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

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

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

Compulsory acquisition of land - Validity of taking order under Land Administration Act - Whether land taken for a proper purpose - Whether more land taken than required for railway purposes - Whether railway authorised by a special Act - Availability of doctrine of severance - Existence and scope of independent doctrine of approbation and reprobation - Whether a binding election

Land Administration Act 1997 (WA), s 3, s 7, s 151, s 161, s 170, s 175, s 177, s 178, s 179, s 241, s 248

Metropolitan Region Town Planning Scheme Act 1959 (WA), s 33, s 36(3)

Public Works Act 1902 (WA), s 2, s 84, s 95, s 96, s 99, s 102

Railway (Northern and Southern Urban Extensions) Act 1999 (WA), s 4, sch 2

Town Planning and Development Act 1928 (WA), s 12, s 13

Western Australian Planning Commission Act 1985 (WA), s 18

Appeal dismissed, save in relation to the zoned portion of Lot 30

Second Appellants : Mr R I Viner QC & Ms L E Rowley

1 McLURE JA: The appellants appeal from orders made by Le Miere J on 23 February 2007 dismissing their application for a declaration that a taking order compulsorily acquiring their land near Mandurah is invalid. The Perth to Mandurah Railway has been constructed on and adjacent to the land.

2 The first appellant was the registered proprietor of two lots of land described as Lots 7 and 49. The second appellants were the registered proprietors of two lots of land described as Lots 8 and 30. 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 north-west corner of the campus.

3 The taking order is dated 5 August 2003 (taking order). It expressly declared that the land described in the Schedule had been compulsorily taken under s 177 of the Land Administration Act 1997 (WA) (Land Act). Several properties are listed in the Schedule in addition to Lots 7, 8, 30 and 49. In respect of each of Lots 7, 8, 30 and 49, the purpose for which the land is taken is identified in the Schedule as 'Railways and Primary Regional Roads'. The Railway referred to in the taking order is described as the South-West Metropolitan Railway and the Primary Regional Road is described as the North Mandurah Bypass. The issue in the appeal is the validity of the taking order.

4 The appellants' land fell within the Peel Region Scheme (PRS), being a regional planning scheme prepared by the respondent under s 18(1)(ba) of the Western Australian Planning Commission Act 1985 (WA) (Commission Act).

5 Part of each of Lots 7, 8 and 30 was reserved for Primary Regional Roads under the PRS. The balance of Lots 7 and 8 were zoned urban and the balance of Lot 30 was zoned industrial under the PRS. Lot 49 was wholly reserved for Primary Regional Roads.

6 The intention in taking the land was to build the South-West Metropolitan Railway over the western part of Lots 7 and 8, the eastern part of Lot 30 and the whole of Lot 49. However, Lots 7 and 8 were taken in their entirety because the effect of the construction of the railway would be to sever the balance of those lots from access to any public road in which event the Public Transport Authority (PTA) was required by s 102 of the Public Works Act 1902 (WA) (Public Works Act) to make such crossings as may be necessary to give access to the land. The whole of Lot 30 was taken in the mistaken belief that the construction of the railway would sever the balance of Lot 30 from access to any public road and thus require the construction of a crossing. It is not in dispute that Lot 49 was acquired for railway purposes.

7 The respondent has been the registered proprietor of the taken land under the Transfer of Land Act 1893 (WA) (TLA) since 8 August 2003.

8 The respondent relied on two separate bases of power for the validity of the taking order. In order to understand the reasons of the primary judge and the grounds of appeal, it is necessary to refer to the terms of the relevant legislation, starting with the Land Act.

9 Part 9 of the Land Act deals with the compulsory acquisition of interests in land. Section 161 is a source of power to take land for public works. It materially provides:

(1) Whenever the Crown, the Governor, the Government, any Minister of the Crown, any State instrumentality or any local government is authorised, by this Act, the Public Works Act 1902 or any other Act, to undertake, construct or provide any public work, and the use of any land or any interest in land is required for the purposes of the work, then, unless otherwise specially provided -

(a) any interest in the land held by a person other than the Crown may be taken.

10 Division 2 of Pt 9 contains the procedure for taking an interest in land without agreement. Section 170 relevantly provides:

(1) Subject to this section, if it is proposed to take interests in land without agreement under this Part, the Minister must issue a notice of intention to take the interests, in accordance with this section.

(2) A notice of intention need not be issued if the proposed taking is for the purpose of a railway authorised by a special Act.

11 A notice of intention to take was not issued in this case. The respondent relied on, inter alia, s 170(2) and s 177(2) to justify the failure to give a notice of intention.

12 Section 177 deals with the making of a taking order. It relevantly provides:

(a) a notice of intention has been registered in relation to land; and

(b) the Minister either -

(i) has received no objections from any proprietor or occupier within 60 days after the registration or within such further time as is allowed by the Minister;

(ii) has determined that the objections received in that time do not warrant the cancellation, amendment or cancellation and substitution of the notice of intention; or

(iii) is satisfied that every objector concerned has consented in writing to the purchase or taking of the objector's interest,

the Minister may make a taking order consistent with the notice of intention.

(2) If a special Act has been passed authorising the construction of a railway, the Minister may make a taking order consistent with that Act.

13 'Minister' is defined in s 3 to mean the Minister in his or her capacity as the body corporate continued under s 7(1) which refers to the body corporate established under the repealed Land Act 1933 (WA) under the name of the Minister for Lands.

14 Section 178 sets out the requirements for the content of a taking order. I will refer to this section in more detail below.

15 Part 10 of the Land Act deals with compensation. 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 (s 202(1)).

Town Planning and Development Act

16 The respondent also relied on s 13 of the Town Planning and Development Act 1928 (WA) (Planning Act) as a source of power to make the taking order. Section 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) purchase any land comprised in such scheme from any person who may be willing to sell the same; 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 Responsible authority is defined in the Planning Act to mean the local government responsible for the enforcement of the observance of a scheme, meaning a town planning scheme under the Planning Act.

18 It was accepted that the PRS was a town planning scheme for the purposes of s 13 and the respondent was given the powers of a responsible authority in relation to that scheme by s 37F of the Commission Act.

Railway (Northern and Southern Urban Extensions) Act 1999

19 The Railway (Northern and Southern Urban Extensions) Act 1999 (WA) (Railway Act) is a 'special Act' for the purposes of s 177(2) of the Land Act. Section 151 of the Land Act incorporates relevant definitions in the Public Works Act into Pt 9 of the Land Act. Section 96(1) of the Public Works Act provides:

Every railway shall be made only under the authority of a special Act which shall state as nearly as may be the line of the railway and the 2 termini thereof; but it shall be lawful to deviate from such line at a distance of 1.6 kilometres on either side thereof, or such other distance as may be provided in any special Act.

20 The term 'railway' is defined in s 95 of the Public Works Act to include 'the land upon which any railway is made or authorised to be made' and 'all land taken, purchased, or acquired for railway purposes'.

(1) 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 Schedule 2.

(2) Despite the deviation specified in section 96(1) of the Public Works Act 1902, the railway may deviate to a distance of 4 kilometres on either side of the line described in Schedule 2.

22 Schedule 2 describes the line in general terms by reference to Australian Map Grid references and certain roads, and by reference to Department of Transport map 936-00-13.

(a) s 13(2) of the Planning Act intended to authorise a taking without a notice of intention to take [18];

(b) the taking of the appellants' land was sufficiently related to the PRS for the taking to be properly regarded as being for the purpose of the PRS as required by s 13(1) of the Planning Act. The end to be achieved by the taking order was to secure the land for regional transport including railways and roads [34];

(c) the taking of the balance of Lots 7 and 8 so as to avoid landlocked land was incidental to providing for the reservation and protection of the land for regional transport and hence was for the purpose of the PRS [44];

(d) as the subjective purpose of the respondent 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, the taking was for the purpose of the PRS [50];

(e) the proposed taking of the appellants' land was for the purpose of a railway authorised by a special Act. Thus, a notice of intention was not required and the taking order was a valid exercise of the power conferred by s 177(2) of the Land Act [56], [57];

(f) if the taking order was invalid, the doctrines of approbation and reprobation and election had no application [72].

24 The respondent had also claimed that if the appellants made out their case, the court should decline in the exercise of its discretion to make the requested declaration having regard to the appellants' delay in challenging the taking order and the consequential detriment to the respondent and others. In view of his findings the trial judge concluded it was neither necessary nor appropriate to deal with this defence.

25 The appellants rely on eight grounds of appeal, some of which do not clearly identify the matters in issue and some of which overlap. I understand the substance of the grounds of appeal to be as follows:

1. none of the land was taken for the purposes of the PRS because the intended purpose of the taking (railway purposes) was inconsistent with the actual reservation and zoning of the land under the PRS;
2. the taking was in excess of power because more land was taken than required for the public purpose of a railway;
3. the taking of the non-reserved land under the PRS (being the balance of Lots 7, 8 and 30 zoned urban, urban and industrial respectively) was taken for an improper purpose being (i) to avoid the statutory obligation to install a crossing; and (ii) because it would reasonably be expected that the balance land would not remain landlocked in the future;
4. it was not established that the railway the subject of the Railway Act was the same railway as the South-West Metropolitan Railway referred to in the taking order and thus there was no proven special Act authorising the railway;
5. the primary judge erred in finding that because the appellants' land fell within 4 kilometres on either side of the railway, the taking of the whole of the land was consistent with the Railway Act;
6. the taking order was invalidated by reason of the failure to refer to the Railway Act as the source of power to compulsorily acquire the land;
7. the Minister did not intend to rely on s 177(2) of the Land Act and thus it cannot be a source of power to validate the taking order;
8. as the land was not taken for the purpose of the PRS or for the purpose of a railway authorised by a special Act, the taking order was invalid for failure to issue a notice of intention to take the interests.

