BETWEEN : FREMANTLE LAWYERS PTY LTD, ASHLEY DAVID WILSON, NICHOLAS EMIL GVOZDIN and ANTE ZOROTOVIC

IVAN JOSIP SARICH as executor of the estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)

IVAN JOSIP SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC

BRENDA CAROL SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC

LUKA IVAN SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC by his Guardian Ad Litem BRENDA CAROL SARICH

NATALIJA MARY SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC by her Guardian Ad Litem BRENDA CAROL SARICH

ANTHONY SARICH as a beneficiary of the estate of IVAN BRANIMIR SARIC

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : SARICH -v- SARICH [2017] WASC 222

Succession - Will - Construction - Illegality - Devises of portions of a single lot - Portions of the single lot not a 'lot' as defined in s 4(1) of the Planning and Development Act 2005 (WA) - The meaning of 'subdivide' in s 135(1)(a) of the Planning and Development Act - Whether the devises were a subdivision of the single lot contrary to s 135(1)(a) of the Planning and Development Act - Whether the trustee under the will held the portions of the single lot upon trust for the beneficiaries specified in the will - The trustee's power to subdivide the single lot

Practice and procedure - Whether a ground in the sixth respondent's notice of contention was relied upon in the primary proceedings - Whether the sixth respondent should be permitted to raise the ground in the appeal

Costs - Whether the primary court's orders as to costs were unreasonable or plainly unjust

Planning and Development Act 2005 (WA), s 4(1), s 135

Town Planning and Development Act 1928 (repealed), s 2, s 20

Transfer of Land Act 1893 (WA), s 166, s 167

Trustees Act 1962 (WA), s 30(1)(d)

Agaiby v Pantham Nominees Pty Ltd (1985) 55 LGRA 405

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568

Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247

Bakranich v Robertson [2005] WASC 12

Banque Commerciale SA, en liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41

Caltex Australia Petroleum Pty Ltd v Commissioner of State Revenue [2000] WASCA 54; (2000) 22 WAR 299

Caltex Properties Ltd (in liq) v Love (Unreported, WASC, Library No 970237, 14 May 1997)

Centronics Systems Pty Ltd v Nintendo Co Ltd [1992] FCA 584; (1992) 39 FCR 147

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Cobanov v Cobanov [2002] WASC 257

Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; [1965] AC 694

Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Development Underwriting (WA) Pty Ltd v Lombardo [1971] WAR 169

Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306

Doherty v Murphy [1996] VicRp 86; [1996] 2 VR 553

Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Glass v Ralph [1966] WAR 91

Glentham Pty Ltd v City of Perth [1986] WAR 205

In re Transfer to Palmer (1903) 23 NZLR 1013

Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216

Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33

Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65

Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188

Love v Brien [2012] WASC 457

Love v Brien [2013] WASCA 280

Mackinlay v Derry Dew Pty Ltd [2014] WASCA 24; (2014) 46 WAR 247

National Australia Bank Ltd v KDS Construction Services Pty Ltd [1987] HCA 65; (1987) 163 CLR 668

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

NLS Pty Ltd v Hughes [1966] HCA 63; (1966) 120 CLR 583

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310

O'Brien v Shire of Rosedale [1969] VicRp 81; [1969] VR 645

Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306

Palamore Pty Ltd v Clode (Unreported, WASC, Library No 980599, 16 October 1998)

Perpetual Trustees WA Ltd v Riverwest Pty Ltd [2004] WASC 81

Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603

R v Wheeldon [No 1] [1978] FCA 11; (1978) 33 FLR 402

Ratto v Trifid Pty Ltd [1987] WAR 237

Re Leaver [1996] QSC 28; [1997] 1 Qd R 55

Re Nelson and Tammer's Contract [1952] VicLawRp 52; [1952] VLR 391

Reid Murray Developments (WA) Pty Ltd v Hall [1968] WAR 3

Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285

Sarich v Sarich [2017] WASC 222

Schwerin v City of Sale [1997] 2 VR 219

Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245

Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363

Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418

Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936

Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303

University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481

Waitemata County v Expans Holdings Ltd [1975] 1 NZLR 34

Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232; (2010) 41 WAR 477

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156

Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

1. This appeal from a judgment of Master Sanderson concerns the proper construction and application of s 135(1)(a) of the Planning and Development Act 2005 (WA) (the PD Act).
2. Section 135(1)(a) provides that a person is not to 'subdivide' any 'lot' without the approval of the Western Australian Planning Commission (the Commission).
3. The term 'lot' is defined in s 4(1) of the PD Act to mean, relevantly, a defined portion of land:

(a) depicted on a plan or diagram available from, or deposited with, the Western Australian Land Information Authority and for which a separate Crown grant or certificate of title has been or can be issued; or

(b) depicted on a diagram or plan of survey of a subdivision approved by the Commission.

1. The term 'subdivide' is not defined in the PD Act, apart from the cognate term 'subdivision', which is defined in s 4(1) to include 'amalgamation'.
2. The critical issue in the appeal is this: if a testator devises part of a 'lot' by will, does the testator 'subdivide' the 'lot' within s 135(1)(a)?
3. The Master held, in effect, that:

(a) a 'lot' is 'subdivided' within s 135(1)(a) when the practical effect of what is done is to create two or more defined portions of land from the 'lot';

(b) it is unnecessary that any of the newly created smaller portions of land be transferred into separate ownership;

(c) what is necessary is that the 'lot' be divided into two or more defined portions of land by a legally effective or binding transaction or process; and

(d) if a testator gifts part of a 'lot' by will, the gift will be 'void and of no effect' because the gift will infringe the prohibition in s 135(1)(a).

1. I would allow the appeal. My reasons are as follows.

1. On 22 October 2015, Ivan Branimir Saric (also known as Branko Ivan Sarich and Branko Sarich) (the Deceased) died. He left a will dated 28 April 2011. On 24 December 2015, probate of the will was granted. On 14 January 2016, the grant of probate was amended.
2. Clause 4 of the will provides:

I give the balance of my estate both real and personal, of whatsoever nature and wheresoever situated in Australia to my Trustee upon trust, firstly, to pay thereout my just debts, funeral and testamentary expenses and all duties (if any) payable by reason of my death and then to give the balance of my estate in the following manner:

4.1) house at 40 Benara Road, Caversham with approximately 3 acres of land in front of it and towards Benara Road and at the back towards the vineyard and around the house to my said son IVAN JOSIP SARICH and his children in equal shares as tenants in common, and

4.2) the balance of the land at 40 Benara Road, Caversham, approximately 7 acres, to my said sons IVAN JOSIP SARICH, ANTHONY SARICH, my daughter-in-law BRENDA CAROL SARICH, and my grandchildren LUKA IVAN SARICH and NATALIJA MARY SARICH in equal shares as tenants in common.

1. The land at 40 Benara Road, Caversham comprises a 'lot', as defined in s 4(1) of the PD Act. It is the whole of the land in lot 103 on diagram 69773 and the whole of the land in certificate of title volume 1726 folio 550. The land is in the shape of a battleaxe. A house and other buildings are located on the 'handle' of the battleaxe block. Viticulture is carried out on the 'blade' of the battleaxe block. The sole access to the land is from Benara Road.

The parties to the proceedings before Master Sanderson and to the appeal

1. The parties to the proceedings before the Master and to the appeal are as follows:

(a) Ivan Josip Sarich as executor of the Deceased's will was the plaintiff. He is the first respondent in the appeal.

(b) Ivan Josip Sarich, Brenda Carol Sarich, Luka Ivan Sarich, Natalija Mary Sarich and Anthony Sarich in their capacities as beneficiaries under the will were the first to fifth defendants. They are the second to sixth respondents in the appeal.

(c) Fremantle Lawyers Pty Ltd, Ashley David Wilson, Nicholas Emil Gvozdin and Ante Zorotovich are the solicitors who prepared the Deceased's will. They were the sixth defendants and are the appellants in the appeal.

The originating process and the issues in the proceedings before Master Sanderson

1. On 10 April 2017, Ivan Josip Sarich, as executor of the Deceased's will, filed an originating summons in the Supreme Court, pursuant to order 58 rule 10 of the Rules of the Supreme Court 1971 (WA), for a declaration as to, relevantly, the proper construction of cl 4 of the Deceased's will.
2. There were three issues in the proceedings before the Master. First, whether cl 4 of the Deceased's will was void for uncertainty. Secondly, whether the devises in cl 4.1 and cl 4.2 were illegal and void in that the devises infringed the prohibition in s 135(1)(a) of the PD Act. Thirdly, whether cl 4.2 was a residuary clause that was effective to dispose of the residue of the Deceased's estate.

1. Master Sanderson made these observations about the proper construction of cl 4:

It seems clear what the [Deceased] intended by clause 4 was that the 'handle' of the property would pass to the first defendant. In fact the area of land is not quite three acres - it is more like 2.5 acres. Leaving that discrepancy to one side the intent of the [Deceased] is clear. The remaining area - the 'blade' of the battle axe - is almost precisely seven acres and the [Deceased] clearly wished that to pass to the five beneficiaries named in clause 4.2 of the Will [6].

1. As to the first issue, the Master concluded that cl 4 of the will was not void for uncertainty [4].
2. As to the second issue, the Master referred to the judgment of Murray J in Palamore Pty Ltd v Clode.[2] In that case, Murray J considered the meaning of the word 'subdivide' in s 20(1)(a) of the Town Planning and Development Act 1928 (WA) (TPD Act), which was the statutory precursor of s 135 and s 136 of the PD Act. His Honour said:

The word 'subdivide' is an ordinary English word which, in my view, in s 20(1)(a) bears its ordinary meaning. For the purpose of that section a lot is subdivided when the practical effect of what is done is to create out of the existing lot two or more smaller defined portions of land.

I do not think it is necessary that there be an act of transfer of any such smaller portion into separate ownership, although clearly the sale or other alienation of a defined portion of an existing lot will effectively subdivide it. What is necessary, it seems to me, is that, apart from the effect on the transaction of the contravention of s 20(1), there should be some legally effective or binding transaction or process which divides an existing lot into smaller units of land (12).

1. Master Sanderson also referred to the judgment of Barker J in Perpetual Trustees WA Ltd v Riverwest Pty Ltd.[3] In that case, Barker J considered the effect of s 20(1)(a) of the TPD Act on a disposition in a will of parts of an unsubdivided lot to various beneficiaries. His Honour said:

There is, in my view, a certain consistency in these judicial pronouncements as to what the expression 'subdivide' means where it appears in s 20(1). While it might be argued that the expression 'subdivide any lot', where it appears in s 20(1)(a), is a reference to the formal act of subdivision ultimately effected under s 21(1) by a transfer or conveyance of a portion of land that is not presently a lot, and that this view is buttressed by the proscription in s 21(2) that the Registrar of Titles shall not receive any application from the registered proprietor of any land to create and register in the name of such registered proprietor a certificate of title for a portion of land not being the whole of one or more lots unless such application has been approved by the Commission, it seems to me that s 20(1)(a) is intended to have a broader application than that. It seems to me reasonable to accept, as Murray J did in Palamore (supra), that the expression 'subdivide any lot' is intended to prevent any physical or other act which has or is intended to have the practical effect of creating out of an existing lot two or more smaller defined portions of land.

In this case, at least, the deceased by her Will has purported to devise the legal and beneficial interest in portions of Lot 366 to named beneficiaries. The purported testamentary dispositions in question, in my view, cannot be equated with the licences considered in Palamore and Cobanov [[2002] WASC 257] which were found not to offend s 20(1)(a). In those other cases, the transactions plainly proceeded on the basis that the lot in question could not be subdivided except with the approval of the Commission. In the present case, however, the plain intention of the Will is that each relevant beneficiary should have the bundle of rights that comes with legal and equitable ownership of land in the respective portions devised to them, to the exclusion of any other person. In my view, such a disposition, even by way of a testamentary disposition, purports to 'subdivide' Lot 366 [124] - [125].

1. The Master noted that the reasoning of Barker J in Riverwest was followed by Master Newnes in Bakranich v Robertson.[4] In that case, a testator had devised under his will half of an unsubdivided lot to various beneficiaries. Master Newnes held that the disposition infringed the prohibition in s 20(1)(a) of the TPD Act and was therefore void.
2. Master Sanderson said he was satisfied that the decision in Riverwest 'embodie[d] the proper construction of s 135' [19]. The Master therefore declared that cl 4 of the Deceased's will was 'void and of no effect as it [purported] to give land to different persons that [was] not subject to subdivision and [was] thus in breach of s 135 [of the PD Act]' [21].
3. As to the third issue, the Master concluded that cl 4.2 of the will was not a residuary clause and did not effectively dispose of the residue of the Deceased's estate [20].
4. On 8 August 2017, Master Sanderson published his reasons for judgment. On 31 October 2017, the Master made orders. The orders included a declaration to the effect that cl 4 of the Deceased's will was 'void and of no effect' in that cl 4 'purports to give land to different persons that is not subject to subdivision contrary to s 135 of [the PD Act]'. The Master also made orders as to costs as follows:
   1. The Plaintiff's costs on the Plaintiff's Amended Originating Summons dated 27 July 2017 be paid out of the Estate on an indemnity basis.
   2. The Plaintiff's costs on the Sixth defendants' chamber summons dated 14 July 2017 be paid out of the Estate.
   3. The First, Second, Third, Fourth and Fifth defendants' costs on the Plaintiff's Amended Originating Summons dated 27 July 2017 and the Sixth defendants' chamber summons dated 14 July 2017, including reserved costs, be paid by the Sixth defendants.

1. The appellants rely on two grounds of appeal.
2. Ground 1 alleges that the Master erred in law in concluding that cl 4 of the will is void and of no effect on the basis that it purported to subdivide a 'lot' contrary to s 135(1)(a) of the PD Act.
3. Ground 2 alleges that the Master erred in law in ordering the appellants to pay the costs of each of the first, second, third, fourth and fifth defendants (that is, the second, third, fourth, fifth and sixth respondents).

1. The sixth respondent filed a notice of contention.
2. The notice asserts that the Master's decision should be affirmed on the ground that the Master should have found that the devises in cl 4.1 and cl 4.2 of the will failed because 'they could not be given effect, there being no evidence that Lot 103 on Diagram 69773 could be subdivided in accordance with the will'.

1. The long title of the TPD Act, as originally enacted in 1928 (the Original 1928 Act), stated that the TPD Act was an Act relating to 'the Planning and Development of Land for Urban, Suburban, and Rural purposes'.
2. Part I of the Original 1928 Act was headed 'Town Planning', and comprised s 3 to s 18.
3. Section 3(1) empowered the Governor to appoint a person skilled in town planning as the Town Planning Commissioner. Section 4(1) established a Board to be called the Town Planning Board (the Board).
4. Section 6(1) provided for the making of a town planning scheme, in accordance with the provisions of the TPD Act, with respect to any land 'with the general object of improving and developing such land to the best possible advantage, and of securing suitable provision for traffic, transportation, disposition of shops, residence, and factory areas, proper sanitary conditions and convenience, parks, gardens and reserves, and of making suitable provision for the use of land for building or other purposes'.
5. Section 7(1) authorised a local authority to prepare a town planning scheme 'with reference to any land within its district, or with reference to land within its district and other land within any adjacent district, or [to] adopt, with or without modifications, any such scheme proposed by all or any of the owners of any land with respect to which the local authority might itself have prepared a scheme'. By s 7(2), a town planning scheme, prepared or adopted by a local authority, 'shall not have effect unless it is approved by the Minister, who may refuse to approve any scheme, or may refuse to approve a scheme except with such modifications, and on such conditions, as he may think fit'.
6. Section 8(1) provided that the Minister may, by regulation, 'prescribe a set of general provisions (or separate sets of general provisions adapted for areas of any special character) for carrying out the general objects of town planning schemes, and in particular for dealing with the matters set out in the First Schedule to this Act'.
7. The First Schedule was headed 'Matters which may be dealt with by general provisions'. The specified matters included:
   1. Streets, roads, and rights-of-way generally; and particularly the levels alteration, widening, closing, diverting, raising, lowering, aligning, re-aligning, grading, re-grading, classifying, re-classifying, naming, re-naming, constructing, re-constructing, maintaining, repairing, draining, re-draining, sewering, re-sewering, beautifying, gardening, and tree planting of streets, roads and rights-of-way, the junctions and intersections of streets, roads, rights-of-way and the excision of their corners, the laying of sewers, pipes and wires, and the placing of lamps, lampposts, tramway poles, monuments, fences, gate-ways, public signs, notices, and other objects in or on land adjacent to streets, roads and rights-of-way.

1. The subdivision of land generally; and in particular any requirements deemed necessary -

(a) in regard to new subdivisions or re-subdivisions of any land (or maps, plans, sections, or particulars thereof) contained within the scheme area, including drainage, size and shape of allotments (or separate parcels of land), and access thereto;

(b) for the classification of, and prescribing and determining any requirements in regard to the length or width of any street, road or right-of-way according to the use to which such street, road or right-of-way is likely to be put, or according to the physical features of the land, together with the design, method of construction, and cost of completion or alignment of any street, road, or right-of-way; and

(c) for dealing with or disposing of land acquired under this Act by a responsible authority, or by any Council or other public body or any person.

1. The replanning and reconstruction of the scheme area, or any part thereof, including any provisions necessary for -

(a) the pooling of the lands of several owners (or any lands, roads, streets, or rights-of-way adjacent or near thereto);

(b) the redivision of such land among such owners;

(c) providing and making new roads, streets or rights-of-way;

(d) adjusting and altering the boundaries of any such lands, roads, streets, or rights-of-way;

(e) effecting such exchanges of land, or cancellation of existing subdivisions as may be necessary or convenient for the purposes aforesaid;

(f) adjustment of rights between such owners or other persons interested in such lands, roads, streets, or rights-of-way;

(g) the vesting of such lands, roads, streets, or rights-of-way, subject or not subject to any rights or trusts; and any other provisions necessary for giving effect to the purposes aforesaid.

...

1. Limiting the number of apartment, tenement, detached, or other dwelling houses to the acre generally or in any particular locality, and the extent to which each subdivision, allotment, or parcel of land is to be built upon, and providing for adequate light and air to the windows of each house, and prescribing other requirements so far as is reasonable for the purpose of securing the convenience and amenity of the scheme area and proper sanitary and hygienic conditions in connection with any building therein.
2. The making, fixing, and altering and ascertaining of building lines irrespective of the width or alignment of any street, road, or right-of-way, to secure as far as practicable, having regard to the physical features of the site and the depth of the existing subdivisions, that the distance between the buildings to be erected, or buildings likely to be reconstructed, on opposite sides of any street, road or right-of-way, shall not be less than that fixed by the scheme, according to the prospective traffic requirements of such street, road or right-of-way, and not less in the case of any street or road than 66 feet or more than 198 feet, except pursuant to agreement between the owners and the responsible authority that the distance is to exceed 198 feet. (emphasis added)
3. Part II of the Original 1928 Act was headed 'Crown Land', and comprised s 19.
4. Part III of the Original 1928 Act was headed 'Alienated Land', and comprised s 20 to s 26.
5. Section 20 provided:

(1) No person shall lay out, grant, or convey a street, road, or way, or subdivide or sell land as lots, until a plan of subdivision has been approved by the Board.

(2) A plan of subdivision of any land shall not be received, registered, or deposited in the Office of Titles or Registry of Deeds or any other public office for the registration and depositing of such plans, whether constituted under the Transfer of Land Act, 1893, or otherwise, unless such plan shall have been first approved by the Board.

