Lloyd v Robinson

The land referred to as Murray Location 724 has an area of about 605 acres and consists of a strip of land, about two miles long, lying between the coast and a road called the Old Coast Road, south of Mandurah in Western Australia. A large portion of the area had been subdivided in accordance with earlier approvals, and some of the lots in the earlier subdivisions had been sold, before the making of the application with which these proceedings are concerned. That application was made to the Board on 23rd December 1959, and it sought approval of a proposed subdivision of part only of the unsubdivided residue of Murray Location 724. The necessity for the approval existed by reason of the provisions of s. 20 of the Act abovementioned. Sub-section (1) (a) of that section forbids several forms of dealing with land without the approval of the Board, and enables the Board to give its approval subject to conditions "which shall be carried out before the approval becomes effective". The forbidden forms of dealing include the laying out, granting or conveying of a street, road or way, and the subdividing or selling of land except as a lot or as lots. The word "lot" is given by s. 2 a lengthy definition which need not be quoted here in full; it is sufficient to say that when read with sub-s. (2) of s. 20 the definition has the effect that the areas into which the respondents proposed to subdivide the subject land could not be "lots" within the meaning of s. 20 (1) (a), and therefore could not be sold separately from one another, unless and until a subdivisional plan or diagram on which they were depicted should have been approved by the Board. A second provision as to the Board's power to impose conditions when granting an approval is contained in s. 24 (3), the effect of which, so far as material, is that where (as happened in the present case) a plan of subdivision has been forwarded for objections or recommendations to a local authority, public body, or government department whose powers or functions may be affected thereby the Board may affix such conditions as it may think fit, "which shall be carried out by the owner before the plan is approved by the Board". An appeal to the Minister is provided for by s. 26, against either a refusal or approval or against the conditions affixed to the granting of an approval. The Minister is empowered to allow the appeal with or without conditions, affix further conditions, or reject the appeal in whole or in part; and his decision is final.

The Board, by letter dated 16th March 1960, gave the respondents the approval they applied for, but subject to conditions. Against some of the conditions the respondents protested, and, having sought unsuccessfully to induce the Board to alter them, they appealed to the Minister. The appeal failed except in a respect that will be mentioned, and thereupon the respondents instituted their action. Before describing what is complained of, it is necessary to go back a little over the history of the subdivisions of Murray Location 724.

At all material times Murray Location 724 was held upon trust for a syndicate which had the general purpose of selling it in subdivision. They called it the Miami Beach Estate and set about putting it on the market gradually, by means of successive subdivisions. The nature and broad method of the enterprise was known to the Town Planning Board through oral and written communications which passed from time to time between it and the syndicate's representatives, especially a Mr. Bennett, a surveyor. The first application for approval of a subdivision related to the southern half of the land, an area of about 275 acres; and it was made by reference to a sketch, apparently of the whole Estate, which showed some of the proposed lots sketched in detail and the balance more or less pencilled in to indicate road lay-out and certain suggested reserves. At least, that is how Mr. Bennett described it in giving evidence: the sketch itself, unfortunately has not been placed before us. Among the suggested reserves was one at the north-western corner of the Estate, that is in the northern half of the Estate, the area being about 5 acres. The Board gave its approval (apparently by a letter dated 21st March 1955, which has been omitted from the material before us), subject to the lots being increased in area from a quarter of an acre to half an acre each, and subject to certain specified reserves being provided. One of the specified reserves was in a position different from that in which the suggested 5-acre reserve had been shown on the sketch, and the Board's requirement in this respect led Mr. Bennett to conclude - a good deal of inadmissible evidence was admitted without objection in this case - that the Board was rejecting the proposal for the 5-acre reserve and would not insist upon its being provided when approval should be sought for a subdivision of the northern portion of the Estate. In this, as will be seen, he was mistaken. Another of the specified reserves was a strip to a depth of 2½ chains from high-water mark "along the entire ocean frontage" to provide a foreshore reserve, and still another (as appears from the evidence of Mr. Bennett) was a strip one chain wide along the Old Coast Road, to be available for road purposes. In the following December Mr. Bennett had an interview with the Commissioner representing the Board, and was told that reserves for "open space" would be required to a total area of 60 acres (ten per cent of the area of the whole Estate); and a suggested "break-up" of the 60 acres was discussed. Mr. Bennett in his evidence made it clear that he protested to the Commissioner in forceful language, but that in the end he did not think it was any good arguing the point further. "We would only be delayed", he said, "and I would be costing my clients and myself money in that we would not be able to sell the blocks."

