Mandurah Enterprises Pty LTd & Ors v Western Australian Planning Commission [2009] HCATrans 268 (12 October 2009)

Last Updated: 16 October 2009

[2009] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P15 of 2009

B e t w e e n -

MANDURAH ENTERPRISES PTY LTD

First Appellant

NEIL ROBERT GRAHAM AND VALMAI EVELYN GRAHAM

Second Appellants

and

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 12 OCTOBER 2009, AT 10.15 AM

Copyright in the High Court of Australia

MR R.I. VINER, QC: May it please the Court, I appear with my learned friend, MS L.E. ROWLEY, for the appellant. (instructed by Deacons Lawyers)

MR R.M. MITCHELL, SC: May it please the Court, I appear with my learned friend, MR C.S. BYDDER, for the respondent. (instructed by State Solicitor for Western Australia)

FRENCH CJ: Yes, Mr Viner.

MR VINER: If the Court pleases, there are four questions which arise for determination in this matter and if I may enumerate them. Firstly, by what power was the taking order made? Secondly, was the taking of the whole of lots 7, 8 and 30 valid? Thirdly, was the taking of the zoned parts of lot 7 and 8, that is, those parts zoned for private usage, for the purpose of avoiding the statutory duty to construct a level crossing required by section 102 of the Public Works Act valid? Fourthly, if the taking of the zoned portions of lots 7, 8 and 30 was invalid, could those parts be severed from the reserved parts of those lots, and the taking of the balance, that is, the reserved parts of lots 7, 8 and 30, and also the taking of the whole of lot 49, valid?

So the appeal concerns the application of a number of pieces of legislation which are conveniently referred to in the submissions and in the court below as the Commission Act, which is the Western Australian Planning Commission Act 1985, by which the respondent is constituted, the Planning Act, being the Town Planning and Development Act 1928, which gives to the respondent power to acquire land for the purposes of a town planning scheme, the Land Act, which is the Land Administration Act, which provides for the taking of land for public works and the Public Works Act to which I have also referred. It also concerns the provisions of the Peel Region Planning Scheme by which land within the region is designated by zonings for private usage and also designates land which is reserved for public purposes.

In the present case the particular reservations were of land, which included those lots of the appellants’, for a primary regional road. It also contained reservations which did not include the appellants’ land for the purposes of railways. In the particular case that we have here is that on those parts of the appellants’ land which were reserved for the purposes of a primary regional road, it was the intention to construct a section of the Perth to Mandurah railway within that reservation.

It is much like the practical situation that the Court will see out of this building where the Perth to Mandurah railway coming into Perth is located within part of the Kwinana Freeway. So that in Mandurah when the rail line was extended to Mandurah, so far as the appellants’ land was concerned, the intention was to construct the railway within the reservation made for a primary regional road. As the factual situation was at the time of the resumption, whilst it was intended to construct the primary regional road, construction had not commenced. It has since then commenced.

So one can see the scheme by which land was to be reserved separately for a primary regional road, and in some parts within the scheme for a railway, but so far as the appellants in particular are concerned, the railway was to be located within the land reserved for a primary regional road. Now, as I have said, under the Commission Act the respondent is constituted by section 37F in particular but nothing turns on that.

FRENCH CJ: It is a responsible authority for the purpose of the Town Planning and Development Act.

MR VINER: That is right, your Honour. So that the particularly relevant part that we are concerned in this appeal is section 13(1) of the Planning Act. Your Honours will find that in the book of relevant statutory provisions provided by the respondent, which is at page 109. I am sorry, that is the current Act. The power is given to the respondent as a responsible authority to acquire land:

for the purpose of a town planning scheme, in the name and on behalf of such responsible authority –

and it may acquire that land –

with the consent of the Governor, take compulsorily, under and subject to Part 9 of the Land Administration Act 1997 . . . any land comprised in such scheme, and whether situate within or without the boundaries of the district –

but, secondly –

When any land is taken compulsorily under the powers conferred by this section the provisions of

(a) sections 170 to 175 inclusive; and

(b) section 184,

of the Land Administration Act 1997 shall not apply - - -

FRENCH CJ: That just gets you out of the notice of intention requirement.

MR VINER: Yes, and that is the effect of deleting that section 170, that is, that it is not applicable when an acquisition is made by the respondent under the Town Planning Act. Now, section 177, the actual taking order is made by the Minister administering that Act. Pertinently, but we say it really has no relevance in this case by section 177(2), land may be taken for a railway which is authorised by a special Act. In this particular case the Railway (Northern and Southern Urban Extensions) Act 1999 authorised the construction of what was described by that Act as the Jandakot Rockingham Mandurah railway.

Now, again in practical terms, putting the situation physically as it were, that authority was for the extension of an existing metropolitan railway line from Jandakot, which is south of Perth, to Mandurah, which is further south of Perth, whereas the actual Perth to Mandurah railway, as I have indicated, by a change of government decision, was to be located within the Kwinana Freeway and then travel from Jandakot to Mandurah rather than simply from Jandakot to Mandurah as an extension of an existing metropolitan railway.

The effect of the authorisation of the construction of a railway under a special Act is that a notice of intention to take for the purposes of the railway is not required, in other words, if it has the same effect as your Honour the Chief Justice observed that by taking land under section 13 of the Planning Act, the respondent as a responsible authority in respect of the Peel Region Scheme was not required to give a notice of intention to take. Historically, as pointed out in the written submissions, that was brought about by an early amendment of the Town Planning Act some decades ago in recognition of the fact that when a town planning scheme is developed, opportunities - - -

FRENCH CJ: There is already a consultation process, yes.

MR VINER: Yes, opportunities provided to landowners to be consulted, make objections and then the scheme is finalised. In fact, in this case objection was raised by the appellants in regard to lots 7 and 8 for the inclusion of the whole of those lots in the Peel Region Scheme for the purpose of an education campus. That objection was upheld so that the parts of lots 7 and 8 not reserved under the scheme for a primary regional road were zoned for private usage, for residential and urban purposes.

Now, the Public Works Act 1902 by section 102, which historically has been there for many, many decades, requires the construction of a level crossing where access to private land is cut off by the construction of a railway. So we had the practical situation in this particular case where the effect of the construction of the railway on the reserved parts of the appellants’ lands, being lots 7 and 8, would cut off access to the balance of those lands zoned for residential and industrial usage.

FRENCH CJ: Well, it was the avoidance of this duty that was used to justify and supported in the Court of Appeal the taking of the zoned portions of 7 and 8.

MR VINER: That is right. Exactly, your Honour. It is our contention that the power to acquire land under the town planning scheme by virtue of section 13(1) of the Planning Act did not extend to the compulsory acquisition of the zoned parts of lots 7 and 8 for the express purpose of avoiding the application of section 102.

GUMMOW J: What is the construction of section 102, Mr Viner? It said:

the Public Transport Authority shall make such crossing –

How is that enforced? Is it a duty of imperfect obligation? What happens if the Minister drags his feet or the Transport Authority drags its feet?

MR VINER: I would expect that it is an enforceable obligation whether by some action akin to a mandatory injunction or the like by a landowner whose private land has been denied access. The construction of 102, on its face, is a clear statutory obligation on the part of the appropriate authority – and in this case it would be the Public Transport Authority – to make a crossing so as to provide access to private land and it is not an obligation that can be avoided; it is there.

CRENNAN J: Is it expected that in some way a crossing would be built if you were to succeed?

MR VINER: Yes, and as I think it was Justice McLure indicated, that could be an above ground or a below ground, that is, by way of an underpass to provide access to the private land, but in the ordinary sense, a crossing which we commonly see in the metropolitan Perth and, I have no doubt, in other cities and towns. So it is not a complicated piece of construction. It is something that is well known.

BELL J: It would be necessary to construct two crossings to access both lots 8 and7. Is that the way it is to be understood?

MR VINER: In practical terms it may not be necessary to construct two crossings but at least one crossing would be required. There was quite some discussion and some evidence that your Honours might have observed in reading the papers concerning a street called Exchequer Street and Exchequer Street, or Road, is within the existing educational campus and does, in fact, give ready access to lots 7 and 8 because it is a well-made bituminised road.

CRENNAN J: It is not a public road, is that the problem? It is not a public road?

MR VINER: That was the point that the State was taking, though, saying, well, it is not a public road even though the public drives on it all the time. It is only a private road and, therefore, because it could be regarded as providing access to lots 7 and 8, it would have to be designated a public road. Now, that is somewhat ironic given the State’s position that they were entitled, in exercise of the power of resumption, to avoid the requirement for a level crossing by taking the whole of the appellants’ land.

GUMMOW J: Now that throws up Justice Bell’s question in the way it throws up a question about section 102. When it talks about “access by road to land” that is to be read as a parcel of land in distinct ownership, is it?

MR VINER: I would think so, your Honour.

GUMMOW J: Assume 7 and 8 were in the same ownership, or were not in the same ownership, would a different result follow as to the obligation under 102?

MR VINER: The owner of each of those lots could enforce the obligation under section 102 to ensure that they had access to the land which is denied by the construction of the railway, which is distinct from the practical situation as to whether construction of one crossing could give access to both lots. On the face of section 102, the owner of each lot could call for the performance of the duty under section 102. Now, in terms of the location of the lots, your Honours might conveniently look at the location map which is at page 92 of the appeal book. It is also an annexure to the State’s submissions which, certainly so far as lot 49 is concerned, clearly depicts the location of the lots.

In looking at each of those lots in turn, one can see that of lot 7 only a very small part of lot 7 is reserved for the primary regional road. Indeed, as noted in the appellants’ chronology, that represents only 3.8 per cent of the whole of the reservation, in other words, 835 square metres out of 2.174 hectares is part of the reservation, but the resumption, of course, is of the whole of lot 7. So that is very clearly a serious adverse impact upon the ownership of lot 7.

Now, in terms of lot 8, a larger part of lot 8 is reserved, but it is less than the part of lot 8 which was zoned for private usage. So, again, the owner of lot 8 is seriously and adversely affected by the taking of the whole. Then as to lot 30, whilst 52 per cent of the whole was reserved, the balance is nevertheless a significant part that originally was intended to be taken and the taking of the zone part of lot 30 was held by the court below as invalid. So there is a very serious impact upon the appellants by the taking of the whole of lots 7 and 8. Now, Lot 49, as shown in the respondent’s location map, is wholly within the reservation for a primary regional road.

FRENCH CJ: I take it there is no survey plan in existence in relation to 7, 8 and 30 to provide a precise demarcation between the zoned and reserved portions? That is part of the so-called severance argument, is it not?

MR VINER: That is right. That was found and accepted by the Court of Appeal, but in the outcome, so far as lot 30 is concerned, the court upheld the invalidity of taking the zoned part of lot 30 and since then, by agreement between the parties, that part has been returned to ownership of the appellants. So far as lots 7 and 8 are concerned, as the court found, there is no survey to precisely define and divide and separate the reserved part of each of those lots from the zoned parts. Hence, her Honour Justice McLure’s decision that there could be severance so far as lot 30 was concerned but subject to a proper survey being carried out. As I say, since that decision, by agreement between the parties, the zoned part of lot 30 has been returned to the appellants.

FRENCH CJ: How has that happened? Has that been some form of subdivision?

MR VINER: Yes. It has been effected by agreement of the parties.

CRENNAN J: Was there a fresh resumption in relation to that portion which is used for the railway?

MR VINER: No. That is with regard to lot 30 because so far as lot 30 was concerned, it was accepted by the respondent that the zoned part of lot 30 was included in the taking order by mistake and acknowledging that mistake, whilst in the trial at first instance the State sought to preserve the resumption of the whole of lot 30, that was lost upon appeal and the result of that is, as I say, by agreement between the parties, the zoned part of lot 30 had been returned to the appellants.

FRENCH CJ: That is one of the orders that you are seeking in your notice of appeal at 346 of the appeal book:

there be a declaration that the taking of Lots 7, 8, 30 and 49 is invalid and of no effect.

Now, what relief are you claiming now in respect of lot 30?

MR VINER: That the taking of the reserved part of lot 30 is invalid because it is our contention that the invalidity in respect to the taking of the zoned parts of lots 7, 8 and 30 tainted the whole of the taking of those lots.

FRENCH CJ: Yes, but you are not maintaining that assertion now in respect of 30, are you?

MR VINER: We are, yes, because we say that it was an invalid taking when it was taken and therefore there should be a new and valid resumption in respect of lot 30, that is the reserved parts of lot 30, as well as the reserved parts of lots 7 and 8. We go so far as to say that the resumption of lot 49 was invalid because the invalidity in respect of lots 7, 8 and 30 tainted the whole of the taking.

FRENCH CJ: Does that have a consequence for every other lot that was mentioned in the taking order?

MR VINER: We say, no, because our response to that is that – and this is one aspect of the decision in Estates Development – one looks at the taking in respect of particular individuals and particular lots. So that a finding of invalidity as we are seeking does not effect the invalidity of the taking order in respect to other lands.

BELL J: On that view, how does the admitted or conceded invalidity, if that be the right way of characterising it, in relation to lot 30 bear on lot 49 which is in different ownership, if that last submission is correct?

MR VINER: Because, as developed in our written submissions, the taking of all of these lots, 7, 8, 30 and 49, was effectively the taking under a scheme to provide land for a primary regional road in that location and, therefore, as we have developed in the written submissions and on the authority of Thompson v Randwick City Council, the taking of all the lots is invalid and the State should start again.

BELL J: I am sorry, I think I may have misunderstood you. I thought in answer to the Chief Justice you were saying it was no part of your submission that all the lots in the taking order were affected by invalidity, only those that were in common ownership.

MR VINER: No, perhaps if I can explain that, your Honour. It would be as well to explain it by looking at the actual taking order which is at page 126 and following in the appeal book, but if I can take your Honour to pages 127 to 130, you will see that the taking order applies to a number of parcels of land in a variety of ownership by other persons. Some of that land is taken for the purpose of railways. Some of it is taken for regional open space. Some of it is taken for primary regional road, some for roads and some for other public purposes. So his Honour the Chief Justice in directing that question to me was really putting to me, well, if the takings in regard to the appellants’ land are invalid, as we submit, does that invalidate the whole taking order in respect of everybody’s land?