(3) A plan containing one lot only shall be deemed a plan of subdivision provided that it is a portion of the land comprised in a certificate of title, registered conveyance, a Crown grant, or a lot on a registered plan.

1. The word 'land' was defined in s 2 of the Original 1928 Act to include 'land, tenements, and hereditaments and any interest therein, and also houses, buildings, and other works and structures'.
2. The words 'way', 'subdivide' and 'lot' in s 20 were not defined in the Original 1928 Act.
3. Section 21 provided:

(1) A transfer, conveyance, or mortgage of any piece of land containing less than half an acre in area, unless it comprises the whole of one or more lots shown on a plan registered in the Department of Lands and Surveys, or in the Office of Titles or Registry of Deeds, or comprises the whole of the land the subject of a Crown grant, certificate of title or conveyance, shall not be received or registered in the Office of Titles or Registry of Deeds, unless such transfer, conveyance, or mortgage shall have been first approved by the Board.

(2) The Registrar of Titles shall not receive any application from the registered proprietor of any land to issue in the name of such registered proprietor a certificate of title for a portion of land of a lesser area than half an acre, not being the whole of one or more lots shown on a registered plan in the Department of Lands and Surveys or Office of Titles, or the whole of the land the subject of a Crown grant, certificate of title or conveyance, unless such application has been approved by the Board.

1. Section 23(1) provided that if the Board was of the opinion that a plan of subdivision may affect the powers or functions of any local authority or public body other than the Board, or any Government department, the Board 'shall forward the plan or a copy thereof to such local authority, public body, or Government department, as the case may be, for objections or recommendations'. Section 23(2) regulated the time within which and manner in which objections or recommendations could be made. Section 23(3) empowered the Board, after a specified time and after considering any objections or recommendations made by any local authority, public body or Government department, to approve or reject the plan of subdivision and to 'affix such conditions as the Board may think fit, which shall be carried out by the owner before the plan is approved by the Board'. Section 23 was renumbered as s 24 in the 1951 reprint.
2. Section 24 of the Original 1928 Act was concerned with encroachments. It provided:

Where, after the erection of a building on land the property of one owner, it is found that such building encroaches upon land the property of another owner to the extent of not more than three feet, and where the encroaching owner desires to purchase the land upon which the encroachment stands, the Board shall, upon the application of the owner of the land which is encroached upon, and upon being satisfied that there has not been collusion, but that everything has been done in good faith without intention to evade the law, approve of the necessary subdivision or transfer. (emphasis added)

Section 24 was renumbered as s 25 in the 1951 reprint.

1. Section 26 provided that if any person contravened by act or omission any provisions of pt III, the person shall be guilty of an offence, and be liable to a penalty not exceeding a specified amount. Section 26 was renumbered as s 27 in the 1951 reprint.
2. Part IV of the Original 1928 Act was headed 'Miscellaneous', and comprised s 27 to s 34.
3. Section 29 amended and repealed various provisions of the Road Districts Act 1919 (WA) and the Municipal Corporations Act 1906 (WA). In particular, s 29 repealed:

(a) provisions of the Road Districts Act which required the approval of the Board of a Road District to certain dealings with respect to the subdivision of land within the district; and

(b) provisions of the Municipal Corporations Act relating to the approval by the council of a municipality of certain plans with respect to the subdivision of land within the municipal district.

1. Section 30(1) empowered the Governor to make, and publish in the Gazette, uniform general by-laws, or separate sets of general by-laws adapted for areas of any special character, 'for carrying into effect all or any of the purposes mentioned in the Second Schedule to this Act, and such by-laws shall have the force of law in the district of any local authority which the Governor may from time to time prescribe'.
2. The Second Schedule was headed 'Matters for which town planning by-laws may be made by a local authority'. The specified matters included:
   1. Limiting the number of apartment, tenement, or detached or other family dwelling houses to the acre generally or in any particular locality, and the extent to which each subdivision, allotment or parcel of land is to be built upon, and providing for adequate light and air to the windows of each house, and prescribing other requirements so far as is reasonable for the purpose of securing the convenience or amenity of the area to which by-laws apply, and proper sanitary and hygienic conditions in connection with any buildings therein.

1. Prescribing and determining any requirements deemed necessary in regard to new subdivisions or re-subdivisions of any land (or maps, plans, sections, or particulars thereof) contained within the area to which it is intended that the town planning by-laws shall apply, including drainage, size and shape of allotments (or separate parcels of land) and access thereto; also for the classification of and the prescribing and determining of any requirements in regard to the length or width of any street, road, or right-of-way according to the use such street, road, or right-of-way is likely to be put, or according to the physical features of the land, together with the design, method of construction, and completion of alignment, of any street, road, or right-of-way.
2. The making, fixing, altering and ascertaining of building lines irrespective of the width or alignment of any street, road, or right-of-way, to secure as far as practicable, having regard to the physical features of the site and the depths of the existing subdivisions of land, that the distance between the buildings to be erected, or buildings likely to be reconstructed on the opposite sides of any street, road, or right-of-way, shall not be less than that fixed by the by-laws according to the prospective traffic requirements of such street, road, or right-of-way, and not less in the case of any street or road than 66 feet, nor more than 198 feet except pursuant to agreement between the owners and the local authority that the distance is to exceed 198 feet. (emphasis added)
3. The Town Planning and Development Act Amendment Act 1956 (WA) further amended the Original 1928 Act, relevantly, as follows:

(a) Section 2 was amended by adding a definition of 'lot' as follows:

depicted on a plan or diagram publicly exhibited in the public office of the Department of Lands and Surveys, or deposited in the Office of Titles or Registry of Deeds and for which a separate Crown Grant or Certificate of Title has been or can be issued; or

depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not, but which is, whether before or after the coming into operation of the Town Planning and Development Act Amendment Act, 1956, approved by the Board.

(b) Section 20 was amended by substituting for s 20(1) the following new s 20(1):

After the coming into operation of the Town Planning and Development Act Amendment Act, 1956, a person shall not lay out, grant, or convey a street, road, or way, or subdivide, lease for any term exceeding ten years, or sell land, except as a lot or as lots; but where after payment of consideration for any transaction relating to any land, it is found that the transaction cannot be completed because that land cannot be dealt with as a lot or as lots, the person who paid the consideration is entitled to a refund of the consideration from the person to whom it was paid.

1. The Town Planning and Development Act Amendment Act (No 2) 1957 (WA) further amended the Original 1928 Act, relevantly, as follows:

(b) the passage, 'lease for any term exceeding ten years,' in s 20(1) was deleted; and

(c) a new paragraph, designated s 20(1)(b), was added as follows:

After the coming into operation of the Town Planning and Development Act Amendment Act (No. 2), 1957, a person shall not, without the prior approval in writing of the Board, lease any land unless the land consists of the whole of one or more lots or a part only of any house, building or structure.

Provided that such approval shall not be necessary to any instrument of lease wherein a proviso is inserted that no option of purchase of the land comprised in the lease has been granted or taken and that no such option will be granted by the lessor to the lessee or any other person during the term of the said lease and that no consideration in respect of the land has passed between the parties to the lease other than the rental reserved in the lease.

1. The Town Planning and Development Act Amendment Act (No 2) 1958 (WA) further amended the Original 1928 Act, relevantly, as follows:

(a) The definition of 'lot' in s 2 was amended by adding, after the word 'Board' at the end of the definition, the following passage:

and includes the whole of the land the subject -

(a) of a Crown Grant issued under the Land Act, 1933; or

(b) of a Certificate of Title issued under the Transfer of Land Act, 1893; or

(c) of a survey into a lot pursuant to a direction given under section seventeen of the Land Act, 1933; or

(d) of a part-lot shown on a plan of subdivision or diagram deposited in the Department of Lands and Surveys, Office of Titles, or Registry of Deeds; or

(e) of a conveyance registered under the Registration of Deeds Act, 1856.

(b) Section 20 was amended by substituting for s 20(1) the following new s 20(1):

(a) A person shall not, without the approval of the Board, lay out, grant or convey a street, road or way, or subdivide, or either lease or grant a license to use or occupy land for any term exceeding ten years including any option to extend or renew the term or period, or sell land or grant any option of purchase of land except as a lot or as lots; and the Board may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective.

(b) Where, after payment of consideration for any transaction relating to any land, it is found that the transaction cannot be completed because that land cannot be dealt with as a lot or as lots, the person who paid the consideration is entitled to a refund of the consideration from the person to whom it was paid.

1. The Town Planning and Development Act Amendment Act 1965 (WA) further amended the Original 1928 Act, including by adding new subsections (4), (5) and (6) to s 20. It is unnecessary to reproduce the new subsections.
2. The Town Planning and Development Act Amendment Act 1967 (WA) further amended the Original 1928 Act, relevantly, as follows:

(a) Section 20(1) was amended by substituting for the word 'A' in line one the passage 'Subject to section twenty B of this Act, a'.

(b) A new section, designated s 20B, was added as follows:

(1) Where an agreement to sell any portion of a lot has been entered into without the approval of the Board to the subdivision of the land comprising that lot having been first obtained, as required by subsection (1) of section twenty of this Act, the agreement shall be deemed not to have been entered into in contravention of that subsection, if -

(a) the agreement is made after the coming into operation of the Town Planning and Development Act Amendment Act, 1967;

(b) the agreement is entered into subject to the approval of the Board to the subdivision of the land being obtained; and

(c) an application for the approval of the Board to the subdivision is made within a period of three months after the date of the agreement,

and nothing in that subsection renders the agreement illegal or void by reason only that the agreement was entered into before the approval of the Board to the subdivision was obtained.

(2) Without prejudice to the operation of paragraph (b) of subsection (1) of section twenty of this Act, the agreement referred to in subsection (1) of this section has no effect, unless and until the Board gives its approval to the subdivision so referred to, within a period of six months after the date of the agreement or within such further period as is stipulated in that agreement, or in a subsequent agreement, in writing made by all the parties to the first mentioned agreement, or when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party.

1. The Town Planning and Development Act Amendment Act 1969 (WA) further amended the Original 1928 Act, including by amending s 20(1) and s 20B(1). It is unnecessary to reproduce the amendments.
2. The Town Planning and Development Act Amendment Act 1972 (WA) further amended the Original 1928 Act. In particular, s 3 of the amending statute amended s 20(1)(a):

(a) by deleting the passage 'or subdivide,' in line three; and

(b) by inserting the passage ', or subdivide any lot, or amalgamate any lot with any other lot whether within the same district or otherwise' immediately following the words 'as a lot or as lots' in line seven.

1. The Minister for Town Planning, in his second reading speech, explained the proposed amendments to s 20(1)(a) made by cl 3 of the Bill which upon enactment became the Town Planning and Development Act Amendment Act 1972:

Clause 3 ... is to amend section 20 and concerns the situation that can arise when lots are amalgamated. People seeking to subdivide lots are required to obtain the approval of the Town Planning Board, but the amalgamation of lots does not require such approval. This may create problems. For example, a proposal to amalgamate two lots either side of a common boundary between two local authorities may result in subsequent administrative difficulties for the councils concerned. Similarly, where a servicing authority has a service laid adjoining a boundary, the amalgamation of lots may eliminate the boundary and deprive the servicing authority of the opportunity to request an easement or of rerouting the service. This amendment proposes that contemplated amalgamations of lots shall be subject to the approval of the Town Planning Board.[5]

1. The Town Planning and Development Amendment Act 1979 (WA) further amended the Original 1928 Act. There were amendments to s 20 but it is unnecessary to reproduce them.
2. The Town Planning and Development Amendment Act 1983 (WA) further amended the Original 1928 Act. There were amendments to s 20 but it is unnecessary to reproduce them.
3. The Town Planning and Development Amendment Act 1986 (WA) further amended the Original 1928 Act. There were amendments to s 20 and s 21 but it is unnecessary to reproduce them.
4. Immediately prior to 9 April 2006, when the TPD Act was repealed and replaced by the PD Act, s 20(1)(a) of the TPD Act read:

Subject to section 68 of the Environmental Protection Act 1986, to this section and to section 20B, a person shall not, without the approval of the Commission, lay out, grant or convey a street, road or way, or either lease or grant a licence to use or occupy land for any term exceeding 10 years including any option to extend or renew the term or period, or lease and grant a licence to use or occupy land for terms in the aggregate exceeding 10 years, including any option to renew or extend the terms or periods, or sell land or grant any option of purchase of land, unless the land is dealt with by way of such lease, licence, sale or option of purchase as a lot or lots, or subdivide any lot, or amalgamate any lot with any other lot whether within the same district or otherwise; and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective.

1. Immediately prior to 9 April 2006, s 20(2) of the TPD Act read:

The Registrar of Titles shall not create or register a certificate of title under the Transfer of Land Act 1893 for land the subject of a plan of subdivision unless -

(a) in the case of a plan of subdivision to which this Act applies, the diagram or plan of survey of the subdivision of that land submitted to the Commission under section 20AA; or

(b) in the case of a plan of subdivision to which this Act does not apply, the application for title concerned,

has been endorsed with the approval of the Commission.

1. Immediately prior to 9 April 2006, s 21 of the TPD Act read:

(1) A transfer, conveyance, lease or mortgage of any land shall not be received or registered in the Department within the meaning of the Transfer of Land Act 1893 or Registry of Deeds unless -

(a) it has been first approved in writing by the Commission; or

(b) the land comprises the whole of one or more lots, or the land comprises part of a lot included in a plan of subdivision that has been approved by the Commission; or

(c) in the case of a lease, it does not contain or purport to contain an option to purchase land other than the whole of one or more lots and -

(i) the term is not more than 10 years (including any option to renew or extend the term);

(ii) paragraph (a) of subsection (1) of section 20 does not apply to the lease by virtue of paragraph (d) of that subsection; or

(iii) the lease is a lease which may be entered into without the approval of the Commission by virtue of section 20(1a).

(2) The Registrar of Titles shall not receive any application from the registered proprietor of any land to create and register in the name of such registered proprietor a certificate of title for a portion of land, not being the whole of one or more lots unless such application has been approved by the Commission.

1. Immediately prior to 9 April 2006, s 20AA of the TPD Act read:

(1) A person to whom approval of a plan of subdivision has been given may, within 3 years of the date on which the Commission approved the plan of subdivision -

(a) submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and

(b) request the Commission to approve the diagram or plan of survey of the subdivision.

(a) the diagram or plan of survey is in accordance with the plan of subdivision approved under section 20(1)(a); and

(b) if that approval given was subject to conditions, the conditions have been complied with,

the Commission shall endorse its approval on the diagram or plan of survey.

(3) If, at the expiration of 3 years from the date on which the Commission approved a plan of subdivision under section 20(1)(a), a diagram or plan of survey of the subdivision has not been submitted to the Commission, the approval of the plan of subdivision ceases to have effect.

1. Immediately prior to 9 April 2006, s 24 of the TPD Act provided, relevantly:

(1) When, in the opinion of the Commission, the plan of subdivision may affect the powers or functions of any local government or public body other than the Commission, or any Government department, the Commission shall forward the plan or a copy thereof to such local government, public body, or Government department, as the case may be, for objections or recommendations.

(2) Any such local government, public body, or Government department receiving such plan or copy thereof shall, within 42 days, forward it to the Commission with -

(a) a memorandum in writing containing any objections to, or recommendations in respect of, the whole or part of that plan; and

(b) in the case of a local government receiving a plan or copy relating to land within the area to which an assessed scheme applies, advice of any relevant environmental condition to which the assessed scheme is subject.

(3) After receiving a plan or copy and accompanying memorandum and any advice of a relevant environmental condition forwarded to it under subsection (2) and considering any objections or recommendations contained in the memorandum and any such advice the Commission shall approve or refuse to approve the plan or require the applicant for approval to comply with such conditions as the Commission thinks fit to impose before approving the plan.

1. Immediately prior to 9 April 2006, s 25 of the TPD Act read:

Where, after the erection of a building on land the property of one owner, it is found that such building encroaches upon land the property of another owner to the extent of not more than one metre, and where the encroaching owner desires to purchase the land upon which the encroachment stands, the Commission shall, upon the application of the owner of the land which is encroached upon, and upon being satisfied that there has not been collusion, but that everything has been done in good faith without intention to evade the law, approve of the necessary subdivision or transfer.

(a) the word 'land', as defined in s 2(1) of the TPD Act, had not been amended since the original enactment of the TPD Act;

(b) the word 'lot', as defined in s 2(1) of the TPD Act, had been amended since the Town Planning and Development Act Amendment Act (No 2) 1958 commenced (see [47] and [49] above), but the amendments were not material for the purposes of this appeal; and

(c) the word 'subdivision' continued to be defined in s 2(1) of the TPD Act as including 'amalgamation'.

Ground 1 of the appeal: a review of the case law relevant to the concept of subdivision under s 20 of the TPD Act

1. I will now review the case law relevant to the concept of subdivision under s 20 of the TPD Act.
2. In Glass v Ralph,[6] D'Arcy J observed that s 20 of the TPD Act reflected statutory intervention in individual activity in order to give effect to public policy, namely 'a policy of supervision of individual activity by providing for control in the creation of what might be called an important unit of subdivisional planning and development: the "lot"'. It is unnecessary to refer to the actual decision in Glass, except to note that it created a number of 'evils' which were sought to be remedied by amendments to the TPD Act. See Landall Construction & Development Co Pty Ltd v Bogaers.[7]
3. In NLS Pty Ltd v Hughes,[8] Barwick CJ (McTiernan J agreeing) noted that s 20 of the TPD Act provided expressly for the various dealings in or with land which were prohibited. His Honour then said:

Whatever its policy, the legislature has selected and described these specific dealings and, in my opinion, there is no room to reform or supplement its language so as to better effect the policy which may be discovered from other parts of the statute. Rather should the limitations sought to be imposed upon rights of alienation or dealing with private property be confined to the precise limits set by the language of the statute (587).

1. In Lombardo v Development Underwriting (WA) Pty Ltd,[9] the appellants applied to the Board for approval to subdivide land they owned. The Board informed the appellants' agent in writing that it was prepared to approve a diagram or plan of survey in accordance with the sketch plan which had been submitted, subject to compliance with certain specified conditions. The sketch plan showed a proposed subdivision of the land into 26 lots. The conditions concerned the construction of roads; drainage; the provision of water supply to the lots; and the setting aside of the equivalent of two lots as a reserve for public recreation. The appellants proceeded to comply with many of the conditions. However, before they had fully complied with all of the conditions, the appellants entered into a contract with the respondent to sell 20 fully developed building lots for $85,000. The contract provided for the payment of an initial deposit of $29,000. The respondent paid that sum. The contract contained a provision that the contract was subject to the land being in a fully developed state to provide residential development of not less than five lots on or before 15 October 1969. That provision was not complied with by the stipulated date. The respondent sued for the return of its deposit. The appellants denied rescission and alleged that the contract was rendered illegal by s 20(1)(a) of the TPD Act.
2. When the contract in Lombardo was made:

Subject to section twenty B of this Act a person shall not, without the approval of the Board, lay out, grant or convey a street, road, or way, or subdivide ... or sell land ... except as a lot or as lots; and the Board may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective.

(b) The term 'lot' was defined in s 2 of the TPD Act to mean 'a defined portion of land ... depicted on a subdivisional plan or diagram ... which is ... approved by the Board'.

