Lloyd v Robinson

Lloyd v Robinson - [1962] HCA 36 - HCA 1962 case summary — Zoe

[5]

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.

[7]

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."

[18]

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.

[19]

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.

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties