecting that submission, Talbot J said as follows [35]:

Although the fiction developed at common law and perpetuated in s 56(1)(a) of the Just Terms Act entitles the Court to disregard any increase or decrease in the value of the land caused by the proposal to carry out the public purpose of road widening, it does not go so far as to justify any presumption that a landowner would have taken particular steps that were not in fact taken. The market value must be determined at the date of acquisition on a basis which disregards the effect on value of the proposed use of the land for the public purpose. Decisions such as Housing Commission of New South Wales v San Sebastian Pty Ltd & Ors [1978] HCA 28; (1978) 140 CLR 196 go no further than that (see Griffith City Council v Polegato and Anor (1990) 71 LGRA 208 particularly at 212).

301 His Honour considered that enquiries made by the applicant 12 months before the taking date, and the response to those enquiries, could properly be taken into account in concluding that the hypothetical purchaser would have been satisfied that development consent would be forthcoming without extended delay: see [36] [38].

302 The plaintiffs sought to distinguish Goodman and submitted, in the alternative, that it should not be followed. The ground of distinction, the plaintiffs submitted, is that Goodman dealt with the question relating to a notional development application, not to the zoning of the land. There does not seem to me to be much force in this alleged ground of distinction. Whether there was an extant approval of the development application would have affected the value of the land. Moreover, Talbot J explained his reason for rejecting the applicant's argument in terms that would apply equally to a rezoning application. His Honour stated that disregarding s 56(1)(a) of the Just Terms Act did not justify any hypothesising about what the landowner would have done but for the proposed public purpose: see [35].

303 The plaintiffs submit that the purpose of the discounting requirement applies equally to a past hypothetical rezoning based on a landowner application as it does to other hypothetical rezonings. Moreover, the plaintiffs point out that the third question posed in Smith is not in terms of what the zoning of the land would have been independent of any action by the owner. Rather, the third question directs attention to the broad issue of what the zoning of the land would have been but for the proposal to carry out the public works. In answering that broad question, the plaintiffs submit, there is no ground to exclude a conclusion about the zoning of the land based on or influenced by hypothetical application by the landowner.

304 It is not necessary to determine whether the past hypothetical zoning question may permissibly involve rezoning based upon a hypothetical landowner application. That is because, for reasons to be explained in section 4.3 of these reasons, I am not satisfied that, absent the proposed public works, the plaintiffs would have applied to have the land rezoned.

2.8 The effect of the proposed public works on the surrounding land

305 I accept the plaintiffs' submission that if the proposed public works have constrained the zoning or development of land surrounding the subject land in a way that decreases the value of subject land:

(a) that decrease in value is required to be discounted by s 241(2); and

(b) one method of doing so is to hypothesise what the development of the surrounding land would have been, but for the proposed public works, and value the subject land on that basis.

306 That approach is supported in a number of the cases to which I have already referred. See, for example, Duffy (2002) [115] [116]; RTA v Perry [14]; Roads and Traffic Authority (NSW) v Mosca [50] [55]; Rees v Minister for Planning and Housing (170).

2.9 Evidentiary considerations relating to planning questions: subjective or objective?

307 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 wellestablished that the question is to be approached objectively, by reference to orderly and proper planning, not subjectively by reference to the likelihood of particular decisionmakers approving the contemplated future use. In Trandos v WAPC, Anderson J (Wheeler J & Einfeld AJ concurring) put the position as follows:

It seems to me that an evaluation of highest and best use does not necessarily depend on an assessment of the subjective intentions and personal views of the particular Minister of the day. Mr David Smith, who was the Minister who granted advertising approval with respect to Amendment 542, was not called to give evidence. Neither was his successor in office, on whom the responsibility would have fallen to grant or refuse the amendment. The potentiality of the land is to be judged by reference to planning considerations viewed objectively, the question being: what is the most advantageous use to which the land can be put, having regard to the dictates of orderly and proper planning? No doubt, this question can be posed in terms of what uses the relevant planning authorities were likely to approve, but care must be taken not to turn the question into a subjective one. I do not think it would be to the point to prove, for example, that a particular Minister was given to disregarding sound planning advice [73].

308 It is common ground in this action that a corresponding approach is to be taken in relation to a question of past hypothetical rezoning. The approach in Trandos v WAPC applies; the question is to be determined by reference to the dictates of orderly and proper planning, not by reference to what a particular decisionmaker would have decided. See the plaintiffs' closing submissions pars 2.103 2.105, 4.221 4.222; ts 7370 7373; and, as to the defendants, ts 7174 7181. I accept that.

309 It is also common ground and I accept that the content and application of orderly and proper planning varied over different periods, and that, insofar as attention is directed to a past hypothetical zoning question, it was the content of orderly and proper planning at the relevant time in the hypothetical past, not at the time of the trial, that is to be applied.

310 Numerous objections to evidence were made in the course of the trial. Many of them were dealt with by ruling and oral reasons in the course of the trial. I will say no more about those. I also gave written reasons in relation to some rulings: see McKay v Commissioner of Main Roads [2009] WASC 353; McKay v Commissioner of Main Roads [No 2] [2010] WASC 153; McKay v Commissioner of Main Roads [No 3] [2010] WASC 232; and McKay v Commissioner of Main Roads [No 6] [2010] WASC 274.

311 Throughout the trial, the parties adopted the approach of identifying those objections on which a party sought a ruling immediately, and those on which both parties were content for the ruling to be given in the course of the reasons, to the extent that it proved necessary. There was a very substantial volume of objections. Many of the objections related to evidence that was not, or did not appear to be, of central significance. The deferral of a ruling on some objections provided further opportunity for conferral between counsel in relation to those objections. That conferral could then take place in the context of a better appreciation of the evidence as a whole, and the significance or otherwise of the evidence to which objection was taken. In many respects, the opportunity for further conferral proved fruitful. In light of those matters, and given the prospect of argument and resolution of the objections substantially disrupting the progress of the trial, the approach adopted by the parties seemed to me a sensible approach (notwithstanding the general desirability of determining evidentiary objections in the course of the trial, as to which see Dasreef Pty Ltd v Hawchair [2011] HCA 21 [19] [20], [135]; Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 [96] [98]).

312 In the course of the trial, a number of documents were filed by the parties setting out the objections in the deferred ruling category. Conferral in the course of the trial, and between the completion of the evidence and the presentation of closing submissions, substantially reduced the objections ultimately pressed by the parties. The objections ultimately pressed by the parties were set out in two documents. The first was dated 23 September 2010 and related to evidence admitted provisionally and set out those objections which, after conferral, were maintained. The other document was dated 13 October 2010. It dealt with evidence that had already been admitted provisionally and identified which objections were maintained and which were withdrawn to such evidence.

313 The two most substantial areas of objection on which deferred rulings were sought were:

(a) the defendants' objections to evidence led by the plaintiffs in support of the past hypothetical rezoning case; and

(b) the plaintiffs' objections to various evidence led by the defendants on the ground that it was inadmissible because the evidence was after the date of the taking (posttaking evidence).

I will say something about the other objections in section 3.6 below.

314 I have dealt with and overruled the defendants' objection to the plaintiffs' evidence in support of the past hypothetical rezoning case. See section 2.7.

315 At some points in the trial, the plaintiffs took steps to pursue a ruling, in the course of the trial, on their objections to posttaking evidence. However, in the end they elected not to seek a ruling during the trial, but rather to permit the evidence to be led and received provisionally subject to their objection, with the objection to be determined in the course of my reasons for decision. That was also the approach invited by the defendants. I was content to adopt the approach sought by both parties and defer ruling on the posttaking objections. The plaintiffs led some evidence in rebuttal of the defendants' posttaking case. That evidence was also received provisionally on the basis that if the plaintiffs' posttaking objection was ultimately upheld, the evidence provisionally received in rebuttal would fall away. In closing submissions the plaintiffs confirmed that they did not rely on any posttaking evidence as part of their case, and relied on it only in rebuttal, if their posttaking objection was overruled (ts 7225).

316 I turn to the plaintiffs' objections to the posttaking evidence relied on by the defendants.

317 It is convenient to begin by identifying, in broad terms, the posttaking evidence relied on by the defendants, and their contentions about the admissibility of that evidence.

318 All the posttaking evidence whose admissibility is in dispute relates to the question of the value of the subject land, based on its urban potential at the date of taking.

319 The defendants accept that the starting point for valuation is the value of the land assessed by reference to the knowledge of the hypothetical purchaser and vendor at the date of taking. However, they contend that there are various exceptions to the general rule against the receipt of evidence of events after the taking date. One of those exceptions is uncontroversial. I begin with the uncontroversial exception.

320 It is common ground that comparable sales after the date of taking can be taken into account in determining the value of the land. This is wellestablished by authority: Melwood Units (436); Arcus Shopfitters (2002) [79]; Housing Commission (NSW) v Falconer (576). As Mahoney JA explained in Falconer (576), evidence of subsequent sales is not admitted on the basis that the hypothetical parties would have known or could have foreseen them. Rather, it is admitted because it assists the court in the process of identifying what the hypothetical parties would have found acceptable for the land at the relevant time.

321 The other purposes for which the defendants contend that posttaking evidence is admissible are:

(b) to explain or complete a process that had began by the taking date; and

(c) to exemplify delays and contingencies in the planning approval process.

322 The 'confirmation of a foresight' contention is founded on a statement by Hope JA in Housing Commission (NSW) v Falconer (558) to the effect that where a future event is foreseeable at the time of taking, evidence of that future event is admissible to confirm the foresight, although evidence of future events is inadmissible to prove a hindsight. The defendants submit that that statement has been followed in many cases subsequently.

323 The defendants submit that the 'completion of a process' basis for the receipt of posttaking evidence is supported by the decision of Pain J in Chino Pty Ltd v Transport Infrastructure Development Corporation [2006] NSWLEC 768; (2006) 153 LGERA 136 [66], and by what is said in Jacobs M, The Law of Resumption and Compensation in Australia (1998) [16.6.19.1]. In the latter respect see also Jacobs M, Law of Compulsory Land Acquisition (2nd ed, 2010) [19.190]. The defendants do not point to any authority in support of the third exception they rely upon, to 'exemplify delays and contingencies ...'

324 The plaintiffs deny that posttaking evidence is admissible for any of these purposes.

325 For reasons to be developed, I do not accept that posttaking evidence is admissible for any of these purposes. There are, in my view, other relevant purposes for which posttaking evidence is admissible in this trial. I will identify these in section 3.4 below.

326 The posttaking facts relied on by the defendants were set out in a document dated 29 December 2009, filed on 26 May 2010.

327 The defendants rely primarily on the contents of two planning documents released in June 2009. One is entitled 'Directions 2031: Draft Spatial Framework for Perth and Peel' (Directions 2031). The other is entitled 'Southern Metropolitan and Peel SubRegional Structure Plan (for public comment)' (the SMPSRSP). The SMPSRSP was the product of the review of the IPRSP that commenced in 2005 and that was on foot at the date of taking.

328 The defendants contend that, in various respects, Directions 2031 and the SMPSRSP confirmed the foresight of the expert planners relied upon by the defendants. For example, the defendants' expert planners expressed the opinion that, for various reasons, the WAPC was unlikely to endorse urbanisation north of Old Mandurah Road in the short or medium term. These reasons include:

(a) the Peel region had more than sufficient urban zoned land to comfortably meet the demands of population growth until at least 2031;

(b) urban development would be prioritised for land that is already zoned urban or urban defined;

(c) WAPC would not support the expansion or ribbon development of commercial activity along the Mandurah Pinjarra corridor; and

(d) activity corridors, referred to in Network City, would not be interpreted to allow ribbon development after the further investigative work prescribed in Network City.

329 The defendants point to various aspects of what is said in Directions 2031 and in the SMPSRSP as confirming their planners' 'foresight' in these respects.

330 The defendants foreshadowed an intention to crossexamine the plaintiffs' planners on their evidence as to what was foreseeable in July 2006 by reference to Directions 2031 and the SMPSRSP. However, in the end the defendants elected not to do so. Instead, counsel put to the plaintiffs' planners that, at the date of taking, particular outcomes of the review were foreseeable.

331 Directions 2031 and the SMPSRSP were published in June 2009 for public comment. In August 2010, the final version of Directions 2031 was published, entitled 'Directions 2031 and Beyond: Metropolitan Planning Beyond the Horizon' (Directions 2031 Final). Also published in August 2010 was a draft for public comment of the 'Outer Metropolitan Perth and Peel SubRegional Strategy' (the OMPPSRS). The 2010 planning instruments, Directions 2031 Final and the OMPPSRS, were received provisionally as exhibit 246A and exhibit 246B respectively, subject to the plaintiffs' posttaking objection.

332 The defendants did not point to any particular parts of Directions 2031 Final or the OMPPSRS in their submissions. I take it that the defendants contend that these instruments confirm the foresights of their planners in ways corresponding to the 2009 for public comment publications Directions 2031 and the SMPSRSP.

333 The defendants relied upon what they termed the 'completion of a process' exception in relation to the evidence of Ms Marion Thompson. I will outline the evidence in section 3.5.3 below.

334 The defendants also rely on the 'completion of a process' exception in relation to applications for rezoning of neighbouring land. The defendants contend that applications that were already on foot at the date of taking can be followed through to completion. See section 3.5.4 below.

335 I note that, in their oral evidence, the defendants' planners did not, to any substantial extent, refer to or rely upon posttaking evidence to support their opinions.

336 In the end, on my analysis of the evidence as a whole, it is not clear to me how much significance, if any, the posttaking evidence has to the resolution of the question of the value of the subject land based on its urban potential. Nevertheless, in deference to the detailed submissions made, and to the attention given to the question in the course of the trial, I will state my views and reasons in detail.

337 To my mind it is important to return to the starting point the method by which market value is determined. As I have said, in this case value means market value, because there is no claim for special value. The approach to ascertaining market value was summarised in the passage in the judgment of McHugh J in Kenny & Good v MGICA [49] [50], set out in section 2.2 above. The reference to the parties having access to 'all currently available information' should be noticed.

338 In Spencer v The Commonwealth Isaacs J said the following about the relevance of events subsequent to the date of valuation:

All circumstances subsequently arising are to be ignored. Whether the land becomes more valuable or less valuable afterwards is immaterial. Its value is fixed by Statute as on that day. Prosperity unexpected, or depression which no man would ever have anticipated, if happening after the date named, must be alike disregarded. The facts existing on 1st January 1905 are the only relevant facts, and the all important fact on that day is the opinion regarding the fair price of the land, which a hypothetical prudent purchaser would entertain (440).

339 In Longworth v Commissioner of Stamp Duties (1953) 53 SR (NSW) 342, Owen J made these observations about the task of valuation and the relevance, or otherwise, of subsequent events:

A tribunal which is called upon to make such an assessment of value must in each case decide 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 one was prepared to give, the other to take. One such 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. If so, it is relevant. But the value must surely be ascertained in the light of the facts, including the probabilities, then existing, and without taking notice of subsequent happenings (348).

340 That passage has been cited with approval in many cases. See, for example, Multari v Roads and Traffic Authority of New South Wales [2004] NSWLEC 649 [30]; Maidment v Roads and Traffic Authority of NSW [2006] NSWLEC 606; (2006) 153 LGERA 249 [47].

341 Consistently with that approach, in Gosford Shire Council v Green (1980) 48 LGRA 201, the New South Wales Court of Appeal held that the knowledge of the hypothetical parties to an assumed sale of the land was limited to knowledge at the date of the resumption. The court rejected the appellant's argument that evidence of events and circumstances after the resumption date (which differed in some respects from that which would have been expected as at the resumption date) should be received on the basis that the court should prefer fact for prophecy or expectation: see (207, 210 211). Reynolds JA stated that 'as a matter of principle, what in fact happened can have no logical probative relationship to what a reasonable purchaser would at an earlier date have expected to happen' (207).

342 A similar approach was stated by Mahoney JA in Housing Commission (NSW) v Falconer (576) in relation to the ascertainment of the market price as follows. The hypothetical parties are 'taken to know what an appropriately informed person would know on that date' and no more. The price which the parties would accept would be 'affected by the uncertainties as at that date' as to matters such as future demand, future decisions of zoning authorities.

343 These statements were cited with approval by Santon JA (in dissent) in Port Stephens v Tellamist [157] [158].

344 As I have said, the defendants' submissions rely heavily on a statement of principle by Hope JA in Housing Commission (NSW) v Falconer in support of the alleged 'confirmation of foresight' basis for admission of posttaking evidence. It seems to me important to put the statement into its context in the case. The facts may be summarised as follows. The plaintiffs were owners of land resumed by the Housing Commission. The plaintiffs were in the course of taking steps to have new buildings constructed on the land. After the resumption, the plaintiffs sought a new site. They purchased replacement land and entered contracts for the carrying out of the construction work. They claimed a sum comprising the additional building cost as compared with the cost at the time of resumption, the market value of the resumed land and amounts for aborted expenditure. The primary judge proceeded on the basis that the owners were to be compensated so as to be reinstated to the position from which they had been displaced by reason of the resumption. Consequently, he allowed compensation for the actual and estimated future increases in costs occurring during reasonable delays in the owner's building programme following resumption.

345 The majority of the New South Wales Court of Appeal (Hope and Mahoney JJA) held that application of the reinstatement principle was inappropriate in the circumstances of the case. They found that the loss suffered by the plaintiffs by reason of the increase in the cost of erecting, on other land, the buildings they had proposed to build on the resumed land, was a consequential loss resulting from the resumption to which regard could be had in assessing the value of the resumed land. Those matters went to the special value of the land to the owner: see (555 556, 574, 576 577). Special value to the owner is assessed by reference to any additional amount that a prudent purchaser in the position of the owner would pay to avoid missing out on owning the subject property (556 557, 573).

346 This did not justify adding the total amount of the actual and estimated future loss to what would otherwise be the market value. Rather, the amount of the loss that was anticipated at the date of resumption should be taken into account in assessing the value of the land to the owner (557, 574B, 575B). Consequently, the primary judge was entitled to take the extra cost of building into account in deferring the value of the property, but not simply to add it as a component of compensation (559C, 580B).

347 The court said the following about the extent to which the primary judge was entitled to take into account the actual increase in building costs, given that those additional costs had only emerged subsequent to the date of the resumption. Hope and Mahoney JJA both emphasised that that question fell to be considered in the context that it was a claim of special value to the owner. Hope JA's reasoning can be summarised as follows:

(a) The question is not what a prudent purchaser in the position of the owner would pay after he had obtained a knowledge of all the circumstances that in fact occurred after the date of resumption, but what a person in his position would pay in the light of knowledge available at the time of resumption (557F).

(b) However, the decided cases dissolve into uncertainty (557F).

(c) He referred to the decision in Gosford Shire Council v Green, stating that there was no evidence in the case to suggest that a change of plans might have been contemplated by a hypothetical purchaser at the time of resumption (558AB).

(d) In the passage relied upon by the defendants, Hope JA said as follows (558BC):

However, there are many decisions, including decisions of the High Court, in which it has been held that evidence of future events is admissible not to prove a hindsight, but to confirm a foresight: see for example, Trustees Executors and Agency Co Ltd v Commissioner of Taxes (Victoria) [1941] HCA 18; (1941) 65 CLR 33; Minister for Army v Parbury Henty & Co Pty Ltd [1945] HCA 52; (1945) 70 CLR 459, at pp 514, 515, McCathie v Federal Commissioner of Taxation [1944] HCA 9; (1944) 69 CLR 1, at p 16; Australian Apple and Pear Marketing Board v Tonking [1942] HCA 37; (1942) 66 CLR 77, at p 108.

(e) The relevant principle was that the amount of compensation is a matter of assessment and so, like damages, it can be calculated in the light of subsequent facts to the extent that they throw light on items of value properly taken into account having regard to the circumstances existing at the date of acquisition: Minister for Army v Parbury Henty & Co Pty Ltd [1945] HCA 52; (1945) 70 CLR 459, 514 (Williams J).

(f) Applying that principle at the date of resumption, a prudent purchaser would have anticipated a significant rise in building costs, but the court could not attribute to the prudent purchaser an exact knowledge of what increases would occur. Rather, the question is what the attitude of a prudent person would have been (558G).

(g) The actual increases could be looked at in confirmation of what the hypothetical purchaser would have foreseen (558 559).

(h) The extent to which foresight coincided with or approached fact is a question of fact, but in this case it would be impossible to conclude that a purchaser in 1974 could predict what building costs would be seven years later.

(i) Accordingly, the primary judge was not entitled to simply add the incurred and anticipated increase in building costs and discount slightly. Rather, he should have determined what the hypothetical prudent purchaser would have added to the purchase price by reason of his appreciation of what the future might hold in respect of delay in building and increase in building costs (559C).

348 Mahoney JA emphasised that it is necessary, in determining the relevance of subsequent events, to distinguish between a claim for market value and special value. In relation to a claim for market value, the principle on which the market price is determined prevents or restricts reference to subsequent events. The hypothetical parties are taken to know what an appropriately informed person would know on that date and not more (576BC). They would take into account then existing uncertainties as to future matters and evidence of what subsequently occurred in relation to those matters is not ordinarily admissible.

349 A different approach applies in relation to claims for special value. In relation to claims for special value, the considerations restricting reference to subsequent events for market price do not apply. Accordingly, the general rule that courts prefer facts to prophesies should be applied (577).

350 Mahoney JA also referred at (578) to the principle stated by Williams J in Minister for Army v Parbury Henty set out in par (e) of my summary of the reasoning of Hope JA.

351 Glass JA took a different view on the question of the proper approach to valuation. He found no error in the primary judge's reinstatement approach (565 566).

352 It can be seen, therefore, that Hope JA's statement that evidence of future events is admissible not to prove a hindsight but to confirm a foresight was said in the context of a claim for special value to the owner, not a claim for market value. Examination of the cases to which he referred in support of that proposition reveals that three of those cases did not relate to a question of market value. The fourth case concerned subsequent sale of the property to be valued.

353 Trustees Executors & Agency Co Ltd v Commissioner of Taxes (Victoria) [1941] HCA 18; (1941) 65 CLR 33 concerned the value of a life interest for the purpose of assessing probate duty. Minister for Army v Parbury Henty was a claim for compensation for special value, not market value (492, 508, 514 515). In McCathie v Federal Commissioner of Taxation [1944] HCA 9; (1944) 69 CLR 1, the task was to assess real value, not the market value, as Williams J emphasised (6 7). In Australian Apple & Pear Marketing Board v Tonking [1942] HCA 37; (1942) 66 CLR 77 the posttaking evidence was the subsequent sale of the fruit to be valued.

354 I turn to cases that have applied or referred to the 'confirmation of a foresight' statement in Housing Commission (NSW) v Falconer.

355 In Caruso v Sydney Water Corporation [2008] NSWLEC 320, land was acquired in March 2007. The owner of the land sought compensation on the basis that the highest and best use of the land was by development in accordance with a scheme referred to as the Bewscher Scheme. The question arose as to the advice that a prudent hypothetical purchaser would obtain in relation to the possible development of the land. Pain J considered that a prudent purchaser would have spoken to an officer of the council to obtain advice on whether the Bewscher Scheme, or something like it, was likely to be considered for approval. A meeting was held in January 2008 with an officer of the council in which it was recorded that advice was given that a scheme such as the Bewscher Scheme would be considered. Pain J held that the advice in January 2008 was reasonably close in time to the date of acquisition and that it was appropriate to take the information in the minute of the meeting of January 2008 into account as information that a prudent hypothetical purchaser would have been likely to have obtained (in March 2007) [83]. In so holding, Pain J referred to the statement in Falconer that events after the date of acquisition which confirm foresight can be relied upon.