26 The respondent filed a notice of contention that:

1. having approbated the taking order by making a claim for compensation and accepting the payment of compensation in respect of the taking of the land, the appellants may not now reprobate the taking order by challenging its validity;
2. the appellants made a binding election to pursue their claim for compensation rather than challenge the validity of the taking order;
3. in the alternative the court should exercise its discretion to refuse to grant declaratory relief on the grounds of the appellants' delay in commencing their proceedings combined with the prejudice that delay will occasion to others if relief were now granted.

27 The outcome of this appeal will not determine all relevant issues in the action. The appellants did not seek, in addition to declaratory relief, an order that the respondent transfer the taken land back to the appellants. The respondent intends to resist a claim for such an order on the basis it has indefeasible title to the taken land under the TLA. As the indefeasibility issue was not determined below and with the consent of the parties is not to be addressed in this appeal, the respondent could not press its contention relating to delay. That issue can only be dealt with by the trial judge after determining the indefeasibility issue.

28 In its submissions the respondent addressed a number of legal issues raised but not determined in Re MacTiernan; Ex parte McKay [2007] WASCA 35 which concerned the validity of a taking order. The court in McKay considered the relationship between s 191 of the Planning and Development Act 2005 (WA) (which is in similar terms to s 13 of the now repealed Planning Act) and s 177 of the Land Act. However, the appellants did not claim that the form of the taking order was defective for non-compliance with the Planning Act nor did they assert that a notice of intention was required for a taking order under s 13 of the Planning Act. Accordingly it is unnecessary and inappropriate to address those matters.

29 The essence of the appellants' contention is that land can only be compulsorily acquired under s 13(1)(b) of the Planning Act if the land is reserved under the PRS and the purpose of the acquisition is consistent with the reservation. That is, the reserved land could only be taken for the purpose of a Primary Regional Road not a railway and the land zoned urban and industrial could not be taken at all.

30 The respondent contends that the power in s 13 is not expressed as a power to take land which is reserved for some public purpose under a scheme but rather is a power to take land for the purposes of a scheme.

31 The meaning of the phrase 'for the purpose of a town planning scheme' in the opening words of s 13 raises a question of statutory construction. This court's task is to make an objective determination of the intention of the legislature by reference to the language and purpose of s 13 in the context of the Planning Act as a whole. The purposes of a town planning scheme, in this case the PRS, is to be determined in the same way as the purpose of an enactment is determined. The starting point is the terms of the PRS as a whole.

32 I will refer to the PRS in this context as the Scheme. The Scheme comprises the Scheme text and the Scheme map (cl 4). Clause 5 states the purposes of the Scheme as follows:

The purposes of the Scheme are to -

(a) provide for the reservation and protection of land for regional transport, conservation, recreation and public uses;

(b) provide for the zoning of land for living, working and rural land uses;

(c) provide a mechanism for landowners to be compensated in a fair and equitable manner where land is reserved for a public purpose;

(d) provide an opportunity for the formal environmental assessment of regional planning proposals and provide increased certainty to such proposals;

(e) provide a mechanism for certain development of regional significance, and development in areas of regional significance, to be considered and approved by the Commission; and

(f) identify and protect land having strategic importance for industrial and future urban use.

33 Clause 9 deals with Reserved Land defined in cl 2(2) to mean land reserved under the Scheme for a public purpose. Clause 9 provides:

The lands shown as Reserved Lands on the Scheme Map are reserved under the Scheme for the public purposes shown on the Scheme Map.

34 The various categories of public purpose are indicated by a specified colour in the Scheme map. The categories are regional open space, railways, state forest, waterways, primary regional roads, other regional roads and public purposes. The last category is subdivided into five subcategories being hospital, high school, public utilities, special uses and university. The subcategories are identified by a letter superimposed on the same colour.

35 Clause 10 describes the categories of public purposes. It relevantly provides:

Land is reserved under the Scheme for the following public purposes -

...

(b) 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;

...

(d) 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.

36 Clauses 11 and 12 deal with zones. Clause 11 provides:

(1) The region is classified into the zones shown on the Scheme Map.

(2) The zones are delineated and depicted on the Scheme Map according to the legend on the Scheme Map.

37 There are seven zones including urban, urban deferred, regional centre, industrial and rural. Clause 12 materially provides:

Land is classified into zones under the Scheme for the following purposes -

(a) Urban - to provide for residential development and associated local employment, recreation and open space, shopping, schools and other community facilities;

...

(d) Industrial - to provide for manufacturing industry, the storage and distribution of goods and associated uses.

38 Subject to cl 19 and cl 20, a person must not commence or carry out development on Reserved Land or development of a kind or class specified in a resolution made by the Commission unless that person has applied for and obtained a planning approval of the Commission (cl 18).

The following development on reserved land does not require the planning approval of the Commission -

...

(e) development on reserved land owned by or vested in a public authority that is -

...

(iii) 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, but this does not include the construction or alteration of a railway station or any related car parks, public transport interchange facilities, or associated means of pedestrian or vehicular access.

40 By cl 20(b) of the PRS Reserved Land owned by or vested in a public authority may be used by the public authority without the approval of the Commission if the land is used for any purpose for which the land may be lawfully used by the public authority.

41 In order to be 'for the purpose of a town planning scheme' the acquisition must be consistent with the terms and effect of the scheme. The taking of Lot 49 and the reserved portions of Lots 7, 8 and 30 for railway purposes is, in my view, consistent with the PRS. It is clear from the Scheme map, in particular the land expressly reserved for railways, that a portion of the Primary Regional Road was always intended to accommodate the railway. The explanation for the designation of the purpose as Primary Regional Road is that the Scheme map does not allow for the identification of multiple public purposes of the same reserved land. However, to take land zoned urban or industrial for a public purpose is not consistent with the PRS. The purpose of the PRS is to identify all land that is intended to be taken and used for public purposes and to specify the uses of the remaining land. To take land zoned urban or industrial in the PRS for a public purpose is not for the purpose of the PRS.

42 A number of considerations support the conclusion that an acquisition under s 13 must be consistent with the terms of the relevant town planning scheme. First, it is in accord with the natural and ordinary meaning of the statutory language. Secondly, it is consistent with the purpose of the statutory exclusion by s 13(2) of the procedures in s 170 to s 175 of the Land Act. Those sections in the Land Act set out the procedures for taking interests in land without agreement. The procedures in the Land Act include the giving of a notice of intention to take (s 170), the opportunity for interested parties to object to the proposal to take land (s 175(1)) and an obligation on the Minister to consider the objections before deciding whether the notice of intention should stand or be amended or cancelled (s 175(5)).

43 In making a regional planning scheme under s 18(1ba) of the Commission Act, the respondent must comply with the procedures in specified sections of the Metropolitan Region Town Planning Scheme Act 1959 (WA) (Metropolitan Scheme Act) as if the regional planning scheme was an amendment to the Metropolitan Region Scheme (s 18(1a) of the Commission Act).

44 The procedures in the Metropolitan Scheme Act include, subject to Ministerial consent, seeking and considering public submissions on the proposed amendment. Public submissions were sought on the draft PRS. The appellants successfully opposed a proposal in the draft that the areas of Lots 7 and 8 not reserved for Primary Regional Roads be reserved for 'Public Purpose - University'.

45 It can be inferred that the legislature dispensed with the public consultation procedures in s 170 to s 175 of the Land Act because the need for or opportunity to provide public submissions had already been considered or given in the context of making or amending the regional planning scheme. Section 13(2) of the Planning Act was inserted by the Town Planning and Development Act Amendment Act 1957 (WA). The second reading speech for that Act confirms the correctness of the inference.

46 Thirdly, the phrase 'for the purpose of a town planning scheme' is the only limitation on the scope of the compulsory acquisitions power in s 13 of the Planning Act. Compare s 161 of the Land Act which provides for the compulsory acquisition of land for a public purpose. If the classification of the land into zoned and reserved land is not regarded as fixed or immutable by the relevant scheme, there is no other logical basis for limiting the scope of s 13.

47 The respondent relies on the fact that there is no reference in the Planning Act to classification of land use into land reserved for public purposes and private or other uses, relying on s 6 and items 6 and 10 of the First Schedule of the Planning Act. That may be so, however, the reservation of land for public purposes has a long history under Western Australian planning legislation as explained in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, 321 - 322. The purpose of a reservation is to indicate the intention that the land will be purchased or taken by government for public purposes. Moreover, reservation for public purposes is recognised in s 33 and s 36(3) of the Metropolitan Scheme Act and s 12(2a) of the Planning Act. In any event, purpose is to be determined by reference to the terms of the relevant scheme and the PRS classifies land into that reserved for public purposes and other land for primarily (if not wholly) private uses.