Whether an appeal to the Minister would have met with any success may be doubted; but the question was not put to the test. Mr. Bennett and his colleagues capitulated. They proceeded with the subdivision of the southern portion of the Estate in accordance with the approval given, and apparently they afterwards carried out other subdivisions without obtaining any relaxation of the Board's requirements.

Then came the application of 23rd December 1959 with which we are immediately concerned. It was made by reference to a sketch showing a contour survey of the entirety of the portion of the Estate still unsubdivided, but the approval asked for was for a subdivision of a part only, comprising 270 lots in the extreme south of the unsubdivided land. An area of 10 acres outside the new subdivision and immediately north of the north-west corner of the proposed lots was shown as being provided as "the additional reserve in the northern section as required". The "as required" presumably referred to the "break-up" of the 60 acres which had been discussed in December 1955, or perhaps to some later alteration of what had then been proposed. The sketch also showed the reserve along the ocean frontage as previously required, and the strip one chain wide along the Old Coast Road.

After some intermediate communications, the Board replied to the application by its letter of 16th March 1960, approving of "the lots as set out on sketch received on 23rd December 1959", subject to certain conditions. Three of the conditions required the transfer of land to the Crown. Of these, two related to the foreshore reservation, and the respondents make no complaint about them. The third relates to areas for park and recreation purposes - open space as it is called. Mention has been made in argument of the fact that a transfer to the Crown for those purposes cannot impose upon the Crown an obligation enforceable by any process in the courts; but no better way of creating reserves for the purposes referred to appears to exist, and the real complaint which the respondents make is against their being required to create the reserves and so to lose saleable land. As has been mentioned, they submitted in their application to the loss of 10 acres; but the Board required another 20 acres, making in all what the letter described as "a further area of approximately 30 acres which could include the 10 acres in the north-western section of the estate previously agreed to".

One other of the Board's conditions must be mentioned: it required that the roads, "including the 50 links service road along the Old Coast Road" be constructed and drained at the subdividers' cost to the specifications and satisfaction of the Local Authority. This needs a little explanation. In the earlier negotiations the strip one chain wide along the Old Coast Road had been in fact insisted upon in order to serve two purposes. A 50-link width was required for widening the Old Coast Road; and a second 50-link width was required for the provision of an access road to the lots in the Estate. The point about the access road was that the Old Coast Road (as widened by means of the first 50-link strip) would in time become a controlled-access road (meaning that there could not be direct access between it and any lot which might abut upon it), and accordingly lots along the eastern side of the Estate required to be provided with access by means of a road parallel to the Old Coast Road and lying between the lots and that road and opening on to it at selected points. As, even by September 1960, the Old Coast Road was still a gazetted public road and not a controlled-access road, the Board in that month requested that survey plans and diagrams submitted should show the service road, as well as the other 50-link strip, as provided for road widening; but that was only a matter of labelling and does not affect any question that arises here.

On 27th January 1961, the Board stated that the location of the 30 acres of land to be transferred for park and recreation purposes might be fixed in either of two ways: either the 10 acres which the respondents had provided in the application might stand and the other 20 acres be provided in the north-western corner of the Estate, or the 10-acre provision might be enlarged and the remainder of the 30 acres be provided in the north-eastern corner. To a letter of protest against the requirement of 30 acres for open space purposes - its contents for some reason are not in evidence - the Board replied on 24th February 1961, adhering to its decision. The letter stated that the Board had always based its calculations on 10 acres of open space being available in the north-west corner, and that as the total area of reserves so far provided (excluding the foreshore reserve and the strip along the Old Coast Road) was 33.5 acres an additional area of approximately 30 acres would be required to complete the open spaces for the Estate. It will be seen that by this means the ten per cent ratio would be observed.

