Mandurah Enterprises Pty Ltd v Western Australian Planning Commission

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2 (3 February 2010)

Summary:

Majority: French CJ, Gummow, Crennan and Bell JJ

Separate judgment: Hayne J (differed on question of relief granted)

Decision: Appeal allowed in part.

Appellants submitted that the compulsory acquisition of certain lots of land by the Western Australian Planning Commission (“WAPC”) was invalid and of no effect because the relevant taking order was made ultra vires. The WAPC argued that the taking order was a valid exercise of power under the Land Administration Act 1997 (“Land Act”) and the Planning and Development Act 1928 (“Planning Act”). The majority held that the taking order was valid in respect of the reserved portions and invalid in respect of the zoned portions. Though not deciding the issue, the Court suggested that the common law principles of severance may be applied to executive orders which purport to effect certain acquisitions, some of which are valid and some of which are invalid.

Facts:

The Appellants owned four lots of land the subject of compulsory acquisition by the WAPC. WAPC acquired the land as a result of a taking order issued under s 177 of the Land Act. The taking order identified the purpose for which the lots were taken as “Railways” and “Primary Regional Roads” [6] with the intention to develop the South-West Metropolitan Railway over portions of each of the Appellant’s lots, two of which were to become landlocked and lack access by public road and thus require the installation of crossings as a result of the construction of the railway [38].

The lots in dispute were each located in the Peel Regional Scheme (“PRS”) and, to varying degrees, were reserved for primary regional roads. Lots 7, 8, and 30 were partially reserved and the whole of lot 49 was reserved. “Reserved land” under the PRS is land reserved for a public purpose, which includes, relevantly, primary regional roads and railways [23]. The unreserved portions of lots 7 and 8 were zoned “urban” and the unreserved portion of lot 30 was zoned “industrial”.

In the Court of Appeal (WA), it was held that the taking order as it related to the zoned portion of lot 30 was invalid as it was taken on the mistaken belief that the railway to be constructed would prevent access to the unreserved portion via a public road and thus require the construction of level crossings. Further, it was held the zoned portion of lot 30 was incapable of being used for the purpose for which it was taken (i.e., railway purposes). These findings were not in dispute at the High Court. As such, the issues to be decided in these proceedings with respect to lot 30 related solely to the issue of severance, which is discussed below.

Decision:

The two main issues for the Court to decide centred on whether WAPC lawfully exercised its power to acquire the lots and whether an invalid taking was capable of being severed from valid takings under the same taking order without infecting the validity of the order in its totality.

Power:

The Court held that the Planning Act was the source of power of the taking order as it purported to cover the parts of the lots that were reserved under the PRS. [41]

Further, the Court decided that the taking of the reserved portions of lots 7, 8 and 30 and the whole of lot 49 was valid under s 13 of the Planning Act and the taking of the zoned portions of lots 7, 8 and 30 was invalid and not authorised by the Planning Act or the Land Act. [41]

In regard to the lots reserved under the PRS for “Primary Regional Roads”, the Court held that s 13 of the Planning Act clearly permitted the taking of land “for the purpose of a town planning scheme”. Finding that the PRS was a town planning scheme for the purposes of the Planning Act, the Court held that the compulsory acquisition of lot 49 and the reserved portions of lots 7, 8 and 30 were for the purpose of the PRS and therefore within the power conferred by s 13 of the Planning Act. [34]

However, the Court held that the taking of the zoned (unreserved) portions of lots 7, 8 and 30 was invalid and the taking order was not authorised by the s 13(1)(b) of the Planning Act or s 161 of the Land Act. The Court reasoned that the compulsory acquisition of the zoned portions of lots 7, 8 and 30 was not for the purposes of the PRS and therefore the taking of them was beyond the power granted under s 13(1)(b) of the Planning Act.

Further, the Court accepted the appellants’ submission that the taking of the zoned portions of lots 7, 8, and 30 was not for railway purposes, but simply to avoid the statutory duty under s 102 of the Public Works Act 1902 to construct rail crossings: “Acquiring land for the purpose of avoiding the construction of a level crossing is patently not acquiring land for the purpose of a railway or for purposes incidental to the undertaking of, construction or provision of a railway”. [40]

Severance:

In regard to “severance”, the Court decided that in light of the relief ordered in its findings it was unnecessary to determine this issue finally. [48] However, the Court did indicate that the principle of severance might be applied in cases of the compulsory acquisition of lands where there were different lots.

Hayne J:

Hayne J agreed generally with the majority but disagreed as to the relief that should be granted. In particular, his Honour did not accept that the taking order should be described as being “valid” or “invalid” as to part of the order [58]. In other words, the taking order could be “valid” or “invalid”, not partially valid as it related to the reserved portions of the lots and partially invalid as it related to the unreserved parts of the lots. Using these terms in this way, his Honour considered, presented “no little danger that the use of the language of validity and invalidity may mislead” [61].

Accordingly, his Honour made orders that the appeal be allowed in its entirety.

Commentary:

At first glance, this case is simply one of statutory interpretation. However, in the interpretation of statutes there is the common law presumption against interfering with property rights that one must contend with (see, e.g., French CJ in R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta City Council [2009] HCA 12 (2 April 2009)). In this case it appears the High Court was more prepared than the WA Court of Appeal to interpret the relevant statutes under the light of this presumption.

Clearly, the advice the WAPC received regarding acquiring the entire lots so as to avoid the expense of constructing rail crossings was not viewed favourably by the Court. Nonetheless, I suggest the facts of this case paint a circumstance whereby perfectly reasonable minds may differ as to the disposition of the claim, and for that reason I am surprised it was granted special leave. The fact that only partial costs were awarded to the Appellants, although they substantially prevailed, indicates to me that the Court may have had a bit of heartburn over why this case made it this far. Further, the reticence of the Court to discuss or render a decision with respect to the principle of severance (arguably the only interesting thing about this case) likely positions this case into one of little precedential value.