356 As I understand this decision, the evidence of the January 2008 advice was received on the basis that it was likely (able to be inferred) that similar advice would have been given in March 2007. This seems to be the sense in which it is said that what occurred in January 2008 confirmed the foresight as at March 2007.

357 I accept that 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. That approach was also taken in McDonald v Roads & Traffic Authority of NSW [2009] NSWLEC 105 [26].

358 In Minister Administering The Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 Spigelman CJ considered that the primary judge had relied upon and applied the dictum of Hope JA in Housing Commission (NSW) v Falconer. The primary judge made findings as to what was and was not foreseeable at the time of acquisition. Spigelman CJ (Powell & Heydon JJA agreeing) held that there was no error in the primary judge's findings. Spigelman CJ's discussion appears to involve an acceptance of the correctness of what was said by Hope JA in Falconer. That is how it was taken in McDonald v Roads & Traffic Authority (NSW) [29].

359 Minister v Deerubbin Local Aboriginal Land Council (No 2) was not a valuation case.

360 Minister Administering The Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 was also not a valuation case. The central question related to whether a Minister held a particular opinion at the time a claim was made under land rights legislation. One of the grounds of the appeal related to the primary judge's reliance on postclaim events. In dismissing the appeal Basten JA (Beazley & Tobias JJA agreeing generally) approved the dictum of Hope JA and said that the primary judge had applied it correctly: see [67] [70]. He also observed that Falconer was a valuation case and the comments were specific to valuation. Outside that sphere, the general principle does not exclude reference to later events as evidence relevant to a situation at an earlier point in time [68].

361 In McDonald v Roads & Traffic Authority (NSW) a question arose as to the potential for rezoning of the subject land. In that context, the resuming authority submitted that the fact that the subject land had not been rezoned by the time of trial, 18 months postacquisition, confirmed the hypothetical purchaser's foresight that there would be a significant delay in the rezoning of the land, relying on Falconer. Biscoe J emphasised the dangers in applying this principle. These include the danger of 'bootstraps' argument that it was foreseeable at an acquisition date that something would or would not happen because that thing did or did not happen after the acquisition date. Further, he referred to the dangers noted in Minister v NSW Aboriginal Land Council [68] as follows. Firstly, reliance on later evidence may distract attention from the point in time at which the relevant assessment must be made. Secondly, there are dangers in drawing inferences from later evidence, without close attention to the circumstances in which it arose.

362 In the end, Biscoe J gave weight to evidence of witnesses and of matters closer in time to the acquisition date and made a finding without regard to the fact that, by trial, rezoning had not occurred. He said he would make the same finding if he took into account that the rezoning had not occurred by the trial date: see [29] [31]. Consequently he did not need to decide whether to take that into account.

363 In Maggiotto v Roads and Traffic Authority of New South Wales [2006] NSWLEC 54, the land in question was the subject of a constraint due to airport noise. After the acquisition date, the airport was closed. Cowdroy J referred to the general principle that it was the factual circumstances at the date of acquisition that must be considered, because those were the considerations for the notional prudent purchaser. He referred to the dictum of Hope JA in Housing Commission (NSW) v Falconer. As at the time of the acquisition there had been some newspaper articles speculating that the airport would close and the council had a publicly stated policy in favour of seeking the closure of the airport. The court concluded that the material at the time of acquisition did not point to a trend which a prudent purchaser would have expected to continue after acquisition but rather merely amounted to conjecture about the possible future closure of the airport. Consequently, the subsequent closure of the airport could not be characterised as confirming a foresight: see [76] [78].

364 In Maidment v Roads and Traffic Authority (NSW) [46], a case concerning market value, Biscoe J referred to the dictum of Hope JA in Falconer in the course of setting out a series of statements of principles from the cases. So far as I can see, he did not give specific attention to any posttaking evidence.

365 In Multari v Roads and Traffic Authority (NSW), the applicant sought to lead evidence of events subsequent to the date of resumption in relation to the proposed closure of an airport which was proximate to the subject land and which constrained residential development over that land. Talbot J ruled the evidence to be inadmissible. His Honour distinguished between real value and market value, saying that what was said in McCathie v Federal Commissioner of Taxation had to be understood in that context. Further, he emphasised that in Housing Commission (NSW) v Falconer the court was concerned not with market value but with special value to the owner. See [26] [37]. As would be apparent, I agree with Talbot J's reading of Falconer.

366 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 481, was a land claim case, not a valuation case. In setting out a number of general principles Jagot J referred to the dictum in Housing Commission (NSW) v Falconer: [17(7)]. It appears that the court reasoned to its decision in the absence of the subsequent material and then concluded that that subsequent material, if relevant, was consistent with the findings made. See [104] [110].

367 In Sorell Council v Downie [2005] TASSC 2, a substantial amount of evidence was led regarding matters occurring after the date of valuation. Evans J described the evidence as being of very limited assistance because with limited exceptions a determination of market value revolves around the information available to the hypothetical parties at the assessment date. That approach to the determination of market value means that the court's general preference for actual facts over prophesies when assessing damages in both personal injury and wrongful death cases has very little application to land acquisition cases concerned with market value. I agree with that observation

368 Evans J referred to what Mahoney JA had said in Housing Commission (NSW) v Falconer (576). He also referred to what Hope JA had said in Falconer (557 559). Evans J concluded that he agreed with the approach taken by Hope JA and considered that the court was not entitled to attribute to either of the hypothetical parties exact knowledge of any of the subsequent events. In some instances, however, that evidence reinforces the conclusion that matters in question were contingencies that the parties would have foreseen [23].

369 Evans J observed that different considerations can apply to the utilisation of evidence of matters occurring after the date for assessment when considering heads of compensation other than market value such as special value, severance, betterment, injurious affection and disturbance. I agree with that observation.

370 I have not identified any subsequent evidence to which Evans J had regard in his reasoning.

371 In Chino Pty Ltd v Transport Infrastructure Development Corporation one of the issues concerned the value of the loss of an easement for support. The respondent (TIDC) sought to rely on an extensive amount of the post-acquisition documents in support of its case. It argued that it had an intention to restore the easement for support and that that intention was able to be known by a prudent hypothetical purchaser at the date of acquisition from the documents then available and was confirmed by events subsequent to the date of acquisition which were able to be taken into account. Under the heading of TIDC's submissions on public purpose, Pain J said as follows:

While generally events after acquisition are not able to be taken into account, subsequent or future events can be considered in the following circumstances:

(a) Where the future events were foreseeable, evidence of them is inadmissible not to prove a hindsight, but to confirm a foresight: Housing Commission of NSW v Falconer [1981] 1 NSWLR 547 at 558 per Hope JA;

(b) If inquiries by a prudent purchaser on the date of acquisition would have been sufficient to establish what was to occur. This includes inquiries of the resuming authority in cases where injurious affection or increase in value after acquisition is being considered. In Brisbane City Council v Thorpe (1965) 13 LGRA 31, the Council compulsorily acquired a strip across the front of the claimant's house and two years after the date of acquisition (and before the conclusion of the hearing of the claim for compensation) offered to move the improvements wholly onto the retained land. In holding that this offer could be taken into account by the Court in assessing compensation, Gibbs J, said (at 37):

'It was reasonable to expect that the Council would offer to make the building available, since the purpose of the resumption was to widen a road and possession of a portion of a building could be of no use to the Council. The fact that it has since made the offer may be regarded to show that as at the date of resumption, the building would have been available.'

(c) Where a course of events is in process and comes to fruition proximate in time to the acquisition date but after it, that is, events or policy development which commenced prior to resumption may be followed to their result after resumption: Marcus Jacobs, The Law of Resumption Compensation in Australia, LBC Information Services, North Ryde, 1998.

The defendants rely upon this as a statement of principle. In particular, they point to par (c) which they submit supports their 'completion of a process' contention. However, read in context, this passage seems to me to be a summary of TIDC's submissions rather than the court's statement of principles. Further, that can be seen from what is said by the court at [98].

372 The court's decision about whether post-acquisition documents were able to be considered is at [95] [106]. Pain J referred to Gosford Shire Council v Green and to Housing Commission (NSW) v Falconer. Her Honour appeared to accept the dictum of Hope JA that evidence of future events is admissible to confirm a foresight but not to prove a hindsight. See [98] and [103]. The court found that because TIDC's subjective intentions in relation to reinstatement of the easement were not relevant, and because there was no communication of that intention before the date of acquisition, there was nothing to disclose to a prudent hypothetical purchaser any statement that the easement would be reinstated. In those circumstances, documents becoming available to the public after the acquisition could not be considered [104] [105].

373 The defendants also rely on Cairns City Council v CMB No 1 Pty Ltd (1997) 96 LGERA 306. That case concerned a claim for compensation for injurious affection arising from the rezoning of land. The new town planning scheme, promulgation of which was the foundation of the claim for injurious affection compensation, mistakenly designated the land not as commercial (as was intended) but as rural. Subsequently, the error was discovered and drawn to the attention of the council and corrected.

374 McPherson JA began by identifying that it was a claim for injurious affection. While the statutory provisions directed attention to market value as the means of determining injurious affection, his Honour stated that compensation for injurious affection was not necessarily to be approached on the same basis as compensation for compulsory acquisition (309). He then considered the authorities regarding the relevance of subsequent events in some detail. He explained that if the conventional approach such as that taken by Mahoney JA in Housing Commission (NSW) v Falconer was applied the subsequent rezoning of the land would retain the character as a contingency to be relied on only to show what as a reasonable person a hypothetical seller and buyer might have foreseen. He did not consider that that was the appropriate approach in the circumstances of the case. He referred to authorities such as Minister for Army v Parbury Henty, McCathie v Federal Commissioner of Taxation and Australian Apple & Pear Marketing Board v Tonking in support of an approach that favoured evidence of the true facts rather than predictions. He also referred to the approach taken in personal injuries cases (312 314). He concluded that the court was bound to take into account the fact that the error had been rectified and the other subsequent events (314 315).

375 A similar approach was taken by Williams J (320 321).

376 Thus the fact that the case concerned a claim for injurious affection was central to the court's reasoning regarding the use of subsequent events. On that basis McPherson JA expressly distinguished the case from the general market value approach, on which the approach of Mahoney JA in Falconer was the conventional approach.

377 From this review of the authorities, I would summarise my conclusions as follows.

(1) 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: Minister v NSW Aboriginal Land Council [68]. In other contexts relating to compensation and assessment of damages, the courts often express a preference for subsequent facts (occurring between the date of assessment and trial) over prophesies.

(2) 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.

(3) Special considerations apply when the question is one of market value. That is because the basic principle by which value is determined the notional bargain of the hypothetical purchaser and vendor directs attention to what was known and knowable at the time of valuation, and not to subsequent material.

(4) Because of that, in cases involving market value, the general preference of the court for subsequent facts over prophesies that applies in relation to questions of compensation and assessment of damages, has little role to play.

(5) The dictum of Hope JA that subsequent events may be admissible to prove a foresight was made in the context of a claim for special value, not market value. Moreover, the cases upon which Hope JA relied were not concerned with market value.

(6) Some subsequent cases have proceeded on the basis that the dictum applies to questions of market value. See, for example, Chino v TIDC; Sorell Council v Downie; Maggiotto v Roads and Traffic Authority (NSW); and Maidment v Roads and Traffic Authority (NSW). However, in none of those cases did application of the dictum result in the admission of any evidence of any real significance to the outcome of the case.

(7) I am not persuaded that, on a question of market value, posttaking evidence is admissible to 'confirm a foresight'. In other words, I do not consider that Hope JA's dictum applies to a determination of market value. I agree with the observations of Mahoney JA in Housing Commissioner (NSW) v Falconer (576 577); Talbot J in Multari v Roads and Traffic Authority (NSW); and Evans J in Sorell Council v Downie that I have referred to in section 3.3. I also agree with the summary in Hyam A, The Law Affecting Valuation of Land in Australia (4th ed, 2009), 502. In my view, acceptance of a 'confirmation of a foresight' exception on a question of market value is not consistent with the fundamental principles about the process by which market value is determined. See, for example, the passages I have set out from Spencer (440); Kenny & Good v MGICA [49] [50]; Longworth (348) and Gosford Shire Council v Green (207).

(8) Evidence of advice given, or other events, after the taking date may, in some circumstances, be admissible on the basis that it may be inferred that the same or similar advice would have been given to the hypothetical purchaser at the taking date: see, for example, Caruso v Sydney Water Corporation.

(9) I do not accept that posttaking evidence about a matter relating to market value can be admitted on the basis that it relates to acts or policy development which commenced prior to resumption and can be followed to completion. In my view, a 'completion of a process' exception is not consistent with the basic principles about the determination of value: the notional bargain of the hypothetical parties. That bargain is based on what was known and knowable at the relevant time. The only authority cited for this alleged exception is Chino [66]. As I have explained, in my view, that passage was a summary of a party's submissions, not a statement of principle.

378 These observations are all in the context of the question of value based on urban potential. For the sake of clarity, I should make clear that I do not exclude posttaking evidence insofar as it bears upon a different question: whether the land would, but for the proposed public works, have been zoned urban prior to the date of the taking. That question seems to me to be of a different character to the question of the land's urban potential viewed through the eyes of the hypothetical purchaser. Determining the potential of the land involves evaluating the probability, in the mind of the hypothetical purchaser, of a possible rezoning. On the other hand, the past hypothetical rezoning question involves an assessment, on the balance of probabilities, of whether something would or would not have occurred prior to the date of the taking. That question is not determined through the eyes of the hypothetical purchaser. Rather, it is determined by the court, as part of the process of discounting required by s 241(2). The answer to the past hypothetical rezoning question becomes a premise for the hypothetical purchaser's consideration of the price to be paid. Consequently, in assessing the past hypothetical rezoning question, the special considerations relating to the ascertainment of market value do not arise.

379 Thus, for example, in determining whether the subject land would have been rezoned to urban at some time before the IPRSP, the IPRSP itself is not inadmissible, notwithstanding that it was published after the period in question. It is open to have regard to planning decisions and policies reflected in the IPRSP in assessing the probability that, had an application been made in say 1995, rezoning would have been approved. Of course, the question of weight is another matter.

380 As I have said, the defendants submit that parts of Directions 2031 and the SMPSRSP can be used to 'confirm the foresight' of the defendants' planning experts Mr O'Neill and Mr Moran. I have summarised in section 3.2 a number of the respects in which the defendants say their experts' opinions as to what was foreseeable was confirmed in Directions 2031 and the SMPSRSP.

381 In many instances the passages relied on by the defendants are not expressed in terms of what, in the relevant planning expert's opinion, was foreseeable as at July 2006. Moreover, some of the passages do not squarely state the propositions said by the defendants to be stated in the passage. However it is not necessary to determine the objections on these bases. That is because, I do not accept the defendants' contentions that:

(a) there is a 'confirmation of foresight' exception to the general rule against admission of posttaking evidence on a question of market value; and

(b) the 'confirmation of foresight' exception (if it exists) applies to the use of the SMPSRSP and Directions 2031 as confirming the defendants' planners' opinion on what was foreseeable at the taking date.

382 What the defendants refer to as the foresight of their planners is the planning advice that would have been given to the hypothetical purchaser as at the taking date. The defendants submit that this does not involve placing into the mind of the hypothetical purchaser information not ascertainable at the taking date. Rather, the defendants submit, a court can take account of subsequent events in assessing the competing views of planning experts. The defendants contend that consideration of the SMPSRSP and Directions 2031 assists the court to prefer the defendants' planners because their views better accord with the outcome, three years after the taking date, of the review on foot at the time of the taking.

383 The court assesses the advice of the competing views of the planners from the perspective of the hypothetical purchaser: De Ieso v Commissioner of Highways (252); see section 2.4 above. Contrary to the defendants' submissions, to use the subsequent outcome to assess the competing views about the appropriate advice to the hypothetical purchaser seems to me to involve, indirectly at least, placing that subsequent information into the mind of the hypothetical purchaser.

384 Further, the reasoning invited by the defendants seems to me to involve using the benefit of hindsight, in the form of what subsequently emerged in the ultimate review, to test the force of the competing opinions about what was foreseeable at the date of taking.

385 The defendants did not cite any authority in which subsequent events were permitted to be used to test or support an expert view about what was or was not foreseeable at the time of taking in the context of an assessment of market value.

386 I have concluded, in section 3.4, that there is no confirmation of foresight exception to the general rule of inadmissibility of posttaking information in assessing market value. For that reason, I reject the defendants' contentions about the admissibility of the SMPSRSP and Directions 2031.

387 Further, even if, contrary to my view, there is a 'confirmation of foresight' exception in the context of an assessment of market value, for the reasons in this section 3.5.1, I am not persuaded that that exception applies so as to permit the use of subsequent events to test or support an expert view about what was or was not foreseeable at the time of acquisition.

388 For these reasons, I rule that the SMPSRSP and Directions 2031 are inadmissible for the purpose of assessing the urban potential of the subject land. The defendants did not seek to rely upon these documents for any other purpose. Accordingly, they are inadmissible.

389 For the same reasons, I uphold the plaintiffs' objections to the 2010 planning publications received provisionally as exhibit 246A and exhibit 246B: Directions 2031 Final and the OMPPSRS.

390 The plaintiffs called Mr William Burrell in rebuttal of the defendants' posttaking case relying upon Directions 2031 and the SMPSRSP (ts 1883). As I have said, given that the ruling on the posttaking objection was deferred, the plaintiffs led the evidence of Mr Burrell against the contingency that their objection to the defendants' Directions 2031 posttaking case was rejected.

391 The defendants sought to rely on aspects of Mr Burrell's evidence. However, the plaintiffs' objections to Directions 2031 and the SMPSRSP having been upheld, the contingent basis for the receipt of Mr Burrell's evidence falls away.

392 In any event, my conclusion that there is, in the present context, no confirmation of foresight exception, and the other matters raised in section 3.5.1 above, mean that Mr Burrell's evidence cannot be used to 'confirm the foresight' of the defendants' planners.

393 More generally, in light of my ruling regarding Directions 2031 and the SMPSRSP, any evidence adduced by the plaintiffs in rebuttal of the defendants' reliance on Directions 2031 and the SMPSRSP is taken not to be in evidence.

394 The plaintiffs made three specific objections in relation to particular paragraphs of one of Mr Moran's reports. To the extent that those paragraphs refer to Directions 2031, or matters derived from Directions 2031, or matters otherwise occurring after the taking date, I uphold the objections. Consequently I uphold objection 24 in relation to the first sentence of exhibit 196B, 34/196 [8]. The second sentence of that paragraph does not rely on Directions 2031 and is unexceptionable. I uphold objection 25 to Mr Moran's report, exhibit 196B, 34/197 [14]. Objection 26 relates to 34/197 [15]. I uphold that objection, but only to the extent that paragraph refers to subsequent matters. I rule that the words '(not subsequently experienced in 2008/2009)' in [15(2)] and the words 'not 53% as targeted by the Government' in [15(3)] are inadmissible as posttaking evidence.

395 In the defendants' planners reports and valuers reports there are other references to the planning position as at the time of the report and thus after the taking date. Some of those references were the subject of objections advanced earlier in the trial but not ultimately pressed by the plaintiffs. For the reasons that I have given, I attach no weight to evidence of that kind.

396 It is necessary to outline some of Ms Thompson's evidence in order to put the plaintiffs' objections, and the defendants' contentions in response, into context.

397 On 7 June 2006, prior to the taking date, the Minister for Planning and Infrastructure convened a land supply summit. The catalyst for the summit was the critical shortage of vacant residential lots on the market in Perth and Peel and the apparent anomaly that there was a large pool of lots with conditional approvals but a shortage of lots available for sale.

398 Following the land supply summit, Ms Thompson was appointed 'land release coordinator'.

399 In August 2006, the Department for Planning and Infrastructure (the DPI) carried out a survey of conditionally approved subdivisions in the Perth metropolitan region and the Peel sector with 30 or more lots that, as 30 June 2006, were yet to be developed. The purpose of the survey was to collect evidence of the supply of forthcoming lots and the extent and types of delay experienced by land developers. The results of the survey were provided to Ms Thompson.

400 In February 2007, Ms Thompson prepared and published a report entitled 'The Coordination of Land Release for Perth and Peel: February 2007' (the Land Release report). The Land Release report is an attachment to Ms Thompson's statement. The plaintiffs object to the admission of the Land Release report on the ground that it was published after the date of taking. A substantial part of Ms Thompson's evidence recites or summarises conclusions from that report: see exhibit 213A [32] [42].

401 The defendants rely on conclusions said to be drawn in the Land Release report including:

(a) the shortage of vacant residential lots was caused by difficulties in delays in converting en globo urban zoned land to finally approved serviced lots;

(b) there were various causes for the difficulties and delays indentified in the reports; and

(c) there was no shortage of en globo urban zoned land and consequently no recommendation to rezone more land to urban.

402 The defendants contend that the results of the inquiry conducted by Ms Thompson, in the form of the Land Release report, are admissible on the basis that they reflect the completion of a process that was underway at the time of the taking. For the reasons given in sections 3.3 and 3.4, I do not accept that posttaking evidence is admissible on the basis of a 'completion of a process' exception. In this case the hypothetical purchaser would have known of the critical shortage of available residential lots, of the apparent anomaly given the large number of conditionally approved lots, and that steps were to be taken to investigate issues about lot supply. A hypothetical purchaser would not have known in advance, the outcome of that process. Rather, the hypothetical purchaser would have known that there was uncertainty associated with the results of the inquiries then to be undertaken.

403 For these reasons, I am not persuaded that the Land Release report or Ms Thompson's evidence in exhibit 213A [32] [42] is admissible, as the defendants contend, on the basis of the 'completion of a process' exception to the general rule against posttaking evidence. The defendants do not put any other basis for admission of this evidence. Consequently, I uphold the objection to this evidence.

404 In preparing the Land Release report, Ms Thompson used a preliminary report about the results of the survey conducted in August 2007.

405 Subsequent to the publication of the Land Release report, and following further analysis of relevant data by the DPI in June 2007, the DPI published a report entitled 'Residential Developers Survey: Lot Supply, Sales Outlook and Development Delays' (the Developers Survey report). The Developers Survey report was an attachment to Ms Thompson's statement. The plaintiffs objected to the Developers Survey report, and paragraphs of Ms Thompson's statement referring to it, on grounds that it was posttaking evidence.

406 Separately from their posttaking objection, the plaintiffs objected to the admission of the Developers Survey report on the ground that it was hearsay. That objection was argued in June 2010. I upheld the objection: McKay [No 2]. A number of paragraphs of Ms Thompson's witness statement were also consequently ruled inadmissible on grounds of hearsay.

407 The Developers Survey report was referred to, and was said to be an attachment, in a report of Mr Brian Haratsis (a witness called by the plaintiffs). Consequently, the Developers Survey report was received as a exhibit, and the defendants tendered the paragraphs of Ms Thompson's statement which had earlier been struck out under my ruling, for the limited purpose of rebutting so much of Mr Haratsis's opinion as referred to or relied upon the Developers Survey report (ts 5118 5120). It was accepted by the defendants that receipt of the Developers Survey report as an exhibit on this basis did not detract from my ruling that the contents of the Developers Survey report were inadmissible hearsay.