1. The trial judge in Lombardo (Burt J) held that the respondent had been entitled to treat the contract as at an end and had elected to do so. His Honour construed the contract as an agreement for a sale in the future of land which would at the time of sale be subdivided with the approval of the Board into 20 lots. An agreement of that kind did not infringe the prohibition in s 20(1)(a) of the TPD Act because it contemplated that the appellants would sell land only when the Board had approved the subdivision.[10] The respondent was entitled to recover its deposit and judgment was entered against the appellants for $29,000. It was unnecessary for Burt J to consider the meaning or ambit of the word 'subdivide' in s 20(1)(a).
2. The appellants' appeal in Lombardo to the Full Court of the Supreme Court of Western Australia (Jackson CJ, Hale & Wickham JJ) was dismissed. Although the Full Court's decision to dismiss the appellants' appeal was unanimous, each of Jackson CJ, Hale J and Wickham J published separate reasons for judgment and their reasons for dismissing the appeal, including their reasons on some aspects of the proper construction and application of s 20(1)(a), were different. It is unnecessary, for the purposes of this appeal, to recount all of the differences. One difference concerned D'Arcy J's decision in Glass and Virtue J's decision in Reid Murray Developments (WA) Pty Ltd v Hall[11] to the effect that an agreement to sell land which was not, at the date of the agreement, a lot or lots, and which was expressed to be subject to the approval of the Board to a plan of subdivision, infringed s 20. In Lombardo, Hale J said that the conditions mentioned in s 20(1)(a) were conditions subsequent. An approval by the Board, although given subject to conditions, was an approval within s 20(1)(a) which may be acted on at once, 'but at the risk that it may cease to be effective if the conditions attached to it are not complied with' (197). The approval is given but subject to compliance with the conditions subsequent. Burt J at first instance and Wickham J on appeal in Lombardo were of the view that if the agreement, on its proper construction, was that the land in question was only to be conveyed as a lot or lots created by a subdivision approved by the Board, then s 20 was not infringed. Jackson CJ on appeal in Lombardo appears to have been of the view that s 20 had not been infringed because the subject matter of the agreement could not be identified until the lots were created following the Board's approval. The agreement was no more than 'an agreement for a sale in the future of land which would at the time of sale be subdivided into lots' (191). Such an agreement did not infringe s 20(1)(a) because it contemplated that the appellants would 'sell land' only when the subdivision had been approved (191).
3. The decision of the Full Court in Lombardo is significant, for the purposes of this appeal, because Hale J and Wickham J (but not Jackson CJ) expressed opinions on the meaning of the word 'subdivision' in s 20(1)(a).
4. Hale J said:

In the course of the argument it was suggested that the word 'subdivide' in s. 20(1)(a) related to work done on the ground, i.e. some form of physical subdivision, but I do not think that this is so. If the owner of a lot erects two or more houses thereon for the use of his children and surrounds each with a fence he will have physically subdivided the lot: what he can do may well be controlled under some other Act, e.g. by a by-law under s. 433 (21a) of the Local Government Act 1960, but it does not seem to me to be touched by s. 20(1)(a), any more than if he were to enclose by walls his vegetable garden, his orchard and his rose garden. The word is not defined and I doubt whether the draftsman had any clear idea what it was which he wished to prohibit, but it appears to me to be aimed at a plan of subdivision rather than at physical works on the ground. Prior to the 1928 Act an effective subdivision, ready for sale in lots, could be effected by the deposit of a plan of subdivision verified by a licensed surveyor: see ss. 166 and 167 of the Transfer of Land Act 1893; the only work needing to be done on the ground was the putting in of survey pegs and this was required only to enable the surveyor to make the declaration prescribed by the Twenty-seventh Schedule to that Act. In truth a plan, and nothing more than a plan, represented an effective subdivision. It was in this state of affairs that the Act in its original form was passed in 1928 and it appears to me that the references in s. 20(1) to subdivision and to a plan of subdivision were from a practical point of view references to the same thing, and I see nothing in the subsequent amendments to lead to the conclusion that in the intervening years 'subdivision' has acquired any different meaning. In my opinion, the Act put an end to 'do-it-yourself' subdivisions (196).

1. Section 2 of the Licensed Surveyors Act 1909 (WA) repealed the Twenty-seventh Schedule to the Transfer of Land Act to which Hale J referred. Section 2 of the Licensed Surveyors Act also repealed the part of s 166 of the Transfer of Land Act which required that a plan of subdivision deposited under s 166 be verified by a licensed surveyor in a statutory declaration in the form of the Twenty-seventh Schedule.
2. Later in his reasons, Hale J said that s 20(1)(a) was directed 'at subdivision (whatever that in truth means), and at contracts to sell (to be later completed by transfer)' (197).
3. Wickham J's views were as follows:

I do not attempt a definition of 'subdivide' as used in the section but I think it includes a physical idea, although used in a town planning context so as not necessarily to include the mere physical creation of divisions for the other purposes such as the making of farm paddocks and the like.

In my view, the literal meaning and effect of s. 20(1)(a) is that in the case of new development the developer requires two approvals, (1) an approval under s. 20(l)(a) to 'subdivide', i.e. to physically lay out the land in parcels with amenities of streets, roads or ways, and also (2) an approval under s. 2 to the plan of subdivision. An approval of a request to subdivide under s. 20 is a different approval from that of the plan under s. 2 which latter is the approval which creates the lots, although an approval of the latter may in practice carry the former a fortiori. As a consequence a developer could with approval subdivide under s. 20 but he still could not sell any of the land until statutory 'lots' had been created by the approval of the plan under s. 2. The approval to subdivide under s. 20 may be given subject to conditions which shall be carried out before the approval becomes effective. Section 24 (3) refers to the approval of the plan under s. 2 and this by contrast does not provide for any conditional approval but only for approval, rejection, or the fixing of conditions 'which shall be carried out by the owner before the plan is approved'. Nevertheless s. 20(4) contemplates a conditional approval of the plan where the condition relates to vesting of some of the land in the Crown and the same assumption is made in s. 20A which was introduced in 1962 (198 - 199).

1. It is apparent from the reasons of Hale J and the reasons of Wickham J in Lombardo that:

(a) Hale J thought that the word 'subdivide' in s 20(1)(a) did not relate to physical works on the ground. Rather, it related to the preparation of a plan of subdivision and the deposit of the plan at the Office of Titles. It was the plan which represented 'an effective subdivision' (196). Section 20(1)(a) put an end to 'do-it-yourself' subdivisions of that kind (196).

(b) Wickham J was of the view that the word 'subdivide' in s 20(1)(a) included a 'physical idea', although used in a town planning context so as not necessarily to include the mere physical creation of divisions for other purposes such as, for example, the making of farm paddocks and the like. A person carrying out a new development of alienated land required two approvals. First, an approval under s 20(1)(a) to 'subdivide'; that is, 'to physically lay out the land in parcels with amenities of streets, roads or ways' (198). Secondly, 'an approval under s 2 to the plan of subdivision' (198). His Honour's reference to an approval under s 2 was to the approval referred to in the definition of 'lot' in s 2. See [47](a) above.

1. In Landall Construction, Wickham J (Lavan SPJ agreeing) noted that the Original 1928 Act had been amended to remedy '[an] evil which affected the efficacy of the legislation', namely that the prohibition in s 20 of the TPD Act 'might in practice be circumvented by the granting of long leases or licences to occupy undivided land, including options to extend the terms, as well as long or indefinite options of purchase' (35). That 'evil' was remedied by amendments made in 1956, 1957 and 1958. The Full Court in Landall Construction overruled Glass and Reid Murray Developments and held that an agreement to sell land which is not at the date of the agreement in lots, and which is expressed to be subject to the approval of the Board to a plan of subdivision, does not infringe s 20.
2. In Boans Ltd v Kwinana Hub Shopping Centre,[12] Smith J referred with approval to Hale J's comment in Lombardo that the TPD Act put an end to 'do-it-yourself' subdivisions. Smith J added that, to that end, s 20 'prohibits the subdivision of land and certain dealings in land which, in practical terms, might have the same effect as a subdivision of land without the approval of the Board having been first obtained thereto' (44). His Honour's reference to certain dealings in land which, in practical terms, might have the same effect as a subdivision of land, was, no doubt, to other dealings which, by legislative amendment, had been included in the prohibition in s 20(1); for example, long-term leases or licences of part of a lot.
3. In Glentham Pty Ltd v City of Perth,[13] the Full Court (Burt CJ, Wallace & Brinsden JJ) held that a floor or level within a multi-storey building was 'land', as defined in s 2 of the TPD Act, and within the word 'land' as it appears in s 20. In other words, s 20 applied to horizontal subdivisions as well as vertical subdivisions of land. See also, to similar effect, the decision of the Full Court in Agaiby v Pantham Nominees Pty Ltd[14] and the reasons of Brinsden J in Ratto v Trifid Pty Ltd.[15]
4. In Agaiby, the appellants had agreed to purchase 12 flats being part of a proposed high-rise block of flats. When the contract was executed the approval of the Board had not been obtained. The Board's approval was obtained subsequently. The appellants contended that the Board's approval was necessary and the absence of that approval when the contract was executed rendered the contract illegal and void. The Full Court held that the contract was valid and enforceable. Burt CJ (Wallace J agreeing) made these comments in relation to the application of s 20 to horizontal subdivisions:

In my opinion a floor within a multistorey building is 'land' within the meaning of the Town Planning and Development Act. The subject matter of the contract when entered into can be described as future land. It did not then exist. But the subject matter of the contract was not simply part of the 'lot' which was the land upon which the building was to be erected. The subject matter was clearly twelve lots. A 'lot' is of course a legal idea. It is in such a case as this something which is created by the Strata Titles Act and it cannot be created without the approval of the Town Planning Board. I can see nothing in policy which would lead me to conclude that a contract to sell such a 'lot' whether as at the date of the contract the 'lot' was then in existence or not should require the approval of the Town Planning Board and I do not think that s 20(1) of the Town Planning and Development Act requires that it be so held (407).

1. A transaction or dealing falling within s 20(1)(a) of the TPD Act, if entered into without the approval of the Board, was illegal, void and unenforceable. See Stone James & Co v Investment Holdings Pty Ltd.[16]
2. In Palamore, the plaintiff and the defendant were the registered proprietors as tenants in common of undivided half shares in the whole of a lot. By a deed, each party granted to the other a right of 'exclusive use, occupation and control' of one half of the property. Each party had a house on that half of the property to which he or she had the right of exclusive use, occupation and control. The deed was expressed to continue in effect until such time, if ever, as a formal subdivision was approved. By cl 9 of the deed, both parties agreed to use their best endeavours to apply for and obtain 'the necessary approval and consent to the subdivision of the land substantially in the way which would coincide with their respective interests under the deed' (6). Clause 10 provided that if or when the subdivisional plan referred to in cl 9 or a substantially similar plan 'shall be duly approved and registered and the lots are capable of transfer as each the subject of a registerable Certificate of Title then each party shall surrender its undivided share or shares in the property and take in lieu thereof a transfer of the lot hereinbefore appropriated to that party' as the registered proprietor of that lot.
3. Murray J held in Palamore that the deed operated 'by the creation of mutual tenancies rather than corresponding licences to occupy' (7). The deed did not enable the term of the tenancy to be ascertained and the deed did not have 'any indicia of' periodic tenancies and, accordingly, tenancies at will were to be implied (8). It followed, in his Honour's view, that the tenancies could be determined without notice at any time by either party (8). However, 'subject to some act or process of termination, [the tenancies] would appear to continue indefinitely' (9).
4. Murray J decided that the deed did not infringe s 20 of the TPD Act. His Honour cited Caltex Properties Ltd (in liq) v Love[17] in which Parker J decided that a licence of part of a lot for an indefinite period of time did not infringe s 20 of the TPD Act because the ordinary meaning of the word 'term', within the phrase 'grant a licence to use or occupy land for any term exceeding 10 years' in s 20(1)(a), is a period of time having definite limits (28 - 29). Murray J agreed with Parker J's reasoning and said that 'the policy of [s 20] appears to be to catch transactions by way of lease or licence where there is a degree of relative permanency, exceeding the period of 10 years, which the transaction can be seen to assure at the outset, subject only to earlier determination under the terms of the lease or licence' (11). That 'degree of relative permanency' did not exist in the case of 'a periodic tenancy, a tenancy at will, or a bare licence terminable at any time or upon reasonable notice' (11). His Honour added that the view he had expressed was 'consistent with the fact that the other transactions affected by [s 20] are the grant or conveyance of a street or the like, the sale of land, the grant of an option to purchase land or the subdivision of land' (11 - 12).
5. In Palamore, Murray J referred indirectly to the reasons of Hale J in Lombardo and directly to the reasons of Smith J in Boans in relation to the concept of 'subdivision' in s 20 of the TPD Act. Murray J then made the comments cited by the Master in the present case which I have reproduced at [16] above.
6. The reasoning of Murray J in Palamore in relation to the concept of 'subdivision' in s 20 of the TPD Act was approved and applied by Scott J in Cobanov v Cobanov.[18]
7. In Cobanov, the plaintiff and the defendant were father and son respectively. The plaintiff was the registered proprietor of a parcel of land. The plaintiff and the defendant executed a contract under which the plaintiff sold an undivided share in the land to the defendant. The sale was completed and a transfer registered. The plaintiff and the defendant became the registered proprietors as tenants in common in specified shares. A clause in the contract provided that each of the plaintiff and the defendant was to have the 'use and occupation' of identified parts of the parcel of land to the exclusion of the other. No steps were taken to effect a subdivision of the land. Scott J rejected the plaintiff's contention that the contract purported to effect 'a de facto subdivision of the land' and was, to that extent, invalid, because the subdivision was effected without the approval of the Commission. His Honour said:[19]

The parties in this case have agreed to own the land as tenants in common in their respective shares and the title reflects their agreement in that respect. They have also agreed that each will have exclusive occupation of, and the right to farm, a designated portion of the land. There is nothing, in my opinion, in such an arrangement which can be said to contravene s 20(1)(a) of the Town Planning Act. In my view, there is no de facto subdivision, nor any intention to subdivide. The agreement does no more than grant a right to each of the parties to occupation of a portion of the land to the exclusion of the other. In the meantime, and unless and until a subdivision is effected, the parties are, and remain, tenants in common of the land in their respective shares.

1. In Riverwest, a testator, by her will, purported to devise portions of lot 366, Horsley Road, Denmark. An issue in the proceedings concerned the validity of those devises; in particular, whether by her will the deceased could validly transmit interests in portions of lot 366 to particular beneficiaries when none of the portions comprised a 'lot' (as defined in s 2 of the TPD Act) and, immediately before her death, subdivision of lot 366 was not possible without the prior approval of the Commission (pursuant to s 20(1)(a) of the TPD Act) and that approval had not been sought or obtained.
2. Barker J held in Riverwest that the prohibition in s 20(1) against a person subdividing a lot without the Commission's approval was 'capable of applying both to an inter vivos and [a] testamentary disposition' [109]. The question in Riverwest was whether the purported devises of portions of lot 366 infringed the prohibition in s 20(1) against subdividing a lot without the Commission's approval. His Honour held that the purported devises infringed s 20(1) and that consequently the dispositions were illegal and void. His Honour's reasoning was cited by the Master in the present case. See the passage which I have reproduced at [17] above.
3. In Bakranich, a testator, by his will, purported to devise separate portions of an existing lot to his trustee upon trust for the second and third defendants respectively, for their sole use and benefit absolutely. The plaintiffs sought a declaration that the devises were void as contrary to s 20(1)(a) of the TPD Act. The first defendant's primary contention was that the will did not 'lay out, grant or convey' or 'subdivide' or 'grant a licence to use or occupy' land within s 20(1)(a). The first defendant argued that those words were not apt to include a devise in a will.
4. Master Newnes held in Bakranich that he was not persuaded by the first defendant's submissions that Riverwest was wrongly decided. The Master followed Riverwest [41].
5. Master Newnes reasoned that, by making the devises, the testator had 'purported to dispose of the legal and beneficial interest in those different portions of the existing lot and [had] thereby purported to subdivide the lot within the meaning of [s 20(1)(a) of the TPD Act]' [43].
6. Master Newnes rejected the second and third defendants' contention that the will had created 'what counsel for those defendants described as an executory trust giving to the trustee a power to subdivide the existing lot so that the dwellings could lawfully be conveyed to the second and third defendant[s] respectively' [44]. The Master explained:[20]

The testator purported by his Will to devise immediate interests in specific portions of the land in favour of the second and third defendants and, if they attained the age of 25 years (as in fact occurred before the testator's death), interests to which they were immediately and absolutely entitled. There is nothing to suggest that it was the intention of the testator that a formal subdivision of the land be effected by the trustees in order to give effect to the gifts nor is there anything in the Will to suggest that the trustee was required or authorised to carry out a subdivision in order to do so.

1. In Walker v Clough Property Claremont Pty Ltd,[21] Martin CJ (Newnes & Murphy JJA agreeing) said that following the decision of the Full Court in Landall Construction 'there has not been any doubt that the controls placed upon the subdivision of land for the purposes of town planning do not constrain entry into contracts for the sale of portions of the land which is yet to be subdivided, provided that the contract is conditional upon the necessary approvals to the subdivision being obtained, and the creation of the "lot" or "lots" to be conveyed prior to their conveyance'. See also Love v Brien;[22] Love v Brien.[23]

Ground 1 of the appeal: the relevant provisions of the PD Act

1. The relevant provisions of the PD Act came into operation on 9 April 2006. By s 4 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), the TPD Act was repealed on that date.
2. The long title of the PD Act states that the PD Act is 'an Act to provide for a system of land use planning and development in the State and for related purposes'.
3. Section 3(1) specifies the purposes of the PD Act. By s 3(1)(b), those purposes include to 'provide for an efficient and effective land use planning system in the State'.
4. Section 4(1) contains numerous defined terms. Section 4(1) provides, relevantly, that in the PD Act, unless the contrary intention appears:

Authority means the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5;

...

Commission means the Western Australian Planning Commission established by section 7;

...

land includes -

(a) land, tenements and hereditaments; and

(b) any interest in land, tenements and hereditaments; and

(c) houses, buildings, and other works and structures;

...

lot means a defined portion of land -

(a) depicted on a plan or diagram available from, or deposited with, the Authority and for which a separate Crown grant or certificate of title has been or can be issued; or

(b) depicted on a diagram or plan of survey of a subdivision approved by the Commission; or

(c) which is the whole of the land the subject of -

(i) a Crown grant issued under the Land Act 1933; or

(ii) a certificate of title registered under the Transfer of Land Act 1893; or

(iii) a survey into a location or lot under section 27(2) of the Land Administration Act 1997 or a certificate of Crown land title the subject of such a survey; or

(iv) a part-lot shown on a diagram or plan of survey of a subdivision deposited with the Authority; or

(v) a conveyance registered under the Registration of Deeds Act 1856,

but does not include a lot in relation to a strata scheme, a lot in relation to a survey-strata scheme, or a lot shown as common property on a survey-strata plan, as those terms are defined in the Strata Titles Act 1985;

...

road means a public thoroughfare for vehicles (as defined in the Road Traffic (Administration) Act 2008 section 4) or pedestrians, and includes structures or other things appurtenant to the road that are within its limits, and a thoroughfare is not prevented from being a road only because it is not open at each end;

...

subdivision includes amalgamation.

