CITY OF WANNEROO v TAH LAND PTY LTD

4 Relevant to this appeal, Tah Land also agreed to subdivide and transfer title to the City, for no cost, 1.5 ha of the Land described in the Deed as the Community Purposes Site (the Community Purposes Site). It is uncontentious that the terms of the Deed did not stipulate the precise location of the Community Purposes Site, but provided for its subsequent delineation in accordance with the Deed, although there was some debate as to the range of locations within which subsequent delineation was permissible.

5 The City's case at trial, which the learned trial judge accepted, was that the Community Purposes Site was subsequently delineated in a plan dated 8 August 1993 identified as SK6 (Plan SK6).[2] Plan SK6 depicted the Community Purposes Site as Lot 59 in the north‑east of the Land, as follows:

6 By its express terms, the Deed obliged Tah Land to take steps to have the Land rezoned and subdivided, and then to transfer the Community Purposes Site 'prior to the commencement of trading of any business on the Land'.

7 Trading commenced, with the opening of the Kingsway Shopping Centre, on or about 3 May 1996, and there was no dispute that Tah Land did not subdivide and transfer the Community Purposes Site prior to that time. Prior to the commencement of trading, the parties exchanged correspondence in March and April 1996 in relation to Tah Land's obligation to subdivide and transfer the Community Purposes Site. While the legal effect of that correspondence was and is contentious, there was and is no dispute that the parties proceeded upon the basis that Tah Land would be permitted to commence trading, notwithstanding that it had not subdivided the Community Purposes Site and transferred it to the City.

8 The City contended, at trial, that the effect of the correspondence in March and April 1996 was to vary the Deed by agreement such that Tah Land was obliged to perform its obligations under the Deed 'when required by the ... City at any time in the future'.

9 The City brought an action against Tah Land in relation to its alleged obligations under the Deed. The City alleged that:

(a) by letter dated 27 February 2019, the City required Tah Land to perform its obligations to prepare a plan of subdivision to effect the subdivision and transfer of the Community Purposes Site by 12 April 2019;

(b) by letter dated 5 March 2019, and thereafter, Tah Land refused to perform its obligations as requested and thereby repudiated the Deed; and

(c) the City accepted Tah Land's repudiation of the Deed and terminated the Deed.

10 The City claimed damages for breach and repudiation of the Deed.

11 The trial of the City's action was heard by Smith J.[3]

12 The learned trial judge rejected the City's case that the Deed was varied such that Tah Land was obliged to perform its obligations under the Deed when required by the City at any time in the future. Her Honour concluded that it could not 'be objectively found that there was an agreement reached that the City could call for Tah Land to subdivide and transfer the Community Purposes Site at any time in the future that the City required'.[4]

13 The learned trial judge nevertheless considered what her Honour identified as an alternative (albeit not pleaded) case put by the City, namely that the parties' agreement to forego the time stipulation in the Deed ('prior to the commencement of trading of any business on the Land') gave rise to an implied term enabling the City to call upon Tah Land within a reasonable time to subdivide, and transfer to the City, the Community Purposes Site.[5]

14 While her Honour was satisfied that such a term should be implied following the parties' agreement to forego the time stipulation in the Deed, the learned trial judge concluded that 'the reasonable time for the City to call for Tah Land to subdivide and transfer to it the area of the Land depicted as Lot 59 on Plan SK6, had passed by the time the City, made a call for performance in 2019'.[6]

15 The City's case at trial therefore failed and its claim was dismissed.

16 The City now appeals from the dismissal of its claim.

17 The grounds of appeal raise, in essence, three issues:

(a) whether the learned trial judge erred in concluding that, on the proper construction of the Deed, the City was only entitled to an area of the Land that is for the use of, and provision of, public civic uses (ground 1);[7]

(b) whether the learned trial judge erred in finding that, in the agreement found by her Honour to have been made in March and April 1996 to extend the time for performance, there was implied by law a term that the obligations need only be performed by Tah Land if the City called for performance within a reasonable time (ground 2(a)); and

(c) whether the learned trial judge erred in law and in fact in finding that more than a 'reasonable' period of time had passed by the time the City called for Tah Land to perform that task in 2019 (ground 2(b)).

18 In responding to the appeal, Tah Land filed a notice of contention. Tah Land contended that the learned trial judge had erred in concluding that Lot 59 on Plan SK6 became the Community Purposes Site for the purposes of the Deed (contentions 1 and 2). It also contended that the learned trial judge erred in not concluding that the City's claim was precluded by the doctrine of approbation and reprobation by reason of it having approved an Agreed Structure Plan (ASP 59) which was adopted by the Western Australian Planning Commission in 2010 (contention 3).

19 This summary of the issues raised by the grounds of appeal and notice of contention is in general terms. We will return to the scope of each of the grounds of appeal and their interrelationship later in these reasons.

20 For the reasons that follow, we would dismiss the appeal. We are not satisfied that the learned trial judge materially erred in dismissing the City's claim as it was presented at trial. In our view the learned trial judge correctly rejected the City's primary claim that it could call for Tah Land to subdivide and transfer the Community Purposes Site at any time in the future. Having so concluded, and having regard to the manner in which the case was conducted below, we are not satisfied that her Honour erred in rejecting what she identified as the City's alternative claim.

21 Before turning to the proceedings below, we will set out the background facts, including, as part of the chronology, the material terms of the Deed.

22 The evidence in relation to the events between 1991 and 2019 (including the dealings between the parties and the previous owner of the Land) consisted entirely of the documentary record. Other than evidence called from expert witnesses (three planning experts and one valuer), there was no oral evidence adduced at trial. The three planning experts were Stephen Allerding, who was called by the City, and George Hajigabriel and Anthony Shrapnel, who were called by Tah Land.

23 The following summary is taken largely from the Primary reasons, supplemented, where necessary, from the documentary exhibits.

24 The Land was previously owned by Debkot Pty Ltd (Debkot). In 1988 the City received a request on behalf of Debkot to initiate an amendment to the relevant town planning scheme, Town Planning Scheme No 1 (TPS 1) to rezone the Land from rural to a variety of commercial uses. The proposed amendment became Amendment 443.[8]

25 The zoning proposed in Amendment 443 can be seen in the following plan:[9]

26 Relevantly, the majority of the Land (coloured blue) referred to 'Commercial' zoning, the oblong shape coloured orange with a blue circle referred to 'Hotel' zoning, the light blue area with a dot in the north east referred to 'Service Industrial' zoning and the blue areas surrounded in red referred to 'Service Station' zoning.

27 In 1991, the Council of the City resolved to support proposed Amendment 443 on conditions that included ceding to the City 1.5 ha of the Land for a Community Purposes Site. The Community Purposes Site was proposed to be zoned Civic under TPS 1. At that time the City's anticipated community uses and associated land requirements for a Community Purposes Site were a library, a senior citizens centre, a child care centre, a community centre, a youth activities centre and a human services building. Those uses were considered to involve a land requirement of 1.5 ha, being a total building area of approximately 2,656 m² and the remainder for parking bays.[10]

28 On 23 March 1992, the relevant Minister declined to approve Amendment 443 without modifications to the total retail floor space and the staging of retail development. On 6 May 1992, the Council resolved to defer consideration of the modifications until advice was received from Debkot that it agreed to cede land for future road requirements.[11]

29 At around this time, Tah Land agreed to purchase the Land from Debkot.

30 On 7 May 1992, Tah Land agreed to the Minister's modifications, following which the City approved Amendment 443, with the modifications that had been required by the Minister.[12]

31 On 1 July 1992 Tah Land became the owner of the Land.[13]

32 On 2 September 1992, prior to the final approval of Amendment 443 by the Minister, the City and Tah Land entered into the Deed.[14]

33 The City is defined in the Deed as 'the Council' and Tah Land as 'the Owner'.[15]

34 The Recitals to the Deed refer to the proposal to rezone the Land from 'Rural' to 'Commercial, Hotel, Service Industrial and Service Station' and that the Council had been requested to adopt Amendment 443.

35 The Recitals further state that on 29 July 1991, the Council resolved to finally adopt Amendment 443 and take other necessary steps provided that the parties entered into a legal agreement which ensured that:

(i) the Community Purposes Site will be created which will be transferred to Council by the Owner at no cost to the Council whatsoever ...

(ii) the Owner constructs full earthworks, drainage facilities, a dual use path and one carriageway for Hepburn Avenue at no cost to the Council whatsoever;

(iii) the Owners cede to the Council the portion of the Land which is required for the construction of Hepburn Avenue and cede to the Crown a portion of the Land for a 0.1 m pedestrian accessway at no cost to the Council whatsoever.

36 Clause 1.1 of the Deed defines the Community Purposes Site to mean:

[T]hat part of the Land to be zoned 'Commercial' pursuant to Amendment 443 of the TPS and to subsequently be zoned 'Civic' as provided for pursuant to Clause 2 of this Deed and having a total area of FIFTEEN THOUSAND SQUARE METRES (15000m2) which shall be located in the area coloured in orange on the Plan but at such specific location as is determined by the Council in its absolute discretion[.]

37 The definition of the Community Purposes Site refers to a location in the area coloured orange on 'the Plan'. The term 'the Plan' is defined in cl 1.1 to mean 'the Plan annexed hereto and marked A as varied from time to time'.

38 The Plan annexed to the Deed (Plan A) is as follows:

39 As is apparent from the Plan, it was prepared for Debkot. The underlying proposed development depicted on the Land, including a hotel complex, shopping centre and two service stations, generally follows the zoning depicted in the zoning plan forming part of Amendment 443 (see [24] to [26] above).

40 As is clear from the provisions of the Deed that follow, however, it is apparent the Deed contemplated that the development depicted on the Plan and the zoning in Amendment 443 would change.

41 Clause 2 of the Deed concerns the zoning of the Community Purposes Site. It provides:

2.1 Within three (3) years of the date of execution of this Deed, and prior to the transfer of the Community Purposes Site pursuant to clause 4.1 of this Deed the Owner agrees to:

(a) submit to the Council the New Plan;

(b) request the Council to initiate a further amendment to the TPS to include a 'Civic' zone over the Community Purposes Site;

(c) request the Council to initiate a further amendment to the TPS to include a 'Commercial' zone over the Further Commercial Area provided that the Intersection Land is transferred to the Council pursuant to clause 7 of this Deed.

2.2 If the Owner does not submit to the Council the New Plan in accordance with Clause 2.1(a) the Council may (without being obliged to do so) in its absolute discretion determine the location of the Land which is to be zoned 'Civic'.

2.3 If the Owner does not request the Council to initiate a further amendment to the TPS in accordance with Clause 2.1(b) then the Council may (without being obliged to do so) rezone the Community Purposes Site to 'Civic Zone' and the Owner shall indemnify and keep indemnified the Council on demand for the costs incurred by the Council in relation thereto.

42 The term 'the New Plan', used in cl 2, is defined in cl 1.1 of the Deed to mean:

[T]he plan prepared by the Owner to a standard required by and to the satisfaction of the Council which contains similar details as included in the Plan, and:

(a) makes provision for the Community Purposes Site;

(b) makes provision for the Further Commercial Area PROVIDED THAT the Intersection Land is transferred to the Council pursuant to clause 7 of this Deed;

(c) and contains any other details and matters as required by the Council[.]

43 'Further Commercial Area' was defined in cl 1.1 of the Deed to mean a part of the Land in equivalent area to the Intersection Land area to be zoned Commercial to be specifically located at such area as is approved by the City, but generally east of the area to be zoned commercial under the then proposed amendment (i.e. Amendment 443).

44 Clauses 3, 4, 8 and 9 of the Deed are as follows:

3.1 The Owner hereby agrees, prior to the commencement of trading of any business on the Land;

(a) to prepare or cause to be prepared at the Owner's cost the Plan of Subdivision;

(b) to do all acts and things necessary to obtain all clearances and approvals that are required from any relevant authorities in order for DPUD to approve the Plan of Subdivision; and

(c) to submit the Plan of Subdivision to DPUD for approval.

(d) to upon DPUD endorsing its approval to the Plan of Subdivision, forthwith lodge the Plan of Subdivision with the Office of Titles Perth for examination and registration.

4.1 The Owner agrees to transfer the title to the Community Purposes Site to the Council prior to the commencement of trading of any business on the Land.

4.2 If the Council receives what the Council determines in its absolute discretion to be a sufficient amount of funding pursuant to the East Wanneroo Headworks Funding Scheme the Council shall pay to the Owner upon receipt of the Duplicate Certificate of Title for the Community Purposes Site a sum being equal to an amount which the Council determines to be the Residential Value of such part of the Community Purposes Site having an area of FIVE THOUSAND SQUARE METRES (5000m2) which the Council shall determine.

4.3 If the Council is unable to obtain funding pursuant to the East Wanneroo Headworks Funding Scheme as referred to in clause 4.2, then the Owner shall transfer the Community Purposes Site to the Council at no cost to the Council whatsoever.

8.1 The Owner acknowledges and covenants with the Council that the Council may at its discretion request: -

and the Owner will forthwith comply with the Council's requests and requirements.

9.1 The Owner covenants and agrees to do all acts and things and execute all such deeds and documents as are necessary on its respective part to give effect to the terms of this Deed.

45 The term 'Plan of Subdivision', used in cl 3, is defined in cl 1.1 of the Deed to mean:

A surveyed plan of subdivision of the Land which when approved and registered at the Office of Titles, Perth will (inter alia) subdivide the Community Purposes Site from the Land[.]

46 It can be seen that cl 2, cl 3 and cl 4 provided for a three‑step process.

(a) submit a plan to a standard required by, and to the satisfaction of, the City containing similar details as in the Plan that, among other things, made provision for the Community Purposes Site; and

(b) request the Council to initiate further amendments to TPS 1 to include a Civic zone over the Community Purposes Site and to include a Commercial zone over the Further Commercial Area.

48 Secondly, Tah Land was obliged, prior to the commencement of trading of any business on the Land, to:

(a) prepare a plan of subdivision which subdivided the Community Purposes Site from the Land;

(b) take steps to obtain Department of Planning and Urban Development (DPUD) approval for the plan of subdivision; and

(c) when the plan of subdivision was approved, lodge it at the Office of Titles.

49 Thirdly, Tah Land was then obliged to transfer the title of the Community Purposes Site to the Council prior to the commencement of trading of any business on the Land.

50 The Deed also made provision for Tah Land to cede and transfer additional parts of the Land to the City, including:

(a) by cl 5, all that part of the Land coloured blue on Plan A required for the construction of Hepburn Avenue (Hepburn Avenue land);

(b) by cl 6, all that part of the Land coloured red on Plan A required for use as pedestrian access (Pedestrian land); and

(c) by cl 7, all that part of the Land coloured yellow on Plan A required for a major intersection treatment (Intersection land).

51 On 28 October 1992, the Council of the City resolved to adopt Amendment 443 in its final form and forwarded it to the Minister for final approval. Amendment 443 was approved by the Minister on 16 November 1992.[16]

52 On 24 May 1993, Tah Land made an application to DPUD to amalgamate and re‑subdivide the Land in a manner that, if approved, would have created a 1.5 ha Community Purposes Site in an area bordering the north‑east corner of the Land, and well outside the orange circle depicted on Plan A.[17]

53 Following that application, the City Planner met with representatives of Tah Land, including in relation to the location of the Community Purposes Site. The outcome of those meetings and further consideration by the Council of the City was that the plan of subdivision removed the Community Purposes Site on the basis that the site would be the subject of a further application once the exact location of the site was determined.[18]

54 While an amended plan of amalgamation and re‑subdivision (removing the Community Purposes Site) was approved by DPUD on behalf of the Western Australian Planning Commission (WAPC), Tah Land did not implement that plan of subdivision.[19]

1994 - the creation of a Civic Zone in the north‑east corner of the Land

55 On 7 October 1993, Tah Land's planning consultant asked the City to amend TPS 1, to rationalise the zoning of the Land from 'Commercial, Service Industrial, Hotel and Service Station' to 'Commercial, Mixed Business, Civic & Cultural Reserve and Service Station'. The proposed amendment became known as Amendment 672.

56 The zoning proposed for Amendment 672 included a 1.5 ha area in the north‑east corner to be zoned 'Civic and Cultural', as seen marked in orange in the following plan:[20]

57 The Scheme Amendment Report for proposed Amendment 672, prepared by Tah Land's planning consultant, stated that the depicted location of the 1.5 ha Civic and Cultural site had been agreed to by Tah Land and the City. Relevantly, the Report, which is dated October 1993, said: [21]

With relation to this agreement, both Council and the proponent are bound by the agreement to cater for the provision of the required Civic and Cultural reserve. Accordingly, it is necessary to amend the existing zoning over the land to cater for this new zone, the location of which has been agreed will be in the north eastern corner of the land.

58 While the learned trial judge noted that there was no evidence[22] that the City had agreed that the Civic and Cultural zone would be in the north‑east corner of the Land, the City nevertheless resolved to approve proposed amendment 672.[23]

59 Amendment 672 was forwarded to the Minister for approval. The report from the Town Clerk appears to confirm the agreed change of location of the Community Purposes Site. The Town Clerk's report read, in part:[24]

The major change to the layout of the site is generated through the provision of a 1.5 ha area in the north east corner of the site for Civic and Cultural use. This modification and the slight easterly movement of the shopping centre has necessitated the relocation of the original 'Service Industrial' area from the north‑eastern corner to the southern boundary of the site.

60 The Minister approved Amendment 672, which took effect on 3 May 1994.[25]

61 In the meantime, Tah Land applied for development approval for earthworks associated with the development of the shopping centre on the Land.[26] There were discussions between representatives of Tah Land and the City in relation to the levels at which the site would be developed, including the level of the proposed Community Purposes Site.[27]

62 On 9 February 1994, the City approved Tah Land's application for development approval for Stage 1 earthworks and retaining walls. That approval was granted subject to:[28]

7 The City's Community Purpose site being cut to the levels previously agreed upon as detailed on the development application;

8 [Tah Land] being advised that Council is prepared to defer the earthworks for the Community Purpose site providing them with an opportunity to dispose of the sand at a suitable location;

9 Council being able to remove any sand for its requirement from the Community Purpose site within the timeframe;

10 The agreed levels for the Community Purpose site being achieved and stabilised with appropriate retaining works being undertaken on the proposed batters within three years.

63 The minutes of a meeting on 21 April 1994 between the City Planner (Mr Drescher), other representatives of the City and Tah Land, recorded the following having been discussed in relation to the Community Purposes Site:[29]

The City of Wanneroo is currently relooking at the drawings of the Shopping Centre which could impact on the floor level of the Council site. Until the contour of the Shopping Centre is confirmed Council would prefer the site as a natural bush on its site. TAH Land advised City of Wanneroo regarding the dispute with Malavoca.

OD [Mr Drescher] also mention that the council will not be ready to develop the site within 3 to 5 years, and the council could progressively remove the sand from the site, but the ultimate responsibility rest [sic] with TAH Land.

64 On or about 8 August 1994, Tah Land's planning consultant developed revised plans of stages 1 and 2 of the development of the shopping centre, identified as Plans SK6, SK7, SK8 and SK10. Plan SK6, which is reproduced at [5] above, delineated as Lot 59, a 1.5 ha area of land marked 'Community Facilities' in the north‑east corner o[30]the land.30

65 The City Planner recommended that the Council approve Tah Land's application to develop the shopping centre as revised in the revised plans. The City Planner's report included the following:[31]

BACKGROUND

...

As part of the rezoning of the land the owners agreed to, at no cost to Council:

1. Create and transfer to Council the community purpose site.

...

A legal agreement is in place to ensure the above requirements will be satisfied.

At its meeting on 9 February 1994 Council approved an application for earthworks and retaining walls greater than 2 metres in height on the subject land, subject to:

1. The City's community purpose site being cut to the levels previously agreed upon on the development application.

2. The applicant being advised that Council is prepared to defer the earthworks for the community purpose site providing them with the opportunity to dispose of the sand at a suitable location.

3. Council being able to remove any sand for its requirement from the community purpose site within the time‑frame.

...

Integration of Community Purpose Site

Although Council is not expected to develop its community purpose site for several years, further discussions are necessary with the applicant regarding the integration of Council's facility with the shopping centre. These discussions will be associated with proposals for Stage II of the shopping centre and will also take into consideration future residential development immediately north of the subject site. Although the applicants see Stage II being a substantial retail expansion, together with a number of other activities, this will need to be justified when this later application is made. The retail component will no doubt require extensive justification.

...

Hepburn Avenue Construction Works

The Deed of Agreement between the City and the shopping centre owner requires in part, that the developer constructs the full earthworks and a single carriageway (with a dual transition from the Wanneroo Road/Hepburn Avenue intersection) along the shopping centre frontage connecting to Giralt Road and to the existing access road to Kingsway.

This conceptual layout is shown on Attachment 3.

In view of this revised proposal, the extent of the dualling of Hepburn Avenue requires further consideration.

...

RECOMMENDATION:

THAT Council:

1. approves the revised design for the Landsdale District Shopping Centre on Lots 2 and 3 Wanneroo Road, Landsdale, as submitted by Coney Project Management Pty Ltd on behalf of Tah Land Pty Ltd, subject to:

...

4. modifies the legal agreement between Tah Land Pty Ltd to reflect the revised arrangements of this approval.

66 On 28 September 1994, the Council approved Tah Land's application to develop the shopping centre, passing resolutions to the effect set out in the City Planner's report. Condition 27 of the approval required the legal agreement between Tah Land and the City to be modified to reflect the revised arrangements of the approval, with all expenses, including legal expenses, being met by Tah Land.[32]

67 As noted above, the learned trial judge found that the submission to the City by Tah Land in August or September 1994 of Plan SK6 and Plan L01 constituted performance of Tah Land's obligations under cl 2.1(a) of the Deed to submit the New Plan.[33] It may be observed, at this point, that the submission of Plan SK6 and Plan L01 occurred within the three year period within which Tah Land was required to take the steps referred to in cl 2 of the Deed (see [41] above).

68 On 14 March 1995, Tah Land lodged with the Ministry of Planning a surveyed plan of subdivision proposing the creation of a new lot (Lot 152) in the location described as Lot 59 on Plan SK6. The plan of subdivision, dated 1 February 1995 (February 1995 subdivision plan), appeared as follows:[34]

69 As can be seen, in addition to proposing the creation of Lot 152, the February 1995 subdivision plan also depicted areas reflecting the Hepburn Avenue Land and the Intersection Land (albeit that those areas were not identified on the plan as separate lots).[35]

70 Around this time, and prior to the lodgement of the February 1995 subdivision plan, the City considered the proposed subdivision.

71 In an internal memorandum dated 7 February 1995 (internal memorandum), between the Coordinator of Statutory Planning and the City Planner, there appeared to be a suggestion that the location of the Community Purposes Site might be changed. The internal memorandum included the following recommendations:[36]

RECOMMENDATIONS

1. The Community Purpose Site not be created until further negotiations have taken place to achieve suitable location and integration.

2. The Legal Agreement be amended to allow trading from the site prior to the transfer of land to the Council and to enable Council to initiate the transfer process.

72 Following these recommendations, by letter dated 23 February 1995, the City proposed to defer the creation of the Community Purposes Site. That letter did not suggest that a different 'suitable location' for the Community Purposes site might be negotiated (as suggested in the internal memorandum). Indeed, as counsel for the City observed, the correspondence was premised on the site having already been determined as Lot 152.[37] The letter dated 23 February 1995 included the following:[38]

With respect to the community purpose site, it has always been our understanding that the community purpose site would be free of any batters and as there is no design for your proposed second stage and which when finally designed may require some earthworks and batters, it may be prudent to defer creating Lot 152 until it is known whether a second stage is in fact achievable. It would be appropriate at that stage that the community purpose site be created in the knowledge of any change of levels and likely batters which may affect that proposed Lot 152.

To achieve this, however, it will be necessary to vary the Deed of Agreement between the City and the landowners as that specifies that the transfer of Lot 152 must be effected prior to any retail trading from the site.

73 Thereafter, representatives of Tah Land and the City appear to have discussed deferring the transfer of the Community Purposes Site.[39] As a consequence Tah Land, by an amended plan of subdivision dated 14 November 1995 (November 1995 subdivision plan), deleted proposed Lot 152 from the proposed subdivision. The November 1995 subdivision plan was as follows:[40]

74 As can be seen, the November 1995 subdivision plan proposed the creation of two lots reflecting the Hepburn Avenue Land and the Intersection Land.

75 It was the November 1995 subdivision plan that was ultimately approved by the WAPC on 11 April 1996.[41]

76 As was apparent from the City's letter to Tah Land dated 23 February 1995, the City had proposed to Tah Land that the Deed be amended to reflect the City's desire to defer the transfer of the Community Purposes Site until after the commencement of trading of any business on the Land. To that end, on 11 December 1995, Tah Land's project management consultant, Coney Project Management (CPM), wrote to the City requesting advice from the City so that it could instruct solicitors to prepare amendments to the Deed.[42]

77 It is apparent that, by December 1995, Tah Land was expressing concern as to the lack of response from the City in relation to the amendments to the Deed. The matter was discussed at a meeting on 22 December 1995 between representatives of the City and representatives of Tah Land. The minutes of that meeting, prepared by CPM, record the following:[43]

3.0 Amendment to the Deed - Coney Project Management expressed their concern at the lack of response from City of Wanneroo to requests for the City to formally advise the desired amendments to the deed regards the Community Facility Site. Concern now existed that the amendments to the deed would not be finalised prior to the anticipated Centre opening (advised as 26 March 1996). O Drescher confirmed that the City would not delay the Certificate of Occupancy due to this matter.

March to May 1996 - the parties correspond and trading commences at the shopping centre

78 The events of 1996 were critical to the City's case at trial.

79 On 1 March 1996 and 21 March 1996, Tah Land's consultants wrote again, seeking advice about the City's desired amendments to the Deed.[44] Tah Land advised the City that the proposed opening date of the shopping centre was 26 March 1996.[45]

80 By letter dated 22 March 1996, the City responded to Tah Land in the following terms:[46]

Legal Agreement

Condition 27 of the development approval for this centre requires that the existing legal agreement, between the landowner and the City be modified to reflect the revised arrangements of the approval. It may also be appropriate that the timing arrangements relating to the community purpose site be modified at this stage. The legal agreement should therefore be modified to achieve the following:

1. A time extension for the identification, zoning, subdivision and transfer of the community purposes site on the basis that the City is able to require these matters to be carried out at any time in the future if it requires.