408 For corresponding reasons to those I have given respecting the Land Release report, I would also uphold the plaintiffs' posttaking objection to the Developers Survey report and to those parts of Ms Thompson's statement setting out or summarising its contents (exhibit 213A [23] [28]).

409 The parts of Mr Bulstrode's evidence to which objection is taken relate to the progress of rezoning applications after July 2006. Specifically, the evidence relates to the approach taken by the Peel Region Planning Office in the second half of 2007, and to decisions made in September 2007 and at later times. That evidence is the subject of objections 4, 5, 13 and 16. For the reasons that follow, I uphold those objections. The defendants relied on the 'confirmation of foresight' and 'completion of a process' exceptions. As I have explained, in my view there is no confirmation of foresight exception and no completion of a process exception. What is relevant is what the wellinformed hypothetical purchaser would have expected, as at July 2006.

410 The defendants also submitted that the progress, after the taking date, of these other applications is admissible 'to exemplify delays and contingencies' in the planning and approval process. No authority was cited in support of this contention. I do not accept that that is a basis to admit evidence of events after the taking date. The question is what was known and knowable at the taking date.

411 The focus on the knowledge of the wellinformed hypothetical purchaser on the taking date does not mean that there is a blanket prohibition on the receipt of any evidence relating to an event after the taking date. For example, evidence of how an application was dealt with on the day after the taking date may have been admissible on the basis that it supports an inference that advice to similar effect would have been given on the date at the taking; see point 8 of my conclusions in section 3.4. However, the evidence objected to relates to events more than a year after the taking date. I am not persuaded that this evidence is probative of anything relating to advice that would have been given to, or the knowledge, as at the taking date, of the wellinformed hypothetical purchaser.

412 Two other objections were maintained in relation to other parts of Mr Bulstrode's evidence: objections 9 and 14. It is not clear to me whether the defendants ultimately relied on the evidence the subject of these objections. It was not identified in the defendants' list of posttaking facts relied upon, subject to one possible exception. The exception is the defendants' general statement in submissions that they rely on the progress of applications for rezoning in the locality of the subject land commenced prior to the taking date which were completed or continued after the taking date. As I have said, I do not accept that there is a completion of a process exception to the general rule against the receipt of posttaking information in the present context.

413 In any event, it seems to me to be unnecessary to rule on the evidence the subject of these objections. The evidence the subject of objection 9 relates to amendments made to the PRS since it was finalised in 2003. The substantial majority of those amendments were initiated and completed prior to the taking date. The dates of the initiation and finalisation of amendments are set out in attachment 18 of Mr Bulstrode's statement. One amendment was finalised in 2007 relating to regional open space in West Pinjarra. In my view, even if a completion of a process exception otherwise justified the receipt of this evidence, it is not probative of anything relating to the issues in this action.

414 Objection 14 relates to a generalised statement (exhibit 200B, 35/19 20) about the fate of urban rezoning requests in the four years up to the date of the statement, namely 27 August 2008. That generalised statement is not probative of anything. To the extent relevant, the progress and responses to the applications are dealt with in detail in Mr Bulstrode's evidence and in other evidence.

415 Dr Andrew Montgomery, the director of Urban Growth Management in the Department of Planning (formerly the DPI), gave evidence about the preparation of the SMPSRSP and the preparation of Directions 2031.

416 Dr Montgomery prepared a report to the WAPC in July 2006 (exhibit 92, annexure ADM 3, 51/203212A plus attachments). Dr Montgomery finalised and signed the report on 25 July 2006. Prior to that, the report existed only in the form of draft on his computer. It was not available to the public in that form (ts 2086).

417 The plaintiffs object to the admission of this document on the basis that it was finalised and provided to the WAPC after the taking date. The defendants contend that the document can be received as an indication of what would have been revealed by the DPI, on inquiry, had inquiry been made as at the date of taking. The defendants submit, in particular, that the report states, and advice would have been given in response to an enquiry that:

(a) the DPI did not then have sufficient reliable information to conclude its review; and

(b) substantial further investigation was needed before any decision were to be made on urbanisation.

418 I admit the document on the basis that it includes those matters that, it is open to infer, would have been revealed by the DPI on inquiry as at the date of taking. That is not to say that the full extent of the contents of the report would have been so revealed.

419 I will say more about this report in section 7.3 of these reasons.

420 The defendants point to some evidence of Mr Dawkins (ts 2172 2175) concerning the deliberations of the Network City implementation committee as confirming the foresight of the defendants' planners about what Network City did and did not support. They also point to parts of Mr Dawkins' evidence (ts 2129 2130, 2133 2136) as confirming their planners' foresights in relation to the draft LPS. The plaintiffs object to the use of this evidence for that purpose.

421 Consistently with the approach I have taken elsewhere, I would not admit evidence of posttaking events on the basis that it confirms the foresight of the defendants' planners. However, the relevant evidence of Mr Dawkins (ts 2129 2130, 2133 2136, 2172 2175) does not seem to me to concern events after July 2006. Consequently, I do not uphold the objection to this evidence of Mr Dawkins.

422 The plaintiffs objected to five parts of the evidence of one of the defendants' valuers, Mr Brian Zucal. All of these objections (objections 6, 7, 19, 20 and 21) are to evidence that is part of Mr Zucal's response to the reports of the plaintiffs' valuers. In particular, the evidence objected to relates to Mr Zucal's response to comparable sales relied on by the plaintiffs' valuers.

423 The grounds of objection were that the process of reasoning was inadequately revealed, or hearsay, or both. After the objections were initially made, the defendants supplemented the evidence of Mr Zucal by his statement of 7 September 2010 (exhibit 272C, 48/290 293). In light of the supplementary statement, the plaintiffs maintained their objections, contending, in substance, that the reasoning as disclosed by the supplementary statement did not and could not support or sustain the conclusions stated in the evidence to which the objections were taken.

424 It is not necessary to deal with the plaintiffs' contentions by way of objection because, given Mr Zucal's reasoning as articulated in the supplementary statement, I do not attribute any weight to any of the evidence to which the objection was taken.

425 The same applies to the one objection (objection 44) taken to a passage of the evidence of the defendants' other valuer, Mr Keith Wilson.

426 Mr Jeremy Dawkins was the chairman of the WAPC from January 2004 to February 2009. The plaintiffs objected to a number of parts of Mr Dawkins' evidence. The objections were argued before Mr Dawkins gave evidence. In the course of argument, the defendants agreed to the deletion of some of the passages to which objection was taken. In relation to some of the objections, I ruled that the evidence should be received provisionally. In conferral, after Mr Dawkins' evidence was given and after all of the evidence in the trial had been received, the plaintiffs withdrew a number of the objections they had made. The plaintiffs were content for many of the matters on which they had made objections to be dealt with, instead, by way of submissions as to the weight to be given to the evidence.

427 Following this process, the plaintiffs maintained only one objection to the evidence of Mr Dawkins. The objection is to exhibit 92 [25]. In its redacted form, after conferral, [25] states that as at July 2006, Mr Dawkins' view was that the WAPC should not contemplate further urban development in the North Yunderup area in the absence of more detailed strategic planning and subsequent planning policies for the area, including the South Metropolitan and Peel Region Urban Growth Management Strategy and specific scientifically verified measures to address the critical impact of urban development on the PeelHarvey catchment.

428 Initially, the plaintiffs objected to this evidence on three grounds. However, following conferral, they withdrew two of those grounds. The ground ultimately pressed was that the evidence was irrelevant because the views of the WAPC would not have been sought or obtained by reasonable enquiry of a prudent hypothetical purchaser at the date of the taking. That form of objection appears to relate to the form of the paragraph before it was redacted. In any event, it is unnecessary to rule on this objection. For the reasons given in section 7.3 below, without regard to this evidence, I am satisfied that the hypothetical purchaser would have known that no rezoning would occur until the substantial completion of the Planning Review.

429 I deal with the plaintiffs' objection to exhibit 205 (received provisionally) in section 4.9.

430 With the exception of the objections relating to the plaintiffs' hypothetical rezoning case, none of the defendants' objections seem to me to raise matters of central significance to the resolution of the action. I deal with the defendants' objections in sch 1 to these reasons. I have not found it necessary to determine all of the defendants' objections. Some of those objections are on grounds of relevance. I have not formally resolved those objections. If I have referred to evidence in the course of my reasons then, by definition, I consider it relevant in the context and for the purpose there identified. If I have not referred to it, I consider it to be not relevant or not of sufficient weight to influence my reasoning. In some other cases, I have not ruled on an objection because I have concluded that I would not accept the relevant evidence in any event.

Section 4: PreIPRSP rezoning: but for the proposed public works, would the subject land have been rezoned to urban between 1990 and 1997?

4.1 PreIPRSP rezoning: overview of the parties' cases

431 On the plaintiffs' case, the question of whether the subject land would have been rezoned to urban before 1997 involves two questions. First, would the plaintiffs have made an application to have the land rezoned; secondly, what would have been the likely outcome of such an application? The plaintiffs require favourable answers to both questions in order to succeed on the preIPRSP rezoning case. As will emerge, I answer both questions unfavourably to the plaintiffs.

432 The plaintiffs accept that an application to rezone the land would have been necessary in order that rezoning occurred. In other words, the plaintiffs do not contend that rezoning would have occurred without action by the plaintiffs as the owners of the land. As was a central theme of the plaintiffs' case, rezoning in the preIPRSP period was developer initiated and developer driven. See, for example, the unchallenged evidence of Mr Michael Berrie: exhibit 231A [3] [4]. There is no evidence of rezoning of land to residential in the preIPRSP period at the instigation of the shire. There is evidence that the shire, at times in and around 1991, encouraged owners to initiate a rezoning (see section 4.4). The experts agreed that without an application by the plaintiffs, the subject land would not have been, or at least was unlikely to have been, rezoned to urban in the preIPRSP period (ts 3954 3956). I accept that, absent a rezoning application, the subject land would not have been rezoned in that period.

433 The plaintiffs contend that, but for the proposed public works, they would have applied prior to 1997 to have the subject land rezoned. On the plaintiffs' case, that would have occurred either in 1991 1992, following the invitation to landowners by the shire's letter of 15 January 1991, or in 1994, following Mr McKay's discovery of sewerage works in the area. I will deal with those contentions below in sections 4.5 and 4.3 respectively.

434 On the plaintiffs' case, the question of whether the plaintiffs would, but for the proposed public works, have applied for rezoning of the subject land is to be determined subjectively. In other words, the question is whether, but for the proposed public works, the plaintiffs would have applied. The question is not whether a reasonable landowner would have applied. In determining that question, the plaintiffs submit, and I accept, that in assessing whether the plaintiffs would have applied, regard can and should be given to objective facts and circumstances bearing on whether a reasonable landowner would have applied.

435 The second question concerns the result of a hypothetical rezoning application. The plaintiffs and the planners called by the plaintiffs pointed to a range of matters as supporting the conclusion that, absent the proposed public works, had the plaintiffs applied for rezoning of the subject land prior to 1997, the land would have been rezoned to residential/urban. The following provides a broad overview of the major matters on which they relied.

436 First, in the period in question there was a 'permissive planning environment' in which the shire and planning authorities were generally supportive of rezoning proposals. More particularly:

(a) there was a shortage of urban land supply in Western Australia, and in the Peel region in particular, in the late 1980s and early 1990s;

(b) the need for sewering of land was a major constraint on rezoning rural land to residential in the Peel region in this period, especially for land near the Serpentine and Murray River systems;

(c) Ravenswood was one of the priority areas for the Shire of Murray for land to be sewered and rezoned;

(d) the attitude of the shire towards a rezoning proposal influenced the state planning authority's decisions; and

(e) consequently, any land that was capable of being sewered in the region, and especially in or around Ravenswood, had good prospects of being rezoned.

437 Furthermore, in January 1991, the shire sent a letter to landowners around Ravenswood, creating an opportunity to have land connected to deep sewerage and asking for expressions of interest in residential development. The plaintiffs contend that, but for the proposed public works, they would have received that letter, which would have been a catalyst for the plaintiffs applying to rezone the subject land. I will deal with that contention in section 4.5 below.

438 Secondly, the location and characteristics of the land favoured its urbanisation and provided no constraints to its urbanisation. Some of the land's locational and physical characteristics are summarised in the planners' joint report of 30 June 2010 (exhibit 240 [7]).

439 Thirdly, other rezoning applications in the relevant period indicate the principles of orderly and proper planning during that period which are to be applied to the hypothetical preIPRSP rezoning application. Consideration of other successful rezoning applications in the period, namely Riverland Ramble, Murray River Country Estate (MRCE), and Austin Cove demonstrates that a hypothetical rezoning application of the subject land would have been successful. The plaintiffs contend, and some of their planners expressed the opinion, that the location of the subject land and its absence of constraints made it superior to other land rezoned in the 1990s. I will deal with the rezoning of Riverland Ramble in section 4.6 below and with other rezonings in section 4.7.

440 Fourthly, unlike Riverland Ramble, the subject land did not suffer from the detrimental noise effects of the Ravenswood drag strip. Consequently, had a rezoning application been made, the land would have been rezoned ahead of and in preference to Riverland Ramble. Alternatively, the plaintiffs contend that the land would have been rezoned together with the rezoning of Riverland Ramble. I deal with those contentions in section 4.6. As a third alternative, the plaintiffs contend that the subject land would have been rezoned in addition to and separately from the approval of the rezoning of Riverland Ramble.

441 Fifthly, the plaintiffs contend that the subject land would have become part of the urban node of Ravenswood. They contend that, had there been no proposed public works, given the noise issues arising from the drag strip, Ravenswood would have grown in a westerly direction, rather than to the east.

442 Sixthly, planning instruments and publications support the hypothetical preIPRSP rezoning of the subject land. They supported urban development in and around the subject land or indicated its future urban potential. I will deal with the planning documents, and what can be taken from them, in section 4.8 below.

443 Seventhly, the contemplated possible alignment of the Highway in the relevant period caused the subject land and other land in the area to be retained as rural as a broader corridor through which the final alignment would travel. The plaintiffs say that planning during this period required the retention of land as rural so as to create a rural buffer near the Highway and provide flexibility in finalising the alignment of the Highway. They also contend that the Highway alignment had the effect of discouraging urban zoning in the vicinity, as that would conflict with the Highway. That caused parts of the subject land to be identified for other public purposes, namely for possible TAFE use and for the Regional Recreation Facility (RRF). I will deal with these contentions in section 4.10 below.

444 The defendants' first contention is that the preIPRSP rezoning case involves an impermissible enquiry, because the only question is the urban potential of the land as at the taking date. I have dealt with and rejected that contention in section 2 of these reasons.

445 The defendants also submit that it is impermissible to ask whether the plaintiffs would have applied to rezone the land in the past hypothetical rezoning approach. That contention was discussed, but not determined, in section 2.7.3.7 above.

446 Further, the defendants contend that, but for the proposed public works:

(1) the plaintiffs would not have applied to have the land rezoned in the period prior to 1997; and

(2) in any event, had such an application been made, orderly and proper planning would have led to the refusal of the application.

447 As to the 'permissive' planning environment, the defendants' planners agree that, prior to the IPRSP, the shire would likely have supported a rezoning proposal. However, they emphasise that does not mean the rezoning application would have been supported by the WAPC and the Minister, or that it reflects good planning.

448 Among the matters pointed to by the defendants and the planners called by the defendants in support of their contention, that a hypothetical rezoning application would have been refused as a matter of orderly and proper planning, are the following:

(a) Strategic planning documents at the time, namely the 1990 draft Peel Regional Plan, the 1992 report of Martin Goff & Associates to the South West Area Transit Steering Committee (the SWAT report) and the 1994 Peel Regional Strategy, would not have supported the hypothetical rezoning of the subject land.

(b) Given the proposed rezoning of Riverland Ramble, there would have been seen by the WAPC and Minister to be sufficient existing urban zoned land in and around Ravenswood, and in the Shire of Murray, for the foreseeable future. A rezoning of the subject land as well would have led to an unjustifiable oversupply of urban land.

(c) Rezoning of the subject land to urban, in addition to Riverland Ramble, would not have been a logical or wellplanned development of urbanisation around Ravenswood and would not have involved consolidation of urban development in and around existing urban areas, as good planning favoured.

(d) The views of the WAPC expressed in the 1996 IPRSP are a good indication of what were likely to have been the WAPC's views in the year or so leading up to 1996, had an application for rezoning been made. In the IPRSP, it appears that Riverland Ramble and MRCE were regarded as providing adequate residential land for the Ravenswood Pinjarra area for some time. The defendants' planners also point to the choice of Option 2, and not Option 3, in the 1996 IPRSP and final 1997 IPRSP.

(e) The subject land would not have been approved as a hypothetical substitute for Riverland Ramble because, among other reasons, to do so would have meant that there were two nodes of urbanisation at Ravenswood that were not contiguous.

(f) By 1995, the regional structure planning then underway would have or may well have precluded major urban rezoning, pending the completion of the structure planning process.

449 The plaintiffs and their planners denied that considerations of population, and the supply of and demand for urban land were significant to the determination of rezoning applications in the preIPRSP period. The planners were also at issue about what could be drawn from, first, the planning instruments and publications, and secondly, from what occurred in relation to other rezoning applications.

450 The ultimate question, in this section, is whether, but for the proposed public works, the subject land would have been rezoned to urban in the preIPRSP period. That question is to be determined as a matter of orderly and proper planning. In dealing with the preIPRSP question, I must make findings about historical facts, and findings about hypothetical facts in the assumed absence of the proposed public works. Most of the controversies centred on the hypothetical facts what would have occurred, but for the proposed public works? The vast majority of the historical facts are not in dispute. In the course of this section 4, I will make detailed findings about things which occurred in the preIPRSP period, and findings about what things would have occurred differently, or not, in the assumed absence of the proposed public works.

451 A very large volume of evidence was led on the preIPRSP rezoning case, especially by the plaintiffs. I will begin with the evidence of the expert planners, and then introduce the other evidence led by the plaintiffs.

452 The plaintiffs relied on the evidence of five planners: Mr Timothy Auret, Mr Greg Rowe, Mr Vernon Butterly, Mr Brett Flugge and Mr Brian Robinson. The defendants relied on the evidence of Mr Trevor Moran and Mr Chris O'Neill. All are very experienced planners.

453 At the outset of the concurrent session, each planner gave an outline of their opinion, and their reasons, whether the subject land would have been supported for rezoning in the 1990s, up to December 1997, under TPS 4 by the shire, the WAPC and the Minister, assuming that the Highway and the RRF had never been proposed for the subject land.

454 All of the planners called by the plaintiffs answered the question in the affirmative; both the defendants' planners answered in the negative.

455 Mr Rowe said that there was a strong sentiment to encourage residential development, particularly in Ravenswood. The provision of sewerage was really the only hurdle. Beyond dealing with the need for sewerage, the council was 'not particularly strict or strategic' other than seeking urban development and residential growth. If the sewer problem could be solved, council was 'really grabbing it with both hands' (ts 3684). Taking the process through the WAPC and the Minister 'wasn't particularly onerous or difficult' (ts 3684).

456 Mr Auret expressed a similar view. He said that the atmosphere, both at 'the top', with the Minister for Planning, and at 'the bottom', with the shire, was that there were drastic land shortages everywhere and 'more was much better than less' (ts 3685). He described it as a 'very conducive period' for rezoning of land to urban (ts 3685).

457 Mr Robinson emphasised the locational characteristics of the land, including that it fronted Pinjarra Road, which was a regionally important road and a growth corridor, as it had been recognised in strategic documents. The land was clear of vegetation and free of significant environmental constraints. It is located between Mandurah and Pinjarra in close proximity to the Ravenswood townsite and the recreational facilities associated with the Murray River. It was not affected by the Ravenswood Raceway (ts 3685; see also the planning experts' joint report of 30 June 2010, exhibit 240 [7]).

458 The existence of these characteristics is not in dispute. It is also not in dispute that those locational and physical characteristics of the land are not the sole criteria for whether and when the land would be rezoned to urban.

459 Mr Butterly agreed with the points made by Mr Rowe, Mr Auret and Mr Robinson. He also referred to the 1974 report by TS Martin & Associates on the southwest metropolitan corridor (the TS Martin report) (ts 3686).

460 Mr Flugge agreed with the comments of others about the permissiveness of the planning environment. He said that the shire and the state government were working cooperatively to see things happen particularly in the locality of Ravenswood. He also emphasised the absence of environmental constraints of this land compared to many other sites (ts 3687).

461 Mr Rowe and Mr Auret expressed the view that an application at any time from about 1990 to 1997 would have been treated favourably (ts 3855). Mr Butterly expressed a view to the same effect (ts 3856).

462 Mr Flugge's primary assumption seemed to be that an application would have been lodged at about the same time as Riverland Ramble's, possibly in conjunction with that application (ts 3857 3859). In any case, Mr Flugge's opinion was that an application at any time from 1990 onwards would have succeeded (ts 3859).

463 Mr Moran expressed a contrary view to the plaintiffs' planners. He said that his view was based on a reading of the strategic documents, at the time, for the area. He referred to the 1990 Peel Regional Plan and the 1994 Peel Regional Strategy. He did not disagree about the locational characteristics of the land. Mr Moran also referred to the rezoning of MRCE. He expressed the view that some of the hurdles which that rezoning faced, albeit that the hurdles were ultimately overcome, would have been issues for any hypothetical rezoning application of the subject land (ts 3693 3695).

464 Mr O'Neill accepted the capability and serviceability of the subject land for the purposes of rezoning. However, he emphasised the need to focus on the broader considerations of where urban development should expand. That is governed by broader considerations than simply land capability. Questions of consolidation of urban development, infrastructure servicing and demand for additional urban land also come into play (ts 3695). He also referred to the 1990 Peel Regional Plan and the 1994 Peel Regional Strategy as militating against the success of the hypothetical rezoning of the subject land.

465 He considered that the notional absence of the Perth Bunbury Highway would have the effect of reducing the demand that would otherwise be there. He referred to the fact that in 1991, a number of landowners were sent invitations in relation to urbanisation of land, and only one owner (Riverland Ramble) pursued it (ts 3697).

466 Mr O'Neill also referred to the WAPC response to the MRCE application and the question of whether there was a demonstrated need for additional urban land in the locality in the short to medium term. Further, he referred to the lack of contiguity or connectivity between the subject land and Riverland Ramble. He also pointed to the undesirability of urban sprawl, as referred to in the 1994 Local Rural Strategy (the LRS) (ts 3697 3698).

467 The plaintiffs' planners drew support from their opinions from a number of planning instruments and publications: the TS Martin report, the 1990 Peel Regional Plan, the 1994 Peel Regional Strategy, the 1992 SWAT report, the 1994 LRS, and TPS 4 itself. I will refer to what they said in that respect in dealing with those planning instruments and publications in section 4.8 below.

468 Mr Rowe pointed to the approval of Riverland Ramble as supporting his opinion in relation to the subject land. He said that the same approach would have applied to the subject land and other land in the general locality. He saw no reason why the rezoning of the subject land would not have progressed in the same way as in Riverland Ramble, except that the difficulties arising from the raceway would not have arisen (ts 3878). Mr Flugge and Mr Robinson agreed with Mr Rowe (ts 3879). All three expressed the same opinion in their written reports. Messrs O'Neill and Moran expressed contrary views.

