Supreme Court of WA|2007-02-23|Before: Miere J

MANDURAH ENTERPRISES PTY LTD & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASC 43 (23 February 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MANDURAH ENTERPRISES PTY LTD & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASC 43

BETWEEN : MANDURAH ENTERPRISES PTY LTD (ACN 008 722 638)

Administrative law - Town planning - Validity of Taking Order - Whether compulsory acquisition "for the purposes of" a town planning scheme - Whether compulsory acquisition "for the purposes of" a railway - Whether doctrines of election, approbation and reprobation apply

Public Works Act 1902 (WA), s 2, s 17, s 17A, s 96, s 102

Town Planning and Development Act Amendment Act 1957 (WA)

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Commonwealth of Australia v Verwayen (1990) 170 CLR 394

Express Newspapers Plc v News (UK) Ltd [1990] 1 WLR 1320

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 92 ALR 93

Mounsdon v Weymouth & Melcombe Regis Corporation (1960) 1 All ER 538

News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45; (2003) 215 CLR 563

Swallow & Pearson v Middlesex County Council [1953] 1 All ER 580

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

1 LE MIERE J: These proceedings relate to the acquisition of four parcels of land which the defendant compulsorily took from the plaintiffs on 7 August 2003. The four parcels of land which I will collectively refer to as "the Plaintiffs' Land" are described as Lots 7, 8, 30 and 49.

2 Lot 7 is contiguous with and to the west of the TAFE Peel Regional Campus. Lot 8 is contiguous with and to the west of Lot 7. Lot 30 is contiguous with and to the west of Lot 8. Lot 49 adjoins the northwest corner of the campus.

3 Prior to the Plaintiffs' Land being taken the second named plaintiffs, Mr and Mrs Graham, were the registered proprietors of Lots 8 and 30 and the plaintiff company, Mandurah Enterprises, was the registered proprietor of Lot 7 and Lot 49. Mr Graham is the principal shareholder and director of Mandurah Enterprises.

4 In these proceedings brought by originating summons the plaintiffs seek a declaration that the taking order dated 5 August 2003 by which the defendant took the Plaintiffs' Land ("the Taking Order") is invalid.

5 The Taking Order was verified by the Minister on 27 July 2003 and was executed by the Governor in Executive Council on 5 August 2003. It is in the following form:

"TOWN PLANNING AND DEVELOPMENT ACT 1928

LAND ADMINISTRATION ACT 1997

WESTERN AUSTRALIAN PLANNING COMMISSION ACT 1985

File No: 807-2-1-19 pt 1 vol 2 Ex Co No: ...606 ....

TAKING ORDER

RAILWAYS - SOUTH-WEST METROPOLITAN RAILWAY

PRIMARY REGIONAL ROADS - NORTH MANDURAH BYPASS (ROAD 'A')

REGIONAL OPEN SPACE - PAGANONI SWAMP

PUBLIC PURPOSES - UNIVERSITY

NOTICE is given, and it is declared, that the said pieces or parcels of land described in the Schedule hereto being all in the Mandurah District have, in pursuance to the written consent under the Town Planning and Development Act 1928 and Western Australian Planning Commission Act 1985 of His Excellency the Governor, acting by and with the advice of the Executive Council, dated 5 August 2003, been compulsorily taken under Section 177 of the Land Administration Act 1997 and set apart for the purposes of the following public works, namely: RAILWAYS - SOUTH-WEST METROPOLITAN RAILWAY, PRIMARY REGIONAL ROADS - NORTH MANDURAH BYPASS (ROAD 'A'), REGIONAL OPEN SPACE - PAGANONI SWAMP, PUBLIC PURPOSES - UNIVERSITY.

...

And it is directed that the said lands once taken are to be held as Crown Land in the name of the State of Western Australia and an immediate disposition to the Western Australian Planning Commission for an estate in fee simple in possession for the public work herein expressed, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way, or other easements whatsoever with the exception of:

..."

6 The schedule to the Taking Order lists a number of pieces or parcels of land that are not in issue in these proceedings. The schedule lists the following entries in relation to the Plaintiffs' Land:

7 The Town Planning and Development Act 1928 (WA) ("the TPD Act") and the Western Australian Planning Commission Act 1985 (WA) ("the WAPC Act") have been repealed and replaced by the Planning and Development Act 2005. However, it is common ground that by reason of s 37 of the Interpretation Act 1984 (WA) these proceedings are to be conducted as if those Acts had not been repealed.

8 The Taking Order says that the land had been compulsorily taken under s 177 of the Land Administration Act 1997 (WA) ("the LA Act").