By letter of 9th March 1961 the respondents appealed to the Minister under s. 26. The appeal was limited expressly to the Board's requirements for open space reserves. There was no complaint in relation to the foreshore reserve or the Old Coast Road strip: on the contrary, it was accepted that the former would take 40 acres from the Estate and the latter 16 acres, and this was stressed as a fact relevant to the contention that the Board was acting unreasonably in insisting upon as much as 30 acres of open space reserves. The letter placed some reliance upon an earlier ministerial decision as to reserves, given on an appeal regarding the 1955 subdivision, as meaning that a proportion of only five per cent of the area subdivided should be maintained for open space reserve; and it contained a suggestion, not developed by any reasoning, that the Board was exceeding its powers in its demands as to the 30 acres.

The Minister gave his decision in a letter of 17th April 1961. He upheld the appeal to the extent only of reducing to 15 acres the area to be provided for open space reserve in addition to the 10 acres in the north-west corner. The Board on 29th September 1961 intimated that the 15 acres would be required in the northeast corner of the Estate.

In the following December the respondents commenced their action. The relief they sought was a declaration that certain of the conditions imposed by the Board and the Minister were invalid, and a declaration that the Minister's decision was not binding on the respondents or on the Board. No consequential relief was specified. Judging from the argument that has been submitted to us, this was because the respondents' advisers took the view that if any of the conditions of the Board's approval were invalid either the approval would stand freed from the void conditions, or the Board would be under a duty to give a fresh approval subject to no other conditions than those which had not been declared invalid. We would not wish to be taken as accepting either conclusion. It well may be that in the supposed situation the approval given would itself be void. That would mean that the Board (and, in the event of an appeal, the Minister) would be under a duty to deal with the application of 23rd December 1959 according to law, but would not be compellable to decide it in any particular way: Cuming Campbell Investments Pty. Ltd. v. Collector of Imposts (Vict.) [1] . But the topic need not be pursued. What is important is to observe that the respondents by their statement of claim attacked as invalid conditions of the approval (1) the Board's condition that approximately 30 acres of land be transferred free of cost to the Crown, (2) the Minister's decision that areas of 10 and 15 acres respectively be transferred free of cost to the Crown, (3) the Board's condition that a strip of land 100 links in width along the Old Coast Road be provided for road widening, and (4) the Board's condition that a service road be constructed on the 50 links (i.e. of the said 100 links) adjacent to the land to be sold in subdivision. We shall deal with these in turn.

1. (1938) 60 C.L.R. 741, at pp. 749, 750, 751, 755, 758.

The first and second must be considered together, because the effect of the Minister's decision was to vary the Board's condition as to the areas to be transferred to the Crown for park and recreation purposes by confining it to the two areas of 10 acres and 15 acres respectively. This condition was attacked as being beyond power, the substantial contentions being, first, that the two areas concerned lay outside the land which was the immediate subject of the application and therefore were being insisted upon, not as reserves to be set apart in the subdivision for which the approval was sought, but for purposes extraneous to that subdivision and therefore outside the purposes to which the Board was legally entitled to have regard; and secondly that to impose any condition requiring a transfer of land to the Crown free of cost was outside the contemplation of the Act, because in the absence of any provision for compensation the Act should not be construed as intending to authorize what would amount to the confiscation of private property.

The first of these contentions was rejected by Virtue J., and in our opinion rightly. The assumption may be accepted that the statutory power to annex conditions to an approval of a subdivision does not extend to requiring the setting aside for public recreation of land which is so unrelated to the land to be subdivided, because of remoteness from it or some other circumstance, that there is no real connexion between the provision of the open space and the contemplated development of the area to be subdivided. But in the present case it must not be forgotten that the subdivision for which the respondents sought approval was one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up and placed on the market; and it was well within the limits of a proper understanding of the Board's functions under the Act to insist, at appropriate stages in the course of applications for approval to the constituent subdivisions, that open spaces be suitably located within the total area to satisfy reasonable requirements in respect of the total area. At what stages this should be done, what proportion of open space should be required, and where the open spaces should be, were questions within the discretionary judgment of the Board and, on appeal, of the Minister; and unless they were answered so unreasonably or improperly that the discretion could be said to have miscarried, there could be no ground upon which the courts would have authority to interfere. In the present case it seems to us to be plain that the requirements as to the 10 acres and the 15 acres were entirely relevant to the application for approval, and that being so they cannot be held beyond power on the ground that the land required to be transferred to the Crown lay outside the limits of the particular subdivision immediately proposed. Moreover, any suggestion that the power to impose conditions was exercised arbitrarily, or otherwise than in an endeavour in good faith to serve the purposes for which it was conferred, is answered by the trial judge's acceptance of evidence given before him by the Town Planning Commissioner to the effect that the spaces required were reasonable and proper and were arrived at by the Board in accordance with recognized principles of town-planning.

