Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39

6. The plaintiff, Murdesk Investments Pty Ltd ("Murdesk"), is and was at all relevant times a company carrying on the business of investment and development of land.

9. The defendant, Roads Corporation ("the Corporation"), is a body corporate under the provisions of the Transport Act 1958, empowered by statute to build roads in this State and in performing that purpose, having authority to acquire an interest in land by compulsory process.

13. The circumstances leading to the dispute between the parties can be briefly summarised. On 1 February 2000, Murdesk purchased pursuant to a terms contract of sale from Mr and Mrs George Bell, a large area of land known as 335-413 Cooper Street, Epping. The land is more particularly described in Certificate of Title Volume 6821 Folio 512. The land was farmland, comprising 184 acres (74.58 hectares) and is described in the Certificate of Title as "being part of Lots 4 and 5 on Plan of Sub-division No. 8359 lodged in the Office of Titles" ("the Murdesk land"). The plan on the Certificate of Title reveals two equal parcels of land, each approximately 37 hectares, described as 4 and 5, having a frontage of some 700 metres to the south side of Cooper Street which runs east-west. Cooper Street is a major east-west arterial road linking High Street Epping to the Hume Highway. The total purchase price has been paid and the land was transferred into Murdesk's name. The transfer was lodged in the Land Registry on 22 February 2005.

16. The Corporation is constructing an overpass freeway known as the Craigieburn Bypass Road. By notice of acquisition dated 11 February 2002 the Corporation compulsorily acquired a portion of Murdesk's land comprising 16.48 hectares. The area acquired is shown as parcel 11 on Roads Corporation plan 20161. The acquired land being part of the Craigieburn Bypass runs north-south through the western part of Murdesk's land. The acquisition resulted in the western portion of Murdesk's land, which according to the Certificate of Title plan was part of Lot 4 on a plan of sub-division, being divided into two parts. As a result, on the western side of the acquired land is a small sliver of land with an area of 2.9415 hectares. This is landlocked, and it is common ground that it is of little value. The eastern portion of Lot 4 has an area of approximately 21.5 hectares. This portion and the whole of parcel 5 comprises an area of approximately 55.1 hectares. Because the acquired land is irregular, there is no road access from Cooper Street into the balance of parcel 4 which was remaining after the acquisition. Nevertheless there is access from Cooper Street into parcel 5 which was left intact. Attached to these reasons and marked A is Plan of Sub-division No. PS 518224Q prepared by the Corporation and it shows the acquired land, the sliver of land to the west of the acquired land which is described as Lot 2, and the balance of the land which is described as Lot 1. The dotted line running north-south is the original boundary according to the two parcel plan which is on the Certificate of Title.

19. The parties are in dispute with respect to the amount of compensation for the acquired land and that dispute has been referred to this Court for determination. The proceeding is progressing through the interlocutory steps and is to be heard later this year. It is proceeding No. 5064 of 2003.

22. Prior to the acquisition, the land in the Certificate of Title comprised parts of Lots 4 and 5 of a Plan of Sub-division and the actual plan on the Certificate of Title revealed two approximately equal parcels of land. As a result of the acquisition the western parcel, being part of Lot 4, has been divided into two. This has resulted in a de facto sub-division. Section 35 of the Sub-Division Act 1988 ("the Act") deals with acquisition of land by an acquiring authority. The Corporation is an authority. Section 35(1) obliges the authority to submit a plan to the council for certification if the acquisition has resulted in a sub-division. It clearly has and the Corporation is obliged to submit a plan of sub-division to the council for certification and lodge it for registration.

25. From the date of acquisition until the institution of this proceeding on 29 November 2004, the parties have been negotiating with respect to the form and content of the sub-division plan which the Corporation must submit to the local council. There has been much correspondence between the parties. Unfortunately, they cannot agree on the layout of the sub-division. The Corporation provided Murdesk with a copy of PS 518224Q on 10 July 2003 with an indication that it wished to lodge a plan in that format pursuant to its statutory obligation. Murdesk for its part produced a number of different plans. Prior to the institution of the proceeding, Murdesk had on 17 August 2004, submitted a plan to the Corporation comprising four separate lots and indicating that this was its preferred plan. The plan number is PS 528527P. It is attached to these reasons marked "B".