If the City receives a letter of undertaking from the landowner agreeing to finalise the above matters to the satisfaction of the City as soon as practicable, then these matters will not delay the issue of the Certificate of Classification for the centre. (emphasis added)

81 By letter dated 27 March 1996 (and received on 9 April 1996), Tah Land responded to the City, stating, so far as was relevant:[47]

Tah Land confirm their undertaking to modify the existing Legal Agreement to incorporate points 1 to 5 inclusive of City of Wanneroo letter of 22 March 1996, on proper and reasonable terms and conditions consistent with the original Legal Agreement. Further it is agreed that ceding of Hepburn Avenue and the required public access ways, and the transfer of the Intersection Land will occur as soon as is practicable. The Community Purposes site will be located to North Eastern corner of our land as shown on our Architectural Site Plan. (emphasis added)

82 The letter dealt with other matters and concluded by stating that Tah Land trusted that the letter clarified all outstanding planning matters, and they looked forward to receipt of the Certificate of Classification for the development.

83 Tah Land sent a follow up letter to the City, dated 17 April 1996,[48] following which the City responded to the letter of undertaking by letter dated 19 April 1996. That letter said:[49]

You are advised that this undertaking is generally acceptable to the City, however the following points should be noted:

1. The principles contained within the existing legal agreement relating to the location of the community purposes site should not change as they adequately cover the issue.

...

Please advise if you do not agree with the above points.

... I have also advised the Building Department that all Planning related matters are in hand and that they should issue the certificate of classification when they are satisfied that building matters have been resolved.

I trust that this now resolves the present issues.

84 On 3 May 1996, the City issued a Certificate of Classification enabling the opening of the Kingsway Shopping Centre.[50]

85 On 13 May 1996, Tah Land sent a facsimile/memo dated 29 April 1996 to the City, responding to the City's letter of 19 April 1996. That facsimile/memo included the following:[51]

W[e] refer to your letter dated 19th April 1996 relating to the above matter and our subsequent discussions and site meeting on 23rd April 1996 and 1st May 1996, and we confirm the three points addressed in your above letter as follows:

1. In relation to the location of the community purposes site, we are in agreement to both the statements included in the Deed dated the 8th September 1992 and a further statement included in the Scheme Amendment Report dated 27th October 1993 confirming the location of the 1.5 ha area (copy of which is attached for your reference). This same location has been further reconfirmed in the overall development site plan which was submitted to and accepted by Council.

86 The memorandum concluded with a statement that Tah Land looked forward to the City's reply. There was no evidence of any reply to that communication.

87 As will be apparent, the effect of these communications between the parties in March and April 1996 was a critical part of the City's case at trial. It is also central to its case on appeal.

88 For present purposes it is sufficient to observe that, as at April 1996, the parties were adopting different views concerning the identification of the Community Purposes Site. While Tah Land contended that the location had been determined earlier and was the lot shown on Plan SK6 in the north‑east corner of the Land, the City maintained that its location had yet to be determined. As will be seen, that difference of position continued.

November 1996 to 1999 - Tah Land attempts to engage with the City

89 On 18 November 1996, Tah Land sent to the City a draft deed of variation of the 1992 Deed, proposing variations in respect of the Community Purposes Site. The draft included the following variations:

By inserting clause 3.2 as follows.

3.2 Notwithstanding the provisions of Clause 3.1, which are insofar as the reference to 'prior to the commencement of trading of any business on the Land' is no longer of any force or effect: -

(a) The Owner hereby agrees upon receipt of the Council's request in writing (which shall be made not later than 12 months from the Date of the Variation), to perform the Owners obligations pursuant to clauses 3.1 (a), (b), (c) and (d).

By inserting Clause 4.4 as follows:

4.4 Notwithstanding the provisions of Clause 4.1 which are insofar as the reference to 'prior to the commencement of trading of any business on the Land' is no longer of any force or effect: -

(a) The Owner shall transfer the title to the community purposes site to the Council within one (1) calendar month from the date of issue of the title for the community purposes site. (emphasis added)

90 The City did not respond to the draft deed of variation.[52]

91 On 2 June 1998, Tah Land re‑sent a copy of the draft deed of variation to the City. Again, the City did not respond.[53]

92 On 10 July 1998, an agent of Tah Land wrote to the City. The letter included the following:[54]

As part of the development approval from the City of Wanneroo for the construction of the shopping centre, parcels of land on the site owned by TAH Land Pty Ltd included community facilities, which will be handed over to the City of Wanneroo for development.

It is the owners desire to annex off the existing site, the parcels of land earmarked by the City of Wanneroo for these community developments.

Council's attitude towards this proposal would be appreciated, alternatively we would welcome the opportunity of meeting with you or your Officers to discuss this matter in the near future.

Your comments in due course would be appreciated.

94 About 18 months later, on 9 November 1999, an officer of Tah Land met with a Commissioner of the City (which was then evidently being administered by Commissioners and not by a Council). Tah Land's representative gave the Commissioner a memorandum which, among other things, identified the plans including Plan SK6 as being the New Plan within the meaning of the Deed, adopted by the Council of the City on 28 September 1994 (see [66[56]] above).56

95 Following the meeting with the Commissioner, Tah Land sent a facsimile dated 10 November 1999, which included the following:[57]

Council at its meeting on 28 Sep 94, item I20945 approve our revised design SK6 Stage I, SK7 and SK8 Stage II modified plans. This long term overall 'New Plan' for the Centre was done to the satisfaction of the Council that makes provision for the 'Community Purposes Site' and 'Further Commercial Area' which is in accordance with the Deed.

...

The current 'New Plan' was already previously adopted by the Council and that the development of the current Centre was built on the basis of the approved plan for future expansion and rationalisation of the zonings has been completed in accordance with the Deed. However, if the City can demonstrate feasibly alternative proposals, we [would] be happy to consider and discuss main street and urban design together with the City and Ministry for Planning in due course. Finally, we would like to request for the Centre to be permitted immediately to increase to 21,000m² instead of 20,000m² for reasons we highlighted above.

...

Given the significant contributions from our company under the terms and conditions of the Deed, likewise we request Council to also abide by its approval of our revised design SK6, SK7 and SK8.

96 There was no evidence that any reply was sent.[58]

97 On 6 July 2001, the City adopted a new planning scheme in the form of District Planning Scheme No 2 (DPS 2). DPS 2 made provision for the Council to require the preparation of structure plans as a prerequisite for Council's support for rezoning or subdivision or its consideration of applications for planning approval.[59]

98 In 2002, Tah Land took steps to a prepare a draft structure plan to develop the shopping centre to increase its floorspace. It also made an application to develop the Intersection Land, which was referred to the WAPC with a recommendation that it be refused. When the WAPC was deemed to have refused the application to develop the Intersection Land, Tah Land appealed to the Town Planning Appeals Tribunal.[60]

99 In the context of that proceeding, from May 2003, representatives of Tah Land and the City met to discuss the transfer of the Intersection Land, and also to discuss what variations to the Deed the City desired in relation to the Community Purposes Site.[61]

100 Following a meeting on 13 May 2003, by letter dated 27 May 2003, Tah Land set out its understanding of the matters discussed, including the matters that Tah Land wanted to see addressed in a deed of variation to the Deed, as follows:[62]

1. Clause 2.1(a) - Submission of New Plan to Council.

Under the Deed, a New Plan was to be prepared to the satisfaction of the Council and which:

(a) Made provision for the Community Purposes Site;

(b) Made provision for the Further Commercial Area; and

(c) Contained any other details in matters required by the Council.

Plans SK6, SK7 and SK8, constituting the New Plan, were prepared and submitted to Council pursuant to the Deed. They were also provided to the WAPC on 25 November 1993 by Council. When Council approved development of Stage One, which was part of the New Plan, it thereby expressed its satisfaction as to the New Plan. Although it may not have the status of a Structure Plan, it nevertheless was our plan for the whole site and it satisfied Council. If Council was not satisfied with the New Plan for any reason, it should have said so.

2. Clause 2.1(b) and 2.1(c) request Council to initiate a further amendment to the TPS to include a 'civic' zone over the Community Purposes Site and a 'commercial' zone over the Further Commercial Area.

As plans SK6, SK7 and SK8 were to the Council's satisfaction, we requested that Council initiated the amendment to rationalise the zonings and the amendment was completed and gazetted on 3 May 1994 as Amendment No 672 to TPS 1.

3. Clause 3 - Subdivision of Community Purposes Site and Clause 4 - Transfer of Community Purposes Site.

As requested by Council by letter dated 22 March 1996, the subdivision and transfer of the above site was deferred. The identification and zoning of the Community Purposes Site location was already agreed as part of the New Plan and confirmed by the zonings effected pursuant to Clauses 2.2 and 2.3 of the Deed. Our letters dated 27 March 1996 and 29 April 1996 to the City of Wanneroo reiterated the location of the site. The matter can be remain deferred until the City determines what facility is to be provided so as to integrate with the Centre.

As has been outlined above, we performed our obligations under the Deed and have waited on the outstanding matters to be resolved by the City. It is clear that a Deed of Variation to the Deed must be executed to reflect not only the fact that some matters have not been addressed, but also at least the following matters (subject to our legal advice):

(a) The recital to the Deed must establish that the City is satisfied as to the New Plan, to be defined as the Plan comprised in drawings SK6, SK7 and SK8. We do not accept that our plan for the site which was provided to the City in order for it to be satisfied can now be rejected by the City;

(b) A proper mechanism must be in place for dealings with the Main Roads Department relating to the Intersection Land ...

If you accept all of the above, then our solicitors can correspond with your solicitors to finalise the terms of the Deed of Variation. We look forward to your early response in that regard.

(a) asserted that plans SK6, SK7 and SK8 constituted the New Plan, stage 1 of which had been approved by the City;

(b) further stated that, pursuant to cl 2.1(b) and cl 2.1(c), Tah Land had requested the Council initiate an amendment to TPS 1, which was duly implemented as Amendment 672;

(c) stated that the subdivision and transfer of the Community Purposes Site was deferred in accordance with the City's request by letter dated 22 March 1996, with the Community Purposes Site located as stated in Tah Land's letters of 27 March 1996 and 29 April 1996;

(d) said that the matter could remain deferred until the City determined what facility was to be provided so as to integrate with the Centre; and

(e) proposed various amendments to the Deed.

102 By letter dated 4 August 2003, the City wrote to Tah Land providing a schedule of matters that the new deed should cover. One of those matters was expressed to be:[63]

The identification, zoning, subdivision and transfer free of cost to the City of a 1.5 ha area of land for community purposes when required by the City.

103 Tah Land responded by letter dated 29 August 2003. While it generally agreed with the schedule of matters identified by the City, in relation to the identification of the Community Purposes Site it said:[64]

The land set aside for community purposes has already been identified and the necessary zoning implemented. The subdivision application will [be] commenced upon request by the City.

104 Thus, in 2003, the parties were still at issue as to whether the location of the Community Purposes Site had already been determined.

105 On 10 February 2004, Tah Land's solicitors sent the City a draft deed of variation of the Deed. Among other things, the draft deed proposed to vary the Deed by inserting a requirement that the City construct on the Community Purposes Site a 'genuine community purposes facility only' and that if the City did not complete construction of the genuine community purposes facility the Community Purposes Site would be rezoned for commercial use and transferred to Tah Land.[65] In that context the draft deed identified the 'New Plan Plans' as being Plan SK6. The draft deed also made provision in relation to the Intersection Land.[66]

106 The City did not respond to the proposed deed of variation of the Deed.[67]

107 In this context the learned trial judge, in a passage the subject of challenge in the appeal, said:[68]

Tah Land was, in 2004, still pressing for the transfer to the City of land for the Community Purposes Site. On 24 March 2004, solicitors for Tah Land wrote to solicitors for the City, enclosing an application for the issue of new titles and a transfer form for the Intersection Land. In the covering letter, Tah Land's solicitors stated:

Our client has spoken to Mr Rod Peake of the City of Wanneroo and requested that any further caveat lodged by the City of Wanneroo pursuant to the 1992 Deed be lodged only against lot 888 when the certificate of title for that lot is created. Our client understands Mr Peake regards out [sic] client's request as reasonable given that the only obligation imposed on our client by the 1992 Deed outstanding is the transfer to the City of Wanneroo of that portion of lot 888 defined in the 1992 Deed as 'the Community Purposes Site.'

2005 to 2010 - further structure planning and negotiations with the City

108 In 2005, Tah Land engaged consultants, Shrapnel Urban Planning (Shrapnel), to prepare a structure plan, pursuant to pt 9 of DPS 2,[69] for the future development of the shopping centre.[70]

109 In response to a request from Shrapnel as to the matters to be included in the proposed structure plan, the City's Director Planning and Development, by letter dated 8 September 2005, identified one of the matters that should be addressed as being 'the outstanding issues associated with the legal agreement between the landowner and the City' and 'details on any necessary zoning changes required'.[71]

110 On 18 August 2006, Shrapnel submitted a draft structure plan for the shopping centre to the City. The draft structure plan did not designate any land for community purposes, and showed the area in the north‑east of the Land as having a proposed use class of 'Mixed Use Development'.[72]

111 The explanatory report attached to the draft structure plan:

(a) included a 1995 concept plan (depicted as Figure 2), which it said had been prepared in conjunction with the Deed. That concept plan included stage 1 of the development (i.e. that depicted on Plan SK6), together with stages 2 and 3;[73]

(b) stated that, in recent years, relevant planning authorities had indicated that they no longer recognised the concept plan in Figure 2 as a suitable basis for the expansion of Kingsway City;

(c) stated that the draft structure plan proposed that the Civic and Cultural uses (such as the library) be integrated within the main centre, rather than being located on the currently reserved site, which was peripheral and inconveniently located for such a use. The explanatory report observed that discussions with a view to establishing a library were related to the Deed, several aspects of which remained to be settled;[74] and

(d) referred to the parcel of land currently reserved for Civic and Cultural purposes in the north‑east corner, stating that it was considered that that land would be better utilised for a future medium‑rise mixed use residential development and that civic and cultural uses would be more accessible and better used if integrated in the main development.

112 The City did not approve the draft structure plan under DPS 2 within 90 days of receipt and was deemed to have refused to approve it. On 21 December 2006, Tah Land commenced review proceedings in the State Administrative Tribunal (the Tribunal) in relation to the deemed refusal.[75]

113 The Council of the City nevertheless considered the draft structure plan on 15 May 2007. The City's planning officer prepared a report recommending that the City not agree to the draft structure plan, including for the reason that the proposal was said not to make suitable alternative arrangements for the provision of integrated community facilities. The report recommended that Council not agree to any structure plan that proposed non‑civic and cultural related land uses on the portion of land presently set aside for civic and cultural uses until and unless suitable alternative arrangements were in place and incorporated in the structure plan.[76]

114 The Council did not adopt the planning officer's recommendations. Council resolved that the draft structure plan was satisfactory, subject to a number of modifications, which included:[77]

a) the structure plan being modified by the proponent to:

1. accommodate no more than 20,000m² retail net lettable area;
2. encompass the peripheral areas and provide for a high level of integration with the surrounding area in terms of land use, building height, scale, orientation, level of intensity and connections;
3. provide for the evolutionary revitalisation and remodelling of the centre from a conventional 'box' shopping centre to a legitimate main street based mixed use town centre using best practice urban design and sustainability principles;

b) the following associated matters being addressed by the proponent:

1. suitable alternative arrangements, to those set out in the current legal agreement between the City and the landowner, being made with the City in relation to the provision for community facilities to service the surrounding community;

115 On 1 April 2008, the WAPC resolved to refuse to adopt the proposed draft structure plan. On 8 April 2008, Tah Land commenced an application in the Tribunal to challenge the WAPC's refusal to adopt the proposed draft structure plan.[78] That application to the Tribunal (DR 164 of 2008) ultimately resulted in Agreed Structure Plan 59 (ASP 59) being adopted by the WAPC on 12 November 2010. ASP 59 is discussed in more detail in the next section of these reasons.[79]

116 Prior to the adoption of ASP 59, Tah Land continued to deal with the City and WAPC in relation to the draft structure plan, including in the context of mediation hearings in the Tribunal.[80] Those dealings included the following.

117 On 29 April 2008, Tah Land approached the Council, requesting it to reconsider the proposed draft structure plan. Shrapnel's letter on behalf of Tah Land stated that Tah Land remained ready to progress the issue of suitable provision of community facilities, but that that could only reasonably be achieved within the context of an agreed Structure Plan.[81]

118 On 29 July 2008, the Council resolved to revoke its motion of 15 May 2007 and resolved that the draft structure plan was satisfactory, subject to various qualifications which included, relevantly, Tah Land making reasonable alternative arrangements to those set out in the Deed in relation to the provision of community facilities to service the surrounding community.[82]

119 After a 'workshop' between Mr Shrapnel and officers of the City on 15 December 2008 to discuss the draft structure plan, Mr Shrapnel outlined a number of points needing to be addressed by Tah Land, one of which was to confirm the need to vary the Deed, noting that the City wanted a space of approximately 1,000 sqm for a library within the mixed use development near the main public plaza and entrance to the shopping centre.[83]

120 By letter dated 30 October 2009, the City's Director Planning and Sustainability wrote to the Department of Planning. In that letter, after noting the workshop of 15 December 2008, the Director stated that discussions had been held between the City and Tah Land which may lead to the transfer of land to the City for library purposes, but that the City's requirements on that matter were still being clarified. The letter further noted that the City would be aiming to ensure that whatever alternative arrangement arrived at did not involve any reduction in value of the contribution required to be made by Tah Land under the Deed.[84]

121 On 24 November 2009, the WAPC again declined to endorse the proposed draft structure plan. Its reasons for refusal included the lack of an identified suitable replacement site for civic and community uses that were currently reserved for the north‑east corner of the site. The WAPC considered that it had not been adequately demonstrated that the town square was optimally located and designed as a high‑quality meeting place and community amenity, well‑integrated with the civic and cultural facilities.[85]

122 In response, Shrapnel, on behalf of Tah Land, submitted to the WAPC a modified plan of general land uses for the land showing the location and size of the proposed civic use, a branch library, located at the south‑west corner of the town square in the middle of, and close to, the southern boundary of the Land.[86]

123 On 12 February 2010, Mr Shrapnel sent an email to officers of the City, attaching what he referred to as draft minutes of matters that were said to have been agreed between Tah Land and officers of the City. Tah Land sought the City officers' response to enable inclusion of the document in the material to be provided to the WAPC and its solicitors. Under the heading 'Community Purposes Site', it stated, as having been agreed, as follows:[87]

• The existing 1.5 hectare Community Purposes Site at the north‑east corner of the Structure Plan area, is currently owned by Tah Land Pty Ltd, which has previously agreed to transfer this land to the City in accordance with an existing Deed of Agreement.
• However, it has more recently been agreed with Council officers that the existing Community Purposes Site is no longer required and should be replaced by a site integrated within the expanded centre, as indicated in the revised Structure Plan.
• The location of the proposed Community Purposes Site adjacent to the town square has now been agreed. It is envisaged that the site will be part of a mixed use development within which 1,000 sqm of floorspace at ground level will be provided to the City for civic purposes.
• At present the community purposes site is intended to become a branch library but, subject to Council's funding priorities, it may at Council's discretion be used for alternative civic purposes, with up to 250 sqm being able to be used by the City for other purposes to be agreed with the centre owner.
• It is agreed that the site will eventually be in Council ownership, with the timing of acquisition yet to be agreed; and that the most likely form of title will be a strata title, given the current intention to incorporate the site within a mixed use development.

124 On 16 February 2010, the City's Director Planning and Sustainability responded to Mr Shrapnel's draft minutes. The response was said to be without prejudice to the Council's formal position on the matters and not to prejudice the administration's position at the time that it submits a report and recommendation to the Council upon the matter. With those caveats, under the heading 'Community Purposes Site', the following was said:[88]

Administration agrees with the various matters recorded under this heading, except for the following points:

2.1 Bullet points 1 and 2: The existing Deed does not actually require the transfer of the land currently zoned for civic purposes under District Planning Scheme No 2 (DPS 2), but rather requires that a 'New Plan' be prepared by the owner, which will show a new site of 1.5 ha as required by the City, and this is to be transferred to the City. In short, it has always been intended that a better‑integrated site would be determined.

...

2.4 Bullet points 6 and 7: Prior to the valuation being undertaken, it is likely that a new Deed will need to be prepared to formally vary the relevant provisions of the existing Deed. The new Deed will need to clarify all relevant details, including the basis for valuation of the 1.5 ha area as well as the 1,000 sqm site to be acquired, provide for indexation of dollar amounts to ensure they retain their true value, and timings for obligations to be met.

125 It can be seen from this response that the City maintained its position that the site of the Community Purposes Site had not yet been determined, and that Tah Land was yet to prepare a 'New Plan'. As the learned trial judge noted,[89] the response made no comment about the third bullet point in which it had been said that the location of the proposed Community Purposes Site adjacent to the town square had by then been agreed.

126 On 27 April 2010, Mr Shrapnel, on behalf of Tah Land, prepared a revised draft of Part 1 of the draft structure plan and, on 6 May 2010, provided it to the City. The revised plan included:[90]

(a) provision, in cl 5.1.3, that the main purpose of the specifically identified civic area was to provide a prime location for the establishment of the City of Wanneroo Civic and Cultural facility;

(b) the size, form, nature, tenure and use of the Civic and Cultural facility would be the subject of a separate reasonable agreement between Tah Land and the City;

(c) in cl 6, that the matter be the subject of a formal reasonable agreement between Tah Land and the City, including the associated removal of the existing Civic and Cultural reserve in the north‑east corner of the structure plan area; and

(d) the first stage of additional development would include the Community Purposes facility, unless the Council was not ready for that to occur, in which case it would occur in the second or subsequent stage.

127 The City's Director Planning and Sustainability responded by recommending various changes to Part 1 of the revised draft structure plan.[91] Those changes included:

10. 5.1.3: Add [a new] sub‑clause (iii):

'(iii) Relative to (ii) above and notwithstanding the designation of the proposed Civic area on Diagram 1 of the Development Control Plan, the proponent will (in accordance with the deed entered into with the City, dated ...) be required to transfer 1.5 hectares of land to the City for Civic/Community Purposes until or unless the City otherwise agrees to the alternate provision of such a site elsewhere in the structure plan area.'

11. 5.1.3: include a point (iv): 'In the Civic area, land use permissibility shall be in accordance with the Civic and Cultural zone of the Scheme, except that Retail uses may be permitted at the discretion of the Council.' [This provides clarity regarding use permissibility. The exception is included as 'Shop' is a prohibited use in this zone, and a coffee shop or similar may wish to be included.]

...

23. 6.1(i): Delete and replace with:

'(i) If required as a result of Council's decision in respect of clause 5.1.3(iii), an agreement to replace the existing deed referred to in that clause.'

...

25. Include at the end of section 6.1: 'The above obligations upon the proponent shall be required to be complied with in accordance with Clause 9.9 of the Scheme.' [this satisfies Council's resolution of 6 April 2010 (point 3).]

128 In response, Mr Shrapnel advised that Tah Land was comfortable with the changes proposed, except for the proposed additional subclauses 5.1.3(iii), 5.1.3(iv) and the proposed amendment to subclause 6.1. Mr Shrapnel's letter stated that the change proposed to subclause 5.1.3(iii)[92]

purports to be a contractual obligation, when a Structure Plan is a planning instrument, guiding development. If Tah Land Pty Ltd has an obligation under a deed, then that must speak for itself. In our view, the objective of making provision for a Civic and Cultural facility as part of the Activity Centre is clearly identified, the precise nature of which needs to be negotiated between the parties. The current draft of the Structure Plan adequately identifies that objective.

129 Thereafter, representatives for Tah Land and the City continued to negotiate each of the clauses of the draft structure plan.[93]

130 As noted at [115] above, following the resolution of the Tribunal proceedings, on 12 November 2010 the WAPC adopted ASP 59. The seal of the City was affixed to ASP 59 on 6 Dec[94]ber 2010.94

131 At the time of the adoption of ASP 59, DPS 2 included a clause (cl 9.8.3) to the effect that the identification by reference to 'zones' in an Agreed Structure Plan had effect as if those areas were zones having that designation under DPS 2 itself.[95]

132 ASP 59 contained a Development Control Plan consisting of 11 diagrams. Diagram 1 depicted general land uses in the Structure Plan area. 'Mixed Use (Civic) Zoning' was depicted on Diagram 1 as a blue box along the southern boundary of the land abutting Hepburn Avenue, and the north‑east corner of the land depicted the use of 'Residential' and 'Open Space'.[96] Diagram 1 in ASP 59 appeared as follows:[97]

133 It was common ground at trial, and not in dispute on appeal, that from its adoption on 12 November 2010 until the 'deemed provisions' were inserted in DPS 2 (resulting in the repeal of cl 9.8.3 of DPS 2), the effect of the designated land uses as shown in diagram 1 of the Development Control Plan was that these zones applied to the land as if the provisions were incorporated into DPS 2.[98]

134 The deemed provisions came into effect on 19 October 2015,[99] with the effect that decision‑makers were required to have due regard to, but were not bound by, a structure plan when deciding an application for development approval or subdivision approval.[100]

135 Clause 5.1.3 of ASP 59 provided:[101]

(i) The main purpose of the specifically identified Mixed Use (Civic) area is to provide a prime location for the establishment of a City of Wanneroo Civic and Cultural facility within the Mixed Use area.

(ii) The size, form, nature, tenure and use of the Civic and Cultural facility will be the subject of a new reasonable agreement between the land owner and the City of Wanneroo.

(iii) It is intended that the new agreement referred to in clause 5.1.3 (ii) will replace the existing deed of agreement between the land owner and the City regarding the provision of Civic and Cultural land in the Structure Plan Area.

136 Clause 6 of ASP 59 provided that Tah Land would, prior to the determination of any development application for Stage 1, negotiate and enter into agreements on reasonable terms with the City. Clause 6 included the following:[102]

6.1 Agreements

Unless the Council is otherwise reasonably satisfied that any development in respect of Stage 1 can be approved in the absence of agreement, the proponent of development of Stage 1 shall, prior to the Council's determination of a development application for Stage 1, negotiate and enter into agreements on reasonable terms with the City as follows:

(i) An agreement to facilitate the relocation of the proposed Civic and Cultural facility referred to in Clause 5.1.3(ii) from the existing Civic and Cultural Reserve to the location identified in the Structure Plan; ...