48 The limiting phrase 'for the purpose of a town planning scheme' also governs s 13(1)(a) of the Planning Act which empowers the responsible authority to purchase any land comprised in a town planning scheme from any person who may be willing to sell the same. I infer that is intended to dovetail with the procedure in s 168 and s 169 of the Land Act for taking interests in land by agreement. That is, if land is required for a public purpose, the responsible authority may enter into an agreement to purchase it.

49 For these reasons I conclude that the compulsory acquisition of Lot 49 and the reserved portions of Lots 7, 8 and 30 are for the purpose of the PRS but the compulsory acquisition of the zoned portions of Lots 7, 8 and 30 are not for the purpose of the PRS. I would uphold ground 1 in part.

50 The appellants' contention in ground 1 depended solely on the classification of land under the PRS. The second ground is based on the fact that the zoned portions of Lots 7, 8 and 30 were not required or actually used for the railway (or primary regional road). The appellants contend that if more land is taken than is required for the stated public purpose, the taking is invalid unless there is an express statutory power enabling the additional land to be taken, relying on Thompson v The Council of the Municipality of Randwick [1950] HCA 33; (1950) 81 CLR 87. Thompson is not authority for that proposition. In that case, a local council resumed land for a complicated scheme that involved creating a new road and path, closing old roads in whole or in part, re-subdividing allotments and creating new lots. More land was resumed than required for the scheme. It was intended to sell the land not required for the scheme and use the proceeds to reduce the scheme costs. The High Court invalidated the resumption on two grounds. The first was that the resumption was outside the scope of the statutory power to resume land and the second was that if the power was wide enough to permit the physical works, the council was actuated by an improper purpose.

51 As to the first ground, the High Court construed the statutory power in question as being one to resume land for a purpose authorised elsewhere in the relevant legislation. The High Court identified all relevant statutory purposes and concluded that those purposes did not authorise the resumption of land beyond that required to construct the new road and footpath. The case contains no statement of general principle relating to the construction of legislation authorising the compulsory acquisition of land. It goes no further than confirming that the limiting phrase 'for the purpose of a town planning scheme' in s 13 of the Planning Act is to be determined in accordance with accepted canons of statutory construction.

52 I have concluded that s 13 of the Planning Act does not authorise the taking of the zoned portions of Lots 7, 8 and 30. There remains the question whether the taking of all the land was in excess of the power in the Land Act, assuming for present purposes that the South-West Metropolitan Railway was a railway under a special Act.

53 The source of the acquisition power to compulsorily acquire land for railways is s 161 of the Land Act. Land may be taken under s 161 if (1) a State instrumentality is authorised by an Act to undertake, construct or provide any public work and (2) the use of any land is required for the purposes of that public work.

54 The Public Works Act states the parameters of what is a public work for the purposes of s 161 of the Land Act and those parameters in turn determine what is for the 'purpose of a railway'.

55 By s 96 of the Public Works Act, a railway can only be made under the authority of a special Act. The special Act relied on for the South-West Metropolitan Railway is the Railway Act. Section 2 of the Public Works Act defines public work to include '[a]ny railway authorised by a special Act or any work whatsoever authorised by any Act'.

56 As previously noted, the term 'railway' is expansively defined in the Public Works Act to include all land taken for any railway purposes. The width of the definition is consistent with the very extensive powers given to the PTA (the relevant State instrumentality) to construct a railway. Those powers are contained in s 99 to s 111 of the Public Works Act. Section 99(1)(c) and (i) relevantly provide:

The Public Transport Authority may do the following things in respect of any railway authorised by a special Act:

...

(c) Make the railway upon, across, over, or under any road, street ...;

...

(i) Do all acts necessary for making, equipping, maintaining, altering, repairing, and using the railway.

57 The PTA also has the power to alter or close roads (s 101(2)(a), s 104 and by inference s 99(1)(i)).

58 Section 102 of the Public Works Act provides:

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.

59 The term 'road' is defined in s 84 of the Public Works Act to mean a public highway. Thus, the obligation in s 102 arises notwithstanding the land can be accessed by a private road or there are reasonable prospects of a public road being provided in the future.

60 The relevant questions of statutory construction are first whether the PTA is empowered to determine whether, and if so where, crossings (level, under or over a road) are to be located and constructed along a railway line and second, whether s 102 is an unavoidable limitation on that power. Having regard to the sections of the Public Works Act referred to above, the answer to the first question is unequivocally yes. Further, cost and safety factors are considerations the PTA would be entitled to take into account in the exercise of that power. I note for the record that the appellants do not challenge the decision on the ground that irrelevant considerations were taken into account. I am also satisfied that s 102 is not an unavoidable limitation on the exercise of the power in relation to crossings. The obligation to provide a crossing only arises in relation to land in private ownership. The acquisition of land in order to avoid a road crossing is capable of being for a railway purpose and thus within the scope of the power in s 161 of the Land Act.

61 The conclusion that such a 'railway purpose' is within the scope of s 161 of the Land Act depends on assumptions that were not expressly addressed by the appellant. They are that the 'use' of the land was 'required' for the purposes of the railway. The term 'use', in its statutory context, is intended to have a wide meaning. It does not mean the land must be physically used in any way; it is sufficient if a passive holding is relevantly required for the purpose in question, in this case, railway purposes: Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493, 499 - 500. The determination of what is 'required' does not involve an objective test to be determined by this court. The PTA has the statutory power to make all relevant decisions in respect of any railway authorised by a special Act. Whether the use of land is 'required' is to be determined by reference to the valid and binding exercises of discretionary power made by the PTA under the Public Works Act. The correct question is what land is required in order to give effect to the valid decisions of the PTA, including those related to the number and location of crossings. This fundamental proposition is evident in the approach taken by the High Court in Estates Development Co Pty Ltd v The State of Western Australia [1952] HCA 42; (1952) 87 CLR 126 and Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678, 680 - 681.

62 The appellant relied on Prentice v Brisbane City Council [1966] Qd R 394. The council in that case resolved to resume the plaintiff's land in order to provide a roadway leading to a bridge which was proposed to be constructed across a river to provide access to land being developed by private interests. The court held that there was no power to compulsorily acquire private land for the purpose of facilitating the private development. However, that conclusion depended on the construction of legislation that had no equivalent to the PTA's powers and obligations, including s 102 of the Public Works Act.

64 The appellants contend the respondent acted for an improper purpose. The focus of the administrative law doctrine of improper purpose is on the conduct of the decision-maker: Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603. Where improper purpose is alleged, it is first necessary to identify the statutory or authorised purposes for which the discretionary power is given. That exercise has been undertaken in the determination of grounds 1 and 2. Secondly, it is necessary to identify the purpose in fact of the relevant decision-maker. There was no issue in this case as to the identity of the relevant decision-maker. Moreover, it was common cause that the actual purpose of the decision-maker in compulsorily acquiring the zoned portions of Lots 7, 8 and 30 was to avoid crossings to each of those lots. This was the only improper purpose relied on by the appellants. Their case went no further than a claim that such a purpose was outside the scope of the purposes for which the statutory power could be exercised.

65 It follows from my analysis of the scope of s 161 and the relevant provisions of the Public Works Act that the compulsory acquisition of the non-reserved portions of Lots 7 and 8 in order not to activate the obligation to make a crossing for access to each of Lots 7 and 8 is not for an improper purpose. That leaves the acquisition of the zoned portion of Lot 30.

66 The primary judge held that the test of improper purpose is subjective. He said:

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 [49].

67 There is no direct challenge to that decision. Moreover, even if the test is subjective it is accepted that purpose can be, and usually is, inferred from objective factors including the nature of the decision, the circumstances in which it was made and its effect: Brownells Ltd v Ironmongers' Wages Board [1950] HCA 3; (1950) 81 CLR 108; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109, 134. It seems to me the real issue is whether the purpose of the decision-maker (like the intention of a contracting party) is to be solely determined objectively or whether subjective evidence is admissible. In the leading cases on improper purpose the High Court has taken into account subjective evidence of purpose: Thompson v The Council of the Municipality of Randwick; Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678.

68 The facts in relation to Lot 30 give rise to a situation not expressly considered in any authority to which we were referred. On the objective facts, the acquisition of the zoned portion of Lot 30 was incapable of being for the purposes of the railway. If the facts were as mistakenly believed by the decision maker, the acquisition would have been for a railway purpose. In my view, the general administrative law doctrine of improper purpose only arises for consideration if, on the objective facts, the decision is capable of being within power. If it were otherwise, a mistake as to a fact could expand the scope of the legislative power underpinning the decision. That simply cannot be correct. In the High Court cases on improper purpose to which we were referred, the decision under challenge was objectively capable of being within the scope of the authorised purposes. In Thompson v The Council of the Municipality of Randwick the High Court only went on (at 105) to consider improper purpose on the assumption that the acquisition was capable of falling within the authorised statutory purposes. Further, the High Court said in R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 203 that courts will ensure that a discretionary power is not exercised 'outside the purpose of the Act ... or upon an incorrect basis of fact'.

69 There has in this case been a failure to recognise that the issue of purpose arises in two different ways. First, the power to take under s 13(1) of the Planning Act and s 161 of the Land Act only arises if, on the objectively determined facts, the taking is capable of being for the relevant purposes identified in those statutory sources of power. If the answer to that question is in the affirmative, the general improper purpose doctrine may come into play.