The second contention, on the other hand, found favour with the learned judge. With great respect we think it should not be sustained. If it were correct the Board could never give an approval of a subdivision conditionally upon the applicant's giving up land for any purpose, for roads, for public recreational areas, for foreshore reservation purposes, or for anything else, however relevant the condition might be to the observance of proper standards in local development. Given the necessary relevance of the conditions to the particular step which the Board is asked to approve, there is no foothold for any argument based on the general principle against construing statutes as enabling private property to be expropriated without compensation. The Act at its commencement took away the proprietary right to subdivide without approval, and it gave no compensation for the loss. But it enabled landowners to obtain approval by complying with any conditions which might be imposed, that is to say which might be imposed bona fide within limits which, though not specified in the Act, were indicated by the nature of the purposes for which the Board was entrusted with the relevant discretion: see Swan Hill Corporation v. Bradbury [1] ; Water Conservation and Irrigation Commission (N.S.W.) v. Browning [2] . If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the Act down in some fashion by appealing to a principle of construction that has to do with confiscation. If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions. The question in the case seemed to Virtue J. to be "whether the Board can expropriate for the benefit of the Crown and without any right to compensation substantial portions of the plaintiffs' land as a condition of their being able to use the balance remaining". With respect, this is not an accurate way of stating the question. There is here no expropriation for the benefit of the Crown in any real sense of the expression. True it is that if the land required for open space reserves is transferred to the Crown for park and recreation purposes as the conditions require, the beneficial title to it will pass to or be vested in the Crown without legal fetter. There will be a moral obligation on the Government to keep it reserved for the purposes mentioned, but no legally enforceable obligation. The ultimate sanction must be political only. But the fact remains that the Board has stipulated for the transfer solely in order to serve purposes which it is justified in serving by an exercise of its power to impose conditions, and has done so because a reliance upon the continuing good faith of the Administration provides the only available means by which the fulfilment of those purposes may be practically secured.

1. (1937) 56 C.L.R. 746, at pp. 757, 758. 2. (1947) 74 C.L.R. 492.

The third subject of attack in the statement of claim is the Board's condition as to providing the 100-link strip for road widening. From the account above given of the Board's letter of 16th March 1960 it will be seen that the approval now in question was not in fact subject to this condition. It is true that the provision of the strip, half of it for road widening and half for the purposes of an access road (though designated for the time being as for road widening), had been insisted upon at an earlier stage of the respondents' discussions with the Board about the whole project of subdividing the Miami Beach Estate, and that the Board had never receded from the position it then took up. But the respondents chose to submit to the requirement, and they made the application of 23rd December 1959 upon a sketch which showed the 100-link strip as being provided accordingly. This was how it came about that the Board's approval of 16th March 1960 contained no condition on the point. But since in fact it did contain no condition on the point there is none to be invalidated. Even a completely unconditional approval would have left the respondents under the necessity of providing the 100-link strip as shown on their sketch. We think it desirable to add that as at present advised we see no reason to suppose that it is in all cases, or in this particular case, beyond the Board's powers with respect to attaching conditions to an approval of subdivision to require that land be allowed for the widening of a contiguous road, or for the provision of an access road such as that which is contemplated here.

The respondents' final attack is upon the Board's condition as to constructing the 50-link service road. It is a sufficient answer that in our opinion the construction of the proposed internal roads of an area for which approval of subdivision is applied for is a matter to which a condition may properly be directed, and that there is no material difference between the access road in question and any other of the roads provided for on the sketch submitted with the application for approval.

For these reasons we are of opinion that the respondents fail in all their contentions. The appeal will be allowed and the action dismissed.