1. Part 10 is headed 'Subdivision and development control', and comprises s 133 to s 170. Division 2 of pt 10 is headed 'Approval for subdivision and certain transactions', and comprises s 135 to s 147. Division 3 of pt 10 is headed 'Conditions of subdivision', and comprises s 148 to s 157. Division 4 of pt 10 is headed 'Subdivision costs', and comprises s 158 to s 161.
2. Section 135 prohibits the subdivision of any lot, the amalgamation of any lot with any other lot, and the laying out, granting or conveying of a road, without the approval of the Commission, as follows:

(a) subdivide any lot; or

(b) amalgamate any lot with any other lot, whether within the same district or otherwise; or

(c) lay out, grant or convey a road,

(2) A person who contravenes subsection (1) commits an offence.

(3) In this section -

road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).

1. Section 136 prohibits some dealings in land other than as a lot or lots without the approval of the Commission. Section 136 provides, relevantly:

(1) Subject to sections 139 and 140 a person is not to -

(a) lease or grant a licence to use or occupy land for any term exceeding 20 years, including any option to extend or renew the term or period; or

(b) lease and grant a licence to use or occupy land for terms in the aggregate exceeding 20 years, including any option to renew or extend the terms or periods; or

(c) sell or agree to sell land; or

(d) grant any option of purchase of land,

without the approval of the Commission unless the land is dealt with by way of such lease, licence, agreement or option of purchase as a lot or lots.

(2) A person who contravenes subsection (1) commits an offence.

1. Section 137 relates to an application for the approval of the Commission under s 135 or s 136 in respect of land to which s 78 of the Heritage of Western Australia Act 1990 (WA) applies.
2. Section 138 is concerned with the Commission's functions when considering an application for its approval under s 135 or s 136. Section 138 provides:

(1) The Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before the approval becomes effective.

(2) Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.

(3) The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if -

(a) the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter; or

(b) the approval is consistent with a region planning scheme that deals with substantially the same matter; or

(c) in the opinion of the Commission -

(i) the conflict is of a minor nature; or

(ii) the approval is consistent with the general intent of the local planning scheme;

or

(d) the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict; or

(e) in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or

(f) the approval is given in circumstances set out in the regulations.

(4) Despite subsection (3), the Commission is to ensure that an approval under section 135 or 136 complies with the provisions of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land under consideration.

1. Section 139 states that a person may, without the approval of the Commission, lease or grant a licence to use or occupy land for a term of any duration and otherwise than as a lot or lots if that lease or licence belongs to a specified class or complies with specified conditions.
2. Section 140 contains a saving provision with respect to some agreements entered into without approval under s 136. It is sufficient, for present purposes, to reproduce subsections (1) and (2) of s 140:

(1) Where an agreement to sell or grant an option to purchase, or to lease or grant or lease and grant a licence to use or occupy any portion of a lot has been entered into without the approval of the Commission having been first obtained as required under this Division, that agreement is to be taken not to have been entered into in contravention of this Division if -

(a) the agreement is entered into subject to the approval of the Commission being obtained; and

(b) an application for the approval of the Commission is made within a period of 3 months after the date of the agreement.

(2) Nothing in this Division renders the agreement illegal or void by reason only that the agreement was entered into before the approval of the Commission was obtained.

1. Section 142 requires the Commission in certain circumstances to consult with local governments, public authorities and utility service providers in relation to a plan of subdivision which the Commission is considering. Section 142 provides, relevantly:

(1) When, in the opinion of the Commission, a plan of subdivision may affect the functions of a local government, a public authority, or a utility services provider, the Commission is to forward the plan or a copy of the plan to that local government, public authority or utility services provider for objections and recommendations.

(2) A local government, public body or utility services provider receiving such a plan or copy is to, within 42 days of receipt of the plan or copy or within such longer period as the Commission allows, forward it to the Commission with -

(a) a memorandum in writing containing any objections to, or recommendations in respect of, the whole or part of that plan; and

(b) in the case of a local government receiving a plan or copy relating to land within the area to which an assessed scheme (as defined in the [Environmental Protection Act 1986 (WA)]) applies, advice of any relevant environmental condition to which the assessed scheme is subject.

1. Section 143(1) provides that, after considering any objections or recommendations forwarded to the Commission under s 142, and any advice of a relevant environmental condition forwarded to it under s 142, the Commission is to:

(c) approve the plan of subdivision and require the applicant for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of survey will be endorsed with the approval of the Commission.

1. Section 145 is concerned with the approval of a diagram or plan of survey of an approved plan of subdivision. Section 145 provides, relevantly:

(1) A person to whom approval of a plan of subdivision has been given may, within the prescribed period -

(a) submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and

(b) request the Commission to approve the diagram or plan of survey of the subdivision.

...

(4) ... if the Commission is satisfied that -

(a) the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and

(b) if that approval was given subject to conditions -

(i) the conditions have been complied with or will be complied with at the time a certificate of title is created or registered; or

(ii) in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage of subdivision or the subdivision as a whole, have been complied with or will be complied with at the time a certificate of title is created or registered,

the Commission is to endorse its approval on the diagram or plan of survey.

1. Section 146 states that the Registrar of Titles is not to create or register a certificate of title for land the subject of a plan of subdivision unless the Commission has endorsed its approval on a diagram or plan of survey of the subdivision of that land. Section 146 provides, relevantly:

(1) The Registrar of Titles is not to create or register a certificate of title under the Transfer of Land Act 1893 for land the subject of a plan of subdivision unless a diagram or plan of survey of the subdivision of that land has been endorsed with the approval of the Commission and ...

...

(3) A plan containing one lot only is deemed a diagram or plan of survey of a subdivision provided that it is a portion of land comprised in -

(a) a certificate of title; or

(b) a registered conveyance; or

(c) a Crown grant; or

(d) a lot on a plan deposited with the Authority.

1. Section 147 prohibits the Registrar of Titles from registering specified land dealings unless the prior written approval of the Commission has been obtained or certain other conditions have been satisfied. Section 147 provides:

(1) The Registrar of Titles is not to register a transfer, conveyance, lease or mortgage of any land unless -

(a) it has first been approved in writing by the Commission; or

(b) the land comprises the whole of one or more lots, or the land comprises part of a lot included in a diagram or plan of survey of subdivision that has been approved by the Commission; or

(c) in the case of a lease, the lease does not contain or purport to contain an option to purchase land other than the whole of one or more lots and -

(i) the term is not more than 20 years, including any option to extend or renew the term; or

(ii) section 136(1) does not apply to the lease by virtue of the definition of land in section 136; or

(iii) the lease is a lease which may be entered into without the approval of the Commission by virtue of section 139(1).

(2) The Registrar of Titles is not to create and register in the name of a registered proprietor a certificate of title for a portion of land, not being the whole of one or more lots, unless the application from the registered proprietor for the certificate of title has been endorsed with the approval of the Commission.

1. Section 148 authorises the Commission, without limiting s 143, to impose a condition under s 143 that requires:

(a) development to be integrated with 'the subdivision of the lot' as specified by the Commission where, in the Commission's opinion, such integration is necessary because of 'the size of the lots and potential impact on the amenity of the locality'; and

(b) development approval for building on the lot 'to be granted before the diagram or plan of survey of the subdivision will be endorsed with the approval of the Commission'.

1. Sections 150 to 157 contain other provisions with respect to the imposition by the Commission of conditions upon the Commission's approval of a plan of subdivision or conditions which must be complied with before the Commission will endorse its approval on a diagram or plan of survey.
2. Sections 158 to 161 are concerned with the costs of subdividing land and who is to bear those costs. For example, s 158(1) provides:

Where a person who is subdividing land is required under this Part to construct and drain roads or construct artificial waterways shown on the plan of subdivision that person may -

(a) carry out or cause to be carried out the construction and drainage at his or her own expense; or

(b) arrange for the local government to carry out the work on behalf, and at the cost and expense, of that person.

1. Section 165 applies where the Commission considers it desirable that owners or prospective owners of land comprised in:

(a) a plan of subdivision or proposed plan of subdivision; or

(b) a strata/survey-strata plan or proposed strata/survey-strata plan under the Strata Titles Act 1985 (WA),

be made aware of hazards or other factors seriously affecting the use or enjoyment of that land and determines that the title and land register in respect of that land should be noted accordingly.

1. By s 165(2), when s 165 applies, the Commission may cause a notification of the hazard or other factor affecting the use or enjoyment of the land to be prepared in a form acceptable to the Registrar of Titles and deposited with the Authority. By s 165(3), where a notification is deposited under s 165(2), the Registrar of Titles is to endorse or note the title and land register in respect of the land with that notification.
2. Section 166 is concerned with the approval by the Commission of a subdivision where a building erected on land the property of one owner encroaches upon land the property of another owner. Section 166 provides:

If, after the erection of a building on land the property of one owner -

(a) it is found that the building encroaches upon land the property of another owner to the extent of not more than one metre; and

(b) the encroaching owner desires to purchase the land upon which the encroachment stands; and

(c) an application for approval of the necessary subdivision is made by the owner of the land encroached upon; and

(d) the Commission is satisfied that there has not been collusion and that everything has been done in good faith without intention to evade the law,

the Commission is to approve of the necessary subdivision.

1. Section 167 is concerned with the creation of certain easements on land the subject of a diagram or plan of survey of a subdivision or on land the subject of a plan lodged for registration under the Strata Titles Act in favour of local governments and certain providers of utility services.
2. Section 168 is concerned with the creation, care, control and management of certain roads on land the subject of a diagram or plan of survey of a subdivision or on land the subject of a plan lodged for registration under the Strata Titles Act. Section 169 and s 170 contain related provisions with respect to, amongst other things, minimum standards of construction for roads and artificial waterways to be constructed on land the subject of a proposed subdivision.

Ground 1 of the appeal: counsel for the appellants' submissions

1. Counsel for the appellants submitted that a gift of part of a lot (whether by will or otherwise) was not (and is not) to 'subdivide' the lot, contrary to s 20(1)(a) of the TPD Act (now s 135(1)(a) of the PD Act).
2. Counsel argued that:

(a) It is apparent from the relevant provisions of both the TPD Act and the PD Act that the word 'subdivide' relates to a plan of subdivision and the creation of new lots with new certificates of title.

(b) Section 20(1)(a) prohibited (and s 135(1)(a) prohibits) not only the subdivision of a lot, but also the amalgamation of a lot with any other lot, and amalgamation was (and is) defined to be an aspect of subdivision. 'Amalgamation' carries with it the concept of the creation of a new certificate of title to replace existing certificates of title for more than one lot.

(c) The limitations sought to be imposed upon rights of alienation or dealing with private property by s 20(1)(a) (and now s 135(1)(a)) should be confined to the precise limits set by the language of the statute. The prohibitions did not (and do not) include gifting part of a lot, whether by will or otherwise.

(d) It is inherent in the existence of express prohibitions on certain specified dealings in s 20(1)(a) (and now s 136(1)) that those dealings were (and are) not caught by the prohibition on 'subdivision' in s 20(1)(a) (now s 135(1)(a)). That is, the separate express prohibition on 'subdivision' was (and is) directed to something other than dealings in land, those dealings being subject to their own express (but limited) prohibitions.

(e) If gifting part of a lot was (or is) to 'subdivide' the lot, then so was (and is) selling or leasing it. That is, the specific prohibitions on leasing or licensing part of a lot for more than 10 years (now 20 years) or selling part of a lot would be redundant.

(f) A contravention of s 20(1)(a) of the TPD Act was an offence. So is a contravention of s 135(1)(a) of the PD Act. The creation of an offence by s 20(1)(a) and by s 135(1)(a) is a relevant contextual consideration which weighs against an expansive construction of the provisions.

(g) Neither the reasons of Hale J nor those of Wickham J in Lombardo support the view that to gift part of a lot (whether by will or otherwise) would have constituted 'subdividing' the lot within s 20(1)(a) of the TPD Act. The relevant context, as explained by Hale J, demonstrates that the prohibition on 'subdividing' a lot in s 20(1)(a) was directed at preventing subdivisions of land (described by his Honour as 'do-it-yourself' subdivisions) by the preparation and deposit of a plan of subdivision. That is, the prohibition on 'subdividing' a lot was directed at preventing the obtaining of separate certificates of title without the approval of the Board.

1. It was contended that, in the present case, the gift of part of the relevant lot by the will does not purport to do anything of the kind referred to by Wickham J in Lombardo, namely physically laying out the land in parcels with amenities of streets, roads or ways.
2. Counsel argued that, at the very least, the observations in Lombardo indicate that the reference to 'subdivide' in s 20(1)(a) was ambiguous and, consequently, the word ought not to be construed expansively.
3. It was contended that the PD Act is a consolidating statute and that s 135 (combined with s 136) is intended to 'reflect' s 20 of the TPD Act. Accordingly, so it was contended, the reference to 'subdivide any lot' in s 135(1)(a) does not have a more expansive meaning than those words had in s 20(1)(a).
4. Counsel for the appellants submitted that:

(a) In the present case, the gifts by the Deceased of the unsubdivided parts of 40 Benara Road, Caversham were valid.

(b) The Deceased's executor holds the lot on trust for the beneficiaries as to their respective parts of the land.

(c) Each beneficiary is entitled to occupy and use his or her part of the land. For example, there would be no prohibition on erecting a physical barrier between the parts. Further, each beneficiary is entitled to deal with his or her equitable interest in the land by way of gift.

(d) The Deceased's executor has power to subdivide the lot either to give effect to (in the sense of conveying a legal interest in) the gifts under the will or otherwise with the consent or at the direction of the beneficiaries.

1. Accordingly, so it was submitted, the Master was in error in deciding that cl 4 of the will contravened s 135(1)(a) of the PD Act. The Master should have held that cl 4 was valid.

Ground 1 of the appeal: counsel for the sixth respondent's submissions

1. Counsel for the sixth respondent submitted that the word 'subdivide', in s 20 of the TPD Act, had its ordinary meaning.
2. It was contended that the ordinary meaning of 'subdivide', in relation to land, is broad enough to include a physical division of a lot or the making of a contract or dispositive instrument conferring a right separately to occupy part of a lot.
3. Counsel argued that neither Hale J nor Wickham J in Lombardo attempted authoritatively to construe the word 'subdivide' in s 20.
4. It was submitted that the legislative history of s 20, as explained by Wickham J in Landall Construction (34 - 37) and by Smith J in Boans (44 - 47), reflected a reactive approach by Parliament to attempts to circumvent the operation of s 20(1) and to the interpretation of the provision from time to time by the courts. For that reason, the amendments made to s 20 do not assist in construing the word 'subdivide' as it appears in s 20. The amendments reflect a refinement of the express prohibitions in s 20 rather than a restriction on the ordinary meaning of the word 'subdivide'.
5. It was submitted that, as Smith J noted in Boans (44), the policy underpinning s 20 was to control individual activity in the subdivision of land.
6. Counsel argued that the construction of 'subdivide' in each of Palamore, Riverwest and Bakranich gave effect both to the ordinary meaning of 'subdivide' and to the policy underpinning s 20.
7. Counsel asserted, in his written submissions, that the phrase 'subdivide any lot', in s 135(1)(a) of the PD Act, should be construed as preventing 'any physical or other act which has or is intended to have the practical effect of creating out of an existing lot two or more smaller defined portions of land', in accordance with the decisions in Riverwest and Bakranich.
8. Counsel asserted, in his oral submissions, that the phrase 'subdivide any lot', in s 135(1)(a), includes creating a proprietary interest in a part of the lot (appeal ts 49). Counsel also asserted, in his oral submissions, that s 135(1)(a) has a broad connotation which encompasses all of the dealings prohibited in s 136(1) of the PD Act (appeal ts 48 - 49).
9. It was contended that the explanatory memorandum to the PD Act supports the conclusion that the policy of the PD Act is unchanged from that of the TPD Act, namely the control of individual activity in the use of land. Also, the explanatory memorandum indicates that s 135 and s 136 were not intended to alter, but only to clarify, the position as it existed under the TPD Act.
10. Accordingly, so it was submitted, the construction of s 135 advanced by the appellants should be rejected.

1. The general principles of statutory construction were summarised by this court in Director General of Department of Transport v McKenzie.[24] It is unnecessary to repeat the summary. I merely note the following.
2. The focus of statutory construction is on the text, context and purpose of the provision.
3. In SZTAL v Minister for Immigration and Border Protection,[25] Kiefel CJ, Nettle and Gordon JJ said:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] - [71]; [1998] HCA 28; 72 ALJR 841; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 37 at [47]; [2009] HCA 41; 83 ALJR 1152). Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; 71 ALJR 312). This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

1. At common law (that is, independently of s 19 of the Interpretation Act 1984 (WA)), this court is permitted, in construing a statutory provision, to have regard to the words used by Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. The context includes reference to the legislative history of the provision. See CIC Insurance Ltd v Bankstown Football Club Ltd;[26] Newcastle City Council v GIO General Ltd.[27]
2. Consideration of the legislative history of a provision, and especially the provision's predecessors, often illuminates the most appropriate meaning to be attributed to the provision, especially where its meaning appears to be equivocal. See Western Australian Planning Commission v Southregal Pty Ltd.[28]
3. However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd;[29] Alphapharm Pty Ltd v H Lundbeck A/S.[30]
4. In Taylor v The Owners - Strata Plan No 11564,[31] Gageler and Keane JJ observed that statutory construction involves the attribution of legal meaning to the statutory text, read in context. Their Honours added:

The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

In Taylor, Gageler and Keane JJ dissented in the result, but there is, with respect, no reason to doubt the correctness of those observations.

1. The function of a definition in a statute is not, except in rare cases, to enact substantive law. Rather, its function is to provide aid in construing the substantive enactment that contains the defined term. The meaning of the definition depends on the context, and the purpose or object, of the substantive enactment. See Kelly v The Queen;[32] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd.[33]
2. I will begin my examination of the merits of ground 1 of the appeal by construing s 20 of the Original 1928 Act.
3. Prior to the Original 1928 Act coming into operation:

(a) Section 155(1) of the Road Districts Act required that whenever a person, 'who is the owner of rateable land in a [road district], subdivides the same into allotments for sale, he shall forthwith give notice in writing, accompanied with a plan of subdivision', to the Board of the Road District.

(b) Section 155(4) provided that, relevantly, 'no plan of any such subdivision shall be received, registered, or deposited in the Office of Titles or Registry of Deeds, or any other public office for the registration and the depositing of such plans, whether constituted under the Transfer of Land Act, 1893, or otherwise, unless such plan shall have been first approved of by the Board [of the Road District], and such Board may affix such conditions to the granting of such approval as it shall think fit'.

(c) Section 155(6) provided that '[n]o transfer, conveyance, or lease of any piece of land containing less than half an acre in area, unless it comprises the whole of one or more lots shown on a plan registered or deposited as aforesaid, or comprises the whole of the land the subject of a Crown grant, certificate of title or conveyance, shall be received or registered in the Office of Titles or Registry of Deeds unless such transfer, conveyance or lease shall have been first approved by the Board'.

(d) Section 155(9) provided, relevantly, that '[n]o person shall sell or dispose of or offer for sale land set out after the commencement of this Act in allotments on a subdivisional plan which has not been submitted to and approved by the Board of the district in which the land is situated'.

(e) Section 155(11) provided that '[i]f any person contravenes, by act or omission, any provisions of this section, he shall be guilty of an offence against this Act, and liable to a penalty not exceeding fifty pounds'.

(f) Section 156(1) of the Road Districts Act provided that '[a]llotments shown on any such subdivisional plan as aforesaid shall not, without the consent of the Board of the district, be further subdivided, and no person shall, without such consent, sell or transfer or buy or acquire a portion only of any such allotment'. A penalty of five pounds was stipulated.