BELL J: Yes.

MR VINER: My answer to that was no, because in point of law as Estates Development says, you look at the individual parcels of land which are taken. Hence, our view is that a declaration of invalidity can be made in respect of the appellants’ land without touching the validity of the taking of other persons’ land.

FRENCH CJ: Incidentally, I think it is a little easier to read the version of the taking order which appears at page 122 through to page 126. Your clients’ lots are referred to at line 25 on 126.

MR VINER: Yes. I think in the photocopying of some of the documents they did not come out too well, if I can put it that way.

FRENCH CJ: Maybe I am reading the wrong numbers. I am sorry.

MR VINER: The appropriate number is the one in the middle of the page.

FRENCH CJ: Yes, 129 and 130. Thank you.

MR VINER: Addressing Justice Bell again, at page 129, your Honour, you will see the commencement of the taking of the lots to which I have been referring.

BELL J: Just to be absolutely clear, the reserved portion of lot 30 was reconveyed.

MR VINER: Yes. No, I am sorry. The zoned - - -

BELL J: Sorry, the zoned portion of it. You are not really complaining about the reserved portions, are you? You are complaining about the zoned portions.

MR VINER: Yes, we are complaining about the taking of the zoned portions, but our contention is that because the zoned portions were invalidly taken one cannot sever those portions from the reserved portions.

BELL J: So the whole of the order is invalid.

MR VINER: Exactly. So the invalidity invalidates the actual taking of the whole.

BELL J: But in any event as part of settling between the parties the zoned portion of lot 30 has been reconveyed.

MR VINER: That is right, yes. It was done without prejudice to this appeal and the contentions that we have run right from the beginning that the taking order directed to taking the whole was invalid.

BELL J: And there was no fresh resumption order in relation to the reserved portion - - -

MR VINER: No.

BELL J: Over which the railway is now built.

MR VINER: That is right. Our contention is that there should be a declaration of invalidity that nullifies the taking order in regard to each of the appellants’ lots and there should be a fresh valid taking order of only the reserved parts of each lot and of lot 49. I think that in a nutshell is the outcome that we have sought consistently from the trial.

Now, if I may just resume taking the Court through some of the factual situation, the text of the scheme is in the appeal book and I direct the Court to page 58. Part 3 of the scheme deals with reserves and the purposes for which land may be reserved. The Court will see at 10(b) a reservation can be made for primary regional roads, by subparagraph (d) for railways and in Part 4 on page 59 the text deals with the zoning of land in the usual form as between urban and industrial. The other relevant part is clause 19 on page 63 and particularly clause 19(e)(iii) at page 64, by which the Court will see that:

works on land reserved for Railways, or for Primary Regional Roads or Other Regional Roads, for the purpose of or in connection with a railway, but this does not include the construction or alteration of a railway station -

and so on. Now, that clause permits development on reserved land, as its heading indicates and the opening words indicate:

The following development on reserved land does not require the planning approval of the Commission –

Hence, again in the situation that we have where land is reserved for a primary regional road but not reserved for a railway, that land may be developed for a railway – that is a railway may be constructed within it – without planning approval being required by the Commission. So one can see the practical intention of the taking of the appellants’ land, reserved as it was for a primary regional road but not for a railway, as the Court of Appeal found, nevertheless allowed for the construction of a section of the railway within the land reserved for a primary regional road.

Clause 19 is not a source of power to resume land. It is simply giving a power to develop for a railway on land reserved for a railway or a primary regional road. That becomes apparent from the factual background here, which is of obvious importance. If I may take the Court to the affidavit of Mr Hillyard, who was the officer concerned with recommending the acquisition and bringing it into effect, his affidavit is to be found at page 22 of the appeal book. I take the Court in particular to page 25, paragraphs 10 and 11, where Mr Hillyard explains what he did and what he intended to do. He prepared a report for the appropriate committee for the resumption of the whole of the plaintiff’s land.

I recommended that the whole of Lots 7 and 8 be resumed because the taking of the Primary Regional Road reserve and the subsequent construction of the railway and highway was to involve the closure of part of Thornborough Road.

If that road had not been closed it would have provided access to lots 7 and 8 as well as to lot 30. As Mr Hillyard goes on to say:

This would have left the balance of Lots 7 and 8 without any public road access, as it is otherwise cut [off] from provision of any alternative access by the Peel TAFE campus to the east. I believed it was not consistent with the proper operation and administration of the region scheme to leave land without access as a consequence of the taking process.

That is a presumption on his part, rather than an effective statement of law. He goes on to say:

It is apparent that the access constraints were not properly addressed in making the decision to change the classification in the draft scheme in order to zone the balance of Lots 7 & 8 Urban in the Peel Region Scheme as finally approved, and accommodate the plaintiffs.

Your Honours will recall that I mentioned briefly earlier that the appellants had objected to the whole of lots 7 and 8 being included; that is, apart from the part which was reserved for the primary regional road, in a reservation for the Peel campus. That objection was upheld by the Minister and he granted a zoning status to the unreserved parts of lots 7 and 8. So that was Mr Hillyard’s reasoning. On the face of it, obviously that is fallacious reasoning, in my respectful submission. He had no authority to subvert by a resumption of land the town planning scheme which had been approved by Parliament and gone through the whole consultation process. Now, in paragraph 11 Mr Hillyard said:

The recommendation to take the whole of Lot 30 rather than the reserved portion alone resulted from an oversight on my part in the context of the urgency to complete the taking –

because the Government wanted to get on with building the railway –

I acknowledged that this was not correct. The whole of Lot 49 was proposed to be reserved for “Primary Regional Road” under the Peel Region Scheme.

Now I will just go on to paragraph 12, which reports that the committee accepted the recommendation subject to conditions, which I will take the Court to, and on 20 March 2003, the scheme came into force. The relevance of that is that at the time when the executive committee decided to resume the land, the scheme was not in force and one of the conditions was that the resumption would be made only when the scheme came into force, which it did a couple of days later. One can see that followed through in the annexures to Mr Hillyard’s affidavit, firstly at pages 96 and 97 which sets out the history, but in paragraph 4 at the bottom of page 96 is the statement at the end:

It is further proposed to take several severed portions of land which would otherwise become landlocked as a result of the construction of the railway or require the installation of level crossings, which is not favoured by the WAGRC.

That is the Western Australian Government Railways Commission. So it was not a decision by the resuming authority, the Commission, to avoid the statutory duty imposed by section 102 of the Public Works Act. It was simply that the operating entity, the WAGRC, did not favour the installation of a level crossing. And then in paragraph 5:

As part of this action it is proposed to take seven whole properties due to their location, the impact of reservations and issues concerning severance and access across the proposed railway.

Then the point that I had made a moment ago appears in paragraph 9:

the Commission is unable to compulsorily take lands within the Peel Region Scheme until it has passed both Houses of Parliament and has effect.

FRENCH CJ: Now the committee was acting under a delegated power from the Commission, but the taking order itself could not be made except by – was it by the Minister or the Governor on the advice of the Minister?

MR VINER: By the Minister after obtaining the consent of the Governor pursuant to section 13 - - -

FRENCH CJ: The consent of the Governor?

MR VINER: Yes, the consent of the Governor, pursuant of section 13(2) of the Planning Act.

GUMMOW J: Where do we see 13(2)?

HAYNE J: Is that at page 246 in the bundle, or am I looking at a version that I should not?

MR VINER: That is right, page 246 of the bundle. I am sorry, it is actually section 13(1)(b):

The responsible authority –

that is the Commission –

may, for the purpose of a town planning scheme, in the name and on behalf of such authority –

. . .

(b) with the consent of the Governor, take - - -

HAYNE J: Can I just interrupt you and see if I understand where we have got to thus far in the argument because there is a great risk I am not following. As I understand it, the taking is made under section 13?

MR VINER: That is our submission, your Honour.

HAYNE J: You say that the power to take is limited to for the purpose of a town planning scheme?

MR VINER: Yes.

HAYNE J: You say that what may be taken is relevantly the road or railway zone plan, not otherwise, is that right?

MR VINER: That is right.

HAYNE J: And in understanding what is meant by the word “land” when used in section 13, is it relevant to have regard to what appears in section 2 of the Act at page 207 where you have a definition of “land” and a separate and distinct definition of “lot”? Page 207, section 2, interpretation provision “land” is defined one way and then “lot” is defined differently as “a defined portion of land”, et cetera, depicted in various ways. Is that of any significance to the present argument?

MR VINER: We would submit not, your Honour, that the intention was to take the defined lot - - -

HAYNE J: That is what was done, but is the power to take a power to take that is affected by whatever may be the state of subdivision or state of ownership, et cetera, as recorded in the titles office? It seemed to me that what can be taken on your argument is that part of land, the surface of the earth, that falls within the pretty pictures that we always see in planning schemes regardless of what happens to be a lot on a plan of subdivision or an area of land in a certificate of title, or the like. Is that right?

MR VINER: Yes. Resumption of part of a lot is permitted by section 13, but, of course, the effect of that is that in the resumption of part of a lot it must be defined.

HAYNE J: Yes, I understand that.

MR VINER: As developed in the written reply of the appellants, the normal situation is that you will have that defined by scale drawings or, in the old terms, by metes and bounds, so that one would know precisely the land which is being resumed, particularly when it is only part of a lot which is the subject of the Land Act and certificate of title. So in that sense, understanding your Honour’s question, yes, the power to take land under section 13 is a power to take part of a lot. But in order to do that, it must be precisely defined and that is something that I will address later with regard to the question of severance.

The point I make with regard to the decision of executive committee is that it is clear that the intention was to exercise the power given to the Commission by section 13 of the Planning Act and to take land which the Commission could take for the purpose of that scheme being land, in the appellants’ case, reserved for a primary regional road, there being no part of the appellants’ land reserved for a railway. Now, the respondent argues that the taking was either substantively or alternatively a taking under section 161 of the Land Administration Act and, in our submission, very clearly, on the evidence, that is not so. The intention was that the Commission exercise its power as a responsible authority for the purposes of the town planning scheme.

Now, one can see that worked through, without taking the Court to all of those documents, at page 107. Then it is interesting to note at page 112 of the appeal book, the acceptance by the Western Australian Government Railways Commission of the condition upon which the Commission was to take the land to enable the WAGRC to then construct a section of the railway within the land reserved for a primary regional road. One can see at lines 46 and 47 on page 112 the expressed reference to the condition that the Peel Region Scheme had to be endorsed by Parliament and by this date, 25 March, that had occurred.

FRENCH CJ: When you speak of endorsement by Parliament, is that a disallowable instrument? How does that work?

MR VINER: As I recall, it expressly requires the passing of the scheme by both houses of Parliament.

FRENCH CJ: I see.

MR VINER: So it is not so much a disallowable instrument, but it requires the positive action - - -

FRENCH CJ: There is a positive action, yes.

MR VINER: Yes, the positive action. My learned friend has corrected me, that it is presented to Parliament and if not disallowed by either house, then it is passed. Then in the sequence of events one moves to the actual taking order that I have taken the Court to which is at page 126.

GUMMOW J: Can you just go back to section 13 of the Town Planning Act, Mr Viner, which appeared at page 236. That is the source of the power that was exercised, is it not?

MR VINER: That is our submission, your Honour.

GUMMOW J: In terms of public law, this was an exercise of the power for improper purpose, extraneous purpose?

MR VINER: We say that, yes, the exercise of the power by seeking to take the whole of lots 7, 8 and 30 was in excess of power. We also say that the taking of the zoned parts of lots 7, 8 and 30, particularly of lots 7 and 8, for the express purpose of avoiding section 102 of the Public Works Act was in improper purpose.

FRENCH CJ: The primary position is it is an original road, not a railway on the scheme, is that right?

MR VINER: That is right, yes.

FRENCH CJ: Therefore it is not for the purpose of the town planning scheme?

MR VINER: That is right. Our secondary argument is that even if it is looked at as a taking under section 161 for a public work, namely, a railway, taking for the purpose of avoiding a crossing is not to use the zoned parts of lots 7 and 8 for a required purpose, namely, it is not required for a railway.

FRENCH CJ: There was no reference to this question of the section 102 duty in the minute from Mr Hillyard to the executive committee, was there?

MR VINER: Not expressly in terms of section 102 but in its generality.

FRENCH CJ: It almost sounded as though he was doing a favour to the landowners. We are not going to leave this land with out access, so it is better to take it.

MR VINER: If I can put it this way, in a funny kind of way, that may have been his reasoning, but it was a wrong process of reason.

FRENCH CJ: When did section 102 emerge?

MR VINER: At the trial and, in particular, once Mr Hillyard’s affidavit and the other documents appeared as a result of his affidavit and discovery, it became apparent that the reason for taking the whole of the land, that is, the whole of those lots, was to avoid section 102. Now, as the Court no doubt has seen, that whilst the majority upheld the taking of the zoned parts of lots 7 and 8, Justices McLure and Buss, his Honour Acting Justice Murray dissented and held that the taking of the zoned parts for the express purpose of avoiding section 102 was in improper purpose.

FRENCH CJ: I think Justice Murray was an acting judge of appeal, was he not?

MR VINER: That is right, yes, he dared to dissent from his brother and sister judges on appeal.

CRENNAN J: I think the reasoning is that that taking could not be a taking for railway purposes.

MR VINER: That is right, yes, and whilst Acting Justice Murray accepted, that is, agreed with their Honours Justices McLure and Buss that there could be a taking under section 161 of the Land Act of the zoned portions for the purpose of a railway, taking that land for the express purpose of avoiding section 102 was an improper taking. It is our submission that against that background, as I have indicated, that the substantive and the exclusive substantive part of the Commission to take the appellants’ land is to be found in section 13 of the Planning Act, that the Commission had no power to take the land under section 161 of the Land Administration Act.

