Court of Appeal (WA)|2004-07-13|Before: Mr P, Steytler J, Templeman J, Simmonds J, Kechnie J

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 (13 July 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MOUNT LAWLEY PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2004] WASCA 149

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation Number : [2002] WASC 307

Town planning - Reservation and acquisition of land - Value of land required to be assessed under s 36 of Metropolitan Region Town Planning Scheme Act 1959 (WA) without regard to attributes of planning scheme - Need to consider events leading to reservation and attributes of the land - Whether difference between election to acquire and compulsory acquisition

Town planning - Reservation and acquisition of land - Valuation - Need for valuations not influenced by exigencies of litigation - Whether concept of special value applicable under s 36 of Metropolitan Region Town Planning Scheme Act 1959 (WA) - Whether market value includes costs of development application, holding the land until settlement, and of acquiring replacement property - Whether interest payable by planning authority as part of purchase price - Whether interest on purchase price able to be ordered under s 32 of Supreme Court Act 1935 (WA)

Town planning - Election to acquire land - Whether validly made - Whether omission in notice of election can be remedied by later notice, after expiry of time fixed by s 36(2)(b) of Metropolitan Region Town Planning Scheme Act 1959 (WA), relying upon s 55 of Interpretation Act 1984 (WA)

Town planning - Claim for injurious affection - Whether damage arising from severance claimable under s 36 of Metropolitan Region Town Planning Scheme Act 1959 (WA) - Whether claim for injurious affection can proceed in absence of development application

Appeals - Difficulties of appeal court in assessing evidence - Extensive, complex, controversial evidence at trial - Inadequate reasons in trial judgment

Appeals - Delay in judgment of trial Judge coupled with inadequate reasons

Appellant (Applicant) : Mr W S Martin QC & Mr P L Harris

Respondent (Respondent) : Mr G T W Tannin SC & Mr B P King

15 Lorimer Street Pty Ltd v Secretary to the Department of Infrastructure (1997) 97 LGERA 239

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430

Boland v Yates Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209

Broken Bay Peninsular Pty Limited v Minister Administering the National Parks and Wildlife Act 1974 [1997] NSWLEC 165

Cairns City Council v CMB No 1 Pty Ltd (1997) 96 LGERA 306

Closer Settlement Ltd v The Minister (1942) 17 LGR(NSW) 62

Commonwealth v Morison [1972] HCA 39; (1972) 127 CLR 32

Cornell v Town of East Fremantle [2003] WASC 163; (2003) 131 LGERA 20

Crisp & Gunn Co-operative Ltd v Hobart City Corporation [1963] HCA 55; (1963) 110 CLR 538

Curwen v James [1963] 1 WLR 748

Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310

Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377

Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1

Folkstone v Metropolitan Region Planning Authority [1968] WAR 164

Goose v Wilson Sandford & Co, unreported; England and Wales Court of Appeal (Civil Division); 13 February 1998

Hadid v Redpath [2001] NSWCA 416

Hill v Western Australian Planning Commission [2000] WASC 101; (2000) 107 LGERA 229

Housing Commission of New South Wales v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196

Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462

MacDougall v Western Australian Planning Commission [2003] WASC 138; (2003) 129 LGERA 243

Marine Board of Launceston v The Minister of State for the Navy [1945] HCA 42; (1945) 70 CLR 518

Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603

Mifsud v Campbell (1991) 21 NSWLR 725

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1

Pastoral Finance Association Ltd v The Minister [1914] UKPC 77; [1914] AC 1083

Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572

Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

Queensland v Murphy [1990] HCA 42; (1990) 95 ALR 493

R v Maxwell, unreported; CCA SCt of NSW; 23 December 1998

Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1

Ricciardello v Caltex Oil (Australia) Pty Ltd [1991] ANZ ConvR 445

Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246

Sisters of Charity of Rockingham v The King [1922] 2 AC 315

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418

St John Ambulance Association of Western Australia Inc v East Perth Development Authority [2001] WASC 85; (2001) 114 LGERA 112

Trandos v Western Australian Planning Commission [2001] WASCA 346; (2001) 117 LGERA 257

