WA Planning Commission v Temwood Holdings Pty Ltd [2003] HCATrans 423 (23 October 2003)

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WA Planning Commission v Temwood Holdings Pty Ltd [2003] HCATrans 423 (23 October 2003)

Last Updated: 11 November 2003

[2003] HCATrans 423

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P60 of 2002

B e t w e e n -

WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

and

TEMWOOD HOLDINGS PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 2003, AT 2.35 PM

Copyright in the High Court of Australia

MR G.T.W. TANNIN, SC: May it please the Court, I appear with MS C.J. THATCHER, for the applicant. (instructed by the Crown Solicitor for the State of Western Australia)

MR D.H. SOLOMON: May it please the Court, I appear with MR J.C. GILES, for the respondent. (instructed by Messrs Solomon Brothers)

[OWING TO TECHNICAL PROBLEMS THE FIRST 12 MINUTES OF THESE PROCEEDINGS WERE NOT RECORDED]

MR SOLOMON: . . . paragraph 50 of the judgment at application book 85. If one goes back to Clissold v Perry, in the Chief Justice’s reasons, he first used that term at page 373 at about line 19 – this is where this “vested” comes from in Clissold v Perry:

it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest. When this land was resumed, Clissold was in possession, and that possession gave him certain definite rights.

Then he goes on at the passage I mentioned at page 376 to say that this was inconsistent.

The other side of the argument which the Full Court upheld is that even if all of that is wrong, this was plainly a material ulterior purpose not connected with planning. Because the land is reserved, it did not need to be taken in fee simple to achieve the object of having it reserved. It was already reserved. The purpose was merely to achieve a fiscal result for the State and the Full Court held that that was plainly not a valid planning purpose as well. So the case went off on three bases. Might I say that in the joint judgment in Lloyd v Robinson, Justice Olsson quoted from it at paragraph 57, which is from a passage at page 154. In talking about the type of conditions that can be imposed, the joint judgment in Lloyd v Robinson, the passage that Justice Olsson quotes, said:

If the Board has performed it statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists –

Lloyd v Robinson did not hold that one could impose conditions which were not for a valid planning purpose. We have a finding at all levels that this purpose was solely to deprive the applicant of the benefit of Part 5 of the Metropolitan Region Town Planing Scheme Act. There was no valid planning purpose.

There is argument suggested that this judgment was inconsistent with an earlier State Full Court judgment in Bond v Western Australian Planning Commission. That is not correct. That was a case which construed the same Act. At paragraph 32 in Bond the Full Court expressly adopted and applied Clissold v Perry in reaching a construction beneficial to the applicant. My time does not, I do not think, permit me to read all the passages. I can give your Honours the paragraph numbers if it is of any use in Bond, paragraphs 10, 28, 30, 32, 34, 37, 49 and 52, shows that the case is entirely consistent with this case. There is no inconsistency.

So really we have a question of construction of sections 3 and 36 of the Metropolitan Region Town Planning Scheme Act and section 20 which is plainly correct, paragraph 55 of the Full Court’s judgment, that is expressly overriding. The scope of Clissold v Perry principle is correct. The application of the principle to say one would construe the Act quite apart from the overriding provision in accordance with Clissold v Perry is correct. There was no proper planning purpose in a mere fiscal benefit from a condition. There is no inconsistency with the Full Court’s decision in Bond. There is no special importance.

GLEESON CJ: Thank you.

MR SOLOMON: Thank you, your Honour.

GLEESON CJ: Mr Tannin, could you state in summary form what you say is the principal issue of statutory construction that requires to be addressed?

MR TANNIN: Yes, the plethora of grounds disguise really that there is one critical point in this matter. In our submission, the principles enunciated in the reasoning of Lloyd v Robinson are effectively indistinguishable in this case. In Lloyd v Robinson this Court held that the power under section 20 of the Town Planning and Development Act could properly be used by the Crown in relation to land that was owned for the purposes of confiscation as a quid pro quo, in effect, in return for the right to subdivide.

There is no material difference that the land happens to be reserved under the Metropolitan Region Town Planning Scheme. The suggestion that there is conflict between sections 36 and section 20 of the Town
Planning and Development Act is just simply untenable. So, in our submission, the key point is the proper construction of the unlimited power in section 20 of the applicant to require the vesting of particular land in the Crown as a condition of the permission to subdivide.

GLEESON CJ: Thank you. Is there anything you want to say in reply, Mr Solomon?

MR SOLOMON: To that, your Honour, no, only to emphasise that Lloyd v Robinson was not decided at the time of the application of the second Act and that my learned friend’s submission that there is no inconsistency just simply cannot possibly be correct. May it please your Honours.

GLEESON CJ: In this matter there will be a grant of special leave to appeal.

MR SOLOMON: Your Honour, I did have an application for a special costs order, as the matter is really argued on the basis for the State as a matter of importance.

GLEESON CJ: What do you say about that, Mr Tannin? You want to bring this as a test case on a matter of general importance in relation to construction of legislation.

MR TANNIN: Yes. I have instructions to undertake to the Court that the applicant will pay the respondent’s costs of this appeal in any event.

GUMMOW J: Reasonable costs?

MR TANNIN: Reasonable costs, to be taxed.

GLEESON CJ: And what about the disturbance of the costs orders made below?

MR TANNIN: The only point I would make about that is that this was a matter where there was a contest before the Town Planning Appeal Tribunal. The matter then went to a single judge of the Supreme Court.

GLEESON CJ: We will note that special leave to appeal is granted on condition that the applicant will agree to pay the respondent’s reasonable costs of the appeal in any event and will not seek to disturb the costs order made in the court below.

AT 3.00 PM THE MATTER WAS CONCLUDED