High Court rules against WAPC - Western Australian Planning Commission v Board of Valuers & Prestage

The High Court recently dismissed an application by the Western Australian Planning Commission (WAPC) for special leave to appeal against a decision of the Court of Appeal (in Western Australian Planning Commission v The Board of Valuers2 dated 21 August 2018) rejecting the WAPC’s challenge to the valuation made by the Government – appointed Board of Valuers (Board) of land reserved for Parks and Recreation (Conservation) purposes under the Metropolitan Region Scheme (MRS) in Southern River.  Lavan acted for the executors of the estate of the former owner who had applied to the Board for a determination of the ‘Unaffected’ value of the land for compensation purposes.

The High Court decision brings to a close the lengthy legal proceedings initially brought in the Supreme Court by the WAPC to overturn the Board’s valuation, arguing that the Board had failed to accord ‘procedural fairness’ to the WAPC to give the WAPC the opportunity to make submissions on the matter.  The WAPC challenge was rejected in the first instance by His Honour, Justice Beech in Western Australian Planning Commission v The Board of Valuers3 delivered 13 October 2016, and the appeal against that decision was dismissed by a majority decision of the Court of Appeal delivered on 21 August 2018.

Background

The Board had determined, in September 2015 after hearing expert environmental, planning and valuation evidence from the former owner’s representatives, and considering a valuation report from the Board’s reporting member, that the land had urban potential (if the land had not been reserved for a public purpose) and determined that the ‘Unaffected ‘ value of the land to be $6.235M.

The owner (Mrs Prestage) had relied upon the expert evidence that had been obtained in earlier contentious SAT proceedings which had involved the WAPC arising from a claim for compensation made in 2013 against the WAPC by Mrs Prestage and her husband.  The SAT proceedings were discontinued in 2015 after Mr Prestage passed away and the application for compensation was withdrawn by Mrs Prestage who was in ill-health.

Later in 2015 Mrs Prestage gave the WAPC notice of her intention to sell the land and on the same form made a request to the Board for a valuation of the ‘Unaffected’ value of the land. The Board’s secretary notified the Department of Planning and WAPC of that request.  Notwithstanding that, neither the Department nor the WAPC took any steps to intervene and be heard before the Board. Under the Planning and Development Act 2005 (PD Act) the Board’s determination is ‘final’.

Reasoning of Beech J at first instance

The WAPC sought in an application for judicial review to quash the Board’s determination on five grounds including that the Board had failed to accord ‘procedural fairness’ to the WAPC.  The Board took no active part in the proceedings, and Mrs Prestage, as the other party undertook to defend the Board’s determination.  In his decision Justice Beech dismissed all grounds and held that the WAPC ought to have known that the Board was likely to hear the expert evidence prepared for Mrs Prestage and that it was open for the WAPC to advise the Board that it wished to make a submission.

Reasoning of the Court of Appeal

The WAPC appealed on the first two grounds it had argued before Beech J.  In a majority decision Murphy J (with whom the Hon Chief Justice Wayne Martin agreed) dismissed the appeal and observed that the proper inference was that both the Board and WAPC assumed and understood that if the WAPC wished to inform the Board that it would do so, and that the Board had no further duty or obligation of procedural fairness to the WAPC in the circumstances.

Special leave application to the High Court

Despite the dismissal of the challenges to the Board’s determination, the WAPC made an application to the High Court for special leave to appeal the decision of the Court of Appeal, arguing that the majority of the Court of Appeal had erred in construing the nature of the duty of procedural fairness.  On 13 February 2019 the High Court refused the application, noting that its decision turned on the application of ‘settled principles of procedural fairness’.

Lavan Comment

This case confirms that the Board acted in a manner consistent with their obligations under the PD Act.

This case also gives rise to the question of the merits of legal proceedings being lead by the Government’s principal planning authority challenging the Government’s own appointed Board of Valuers (whose determination is ‘final’) at great expense to public funds and to the owner of land (who was not responsible for the Board’s decision), where at every step the WAPC challenge has been rejected by the Courts.

The Court proceedings have unfortunately delayed and frustrated steps that would otherwise have been open for Mrs Prestage to resolve issues of compensation for the land.  Mrs Prestage had passed away during the Supreme Court proceedings and it is now for her next of kin to resolve these issues in circumstances that it could have been avoided.

If you have any queries in relation to claims for compensation arising from injurious affection under the PD Act, please contact the Lavan Land Compensation team.