Turner v Minister of Public Instruction [1956] HCA 7; (1956) 95 CLR 245

Venture Management Ltd v Commissioner of Taxation (1991) 4 WAR 283

Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520

Wilson v Liverpool City Council [1971] 1 All ER 628

Yarn Traders Pty Ltd v Melbourne and Metropolitan Board of Works [1970] VicRp 55; [1970] VR 427

Abbey Orchard Property Investments Pty Ltd v Sydney City Council (1978) 37 LGRA 230

Arkaba Holdings Ltd v Commissioner of Highways [1970] SASR 94

Attorney-General v Horner (1884) 14 QBD 245

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Beer v Bowden [1981] 1 WLR 522

Bond Corporation Pty Ltd v The Western Australian Planning Commission [1999] WASC 157; (1999) 108 LGERA 235

Bond v Nottingham Corporation [1940] Ch 429

Bronzel v State Planning Authority (1979) 21 SASR 513

Burns Philp Hardware Pty Ltd v Howard Chia Pty Ltd (1987) 8 NSWLR 642

Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919] AC 744

Clissold v Perry (Minister for Public Instruction) [1904] HCA 12; (1904) 1 CLR 363

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336

Commonwealth v Reeve [1949] HCA 22; (1949) 78 CLR 410

Consett Iron Company Ltd v Clavering Trustees [1935] 2 KB 42

Crompton v Commissioner of Highways (1973) 5 SASR 301

Doolan Properties Pty Ltd v Pine Rivers Shire Council [2000] QCA 76

Duffy v The Minister for Planning [2003] WASCA 294; (2003) 129 LGERA 271

Email Ltd v Robert Bray (Langwarrin) Pty Ltd [1984] VicRp 2; [1984] VR 16

Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1976) 14 SASR 486

Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) [1979] HCA 17; (1979) 142 CLR 351

Fraser v City of Fraserville [1917] AC 187

Grampian Regional Council v Secretary of State for Scotland [1983] 1 WLR 1340

Hoyt's Pty Ltd v O'Connor [1928] HCA 7; (1928) 40 CLR 566

Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639

Konowalow & Felber v Minister for Works [1961] WAR 40

Kozaris v Roads Corporation [1991] VicRp 17; [1991] 1 VR 237

Langham v Mayor of the City of London [1949] 1 KB 208

Lear v Blizzard [1983] 3 All ER 662

London & North Western Railway Company v Evans [1893] 1 Ch 16

Magenta Nominees Pty Ltd v Webb, unreported; FCt SCt of WA; Library No 980622; 29 October 1998

Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426

Moylan v Nutrasweet Co [2000] NSWCA 337

Nelungaloo Pty Ltd v Commonwealth [1947] HCA 58; (1948) 75 CLR 495

Nuland Developments Pty Ltd v Parramatta City Council (1978) 37 LGERA 258

Overton Investments Pty Ltd v Department of Urban Affairs & Planning [1998] NSWLEC 67

Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995

Pamalco Pty Ltd v Minister Administering National Parks & Wildlife Act 1974 (No 3) (1991) 71 LGRA 441

Lasseter v Blacktown City Council [1994] NSWLEC 24

Board of Valuers; Ex parte Bond Corporation Pty Ltd, unreported; SCt of WA (Miller J); Library No 980713; 5 November 1998

Rees v Minister for Planning & Housing (1991) 76 LGRA 167

Rugby Joint Water Board v ShawFox [1973] AC 202

Minister v Stocks & Parkes Investments Pty Ltd [1973] HCA 29; (1973) 129 CLR 385

Thomas Bates & Son Ltd v Wyndham's (Lingerie) Ltd [1980] EWCA Civ 3; [1981] 1 WLR 505

Trandos v Western Australian Planning Commission (2000) 107 LGERA 11

Tzouvelis v Victorian Railway Commissioners [1968] VicRp 13; [1968] VR 112

Wimpey Construction UK Ltd v The Minister (1983) 43 LGRA 75

WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 20 WAR 489

Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156

1 This is an appeal from a decision, given pursuant to s 36(2b) of the Metropolitan Region Town Planning Scheme Act 1959 (WA) ("the Scheme Act"), that the value of some 309 hectares of rural land, which had been reserved for parks and recreation and a controlled access highway by amendment to the Metropolitan Region Scheme ("MRS"), was $2.918 million. The trial Judge held that "value", in this context, should include certain outgoings and expenses paid by the owner in respect of the land. His Honour awarded interest on the various components of the value so found.