That section is part of Part 9 of the Land Administration Act which is to be found at page 45 of the book of statutory provisions. Your Honours will recall that the effect of section 13 is that upon a resumption under section 13, Part 9 of the Land Administration Act applies to the resumption except for those provisions referred to, sections 170 to 175 and 184. In terms of section 161, its provision is that:

Whenever the Crown, the Governor, the Government, any Minister of the Crown, any State instrumentality –

which the Commission is –

or any local government is authorised, by this Act, the Public Works Act 1902 or any other Act, to undertake, construct or provide any public work, and the use of any land or any interest in land is required for the purpose of the work, then –

any interest in land may be taken by the Crown. Then the operative part for the making of the taking order is section 177. In between 161 and 177 one has those provisions 170 to 175 which in other circumstances, that is, the taking of land other than under section 13 of the Planning Act, would require a notice of intention to take and that would then trigger the opportunity for the landowner to object to the taking and so those provisions up to 175 deal with that circumstance.

FRENCH CJ: Section 177(1) seems to assume the application of the preceding sections requiring the giving of a notice of intention.

MR VINER: Yes.

FRENCH CJ: But I presume that is to be read out by application of section 13(2) which says that the “Act shall be read and construed as if the provisions”, that is, 170 to 175, “were deleted”.

MR VINER: That is right, and that is our submission.

FRENCH CJ: That is how it works, in your submission?

MR VINER: In our submission, that is how it works and that is in accord with the way in which the Court in Estates Development read a similar provision in the State Housing Act, which was the subject of that decision. If I might just adumbrate that shortly, under the State Housing Act, the subject of Estate Development decision, the State Housing Commission could resume land for housing purposes. There is a similar provision that in exercising that power the provisions of the then Public Works Act for the taking of land applied mutatis mutandis by way of adaptation. In our submission, the exercise of the power under section 13, having regard to subsection (2), operates in exactly the same way.

The respondent’s submissions argue that section 177 is modified implicitly by the effect of section 13(2). In our submission, it is not implicitly, it is express that no notice of intention to take is required because if all the statutory procedures have been followed in the making of the regional scheme so a notice of intention is not required, hence, sections 170 to 175 are deleted, therefore, the requirement of 177(1)(a) is inapplicable to a taking of land in exercise of the power under section 13 of the Planning Act. Hence, as we say, and as the evidence that I have taken the Court to clearly disposes, the substantive power and the exclusive substantive power exercisable by the respondent is the power under section 13 of the Planning Act.

GUMMOW J: So when we come to questions of severance and reading down we are really talking about severing or reading down the taking order, are we not? That is the operative instrument, is it not, sections 178 and 179?

MR VINER: That would be right. That is the operative instrument and we say as an operative instrument, in the circumstances, you cannot read it down by severance so as to conclude that the intention was to take only the reserved portions of the land which could be validly taken. Our submission is in two respects; one, that one cannot sever the taking order in respect of each particular lot, 7, 8 and 30, so as to read that taking down to only the reserved portions. We also submit that the taking order, insofar as it applies to the parcels of the appellants’ lands, 7, 8, 30 and 49, cannot be severed because on the authority of Thompson v Randwick City Council, as distinct from Estates Development, the taking order is to be looked at as a scheme so that if it is bad as to some, then it is bad as to all of the purported taking.

FRENCH CJ: The taking order itself purports to be done under section 177.

MR VINER: Yes, that is right. It refers to section 177 but in the circumstances in which - - -

FRENCH CJ: It says, compulsorily taken under section 177.

MR VINER: Because that is the legislative provision by which the taking order is initiated as distinct from the power to make a taking. In other words, it is a mechanical provision in the same way as it was in the Estates Development Case, but it is not in itself a source of power, one must find the power in some other legislation.

HAYNE J: Sections 177, 179, other provisions in this part of the Act, refer to registration of various instruments. Where do I find the legislative provisions that deal with what is registration and what is involved in registration?

MR VINER: You really, I think, your Honour, find it in 179, the “Effect registration of a taking order”. It becomes effective upon registration at the titles office, if I could refer to it as such, and upon its registration there will be an entry changing the ownership from the original owner to the State of Western Australia.

HAYNE J: I understand that. I would be glad, not immediately but at some point, if either your side or both parties together could point me to the provisions either in this Act or in the Torrens Act that provide for registration. Can I identify more carefully the purpose of the inquiry. Section 179 says:

On the registration of a taking order in relation to land –

(a) the order has effect according to its terms –

Once that might be thought to present questions about, well, is a taking order a valid taking order? Does that suggest it is all or nothing? Does that suggest that notions of severance are foreign? It is an expression that may also be thought to suggest issues of a kind which I see at least one side in this litigation says are not raised, “Whatever you do, don’t go there”, about questions of indefeasibility. It is not immediately apparent to me that we can understand the arguments on both sides without having a better grasp of what exactly section 179 does and we cannot understand what 179 does unless we understand where it fits into a rather larger legislative scheme.

FRENCH CJ: I notice that in section 3 “registered” is defined to mean “registered under Part IIIB of the TLA”. Are they general provisions or are they specific provisions in relation to registration of orders of this kind?

MR VINER: I cannot answer that specific question at the moment, your Honour, but I was going to respond to his Honour Justice Hayne by referring to the Transfer of Land Act but we - - -

HAYNE J: There are lots of goodies in the Transfer of Land Act, Mr Viner. There are hours of innocent amusement to be had there.

MR VINER: I think I am familiar with some of that amusement, your Honour. I think, together with my learned friend, we can provide you with the relevant provisions of the Transfer of Land Act. May I just shortly address the matter that you have raised about indefeasibility and shortly respond to it. The appellants sought a declaration of invalidity before the judge at first instance, before the Court of Appeal and we do so now. The respondent raised the question of indefeasibility – I think, if my memory is correct, when the matter went on appeal – and so the Court of Appeal did not address that, by agreement between the parties. So that as the litigation now stands, if that matter becomes relevant, it will be returned to and dealt with by the trial judge, but that is an outstanding issue that has never been the subject of any decision in these proceedings. But the fact is that following the taking order, the land has been transferred under the Transfer of Land Act to the State.

It is our submission against that background, your Honours, that when the Court applies the principles that are enunciated in the well-known case of Thompson v Randwick and the observations of your Honour the Chief Justice in Fazzolari, that this acquisition of those lots, 7, 8 and 30, by which the taking order purported to take the zoned parts of those lots, was not within the power of the Commission. The recent statement of your Honour the Chief Justice about the presumption against an intention to interfere with vested property rights is clearly apt and it is like observations that were made by the Chief Justice of the Supreme Court here in Western Australia in Ex parte McKay.

FRENCH CJ: If you can give us the references when you refer to these cases, Mr Viner, it will assist.

MR VINER: Yes. Fazzolari [2009] HCA 12, (2009) 83 ALJR 557.

HAYNE J: I think you were referring to paragraphs [40] to [45] of the Chief Justice’s reasons.

MR VINER: Paragraphs [42] and [44]. That is in part 17 of the book of authorities that have been provided to the Court. Without taking the Court at length to what his Honour said, particularly at [43]:

The terminology of “presumption” is linked to that of “legislative intention”.

we say here that there is no discernable legislative intention in section 13 of the Planning Act or, indeed, in section 161 of the Land Act which permits the resumption of land for the express purpose of avoiding a statutory duty such as we find in section 102 of the Public Works Act.

Ex parte McKay [2007] WASCA 35, particularly at paragraphs 81 to 89, his Honour the Chief Justice discusses the operation of section 191 of the Planning and Development Act there under consideration, which is the same as section 13 of the Planning Act, the subject of this litigation. As his Honour observes:

it is somewhat unusual to have to determine, as a question of fact, the statutory source of power actually relied upon for the taking of land. That question of fact appears to arise from an apparent desire on the part of the respondents to rely upon sources of power for the taking in the alternative without being prescriptive as to the particular source of power relied upon.

It has a similarity to the arguments that have been presented to the courts below and will be presented to this Court that rather than section 13 of the Planning Act, the source of power or alternative source of power for the resumption was section 161 of the Land Administration Act.

FRENCH CJ: Just so I know where we are going, Mr Viner, have you said everything that you wanted to say in relation to the scope of the power under section 13?

MR VINER: I have.

FRENCH CJ: Which goes to the question of whether, because there was a railway reservation in there, it was not part of the town planning scheme they could take for that purpose under section 13. Now we are going, are we, to the section 102 issue, is that right? That is, whether this is a proper exercise of power under section 161 of the Land Administration Act, is that right?

MR VINER: Well, just before I was going into further submission on section 102, I wanted to take the Court to Thompson v Randwick and then move on to - - -

FRENCH CJ: For what proposition are you taking us to Thompson?

MR VINER: The proposition that the power of the respondent in this particular case is to be found within the legislative intent of section 13 and one looks to the construction of section 13 and the apparent legislative intent to find the extent of the power. The proposition there is that that power cannot support the whole of the proposed taking of the whole of lots 7, 8 and 30 and, therefore, the purportive taking of the whole of those lots was invalid.

Now, at Thompson v The Council of Municipality of Randwick [1950] HCA 33; (1950) 81 CLR 87 at page 103 which is at tab 21 of the book of reports, in discussing a number of possible sections to support what was done in that case, as their Honours said, referring to section 235, which provided:

that the Council may provide any public road, and that any land required for the purpose of this section may be acquired in any mode authorized by this Act. This section cannot support the whole of the proposed resumptions, because the only land which could be resumed for the purpose of the new road under s 235 would be the land required for the construction of the road.

Applying that statement to the facts in this case, it cannot be said that section 13 permits the taking of the whole of lots 7, 8 and 30 because the whole of those lots, in particular the zoned parts of those lots, were not required for the primary regional road.

FRENCH CJ: Anyway, it was not for the purpose of a town planning scheme within section 13, that is the primary point as a matter of construction and application of that construction.

MR VINER: That is right. Then at page 104, in looking at another section under consideration there, the Court said:

In the present case it is clear that the lands proposed to be resumed exceed what is required to construct the new road, and there is no evidence that it is reasonably incidental to any purpose –

Now, again, applying that statement to the language that your Honour the Chief Justice just used in terms of section 113, the lands proposed to be resumed, that is, the whole of lots 7, 8 and 30, exceed what is required for the purposes of the primary regional road. You will find it uses the words “to construct that road”. Now, we then go on to say that if, however, one looked at it in terms of land required for the construction of a railway within the reservation, the same statement of law applies. In other words, one does not find within section 13 of the Planning Act, nor indeed in section 161 of the Land Administration Act, power to resume more than was actually required for the primary regional road or the railway that is to be constructed within it. Then, which is apt to the question of severance, and if I refer to it now, at page 107:

The case is not one in which the Council can be allowed to proceed with some of the resumptions while being restrained from proceeding with others. If it cannot proceed with them all, it has no scheme in relation to any of them.

In our submission, the town planning scheme in this particular case and the reservations for a primary regional road are to be looked at in the same way as that statement in Thompson.

FRENCH CJ: That involved some determination based on the facts in the particular case, does it not?

MR VINER: Well, it does and I am just going to address that point. Her Honour Justice McLure said that Thompson had no application to the facts in this case because the improper purpose that was found there was to take more land than was required in order to be able to sell some off and help offset the cost of the development.

HAYNE J: But be that as it may, I would understand you to embrace the analysis in the last three lines on page 105 and the first five lines on page 106 and that that is an epitome of the case you are seeking to make.

MR VINER: Exactly, your Honour. So that what her Honour Justice McLure said was really not applicable because one applies the principle to the facts of this case. Thompson applies directly to those facts. Now, if I may take the Court to the question of section 102 of the Public Works Act. What her Honour Justice McLure said was that section 102 – and this appears at paragraph 60 of her judgment at appeal book 313 – that section 102 was not an unavoidable limitation on the respondent’s power under 161 of the Land Act and, I would add, nor on her Honour’s reasoning by implication an unavoidable limitation on the respondent’s power under section 13(1) of the Planning Act. In our submission, that is an incorrect formulation of the question of law.

FRENCH CJ: Sorry, can you just give us that paragraph reference again?

MR VINER: Paragraph 60 at page 313 of the appeal book. Her Honour said, after referring to section 102:

The relevant questions of statutory construction are first whether the PTA is empowered to determine whether, and if so where, crossings (level, under or over a road) are to be located and constructed along a railway line and second, whether s 102 is an unavoidable limitation on that power.

CRENNAN J: The nub of her Honour’s reasoning is in the last sentence of paragraph 60, is it not?

MR VINER: Yes, where her Honour says:

The acquisition of land in order to avoid a road crossing is capable of being for a railway purpose and thus within the scope of the power in s 161 of the Land Act.

Our answer to that is that it is not a railway purpose to resume land to avoid a statutory obligation to build a level crossing to give access to private land otherwise cut off from access. But insofar as her Honour’s first proposition is concerned, it is our contention that the proper question of law should be directed at section 13 of the Planning Act.

GUMMOW J: Does her Honour deal with section 13?

MR VINER: Not in this particular context, because what her Honour had done was to say that it was not permissible under section 13 to resume the zoned parts of lots 7, 8 and 30.

HAYNE J: That is paragraph 52.

MR VINER: Her Honour then directed her attention to whether the resumptions could nevertheless be made under section 161. It is at paragraph 53 that her Honour said:

The source of the acquisition power to compulsorily acquire land for railways is s 161 of the Land Act.

With that proposition, which I have dealt with, we say that is not correct. The substantive power of the respondent is under section 13. But so far as section 13 is concerned, in our submission, the answer is very straightforward. A resumption for the purpose of avoiding section 102 does not fall within a purpose permitted under the Peel Region Scheme in section 13, but insofar as one turns to section 161 as a source of power, I am obligated to respond to that and, hence, our proposition is that one looks at the power, not at whether 102 is an unavoidable or not limitation.

FRENCH CJ: You put it on the word “use”, do you not? You say this does not involve the use of the land for the purposes of the work.

MR VINER: That is right, and nor is it required for the purpose of the work and therefore it is not, contrary to Justice McLure, capable of being for a railway purpose. Her Honour then goes on at paragraph 61 at page 314 - - -

GUMMOW J: Just before you do that, Mr Viner, in fixing upon section 161 of the Land Act, did her Honour pay attention to the express reliance on 177 of the Land Administration Act in the actual taking order?

MR VINER: No, I believe not. That came into comment because of the provision under section 177(2), I think it is, that where a railway is authorised by a special Act, a notice of intention is not required.

GUMMOW J: Did she give attention to the fact of registration under 179?

MR VINER: No, that was not a consideration.