(g) The words 'subdivides', 'subdivided', 'subdivision' and 'plan of subdivision' in s 155 and s 156 were not defined in the Road Districts Act.

1. Prior to the Original 1928 Act coming into operation:

(a) Section 497(1) of the Municipal Corporations Act provided that whenever a person, 'who is the owner of rateable land within a municipal district, subdivides the same for sale he shall forthwith give notice in writing, accompanied with a plan of subdivision, to the town clerk'.

(b) Section 497(2) provided that, relevantly, '[e]very allotment of a subdivision of any land within a municipal district shall front on a street not less than sixty-six feet in width, and shall not abut on any way of a lesser width than sixteen and a half feet, or on any private way of a lesser width than ten feet'.

(c) Section 497(3) provided that, relevantly, 'no plan of subdivision of any land within a municipal district shall be received, registered, or deposited in the Office of Titles or Registry of Deeds, or any other public office for the registration and depositing of such plans, whether constituted under the Transfer of Land Act, 1893, or otherwise, unless such plan shall have been first approved of by the council [of the municipality], and such council may affix such conditions to the granting of such approval as it shall think fit'.

(d) Section 497(5) provided that '[a]ny person who fails to comply with subsection one of this section shall be liable to a penalty not exceeding fifty pounds'.

(e) The words 'subdivides', 'subdivision' and 'plan of subdivision' in s 497 were not defined in the Municipal Corporations Act.

1. Section 29 of the Original 1928 Act repealed, relevantly, subsections (2), (4), (6) and (9) of s 155 and, also, s 156 of the Road Districts Act. Section 29 also repealed, relevantly, s 497 of the Municipal Corporations Act.
2. Prior to the enactment of the Original 1928 Act and when the Original 1928 Act came into operation, Pt VIII of the Transfer of Land Act was headed 'Surveys Plans Parcels and Boundaries', and comprised s 151 to s 169. Section 153A and s 167A were introduced later by the Transfer of Land Amendment Act 1950 (WA).
3. Prior to the enactment of the Original 1928 Act and when the Original 1928 Act came into operation, s 166 and s167 of the Transfer of Land Act provided:

166. Any proprietor subdividing any land under the operation of this Act for the purpose of selling the same in allotments shall deposit with the Registrar a map of such land if so required. Such map shall exhibit distinctly delineated all roads streets passages thoroughfares squares or reserves appropriated or set apart for the use of the purchasers and all permanent drains and also all allotments into which the said land may be divided marked with distinct numbers or symbols and shall also show the areas and shall comply in every respect with the Rules and Regulations for the time being for the guidance of surveyors when practising under this Act. In case a portion only of the land comprised in any certificate be subdivided the existing certificate shall be cancelled to the extent of such portion and a fresh certificate shall be issued for the same.

167. After the subdivision of land and deposit of plan under the last preceding section of this Act the numbers of the allotments marked upon such plan may be used as sufficient description of the land for the purpose of dealings with any one or more of such allotments on the sale thereof according to such plan of subdivision and on any subsequent dealings comprising the whole of one or more allotment or allotments.

1. Prior to the enactment of the Original 1928 Act and when the Original 1928 Act came into operation, s 59 of the Transfer of Land Act provided, relevantly, that the proprietor of land under the operation of the Transfer of Land Act 'shall be entitled to receive a certificate of title to the same'.
2. So, prior to the Original 1928 Act coming into operation, an effective subdivision of land, ready for sale in lots, could be effected pursuant to s 166 and s 167 of the Transfer of Land Act by the deposit at the Office of Titles of a plan of subdivision, if so required. However, a proprietor of land was prohibited from depositing any such plan of subdivision at the Office of Titles unless the plan had been approved under s 155(4) of the Road Districts Act or s 497(3) of the Municipal Corporations Act, as applicable. Section 155 and s 156 of the Road Districts Act also regulated, amongst other things, various dealings with land that did not comprise the whole of one or more lots shown on a plan of subdivision registered or deposited in the Office of Titles or Registry of Deeds.
3. Prior to the Original 1928 Act coming into operation, the subdivision of land alienated from the Crown was regulated in Western Australia by local government authorities. After the Original 1928 Act came into operation, the subdivision of land alienated from the Crown was regulated in Western Australia by the instrumentality created by s 4 of the Original 1928 Act, namely the Board. Regulation of the subdivision of land is an ordinary and integral aspect of planning policy. An apparent purpose or object of the Original 1928 Act, as revealed by the text and scheme of pt III of the Original 1928 Act, and the text and scheme of the relevant provisions of the Road Districts Act and the Municipal Corporations Act that were repealed by s 29 of the Original 1928 Act, was to vest regulatory authority in relation to the subdivision of land alienated from the Crown in one instrumentality, that is, the Board.
4. In the present case, the legislative history of pt III of the Original 1928 Act, and especially the predecessors of s 20 and s 21 of the Original 1928 Act that were embodied in s 155 and s 156 of the Road Districts Act and s 497 of the Municipal Corporations Act, clarify the meaning to be ascribed to the word 'subdivide', within the phrase 'subdivide ... land as lots', in s 20(1) of the Original 1928 Act.
5. Where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly. See Sweeney v Fitzhardinge;[34] R v Wheeldon [No 1];[35] Commissioner of Stamp Duties v Permanent Trustee Co Ltd;[36] Le Blanc v Queensland TAB Ltd;[37] Southside Autos (1981) Pty Ltd v Commissioner of State Revenue.[38]
6. In my opinion, the provisions of pt III of the Original 1928 Act and s 59, s 166 and s 167 of the Transfer of Land Act (as in force when the Original 1928 Act came into operation) comprised an overlapping legislative scheme in relation to, relevantly, the subdivision as lots of land alienated from the Crown.
7. It is convenient to reproduce s 20(1) and s 20(2) of the Original 1928 Act.
8. By s 20(1):

No person shall lay out, grant or convey a street, road, or way, or subdivide or sell land as lots, until a plan of subdivision has been approved by the Board.

1. By s 20(2), '[a] plan of subdivision of any land shall not be received, registered, or deposited in the Office of Titles or Registry of Deeds or any other public office for the registration and depositing of such plans, whether constituted under the Transfer of Land Act, 1893, or otherwise, unless such plan shall have been first approved by the Board'.
2. Section 20(1) and s 20(2) were complementary in that:

(a) section 20(1) prohibited a person from undertaking any of the activities referred to in that provision unless a plan of subdivision had been approved by the Board; and

(b) section 20(2) prohibited the receipt, registration or deposit of a plan of subdivision of any land in the Office of Titles or Registry of Deeds or any other public office for the registration and depositing of such plan, unless such plan had been first approved by the Board.

Section 20(1) was directed at the person proposing to undertake any of the specified activities whereas s 20(2) was directed at public offices and registers.

1. As I have mentioned, the word 'subdivide' in s 20(1) was not defined in the Original 1928 Act.
2. 'Subdivide' is not a technical legal term or a term of art. Its ordinary meaning is 'to divide (a part, or an already divided whole) into smaller parts'.[39] However, the meaning of 'subdivide' may be shaped by or take colour from the context in which it is used. As Smith J observed in Re Nelson and Tammer's Contract,[40] the word 'subdivide', when used in relation to land, 'is most commonly applied to cases in which vacant land is divided into lots and sold for building purposes', but the word is not confined to such cases and it is capable of a much wider application.
3. The word 'subdivide' within the phrase 'subdivide ... land as lots', in s 20(1), was used in the context of a specific prohibition against subdividing a parcel of land, until a plan of subdivision had been approved by the Board. The word 'subdivide' was also used in s 20(1) in the context of a more extensive prohibition against laying out, granting or conveying a street, road or way or subdividing or selling land as lots until, in relation to the relevant activities in the particular case, a plan of subdivision had been approved by the Board. The specific prohibition and the more extensive prohibition were an expression of a legislative policy 'relating to the Planning and Development of Land for Urban, Suburban, and Rural purposes'.[41] The apparent purpose or object of s 20(1) was to confer on the Board the power to control the subdivision of land into lots and, also, the other activities referred to in s 20(1), to ensure that parcels of land were developed in accordance with orderly and proper planning principles. That purpose or object is apparent from the text and scheme of pt III and, also, from the extensive references in s 8(1) read with the First Schedule and in s 30(1) read with the Second Schedule to, amongst other things, subdivisions of land and the making or alteration of streets, roads and rights-of-way as matters which may be dealt with by town planning schemes or by uniform general by-laws or separate sets of general by-laws.
4. The activities prohibited by s 20(1) were, as a whole, ordinarily associated with the development of a large parcel of land by the creation of allotments for residential or commercial building purposes, the making of streets, roads or ways, and the setting aside of areas for public open space, amenities and utilities. However, the prohibition applied to each of the activities referred to in s 20(1).
5. 'Subdivide' within the phrase 'subdivide ... land as lots', in s 20(1), connoted the division or redivision of a parcel of land into two or more smaller parcels by changing the dimensions or boundaries of the larger parcel. That meaning was consistent with the contemplation in s 20(1) that all of the activities to which it referred were capable of depiction on a plan of subdivision to be submitted to the Board for its approval.
6. Although the word 'subdivide' within the phrase 'subdivide ... land as lots', in s 20(1), connoted the division or redivision of a parcel of land into two or more smaller parcels by changing the dimensions or boundaries of the larger parcel:

(a) the word 'plan' within the expression 'plan of subdivision', in s 20(1), referred to a diagrammatic representation of the relevant activity or activities specified in s 20(1) as proposed to be implemented; and

(b) the word 'subdivision' within the expression 'plan of subdivision', in s 20(1), referred to the proposal form of the land after its development by the implementation of the relevant activity or activities.

1. Section 20(1) was not concerned with an intention to subdivide land as lots, but with actually subdividing land as lots.[42]
2. Actually subdividing land as lots involves a process, rather than a single act. Section 20(1) did not prohibit a step or steps in the process of subdividing land as lots. What s 20(1) prohibited was the actual subdivision of land as lots. It is necessary to identify when the process of subdividing land as lots was completed; that is, the point at which it could be said that a person had '[subdivided] ... land as lots'. It is at that point that the prohibition in s 20(1) would have been infringed and an offence would have been committed if a plan of subdivision had not been approved by the Board.
3. I consider that a person would not 'subdivide ... land as lots', within s 20(1), merely by creating a new proprietary interest in part of the land or by dealing with an existing proprietary interest in part of the land. That may, in a particular case, have been a step in the process of subdividing land as lots, but it did not of itself constitute '[subdividing] ... land as lots', within s 20(1). Section 20(1) stated that a person shall not 'grant, or convey a street, road, or way' or 'subdivide or sell land as lots'. The express and precise references to granting or conveying a street, road or way and to selling land as lots indicate that the prohibition in s 20(1) against creating or dealing with proprietary interests in part of the land was confined to activities answering those descriptions.
4. Also, I consider that a person would not 'subdivide ... land as lots', within s 20(1), merely by surveying and pegging portions of a parcel of land as lots. Again, that may, in a particular case, have been a step in the process of subdividing land as lots, but it did not of itself constitute '[subdividing] ... land as lots', within s 20(1). The surveying and pegging may have indicated an intention to subdivide portions of the parcel of land as lots but, as I have indicated, s 20(1) was concerned with actually subdividing land as lots and not with an intention to subdivide. The mere surveying and pegging of portions of a parcel of land as lots would not of itself be inconsistent with the apparent purpose or object of s 20(1), namely to confer on the Board the power to control the subdivision of land into lots and, also, the other activities referred to in s 20(1), to ensure that parcels of land were developed in accordance with orderly and proper planning principles.
5. Further, I consider that a person would not 'subdivide ... land as lots', within s 20(1), merely by constructing a physical barrier or other division (for example, a fence or a wall) on or across a parcel of land. Once again, that may, in a particular case, have been a step in the process of subdividing land as lots, but it did not of itself constitute '[subdividing] ... land as lots', within s 20(1). Also, once again, constructing a physical barrier or other division may have indicated an intention to subdivide but, as I have mentioned, s 20(1) was concerned with actually subdividing land as lots and not with an intention to subdivide. The mere construction of a physical barrier or other division on a parcel of land would not of itself be inconsistent with the apparent purpose or object of s 20(1).
6. In my opinion, the process of a person '[subdividing] ... land as lots', within s 20(1), was not completed until a plan of subdivision of the relevant parcel of land was prepared and the person sought to lodge the plan with or deposit the plan in the Office of Titles or Registry of Deeds. As I have mentioned, s 20(1) and s 20(2) were complementary. Section 20(1) was directed at the person proposing to undertake any of the specified activities whereas s 20(2) was directed at public offices and registers. Section 20(1) and s 20(2) had, as a purpose or object, the prohibition of an effective subdivision of land, ready for sale in lots, pursuant to s 166 and s 167 of the Transfer of Land Act, by the deposit at the Office of Titles of a plan of subdivision, unless the plan had been approved by the Board. The mischief to which s 20(1) read with s 20(2) was directed was, relevantly, 'do-it-yourself' subdivisions, pursuant to s 166 and s 167 of the Transfer of Land Act, whereby new certificates of title to the subdivided lots could be obtained and estates and interests in the subdivided lots could be created and dealt with under the Transfer of Land Act, without the approval of the Board to the subdivision having been obtained.
7. When a parcel of land was surveyed and pegged as lots, and a plan of the parcel of land (as surveyed and pegged) was prepared, and the plan was lodged with or deposited in the Office of Titles or Registry of Deeds, the parcel of land would have been effectively 'subdivided' within s 20(1). There would have been an effective 'subdivision' in fact in that the several lots could be inspected on the ground by reference to the survey pegs. There would have been an effective 'subdivision' in law in that the several lots could be separately described and dealt with, pursuant to s 166 and s 167 of the Transfer of Land Act, by reference to the plan.[43]
8. So, a person would not 'subdivide ... land as lots', within s 20(1), until he or she sought to lodge with or deposit in the Office of Titles or Registry of Deeds a plan of subdivision. At that point the process of the person subdividing the land as lots would have been completed. Nothing would remain which could be the subject of the specific prohibition against the person '[subdividing] ... land as lots', without the plan of subdivision having been approved by the Board, within s 20(1). The Registrar would issue new certificates of title to the subdivided lots and the proprietor of the lot who had lodged the plan of subdivision would be able to create and deal with estates and interests in the subdivided lots under the Transfer of Land Act.
9. Nothing in s 20(1) or any other provision of the Original 1928 Act prohibited a testator from devising part of a parcel of land by will. A devise by a testator of part of a parcel of land by will did not, of itself, constitute 'subdividing' the land as lots within s 20(1).
10. My construction of the word 'subdivide' within the phrase 'subdivide ... land as lots', in s 20(1), is consistent with the observations of Barwick CJ in NLS (587) that Parliament has selected and described the specific dealings which are prohibited by s 20 and that the limitations imposed upon rights of alienation or dealing with private property should be confined to the precise limits set by the language of the provision.
11. I turn now, in my examination of the merits of ground 1 of the appeal, to the proper construction of s 20 of the TPD Act immediately prior to 9 April 2006, when the TPD Act was repealed and replaced by the PD Act.
12. Immediately prior to 9 April 2006, the subdivision of land alienated from the Crown was regulated in Western Australia by the Commission, which had superseded the Board. Regulation of the subdivision of land continued to be an ordinary and integral aspect of planning policy. An apparent purpose or object of the TPD Act, as revealed by the text and scheme of pt III of the TPD Act immediately prior to 9 April 2006, continued to be the vesting of regulatory authority in relation to the subdivision of land alienated from the Crown in one instrumentality, that is, the Commission.
13. It is convenient to reproduce s 20(1)(a) of the TPD Act immediately prior to 9 April 2006:

Subject to section 68 of the Environmental Protection Act 1986, to this section and to section 20B, a person shall not, without the approval of the Commission, lay out, grant or convey a street, road or way, or either lease or grant a licence to use or occupy land for any term exceeding 10 years including any option to extend or renew the term or period, or lease and grant a licence to use or occupy land for terms in the aggregate exceeding 10 years, including any option to renew or extend the terms or periods, or sell land or grant any option of purchase of land, unless the land is dealt with by way of such lease, licence, sale or option of purchase as a lot or lots, or subdivide any lot, or amalgamate any lot with any other lot whether within the same district or otherwise; and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective.

1. Section 20(1)(a) of the TPD Act immediately prior to 9 April 2006 was materially different from s 20(1) of the Original 1928 Act in that, by numerous amendments concerning transactions or dealings with part of a lot, the prohibition had been expanded.
2. First, the prohibition had been expanded to include:

(a) leasing or granting a licence to use or occupy land for any term exceeding 10 years including any option to extend or renew the term or period;

(b) leasing or granting a licence to use or occupy land for terms in the aggregate exceeding 10 years including any option to renew or extend the terms or periods; and

unless the land was dealt with by way of such lease, licence or option of purchase as a lot or lots.

1. The transactions or dealings with part of a lot that were prohibited by legislative amendments were added to s 20(1) to ensure that long-term dealings or transactions with part of a lot by means other than sale would not escape regulation and would require the approval of the Board or its successor, the Commission.
2. Secondly, the prohibition had been expanded to include amalgamating any lot with any other lot.
3. However, the specific prohibition in s 20(1) of the Original 1928 Act against a person '[subdividing] ... land as lots' had not been materially amended. Immediately prior to 9 April 2006, s 20(1)(a) of the TPD Act prohibited a person from '[subdividing] any lot'. The definition of 'lot', which was introduced by the Town Planning and Development Act Amendment Act 1956 (WA), was amended subsequently, but the definition as amended is not material for the purposes of this appeal. The prohibition against subdividing in s 20(1)(a) of the TPD Act immediately prior to 9 April 2006 was not in substance materially different, for present purposes, from the prohibition against subdividing in s 20(1) of the Original 1928 Act.
4. It is convenient to reproduce s 20(2) of the TPD Act immediately prior to 9 April 2006:

The Registrar of Titles shall not create or register a certificate of title under the Transfer of Land Act 1893 for land the subject of a plan of subdivision unless -

(a) in the case of a plan of subdivision to which this Act applies, the diagram or plan of survey of the subdivision of that land submitted to the Commission under section 20AA; or

(b) in the case of a plan of subdivision to which this Act does not apply, the application for title concerned,

has been endorsed with the approval of the Commission.

1. It is also convenient to reproduce s 20AA of the TPD Act immediately prior to 9 April 2006:

(1) A person to whom approval of a plan of subdivision has been given may, within 3 years of the date on which the Commission approved the plan of subdivision -

(a) submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and

(b) request the Commission to approve the diagram or plan of survey of the subdivision.

(a) the diagram or plan of survey is in accordance with the plan of subdivision approved under section 20(1)(a); and

(b) if that approval given was subject to conditions, the conditions have been complied with,

the Commission shall endorse its approval on the diagram or plan of survey.

(3) If, at the expiration of 3 years from the date on which the Commission approved a plan of subdivision under section 20(1)(a), a diagram or plan of survey of the subdivision has not been submitted to the Commission, the approval of the plan of subdivision ceases to have effect.