2 The land has been owned since 1963 by the appellant Mount Lawley Pty Ltd. That company is owned beneficially by members of the Copley family. The land has been held within the family for over 100 years. The appellant contends that the land should not have been valued as rural land, but as urban land, on the basis that it would have been rezoned but for the reservation, and that its value is some $15,000,000.

3 The respondent, the Western Australian Planning Commission, is established by s 4 of the Western Australian Planning Commission Act 1985. The respondent's functions include reviewing the MRS and making recommendations for its amendment to the Minister for Planning and Infrastructure. It seeks to uphold the valuation of the reserved land on a rural basis. It contends that the environmental significance of the land required it to be preserved, and is such that the land would never have been rezoned urban. It also contends that the trial Judge should not have treated the various outgoings as components of value and that his Honour should not have awarded interest. These issues are the subject of a cross-appeal.

4 The reserved land is part of a larger area ("the Mount Lawley land") of some 320 hectares comprising Lots 46 and 47 Maralla Road and Lexia Avenue, located to the west of a recently developed suburb known as Ellenbrook, in the Shire of Swan. It is located in what has come to be known as Perth's north-eastern corridor, this being one of the areas identified in the 1980s for the expansion of the Perth metropolitan area. It is some 25 kms to the north-east of the city of Perth.

5 The Mount Lawley land has never been developed. It is bushland in pristine condition, disturbed only by firebreaks and tracks leading to bores established by the Water Corporation. The land has substantial areas at 48 - 49 metres Australian Height Datum ("AHD"), mainly in a flat central area, where there are some shallow and seasonal wetlands. The reserved portion of the land is fringed by undulating dunes, ranging from 50 to 70 metres AHD. The vegetation is mainly banksia woodlands.

6 In 1990, a number of landowners, including the appellant, submitted a proposal for the rezoning of a substantial part of the north-eastern corridor from Rural to Urban Deferred, under the MRS. The ultimate objective was the creation of an urban development at Ellenbrook. Later in these reasons, we shall refer in more detail to the rezoning application and to the appellant's involvement in the proposal. It is sufficient for present purposes to record that on 16 October 1992, by Amendment 879/33 to the MRS, some 2209 hectares of the north-eastern corridor were rezoned from Rural to Urban Deferred, and some 309 hectares of the Mount Lawley land ("the reserved Mount Lawley land") were reserved for Parks and Recreation. This included an area of some 7.9 hectares, which, by 14 December 1994, had been re-reserved for a Controlled Access Highway ("the CAH land") by Amendment 950/33 to the MRS (see exhibit 2045). The balance of the Mount Lawley land, some 12 hectares ("the unreserved Mount Lawley land"), fell within the area rezoned Urban Deferred, which, by 14 December 1994, had been rezoned again, to Urban (see exhibit 2045).

The compensation claim and the respondent's election to acquire

7 By letter dated 22 September 1995 the appellant lodged with the respondent a claim for compensation for injurious affection of Lots 46 and 47 arising from Amendments 879/33 and 950/33. The claim was made under s 11(1) of the Town Planning and Development Act 1928 (WA) ("the Planning Act"), s 36(1) of the Scheme Act, and cl 8 of the MRS.

8 It was common ground between the parties to this appeal that this was not a valid claim, as the required procedure calls first for a development application to be made, and then for it to be either declined, or approved subject to unacceptable conditions. In any event the respondent declined this claim by letter dated 6 October 1995.

9 On 7 December 1995, the appellant applied to the respondent through the Shire of Swan for approval to begin development of earthworks for urban development and sand mining associated with a proposed residential subdivision and associated development on Lots 46 and 47 (exhibit 1098). This application referred to the zoning of the land involved as "Parks and Recreation" in the MRS, but in Plan 3 of the Structure Plan the application appears to show that the land involved included land in the path of the proposed highway that led to the reservation of the CAH land.

10 It was common ground between the parties that the respondent did not reply to the application within 60 days of its receipt. Thus, by s 35E(6) of the Scheme Act, and cl 31(2) of the MRS, the application was deemed to have been refused. It was refused formally by letter dated 10 April 1996.