9 Section 177 is found in Pt 9 of the LA Act - Compulsory acquisition of interests in land. Division 2 is entitled "Taking interests in land" and includes s 161 to s 167. For the purposes of the LA Act, the power to take land for a public work is set out in s 161 of that Act. Subdivision 2 of Div 3 sets out the procedure for taking interests in land compulsorily. Subsection 170(1) provides that if it is proposed to take an interest in land without agreement under Pt 9, the Minister must issue a notice of intention to take the interest, in accordance with that section. Subsection 170(2) provides that a "notice of intention need not be issued if the proposed taking is for the purpose of a railway authorised by a special Act".

10 Subsection 177(1) provides that if a notice of intention has been registered in relation to the land and the Minister has received no objections or has determined the objections or is satisfied that objectors have consented to the taking of the objector's interest then the Minister may make a taking order consistent with the notice of intention. That is, a notice of intention is a pre-condition to the exercise of the power of the Minister to make a taking order under s 177(1).

11 The defendant did not register a notice of intention before making the Taking Order. Therefore the Taking Order was not validly made unless the circumstances of this case are such that a notice of intention was not required to be registered before making the Taking Order.

12 There are a number of cases where a notice of intention is not required to be registered before taking the land. One example is where the land is proposed to be acquired for the construction of a railway authorised under a special Act: see s 170(2). Another case where a notice of intention is not required to be registered before a Taking Order is made is where a written law clearly specifies otherwise.

13 The defendant submits that the combined effect of s 37F of the WAPC Act and s 13(1)(b) of the TPD Act is to allow the defendant, for the purpose of the Peel Region Scheme ("PRS"), to take land comprised in the PRS under and subject to Pt 9 of the LA Act.

14 The WAPC Act and the TPD Act have been repealed and replaced by the Planning and Development Act 2005 but the repeal of those acts does not affect the validity of the Taking Order if it was valid at the time it was made.

15 The defendant submits that s 13(2) of the TPD Act modifies the provisions of Pt 9 of the LA Act in their application to a taking for the purpose identified in s 13(1) of the TPD Act, by removing the requirement for a notice of intention to take and associated provisions in s 170 - s 175 and s 184 of the LA Act.

16 As I have said, the existence of the power to make a Taking Order under LA Act, s 177 is conditioned by the notice of intention having been registered. TPD Act s 13 provides:

"(1) The responsible authority may, for the purpose of a town planning scheme, in the name and on behalf of such authority:

(a) ...; or

(b) with the consent of the Governor, take compulsorily, under and subject to Part 9 of the Land Administration Act 1997, (but subject to subsection (2)), any land comprised in such scheme, and whether situate within or without the boundaries of the district of such responsible authority.

(2) When any land is taken compulsorily under the powers conferred by this section the provisions of

(a) sections 170 to 175 inclusive; and

(b) section 184,

of the Land Administration Act 1997, shall not apply to or in respect of the land or the taking or in any manner whatsoever, and that Act shall be read and construed as if the provisions were deleted."

17 LA Act, s 170 - 175 deal with the procedure for taking interests in land compulsorily leading up to the making of a taking order under s 177. Subsection 170(1) is the section which requires the Minister to issue a notice of intention if it is proposed to take an interest in land compulsorily under Pt 9. The effect of TPD Act, s 13(2) is that where any land is taken compulsorily under the powers conferred by TPD Act, s 13, the Minister is not obliged to issue a notice of intention before taking the land by the making of a taking order under LA Act, s 177. That is, where land is taken compulsorily under the powers conferred by TPD Act, s 13, the acquisition may be effected by the making of a taking order under LA Act, s 177 notwithstanding that the Minister has not issued a notice of intention under LA Act, s 170(1).

18 The legislative history of TPD Act s 13 confirms that by enacting TPD Act s 13(2) the legislature intended to authorise a taking without a notice of intention to take and the amendment to s 13 in 1997 was not intended to alter that position.

19 When enacted in 1928, TPD Act, s 13 provided for acquisition under and subject to the Public Works Act 1902 (WA). At that time, the Public Works Act, s 17 provided for the Governor to declare that land required for a public work was taken for a public purpose. The Public Works Act Amendment Act 1955 introduced s17(2) - (7) and s 17A to the Public Works Act, requiring the publication of a notice of intention to take before a taking order was made. Section 13(2) was inserted in the TPD Act by Town Planning and Development Act Amendment Act 1957, at that time referring to s 17(2) - (7) and 17A of the Public Works Act. The purpose of that amendment was to remove the need for a notice of intention to take in respect of acquisitions for the purpose identified by s 13(1) of the TPD Act. When the LA Act was enacted in 1997, and current provisions for resumption of land were introduced, the reference in s 13(2) to s 17(2) - (7) and 17A of the Public Works Act were substituted with a reference to s 170 - s 175 and s 184 of the LA Act.

Was the Plaintiffs' Land taken for the purposes of the PRS?

