Mandurah Enterprises Pty Ltd & Ors v Western Australian Planning Commission [2009] HCATrans 83 (1 May 2009)

Last Updated: 6 May 2009

[2009] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P37 of 2008

B e t w e e n -

MANDURAH ENTERPRISES PTY LTD

First Applicant

NEIL ROBERT GRAHAM AND VALMAI EVELYN GRAHAM

Second Applicants

and

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 1 MAY 2009, AT 2.41 PM

Copyright in the High Court of Australia

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

MR R.M. MITCHELL, SC: If the Court please, I appear with my learned friend, MS K.Y. LOH, for the respondent. (instructed by the State Solicitor for Western Australia)

CRENNAN J: Mr Viner is an extension of time required in relation to this application?

MR VINER: Yes, it is and an affidavit has been filed by Ms Rowley.

CRENNAN J: And no opposition to it?

MR VINER: I believe not.

MR MITCHELL: That is correct, we do not oppose that order.

CRENNAN J: Very well. That extension of time is granted.

MR VINER: May it please the Court.

CRENNAN J: Mr Viner, before you start, may we clarify your notice of appeal as part of our attempt to generally understand the application. So going then to application book page 80, what I am seeking to do is get a proper appreciation of how the grounds in this Court relate to the grounds which were argued in the Court of Appeal below. Looking first then at ground 2 at the top of page 80, can you explain to me so I better understand it how that tracks back into the grounds of appeal in the Court of Appeal? One way of putting this is, should we understand that you continue to have an objection in relation to the taking in respect of lot 49, the lot upon which, as I understand the facts, the railway was actually built?

MR VINER: We do in the context that we say the whole taking order was invalid. In other words, the invalidity with respect to lots 7, 8 and 30 tainted the whole of the taking order so far as all the lots, including lot 49, of the applicant’s lands.

CRENNAN J: So that links back to the severance argument, I suppose?

MR VINER: It does, indeed, your Honour.

CRENNAN J: Well, then, just to repeat my question, in relation to ground 2, does that reflect the first two grounds of appeal in the Court of Appeal?

MR VINER: I believe it does because those two grounds of appeal were intended to comprehend all the lots within the taking order. I was looking for precisely the grounds of appeal but, as I recall, they do and they were intended to cover all the lots.

CRENNAN J: Re-agitating those complaints. Then in relation to ground 3, is not the reference there to the Town Planning and Development Act superfluous? Is not the gravamen of the ground of appeal, what I will call the section 102 error, in respect of the zoned part? You notice there in line 2 there is a reference to the Town Planning and Development Act, although I would have thought this ground of appeal concerned the Land Administration Act.

MR VINER: Your Honour is strictly correct in that regard and the reference to the Town Planning and Development Act is put in there for caution but also from the point of view that the unreserved parts, that is, the zoned parts, of lots 7 and 8 could not have been taken validly under the Town Planning and Development Act.

CRENNAN J: Yes, very well. Now, this ground, looking at line 4 then of ground 3, it is the zoned part that is the subject matter of the ground of appeal, is it not?

MR VINER: That is right.

CRENNAN J: Well, I am just pointing out to you that in line 3 you have made a reference to the whole of the first and second appellant’s land, but I think that ground of appeal should be confined to the zoned part.

MR VINER: It certainly is directed at the zoned parts but also directed to the argument that either under the Town Planning and Development Act. or the Land Administration Act, the taking order could not take the whole of each of those lots. That points out the error we say occurred in the court below in seeking to segregate the zoned and the reserved lots of 7 and 8 when the actual taking order did not seek to segregate or separate those parts but sought to take the whole. That then leads on to the question that if as was found that under the Town Planning and Development Act the zoned parts of lots 7, 8 and 30 could not be taken, could severance apply or, more particularly, could there be another source of power under which the zoned parts of 7, 8 and 30 could be taken? So the court below turned to section 161 of the Land Administration Act to find that power.

CRENNAN J: Yes. Does ground 4 add anything to grounds 2 and 3? Is it a discrete point which is being sought to be raised?