11 On 13 February 1996 (exhibit 187), the appellant claimed compensation for injurious affection in respect of the Mount Lawley land. The claim referred to the reservations for parks and recreation and for the controlled access highway, and said:

"(c) The reservation in each case significantly reduced the value of the land and caused severance damage to the balance of Lot 47 held by the claimant by reason of the absence of separate road access."

12 Compensation of $65,000 per hectare "average" was claimed for 309 hectares "including severance to the remaining portion of Lot 47 and the value of the mineral sands within Lots 46 and 47". The 309 hectares corresponded to the area of the reserved Mount Lawley land. The total amount claimed was $20.085 million (309 x $65,000).

13 By s 36(2) of the Scheme Act and s 12(2a)(b) of the Planning Act, the respondent was obliged to respond to the appellant's claim for injurious affection either by agreeing to pay compensation or by electing to acquire the subject land. By s 36(2)(b) of the Scheme Act, the election was to be made by notice in writing given to the appellant within three months of the claim for injurious affection.

14 By letter dated 9 May 1996 (exhibit 188) the Ministry for Planning notified the appellant that the respondent had "elected to purchase the portion of the above property [referring to land at Lots 46 and 47 Maralla Road and Lexia Avenue, Ellenbrook] reserved for Parks and Recreation in lieu of paying compensation". No mention was made of the CAH land. The letter stated that the date of the election was 7 May 1996.

15 By letter to the appellant dated 24 September 1999 (exhibit 2092), the Ministry for Planning referred to the letter dated 9 May 1996, and notified the appellant that, "insofar as there was an error in that letter concerning the description of the property which is the subject of the election to purchase", that error was "hereby corrected" by replacing the relevant paragraph in the earlier letter. In the replacement paragraph, it was said that the respondent had "elected to purchase the whole of Lot 46 and portion of Lot 47 reserved under the [MRS] both for Parks and Recreation and for Controlled Access Highway in lieu of paying compensation". The date of the election was said to be 7 May 1996, as before.

16 The appellant does not accept the validity of the respondent's purported correction of its error and contends that the respondent has not elected to acquire the CAH land.

17 The appellant and the respondent were unable to agree on the price to be paid for the reserved Mount Lawley land. That being so, by s 36(2a) of the Scheme Act, the price was to be "the value of the land as determined in accordance with subsection (2b)".

18 Subsection 36(2b) of the Scheme Act provides as follows:

"(2b) 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 -

(ii) by the Supreme Court - if the value of the land claimed by the owner thereof is more than $1 000_;_

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."

19 The "Scheme" is defined in s 6 of the Scheme Act as:

" ... a town planning scheme for the metropolitan region or any part thereof, including the provisions therein for regulating and controlling the use of the land the subject of the Scheme and the purposes for which the land may be used and includes -

(a) the provisions of the Scheme;

(b) all maps, plans, specifications and other particulars contained in the Scheme and colourings, markings or legend thereon;

(c) the Scheme as varied or amplified by any amendment that has the force of law; and

(d) a subsequent scheme that has the force of law and any such subsequent scheme as varied or amplified by any amendment that has the force of law;

...".

20 The reserved Mount Lawley land (and the CAH land if acquired) was therefore to be valued without regard to any increase or decrease in value attributable wholly or in part to the amendments which effected the reservation.

21 The basis for the valuation has been the principal issue in the appeal and cross-appeal. The other issues include the following:

• whether the respondent validly elected to acquire the CAH land;

• whether the election to acquire is equivalent to a compulsory acquisition;

• whether the value should include any special value to the owner, such as the cost of various outgoings and expenses incurred by the appellant in relation to the land;

• whether the appellant is entitled to interest on the price to be paid by the respondent;

• whether the appellant is entitled to compensation for the effect of severance on the unreserved Mount Lawley land.

22 At the trial, the appellant sought to support its valuation evidence by evidence from town planning and other technical and scientific experts. The respondent did likewise. The result was that the trial ran from 29 February to 19 June 2000. All the evidence was recorded electronically. It included nearly 800 exhibits and over 6,000 pages of transcript. There was then an adjournment until 12 September 2000, while closing submissions were prepared: some 800 pages from the appellant and 300 pages from the respondent. The submissions were presented over four days, until 15 September.