20 The defendant submits that the Plaintiffs' Land was taken for the purpose of a town planning scheme, namely the PRS, and hence was a valid exercise of the powers conferred upon the defendant by TPD Act, s 13 and the Taking Order made by the Minister under LA Act, s 177 is valid.

21 The WAPC Act, s 37F provided at the relevant time that in relation to a regional planning scheme the defendant has all the powers, rights, duties and authority conferred or imposed on a responsible authority under the TPD Act in relation to a Scheme within the meaning of that Act.

22 The PRS is a regional planning scheme prepared by the defendant and approved by the Governor in Executive Council pursuant to the WAPC Act, s 18(1)(ba). The PRS was laid before both houses of Parliament and came into effect on 20 March 2003. A regional planning scheme is a town planning scheme for the purposes of the TPD Act - see WAPC Act, s 3, s 18(1a) and s 18(1ba).

23 The plaintiffs submit that the compulsory taking of the Plaintiffs' Land was not for the purpose of a town planning scheme, in particular it was not for the purpose of the PRS and therefore the TPD Act, s 13 did not give the defendant the power to compulsorily acquire the Plaintiffs' Land without a notice of intention under LA Act, s 170, being issued and registered. The plaintiffs say that the Plaintiffs' Land was taken for the purpose of the construction of a railway and not for the purpose of a town planning scheme, that is the PRS.

24 Under the PRS, Lots 7 and 8 were partly reserved for Primary Regional Road, with the balance of those lots included in the Urban zone. Lot 30 was partly reserved for Primary Regional Road, with the balance of the Lot included in the Industrial zone. Lot 49 was wholly reserved for Primary Regional Road.

25 The making of the Taking Order and the steps leading to it are deposed to by Timothy Michael Hillyard in his affidavit sworn 14 March 2006. Mr Hillyard is the manager of the WAPC Land Asset Management branch of the Department for Planning and Infrastructure. On 6 March 2003 Mr Hillyard prepared a report for the Executive, Finance and Property Committee of the defendant Commission (which was a duly authorised delegate of the Commission) recommending the resumption of the whole of the Plaintiffs' Land.

26 Mr Hillyard recommended that the whole of Lots 7, 8, 30 and 49 be compulsorily taken. Mr Hillyard stated that the land to be taken was required for the construction of the South-West Metropolitan Railway and is reserved in the Metropolitan Region Scheme for Railways and the proposed PRS for Railways and Primary Regional Roads. Mr Hillyard stated that it was proposed to compulsorily take those portions of the properties which are reserved for, amongst other things, primary regional roads under the PRS and it was further proposed to take several severed portions of land which would otherwise become landlocked as a result of the construction of the railway or require the installation of level crossings, which was not favoured by the Western Australian Government Railways Commission ("the WAGRC") (subsequently renamed the Public Transport Authority). Mr Hillyard said that as part of this action it was proposed to take seven whole properties due to their location, the impact of reservations and issues concerning severance and access across the proposed railway.

27 Mr Hillyard recommended that the Committee acting under delegated power from the defendant Commission resolve to agree to compulsory take the lands identified in the schedule to the report subject to a number of conditions relating to indemnities from the WAGRC and subject to the PRS being passed in both houses of Parliament and having effect. The schedule identified Lot 49 as one of the properties to be compulsorily taken and stated that the purposes were "Primary Regional Roads (Railways) (PRS)". Lots 7 and 8 were each identified as properties to be taken for the purposes "Primary Regional Roads (Railways) and severed (eastern portion) (PRS)". Lot 30 was identified as land to be taken and the purposes were "Primary Regional Roads (Railways) and severed (western) portion (PRS)".

28 On 18 March 2003 the Committee, acting on behalf of the defendant Commission under delegated authority, agreed to compulsorily take the lands identified in the schedule to Mr Hillyard's report subject to the conditions recommended by Mr Hillyard. The PRS was laid before both houses of Parliament and became effective from 20 March 2003. On 25 March 2003 the WAGRC wrote to the Director, Land Asset Management, Department for Planning and Infrastructure in relation to the compulsory taking of land for the South West Metropolitan Railway. The WAGRC agreed to the three conditions the defendant required as a prerequisite to "undertaking resumptions on our behalf".

29 TPD Act s 13(1) empowers the defendant to compulsorily take land "for the purpose of a town planning scheme". The plaintiff submits that "for" means "in respect to" and "for a purpose" or "a purpose of a law" is to be understood "in terms of the end to be achieved".

30 For a taking to be for the purposes of the PRS there must be a sufficient connection between the taking and the PRS; the taking must be relevant to the PRS. To determine whether there is a sufficient connection between the taking and the PRS it is necessary to look to the subject matter, scope and purpose of the PRS when read with the TPD Act.