70 For these reasons, the acquisition of the zoned portions of Lots 7 and 8 are a valid exercise of the power in s 161 of the Land Act, whereas the taking of the zoned portion of Lot 30 is ultra vires. I would uphold ground 3 in part.

71 The appellants contend it was not proven that the South-West Metropolitan Railway referred to in the taking order was that referred to in Sch 2 of the Railway Act. The railway approved in the Railway Act was referred to therein as the southern extension and described as the Jandakot-Rockingham-Mandurah Railway which was to commence 29.7 kilometres along the Kewdale to Kwinana railway line.

72 The appellants relied on the second reading speech for the Railway Act for the proposition that the legislative intention was that the Jandakot-Rockingham-Mandurah Railway be an extension of a railway already constructed between Perth-Kenwick-Jandakot. They then rely on judicial notice of the fact that the route of the railway between Perth and Jandakot changed, going instead down the Kwinana freeway.

73 All of the land the subject of the taking order was in the Mandurah district. The evidence of Mr Timothy Hillyard, the manager of the respondent's Land Asset Management Branch, was that the proposed route of the railway the subject of the taking order was that marked on Department of Transport map 936-00-13, being the map referred to in Sch 2 of the Railway Act. That map shows the commencement point at Jandakot and the termination point in Mandurah with the route going through the reserved portions of the appellants' land. The clear and uncontradicted inference is that the southern extension of the railway authorised by the Railway Act was the railway referred to in the taking order. I would dismiss ground 4.

74 The primary judge relied on s 4(2) of the Railway Act for his conclusion that the taking of the appellants' land was for the purpose of a railway authorised by a special Act. He said:

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 [appellants] do not deny that the [appellants' 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 [appellants' 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) [56].

75 The appellants challenge the correctness of this reasoning. I would uphold this ground. The fact that the appellants' land was within the area in which deviation of the line was statutorily permitted does not establish that the taking of the non-reserved portion was for railway purposes. The evidence established that the zoned portion of Lots 7, 8 and 30 were not used for the railway from which it can be inferred there was no relevant deviation of the line. It is to be expected that the route of the railway would be determined within the margins permitted by the Railway Act prior to the identification of the land to be compulsorily acquired. Although I would uphold this ground, it has no effect on the outcome of the appeal.

76 The appellants contend the source of the power to compulsorily acquire land for railway purposes is the Railway Act and as a result there had to be a reference in the taking order to the Railway Act. The submission is without merit. The Railway Act is not the source of the power to compulsorily acquire the land. The source of the power to take is s 161 of the Land Act and the source of the power to issue a taking order is s 177 of the Land Act. The taking order expressly states that the land is compulsorily taken under s 177 of the Land Act. I would dismiss this ground.

77 The appellants contend the Minister did not intend to rely on s 177(2) of the Land Act and therefore it cannot be a source of power to validate the taking order.

78 The court raised with the respondent's counsel a matter not raised below or by the appellants in the appeal. The taking order was signed by the Minister for Planning and Infrastructure and the Governor in Executive Council. The power to issue a taking order under s 177(1) and s 177(2) of the Land Act is conferred on the Minister, defined in s 3 of that Act to mean the Minister in his or her capacity as the body corporate continued under s 7(1) of the Land Act. Section 7(1) materially provides:

The body corporate established under the repealed Act under the name of the Minister for Lands is continued as a body corporate under this Act under that name and consists of the Minister to whom the administration of this Act is from time to time committed by the Governor.

79 The evidence established that the Minister for Planning and Infrastructure was at the time of the taking order the Minister to whom the administration of the Land Act was committed by the Governor.

80 There is nothing in the taking order that supports the appellants' contention that the Minister did not intend to rely on s 177(2). The objective indications in the taking order are that it was intended to rely on s 13 of the Planning Act and s 177 of the Land Act. The Minister for Planning and Infrastructure had no other basis for signing the taking order except in her capacity as the Minister administering the Land Act. Moreover, the purpose of the acquisition was identified in the Schedule as to include railways. The background material upon which the decision to issue the taking order was made supported the inference that the intention of the decision makers was to take the appellants' land for railway purposes. As previously noted, s 96(1) of the Public Works Act provides that every railway shall be made only under the authority of a special Act. It automatically followed that a notice of intention to take was not required (s 170(2) of the Land Act) in which event a source of power under the Land Act is s 177(2).

81 The appellants relied on three indicators of an intention not to rely on s 177(2). The first is the minutes of the Executive, Finance and Property Committee meeting stating that the taking process was dependent on the passing of the PRS. However, the taking order relates to a variety of land for a number of purposes in addition to the purpose of a railway. The other purposes are primary regional roads, regional open space - Paganoni Swamp and public purposes - university. It is clear from the express terms of the taking order that reliance is placed on s 13 of the Planning Act and s 177 of the Land Act.

82 The second indicator is that the consent of the Governor in Council was sought and obtained. That is consistent with the intention to rely on a dual source of power being s 13 of the Planning Act and s 177 of the Land Act.

83 Lastly, the appellants rely on s 241(2)(a) of the Land Act. Section 241(2) sets out the mandatory relevant considerations in determining the amount of compensation to be paid for land taken under Pt 9. It provides:

(2) Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on -

(a) in the case of an interest taken for a railway or other work authorised by a special Act - the first day of the session of Parliament in which the Act was introduced;

(b) in the case of an interest taken by agreement under section 168 - the date of the execution of the agreement, unless the agreement provides otherwise; or

(c) in the case of an interest to which paragraphs (a) and (b) do not apply - the date of the taking,

and discounting any increase or decrease in value attributable to the proposed public work.

84 The application of s 242 does not depend on the intention of the maker of the taking order. It is to be determined objectively. Moreover, the appellants conducted their case on the basis that the land was acquired for the purposes of a railway which is established by the evidence.

85 Further and in any event, if there is another head of power available and all conditions precedent to its valid exercise have been satisfied, the decision is valid despite intended reliance on an unavailable head of power: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 [124]; VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 [18] - [55]. The same principle applies where reliance is placed on several sources of power with no incompatibility between them: Gorczynski v Perera [2004] NSWCA 70; (2004) 132 LGERA 341 [75] - [80].

86 There is nothing in the Land Act which makes it a condition of the valid exercise of the power that the decision-maker intend to exercise the power or refer to the specific source of the power when exercising it. Section 178(1) of the Land Act identifies the matters that must be in a taking order. Section 178(2) identifies what may be in a taking order. Neither subsection requires reference to the source of the power in the taking order. My preliminary view is that s 178 is intended to exhaustively state the matters which must and may be included in a taking order in which event the failure to refer to a matter not listed in s 178(1) cannot invalidate the taking order. However, it is unnecessary to determine that question in view of my conclusion that it is implicit in the taking order that s 177(1) and s 177(2) are relied on as a source of the power to make the taking order.

88 The only sources of power relied on to uphold the validity of the taking order are s 13 of the Planning Act together with s 177(1) of the Land Act and s 177(2) of the Land Act. In either circumstance, a notice of intention to take is not required. Accordingly, this ground should be dismissed.

89 I have concluded that the taking of the whole of the land in Lots 7, 8 and 49 and the reserved portion of Lot 30 is within power. The question is whether the invalid acquisition of the zoned portion of Lot 30 invalidates the taking of all the lots the subject of the action.

90 The appellants by their conduct below and in the appeal implicitly accept that the common law doctrine of severability applies to taking orders under the Land Act. They did not challenge the validity of the taking order generally but only in relation to the nominated lots. A challenge to the taking order generally would have required the joinder of all persons whose land had been taken by the taking order.

91 The common law doctrine of severability as it applies to subsidiary legislation was explained by the High Court in Harrington v Lowe (1996) 190 CLR 311:

As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred appears to be that a valid operation for the sub-rules might be preserved after textual surgery by operation of the 'blue pencil' rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject matter dealt with from what it would otherwise be (328).

92 The common law also applies to administrative decisions: Peters v Attorney General (NSW) (1988) 16 NSWLR 24, 41 approved in Malubel Pty Ltd v Elder (No 2) (1998) 73 ALJR 269. The court in Peters held that the doctrine of severability applied to warrants issued in excess of power. The court said severance was available unless the invalid aspect forms part of an inseparable context or the warrant would operate differently or produce a different result from that which was intended. The relevant inquiry appears to be whether the instrument would have been made without the invalid portion (Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3rd ed, 2004) 642).

93 Applying the test in Peters and because the references to the individual lots are textually severable, the taking of Lot 30 can and should be severed from the valid taking of Lots 7, 8 and 49.

94 The remaining question is whether the invalid taking of the zoned portion of Lot 30 invalidates the taking of the reserved portion of that lot. There can be no doubt that, with knowledge of all relevant facts, the taking order in respect of the reserved portion of Lot 30 would still have been made. The zoned portion of Lot 30 is not part of an inseparable context, nor does its severance produce an unintended result. Moreover, I am not persuaded the failure to undertake the necessary steps to survey and subdivide the reserved portion from the balance of Lot 30 prior to the making of the taking order is an impediment to severance. They are mechanical steps which can and would have been taken if the decision makers had not acted in the mistaken belief that a crossing was required to Lot 30. Any severability order relating to Lot 30 would be conditional upon all necessary steps being taken by the respondent to subdivide the zoned portion of Lot 30 from the balance of the lot.