23 On 27 February 2002 the trial Judge sat again to hear submissions arising from the decision of the High Court in Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603.

24 The Judge delivered his judgment on 13 December 2002. Considering all that had gone before, his Honour's reasons were, with respect, extraordinarily short: some 24 pages of text. He justified that, in part, by holding that much of the evidence given at trial was irrelevant.

25 The delay in delivering judgment and the inadequacy of the reasons were at the forefront of the appellant's submissions on the appeal. It is, in this respect, fair to say that, although the respondent contends that the Judge reached the correct conclusion, it accepts that his Honour's reasons were in some respects inadequate. We therefore deal with these matters before turning to the merits of the appeal.

26 The appellant's contentions are set out in ground 20 of the grounds of appeal. It reads as follows:

"(a) ... following a trial which lasted for 67 days (with more than 6,000 pages of transcript and almost 800 exhibits) and having taken in excess of 2 years to deliver his judgment, the Trial Judge erred in failing to provide adequate findings and reasons to enable a proper understanding of the basis upon which his determination of value had been reached and in particular failed to:

(i) identify with specificity the evidence he found to be irrelevant;

(ii) identify with specificity what evidence he relied upon and what evidence he rejected in reaching his decision;

(iii) weigh the merits and demerits of each party's evidence; and

(iv) demonstrate that all the facts, evidence and pleadings had been carefully assessed.

(b) It should be inferred from the inadequacy of the reasons contained in the judgment and the lengthy delay in providing the judgment that the trial Judge had overlooked large parts of the pleadings, essential evidence and argument in the case and that his findings were unsafe, resulting in a substantial miscarriage of justice."

The starting-point, in considering these grounds, is that the giving of reasons is a normal (albeit not universal) incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269 - 270, 278; and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441. That is because "the duty is a function of due process, and therefore of justice": Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 at 381, per Henry and Laws LJJ and Hidden J. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment: Flannery (ibid); and see Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1 at 31. The requirement also furthers judicial accountability: Soulemezis, at 279, per McHugh JA; and Beale, at 442, per Meagher JA.

27 Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.

28 Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale, at 443; nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why: Beale, at 443. Similarly, where a dispute involves a form of "intellectual exchange, with reasons and analysis advanced on either side", the Judge "must enter into the issues canvassed before him and explain why he or she prefers one case over the other": Flannery, at 382.

29 Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale, at 444. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale, at 444.

30 Delay, at least where it is substantial, adds another dimension in considering the adequacy, or otherwise, of reasons. It does not, of itself, indicate that the trial has miscarried or that the judgment is unsafe and, hence, give rise to a ground of appeal. However, a comparison between the judgment and the issues in the trial may indicate that its effect has been such as to constitute a miscarriage: R v Maxwell, unreported; CCA SCt of NSW; 23 December 1998. Also, where there has been substantial delay, statements of a general assertive character, which might otherwise be accepted as encompassing a detailed consideration of the evidence, might be treated with reserve. In Maxwell, a delay of the order of 10 months was said to have been "such as to require a more comprehensive statement of the evidence than would normally be required in order to manifest, for the parties and the public, that the delay has not affected the decision": at 25, per Spigelman CJ, Sperling and Hidden JJ.

31 In this case, the trial Judge had available a full transcript of the evidence and the argument and, of course, the various exhibits. However, even then, a long delay can give rise to disquiet, not only because of the lengthy period of uncertainty with which the litigants are required to live pending the judgment, but also because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues. Thus, in Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246 (a case involving a delay of nearly eight months in giving judgment) Lawton LJ said:

"[Counsel] submitted that this long and, in my experience, unprecedented delay resulted in the Judge making material findings which were not justified by the evidence. I am not satisfied that this was so. But the fact that responsible and experienced counsel, acting for a public corporation, felt it incumbent upon him to make this submission shows that long delays in delivering judgment can cause disquiet and suspicion amongst litigants who lose - and those who win may feel they have been deprived of justice far too long. Delays of this length should not occur unless there are compelling reasons why they should; and, if there are such reasons, it would be prudent of a judge to refer to them briefly."