31 The TPD Act, s 6(1), provides that a town planning scheme may be made 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, and other matters and of making suitable provision for the use of land for building or other purposes and for all or any of the purposes, provisions, powers or works contained in the first schedule. The first schedule refers to "Matters which may be dealt with by general provisions" and includes roads, probable routes for railways authorised by statute and works ancillary to or consequent on the scheme. Clause 5 of the PRS provides that the purposes of the scheme, amongst other things, are to provide for the reservation and protection of land for regional transport, conservation, recreation and public uses. Clause 6 provides that the aims of the scheme, amongst other things, are to provide for regional transportation, community services and infrastructure in a way that is efficient, equitable and timely. Part 3 of the PRS provides for lands to be reserved under the scheme for the public purposes shown on the scheme map. Clause 10 provides that land is reserved under the scheme for, amongst others, the public purposes of primary regional roads - to provide a regional road network to accommodate current and future transport needs on roads declared under the Main Roads Act 1930 (WA); and railways - to provide for the passage of trains, the marshalling, maintenance and storage of rolling stock, and the conveying of the public and freight by rail.

32 Part 4 of the PRS provides for the region to be classified into the zones shown on the scheme map. The zones include urban and industrial. Part 6 is concerned with the development of land. Clause 18 provides that subject to clauses 19 and 20 a person must not commence or carry out development on reserved land without first obtaining planning approval of the Commission. Clause 19 provides that certain development on reserved land does not require planning approval of the Commission. The developments specified includes in par (e) development on reserved land owned by or vested in a public authority that is, amongst other things, works on land reserved for railways, or for primary regional roads or other regional roads, for the purpose of or in connection with a railway excluding certain specified works. Therefore, a public authority may carry out works for the purpose of or in connection with a railway on land reserved for public regional roads. The scheme contemplates that works for the purpose of or in connection with the railway may be carried out on land reserved for primary regional roads.

33 The scheme map shows land to the south of Lots 7, 8 and 30 and to the east of Lot 49 that is reserved for railways. Counsel for the defendant submits that the scheme envisages that a railway will be constructed on land between those reservations. The land between those two reservations is reserved for primary regional roads. Counsel for the defendant submits that the scheme envisages that railways may be constructed on land reserved for primary regional roads. That conclusion is to be drawn from the scheme map, the fact that the scheme does not reserve land for two purposes simultaneously, and from the intent to be discerned from clause 19(e)(iii). I accept that submission.

34 The purposes of the PRS include providing for the reservation and protection of land for regional transport and public uses, including roads and railways. Taking land for those purposes is to take land for the purposes of the PRS. It might be objected that taking the Plaintiffs' Land is not relevant to reserving the land for roads or railways because the land is already reserved for the public purposes of primary regional roads under the PRS. However, the issue is not whether the taking secures the existence of a reserve but whether the taking provides for the reservation and protection of the land for regional transport including roads and railways by the defendant acquiring all the rights and liabilities entailed by ownership of the land. The TPD Act contemplates the eventual public ownership of reserved land for public purposes, such as roads and railways: see Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 per McHugh J at [73]. I conclude that the taking of the Plaintiffs' Land is sufficiently related to the PRS for the taking to be properly regarded as being for the purpose of the PRS. The end to be achieved by the Taking Order was to secure the land for regional transport including railways and roads.

35 The plaintiff submits that the Plaintiffs' Land was not taken for the purpose for which it was reserved under the PRS, that is primary regional roads, but rather for the purpose of constructing a railway. There are two answers to that submission. First, the Plaintiffs' Land was taken for both purposes. The Taking Order states that the pieces or parcels of land described in the schedule have been compulsorily taken for the purposes of the following public works, namely Railways - South-West Metropolitan Railway, Primary Regional Roads - North Mandurah Bypass (Road A), Regional Open Space - Paganoni Swamp, Public Purposes - University. The "purposes for which land taken" column in the schedule then specifies for which of those purposes each piece of land was taken. As I have said, the Plaintiffs' Land was taken for two purposes: railways, that is the South West Metropolitan Railway, and primary regional roads, that is the North Mandurah Bypass (road A).

36 Mr Hillyard's report to the Executive Finance and Property Committee stated that the properties listed, including the Plaintiffs' Land, were required for the construction of the railway and are reserved in the PRS for railways and primary regional roads. Mr Hillyard said that the WAGRC had advised that it was necessary for all of the land required for the railway project to be in government ownership by 30 June 2003. That was the reason for the taking to be made at that time. However, it does not follow that the land was taken only for the purpose of the railway. Mr Hillyard's report went on to say that the department also proposed to compulsorily take those portions of the properties which are reserved for, amongst other things, primary regional roads and it was proposed to take several severed portions of land which would otherwise become landlocked as a result of the construction of the railway or require the installation of level crossings which was not favoured by WAGRC. Mr Hillyard said that as part of the action it was proposed to take seven whole properties due to their location, the impact of reservations and issues concerning severance and access across the proposed railway. Mr Hillyard said that the compulsory taking of those additional reserved and the severed lands would enable the Commission to deal with the acquisition and result in compensation for each property as one matter, rather than having to negotiate with those landowners at a later date and duplicating procedures.