28. The Murdesk plan divides the land to the east of the acquired land into three separate lots with a roadway running north-south for approximately two-thirds the length of the land south of Cooper Street, and Lot 4 is the sliver of land to the west of the acquired land. The Corporation is not prepared to lodge that plan. Hence, the dispute between the parties. It is common ground that the Murdesk plan requires a planning permit from Whittlesea Council whereas the Corporation's plan does not.

31. At the outset, it is important to note that prior to the institution of the proceeding which was instituted without notice to the Corporation, it was the intention of the Corporation to submit its plan and when the proceeding was instituted a decision was made not to submit that plan pending the outcome of the proceeding. It is accepted by counsel for Murdesk that the Corporation was intending to submit the plan in purported discharge of its statutory obligation. However, it is the contention of Murdesk that the proposed plan is not the appropriate one. Murdesk contends that its plan or a variation of it, would be the more appropriate plan and by failing to lodge one put forward by Murdesk, the Corporation was not discharging its duty in accordance with the law.

34. As the proceeding was instituted without notice to the Corporation, and also because the Corporation proposed to lodge its plan, the Court must proceed on the basis that the Corporation was proposing to comply with its statutory duty and would have done so but for the institution of the proceeding and a decision made by the Corporation to not submit it pending the outcome. Mr C. Porter, who appeared with Mr P. Simpson for the plaintiff, accepted that the Court must proceed on that assumption, and hence if the lodging of that plan was in discharge of its duty, his client would not be entitled to an order requiring the Corporation to lodge it. It is necessary to identify with precision the issues in this proceeding because of the nature of judicial review. I will do so after discussing the nature of the jurisdiction.

37. The Corporation is of the view that the Murdesk plan of sub-division is in fact a development plan which would involve the Corporation obtaining approval from referral authorities, and seeking a planning permit from the Whittlesea Council. This may expose it to objections from land owners and result in a proceeding in the Victorian Civil and Administrative Tribunal. It is common ground that the Corporation would have to apply for a planning permit and all that entails if it submitted the Murdesk plan. The Corporation plan on the other hand avoids all these problems. It would still be open to Murdesk to make application to sub-divide the land after the Corporation plan was certified and registered. After the institution of the proceeding and before the hearing, Murdesk produced three alternative plans. The Corporation contends that if it was required to lodge a plan in the form of any of those put forward by Murdesk, including its preferred plan, it would be performing a task outside its powers. The submission is that the Murdesk plans are development plans and the Corporation has no statutory power to engage in development of land.

41. In this proceeding, the plaintiff invokes the ancient common law jurisdiction of this Court which empowers this Court to supervise the exercise of the decision-making process of a variety of bodies including inferior courts, tribunals and statutory authorities. The jurisdiction is limited to ensuring that the decision maker exercises its jurisdiction, authority and power in accordance with the law and that it performs its duties in accordance with the law. In former days, the nature of the relief was the issue of one or more of the prerogative writs of certiorari, prohibition and mandamus. It is an ancient jurisdiction going back over many centuries and its importance was emphasised by Lord Denning in Baldwin & Francis Ltd v Patents Appeal Tribunal & Ors [1] where his Lordship said:

"There is nothing more important, to my mind, than that the vast number of tribunals now in being should be subject to the supervision of the Queen's courts. This can only be done if the remedy by certiorari is maintained in the full scope which the great judges of the past gave to it. Any anxiety about an undue extension of the remedy is fully met by the knowledge that, in cases where there is a right of appeal, the courts may in their discretion refuse the order. When there is no right of appeal, this historic remedy has still a valuable part to play: or at any rate, it should have, if we wish any longer to ensure that the rights of the people are determined according to law." (Emphasis added).

45. His Lordship's observations apply to decisions made by statutory authorities.

48. Over the years the remedies available in the exercise of this supervisory jurisdiction suffered from a number of procedural defects. The jurisdiction had its own special procedures and rules concerning remedies, and on occasions applications failed because of some technical defect. By reason of the introduction of Order 56 of the Rules of Court, the defects were swept away and the Court's power to make orders to give effect to a failure to exercise power in accordance with law were widened. Hence orders could be made staying a decision, a declaration could be made or an injunction granted. Order 56 is concerned with procedure, and save for the abolition of the old writs of certiorari, mandamus, prohibition and quo warranto, it did not in any way affect the jurisdiction of the Court. Rule 56.01(1) enables this Court by judgment or order to make the appropriate order giving effect to any finding by the Court that a statutory authority has failed to comply with the law and the orders are described as being in the nature of, inter alia, mandamus, which in effect is an order made directing a court, tribunal or authority to perform a duty in accordance with the law.