MR VINER: No, not discrete, as we have discussed grounds 2 and 3, but to take in and really to say that the purported taking of the whole of those lots by the one taking order was beyond power. So it is in the nature really of saying there should be a declaration to that effect.

CRENNAN J: Yes, I see. In relation to ground 5 – that is the severance point in relation to lot 30 – what would happen if, for example, this Court found against your clients in relation to lot 49 but for them in relation to lot 7? How would that pan out in terms of a severance issue?

MR VINER: Our first proposition is that lot 49 is caught up in the invalidity of the whole taking order and therefore cannot be severed.

CRENNAN J: We understand that, yes.

MR VINER: If, however, the Court was of the view that severance could apply and to sever a particular lot as a whole, then the taking of lot 49 would be valid but the taking of lots 7, 8 and 30 would be invalid.

CRENNAN J: Very well. Sorry for those interruptions.

MR VINER: I appreciate that, your Honour, because that conceptualises and comprehends the various points in issue.

CRENNAN J: In fact, I should finish the point off by saying it is our understanding then that grounds 4 to 8 in the Court of Appeal are not pursued here.

MR VINER: No. We have sought by the drawing of the grounds in this Court to really bring them together, whereas they were much more isolated and - - -

CRENNAN J: Much more diffuse.

MR VINER: Diffuse, yes, that is the better word. Your Honours may have sought to identify lots 7, 8, 30 and 49 in the Peel Region Scheme map, which is in the book of materials at tab 3. Just to put it into practical prospective, if your Honours turn to that map, and whilst they are not marked individually, if I can take your Honour towards the top of the map and the writing “Meadow Springs”. If your Honours can then come down the page to the word “Gordon”, signifying a major road there, and then follow down the red line, which under the index is the line of the primary regional road, and one sees to the right of the line below “Gordon” a large yellow area. That is an educational campus. At the bottom left-hand corner of that yellow area there are two lots. They are lots 7 and 8, in other words, juxtaposed between the primary region road and the educational campus. Then over the road to the left is lot 30.

CRENNAN J: Yes, I see.

MR VINER: Now, lot 49 is immediately above lots 7, 8 and 30. So the effect of it is that lot 49 lies wholly within the reservation, a very small part of lot 7 lies within it, a larger part of lot 8 and of lot 30 fall within the reservation. It is our submission that under the taking order the only source of power to take the land was under the Town Planning and Development Act by virtue of the respondent being a responsible authority by definition, which was then given the power under section 13 for the purpose of a town planning scheme to take land. Under the town planning scheme the whole of lots 7, 8 and 30 were not reserved, parts only of lots 7, 8 and 30 were reserved for a primary regional road and no parts of lot 7, 8 or 30 were reserved for the railway.

So the power of the respondent was to take reserved land under section 13 for the purpose of a primary regional road. The scheme for the taking and the construction of the railway was that when that land was taken, the railway would then be built within the confines of the reserved land taken for the primary regional road. What happened was that the whole of lots 7, 8 and 30 were taken so that the railway could be built.

Their Honours found that only the reserved parts of lots 7, 8 and 30 could be taken under the town planning scheme and that undoubtedly is correct, but the taking order purported to take the whole of each of those lots for the purpose of the scheme and therefore, in our submission, that was invalid. Their Honours, however, having arrived at that conclusion, then considered whether there was some other source of power by which the unreserved parts of lots 7, 8 and 30 could be taken. They turned to section 161 and that is where the court divided. The majority found that section 161 gave to the Commission the power to take the unreserved portions for the purpose of a railway. The dissenting judge, his Honour Acting Judge of Appeal Murray, found that section 161 did not give that power.

In our submission, the reasoning of the court below is wrong because at that point the question of construction under either section 13 of the Planning Act, if I can call it that, or section 161 of the Land Act was whether the whole of each of those lots could be taken by the one taking order and not whether some part of each of those lots could be taken under section 13 and the other part which could not be taken under section 13 could be taken under another power. That is why the court then turned to section 161.

When one turns to section 161, in our contention, section 161 does not give the power to take the whole of each of those lots for the purpose of a railway because not all of lots 7, 8 and 30 were required for the railway, the intention of which was to construct it and operate it within the reserved part, that is, the part reserved for a primary regional road.