32 Similarly, in Goose v Wilson Sandford & Co, unreported; England and Wales Court of Appeal (Civil Division); 13 February 1998, Peter Gibson, Brooke and Mummery LJJ said (in a substantial case involving a delay of over 20 months from the end of the hearing), at [112] and [113], that:

"A judge's tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser's confidence in the correctness of the decision when it is eventually delivered. Litigation causes quite enough stress, as it is, for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive to the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again.

Because of the delay in giving judgment it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of twenty months, Harman J denied himself the opportunity of making this further check in any meaningful way."

33 What was said in Goose has been applied in Australia: see, for example, Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 at [8]; Hadid v Redpath [2001] NSWCA 416 (a case involving a delay of about one year) at [29]; and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 at [53] and [56].

34 In Cobham v Frett [2000] UKPC 49; [2001] 1 WLR 1775, a case involving a delay of over 12 months, the Privy Council said (at 1783) that:

"It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge's findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party."

Their Lordships went on to say (at 1783 - 1784) that, in their opinion:

"[I]f excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant."

35 In NAIS, at [4], Hill J said that the basis on which an appeal court would order a new trial in a case of excessive delay (where the appellant has satisfied the appeal court that to allow the judgment to stand would be unsafe) is that the appellant has not had a fair trial. His Honour added (ibid) that it may not be appropriate to order a new trial in a case where the appeal court on an appeal may itself make findings of fact. Marshall J, in that case, had no doubt ([37]) that "an unreasonable delay, which results in prejudice to a losing party, may amount to a denial of procedural fairness to that party".

36 In this case, as we have noted above, evidence was received by the trial Judge between 29 February 2000 and 19 June 2000. Closing submissions were presented between 12 and 15 September 2000. More than 17 months later, on 27 February 2002, submissions were heard in relation to a decision of the High Court delivered in 2001. Then, on 13 December 2002, almost 10 months later, the judgment was delivered, after a total delay of almost two years and three months.

37 It is hardly surprising that this inordinate and inexcusable delay (for that is undoubtedly what it was) led to disquiet and suspicion of the kind referred to in such cases as Rolled Steel and Goose. Nor is it surprising that we were presented (by responsible and experienced counsel) with submissions (of a kind which no appellate court ever wishes to see) criticising the delay, and its apparent consequences, in trenchant terms. The making of those submissions was even less surprising given that, notwithstanding that the delay was explained by the trial Judge by saying that it had been occasioned by the need to thoroughly absorb and review the evidence and submissions, the judgment runs, as we have said, to only 24 pages of text and makes no attempt to refer to much of the relevant evidence or to set out, in any adequate way, the trial Judge's reasons for preferring significant sets of evidence over other significant sets of evidence. Moreover, this was a factually and legally complex case which involved an intellectual exchange with reasons and analysis advanced on either side. However, the trial Judge, in significant instances, did not enter into the issues canvassed before him in any adequate way or provide explanations for his decisions which treated those intellectual exchanges with the respect which they plainly warranted.

38 For example, in relation to the trial Judge's treatment of the demeanour of witnesses, his Honour said only the following (at [6] and [7]):

"In some cases the demeanour of witnesses assumes great importance in assessing the evidence. In this case the demeanour of witnesses has played a minimal part in my decision. All witnesses presented well. The witnesses as to the narrative history were recalling events and on occasion suffered from fallibility of memory. Where it has been necessary to prefer a version of one witness to another, or to doubt the reliability of a witness's evidence in a particular, I have done so by reference to the witness's evidence, compared with the contemporary documents, those documents having a higher probability of accuracy.

There was challenge to some witnesses on both sides as to their bias or partiality. For example, Mr Molony's arrangements with the applicant include a success fee. I have taken the question of bias generally into account, but gave it comparatively little weight. With the exception of Mr Copley, and Public Service representatives of the respondent, such as Mr Hillyard, expert witnesses on both sides are paid for their experience and expertise. I have not found any witness to be mendacious, although there are some whose opinions I do not completely accept."

