MOUNT LAWLEY PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASCA 226 (29 October 2007)

MOUNT LAWLEY PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASCA 226 (29 October 2007) - WASCA 2007 case summary — Zoe

[118]

In my view, it may be assumed that the hypothetical prospective purchaser of the reserved Mount Lawley land in May 1996 would have made enquiries which established the following facts:

(1) Some 75 ha of the land constituted wetlands which were protected under the Lakes EPP.

(2) It could be argued that the boundaries of the wetlands on plan 1815 had been mapped inaccurately in 1991, or had changed subsequently due to changes in the level of the water table. However, there would be little prospect of persuading the EPA to amend the Lakes EPP.

(3) Although the Lakes EPP did not prohibit development of wetlands, there was a presumption against it: and the EPA was likely to oppose development in this case, having regard to its view that the Lexia wetlands generally were of high conservation value. The EPA's view was arguable, but it was justifiable on the evidence: in particular, the unique combination on the Swan Coastal Plain of the size and pristine quality of the wetlands and their proximity to each other.

(4) The upland areas surrounding the wetland basins were well suited for urban development, being elevated and well drained.

(5) The vegetation on the upland areas was banksia woodland in very good condition.

(6) Large areas of woodland of that kind, containing the Heddle vegetation complexes to be found on the reserved Mount Lawley land were present in secure reserves elsewhere, but not in association with such a substantial group of wetlands in such pristine condition.

(7) There were no priority flora on the Mount Lawley land.

(8) The wetland areas provided a habitat for the Southern Brown Bandicoot, which was a protected species. This would not preclude development, but it would be necessary in any development to ensure that the habitat was preserved, and adequate corridors provided, to ensure free movement of the Bandicoots.

(9) It would be a requirement of any development that vegetation buffers be provided round the wetlands. Although the width of the buffers might be a matter for negotiation, the EPA's usual practice was to require the minimum width of 50 metres when wetlands were included in an urban development. This would involve some 50 ha of land.

(10) Other agencies - and CALM in particular - were more conservation inclined than the EPA, but only the EPA was empowered to prevent development, or to impose onerous conditions.

(11) Before any development could proceed, it would be necessary for a full environmental assessment to be carried out. This would enable all interested authorities, organisations and individuals to make submissions, which the EPA would take into account in considering its attitude to development.

(12) Subject to these matters (which amounted to a considerable qualification), some 195 ha of the Mount Lawley land would be suitable for development.

[224]

But you didn't think that fact worthy of mention in your statement. Is that right?---I was advised and understood that I was to leave out of the statement events leading up to the MRS amendment.

But you've put in your statement the proposal in 1987 to reserve the land for a park, you have put in your statement the proposal in 1990 to reserve the land for a park, you've put in your statement all the planning documents that followed the reservation and reflect it. Why did you exclude the amendment in 1991?---I've answered the questions the best I can, that I was advised that I had to disregard the amendment for the purposes of my evidence, which is what I did. All the other documents stood independently of the amendment.

Mr Stokes, are you saying that the north east corridor structure plan that was published in March of 1994 and which showed this land as reserved for parks and recreation stood independently of the fact of its reservation in December 1992?---I didn't prepare the structure plan. As a document it stood independently. That may well have been that irrespective of the amendment, the land would have been reserved for parks and recreation anyway.

You didn't prepare the structure plan, did you?---No.

By then, it is the fact that the land had been reserved for parks and recreation, wasn't it?---Yes.

The structure plan could not possibly have done anything else than reflect that fact, could it?---Yes.

You can't possibly then maintain the proposition that the structure plan is independent of the amendment, can you?---I'm simply saying the documents were independent of the amendment. I'm not saying the train of events were independent.

Did somebody tell you that it was all right to put in your statements documents that depended upon and reflected the reservation but not the amendment proposed in 1991?---The advice I was given was to disregard the amendment, which is what I did.

But you weren't advised to disregard such things as the 1987 corridor review and the 1991 Metroplan [sic] that preceded the amendment?---No.

[525]

374 As we have said, the trial judge excluded the evidence of the appellant's valuers for three reasons. The first was that they had adopted a position that was untenable, having regard to the trial judge's 'findings as to the development potential of the Mount Lawley land'. However, the trial judge's finding as to the development potential is undermined by his errors in freezing the planning considerations as at 1987 and wrongfully excluding the evidence of Messrs Goff, Auret, Singleton, Stokes and Smith. The second was that their position was untenable by virtue of the 'direction' given by the Full Court. It follows from what we have earlier said that this conclusion cannot stand. As we have said, the trial judge also found that the reports prepared by the appellant's valuers were inadmissible because they relied on the opinions only of Dr Davies, Dr Tingay, Mr Bowman and Mr Goff [656]. However, as was the case with Mr Goff's report, these reports were produced in June 2005, in accordance with directions given by the court, before the expert environmental, planning and valuation evidence relied on by the respondent had been produced to the appellant (also in accordance with the court's directions). In the circumstances, Messrs Zucal, Rae and Logan could not have referred to this other evidence in their reports. Nor was it necessary, in our respectful opinion, that they should have done so in order to make their own reports admissible. Any failure to have regard for relevant opinions of others was a matter going only to weight. Moreover, before their reports were tendered at the retrial, each of Messrs Zucal and Logan produced responsive statements (exhibits 3017 and 3013) as a consequence of their receipt of the respondent's valuation reports which, in Mr Wilson's case, contained a summary of all environmental and planning evidence and reports produced by that date (3 October 2005). Also, as we have said, Mr Goff, on whom the appellant's experts placed some reliance, also produced a responsive statement dated 29 November 2005 (exhibit 3015), in which he responded to reports and statements produced for the respondent by Messrs Auret, McNamara, Lumsden, Stokes, Singleton and Wilson. We have also mentioned that all three of the appellant's experts gave evidence, and were cross-examined, at the retrial.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (569 paragraphs)

Meetings of the Metropolitan Planning Council in November and December 1991 and approval of the amended plan

Mr Hatt's letter and the revised amendment

Evidence accepted by the trial judge concerning the suitability of the Mount Lawley land for development

Evidence given by Dr Davies, Dr Tingay, Mr Bowman and Mr Goff

The approach taken by the parties to the identification of steps in the Scheme

The appropriate approach to steps in the Scheme

The 1990 draft and final DPUD Statements

Metropolitan Planning Council meetings in November and December 1991

Mr Hatt's letter, the revised amendment and the Minister's Statement

The three stage approach suggested in Smith

Evidence of probable zoning absent the Scheme

Basis for the exclusion of evidence given by Messrs Goff, Auret, Singleton, Stokes and Smith

Exclusion of other evidence given by Mr Goff, Dr Tingay and Mr Bowman

The contention that the exclusion of the written evidence of Mr Goff and Dr Tingay had no consequence

The basis for exclusion of the appellant's valuation reports

Other bases advanced for the exclusion of the appellant's valuation evidence

Legislation Cited (5)

Cases Cited (15)

MOUNT LAWLEY PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASCA 226 (29 October 2007)