CRENNAN J: You are of the view that the dissenting judgment in relation to this 102 issue is correct?

MR VINER: That is right, we do rely on that. We say two things. One is that within section 161, neither expressly nor impliedly, is there a power to take land not required for the purpose of the public work and, secondly, and in particular, there is nothing express or implied in the construction of section 161 which enables land to be taken to avoid a public duty which is imposed by another piece of legislation when the public work is carried out.

CRENNAN J: Did not part of the railway in fact go across part of those lots, leaving aside lot 49?

MR VINER: Yes.

CRENNAN J: I cannot quite follow the argument that that would not be for a railway purpose.

MR VINER: Yes. In respect of that part but not for the purpose of taking the unreserved part, in other words, the parts not required for a railway when, if the railway was built under section 102 of the Public Works Act, a level crossing would have to be built to give access to the privately owned and zoned areas.

CRENNAN J: Does the railway in fact go beyond the reserved parts and partly take up the zoned parts?

MR VINER: No, it does not because it has been built within the reserved part, that is, the part reserved for the primary regional road. The consequence of section 102, in our submission, is that when a railway is built which deprives the private owner of access to their land, then a crossing has to be built and therefore it is, to use the time honoured phrase, an improper purpose to acquire more land than was reserved and allowed under the town planning scheme or more land than was required for the construction of maintenance and operation of the railway so as to avoid having to comply with the public duty.

CRENNAN J: Did the case involve any safety considerations in relation to crossings?

MR VINER: No evidence was given in that regard and on the face of it, no, it was just a standard situation where the railway cut off access to private land and but for taking the whole of the land, access would have had to be provided.

KIEFEL J: Was the approach of Justice Murray simply that the taking of the land for the purpose you have just mentioned, to avoid crossings, simply did not come within the purposes of railway construction?

MR VINER: That is right, and nor within the power given, particularly in legal terms, the power given by section 161. What is quoted at page 105 of the application book is the statement in evidence by the officer responsible for recommending and putting into effect the taking. One can see in the second quoted paragraph he says:

It is further proposed to take several severed portions of land which would otherwise become landlocked –

namely, those parts of lots 7, 8 and 30 which were not reserved –

as a result of the construction of the railway or require the installation of level crossings, which is not favoured by the WAGRC.

There is no reference to safety or any particular aspect of the operation of the railway other than that the Commission does not like the idea of putting a railway crossing in when the Public Works Act says that one must be put there in order to give access to those unreserved parts of lots 7, 8 and 30. Their Honours Justices McLure and Buss in deciding whether it was a valid purpose said that the purpose could be decided subjectively by the taking authority rather than objectively. What the applicant said at the trial and before the court below was that whether the question was looked at subjectively or objectively, there was no power to take the unreserved parts of lots 7 and 8 for the purpose of avoiding section 102.

Our submission is that when one is looking at purpose, one can only look at it objectively in terms of the legislative statement of purpose and can only judge objectively the declared purpose of the taking authority. In other words, we look at the subjective evidence of Mr Hillyard, which I have taken the Court to at page 105, and that subjective purpose cannot control the objective purpose allowed by the legislation. That comes through on the important case of Thompson v Randwick Council where that point is so well made.

So that, in our submission, looking at it as a matter of construction between these three pieces of legislation, we say, firstly, that the only power

of this authority as a responsible authority under the Commission Act and the Town Planning Act in exercise of its power under section 13 was to take only the reserved lands. We say, secondly, that when one looks at the proper construction of the Land Act in section 161 in relation to section 102 of the Public Works Act, the exercise of the power under 161, firstly, does not extend to taking land not required for the public work, namely, the unreserved portions, and, secondly, does not enable the statutory duty under section 102 to be overridden.

We then say as to severance that the court having found that lot 30 was invalidly taken, that that taints the whole of the taking order insofar as it applied to the applicants so as to invalidate the taking of all the lots. Now, on the question of severance, I am not aware of any cases before this Court where this question of severance in resumption has been decided. In the application book at page 108 in paragraph 19, that addresses a number of cases in this Court and other courts within Australia and also in the United Kingdom where severance has been applied in the public law field.