...

6.3. Stage 1

Stage 1 of any additional development shall comprise the construction of:

(i) The proposed extension of the shopping centre.

(ii) The Town Square.

(iii) Commercial tenancies on the northern side of the Main Street sufficient to generate some pedestrian activity on the street.

(iv) The Civic and Cultural facility, unless Council agrees to it being included in a later stage, or agreement for its inclusion in Stage 1 is delayed for any reason.

137 The explanatory report attached to ASP 59 stated, in relation to the part of the Land zoned 'Civic and Cultural' in Amendment 672 (see [56[103] above):103

[T]here is currently a large parcel of land zoned for Civic & Cultural purposes in the north eastern corner of the site. It is considered that this land would be better utilised for a future medium‑rise mixed‑use/ residential development, and that any civic and cultural uses within the activity centre would be more accessible and better used if they were integrated into the main development. In addition to commercial community facilities such as the existing medical centre, health club and proposed cinemas, non‑commercial civic and cultural facilities specifically proposed in the structure plan are:

• A Town Square at the main southern entry to the centre:
• A Council branch library to be located adjacent to the Town Square (see Diagram 1 of the Development Control Plan in Part 1).

Re‑planning the land currently zoned Civic & Cultural, and provision of the library (the inclusion of which in the Centre has been specifically requested by the City of Wanneroo) will necessitate the renegotiation of some aspects of the current agreement between the City of Wanneroo and the centre's owner. Clause 6.1.(i) of Part 1 requires this agreement to be entered into prior to Council determining a development application for Part 1.

2011 to 2014 - Tah Land applies to redevelop the shopping centre

138 Stage 1 of the additional development referred to in ASP 59 included the proposed extension of the shopping area. It also included:[104]

The Civil and Cultural facility, unless Council agrees to it being included in a later stage, or agreement for its inclusion in Stage 1 is delayed for any reason.

139 Before making the application for the Stage 1 redevelopment, Tah Land's consultant wrote to the City by email dated 1 May 2011. That email included the following, under the heading 'New Council Library':[105]

We are unsure of the requirements here so will proceed on the basis of assumed acceptable Library outcome for the purposes of evaluating the land swap/building lease arrangement. We fully understand that final agreement will hinge on a number of factors and that nothing should be assumed as accepted at this point. For this item to be progressed, once again we feel that in order for Tah Land's proposal to be properly considered, we need to make a few assumptions regarding requirements so that 'order of magnitude' costings can be prepared for comparison purposes.

140 An officer of the City responded, by email dated 26 May 2011:[106]

In relation to the community purpose site, as discussed at our meeting, it must be accepted that the City's current entitlement is for Tah Land to transfer a freehold site for this purpose, to Council, free of costs. Council has endorsed a structure plan that recognises a better planning and community outcome could be achieved by integrating the community purpose site within the 'town square' area, to assist in the creation of a vibrant activity centre. And, when City staff meet to discuss this project, this will be the key issue for consideration (together with the advantages and disadvantages of what is now being mooted). To assist in these discussions you are welcome to put forward options outlining the type and tenure of site and commercial arrangement that Tah Land is prepared to offer. The City (through the Director Corporate Performance & Strategy) will then consider the acceptability of those options from a commercial perspective and will negotiate with Tah Land accordingly. Ultimately, the City will need to be satisfied that there is no net diminution of value or benefit between what is being offered, versus what Council is already entitled to. The process you have outlined below (for you to obtain valuations and other financial information) to then present to the City, is appropriate and agreed. (emphasis added)

141 On 29 June 2011, Tah Land lodged a development application for Stage 1 of the redevelopment of the Land. The plans submitted with the development application showed a 1,000 m2 library with 700 m2 on the first floor and 300 m2 on the ground floor of the redeveloped Kingsway Shopping Centre.[107]

142 On 11 July 2011, representatives of the City and Tah Land met to discuss the application for development approval.[108] Those discussions included the proposed library. It was accepted by the City at trial that the effect of what was said on behalf of the City at that meeting was that it was not necessary to determine the location of the library at that point in time to ensure Tah Land would be granted development approval for Stage 1. Further, it was accepted that, at the City's insistence, the library area was excluded from the development application. The learned trial judge observed that this appeared to be because the City had not budgeted for a new library at that time in their 10 year capital works program.[109]

143 By 28 September 2011, the Council had not approved the development application, with the result that there was a deemed refusal. On 24 October 2011, Tah Land commenced proceedings in the Tribunal seeking a review of the deemed refusal. The WAPC became a party to those proceedings as intervenor.[110]

144 In the course of ongoing discussions and negotiations between the parties to the Tribunal proceedings, an issue emerged between the City and Tah Land as to what was said by the City to be an encroachment issue. The City asserted that part of the proposed shopping centre building encroached into the Civic and Cultural zone, and that this was not permitted and could not be approved under DPS 2. The City also asserted that that issue had the potential to complicate the City's current right under the Deed to the 1.5 ha of land.[111]

145 On 27 June 2014, in the course of negotiations, the City's solicitors set out the position of the City, as follows:[112]

As the development of a Library and Future Residential Zone does not form part of the Proposed Development, the deletion of all references to a Library or Future Residential Zone from the plans is required by the City.

We also note that the location of the Future Residential Zone coincides with the location of the 'Community Purpose Site', as defined in the Deed, and thus could be misconstrued to indicate that the City will relinquish its entitlement (provided by clause 4.1 of the Deed) to have that site transferred to it.

For the avoidance of doubt, we confirm that the City has not relinquished or waived its rights under the Deed and that the development of a residential development on the Community Purpose Site would need to be the subject of a further written agreement between the City and the Applicant, as well as a further development application and approval. We note that a further written agreement between the City and the Applicant is foreshadowed in section 5.1.3 of the Structure Plan.

146 On 7 October 2014, the Tribunal made consent orders approving the development application subject to a set of conditions. The conditions included a requirement that prior to the commencement of development, further revised plans would be lodged and approved by the City, which were to address, among other things, the deletion of all references to a library.[113]

2015 - further discussions about a proposed library

147 After the approval of the development application, on 20 February 2015, representatives of Tah Land met with the Chief Executive Officer and other representatives of the City to discuss the inclusion of a library on the Land.[114] On 21 April 2015, Tah Land's architects sent the City a preliminary submission for a proposed location of a library 'for discussion purposes'.[115]

148 By email dated 2 June 2015, an officer of the City wrote to an officer of Tah Land in which she stated that:[116]

At the recent Council Forum I presented to the Elected Members on the options to provide a library at Kingsway shopping centre precinct, with Council's clear preference being the stand‑alone site that we have discussed between the shopping centre and Hepburn Ave. This preference was followed by the existing community purpose site should we not be able to deliver a library under some form of 'green title' at the preferred location.

On the matter of the community purposes site that you raised, Council was also clear in their desire to undertake resolution on that site as a separate exercise, notwithstanding as the CEO previously advised, this process could be actioned simultaneously to resolving on the library site.

149 This appears to be the first occasion on which the City separated the two issues of the possible provision of a library and the obligations concerning the Community Purposes Site under the Deed.

150 The following day, on 3 June 2015, an officer of Tah Land responded by email, in which he stated:[117]

The Civic and Cultural Reserve do tie in the exchange of the New Library site. Please refer to Clause 5.1.3 and 6.1 of the Structure Plan - the New Civic Area and existing Civic and Cultural Reserve be dealt with concurrently in negotiation and enter into agreements on reasonable terms with the City.

151 Tah Land also proposed that there be a working group to 'fast track' the negotiation.[118]

152 However, as the learned trial judge observed, the negotiations did not go anywhere. By 23 September 2015, her Honour observed, the City wished to pursue a library site integrated with the Kingsway Shopping Centre building but also, at the same time, made a demand that the 1.5 ha site on the north‑east corner of the Land be subdivided and the title for that land transferred to the City.[119]

September 2015 - the City issues notice of default in relation to the Deed

153 On 23 September 2015, Tah Land received two letters from representatives of the City.

154 The first letter dated 23 September 2015 was from the City's Director Corporate Strategy & Performance. That letter included the following:[120]

The City remains interested in progressing with negotiations to secure a viable library site attached or adjacent to Kingsway Shopping Centre. Our key concern is that any library at the site is manageable and sufficiently adaptable to reflect changing library use by the community in coming decades. These negotiations will continue.

The City is also concerned to see that the terms of the deed dated 2 September 1992 between the City and Tah Land Pty Ltd (Tah) (the Deed) are observed, particularly in relation to the provision of the 'Community Purposes Site' identified in the Deed. As previously emphasised by Administration, including recently by an email from the Director Community Development on 2 June 2015, the discussions regarding the library site, and resolution of the status of the Community Purposes Site, are to be dealt with separately.

To acknowledge the City's claim to the Community Purposes Site, a notice is to be issued by the City's solicitors, Castledine Gregory.

The City looks forward to receiving Tah's response to the notice in due course, and further remains keen to progress with negotiations regarding the library site.

155 The second letter dated 23 September 2015 was from the City's solicitors, Castledine Gregory. After referring to the obligations in cl 3.1 and cl 4.1 of the Deed, the letter said:[121]

To date, a plan of subdivision to subdivide the 'Community Purposes Site', being the area of the Land zoned 'civic and cultural' under the City's District Planning Scheme No. 2, has not been registered. The 'Community Purposes Site' has not been transferred to the City. We understand that trading of business on the Land, namely the Kingsway City Shopping Centre, commenced in March 1996. As such, Tah Land Pty Ltd has failed to comply with the obligations set out in clauses 3.1 and 4.1 of the deed (Default).

156 The letter from the City's solicitors made no reference to the correspondence between the parties between March and May 1996 (see [79] to [86] above).

157 By letter dated 29 September 2015, Tah Land's solicitors responded to the City's solicitors, asserting that the notice dated 23 September 2015 was misconceived and that the City had waived performance of any obligation of Tah Land under cl 3 and cl 4 of the Deed. The letter alleged that the City had waived those provisions in favour of new arrangements for relocating the facilities to the new area specified in ASP 59 on terms yet to be negotiated (for which Tah Land had been ready, willing and able to negotiate at all times since the adoption of ASP 59).[122]

158 The parties continued to correspond through their respective solicitors with Tah Land maintaining its position that it was ready, willing and able to engage in negotiations to negotiate a new site and have the new site transferred to the City for community facilities. The City maintained its position that it was entitled to the transfer of 1.5 ha of land in the north‑east corner of the Land, but that it wished to have separate discussions about a proposed library to be incorporated into the Kingsway Shopping Centre.[123]

159 On 8 December 2015, the Council of the City passed a motion in the following terms:[124]

1. Notwithstanding that the City will continue to enforce its rights in accordance with the 1992 deed of agreement between the City and Tah Land Pty Ltd in respect of the 'community purpose site' as identified and situated in the eastern portion of 182 (Lot 3) Wanneroo Road, Madeley adjacent to Bellerive Boulevard, AUTHORISES the Chief Executive Officer to further negotiate and determine an alternate preferred site for delivery of the new library for the southern suburbs of the City of Wanneroo being in order of preference:

a) the vacant portion of land at Kingsway Shopping Centre in proximity to the existing medical centre; or

b) the vacant portion of land at Kingsway Shopping Centre adjacent to the existing Goodlife Health Club;

1. that the tenure to the alternate preferred site must be owned by the City in freehold; and

d) there must be no diminution of value between the 'community purpose site' and the alternate preferred site.

2. ENDORSES commencement of a concept design for a new library to be located at one of the preferred sites providing that the design is not contingent on a specific site;

3. ENDORSES that the land for the new library is to be owned by the City in freehold and secured further to the 1992 deed of agreement between the City and Tah Land Pty Ltd (or any subsequent variation of that deed); and

4. INSTRUCTS the Chief Executive Officer, at the conclusion of negotiations with Tah Land Pty Ltd, to seek Council's:

a) endorsement of the negotiated outcome for the preferred library site; and

b) authorisation to execute a variation of the 1992 deed of agreement between the City and Tah Land Pty Ltd (or a new deed of agreement to supersede the 1992 deed).

160 The learned trial judge recorded in the Primary reasons: 'It appears that no negotiations contemplated by the motion took place'.[125] The City challenges this observation in the appeal.

2016 - the City issues a further notice of default and commences proceedings

161 On 12 February 2016, the City served another notice of default, asserting breaches of the Deed by not submitting the New Plan to the City under cl 2.1(a), by not initiating the amendments to TPS 1 required by cl 2.1(b) and cl 2.1(c) and by not transferring the title of the Community Purposes Site to the City in accordance with cl 4.2 and cl 4.3. The City notified Tah Land of its intention to enforce its rights and remedies under the deed unless those defaults were remedied within 14 days.[126]

162 On 1 March 2016, the City commenced the primary proceedings with a writ endorsed with a statement of claim.[127] As originally pleaded, the statement of claim sought relief in the form of orders requiring Tah Land to do all things necessary to subdivide and transfer to the City the Community Purposes Site (which was initially identified by reference to the land zoned as Civic and Cultural in Amendment 672).[128]

2019 - the City elects to terminate the Deed and seek damages

163 By letter dated 27 February 2019, the City's solicitors wrote to Tah Land stating: [129]

Upon review of correspondence between the City and Tah Land in the lead up to the opening of the Shopping Centre, the City raises an alternative claim that it was agreed between the parties that the terms of the Deed should be varied so that, instead of you being obliged to transfer the relevant land prior to the opening of the Shopping Centre, those obligations were deferred until the City called for performance of them 'at any time in the future'.

...

In light of the above, since the parties have been unable to agree an alternative location for the Community Purposes Site, the City has instructed us to call upon you to perform your obligations under cl 3.1 of the Deed to prepare, or cause to be prepared, the 'Plan of Subdivision' as defined in the Deed, and to do all acts and things necessary to obtain all clearances and approvals required in order for the WAPC to approve the Plan of Subdivision.

The City requires you to have submitted an application for subdivision to the WAPC by 5.00pm on Friday 12, April 2019.

164 On 6 March 2019, the City's solicitors sent a further notice of default under cl 12.1 of the Deed as follows:[130]

The City hereby gives notice to Tah Land under cl 12.1 of the Deed of Tah Land's default in refusing to perform its obligations under cl 3.1 of the Deed as requested by the City in our letter to you dated 27 February 2019.

165 By letter dated 8 August 2019, the City's solicitors wrote to Tah Land advising that the City accepted Tah Land's repudiation of the Deed and elected to terminate the Deed.[131]

166 The following day, the statement of claim was amended to plead the effect of the letter dated 8 August 2019 and to claim damages for the pleaded breach and repudiation of the Deed.[132]

The City's pleaded claim and the proceedings at trial

167 Consistent with the position taken by the City in the letter dated 27 February 2019 (see [163] above), the City's pleaded case at trial was that cl 3.1 and cl 4.1 of the Deed were varied to the effect that Tah Land's obligations were to be performed when required by the City 'at any time in the future'.

168 Paragraph 40 of the Fifth Amended Statement of Claim pleaded:

By agreement in writing contained in letters and facsimile from the [City] to [Tah Land] or [Tah Land's] agent dated 22 March 1996, 27 March 1996, and 19 April 1996, and from [Tah Land] or [Tah Land's] agent to the [City] dated 1 March 1996, 21 March 1996, 25 March 1996, 27 March 1996, 17 April 1996 and 29 April 1996, the [City] and [Tah Land] agreed to vary clauses 3.1 and 4.1 of the Deed so that rather than [Tah Land] being obliged to undertake or complete its obligations under those clauses 'prior to the commencement of trading of any business on the Land', those obligations were to be performed by [Tah Land] when required by the [City] at any time in the future.

169 The substantive content of the correspondence pleaded in [40] of the Fifth Amended Statement of Claim is that set out at [79] to [86] above.

170 Further to the varied obligation pleaded at [40], the Fifth Amended Statement of Claim pleaded the City's claim against Tah Land in the following terms:

41. By letter dated 27 February 2019, the [City] notified [Tah Land] that it required [Tah Land] to perform its obligations to prepare the Plan of Subdivision for submission and approval by the Western Australian Planning Commission by 12 April 2019.

42. By letter dated 5 March 2019, and by maintaining its defence in this proceeding, in breach of covenant, [Tah Land] refused to perform its obligations to prepare the Plan of Subdivision for submission and approval by the Western Australian Planning Commission by 12 April 2019, or at all, and repudiated the Deed.

42A. By notice of default dated 6 March 2019 the [City] demanded [Tah Land] remedy the breaches pleaded in paragraph 42 above, but [Tah Land] failed to do so.

42B. By letter dated 8 August 2019, the [City] accepted [Tah Land's] repudiation of the Deed and terminated the Deed.

43. As a result of the breach of covenant and repudiation of the Deed pleaded above, the [City] has suffered loss and damage.

171 It is clear from the City's pleaded case that the relevant breach and repudiation upon which it relied was a breach of the varied obligation pleaded at [40] of the Fifth Amended Statement of Claim.[133]

172 Tah Land joined issue with the City in relation to the effect of the correspondence pleaded in [40] of the Fifth Amended Statement of Claim. In that regard, Tah Land pleaded (at [40] of the Defence to the Fifth Amended Statement of Claim):[134]

(i) says that if any agreement was formed by the correspondence referred to in paragraph 40 of the Statement of Claim, it was that, in consideration of waiving performance of the obligation to transfer any land under the Deed to the [City] prior to commencement of trading at the Centre, [Tah Land] undertook to negotiate with the [City] in good faith to transfer land in an alternative location in the Centre on further terms and conditions that would be negotiated along the lines of the 'principles' embodied in the Deed;

(j) says that the agreement described in the previous sub‑paragraph between the parties was reflected in Structure Plan 59 as pleaded in paragraphs 48 ‑ 78 to (sic) below;

(k) says that, alternatively, if the correspondence pleaded in paragraph 40 bears the construction for which the [City] contends, then any such agreement is void for uncertainty because the correspondence does not by its terms empower the [City] to require the Community Purposes Site to be transferred to it at a time of its choosing, but rather to transfer any land mutually to be agreed on terms and conditions to be agreed [sic], to be negotiated in good faith by the [City] and [Tah Land] which was repeated by the parties in the letters pleaded at paragraph 47 below;

173 While the Defence raised a host of other defences to the City's claim (including that the agreement to transfer the Community Purposes Site in the Deed was void, breach of a number of alleged implied terms and unfulfilled preconditions to Tah Land's obligations under the Deed, various pleaded effects of ASP 59, repudiation and election) it remained the case that central to the success of the City's pleaded case was acceptance of the proposition that the Deed had been varied as pleaded in [40] of the Fifth Amended Statement of Claim: namely, that Tah Land was obliged to perform the obligations in cl 3.1 and cl 4.1 of the Deed when required by the City 'at any time in the future'.

174 As the learned trial judge recognised, however, the case put by the City at trial extended beyond the pleaded case. Her Honour described the alternative cases in the following terms at Primary reasons [262]:

[W]hether the City was entitled to call upon Tah Land to prepare a Plan of Subdivision for this area of the Land turns upon the following issues:

(a) whether, via an exchange of correspondence in March and April 1996, the City and Tah Land agreed to vary cl 3.1 and cl 4.1 of the 1992 Deed (to subdivide and transfer to the City the Community Purposes Site) so that, rather than Tah Land being obliged to undertake or complete its obligation under those clauses prior to the commencement of trading of any business on the Land, those obligations were to be performed by Tah Land when required by the City at any time in the future;

(b) or in the alternative to (a) whether as a result of the correspondence between the parties in 1996, the parties forwent the enforcement of the time stipulation in cl 3.1 and cl 4.1 of the 1992 Deed that the Community Purposes Site be subdivided and transferred to the City prior to the commencement of trading of any business on the Land, giving rise to an implied term enabling the City to call upon Tah Land within a reasonable time to subdivide and transfer to the City the Community Purposes Site;

(c) if the terms of the 1992 Deed were so varied in 1996 giving rise to the implication of the implied term (as set out in (b)) whether when the City called for performance by Tah Land in 2019, a reasonable time to require performance had elapsed[.]

175 The learned trial judge noted that, while the alternative referred to in Primary reasons [262(b)] was not expressly pleaded, it was raised by the City in opening.

176 The nature of the alternative case put to the learned trial judge is in issue on appeal and has some significance for understanding the scope of ground 2(a) and its resolution. For that reason, it is necessary to identify, by an objective assessment of the record of the trial, the nature of the alternative case advanced by the City at trial and addressed by her Honour.

177 In that context, in identifying the alternative case, at Primary reasons [262(b)], the learned trial judge referred to the following passages of the City's opening.

178 In the course of that opening, counsel for the City, referring to the City's apparent request in 1995 to defer the transfer of the Community Purposes Site until after the commencement of trading (see [72] to [[135]] above), said:135

Now, if that's where matters had rested, the position would have been that the Deed was still binding on the parties but that the time for performance of clauses 3 and 4 had been dispensed with by the City and the position would have been that, at some reasonable time, the city could have compelled performance still of those obligations. (emphasis added)

179 Counsel then referred to decisions of the High Court, including Electronic Industries Ltd v David Jones Ltd,[136] and continued, in relation to the City's pleaded variation:[137]

Now, we say that's not where matters rested in this case because there was, we say, an agreement to vary. But if your Honour is not with us on that, which I will come to momentarily, then, the position would still revert to as it was in late December, which is that the parties are still bound. It's just the time has been set perhaps not if at large, but a reasonable time, which, in this case, given the parties' discussions, is to the same effect because it's clear, as we will come to, that the parties were contemplating that it could be called upon by the City at any stage in the future, particularly with regards to the second stage of development of the shopping centre. (emphasis added)

180 Having dealt with the City's case on the agreement to vary, counsel returned to the point:[138]

Even if your Honour were not to conclude that there were a binding agreement to vary the deed in those terms, the position would still be that the parties remained bound by the deed. But because of the forbearance of the City in not requiring Tah Land to perform before businesses opened - commenced trading on the land, the time for performance would be at a reasonable time as required by the City. There's no - it makes no material difference to the City's claim which of those it is. (emphasis added)

181 Counsel for Tah Land also addressed this issue in his opening, again by reference to Electronic Industries Ltd v David Jones Ltd. While counsel submitted that there was relevantly no agreement to vary, he nevertheless addressed the alternative proposition that there may be an implication as to 'reasonable time':[139]

So the principle to draw from that case, your Honour, is that where parties do away or agree to forbear from a stipulation about the time for performance but fail to agree on a new time the law can supply their omission by implying an obligation to perform within a reasonable time. And for that reason, the contract is not too uncertain. ...

But in this case there is no mere omission to agree a new time which the law can supply by an implication as to a reasonable time. There is a fundamental failure to agree about the location of the object which is the subject of the contract for the community purposes site, and that's not an omission that the law can supply. Moreover, in any event even if the principle in David Jones was capable of applying one would then have to ask the question what, judged from 1996, was a reasonable time. That might be two years. It might be five years. It might be 10 years.

But what the council requires to succeed is that a reasonable time means either at any time within the discretion of the council or a time which would include at least 2019 - so that's 23 years from 1996. In my submission, on no view would a reasonable time from 1996 possibly mean either of those things. And that, in my submission, is fatal to the City's case because unless the council can extend the obligations in clause 3 and clause 4 of the deed until 2019 there can be no breach of the deed by Tah in that year.

182 In this way, Tah Land may be taken to have joined issue with the alternative case that the City could require performance within a reasonable time.

183 The issue was again the subject of submissions by Tah Land, to similar effect, in its closing:[140]

[T]he City needs a reasonable time to mean one of either two things. It requires it to mean at any time the City likes, or a time which stretches at least up until 2019 - so 23 years. Now, in my submission, if you had asked the proverbial hypothetical bystander in 1996 when you think a reasonable time might be, whatever answer they might have given you, it wouldn't have been either of those two things. It wouldn't have been whenever the council likes or 2019.

184 The City, in its closing, also referred to its 'secondary'[141] or 'fall back'[142] argument that Tah Land could be required to perform 'at a reasonable time requested by the City'. In relation to whether a reasonable time had elapsed, the City submitted:

[T]he question then is, well, what is a reasonable time for the purpose of when that time had to be performed - that obligation had to be performed. Well, what is a reasonable time has to be assessed by reference to the particular circumstances of the case. It's not enough just to say that 2019 is a long time after 1995. What was expressly under discussion between the parties in 1995 was that the integration of anything the city built on that site would be better achieved when stage 2 of Tah Land's development was constructed. ... It has still not been constructed, your Honour. So whatever a reasonable time is, it is at least until stage 2 is constructed.

185 As will be apparent, both parties in their submissions tended to approach the assessment of a 'reasonable time' prospectively; that is, by reference to 'the proverbial hypothetical bystander in 1996' or 'what was expressly under discussion between the parties in 1995'. In that regard, following the conclusion of the trial, the Court invited further submissions from the parties as to 'what constitutes reasonable time', where the law implies that a contractual obligation shall be performed within a reasonable time.

186 In that context, the City made the following submissions in relation to the alternative ways in which it put its case:[143]

9. Further, on its primary case, the City alleges that the parties expressly agreed that the City could call for performance 'when required ... at any time in the future' [emphasis added]. Tah Land does not plead that a term requiring a request for performance be made 'within a reasonable time' should be implied into the express agreement alleged by the City. Thus, if the City's primary case is accepted, no question of whether performance was called for within a reasonable time should arise. The parties have not been given leave to make submissions as to whether such a term should be implied in the express agreement alleged by the City.

10. It is therefore only in respect of the City's alternative argument that the issue may arise, if, contrary to the submissions above, it is held that the City was limited to calling for performance within a reasonable time. If so, the question must necessarily be determined by what has occurred during the time that has elapsed and at the time the City called for performance. That determination must also include assessment of both parties' rights, interests and conduct.

11. The fact that, at an earlier stage the parties may have contemplated that performance would be completed by a certain or earlier date does not mean that a failure to complete or call for performance by that time is a failure to complete or perform within a reasonable time.