469 Mr Flugge and Mr Robinson considered that the approval of the MRCE rezoning supported their view on the hypothetical rezoning of the subject land (ts 3871 3872, 3875 3876).

470 I will say more about the planners' opinions on what can be taken from the progress and approval of Riverland Ramble and MRCE in sections 4.6 and 4.7 below.

471 Question 1 on the agenda for the preIPRSP planning concurrent evidence session was framed in terms of whether an application for rezoning would have been supported by the shire, the WAPC and the Minister. It is not directed, in terms, to whether rezoning at that time would have been consistent with orderly and proper planning. The parties agreed, and I accept, that the question is what is dictated by orderly and proper planning, at the relevant time, and not the subjective views of a particular decisionmaker. See section 2.9 above.

472 The plaintiffs contend that the decisions made during the relevant period are a good indication of what orderly and proper planning, at that time, required.

473 There was some oral evidence, at the conclusion of the preIPRSP concurrent session dealing specifically with this. In substance, the plaintiffs' planners said that all decisions were consistent with orderly and proper planning (ts 3907 3910). The defendants' planners raised questions and expressed doubts in that regard, suggesting that decisions may have been made without adequate data (ts 3911). I do not need to resolve any issue in that regard. That is because I do not think that any difference between any rezoning decision made in this period and orderly and proper planning affects my view of the fate of the hypothetical application to rezone the subject land.

474 When the trial commenced in October 2009, the plaintiffs relied on a number of reports by various planners called by the plaintiffs. In many of those reports, an opinion was expressed that, but for the proposed public works, the land would probably have been rezoned urban. In those reports, an opinion to that effect was generally expressed without identifying a particular period in which, in the planners' opinions, the land would have been rezoned to urban. Various of these reports referred to a multitude of considerations, some of which applied in the 1990s and others of which applied only in the time leading up to the taking. In opening, the defendants criticised that aspect of the plaintiffs' planners' reports, and the plaintiffs' case. In my view, there was force in that criticism.

475 As I have explained in section 1.6, the case was adjourned in November 2009 and resumed in July 2010. The catalyst for the adjournment was the provision of a number of witness statements and reports by the plaintiffs around 10 November 2009. These included reports of Messrs Rowe and Flugge. Those reports and statements were directed to the preIPRSP period.

476 By the time the trial resumed in June 2010, the plaintiffs' planners had prepared a number of reports that were specifically directed to the question of preIPRSP rezoning. See, in this regard, the reports of Mr Flugge of 30 March 2010 and 6 August 2010; Mr Robinson's reports of 30 March 2010 and May 2010; Mr Rowe's report of 29 March 2010; and Mr Butterly's reports of June 2010 and August 2010. The substance of the reasons for the opinions expressed in those reports have been outlined in the plaintiffs' case in section 4.1.1, and in outlining the oral evidence of the planners in section 4.2.1.1.

477 After conferral, the planners prepared a joint report of 30 June 2010 (exhibit 240). It set out the competing views, the substance of which is reflected in the outline I have given.

4.2.1.3 The relevance of the regional experience, in the relevant period, of the plaintiffs' planners

478 The plaintiffs submit that the opinions of planners who were involved in the planning decisions in the region and period in question, for that reason, carry more weight than the opinions of those who were not so involved. There are cases that provide, or may provide, some support for that submission. See for example Smith v Roads and Traffic Authority (NSW) [54] [56]; and W and H Carter v Roads and Traffic Authority of NSW [2006] NSWLEC 89; (2006) 144 LGERA 375 [49].

479 Given that the question of hypothetical past rezoning is to be approached objectively, by reference to what is dictated by orderly and proper planning, and not subjectively, by reference to particular decisionmakers, it is not clear what significant advantage is derived from an expert having been involved in the region during the relevant period. It may be that that involvement provides a greater familiarity with the decisions made in the relevant period and those decisions indicate or evidence what orderly and proper planning involved in that period. In any event, the fact of experience in the region during the period is not a standalone reason for preferring an expert opinion over an opinion expressed by another expert without such experience, independent of the merits of the reasoning supporting the opinion. The cases do not suggest otherwise. In the cases I have referred to, the court found the reasoning of the planners with experience in the area to be more cogent, and preferable, to that of the other planner.

480 In my opinion, in the end the primary focus must be on the cogency of the reasoning that underlies and supports the opinions in question. In that regard, among the matters of significance are the extent to which it is supported by the planning instruments and publications relied on and relevant at the time, and by other planning decisions in the period.

481 The plaintiffs relied on the evidence of a number of witnesses whose statements were tendered in support of the preIPRSP rezoning case. Some of these witnesses were required for crossexamination, some were not. The plaintiffs also tendered a very large volume of documents.

482 One of the plaintiffs, Mr McKay, gave evidence relating to whether, but for the proposed public works, the plaintiffs would have applied to have the land rezoned to urban in the period up to 1997. I will deal with this evidence in section 4.3 of these reasons.

483 The plaintiffs led evidence from Mr Ray Jones, one of the developers of Riverland Ramble (exhibit 211A and exhibit 211B). Part of his evidence related to the plaintiffs' contention that, but for the proposed public works, the plaintiffs would have joined forces with the developers of Riverland Ramble in relation to sewerage and rezoning of their respective land.

484 The plaintiffs called two former Ministers for Planning, Mr David Smith (exhibit 236) and Mr Richard Lewis (exhibit 234).

485 The plaintiffs tendered witness statements from three former officers of the Department of Planning and Urban Development (the DPUD): Mr Karl Berzins (exhibit 189A and exhibit 189B); Mr Karl White (exhibit 233); and Mr John Scharf (exhibit 193A and exhibit 193B). Mr Berzins was manager of the Peel region office of the Ministry for Planning in 1994 and 1995. Mr White was an officer of the Mandurah office of the DPUD from 1994 to 1997. Mr Scharf was manager of the Peel region office of the Ministry for Planning from 1996 to 2001. The name of the DPUD changed to the Ministry for Planning in 1995, and changed to the DPI in 2001. I will refer to these entities without careful discrimination about which was correct at the time.

486 The plaintiffs tendered witness statements from Mr Michael Berrie, a shire planner at the Shire of Murray from May 1991 until July 1994 (exhibit 231A, exhibit 231B and exhibit 231C). Some of the expert planners called by the plaintiffs, namely Messrs Flugge and Robinson, had previously worked in the planning section of the shire.

487 The plaintiffs also called a former shire president of the shire, Mr Michael Greenup. His statements were exhibit 171A and exhibit 171B.

488 I will say more about some of the evidence relied on by the plaintiffs in what follows, including in sections 4.3, 4.5, 4.10 and 4.11 below. At this stage, I make the following general observations.

489 The evidence of planning officers of the shire and the department, and of the shire president, concerned events that had occurred 15 or more years earlier. Much of the evidence in the witness statements was drawn from an examination of documents from the period in question.

490 It was apparent that, in many cases, the selection of which documents would be referred to was made by the plaintiffs' solicitors, not by the witness. For example, Messrs Rowe, Greenup and Berzins accepted that that was so. Moreover, in some cases the summaries of the document offered in the witness statements were at best incomplete and, at times, inaccurate or misleading.

491 In any event, in my view, quite apart from these points, it is the documents from the period in question that are the most reliable evidence of the events that occurred, the decisions made and, to the extent relevant, the reasons for those events and decisions. By way of example, in some respects the time at which certain events occurred is significant, and is in contention. The timing and detail of the development by the shire of a proposal to use the subject land for a TAFE college site or a regional recreation facility is an example. To my mind, the contemporaneous documents are a far more reliable guide than the memory of witnesses 15 years or more after the events.

492 In my view, the categories of evidence of the greatest significance to the determination of the preIPRSP rezoning question are the planning instruments and publications applicable during the relevant period; the documents revealing the progress and consideration of other rezoning applications in the relevant period; and the expert evidence of the planners.

4.3 But for the proposed public works, would the plaintiffs have applied to have the land rezoned to urban in the preIPRSP period?

493 As I have explained in section 4.1.1, an affirmative answer to this question is an essential element of the plaintiffs' preIPRSP rezoning case.

494 On the plaintiffs' case, the question is not whether a reasonable landowner would have applied; it is whether the plaintiffs would have applied. In other words, the question of whether the plaintiffs would have applied is to be determined subjectively. That does not mean that objective facts and circumstances are irrelevant. To the contrary, as the plaintiffs submit, in assessing whether the plaintiffs would have applied, regard should be had to the objective facts and circumstances that bear on whether a reasonable landowner would have applied. Moreover, the known facts and circumstances about the plaintiffs, including what in fact was and was not done by the plaintiffs, are also significant considerations in assessing whether the plaintiffs would have applied.

495 In these respects, there is some analogy with the assessment of the evidence of a plaintiff in a medical negligence case whose evidence is that, had he or she been warned of a particular risk, they would not have proceeded with the surgery. Because a plaintiff's evidence is given in hindsight on a hypothetical question, substantial weight must be given to the objective and known circumstances, including those that relate to the plaintiff at the relevant time, in assessing the plaintiff's evidence: see, for example, Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, 246 (note 64), 272; Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474 [47] [49], [62] [63].

496 In the Changes Document, the plaintiffs contend that there are two events that would each have led to an application for rezoning being made in the hypothetical preIPRSP period. The first is the contention that, but for the proposed public works, the plaintiffs would have received the letter of 15 January 1991 from the shire, seeking expressions of interest in residential development, as a result of which the plaintiffs would have applied for rezoning in 1991 or 1992. The second is that, but for the proposed public works, the plaintiffs would have applied for rezoning in 1994, upon learning about the availability of sewerage in Ravenswood.

497 The plaintiffs did not give evidence directly supporting the first contention. Mr McKay's evidence was about what he would have done in 1994. He did not give evidence about what he would have done had he received the letter of 15 January 1991.

498 The first contention directs attention to the question of whether the failure of the plaintiffs to receive the letter is attributable to the proposed public works. I determine that question adversely to the plaintiffs in section 4.5.

499 I turn to the plaintiffs' contention about a rezoning application being made in 1994. I start with that contention as that was the substance of Mr McKay's evidence. It was also the essential thrust of the plaintiffs' closing submissions in support of the preIPRSP case.

500 By way of broad overview of this section 4.3:

(a) in the mid1990s, he wanted to develop his land, including the subject land, by having it rezoned to urban and then subdividing it; and

(b) in 1994, he would have applied for rezoning of the subject land, had he not been told that the proposed Highway and RRF precluded rezoning of the subject land.

(a) it does not sit well with the objective facts about the timing of the RRF proposal;

(b) on his evidence, his conduct in taking no steps in relation to the RRF proposal does not make sense when measured against other aspects of his conduct at other times;

(c) his evidence invites attention to why he made no rezoning application in respect of lots 300, 301 and 189. His evidence on that question was inconsistent and unsatisfactory;

(d) other indications of his intentions in the 1990s weigh against acceptance of his evidence; and

(e) in other respects, his evidence was inconsistent and unsatisfactory.

501 I turn to examine Mr McKay's evidence in detail and to set out and explain my findings.

502 Mr McKay's evidenceinchief is contained in two statements; the first dated 26 October 2009 (exhibit 175A) and the second dated November 2009 (exhibit 175B).

503 The plaintiffs bought Windsor Park in 1990. As explained in section 1, Windsor Park comprised six lots, of which the subject land is two lots.

504 In his first statement, Mr McKay says that before buying Windsor Park, he inspected and conducted some investigations about the land. That led him to identify features of the land that he thought made it desirable for future residential development: exhibit 175A [5]. He decided to buy the land with the intention of using it for farming operations 'in the short term': exhibit 175A [6]. In crossexamination, he said that by 'short term', he meant something like two to five years (ts 3274). His intention was to run cattle on his land until he had an opportunity to rezone it, and then to develop and subdivide it into residential lots: exhibit 175A [6].

505 Part of his first statement is in the following terms:

I did a lot of work connecting water and sewerage in the Mandurah area. In 1994 I learned that the Water Corporation (for which I was doing work) was proposing to build a pump station for deep sewerage at the corner of Old Mandurah Road and Pinjarra Road with a rising main back to Furnissdale and also to service the general Ravenswood area. I understood it would involve rising (high pressure) mains, and I thought it could be utilised for my proposed development of the Land. The pump station would provide deep sewerage for the residential development then planned for Riverland Ramble.

I saw this as an opportune time to seek urban rezoning of the Land, under the local town planning scheme, so I went to the offices of the Shire of Murray to ask about rezoning prospects where I was told by a Shire officer that the Shire was most unlikely to support any application to have the Land rezoned from rural to urban, as that would be incompatible with the Regional Recreation Centre ('RRC') planned by the Shire over lot 191, and part of lot 192, and also with the proposed extension of the PerthBunbury Highway ('the Highway') the route of which was to pass over lot 192.

I decided to seek to have both projects moved away from the Land, to allow me to carry out my plan for a residential development.

But for these projects, I would have developed the Land, in conjunction with the developers of Riverland Ramble, and taken the opportunity to extend the sewerage line down Pinjarra Road, through Furnissdale, sharing the cost with Riverland Ramble. A sewerage plant was built in 1999/2000. It services Ravenswood (including Riverland Ramble) and is available to service a residential subdivision on the Land (exhibit 175A [8] [11]).

506 In his statement, Mr McKay had defined 'the Land' to refer to the six lots comprising Windsor Park: exhibit 175A [4]. Consequently, the effect of this evidence is that his intention was to apply to rezone and subdivide the whole of the six lots comprising Windsor Park. As I will explain, some of his evidence in crossexamination was inconsistent with that. His evidence in his statement is that when he went to the shire he asked about the rezoning prospects of the land comprising Windsor Park, not solely lots 191 and 192. Again, some of his oral evidence was inconsistent with that.

507 It can be seen that in exhibit 175A [10], Mr McKay says that after his conversation with the shire officer, he decided to have both the Highway and the RRC projects moved away from his land.

508 In his second statement, Mr McKay says that if he had been told by the shire, when he made inquiries, that there was opportunity to rezone, or to join together with the proposed developer for Riverland Ramble, he would have engaged planners and been 'ready, willing and able to do so' (exhibit 175B [6]). If the opportunity had presented itself, he would have sought rezoning approval and would have welcomed working together with other landowners to bring the sewerage line down Pinjarra Road and into the locality of Ravenswood (exhibit 175B [8]).

509 He did not progress his inquiries regarding urban development beyond his inquiry with the shire: exhibit 175B [5].

510 Part of his second statement is in the following terms:

However I was not able to progress beyond 'first base' because the situation was clear that my land was impacted by the Perth to Bunbury Highway alignment which at that stage was not as yet clearly defined.

In 1992 Mr Colin Rogers came to see me and told me that the Local Government was interested in buying my land for a sports facility with Federal Government funds to be arranged by Mr Beazley, who was a member of Parliament.

In 1994 when I had attended at the Shire of Murray I learnt that my land North of Pinjarra Road, not required for the Highway, was earmarked by the Local Government for a sports facility. Upon returning home I called Colin Rogers who was then a councillor and I said to him 'you have buggered me up, I cannot develop this land'. He told me that I would not be able to do anything with my land as it was intended to be the future sports and recreation facility for the Peel Area (exhibit 175B [10] [12]).

511 In crossexamination, he gave some further detail about the conversation with the shire officer that was referred to in exhibit 175A [9] (ts 3292 3294). He went to the front counter without an appointment. The person at the front counter brought another person to the counter. Mr McKay was fairly sure the latter person was male. That latter person said that he was a planner. Mr McKay asked what he could now do to advance the rezoning of lots 191 and 192, because he had just learned about the Water Authority proposal to build a pump station (ts 3293). The man who said he was a planner told Mr McKay that 'lot 191 and 192 between them were set aside for a road to come through and what was [not] for the road was going to be for a recreation centre' (ts 3294).

512 In this evidence, he says he asked about rezoning lots 191 and 192, whereas his evidence in exhibit 175A [9] was that he asked about rezoning of all of the land comprising Windsor Park. The version in Mr McKay's oral evidence invites attention to why his enquiry related only to the subject land and not to the whole of Windsor Park. I will return to that question.

513 Mr McKay said he thought the conversation was in early 1994 (ts 3303).

514 He was asked whether he decided to try and have the recreation centre moved elsewhere. His first response was that 'I tried to get everything moved off our land where possible' (ts 3294). Asked again whether in 1994 he decided to try and have the proposal for a recreation centre on his land moved elsewhere, he responded, 'No, not in 1994. No, it was a waste of time for the [recreation] centre' (ts 3294).

515 In the earlier part of his oral evidence, the only step which Mr McKay said he took was to telephone a councillor, Mr Colin Rogers and perhaps other councillors. He said he asked Mr Rogers if what he was told at the shire was true and was told that it was (ts 3296, 3323). The only other step he identified was he thought he spoke to 'a couple of other councillors' (ts 3296). After that, he did nothing more because the 'damage was done' (ts 3296). He referred to speaking to other councillors again at ts 3301. He said he did not speak to his local member about it (ts 3302).

516 At a later point in his evidence, Mr McKay said that he contacted two Members of Parliament. One of those was Mr Marshall, who was his local member in the Legislative Assembly. He said that each reported to him that they knew nothing about it. Notwithstanding those reports, Mr McKay's evidence was that he continued to accept that there was nothing he could do to move the recreation centre or to have his land rezoned to urban (ts 3325 3327).

517 In his oral evidence, Mr McKay did not give evidence about precisely what it was that the planning officer said so as to convey that it would have been a waste of time to attempt to move the recreation centre. He did not ask to see anything in writing or write to anybody about it (ts 3295).

518 In the course of his evidence, Mr McKay said, on a number of occasions, in emphatic terms, that following his discussion with the planning officer at the front desk of the shire, and his subsequent discussion with Mr Rogers, he considered that there was no point in doing anything to attempt to have the RRF proposal moved from lot 192. For example:

(a) he considered that any rezoning prospect was 'dead before I even got started' (ts 3275);

(b) any possibility of rezoning lots 191 and 192 'was dead and buried' (ts 3301; see also ts 3324);

(c) he took what the planning officer at the front desk said, and what, Mr Rogers said, as 'gospel' (ts 3326);

(d) he said that, by these conversations, 'it was made very clear to me the sports and recreation centre was set in concrete, would not be shifted under any circumstances' (ts 3334). He considered the regional recreation centre was 'set in concrete' but there was a chance that he might be able to shift the Highway (ts 3334 3336); and

(e) he was satisfied, after speaking with the planner and Mr Rogers, that he had done everything he could to move the RRF off lots 191 and 192 (ts 3323).

519 In his evidence, Mr McKay was in no doubt that he was told in 1994 about a proposed regional recreation centre on his property. He described a suggestion that he was mistaken about it as 'absolute rubbish' (ts 3307). He repeatedly rejected any suggestion that he might have been mistaking a reference to the TAFE college proposal for a reference to a recreation centre: ts 3312, 3314, 3319.

520 Mr McKay gave no evidence that his failure to apply for rezoning of the subject land arose from or was influenced by any understanding on his part that urban rezoning of the land near the proposed Highway was precluded by a need for a rural buffer near the Highway, or by a need to keep a corridor free of development to keep options open for the alignment of the Highway. He gave no evidence that he had any such understanding.

521 Further, Mr McKay gave no evidence that he focused his efforts on moving the Highway because it was likely that if the Highway was moved, the RRF would also be moved (compare plaintiffs' submissions pars 4.208, 4.213). Indeed, that is not consistent with his evidence. His evidence was that he believed he could move the Highway, but had no hope of moving the RRF.

522 The defendants submit that Mr McKay's evidence should not be accepted because, among other reasons, there was no proposal at the shire in 1994 for the use of the subject land for an RRF.

523 Consequently, the evidence of Mr McKay must be considered in the context of what is known about the proposals for a TAFE college site and RRF on the subject land at the relevant time (the TAFE proposal and the RRF proposal).

524 In the next two sections, 4.3.3 and 4.3.4, I will set out my findings on what is revealed by the documents about the TAFE proposal and the RRF proposal. A more detailed analysis of what is revealed by each document about the TAFE proposal and the RRF proposal is in sch 2.

525 In section 4.3.5, I outline evidence relied on by the plaintiffs about the timing of the RRF proposal at the shire. I set out my conclusions on the status of the RRF proposal for the subject land in 1994 in section 4.3.6. I then outline aspects of Mr McKay's conduct that seems to me to be inconsistent with his uncritical acceptance of what a planner told him at the front desk of the shire in 1994 (section 4.3.7). Next, I will outline other evidence bearing on the plaintiffs' intention in this period (section 4.3.8), before identifying other aspects of Mr McKay's evidence I found to be inconsistent, contrary to commonsense, or otherwise unsatisfactory (section 4.3.9). Finally, I state my conclusions in section 4.3.10.

526 The following facts are established by the documents.

527 By mid1989, the shire was contemplating and proposing to representatives of TAFE that a Peel TAFE college should be located between the Serpentine River and Pinjarra, possibly as specifically as in or around Ravenswood (see exhibit 258A, 46B/39; exhibit RR146.1, 8).

528 The 1990 Peel Regional Plan identified the need for higher education facilities, including a TAFE college. It suggested a site on the Mandurah Pinjarra corridor, possibly in Murray (exhibit 181, 1/5/73, 85).

529 Other documents in 1991 and 1992 suggest that the shire was then pursuing a proposal that the TAFE college be built at a site at Ravenswood (exhibit 258C; exhibit 258D; exhibit 258E).

530 In December 1992, the TAFE Peel College Site Selection report (the TAFE College Site report) was published, identifying the site at Fiegert Road, site 8, comprising lots 190, 191 and 192, as the preferred site (exhibit 28, 1/5/253 254).

531 In January 1993, the Department of Employment, Vocational Education and Training (DEVET) wrote to the plaintiffs advising that lots 191 and 192 had been identified as part of the most suitable site for the future TAFE college (exhibit 182A, 15/63 66). The letter stated that site 8 encompassed lots 191 and 192, together with the adjoining lot 190; a total area of 111 ha. The DEVET only required 20 ha for a TAFE college site. The letter also stated that the Minister for Education had approved the recommendation in the report and announced the selection of the preferred site. The status of site 8 as the preferred site was subject to certain site conditions being satisfied.

532 By mid1993, internal documents showed that the DEVET's preferred site was a different site, at Gordon Road, Mandurah (exhibit 258J).

533 In July 1993, Mr McKay wrote a letter to his local member of state parliament, complaining about delay in finalising the TAFE process (exhibit 176).

534 For the remainder of 1993, the shire was still advocating site 8 at Fiegert Road (exhibit 258N; exhibit 258O).

535 In May 1994, a newspaper article suggested that the Fiegert Road site had been rejected (exhibit 258Q). The Shire of Murray LRS was published in July 1994. It set out planning considerations for precinct 7, Ravenswood. One of those considerations was that the

[s]ite adjoining Pinjarra Road, Figirts Road [sic] and future PerthBunbury Highway alignment, is the subject of a report commissioned by Peel Local Government Commission and Peel Development Commission, for selection of a Regional education facility (exhibit 29, 1/11/180).

536 One of the further planning needs for the Ravenswood precinct was the identification of the location and land use implications of possible tertiary education facilities (1/11/183).