Notice of contention - approbation, reprobation and election

95 Where land is taken as a result of the registration of a taking order, all rights and interests affecting the land are converted into a claim for compensation under Pt 10 of the Land Act (s 179). There is an extendable time limit of six months to make a claim for compensation under Pt 10 (s 207). Where a person has claimed compensation under Pt 10, the acquiring authority may offer to pay to the claimant an amount as an advance payment pending settlement of the claim and, if the claimant accepts the offer, make the payment, but the payment does not prejudice the rights of the claimant under Pt 10 (s 248).

96 The evidence establishes that the appellants were provided with a copy of the taking order in August 2003 and made a claim for compensation under Pt 10 of the Land Act. By August 2004 the appellants received partial payments of compensation in a combined total of $2,788,500 together with interest at 6% from 30 April 2004. The first appellant and the second appellants each executed a Deed headed 'Partial Discharge of Claim'. As the respondent does not rely on the terms of the Deeds in support of its notice of contention, it is unnecessary to refer to them.

97 The appellants have not repaid the money. They have said they will repay it in the event the court finds the taking order to be invalid. After the making of the taking order, the construction of the railway over the taken land commenced (and is now completed).

98 The trial judge dismissed the respondent's claim that the doctrines of approbation and reprobation or alternatively election prevented the appellants from challenging the validity of the taking order. The primary judge concluded that neither doctrine applied if the taking order was invalid as a result of a defect that was incapable of being waived (being one that is essential to the validity of the taking order). The respondent disavowed any reliance on estoppel.

99 The law in Australia (but not in English law) is that estoppel does not apply against a public authority where the source of the relevant decision making power is statutory: Minister for Immigration and Ethic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193; Attorney General (NSW) v Quin (1990) 170 CLR 1, 17. Gummow J in Kurtovic at 208 was concerned with estoppel by representation, particularly in relation to future conduct. The doctrine cannot operate to prevent or hinder the performance of a statutory duty or the exercise of a statutory discretion. The primary judge relied on these decisions in support of his dismissal of the respondent's claims. However, three matters should be noted.

100 First, in this case the doctrines are sought to be applied against private citizens and not against the public authority. Kurtovic and Quin involved conduct that was said to impact on the future exercise of a discretionary power. We are here concerned with the conduct of a private citizen relating to the past exercise of a discretionary power. Secondly, no mention is made in Kurtovic and Quin of the doctrines of approbation and reprobation and election. Thirdly, it remains to be determined whether the material facts otherwise generating an estoppel could justify the refusal of discretionary relief to the person whose conduct is in question.

101 The trial judge also relied on the English decisions of Swallow and Pearson v Middlesex County Council [1953] 1 All ER 580 and Mounsdon v Weymouth and Melcombe Regis Borough Council [1960] 1 QB 645.

102 In Swallow & Pearson the plaintiff building contractors used some land at the rear of their premises for light industrial purposes. The defendant local planning authority served on them an enforcement notice under the relevant planning legislation requiring them 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. The local planning authority contended that the plaintiffs were estopped from denying its right to proceed on the notice and from impugning its validity because, after being served with the enforcement notice, the plaintiffs applied for planning permission and were said to have thereby elected to treat the notice as valid. Parker J said:

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 (582).

103 The facts in Mounsdon were similar and the court applied Swallow & Pearson. The appellant contends the conduct in those cases did not engage the doctrines of approbation and reprobation or election.

104 The issues raised by the notice of contention are (1) is there an independent doctrine of approbation and reprobation separate and distinct from that of election; (2) if so, is the knowledge required for the doctrine of election applicable to the independent doctrine; (3) are the elements of the doctrines of approbation and reprobation or election satisfied; and (4) does the Kurtovic principle apply by way of analogy to render these doctrines inapplicable.

105 It is convenient to commence with the doctrine of election. I am assisted by the discussion on the topic in Handley K R, Estoppel by Conduct and Election (2006) who distinguishes between four categories of election. The first is election between alternative and inconsistent rights such as where an innocent contracting party elects to terminate a voidable contract for breach or fraud. The choice is not between two sets of rights which co-exist but a choice between an existing set of rights and a new set which does not yet exist. The election terminates one set of rights and creates another. Such an election is irrevocable. This type of election is not applicable in this case. The appellants by their conduct cannot terminate or create statutory sourced powers or rights.

106 The second is election between estates, otherwise known as equitable election. This doctrine applies where a person receives a gift under a will or other instrument. The third is election between inconsistent remedies. That applies where the law provides inconsistent remedies for one cause of action or claim. In these circumstances, there is no binding election before final judgment is entered. The final category is election in procedure which involves choices made during proceedings before final judgment or award. Such elections are not binding in the absence of an estoppel. The first, third and fourth categories are common law elections.

107 The conditions for and consequences of the individual categories of election differ. For example, the election becomes irrevocable at different points. Further, the authorities suggest that knowledge may not be relevant if judgment has been entered. However, in relation to election between inconsistent rights there must be an unequivocal act with knowledge of the material facts: Sargent v ASL Development Ltd [1974] HCA 40; (1974) 131 CLR 634, 642; Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290. Subject to one qualification, the law is unclear as to whether there must also be knowledge as to the existence of a right to elect. The qualification is that knowledge of the right to elect is not required where the election is between contractually conferred rights or property rights (Sargent (645, 658); Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622, 634). Moreover, the balance of authority suggests that where a party acts unequivocally in a way that is only consistent with an election one way, it is not necessary to establish that the party was aware of their right to elect: Sargent (656 - 658); Ellison v Lutre Pty Ltd [1999] FCA 399; (1999) 88 FCR 116; Wiltrading (304 - 305).

108 The doctrine of approbation and reprobation was initially part of Scottish law. Its English equivalent was the doctrine of equitable election between estates: Lissenden v CAV Bosch Ltd [1940] AC 412; Douglas-Menzies v Umphelby [1908] AC 224; Elder's Trustee and Executor Co Ltd v Commonwealth Homes and Investment Co Ltd [1941] HCA 31; (1941) 65 CLR 603, 617 - 618. The notion of approbation and reprobation is used interchangeably in the case law with election, waiver and estoppel. As a result, it is difficult to confidently identify from the cases the material elements of any independent doctrine of approbation and reprobation.

109 There is authority in Australian law for an independent doctrine of approbation and reprobation: Commonwealth v Verwayen (1990) 170 CLR 394, 421 - 422 (Brennan J); Fried v National Australia Bank Ltd [2000] FCA 910. The doctrine is summarised in Halsbury's Laws of Australia, vol 190 [190-35] as follows:

A person may not 'approbate and reprobate', meaning that a person, having a choice between two inconsistent courses of conduct and having chosen one, is treated as having made an election from which he or she cannot resile once he or she has taken some benefit from the chosen course.

110 In Halsbury's Laws of England, vol 60 [962] the authors state:

Thus a claimant, having two inconsistent claims, who elects to abandon one and pursue the other may not, in general, afterwards choose to return to the former claim and sue on it; but this rule of election does not apply where the two claims are not inconsistent and the circumstances do not show an intention to abandon one of them.

Some examples may illustrate. Douglas-Menzies v Umphelby is an example of equitable election. By two testamentary instruments called respectively a British will and an Australian will, a testator made a complete disposal of his estate. The testator's widow successfully challenged the British will but sought to claim the beneficial dispositions in her favour in the Australian will. The Privy Council held that the two instruments formed one will containing a coherent scheme of intention and that the widow, having elected to defeat the will in part, could not then claim under it and thus took no interest under the Australian will.

111 In Express Newspapers plc v News (UK) Ltd [1990] 3 All ER 376 the plaintiff instituted proceedings against the defendant for infringement of the plaintiff's copyright in the text of an exclusive interview. The defendant served a defence and counterclaim which was the exact mirror image of the plaintiff's claim, alleging the plaintiff had, subsequent to instituting proceedings, infringed the defendant's copyright in the text of an exclusive interview with another person. The plaintiff obtained summary judgment on its claim on the basis that copyright subsisted in the whole of the plaintiff's article. The defendant then applied for summary judgment on its counterclaim. The plaintiff said it had an arguable defence to the counterclaim (which would have been equally applicable to the plaintiff's claim). The court held that the defendant was entitled to summary judgment, applying the principle that a person may not approbate and reprobate and adopt two inconsistent attitudes towards another person but must elect between those attitudes and, having elected to adopt one stance, it could not thereafter be permitted to go back and adopt an inconsistent stance. Summary judgment being a final judgment, this decision may be supportable on the alternative ground of issue estoppel.

112 In Verschures Creameries Ltd v Hull and Netherlands Steamship Co Ltd [1921] 2 KB 608 the plaintiffs were precluded from bringing an action against the defendants for negligence and breach of duty as carriers. The plaintiffs had delivered goods to the carriers to be forwarded to a customer in another city. Before the goods had been delivered, the plaintiffs instructed the carriers not to deliver them to the customer but the goods were nevertheless delivered. The plaintiffs thereafter invoiced the goods to the customer and sued him and recovered judgment for the price of goods sold and delivered. The court held that in suing the customer for the contract price, the plaintiffs had adopted the act of the carriers and having sued the customer to judgment could not then elect to treat the delivery as unauthorised and sue the carrier. That case is better classified as an election between inconsistent rights, the plaintiffs having elected to ratify the unauthorised conduct of its carrier.