The City called upon Tah Land to perform its obligations within a reasonable time

12. Any implication as to the period within which the City was required to exercise its power to call for Tah Land's performance should extend to, at least, Tah Land's actual development of the next stage of the shopping centre. (emphasis added)

187 The submissions before the learned trial judge, both orally and in writing, in our view reveal that her Honour was correct to identify the City's alternative case in the form that she did; namely, whether as a result of the correspondence between the parties in 1996, the parties forwent the enforcement of the time stipulation in cl 3.1 and cl 4.1 of the Deed that the Community Purposes Site be subdivided and transferred to the City prior to the commencement of trading of any business on the Land, giving rise to an implied term enabling the City, within a reasonable time thereafter, to call upon Tah Land to subdivide and transfer to the City the Community Purposes Site.

188 Turning then to the critical findings made by the learned trial judge, insofar as they are relevant to the appeal.

189 In addressing the issues as to Tah Land's liability, the learned trial judge commenced by considering two questions of construction of the Deed. Those questions were whether, upon the proper construction of the Deed:

(a) the City was only entitled to the subdivision and transfer of an area of the Land for the purpose of and use of that area of land as Civic; and

(b) the City could only call for the subdivision and transfer of land within the orange circle depicted on Plan A (see [38] above).

190 The latter issue, namely whether on the proper construction of the Deed, the Community Purposes Site was, and could only ever, be situated within the orange circle on Plan A, formed part of Tah Land's broader contention that Lot 59, as depicted on Plan SK6, was not, as the City alleged, the Community Purposes Site within the meaning of the Deed. Tah Land's contention in that regard was, as the background facts set out above reveal, directly contrary to its insistence, at various times, that that was the case.[144] The same was true of the City's contention at trial that Lot 59 was the Community Purposes Site.

191 The learned trial judge rejected Tah Land's construction of the Deed in relation to this issue and, indeed, Tah Land's broader challenge to the City's case that Lot 59 on Plan SK6 was the Community Purposes Site within the meaning of the Deed. In that regard, her Honour concluded that:

(a) the express terms of the Deed contemplated that the Community Purposes Site, to be depicted on the 'New Plan' referred to in the Deed (see [42] above), was not restricted to a location within the ora[145] circle;145 and

(b) Plan SK6 could properly be characterised as the 'New Plan'.[146]

192 The learned trial judge therefore concluded:[147]

For these reasons, it is clear that Tah Land's submission of Plan SK6 as part of its application for development approval in August and September 1994, constituted performance of Tah Land's obligations under cl 2.1(a) of the 1992 Deed.

193 In relation to the first question of construction, concerning the purpose and use of the Community Purposes Site, the learned trial judge made the following findings (footnotes omitted):

[200] When the express provisions of the 1992 Deed are considered by regard to its context and purpose, for the following reasons, it is clear that the proper construction of the 1992 Deed, is that the City is only entitled to an area of the Land that is for the use of and provision of Civic uses, that is for public civic uses.

...

[203] Importantly, the 1992 Deed did not concern the sale of an asset by the City. Nor did the 1992 Deed concern the transfer of land for a purpose unrelated to the use of the Land, or for a cash contribution for the provision of infrastructure generally within the limits of the City. ...

[204] Whilst the transfer of the Community Purposes Site was to be at no cost to the City, it cannot be said that the transfer of this area of the Land was to be unconditional or that the preconditions to be satisfied to finally effect the transfer of the area of the Land can properly be characterised as unrelated to proper planning purposes for the use of the area of the Land, and perhaps the proper planning purposes of the use of the Land as a whole.

[205] As senior counsel on behalf of Tah Land pointed out in opening, there is nothing commercial about the 1992 Deed. The principal character of the agreement is that it is of a public nature and created as a consequence of, and a condition of, the exercise of a public power for the satisfaction of public purposes.

[206] Pursuant to cl 2.1(b), cl 2.1(c), cl 2.2 and cl 2.3 of the 1992 Deed, the Community Purposes Site (when read with the definition of this term in cl 1.1) was to be rezoned 'Civic', and pursuant to cl 3.1 of the 1992 Deed, Tah Land was required to do all acts and things necessary to obtain all clearances and approvals that are to be required from any relevant authorities in order for DPUD (subsequently WAPC) to approve the plan of subdivision, including submitting the plan of subdivision for approval.

[207] Consequently, prior to the transfer of the site to the City, the site had to first be rezoned and then a plan of subdivision of the site had to be approved by DPUD (or later the WAPC) which approval would have to satisfy all relevant statutory planning processes for subdivision.

[208] By these conditions it was contemplated that the site that was to be transferred to the City would be used for the provision of civic purposes. If it were otherwise, there would be no need to rezone the area of the Land to be transferred to the City as Civic, and cl 2.1(b) and cl 2.3 of the 1992 Deed requiring rezoning of the site to Civic by a contemplated further amendment to TPS 1 would have no work to do. In addition, cl 2.2 would be left substantially devoid of meaning.

[209] Consequently, the proper construction of the 1992 Deed requires a consideration of the planning purposes for which the agreement was entered into. This construction does not contradict the plain meaning of the 1992 Deed. To the contrary, this construction gives proper effect to the objective circumstances addressed by the express terms of the agreement.

194 Later in the Primary reasons, the learned trial judge referred to her conclusion at Primary reasons [200], in the context of her assessment of the expert evidence and her provision assessment of damages. At Primary reasons [442], for example, her Honour said:

For the reasons that I have already given, the 1992 Deed does not contemplate that the City is able to make arrangements for the use of the area of the Land subdivided and transferred to it that has been zoned 'Civic' for purposes other than for civic uses.

195 Similarly, at Primary reasons [486], in relation to her Honour's provisional assessment of damages, the learned trial judge said:

If, as found, the City could only use the whole of the area of the Land depicted as Lot 59 in Plan SK6 for community purposes, and regard is had to my finding that the evidence of each of the planners that the WAPC would not approve a subdivision of the Land in such circumstances, then the City's claim for loss and damage, if assessed on this basis, would necessarily fail.

196 The learned trial judge rejected the City's pleaded case that the effect of the correspondence in 1996 was that Tah Land was obliged to perform the obligations in cl 3.1 and cl 4.1 of the Deed when required by the City 'at any time in the future'. In that regard her Honour concluded:

[287] It is clear that in 1996 there was no agreement reached as to whether the 1992 Deed should be varied in respect of the location of the Community Purposes Site. In any event, the assertions made on behalf of Tah Land in the March to May 1996 correspondence were correct, that is, in 1993 and in 1994 the parties had reached a consensus that Lot 59 of Plan SK6 should be the location of the Community Purposes Site pursuant to the requirements of the 1992 Deed. Having reached that agreement, it is clear that the City did not, in the absence of a subsequent agreement between it and Tah Land, retain its absolute discretion to determine the location of the Community Purposes Site, as the location had been determined in 1994.

[288] However, the terms of an agreement about an extension of time proposed by the City in the 1996 correspondence were about four things: location; zoning; subdivision; and transfer. The agreement reached in March and April 1996 in the exchanged correspondence was certain in respect of two of those things and they were the time for performance of subdivision and transfer of the Community Purposes Site as required by cl 3.1 and cl 4.1 of the 1992 Deed (which effectively required these obligations to be performed prior to Tah Land opening what was then described as Stage 1 of the Kingsway Shopping Centre).

[289] I do not agree that the agreement reached in March and April 1996 was incomplete or uncertain in respect of the time for performance of subdivision and transfer of the Community Purposes Site. This is because for the reasons that follow the law must necessarily imply a term that performance of these obligations must be completed by Tah Land if the City calls for performance within a reasonable time.

[290] Thus, I do not agree that it can be objectively found that there was an agreement reached that the City could call for Tah Land to subdivide and transfer the Community Purposes Site at any time in the future that the City required.

197 As is apparent from the second sentence in Primary reasons [289], the learned trial judge's acceptance that there had been a certain and complete agreement to vary the time for performance at all, was based upon her Honour's conclusion that the law would imply a term that performance be completed if the City called for performance within a reasonable time.

198 The learned trial judge gave further reasons in relation to this conclusion later in her reasons:

[292] The context of the agreement reached in 1996 is that the parties had an ongoing relationship of developer of land and planning authority. When determining the terms of the agreement reached about an extension of time, regard must be had to this context, together with the fact that they had agreed in 1992 that the City was to have transferred to it part of the Land for a Community Purposes Site, the time for performance of which was limited. The obligation was limited firstly, by the requirement of Tah Land to present the New Plan within three years of the making of the 1992 Deed, and secondly at a time prior to the commencement of trading of any business on the Land. It was clear that the parties intended in 1996 to vary the time for performance of these obligations.

[293] The time for performance of the obligation to subdivide and transfer the Community Purposes Site to the City were express and essential terms of the 1992 Deed. The agreement reached between the parties to extend time for performance of the obligations to subdivide and transfer the Community Purposes Site beyond the commencement of trading on the Land was an agreement in respect of a term that can only be properly characterised as an essential and critical term. Part of this term was that the extension of time be on proper and reasonable terms. The agreement reached in 1996 cannot be characterised as simply an agreement to agree to procedural and non‑essential terms but is capable of giving rise to an implied term that subdivision and transfer of the Community Purposes Site be effected within a reasonable time.

[294] Consequently, [it] is clear that when the parties agreed in March and April 1996 to allow Tah Land to trade on the Land without first subdividing or transferring the Community Purposes Site it is implicit in the term for an extension of time 'on proper and reasonable terms and conditions' consistent with the 1992 Deed, that in circumstances where the City had persuaded Tah Land by 28 December 1995 not to subdivide the Land to create a Community Purposes Site in the north‑east corner of the Land, the City could only call upon Tah Land to subdivide and transfer the Community Purposes Site within a reasonable time.

[295] There was no uncertainty as to the agreement that Tah Land was not required to comply with the express time limits provided for in cl 3.1 and cl 4.1 of the 1992 Deed as the essential terms in respect of this issue were not uncertain. Nor was agreement on this issue incomplete.

[296] In any event, a promise to perform an obligation assumed to be the terms of a contract can be dispensed with on a request not to perform. In such a case, where there is no further agreement as to the time for performance, the law implies that the obligation shall be performed within a reasonable time.

199 The learned trial judge then turned to the issue as to the proper approach to be taken in assessing whether a reasonable time had elapsed for the City to call upon Tah Land for performance of the obligation to subdivide and transfer the Community Purposes Site.

200 After referring to the parties' submissions at trial and to the further submissions referred to at [185] to [186] above, her Honour noted that the parties accepted that the preponderance of authority is that 'reasonable time' is not to be judged at the time that an agreement is made which gave rise to an implied term that the contractual right must be exercised or called upon to be exercised wit[148] a reasonable time.148

201 Her Honour summarised the effect of the authorities in the case before her:[149]

In this matter the court must look backwards in time and look at all relevant circumstances to determine whether a period of reasonable time had or had not passed. In particular, it should consider the reasons why the City did not call upon Tah Land to subdivide and transfer the Community Purposes Site prior to 2019 as identified as Lot 59 in the north‑east corner of the Land as depicted in Plan SK6, and examine the conduct of the parties (as to whether their conduct was reasonable) to determine whether it was fair to the rights and interests of the parties for the City to call for performance at that time.

202 Applying these principles to the present case, the learned trial judge concluded that a reasonable time for the City to call for Tah Land to subdivide and transfer to it the area of the Land depicted as Lot 59 on Plan SK6 had passed by the time the City made a call for performance in 2019.[150]

203 In reaching this conclusion, the learned trial judge made a number of subsidiary findings as to the conduct of the parties and the effect of the subsequent planning instruments, including ASP 59, on the orderly and proper planning of the area. Those findings related to the conduct of the parties at various times during the 25 years that elapsed between 1994 and 2019. Some of those findings are challenged by (i) to (v) of ground 2(b) and we will detail them in that context.

204 Broadly summarised, there were, as Tah Land submits, four main strands to her Honour's reasons as to a reasonable time:

(a) From February 1995 and for more than 15 years thereafter, the City held and expressed the view that the north‑east corner where Lot 59 was located was not a suitable location for a community purposes site; under ASP 59 this view was demonstrably correct.[151]

(b) The City's demand for Tah Land to subdivide and transfer Lot 59 was uncoupled from any proposal or intention to use it for the provision of civic or community facilities.[152]

(c) The City's demand was inconsistent with, or did not sit comfortably with, the provisions and evident policy of ASP 59 and the WAPC would not have approved an application to subdivide Lot 59.[153]

(d) The policy of the law is against burdening an owner of land with obligations for an unacceptably long period of time. Tah Land's obligation to subdivide and then transfer the Community Purposes Site was of a kind that attracts that policy.[154]

205 The learned trial judge accepted the following matters from Tah Land's submissions:[155]

(a) the delay in the performance of the asserted obligation to transfer the Community Purposes Site in the period from 1996 until the approval of ASP 59 was the result of the City's refusal to accept the location of that site as Lot 59 on Plan SK6 and its desire to keep the question of the location of the Community Purposes Site on the Land open. The City failed entirely to collaborate in the performance of the asserted obligation and, in fact, repeatedly declined to accept performance of the asserted obligation it purported to insist on in 2019;[156]

(b) that the new site for the provision of community facilities in a redevelopment of the Land was subsequently identified in the area shown in a draft of ASP 59. Following the approval of ASP 59 in 2010 and the identification of a new site for a civic and cultural facility and the devotion of the north eastern corner to predominately residential land use, there were (at least) serious practical difficulties in the creation and transfer of a Community Purposes Site at the location identified in the Deed. The expert evidence established that by 2019 a subdivision to create the Community Purposes Site for civic facilities uses consistent with those envisaged by the Deed was unlikely to be approved by the WAPC.

At least from March 1995 until at least when the City served its first notice of default in September 2015 upon Tah Land the City had pressed a view that Lot 59 in Plan SK6 was not a suitable site for the provision of civic and cultural facilities. To press for subdivision and transfer of this area of the Land was plainly not fair to Tah Land, as Tah Land was required by ASP 59 to provide for civic and cultural facilities on the Land if it wished to proceed with Stage 2 of development of the Land.

207 In relation to the events in 1993 and 1995 (see [52] to [77] above) and those in 2003 and 2004 (see [99] to [[[158]](2022_53.html#_Ref9868 It was also unfair in 2019 for the City to make a demand for performance in circumstances where the City had resisted attempts by Tah Land in 1993 and 1995 to transfer this area of the Land to the City and had failed to respond to Tah Land a draft deed of variation to the 1992 Deed to enable the subdivision and transfer of this area of the Land in 2003 and 2004.

208 In relation to the events in 2015 (see [147] to [152] above),[159]r Honour concluded:159

Further, the City made its demand for performance in 2019 not with the intention of making any arrangements for it or any other person or organisation to provide any Civic facilities on that site. Whilst the Council resolved in 2015 to pursue an agreement to locate a library on a freehold site on the Land to be owned by the City, it did not take any real steps to reach agreement and by 2019 it sought damages for the loss of the opportunity to have transferred to it the area of the Land depicted as Lot 59 in Plan SK6.

209 More generally, the learned trial judge's conclusion in relation to a reasonable time having elapsed was in the following terms:

[454] By 2019, by looking backwards and looking at all relevant circumstances which are:

(a) the reasons why the City had not made a similar call any earlier than 2015 (that is the site was not a suitable site for integrated civic and community facilities);

(b) the fact of the making of ASP 59 together with the failed negotiations that [preceded] the making of ASP 59, and after it was approved prior to the service of first notice of default in 2015;

(c) the fact that the City did not wish or intend at the time it called for performance in 2019 (which call is the only call for performance it now relies upon) to use any of the area of the Land depicted as Lot 59 in Plan SK6 for the provision of Civic and Cultural purposes, (which in any event this site would not likely be approved for subdivision by the WAPC);

it could not be said that it was fair to both parties for the City to call for performance of the obligations in cl 3.1 and cl 4.1 of the 1992 Deed.

[455] As Tah Land point out in their written submissions filed on 8 June 2020:

(1) Following the negotiation and approval of ASP 59 by the City it would be (at the least) unfair to Tah Land for the City to now revert and insist on the performance of an obligation to create and transfer an effectively superseded Community Purposes Site under the 1992 Deed.

(2) The obligations to create and transfer the Community Purposes Site under the 1992 Deed are of a kind which attracts the policy of the law against the burdening of an owner of land with such obligations for an unacceptable [sic] long period of time. The 25 years from 1996 to 2019 is, on any view, an unacceptably long period of time. This is especially so given that up until 2004 Tah Land had repeatedly and unsuccessfully pressed the City to accept Lot 59 in Plan SK6 as the Community Purposes Site under the 1992 Deed and after the approval of ASP 59 the parties' representatives had identified a different site in its plans for the redevelopment as the site for community purposes.

[456] In short, none of the reasons for the 25 year delay could be said to fall at the feet of Tah Land, as it cannot be found that Tah Land caused or contributed in any material way to the delay in the City making a call for performance of Tah Land's obligations under cl 3.1 and cl 4.1 of the 1992 Deed.

210 As a consequence of the learned trial judge's conclusions:

(a) rejecting the City's pleaded case that the Deed had not been varied such that Tah Land was obliged to perform the obligations in cl 3.1 and cl 4.1 of the Deed when required by the City 'at any time in the future'; and

(b) rejecting the City's alternative case, on the basis that reasonable time for the City to call for Tah Land to subdivide and transfer to it the area of the Land depicted as Lot 59 on Plan SK6 had passed by the time the City made a call for performance in 2019,

her Honour dismissed the City's claim on the grounds that liability had not been established.[160]

211 Notwithstanding her Honour's conclusion that the City's case on liability failed, the learned trial judge went on to consider two further issues:

(a) whether the doctrine of approbation and reprobation had any application to the conduct of the parties;

(b) the quantum of loss, in the event that the City had established liability.

212 Both the City and Tah Land called in aid the doctrine of approbation and reprobation in relation to different aspects of their respective cases.

213 For its part, the City maintained that Tah Land could not depart from its course of conduct in which it treated the submission of Plan SK6 (and Plan L01) as the submission of the 'New Plan' within the meaning of the Deed, in compliance of its obligations under cl 2.1(a) of the Deed. As noted above, Tah Land's case at trial, to the effect that Lot 59 on Plan SK6, was not, and could not be, the Community Purposes Site within the meaning of the Deed was directly contrary to its insistence at various times that that was the case.

214 The learned trial judge observed that this issue necessarily fell away in light of the findings that her Honour had made, first, that the submission of Plan SK6 did constitute a 'New Plan' within the meaning of the Deed and, secondly, because the City's case on liability had failed in any event.[161]

215 Tah Land maintained, for its part, that by entering into ASP 59, which involved the development and use of the Land in a manner radically divergent from a development and use involved in an obligation to subdivide and transfer to the City the area of the Land depicted as Lot 59 on Plan SK6 for community purposes, the City pursued a course of conduct which was inconsistent with any existing claim for the subdivision and transfer to it arising under the Deed. On that basis Tah Land contended that the doctrine of approbation and reprobation was engaged with the result that the City could not resile from its chosen course and later assert a right to the subdivision and transfer to it the area of the Land depicted as Lot 59 on Plan SK6 for community purposes.[162]

216 Again, in light of her Honour's conclusions in relation to liability, it was ultimately not necessary for the learned trial judge to deal with this aspect of Tah Land's case. Nevertheless, her Honour recorded that she would have rejected Tah Land's case in this regard, on the basis that the City did not receive a 'benefit' from the approval of ASP 59, so as to attract the doctrine of approbation and reprobation.[163] Her Honour concluded that the rezoning, by ASP 59, of the area depicted in Diagram 1 as 'Mixed Use (Civic)' (see [132] above) did not provide such a benefit. This was because that area was the subject of a restricted covenant, by operation of a 25 year lease in favour of Big W for the purposes of a car park, which was not due for expiry until sometime in 2023, and so could not support a civic and cultura[164]acility.164

217 Finally, her Honour briefly addressed the assessment of loss and damage, in the event that she was wrong in finding that the time for the City to call for performance of the obligation on Tah Land to subdivide and transfer the Community Purposes Site had passed by the time the City made the call for performance in 2019.

218 Those findings proceeded upon the uncontested valuation evidence to the effect that, as at 5 March 2019, the market value of the area of the Land depicted as Lot 59 on Plan SK6 having regard to the potential to rezone the land to allow its highest and best use was $3,700,000.[165]

219 In that context, however, the learned trial judge had earlier made findings, based on the expert planning evidence (and in particular that of Mr Hajigabriel and Mr Shrapnel), to the effect that the WAPC would not, in April 2019, have approved the subdivision of Lot 59 on Plan SK6 on the basis of its zoning being 'Civic and Cultural'.[166] Her Honour found that orderly and proper planning required that the land depicted as Lot 59 on Plan SK6 should be allocated, as it is in ASP 59, to predominantly high density residential and open space.[167]

220 A contrary view, in relation to the subdivision potential of Lot 59 on Plan SK6 was given by Mr Allerding. The learned trial judge recorded that Mr Allerding had given evidence that the WAPC was likely to approve subdivision of the land depicted as Lot 59 on Plan SK6 if the subdivision was for the provision of civic and community facilities in combination with other uses consistent with ASP 59 such as Residential and Open Space.[168] Her Honour also recorded that, in his oral evidence, Mr Allerding had estimated the chance of approval to be in the order of 15%.[169]

221 Having regard to these matters, the learned trial judge made two alternative provisional findings in relation to loss and damage.

222 First, her Honour concluded that, if as she had found, the City could only use the whole of the area of the Land depicted as Lot 59 on Plan SK6 for community purposes, her finding that the evidence of each of the planners that the WAPC would not approve a subdivision of the Land in those circumstances meant that the City's claim for loss and damage, if assessed on this basis, would necessarily fail (that is, the City's loss would be nil).[170]

223 Secondly, her Honour concluded that, if the Deed were construed to allow for the provision of civic and community facilities on the land depicted as Lot 59 on Plan SK6 in combination with the uses Residential and Open Space as provided for in ASP 59, then, on Mr Allerding's evidence, there was a 15% chance that the WAPC would approve such a subdivision. Her Honour concluded that, if the City's loss and damage were assessed on that basis, the quantum of its loss would be $555,000, being 15% of $3,700,000.[171]

225 Ground 1 concerns the learned trial judge's conclusion that, on the proper construction of the Deed the City was only entitled to an area of the Land that was for the use of and provision of Civic uses (that is for public civic uses - see [193] to [195] above).

226 Ground 1 contends that her Honour erred in law in finding:

(a) that the proper construction of the [Deed] is that [the City] was only entitled to the subdivision and transfer of part of the Land (as defined in the Deed) owned by [Tah Land] for the use of and provision of 'Civic uses' meaning 'public civic uses' [Primary reasons [200]]; and

(b) that the Deed did not permit the City to use the area of the Land to be subdivided and transferred to it other than for 'civic' uses or 'community purposes' [Primary reasons [442] & [486]].

227 Ground 2 concerns the learned trial judge's rejection of the City's case on liability. As will be seen, it addresses each of the alternative ways in which that case was addressed by her Honour.

228 Ground 2 contends that the learned trial judge erred in law and in fact in finding that the time had passed for the City to call for Tah Land to prepare a surveyed plan of subdivision of the Land which, when approved and registered, would subdivide the area of the Land depicted as Lot 59 on Plan SK6 from the Land by the time the City called for Tah Land to perform that task in 2019 (Primary reasons [453]).

230 First, as to the effect of the correspondence in March and April 1996, ground 2(a) contends that the learned trial judge

erred in law in finding that, in the agreement made in March and April 1996 to extend the time for performance of cll 3.1 and 4.1 of the Deed, there was implied by law a term that the obligations need only be performed by Tah Land if the City called for performance 'within a reasonable time'. [Primary reasons [289]].

231 Secondly, as to whether a 'reasonable time' had in fact elapsed, ground 2(b) contends that the learned trial judge

erred in law and in fact in finding that more than a 'reasonable' period of time had passed by the time the City called for Tah Land to perform that task in 2019 [Primary reasons [453]], in particular by erring:

(i) in law and in fact in assessing the reasonableness of the period of time that had elapsed before the City called for Tah Land to perform in 2019 by reference to the erroneous construction of the Deed the subject of ground 1 [Primary reasons [391] ‑ [454]];

(ii) in law and/or in fact in finding that no negotiations took place after the City Council's motion of 8 December 2015 (J[181]) and that the City 'did not take any real steps to reach agreement' [Primary reasons [429]];

(iii) in fact in finding that the City 'failed entirely to collaborate' in the performance of cl 3.1 and repeatedly declined to accept performance of the asserted obligation (Primary reasons [420(a)]), including by finding that in 2004 Tah Land was pressing for the transfer to the City of Proposed Lot 59 [Primary reasons [102]];

(iv) in law in finding that it was 'unfair' to Tah Land to call for performance of cl 3.1 because Tah Land was 'required' by [ASP 59] to provide for civic and cultural facilities on the Land if it wished to proceed with the next stage of development of the Land [Primary reasons [421]];

(v) in law ... and/or in fact in finding that the City made its demand for performance in 2019 with no intention of making any arrangements for it or any other person or organisation to provide any 'Civic' facilities on the site (Primary reasons [429]).

232 Tah Land, by its notice of contention, contends that the learned trial judge's decision to dismiss the City's claim should be affirmed on three grounds.

233 The first two grounds in the notice of contention relate to the learned trial judge's rejection of Tah Land's challenge to the City's case that Lot 59 on Plan SK6 was the Community Purposes Site within the meaning of the Deed. In that regard, Tah Land contends that the learned trial judge:

(a) erred at Primary reasons [214] to [224], [229] and [254] in finding that the 'Community Purposes Site' for the purposes of the Deed was, or could be, an area outside the area coloured orange on the Plan (contention 1); and

(b) erred at Primary reasons [258] to [269] in concluding that in or about August and September 1994, Lot 59 on Plan SK6 became the 'Community Purposes Site' within the meaning of the Deed (contention 2).

234 The third ground in the notice of contention relates to the learned trial judge's rejection of Tah Land's argument that the City's conduct in entering into ASP 59 engaged the doctrine of approbation and reprobation, with the result that the City could not assert a right to the subdivision and transfer to it the area of the Land depicted as Lot 59 on Plan SK6 for community purposes. In that regard, Tah Land contends that the learned trial judge erred at Primary reasons [457] to [478] in concluding that the City obtained no benefit from ASP 59 engaging the doctrine of approbation and reprobation such that, by reason of that doctrine, it was precluded from asserting the inconsistent position that Tah Land was obliged to subdivide and transfer Lot 59 on Plan SK6 as the Community Purposes Site under the Deed (contention 3).