537 On 9 August 1994, the shire wrote to the Minister. The letter primarily concerned issues about the Ravenswood raceway and the Riverland Ramble rezoning application. In the course of the letter, reference was made to the announcement that the Ravenswood site would not be used for the TAFE facility (exhibit RR146.41). The Peel Regional Strategy, published in September 1994, reveals that the Gordon Road site was selected for the TAFE college in August 1994.

538 There is no document that evidences a proposal by the shire for a regional recreation facility at Ravenswood at any time prior to 1995. There are many documents in which it could be expected that any such proposal would have been mentioned, at least if it was well advanced.

539 The 1990 Peel Regional Plan identified the need for a regional level sports facility and proposed that it be located in the major urban growth centre at Furnissdale/Barragup. The land use plan (exhibit 197) identified recreation sites at Furnissdale, Pinjarra and in Mandurah, but not in Ravenswood.

540 In February 1992, the shire considered a report about a proposed recreation centre at Pinjarra. It was resolved to apply for a grant for the construction of a recreation centre at Pinjarra that included a pool (exhibit 171A, 46B/313 314).

541 The documents about the TAFE proposal in 1992 and 1993 do not mention a proposal for an RRF, either alone or in association with the TAFE proposal. See, for example, exhibit 258C; exhibit 258F; exhibit 258G; exhibit 258I; exhibit 258O.

542 Furthermore, a proposal for an RRF is not mentioned in the detailed discussion in the TAFE College Site report of December 1992. It seems unlikely that a proposal to locate regional sports facilities with the TAFE college in Ravenswood, if it existed, would not have been mentioned when discussing the impact of the TAFE college on community services, urban development and compatibility with adjacent land uses. Those matters formed part of the essential site selection criteria for the TAFE college: see exhibit 28, 1/5/219, 225.

543 In his report of 5 July 1993, Mr Flugge discussed regional planning as it affected the Riverland Ramble proposed rezoning (exhibit 182D, 15A/483). The report stated that when viewed in conjunction with the possible siting of a TAFE facility immediately to the northwest, and the future Perth Bunbury Highway alignment to the west, the Riverland Ramble site becomes a very attractive proposition for urbanisation. The report made no mention of any contemplated proposal for a regional sports facility in the locality.

544 In July 1994, the shire's LRS suggested that there was still the possibility that the TAFE college would be located on the Fiegert Road site (exhibit 29, 1/11/180, 183). There is no mention of any proposal by the shire to develop an RRF in Ravenswood. If there had been any serious proposal for a major recreation facility on the subject land in the first half of 1994, one would expect it to have been mentioned in the LRS in relation to the Ravenswood precinct.

545 Moreover, the shire's letter of 9 August 1994 to the Minister, in expressing disappointment about the government's announcement about the TAFE proposal, did not mention any proposal to locate an RRF on the Fiegert Road site, whether in conjunction with the TAFE college or otherwise (exhibit RR146.41).

546 The Peel Regional Strategy identified the location of an RRF as being on land north of Mandurah, rather than in Furnissdale/Barragup as had been proposed in the 1990 Peel Regional Plan (exhibit 30, 1/6/122). It stated that the regional sporting facility proposed for the site north of Mandurah should be planned in conjunction with the proposed sporting facility at Lark Hill (1/6/124). The land use plan (exhibit 198) shows the preferred location for the regional sports facility in North Mandurah, as well as a smaller facility south of the Dawesville Cut. There are no regional sporting facilities identified anywhere in the Shire of Murray.

547 Given the shire's input into the Peel Regional Strategy, through Mr Evans, a shire councillor, one might have expected some reference to a shire proposal for a recreation facility in Ravenswood, had such a proposal existed. Clearly, the shire would not have been contemplating the unilateral creation of an RRF of the scale of lot 191 and part of lot 192. If the shire had in mind an RRF in Ravenswood, the Peel Regional Strategy was an appropriate occasion to raise it, so that it might be included in the regional structure planning exercise that was to follow.

548 It appears from the documents that the proposal for an RRF around Ravenswood emerged in the course of a regional recreation strategy prepared for the Ministry of Sport and Recreation in February 1995. That is the effect of what is said in Working Paper No 4 (exhibit 178, pages 20, 22) and in the 1996 IPRSP (exhibit 7, 1/10/98, 142).

549 By letter of 8 January 1996 (exhibit 182D, 15A/496), the shire wrote to Mr Auret. The letter referred to discussions between Mr Auret and Mr Flugge regarding potential sites for a regional sporting facility to be included in the IPRSP. The letter stated:

Council resolved at its meeting on 21 December 1995 to advise you that, if you are of a mind to include in the structure plan for this area a large site for the establishment of a regional recreation/sporting complex, then you are asked to carefully and sincerely consider the site previously under consideration as suitable for the Peel TAFE College, in the Ravenswood locality (exhibit 182D, 15A/496).

550 This appears to be the first suggestion in a document that the Fiegert Road site, including the subject land, be the site for an RRF. In Mr Auret's oral evidence, he said that he may have suggested this to Mr Flugge prior to the letter (ts 3434, 4251).

551 It should be noticed that this letter was the subject of a resolution of council. That may suggest that if, at an earlier time, there had been a firm proposal for an RRF on the subject land, it would have been the subject of a resolution and communication to other relevant authority.

552 The 1996 IPRSP notes that the preferred location for an RRF was in the Ravenswood locality and that the subject land was selected at the request of the Shire of Murray (exhibit 7, 1/10/142).

553 I would conclude the following from my analysis of the history of the TAFE proposal and the RRF proposal in sections 4.3.3 and 4.3.4, and the more detailed outline in sch 2.

(1) From 1989, the shire favoured a site in Ravenswood for a TAFE college. It is unclear whether the shire favoured use of the subject land specifically as the Ravenswood site prior to 1992.

(2) In late 1992, the subject land was identified as part of the preferred site, site 8, for the TAFE college.

(3) By mid1994, it was clear that the TAFE proposal on the subject land would not proceed.

(4) Up to the end of 1994, there is no documentary support for or reference to any regional recreation centre on the subject land, either in association with or separately from the TAFE proposal for the subject land. There are many documents where it would be expected that any serious proposal would have been mentioned, if it existed.

(5) The proposal to use the subject land for the contemplated RRF for Peel did not arise before November 1995.

554 In response to the defendants' submission that the RRF proposal did not arise at the shire before late 1995, the plaintiffs rely on the evidence of Mr Greenup and Mr Berrie. The evidence of Mr Flugge is also relevant. I turn to that evidence.

4.3.5 The evidence of Mr Greenup, Mr Berrie and Mr Flugge

555 Mr Michael Berrie was the shire planner at the shire from 20 May 1991 until midJuly 1994. Three statements by Mr Berrie were tendered. He was not crossexamined.

556 His third statement, dated 31 July 2010, includes the following:

Soon after starting work at the Shire of Murray, either John Treloar or (more likely) Don McClements, said to me something like: 'You don't have to worry about that land [indicating the land on the eastern side if the proposed PerthBunbury Highway] because that's where the shire's sports centre is going, or the Kelliher's land because they are not interested in rezoning'.

...

When I left working as the Shire Planner at the Shire of Murray there was nothing to indicate that the Council's intention had changed with respect to the location of the Regional Sports Complex on the eastern side of the proposed Perth to Bunbury Highway (exhibit 231C [3], [7]).

557 As can be seen, that is not consistent with what is suggested by the documents.

558 Mr Greenup's first statement is dated 29 March 2010 (exhibit 171A). The only mention of the contemplation of an RRF is in the following terms:

After the site was not used for a TAFE college, Council became interested in locating a recreation facility over the land adjacent to the Perth to Bunbury Highway as it was a key strategic site for the Peel Region, attracting access from the north, south, east and west along Pinjarra Road (exhibit 171A [54]).

559 In this passage, Mr Greenup says that the council's interest in an RRF over the subject land came after the rejection of the site for a TAFE college. In his second statement, Mr Greenup put it differently.

560 Mr Greenup's first witness statement refers to the fact that the shire's letter of 15 January 1991 was not sent to the plaintiffs: exhibit 171A [23]. The next paragraph states that the subject land had been identified for the Highway and 'there was also some consideration of their site for the purposes of a TAFE college': exhibit 171A [24]. I read [24] as intending to explain why no letter was sent to the plaintiffs. I will deal that contention in section 4.5 below. For present purposes, it should be noticed that no mention is made in [24] of the possible use of the subject land for an RRF.

561 Mr Greenup's second statement, dated 26 July 2010, includes the following:

From 1990 to 1994 there was a proposal for a TAFE college for the site. Following the election of a new liberal government, the funding for the TAFE college was no longer secure. Council had been keen to develop its own sports pavilion and wished to have a 50m swimming pool which could not be accommodated at the Pinjarra recreation site in the Pinjarra township. This proposal for the Pinjarra sports pavilion was discussed in 1992.

In 1993 the proposal for the TAFE college at the 'Fiegerts Road site' was becoming less certain. It was for that reason that it was proposed to address the need for a 50m swimming pool and to colocate a recreation facility together with the City of Mandurah adjacent to the site identified for the TAFE college.

I recall discussions that I participated in that identified the fact that this was an ideal location for a recreation facility to service both Murray and Mandurah. At that time the proposal was for Lot 190 (Kelliher's land) and the McKay land of Lots 191 & 192 Pinjarra Road.

In addition a part of McKay's land had been identified in the Town Planning Scheme for a road reservation.

I chaired a number of meetings when the problem of progressing the rezoning of land in Ravenswood and the proximity of the raceway was discussed.

The drag strip had the effect of preventing urban development in Ravenswood.

By 1994:

1. the drag strip noise problem still had not been resolved and this was preventing the rezoning of Riverland Ramble from proceeding; and
2. it was decided that Ravenswood would not be the site for the TAFE college.

Because of the noise problem from the drag strip I recommended at a number of meetings of Council and/or meetings of the Planning Committee that we orient the development toward Fiegerts Road.

Councillors agreed with me that this would be an ideal solution to retaining the drag strip and enabling urban development in Ravenswood. However, the planning staff present at those meetings told us that this was not possible. One of the people who voiced his opinion about this was Mr John Treloar.

The reason given that it was not possible, was the fact that the Perth to Bunbury Highway had been identified for the McKay land and there was a buffer required to it as well as land in Ravenswood adjacent to the highway being identified for a TAFE college, the location of which became more clear in 1992.

I recall the Councillors discussing a Joint Venture type arrangement to colocate a Recreation Facility with the TAFE. At the meetings I recall being told that funding would be easier to obtain to acquire the land if we progressed a proposal with the TAFE and included Mandurah in on the proposal.

After the TAFE proposal had fallen over the Shire still wanted to progress its idea for a Recreation Centre for the land adjacent to the Highway (exhibit 171B [7] [18]).

562 Thus, in his second statement, Mr Greenup says that while the TAFE proposal for the subject land and lot 190 was current, the shire was interested in colocating an RRF at that site.

563 In crossexamination, Mr Greenup was asked why his first statement did not mention the Kelliher brothers, the owners of lot 190, who did not get the letter of 15 January 1991. Like many of his answers, Mr Greenup's answer was not responsive to the question. He said as follows:

If I didn't mention the Kellihers, I think it would have been fair to say that they were never at that time they weren't interested in development, and also that area of the Kellihers and McKays was identified or was being pursued by the councillors for the TAFE and the sport and recreation centre (ts 3170).

564 In his evidence immediately following that, Mr Greenup reiterated that in January 1991 the council had plans for a sporting complex on the Kelliher land and the subject land (ts 3171 3172). I deal with this evidence in section 4.5 below. For the reasons given there, I do not accept this evidence.

565 Later in his evidence, Mr Greenup said that some time in 1993 1994, the council became interested in locating a recreational facility in the vicinity of the subject land. He did not know any exact date of when the council became interested in developing a recreation facility (ts 3208). He denied that the first time the shire had in mind to support an RRF on the subject land was in 1995, saying that he had had, on two occasions, informal discussions with the Mayor of Mandurah about a joint venture for a 50 m pool 'in that area' (ts 3209).

566 Mr Greenup's evidence referred to the proposal in 1992 for a sports pavilion in Pinjarra. That included an indoor heated pool. Mr Greenup's evidence was that that proposal was scrapped by council before he left in 1995, on the basis on funding and because by then council wanted to investigate whether it could get a 50 m pool. Those were the reasons why the shire talked about a joint venture with the City of Mandurah for a recreation complex in the Fiegert Road/Pinjarra Road area that included a 50 m pool (ts 3210 3211).

567 Mr Greenup agreed that the lack of documentation about this idea meant that it never reached any formal proposal stage. He said that the idea would not have prevented a competing proposal to develop lots 190 and 191 from being brought to the council to consider (ts 3212).

568 Mr Flugge joined the shire in July 1994 (exhibit 182A, 15/12). The effect of Mr Flugge's evidence is that it was after the TAFE proposal for the subject land had fallen over, and as part of the IPRSP process, that the shire proposed an RRF on the subject land (exhibit 182D [31], [59] [61]). That is consistent with what is revealed by the documents. But for Mr Berrie's unchallenged evidence, I would make findings in accordance with the documents and Mr Flugge's evidence.

4.3.6 Analysis of the competing evidence about the RRF proposal for the subject land before 1995

569 As I have set out in section 4.3.4 above, in my view, the documents strongly support a conclusion that, prior to late 1995, there was no proposal, certainly no serious proposal, by the shire to locate a regional recreation facility on the subject land. That is consistent with the evidence of Mr Flugge. However, both Mr Berrie and Mr Greenup gave evidence that, in their time at the shire, there were discussions about locating an RRF on the subject land, possibly in conjunction with lot 190. Mr Berrie left in mid1994. Mr Greenup left in April 1995.

570 Mr Berrie was not crossexamined. The absence of crossexamination of Mr Berrie is a circumstance to be borne in mind in considering, in the light of all the evidence, whether to accept Mr Berrie's evidence. I adopt the outline of principles about the rule in Browne v Dunn (1893) 6 R 67 in The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 225 FLR 1 [1023] [1041]. Of particular relevance for present purposes are [1023], [1036] [1041]. In summary:

(a) noncompliance with the rule in Browne v Dunn does not mean that the court is obliged to accept the evidence in question. The court has a broad discretion about how to respond to the noncompliance; and

(b) however, in many cases it would be unfair not to accept evidence where the rule in Browne v Dunn has not been complied with.

571 Notwithstanding what the documents reveal, given the absence of crossexamination of Mr Berrie, I accept that at some time prior to July 1994, when Mr Berrie left the shire, there was discussion at council about the prospect of locating a sports complex on the subject land or lot 190. During the period when Mr Berrie worked for the shire, the shire was advocating that site for a TAFE college. I infer that any discussions about the use of that site for a sports complex took place in that context, and involved a sports complex in association with the TAFE proposal.

572 Notwithstanding the absence of crossexamination of Mr Berrie, I do not accept the evidence in exhibit 231C [3] set out above. The substance of that paragraph is that soon after Mr Berrie started working at the shire in May 1991, he was told by a shire planner or councillor something to the effect that he would not have to worry about the subject land because 'that's where the shire's sports centre is going'. Paragraph 3 does not refer to a sports centre in association with a TAFE college; it refers only to a sports centre. There is no evidence in the statement to explain the context of the conversation. I would infer that any such statement must have been made in the context of the shire's desire, in the period immediately after Mr Berrie joined in May 1991, to identify land for possible urbanisation. I will outline that context in detail in section 4.5 below. In mid1991 and for sometime before that, the shire had been advocating a TAFE college in Ravenswood. There is no documentary support for any proposal or contemplation of a sports facility on the subject land at that time. I am satisfied that if, in 1991, someone at the shire was explaining why the subject land was not a candidate for urbanisation, the reason given would have been the TAFE proposal, not a possible sports centre.

573 If Mr Greenup's evidence about the discussions regarding locating a regional sports facility on the subject land had stood alone, I would not have accepted it. That is because it is entirely unsupported by, and to a degree inconsistent with, what is revealed by the documents. Further, as I will explain in section 4.11 of these reasons, my overall impression of Mr Greenup's evidence was that, to the extent that it was not supported by contemporaneous documents or other reliable evidence, it needed to be scrutinised with considerable care before being accepted. However, Mr Greenup's evidence does not stand alone. To some degree it is supported by the unchallenged evidence of Mr Berrie.

574 At its highest, from the plaintiffs' perspective, Mr Greenup's evidence is to the effect that the shire had discussions about locating a sports facility on the subject land. Up to about mid1994, what was contemplated was a sports facility in association with the proposed TAFE college. There was always uncertainty about whether the TAFE proposal in Ravenswood would proceed. After the TAFE college proposal for this site was rejected in about mid1994, the shire pursued its proposal for a sports facility on the subject land. The suggestion of a sports facility never reached the stage of a formal proposal. It was not the subject of any resolution, report or any form of documentation. It was not mentioned in the 1994 LRS or the Peel Regional Strategy.

575 At most, on the evidence of Mr Berrie and Mr Greenup, there had been discussion of a concept no proposal had been put to anyone. There was not even a resolution of council stating commitment to the concept. Indeed, as Mr Greenup accepted, there was no council record of any discussion of the idea before 1995. The shire was plainly not going to unilaterally purchase such a large piece of land for a sports facility. Thus, the decision to build a major regional sports facility, and the selection of a site, did not lie within the power of the shire. The shire had not put forward a written proposal to the City of Mandurah or to any state government department or authority. Consequently, there was a very high degree of uncertainty whether the concept of a major regional sports facility in Ravenswood would ever be adopted by state authorities. There was even further uncertainty about whether the subject land would be selected as the site for a major regional sports facility in Ravenswood.

576 Mr McKay's oral evidence is that the effect of what he was told in early 1994 by the planning officer at the front desk of the shire was that the subject land was going to be used for an RRF and that the position was so certain that it would be a waste of time for Mr McKay to attempt to do anything about it. In the circumstances I have outlined, a statement by a shire planner in 1994 to that effect would have been entirely without foundation. I am satisfied that no such statement was made.

577 For corresponding reasons, I do not accept Mr Kay's evidence that in 1992 he was told by Mr Rogers of the shire's intention to buy his land for a recreation centre. Mr Rogers was not then a shire councillor. There is no evidence of any proposals in 1992 for a regional recreation centre in Ravenswood or for the use of any of the land owned by the plaintiffs for that purpose. Further, in 1992, the council was attempting to develop sports facilities in Pinjarra and had applied for federal funding. I am satisfied that any conversation in 1992 between Mr Rogers and Mr McKay about Mr McKay's land related to use for the TAFE college not for a recreation centre.

578 In my view, these conclusions are reinforced by consideration of Mr McKay's conduct, to which I turn.

579 Consideration of Mr McKay's conduct over many years does not paint a picture of a person who would readily accept a statement that land which he wished to rezone and develop was definitely unavailable for that purpose, because it was intended by the shire to be used for a sports complex, to mean that there was nothing he could do about it.

580 In late 1992, it had been recommended in the TAFE College Site report that lots 191 and 192 (together with lot 190) be purchased for the purpose of a TAFE college. By July 1993, Mr McKay was frustrated by the delay in resolution of the TAFE proposal. He wrote a strongly worded letter of complaint to Mr Marshall, the MLA for Murray (exhibit 176).

581 When the proposal for the Highway to be located on the subject land was identified in the 1996 IPRSP, Mr McKay took a number of steps. As he put, he 'objected to pretty well every government department that [he knew he] could at the time' (ts 3270). The plaintiffs made submissions in response to the 1996 IPRSP and engaged a consultant to lodge submissions (exhibit 142, 1/6/224, 238). He joined the Peel Region Action Group to protest against the proposed reservation over his land. He attended a meeting with state officers involved with the IPRSP, where he stood up and made his views known (exhibit 175A [12]; ts 3296). He wrote a letter to the Main Roads Department dated 29 March 1997 (exhibit 214A, attachment LB 19, 49A/117). I will say more about the contents of that letter in section 4.3.8 below.

582 After that, he joined with nearby landowners in engaging a consultant, Dr O'Brien, to prepare a report on options for the route of the Highway (see report dated 30 June 1999, exhibit 214A, attachment LB 22, 49A/128 149).

583 When the report did not produce a favourable response in Western Australia, Mr McKay travelled to Canberra in order to secure the assistance of federal authorities to have the Highway moved (ts 3297, 3300).

584 The plaintiffs lodged submissions on the draft PRS in 2002 (exhibit 16A, 1/7B/424; exhibit 16B, 1/7B/687).

585 Further, in other ways, he has demonstrated a determination to protect his rights and not to accept, uncritically, a position adopted by a government department or instrumentality. He refused a government department request to allow engineers on the subject land prior to the taking of the land. After receiving a valuation from the defendants for part of lot 189, Mr McKay 'took [the valuer] to task over this' and told the valuer that he considered his valuation was 'disgraceful' (exhibit 175A [34]). He took Supreme Court proceedings to challenge the validity of the Taking Order. He took proceedings for an injunction against the building company in relation to noise associated with the construction of the bridge. I make no criticism of Mr McKay for taking these steps. It is, plainly, the right of every citizen to take steps to ensure that his or her rights are protected. The point, for present purposes, is that Mr McKay's conduct in these and other respects stands in marked contrast to, on his evidence, his apparently uncritical acceptance, based on something said by a shire officer at the front counter and a conversation with a councillor, that there was nothing he could do about the proposal to acquire his land for a recreation centre.

4.3.8 Other indications of the plaintiffs' intentions

586 There are a number of pieces of the evidence from various periods which provide some indication of the plaintiffs' intentions during the preIPRSP period. In my view, these indications do not support, but weigh against, Mr McKay's evidence that, in and around 1994, he wished to have his land, including the subject land, rezoned so that he could develop and subdivide it.

587 In oral evidence, Mr McKay said that 'this land was bought purely with the idea of developing it whenever we could and as soon as we could' (ts 3271). In my view, Mr McKay's conduct strongly suggests otherwise.

588 As I have said, Mr McKay's evidenceinchief in his witness statement was to the effect that he wanted to have all of his land rezoned so that he could pursue development and subdivision of it.

589 Paragraph 9 of his first witness statement, set out in section 4.3.2 above, says that when he went to the shire, he was told that the shire was unlikely to support an application to have 'the Land', meaning all of his land, rezoned from rural to urban. In those terms, the evidence is not credible. The reasons said to have been given by the shire officer related only to lots 191 and 192. Those reasons would have provided no impediment to an application for rezoning of lots 300 and 301 (then called lots 187 and 188).

590 On Mr McKay's evidence, he wanted to rezone and develop all of his land and he was given reasons against the rezoning of lots 191 and 192. That squarely raises the question of why he did not pursue any rezoning application in respect of lots 300, 301 and 189.

591 He knew sewerage was available in North Yunderup when he bought (ts 3269 3270). Lots 300 and 301 then had some urban development nearby to the south (ts 3269).

592 Even if, contrary to my view, the reference in exhibit 175A [9] to 'the Land' was mistaken, and was intended as a reference to the subject land, the question of why he did not pursue any rezoning application for lots 300, 301 and 189 would still arise.

593 In crossexamination, Mr McKay was asked this question on a number of occasions. I found his answers unsatisfactory and unconvincing.

594 On one occasion, when asked why he did not apply to rezone and develop lots 300 and 301, he said that it was 'a very valuable piece of land', but he thought 'the logical thing' was to develop lots 191 and 192, which were 'nowhere near as valuable' as lot 189 (ts 3329).