51. The remedy of a mandamus-type order which is sought in the present proceeding, is a means by which, inter alia, a statutory authority is required to perform its duty. It is a discretionary remedy and may be withheld in the interests of justice.

54. The nature of the jurisdiction and the object of a mandamus-type order were considered by the High Court in The King v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd [2] where the Court said:

"Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue whenever there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided for enforcing that right: R v The Commissioners of Inland Revenue; in Re Nathan. The writ goes only in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner."

"The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognized grounds upon which the court may, in its discretion, withhold the remedy."

62. The Court listed examples of withholding such as if there was a more convenient and satisfactory remedy available, if no useful result would ensue, if a party had been guilty of delay or there had been bad faith on the part of the applicant. However, the Court did underline the importance of the discretion, that it was judicial, and made clear that if there had been demonstrated a refusal to perform a duty, the writ would normally issue. The Court said:

"The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."

66. It is important to emphasise that the common law jurisdiction of this Court supervising the exercise or non-exercise by a statutory body of its power or duty, is not an appeal. The jurisdiction is limited, and where the order sought is in the nature of a mandamus-type order, the jurisdiction is only exercisable if it is established that the authority has refused to exercise its duty or power in accordance with the law. As a general proposition an authority would not be refusing to perform its statutory obligation merely because it performed its duty in a way that was contrary to the views of the party affected by the decision. The exercise of its authority may result in a decision which was contrary to the merits or the interests of a party but it could not be said that it had failed to act in accordance with its statutory duty. Mandamus-type orders are made where there is a clear case of refusal to exercise the duty in accordance with the law. This Court as a general rule is not concerned with the merits.

69. The distinction between the supervisory jurisdiction and an appeal was emphasised by A.L. Smith LJ in The Queen v Justices of London [4] in these terms where he said:[5]

"When an inferior court hears and determines a matter within its jurisdiction, however erroneously it may decide, either the law or the facts therein, no mandamus will go, the reason being that the Court of Queen's Bench has no prerogative to decide by way of appeal matters decided by an inferior court within its jurisdiction. But when an inferior court has declined jurisdiction the Court of Queen's Bench has a prerogative by way of mandamus to command the inferior court to proceed to do its duty according to law, and when an inferior court has usurped jurisdiction, that is, has exceeded its jurisdiction, certiorari or prohibition is the appropriate remedy."

73. The same observations apply to a statutory body performing a statutory duty. It is necessary to prove that the body has refused to perform its statutory duty in accordance with the law. The supervisory jurisdiction is not on appeal. The court is not concerned with the merits. There must be proof that the statutory body has refused to exercise its powers or duty in accordance with the law. This has caused courts in the past to state a rule to the effect that it must be proven that a demand was made and there was a refusal to act. However, the issue is one of fact. The High Court said in Re Media, Entertainment and Arts Alliance & Ors; Ex Parte The Hoyts Corporation Pty Ltd & Ors [6] that there is no rule of law to that effect, "but a convenient method of testing whether there has been a refusal, actual or constructive, to exercise the jurisdiction" is to make a demand.[7] The refusal to exercise a power or duty in a lawful way can be proved as a matter of inference, for example, by proof of procrastination or prevarication. See R v Tower Hamlets London Borough Council [8].

76. A mandamus-type order is available to compel the lawful exercise of a duty or discretion conferred upon a statutory body. Depending upon the nature of the statutory provisions, a public authority may be under a duty to do something or may be entrusted with the exercise of a discretionary power or a combination of both. If a statutory body unlawfully declines to perform its duty or power or misunderstands the nature of it, a mandamus-type order may be granted to command it to exercise its statutory obligations and powers in accordance with the law. In addition, the court can make a mandamus-type order where there has been an abuse of the exercise of discretionary power. Mandamus-type orders will be made if an authority, in the exercise of its discretion, does so for an improper purpose or has regard to irrelevant considerations or fails to take into account relevant matters. A statutory authority may purport to exercise its powers but the court may conclude that it has not properly exercised its powers in accordance with the law. In those circumstances a mandamus-type order can be made to compel the statutory authority to perform its powers in accordance with the law.

79. However, a principle which is well recognised, and which is apposite in the present proceeding is that a mandamus-type order cannot be made to compel a statutory authority to exercise its discretion or authority in a particular way or in favour of a party. The reason for this is that it would involve the court considering the merits of the decision and this is outside the scope of judicial review.