37 Secondly, taking the Plaintiffs' Land for the purpose of constructing a railway is taking land for the purposes of the PRS.

38 I conclude that the Plaintiffs' Land was taken for the purposes of railways and primary regional roads.

Parts of land not taken for public purposes

39 The plaintiffs further submit that part only of the Plaintiffs' Land was taken for use in the construction of or for the purpose of the railways, that is Lot 49 and parts of Lots 7, 8 and 30. The plaintiffs submit that the balance of Lots 7, 8 and 30 were not taken for any public work or as reserved lands or for any other public purpose under a town planning scheme.

40 The taking of the balance of Lots 7, 8 and 30 that was not reserved for primary regional roads was explained by Mr Hillyard in his affidavit. He said that he recommended that the whole of Lots 7 and 8 be resumed because the taking of the primary regional road reserve and the subsequent construction of the railway and highway was to involve the closure of part of Thornborough Road. This would have left the balance of Lots 7 and 8 without any public road access, as it is otherwise cut off from provision of any alternative access by the Peel TAFE campus to the east. Mr Hillyard says that he believed it was not consistent with the proper administration of the region scheme to leave land without access as a consequence of the taking process.

41 In his affidavit sworn 30 April 2006 Mr Graham deposed that Exchequer Avenue and Carlton Place provide access to Lot 7 and through it to Lot 8. A map produced by Mr Graham shows that Carlton Place runs off Exchequer Avenue. In an affidavit sworn on 10 July 2006 Anthony Muscara, a senior planning officer of the Department of Planning and Infrastructure, deposes that Exchequer Avenue is a private road internal to the Peel Education and TAFE campus to the east of Lots 7 and 8 and is not dedicated for public use. Mr Muscara goes on to say that any proposal for subdivision or development of part of Lots 7 and 8 would need to have regard to the circumstance that at present there is no public access to the balance of Lots 7 and 8 from the east and that it is landlocked by the campus. There is no challenge to the evidence of Mr Muscara.

42 Part VI of the Public Works Act deals with railways. Section 102 provides that "where the making of a railway line has cut off all access by road to land other than Crown land, the Public Transport Authority shall make such crossing or crossings as may be necessary to give access to such land". Therefore, if the defendant had taken only those parts of Lots 7 and 8 that formed part of the primary regional road reserve, the Public Transport Authority would have been obliged to construct railway crossings so as to provide access to the balance of Lots 7 and 8.

43 In his report to the Executive Finance and Property Committee Mr Hillyard proposed to take the parts of Lots 7 and 8 that did not form part of the primary regional roads reservation. He stated that it was proposed to take those portions of land which would otherwise become landlocked as a result of the construction of the railway or require the installation of level crossings which was not favoured by the WAGRC. He stated that it was proposed to take the whole of the properties due to their location, the impact of reservations and issues concerning severance and access across the proposed railway. The Committee, as delegate of the defendant, acted upon that recommendation. The taking of the balance of Lots 7 and 8, so as to enable the railway to be constructed without requiring the installation of level crossings, may properly be regarded as taking for the purpose of railways and for the purpose of the PRS.

44 Furthermore, taking the balance of Lots 7 and 8, so as to avoid landlocked land remaining in private ownership, may properly be regarded as being incidental to providing for the reservation and protection of the land for regional transport and hence for the purpose of the Peel Regional Scheme.

45 The balance of Lot 30 was taken for the same reason as the balance of Lots 7 and 8. Mr Hillyard has deposed that his recommendation to take the whole of Lot 30 rather than the reserved portion alone resulted from an oversight on his part. The oversight was that he mistakenly believed that the balance of Lot 30 would be landlocked.

46 The Committee, as delegate of the defendant, acted upon the mistaken advice of Mr Hillyard that the balance of Lot 30 should be taken for the same reasons as the balance of Lots 7 and 8 because it would otherwise be landlocked. The Committee acted on an erroneous assumption as to fact.

47 The plaintiffs challenge the taking of the balance of Lot 30 on the ground that it was not taken for the purpose of the TPS.

48 TPD Act, s 13(1) empowers a responsible authority to take land "for the purpose of a town planning scheme". Purpose refers to an intended or desired result, end or aim: Macquarie Dictionary 4th ed. In News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45; (2003) 215 CLR 563, Gleeson CJ said in reference to the meaning of purpose in s 4D and s 45 of the Trade Practices Act 1974 (Cth), that purpose is to be distinguished from motive. The purpose of conduct is the end sought to be accomplished by the conduct, as distinct from the reason for seeking that end.