236 It is necessary, first, to place ground 1 in its proper context.

237 Ground 1 seeks to challenge findings in three separate passages in the Primary reasons (at [200], [242] and [486]). The three passages are set out at [193] to [195] above. While those passages are in similar terms, there are subtle differences between them and each appears in a different context in the reasons.

238 As counsel for the City confirmed at the hearing of the appeal, ground 1, which concerns the proper construction of the Deed, as to the contemplated 'use' of the Community Purposes Site, would not alone, if established, result in the appeal being upheld. Rather, as counsel submitted, the construction of the Deed advanced in ground 1 was 'centrally relevant to considering what is a reasonable time if [ground 2(b)] arises'.[172] That is, in the event that the right of the City to call for the subdivision and transfer of the Community Purposes site was limited by reference to a 'reasonable time', all of the circumstances relevant to the 'parties' rights, interests and conduct'[173] will be relevant to whether a reasonable time had elapsed, including the nature of the rights under the Deed.

239 As the City also submitted at the appeal, the construction of the Deed would also be relevant to the assessment of damages, in the event that the appeal was upheld. Indeed, the third finding challenged by ground 1 (at Primary reasons [486]) was expressly referred to by her Honour in the context of her provisional assessment of loss and damage.

240 Finally, the City submitted that, depending upon how the passages impugned by ground 1 are to be understood, it might be suggested that the learned trial judge found that the Deed imposed a substantive limitation on Tah Land's obligation to subdivide and transfer the Community Purposes Site, by reference to its intended or future use. That, as counsel submitted, depends upon how one construes her Honour's reasons.[174]

241 In that regard, the parties to the appeal proffered differing constructions as to the effect of the learned trial judge's findings. Those differing constructions are significant in identifying the 'target' of ground 1.

242 For its part, the City contended that her Honour had, erroneously, construed the Deed so as to impose a substantive restriction on the use to which the Community Purposes Site might be put. That construction of the learned trial judge's reasons is reflected in the City's written submissions in the following terms:[175]

It is one thing to observe, as a matter of fact, that the parties had a common understanding or intention that the Community Purposes Site would be used to develop some kind of community facility at some time in the future. But that does not suffice to find, as a matter of law, that by the words used in the Deed the parties objectively intended that Tah Land need perform cl 3.1 only if the City (at the time of performance) intended to then use the site for (and only for) 'civic' or 'community purposes' and that, once transferred, the City could use the land only for such purposes.

...

That the parties contemplated that the site would be used at some time for some kind of civic purpose does not and cannot alter the plain meaning of the words of cll 3.1 and 4.1. The plain meaning compels the conclusion that Tah Land's obligation to subdivide and transfer to the City the site identified pursuant to cl 2 was not qualified or limited by the use or uses to which the City intended to put the site.

243 Tah Land, on the other hand, submitted that the passages impugned by ground 1 did not find that the Deed imposed limitations on the uses to which the Community Purposes Site might be put after its transfer. It disavowed any suggestion that there was any enduring obligation after the transfer 'in the nature of a restrictive covenant'.[176] Tah Land submitted:[177]

Contrary to [the City's submissions], nothing in the primary judge's reasoning depends on the proposition that there was any limitation found in the 1992 Deed on the City's use of the Community Purposes Site after its transfer. The primary judge's reasoning focussed on the character of the object that engaged the provisions of the 1992 Deed to subdivide (cl. 3) and transfer (cl. 4) and the purposes for which and the conditions in which the City could require the performance of the obligations. (emphasis added)

244 Tah Land's reference to 'the character of the object that engaged' the obligations in cl 3.1 and cl 4.1 of the Deed, is a reference to the zoning of the Community Purposes Site as land zoned Civic. That is, Tah Land submitted that her Honour in the impugned passages had found, correctly, that on the proper construction of the Deed, unless the area to 'be zoned 'Civic' as provided for in Clause 2'[178] was in fact zoned Civic in accordance with cl 2, it would not meet the description 'Community Purposes Site' (as defined) so as to engage the subdivision and transfer obligations in cl 3.1 and cl 4.1 of the Deed.[179]

245 Tah Land submitted, in effect, that the learned trial judge's statement, in Primary reasons [200], that 'the City is only entitled to an area of the Land that is for the use of and provision of Civic uses, that is for public civic uses' should be understood to mean 'the City is only entitled to an area of the Land that is zoned Civic', and that it is the zoning of the area that gives rise to any use limitations.

246 Given their differing constructions of the learned trial judge's reasons, the parties' submissions in relation to ground 1 tended to join issue only at the margins.

247 Significantly, the broad target at which the City aimed its submissions (namely, the suggestion that 'Tah Land need perform cl 3.1 only if the City (at the time of performance) intended to then use the site for (and only for) 'civic' or 'community purposes' and that, once transferred, the City could use the land only for such purposes') was disavowed by Tah Land. No party contended that the Deed imposed an enduring obligation on the City as to the use of the Community Purposes Site after transfer (albeit that whatever use restrictions that existed under the relevant local planning scheme would continue to apply).

248 Similarly, to the extent that Tah Land contended that the zoning of the area identified as the Community Purposes Site was required to be 'Civic' in order to enliven the subdivision and transfer obligations in the Deed, it was common cause that, at least at the time that the City relevantly called for performance (on 27 February 2019), Lot 59 on Plan SK6 was zoned 'Civic and Cultural' (and so met that requirement). Tah Land accepted that, apart from the potential effect of ASP 59 from 2010 to 2015, Lot 59 on Plan SK6 had a Civic zoning.[180]

249 The City nevertheless did submit that nothing in cl 3.1 or cl 4.1 was expressed as conditional upon the zoning of the Community Purposes Site as 'Civic' having occurred.[181]

250 In that sense the parties joined issue as to whether the Community Purposes Site was required to be zoned 'Civic' in order to enliven the subdivision and transfer obligations in the Deed. As events transpired, however, any such requirement would not have had an immediate and direct effect on the parties' rights under the Deed. As the City submitted, 'if what the Deed required was transfer of land zoned Civic under [DPS2], the land always answered it'.[182]

251 The parties differing constructions as to whether the zoning of the site as 'Civil' was a precondition to the obligation to subdivide and transfer the site, did reflect, however, an important difference between the parties as to the underlying contractual purpose of the Deed, insofar as it included the obligation to subdivide and transfer the Community Purposes Site. That contractual purpose, both parties contended, was (at least potentially) relevant to the assessment of whether, on the City's alternative case, a 'reasonable time' had elapsed when the City called for performance in 2019.[183]

252 The difference between the parties in this regard may be understood in the following way.

253 Tah Land contended, as found by the learned trial judge, that the Deed, as a whole, was an agreement of a public nature and created as a consequence, and a condition of, the exercise of a public power for the satisfaction of public purposes.[184] As Tah Land submitted:[185]

The primary judge's conclusion at [Primary reasons [205]] that there was nothing commercial about the 1992 Deed was amply justified. ... It was an agreement of a public nature created as a consequence of and as a condition of an exercise of a public power for the satisfaction of public purposes. It was not, and could not be, an occasion for the City to turns (sic) its public powers of rezoning land to its commercial advantage by insisting as a condition of their exercise on the secession of land for its own benefit or for reasons unrelated to proper planning purposes. That Tah had commercial objectives in seeking the rezoning of the Land is nothing to the point ... That does not impress on the conditions the City imposed on the exercise of its powers reflected in the 1992 Deed a commercial character they did not (and could not) otherwise have.

254 The City contended otherwise. While its written submissions did appear to accept that 'the parties contemplated that the site would be used at some time for some kind of civic purpose',[186] at the hearing of the appeal counsel for the City, with admirable frankness, identified the City's purposes leading to the creation of the Deed as being about 'extracting money or extracting something into money such as land'.[187]

255 This particular submission was made in the context of a report prepared by the City Planner dated 5 December 1990,[188] which demonstrated, the City submitted, that 'private agreements with landowners such as the Deed was a recognised way of securing contributions by developers to those necessary costs for what was then the developing urbanisation of the East Wanneroo area'.[189] Hence, counsel for the City submitted, in relation to the effect of the Deed:[190]

It is transfer of the land in fee simple to the city without, in my submission, any restrictions on what the city can do with it once it's transferred. And that's in this context of this urbanisation of East Wanneroo, where there is a recognised need for developers to make contributions of money to the costs of building them.

256 Hence the City, in its submissions, identified the underlying contractual purpose of the Deed to give something of value to the City simpliciter (i.e. 1.5 ha of land), rather than to provide a particular area of land necessary to address or fulfil some civic or public purpose.

Ground 1 - the proper construction of the challenged findings

257 We commence by identifying what in our view is the proper construction of the passages in the Primary reasons impugned by ground 1.

258 The first of those passages (at Primary reasons [200]) is, in our view, the principal finding. As will be apparent, in our view, the subsequent findings (at Primary reasons [442] and [486]) are each simply a recapitulation of the first passage.

When the express provisions of the 1992 Deed are considered by regard to its context and purpose, for the following reasons, it is clear that the proper construction of the 1992 Deed, is that the City is only entitled to an area of the Land that is for the use of and provision of Civic uses, that is for public civic uses.

260 This passage, on its face, is concerned only with the circumstances in which the City was 'entitled to' receive the area designated as the Community Purposes Site. Her Honour did not here find that the Deed could, or indeed purported to, control the use to which the City might, in future, put the Community Purposes Site.

261 In that regard, we accept Tah Land's construction of the learned trial judge's reasons. In our view, and in light of the paragraphs that follow (particularly at Primary reasons [206] to [208]), her Honour's conclusion in Primary reasons [200], that 'the City is only entitled to an area of the Land that is for the use of and provision of Civic uses, that is for public civic uses' should be understood to mean prior to the transfer of the site to the City, the site had to first be rezoned 'Civic',[191] and the City was only entitled to an area of the Land that was zoned 'Civic'.

262 The learned trial judge can also be taken to have concluded, in relation to the purpose of the Deed, that 'it was contemplated that the site that was to be transferred to the City would be used for the purposes of civic purposes',[192] albeit that the parties' contemplation in that regard could not result in an enduring limitation on the City's use of the site if and when the site was transferred.

263 While we accept that the subsequent passages impugned by ground 1 are capable of being understood to go further (so as to suggest an enduring limitation by the Deed on the use of the Community Purposes Site), in our view, properly understood those passages are to the same effect as Primary reasons [200]. In any event, as we have addressed below, if we are wrong about that, the alternative construction of the subsequent passages would not, in the circumstances, materially alter the learned trial judge's ultimate conclusions.

264 The second passage challenged by ground 1 (Primary reasons [442]), is set out at [194] above. That passage must be understood in its full context. At that point in the reasons her Honour was addressing the expert evidence as to whether the WAPC would be likely to approve the subdivision of Lot 59 on Plan SK6. Mr Hajigabriel, whose evidence the learned trial judge preferred, had given evi[193]ce that:193

the WAPC was unlikely, in April 2019, to have approved an application for subdivision of a 1.5 ha lot comprising the area of the land depicted as Lot 59 in Plan SK6 from the Land which identified the 'Proposed land use/development' as 'Civic and Cultural' (as Lot 59 is zoned under DPS 2) because such use is not consistent with cl 5.1.4 and Diagram 1 (annexed as Annexure L to these reasons) of ASP 59.

265 One of the reasons given by her Honour for preferring Mr Hajigabriel's opinion over that of Mr Allerding was that it was:

apparent that one of the reasons that [Mr Allerding's] opinion differs from Mr Shrapnel and Mr Hajigabriel is that he is of the view that the WAPC is likely to approve subdivision of the area of the land depicted as Lot 59 in Plan SK6 if the subdivision is for the provision of civic and community facilities in combination with other uses consistent with ASP 59 such as Residential and Open Space. However, this is not what the 1992 Deed requires. For the reasons that I have already given, the 1992 Deed does not contemplate that the City is able to make arrangements for the use of the area of the Land subdivided and transferred to it that has been zoned 'Civic' for purposes other than for civic uses.

266 The final sentence of this passage (which is that impugned by ground 1) therefore appears in the context of her Honour's discussion as to whether the WAPC would have approved a subdivision of Lot 59 on Plan SK6 in April 2019. That issue was therefore focussed on the likelihood of such a subdivision being approved given the zoning that the area in fact had at the time, namely 'Civic and Cultural'. It was the extant zoning, which was that contemplated by the Deed, which gave rise to the impediment to subdivision identified by Mr Hajigabriel. Mr Allerding's opinion to the contrary was premised on a zoning (and corresponding use categories) that did not reflect the zoning (and corresponding use categories) contemplated by the Deed and the zoning actually in place at the relevant time.

267 The third passage impugned by ground 1 (Primary reasons [442]) may be similarly understood. That passage (reproduced at [195] above) appears in the context of her Honour's provisional assessment of damages and follows from her Honour's acceptance of the expert evidence to the effect that WAPC would not, in April 2019, have approved subdivision of the land depicted as Lot 59 on Plan SK6 identifying the 'Proposed land use/development' as 'Civic and Cultural'. That is, her Honour may properly be understood as expressing the conclusion that, as an application for subdivision of the land depicted as Lot 59 on Plan SK6 would not have been approved with the zoning contemplated by the Deed, the City suffered no loss as a consequence of the failure, by Tah Land, to apply for such a subdivision.

268 So understood, in our view, the learned trial judge's construction of the Deed, to the effect that the City was only entitled to an area of the Land that was zoned 'Civic', was correct.

269 The principles applicable to the construction of written contracts established by the High Court are well known. The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear.[194]

270 The instrument must be read as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed to have some operation.[195]

271 While the search is for the meaning of the text of the instrument, identification of the purpose and policy of the instrument are an important guide to the discernment of that meaning. As with statutory instruments, the context, the purpose and the policy of the provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.[196]

272 As to the policy and purpose of the Deed, insofar as it provides for the creation of the Community Purposes Site, in our view, the purpose of the Deed is clear from the instrument itself.

273 The purpose of the Deed, in providing for the subdivision and transfer of the Community Purposes Site, was to enable the provision, in the locality of the development of the Land as a whole, of public civic and community facilities. This was a planning purpose intended by the parties to give effect to the orderly and proper planning of the locality as a whole.

274 To be clear, the purpose of requiring Tah Land to subdivide and transfer 1.5 ha of the Land to the City was not simply to 'extract money', or a thing of monetary value, from Tah Land for the general benefit of the City. It was to facilitate civic and community uses in the locality itself.

275 This purpose is reflected in the context of the background recited in the Deed itself. The genesis of the transaction arose in, and was expressly premised upon, the exercise by the City of its public powers to adopt Amendment 443. The effect of Amendment 443 was to transform what was rural land in the location, into a location with a range of commercial and industrial uses. The provision of a Community Purposes Site from the Land was a condition of that change to the character of the locality, that the City, in the exercise of its public powers, resolved to adopt by Amendment 443.

276 The public purpose of the Deed is reflected in the operative provisions of the Deed as well. Tah Land was contractually obliged, by cl 2.1(b), to request that the City include a Civic Zone over the Community Purposes Site. The time stipulation of that obligation was, inter alia, that it take place prior to the transfer of the Community Purposes Site. While there was some dispute as to the reach of cl 2.1(b) and cl 2.3 of the Deed (which we have addressed at [285] to [286] below), as a matter of the purpose of the Deed, Tah Land's obligations clearly contemplated that the zoning of the Community Purposes Site as 'Civic' was an integral part of the purposes to be achieved by the Deed as a whole.

277 Much attention was given to the definition of Community Purposes Site (see [36] above), and the words 'and to subsequently be zoned 'Civic' as provided for pursuant to Clause 2'. While a definition does not generally have substantive effect, it is generally to be inserted into the operative provision(s) in which the defined term is used, and thereby provides an aid in construing the instrument [197]a whole.197 In this case, the definition of Community Purposes Site expressly incorporates, within its character, something that is to be done to the site in the execution of the Deed (namely, its rezoning). While this temporal aspect of the definition does create difficulties in applying the usual approach of inserting the definition at every point in which it appears in the operative provisions, as a matter of the policy o[198]he Deed,198 the definition, understood in the context of the operative provisions into which it is to be inserted, reveals a contractual intention that the Community Purposes Site will be zoned 'Civic'.

278 The surrounding circumstances reinforce the conclusion that the purpose of the Deed, insofar as it concerned the Community Purposes Site, was to enable the provision of civic and community facilities in the locality. Those circumstances include the detailed consideration of the kinds of facilities envisaged and the size of the land that those facilities would require.[199]

279 Accordingly, whatever conclusion be reached as to whether, pursuant to cl 3 and cl 4 of the Deed, the City was only entitled to an area of the Land that is zoned 'Civic', the underlying contractual purpose of the Deed, namely to enable the provision, in the locality of the development of the Land as a whole, of public civic and community facilities, is clear.

280 As to the obligations in cl 3 and cl 4 of the Deed, while we recognise that there is a finely balanced constructional choice to be made, we accept Tah Land's construction to the effect that unless the area to 'be zoned 'Civic' as provided for in Clause 2' was in fact zoned Civic in accordance with cl 2, it did not meet the description 'Community Purposes Site' (as defined) so as to engage the subdivision and transfer obligations in cl 3 and cl 4 of the Deed. In other words, the City was only entitled to the subdivision and transfer of an area of land that was zoned 'Civic'.

281 As with the learned trial judge, we have reached that construction based on the detailed provision in the Deed for the rezoning of the part of the Land to be transferred as Civic. The text and structure of the Deed reveals that the land was to be zoned 'Civic' before it was subdivided and transferred. This is reflected in the text, by the opening words of cl 2, which make provision for the steps in that clause to occur '[w]ithin three (3) years ... and prior to the transfer'. The structure of the Deed also reveals the three step successive process of rezoning (cl 2), subdivision (cl 3) and transfer (cl 4).

282 In that context, by incorporating as part of the definition, the words 'and to subsequently be zoned 'Civic' as provided for pursuant to Clause 2', in our view, the definition of Community Purposes Site, when inserted into cl 4, identifies that part of the Land that is the subject of the transfer obligation as an area zoned 'Civic'. In other words, if no part of the Land is zoned 'Civic' pursuant to cl 2 of the Deed, there is no part of the Land that meets the definition of Community Purposes Site upon which the obligation in cl 4 could operate.

283 In addition to being supported by the text and structure of the Deed, this construction, in our view, best promotes the objectively discerned public and civic purposes of the Deed.

284 In preferring this construction, we recognise that it is not possible to neatly transcribe the definition of 'Community Purposes Site' at every point in which it appears in the operative provisions. In order to make sense of the provisions some flexibility must be given to the words used.[200] That, however, is the inevitable result of a definition that expressly contemplates that aspects of the 'thing' defined will alter as the obligations of the Deed are performed. In that regard, once the process of rezoning contemplated by cl 2 has occurred, it is inevitable that the words of futurity in the definition can no longer be rigidly applied. A similar effect can be seen in the flexible application of the definition in relation to the precise location of the Community Purposes Site (see [189] to [192] above).

285 It remains to address, in this context, the parenthetical words 'without being obliged to do so' in cl 2.3 of the Deed. The City submitted that the absence of an obligation on the part of the City to rezone part of the Land 'Civic' in the event of default on the part of Tah Land to request the rezoning, revealed that Tah Land was bound to transfer the Community Purposes Site irrespective of the zoning of that part of the Land.[201]

286 While recognising the force of that consideration, ultimately, in our view, the City's discretion in relation to the zoning (in the event of default) does not lead to a different construction to that which we prefer. The limited significance of the parenthetical words is demonstrated by consideration of cl 2.2, which also contains those words. Plainly, if Tah Land did not submit a New Plan and if the City did not determine the location of the Land to be zoned Civic, Tah Land's obligation under cl 4 to transfer the Community Purposes Site would not arise. For the reasons already given, the same is true of cl 2.3. Thus, as in the case of the identification of the area of the location of the Land which is to be zoned Civic (in relation to which cl 2.2 confers a similar discretion upon the City), in our view, the City's discretion in relation to zoning simply reflects the position that, in the event of default by Tah Land of the obligations in the Deed for the design and planning of the locality, the City is not obligated to pursue the creation of the Community Purposes Site. Indeed, such a construction is consistent with the public purposes of the Deed, namely that, in the event of default by Tah Land, the City might come to the conclusion that it is no longer necessary or desirable to provide for community purposes on the Land.[202]

287 For these reasons, in our view, the learned trial judge has not been shown to be in error in her construction of the Deed. Ground 1 must fail.

288 As will be apparent from the above reasons, notwithstanding our rejection of ground 1, there are two respects in which we recognise the force of the contrary view. In particular we recognise that:

(a) the passages from the Primary reasons impugned by ground 1 (and in particular the second and third passages) are capable of being understood as findings by the learned trial judge that the Deed imposed an enduring limitation on the use to which the City could make of the Community Purposes Site;[203] and

(b) the words of the Deed are capable of bearing the City's construction to the effect that the zoning of the site as 'Civil' was not a precondition to the obligation to subdivide and transfer the site.[204]

289 While it ultimately falls to be determined in the context of ground 2, it is appropriate that we record that, for the reasons that follow, even if we are wrong as to either or both of these matters, in our view, any error on the part of the learned trial judge in these respects would not have materially affected her Honour's conclusions, or their correctness, in relation to whether the City had established liability for the failure of Tah Land to comply with cl 3 and cl 4 of the Deed.

290 First, as noted above, to the extent that the learned trial judge erred in concluding that the City was only entitled to an area of the Land that is zoned 'Civic', her Honour did not find that any such limitation itself prevented Tah Land's obligations from being enlivened. As both parties accepted at the hearing of the appeal, at the time that the City called for performance, Lot 59 on Plan SK6 had a Civic zoning.[205]

291 Secondly, nor did the learned trial judge's findings ultimately turn upon the question of whether the Deed imposed an enduring limitation upon the use to which the City could make of the Community Purposes Site once transferred. Ultimately, there never was a transfer of the Community Purposes Site; the existence of an enduring limitation on the use of the site would sound only in damages, and not on whether Tah Land was obliged to subdivide and transfer Lot 59 on Plan SK6 when called upon to do so in 2019.

292 Finally, and most significantly, in relation to whether or not the zoning or the use of the land identified as the Community Purposes Site gave rise to a contractual precondition before Tah Land's obligations to subdivide and transfer the site could be enlivened, in our view, there can be no doubt that the purposes of the Deed were as we have identified them to be; namely, public purposes to give effect to the orderly and proper planning of the Land as a whole and that the parties contemplated that the site that was to be transferred to the City would be used for the purposes of civic purposes (whether or not the parties' contemplation gave rise to an enduring limitation on the City's use of the site).

293 Those contractual purposes, and the parties' contemplation in that regard, were themselves critically relevant to the assessment of whether a reasonable time had passed for the City to call for performance in 2019. As we will come to in the context of ground 2(b), that was, in our view, how the learned trial judge approached that assessment.

295 Ground 2(a), it may be recalled, contends that the learned trial judge:

erred in law in finding that, in the agreement made in March and April 1996 to extend the time for performance of cll 3.1 and 4.1 of the Deed, there was implied by law a term that the obligations need only be performed by Tah Land if the City called for performance 'within a reasonable time'. [Primary reasons [289]]

296 Given the way the City's case at trial was presented, on its face, ground 2(a) appears concerned with the learned trial judge's rejection of the City's pleaded case that the effect of the correspondence in 1996 was to vary the Deed such that Tah Land was obliged to perform the obligations in cl 3.1 and cl 4.1 of the Deed when required by the City 'at any time in the future'. We have dealt with that aspect of the City's appeal in the next section of these reasons.

297 In support of the ground as so understood, the City submitted that 'her Honour ought to have found that the City was entitled to call for performance "at any time"',[206] rather than, as her Honour found, that the law implied a term that the City's call for performance had to be made within a reasonable time. In that regard, it is to be recalled that her Honour concluded that there had been a concluded agreement in 1996 with respect to the time for performance, because the law implied a term that Tah Land was obliged to perform if called upon within a reasonable time.[207] In so concluding, the learned trial judge accepted, to that extent, what her Honour had identified as the City's alternative case.[208]

298 The City's submissions in support of ground 2, however, went further and sought to run a different alternative case; namely an alternative to the pleaded case to the effect that, the City having given forbearance to Tah Land in relation to the time stipulation in cl 3 and cl 4 of the Deed, 'Tah Land was obliged to perform within a reasonable time'. That is, the implication was to 'simply [substitute] a reasonable time for performance', not to impose an obligation on the City to call for performance within a reasonable time.[209]

299 The City should not be permitted to run this new case on appeal.

300 The starting point is, as we have concluded at [187] above, her Honour was correct to identify the City's alternative case in the form that she did; namely, whether as a result of the correspondence between the parties in 1996, the parties mutual forbearance of the time stipulation in cl 3.1 and cl 4.1 gave rise to an implied term enabling the City to call upon Tah Land within a reasonable time to subdivide and transfer to the City the Community Pur[210]es Site.210

301 In that context, it is of significance that the alternative case that was dealt with by her Honour was one that was, itself, not pleaded. We acknowledge that some parts of trial counsel's submissions as to the City's alternative case were ambiguous and were capable of being understood in the manner now advanced on appeal by the City. However, in circumstances where an unpleaded case was being advanced and where the trial judge's understanding of the unpleaded case so advanced was an entirely reasonable one, no error is revealed in the trial judge's approach. In any event, for the reasons in [174] to [187] above, in our view the preferable construction of the submissions at trial as to the City's alternative case is that adopted by the trial judge.

302 Importantly, in this regard, it was the implication of the implied term as to performance that effectively 'saved' the City's argument that there had been a valid agreement to vary the Deed in 1996 at all. That is, it was the implication of a term that the City could only call for performance within a reasonable time that enabled the learned trial judge to find that the agreement reached in March and April 2006 was not incomplete or uncertain.[211] To depart from that approach now, without a substantial recasting of the case generally, would undermine the basis upon which part of the City's case at trial was accepted.