113 A Victorian case decided on the doctrine of approbation and reprobation is Bienvenu v Royal Society for Protection of Animals [1967] VicRp 74; [1967] VR 656. The plaintiff, purporting to be a contributory of the defendant association, commenced proceedings against it. On the basis that the association's by-laws were valid, the plaintiffs obtained interlocutory orders, including an order for costs which were subsequently paid. Subsequently, the plaintiff issued a writ claiming a declaration that the same by-laws on which he had earlier relied were invalid as being beyond power. Starke J held that although the association's by-laws were invalid, the plaintiff was not entitled to succeed because having relied on the validity of, and thereby approbated, the by-laws in the earlier action and having been paid costs by the association, the plaintiff could not in the current action rely on the invalidity of, and thereby reprobate, the by-laws. The doctrine of issue estoppel did not apply because the decisions were interlocutory.

114 The respondent also relied on Australian Workers Union New South Wales Branch v Minister for Natural Resources (1991) 26 ALD 461 and Edwards v Culcairn Shire Council [1964] NSWR 873. In Australian Workers Union, the Australian Workers Union (AWU) challenged the validity of a proclamation made by the Governor under the Mines Inspection Act 1901 (NSW) exempting a mining company from the working hours provisions of the Act. The basis of the challenge to the exemption was an alleged failure to accord procedural fairness to the AWU. Prior to the commencement of the proceedings, the AWU had successfully taken action in the Industrial Commission for an increase in wage rates in which action the AWU relied on the validity of the exemption, arguing a breach of one of its conditions had occurred. The court held (Priestly and Handley JJA, Samuels JA not deciding) that the AWU could not claim the exemption was void for denial of procedural fairness. Handley JA said:

I am also satisfied that by the time the union commenced proceedings in the court challenging the validity of the exemption it was estopped by its conduct from doing so. For some months it had conducted the proceedings in the Industrial Commission on the basis that the exemption was valid and it had successfully relied upon the inability of the employer to satisfy the conditions of the exemption as an answer to the application for an award to permit 12 hour shifts. This conduct may be described as approbating and reprobating, election, waiver or estoppel. I prefer to regard it as a form of estoppel by convention because between 8 December 1989 when the proclamation was gazetted and 27 March 1990 the proceedings in the commission were publicly conducted by both sides on the basis that the existing exemption was valid. In doing so the union relied on and took advantage of the conditions in the exemption. This conduct on its part cause detriment to the employer and the minister because had the objection been taken ... it would have been open to the employer to seek a fresh exercise of the power (469 - 470).

Thus, the challenge to the validity of the proclamation did not prevent a finding of estoppel against the AWU.

115 Edwards v Culcairn Shire Council concerned local government legislation in New South Wales which entitled a council to terminate an employee notwithstanding that a report of an inquiry into his conduct was substantially favourable to the employee. However, in those circumstances the legislation enabled compensation to be awarded to the employee in the discretion of the Minister. The plaintiff was in that position and he made an application to the Minister for compensation. The Minister directed the local council to pay the plaintiff a specified sum which was paid to and accepted by the plaintiff. The plaintiff subsequently sued the council at common law for damages for wrongful dismissal. The Full Court held that the plaintiff was estopped from bringing the common law action. The plaintiff argued that the local council suffered no detriment because he was prepared to give credit for the monies received under the statutory scheme. The Full Court said the arguments were misconceived because the remedy under the statute was not identical with that which would be open at law. After referring to the doctrines of election, estoppel and approbation and reprobation the Full Court said it did not matter how the matter was classified. It continued:

The right of election which the plaintiff exercised by invoking the subsection was between alternative remedies which not only possessed a different character (one being an action at law and the other a proceeding of an administrative nature) but which provided monetary compensation on different bases (one by reference to reasonable notice and the other by reference to a statutory formula to which notice is irrelevant). It is, as we have already said in discussing the earlier pleas, impossible to allow a party in the position of the plaintiff to pursue these remedies concurrently, and when compensation has been provided by the statutory means and accepted by the servant, access to the other means must inevitably be denied in consequence of the operation of the principles we have attempted to expound (879).

116 The decision in Edwards is consistent with the English cases of Slough Estates Ltd v Slough Borough Council [1969] 2 Ch 305 and Baxter v Eckersley [1950] 1 KB 480. In Slough Estates, the claimant sought and obtained compensation as a result of council refusing a 1955 planning application. The claimant did not but could have relied on planning consent given in 1945. In 1966, the claimant sought a declaration that the 1945 approval was still in force. The court held that the claimant in claiming and accepting the compensation had irrevocably elected one of two inconsistent rights. The court required knowledge of the material facts (the 1945 planning permission) but not of the right to elect.

117 Most of the above cases involved preventing a person from relying on a state of affairs which had formed the basis for a judgment or order. That is not this case. Where there was no judgment or order (Edwards v Culcairn Shire Council and Slough Estates) the person had a choice between valid and properly available alternatives. In this case the appellants have only one valid alternative. The existence of one defeats the other.

118 The authorities support the contention that there is an independent doctrine of approbation and reprobation which falls outside the four categories of election to which I have referred. On any view, the independent doctrine requires that there be a choice between two inconsistent courses of conduct or claims. There is no arguable inconsistency of rights in this case because an invalid taking order cannot be the basis of a right to compensation under the Land Act.

119 What then is the conduct or claim said to be inconsistent with the appellants challenge to the validity of the taking order. It cannot simply be the lodging of a claim under Pt 10 of the Land Act. The mere making of two alternative inconsistent claims is not sufficient. That involves the same element of prematurity reflected in the doctrine of election between inconsistent remedies which provides that there is no binding election until judgment is entered. The time limit for applying for compensation supports the conclusion that there can be concurrent challenges to the validity of a taking order and a claim for compensation. I agree with the respondent that there was no relevant inconsistency in Swallow & Pearson.

120 The respondent claims the inconsistent conduct in this case is the appellants' acceptance of the s 248 offer and receipt of an advance payment of compensation. The right to compensation under Pt 10 of the Land Act is dependent on the validity of the taking order. The receipt of compensation in whole or in part is implicit acknowledgement of the validity of the taking order. The appellants' act is unequivocal in the sense that it is only consistent with an election one way. Thus, the appellants' acceptance of the offer and receipt of the advance payment of compensation is directly inconsistent with the appellants' claim that the taking order is invalid.

121 The question then is whether knowledge, and if so, of what, is required. The first point to note from the decided cases on approbation and reprobation is that in most cases judgment has been entered in which event knowledge of the factual bases for alternative and inconsistent claims and the right to elect simply do not feature as issues.

122 My preliminary view is that, save where a judgment or order has intervened, the knowledge required for an election for the purposes of the independent doctrine of approbation and reprobation is the same as that required for a binding election between inconsistent rights. However, it is unnecessary to determine that issue because I am satisfied on the evidence that at the time of the advance payment the appellants were aware of all the material facts, including the fact and content of the taking order, the terms of the PRS and the reasons for taking all of Lots 7, 8 and 30, being access considerations.

123 However, I would not uphold the respondent's claim that the doctrine of election prevents the appellants from challenging the validity of the taking order. It is clear from the description of the four categories of election that none apply to the circumstances of this case. Further, the case law suggests that the doctrine of election is confined to choices between lawful alternative rights and claims, save perhaps where judgment intervenes.

124 That is also the clue to the resolution of the question whether the independent doctrine of approbation and reprobation applies to prevent the appellants from pressing their claims the subject of this action. The answer is the doctrine does not apply because the appellants have not received a relevant benefit. They have not received a benefit because the advance payment is liable to be forfeited on the ground that the taking order, and all consequential conduct including the advance and Deed related thereto, are in excess of power and thus invalid. No restitutionary defence is claimed by the appellants.

125 It is clear that in the absence of a judgment or order, a public authority exercising statutory power cannot, for the purposes of the doctrine of approbation and reprobation make a binding election between a valid and an invalid course of conduct. The choice simply can not arise. In such circumstances the appellants could not rely on the doctrine against the statutory decision-maker. (The doctrine would apply if the public authority had a choice between valid alternatives.) Mutuality is achieved in that the doctrine of approbation and reprobation does not apply against the appellants who would be liable to forfeit the only relevant benefit

being the advance payment under the Land Act. If the taking of the land is indefeasible under the TLA, the appellants would then have a right to compensation under the TLA not the Land Act and the payment under the Land Act would still be liable to forfeiture. Accordingly, I would dismiss the notice of contention.

126 I would dismiss the appeal save in relation to the zoned portion of Lot 30. I would also dismiss the notice of contention. I would decline to make any further orders in the appeal having regard to the outstanding questions being whether the respondent has an indefeasible title to the taken land under the Transfer of Land Act 1893 (WA) and whether declaratory relief should be refused in the exercise of the court's discretion.