49 This raises a question of construction. Is the purpose the subjective purpose of the responsible authority or the objective purpose of the taking? I prefer the subjective construction. There is a danger that an examination of the objective purpose of a taking will give undue significance to the effect of the taking as opposed to the effect that the authority sought to achieve through the taking. A responsible authority would be exposed to the risk of its conduct in taking land and subsequently carrying out work on the land being declared unlawful on contentious grounds related to the objective effect of the taking. That is inconsistent with TPD Act, s 13(2) which provides that the LA Act, s 170 to s 175 (dealing with the Minister's obligation to issue a notice of intention to take the land and for owners of land to object to the taking) do not apply to any taking under the powers conferred by the TPD Act, s 13(1) or to the land taken.

50 The subjective purpose of the defendant in taking the balance of Lot 30 was to prevent the owner of the balance of Lot 30 being left with landlocked land and to enable the railway to be constructed without requiring the installation of level crossings. That was a taking for the purpose of the PRS.

51 For those reasons the whole of the Plaintiffs' Land was taken for the purpose of the Peel Region Scheme and therefore the Taking Order was valid.

52 The defendant puts forward an alternative basis on which the Taking Order is valid. As I have said, s 170(2) of the LA Act provides that a notice of intention need not be issued if the proposed taking is for the purpose of a railway authorised by a special Act.

53 The construction of a railway over the plaintiff's land was authorised by the Railway (Northern and Southern Urban Extensions) Act 1999 (WA) ("the Railway Act"): see s 4 and Sch 2 and the plan at p 66 of Mr Hillyard's affidavit. The Railway Act is a special Act for the purposes of the LA Act: see s 151(1) of the LA Act and s 2 and s 96 of the Public Works Act. As the proposed taking was for the purposes of a railway, no notice of intention to take was required.

54 Land could be taken by a taking order that was consistent with the Railway Act pursuant to s 177(2) of the LA Act. The taking of the Plaintiffs' Land was consistent with the Railway Act and hence the Plaintiffs' Land could be validly taken.

55 The plaintiffs submitted that the Taking Order neither expressly nor impliedly purported to take the land for a railway pursuant to the Railway Act and the Railway Act does not authorise the construction of a railway over the plaintiffs' land.

56 Section 4 of the Railway Act provides that a railway, and all necessary, proper and usual works and facilities in connection with the railway, may be constructed and maintained along the line described in Sch 2. Subsection 4(2) provides that the railway may deviate to a distance of four kilometres on either side of the line described in Sch 2. The plaintiffs do not deny that the Plaintiffs' Land falls within a distance of four kilometres on either side of the line described in Sch 2 to the Railway Act. I conclude that the taking of the Plaintiffs' Land was for the purpose of a railway authorised by a special Act, as provided in LA Act, s 170(2) and the Taking Order was consistent with the Railway Act, in accordance with LA Act, s 177(2).

57 There remains the question of whether the Taking Order is valid on the ground that the taking was consistent with the Railway Act and the Railway Act authorised the construction of the railway notwithstanding that those matters were not expressly referred to in the Taking Order. The Taking Order states, amongst other things, that the land was compulsorily taken under s 177 of the LA Act. Furthermore, it says that it was taken for, amongst other purposes, the South-West Metropolitan Railway. The power to compulsorily take land for the purposes of a railway authorised by a special Act is conferred by LA Act, s 177(2). The terms of the Taking Order are consistent with that power having been exercised. Therefore, the Taking Order was a valid exercise of the power conferred by LA Act, s 177(2).

58 On 29 April 2004 the plaintiffs made claims for compensation for all loss and damage suffered by them arising out of the taking of the Plaintiffs' Land by the Taking Order. The claims were on forms entitled "Land Administration Act 1997 (Section 211), Claim for Compensation" and stated that they were claims for compensation in accordance with the provisions of the LA Act and the Supreme Court Act 1935 (WA). On 9 August 2004 the plaintiffs received partial payments of compensation. Mr and Mrs Graham and the company each executed a deed dated 9 August 2004. Each of the deeds is in similar form. The deed executed by Mr and Mrs Graham is entitled "Western Australia Land Administration Act 1997 as Amended Partial Discharge of Claim" and states that the sum of $1,556,500 together with interest at 6 per cent from 30 April 2004 was paid to the claimant by the defendant being the person from whom compensation in respect of the acquisition may be claimed under the LA Act as an advance payment of compensation made pursuant to s 248 of the LA Act. The deed went on to say that if the amount of any compensation due to be paid could not be agreed between the parties then it shall be determined by action for compensation or by reference of the claim to a compensation court in accordance with the provisions of the LA Act. The plaintiffs received the partial payments of compensation in accordance with the deed.