303 The City submitted that its reformulated alternative case (namely that Tah Land was obliged to perform within a reasonable time and not that the City's power to request performance was conditioned by reference to a reasonable time) was supported by the decision in Electronic Industries Ltd v David Jones Ltd. The City submitted that that case should have led to the conclusion that 'Tah Land was obliged to render performance of cl 3.1 a reasonable time after the City called for performance, not that the City was limited to calling for performance within a reasonable time'.[212]

304 Tah Land submitted otherwise and referred to other passages in Electronic Industries Ltd v David Jones Ltd to the effect that '[t]he fact that there was no longer a fixed date for performance brought into application the principles which impose on parties, in all cases where the performance of their obligations requires co‑operative acts, the duty of complying with the reasonable requests for performance made by the other (emphasis added)'.[213]

305 In any event, in the present case, on any view the City's case as to variation of the Deed went beyond a mere forbearance by the City of the performance of Tah Land's obligations within the time required by cl 3 and cl 4 of the Deed. Indeed, Tah Land did not, as occurred in Electronic Industries Ltd v David Jones Ltd, request the City to forebear from punctual performance of the Deed. On the contrary, it was the City who had asked Tah Land not to perform its obligations within the time stipulated in the Deed, in circumstances in which Tah Land had indicated that it was ready and willing to so perform them.

306 That is why the City's case at trial was based on mutual forbearance and a variation of the Deed. Significantly, in that context, the alleged variation was to alter the nature of Tah Land's obligations in a fundamental respect, namely from obligations required to be performed by a certain time ('prior to the commencement of trading of any business') into obligations based upon the City's power to call for performance.

307 That any variation of the Deed introduce a power on the part of the City was critical to its case at trial. The breach pleaded was not a failure by Tah Land to render performance within a reasonable time of 1996, but a failure to perform when required by the City. It is in that way that the City's case identified the date of breach as having occurred after the City's request for performance on 27 February 2019 (and not at some earlier date by which Tah Land's obligation to perform within a reasonable time was said to have elapsed).

308 That its case was based upon a power to call for performance, was made clear by the City in its supplementary submissions following trial:[214]

The City had a contractual power to call for performance, which, when exercised, triggered an obligation of contractual performance on Tah Land's part.

309 Once this is recognised, it is apparent that the City's alternative case (in the event that it failed to establish an agreement that the power could be exercised by the City at any time in the future) was, as the learned trial judge held, properly analysed in terms of the approach taken by the New South Wales Court of Appeal in Ellmore (Maitland) Pty Ltd v Tull.[215]

310 Ellmore (Maitland) v Tull concerned a contractual power in the vendor of land by 'written request' to require the purchaser of the land to lodge a plan of subdivision to create two lots and to transfer the new lot to the vendor without consideration. At issue in the appeal was whether the power, which was not expressly limited as to time, could be exercised at any time in the indefinite future.

311 The Court in Ellmore (Maitland) v Tull concluded that the power could only be exercised within a 'reasonable time' and that a reasonable time had elapsed. In so concluding Mahoney JA said:[216]

Where power is given to a party to a transaction to exercise a particular right and no time is specified for its exercise, it will commonly be implied that the right must be exercised within a reasonable time: see Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 at 13 et seq; Amalgamated Television Services Pty Ltd v Television Corp Ltd [1969] HCA 50; (1969) 123 CLR 648 at 654, 655. As Dixon J said in Reid, 'an implication of a reasonable time when none is expressly limited is, in general, to be made unless there are indications to the contrary'. The reason for this is plain. It was referred to by Dixon J: otherwise 'the land must be sterile in the hands of the owner in fee simple awaiting the pleasure of' the party who may give the notice but need not do so. The practical difficulties involved in the continued existence indefinitely of rights of the present kind suggest that the intention of the parties was, or is best to be effected by accepting, that the right must be exercised within a reasonable time.

In addition, where rights of property are created or may be terminated by the exercise of a right, the policies underlying the law of perpetuities and restraints upon alienation of land become relevant. Prima facie these considerations are applicable in the present case. In general terms, the law recognises the real difficulties which are apt to arise where rights are so structured that an interest in land may arise at an indefinite time in the future or the owner of land is prevented from dealing with it for an unacceptably long time.

312 There was, accordingly, in our view, ample authority for the City's alternative case to be understood, and dealt with, in the way that the learned trial judge approached it.

313 We are not satisfied that it is in the interests of justice for the City to be permitted to run the new alternative case on appeal to the effect that Tah Land was obliged to perform within a reasonable time. In addition to the need to ensure finality of litigation generally,[217] in our view, had the case below been run on the basis that Tah Land was under a positive obligation to render performance within a reasonable time (without a preceding request by the City), such a case would likely have been met by further defences on the part of Tah Land. In any event, in circumstances where the judge correctly understood the nature and scope of the alternative, unpleaded case advanced by the City at trial, it is not in the interests of justice to permit the City to depart from its case at trial by advancing a different unpleaded alternative case.

314 For that reason, ground 2(a) is properly to be confined to a challenge to the learned trial judge's rejection of the City's primary case, namely that the effect of the correspondence in 1996 was that Tah Land was obliged to perform the obligations in cl 3.1 and cl 4.1 of the Deed when required by the City 'at any time in the future'.

316 The City's submissions as to the effect of the correspondence in April and May 1996 may be succinctly stated.

317 Those submissions focussed primarily on the City's letter of 22 March 1996 and in particular the words:[218]

The legal agreement should therefore be modified to achieve the following:

1. A time extension for the identification, zoning, subdivision and transfer of the community purposes site on the basis that the City is able to require these matters to be carried out at any time in the future if it requires.

318 The City submitted that Tah Land's response dated 27 March 1996 (including the words that it undertook to modify the existing Legal Agreement to incorporate points 1 to 5 inclusive of City of Wanneroo letter of 22 March 1996, 'on proper and reasonable terms and conditions consistent with the original Legal Agreement'), created a complete and binding agreement, to the effect that the City had an indefinite power to call for the subdivision and transfer of the Community Purposes Site.[219]

319 The City submitted that, at Primary reasons [288], her Honour found that the agreement in 1996 was certain in respect to the time for performance of cl 3.1 and cl 4.1. Its submissions continued:[220]

That time was 'at any time in the future if [the City] requires'. In the absence of a plea by Tah Land that a time limitation should be implied, her Honour ought to have found that the City was entitled to call for performance 'at any time'.

320 Tah Land, in its submissions, submitted that the learned trial judge was correct to reject the City's case that the parties had agreed to a variation of the Deed, whereby the City was entitled to call for the subdivision and transfer 'at any time'. In support of that contention Tah Land referred to the following matters.

321 First, as the learned trial judge concluded, read in its full context the qualification in Tah Land's letter as to 'proper and reasonable terms and conditions' was directed towards the proposal for an extension of time for the 'subdivision and transfer of the Community Purposes Site'.[221] That context included Tah Land's express rejection of the suggestion that there was to be any change to the identification and zoning of the Community Purposes Site, which it insisted had already been identified on Plan SK6.[222]

322 Accordingly, Tah Land submitted that the agreement was 'an agreement for an extension of time, but on proper and reasonable terms and conditions consistent with the original Legal Agreement'.[223]

323 Secondly, Tah Land submitted that the parties' conduct later in 1996 was inconsistent with the inference that the Parties agreed to an unlimited extension in March and April 1996.[224] It relied upon Tah Land's draft deed in November 1996 proposing a time for the City to call for performance of around 12 months (to which the City provided no response), as being inconsistent with such an inference.[225] The City did not respond to that draft Deed.[226]

324 Thirdly, Tah Land referred to matters of context concerning the objective unlikelihood of the parties having agreed to an unlimited time frame, as relevant to whether such an inference should be drawn. It submitted:[227]

[T]he times within which the obligations in cl. 3.1 and cl. 4.1 of the 1992 Deed were to be performed were essential terms of that Deed. The proposition that the parties in March and April 1996 substituted for time‑limited obligations, obligations of a perpetual nature is a large one. This was especially so in the case of rights for the transfer of land in respect of which the policies of the law against the sterilisation of land and underlying the rule against perpetuities become relevant.

325 In this context, Tah Land pointed to the statement of principle, referred to by her Honour to the effect that the 'courts are reluctant to construe contractual obligations giving rise to the continued existence of indefinite rights in respect of the transfer of land'.[228] As Mahoney JA said in Ellmore (Maitland) v Tull, in the context of the construction of a written clause:[229]

[T]here is in my opinion a predisposition of the law - illustrated by the cases referred to by, eg Menzies J in the Amalgamated Television Services case - so to construe the terms of the arrangements made by parties as to avoid both the mischief falling within the terms of those doctrines and the practical problems which, within or without those doctrines, arise from indefinite restraints. That, in my opinion, is a matter to be taken into account in determining the construction of the present clause and the effect to be given to it. It is prima facie unlikely that the parties contemplated that there should, for the indefinite future, be a right in the vendor company to secure retransfer of the 'new lot' referred to in cl 38.

326 Finally, in relation to ground 2(a), Tah Land submitted that the High Court's decision in Electronic Industries Ltd v David Jones Ltd was consistent with the conclusion reached by the learned trial judge in the present case.[230] Tah Land referred to the Court's conclusion in that case that the proper inference was that the plaintiff had expressed its 'willingness to vary the contract by substituting a new agreed date, and awaited an answer to its proposal, forbearing in the meantime in pursuance of the defendant's request to tender actual performance'.[231] While no new agreed date was in fact substituted in that case, the obligation to perform was 'at some proper and reasonable time'. The consequence of that conclusion was so as to entitle the plaintiff to require the defendant to make its store available to the plaintiff to perform its obligation 'at some proper and reasonable time'.[232]

327 The significance of this, Tah Land submitted, was that 'the High Court did not decide in [Electronic Industries Ltd v David Jones Ltd] that the plaintiff in that case could at any time require the defendant to perform, but only at a proper and reasonable time. And ..., despite some suggestions made yesterday, [Electronic Industries Ltd v David Jones Ltd] doesn't stand for the proposition that the plaintiff, for instance, in that case was entitled to wait, say, 25 years and then demand performance of the obligation .. but only giving a reasonable time for David Jones to perform'.[233]

328 It is clear that the City's pleaded and primary case to the effect that it was entitled to call for performance of the obligations in cl 3 and cl 4 of the Deed 'at any time', depended upon a finding that the parties had reached a concluded agreement to vary the Deed, a term of which was that the parties agreed that the City could call for performance 'at any time'.[234]

329 Whether there was a concluded agreement to vary the terms of the Deed to that effect was a question of fact to be determined in light of all of the circumstances. Given that no party contended for a contract constituted by conventional offer and acceptance, whether a concluded agreement had been reached was a matter of inference, engaging the principles described by McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd:[235]

[A] contract may be inferred from the acts and conduct of parties as well as or in the absence of their words: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523. The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract[.]

330 This is an objective question, which asks whether in all of the circumstances a reasonable person in the position of the City and a reasonable person in the position of Tah Land would conclude that there was an agreement.[236]

331 Having regard to those principles, in our view, the learned trial judge was correct to find that the words and conduct of the parties did not reveal, objectively, an agreement that the City could call for Tah Land to subdivide and transfer the Community Purposes Site at any time in the future that the City required. And it is that finding (at Primary reasons [290]) that the City must disturb to succeed on ground 2(a). Bearing in mind our conclusions at [299] to [314] above, unless it establishes its primary case, it does not avail the City to undermine the trial judge's acceptance of its alternative case at trial.

332 The parties' communications in March to May 1996 are to be understood in the following context. First, from Tah Land's perspective, the opening of the shopping centre was intended to be imminent. The parties were evidently aware that the Deed required Tah Land to apply to subdivide the Community Purposes Site and transfer it to the City prior to the commencement of trading of any business on the Land. Thus, some amendment to the terms of the Deed was required. Secondly, condition 27 of the development approval required that the Deed be varied by agreement to reflect the alterations of preceding arrangements effected by the 1994 development approval. Recognising the need for variation of the Deed, on 1 March 1996 and 21 March 1996, Tah Land's consultants wrote to the City seeking its advice about the City's desired amendments to the Deed.

333 At least two things are clear from the parties' communications in this period. First, the City did not require Tah Land to perform its obligations under cl 3.1 and cl 4.1 before the opening of the shopping centre. Secondly, the parties did not intend that, once the shopping centre was opened, Tah Land's obligations under cl 3.1 and cl 4.1 were waived or discharged. It is clear from the parties' communications that the parties contemplated that those obligations would continue. However, apart from what was said in the City's letter of 22 March 1996, the time for performance of those obligations was not specifically addressed.

334 The circumstances surrounding the correspondence in March and April 1996 are significant.

335 As the learned trial judge observed, the time for performance of the obligation to subdivide and transfer the Community Purposes Site to the City were express and essential terms of the Deed. All of Tah Land's substantive obligations were to be performed before the commencement of trading. It is a significant matter of context, that prior to 1996, Tah Land had attempted to perform its obligations and, in fact, had complied with its obligations under cl 3.1 of the Deed to prepare and submit the Plan of Subdivision for approval so as to subdivide the Community Purposes Site from the Land (i.e. the February 1995 subdivision plan).[237] That plan of subdivision was, in effect, withdrawn (and replaced with the November 1995 subdivision plan) at the request of the City.[238] The correspondence between the parties in March and April 1996 is to be understood in light of the fact that Tah Land were not seeking forbearance from the City, but that the deferral of the subdivision was at the initiative of the City.

336 In those circumstances, as the learned trial judge found, Tah Land's qualification that any variation be 'on proper and reasonable terms and conditions consistent with the original Legal Agreement' must be objectively understood to refer to the proposed extension of time.[239] The context in which that qualification appears included Tah Land's insistence that the location and zoning of the Community Purposes Site were matters that had already been concluded.

337 In that context, while the learned trial judge found that the parties had reached a concluded variation agreement in relation to the time for performance, objectively construed in its context, the correspondence between the parties in March and April 1996 reveals an intention on the part of both the City and Tah Land to agree to the bare minimum variation necessary to move forward with the opening of the shopping centre. It is clear, for example, from the parties' respective statements in relation to the location of the Community Purposes Site (particularly those from the City) that they were being deliberately obscurant in relation to their respective positions. The same may be said of the qualifying words 'on proper and reasonable terms and conditions' as they applied to the extension of time; that is the parties can be taken to have agreed to extend the time for performance beyond the opening of the shopping centre, but beyond that they avoided being explicit as to any further agreement.

338 In this context, there is, with respect to the learned trial judge, some ambiguity in the Primary reasons as to whether her Honour held that the inclusion of the words 'on proper and reasonable terms and conditions' themselves constituted an agreement that the City could only call upon Tah Land within a reasonable time (as Primary reasons [294] might suggest) or whether those words simply meant that no time had been agreed for the exercise of the City's power, in respect of which the law implied a term that such power must be exercised within a reasonable time (as Primary reasons [289] suggests). For the reasons discussed (and referred to at [342] below) it does not matter how the Primary reasons are to be understood in that respect. Relatedly, and again with respect, the learned trial judge does not appear to have articulated specific findings as to the whole of the substance of what was expressly agreed, before turning to what might be inferred or implied. As already noted, unless the City establishes its primary case, it does not avail the City to undermine the trial judge's acceptance of its alternative case at trial. Thus, if the City's primary case was rightly rejected, no question arises as to whether any error is revealed in the judge's finding of the implied term.

339 In our view what is clear from the words of qualification is that they could not be understood to reflect an agreement that the City's power to call for performance was unqualified and indefinite.

340 Particularly in light of the circumstances that:

(a) the subject matter of the obligation was the transfer of an area of land;

(b) the obligation in the Deed was initially limited by time;

(c) it was the City who was requesting that Tah Land defer performance of that obligation beyond that time; and

(d) Tah Land's agreement to that deferral was expressed to be 'on proper and reasonable terms and conditions consistent with' the Deed,

a reasonable person in the position of both the City and Tah Land would not conclude that the parties had agreed to confer on the City a power and a right of indefinite duration. In the circumstances, an agreement to that effect could not be inferred and her Honour was correct to so conclude.

341 This conclusion is sufficient to dispose of ground 2(a).

342 As we noted at [338], there is some ambiguity in the Primary reasons as to the precise legal basis upon which the learned trial judge accepted the City's alternative case, to the effect that the parties' mutual forbearance of the time stipulation in cl 3.1 and cl 4.1 gave rise to an implied term enabling the City to call upon Tah Land within a reasonable time to subdivide and transfer to the City the Community Purposes Site. In our view, her Honour's conclusion is best understood as an application of the principles in Ellmore (Maitland) v Tull set out at [311] above. Either way, however, the effect of the City's alternative case in this regard was accepted by her Honour and, as discussed at [338] above, it does not profit the City in the appeal to challenge that conclusion on the appeal.

344 Ground 2(b) contends that the learned trial judge erred in finding that a reasonable time for the City to call for Tah Land to subdivide and transfer to it the area of the Land depicted as Lot 59 on Plan SK6 had passed by the time the City made a call for performance in 2019. This proceeds upon the basis of the City's alternative case at trial, as accepted by her Honour, as to the effect of the variation of the Deed in 1996.

345 While the City maintained that in the circumstances of this case a 'reasonable time' could be fixed by reference to the second stage of the proposed development, neither party ultimately challenged the learned trial judge's approach, as a matter of principle, that in assessing whether a reasonable time had elapsed, 'the court must look backwards in time and look at all relevant circumstances to determine whether a period of reasonable time had or had not passed'.[240]

346 In this, the learned trial judge was undoubtedly correct. What is a reasonable time is a question of fact and depends upon all of the circumstances and its limit is determined by reference to what is fair to the parties.[241] The question whether a reasonable time for performance has been exceeded involves:[242]

a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been exceeded, of what would, in all the circumstances which are by then known to have happened, have been a reasonable time for performance. That broad consideration is likely to include taking into account any estimate given by the performing party of how long it would take him to perform; whether that estimate has been exceeded and, if so, in what circumstances; whether the party for whose benefit the relevant obligation was to be performed needed to participate in the performance, actively, in the sense of collaborating in what was needed to be done, or passively, in the sense of being in a position to receive performance, or not at all; whether it was necessary for third parties to collaborate with the performing party in order to enable it to perform; and what exactly was the cause, or were the causes of the delay to performance. The list is not intended to be exhaustive.

347 A corresponding approach is to be taken to the question of whether a reasonable time to request performance has elapsed. In light of this approach, as occurred in the present case, a court that concludes that a reasonable time has in fact passed does not, and is not required to, identify the point in time, in the past, when that occurred.

348 This appeal is, of course, by way of rehearing. The Court is obliged to conduct a 'real review' of the trial and of the judge's reasons, and 'cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions'.[243] The City must, nevertheless, identify error on the part of the learned trial judge. As we have previously observed, other than the evidence of the experts, the evidence in relation to the events between 1991 and 2019 consisted entirely of the documentary record. There being no findings of fact likely to have been affected by the impressions as to the credibility and reliability of witnesses, the limitations that attend appellate review based on a trial judge's advantage are greatly reduced in this case. They are not, however, wholly absent. The trial judge has advantages that derive from receiving and considering the entirety of the evidence - thereby obtaining the 'feel' of the case - and the opportunity to reflect on that evidence and draw conclusions from it viewed as a whole.[244]

349 Accordingly, in deciding the proper inference to be drawn the appellate court gives respect and weight to the conclusions of the trial judge. However, if this Court ultimately reaches a different conclusion, it must give effect to that conclusion.[245]

350 In the present case, the City challenged the ultimate conclusion reached by the learned trial judge by reference to a number of particular alleged errors. While it will ultimately be necessary to determine whether the ultimate conclusion that a reasonable time had passed was in error, it is appropriate to summarise the parties' submissions by reference to those particulars.

351 Ground 2(b)(i) contends that the learned trial judge erred in assessing the reasonableness of the period of time, by reference to what the City contended (in ground 1) was an erroneous construction of the Deed. We have already concluded that, properly understood, her Honour was not in error in this regard. Nevertheless, it is appropriate to identify the parties' respective positions as to the influence of those matters on the ultimate finding of fact.

352 In that regard, the City submitted that the impact of the learned trial judge's identification of the purposes, and the construction, of the Deed pervaded her Honour's ultimate finding. The City submitted:[246]

(a) the City had not called for Tah Land to subdivide Proposed Lot 59 from the Land before 2015 because the City had formed the view that the location was not then suitable for integrated civic and community facilities;

(b) the adoption of ASP 59 in November 2010 had the effect (until 2015) of classifying part of Proposed Lot 59 as 'Mixed Use', so that the whole of the 1.5 ha area could not be used only for 'Civic' uses; and

(c) the City did not wish or intend at the time it called for performance in 2019 to use any of the area of Proposed Lot 59 for the provision of 'Civic and Cultural purposes',

it was not 'fair' (implicitly meaning 'reasonable') for the City to call for performance of cl 3.1 ... The major premise of that conclusion was her Honour's finding that the City could only call for performance of cl 3.1 if it intended to use Proposed Lot 59 for 'Civic' or 'Civic and Cultural purposes', and only for those purposes.

353 Thus the City submitted that removing the major premise of her Honour's finding required the Court to re‑examine the events through the prism of the City's construction.[247]

354 Tah Land's submissions in relation to ground 2(b)(i) also relied upon its submissions as to the construction it advanced in relation to ground 1. In that regard, it submitted that the hinge upon which the City's appeal turned was the assertion that it was entitled to the subdivision and transfer of Lot 59 on Plan SK6 'as if it were, as the primary judge aptly put it ... a developer contribution to infrastructure costs; or, to put it another way, a quasi tax'.[248]

355 Tah Land submitted that by 2019 the nature of the City's demand had changed to merit the characterisation that it would be a form of developer contribution. It submitted that the fact that the City's demand had by 2019 become so radically uncoupled from its original purpose and animating justification was a strong indicator that by then a reasonable period had passed and the City's assertion of that demand was unfair to Tah Land.[249]

356 Ground 2(b)(ii) is concerned with the learned trial judge's findings in relation to events following 8 December 2015. It will be recalled that on that date the City passed a motion that, inter alia, authorised the Chief Executive Officer to continue to negotiate with Tah Land for an 'alternate preferred site'.[250] In relation to that motion the learned trial judge said that '[i]t appears that no negotiations contemplated by the motion took place'.[251] Her Honour later said that while 'the Council resolved in 2015 to pursue an agreement to locate a library on a freehold site on the Land to be owned by the City, it did not take any real steps to reach agreement'.[252]

357 The City submitted that there was no evidence to support her Honour's observation that no further negotiations took place or that the City 'did not take any real steps to reach agreement'.[253] It submitted that absence of evidence is not evidence of absence and that, in any event, the evidence before her Honour indicated that there had been negotiations. The evidence referred to by the City in that regard was, first, an email from the City's solicitors to Tah Land's solicitors dated 12 February 2016 referring to a ''without' prejudice letter of 10 February 2016'.[254]

358 The second piece of evidence referred to by the City in this context was a letter from Tah Land's solicitors to the City's solicitors dated 30 March 2017. It is a letter enclosing Tah Land's Defence, and included the following:[255]

As you can see from the attached Defence, we have not disclosed any negotiations, because you asserted that they were subject to 'without prejudice' privilege. They were not negotiations for the purpose of discharging the parties' obligations to negotiate a new reasonable agreement for the transfer of land at the new location under the Agreed Structure Plan, but rather to be treated as negotiations to avoid litigation over the issue.

As pleaded in the attached Defence, I expressly stated in our meeting of 3 December 2015 that the discussions should be made on an open basis, to establish that both parties had negotiated in good faith, but that invitation was declined by you. Accordingly, privilege attaches to those discussions on the part· of both parties and cannot be disclosed by either of us. The basis upon which those discussions were conducted was agreed, and your rejection of our offer carries its consequences.

For the above reasons, and particularly as our client also does not consider that any of those 'without prejudice' negotiations were reasonably conducted by your client, I am instructed that our client will not continue any further negotiations for the transfer of any land from it, whether for community purposes or the purported 'Intersection Land' (subject to its discussions with the WAPC), or otherwise.

359 Tah Land submitted, on this point, that the reference to the absence of 'real steps' to reach an agreement, must be read in light of her Honour's findings in relation to the position adopted by the City in the context of a plea by Tah Land that the City was in breach of a contractual obligation to negotiate in good faith.[256] That contractual obligation was said to arise from ASP 59, and in particular cl 5.1.3 of ASP 59 (see [135] above).

360 While the learned trial judge rejected Tah Land's case that ASP 59 had contractual effect,[257] her Honour nevertheless made findings in relation to whether the City had indeed negotiated in good faith, given its position in 2015 that it was entitled both to call for the transfer of the Community Purposes Site under the Deed and to negotiate for the provision of a library at an alternative site. In that regard, her Honour held:[258]

[The City] was not entitled to do both.

This is because by making such demands and seeking relief, the City was making demands which were inherently inconsistent with and calculated to undermine the negotiations for the agreement which the City was obliged to negotiate in good faith. The separate demands were inherently inconsistent with and calculated to undermine the negotiations because they were directed at ends which were necessarily destructive of those negotiations by destroying their subject matter. In this way, the City acted in a way which showed an infidelity to the bargain to negotiate a replacement agreement for the 1992 Deed and thus breached the obligation to act in good faith.