127 BUSS JA: I agree with McLure JA, for the reasons she gives, that:

(a) the appeal should be dismissed, save in relation to the zoned portion of Lot 30;

(b) the notice of contention should be dismissed; and

(c) this court should decline to make any further orders in the appeal having regard to the outstanding questions, being whether the respondent has an indefeasible title to the taken land under the Transfer of Land Act 1893 (WA) and whether declaratory relief should be refused in the exercise of the court's discretion.

128 I have some additional observations on the issue of whether the acquisition of land in order to avoid the creation of a road crossing is capable of being an acquisition of land for the purposes of the public work in question, and thus within the scope of the power in s 161 of the Land Administration Act 1997 (WA) (Land Act).

129 Section 102 of the Public Works Act 1902 (WA) provides:

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.

Section 102 has been part of the Act since its enactment in 1902. Some amendments, which are immaterial for present purposes, were made by s 166(1) of the Public Transport Authority Act 2003 (WA), but otherwise s 102 remains in its original form.

130 The duty which s 102 of the Public Works Act imposes on the Public Transport Authority is engaged where the making of a railway line has resulted in land (other than Crown land) ceasing to be accessible by road. That is, the duty does not arise unless and until all access by road to the land in question has actually been cut off. If that circumstance occurs, the Public Transport Authority must make such crossing or crossings over, under or across the railway line as may be necessary to give access by road to such land.

131 In my opinion, s 102 of the Public Works Act does not expressly or impliedly prohibit an acquiring authority from taking a parcel of land, that would otherwise become inaccessible by road as a result of the making of a railway line, for the purpose of avoiding the necessity to create a road crossing.

132 By s 161(1) of the Land Act, relevantly:

Whenever the Crown, the Governor, the Government, any Minister of the Crown, any State instrumentality or any local government is authorised, by this Act, the Public Works Act 1902 or any other Act, to undertake, construct or provide any public work, and the use of any land or any interest in land is required for the purposes of the work, then, unless otherwise specially provided -

(a) any interest in the land held by a person other than the Crown may be taken;

...

in accordance with this Part.

133 Section 4 of the Railway (Northern and Southern Urban Extensions) Act 1999 (WA) authorised the undertaking, construction and provision of the Perth to Mandurah railway. The railway was a 'public work' and a 'work' within s 161(1) of the Land Act. See the definitions of those terms in s 151(1) of the Land Act. The respondent was therefore empowered by s 161(1) of the Land Act to acquire any land, the 'use' of which was 'required' 'for the purposes of [the public work]'; that is, for the purposes of the railway.

134 The word 'use' is of wide import. Its meaning in a particular case depends, to a significant extent, on the context in which it appears. See Ryde Municipal Council v Macquarie University [1978] HCA 58; (1978) 139 CLR 633, 637 (Gibbs ACJ). For example, in Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 (High Court); [1959] UKPCHCA 1; (1959) 100 CLR 1 (Privy Council), it was held that 291 acres of timbered land surrounding a hospital was 'used' for hospital purposes, even though the land was not put to any physical use by hospital staff or patients. It was sufficient that the land was a barrier to air and noise pollution and provided a serene environment for patients.

135 In my opinion, the word 'use' in s 161(1) of the Land Act does not require that all of the land in question be used physically; that is, in the present case, be land on which the railway track, infrastructure and associated improvements and facilities is undertaken, constructed or provided.

136 The word 'required' in s 161(1) of the Land Act connotes that the acquiring authority has determined, in accordance with the statutory powers that authorise it to undertake, construct or provide the public work in question, that the 'use' (in the sense I have explained) of the land to be taken is necessary for undertaking, constructing or providing the work. The word 'required' does not import an objective test to be satisfied independently of the proper exercise of the acquiring authority's discretionary power to undertake, etcetera, the work and, in that context, the authority's proper determination of the nature and extent of any interest in land which it is necessary to use (and, therefore, take) for the purposes of the work.

137 In my opinion, the 'use' of any land may be 'required' 'for the purposes of [a public work]', within s 161(1) of the Land Act, if the land is to be used (and, therefore, taken) for a purpose which is incidental to the undertaking, construction or provision of the public work. Compare, in very different contexts, The Wik Peoples v The State of Queensland (1996) 187 CLR 1, 114 (Toohey J); Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; (1994) 179 CLR 388, 400 (Toohey and Gaudron JJ).

138 In the present case, the non-reserved portions of Lots 7 and 8 will constitute land, the use of which was required for the purposes of the Perth to Mandurah railway, if those portions were required for a purpose which was incidental to the undertaking, construction or provision of the railway.

139 In my opinion, the non-reserved portions of Lots 7 and 8 were required for a purpose which is properly to be characterised as 'incidental' to the undertaking, construction or provision of the railway. I am of that opinion for these reasons.

140 First, the area of the non-reserved portions of Lots 7 and 8 was not disproportionate to the area of the whole of the land acquired from the

appellants. Secondly, the purpose of the acquisition of those portions (namely, to avoid the necessity to create a road crossing) arose directly from the acquisition of the adjoining land for the purpose of undertaking, constructing and providing the railway track, infrastructure and associated improvements and facilities.

141 The acquisition of the non-reserved portions of Lots 7 and 8 in order to avoid making such crossing or crossings, as would otherwise have become necessary to give access by road to those portions, was not an acquisition for an improper purpose. There was a real connection between the use which was intended to be made of the non-reserved portions of Lots 7 and 8, on the one hand, and the undertaking, construction or provision of the railway, on the other. It was an acquisition of land, the use of which was required for a purpose 'incidental' to the undertaking, construction or provision of the railway and, therefore, an acquisition for a proper purpose.

142 MURRAY AJA: In this matter I have had the considerable advantage of access to the reasons, in draft, of McLure and Buss JJA. I agree in part with the orders proposed by McLure JA. I would allow the appeal, in relation to the zoned portions of Lots 7, 8 and 30

143 I would dismiss the notice of contention, for the reasons given by McLure JA, to which I have nothing to add. Accepting, without deciding, that there is a doctrine of approbation and reprobation upon which a party in the position of the respondent may seek to rely to defeat a claim by a party in the position of the appellant in this case, I agree that the issue is not fairly raised as a matter of fact, nor is there evidence of an election by the appellants to pursue a right inconsistent with the present claim. In my view, these matters do not arise for decision.

144 As to the appeal, I respectfully agree with McLure JA that this is a case where there may be severance in respect of those parts of the lots in question, Lots 7, 8 and 30, from each other, and of the zoned and reserved portions of the lots, for the purpose of considering the validity of the taking order. Lot 49 may be put to one side because I agree, for the reasons given by McLure JA, that the appeal may not succeed in respect of this lot. Like McLure JA, I can see no reason why the fact that there has not been survey and subdivision of Lots 7, 8 and 30 to formally divide the zoned portions of those lots from the reserved portions provides any impediment to severance in respect of the operation of the taking order.

145 For my purposes, it is sufficient to observe that the land in question was taken as part of the process of setting aside land for the South-West

Metropolitan Railway, which was to pass, and did in fact pass, over such of the land in question as was reserved for Primary Regional Roads under the Peel Region Scheme. That reservation was of the western portion of Lots 7 and 8. The eastern portion of those lots had no separate public road access and abutted the campus of the Peel Regional TAFE. Lot 49 was wholly reserved, and the eastern portion of Lot 30 was so reserved, the western portion being zoned industrial under the Peel Region Scheme.

146 I agree that in this case, s 4 of the Railway (Northern and Southern Urban Extensions) Act 1999 (WA) authorised the provision of this railway as a special Act within the meaning of s 96(1) of the Public Works Act 1902 (WA) which requires a railway to be made under the authority of a special Act. In this context, by s 95 of the Public Works Act, the term 'railway' includes 'all land taken, purchased, or acquired for railway purposes'. In that case, the railway, as so defined, is a 'public work'.

147 The taking order will be validly made for the construction of a railway, as so defined, if it is in accordance with a special Act passed to authorise that construction: Land Administration Act 1997 (WA), s 177(2). But in my opinion that is a provision merely concerned with the mechanical process of the making of a taking order. It authorises action by the responsible Minister of State. The power to take, I think, for present purposes, is found in s 161(1)(a) of the Land Administration Act, which applies, so far as material, whenever the State or State instrumentality is authorised by an Act 'to undertake, construct or provide any public work'. Then, if 'the use of any land or any interest in land is required for the purposes of the work', 'any interest in the land held by a person other than the Crown may be taken'. In this case, the interest in land taken was the fee simple. It was taken upon the basis that the use of the land was 'required for the purposes of the work', the provision and construction of the railway.

148 I agree with McLure JA that for the reasons given by her Honour none of the grounds of objection to the validity of the taking order in respect of the reserved portions of Lots 7, 8 and 30 and the whole of Lot 49, are made out. On the other hand, it seems to me to be clear that there was no ground for the valid taking of the portion of Lot 30 which is zoned industrial under the Peel Region Scheme. McLure JA has sufficiently adverted to the relevant facts. On any view of it, the use of the zoned portion of Lot 30 was not required for the purposes of the construction and provision of the railway.

149 To my mind, it is a much more difficult question whether, under s 161 of the Land Administration Act, there was a valid taking of the portions of Lots 7 and 8 zoned urban under the Peel Region Scheme.