CRENNAN J: I think her Honour deals with the relationship between section 161 of the Land Act and section 177, at paragraph 76 and following, when she is dealing with other grounds of appeal. Her Honour notes in paragraph 76 that:

The source of the power to take is s 161 of the Land Act and the source of the power to issue a taking order is s 177 of the Land Act.

MR VINER: Yes. That arose out of some discussion at the hearing as to whether the Railway Act was a source of power and, as I recall, I think it was really common ground that it was not the source of power. One had to find the source in section 13 or, as the respondent submitted, section 161.

FRENCH CJ: So if you are relying on s 161, then the process which section 177 relevantly applies is that under subsection (2) which is to – and this is assuming, of course, we have got a special Act related to the railway, which you said – is to make a taking order consistent with that Act, that is to say, the special Act.

MR VINER: That is right.

FRENCH CJ: So, how does it work then? Section 161 operates, on the other side’s argument, as a substantive source of power but you cannot effect it without making a taking order under 177 and that has to be consistent with the particular Act which set up this railway construction, the South West Railways Act, or whatever it is called?

MR VINER: That is right, yes. Yes, that is the way it works. On the respondent’s submission, and therefore being a railway under the special Act, no notice of intention was required. That, of course, is the same effect when the power is taken to be the power under section 13(1).

FRENCH CJ: The absence of a notice of intention or the absence of a requirement for a notice of contention is something you derive from 177(2), is it?

MR VINER: No. If one applies section 161. If one applies section 13, it derives from subsection - - -

FRENCH CJ: Yes, I know that in section 13, but I am just saying, assuming you are not going under section 13, assuming you are going under section 161 and relying on a special Act and so forth, then the power to make a taking order without a notice of intention would appear to derive not from 177(2)?

MR VINER: That is right, your Honour, yes.

GUMMOW J: There are cases in which situations will emerge that there were two possible sources of power that the public authority has relied expressly on one, which is not good enough, and then they can rely on the other one as a fall back, even though they were unconscious of it at the time. Is this one of those cases?

MR VINER: Well, we say not, because our primary proposition is that the exclusive – using the same phrase I had before – the exclusive substantive power available to the respondent is under section 13(1) because it is a responsible authority by virtue of its own Act, the Commission Act, and it is section 13 which gives to it, as a responsible authority, the power to resume with respect to a town planning scheme. So that it is not acquiring the land for the purpose of a public work to which section 161 is directed. But the respondent, faced with the challenge to the validity of the taking of the zoned parts of lots 7, 8 and 30, then – if I can use this term – resorted to the argument that it had sufficient power under section 161.

Now, our answer to that in the end is that even if there is a power under section 161, 161 does not give to the respondent power to resume the zoned parts of lots 7 and 8 to avoid the statutory duty under section 102. We say that for the same reason as we put forward with regard to section 13, namely, that there is no apparent legislative intention in either section 13 or section 161 which enables the avoidance of section 102.

HAYNE J: Is there a separate point about the engagement of 161 presented by the expression in 161(1):

the use of any land or any interest in land is required for the purposes of the work –

or is all that swamped by consideration of, for the purpose of a railway authorised by a special Act?

MR VINER: I think the answer to that is yes. In other words, if you have a railway authorised by a special Act and the power to take land for the purpose of the railway under that Act is section 161 and then section 177(2) applies to avoid the need for a notice of intention and a taking order may be made consistent with that special Act.

HAYNE J: But is that limited to so much land as falls within the expression “the use of any land required for the purposes of the work”?

MR VINER: Yes, indeed. I must have misheard what your Honour said before. That proposition is a very basic proposition deriving from authorities such as Thompson v Randwick and earlier authorities.

HAYNE J: Now, just about Thompson v Randwick, it may be useful to recall that Thompson v Randwick has been looked at – at least in passing, perhaps more than in passing – by this Court in Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 see particularly at pages 145 and 149 and subsequently in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, particularly at pages 54, 55, 67 and 82. Now, having looked at them only briefly, I am not conscious of them saying anything antithetical to what appears in Randwick, but we at least need to be aware of what has been said about it more recently than Randwick.

MR VINER: Yes, your Honour. I was going to make the observation that I do not understand any authorities later than Thompson being, as your Honour has said, antithetical to them, nor to the case that followed Thompson, which is not referred to in the list of authorities, but if I may mention it now, Minister for Public Works v Duggan [1951] HCA 29; (1951) 83 CLR 424, in which a vigorous attempt was made to overthrow Thompson, but which failed.

FRENCH CJ: Words consistent with that Act in section 177(2) obviously do not mean – or certainly in this case – that one can look to that Act for a source of power of acquisition. I notice that all that the relevant Railway Act does is to authorise the construction of the railway along a certain route.

MR VINER: That is right and there is a provision in that Act which allows for deviation of the route.

FRENCH CJ: Was this this four kilometres point, was it?

MR VINER: That is right. Her Honour at a paragraph – which I will ask my learned junior just to identify – acknowledged that the authority to deviate under the special Act did not give the respondent power to acquire the zoned parts of lots 7, 8 and 30. In other words, it was not a deviation for the purpose of the Railway Act.

GUMMOW J: So your point is there was only an exclusive stream of power?

MR VINER: That is right. But our secondary submission, your Honour, is that if it should be held that there was a power under section 61, then, as I discussed with her Honour, the taking of land for the purpose of avoiding section 102 is not a use required for the purpose of the railway.

CRENNAN J: If you are right about the exclusive source of power, you then succeed on Justice McLure’s reasoning, do you not, because – well, I think you do, having regard to what she says in paragraph 52, which I think was pointed out by Justice Hayne?

MR VINER: Yes, exactly. So when her Honour came to that conclusion as a matter of law with respect to the town planning scheme, she then turned to look at section 161 and found power there and upheld the taking of the zoned parts for the purpose of avoiding section 102.

GUMMOW J: The case I was trying to think of as to dual or concurrent streams of power is Brown v West, 169 CLR 171, I think. You say we do not get to that.

MR VINER: Yes. In my submission, we do not get to that. It is not unlike the consideration which the Court gave in Thompson to a number of sections of the relevant legislation where it was being argued that under one or other of those sections the resumption undertaken was permitted. The Court went through each of those sections and held that the taking was not valid and then on particular facts the taking was for an improper purpose.

I will just briefly refer to her Honour’s reasoning in paragraphs 67 and 68 as to whether the determination of whether the taking was within power may be considered subjectively or ought to be considered objectively. It was the fact that it was argued on behalf of the appellants that whether looked at subjectively or objectively, the taking of the zoned parts of the land for the purpose of avoiding section 102 was an excessive power. But to the extent that that question needs to be determined, it is our submission that it is an objective test. When one looks at Thompson v Randwick, Estates Development and also the decision more recently of the Court in Marshall – I can give the Court a reference to that in a moment.

FRENCH CJ: That is [2001] HCA 37; (2001) 205 CLR 603.

MR VINER: I am obliged to your Honour. That is at tab 13. If I may add to that Minister for Public Works v Duggan, at page 452, where, after considering Thompson v Randwick and a number of other authorities, their Honours said:

It is clearly a judicial function to determine what is a purpose within the meaning of –

the relevant section. That is an objective judgment that is made by the Court. It is not a subjective decision by a particular authority. So to the extent that her Honour came to her conclusion on the basis that it was a subjective consideration, it is our submission that her Honour was wrong. Justice Buss also upheld the taking of the zoned parts of lots 7 and 8 on the ground that it was incidental to the power to take land to be used for the purpose of a railway. In our submission his Honour was wrong. The relevant statement of authority is Hudson v Venderheld, [1968] HCA 17; (1968) 118 CLR 171 at page 175, which is at tab 9 of the book of authorities and referred to by Justice McHugh in Marshall at page 47.

In our submission, for something to be incidental to the exercise of a power, it must be necessary in order to give effect to the power. So that exercising the power to resume for the purpose of avoiding section 102 cannot be necessary to resuming land for the purpose of the town planning scheme or for the purpose of a railway to be built within the reservation of a primary regional road. Without elaborating in these oral submissions, what was said by Acting Justice Murray in his dissenting judgment we adopt and say that that was a correct approach to this particular issue.

If I may then turn to the question of severance. Whilst severance, as is well known, can be applied to instruments of a number of different kinds, whether they are private contracts, warrants under police powers, legislation or subordinate legislation or the severance of an invalid condition imposed upon a town planning consent and the like, it is our submission that when it

comes to the validity of a resumption of a parcel of land as a whole, that resumption is either good or bad as a whole. It is not a situation where one can apply a blue pencil line through the taking of a whole parcel of land.

FRENCH CJ: We will not hear from you further on severance. We will hear what Mr Mitchell has to say on that and then you can reply, Mr Viner.

MR VINER: All right, if it please the Court. Our submissions on severance are quite considerably elaborated in the written submissions. I would be relying on those and the authorities referred to. May it please the Court.

FRENCH CJ: Thank you, Mr Viner. Yes, Mr Mitchell.

MR MITCHELL: May it please the Court. I propose to address our oral submissions in four parts which reflect the four issues we identified in our written submissions which we also adopt. Firstly, I will deal with our submission that the taking of the land other than the zoned portion of lot 30 was authorised by provisions which enable the taking of land for the purposes of a railway, principally section 161 read with section 177(2) of the Land Act. Secondly, I will deal with our submission that the taking order was a valid - - -

FRENCH CJ: When you say the Land Act, you are using that as an abbreviation for the Land Administration Act?

MR MITCHELL: I am. I am using the same abbreviations that my learned friend, Mr Viner, referred to at the opening of his submissions and which I think have been used in the submissions and in the Court of Appeals.

CRENNAN J: Are you, in how you have stated point 1, accepting the correctness to Justice McLure’s observations in relation to section 13, to be found in paragraph 52?

MR MITCHELL: Yes. Perhaps if I identify the points. The first point is that it relates to the existence of the power under section 161. The second point relates to the exercise of the power, that is, that the taking order was a valid exercise of that power and in the course of dealing with those submissions, I will address the question of severance. Thirdly, I will deal with our submission that the taking of the land reserved under the Peel Region Scheme was also authorised by provisions which enabled the taking of land for the purposes of a scheme, principally, section 30 of the Planning Act and section 177(1), as we would say, modified of the Land Act. Fourthly, I will deal with our submission that the taking order was a valid exercise of that available power under section 13.

Can I say in relation to the zoned portion of lot 30 that at trial and on appeal it was the Commission’s position that regardless of the outcome of those cases, it did not intend to profit by the error which had been made and intended to return the zoned portion of lot 30 to the appellants. We, in that context, do not challenge Justice McLure’s conclusion that the zoned portion of lot 30 was not capable of being acquired for the purposes of a railway and therefore the taking order was beyond the power to that extent. I will come, when I deal with severance, to the consequences of that. We say that in fact the transfer back under the provisions of the Transfer of Land Act was required to bring about that result.

If I can, in dealing with my first point, that is the existence of the power under section 161 of the Land Act, which appears in the book of legislation at page 45, can I deal with a number of points related to the construction of this provision before coming to its application to the facts of this case and its interaction with section 102 of Public Works Act. The first point I want to make about the operation of section 161 is that the trigger which activates the power is a relevant body – which for ease of expression here I will simply refer to as a State instrumentality – being authorised by an Act of Parliament to do certain things in relation to a public work. The trigger is not that the work is in fact being undertaken or that any particular degree of planning has taken place in relation to it.

As we say was the factual situation in Estates Development, albeit that was a slightly different statutory context, a public work for which land may be required may be planned only in very general and contingent terms and its implementation may be contemplated only at some indeterminate time in the future. That possibility is recognised by provisions such as section 187 of the Land Act, which appears at page 67 of the book of legislation, which contemplates a situation where land has been designated for public work, that is designation being an aspect of the taking of the land –

and the Minister is satisfied that the interest is not required for the public work, or is not exclusively required for the public work –

then it may be designated for another public work or the designation may be cancelled subject under subsection (2) of that section to compliance with section 189 and 190 of the Act. Section 190 is perhaps the most relevant here. Under section 190(1) at page 69 of the book of legislation, “This section applies if” a number of conditions are met, the first of which in paragraph (a) is that –

the fee simple in land was taken or resumed without agreement under this or another Act and either –

(i) the taking or resumption was done less than 10 years previously; or

(ii) the land has not been used for any public work –

There then follows a procedure by which, before land is sold or its designation for a public work altered, the person from whom that land was acquired, or their personal representative if they are deceased, must be offered an option to purchase the land back at its current market value as at the date of the term. Section 192 provides that:

Lands not wanted for immediate use may be leased –

and in that way those provisions recognise that land which may never in fact be used for any public work or required for a public work, as it eventuates, may still be validly taken. That, we say, is of significance when one come to construe the word “required” later in section 161. The second point I want to make about the construction of section 161 is that what the State instrumentality may be authorised to do need not include and is not confined to the construction of infrastructure.

One sees that in the text of section 161 itself where there is a reference to the State instrumentality being authorised by an Act “to undertake, construct or provide any public work”. The definition of “public work”, to which I will come, contemplates clearly more than the construction infrastructure. The Railway (Northern and Southern Urban Extensions Act) 1999, which if I can truncate to simply refer to as the Railway Act, it begins at page 192 of the book of legislation. Section 4 of that Act on page 197 refers to the authority being given to –

works and facilities in connection with the railway, may be constructed and maintained along the line described in Schedule 2.

In subsection (2) is then the provisions for the four kilometres permissible deviation. When one turns to the definition of a “public work” – I need not take your Honours to it – but section 151 of the Land Act incorporates the definition of “public work” in the Public Works Act. The definition of “public work” in the Public Works Act begins at page 145 of the book of legislation, and refers, in subsection (2) to “Any railway authorised by special Act”. Once a railway is authorised by a special Act, we say it then becomes a public work and once it gains that status, then land which is required for the provision undertaking all construction of the railway may be taken in the exercise of the power conferred by section 161.