1. The text of s 20(2) of the TPD Act immediately prior to 9 April 2006 was different from the text of s 20(2) of the Original 1928 Act. However, for present purposes, the differences are not material.
2. The Original 1928 Act did not include a provision similar or analogous to s 20AA of the TPD Act immediately prior to 9 April 2006.
3. Immediately prior to 9 April 2006, s 20(1)(a) and s 20(2) of the TPD Act remained complementary provisions in that:

(a) section 20(1)(a) relevantly prohibited a person from '[subdividing] any lot' without the approval of the Commission; and

(b) section 20(2) relevantly prohibited the Registrar of Titles from creating or registering a certificate of title under the Transfer of Land Act for land the subject of a plan of subdivision unless, relevantly, the diagram or plan of survey of the subdivision of that land submitted to the Commission under s 20AA had been endorsed with the approval of the Commission.

1. Section 166 and s 167 of the Transfer of Land Act were amended between the date on which the Original 1928 Act came into operation and the date on which the TPD Act was repealed and replaced by the PD Act (being 9 April 2006). As at 9 April 2006, s 166 and s 167 provided:
   1. Application for new certificates of title on subdivision of land

(1) A proprietor of land under the operation of this Act who, after section 98 of the Transfer of Land Amendment Act 1996 comes into operation, wishes to subdivide the land shall apply, in an approved form and on payment of the prescribed fee, to the Registrar for the creation and registration of new certificates of title for the land and the application shall be made in relation to a plan or diagram of the land complying with subsection (2).

(2) Such plan or diagram shall exhibit distinctly delineated all roads streets passages thoroughfares squares or reserves appropriated or set apart for the use of the purchasers and all permanent drains and also all allotments into which the said land may be divided marked with distinct numbers or symbols and shall also show the areas and shall comply in every respect with the Rules and Regulations for the time being for the guidance of surveyors when practising under this Act.

(3) On an application under this section but subject to section 146(1) of the Planning and Development Act 2005, the Registrar may create and register a new certificate or certificates of title for the land the subject of the application.

(4) For the purposes of subsection (3), the Registrar may have regard to a request of the applicant in relation to when the new certificate or certificates of title are to be created and registered.

[(5) repealed]

(6) References in this section to -

(a) plans or diagrams include references to plans of survey of Crown land; and

(b) certificates of title include references to certificates of Crown land title as they apply to plans of survey of Crown land.

...

1. Number of allotment on plan of subdivision sufficient description for purposes of dealing

On an application under section 166 or 166A the numbers of the allotments marked on the plan of subdivision or sketch plan may be used as sufficient description of the land for the purpose of dealings with any one or more of such allotments on the sale thereof according to such plan of subdivision or sketch plan and on any subsequent dealings comprising the whole of one or more allotment or allotments.

1. Immediately prior to 9 April 2006, when the TPD Act was repealed and replaced by the PD Act, s 166(3) of the Transfer of Land Act read:

On an application under this section but subject to section 295 of the Local Government (Miscellaneous Provisions) Act 1960 and to section 20(2) of the Town Planning and Development Act 1928, the Registrar may create and register a new certificate or certificates of title for the land the subject of the application.

1. The effect of s 166(1), immediately prior to 9 April 2006, was that a proprietor of land under the operation of the Transfer of Land Act who wished to subdivide the land could do so by lodging with the Registrar an application for the creation and registration of new certificates of title for the land, accompanied by a plan or diagram prepared in accordance with s 166(2). By s 166(3), on an application made under s 166(1) and subject to the Commission having endorsed its approval on a diagram or plan of survey of the subdivision of the relevant land, the Registrar was empowered to create and register a new certificate or certificates of title for the land the subject of the application.
2. Immediately prior to 9 April 2006, the amendments to the Original 1928 Act and the amendments to s 166 and s 167 of the Transfer of Land Act had not materially affected, for the purposes of this appeal, the meaning to be ascribed to the word 'subdivide' within the phrase 'subdivide any lot' in s 20(1)(a) of the TPD Act.
3. Immediately prior to 9 April 2006, and generally for the reasons I have given in construing s 20(1) and s 20(2) of the Original 1928 Act, the process of a person '[subdividing] any lot', within s 20(1)(a) of the TPD Act, was not completed until a plan of subdivision of the relevant lot was prepared and the person applied to the Registrar, pursuant to s 166(1) of the Transfer of Land Act as then in force, (the application being made in relation to a plan or diagram of the land complying with s 166(2) of the Transfer of Land Act as then in force) for the creation and registration of new certificates of title for the land the subject of the lot.
4. Immediately prior to 9 April 2006, a person would not 'subdivide any lot', within s 20(1)(a) of the TPD Act, until he or she sought to lodge with the Registrar an application for the creation and registration of new certificates of title accompanied by the requisite plan or diagram. At that point the process of the person subdividing the land as lots would have been completed. Nothing would remain which could be the subject of the specific prohibition against the person '[subdividing] any lot', without the plan of subdivision having been approved by the Commission, within s 20(1)(a). Subject to the Commission having endorsed its approval on a diagram or plan of survey of the subdivision of the relevant land pursuant to s 20(2) of the TPD Act, the Registrar would issue new certificates of title to the subdivided lots and the proprietor of the lot who had lodged the application accompanied by the requisite plan of subdivision would be able to create and deal with estates and interests in the subdivided lots under the Transfer of Land Act.
5. Immediately prior to 9 April 2006, nothing in s 20(1) or any other provision of the TPD Act prohibited a testator from devising part of a lot by will. A devise by a testator of part of a lot by will did not, of itself, constitute 'subdividing' the lot within s 20(1)(a).
6. I turn now, in my examination of the merits of ground 1 of the appeal, to the proper construction of s 135 of the PD Act.
7. It is convenient to reproduce s 135 of the PD Act, which came into operation on 9 April 2006:

(a) subdivide any lot; or

(b) amalgamate any lot with any other lot, whether within the same district or otherwise; or

(c) lay out, grant or convey a road,

(2) A person who contravenes subsection (1) commits an offence.

(3) In this section -

road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).

1. It is also convenient to reproduce the relevant provisions of s 136 of the PD Act, which also came into force on 9 April 2006:

(1) Subject to sections 139 and 140 a person is not to -

(a) lease or grant a licence to use or occupy land for any term exceeding 20 years, including any option to extend or renew the term or period; or

(b) lease and grant a licence to use or occupy land for terms in the aggregate exceeding 20 years, including any option to renew or extend the terms or periods; or

(c) sell or agree to sell land; or

(d) grant any option of purchase of land,

without the approval of the Commission unless the land is dealt with by way of such lease, licence, agreement or option of purchase as a lot or lots.

(2) A person who contravenes subsection (1) commits an offence.

1. The drafter of s 135 and s 136 distributed between those provisions the prohibited activities formerly embodied in s 20(1) of the TPD Act. Section 135 is concerned with the subdivision of lots, the amalgamation of lots and the laying out, granting or conveying of roads. Section 136 is concerned with certain transactions or dealings in land other than as a lot or lots. The essence of the prohibition in s 20(1)(a) of the TPD Act immediately prior to 9 April 2006 against a person '[subdividing] any lot' was not amended by s 135 of the PD Act. The prohibition against subdividing in s 135 of the PD Act is not materially different in substance, for present purposes, from the prohibition against '[subdividing] any lot' in s 20(1)(a) of the TPD Act immediately prior to 9 April 2006.
2. The observations I have made are confirmed by the following passage in the explanatory memorandum to the PD Act:

Clause 135: provides that approval is required for a subdivision. Reflects existing section 20 [TPD Act].

Clause 136: provides approval is required for certain transactions where land is not dealt with as a lot or lots. Modifies existing section 20 [TPD Act] by removing the requirement for [the Commission's] approval to leases and licences to occupy buildings and extending the period for which approval is required for leases and licences over land from the current 10 years to 20 years.

Note that Clauses 135 and 136 have been redrafted to provide greater clarity. Leases and licences are separately referred to in Clause 136. This is to delineate between the two separate functions of the current section 20 [TPD Act]. First, the physical subdivision of land into separate lots with boundaries of land; and second, the de facto subdivision of land by way of a long-term lease (19 - 20).

1. So, s 135 contains the prohibition against subdivision and, also, the prohibitions against the amalgamation of lots and the laying out, granting or conveying of roads. Section 136 contains express and precise prohibitions against creating or dealing with specified proprietary interests in part of a lot.
2. Pursuant to the PD Act, the subdivision of land alienated from the Crown is regulated in Western Australia by the Commission. Regulation of the subdivision of land continues to be an ordinary and integral aspect of planning policy. An apparent purpose or object of the PD Act, as revealed by the text and scheme of pt 10, continues to be the vesting of regulatory authority in relation to the subdivision of land alienated from the Crown in one instrumentality, that is, the Commission.
3. Generally for the reasons I have given in construing s 20(1) and s 20(2) of the Original 1928 Act and s 20(1) of the TPD Act immediately prior to 9 April 2006, the process of a person '[subdividing] any lot', within s 135 of the PD Act, is not completed until a plan of subdivision of the relevant lot is prepared and the person applies to the Registrar, pursuant to s 166(1) of the Transfer of Land Act (the application being made in relation to a plan or diagram of the land complying with s 166(2) of the Transfer of Land Act) for the creation and registration of new certificates of title for the land the subject of the lot.
4. A person does not 'subdivide any lot', within s 135 of the PD Act, until he or she has sought to lodge with the Registrar an application for the creation and registration of new certificates of title accompanied by the requisite plan or diagram. At that point the process of the person subdividing the land as lots will have been completed. Nothing will remain which could be the subject of the specific prohibition against the person '[subdividing] any lot', without the plan of subdivision having been approved by the Commission, within s 135. Subject to the Commission having endorsed its approval on a diagram or plan of survey of the subdivision of the relevant land pursuant to s 146(1) of the PD Act, the Registrar will issue new certificates of title to the subdivided lots and the proprietor of the lot who has lodged the application accompanied by the requisite plan of subdivision will be able to create and deal with estates and interests in the subdivided lots under the Transfer of Land Act. Like s 20(1) and s 20(2) of the TPD Act, s 135 and s 146(1) of the PD Act are complementary.
5. Nothing in s 135 or any other provision of pt 10 of the PD Act prohibits a testator from devising part of a lot by will. A devise by a testator of part of a lot by will does not, of itself, constitute 'subdividing' the lot within s 135(1)(a).
6. My construction of the word 'subdivide' within the phrase 'subdivide any lot', in s 135(1)(a):

(a) is consistent with the observations of Barwick CJ in NLS (587) in relation to the comparable provision in s 20 of the TPD Act;

(b) avoids an overlap between the prohibition in s 135(1)(a) and the specific prohibitions in s 136, which would render otiose some of the specific prohibitions in s 136 or which may result in an inconsistent operation between s 135(1)(a) and s 136 in relation to the creation of a lease or a licence for a term or for terms in aggregate exceeding 20 years;

(c) is consistent with the heading to div 2 pt 10 of the PD Act, namely 'Approval for subdivision and certain transactions', which contemplates a distinction between 'subdivision' (including subdivision within the prohibition in s 135(1)(a)) and certain transactions (including the transactions the subject of the specific prohibitions in s 136);[44] and

(d) is consistent with other provisions of pt 10 of the PD Act (for example, s 145, s 148, s 152 and s 157) in which the word 'subdivision' is used in conjunction with the expression 'plan of subdivision'.

1. I turn now, in my examination of the merits of ground 1 of the appeal, to consider cl 4 of the will.
2. In cl 3 of the will the Deceased made a specific legacy and a specific bequest in favour of the second respondent.
3. It is convenient to reproduce cl 4 of the will:

I give the balance of my estate both real and personal, of whatsoever nature and wheresoever situated in Australia to my Trustee upon trust, firstly, to pay thereout my just debts, funeral and testamentary expenses and all duties (if any) payable by reason of my death and then to give the balance of my estate in the following manner:

4.1) house at 40 Benara Road, Caversham with approximately 3 acres of land in front of it and towards Benara Road and at the back towards the vineyard and around the house to my said son IVAN JOSIP SARICH and his children in equal shares as tenants in common, and

4.2) the balance of the land at 40 Benara Road, Caversham, approximately 7 acres, to my said sons IVAN JOSIP SARICH, ANTHONY SARICH, my daughter-in-law BRENDA CAROL SARICH, and my grandchildren LUKA IVAN SARICH and NATALIJA MARY SARICH in equal shares as tenants in common.

1. A beneficiary under a will acquires upon the testator's death a right to have the deceased estate administered in accordance with the executor's duties. However, neither the legal nor the equitable ownership of the property the subject of a devise or bequest vests in the beneficiary at the time of the testator's death. The reason is that, prior to the administration of the deceased estate, no specific property is capable of constituting the subject property of any trust in favour of the beneficiary. At that stage it could not be identified what part or parts of the deceased estate would need to be realised for the purposes of administration. Accordingly, the beneficiary does not have a proprietary interest in each of the assets which are the subject of the devise or bequest. See Commissioner of Stamp Duties (Qld) v Livingston.[45] Although Livingston was concerned with the residuary estate under a will, the observations by the Privy Council apply with equal force to specific devises or bequests. See Official Receiver in Bankruptcy v Schultz.[46]
2. In the present case, cl 4 of the will did not 'subdivide' or purport to 'subdivide' a 'lot' contrary to s 135(1)(a) of the PD Act. The Deceased did not, by cl 4.1 and cl 4.2, 'subdivide', within s 135(1)(a), the land at 40 Benara Road, Caversham. The devises in cl 4.1 and cl 4.2 did not infringe the prohibition in s 135(1)(a). They were not illegal or void.
3. In my respectful opinion, the reasoning and conclusion of Barker J in Riverwest, Master Newnes in Bakranich and the Master in the present case were erroneous. Murray J's observations in Palamore concerning the meaning of 'subdivide' in s 20(1)(a) of the TPD Act were also erroneous. Murray J's observations were adopted and applied by Barker J in Riverwest, Master Newnes in Bakranich and the Master in the present case. The reasoning in those cases failed to have regard to the legislative history of s 20(1)(a) of the TPD Act or s 135 and s 136 of the PD Act (as applicable) and to the interrelationship between those provisions in the context of the TPD Act or the PD Act (as applicable) as a whole, on the one hand, and s 166 and s 167 of the Transfer of Land Act, on the other_._
4. Ground 1 of the appeal has been made out.

The notice of contention: counsel for the sixth respondent's submissions

1. At the hearing before the Master, the sixth respondent claimed, in the alternative, that cl 4 of the will was void for uncertainty and consequently the devises made by cl 4.1 and cl 4.2 failed.
2. The Master decided that cl 4 was not void for uncertainty [4].
3. There is no appeal against that finding.
4. Counsel for the sixth respondent asserted, at the hearing before this court, that the sixth respondent had argued before the Master that the devises in cl 4.1 and cl 4.2 should fail because of the absence of evidence that lot 103 on diagram 69773 could be subdivided as provided in the will.
5. The Master did not address that point in his reasons.
6. Counsel for the sixth respondent submitted, in support of the notice of contention, that cl 4.1 and cl 4.2 evinced the testator's 'clear intention' to confer legal title to portions of lot 103 'by way of immediate gift'.
7. It was submitted that there was no evidence before the Master as to whether lot 103 could be subdivided in accordance with the will. The evidence was limited to the facts that on 12 November 2016 the first respondent (as trustee of the Deceased's will) had entered into a contract to sell the rear portion of 40 Benara Road, Caversham; the contract was conditional upon the subdivision of lot 103; and on 22 May 2017 a third party had obtained conditional subdivisional approval from the Commission. According to counsel, the approval from the Commission related to a subdivision that was 'very different ... from that provided for in the will'.
8. Counsel submitted that it cannot be inferred from the grant of conditional subdivisional approval to a third party of a different subdivision, that the subdivision contemplated by the will could be carried out.
9. At the hearing before this court, counsel for the sixth respondent confirmed that the contention in the notice of contention only applied if this court were to hold that ground 1 had been made out and, also, if this court were to hold that the will, on its proper construction, created a trust to subdivide 40 Benara Road, Caversham as between the beneficiaries in accordance with cl 4.1 and cl 4.2.
10. According to counsel, the Master should have held that the devises in cl 4.1 and cl 4.2 failed because they could not be given effect, regardless of the proper construction of s 135 of the PD Act. Counsel argued that the appeal should therefore be dismissed, irrespective of the merits of ground 1 of the appeal.

The notice of contention: counsel for the appellants' submissions

1. Counsel for the appellants submitted that the notice of contention should be dismissed. He advanced four separate reasons.
2. First, the notice of contention raises a new case which the sixth respondent did not run at the hearing before the Master and the point could possibly have been met by evidence at that hearing.
3. Secondly, it is not enough for the sixth respondent merely to contend on appeal that there was 'no evidence' that lot 103 could be subdivided in accordance with the will.
4. Thirdly, it cannot be said that there was 'no evidence' that lot 103 could be subdivided in accordance with the will. Indeed, the proper inference from the evidence is that lot 103 could be subdivided in accordance with the will.
5. Fourthly, even if lot 103 could not be subdivided in accordance with the will, that fact does not require the conclusion that the devises in cl 4.1 and cl 4.2 are incapable of taking effect.

1. The principles relating to the advancing of a new case on appeal are well-established.
2. A party is bound by the conduct of his or her case at trial. In University of Wollongong v Metwally [No 2],[47] Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (emphasis added)

1. The substance of this statement was reiterated in Coulton v Holcombe[48] by Gibbs CJ, Wilson, Brennan and Dawson JJ:

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd ((1950) [1950] HCA 35; 81 CLR 418, at 438); Bloemen v The Commonwealth ((1975) 49 ALJR 219). (emphasis added)

1. The High Court returned to this issue in Water Board v Moustakas.[49] Mason CJ, Wilson, Brennan and Dawson JJ emphasised that a point cannot be raised for the first time on appeal 'when it could possibly have been met' by calling evidence at the trial (497) (emphasis added).
2. In Whisprun Pty Ltd v Dixon,[50] Gleeson CJ, McHugh and Gummow JJ restated the applicable principles and elaborated upon their rationale:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8 - 9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas (1988) 180 CLR 491 at 496 - 497; cf R v Birks (1990) 19 NSWLR 677 at 683-685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 - 646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

As Water Board v Moustakas ((1988) 180 CLR 491 at 498) makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings' (Water Board v Moustakas (1988) 180 CLR 491 at 497) (emphasis added).

1. The juridical basis of these principles appears to derive, in part, from public policy considerations directed to ensuring finality in litigation and, in part, from the doctrine of estoppel by election in the conduct of litigation. However, to the extent that some aspects have their origin in estoppel by election, the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. See Banque Commerciale SA, en liquidation v Akhil Holdings Ltd.[51]
2. However, the rule against a new point being raised for the first time on appeal is not absolute. In O'Brien v Komesaroff,[52] Mason J (Murphy, Aickin, Wilson & Brennan JJ agreeing) said '[i]n some cases when a question of law is raised for the first time in an ultimate court of appeal ... it is expedient in the interests of justice that the question should be argued and decided'. See also Suttor v Gundowda Pty Ltd;[53] National Australia Bank Ltd v KDS Construction Services Pty Ltd;[54] Moustakas;[55] Dovuro Pty Ltd v Wilkins.[56] This qualification to the rule has been applied by intermediate courts of appeal. See, for example, O'Brien v Shire of Rosedale;[57] Rheem Australia Ltd v Collector of Customs (NSW);[58] Centronics Systems Pty Ltd v Nintendo Co Ltd;[59] Caltex Australia Petroleum Pty Ltd v Commissioner of State Revenue.[60] The qualification has been more readily applied where the judgment under appeal was not given after a trial. See Doherty v Murphy;[61] Schwerin v City of Sale;[62] Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd.[63]
3. In Coulton, Gibbs CJ, Wilson, Brennan and Dawson JJ referred to the rule against raising a new point for the first time on appeal, the qualification to that rule and the earlier decisions of the High Court in Suttor and Komesaroff (7 - 8). Their Honours then said:

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal (8).