The Port MacDonnell Case I think is the most recent one in this Court where it was held that subordinated legislation controlling fishing could be severed as between one area within South Australian waters and another area within Victoria. It is our submission that when it comes to a question of the validity of resumptions which goes to the exercise of power and proper construction of legislation, once an invalidity is found, then that invalidates the whole and there is not room for severance.

CRENNAN J: How does that work out in practical terms? I mean, I understand you are seeking a declaration that the taking of all the lots is invalid and of no effect, but the railway has in fact been built on lot 49. So can you assist me to understand precisely how the relief would work in a practical way or what is the utility of the relief that you seek?

MR VINER: Well, the utility is that the railway is there but the land on which it is built is improperly taken and all that would be required would be for the respondent to issue a valid taking order, and that limited only to those parts reserved and on which the railway is built.

CRENNAN J: Yes. Well, thank you, that does explain how the consequences would pan out if declarations were made as sought.

MR VINER: Yes. May it please the Court.

CRENNAN J: Yes, thank you. Yes, Mr Mitchell.

MR MITCHELL: Yes, may it please the Court. I will deal with our oral response to the application in three parts; firstly, dealing with the existence of the power to take the resumed land, secondly, whether the form of the taking order was an effective exercise of that power and, thirdly, deal with the severance question in relation to, as the court found it, the invalid application of the taking order in relation to the zoned portion of lot 30.

Putting aside questions of form, we say the point on which this case turned was the power to take the land standing outside the Peel Region Scheme reserve, that is, the zoned portions of lots 7 and 8 and because the power to take the reserved land which was required for the road and railway infrastructure does not seem to be in question, whether the source of that power is the Land Administration Act or the Town Planning and Development Act.

CRENNAN J: Grounds of appeal which raise the issue look as though they are cast widely, but that is because there is a challenge to the whole taking order. I think Mr Viner indicated in his last answer to me that there is an acceptance in a sense that the reserve portions were available for the building of the railroad.

MR MITCHELL: Yes, your Honours, and we say that the question is whether the Land Administration Act empowered the taking of the whole lots 7 and 8. We say that it did. The contentious point on which the applicant failed was concerned with that land to the east of the railway infrastructure which was to be severed from public road access by the track of the southern metropolitan railway. We say the critical question in this case is whether, in the circumstances of this case, the holding of that eastern land in order to avoid the requirement to provide a crossing at that point giving access to the land was a use of that land for the purposes of the railway within the meaning of section 161(1) of the Land Administration Act.

If it was, then the Minister was empowered to issue a taking order in respect of the whole of lots 7 and 8 under the Land Administration Act without the need to issue a notice of intention to take. The trial judge and Justices McLure and Buss answered the question in the affirmative. Justice Murray answered the question in the negative. We would contend the answer given by the majority is plainly correct for the reasons they indicated and that even if the answer was attended by some doubt, even within the Western Australia context, the question is not one which merits a grant of special leave, and within the national context with which this Court is concerned, the fact that we are dealing with the construction of Western Australian legislation which does not have relevant counterparts in other States, counts against a grant of leave.

Your Honours, what we say is the error in which his Honour Justice Murray fell and into which the applicants fall, is to focus on what is required for the construction of the railway infrastructure rather than what is required for the operation of the railway. One sees a number of references to the construction of the railway in the judgment of his Honour Justice Murray, particularly at pages 69 to 70, and the proposed grounds which the applicants seek to advance, both in ground 2 and ground 3. I refer to the power to take land, and the last line of ground 2, “for the purpose of construction of a public work”, and in ground 3 at the third last line, referring to the purposes of constructing a railway.