59 Where land is taken by the registration of a Taking Order all rights and interests affecting the land are converted into a claim for compensation. The compensation entitlement of owners of land taken under Pt 9 is set out in Pt 10 of the LA Act. LA Act, s 202 provides that every person having any interest in land which is taken under Pt 9 is entitled, subject to Pt 10, to compensation for the interest from the acquiring authority. Subsection 211(1) provides that a claim for compensation under Pt 10 must be in approved form. The claims by the plaintiffs were made in an approved form. LA Act, s 248 provides in effect that where a claim for compensation is being negotiated, the acquiring authority may offer the claimant an advance payment pending settlement of the claim. Payment of such an amount does not prejudice the rights of the claimant under Pt 10 of the LA Act.

60 The defendant submits that having approbated the Taking Order by making a claim for compensation and accepting the payment of compensation in respect of the taking of the Plaintiffs' Land, the plaintiffs may not now reprobate the Taking Order by challenging its validity. Alternatively, the defendant submits that the plaintiffs have made a binding election to pursue their claim for compensation rather than challenge the validity of the Taking Order.

61 As I have found that the Taking Order was valid it is strictly not necessary to consider whether the plaintiffs should be denied relief on these grounds. However, in case the matter goes on appeal I will state briefly my conclusion on these issues.

62 The doctrine of approbate and reprobate means that a party cannot choose between two inconsistent courses of conduct, and having chosen a course from which the party has benefited, resile from that position. In other words, a party cannot adopt two inconsistent stances, once benefit has been derived from one. A party cannot "blow hot and cold in the attitude" they adopt: Express Newspapers Plc v News (UK) Ltd [1990] 1 WLR 1320 per Browne-Wilkinson VC. The doctrine was recognised by Brennan J in Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 421 - 422 where his Honour said that the doctrine:

" ... precludes a person who has exercised a right from exercising another right which is alternative to and inconsistent with the right he exercised as, eg, where a person 'having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit.'"

63 The plaintiffs submit that approbation and reprobation do not apply in this case. It is submitted that there can be no approbation of an act which is a nullity so as to defeat a person's rights. The act remains a nullity. The principle of ultra vires prevails. The equitable considerations of approbation and reprobation apply to a contest over competing private rights, not to matters of public law seeking relief from the consequences of an invalid act of the State. A citizen affected by the invalid act is entitled to deny its effect in law. The plaintiff refers to the words of Parker J in Swallow & Pearson v Middlesex County Council [1953] 1 All ER 580 that "[no] amount of so called waiver or approbation can make a document such as this, which is patently and wholly invalid, into a valid document".

64 In Swallow & Pearson (supra), the plaintiff building contractors used some land at the rear of their premises for light industrial purposes and the defendant local planning authority served on them an enforcement notice under s 23(1) and s 75(1) of the Town and Country Planning Act 1947 (UK) to discontinue the use of the premises for industrial purposes within 30 days of service of the notice. The notice was invalid because it failed to lay down the period after which it was to take effect, but the defendants contended that the plaintiffs were estopped from denying the defendant's right to proceed on the notice and from impugning its validity since, after having been served with it, they had applied for planning permission under s 23(3)(a) of the Act, and had thereby elected to treat it as a valid notice. Parker J said at 582:

"There is no doubt that a man is entitled to waive or to agree to waive the advantage of a law or rule made solely for his benefit and protection. It is equally clear that no person can waive a provision or a requirement of the law which is not solely for his benefit, but is for the public benefit. In my view, however, when this case is examined it appears that the plaintiffs have not waived some provision inserted solely for their benefit. It is said that they are estopped from denying that a particular document is valid. This enforcement notice is one which Parliament has said must be in a particular form, and when it is in that particular form its non-observance is a criminal offence not only on the part of the person on whom it is served, but, in some cases, on others. I do not think any amount of so called waiver or approbation can make a document such as this, which is patently and wholly invalid, into a valid document with the consequences that would follow."

65 A similar issue arose in Mounsdon v Weymouth & Melcombe Regis Corporation (1960) 1 All ER 538. In that case, planning permission to use land as a caravan site was granted to Mounsdon in April 1952, on a condition that only three caravans should be sited on the land. By July 1958, 26 caravans were on the site. The local planning authority served on Mounsdon an enforcement notice alleging that there had been development within four years preceding the date of the notice and that the development consisted of a material change of use by using the land as a site for caravans exceeding three in number. The notice alleged that the condition of the planning permission to develop land had not been complied with as the land was used as a site for more than three caravans. Mounsdon appealed under s 23(4) of the Town and Country Planning Act 1947 (UK) seeking, by complaint, that the enforcement notice should be quashed. On his complaint being dismissed he appealed. On appeal the enforcement notice was quashed. The council contended that, having obtained planning permission, the appellant could not now argue that it was unnecessary and it was suggested that Swallow & Pearson (supra), was distinguishable on the ground that planning permission was not obtained in that case whereas in this case it was. The Queen's Bench Division did not think that the distinction affects the principle applied in Swallow & Pearson and held that the appellants were not precluded from raising the issue as to development by reason of the grant of planning permission in 1952.