361 In light of these findings, Tah Land submitted that the learned trial judge's observation that after its resolution of 8 December 2015 the City 'did not take any real steps to reach an agreement' was entirely justified. It submitted that the City's bad faith necessarily infected any attempt to reach an agreement and that whatever the content of any 'without prejudice' communications, the City was not entitled to any inference in its favour that they constituted 'real steps' to reach an agreement.[259]

362 Ground 2(b)(iii) contends that the learned trial judge erred in finding that the City 'failed entirely to collaborate' in the performance of cl 3.1 and repeatedly declined to accept performance of the asserted obligation,[260] including by finding that in 2004 Tah Land was pressing for the transfer to the City of Proposed Lot 59 on Plan SK6.[261]

363 The City submitted that the learned trial judge's characterisation of the letter from Tah Land's solicitors dated 24 March 2004 (see [107] above) was incorrect. That letter, the City submitted, concerned the 'Intersection Land' and not the Community Purp[262]s Site'.262 The City submitted that (save for one instance in 2003) there was no evidence of Tah Land offering to perform cl 3.1 after the 1996 agreemen[263]o defer.263 The City submitted that Tah Land's attempts to subdivide the site in 1993 and 1995 were irrelevant given the parties' agreeme[264]in 1996.264

364 In response, Tah Land submitted that the learned trial judge's observation that the City 'failed entirely to collaborate' in the performance of cl 3.1 and repeatedly declined to accept performance of the asserted obligation was not limited to the period after 1996. It submitted that the City's earlier requests of Tah Land not to perform its obligations in the Deed were relevant and that they provided context and explanatory insight into the events after 1996.[265]

365 In that regard, Tah Land submitted that its repeated attempts at performance reflected the obvious anxiety of an owner of the Land to have certainty, so that it could rationally plan the development of the remainder of the Land.[266]

366 Tah Land submitted that its anxiety and attempts to resolve the issue persisted after 1996, including by:[267]

(a) its attempts to negotiate an amended Deed, which would have involved transfer of the Community Purposes Site within 12 months, in 1996 and in 1998 (which went unanswered);[268]

(b) its suggestion to 'annex off' the Community Purposes Site in 1998 (which went unanswered);[269]

(c) its request, in 1999 for the City to abide by the City's approval of, inter alia, Plan SK6 (which went unanswered);[270]

(d) its request, in 2003, that the City agree to variations to the Deed that would confirm the New Plan as that comprised in, inter alia, Plan SK6 (to which the City responded to the effect that the location of the Community Purposes Site had not been identified);[271] and

(e) its provision to the City, in 2004, of a draft deed of variation to confirm the 'New Plan Plans' as Plan SK6 (which went unanswered).[272]

367 On the basis of this background, Tah Land submitted that the learned trial judge's observation that Tah Land was in 2004 still pressing for the transfer to the City of land for the Community Purposes Site was not restricted to the letter of 24 March 2004 and that it was wholly justified,[273] as was her Honour's finding that the City failed entirely to collaborate in the performance of the asserted obligation.[274]

368 Ground 2(b)(iv) contends that the learned trial judge erred in finding that it was 'unfair' to Tah Land to call for performance of cl 3.1 because Tah Land was 'required' by ASP 59 to provide for civic and cultural facilities on the Land if it wished to proceed with the next stage of development of the Land.[275]

369 The learned trial judge's conclusion in this regard was expressly made in the context of her Honour's conclusion that 'at least from March 1995 until at least when the City served its first notice of default in September 2015 upon Tah Land the City had pressed a view that Lot 59 on Plan SK6 was not a suitable site for the provision of civic and cultural facilities'. Her Honour's conclusion that it was 'not fair' to press for subdivision of Lot 59 on Plan SK6 after that time is therefore to be understood in the context of her Honour's conclusion to the effect that the City's call for performance was, as Tah Land put it, uncoupled from its original purpose and animating justification.

370 The City's submissions accepted that its submissions in support of ground 2(b)(iv) relied, in part, upon its case on ground 1. It submitted, for example, that it was immaterial whether or not there were arrangements made or proposed to build civic or community facilities on Lot 59, or elsewhere.[276]

371 The City went further and submitted that her Honour's statement that Tah Land was required by ASP 59 to provide for civic and cultural facilities on the Land if it wished to proceed with Stage 2 of its proposed development was not, as a matter of construction of ASP 59, correct. It submitted that cl 6.1 of ASP 59 only limited the ability of the proponent to proceed with the next stage of development of the Land unless an agreement on reasonable terms was reached with the City to relocate the proposed civic and cultural facility to the location identified in ASP 59, qualified by a condition that the development could proceed if the decision maker was 'otherwise reasonably satisfied' that it could do so absent such agreement.[277] The City referred, for example, to the approval of Tah Land's development application on 7 October 2014, which did not include the library as part of Stage 1 of the additional development referred to in ASP 59.[278]

372 The City also submitted that a statutory decision maker faced with an application for development approval in circumstances where there was no agreement under cl 6.1 of ASP 59 because Proposed Lot 59 had been transferred to the City would necessarily need to have regard to that fact. It would likely be, the City submitted, an unreasonable and invalid exercise of statutory power to deny approval by reason of a failure to enter into the agreement contemplated by cl 6.1 if the site under the Deed had already been transferred to the City.[279]

373 Tah Land submitted that the learned trial judge's observation that Tah Land was required by ASP 59 to provide for civic and cultural facilities on the Land if it wished to proceed with Stage 2 was indeed correct. [280] It submitted that the reference in ASP 59 to the City being 'otherwise reasonably satisfied' that it could approve development in the absence of an agreement with the proponent in relation to the proposed civic and cultural facility applied to the approval of Stage 1 (ASP 59, cl 6.1).[281] Clause 6.3 of ASP 59, it submitted, preserved the City's capacity to agree for the Civic and Cultural Facility to be included 'in a later stage'.

374 The effect of ASP 59 was supplemented, Tah Land submitted, by DPS 2 which provided that development of land subject to an obligation in an Agreed Structure Plan was subject to satisfactory arrangements being made for the discharge of that obligation. Tah Land submitted that the effect of the planning instruments was that any progress of the development on the Land was subject always to the provision by Tah Land of a civic and community facility as envisaged in ASP 59.[282]

375 Finally, in relation to ground 2(b)(iv), Tah Land submitted that the hypothetical unreasonableness of any decision to refuse development without agreement, in circumstances in which Lot 59 on Plan SK6 had been transferred to the City, necessarily assumes that the purpose for which the City had received Lot 59 was for civic purposes. That assumption, Tah Land submitted, was undermined by the fact that there is 'no (and since 1995 has not been) any prospect of the City accepting the transfer of Lot 59 on Plan SK6 for the purposes of the provision of community facilities'.[283]

376 Ground 2(b)(v) relates to a similar theme. By ground 2(b)(v) the City contends that the learned trial judge erred in finding that the City made its demand for performance in 2019 with no intention of making any arrangements for it, or any other person or organisation, to provide any 'Civic' facilities on Lot 59 of Plan SK6.[284]

377 The City submitted that there was no evidence upon which her Honour could make this finding.[285] It submitted, rather, that the City had taken the prudent step of considering and identifying (but not committing to) a potential alternative site for a library due to the dispute with Tah Land and that that did not support an inference that, as at the date of the City's 20 February 2019 notice, the City had no intention of developing any civic or community facility on Proposed Lot 59 if the site had been transferred to it.[286]

378 This was to be contrasted, the City submitted, with the position at trial, at which the learned trial judge observed that the City made it plain that it had no intention to make arrangements to provide any civic and community facilities on the Land in the future.[287] By that time, the City submitted, it had elected to terminate the Deed and sue for damages.[288]

379 At the hearing of the appeal, the City developed its submission further, submitting that there was evidence that at various points up to 2019, the City was still, potentially, intending to use Lot 59 on Plan SK6 for community purposes if it could not negotiate something better, which the City described as a 'continuation of the 1996 attempt to renegotiate the site'.[289] As the City put it at the hearing of the appeal, 'the City wants to negotiate something else, but wanting something better than what you already have is not evidence that you think that what you have is no good if you can't get something better'.[290] The City referred, for example to reports to Council prepared in December 2018 and April 2019 respectively which referred to the proceedings seeking to enforce the Deed, for the 'intended purpose of a library facility'.[291]

380 In that context, the City referred to the learned trial judge's related finding that from at least 1995 'a community purposes location in the north east corner of the Land was regarded as not desirable by the City'.[292] The City acknowledged that this finding was not challenged in the appeal, on the basis that subjective states of mind that are not manifested do not bear on reasonableness.[293]

381 In its submissions, Tah Land, in support of her Honour's finding as to the City's intention when it called for performance, referred to a number of other findings made by the learned trial judge that were not the subject of challenge by the City.[294] Those findings were that:

(a) the City's opinion that Lot 59 on Plan SK6 was not a suitable location for community facilities on the Land was a proper planning policy consistent with State Planning Policy 4.2;[295]

(b) that opinion was the reason why the City resisted the attempts of Tah Land to confirm that Lot 59 on Plan SK6 was the Community Purposes Site and to provide for its transfer to the City;[296]

(c) that opinion was reflected (and was consistent with) the land use in ASP 59;[297]

(d) the land uses shown in ASP 59 had been approved and agreed by the City by at least April 2010;[298] and

(e) when the City called on Tah Land to subdivide and transfer Lot 59 on Plan SK6 there were no arrangements made or proposed to be made to build civic and community facilities on that lot that would be integrated with a proposed development on the Land.[299]

382 In these circumstances, Tah Land submitted that her Honour's finding was to the effect that, in 2019, the City sought performance of the Deed with no intention of making any arrangements for it, or any other person or organisation, to provide any 'Civic' facilities on Lot 59 of Plan SK6 was entirely open.[300]

383 For the reasons that follow, we are not satisfied that the learned trial judge was in error in concluding that a reasonable time for the City to call for Tah Land to subdivide and transfer to it the area of the Land depicted as Lot 59 on Plan SK6 had passed by the time the City made a call for performance in 2019.

384 To the contrary, in our view, her Honour's ultimate finding of fact in that regard was correct. Having regard to all the circumstances and to the conduct of the parties over the entirety of the period during which the City could have, but did not, call for performance, in our view a reasonable time had clearly elapsed when the City called for performance in 2019. For completeness, we would add that in our view a reasonable time had already elapsed when the City first called for performance in September 2015.[301]

385 We have set out below what are, in our view, the significant considerations leading to that ultimate conclusion. In the course of doing so, we will deal with the particular matters raised in grounds 2(b)(i) to (v). In doing so, we also recognise that the assessment of whether a reasonable time has elapsed is not simply a quantitative matter. As the City submitted at trial '[i]t's not enough just to say that 2019 is a long time after 1995'.[302] Rather, the assessment involves a variety of qualitative considerations, including the nature of the parties' interests and obligations, the causes of the delay and the conduct of the parties.[303] Nevertheless the length of the delay is not irrelevant. In the present case, the period of delay (over two decades) was on any view very significant and invites close scrutiny.

386 Before dealing with the particular matters the focus of subpars (i) to (v) of ground 2(b), we begin with a conspectus of events and communications during the relevant period.

387 What occurred between the parties over that period is detailed at [89] to [166] above. The following broad observations reflect the most material events and communications.

(a) Tah Land sent, first in 1996 and then again in 1998, a draft deed of variation of the Deed and did not receive a response from the City.

(b) Agents of Tah Land wrote to the City in July 1998, expressing Tah Land's desire to, in effect, subdivide and transfer the Community Purposes Site, but received no response.

(c) A meeting occurred in late 1999, following which Tah Land wrote to the Commissioner of the City, but received no reply.

(a) There were discussions between Tah Land and the City as to what variations to the Deed the City desired in relation to the Community Purposes Site.

(b) By letter of 27 May 2003, Tah Land said, among other things, that the transfer of the Community Purposes Site, the location of which had been identified in Plan SK6, could remain deferred until the City determined what facility was to be provided, so as to integrate it with the shopping centre.

(c) By letter of 4 August 2003, the City repeated its earlier assertion that the Deed needed amendment as to the identification, zoning, subdivision and transfer of a 1.5 ha area of land for community purposes when required by the City, in response to which Tah Land repeated its position that the land set aside for community purposes had already been identified and the necessary zoning implemented, adding that the subdivision application would be commenced upon request by the City.

(d) In February 2004, Tah Land's solicitors sent a draft deed of variation of the Deed to the City, but received no response.

(a) Tah Land proceeded with a plan to develop a new structure plan for future development of the Land.

(b) By letter of 8 September 2005, the City identified, as a matter to be addressed in a new structure plan, the outstanding issues associated with the Deed.

(c) The draft structure plan for the shopping centre submitted in 2005 by planners on behalf of Tah Land did not designate any land for community purposes and showed the area in the north‑east of the land as having a proposed use class of mixed used development.

(d) The explanatory report to that draft stated that it was proposed that the civic and community uses be integrated in the main centre rather than being located on the currently reserved site which was peripheral and inconveniently located.

(e) The City's resolution in response to the draft resolved that it was satisfactory, subject to modifications which included suitable alternative arrangements to those in the Deed being made with the City in relation to the provision of community facilities.

(f) In mid‑2008, Tah Land wrote saying it remained ready to progress the issue of a suitable community facility, but this could only be done through an agreed structure plan.

(g) After a workshop on 12 December 2008, Mr Schrapnel outlined points needing to be addressed by Tah Land, including the need to vary the Deed.

(h) On 24 November 2009, the WAPC declined to endorse the proposed draft structure plan. Its reasons included the lack of an identified suitable replacement site for civic and community uses. In response to that, Mr Schrapnel, on behalf of Tah Land, submitted to the WAPC a modified plan of general land uses for the land showing the location and size of the proposed civic use, namely a branch library, located at the south‑west corner of the town square in the middle of, and close to, the southern boundary of the land.

(i) In email communications between the parties in or about February 2010, Tah Land asserted that the location of the proposed Community Purposes Site had been agreed as being adjacent to the town square. In those discussions, Tah Land reiterated its position that the location of the Community Purposes Site had previously been identified as in the north‑east corner, adding that it had recently been agreed by officers of the City that that location would not be required and should be replaced by a site integrated in the expanded centre. In response, the City reiterated its position that the location of the Community Purposes Site had not been determined and that Tah Land was required under the Deed to prepare and submit a 'New Plan' which would show a new site of 1.5 ha which would be transferred to the City.

(j) In May 2010, Tah Land's consultants submitted a revised draft of Part 1 of the Structure Plan that provided for a specifically identified civic area, the main purpose of which was said to be to provide a prime location for the establishment of the City of Wanneroo Civic and Cultural Facility. It also provided, in cl 5.1.3, that the size, form, nature, tenure and use of the Civic and Cultural facility would be the subject of a separate reasonable agreement between Tah Land and the City. Further, the plan provided that the Community Purposes Facility would be part of the first stage of additional development, unless the City was not ready for that to occur, in which case it would occur subsequently.

(k) In a response, the City's officer proposed a new clause, providing that notwithstanding the designation of the proposed civic area, Tah Land would be required in accordance with the Deed to transfer 1.5 ha to the City for civic and community purposes unless or until the City otherwise agrees to the alternative provision of such a site elsewhere in the Structure Plan area. In response to that, Mr Schrapnel, on behalf of Tah Land, rejected this suggestion, contending that the proposed clause purported to be a contractual obligation when the purpose and effect of the Structure Plan was to be a planning instrument guiding development.

391 ASP 59, adopted on 12 November 2010:

(a) Provided for a mixed use ('civic') area on diagram 1 in a blue box along the southern boundary of the Land abutting Hepburn Avenue. It also showed the north‑east corner of the Land as residential and open space.

(b) By cl 5.1.3, provided that the main purpose of the specifically identified mixed use civic area was to provide a prime location for the establishment of a City of Wanneroo Civic and Cultural Facility, the size, form, nature, tenure and use of which was to be the subject of a new reasonable agreement between Tah Land and the City of Wanneroo. It further provided that that new agreement would replace the Deed.

(a) Tah Land lodged a development application for Stage 1 to further develop the shopping centre. Initially, the application showed a 1,000 sqm library. At the City's insistence, the application was modified to exclude the library area from it.

(b) By letter of 27 June 2014, the City's solicitors 'confirmed' that the City had not relinquished or waived its rights under the Deed and that the development of a residential development on the community purpose site would need to be the subject of a further written agreement between the City and Tah Land, as well as a further development application and approval. The letter noted that a further written agreement was foreshadowed in cl 5.1.3 of ASP 59.

(c) On 7 October 2014, the Tribunal made consent orders approving the development application subject to conditions, one of which was that, prior to the commencement of development, further revised plans would be lodged and approved by the City which were to address, among other things, the deletion of all references to a library.

(a) In June 2015, a letter from the City stated that it considered that consideration of the options for the provision of a library at the shopping centre and resolution as to the Community Purposes Site under the Deed were separate matters.

(b) Discussions as to a library did not go anywhere.

(c) The City issued a notice of default on 23 September 2015, alleging default by Tah Land of its obligations under cl 3.1 and cl 4.1 of the Deed.

394 Returning to the particular matters the focus of subpars (i) to (v) of ground 2(b), we start with the nature of the obligation in the present case. It concerned the time for performance of the obligation to subdivide and transfer the Community Purposes Site.

395 As we have concluded in the context of ground 1, that obligation had, as its purpose, the orderly and proper planning of the locality and, in particular, the need to facilitate civic and community uses in the locality. While, by its terms, the Deed did not control the use to which, after transfer, the City might ultimately put the Land, it is in our view clear that the obligations in the Deed were a means to achieving orderly and proper planning. Those obligations were not simply a means to provide the City with the equivalent of developer contributions or some other financial benefit.

396 In those circumstances, in our view, the fact that, by the time of the City's demand, the Community Purposes Site (being Lot 59 on Plan SK6) had ceased to be able to achieve the planning purpose to which the obligation in the Deed was directed was, in our view, plainly relevant to the assessment of whether a reasonable time had elapsed. For that reason, ground 2(b)(i) must be rejected.

The unsuitability of Lot 59 as a community and civic site

397 In this context, there were, at the time of the City's demand (including its initial demand in 2015) two aspects to the 'unsuitability' of Lot 59 on Plan SK6 as a community and civic site: first, as to the City's intentions in that regard; and, secondly, as to the objective suitability of the site having regard to the expert planning evidence.

398 Both aspects were relevant to the assessment of whether a reasonable time had elapsed. The City's intention and attitude in relation to the suitability of the site were directly relevant to its conduct over the period during which it failed to call for, or indeed accept, performance from Tah Land. It was also, therefore, relevant to the causes of, and responsibility for, the delay. Similarly, the objective suitability of the site for civil or community purposes was also relevant to the fairness (and reasonableness) of the City calling for performance at a time when performance could no longer achieve the planning purposes to which the obligations in the Deed were directed. The Primary reasons reveal that the learned trial judge (correctly) took into account all of these matters. Her Honour's findings in relation to those matters do not disclose error.

400 As to the City's view as to the suitability of Lot 59 on Plan SK6 as a community purposes site, the learned trial judge found that the City regarded Lot 59 as not desirable from at least 1995. Her Honour was correct to so find. As early as 7 February 1995, after the north east corner of the Land had been zoned Civic and Cultural and after the City had approved the development based on Plan SK6, the City's internal documentation revealed a view on the part of its officers that the site was not suitable and proposed 'further negotiations ... to achieve suitable location'.[304]

401 At that time, however, the City did not reveal to Tah Land that it had, in effect, changed its position. Indeed, it initially suggested deferral of the subdivision and transfer of the Community Purposes Site, on the basis that the site in the north eastern corner of the Land was the Community Purposes Site.[305] It was only after Tah Land had, at the City's request, removed the proposed subdivision of the site in the north eastern corner of the Land that the City expressed the view that the location of the site was yet to be determined (in particular by its correspondence in early 1996).

402 Thereafter it is apparent from the evidence before the learned trial judge and from the judge's findings that the City maintained the view that the location of the Community Purposes Site had not been determined. It expressly reiterated that view in February 2010[306] and it was not until 2014, many years later, that the City appears to have clearly expressed the view that the site in the north eastern corner of the Land was indeed the Community Purposes Site the subject of the Deed.[307] Even at that time, however, the City was not suggesting that the site was a suitable site for community or civic purposes, merely that the City was 'entitled' to it.

403 In those circumstances, in our view, it was open to the learned trial judge to conclude, as her Honour did, that the City pressed the view that Lot 59 on Plan SK6 was not a suitable site for the provision of civic and cultural facilities up to and including when it issued the first notice of default in September 2015.[308]

Ground 2(b)(v) - no intention to use Lot 59 for a civic or community facility

404 Relatedly, in our view, it was open to the learned trial judge to conclude that, when the City called for performance in 2019, it did not then have the intention of using the site for a civic or community facility.

405 The conclusion that the City did not intend to use Lot 59 on Plan SK6 for a civic or community facility in 2019 was a matter of inference from all of the circumstances. That inference was based not simply on what the City said over the years but on what it actually did (or failed to do). In that regard, there was no evidence that the City, after it had determined that Lot 59 on Plan SK6 was not a suitable site for the civic or community facilities of the City, actively considered or proposed to use that site for such purposes.

406 As the learned trial judge found, at the time that the City called for performance, there were no arrangements made or proposed to be made to build civic and community facilities on that lot.[309] This finding was not challenged on appeal and it was correct. The most that could be said from the evidence is that there were occasions upon which officers of the City referred to the possibility of that site being used for community purposes if its preferred position was not achieved. Those references do not amount to any active consideration as to the use of the site and, in any event, they arose in 2015, at a time when the City began to insist that it was entitled both to the Community Purposes Site under the Deed and to the provision of civic facilities in accordance with ASP 59.

407 The additional matters referred to by the City at the hearing of the appeal, namely the reports to Council prepared in December 2018 and April 2019 referred to at [379] above, in our view do not suggest otherwise. The references in those reports to the 'intended location' of the library/community facility being the Community Purposes Site were made as part of general background to recommendations to the Council of the City that it prepare design concepts in relation to entirely different sites. There is nothing in that reported background to support the conclusion that the City was giving active consideration to the use of Lot 59 on Plan SK6 for community purposes at that time. Indeed, insofar as those reports referred to concept design plans, those plans were said to propose the community facility within the Kingsway Shopping Centre itself, not on Lot 59 o[310]lan SK6.310

408 The learned trial judge's conclusion that the City did not intend to use the Community Purposes Site for community or civic purposes when it called for performance in 2019, must also be understood in the context of the objective suitability of the site for those purposes having regard to the expert planning evidence.

(a) the effect of ASP 59 and State Planning Policy 4.2 was that from at least the end of 2010, the area located in the north-east corner of the Land was not, as a matter of orderly and proper planning, a suitable area for the provision of civic and community facilities;[311] and

(b) the expert evidence established that, by 2019, a subdivision to create the Community Purposes Site for civic facilities uses consistent with those envisaged by the Deed was unlikely to be approved by the WAPC.[312]

410 There was no challenge to these conclusions in the appeal, nor to her Honour's acceptance of the evidence of Mr Hajigabriel and Mr Shrapnel that orderly and proper planning required that the land depicted as Lot 59 on Plan SK6 should be allocated, as it is in ASP 59, to predominantly high density residential and open space.[313]

411 These findings, in our view, compel the conclusion that, at the time that the City called for performance, the relevant planning context, and the requirements of orderly and proper planning, had completely moved on from what they had been in 1996. In those circumstances, it is, in our view, highly unlikely that the City, having disavowed Lot 59 on Plan SK6 as a suitable site for community or civic facilities for so long, would then make arrangement to use the site for those purposes anyway. This is particularly so given that, on its own case, if the site had been transferred to it, the City would have been unconstrained from using the site for its highest and best use (being high density residential and mixed use development).

412 The unlikelihood of the City (which is itself a planning body) using Lot 59 on Plan SK6 for a use that was inconsistent with orderly and proper planning, in our view, further strengthens the inference drawn by the learned trial judge that the City did not intend to use the Community Purposes Site for community or civic purposes when it called for performance. The learned trial judge has not been shown to be in error in so concluding. Ground 2(b)(v) must fail.

413 Returning then to the causes of, and responsibility for, the delay in the performance of the Deed and the City's challenge to the finding that the delay was the responsibility of the City and not Tah Land.

Ground 2(b)(iii) - the City's failure to collaborate and its repeated declining to accept performance

414 In our view, it is clear that a significant and pervasive cause of the delay in performance of the Deed was the City's insistence, from 1996 to 2014, that the location of the Community Purposes Site under the Deed was yet to be determined. Important, in that context, is the fact that, while the City consistently maintained that the location of the Community Purpose Site was yet to be determined, it nevertheless failed to engage in any meaningful way with the contrary view expressed by Tah Land.

415 As noted above, from 1996 the City maintained that the location of the Community Purposes Site under the Deed had yet to be determined. In the years that followed, on numerous occasions, Tah Land by reference to the documentary record (including the City's own actions), consistently set out the basis upon which it contended otherwise; namely, that the location of the Community Purpose Site had been determined by the submission and approval of Plan SK6. On every occasion that Tah Land did so, the City either failed to respond at all[314] or responded with mere assertion, simply stating that the location was yet to be determined.[315] At no time did the City address the substance of Tah Land's position in that regard.

416 In addition, and more generally, the City failed to engage at all with Tah Land's repeated attempts to progress the issue of the Community Purpose Site by way of variation to the Deed.[316]

417 In this regard, we reject the City's submission that it was merely seeking to renegotiate the location of the Community Purposes Site. That submission is far removed from the substance of what the City communicated to Tah Land. There is a fundamental difference between, on the one hand, accepting the position articulated by Tah Land, but requesting renegotiation and, on the other hand, refusing to accept that position. All of the City's communications were of the latter character.

418 It was in this context that the learned trial judge accepted the proposition that, by its refusal to accept the location of the Community Purposes Site as Lot 59 on Plan SK6 and its desire to keep the location of that site open, the City had failed entirely to collaborate in the performance of the obligation it ultimately asserted in 2015.

419 Her Honour was, in our view, correct to so find. The City's conduct as a whole (particularly up to, and including, the approval of ASP 59),[317] was far from collaborative. In our view, it may properly be described as stonewalling. Not only was the City content to leave the issue of the Community Purposes Site wholly unresolved, its failure to engage with Tah Land effectively prevented the issue from moving forward at all.

420 The City sought to emphasise, in its submissions, that there were few, if any, occasions upon which Tah Land expressly 'offer[ed] to perform cl 3.1 after the agreement to defer'. It was on this basis, for example, that the City submitted that the learned trial judge erred in finding that the City repeatedly declined to accept performance of the asserted obligations.[318]

421 The learned trial judge's findings in this regard, however, should not be narrowly understood. It is true that there are few examples, in the course of the period following in 1996, in which Tah Land, in terms, requested the City to accept the subdivision and transfer the area depicted as Lot 59 on Plan SK6 (pursuant to cl 3.1 and 4.1 of the Deed).

422 The City's failure to accept performance of the Deed was, however, more fundamental than this. Before Tah Land could perform cl 3.1 and cl 4.1 of the Deed, it was necessary for the parties to perform cl 2 of the Deed. Clause 2 included obligations on the part of Tah Land (submitting the 'New Plan' and requesting the rezoning of the Commercial Purposes site) and required the cooperation and agreement of the City (in accordance with the definition of 'New Plan'). Without, for example, the 'New Plan' having been submitted to the satisfaction of the City, there could be no 'Community Purposes Site' which Tah Land would be able to subdivide and transfer.

423 It was precisely Tah Land's obligations under cl 2 which the City repeatedly (and wrongly) refused to accept had been performed by Tah Land. We have described the City's refusal as 'wrongful' because, as the City contended at trial and as the learned trial judge found, Tah Land's submission of Plan SK6 did constitute performance of Tah Land's obligations under cl 2.1(a) of the Deed to submit the New Plan.[319] Tah Land had therefore performed its obligations under cl 2.1, such that the Community Purposes Site had come into existence within 3 years of the date of the Deed. From 1996 until 2014 the City, however, refused to accept that that was the case.[320] Indeed, it repeatedly contended that Tah Land's obligation to submit a 'New Plan' had not been performed.