Operation is also irrelevant because the Public Transport Authority has the power under its Act to provide rail passenger transport services. One sees that in section 12 of the Public Transport Authority Act at page 133 of the book of legislation:

The main function that this Act gives the Authority is to provide and operate safe and reliable public passenger transport services –

One turns then to the definitions at page 128 of the book of legislation. In section 3 of the Act one sees that:

“public passenger transport service” means a service of transporting members of the public by a prescribed means of public passenger transport –

which term is defined at the top of the page to include a railway train. “Train” is also given a referential definition by reference to the Rail Safety Act. I need not take your Honours to that definition. It means what the common understanding of a train would be. So, the authority of the Railway Act to construct the railway was necessary for the railway to have the status of a public work, however, the purposes for which land is required or taken is not confined to construction. The work is not the construction of the railway, rather it is the railway as that term is defined, and I will come to that definition shortly.

Before I do so, can I deal with our third point. That relates to the term “use” in section 161 where it says that “the use of any land or any interest in land is required for the purposes of the work”. In our submission, the concept of “use” is not confined to a physical or active use and the fact that this land, that being, for example, the zoned portions of lots 7 and 8, were not used for the construction of railway infrastructure is not to say that it was not used for the purposes of a railway.

That passive uses may fall within section 161 we say is apparent when one returns to the definition of “public work” at page 146 of the book of legislation where one sees identified as public works matters which will not involve any construction, particularly at paragraph (14) and (14A) at the top of page 146:

(14) The protection and preservation of any cave or place of scientific or historical interest.

(14A) The protection and preservation of indigenous flora and fauna.

HAYNE J: Well, be it so that there are passive uses, the public work in question is the railway, is it?

MR MITCHELL: Yes.

HAYNE J: The railway is as defined in the Railway (Northern and Southern Urban Extensions) Act, is it?

MR MITCHELL: No, your Honour. It is as defined in the Public Works Act and as extended by the definition of “public work”, which I will come to, so as to include land acquired for or in connection with railway purposes. So we say that is a point which one does need to take into account. Perhaps if I can bring your Honours to those provisions. Firstly, in the definition of “public work”, at page 147, one sees at paragraph (21) of the definition:

Any work incidental to any of the aforesaid works.

Perhaps an express incidental power. Then in paragraph (22):

Any land required for or in connection with any work as aforesaid.

“Railway” is given the definition in section 95 of the Public Works Act. Section 95 is at page 172 of the book of legislation where “railway” is defined to include:

the land upon which any railway is made or authorised to be made, and all buildings and erections of every kind thereon, and all land taken, purchased, or acquired for railway purposes –

So we say that if this land was acquired for railway purposes or was required for or in connection with the railway, then it falls within the definition of “public work” and land can be acquired for that purpose.

HAYNE J: On its face that is an argument of considerable verbal dexterity, but what is its substance, Mr Mitchell? It is, is it, “all land taken, purchased, or acquired for railway purposes”? Is that a confining expression or is it an expression that means anything that is said to be acquired for railway purposes?

MR MITCHELL: I think it is still necessary to characterise the purpose and I still do need to come, I recognise, to deal with the question of whether taking land to avoid a crossing is a railway purpose. At this point in dealing with the construction of section 161 of the Act, I am simply seeking to make the point that the holding of land for passive uses – by passive use I mean other than the construction of railway infrastructure – is within the scope of section 161.

FRENCH CJ: I can understand land acquired for the protection of fauna and flora, for example, so long as it is there, that it provides a place in which relevant fauna and flora can flourish and do whatever they do. In this case when you have acquired the land to avoid the obligations, the obligation has ceased because there is no private land adjacent to the railway, what is the use, even in a passive sense, that one can attribute to it for the purposes of section 161?

MR MITCHELL: The use – which may be either of the land or an interest in land, and I will come to that – is the holding of that land is required in order to construct the railway that the Public Transport Authority proposed to construct, that is, a railway without a crossing at this point.

GUMMOW J: Say that again?

MR MITCHELL: The use of the land or the interest in land is the holding of the land which is required to enable the Public Transport Authority to construct the railway it proposed to construct – which I will come to in the evidence – which railway did not include a crossing at this point.

HAYNE J: Which railway did not include a level crossing at this point.

MR MITCHELL: No, which railway did not include a crossing at this point.

HAYNE J: Any crossing?

MR MITCHELL: Yes.

FRENCH CJ: Well, the use is really, on that definition, just the holding of the land. The rest is purpose, is it not?

MR MITCHELL: It is. The point I was making by taking your Honour to the definition of “railway” and land held for railway purposes being a railway, land in connection with railway purposes being itself a public work, is to attempt to make the point that the holding of land can be a use. That is particularly so when one recognises in section 161 that what may be required for the purposes of the work may be either a use of any land or any interest in land.

“Land” is defined in the Land Administration Act in section 3 at page 27 of the book to mean the physical land or the area of the surface. “Interest” in land is defined in section 151 of the Land Administration Act to mean any legal or equitable interest, including certain matters, a definition which would clearly include an estate in fee simple. So, one must address the question, in my submission, both to the use of the land and the use of an interest in the land, in this case, the fee simple. We would say that both the fee simple and the land itself were required for the construction of the railway which the Public Transport Authority proposed to construct.

The next point I want to make about the construction of section 161 is that the question of what kind or design of public work to pursue will be a matter for the relevant body, in this case, the Public Transport Authority, to determine so long as it is acting within the scope of its powers, that is, so long as what is proposed is authorised by an Act. That is consistent with the approach of this Court in Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678.

GUMMOW J: Did we not look at that recently in the Northern Territory appeal?

MR MITCHELL: I am sorry, your Honour?

GUMMOW J: We looked at that recently in the Northern Territory case. Griffiths, was it?

MR MITCHELL: I believe it may have been mentioned, I am not sure with any great significance for this case.

GUMMOW J: It was distinguished, I think.

MR MITCHELL: There was a challenge, which one finds explained at 679 in the second column at about point 7, “The attempted exercise of power”, in this case to build a set of office blocks, was attacked on the basis that it was for an “ulterior purpose”, and a reference to Thompson and Duggan was made. The circumstances of that case involved a joint venture with a private insurer with a view to providing finance to enable the water board to acquire the office space it needed. The Court notes at page 680 in the first column at about point 7 on the page that:

It may be accepted that it would be physically possible to build a smaller building of twenty-one stories on the remaining area of the block, excluding the appellant’s land. However the evidence was that that would not be desirable –

for various reasons. The Court then says:

The learned primary judge found that the true purpose, and the dominant purpose, for which the Board acquired the land was to provide it with office accommodation which it needs now and in the future. The purpose of providing accommodation for GIO in order to secure finance was, he said, entirely subsidiary.

The Court agrees with that conclusion and continues at the bottom of page 680, first column:

It did not acquire more land than it needed for the building in which the office accommodation was to be provided. It is true to say that it acquired more land than it would have needed had it decided to build a smaller and different building, but the owner of land the subject of a proposed resumption is not entitled to say that the resuming authority could get by with a smaller building or a building of different construction.

We say that equally in this case it is not the point to say that a different kind of railway which did not require the acquisition of the zoned land could have been pursued. One assesses it by reference to what the Public Transport Authority planned to pursue. On judicial review there are two questions. Firstly, is the public work for which the land has been taken authorised by an Act? Secondly, whether the use of that taken land is required for that public work? The question is not whether the public work itself is required in the form in which it is promoted.

Your Honours, before I go on to my point, can I come back to the issue of holding land being able to be classified as a use of land. I wanted to refer your Honours to the comment of this Court in Marshall v Director General Department of Transport [2001] HCA 37; 205 CLR 603 at page 617. That was, of course, the case which the plurality described as somewhat extraordinary where the appellants’ land had been acquired for “road purposes”, but it was said that none of their land was used for road purposes, therefore were not entitled to claim “injurious affection” by way of compensation. That submission is noted at the top of page 617. At paragraph 22 the Court, not using statutory language but using language which, in my submission, reflects the natural meaning of the term “use” in this context, says:

The correct view is, in our opinion, that the land, whether it is a site for –

certain matters, relevantly –

or has a use as a passive buffer, is land used for “road purposes” –

The reference in the footnote against the term “passive buffer” is to the decisions of this Court and the Privy Council in the Newcastle v Royal Newcastle Hospital cases where again, albeit in a different factual context, a passive use of land which benefited the public work in some way was able to be described as a use for the public work and that the mere holding of land we say can be characterised as a use. If I am counting correctly, I think the seventh point we would make in relation to the construction of section 161 - - -

GUMMOW J: Just before we do that, so you could think about the lunch time, I think you have to grapple with the text of the taking order, Mr Mitchell.

MR MITCHELL: Yes, I do, your Honour. I am dealing at the moment with whether the - - -

GUMMOW J: At page 122, Mr Mitchell. Let us just look at this for a minute. My first question is, did the evidence include the advice to the Governor tendered on 5 August 2003 that is recited there?

MR MITCHELL: Yes, on page 124, the next sheet back.

GUMMOW J: We have about four sets of numbers on these pages.

MR MITCHELL: I am sorry. If one turns one page back on the taking order one sees the executive council minute where the advice was given to the Governor.

GUMMOW J: That seems to indicate that the Governor thought he was doing what he was doing under those statutes, does it not?

MR MITCHELL: The Governor could only be doing what he was doing under the Planning and Development Act because consent of the Governor was only required under section 13 of the Planning Act.

GUMMOW J: What I am trying to get out of you, is there any reference anywhere to the statute containing section 161?

MR MITCHELL: There is, at the heading of the taking order on page 126 of the appeal book, to the Land Administration Act, also in the body of the notice to the land having “been compulsorily taken under Section 177”.

FRENCH CJ: The reference to the Land Administration Act could be a reference to section 177, could it not?

GUMMOW J: As picked up by the other statute.

MR MITCHELL: Section 177?

GUMMOW J: Yes, it is picked up by the other statute, as Mr Viner was explaining to us.

MR MITCHELL: It is a reference, we say - - -

GUMMOW J: I know you say that because it helps you. I am just thinking what these administrators thought they were doing. I think what they thought they were doing is not what you now say they were doing and that presents questions of statutory construction in administrative law as to what happens when that situation arises; whether you can look both ways.

MR MITCHELL: My answer to that is twofold. Firstly, we say that there is no evidence to suggest that the Minister, when she made the taking order, did not think that she was exercising the power under - - -

GUMMOW J: That sort of submission should not be put by the Crown, Mr Mitchell, when you have this document that is tendered to the highest executive officer in the State, namely, the Governor. What is the other submission?

MR MITCHELL: The other submission is that it does not matter and that even if it was not intended to rely on the power in section 177(2) read with 161 of the Land Act, that power was available for exercise and the authorities dealing with that, to which I will come, and the terms of the legislation which one needs to look at in that context mean that the power can be validly, if unintentionally, exercised.

GUMMOW J: This is on the assumption that if the documents speak as they speak on their face, you do not contest the conclusion that Justice McLure then reached in the Court of Appeal in paragraph 52 that Justice Crennan put to you?

MR MITCHELL: Yes. If this cannot be characterised as a taking under section 161 and 177(2) of the Land Act, then we accept that the power available under the Planning Act did not extend beyond the reserved land in the circumstances of this case. So one would then be into an argument about severance of the reserve, taking of the reserve land from the balance. Your Honour, I recognise that is something I have to deal with. My learned friend’s first point, of course, is that the power does not exist in any event and I think it is appropriate to deal firstly that question and then consider whether it has been exercised and we say in the circumstances of this case it has, either intentionally or unintentionally.

Can I return to a number of points about section 161 which feed into what I have just said and which I am about to say about those matters. The seventh point we make is that the existence of the power to take land for the purposes of a railway in section 161 and 177(2) of the Land Act does not depend on the land having been identified for use as a railway in a planning scheme. It depends only on the existence of authority to construct the railway under a special Act.

The eighth point that we want to make is that the reference to “taken” in section 161 is a reference to taken by a taking order. One sees that in section 151(2)(b) of the Land Act at page 38 and also in section 177(2) to which your Honours have already been taken. While I am in this area I might also note that section 170(2) of the Land Act, which appears at page 51 of the book of legislation, expressly provides that:

A notice of intention need not be issued if the proposed taking is for the purpose of a railway authorised by a special Act.

Turning then to the circumstances of this case, we say, and I think it is accepted in my learned friend’s submissions, that the reserve land could be taken as a matter of power for the purposes of the railway and that the purpose for which the zoned portion of lots 7 and 8 were taken was to prevent the creation of an area without public road access. It is at that point that one needs to look firstly at what kind of railway was proposed, which one sees in correspondence from the Public Transport Authority at page 119 of the appeal book.

Your Honours will note there was sometimes references to the Western Australia Government Railway Authority and to the Public Transport Authority. The Public Transport Authority became the successor organisation between the making of the initial report to the Planning Commission and the making of the taking order. At 119 there is, as part of responding to a request from the appellants as too why the land has been taken where the railway was proposed to run, correspondence from the Public Transport Authority to the Department of Planning and Infrastructure attaching:

copies of the final design for the alignment of the Railway through Lots 7 & 8 Thornborough Road. The railway and future Mandurah Bypass Road will cut Thornborough Road. No crossing of the railway at Thornborough Road is planned.

Not just a level crossing but no crossing at all –

Consequently any property on the eastern side of the railway, currently accessed via Thornborough Road will be accessed via Exchequer Avenue from the south.

It refers to a cul-de-sacing of Thornborough Road, which one sees, perhaps not very clearly, on the map at what would be around line 22 on the right-hand side of the map, a road with a horseshoe, that seems to have been drawn in by pen, which is Thornborough Road and the point at which the cul-de-sac will occur and one can see the rail line proposed to pass below the level of Thornborough Road as it then existed.

FRENCH CJ: That might be a convenient moment, Mr Mitchell.

MR MITCHELL: Yes.

FRENCH CJ: We will adjourn until 2.15.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ: Yes, Mr Mitchell.

MR MITCHELL: If it please the Court. Can I finish off dealing with the question of the existence of the power under section 161 before then coming to whether that power was validly or effectively exercised in this case. I think it has simply left me to deal with section 102 of the Public Works Act, but it is perhaps useful for understanding that section to appreciate its context. If I can take your Honours in that regard firstly to section 99 of the Public Works Act, which is at page 173 of the book of legislation. Under subsection (1)(a) the Public Transport Authority is given power to do certain things in relation to the making of a railway, including:

(b) Make any part of such line of railway on and along any part of any road or street:

(c) Make the railway upon, across, over, or under any road, street –

et cetera and alter the level thereof. Section 100 of the Act deals with consequences where a railway intersects with a road or street. Under subsection (1):

Where any part of a road or street, except where it crosses a railway on a level, is used or occupied for a railway under the powers conferred by the last preceding section, such part of the road or street shall thereafter cease to be a highway.