Nowhere did his Honour analyse, in any depth, or sometimes at all, why he preferred a version of one witness to another. Nor did he identify which were the witnesses whose reliability he doubted, or in what particulars, or why. He did not say in respect of which witnesses he had found bias, or why, or what he meant by saying that he had "generally" taken it into account. Nor did he say who were the witnesses whose opinions he did not completely accept, or why, or in what respects. While he did later make some comments about particular evidence or opinions, particularly in respect of the valuation evidence, it is by no means clear that it was only to that evidence that these earlier comments were intended to refer.

39 A further example arises out of [8], [9] and [10] of his Honour's judgment. In [8] and [9] he referred to objections to "certain evidence" which he upheld. He said he did so "in general terms". However, he did not identify, with any degree of precision, the evidence successfully objected to or in what "general terms" the objection was successful. Instead, he went on to say that the appellant's case theory was based on propositions including the following:

"(a) The election to acquire is equivalent to a compulsory acquisition;

(b) The Mount Lawley land which was zoned rural prior to the reservation would have been rezoned urban in due course but for the reservation;

(c) The background history of failed negotiations and proposed land exchanges affects the question of the determination of the value of the Mount Lawley land;

(d) The conservation significance of the Mount Lawley land, if substantial, must be disregarded under the Pointe Gourde principle (Pointe Gourde Quarrying and Transport Company Limited v Sub-Intendent of Crown Lands [1947] AC 565);

(e) The motivation of the respondent and Governments of the day is relevant to the issue of valuation;

(f) The highest and best use of the Mount Lawley land but for the reservation was an urban community as illustrated by a hypothetical development."

He said, at [10], that he rejected each of those propositions and that, in consequence, much of the evidence led at trial was irrelevant. He did not specify what evidence was irrelevant and, indeed, propositions (b) and (f), at least, are factual, proposition (b) being central to the appellant's case. If those factual propositions were to be rejected, this should only have been done after an analysis of the evidence upon which they relied (said by the trial Judge to be irrelevant as a consequence of his rejection of the propositions), saying which parts of that evidence were accepted and which were not, and why. However, his treatment of the evidence is merely assertive in character and lacks any substantive analysis.

40 No good purpose can be served by giving further examples, although others could be provided. Nor is it necessary to decide whether this ground of appeal, had it stood alone, would have been determinative. That is because we have been able to resolve the appeal on other grounds. However, we should make three additional comments. The first is that, in some instances, this ground has been relevant in an assessment of the strength of other grounds (cf Laminex at [9]). The second is that, had it been necessary to decide whether or not this ground was, of itself, determinative, we would, very likely, have found it to be so. The third is that, during the course of oral submissions, counsel for the respondent very properly did "not seek to excuse or defend the delay", acknowledging that there was "no basis to do that".

41 There are 19 other grounds of appeal. However, there is much overlapping and repetition. Indeed, many grounds were grouped in the appellant's submissions and answered by the respondent in a similar way.

42 It is not necessary, therefore, to deal with each ground of appeal separately. Rather, we have identified the issues they reflect and have related our judgment to those issues.

43 The balance of our judgment proceeds as follows. First, we deal with the issue of whether or not the election to acquire by the respondent validly related to all of the reserved Mount Lawley land, or only to the balance after subtracting the CAH land. Our conclusion on the election issue takes us to the most significant issue in relation to the appellant's claim for compensation based on the price of the land the respondent validly elected to acquire. This issue involves the application of the Pointe Gourde principle, as embodied in s 36(2b) of the Scheme Act, in the determination of the proper basis for the valuation of that land. This requires us to analyse that principle in some detail, before considering the events and circumstances leading up to the parks and recreation reservation, including the environmental review of the land, with which we deal separately. We then consider the High Court authority of Queensland v Murphy [1990] HCA 42; (1990) 95 ALR 493, on which in this connection extensive reliance was placed by the respondent in the appeal, before indicating our conclusion on the issue of the proper basis for valuation of the land the respondent validly elected to acquire, and then examining the valuation evidence.

44 Our judgment then proceeds to consider the issue, also relevant to the valuation of the land the respondent validly elected to acquire, of whether or not such an election was equivalent to a compulsory acquisition so as to require account to be taken of any items of "special value" to the appellant or otherwise separately allowable under the law of compulsory acquisition. We consider separately the possibility for application of "special value" on other, general valuation, grounds. This enables us to discuss, among other things, whether or not the appellant is entitled to interest on the price to be paid by the respondent.