We would say that the power contained or conferred by section 161 of the Land Administration Act is not confined to the construction of the relevant public work. If I can take your Honours to that provision which appears behind tab 4 of the book of materials at pages 69 and 70 – pages 136 and 137 of the reprint, one sees that there are two preconditions to the existence of the power conferred by section 161. The first is that, relevantly here:

any State instrumentality 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 –

Now, we would say the operation of a railway is an aspect of the undertaking and provision of that public work as clear from the language “undertake, construct or provide” where one is not only concerned with the construction activity. The second precondition is that:

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

It does not state purposes of the construction of the work, simply the requirement is that there it be for the purposes of the work. The concept of a public work is not confined in the relevant legislation to matters of construction. The term has its Public Works Act meaning and one sees the definition behind tab 6 of the book of materials, page 118 of the book, page 3 of the reprint of the Public Works Act, which defines “public work” to mean and include a number of matters. Not all of them involve any construction at all. For example, at paragraph (14) of the definition on page 119 there is reference to:

(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.

More relevantly for our purposes, paragraph (2) of that definition refers to, “Any railway authorised by special Act”. The term “railway” is defined in the Act to mean more than simply the railway infrastructure, the track. One sees the definition of the term “railway” at section 95 of the Public Works Act at page 145 of the book, or page 30 of the reprint. As including:

all land taken, purchased, or acquired for railway purposes –

There is a limitation which appears in section 96 that:

Every railway shall be made only under the authority of a special Act –

It is because of that limitation that the special Act in this case refers to the construction and maintenance of the railway infrastructure. What we say is that the construction of the railway must be authorised by a special Act before the railway has a status of a public work, but that once the railway has that status, land may be acquired for use in undertaking, constructing or providing that railway.

In this case the power to operate the railway was conferred on the Public Transport Authority by provisions of the Public Transport Authority Act, which I need not take your Honours to. If one returns then to section 161 of the Land Administration Act, for the purposes of that provision the Public Transport Authority was a State instrumentality authorised by the Public Works Act and the Special Railway Act to construct the railway and authorised by the Public Transport Authority Act to undertake and provide that railway.

We say then, and the evidence was, that the Public Transport Authority or its predecessor did not desire a crossing at this point. The reasons for that were not expanded on in evidence but, in my submission, they are relatively obvious. A crossing has obviously both costs and operational significance for a railway and therefore we say that the majority of the court and the trial judge correctly held that this was a use of that land for the purposes of the railway in order to avoid the obligation which would arise under section 102 only if there was private land left severed from public road access to provide a crossing.

As a matter of form, we say the taking order was an exercise of the power conferred by sections 161 and 177 of the Land Administration Act, as well as the power conferred by the Town Planning and Development Act read with the Western Australian Planning Commission Act. One sees, if one turns to tab 1 of the bundle of materials, that the Land Administration Act is referred to in the second line of the heading of the taking order. There is reference to railways as a purpose. There is reference in the first paragraph to land being:

compulsorily taken under Section 177 of the Land Administration Act 1997 and set apart for the purposes of the following public works –

including railways. The notice is in fact signed, on page 185, not of the book, but of the last page of the extract behind tab 1, by the Minister for Planning and Infrastructure who is the Minister referred to in the Land Administration Act empowered to make a taking order. The lands one sees at the bottom of page 1 in the last main paragraph is:

to be held as Crown land in the name of the State of Western Australia and an immediate disposition to the Western Australian Planning Commission for an estate in fee simple in possession –

That was the mechanism by which it came into the ownership, as it were, of the Planning Commission. We say that is consistent with the power being exercised, being that under the Land Administration Act as well as the Town Planning and Development Act. We would say, as Justice McLure found at paragraphs 80 to 86 of the judgment below, the applicants did not establish the absence of a subjective intention to rely on section 177(2) and, in any event, it was not necessary that that subjective intention exist. In relation to severance - - -

KIEFEL J: Do I understand your argument to be that it is sufficient to be a purpose of railway for the holding of the land to be neutral and not to be put to any active purpose such as construction or, as Justice Murray says, the usual works and facilities in connection with a railway?

MR MITCHELL: That may not be sufficient in all - - -

KIEFEL J: I think on your argument, unless I am misunderstanding it, you are saying that it as a mere holding would be sufficient.

MR MITCHELL: As long as that holding can be related to the purposes of the operational construction of the railway, in this case avoiding a crossing.