595 Asked again for a reason why he did not proceed to rezone and develop lots 300 and 301, he said it was 'a prime piece of real estate' with 'enormous potential' (ts 3329). Asked a third time, he said that he would have liked to have kept them for the long term (ts 3329; see also ts 3330).

596 His answers about why he did not apply to develop lot 189 were broadly similar. He said it was 'a very valuable piece of land that's got unlimited potential' (ts 3330). He said that lots 191 and 192 were easier to work with and that '[t]he land I wanted to develop was 191 and 192 because it was so easy to develop' (ts 3330).

597 This evidence is inconsistent with Mr McKay's evidence in his witness statement. In his witness statement, he said that he intended to develop all of his land. In this part of his oral evidence, Mr McKay said that his wish was to develop lots 191 and 192 only.

598 Further and in any event, I do not accept Mr McKay's attempts to explain why he made no rezoning applications for lots 300, 301 and 189 at any time during the 1990s. To my mind, the fact that he made no such rezoning application during the 1990s weighs significantly against the acceptance of Mr McKay's evidence that during the preIPRSP period he wanted to have his land generally, or the subject land in particular, rezoned to urban so that he could develop and subdivide it.

599 As late as 2002, when he had a new house built on lot 301, he was not intending to subdivide that property (ts 3268).

600 Prior to Mr McKay learning about the sewerage being constructed in 1994, the plaintiffs did not make any enquiry at the shire, or take any step of any kind in furtherance of any contemplated rezoning and urban development of any of their land. Moreover, although it was not put to Mr McKay, as a neighbouring landowner he must have received notice of the Riverland Ramble rezoning application when it was advertised in late 1993 (see section 4.6 below). Further, on his evidence (which I do not accept), he was told by the shire when he bought the land that he could subdivide the subject land 'within a few years' (ts 3273), yet he did not take any step before 1994.

601 As I have said, by letter of 29 March 1997, Mr McKay wrote to the Main Roads Department opposing the proposed alignment of the Highway through lot 192. The letter was in the following terms (exhibit 214A, 49A/117):

Dear Sir/Madam

We wish to appeal in the strongest terms possible against your proposed Southern Freeway Extension passing through our property at North Yunderup.

Not only does it take the most of Lot 192 and by separating Lot 188 & 189 with the proposed Freeway is of no benefit to us what so ever, its a total disaster as far as we are concerned. The loss of just on ¼ of our farm makes it totally unviable, it no longer is a viable farming proposition. It also is a disaster to our neighbours to the North of us, our neighbours being the Mannion's and Kellihers. The Mannion's and Kellihers totally support our proposal in asking you to relocate the freeway extension so that where it crosses Paterson Road and it follows it on the inside alignment of boundaries of Lots 1, 2, 209, 206 and then down the road reserve that adjoins lot 205, 204, 190 and along the boundary of our lot 189. This way it does as little damage as possible to our existing farming operations and lifestyle.

We ask you to consider this proposal.

Thanks for your time.

Sincerely,

ROD MCKAY

602 In this letter, Mr McKay set out the reasons why he proposed a different alignment for the Highway. The letter does not mention any wish to pursue urban development of lot 192 or lot 191. When it was put to him in crossexamination that the reason he gave was, as set out in the letter, that a proposed realignment 'does as little damage as possible to our existing farming operations and lifestyle', Mr McKay sought to suggest that the reference to 'our lifestyle' could or should be understood to include the benefits for the plaintiffs' lifestyle of the proceeds of developing the land at a later time:

'Our lifestyle' could probably be elaborated a little bit more to say that in buying this land, this was our super fund. We don't have a superannuation fund or anything like that as such and this land was bought purely with the idea of developing it whenever we could and as soon as we could. When I say 'lifestyle' there, of course to enjoy a good lifestyle you need a couple of dollars (ts 3271).

603 I do not accept that that was any part of Mr McKay's thinking when he wrote the letter.

604 In the submissions in response to the 1996 IPRSP lodged by the plaintiffs, and by a consultant on their behalf, it does not appear to have been suggested that the Highway and proposed RRF impeded a plan for urban development. See exhibit 142, 1/6/224, 238. The submissions appear to have been primarily directed to opposing the Peel Regional Park (topic 1.2 of the report: see 1/6/191) as it affected lots 187 (300), 188 (301) and 189. The plaintiffs' submissions in response to the IPRSP did not seek inclusion of any of their land as urban or future urban (topic 2.5: see 1/6/192, 224, 238).

605 In at least part of 1992 and 1993, Mr McKay had lots 191 and 192 on the market or was willing to sell to the government at the right price (ts 3333). That does not sit well with Mr McKay's evidence that, at least as at 1994, his intention was to rezone and subdivide lots 191 and 192, while at that time he did not wish to develop lots 300, 301 and 189.

606 Much later, in 2002, the plaintiffs made submissions against the draft PRS. The primary focus of the submissions appeared to be on lots 187 (300), 188 (301) and 189. In relation to the subject land, the submission proposed that if the Northern Option 3 alignment for the Highway were accepted, the subject land would be rezoned to 'urbanspecial rural' (see exhibit 16A and exhibit 16B). While that does not appear to have been an available zoning class, it is noteworthy that, even in 2002, the plaintiffs were not asserting a wish for the subject land to be zoned urban for residential development.

607 The first application for rezoning of any of their land was made by the plaintiffs in August 2003 in relation to lot 189 (exhibit 114, 3/9/115).

608 To my mind, all of these matters tend against acceptance of Mr McKay's evidence that during the preIPRSP period he wanted to have the subject land, or his land generally, rezoned to urban.

4.3.9 Other observations on Mr McKay's evidence

609 In my view, there are material aspects of Mr McKay's evidence that are inconsistent in respects that are of some significance.

610 First, Mr McKay's evidenceinchief was that after his conversation with the shire planner, he 'decided to seek to have both projects moved away from the Land' (exhibit 175A [10]). Initially, in crossexamination, he said that he tried to get everything moved off the land where possible. However, his evidence thereafter was to the effect that once he had spoken to the shire planner, the councillor and possibly other councillors, he decided it was a waste of time and did nothing further. Mr McKay said that he was absolutely certain that after he had spoken to Mr Rogers he did not decide to do anything because he had concluded that it was hopeless (ts 3323). He accepted that his oral evidence could be 'a little bit' inconsistent (ts 3323) with what was in exhibit 175A [10].

611 Secondly, his witness statement expressed what was said to him by the planning officer to be that the shire was 'most unlikely' to support a rezoning application. As I have outlined in detail in section 4.3.2, Mr McKay's oral evidence during crossexamination put the effect of the conversation with the planner in much more emphatic terms.

612 Thirdly, there was some inconsistency in Mr McKay's evidence during crossexamination about what followup steps he took after his conversation with the shire planner. Earlier in his evidence, he said that he spoke to Mr Rogers and possibly other councillors and did nothing else. He said he did not speak to his local member (ts 3302). Later in his evidence he said that he contacted two members of Parliament, one of whom was Mr Marshall, his local member (ts 3325 3327).

613 Fourthly, as I observed in section 4.3.2, in his statement (exhibit 175A [9]) he said he asked a shire officer about progressing rezoning for the whole of Windsor Park, whereas his oral evidence (ts 3293) was that he asked about rezoning only lots 191 and 192.

614 Further, aspects of Mr McKay's evidence seem to me to not make sense or be inherently unlikely. For example, his evidence was that he spoke to two members of Parliament about the proposal and each said that he knew nothing about it. Yet, the effect of Mr McKay's evidence was that he continued to accept that there was nothing he could do and, so far as his evidence reveals, did nothing further about it.

615 The effect of Mr McKay's evidence was that, following his conversation with the shire planner, he thought there was a prospect of moving the Highway, but no chance of having the proposed RRF relocated. Consequently, he said, he took steps to seek to have the Highway moved, but no steps to relocate the RRF. The RRF proposal affected more of the subject land than did the Highway proposal. The purpose of attempting to have the Highway moved, while accepting the proposed location of the RRF, is by no means evident. Success in the endeavours to move the Highway would have left only a relatively small part of the subject land, namely part of lot 192, available for rezoning to urban. Mr McKay's evidence when he was asked questions about this was unconvincing (ts 3336).

616 Moreover, the view adopted by Mr McKay, on his evidence, that he had prospects of moving the Highway, but not the RRF, appears somewhat surprising. As at 1994, the Highway had been contemplated for a long time and was the subject of a reserve in TPS 4, published five years earlier. By contrast, the proposal for an RRF was not the subject of any document; Mr McKay's understanding is said to have been based on a conversation with a planning officer at the shire and with one or perhaps more councillors.

617 I did not find Mr McKay's evidence about the nature and scope of the development that he had in mind in the preIPRSP period to be credible. He said that he had in mind a development with a commercial component that could in the future have included shops like Coles and Woolworths (ts 3277). He said he thought 'we could have had a hell of a commercial set up there' (ts 3273). In 1994 to 1996, Ravenswood was a small town of a few hundred people. It was at least 1.2 km away from the subject land. In my view, this evidence of Mr McKay is the product of hindsight, given in light of the contention, as part of the plaintiffs' case in this trial, that the subject land had significant commercial potential.

618 On many occasions, Mr McKay's answers were not responsive to the questions that he was asked (see, for example, ts 3273, 3275, 3279, 3281, 3300, 3329 3330, 3333, 3346). On at least some of these occasions, it seemed to me that Mr McKay was seeking to advance his case, or wishing to avoid making what he perceived to be a concession against his case, rather than answer the question.

(a) I do not accept Mr McKay's evidence that in the preIPRSP period he wished to have his land generally, or the subject land in particular, rezoned to urban so that he could develop and subdivide it;

(b) I do not accept Mr McKay's evidence that, in 1994, he had a conversation with a planner at the shire in which the planner told Mr McKay anything to the effect that the shire would oppose rezoning of lot 191 because that land was proposed by the shire to be used for an RRF and that, as a consequence, Mr McKay thought there was nothing he could do about rezoning the subject land; and

(c) I am not satisfied that, but for the proposed public works, the plaintiffs would have applied to have the land rezoned to urban in the preIPRSP period.

620 In summary, I have reached these conclusions because:

(1) As at 1994, any discussion by the shire of the idea for an RRF on the subject land had not reached the stage of being a firm proposal. There would have been no foundation for a shire planner to say anything to the effect alleged by Mr McKay.

(2) Mr McKay's conduct bears strongly against finding that he accepted that although he wished to have lots 191 and 192 rezoned, he did nothing about it because he accepted what the shire planner and one or more councillors told him.

(3) The plaintiffs took no steps to have lots 300, 301 or 189 rezoned to urban at any time in the 1990s. I found Mr McKay's attempts to explain why that was so to be unconvincing.

(4) There are other indications of Mr McKay's intentions that weigh against acceptance of his evidence.

(5) In a number of respects I found Mr McKay's evidence to be inconsistent, contrary to commonsense or otherwise unsatisfactory.

621 These conclusions are fatal to the plaintiffs' preIPRSP rezoning case. However, for the sake of completeness, I will determine whether a rezoning application, if made, would have been successful. Sections 4.6 to 4.12 are concerned with that question. Sections 4.4 and 4.5 are primarily concerned with the plaintiffs' contention that, but for the proposed public works, they would have received a copy of the shire's letter of 15 January 1991. Section 4.4 also provides background for sections 4.6 and following.

4.3.11 The economics of rezoning and subdivision

622 There is a further matter that supports the conclusion that the plaintiffs would not have applied for rezoning. That matter involves considering whether it was economically viable to subdivide the subject land for residential development in the preIPRSP period.

623 Mr McKay accepted that the plaintiffs would not have applied to rezone their land unless they intended immediately thereafter to develop, subdivide and sell residential lots (ts 3277).

624 If, contrary to my findings, the plaintiffs had an intention, in the mid1990s, to rezone and develop their land then, in my view, that intention would have been to do so only if and when they were satisfied that development was immediately viable. Consequently, in my view, it was incumbent on the plaintiffs to prove that in the preIPRSP period they would have been satisfied of viability and so would have applied for rezoning. They have not proved that.

625 The six lots comprising Windsor Park had a land area of more than 175 ha. There is no evidence directed to the viability of a possible urban development in the 1990s of Windsor Park generally or the subject land in particular. In my view, the surrounding circumstances lead to very considerable doubt about the viability of any such project. Ravenswood was a small town of a few hundred people. Riverland Ramble was substantially progressed by mid1994 and, by later that year, all the indications were that it would be approved. It had or would soon have enough urban zoned land to accommodate thousands of people. Against that background it is difficult to see how, in the mid1990s, the plaintiffs could have expected sufficient demand to make urban development of Windsor Park, or the subject land, economically viable in the near term. The fact that, at around this time, the developers of Riverland Ramble considered their proposed development to be economically viable (ts 5024) does not translate into a like conclusion for the differently located subject land, facing competition from Riverland Ramble. Mr McKay's evidence in very general terms about demand (ts 3275) falls well short of being sufficient.

(1) if, contrary to my findings, I had accepted Mr McKay's evidence that in 1994 he wanted to have Windsor Park or the subject land rezoned and developed, I would have found that that intention was to do so only if he was satisfied that the development was economically viable;

(2) I am not persuaded that in the preIPRSP period the plaintiffs would have been satisfied of the viability of urban development; and

(3) consequently, I am not persuaded that the plaintiffs would have applied for rezoning of the subject land.

627 Finally, if contrary to the plaintiffs' submissions, the past hypothetical rezoning question is to be determined objectively by reference to the reasonable landowner, rather than subjectively by reference to the plaintiffs, then, for the reasons set out in this section 4.3.11, I am not satisfied that the reasonable landowner would have applied for rezoning in the preIPRSP period.

4.4 Background to the sewerage issue and the shire's letter of 15 January 1991

628 The background facts on these topics are not in any substantial dispute. In large measure, they are common cause. The following outline draws heavily on exhibit 267, a statement of agreed facts regarding provision of sewerage in Ravenswood, and on exhibit 146, a chronology of events for Riverland Ramble, with numerous attached documents.

629 By 1989, it was a requirement under the environmental regime that all developments within 2 km of the PeelHarvey estuary system be connected to sewerage (exhibit 255A).

630 On 9 June 1989, the shire clerk of the Shire of Murray wrote to the Minister for Housing and the Minister for Water Resources about what was described as the land crisis in the Shire of Murray, requesting a meeting (exhibit 261A). The letter stated that the costs of development, given the requirement of sewerage, was one of the main reasons for the lack of subdivision. Land stocks in Pinjarra were said to have reached crisis point. Other areas were experiencing a shortage of suitable vacant land because of the lack of sewerage infrastructure. It was recommended to the Minister for Water Resources that discussions occur on the provision of infill sewerage areas to Ravenswood, Furnissdale and North Yunderup to reduce overall sewerage extension costs for developers.

631 On 13 June 1989, the shire wrote to the director of the PeelHarvey Implementation Steering Group identifying Ravenswood, together with Furnissdale and North Yunderup, as areas urgently needing deep sewerage, being 'prime areas for development' (exhibit RR146.1). The letter enclosed a copy of the shire's 'Land Crisis Report', said to identify the need and concerns regarding the lack of housing development due to the absence of deep sewerage.

632 On 27 July 1989, the council resolved to advise the Water Authority of Western Australia (the WAWA) that it strongly supports the Department of Agriculture on the matter of sewerage needs within the PeelHarvey catchment area, with particular emphasis on Ravenswood, Pinjarra, Furnissdale, Barragup and North Yunderup (exhibit 171A, 46B/294).

633 The draft Peel Regional Plan of October 1990 identified that the availability of sewerage was a major constraint to the urban potential of some areas. In its discussion of sewerage schemes, it stated that

[t]he lack of sewerage schemes has imposed considerable constraints on development potential in parts of the Region, such as Furnissdale and Ravenswood in Murray Shire. Planning must recognise the importance of giving higher priority to providing sewerage services to such areas in the light of the urgent need for additional urban land, and commitments to improving water quality in the PeelHarvey system (exhibit 181, 1/5/71).

634 There were further resolutions of council and its committees, correspondence and meetings (see exhibit 171A, 46B/297 303). The Premier met with members of the council. Following that, the Premier wrote to the shire confirming that the WAWA was working closely with the shire and developers to extend the sewerage scheme to Ravenswood as quickly as possible (46B/304).

635 On 9 January 1991, the Minister for Water Resources wrote to the shire stating, among other things, that the WAWA was keen to work with the shire to develop a strong case for sewering the shire's top priority area, Ravenswood. The letter further stated:

When I met with Council on November 8, 1989, it was agreed that you would put together an overall plan for future urban development within the Shire, perhaps involving the rezoning of some large areas suitable for major developments. I am advised that the Water Authority is still awaiting the plan together with some indication of Developers' intentions in Ravenswood and other priority areas (exhibit 171A, 46B/306).

636 On 10 January 1991, the shire council considered the 1990 draft Peel Regional Plan. Among other comments, it resolved to state its support for references to a lack of sewerage in Murray in the report and the need for deep sewerage to be installed (exhibit 171A, 46B/331).

637 On 15 January 1991, the shire wrote to 12 landowners in identical terms. The letter was in the following terms (exhibit RR146.3):

Dear Sir,

DEVELOPMENT OF LAND

Over the last decade, residential and semi residential developments in the Ravenswood locality have not been able to proceed primarily due to the economic constraint of providing deep sewerage.

The Water Authority of WA have advised Council that they are prepared to consider assisting any developer in providing deep sewerage to the Ravenswood locality should any landowner wish to develop.

Should you, as a major landowner in this area, be interested in residential and/or semi residential (note: not special rural) development, please contact the Shire offices, so that discussions between the Water Authority, Council and yourself can be undertaken to establish the economic's of providing deep sewerage and what contributions are necessary from each party.

For further information please contact the Shire Planner during normal office hours.

Yours faithfully,

D A McCLEMENTS

Shire Clerk

638 As I have said, the plaintiffs contend that, but for the proposed public works, they would have received a similar letter. I will deal with that contention in section 4.5.

639 The extent of responses to the letter of 15 January 1991 is dealt with in detail in exhibit 267. The defendants emphasise that only one landowner, Kimba Pty Ltd, then owner of the lots comprising Riverland Ramble, took up the offer in the sense of seriously pursuing rezoning and the undertaking of sewerage works.

640 By April 1991, there had been responses from four landowners.

641 Later in 1991, there were council resolutions and correspondence about a meeting involving landowners to discuss the provision of sewerage in the locality (exhibit 191G, 25A/603; exhibit RR146.10). There is no evidence whether the meeting occurred.

642 After November 1991, no landowner other than Kimba participated in any application for urban rezoning pursuant to the shire's invitation. There is no evidence that the WAWA made an offer to any landowner in Ravenswood, other than Kimba.

643 By February 1992, State Planning Policy SPP 2.1 required, by cl 5.1, that land not be rezoned for urban purpose unless all lots have been connected to an adequate sewerage service or alternative system satisfactory to the Environmental Protection Authority (the EPA) and Health Department (exhibit 255B, 1/9/21). That applied to all land in the PeelHarvey coastal plain, not merely to land within 2 km of a river.

4.5 But for the proposed public works, would the plaintiffs have received a copy of the letter of 15 January 1991?

644 The plaintiffs submit that their failure to receive a copy of the letter from the shire was because the subject land was part of an area identified as a corridor for the Highway and because the subject land had been identified for a TAFE college and RRF (closing submissions par 4.119).

645 They submit that, but for the proposed public works, the plaintiffs would have been able to take advantage of the opportunity to have the subject land connected to deep sewerage in 1991.

646 In the context of the plaintiffs' case, the question is whether the failure of the plaintiffs to receive a copy of the letter is attributable to the proposed public works. I think that question can be expressed in affirmative terms by asking whether, but for the proposed public works, the plaintiffs would have received a copy of the letter. I am aware that, in some contexts and for some purposes, the 'but for' test is not a complete test for causation. In the present context, I think the 'but for' test is an acceptable negative criterion for testing what is 'attributable'. If the 'but for' test is not satisfied, the event is not 'attributable' to the proposed public work. If it is not attributable to the proposed public works, then any impact on the value of the subject land, flowing from that circumstance, does not need to be discounted under the LA Act s 241, and the circumstance that the plaintiffs did not receive the letter is unaltered in the plaintiffs' past hypothetical preIPRSP rezoning case.

647 I begin with the agreed facts about who was and was not sent a copy of the letter, and the location of the lots owned by those parties.

648 The recipients of the letter are set out in a document that is evidently a council record from 1991 (exhibit 171A, 46B/307 308). That document included a copy of the letter, addressed to one of the recipients, followed by a list of names and addresses of the other recipients. The list sets out landowners with a relevant lot number or numbers identified in handwriting. All but one recipient is listed in respect of one lot of land. One recipient is listed in respect of two lots. Consequently, the letter was sent to the owners of 13 lots.

649 The location of those 13 properties is shown in attachment JB 3 to the statement of Ms Janet Benaim (exhibit 244, 49A/463). It can be seen from exhibit 244 that:

(a) lots 2, 3 and 4 straddle Old Mandurah Road to the north and south. With the exception of those properties, all the properties listed are entirely south of Old Mandurah Road;

(b) the properties cover virtually all land between Old Mandurah Road to the north, Pinjarra Road or the Murray River to the south, and extending east as far as including lot 4, apart from land to be developed near the Ravenswood settlement;

(c) all the lots are within 2 km of the Murray River;

(d) lot 1 (Thomasfield) is southwest of Pinjarra Road and north of the Murray River;

(e) lot 12 is southwest of Pinjarra Road, south of the Murray River; and

(f) lot 17 is north of Pinjarra Road and south of the Murray River.

650 One of the recipients of the letter was Lanstal Pty Ltd. It was listed as a recipient in respect of lot 4, which straddles Old Mandurah Road north and south. Lanstal also owned lots 6, 10, 11 and 12, each of which was wholly north of Old Mandurah Road. However, the handwritten list did not refer to lots 6, 10, 11 and 12.

651 Mr Kelliher, the owner of lot 190, and the plaintiffs were not listed and did not receive a similar letter. The plaintiffs did not receive a letter in respect of lot 189, which was adjacent to the Thomasfield property.

652 The plaintiffs submit that the letter refers to major landowners, a description which fits the plaintiffs, and went to persons who owned land within 2 km of the Murray River, as did the McKays (closing submissions par 4.120). However, those were not the only criteria for receipt of the letter. Other major landowners within 2 km of the Murray River were not sent the letter, for example the Kellihers.

653 Further, the plaintiffs submit that letters went to landowners who owned land well beyond the townsite, to the corner of Paterson Road and Old Mandurah Road, being further from the townsite than the subject land (par 4.137). I accept that that is so. However, that fact does not lead to a conclusion that, but for the proposed public works, the McKays would have received a copy of the letter.

654 In my opinion, the evidence does not support a conclusion that the identification of those who were to receive the letter was influenced by the proposed public works. The plaintiffs did not lead any direct evidence about the criteria for identification of the recipients of the letter. Apart from inference drawn from the location of lots owned by known recipients, the only evidence bearing on the selection of recipients of the letter came from Mr Greenup and Mr Rowe, to which I will come.

655 Finally, the plaintiffs submit that there is no reason in the evidence why the plaintiffs did not receive the letter (par 4.138). That submission, if accepted, would not make the plaintiffs' case. It is for the plaintiffs to establish that their failure to receive the letter was attributable to the proposed public works. The plaintiffs' submission must be intended to mean:

(1) apart from the proposed public works, there is no other reason in the evidence as to why the plaintiffs did not receive the letter; and

(2) consequently, it should be inferred that, but for the proposed public works, the McKays would have received the letter.