So that is what happened in this case and which caused that part of Thornborough Road over which the railway track crossed to cease to become a road. Subsection (2) provides what happens if there is a railway crossing on a level. Section 101 deals with the compensation payable where a road is interfered with or wholly closed and, I will confess, I have not found this an easy provision to decipher in its context. Subsection (1) refers to:

No compensation shall be payable in respect of the use or occupation of any part of any road or street for any railway –

Subsection (2)(a) deals with what happens when a:

road or street being wholly closed under the powers conferred by this Act . . . if reasonable and sufficient access to the nearest road or street crossing over such railway be afforded by some other road or street –

Then section 102, to which your Honours have been taken, prevents a road from being wholly cut off from all access to a public road. What we say section 102 is designed to do in that context is to ensure that a person is not left holding land to which they cannot access by public road. There is no interference with the purpose of that provision if the Public Transport Authority acts in such a way that that situation does not arise. That is including, we say, if it acquires land so as to avoid the obligation to construct that crossing. When I say “that crossing”, in this case one would probably have to say two crossings because there were two lots which were severed from public road access by the railway. In fact, they were not in common ownership. There were two separate plaintiffs which own Lot 7 and lot 8 and, of course, those lots would have been sold at any time.

So we say that the use of the zoned portion of lots 7 and 8, alternatively the appellants’ fee simple interest in that land, was required for the railway or alternatively for or in connection with the railway which the Public Transport Authority was authorised to construct and operate. That railway did not propose a crossing at this point. In order to achieve that, it was necessary to hold either the interest or the land which would have been denied access to a public road.

Your Honours, can I then move to the exercise of the power, assuming that it exists, and we say it then requires attention to the terms of the taking order. The power to make a taking order, we say, derives from section 177, either subsection (1) or subsection (2) of the Land Act. That is so whether the power to take the land derives from section 13 of the Planning Act or section 161 of the Land Act, and neither provisions, of course, being referred to in the taking order itself.

We say that the taking order is consistent with an intention to exercise any available power. But regardless of subjective intention that even if it was intended only to exercise the power under section 13, then the power under section 161 being available, it can support the notice. The principle for which we contend is set out at paragraph 36 of our written submissions at about line 15 on the page, quoting what his Honour Justice Heydon said in Eastman v DDP 214 CLR 318 at paragraph 124. Eastman itself is not on anyone’s list of authority but what was said as the relevant principle, citing cases including Brown v West, was that:

If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions –

we have said “precedent” in our submissions, his Honour Justice Heydon said “antecedent” –

to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.

We have also referred to the decision of the New South Wales Court of Appeal in Gorczynski v Perera where the same principle is recognised. It is necessary, of course, to look to the terms of the relevant legislation to see if there was anything which counts against the power being available for unintentional exercise. Here we say there is no incompatibility between the two powers. It is necessary to say that the taking was for the purpose of the railway, that was done in the taking order. There is no difference in the relevant procedure, a notice of intention to take not being required either for the exercise of the power under the scheme or for the exercise of that power under section 177(2) of the Land Act. The purpose is identified in the taking order and all of the requirements of section 178 of the Land Act in relation to the taking order are satisfied.

There is one point which my learned friend raised in the courts below and which I anticipate he will raise in reply here and that concerns the compensation provisions in section 241 of the Act, if I can come to those at page 97 of the book of legislation. Subsection (2) deals with the need to have regard to the value of the relevant land. There are different valuation dates depending on which of paragraphs (a), (b) or (c) are applicable. In paragraph (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 –

which in the case of the Railway Act with which we are concerned was 10 August 1999. Paragraph (b) deals with interest taken by agreement. Paragraph (c) deals with other cases being the date of the taking –

and discounting any increase or decrease in value attributable to the proposed public work.

Now, we say in relation to that that the reference to taking for the purposes of a railway is a criteria to be applied regardless of the source of the power to make - - -

GUMMOW J: Criterion. It is a singular word, is it not? It is a criterion.

MR MITCHELL: I am sorry, yes, your Honour. The criterion will be whether the purpose of the taking was in fact for a railway regardless of the source of the power.

HAYNE J: How does that sit with what appears at page 129 of the appeal book in the column closest to the right of the page against each of items 4, 5, 6 and over to 130 where the purpose is both railways and primary regional roads?

MR MITCHELL: Yes. Well, we say there are two answers and neither of them matter in terms of validity. One answer is that the land was clearly taken for both purposes. It was therefore taken for a railway, therefore, paragraph (2)(a) is applicable whatever the source of power is to take. If I am wrong about that, and the making of a taking order in the exercise of two available powers produces more than one head of compensation, then no doubt it would be a matter for the person affected to elect which they chose to pursue. This is, of course, concerned with the consequences of the exercise of the power rather than the preconditions to it. Whatever the answer to the question of what is the taking date, it does not affect the fact or the conclusion, in my submission, that there was a valid and effective taking in this case.

HAYNE J: Assume that the question of the engagement of one or other of two provisions in 241 is to be resolved according to some choice the person whose land is compulsorily acquired, how is what appears in the column, to which I have drawn attention either read alone or when read in conjunction with what appears between lines 20 and 30 on page 126 of the taking order, demonstrative of the use of any land or any interest in land required for the purposes of a work if that work is, as I understand your argument, to be identified only as the purpose of a railway authorised by a special Act?

MR MITCHELL: One may have identified two purposes for the taking of all of the land. One may have identified one parcel of land which is taken partially for one purpose, partially for another. It would be a question of fact to determine in this case, in relation to zoned portions of 7 and 8, that they were taken only for the purposes of the railway. Likewise, if there was any extent to which the reserved land was not required for the purposes of a railway but was required for the purposes of a road. I am not sure if that answers your Honour’s question, or if I have misunderstood the question.

HAYNE J: That is a matter for you, Mr Mitchell.

MR MITCHELL: Yes.

HAYNE J: Who knows where it comes out yet.

MR MITCHELL: Your Honours, the appellants refer to the Commission’s purpose, and there is no doubt otherwise than that this was, at least in part, an exercise of the power under section 13 of the Planning Act evidenced by the consent of the Governor. So one is concerned with the concurrent exercise of what we say are the two available powers. It is perhaps not surprising that the documentation in relation to the Commission’s consideration dealt with the extent of the Commission’s power. A point is that under section 177 a taking order is made by the Minister and that that power can be available for exercise irrespective of the powers of the Commission.

FRENCH CJ: How does it work? Section 13(1)(b) empowers the Commission as responsible authority to “take compulsorily, under and subject to Part 9”. How does the Minister get into that Act?

MR MITCHELL: Because the taking “under and subject to Part 9 of the Land Administration Act” involves a taking order made by the Minister.

FRENCH CJ: But how does that end up being characterised as a taking by the Commission?

MR MITCHELL: Perhaps if I can complete the statutory picture and then answer your Honour’s question by reference to the decision of this Court in Estates Development where a similar problem arose. The provisions I wanted to refer to in the Land Act that deal with what can happen once the Minister has taken the land by taking order. First it appears in section 161(d), page 46 of the book legislation:

any interest in the land held by the Crown or taken from some other person under paragraph (a) may be disposed of or granted to any other person –

Section 178(2)(d) enables a taking order as necessary to:

provide that specified interests are to be disposed of or granted in land affected by the order to specified persons.

Under subsection (3), that interest can include a fee simple - - -

FRENCH CJ: Just stopping at (d) for a moment. That is effected, is it, by the third paragraph of a taking order on page 126:

it is directed that the said lands . . . an immediate disposition to the Western Australian Planning Commission.

MR MITCHELL: Yes.

FRENCH CJ: That is being treated as a taking by the Commission under section 13 - - -

MR MITCHELL: That is, and that is how the Court approached a very similar question in Estates Development [1952] HCA 42; 87 CLR 126. Perhaps I can take your Honours to that decision. One sees the form of the taking order at page 128 of the report, a reference to State Housing Act, Public Works Act which at that time was the resumption statute, reference to a land resumption, notice given, several parcels have, pursuant to the written approval and consent of Governor, been taken or resumed for a public work, namely, State housing. They were then marked off, and then in the third paragraph of the order:

And it is hereby directed that the said lands shall vest in The State Housing Commission for an estate in fee simple in possession for the public work herein expressed, freed and discharged.

The power that was being exercised in that case appears at page 133 of the report. Section 21(1)(b) of the State Housing Act, provided that:

the Commission may from time to time exercise the following powers: – . . . (b) subject to subsection (2) of this section with the consent of the Minister, to take and compulsorily acquire any land under the powers contained in and in accordance with the procedure prescribed by the Public Works Act.

The Court, at page 134, point 6 on the page, said that the language of that provision, although somewhat unhappily expressed, was a provision conferring power. That is consistent with the way that both parties regard section 13(1)(b) of the Planning Act in this case. And that the power could be exercised by means of a Gazette of a notice for the Governor, who at that time was the person able to make the notice, together with the direction by the Governor that the land vested in the Commission.

So to the extent that one looks through the prism of section 13, that mechanism for the Commission effecting a taking was recognised by this Court in Estates Development as available to it. The mechanism is, of course, also consistent but its Minister is simply making a taking order for the purposes of a railway in the exercise of concurrent powers.

FRENCH CJ: That is 177(2).

MR MITCHELL: Yes. There is clearly a power in the Land Act for land taken for the purposes of a railway under section 177(2) to be vested in any person including the Commission. That then brings me to the question of severance of the taking order. The appellants principally rely on the decision of this Court in Thompson and, in my submission, it is important to understand the facts of that case and that perhaps is most easily done with some aid of some colouring in. If I could hand up a copy of page 90 of the report of Thompson [1950] HCA 33; 81 CLR 87 which is in the CLRs a black and white plan of the area concerned.

The area highlighted in yellow is that area which was the subject of the taking in that case. Your Honours will see that there were two horizontal streets, Bloomfield Street and Wisdom Street. It was proposed to close the whole of Wisdom Street and part of Bloomfield Street to construct in their place a road which is shown travelling in generally a north south direction. Your Honours will see that significantly more land than was required for the purposes of that road was taken, including some parcels which were neither going to be landlocked nor occupied by any part of the relevant road.

What had happened and the reason for pursuing that scheme appears at page 102 of 81 CLR where, after reciting the history which involved the difficulty facing the council being that Bloomfield and Wisdom Streets had not been made roads, there was a report to the works committee referred to in the first full paragraph on page 102 by an engineer:

He estimated the cost of the road –

that is the vertical road, if I can call it that –

at £8,220 as against £7,950 the estimated cost of constructing Bloomfield and Wisdom Streets. But he pointed out that, if the lands of the plaintiffs and of the other owners in the area were resumed, the excess on the resale of the resumed lands over the cost of their resumption would be £2,046 and this would reduce the estimated cost of the new road to £6,174, so that, with the assistance of these profits made from the resumptions, the new proposal would be the cheaper method by about £1,776.

Council adopted that resolution, realised it could not do it under the statute which it purported to, passed a further resolution referred to at the foot of page 102 over to 103 resolving to resume the land under a different power. Now, of course, what is the whole point of the construction of the vertical road would thereby be lost if it was not possible to sell land not required for the purposes of constructing that road. So one can readily understand why the Court considered that there was no severance possible in the circumstances of that case. Equally, it is clear that much of the land acquired was acquired simply for the purposes of reselling it at a profit so as to reduce the costs of the public work. Thompson and Duggan are cases which recognise that that is not generally in this context a permissible purpose. Here there is no suggestion that it was a purpose of any person to take the appellants’ zoned land with a view to resale and thereby making a profit.

If I can take your Honours back to Estates Development in 87 CLR, the Court considered Thompson in a context where in that case there was a larger area of land required than was needed for immediate use, that land being acquired for the purposes of avoiding paying an increased cost later on as land values increased. At the last line of page 139 the Court says:

Again, the fact that the commission’s decision to acquire at once a larger area than was needed for immediate use sprang from a desire to forestall anticipated increases in land values shows only that its purpose was to perform its statutory duty with a minimum outlay. That is quite different from a purpose of reselling at a profit so as to offset the cost of resumptions. There is no trace in this case of such a collateral purpose as vitiated the resumptions in Thompson v. Council of the Municipality of Randwick; Howarth v. McMahon; Minister for Public Works v. Duggan; and Baiada v. Baulkham Hills Shire Council.

We say that this is a case where there was an attempt by the Public Transport Authority to perform its statutory duty to construct a railway with a minimum outlay rather than to resell land at a profit.

BELL J: What is the principle that you articulate? I have some difficulty seeing how, if you resume land in order to avoid incurring an expense associated with a statutory obligation to construct a crossing, the matter is to be distinguished in point of principle from resuming a greater quantity of land in order to raise money to fund the development?

MR MITCHELL: Because in the first case the land is being acquired for the purposes of the railway. In the second case it is being acquired for the purpose of making a profit and using that profit to fund the public work and that is a step to remove. That seems to be the distinction which the Court drew in Estates Development.

BELL J: Yes. Well, perhaps the Court did not have this in mind in Estates Development.

MR MITCHELL: I am sure it did not have the railway issue in mind, but in terms of the principle which is being applied in Thompson, that appears to be the dividing line that at least was recognised in Estates Development. The fact that there was no separate reference to the zoned portion of the land in the taking orders so that one cannot apply pencil rule, in my submission, does not prevent a taking order from having a severable operation.

We have referred, in our submissions, as have the appellants, to the decision of the English Court of Appeal in Thames Water Authority v Elmbridge Borough Council [1983] 1 QB 570. In that case an area of land had been acquired for a sewerage work and it was appropriated to planning purposes by a council resolution. A small part of the area was, in fact, still used for sewerage works. The council’s power of appropriation extended only to land which was not being used for the acquired purpose. The water board which succeeded or would have succeeded to all of the land, had the resolution been wholly invalid, contended that the resolution was not severable and the area still required or still being used for sewerage purposes was not separately identified in the taking order.