KIEFEL J: Are you saying then that the purpose of a railway with respect to land can be any land which is useful to the railway authority?

MR MITCHELL: For the purposes of operating the railway. There is an analogy here, we would say, with the decision of this Court and the Privy Council in the Council of the City of Newcastle v Royal Newcastle Hospital Case where there was a passive holding of bushland which was seen as desirable for the purposes of a sanatorium at the time and that was held under a relevant rating legislation to be a use of the land for the purposes of the public work or public activity that then led to the exemption of race.

CRENNAN J: So putting that altogether, you are saying that a passive use is one which is covered by the legislation?

MR MITCHELL: Yes, or at least one which is capable of being covered in particular circumstances. That is not to say that in every circumstance the passive use would be sufficient and we say that this case really does turn on its particular facts even within the West Australian legislative context. An analogy with a case which was referred to by the applicants of Prentice v Brisbane City Council where there was no obligation to provide road access and land was simply taken to avoid it from being cut off, one may have had difficulty in saying that that was use for the purposes of the road or the railway because the holding did not impact on either the construction or operation of the infrastructure in question. But here we say that there is that obvious impact in relation to crossings and the holding of land to avoid the need for a crossing which obviously can affect the operation of the railway is a use of that land for the purposes of the railway.

KIEFEL J: Putting your argument in that way seems to involve a necessary element of a subjective intention on the part of the authority, rather than looking objectively to the use to which the land is going to be put.

MR MITCHELL: Not entirely, your Honour. One takes account of the decisions which the relevant authority, in this case the Public Transport Authority, make as to the work that has to be involved as in both the Estates Development and Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board, two cases referred to in our submissions. This Court proceeded on the basis of decisions that had been taken as to what was required in the particular circumstances, whether it be a larger building or a smaller building. Having dealt with that perhaps subjective element or recognising that the public authority has the power to determine the form of the public work, one then asks the objective question, is the use of land required for the purposes of that work?.

KIEFEL J: But here, as I understand the argument that you have put, is that it is sufficient if the land is taken because it is intended to hold it in order to not construct a crossing which seems to somehow reverse the natural order of things.

MR MITCHELL: If a decision is made by the Public Transport Authority that a crossing should not be in place at this point, as a matter of its decision, then objectively in this case the holding of the zoned portions of lots 7 and 8 is required for that purpose. The Court of Appeal recognised

that this objective element, when it dealt with the zoned portion of lot 30, subjectively but mistakenly the purpose of that taking was to avoid a loss of public road access to the zoned portion of lot 30. As a matter of fact, lot 30 as a zoned portion did not lose public road access and the Court of Appeal determined objectively that zoned portion of lot 30 was not capable of being used for the purposes of the public work and held that the taking order in relation to that zoned portion of lot 30 was beyond the power.

So, in that way the Court of Appeal did recognise the objective element or the objective question has to be asked under section 161 but in the light of decisions which are taken by the relevant authority as to the form of the public work, in this case where crossings were to be located. We certainly do not say that is wholly subjective.

In relation to severance, can I simply to our written submissions that this Court in Estates Development [1952] HCA 42; 87 CLR 126 at page 142 – I need not take your Honours to the passage – recognised that the taking order might be severable at least in respect of different separately identified lots of land and this Court in Port MacDonnell has recognised that severance – in that case in relation to subsidiary legislation – was not dependent on the application or availability of the blue pencil rule able to separately identify some text in the instrument which is capable of being struck out. If it please the Court, those are my submissions.

CRENNAN J: Thank you. Mr Viner, we will not trouble you with a reply.

MR VINER: May it please the Court.

CRENNAN J: Special leave is granted in this matter. That brings us to the question of how long will the hearing of the case take? Would it be a one-day case, in counsel’s estimate?

MR VINER: I would think so, your Honours. Yes, I would think so.

CRENNAN J: Very well. It will be fixed for hearing on that basis.

MR VINER: May it please the Court.

CRENNAN J: Thank you.

Adjourn the Court until Tuesday, 19 May 2009 at 10.15 in Canberra.

AT 3.25 PM THE MATTER WAS CONCLUDED