66 The defendant has cited a number of cases in which the principle of approbation and reprobation has been applied.

67 The defendant further submits that to the extent that it is necessary to show that the defendant would suffer a detriment if the plaintiffs were permitted to depart from the assumption on which the payment of compensation to them was based, the defendant has satisfied that requirement. The defendant has lost the opportunity to correct any invalidity, or remove any doubt as to validity, of the Taking Order by issuing a notice of intention to take or a new Taking Order before entry onto the plaintiffs' land was effected. Persons other than the defendant have relied on the validity of the Taking Order by entering into contracts for the construction of part of the Perth-Mandurah Railway on the Plaintiffs' Land, entering the land and undertaking construction activity on the land. The defendant and others would suffer a detriment which is not confined to the payment of compensation to the plaintiffs, if the plaintiffs were now permitted to depart from the assumption.

68 The authors of Wade and Forsyth "Administrative Law" 9th ed, say at p 236 that legal rules about estoppel and waiver are applicable to public authorities as well as to other persons. The authors cite a number of English authorities where a public authority was estopped from denying a fact or status that it had represented. The authors go on to state (at p 237), that in public law the most obvious limitation on the doctrine of estoppel is that it cannot be evoked so as to give an authority powers which it does not in law possess. In other words, no estoppel can legitimate action which is ultra vires. At p 238 the learned authors say that it has often been said that no amount of waiver or consent can extend the public authority's powers or validate action which is ultra vires.

69 In Aronson Dyer & Groves "Judicial Review of Administrative Action" 3rd ed, the authors say, in effect, that Australian courts have taken a more restrictive approach to the application of estoppel and waiver to public authorities. The authorities discussed by the authors concern attempts to subject public authorities to estoppel. In Attorney-General (NSW) v Quin (1990) 170 CLR 1, Mason CJ endorsed Gummow J's statement of the general principle in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 92 ALR 93 which was to the effect that no estoppel can alter the scope, content or criteria for the exercise of public powers and functions. That principle also applies to attempts by public authorities to subject persons they deal with to estoppel in a way that alters the criteria for the exercise of public powers and functions.

70 It may be that a defect in procedure can be cured and an irregularity can be waived so as to render valid that which would otherwise be invalid. If the irregularity merely departs from the prescribed manner in which a public power or function is to be exercised without departing in substance from the conditions for the exercise of the power it may be possible for the irregularity to be waived. However, that is not this case.

71 The plaintiffs' challenge to the taking of their land is not based on any irregularity in the manner in which the defendant exercised its power to take the land under the TPD Act, s 13. If the plaintiffs' land was not taken for the purpose of the PRS then the defendant had no power to take the land under the TPD Act, s 13. Similarly, if the plaintiffs' land was not taken for the purpose of a railway authorised by a special Act then the defendants had no power to take the land under the LA Act, s 177 without issuing a notice of intention to take under s 170. The exercise of the power to make a taking order under LA Act, s 177 is conditioned on the issue of a notice of intention to take under s 170 and gives rise to the right of the landowner to object to the land being taken. The failure to issue a notice of intention to take is not a procedural irregularity that could be waived.

72 Were the Taking Order in this case to have been invalid, then to paraphrase Parker J, no amount of waiver or approbation could make the Taking Order into a valid instrument.

73 For the same reasons, the doctrine of election has no application to this case.

74 The defendant submitted that if the plaintiffs had otherwise made out their case, the matter may be dealt with on the basis of the Court's discretion to decline to make a declaration. As I have found that the Taking Order was valid it is not necessary to decide that point. Furthermore, whether or not the Court should refuse to exercise its discretion to make a declaration may depend upon the basis on which the Court found the Taking Order, or some part of it, to be invalid. To consider whether or not to refuse to make a declaration on the grounds of delay, detriment and discretion it would be necessary to hypothesise about the basis on which the Taking Order might be found to be invalid. It is neither necessary or appropriate that I engage upon that task.

75 For the reasons stated, the plaintiffs have not established that the Taking Order was invalid and hence the application must be dismissed.

Administration Act 1997

(Northern and Southern Urban Extensions) Act 1999

Planning and Development Act 1928

Planning and Development Act](/cgi-bin/viewdoc/au/legis/wa/repealed_act/tpada1928304/) Amendment Act 1957

Australian Planning Commission Act 1985

Development Act 2005

Works Act](/cgi-bin/viewdoc/au/legis/wa/consol_act/pwa1902159/) Amendment Act 1955

Country Planning Act 1947

MANDURAH ENTERPRISES PTY LTD & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASC 43 (23 February 2007)

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MANDURAH ENTERPRISES PTY LTD & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASC 43 (23 February 2007)

Legislation Cited (12)

Cases Cited (5)