1. It is plain, from the context, that this observation related to a new point being raised in an intermediate appellate court or an ultimate appellate court which was not taken at trial.
2. In the present case, the application before the Master was by an originating summons issued by the first respondent as executor of the Deceased's will.
3. In the originating summons, which was filed on 10 April 2017, the first respondent sought a declaration or determination as to:

(b) whether by the gifts of parts of a 'lot' in cl 4 the Deceased had 'subdivided' the 'lot' in breach of s 135 of the PD Act;

(c) whether cl 4 properly disposed of the residue; and

(d) whether, consequent upon (b) or (c) above, cl 4 was invalid.

1. The originating summons also sought a declaration of partial intestacy if cl 4 was invalid, and orders as to costs.
2. The originating summons did not seek a declaration or determination as to whether the devises in cl 4.1 and cl 4.2 failed because they could not be given effect for the reason now sought to be advanced in the sixth respondent's notice of contention.
3. The appellants are the solicitors who drafted the will. By summons dated 14 July 2017, the appellants sought to be joined as additional defendants in the primary proceedings. At that stage, the originating summons had been listed for hearing before the Master on 27 July 2017. The appellants' application for joinder was heard by the Master on 25 July 2017 (that is, two days before the hearing of the substantive application). At the hearing on 25 July 2017, counsel who then appeared for the sixth respondent informed the Master that, further to the case based on the alleged breach of s 135 of the PD Act, counsel wished to argue that cl 4 was void for uncertainty (ts 4). Counsel for the sixth respondent did not suggest, in her oral submissions on 25 July 2017, that the devises in cl 4.1 and cl 4.2 failed because they could not be given effect on the ground that there was no evidence that lot 103 could be subdivided in accordance with the will.
4. The Master determined at the hearing on 25 July 2017 that the appellants should be joined as additional defendants.
5. On the following day, 26 July 2017, the solicitors for the sixth respondent filed and served his written submissions. Those submissions asserted that the 'purported' gifts in cl 4.1 and cl 4.2 failed because the gift of lot 103 in two insufficiently described parts was uncertain and, further, was contrary to s 135 of the PD Act.
6. The appellants made the following arguments in their written submissions:

(a) the first respondent (as trustee of the Deceased's will) held the land in question 'on trust for the beneficiaries as to their respective parts of the land' and the beneficiaries 'could direct the Executor as trustee to transfer a registered interest in the Land to them in particular portions or in some other way as they deem fit'; and

(b) the first respondent (as trustee of the Deceased's will) had power under s 30(1)(d) of the Trustees Act 1962 (WA) to subdivide the land in question 'either to give effect to (in the sense of conveying a legal interest in) the gifts under the Will or otherwise with the consent or direction of the beneficiaries'.

1. The appellants' arguments were supplementary to and followed their submissions that cl 4 did not 'subdivide' the land in question, contrary to s 135(1)(a) of the PD Act, and that cl 4 was valid.
2. The sixth respondent's written submissions in response to the appellants' arguments read:
   1. ... Title to the parts of the Land cannot be transferred to the beneficiaries in their respective proportions without there being a subdivision (in the strict sense used by Hale J) of the land. They cannot have the full use and benefit intended by the will - legal and not simply equitable ownership.
   2. It is insufficient to say that the Executor has the power under the Trustees Act to subdivide the property. There is no evidence that the Land could have been subdivided in the manner of the gifts as at the date of [the Deceased's] death.
   3. Further, to accept an argument in this case the gift should be upheld because this Land could be subdivided, would be to create the situation where gifts of land that can be subdivided are upheld whereas gifts of land that are not subdivisible would not whereas the prohibition in the [PD Act] is not so limited. Section 135 is in absolute terms and land that might be subdivisible is not excluded (compare s136 and s 140 of the [PD Act]).
   4. The further material put on by the Executor demonstrates that a conditional subdivisional approval has now been granted by the Commission but the plan of subdivision is not in terms [of] the gifts in the will (or curiously in terms of the Contract of Sale).
   5. It is also insufficient to say that the beneficiaries could direct the Executor to transfer to them in a way not envisaged by the will. Assuming that the gift was not invalidated by the Act, that could only occur if they were all sui generis [sic] which is not the case here. (original emphasis)
3. The hearing of the first respondent's originating summons proceeded on 27 July 2017.
4. Counsel who then appeared for the sixth respondent asserted, in her oral submissions on 27 July 2017, that cl 4 was void for uncertainty, alternatively, on the basis that the devises in cl 4.1 and cl 4.2 infringed s 135 of the PD Act. The submission as to uncertainty was based upon the proposition that there was 'an insufficient description contained in the will, to make clear what is being left to each different set of parties' (ts 7). Counsel emphasised that in construing the will, for the purpose of determining whether cl 4 was void for uncertainty, it was necessary 'to look at what might have been known to [the Deceased] at the time that he was making his will' (ts 7). Counsel elaborated:

The testator died on 22 October 2015. And so, at that stage, there's no suggestion in any of the material before the court that there was anything other than a possibility that in the future the property could be subdivided. So we say to you that ... [issues] ... or things that become apparent from the later contract of sale and the later subdivisional approval as relate to the property, ought not be taken into account when you're determining the question of construction, but that you've got to look at the words used and what was known about the property at the time (ts 8).

1. The Master engaged in some debate with counsel for the sixth respondent about the relevance of the contract of sale that had been entered into by the first respondent (as trustee of the Deceased's will) and the conditional subdivisional approval that had been obtained by the third party from the Commission (ts 9 - 10). Counsel for the sixth respondent then made these submissions:

There had been no subdivisional application [at the date of the will or the date of death]. And ... I will take you to that subdivisional approval [obtained by the third party] if it becomes necessary to do so. There are a couple of things about it ... actually, I will deal with it now, if you're interested in it, Master. And we say that this doesn't impact on the question of construction, but ... you may go against me on that, and I would like to make ... submissions ... about it.

... [I]f you look at the subdivision approval ... you will see that it's quite a different subdivision that has been approved, to ... what is the subject of the contract of sale. Now, I don't know why that is the case.

...

... [Y]ou can't draw any conclusions from this subdivisional approval, Master. That a subdivision in accordance with what might have been in the mind of the testator when he made his will, would have been allowable in any event. All you can say is that some different subdivision of the land has now been given conditional approval. ... [T]hat document isn't the starting point from the armchair principle of construction of the will.

We say that even if you were to look at it, it wouldn't give you the satisfaction that you might require to say that this is a property that could have been easily subdivided and it was readily subdivisible in a way that would meet that description of the land as being a house and approximately three acres of land. But I've set that out in the submissions and I would like to turn now ... to this issue of section 135 (ts 10 - 12).

1. Counsel for the sixth respondent relied on the decisions in Palamore, Riverwest and Bakranich in support of her argument that the devises in cl 4.1 and cl 4.2 infringed s 135 of the PD Act. Counsel submitted that the will 'in fact effects a subdivision by its terms' and that was prohibited by s 135 (ts 18).
2. Counsel for the appellants then made oral submissions to the Master. Counsel argued that cl 4 was not void for uncertainty. Counsel also argued that the reasoning in Palamore¸ Riverwest and Bakranich was wrong and that the devises in cl 4.1 and cl 4.2 did not infringe s 135 of the PD Act.
3. Counsel submitted on the issue of certainty that 'the division intended by cl 4 [was] clear beyond argument' (ts 29). Counsel added that 'the only issue that is raised on the question of certainty is the certainty of the description as to where the boundary of the two gifts between cl 4.1 and [clause] 4.2 is' (ts 30 - 31).
4. During counsel for the sixth respondent's reply, the Master said he doubted that the conditional subdivisional approval that had been granted to the third party was 'relevant anyway' (ts 38) and that it was 'more a curiosity point than anything else' (ts 39). The Master elaborated that 'the question under [section] 135 is fairly straightforward: is it a subdivision? It doesn't matter whether it could be subdivided ... I don't think it's relevant' (ts 39).
5. Counsel for the sixth respondent then said:

[Counsel for the appellants] made the suggestion to you that no will could give a gift on condition of subdivision ... [T]hat clearly isn't right. What could be done is that land could be left on trust for the specific purposes of effecting a subdivision and in the event that subdivision was approved, then the land would then be gifted out in accordance with the subdivision. And if it was not approved, then a different gift would apply. That is a mechanism that could be used in a will ... to [effect] a gift subject to the condition of subdivision' (ts 39).

1. In my opinion, the sixth respondent's notice of contention must be construed and evaluated in the context of my conclusion in relation to ground 1 of the appeal, namely that cl 4.1 and cl 4.2 did not effect a 'subdivision' of lot 103, contrary to s 135(1)(a) of the PD Act, and that the devises were not illegal and void.
2. I am satisfied that the sixth respondent did not, in substance, argue before the Master that if cl 4.1 and cl 4.2 did not effect a 'subdivision' of lot 103, contrary to s 135(1)(a) of the PD Act, and if the devises were not illegal and void, the devises nevertheless failed because there was no evidence in the primary proceedings that the Commission would approve a subdivision of lot 103 to enable the beneficiaries to become the registered proprietors of portions of lot 103 in accordance with cl 4.
3. First, the sixth respondent asserted before the Master that cl 4 was void for uncertainty because the area of land the subject of each devise was uncertain. The appellants joined issue on that point.
4. Secondly, the sixth respondent also asserted before the Master that cl 4.1 and cl 4.2 effected a 'subdivision' of lot 103 and that the devises were illegal and void because the 'subdivision' infringed s 135(1)(a) of the PD Act. The appellants joined issue on that point.
5. Thirdly, the appellants' arguments before the Master were based on the propositions that:

(a) the beneficiaries had the right to direct the first respondent to transfer a registered interest in the land in the portions specified in cl 4; and

(b) the first respondent had power under s 30(1)(d) of the Trustees Act to subdivide the land in those portions.

The arguments were advanced on the basis that those propositions were, in part, an answer to the sixth respondent's case that cl 4.1 and cl 4.2 effected a 'subdivision' of lot 103, contrary to s 135(1)(a) of the PD Act, and that the devises were therefore illegal and void.

1. Fourthly, the sixth respondent's response to the appellants' arguments was that Riverwest and Bakranich were correctly decided, the reasoning in Palamore, Riverwest and Bakranich was correct, and the Master should follow Riverwest and Bakranich and hold that cl 4.1 and cl 4.2 purported to effect a 'subdivision', contrary to s 135(1)(a) of the PD Act, and consequently the devises failed. The sixth respondent asserted, in effect, that the appellants' arguments did not save the devises. The mere fact that the land 'could be subdivided' was not an answer to the prohibition in s 135(1)(a) because s 135(1)(a) did not distinguish between a gift of part of a lot that was subdivisible and a gift of part of a lot that was not subdivisible. In any event, the evidence before the Master did not establish that the first respondent's power under s 30(1)(d) of the Trustees Act to subdivide the land in question was efficacious because there was no evidence in the primary proceedings that the Commission would approve a subdivision of lot 103 to enable the beneficiaries to become the registered proprietors of portions of lot 103 in accordance with cl 4.
2. Fifthly, in the circumstances, the sixth respondent did not, in substance, argue before the Master that if cl 4.1 and cl 4.2 did not effect a 'subdivision' of lot 103, contrary to s 135(1)(a) of the PD Act, and if the devises were not illegal and void, the devises nevertheless failed because there was no evidence in the primary proceedings that the Commission would approve a subdivision of lot 103 to enable the beneficiaries to become the registered proprietors of portions of lot 103 in accordance with cl 4.
3. Further, I am satisfied that the contention raised in the sixth respondent's notice of contention, construed and evaluated in the context of my conclusion in relation to ground 1 of the appeal, could possibly have been met by the appellants calling evidence on the contention in the primary proceedings.
4. The sixth respondent's notice of contention must therefore be dismissed.
5. I note, in addition, that the devises in cl 4.1 and cl 4.2 of the will involved the creation of equitable interests in lot 103. The beneficiaries would acquire proprietary interests in equity upon the Deceased's estate being administered in accordance with the first respondent's duties as executor. The Master held that the portions of lot 103 in respect of which the beneficiaries would acquire proprietary interests in equity were not uncertain. As I have mentioned, that finding is not challenged in this appeal. Section 135(1)(a) of the PD Act does not prohibit the creation by cl 4.1 and cl 4.2 of the equitable interests in portions of lot 103.[64] The legal title to lot 103 passed to the first respondent, in his capacity as executor, upon trust to be dealt with in accordance with cl 4.1 and cl 4.2. In my opinion, the devises in cl 4.1 and cl 4.2 were not, on the proper construction of those provisions, conditional upon lot 103 being 'subdivided' (within s 135(1)(a) of the PD Act) in the portions specified in cl 4.1 and cl 4.2. The first respondent, in his capacity as trustee, does, however, have power to apply to the Commission for approval to subdivide lot 103 in accordance with the devises in cl 4.1 and cl 4.2 and, if that approval is obtained, to carry out the subdivision in accordance with s 166 and s 167 of the Transfer of Land Act.[65] The legal title to portions of lot 103 cannot be transferred to the beneficiaries unless the Commission approves a subdivision of lot 103 to enable the beneficiaries to become the registered proprietors of portions of lot 103 in accordance with cl 4. Any inability to transfer legal title does not affect the equitable interests.
6. I also note that:

(a) The Master found that the devises in cl 4.1 and cl 4.2 contemplated an east-west division of lot 103 between the 'handle' and the 'blade' of the lot [5] - [6].

(b) The conditional subdivisional approval obtained by the third party in relation to lot 103 related to a plan of subdivision for the creation of a number of new lots within the 'blade' of lot 103. Accordingly, there was some evidence in the primary proceedings that the Commission would approve a subdivision of lot 103 to enable the beneficiaries to become the registered proprietors of portions of lot 103 in accordance with cl 4 even though the conditional subdivisional approval involved the creation of more lots than contemplated by cl 4. The significant point is that the conditional subdivisional approval approved the division of the 'blade' from the 'handle' of lot 103.

Ground 2 of the appeal: counsel for the appellants' submissions

1. As I have mentioned, shortly before the hearing of the first respondent's originating summons, the appellants applied to be joined as a defendant. The sixth respondent was the only party to oppose the application. The Master allowed the appellants' application.
2. At the hearing of the appellants' joinder application, the second respondent did not appear. The third, fourth and fifth respondents appeared and supported the appellants' arguments.
3. At the hearing of the first respondent's originating summons on 27 July 2017, there were three issues. First, whether cl 4 of the will was void for uncertainty. The Master held that cl 4 was not void, and therefore rejected the sixth respondent's submissions. Secondly, whether cl 4 was void as contrary to s 135. The Master held that it was void, and therefore rejected the appellants' submissions. Thirdly, whether cl 4 was effective as a residuary clause. The appellants took no position on that point and made no submissions on it.
4. After publishing his reasons for judgment, the Master invited written submissions on the question of costs. All of the parties, apart from the first respondent and the second respondent, filed and served written submissions.
5. The third, fourth and fifth respondents sought their costs from the Deceased's estate.
6. The sixth respondent sought orders that the appellants pay the other parties' costs of the first respondent's (substantive) application on an indemnity basis and, also, the costs of the appellants' joinder application.
7. The appellants sought orders that the sixth respondent pay their costs of the joinder application (alternatively, that there be no order as to the costs of that application) and that each of the third, fourth, fifth and sixth respondents' costs of the first respondent's (substantive) application be paid out of the estate. The appellants contended that if the appellants were to be burdened with a costs order it should not include the other parties' costs incurred before their joinder, and should also recognise the fact that the appellants had been successful (and the sixth respondent had been unsuccessful) on the issue of whether cl 4 of the will was void for uncertainty.
8. The Master did not give any reasons for the costs orders he made. Instead, the Master's associate merely sent the parties an email stating that '[u]pon reading submissions filed by the Second to Fourth Defendants, Fifth Defendant and Sixth Defendant the Master today made' orders that the costs of the first respondent be paid out of the estate and that:

The costs of all other parties should be paid by [the appellants] in relation to both the joinder application and the substantive application.

1. Counsel for the appellants submitted in the appeal that the Master was obliged to give reasons for his decision in relation to costs and his failure to give reasons was an appealable error. Counsel submitted, in the alternative, that if the email from the Master's associate constituted the Master's reasons for decision, the email cannot be construed as a statement that the Master had adopted the submissions of the sixth respondent (fifth defendant) because the sixth respondent had sought payment of costs on an indemnity basis, which the Master did not order.
2. It was submitted that, in any event, although the Master's decision as to costs involved a discretionary judgment, the orders the Master made were unreasonable or plainly unjust in that:

(a) There was no reasonable or rational basis for ordering the appellants to pay the third, fourth or fifth respondents' (second, third or fourth defendants') costs. Those respondents had supported the appellants' submissions. They had not succeeded against the appellants in any sense.

(b) There was no reasonable or rational basis for ordering the appellants to pay any party's costs of or associated with the sixth respondent's (fifth defendant's) contention that cl 4 of the will was void for uncertainty. That is not only because the appellant successfully resisted that contention. The appellants also fulfilled the important function of being the only (and the successful) contradictor to that contention. The unreasonableness of the order in this respect is demonstrated by the fact that it has the consequence that the appellants, having successfully opposed the contention, are required to pay the costs not only of the sixth respondent (fifth defendant) in unsuccessfully making that contention, but also the costs of the third, fourth and fifth respondents (second, third and fourth defendants) who supported the appellants.

(c) There was no reasonable or rational basis for ordering the appellants to pay the second, third, fourth, fifth and sixth respondents' (first, second, third, fourth and fifth defendants') costs associated with the separate issue of whether cl 4 was effective as a residuary clause. The appellants took no position and made no submissions on that issue.

(d) At the very least, there was no reasonable or rational basis for ordering the appellants to pay the costs of the other parties that were incurred before the appellants were joined as a defendant. The appellants were joined only two days before the first respondent's (substantive) application was heard.

(e) There was no reasonable or rational basis for ordering the appellants to pay the costs of their application for joinder. They were entitled to be joined. They were not seeking an indulgence from the court.

1. Counsel submitted that the Master's discretion in relation to costs had miscarried and that this court should re-exercise the discretion.

Ground 2 of the appeal: counsel for the sixth respondent's submissions

1. Counsel for the sixth respondent did not seek to support the costs orders made by the Master. Counsel merely made submissions as to the orders which this court should substitute for the Master's orders.

1. It is unnecessary to determine ground 2 of the appeal because ground 1 has been made out.
2. The Master's costs orders should be set aside consequent upon ground 1 having been made out and the discretion should be re-exercised by this court.
3. I merely note that, in my opinion, there was merit in ground 2.

1. I would allow the appeal. Counsel should be heard as to the appropriate form of the orders, including the orders as to costs.

1. The background, primary decision, grounds of appeal, submissions and relevant legislative provisions are outlined in Buss P's reasons in terms which we gratefully adopt. We also adopt his Honour's terminology and defined terms.
2. The critical issue in the appeal is the proper construction of the word 'subdivides' in s 135(1)(a) of the PD Act. For ease of reference, we set out s 135 and s 136 of the PD Act:
   1. No subdivision etc. without approval

(b) amalgamate any lot with any other lot, whether within the same district or otherwise; or

(c) lay out, grant or convey a road,

without the approval of the Commission.

(2) A person who contravenes subsection (1) commits an offence.

(3) In this section -

road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).

1. Approval required for some dealings as to land not dealt with as lot or lots

(1) Subject to sections 139 and 140 a person is not to -

(a) lease or grant a licence to use or occupy land for any term exceeding 20 years, including any option to extend or renew the term or period; or

(b) lease and grant a licence to use or occupy land for terms in the aggregate exceeding 20 years, including any option to renew or extend the terms or periods; or

(c) sell or agree to sell land; or

(d) grant any option of purchase of land,

without the approval of the Commission unless the land is dealt with by way of such lease, licence, agreement or option of purchase as a lot or lots.

(2) A person who contravenes subsection (1) commits an offence.

...

1. We agree with the President's conclusion that, on a proper construction of the PD Act, if a testator devises part of a lot by will, the testator has not breached the prohibition in s 135(1)(a) of the PD Act. In other words, in such circumstances, the testator has not 'subdivided' the lot within the meaning of that section.
2. In our opinion, for the reasons that follow, on its proper construction, the word 'subdivide' in s 135(1)(a):
   1. means to make or lodge an application to create new lots with separate certificates of title;
   2. does not encompass a dealing in a lot. It is s 136, and not s 135, that regulates specified species of dealings in land other than as a lot; and
   3. in these respects, has the same meaning as 'subdivide' in s 20(1)(a) of the TPD Act, in its various iterations throughout the life of that Act.
3. There are two competing constructions to the construction we prefer. The first is that adopted by the master, applying what was said in Palamore Pty Ltd v Clode:[66] 'subdivide' encompasses any act that has the practical effect of creating two or more similar defined portions of land from a single lot. Counsel for the sixth respondent accepted that the reference to 'practical effect' gave rise to difficulties,[67] and proposed an alternative construction. On the competing construction advanced by the sixth respondent, anything which creates different legal or equitable proprietary interests in different parts of a lot subdivides the lot within the meaning of s 135(1)(a).[68]
4. Our reasons for preferring the construction outlined in [287] above are as follows.
5. First, the following three considerations combine to suggest that, in choosing between constructional choices, s 135(1)(a) should not be given an expansive meaning:

(1) Contravention of s 135(1) is an offence.[69]

(2) The right of alienation of property is a fundamental right of a kind with which the legislature will be presumed, absent a clearly expressed intention, not to have intended to interfere.[70]

(3) As Barwick CJ (with whom McTiernan J agreed) explained in NLS Pty Ltd v Hughes, in relation to s 20(1)(a) of the TPD Act:[71]

It provides expressly for the various dealings in or with land which are prohibited. Whatever its policy, the legislature has selected and described these specific dealings and, in my opinion, there is no room to reform or supplement its language so as to better effect the policy which may be discovered from other parts of the statute. Rather should the limitations sought to be imposed upon rights of alienation or dealing with private property be confined to the precise limits set by the language of the statute.

1. Secondly, our preferred construction is consistent with the ordinary meaning of the word 'subdivide' used in the context of land, namely to further divide land that has already been divided. In so saying, we accept that the competing constructions are also consistent with this ordinary meaning.
2. Thirdly, if 'subdivide' has the broad connotation given to it by the master, and in the decisions in Palamore Pty Ltd v Clode and Perpetual Trustees WA Ltd v Riverwest Pty Ltd,[72] it would encompass, and thereby render superfluous, the express prohibitions on specified forms of dealing for which s 136 provides. The sixth respondent accepted that this was so in relation to the construction he advances.[73] For example, he accepted that, on his construction, but for the operation of s 139 and s 140, every breach of s 136(1)(c) is also a breach of s 135(1)(a).[74] Section 135 should not be construed in a manner that renders s 136 redundant.[75]
3. The sixth respondent submits that, adopting his broad construction of 'subdivide', s 135 and s 136 can be reconciled in the following manner:[76]

(1) Section 136 is expressed to be subject to s 139 and s 140, which render lawful conduct which might otherwise fall within s 136.

(2) A case falling within s 139 and s 140, therefore, does not contravene s 136, including s 136(1)(c).

(3) Section 135(1)(a) should be read down in order to avoid such a case falling within the ambit of s 135.

We accept that such a construction is a possible reconciliation of the various provisions of pt 10 div 2 of the Act, although it does not easily arise from the text and structure of the relevant provisions. Moreover, the sixth respondent's construction gives rise to the need to resolve the apparent conflict between these provisions, and to a qualification of the meaning generally to be attributed to the text of s 135, whereas, on our preferred construction, no conflict arises.

1. Fourthly, and related to the preceding point, it is implicit, in the prohibition in s 136(1)(a) and s 136(1)(b) of leases and licences for terms individually or in aggregate exceeding 20 years, that a lease or licence for a lesser term is not intended to be prohibited. This is somewhat incongruous with the construction of 'subdivide' in s 135(1)(a) adopted by the master, and in the cases to which we have referred. On that construction, to grant a lease or licence for a term less than 20 years would be to subdivide, and so would breach s 135(1)(a).
2. Fifthly, the separate functions and operation of s 135 and s 136, as we have outlined them, are supported by the heading of div 2 of pt 10 of the PD Act and by what is said in the Explanatory Memorandum. The heading of div 2 of pt 10, which forms part of the written law,[77] is 'Approval for subdivision and certain transactions' (emphasis added). This suggests that the purpose and effect of s 135 is to prohibit subdivision or amalgamation of lots, and laying out, grant or conveyance of a road, without approval, while s 136 requires approval for certain transactions where land is not dealt with as a lot. As Buss P explains at [200], the legislative intention was to divide the previous content of s 20(1)(a) of the TPD Act between s 135 and s 136 of the PD Act, as revealed by the passages of the Explanatory Memorandum set out in [201] of Buss P's reasons.
3. Sixthly, the construction we prefer is consistent with the evident meaning of the cognate term 'subdivision', which term is used in a number of other provisions in pt 10 of the PD Act.[78] For example, in the phrases 'subdivision of the lot' in s 148(a) and 'subdivision of land' in s 152, the word 'subdivision' refers to the creation of new lots, with separate certificates of title, from a single piece of land. See also s 145(3), s 145(7) and s 146(3). Further, in our view, the same can be said of the meaning of 'subdivision' in the phrase 'plan of subdivision' used extensively in pt 10 of the PD Act.[79]
4. Seventhly, in our view, the legislative history outlined by Buss P supports and confirms our preferred construction. In particular, we agree with his Honour's conclusions that:

(1) in the TPD Act, when originally enacted, the word 'subdivide' was to be construed in the manner, and for the reasons, explained by his Honour at [160] - [174];

(2) notwithstanding the substantial amendments made to s 20 of the TPD Act, between when it was enacted and when it was replaced by the PD Act, the meaning of 'subdivide' in s 20 did not materially change; and

(3) in all material respects, the word 'subdivide' in s 135(1)(a) bears the same meaning as it bore in s 20(1)(a) of the TPD Act.

1. Eighthly, the prohibition in s 135(1)(a), directed to a person who subdivides a lot, may be seen as a companion to the prohibitions in s 146 and s 147, directed to the Registrar of Titles. By s 146, the Registrar of Titles is not to create or register a certificate of title under the Transfer of Land Act 1893 (WA) for land the subject of a plan of subdivision which does not have approval from the Commission. By s 147(2), the Registrar is not to create and register in the name of a registered proprietor a certificate of title for a portion of land, not being the whole of one or more lots, unless the registered proprietor's application for the certificate of title has been endorsed with Commission approval. Thus, absent Commission approval of a plan of subdivision, s 135(1)(a) prohibits a person from lodging an application for new lots with separate certificates of title; s 146 and s 147(2) prevent the Registrar from creating new lots with separate certificates of title.
2. While s 146 and s 147 may significantly diminish the practical significance of s 135(1)(a), they do not render s 135(1)(a) superfluous. The respective provisions are complementary and directed to different targets: s 135(1)(a) to a person lodging an application; s 146 and s 147 to the Registrar of Titles. Moreover, beyond the regulatory or 'gate-keeping' role of s 146 and s 147, it is s 135(1)(a) which expresses the legislature's basal prohibition against subdivision.
3. Further, as Buss P has explained, at the time when the TPD Act was enacted, a proprietor could bring about an effective subdivision of land, ready for sale in lots, by depositing a plan of subdivision at the Office of Titles in accordance with s 166 and s 167 of the Transfer of Land Act in the form those provisions then took.[80] This view of the relevant statutory context when s 20 was originally enacted, and its significance for the meaning of 'subdivide' then and later in s 20(1)(a) of the TPD Act, is supported by earlier decisions. In Lombardo v Development Underwriting (WA) Pty Ltd,[81] Hale J said as follows:

In the course of the argument it was suggested that the word 'subdivide' in s 20(1)(a) related to work done on the ground, i.e. some form of physical subdivision, but I do not think that this is so. If the owner of a lot erects two or more houses thereon for the use of his children and surrounds each with a fence he will have physically subdivided the lot: what he can do may well be controlled under some other Act, e.g. by a by-law under s 433(21a) of the Local Government Act 1960, but it does not seem to me to be touched by s 20(1)(a), any more than if he were to enclose by walls his vegetable garden, his orchard and his rose garden. The word is not defined and I doubt whether the draftsman had any clear idea what it was which he wished to prohibit, but it appears to me to be aimed at a plan of subdivision rather than at physical works on the ground. Prior to the [TPD] Act an effective subdivision, ready for sale in lots, could be effected by the deposit of a plan of subdivision verified by a licensed surveyor: see ss 166 and 167 of the Transfer of Land Act 1893; the only work needing to be done on the ground was the putting in of survey pegs and this was required only to enable the surveyor to make the declaration prescribed by the Twenty-seventh Schedule to that Act. In truth a plan, and nothing more than a plan, represented an effective subdivision. It was in this state of affairs that the Act in its original form was passed in 1928 and it appears to me that the references in s 20(1) to subdivision and to a plan of subdivision were from a practical point of view references to the same thing, and I see nothing in the subsequent amendments to lead to the conclusion that in the intervening years 'subdivision' has acquired any different meaning. In my opinion, the Act put an end to 'do-it-yourself' subdivisions.

His Honour's conclusion that s 20 of the TPD Act put an end to 'do-it yourself' subdivisions was adopted by Smith J in Boans Ltd v Kwinana Hub Shopping Centre[82] and by Buss JA (with whom Newnes JA relevantly agreed) in Mackinlay v Derry Dew Pty Ltd.[83]

1. Ninthly, consideration of the purposes of the PD Act, as set out in s 3(1), does not support any different construction. The stated purposes of 'provid[ing] for an efficient and effective land use planning system' and 'promot[ing] the sustainable use and development of land' are pitched at a high level of generality. For the reasons given by Barwick CJ in NLS Pty Ltd v Hughes,[84] the scope and extent of the prohibitions in s 135 and s 136 are to be discerned from the 'precise limits set by the language' of those provisions, rather than by reference to what might be thought to better effect the broadly stated objects of the Act.
2. As it does not involve lodgement of an application to create new lots with separate certificates of title, devising part of a lot in a will, as cl 4.1 and cl 4.2 purport to do, does not fall within the prohibition in s 135(1)(a). In other words, cl 4.1 and cl 4.2 did not 'subdivide' the land at 40 Benara Road, Caversham within the meaning of that word in s 135(1)(a) of the PD Act.
3. For these reasons, ground 1 of the appeal succeeds. Consequently, subject to consideration of the notice of contention, the appeal must be upheld.

1. We would dismiss the sixth respondent's notice of contention for two related reasons.
2. First, for the reasons given by Buss P, the contention it raises is a new point, not raised in the proceedings before the master, which could possibly have been met by the appellants calling evidence.
3. Secondly, the notice of contention asserts that the master should have found that cl 4 of the will failed because the devises it contained could not be given effect, 'there being no evidence that [the relevant land] could be subdivided in accordance with the will'. That contention, and the sixth respondent's submissions in support of it,[85] wrongly equate the absence of evidence that subdivision was possible with proof that subdivision was not possible. As the point had not fairly been raised before the master, those propounding the validity of cl 4 bore no onus to prove that Commission approval for subdivision in accordance with cl 4 could be obtained.
4. As the notice of contention fails for these reasons, it is not necessary to determine the merits of the appellants' submission that the subdivision approval that had been granted was, in substance, approval of subdivision sufficient to give effect to cl 4 of the will.

1. Given the success of ground 1, and the failure of the notice of contention, the master's orders, including his orders as to costs, must be set aside. In those circumstances, it is unnecessary to determine ground 2, which is concerned only with the master's costs orders. Had it been necessary to determine ground 2, we would have upheld it, essentially for the reasons advanced in the appellants' submissions summarised in [277] of Buss P's reasons.

1. For the above reasons, we would allow the appeal. We would hear from counsel as to the appropriate formal orders and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Sarich v Sarich [2017] WASC 222 [15] - [19], [21].

[2] Palamore Pty Ltd v Clode (Unreported, WASC, Library No 980599, 16 October 1998).

[3] Perpetual Trustees WA Ltd v Riverwest Pty Ltd [2004] WASC 81.

[4] Bakranich v Robertson [2005] WASC 12.

[5] Western Australia, Parliamentary Debates, Legislative Assembly, 23 March 1972, 281 - 282.

[6] Glass v Ralph [1966] WAR 91, 94.

[7] Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33, 36 - 38 (Wickham J; Lavan SPJ agreeing).

[8] NLS Pty Ltd v Hughes [1966] HCA 63; (1966) 120 CLR 583.

[9] Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188.

[10] Development Underwriting (WA) Pty Ltd v Lombardo [1971] WAR 169, 173 - 174.

[11] Reid Murray Developments (WA) Pty Ltd v Hall [1968] WAR 3.

[12] Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41. See also Mackinlay v Derry Dew Pty Ltd [2014] WASCA 24; (2014) 46 WAR 247 [150] (Buss JA; Newnes JA relevantly agreeing).

[13] Glentham Pty Ltd v City of Perth [1986] WAR 205.

[14] Agaiby v Pantham Nominees Pty Ltd (1985) 55 LGRA 405.

[15] Ratto v Trifid Pty Ltd [1987] WAR 237, 255 - 256.

[16] Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363, 366 (Burt CJ; Olney J agreeing), 379 - 381 (Brinsden J).

[17] Caltex Properties Ltd (in liq) v Love (Unreported, WASC, Library No 970237, 14 May 1997).

[18] Cobanov v Cobanov [2002] WASC 257.

[21] Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232; (2010) 41 WAR 477 [31].

[22] Love v Brien [2012] WASC 457 [47] - [50] (Beech J).

[23] Love v Brien [2013] WASCA 280 [16] - [24] (Murphy JA; Buss & Newnes JJA agreeing).

[24] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306 [45] - [48] (Buss P; Murphy JA & Beech J agreeing).

[25] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 [14].

[26] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).

[27] Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 - 113 (McHugh J).

[28] Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106 [69] (Gageler & Nettle JJ).

[29] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ).

[30] Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121] (Kiefel & Keane JJ).

[31] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [65].

[32] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J).

[33] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] (McHugh J).

[34] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726 (Griffith CJ).

[35] R v Wheeldon [No 1] [1978] FCA 11; (1978) 33 FLR 402, 405 - 406 (Bowen CJ, Blackburn & Fisher JJ).

[36] Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 - 724 (Kirby P).

[37] Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42] (Muir J).

[38] Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64] (Buss JA).

[40]Re Nelson and Tammer's Contract [1952] VLR 391, 395 - 396.

[41] See the long title to the Original 1928 Act.

[42] See, generally, In re Transfer to Palmer (1903) 23 NZLR 1013, 1020 (Williams J), 1028 (Edwards J); Re Nelson and Tammer's Contract (394 - 396).

[43] See, generally, Waitemata County v Expans Holdings Ltd [1975] 1 NZLR 34, 36 (McCarthy P), 42 - 44 (Richmond J).

[44] Section 32(1) of the Interpretation Act provides that the headings of the Parts, divisions and subdivisions into which a written law is divided form part of the written law.

[45] Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; [1965] AC 694, 708, 717.

[46] Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, 312 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).

[47] University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, 483.

[48] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 - 8.

[49] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491.

[50] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [51] - [52].

[51] Banque Commerciale SA, en liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 284 (Mason CJ & Gaudron J).

[52] O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319.

[53] Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438 (Latham CJ, Williams & Fullagar JJ).

[54] National Australia Bank Ltd v KDS Construction Services Pty Ltd [1987] HCA 65; (1987) 163 CLR 668, 679 - 680 (Mason CJ, Brennan, Deane, Dawson & Toohey JJ).

[55] Moustakas (497) (Mason CJ, Wilson, Brennan & Dawson JJ).

[56] Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [151] (Hayne & Callinan JJ).

[57] O'Brien v Shire of Rosedale [1969] VicRp 81; [1969] VR 645, 647 (Winneke CJ, Little & Menhennitt JJ).

[58] Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285, 305 - 306 (Burchett J).

[59] Centronics Systems Pty Ltd v Nintendo Co Ltd [1992] FCA 584; (1992) 39 FCR 147, 189 (Beaumont & Burchett JJ).

[60] Caltex Australia Petroleum Pty Ltd v Commissioner of State Revenue [2000] WASCA 54; (2000) 22 WAR 299, 306 - 307 (McKechnie J, Pidgeon & Murray JJ agreeing).

[61] Doherty v Murphy [1996] VicRp 86; [1996] 2 VR 553.

[62] Schwerin v City of Sale [1997] 2 VR 219.

[63] Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303.

[64] See, generally, Re Leaver [1996] QSC 28; [1997] 1 Qd R 55, 58 - 60 (Derrington J) and the cases there cited.

[65] As to the first respondent's power, see cl 6.4 of the will (which confers on the first respondent as trustee power to exercise any or all of the powers contained in the Trustees Act) read with s 27 and s 30(1)(d) of the Trustees Act.

[66] Palamore Pty Ltd v Clode (Unreported, WASC, Library No 980599, 16 October 1998) 12.

[68] Sixth respondent's submissions [20]; appeal ts 39 - 41, 49.

[69] PD Act, s 135(2). Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 [57]. This consideration has been described as no more than one of 'last resort': Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 164.

[70] R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603 [40] - [45]; Pearce & Geddes, Statutory Interpretation in Australia (8th ed, 2014) [5.22].

[71] NLS Pty Ltd v Hughes [1966] HCA 63; (1966) 120 CLR 583, 587.

[72] Perpetual Trustees WA Ltd v Riverwest Pty Ltd [2004] WASC 81 [124].

[75] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71]; Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1 [41], [172], [193], [206], [450].

[77] Interpretation Act 1984 (WA), s 32(1).

[78] The meaning of 'subdivision' is expanded by its inclusive definition in s 4 so as to encompass amalgamation. Although that definition is applicable to the word 'subdivide' by s 9 of the Interpretation Act 1984 (WA), it is not applicable to s 135(1)(a) given the express prohibition in s 135(1)(b).

[79] A similar view was expressed by Hale J in Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188, 196; see [300] below.

[80] See reasons of Buss P [150] - [152].

[82] Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41, 44.

[83] Mackinlay v Derry Dew Pty Ltd [2014] WASCA 24; (2014) 46 WAR 247 [150].

[84] NLS v Hughes (587); see [290](3) above.

[85] Sixth respondent's submissions on notice of contention [5], [6]; appeal ts 69, 72 - 73, 75 - 76.