150 It is clear, of course that the land was not required for any purpose directly associated with the provision of the railway. The line was not, to any degree, to be constructed on this land. No necessary associated works were to be located there. The simple fact is that this land was taken because the taking of the reserved portions of the lots would leave this land, situated between the railway and the TAFE campus, isolated and inaccessible by public road. It seems that this need not inevitably continue to be the case indefinitely into the future. But that seems to me to be irrelevant when the question is the validity of the taking, having regard to the circumstances as they then existed.

151 Section 102 of the Public Works Act 1902 (WA) 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.

It was to avoid that obligation that the zoned portions of Lots 7 and 8 were taken.

152 It may be accepted that, generally speaking, it is for the relevant public authority to determine where and in what form such railway crossings are to be provided, having regard to the need for them, and safety considerations. When s 102 operates, it imposes an additional obligation on the Public Transport Authority, simply by reason that access has been cut off. When the obligation arises it seems to me to be expressed in absolute terms, but it does not arise until the making of the railway line, as a public work, has cut off all access by road to the land in question.

153 It follows, therefore, that the obligation generated under s 102 of the Public Works Act cannot be used, as the appellants seek to use it in this case, to support the argument that the zoned portions of Lots 7 and 8 could not, as a valid exercise of power, be compulsorily taken for the purpose of avoiding the necessity, because the land in question would revert to Crown land, to provide a railway crossing or crossings so as to give access to the zoned portions of the land by crossing the railway line from the west.

154 In my view, the relevant question in relation to the validity of the taking of the zoned portions of Lots 7 and 8 depends upon whether, within the terms of s 161(1) of the Land Administration Act, the taking of this land was supportable because it was 'required for the purposes of the work. The 'work' was that authorised by the Railway (Northern and Southern Urban Extensions) Act 1999 (WA), s 4(1), being, '[a] railway, and all necessary, proper and usual works and facilities in connection with the railway', which was to be constructed and was in fact constructed.

155 In a provision such as s 161, I accept that the word 'use' is a word of wide import, the meaning of which will depend on the statutory context: Ryde Municipal Council v Macquarie University [1978] HCA 58; (1978) 139 CLR 633, 637. For present purposes, I think the context is to be taken not only from the fact that land is to be taken and compulsorily acquired from private landowners because it is required to be used for the purposes of a public work, but, under s 4(1) of the special Railway Act, the particular public work is the construction of the railway and all necessary, proper and usual works and facilities in connection with the railway. I accept, as Buss JA would hold, and as the trial judge held, that the use of land may be required for the purposes of a public work if it is required for a purpose incidental to the undertaking, construction or provision of the public work. But here, such incidental work is expressly authorised by s 4(1) of the special Railway Act.

156 At this point, the question upon which the validity of the taking of the zoned portions of Lots 7 and 8 depends, may be re-stated, combining the special authorisation of the construction of this railway, the public work in question, and the test of the validity of the taking in terms of s 161(1) of the Land Administration Act. Was the land comprising the zoned portions of Lots 7 and 8 required for the purposes of the construction and maintenance of the railway and/or necessary, proper and usual works and facilities in connection with the railway?

157 In the end, the conclusion to which I have come, with respect for the contrary view expressed by McLure and Buss JJA, is that the acquisition of the land in question for the express purpose of returning it to the status of Crown land so as to avoid, in future, the operation of s 102 of the Public Works Act, was not in any way to acquire the land because it was required to be used for railway purposes. No matter how expansively it may be suggested that those purposes may be interpreted, the respondent did not submit that the zoned portions of Lots 7 and 8 were required to be used for railway purposes at all.

158 They were not to be used for the purpose of constructing and maintaining the railway itself; nor were they to be used as the location of any ancillary works and facilities to be constructed and provided for the purpose of supporting the railway or its operation, or incidentally to its provision. It is not enough, in my opinion, that it is found to be convenient, in terms of cost and the necessity for the work, to avoid, in relation to this land, the otherwise mandatory obligation which would be incurred to restore access to the land in question, under s 102 of the Public Works Act, when the land itself is in no way required for railway purposes.

159 I would therefore allow the appeal in relation to the validity of the taking order so far as it affects the zoned portions of Lots 7, 8 and 30. As at present advised, I agree that this court should make no further order or declaration. There are issues of alleged indefeasibility of title and concerning whether declaratory relief and orders as to the reconveyance of the land should be refused on discretionary grounds, which are as yet unresolved. I would hear the parties as to the costs of the appeal.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MANDURAH ENTERPRISES PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASCA 211 (S)

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

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

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

Practice and procedure - Application to vary costs order - Slip rule - Whether omission accidental - Whether court has inherent jurisdiction to vary order - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 21 r 10, O 43

Supreme Court (Court of Appeal) Rules 2005 (WA), r 63

Second Appellants : Mr R I Viner QC & Ms L E Rowley

1 McLURE JA: The appellants applied to vary the costs order made by the court on 17 October 2008 in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211. At the hearing of the application on 6 February 2009 the court dismissed the application with costs. These are my reasons for joining in those orders.

2 The parties were provided with an advance copy of the judgment in the appeal which was delivered on 17 October 2008. After hearing from the parties, the court made the following orders:

(1) The appeal be dismissed, save in relation to that portion of Lot 30 on Diagram 74229 zoned 'Industrial' under the Peel Region Scheme.

(3) Order 1 of the order of Le Miere J made on 23 February 2007 be set aside so far as it dismisses the appellant's application for declaratory and other relief in relation to that portion of Lot 30 on Diagram 74229 zoned 'Industrial' under the Peel Region Scheme.

(4) The application for declaratory and other relief in relation to that portion of Lot 30 on Diagram 74229 zoned 'Industrial' under the Peel Region Scheme be remitted to the trial judge for determination according to law and in accordance with these reasons.

3 On 13 November 2008 the orders were entered in accordance with O 43 of the Rules of the Supreme Court 1971 (WA) (Rules) which applies to the Court of Appeal (r 63 of the Supreme Court (Court of Appeal) Rules 2005 (WA)).

4 The appellants seek to vary order 5 by adding that each party also bear the costs of the proceedings at first instance. The proposed variation is inconsistent with order 2 made by the primary judge on 23 February 2007. Order 2 is in terms that the plaintiffs (appellants) pay the defendant's (respondent's) costs of the application to be taxed. Order 3 of the orders made by the Court of Appeal on 17 October 2008 (setting aside order 1 but not order 2 made by the primary judge) was made by consent. Order 2 made by the primary judge would have to be set aside before making the variation sought by the appellants.

5 At the hearing on 17 October 2008 the appellants did not seek an order that the costs order made by the primary judge be set aside nor did it seek an order that each party bear their own costs of the proceedings at first instance. It is apparent from the transcript of the hearing on 17 October 2008 that the extracted orders reflect the objectively determined intention of the coram. There was no objectively determined or subjective intention of the coram to order that each party bear their own costs of the proceedings at first instance.

6 The appellants contended that this court had jurisdiction to vary the costs order under O 21 r 10 of the Rules, known as the slip rule, or in the inherent jurisdiction of the court. Order 21 r 10 provides:

Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.

7 There was no mistake or accidental slip or omission by the court or its officers. The accidental slip or omission, if there be one, is that of the appellants' legal advisers. The slip rule also applies to mistakes or errors by a party's legal representative: L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) [1982] HCA 59; (1982) 151 CLR 590, 594.

8 In Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, the New South Wales Court of Appeal construed the New South Wales equivalent of O 21 r 10 which is in materially the same terms. The court held that an omission or mistake should not be treated as accidental if the proposed correction requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist; it should be such that had the matter been drawn to the court's attention at the time, the correction would have been made at once. I see no justification for taking a different approach to the construction of O 21 r 10 of the Rules.

9 Applying the test in Storey, the variation proposed by the appellants cannot be characterised as accidental. The facts and discretionary considerations relating to the appropriate costs order in the appeal in which there was an unsuccessful notice of contention are not the same as those relating to the costs of the proceedings at first instance. If the application in relation to the costs below had been made at the appropriate time, it cannot be said it would clearly have been made if asked for. The merits of the application are neither obvious nor compelling. Accordingly, the slip rule has no application.

10 The appellants also rely on the inherent jurisdiction of this court to vary an order to avoid injustice, relying on Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 and Monaco v Arnedo Pty Ltd (1994) 13 WAR 522. This court in The State of Western Australia v Wallam [2008] WASCA 117 (S) was required to determine the question of its jurisdiction as an intermediate appellate court to reopen or reconsider a formally recorded order. Applying a long line of High Court authority culminating in Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221, the court in Wallam concluded that, in the absence of a statutory provision to the contrary and subject to certain narrow exceptions, this court does not have jurisdiction to reopen or reconsider an extracted order. The slip rule is one of the narrow exceptions. The appellants were unable to point to any other provision of the Rules or Supreme Court Act 1935 (WA) which would enable this court to make the variation order.

11 This court having no jurisdiction to make the order, it is unnecessary to determine whether the limitations applying to an intermediate Court of Appeal also apply to a final order made at first instance or whether the effect of the orders made in the appeal is that the costs order made by the primary judge is not final.

12 BUSS JA: For the reasons expressed by McLure JA, I joined in the orders made by the court on 6 February 2009.