656 I do not accept the first step in that submission. Analysis of the location of lots owned by the landowners, as stated on the shire's list, supports an inference that the criterion for selecting recipients of the letter was that the recipient owned land, close to the existing Ravenswood townsite, south of Old Mandurah Road, from the junction of Pinjarra and Old Mandurah Roads; east to Paterson Road; south to Thomasfield; and, to a small extent, across the Murray River. That is the inference I draw. It is supported by the location of lots owned by those who received the letter, and those who did not. Further, it is supported by the fact that the entry on the shire's list for Lanstal Pty Ltd refers only to lot 4, and not to the other lots owned by Lanstal that were north of Old Mandurah Road.

657 In his report dated 31 May 2010, Mr Rowe expressed the opinion that, but for the proposed Highway, the plaintiffs would have received the letter of 15 January 1991 (exhibit 191I [11] [13]). He said that 'apart from the alignment of the highway and the proposed regional sporting complex, there is no reason why the McKay landholding would [have been] treated any differently' to those who were invited to consider rezoning of their land (exhibit 191I [13]). I am not sure that this is a question for an expert planner. In any event, for the reasons above, and expanded on below, I do not agree with Mr Rowe's opinion.

658 Mr Greenup's primary witness statement referred to the fact that the letter was not sent to the plaintiffs (exhibit 171A [23]). The next paragraph stated that the subject land had been identified for the Highway and there was also some consideration of their site for a TAFE college. The RRF was not mentioned. His witness statements do not contain any evidence about the criteria by which the recipients of the letter were identified. His statements do not refer to the fact that the Kellihers did not receive a letter as the owner of lot 190 (and other lots).

659 As mentioned in section 4.3.5, Mr Greenup gave the following nonresponsive evidence about that omission:

If I didn't mention the Kellihers, I think it would have been fair to say that they were never - at that time they weren't interested in development, and also that area of the Kellihers and McKays was identified or was being pursued by the councillors for the TAFE and the sport and recreation centre (ts 3170).

660 He said that to the best of his knowledge, as at January 1991, the Kelliher land was being pursued for a sporting complex (ts 3171). A little later in his evidence, Mr Greenup made reference to the fact that the Kellihers had said to him categorically that they were not interested in urban development. Asked whether it was for that reason that they were not sent a letter he responded that he believed 'that would be the reason why, yes' (ts 3172).

661 I do not accept this evidence about why a letter was not sent to the Kellihers. The evidence is expressed in terms that demonstrate that it is in the nature of surmise or reconstruction, not a recollection of events of which he had firsthand knowledge. The events had occurred almost 20 years earlier. He had not referred to any documents in this respect. There are no documents in evidence which support Mr Greenup's surmise about why the Kellihers were not sent a copy of the letter.

662 Moreover, if it were necessary to decide, I do not find his evidence on this topic credible. I found his responses to questions about what could be drawn from the sending of letters to owners of land near the raceway to be unsatisfactory. Mr Greenup repeatedly failed to give responsive answers to questions (ts 3175 3179). At times he suggested letters were sent to owners near the raceway only as 'a courtesy' (ts 3175, 3176, 3177) or as a 'formality' (ts 3179). I formed the distinct impression that he was unwilling to make what he perceived to be a concession against the interests of the plaintiffs' case. See also my general observations on Mr Greenup's evidence in section 4.11.

663 Further, I am satisfied that by January 1991, there was not, at the shire, any firm proposal that lots 190, 191 and the balance of 192 (apart from that which was reserved for the Highway under TPS 4) be used for an RRF. See section 4.3.4 and sch 2. I am not satisfied that there was a proposal at the shire to use the subject land for a TAFE college that was sufficiently definite and well developed to lead to a decision not to send the letter to the plaintiffs.

664 Even if, contrary to my finding, there had been such a proposal at the shire, and that proposal was the reason that the letter of 15 January 1991 was not sent to the plaintiffs, nevertheless, in my opinion, the failure to send the letter to the plaintiffs would not thereby be 'attributable to the proposed public works'. The TAFE college is not one of the proposed public works and is not attributable to the Highway (see section 4.10.4).

665 If, contrary to my findings, there had been discussions at the shire prior to January 1991 about the use of the subject land for a regional recreation facility, any action taken in consequence of that idea (or any proposal, if discussions had reached that stage) would not thereby have been attributable to the proposed public works.

666 The proposed public works are the Perth Bunbury Highway and the ROS/RRF. That does not mean that any discussion, at any level of government, at any time, about the possibility of a recreation facility is attributable to the proposed public works. See Mount Lawley (2007) [26] [30] and section 2.7.2 above. I refer to the history of the proposal for an RRF set out in section 4.3.4 and sch 2.

667 Lot 191 and part of lot 192 were reserved for Regional Open Space in 2003 in the PRS. That followed the designation of the land for the purpose of 'Open Space Recreation' in the final 1997 IPRSP and in the 1996 IPRSP. It was clear from the 1996 IPRSP that the designation 'Open Space Recreation' was contemplated for the purposes of an RRF: see pt 9.4 of the 1996 IPRSP (exhibit 7, 1/10/98).

668 It is not in doubt that the designation in the IPRSP and the reservation in the PRS are attributable to the proposed public work. The question is what matters, if any, relating to a proposal for an RRF on the subject land, prior to the IPRSP, are attributable to the proposed public work.

669 Attention must be directed to the RRF contemplated in the 1994 Peel Regional Strategy and proposed in the 1996 IPRSP, not to the general concept of a regional recreation centre. There is nothing in the evidence that sufficiently connects any proposal or idea at the shire before 1995 with the locating of the RRF proposed in the IPRSP. On the evidence, the genesis of the location of the RRF on lot 191 was the shire's letter of 8 January 1996 and its resolution of 21 December 1995 and, possibly, a preceding conversation between Mr Flugge and Mr Auret. In this light, in my opinion, nothing before 1995 is attributable to the ROS/RRF public work.

670 For these reasons, I find that the failure of the plaintiffs to receive the letter of 15 January 1991 is not attributable to the proposed public works. That finding has the consequence that the plaintiffs' preIPRSP rezoning case cannot involve an assumption that the plaintiffs received the letter and took steps in consequence of that. That means the plaintiffs would not have become interested in applying for rezoning early enough to have joined with Riverland Ramble.

671 For the sake of completeness, I should add that, even assuming Mr McKay had received the letter of 15 January 1991, the evidence in very general terms from Mr McKay and Mr Jones does not persuade me that there would have been a joint rezoning application. The benefit of savings in expenditure on sewerage, in an indeterminate amount, are not shown to have been sufficient to lead a developer of a large piece of land, intended to be staged over ten years, to join forces with the owner of an additional 87 ha of land nearby.

672 Moreover, even on Mr McKay's evidence, he intended to hold the land for 2 5 years before seeking rezoning. This letter comes less than a year after he and his wife had acquired the land. This provides a further reason, in addition to what I have said in section 4.3, to conclude that if the plaintiffs had received the letter of 15 January 1991, they would not have applied for rezoning of the subject land.

673 For completeness, I turn to consider, on the assumption that the plaintiffs applied to rezone the subject land in 1994, whether that application would have been successful.

674 The answer to that question is based upon a consideration of the evidence relating to a number of different topics. In the following sections, I consider what is revealed about the likely fate of the plaintiffs' assumed application by:

(a) the progress of the Riverland Ramble rezoning application (section 4.6);

(b) other rezoning applications in Murray made during the preIPRSP period (section 4.7);

(c) the preparation of the draft 1996 IPRSP (section 4.9); and

(d) the principles of orderly and proper planning that are revealed by the planning documents from this period (section 4.8).

675 I address the contentions made by the plaintiffs and their planners about the 'blighting effect' of the Highway generally on planning in this period (section 4.10), before turning to deal with other parts of the evidence relied upon by the plaintiffs (section 4.11).

676 I set out my conclusions on the plaintiffs' preIPRSP rezoning case in section 4.12.

677 The historical events of the rezoning of Riverland Ramble are not in any real dispute. There is an agreed chronology (exhibit 146) with over 100 annexures. What is in substantial dispute is what the progress and consideration of the Riverland Ramble rezoning process reveals about the likely fate of a hypothetical rezoning application by the plaintiffs. In that regard, among the matters to be considered are:

(a) whether, as the plaintiffs submit, their hypothetical application in 1994 would have been approved in preference for and ahead of the Riverland Ramble application;

(b) if not, whether the plaintiffs' hypothetical application would have been approved following and in addition to the Riverland Ramble application, or in conjunction with it;

(c) the extent and nature of any references, in considering the Riverland Ramble application, to planning instruments or publications;

(d) the extent of any references to questions of population and demand for urban land; and

(e) the extent of references to the desirability of building further urban land on the existing Ravenswood townsite, or on building urban areas onto existing urban areas generally.

678 In the course of what follows, I make findings about the historical facts relating to Riverland Ramble. I will also make findings about what these facts reveal about these issues.

4.6.2 Chronology of events of the Riverland Ramble rezoning

679 By the time of its rezoning in 1995, Riverland Ramble comprised lots 20, 21 and 22 Old Mandurah Road. In 1991, the land compromised lots 13 and 14 Old Mandurah Road, and lot 61 Rodoreda Crescent.

680 By letter of 29 January 1991, Kimba Pty Ltd responded to the shire's letters of 15 January 1991 to Valcan Nominees Pty Ltd and Kitley Holdings Pty Ltd. Valcan had been the owner of lot 61 and lot 14; Kitley had been the owner of lot 13. Kimba's letter advised that it was the new owner, having consolidated the three lots into one ownership. The letter stated Kimba's intention to rezone and develop the land (exhibit 191G, 25A/604).

681 Valcan and Kitley had previously made enquiries about rezoning lots 13, 14 and 61, and had received support from the council and Committee for Statutory Procedures, subject to conditions, in late 1989 and early 1991 (see exhibit RR146.2; exhibit RR146.4).

682 On 6 May 1991, the WAWA wrote to Kimba's town planners stating that it would be prepared to provide a permanent pump station and rising main to accept effluent from the subdivision of lots 13, 14 and 61, provided that the developer paid for all internal sewer reticulation and the standard headworks charge per lot (exhibit RR146.7).

683 By letter of 31 May 1991, town planners provided advice to representatives of Kimba on the development potential of proposed lots 20, 21 and 22 (exhibit RR146.8). The letter referred to the fact that the shire appeared to be keen to encourage intensive residential development around the Ravenswood townsite. The letter also referred to the support derived for the proposed development from various aspects of the draft Peel Regional Plan. One of those aspects was the statement that expansion of the Ravenswood townsite would occur on its northern boundary, with new residential growth building on the existing settlement (exhibit RR146.8, page 2).

684 In February 1992, the then planners for Kimba, Greg Rowe & Associates (GRA), wrote to the Department of Planning and Urban Development (the DPUD), enclosing a draft structure plan for lots 20, 21 and 22 Old Mandurah Road and requesting the DPUD's comment. The draft structure plan was a substantial document of 88 pages, plus attachments (exhibit RR146.11).

685 The document referred to Ravenswood as having a population of 297 people (exhibit RR146.11, page 27). The very limited extent of urban land in Ravenswood was shown in figure 1.2 (page 10).

686 The draft structure plan pointed to what was said in the 1990 Peel Regional Plan, about the expansion of Ravenswood along its northern boundary, as supporting the rezoning application. It said as follows:

7.2.1 Relevance of Regional Plan to Study Area

In its written explanation of the land use strategy, the Peel Regional Plan Report states the following in relation to the Shire of Murray:

'Murray: new urban areas are indentified in several parts of the Murray Shire to accommodate local growth and an increased proportion of total urban growth in the Mandurah area. These new areas avoid prime agricultural land and sensitive environmental areas. Where possible they build upon existing settlements, with a logical extension of utility services'.

'Expansion of Ravenswood townsite along its northern boundary is proposed. New residential growth will build upon the existing settlement, utilising land of only moderate agricultural potential. The land is outside flood risk areas. However, a high water table would necessitate detailed investigation of drainage and other services'.

Whilst the Land Use Strategy Plan itself is somewhat 'broad brush' in its application of land use classifications, the plan generally shows a band of 'future urban land', surrounding the existing Ravenswood townsite, such land being generally consistent with the location of the Study Area.

Our discussions with Officers of the [DPUD] indicate their acknowledgement that the Peel Regional Plan supports the notion of urban development over the Study Area land (exhibit RR146.11, page 46). (original emphasis)

687 In this passage, it is said that support for the rezoning comes from the Peel Regional Plan and from the fact that the Riverland Ramble proposal involved expanding on the existing townsite of Ravenswood. As will be seen, similar statements were also made: by the proponents again later in their report in support of the rezoning in September 1992 (exhibit RR146.16) and in meeting with the Minister in May 1994; by the shire in 1994 (exhibit RR146.41); and by the DPUD in reports of July 1993 (exhibit 193A, 46B/94 114) and November 1994 (exhibit RR146.42).

688 By letter of 8 May 1992, GRA sent to the shire the final report of its Ravenswood structure plan (exhibit RR146.15).

689 By letter of 11 May 1992 from Mr Flugge, the DPUD expressed support in principle for the draft structure plan of February 1992, but identified a number of issues that would have to be addressed. Among those issues was the following:

EMPLOYMENT BASE

The Department has concerns over whether the developer has taken into consideration the impact of the population increase from the estate on the employment base for both the locality and the Shire, since this development can not be regarded as a natural progression to Ravenswood's previous growth.

It is noted that the Peel Regional Plan makes reference to the Tourism and Recreational potential of the region as providing good employment prospects. In addition, the progressive development of transportation links will improve opportunities to commute to employment centres, both within and outside the region. The proponent could examine these aspects in greater detail as part of further justification for the proposal at the rezoning stage (exhibit 191G, 25A/607).

690 On 15 July 1992, the SWAT report was published (exhibit 199, 1/5/130 203).

691 In September 1992, GRA provided to the shire and the DPUD a report in support of the proposed rezoning of lots 20, 21 and 22. The report made a formal application for rezoning. The proposed amendment to the shire's TPS 4 became known as Amendment 43. The report identified that the area within the structure plan would ultimately generate approximately 1,500 dwellings, accommodating approximately a population of 4,200 people (exhibit RR146.16, page 6). The report proposed the creation of a new zone known as special development. That new zone class was designed to allow sufficient flexibility to enable broadacre development to occur progressively in accordance with an outline development plan to be approved by the council and the South West Region Planning Committee (the SWRPC) (page 8). The structure plan was proposed to be the outline development plan (ODP).

692 The SWRPC was a committee of the State Planning Commission (the SPC). The SWRPC had delegated power from the SPC to give consent to the advertising of the amendment to TPS 4. The name of the SPC changed to the WAPC in March 1995 (exhibit 185). I will use the names SPC and WAPC without careful discrimination about which was correct at the time.

693 Section 3 of the report is titled 'Projected growth and demand for residential development' and sets out the response to concerns expressed by the DPUD about the impact of the population increase, attributable to the Riverland Ramble development, on the region's employment base.

694 The following is a summary of some points made in that section.

(1) The project consultants question the need to substantiate their application, since the impact on employment is not a consideration for developments in the City of Mandurah, and this development is close enough to Mandurah to be a viable and attractive option to accommodate some of Mandurah's growth.

(2) The 1990 Peel Regional Plan notes the rapid population growth forecast for the Peel region and Mandurah.

(3) An important part of the Peel Regional Plan is to ensure that there is a variety of welllocated urban land that is sufficient to meet anticipated demand. This means authorities should be promoting the planning and creation of urban land prior to actual demand being established.

(4) The bulk of the additional urban land will be in Mandurah and will be sufficient to accommodate the population forecast for 2011. However, significant new urban areas are needed in Murray, and it is expected that more people will choose to live in Murray before potential urban land supplies in Mandurah begin to dwindle.

(5) The area proposed for the Riverland Ramble subdivision is identified as 'future urban' in the Peel Regional Plan.

(6) Annualised population growth rates for Mandurah and the Peel region from 1986 1991 show that both areas have significantly higher rates of population growth compared to other similarly sized regional areas. The Peel region accounted for 5.9% of the total population growth in WA during this period, and 50.3% of the population growth in the southwest region.

(7) It is reasonably assumed that a strong demand for new urban land will continue for at least the foreseeable future.

(8) Additional pressure on the supply of urban land will increase as Mandurah and Murray become more linked with employment in the metropolitan region. This will be enhanced by the new Perth Bunbury Highway.

695 On 15 October 1992, the WAWA wrote to GRA advising that it was prepared to carry out design and construction of the pump station and pressure main from the development to be funded from capital works and not requiring prefunding by the developer. That was said to be on the understanding that the first stage would be constructed within 30 months and would include about 150 residential lots. The letter stated that if those presumptions proved to be incorrect, funding would need to be renegotiated (exhibit RR146.17).

696 On 19 October 1992, the shire's Health Building and Planning Committee considered the proposed rezoning. The minutes record that Mr Gary Middle of the EPA addressed the committee in relation to the raceway noise issues of the proposed amendment (exhibit RR146.18). Five options were identified. The shire could:

(1) obtain an exemption in regard to noise restrictions or have a separate regulation established for the raceway;

697 On 28 October 1992, the EPA wrote to the shire about the proposed rezoning (exhibit RR146.19). The EPA's advice was to the effect that:

(a) the resolution of the matter was one for the planning agency to determine;

(c) an exemption under the Environmental Protection Act 1986 (WA) is unlikely to be supported by the EPA because exemptions generally apply to onceoff events; and

(d) should development proceed within the buffer of the raceway, the noise generated during its operation will almost certainly attract complaints, for which the shire must take responsibility.

698 The letter also set out the five options discussed at the meeting on 19 October 1992.

699 On 2 November 1992, the shire council resolved to amend TPS 4 by the adoption of Amendment 43. It was resolved to recommend to the DPUD that the proposal be referred to the EPA for assessment, with particular reference to the noise problem from the raceway. It was also resolved that the applicants be advised that council had agreed to initiate the amendment on the clear understanding that the applicants will resolve the Ravenswood Raceway noise issue prior to the finalisation of the amendment, and in the event that the issue is not resolved to council satisfaction, the council will not permit the amendment to proceed to final approval (exhibit RR146.20).

700 A letter to that effect was sent by the shire to the proponents of Riverland Ramble on 1 December 1992 (exhibit 268, page 13).

701 Thus, by the end of 1992, the shire had expressed its support for the amendment in substance, subject only to the resolution of the issues arising from the noise associated with the raceway. That fact is relevant to the plaintiffs' contention that a rezoning application by the plaintiffs, no earlier than 1994, would have been approved in preference to Riverland Ramble. Of course, I am aware that approval to advertise the amendment does not mean the authority will give final approval to the amendment.

702 By letter of 29 December 1992, the EPA commented on the shire's draft rural strategy. In relation to Ravenswood, it was said that the noise emanating from the Ravenswood Raceway was a significant planning issue that needs to be addressed. It was likely that land near the raceway would experience noise levels that exceed the levels acceptable to the EPA as set out in draft noise regulations then under consideration (exhibit RR146.22, page 2).

703 In March 1993, in advice to their clients, GRA expressed concern regarding the delay in the rezoning of Riverland Ramble arising from the noise issues. In particular, those delays could mean that the 30month requirements of the WAWA were not met, which could, in turn, significantly influence financial viability (exhibit RR146.25).

704 On 7 May 1993, the EPA responded to the DPUD regarding Amendment 43. In substance, the EPA reiterated its position in its letter to the shire of 28 October 1992.

705 On 11 May 1993, GRA wrote to the shire expressing concern that members of the SWRPC had previously raised questions 'particularly in regard to the need or demand for residential development in this location' (exhibit RR146.27). The letter asks the shire to make direct representations to the members of the SWRPC, prior to it considering whether or not to give consent to advertise the proposal in June 1993.

706 The proponents were 'deeply concerned' that the SWRPC were raising these issues and noted that DPUD officers had acknowledged that 'it is not the role of the [SPC] to determine the appropriate timing or staging of urban development' and that it should not be a consideration in relation to rezoning (exhibit RR146.27, page 11). Rather, the proponents argued that once land had been identified as suitable for urban development, it was the function of the market to dictate timing, staging and the rate of land production.

707 The letter notes that the SWRPC did not generally pay any serious attention to questions of need or demand for developments in Mandurah. The proponents outline what they consider to be the three most obvious factors in support of the Riverland Ramble development:

(1) the site is identified for urban development by the state government's draft Peel Regional Plan;

(2) the notion of residential zoning and development is supported by the shire and DPUD officers; and

(3) the owners of the land have made a commercial judgment, backed by a substantial financial commitment, that a demand exists for residential land in this location.

708 The letter set out a number of longterm benefits to the shire. These included population growth by ultimately housing over 1,500 families and the provision of a complete range of community services to the Ravenswood community. Most of those were not then available to the residents of Ravenswood or Yunderup.

709 The making available of those services to the Ravenswood and Yunderup communities was a benefit offered by the Riverland Ramble rezoning and development. If the plaintiffs applied to rezone their land, in circumstances where the Riverland Ramble rezoning was so likely as to effectively be a given, the rezoning of the plaintiffs' land would not have offered similar benefits because the Riverland Ramble development would anyway be providing those services.

710 In this letter, GRA argue against the notion that questions of need or demand were proper planning considerations. However, it should be noticed that by May 1993, representatives of the SWRPC had raised those questions. Some of the evidence of the planners called by the plaintiffs seemed to suggest that questions of population and need did not arise, at all, prior to consideration of the Murray River Country Estate (MRCE) application in 1995. The evidence is to the contrary. As will be seen, in addition to this evidence, there are other examples where questions of population and need are considered by officers of the DPUD. I turn to one such example.

711 In July 1993, Mr Flugge prepared a report to the SWRPC (exhibit 193A, annexure JES 2, 46B/94 114). (It is also annexed to one of Mr Flugge's statements.) At that time, Mr Flugge was head of the Peel Regional Office of the DPUD. Under the heading of 'Department's Comments', in relation to noise problems, the report set out the five possible options identified by the EPA. The report stated that as council had indicated its desire to progress the amendment, the DPUD considered option 2, attempting to negotiate a solution, to be the most appropriate course of action at that stage. Option 5, to allow the development to close down the raceway or facilitate its relocation, was likely to be pursued once urban development began to encroach closer to the raceway (46B/103).

712 The report includes the following comments about the staging of development and the regional planning context:

In terms of the regional perspective, the [Riverland Ramble] land is earmarked under the draft Peel Regional Plan (released for public comment in October 1990 and programmed for review/finalisation before the end of 1993) as suitable for 'Future Urban' use, subject to detailed investigation of drainage and others services due to the high water table. However, the Regional Plan does not specifically address the question of appropriate timing of such development in terms of population projections and the demand for residential lots in the general locality. The relationship of this residential development to other large scale urban expansion proposals does not appear to have been adequately investigated, particularly in relation to the availability of employment centres to service long term urban growth areas. This raises the question as to whether in fact, the Commission should 'dictate' the early release of future urban land by zoning new areas way ahead of schedule, or leave this matter for the market place to determine. This is a complex issue having Statewide implications, and it may not be reasonable to complicate the processing of this Amendment by addressing the matter here.