45 Our judgment then proceeds to deal with the claims for compensation under other heads than the price of the land the respondent validly elected to acquire, being injurious affection to the CAH land and the unreserved Mount Lawley land and severance damage to the latter land.

46 The final section of our judgment is a summary of our conclusions on all of these issues, and our disposition of this appeal.

Was there a valid election to acquire the CAH land?

47 As we have said, there is an issue about the validity of the respondent's purported election to acquire the CAH land.

• On 7 May 1996, the Executive, Finance and Property Committee of the Ministry for Planning, acting under delegated power from the respondent, decided to purchase the whole of the reserved Mount Lawley land and the CAH land.

• By letter dated 9 May 1996 Mr Hillyard, on behalf of the Ministry for Planning, notified the appellant of the decision to purchase the portion of the Mount Lawley land "reserved for Parks and Recreation". The letter did not refer to the CAH land.

• The appellant's then solicitors wrote to the respondent on this subject, by letter dated 25 September 1996 (exhibit 2090), noting that the respondent had elected to purchase only that part of the reserved Mount Lawley land reserved for parks and recreation, adding that they assumed the respondent intended to pay compensation for (rather than elect to acquire) the CAH land.

• On 4 October 1996, Mr Hillyard replied to the solicitors' letter (exhibit 2091) indicating that the Ministry had been told by the appellant to deal with Kevin Sullivan & Associates in all matters concerning "the Commission's purchase of the reserved portions of the above properties (ie, Parks and Recreation and Controlled Access Highway)", so as to overcome the respondent's concerns about receiving communications from the appellant itself, its then solicitors and the Sullivan firm. Kevin Sullivan & Associates was a firm of real estate agents and valuers retained by the appellant in relation to its plans for the development of the reserved Mount Lawley land.

• Some three years later, on 24 September 1999, Mr Hillyard wrote to the appellant (exhibit 2092) saying that "if and insofar as there was an error in his letter of 9 May 1996, such error or omission was hereby corrected", by replacing the reference to the purchase of the reserved Mount Lawley land with a reference to the purchase of that land and the CAH land.

49 At the trial, the appellant contended that there was no election to acquire the CAH land within the three-month period provided by s 36(2)(b) of the Scheme Act. That provision is as follows:

"The Commission shall, within 3 months of the claim for injurious affection being made, or where such a claim is made before the date of the coming into operation of the Metropolitan Region Town Planning Scheme Act Amendment Act 1968, within 3 months of that date, by notice in writing given to the claimant, either elect to acquire the land or advise that it does not intend to acquire the land."

50 In our view, s 36 of the Scheme Act, although not altogether clearly expressed in this respect, means that, if there is no written notice at all under s 36(2)(b) within the three-month period there referred to, the claim for injurious affection proceeds in accordance with the section, that is to say, on the basis that the land is not to be acquired by the respondent under that paragraph. In our view also, where a written notice under that paragraph is given, its election or advice may be express or implied.

51 The appellant's claim for injurious affection of the Mount Lawley land for the purposes of that paragraph was dated 13 February 1996 (exhibit 187). The only election by written notice from the respondent to the appellant within that three-month period was Mr Hillyard's letter dated 9 May 1996, which made no reference to the CAH land.

52 On the basis of our analysis of s 36(2)(b) above, the respondent might be taken either to have given no written notice as to the claim for compensation for injurious affection to the CAH land, or to have impliedly advised that it did not intend to acquire that land. In both cases, this assumes that the appellant had made two claims for compensation for injurious affection, one in respect of the CAH land and one in respect of the balance of the reserved Mount Lawley land, a matter to which we return.

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (590 paragraphs)

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 (13 July 2004)

The compensation claim and the respondent's election to acquire

Was there a valid election to acquire the CAH land?

The application of the Pointe Gourde principle

Is the election to acquire equivalent to compulsory acquisition?

A further valuation issue: market value or special value?

The claim for injurious affection and severance damages in respect of land not acquired

Parties

Legislation Cited (17)

Cases Cited (47)