The Court of Appeal in this case held that the resolution was invalid only so far as it applied to land still used for sewerage works. In doing so, it referred, at page 578 of the report, to a decision of the Divisional Court in Dunkley v Evans [1981] 1 WLR 1522, a case, the circumstances of which are set out at point B on the page involving a fishing order. The principle which was identified was that which had been explained in an Australian case, referred to at about point D on the page, Olsen v City of Camberwell [1926] VicLawRp 9; (1926) VLR 58 and 68 where it was said that:

If the enactment, with the invalid portion omitted, is so radically or substantially different a law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended it as a whole only, or, in other words, to warrant a belief that if all could not be carried into effect the legislative body would not have enacted the remainder independently, then the whole must fail.

and applied that principle, particularly at pages 580 and 581, to find that the taking order was severable. Thames Water has been cited with approval in a number of Australian cases which are referred to at footnote 77 on page 13 of our written submissions, including the decision of this Court in Port MacDonnell Professional Fishermen’s Assoc Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 at 368 where Dunkley v Evans was also referred to with apparent approval. Can I then come to the issue of survey or lack thereof at the time the taking order was made. We say in the present case there was a delimited area of land which it was - - -

FRENCH CJ: I am sorry, Mr Mitchell, there is nothing in the State Interpretation Act relevant to the reading down of delegated legislation or instruments?

MR MITCHELL: I do not believe so, no.

HAYNE J: That is the point, perhaps, is it? Section 7 of the Interpretation Act deals with construction of written laws and their reading down. What principle is it that is engaged when you say that a taking order can be severed or read down?

MR MITCHELL: One is applying the common law principle in relation to an administrative decision which can be recognised as partly valid in the circumstances identified in cases such as the Thames Water Case, that is, the criteria is whether what you would be left with would be so different as to warrant a conclusion that the legislature would have proceeded with the whole or with nothing.

HAYNE J: But that is antithetical to the whole development of prerogative writ practice, is it not? Prerogative writ practice was, the writ goes or it does not go. The notion of reading down is to inject something new and different, is it not?

MR MITCHELL: My submission is it is not. There are certainly many cases, some of which her Honour Justice McLure refers to at page 321 of the appeal book, where administrative instruments, including warrants, have been read down or severed, including Peters.

CRENNAN J: What paragraph are you at?

MR MITCHELL: I am looking at paragraphs 91 and 92 as well as to the authorities which have been referred to in footnote 77 of our written submissions.

HAYNE J: I have in mind – I may be quite mistaken – that we said something in SST Consulting v Rieson which is the section 4L, is it, of the Trade Practices Act case. My memory may be mistaken, but I think there was some reference to the difficulty that the notion of the so-called common law of severance may bring with it. The phrase trips off the tongue, but content is much more slippery than that.

MR MITCHELL: Content may vary between categories, but it is certainly a common law severance in relation to contracts, restraintive trade clauses and the like. Equally, in a number of cases severance has been recognised as being available in relation to administrative instruments without there being any equivalent of section 7 of the Interpretation Act applying to them as it does to written laws.

HAYNE J: Why would one introduce notions of severability if, as seems to be the case, these instruments, upon registration, have effect on the Torrens system of title to land? It suggests that somehow severance is engaged, what, before registration but after registration, or at least certainly after subsequent dealing, other considerations intrude?

MR MITCHELL: Can I answer your Honour’s question by saying what we say the effect of registration is and the Transfer of Land Act provisions are.

GUMMOW J: Just before you do that, one has to look at page 126 of the appeal book, does one not, which is the last paragraphs of the taking order and I think the lots we are concerned with are in the second sentence “to be totally cancelled”? See the last paragraph on page 126 – 130, I am sorry. I have the numbers wrong again. Page 130. It is the numbers in the middle of the page. It is the last page of the taking order, the last sentence.

MR MITCHELL: Yes. I think one has to read that with what is at point 40 on page 126. Those lands are then held. One sees the product - - -

GUMMOW J: What I am, in effect, putting to you is if there is to be any severance, it might be at the stage right at the end there before the title changes, that is to say, that what Mr Viner would get would be an order that those certificates of title should not have been totally cancelled and that new certificates of title should not have been issued. That brings us to the Land Act.

MR MITCHELL: Or the Transfer of Land Act.

GUMMOW J: The Torrens Act.

MR MITCHELL: Yes, the Torrens Act. What we say about that is that even if one were to assume the taking order was an invalid instrument, the effect of the registration, which you see on pages 31 and following of the appeal book, of the Western Australian Planning Commission as registered proprietor of the estate in fee simple was that legal title - - -

GUMMOW J: Registered title.

MR MITCHELL: In a system of title by registration, therefore we say legal title, transferred to the Western Australian Planning Commission and the indefeasibility provisions, which I can come to in more detail, were engaged, with the result, we would contend - - -

GUMMOW J: Wait a minute. Not as between these parties because there is no intrusion of a third party yet, is there? There would be a personal equity to change the register back, would there not?

MR MITCHELL: According to a number of the authorities we have referred to - - -

GUMMOW J: I do not know, but is that not the area of debate?

MR MITCHELL: That is the area of debate. If the taking order were invalid, it would be the same as any registration by invalid instrument, that is, legal title, immediately indefeasible but subject to any in personam claim for the return of the land. The question which would then need to be agitated in this case on remittal would be whether there was any such in personam claim which would entitle the appellants to the order which they indicated they would seek in the Court of Appeal for the return of the land.

Severance cannot depend on the operation of the registration because once the Commission becomes registered in fact, one then has legal title transmitted, even if by invalid instrument. A number of cases which would no doubt be the basis of this matter were returned as to whether or not there is any equity in those circumstances for a return of the land or, as the Commission would contend, a right to compensation under the provisions of the Transfer of Land Act rather than the Land Act to a registered proprietor who through wrongful registration had lost their title to the land.

FRENCH CJ: Strictly speaking, is there a transmittal or is it an extinguishment? I am looking at 179(b).

MR MITCHELL: It is an extinguishment, your Honour.

FRENCH CJ: So there is an extinguishment and then in place of the previous registered owner, you have the Commission?

MR MITCHELL: Being granted an interest under - - -

FRENCH CJ: That is by the effect of the order. I am just looking at the effect of the order of 179(b).

MR MITCHELL: The effect of the order was to extinguish the estate in fee simple which the appellants had held in the land, to then make an immediate disposition under section 178(2)(d) to the Commission and to make orders for the cancellation of existing certificates of title under section 178(2)(f).

FRENCH CJ: It is a bit hard, is it not? The registered interest relates to a lot. The operation of the taking order extinguishes the registered interest. How can it be read in a way that something less - what is it that is extinguished on a severance application of the taking order, or a severed application, perhaps?

MR MITCHELL: If we are correct in our submissions about the operation of the Transfer of Land Act, what happens is that there is an extinguishment of the appellants’ interest, a grant of a legal interest to the Commission even if the taking order is invalid and a right in the appellants to claim compensation under the provisions of the Transfer of Land Act.

HAYNE J: Let me just understand this, Mr Mitchell, because this is a rather large submission coming from your side of the Bar table. You are saying, are you, that action done in excess of power which leads ultimately to registration leaves the person who has suffered the excess of power to a claim against to against the general assurance fund under the Torrens Act. Is that the proposition?

MR MITCHELL: Not quite. It leaves the person with a claim for compensation - - -

HAYNE J: From whom?

MR MITCHELL: As against the Commission as the wrongly registered proprietor.

HAYNE J: Against the Commission?

MR MITCHELL: Yes. Then one would deal with the question of how much compensation and what the relevant date of taking was, the date of valuation was, in that process. If I am wrong about that, then the consequence of the registration of an invalid taking order would be extinguishment of the estate in fee simple, the vesting of legal title in the Commission and an equitable right in the appellants as against the Commission to have the land returned to them.

FRENCH CJ: Or the interest recreated.

MR MITCHELL: To have an estate in fee simple as a legal interest returned to them, yes. Surprising as the proposition might seem at first blush, there are a number of decisions to which we have referred to in the footnotes of our submissions which support the proposition that there is no equity for the return of the land in those circumstances. In particular, a decision in Boyd v Mayor of Wellington [1924] NZGazLawRp 58; [1924] NZLR 1174 which was affirmed in Frazer v Walker, the decision of the New South Wales Court of Appeal in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 542 to 543, a decision of the South Australian Court of Appeal - - -

GUMMOW J: That Shoalhaven Case, has that been dealt with since in New South Wales? I have an idea it has.

MR MITCHELL: Not that I have a note of, your Honour. It may have, but - - -

GUMMOW J: What did it decide, anyway?

MR MITCHELL: It decided, effectively, that where the counsel had registered an invalid - - -

GUMMOW J: Is that Mr Justice Mahoney’s decision, is it?

MR MITCHELL: It was a decision of Justice Hutley with Justice Reynolds concurring and the other members of the court, I do not remember who that was, I believe may have been in dissent. I do not submit that it is necessary for this Court to determine the question of whether there would be - - -

GUMMOW J: But it does have some impact on the form of the declaration. I know that is not your problem necessarily. Various authorities encourage us not to make declarations written on water or in the air, so and so forth. We may be about to do so unless we grapple with these further problems as to how this order worked.

MR MITCHELL: The answer to that question in the Court of Appeal was that the Court did not make any declaration even in relation to the zoned portion of lot 30 it being seen as appropriate to remit the question of what, if any, declarations would be made to the trial judge for consideration after all of these questions had been considered. I had thought or perhaps hoped that the issue did not require determination at all - - -

GUMMOW J: Part of the problem is 179(a) says, “the order has effect according to its terms”, and the last two paragraphs of the terms seem to mandate alterations to the register by the cancellation to give effect to the extinguishment under 179(b) and to give effect to the vesting and that all seems to flow from the very taking order. We are invited to make the declaration about the taking order, are we? That is my problem, anyhow.

MR MITCHELL: Yes. The difficulty that one faces is that that until one has resolved perhaps some of the indefeasibility issues, the question of whether one makes a declaration is difficult, I accept that, and that is why we submit that the appropriate outcome if we are unsuccessful would be remittal back without the making of any declaration for these issues to be determined by the trial judge. Your Honours, I was going to deal with the provisions of the Transfer of Land Act that deal with registration as well as indefeasibility. If I can hand up a bundle of provisions which were not included in the book of legislation.

GUMMOW J: Section 179, we have just been looking at, seems to have an impact on the Transfer of Land Act which I think at the Transfer of Land Act end of things is not acknowledged. Do you see what I mean? There is no express interlocking between the two statutes, is there, in this particular problem?

MR MITCHELL: I think that is right, or to the extent that there is, the reference to registration of a taking order under Part IIIB of Transfer of Land Act is confusing, to say the least, because there is no provision in Part IIIB for that registration to occur.

GUMMOW J: Has there ever been?

MR MITCHELL: I do not believe so. Part IIIB was inserted to deal with the issue of certificates of Crown land title to create a Torrens system for Crown land in Western Australia.

HAYNE J: What you have handed up seems not to include Part IIIB, is that right?

MR MITCHELL: It is, because I could not find anything in them that seemed relevant to the exercise. We can certainly provide them. The relevant provisions seem to be, firstly, section 48 which provides for the creation of a register, section 48A which deals with certificates of title with a requirement in section 48A(2) for the registrar to endorse on certificates “particulars of all dealings and matters affecting the land”, section 52 providing for the creation of a certificate of title and in section 52(2) for the registration of an “instrument purporting to affect any land for which a certificate of title has been” issued subject to a memorandum referred to in section 56 being provided. Section 56 refers to the memorandum to be entered into the register. Section 58 provides that no instrument is effectual, to heavily summarise, until registered. One then has indefeasibility provisions, the principal ones being section 63, section 68 and section 199.

We say, if one looks at the power to take land as extending to all land but a delimited area, there is no difficulty in this case, particularly if all we are concerned with the is zoned portion of lot 30, without recognising that the taking order has a valid operation so far as the power of the Minister so extended. We say that surveys are something which normally accompanies the creation of a certificate of title but is ancillary to the taking of land and not a condition precedent to the making of a taking order. There is, we say, a sufficient delimitation of the extent of the respondent’s authority, at least, by reference to the zoning and reservation under the scheme.

FRENCH CJ: Now, the cancellation of the certificates of title and the issue of new certificates of title to which the taking order refers, is it right to say that that is not of itself the exercise of some substantive power but rather a consequence of the effect of the taking order under section 179, assuming it to be valid.

MR MITCHELL: Yes. The last point I want to make about severance is the comment which her Honour Justice McLure made at page 322 of the appeal book at paragraph 94 of the judgment where her Honour said that:

Any severability order relating to Lot 30 would be conditional upon all necessary steps being taken by the respondent to subdivide the zoned portion of Lot 30 from the balance of the lot.

So that comment needs to be understood in the statutory context where section 20 of the Planning Act prohibited effectively any dealing with land other than as a lot and where section 178 of the Land Act provided for either the creation of new certificates of title or the excising of land from existing certificates. We would accept that that is a power accompanied by a duty to exercise the power in a case where the Commission or the Minister take land which is part of a lot, the duty being to exercise a power in a manner such that the person is not left with less than a lot of land.

GUMMOW J: Can I put this to you, Mr Mitchell. Declarations are enormously convenient development and so on and so forth, but just putting that to one side for a minute. If prohibition was being sought, it would be too late, would it not?

MR MITCHELL: Yes, I do not think there would be anything to prohibit - - -

GUMMOW J: Prohibition against the Commission because it did it.

MR MITCHELL: Yes.

GUMMOW J: Likewise an injunction, I suppose. So we are really left, I suspect, with the possibility of a declaration framed in reference to the last two paragraphs of the taking order, fixing upon particular lots and certificates of title and, in substance, what Mr Viner wants is a declaration which will sufficiently isolate and fix on what has happened in the past to provide him with a basis for saying he has got an equity to upset the registered title, that then being a question for debate as to whether that sort of equity can upset the title. Do you see what I mean?

MR MITCHELL: Yes, and one has to wonder in that situation - - -

GUMMOW J: If that is right, severance disappears. It is a bit of a mirage.