With specific regard to Ravenswood, the Shire of Murray has previously been somewhat constrained in progressing the development of urban land close to Pinjarra due to the lack of appropriate service infrastructure, environmental constraints (ie drainage problems) and inadequate social/community facilities. This rezoning proposal has been put forward with the intent to try and address these deficiencies. When viewed in conjunction with the possible siting of a TAFE facility immediately to the north west and the future PerthBunbury Freeway alignment located just over a kilometre to the west, the site becomes a very attractive proposition for urbanisation. The expansion of the Ravenswood Town centre can also be seen as promoting 'nodal village' type development as distinct from urban sprawl (exhibit 193A, 46B/105).

713 A number of matters should be noted from this passage. First, as Mr Flugge accepted (ts 3903), whether a proposed rezoning to urban was consistent with what was shown in the 1990 Peel Regional Plan was a relevant factor in considering a rezoning application. Secondly, questions of need and demand were also a consideration, as Mr Flugge also accepted (ts 3903). Thirdly, a rezoning that promoted nodal village type development was preferable to one that involved urban sprawl. Fourthly, the prospect of the Perth Bunbury Highway was a factor in favour of the proposed urbanisation of Riverland Ramble. Of course, that factor must be removed from consideration of the hypothetical application to rezone the subject land.

714 The report notes that there are still unresolved issues about the Riverland Ramble structure plan, including the impact on the local employment base:

Economic Development - the proponent is requested to examine in greater detail the future employment base within the Shire to service such a major urban expansion which cannot be regarded as a natural progression to Ravenswood's previous growth (exhibit 193A, 46B/107).

715 It was recommended that the proponent address that issue, among others, during the public advertisement period, prior to the proposal being considered for final approval. It was also resolved that council be advised that in the event that the noise issue involving the raceway was unresolved following the close of the public advertisement period, the amendment would not be recommended for final approval (46B/108).

716 The report recommended that consent be given for the advertising of the amendment, subject to some modification and subject to conditions.

717 At its meeting on 23 July 1993, the SWRPC resolved to give consent to advertise the amendment in accordance with and subject to the conditions in the DPUD report by Mr Flugge (46B/110).

718 On 5 August 1993, the DPUD wrote to the shire advising that the SWRPC had given its consent for the amendment to be advertised subject to the required modifications (exhibit RR146.31). The letter advised that in the event the noise issue was not resolved, the amendment would not be recommended for final approval. The letter also advised as to matters relating to the structure plan to be addressed by the proponent prior to the documents being considered for final approval. Among those matters was 'Highway Treatment'. It was said that the visual amenity associated with residential development joining a major arterial road in what was still a predominately rural environment needs careful treatment. Provision of a landscape vegetation buffer along the Pinjarra Road frontage and redesign of the estate to delete direct vehicular access onto the Highway should be addressed to the satisfaction of Main Roads (exhibit RR146.31, page 2). The defendants point to this passage. They contend that it illustrates the way in which residential development close to a highway can be and was accommodated. There seems to me to be force in that contention. I will return to this topic in section 4.10 below.

719 On 7 October 1993, the DPUD wrote to the shire advising that consent for Amendment 43 to be advertised for public inspection had been granted (exhibit RR146.32). One of the conditions was that the matters outlined in the DPUD letter of 5 August 1993 be addressed before final approval.

720 In November 1993, the shire's Health Building and Planning Committee and the council resolved that the Minister for Water Resources be advised that delays arising from the then current impasse on the noise situation and asked that the Minister agree to an extension of time for the WAWA's sewerage contribution (exhibit 171A, 46B/339).

721 Advertising of Amendment 43 proceeded from 30 October 1993 to 13 December 1993.

722 The Kellihers made a submission opposing Amendment 43 (exhibit RR146.33). Among the reasons stated were that housing developments on adjoining land would pose a threat to further rural use and potential industrial use of their land; and that their land was used for breeding and fattening cattle, and they intended to keep it rural for that purpose. The Kellihers reiterated their opposition to Riverland Ramble in early 1995, when its ODP was being considered for approval (exhibit 191G, 25A/644).

723 It is to be inferred that the Kellihers would have opposed any application in this period by the plaintiffs for rezoning of the subject land. The plaintiffs submit that opposition from the Kellihers would not be decisive. Of course, I accept that proposition. However, it seems to me that opposition from the Kellihers would have been of more significance to an application from the plaintiffs than it was to the Riverland Ramble applications. The Kellihers' land has only a small degree of relationship with the northwest portion of the Riverland Ramble property. By contrast, it surrounds the subject land both to the east and to the north. Urban rezoning of the subject land would have more potential impact on the use of the Kellihers' land than would rezoning of the Riverland Ramble estate. Because the subject land is north of Old Mandurah Road, where all the surrounding land was rural, it would also have raised broader structure planning issues than were raised by the Riverland Ramble rezoning. I will return to this in section 4.12.

724 I do not accept the opinions of Mr Rowe (ts 3979), Mr Robinson (ts 3979) and Mr Flugge (ts 3980), that the attitude of the Kellihers would be irrelevant to the prospects of success of a rezoning application for the subject land. As Mr O'Neill (ts 4007) and Mr Moran (ts 3980 3981) said in relation to lot 190, if the Kellihers had joined in with the plaintiffs' application, it would have improved the integration of the subject land with Riverland Ramble.

725 On 13 December 1993, the shire's Health Building and Planning Committee outlined the public's submissions in response to the advertising of Amendment 43 (exhibit RR146.34). The majority of the response objections were from owners of land in the Ravenswood townsite. They objected on grounds relating to the fundamental change in the character of the area that would be brought about by the development. There was also an objection from the owners of the raceway. The objection stated that the raceway had been in operation for a number of years and that urban development was incompatible with the raceway and would pressure the raceway to reduce noise or cease operation.

726 Meanwhile, efforts were continuing to work towards a compromise between the shire, the EPA, the Ravenswood Raceway and the proponents of Riverland Ramble. By letter of 17 December 1993, the EPA enclosed a set of draft conditions for noise for the raceway to GRA (exhibit RR146.35). By February 1994, the third draft of noise conditions had been developed. The shire proposed a meeting in March for the parties to signify their acceptance or otherwise of those conditions (exhibit 191G, 25A/620).

727 By 22 March 1994, council noted that no mutually acceptable agreement had been reached between the EPA, the developers and the Ravenswood Raceway. Council resolved that having considered all the submissions, Amendment 43 be adopted with modifications in accordance with the DPUD letter of 5 August 1993 (exhibit 171A, 46B/340).

728 Thus by March 1994, subject to the satisfactory resolution of the noise from the raceway issues, the shire had resolved that Amendment 43 be adopted. Of course, that was subject to the other matters identified in the DPUD letter of 5 August 1993. Nevertheless, that state of affairs seems to me to present a formidable obstacle to any contention that a rezoning application by the plaintiffs, some time after March 1994, would have been approved in preference to and ahead of the Riverland Ramble application.

729 On 5 May 1994, the Department of Environmental Protection (the DEP) wrote to the shire (exhibit 191G, 25A/622). The letter noted that noise from the raceway exceeds requirements, but in light of the operation of the raceway since 1969, the DEP was reluctant to impose noise controls measures that would force it cease operating from that site. The DEP attached a set of noise conditions to the letter that were scheduled to apply from 30 June 1994. The conditions included restrictions on the number and duration of the meetings of the raceway, and restrictions on the number of meetings per year for jet engine and topfuel powered vehicles.

730 On 6 May 1994, representatives of GRA met with the Minister for Planning. GRA's notes for use at the meeting are exhibit 266. Among the points proposed to be put in favour of the development were that it adjoins the existing settlement and is consistent with current regional strategic planning.

731 At that meeting, evidently the Minister expressed reluctance to approve the development while the raceway continued to operate, on the ground that it would promote a conflict of land use. That was recorded by Mr Barnett of GRA in his notes in preparation for a subsequent project meeting with the proponents (exhibit RR146.36). Mr Barnett proposed a more aggressive strategy, with approaches to the relevant Ministers (the Minister for Planning and the Minister for Environment), to bring about a satisfactory resolution.

732 On 24 May 1994, Mr Barnett of GRA wrote to the Minister for Environment making a submission in relation to the proposed declaration of a ministerial noise exemption for the raceway (exhibit RR146.37).

733 By letter of 14 July 1994, Mr Armstrong, a director of Kimba, wrote a strongly worded letter to the shire (exhibit RR146.38). The letter complained of the apparent recent serious change of direction involving the proposed provision by the EPA of an exemption that would enable the raceway to continue to operate without modification. The letter also complained about delays in the process of rezoning and complained that the proponents' approach of negotiation appeared to have been a serious mistake. The letter recorded that the Minister for Planning had advised that absent an acceptable solution to the noise issues, he would not approve development within the area affected by the raceway noise pollution.

734 By letter of 27 July 1994, Mr Baker of the DEP wrote to GRA. The letter advised that the Minister for Environment had advised that he considered it appropriate to grant an exemption for the raceway. The exemption would be subject to conditions, which would introduce a compromise position. It was expected that all parties involved would contribute to the balance of this compromise and a meeting would be held to that end (exhibit RR146.39).

735 On 29 July 1994, council resolved, in effect, to support that process, to be part of the meeting and to support noise control guidelines that would support growth and development to coexist with the operations of the raceway (exhibit 171A, 46B/347).

736 On 9 August 1994, Mr Berzins, manager of the SPC Peel office, wrote to the EPA requesting advice to assist in resolving the issues relating to the raceway (exhibit RR146.40).

737 On 9 August 1994, the shire, by its president, wrote to the Minister for Planning (exhibit RR146.41). The letter was said to assist in the Minister's deliberations on Amendment 43. The letter referred to the fact that the relevant land was identified in the 1990 Peel Regional Plan as future urban. The letter referred to the drainage problems and the pressure in the Ravenswood precinct for rezoning and subdivision, and to the fact that the structure plan was to be implemented and staged over a 10year period. The letter stated that in the event that the environmental decision reached placed future urban development in jeopardy, council would have to seriously reconsider its positive attitude towards retention of the raceway.

738 In August 1994, a memorandum was sent to the Minister for Planning by the WAPC. The memorandum referred to a letter of 28 July 1994 from the DEP. The DEP's letter had stated that the only solution acceptable to residents was to relocate the raceway; that the DEP supported rezoning together with trying to keep the raceway open; and that the DEP was working on a set of conditions, acceptable to all parties, to allow an exemption order to achieve that (exhibit 268, page 15).

739 On 13 September 1994, the Deputy Premier, Minister for Environment and Minister for Planning met and agreed that the raceway would be asked to relocate within five years and that residential development could proceed adjacent to the raceway within the limitations set by the EPA (exhibit 245A, 49A/178).

740 On 28 October 1994, the EPA issued an exemption order for the raceway. The exemption order allowed the raceway to operate to 1 July 1999 with restrictions on the number and duration of meetings, the number of meetings with jet engine and topfuel powered vehicles, and restrictions on noise omissions generally (exhibit 190). The exemption set a 1 km buffer around the raceway, beyond which the specified noise levels could not be exceeded.

741 At this point, it is convenient to deal with the plaintiffs' contention that the subject land would have been rezoned in preference to Riverland Ramble. I have found that the plaintiffs would not have received the shire's letter of 15 January 1991. Consequently, any application by the plaintiffs would have followed from Mr McKay's discovery of the sewerage works being conducted in Ravenswood in 1994.

742 In light of this chronology of events, I see no force in the plaintiffs' contention that a hypothetical application by them in 1994 would have been approved in preference to the Riverland Ramble application.

743 Mr McKay's evidence was not specific as to when in 1994 he learnt of the availability of sewerage in Ravenswood. If that discovery had been the catalyst for making a rezoning application, there would, of course, have been substantial work and time involved in progressing from an intention to do so, through to the making of an application. At the least, many months of work would be involved. I note that in relation to Riverland Ramble, there was a year between the expression of an intention to apply for rezoning and the presentation of the first draft of the structure plan, and a further six months before the formal application was made. On the most optimistic assumptions for the plaintiffs, an application might perhaps have been made in the second half of 1994. After that, the process requires:

(c) consideration by the SWRPC and its consent to advertise;

(d) the making of any modifications required by the SWRPC;

(f) staged consideration by all the same sets of decision makers after submissions are received.

744 Against the background of events I have set out, to my mind it is unthinkable that, at that very late stage in the process of rezoning Riverland Ramble, the shire, or for that matter the Minister, would have turned its back on the Riverland Ramble rezoning application in favour of the plaintiffs' application. Further, the defendants point to the evidence of Mr Greenup (ts 3188 3191). Mr Greenup's evidence was to the effect that the council was not going to allow the raceway to prevent urban development of Riverland Ramble; that the council would have remained supportive of Riverland Ramble; and that by 1994, the 'writing was on the wall' for the raceway (ts 3189). Application of the principles of orderly and proper planning would not have led to a preference in 1995 for a hypothetical rezoning application for the subject land over the rezoning of Riverland Ramble. There are additional reasons why I reject the plaintiffs' contention that the hypothetical application for rezoning on their part would have been preferred to Riverland Ramble. I will deal with that in section 4.6.4 below.

745 I return to set out the chronology of events for the Riverland Ramble rezoning.

746 Mr Berzins of the DPUD prepared a report to the Minister for Planning on the decision whether to give final approval to the Riverland Ramble rezoning (exhibit RR146.42). The report was considered at the meeting of the Committee for Statutory Procedures on 8 November 1994. That committee had taken over the roles of the SWRPC. The committee adopted the recommendations in Mr Berzins's report, with some amendments (see exhibit 146.42, page 12).

747 The report outlined the history of the rezoning application. It dealt with the points made in submissions received in opposition to the application during the advertising period. The report noted a submission that residential density was too high and that the proposed population of about 4,000 people, with 1,200 residential lots, was too intense for the residential locality. Council's comments were recorded that the structure plan had been modified to delete the higher density sites and the residential component was revised to R15, reducing the overall development yield by 300 lots. That meant that the population would be approximately 3,400 people (exhibit RR146.42, page 5).

748 The report set out the following departmental comments in relation to that objection:

Departmental Comments

The Peel Regional Strategy was recently released and part of the initiative of the Strategy was to undertake structure planning between Mandurah and Pinjarra. The structure planning exercise will occur in the next twelve months. Considering the timing of the structure planning exercise it is considered unreasonable to delay the determination of the current amendment as the proposal has been in the public domain for 18 months to date.

The applicant has indicated to Council that the density of the proposal can be reduced.

There are two population projections for the Shire of Murray to the year 2006 and these are a low and a high projection. The growth in population under the low scenario is 3 600 and the projection for the high scenario is 4 300 people to the year 2006. The subject development would take up a large percentage of the projected growth however as will be seen in a following section the lot yield will be further reduced due to the imposition of a noise buffer zone.

The proposal is long term in nature and should not be ruled out because it is too large in the context of the development of the Shire of Murray. On the contrary, the proposal has potential to accommodate a large percentage of Murray growth (exhibit RR146.42, page 6).

749 The figures in the report are consistent with the shire's 1994 Local Commercial Strategy (exhibit 31, 1/11/315 316), which reported the 'preferred estimates' from the 1992 DPUD report 'Preliminary Population Projections: NonMetropolitan Local Government Areas'. This predicts an increase of 3,600 people from 8,600 people in 1991 to 12,200 people in 2006. The Local Commercial Strategy notes that the new population projections revealed significantly lower population growth in Mandurah and Murray compared to the figures for 2001 in the 1990 Peel Regional Plan.

750 Two aspects of the comments in the passage I have set out are worthy of note. First, the report refers to the structure planning exercise which was then underway, saying that it would occur in the next 12 months. Because the Riverland Ramble proposal had been in the public domain for 18 months it was considered unreasonable to delay the determination of the current amendments. Had a rezoning proposal by the plaintiffs first come to light in late 1994, the reason given in this report not to delay determination of the amendment pending the structure planning exercise would not have applied.

751 Secondly, in this passage, the report considers population predictions for the shire and the relationship between the expected population in the shire and the number of people able to be accommodated in the proposed Riverland Ramble urban area. In the last paragraph of the passage quoted, the conclusion reached is that the proposal should not be ruled out on the ground that it is too large in the context of the development of the shire, but that it had the potential to accommodate a large percentage of Murray's growth. An application in respect of the subject land would have given rise to quite different considerations of population and demand. In my view, by this time, any application by the plaintiffs would have fallen for consideration in the context that approval of the Riverland Ramble was so likely as to be a given. Thus, Riverland Ramble would have been sufficient to accommodate a large percentage of the shire's population growth over the following 10 years. The previously perceived strong need for further urban land in Ravenswood (see section 4.4) would no longer exist. To the contrary, in Riverland Ramble there was an apparently ample source of urban land for Ravenswood for many years.

752 In response to a submission that the Riverland Ramble development was premature, the report recorded council's comments that the development would be staged over a 10year period and was based on a definite potential market for residential land in the Ravenswood locality. The departmental comments were to the effect that the staged nature of the proposal would enable lots to be brought onto the market as required and that it was for the market, in the end, to determine the rate at which land is developed (exhibit RR146.42, page 7).

753 Again, an application by the plaintiffs would raise different considerations, in light of Riverland Ramble's approval or impending approval. Thus, in my view, issues of need and supply would present an obstacle for an application by the plaintiffs, whereas for the Riverland Ramble application, those factors militated strongly in favour of the application being approved.

754 Another objection considered in the report was the adverse impact of the rezoning on the raceway. The report recorded that the proponents had agreed that lot 22, which was substantially affected by the 1 km buffer zone announced by the Minister for Environment, would not be included in the area rezoned for residential purposes. That caused a reduction in the number of people generated by the development from 3,400 to 2,500 people. That reduction meant that 'this one development takes up approximately 60% of the predicted population increases in the shire of Murray for the next 10 years' (exhibit RR146.42, page 9).

755 The report identified some required modifications to the text of the scheme amendment. The conclusion of the report was in the following terms:

The imposition of the 1km noise buffer around the Ravenswood Drag strip as well as the setting of environmental conditions which will lead to the closure of the Raceway after 5 years are supported in the context of residential expansion at Ravenswood. The concept of a new residential node is supported as is the reduction of a projected population of 3 400 to 2 500 people over a 10 year period. The scale of the proposal has had to be reduced and consequently the applicant will be required to prepare a new ODP.

Detailed structure planning between Pinjarra and Mandurah has been programmed by the Department for the following 12 months and this development will be accommodated by that planning.

The report has highlighted opportunities for better design in the new ODP and these issues or opportunities will be conveyed to the applicant.

Finally the wording of the scheme amendment has been modified to reflect the imposition of the noise buffer in the locality as well as the need to have public participation in the formulation of the ODP (exhibit RR146.42, page 11).

756 It should be noticed that specific support is expressed for the reduction in the projected population from 3,400 to 2,500 people over a 10year period. Again, there was reference to the detailed structure planning for the area between Pinjarra and Mandurah programmed for the following 12 months.

757 The report recommended that the Minister withhold final approval until the amendment documents, including the ODP, were modified in accordance with the report. In revising the ODP, the applicant and council were to have regard for the ODP providing for positive linkage between the existing residential development at Ravenswood and the future development in Riverland Ramble. Of course, that is not something that could have been offered by the urbanisation of the subject land. Moreover, given the proposed staged development of Riverland Ramble (see exhibit 193A, 46B/138), how linkage with Riverland Ramble would have been achieved in urbanising the subject land is not obvious. I will return to that topic.

758 In the recommendations section of the report (exhibit RR146.42, page 12), there are two handwritten additions. I infer that those were added in the course of the meeting on 8 November 1994. One of those additions is that in preparing a revised ODP, the applicant and council should also have regard to the need to prepare an indicative subdivision plan for that area of lot 22, which was excluded from the special development zone. That indicative subdivision plan was to ensure that when the 1 km noise buffer around the Ravenswood Raceway was lifted, the further subdivision could occur in an orderly manner with appropriate linkages to the special development zone. That recommendation seems to me to reflect a concern that areas of urbanisation be appropriately connected. That concern would have arisen in relation to a proposed rezoning of the subject land, particularly given the proposed staged development of Riverland Ramble over a period of 10 years.

759 Although not mentioned in any party's submissions on the preIPRSP rezoning, to my mind, this report is a significant document. It reflects the thinking of the DPUD and the Committee for Statutory Procedures in late 1994, and its recommendations were adopted.

760 On 29 November 1994, the Minister approved the recommendation of the Committee for Statutory Procedures (exhibit RR146.43). By letter of 1 December 1994, the SPC advised the shire that the modifications in the attached schedule were required to be made before the Minister would approve the amendment (exhibit RR146.44).

761 On 23 February 1995, the shire council resolved to adopt TPS 4 Amendment 43 for final approval, subject to the modifications required by the Minister being made, and subject to lot 22 being deleted from the special development zone (exhibit RR146.47).

762 Those changes were made and the amendment was forwarded on 21 March 1995 to the SPC for final approval by the Minister.

763 On 3 March 1995, the shire resolved to support the ODP for lot 20, subject to some conditions (exhibit 191G, 25A/633 643).

764 By letter of 7 April 1995, the WAPC wrote to GRA in relation to the road network associated with the development of Riverland Ramble (exhibit 193A, annexure JES 6, 46B/143). The letter referred to the SWAT report of 1992 and to the unpublished 'Mandurah Pinjarra Structure Plan'. The latter document is not in evidence. The letter stated that the proposed urban cell in the SWAT report included lots 20 22 on Old Mandurah Road and land adjoining to the north and east, and that the cell was anticipated to accommodate approximately 25,000 people within the next 25 years. I interpose that the last observation is incorrect. The SWAT report predicted 3,000 people for Ravenswood by 2021 and predicted an ultimate population of 25,000 people: see exhibit 199, 1/5/153. The letter stated that it was accordingly considered appropriate to establish a district road network, so that Old Mandurah Road would need to be widened.

765 On 26 April 1995, the WAPC wrote to the shire advising that the Minister had granted final approval for Amendment 43, which was to be published on 28 April 1995 in the Government Gazette (exhibit RR146.48). The amendment was gazetted as foreshadowed (exhibit 72).

766 At its meeting of 23 May 1995, the Committee for Statutory Procedures considered and adopted recommendations in a report prepared by Mr White and authorised by Mr Berzins (exhibit 193A, 46B/119 139). The report related to the ODP for lot 20 Old Mandurah Road. Lot 20 was 67.7 ha. The ODP proposed subdivision in accordance with an R15 density, giving rise to 633 lots, mainly single residential lots. Lot 20 is the most western of the lots comprising Riverland Ramble. Its eastern boundary is east of the boundary between lots 10 and 11, north of Old Mandurah Road. Its western boundary is Pinjarra Road. See the plan reproduced in section 4.6.3 below.

767 The report repeated the statement from the letter of 7 April 1995 about the SWAT report estimating the Ravenswood cell to accommodate 25,000 people within the next 25 years and said that a modification to the ODP was required to widen Old Mandurah Road. As I have mentioned, that was an error in that the 25,000 was the ultimate population, but only 3,000 people were expected in the next 25 years.

768 The plaintiffs and their planners point to the reference to and reliance upon the SWAT report. However, to my mind, it is one thing to refer to the SWAT report to justify a condition regarding roads. What urban rezoning is justified as at 1996 is quite a different question. I will return to that point in dealing with the SWAT report in section 4.8.4 below.