424 In those circumstances, for Tah Land to unilaterally submit a further plan of subdivision so as to subdivide Lot 59 on Plan SK6 from the Land in accordance with cl 3.1 would have been pointless. The City, by its insistence that cl 2.1(a) had not been performed, had made abundantly clear that such a step on the part of Tah Land would not be accepted by it as performance of the Deed.

425 In those circumstances, the only thing that Tah Land could do was to seek the City's confirmation that Tah Land had indeed performed its obligations under cl 2.1 and that the location of the Community Purposes Site had indeed been determined to the satisfaction of the City. Not only did the City refuse to do so, it asserted (wrongly) to the contrary.

426 It is to be recalled that the 'asserted obligation' with which the learned trial judge was concerned in the finding challenged by ground 2(b)(iii), was the 'asserted obligation' to transfer Lot 59 on Plan SK6. Identification of the Community Purposes Site was an essential precondition to its transfer. In circumstances where, from 1996 to 2014, the City repeatedly denied that Lot 59 on Plan SK6 was the Community Purposes Site, in our view, it was correct to describe the City as having 'repeatedly declined to accept performance of the asserted obligation it purported to insist on in 2019'.[321]

427 For similar reasons, in our view, the learned trial judge's description of Tah Land as 'pressing for the transfer' of the Community Purposes Site in 2004 does not reveal material error.[322] That description of Tah Land's position must be seen in its context. In August 2003, Tah Land had stated (contrary to the City's position) that the Community Purposes Site had been identified, the necessary zoning implemented and that the 'subdivision application will [be] commenced upon request'.[323] It had also sought, again with no success, to have the City respond to a proposed variation of the Deed confirming that position in February 2004.

428 In those circumstances, the statement by Tah Land's solicitors in their letter of 24 March 2004 that 'the only obligation imposed on our client by the ... Deed' was the transfer of the Community Purpose Site must be understood in the context of its insistence that the other obligations in the Deed, including the submission of the 'New Plan' had already been performed. It was consistent with the other statements by Tah Land at the time to the effect that it was ready, willing and able to transfer Lot 59 on Plan SK6 to the City when requested to do so.

Ground 2(b)(ii) - negotiations following 8 December 2015

430 In relation to ground 2(b)(ii), in our view, it perhaps goes too far to describe as a 'finding' the learned trial judge's observation at Primary reasons [182] to the effect that it appeared that no negotiations between the parties took place following the Council's motion dated 8 December 2015. That observation was, rather, a statement as to the state of the evidence before her Honour, which indeed did not reveal any particular negotiations occurring over that period. It also appeared in the context of her Honour having recorded that it was not long after the motion of 8 December 2015 that the City issued another notice of default and then issued the proceedings (in February and March 2016, respectively). So understood, her Honour's observation at Primary reasons [182] does not reveal error.

431 Ground 2(b)(ii) also challenges the learned trial judge's later finding that the City did not take 'any real steps' after 2015 to reach an agreement to locate a library at another location on the Land. That finding must also be understood in its context. As Tah Land submitted, her Honour had already concluded that the City, by making demands both for the Community Purposes Site and a library site integrated within the shopping centre (as contemplated by the Mixed Use (Civic) area in ASP 59), was adopting a position destructive of the negotiations contemplated by ASP 59. We will return to ASP 59 in a moment. For present purposes, it is sufficient to observe that, having so found, it is unsurprising that her Honour would later observe that the City had not taken any 'real steps' to reach an alternative agreement.

432 In any event, in our view, any negotiations contemplated after November 2015 would have been after the parties had joined issue in relation to whether Tah Land remained under an obligation to transfer the Community Purposes Site. On 23 September 2015, the City made its first request for performance of the obligations under cl 3.1 and cl 4.1 and Tah Land promptly responded, on 29 September 2015, to the effect that the City's demand was misconceived.[324]

433 In that regard, while the learned trial judge quite properly expressed her conclusions as to the effluxion of a reasonable time looking backwards from 2019, in our view, no different result would have ensued if the matter was considered by reference to the time that the City first called for performance in September 2015. By that time, in our view, the die was well and truly cast and a reasonable time within which to call for performance of the obligations had already elapsed.

434 In our view, nothing that occurred after 2015 could have altered that position. Ground 2(b)(ii) has not been made out.

435 That brings us, finally, to ground 2(b)(iv) and the learned trial judge's conclusion that it was unfair (and unreasonable) for the City to call for performance at a time after the making of ASP 59, as Tah Land was required by ASP 59 to provide for civic and cultural facilities on the Land if it wished to proceed with Stage 2 of the development of the Land. It is clear from the Primary reasons that, in concluding that a reasonable time had elapsed for the City to call for the subdivision and transfer of Lot 59 on Plan SK6, the learned trial judge gave significant weight to the effect of ASP 59 and to the circumstances leading to its creation.

436 In our view, her Honour was correct to do so and was correct to conclude that it was unfair (and unreasonable) for the City to call for performance at a time after the making of ASP 59.

437 In that regard, as we have noted above, the obligation in the Deed to subdivide and transfer the Community Purposes Site was a means of achieving planning purposes, namely the provision of civic and community facilities in the locality. There were (and are), of course, other means of achieving those purposes, including by the exercise of planning controls themselves as part of the approval process for development applications. The relevant planning framework might, for example, dictate that certain forms of development will only be approved where the relevant requirements of orderly and proper planning (including the need for civic facilities) can be met.

438 An important feature of the present case reflected in the learned trial judge's findings was that, while in 1992 the parties had contemplated that the relevant planning objectives would be met by means of the Deed between the City and Tah Land, by 2010 those objectives were directly addressed by the planning framework itself, and in particular by the requirements of ASP 59 and State Planning Policy 4.2.

439 Accordingly, there were two related matters that contributed to her Honour's conclusion that it was not fair to press for subdivision and transfer under the Deed following the making of ASP 59:

(a) first, the planning objectives which the parties had contemplated would be met by means of the Deed, could no longer be met by the Deed, because of the unsuitability of the Community Purposes Site to meet those objectives; and

(b) secondly, there was now an alternative means by which those objectives could be met, namely by the direct application of the relevant planning framework, including ASP 59, State Planning Policy 4.2 and DPS 2.

440 In addition, as the learned trial judge found by reference to the expert evidence, an essential feature of the relevant planning framework (reflected in ASP 59) was the provision of an accessible and well‑proportioned town square, linked to site specific and community facilities. As her Honour observed:[325]

Importantly, part of the reasons why the WAPC had refused to approve the draft structure plan on 24 November 2009 was that among other reasons, the draft was inconsistent with Element 7 of the draft State Planning Policy 4.2, and specifically the WAPC was not satisfied that it had been adequately demonstrated that the draft structure plan provided an accessible and well-proportioned town square, linked to site-specific and community facilities identified jointly with the City of Wanneroo.

...

Also of importance is that, one of the reasons why the WAPC would not approve the draft structure plan was because civic and cultural facilities should be well integrated into a town square and that a suitable replacement site for civic and community uses then currently reserved in the north-east corner of the Land had not been identified.

441 In that regard, in rejecting Mr Allerding's evidence that there was some prospect of amending ASP 59, her Honour said:[326]

The WAPC made it clear in 2010 that it would not approve ASP 59 without provision for integrated community purposes facilities, and there is no evidence before the court that the planning principles and policies relied upon by the WAPC in 2010 had changed by 2019.

442 The requirement for integrated community facilities is clearly reflected in the terms of ASP 59. It is reflected in the Mixed Used (Civic) area and in the mandatory requirement ('shall') to include the Town Square and Civic and Cultural Facility.[327] While the terms of ASP 59 proposed that the Civic and Cultural Facility would be included in Stage 1 of any subsequent development, it was at the City's insistence that the inclusion of such a facility was deferred, a course that was contemplated by ASP 59.[328] There was no evidence to suggest that the requirement for integrated community facilities would not continue to guide future development of the site.

443 Her Honour was therefore correct to conclude that the changes in the planning framework over time had the practical consequence that Tah Land (or indeed any proponent for future development on the Land) will be required to provide for civic and cultural facilities on the Land in order to proceed with Stage 2 of the development of the Land. There is an obvious opportunity cost of Tah Land (or any proponent) being required to do so.

444 That being the case, the element of unfairness in the City calling for performance in 2019 in relation to an area of the Land no longer suitable for civic and cultural facilities is manifest. The ultimate planning objective of ensuring civic and community facilities in the locality would be met (by the application of orderly and proper planning) at Tah Land's cost, while at the same time the City would receive a windfall (in the form of land that is not to be used for civic and community facilities), also at Tah Land's cost. Moreover, under ASP 59, the civic and cultural facility required by it is to be the subject of a new agreement between Tah Land and the City. This agreement would replace the Deed. Yet the City's request to perform cl 3 and cl 4 of the Deed would, in all likelihood, entail enforcement of both the Deed and Tah Land's obligations in respect of the civic and cultural facility contemplated under ASP 59. The City's assertion that the two were separate matters emerged for the first time in 2015.

445 The changes in the planning framework effected by ASP 59, and the circumstances leading to its creation, thus firmly pointed to the conclusion that by well before 2019, a reasonable time for the City to require Tah Land to transfer the Community Purposes Site had elapsed.

447 For these reasons, in all of the circumstances, including the length of the delay, the City's responsibility for the delay, the changes to the relevant planning framework and the unfairness to Tah Land, in our view a reasonable time had clearly elapsed when the City called for performance in 2019. The learned trial judge was correct to so conclude.

449 None of the grounds of appeal having been established, the appeal must be dismissed.

450 Given the failure of the grounds of appeal, it is not necessary for the purposes of determining the appeal to deal with the notice of contention. In all the circumstances, it is not appropriate to resolve the various issues raised by it.

451 In that regard, while contentions 1 and 2 are prima facie concerned with pure questions of construction as to the definition of Community Purposes Site in the Deed, and in particular whether it was, or could be, an area outside the orange circle on Plan A, the resolution of those contentions would raise a number of other issues of fact and law that were not the subject of findings by the learned trial judge.

452 In particular, in responding to the notice of contention, the City submitted that if, upon its proper construction, the Deed did confine the Community Purposes Site to the orange circle in Plan A:

(a) the parties by their conduct varied the Deed in that regard; or

(b) Tah Land could not take advantage of its own wrong in having submitted Plan SK6 with the Community Purposes Site located outside the orange circle and having relied upon it to enable its development of the shopping centre to proceed.[329]

453 Both responses to contentions 1 and 2 would require this Court to make findings of fact in relation to issues that were not dealt with by the learned trial judge. In our view, it is neither necessary nor appropriate to make such findings now.

454 Contention 3 does relate to an issue that was the subject of findings by the learned trial judge. Nevertheless, those issues were not determinative of the trial before her Honour and involve a novel issue as to whether the effect of a planning instrument, such as ASP 59, can be said to give rise to a 'benefit' to a local government authority as that expression is understood by the doctrine of approbation and reprobation. That broad question of principle was not the subject of detailed submission by the parties in the appeal and in our view should await determination in a case in which it squarely arises.

456 The parties should be heard as to the appropriate orders, including as to costs.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

[1] In the course of the events the subject of the proceedings, as a consequence of changes made under the Local Government Act 1995 (WA), the City existed as two distinct corporate entities: what was referred to as the 'Old City' until 1 July 1998 and, after that date, what was referred to as the 'New City'. It was common ground that upon the disestablishment of the Old City and the re-establishment of the New City that the New City took over the rights of the Old City. It is unnecessary to draw any distinction between the two entities, which are both referred to as the City.

[2] The same area was also depicted on a plan identified as L01.

[3] City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249 (Primary reasons).

[7] The conclusion in these terms appears at Primary reasons [200]. Ground 1 also challenges related statements in Primary reasons [442] and [486].

[9] This copy of the zoning plan is taken from a plan prepared for a later amendment, Amendment 672 (see [55] and following below) reproduced in Primary reasons, Annexure E1. It was, however, the only version in colour in the evidence. It accords with the plan in Amendment 443 (reproduced in Primary reasons, Annexure A).

[14] Primary reasons [18], [31]; see GAB 9 ‑ 27.

[20] This plan is extracted from the final plan in Amendment 672, which was reproduced in Primary reasons, Annexure E1 (as is the extract at [25] above).

[22] Or, as counsel for the City put it, 'no other evidence' (Appeal ts 35).

[34] Primary reasons [64] ‑ [65], Annexure H.

[35] See [38] and [50] above.

[40] Primary reasons [69], Annexure I.

[42] Primary reasons [70]; Agreed Chronology (WAB 89).

[46] Primary reasons [73]; GAB 98 ‑ 99.

[47] Primary reasons [75]; GAB 101 ‑ 105.

[56] Primary reasons [85]; GAB 120 ‑ 121.

[57] Primary reasons [86]; GAB 122 ‑ 124.

[62] Primary reasons [97]; GAB 237 - 238.

[63] Primary reasons [98]; GAB 240 - 241.

[64] Primary reasons [99]; GAB 242 - 243.

[65] Primary reasons [100]; GAB 246 - 254.

[68] Primary reasons [102]; GAB 272 - 273.

[69] The learned trial judge observed that DPS 2 provided for two types of structure plan: local plans made by the City pursuant to pt 10 of DPS 2 in relation to various 'Cells' within East Wanneroo (including the Land); and plans prepared by individual proponents pursuant to pt 10 of DPS 2 for the purposes of various types of applications (including applications for subdivision or for planning approval).

[72] Primary reasons [111] ‑ [112].

[73] Primary reasons [114]; Exhibit A, Tab 237, 2151 ‑ 2152.

[79] Primary reasons [142]; GAB 374; Appeal ts 86. At the hearing of the appeal it was confirmed that ASP 59 resulted from a consent order made in the Tribunal proceedings.

[80] See Primary reasons [135] ‑ [137].

[83] Primary reasons [126] - [127].

[99] The deemed provisions came into effect by the making of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).

[100] Primary reasons [148] ‑ [149].

[101] Primary reasons [151]. See also cl 9.9 of DPS 2 (Primary reasons [144]) which prevented the development of land subject to an obligation in an Agreed Structure Plan unless satisfactory arrangements were made for the discharge of that obligation.

[103] Primary reasons [154]; GAB 447 ‑ 448.

[105] Primary reasons [155]; GAB 583.

[106] Primary reasons [156]; GAB 585.

[111] Primary reasons [163]. The learned trial judge made a number of observations as to whether the City's position in this regard was well‑founded (Primary reasons [164]).

[114] Primary reasons [169]; Agreed Chronology (WAB 101).

[115] Primary reasons [170]; Agreed Chronology (WAB 101).

[116] Primary reasons [172]; GAB 588.

[120] Primary reasons [175]; GAB 593.

[121] Primary reasons [176]; GAB 592.

[122] Primary reasons [177] - [178].

[123] Primary reasons [179] - [180].

[128] Statement of Claim dated 1 March 2016. By an amendment dated 1 June 2007, the Statement of Claim was amended to identify the Community Purposes Site by reference to Plan SK6 (see Amended Statement of Claim dated 1 June 2007 [21A], [23(b)]).

[132] Fourth Amended Statement of Claim Amended pursuant to O 21 r 3(1) dated 9 August 2019.

[133] While the Fifth Amended Statement of Claim also pleaded, at [40A], that Tah Land had repudiated the Deed by its Defence dated 30 March 2017 (and a letter of the same date), it is clear that any such repudiation (which was denied by Tah Land) was not accepted by the City. In any event, the City's case that there had been an earlier repudiation was dependent upon an extant obligation to perform the obligations under cl 3.1 and cl 4.1 of the Deed.

[136] Electronic Industries Ltd v David Jones Ltd [1954] HCA 69; (1954) 91 CLR 288 (Electronic Industries Ltd v David Jones Ltd).

[143] Plaintiff's Submissions Filed at the Invitation of the Court dated 8 June 2020 (BAB 280 ‑ 284).

[144] See e.g. [81], [85], [95], [101] above.

[151] Primary reasons [398] - [422].

[152] Primary reasons [424] - [429].

[153] Primary reasons [433] - [452].

[156] See also Primary reasons [102] (reproduced at [107] above).

[161] Primary reasons [461] ‑ [462].

[162] Primary reasons [464] ‑ [465].

[163] Primary reasons [474] ‑ [478].

[164] Primary reasons [475], [477].

[171] Primary reasons [487] ‑ [488].

[173] Equus Financial Services Ltd v Beagle Holdings Pty Ltd [2002] WASCA 273 [15] (Fitzgerald AJ, Anderson & Parker JJ agreeing).

[175] Appellant's Written Submissions [14], [27] (WAB 9, 13).

[177] Respondent's Written Submissions [8] (WAB 35).

[178] See definition of 'Community Purposes Site' ([36] above).

[180] Indeed, leaving aside the issue as to the location of the site (raised by contentions 1 and 2 of the notice of contention), Tah Land accepted that Lot 59 on Plan SK6 'answered the description of the Community Purposes Site': see Appeal ts 104.

[183] Appeal ts 71 ('what was in the contemplation of the parties is relevant' (City)); Appeal ts 113 ‑ 114 (Tah Land).

[184] Primary reasons [205] (see [193] above).

[185] Respondent's Written Submissions [10] (WAB 35).

[186] Appellant's Written Submissions [27] (WAB 13).

[194] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89 [296] (Buss P, Murphy & Beech JJA).

[195] Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 (Barwick CJ, Gibbs & Stephen JJ); Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 [16] (Gleeson CJ, McHugh, Gummow & Kirby JJ); Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42] (Newnes JA & Murphy JJA, Beech J) (Black Box v TerraVision); Electricity Generation and Retail Corporation trading as Synergy v EIT Kwinana Partner Pty Ltd (ACN 115 348 171) [2022] WASCA 3 [230] (Quinlan CJ, Mitchell & Vaughan JJA) (Synergy v EIT Kwinana Partner).

[196] Black Box v TerraVision [42] (Newnes & Murphy JJA, Beech J); Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 [142] (Murphy JA); Synergy v EIT Kwinana Partner [235] ‑ [236] (Quinlan CJ, Mitchell & Vaughan JJA).

[197] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J); Black Box v TerraVision [42] (Newnes & Murphy JJA, Beech J).

[198] See [284] below.

[199] See [27] above.

[200] See Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 [13] (Basten JA; Macfarlan JA agreeing); [54] (Leeming JA).

[203] See [263] above.

[204] See [280], [286] above.

[205] See [248] ‑ [250] above.

[206] Appellant's Written Submissions [33] (WAB 15).

[208] See Primary reasons [262(b)]; [174] above.

[210] See [174] ‑ [186] above.

[211] See [196] ‑ [197] above.

[212] Appellant's Written Submissions [32] (WAB 15), referring to Electronic Industries Ltd v David Jones Ltd, 298 ‑ 299 (Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ).

[213] Electronic Industries Ltd v David Jones Ltd, 297 (Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ); Appeal ts 133.

[214] Plaintiff's Submissions Filed at the Invitation of the Court dated 8 June 2020 (BAB 280 ‑ 284).

[215] Ellmore (Maitland) Pty Ltd v Tull (1995) 7 BPR 14,305 (Ellmore (Maitland) v Tull).

[216] Ellmore (Maitland) v Tull, 14,307 [4] ‑ [5] (Mahoney JA, Priestly & Sheller JJA agreeing). See also Equus Financial Services Ltd v Beagle Holdings Pty Ltd [14] (Fitzgerald AJ, Anderson & Parker JJ agreeing).

[217] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [65] ‑ [67] (Buss P, Murphy & Vaughan JJA) (Zerjavic v Chevron Australia Pty Ltd); Wreford v Lyle [No 3] [2021] WASCA 20 [88] ‑ [90] (Quinlan CJ, Murphy & Pritchard JJA).

[220] Appellant's Written Submissions [33] (WAB 15).

[222] Respondent's Written Submissions [15] (WAB 38).

[223] Respondent's Written Submissions [16] (WAB 38).

[224] Tah Land referred at Respondent's Written Submissions [17] (WAB 38) to Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101 as to the legitimacy of subsequent conduct as being relevant to whether an agreement has in fact been reached. Counsel for the City accepted that the correspondence could be taken into account to determine whether the parties had intended to form an agreement (Appeal ts 72).

[225] Respondent's Written Submissions [17] (WAB 38).

[226] See [90] above.

[227] Respondent's Written Submissions [18] (WAB 39).

[229] Ellmore (Maitland) Pty Ltd v Tull (14,308) (Mahoney JA, Priestley & Sheller JJA agreeing).

[230] Respondent's Written Submissions [22] (WAB 40).

[231] Electronic Industries Ltd v David Jones Ltd, 297 (Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ).

[232] Electronic Industries Ltd v David Jones Ltd, 298 (Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ).

[234] Fifth Amended Statement of Claim [40]; BAB 198.

[235] Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110, 11,117 (McHugh JA, Hope & Mahoney JJA agreeing); Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23; (2008) 35 WAR 520 (Lighting By Design v Cannington Nominees) [90] (Buss JA).

[236] Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 [81] (Heydon JA); Lighting By Design v Cannington Nominees [90] ‑ [92] (Buss JA), [205] (Le Miere AJA).

[237] See [68] above.

[238] See [73], [76] above.

[240] See Primary reasons [312]; see [201] above.

[241] Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537, 567 ‑ 568 (Brennan J); Rudi's Enterprises Pty Ltd v Jay & Ors (1987) 10 NSWLR 568, 575 - 576 (Samuels AP, Priestley & McHugh JJA agreeing).

[242] Peregrine Systems Ltd v Steria Ltd [2005] EWCA Civ 239 [15] (Maurice Kay LJ; Dyson & Auld LJJ agreeing), referring to Astea (UK) Ltd v Time Group Ltd [2003] EWHC 725; [2003] All ER (D) 212.

[243] Smart v Power [2019] WASCA 106 [101] (Murphy, Beech & Pritchard JJA).

[244] Zerjavic v Chevron Australia Pty Ltd [95(2)] (Buss P, Murphy & Vaughan JJA).

[245] Zerjavic v Chevron Australia Pty Ltd [95(6)] (Buss P, Murphy & Vaughan JJA).

[246] Appellant's Written Submissions [9] (WAB 8).

[248] Respondent's Written Submissions [26] (WAB 42).

[249] Respondent's Written Submissions [27] (WAB 43).

[253] Appellant's Written Submissions [50] (WAB 20), Appeal ts 75.

[254] Exhibit A, Tab 337, 3517 (GAB 604).

[255] Exhibit A, Tab 337, 3517 (GAB 604).

[256] Respondent's Written Submissions [29] (WAB 43 - 44), Appeal ts 146.

[258] Primary reasons [384] ‑ [385].

[259] Respondent's Written Submissions [29] (WAB 44).

[260] Primary reasons [420(a)]; see [205(a)] above.

[261] Primary reasons [102]; see [107] above.

[262] Appellant's Written Submissions [43] (WAB 18).

[263] Appellant's Written Submissions [42] (WAB 18). Indeed the City submitted that the offer to perform cl 3.1 in 2003 (by letter dated 27 May 2003) was made in a context in which Tah Land accepted that the matter could be deferred until the City determined what facility was to be provided at the site (see [100] above).

[264] Appellant's Written Submissions [60] (WAB 22).

[265] Respondent's Written Submissions [31] (WAB 44).

[266] Respondent's Written Submissions [32] (WAB 44 - 45).

[267] Respondent's Written Submissions [33] (WAB 45).

[268] See [89] - [91] above.

[269] See [92] - [93] above.

[270] See [95] - [96] above.

[271] See [100] - [104] above. This is the same correspondence referred to by the City in the submission referred to at fn 257 above.

[272] See [105] - [106] above.

[273] Respondent's Written Submissions [34] (WAB 45 - 46); Appeal ts 159.

[274] Respondent's Written Submissions [35] (WAB 46).

[275] Primary reasons [421]; see [206] above.

[276] Appellant's Written Submissions [57] (WAB 19).

[277] Appellant's Written Submissions [58] (WAB 21 - 22); see also appeal ts 85 ‑ 88.

[278] See [138] - [146] above.

[279] Appellant's Written Submissions [59] (WAB 22).

[280] Respondent's Written Submissions [36] (WAB 46 - 47).

[281] See [136] above.

[282] Respondent's Written Submissions [37] (WAB 47).

[283] Respondent's Written Submissions [38] ‑ [39] (WAB 47 - 48).

[284] Primary reasons [429]; see [207] above.

[285] Appellant's Written Submissions [53] (WAB 20).

[286] Appellant's Written Submissions [57] (WAB 21).

[288] Appeal ts 77; Appellant's Written Submissions [63] (WAB 23).

[292] Primary reasons [391]; see also Primary reasons [400].

[293] Appeal ts 78. The City did challenge the finding that the City and the WAPC expressed the view that Proposed Lot 59 was unsuitable for community purposes in the negotiation of ASP 59, although that challenge was made as part of its response to contention 3 in the notice of contention. It did not form part of the grounds of appeal.

[294] Respondent's Written Submissions [40] ‑ [41] (WAB 48).

[296] Primary reasons [400], [423].

[298] Primary reasons [360], [362], [366], [367].

[300] Respondent's Written Submissions [41] (WAB 48).

[301] See [155] above.

[302] See [184] above.

[303] See [346] above.

[304] See [71] above.

[305] See [72] above.

[306] See [124] above.

[307] See [145] above. While there was some correspondence in 2011 with an officer of the City referring to the City's current right under the Deed to 'that 1.5 ha of land', as the learned trial judge noted that correspondence incorrectly referred to a larger portion of the Land and was a reference to the entire area zoned 'Civil and Cultural' (see [144] above).

[308] Primary reasons [421] (see [206] above).

[314] See e.g. [86], [93], [96].

[315] See e.g. [102], [124].

[316] See e.g. [90], [91], [106].

[317] Which was the time frame referred to by the learned trial judge in this context (see Primary reasons [420(a)] (at [205(a)] above).

[318] See [362] ‑ [363] above.

[322] See [107] above.

[324] See [155] ‑ [157] above.

[325] Primary reasons [405], [418].

[327] See [136] above.

[328] See [142] above.

[329] As it had submitted at trial (see [213] ‑ [214] above).