MR MITCHELL: I would accept in those circumstances there are some difficulties perhaps with making a declaration at all rather than simply proceeding to determine whether or not the appellants either have a right to the return of their land or a right to a particular kind of compensation. That is the right liability, et cetera, which is an issue in the proceedings.

Your Honour, what we say her Honour Justice McLure recognised at paragraph 94 is that, as a result of having taken part of a lot, there will be an obligation on the Commission to create a whole lot which is then in the balance of the appellants’ ownership in the event that there is an obligation to return the land to the appellants. She should not, in my submission, be taken to be suggesting that the Court’s order creates a severance as opposed to recognise a partially valid operation of the order.

FRENCH CJ: We need to be clear, I suppose, just for my own purposes, the registration of a taking order is not pursuant to 179. It cannot be equated to the registration of an interest under the TLA. It has a statutory consequence which is the extinguishment of every registered and unregistered interest in the land. Then the consequence of that is that it becomes, I suppose, Crown land and then new titles are issued to, in this case, the Western Australian Planning Commission. Now, if the taking order not be valid, is the extinguishment effected by the fact of registration? We are not talking about engaging with indefeasibility here. This is a different statutory process, is it not?

MR MITCHELL: Except it is a process that leads to the Commission being a registered proprietor of the land.

FRENCH CJ: Well, that may be so, but the question is whether the interest has been extinguished pursuant to section 179(b) which is not in the TLA, it is in the Land Administration Act.

MR MITCHELL: But we say that that extinguishment follows from, if not section 179 itself, then the registration of the Commission as proprietor and the engagement of the indefeasibility provisions.

GUMMOW J: You have to grapple with paragraph (a) of 179, do you not? It says “according to its terms” and its terms seem to speak to the Transfer of Land Act, the last two paragraphs. That is what is a bit bamboozling at the moment.

HAYNE J: That may then take you into a very close examination of the indefeasibility provisions because the indefeasibility provisions that tag is useful but 68, a state of registered proprietor paramount, there may be a nice question about how, if at all, 68 is engaged in a case of this kind where there is a statutory consequence provided by one set of legislation reflected on the register and on its face I would have thought 63 was probably not engaged. Likewise, there may be a live question, is all I am saying about how that collection of sections we all refer to as the indefeasibility provisions are engaged, if at all, in this sort of statutory dealing and statutory adjustment of the register.

FRENCH CJ: That ties back to the question I put to you before, whether the direction at the end of the taking order about cancellation and issue of certificates reflected the exercise of some power which would lock into 179(a) or was just a direction based on the assumed consequence of the taking order taking effect pursuant to 179(b).

MR MITCHELL: If I can deal with your Honour the Chief Justice’s question and then return to be more particular about the indefeasibly provisions and the Transfer of Land Act in response to your Honour Justice Hayne. Coming firstly to 179, the condition of the operation of paragraph (b) is “if the order provides that the land is taken”, so it is not the issue of the certificates of title or any direction that brings about the extinguishment. It is the identification of certain land in the taking order as having been taken. If a parcel of land is not validly indicated as having been taken, there is no difficulty, in my submission, in giving the order a valid operation so far as it refers to land which can validly be taken. So that in respect of that land, registered and unregistered interests are extinguished.

GUMMOW J: Do not these questions that Justice Hayne and the Chief Justice is putting to you about the Torrens system and how these other statutes may impact on it, go back to the South-Eastern Drainage Board Case [1939] HCA 40; 62 CLR 603, do they not? This is not an old problem, I think. All around the country there are other statutes which seem to produce title consequences but do not mesh in very well with the Torrens statutes. The question is, what happens?

MR MITCHELL: Yes. As far as 179 is concerned, my submission is what happens is the extinguishment effect by that section applies to so much land as is validly specified in the taking order as having been taken. Can I then turn to the consequences under the Transfer of Land Act and be more particular about the provisions which I have referred to as indefeasibility provisions. What we say is that under section 63 of the Transfer of Land Act the certificates of title are conclusive evidence that the respondent is the proprietor of land with an estate of fee simple.

We say in relation to section 68(1) that, notwithstanding the existence in the appellants of any estate which but for the Transfer of Land Act might be held to be paramount or to have priority, the respondent as proprietor of an estate in fee simple in the land holds the same free from all unregistered encumbrances. The provision is subject to exceptions including, in the case of fraud which are not presently applicable – the reference to fraud in this context, of course, being to actual dishonesty or moral turpitude, see Farah Constructions v Say-Dee Pty Limited 230 CLR 89 at paragraph 192.

In relation to section 199 of the Transfer of Land Act, we say that no action of ejectment or other action for recovery of land is maintainable against a respondent who is the registered propriety of the land and subject to exceptions which are not presently relevant, the production of the registered certificate of title is an absolute bar in estoppel to any such action against the respondent. Of course, it flows from the fact that this Act provides for a system of title by registration rather than registration of titles, recognised by this Court in Breskvar v Wall 126 CLR 376, particularly at page 385 to 386, that the effect of registration is to vest the legal title in the respondent. Both Breskvar v Wall at 385, 397 to 398, 405 to 406 and 412 to 413, as well as the decision of the Privy Council in Frazer v Walker [1967] 1 AC 569 at 584 to 585.

GUMMOW J: We all know about Frazer v Walker and Breskvar v Wall, but what do you want to get out of it?

MR MITCHELL: That indefeasibility of a registered proprietor’s title is immediate and not deferred, that is, it is available to be observed by a registered proprietor who acquires its interest under a void instrument, and one then gets into the question of whether then - - -

GUMMOW J: We know that, but there is also a reservation in Frazer v Walker about personal equities, is there not?

MR MITCHELL: Yes. That then becomes a question - - -

GUMMOW J: That would be the ground for debate.

MR MITCHELL: To the extent that it is necessary to determine, we would say, relying on the cases we have referred to at the end of our written submissions, that there is no such equity. Your Honours, that then brings me to the power in section 13. I am content to rely on our written submissions in relation to that, except, perhaps, in relation to the submission put by my learned friend that because this land has been reserved for primary regional roads, it is not available for or not a purpose of the scheme to take the land for the purposes of a railway.

Your Honours have been referred to the Peel Region Scheme, clauses 9 and 10 in the book of legislation at page 58. The main effect of reservation is provided for in clause 18 of the scheme, which appears at page 63 of the book, which provides:

Subject to clauses 19 and 20 a person must not commence or carry out –

(a) development on reserved land - - -

FRENCH CJ: I think you are referring to the appeal book, are you not?

MR MITCHELL: Yes, I am sorry. Page 63 of the appeal book. One sees clause 18, the consequence of reservation being a need to obtain development approval, an exception at paragraph 19(e)(iii) on page 64 of the appeal book in relation to railways. The scheme map itself, which appears at page 264 of the appeal book, shows the land to the south of the appellants’ land at about halfway down the page as is folded out being shaded a light grey, which is a railways reservation. That railways reservation also appears in a small grey square just to the north of the university or TAFE campus which seems to be a proposed station and then

emerges from the highway, once again, or the primary regional roads reservation, once again, at the top of the map next to the Lakelands suburb.

One sees from that, the scheme does contemplate a railway line running from the Mandurah Station through the relevant land, including the primary regional roads reservation, and one can say that it is a purpose of the scheme for the Commission to acquire that land. One then comes to the exercise of the power to take and that I think again simply becomes a question of severance, whether one can sever the taking of the reserved land from the taking of the zoned land, assuming that section 161 is not available. Unless there is anything further, those are my submissions.

FRENCH CJ: Yes, thank you, Mr Mitchell. Yes, Mr Viner.

MR VINER: If it please the Court. With regard to the question of the effect of the appellants’ submissions that the taking is invalid, we do seek a declaration of invalidity, as I have indicated before, of the taking of each of the lots. That could be expressed, as your Honour Justice Gummow has indicated, in terms of the last two paragraphs of the taking order, that is, in terms of the certificates of title in which those lots are contained or by reference to the lots themselves.

It is our submission, as set out in the written submissions, rather reflecting the comment of his Honour Justice Hayne, that invalidity in this kind of case reflects that the taking is void and therefore, as submitted, is it a nullity on the authorities as if the taking had never occurred. That is consistent with a reading of section 179 of the Land Administration Act which must assume the validity of the taking, that is, that a valid taking is registered. I would refer the Court to section 170(3) and (4) which are those provisions which require the registration of a taking order.

FRENCH CJ: That is a notice of intention, is it not? Did you say section 170?

MR VINER: I am sorry, that is the notice of intention and I stand to be corrected on that. The registration of a taking order, as I have said, must assume that it is a valid taking which is then translated under the Transfer of Land Act to a registration on the title by which then there is a disposition to the Commission.

GUMMOW J: I suppose if there was not a valid taking and you are asking yourself is there some personal equity to change the register, one might think it is pretty powerful for personal equity to get the register changed as between you and the person or entity that is invalidly taken, one would think.

MR VINER: Well, that is right, but here again I think it is an observation that your Honour made that there is no third party involved. The equities are as between the taking authority and the owner of the land. The consequence of a declaration of invalidity in terms of personal equity arising, can be given effect to by a constructive trust or by an order of the court under section 200 of the Transfer of Land Act, which is on the last page of those sections that my learned friend has provided to you:

Upon the recovery of any land estate or interest by any proceeding at law or in equity from the person registered as proprietor thereof it shall be lawful for the court or a judge in any case in which such proceeding is not herein expressed barred to direct the Registrar to cancel any certificate of title . . . relating to such land estate or interest and to substitute such certificate of title or entry as the circumstances of the case may require.

So that upon a declaration of invalidity by this Court and a reference back to the trial judge, we would be asking the trial judge to make an order or a kind which is permissible under section 200 to cancel the registration in the name of the respondent and reinstate it in the name of the owners whose land was taken, so that in that way these questions of indefeasibility are really to be put aside. Indeed, it would be rather ironic that the State could make an invalid taking order at any time and immediately by registration, which is effected virtually instantaneously, obtain registration as the registered proprietor of land and then sit back and say your claim to compensation now is only under the Transfer of Land Act, where - - -

CRENNAN J: Is the reason you are not asking us, for example, to give certain directions in relation to title that the indefeasibility issue was postponed by consent at the Court of Appeal level?

MR VINER: It was, yes. As I said in opening, we have always, from the trial at first instance, sought a declaration of invalidity with a view then to the legal consequences following from that declaration.

GUMMOW J: It depends in a way what the understanding was as to “the issue of indefeasibility”, I suppose?

MR VINER: I think I can fairly say that all those issues as to what would flow as a consequence of a declaration of invalidity were not dealt with by the Court of Appeal and were referred back to the judge at first instance. The State certainly raised the question of indefeasibility, but not – I would have to check – and not having raised it at first instance.

FRENCH CJ: Are there any implications for the engagement of the registration process with the TLA that a taking order can be annulled within 90 days after its registration by registration of an order to that effect under section 180 of the Land Administration Act? I mean, we are well past 90 days, of course, but I just wonder what it tells us about the nature of the statutory scheme of registration here and its engagement with things like indefeasibility provisions.

MR VINER: It does in one sense, but it does not say anything, in my submission, about the legal consequences of a finding by a court of an invalid taking and, hence, a declaration of invalidity. I point out the obvious in section 179(b) that that is the section which gives effect to the time honoured understanding that upon a valid resumption of land, the right of the owner is converted into a right to compensation. So that again it gives or underlines, in my submission, the implicit assumption in section 179 that it is acting upon a valid taking order and if there is no valid taking order, then 179 does not operate and the owner whose land has been taken then has an equity to obtain the land back.

That also, as discussed with my learned friend, reinforces the submission by the appellants that a finding that a taking order is invalid does not lend itself to any room for severance. As the written submissions have said in the authorities that we have referred to, the taking is if it is bad, it is bad altogether, it is void and the legal consequence of that is that the taking has no effect.

Now, my learned friend sought to obtain support from the discussion in Estates Development about the fact that the land had been taken for housing there at the time that it was on that timing at minimal cost, but that does not help my learned friend at all, in my respectful submission, because the whole point of the decision by the Court in Estates Development in that regard was that the taking was a taking for a legitimate purpose, namely, for housing for the purposes of the State Housing Act and that having been a legitimate taking, then the fact that it was taken now, the land was taken now than in some years time and hence meant it was at a lesser cost than it would be in the future, did not render the taking being for an improper purpose.

In the same way here, the taking for the permitted purpose of a town planning scheme was taken under the same substantive legislative provisions as operated in Estates Development. As pointed out in that case at page 134, the interaction of the statute providing the power to take and the Public Works Act is the same interaction as operates under the Planning Act, section 13, and the Land Administration Act Part 9. So that one can see an historical connection between the way in which the taking was intended to be made in the present case as it was in the Estates Development Case, with the consequence that by the adaptation of Part 9 of the Land

Administration Act, which includes section 161, it does not give to the Commission an additional power to take land under section 161.

The Commission’s power was and always exclusively resided in its power under section 13. One may, in a factual way, confirm that proposition by looking at what the effect of a taking under 161 would be because that taking would be controlled, according to common law, by only being able to take such land as was required for a railway. Now, we know, as a matter of fact, that only part of the land reserved for a primary regional road was required for a railway. So that if it was section 161 which was being relied upon, then it would permit the taking only of such land as was actually required for the railway and not any greater area of land which could also accommodate a primary regional road.

Therefore, the logical conclusion is, as I have submitted before, on the basis of the proper construction of section 13 and the application of Estates Development that the sole and exclusive power of the respondent was under section 13, to take land reserved for a primary regional road and then to exercise the planning permission given by clause 19 to build a section of the railway within that road. The consequence of that is, as I put before, that it gave no power to the Commission to take any of the zoned land at all, let alone for the express purpose of avoiding the operation of section 102 of the Public Works Act.

In my submission then, nothing that has been put forward by the respondent really answers the propositions that have been put forward on behalf of the appellant to establish that the whole of the taking was invalid and there should be a declaration to that effect. May it please the Court.

FRENCH CJ: Thank you, Mr Viner. The Court will reserve its decision. The Court will adjourn till 10.15 tomorrow morning.

AT 3.44 PM THE MATTER WAS ADJOURNED