82. The principles were exhaustively stated by Rich, Dixon and McTiernan JJ in The King v War Pensions Entitlement Appeal Tribunal & Anor; Ex Parte Bott [9]:

"A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. It is also beside the question that the determination, although not void, is yet one which, because of some failure to proceed in the manner directed by law, or of some collateral defect or impropriety, is liable to be quashed by a Court which on appeal, certiorari or other process is competent to examine it." (Emphases added)

86. Those observations apply to the performance by a statutory authority of its statutory duty and/or powers. This Court is not sitting as a Court of Appeal. It does not substitute its decision for that of the decision maker. The role of this Court is confined to overseeing the legality and fairness of the decision-making process.

89. Section 35 of the Act imposes a duty on the Corporation to submit the plan of sub-division. However, the form and content of the plan are matters for its decision. The Corporation is exercising a discretionary power with respect to the form and layout of the plan.

92. The obligations resting upon a statutory authority exercising a discretionary power were stated by Dixon J in The Shire President, Councillors and Ratepayers of the Shire of Swan Hill v Bradbury.[10] His Honour said:

"When a provision of this kind is made (i.e. a discretionary provision), it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred. The duty may be enforced by mandamus. But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it. This means that only a negative definition of the grounds governing the discretion may be given. It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control." (Emphasis added).

See also Shrimpton v The Commonwealth[11] and FAI Insurances Ltd v Winneke.[12]

97. What is clear is that the authority is not only to enter upon the consideration of the matters relevant to the exercise of the power, but to decide the matter in good faith and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred. But equally, where the legislation does not expressly state the matters relevant to the discretion, the limits must be determined by the scope and object of the statutory instrument conferring the power. This usually results in a negative definition of grounds governing the discretion.

100. Mr Porter drew attention to a principle stated by Lord MacNaghten in Westminster Corporation v London and North Western Railway Co.[13] His Lordship said:

"It seems to me that when a public body is exercising statutory powers conferred upon it for the benefit of the public it is bound to have some regard to the interest of those who may suffer for the good of the community. I do not think it is right - I am sure it is not wise - for such a body to keep its plans secret and carry them into execution without fair and frank communication with those whose interests may possibly be prejudiced or affected."

104. Where an authority is exercising a discretionary power and is therefore obliged to act bona fide, in my view the interests of those affected by the exercise of the power are matters that must be considered pursuant to the obligations to act in good faith and reasonably.[14] What is required will depend upon the circumstances of a particular case, as the Westminster case demonstrates.

107. In that case, the Westminster Corporation was empowered under an Act to provide sanitary conveniences. A decision was made to provide conveniences in a subway under a street. This resulted in persons being able to travel from one side of the road to the other in the subway without using the conveniences. In performing the works the Corporation interfered with the railway company's property located on the side of the street. It was contended by the railway authority that the decision was made for an improper purpose, namely, to provide a subway, and that the exercise of the power by the Corporation as a sanitary authority was for an improper purpose. The House of Lords held that the primary object of the subway was to provide conveniences. The power was properly exercised in good faith and reasonably. Lord McNaghten stated the principle set out above but went on to observe concerning the interests of the railway company that "if the engineer of the corporation and the engineer of the railway company had been put into communication, some modification of plan might have been suggested which would have obviated all this litigation and expense, and all the litigation and expense yet to come".

110. The consideration of the interests of those affected by the exercise of a statutory power involved in that case the Corporation conferring with the railway company in an endeavour to minimise the area of conflict. In my view, the Corporation here would be under a similar duty when considering its decision when exercising the statutory power, namely, to discuss with Murdesk the form and content of the proposed sub-division.

113. The principles governing the exercise of a statutory power were re-stated by Gibbs J in Buck v Bavone.[15] What Gibbs J said amplified somewhat the obligation of reasonableness. His Honour said:

"Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts." (Emphasis added).

117. The principles stated above apply to the Corporation's obligations under s.35 of the Act.

120. Because the Corporation proposed to lodge its plan, the issue of whether or not the Corporation will discharge its duty under the Act by lodging a plan is, for all practical purposes, foreclosed. Mr Porter accepted that conclusion and focussed on the alternative question, namely, that the submission of the plan proposed by the Corporation was not a lawful fulfilment of its duty under the Act. Mr Porter stated that the principal objective of the proceeding was to resolve a dispute between the parties with regard to the form and content of the subdivision which should be submitted by Roads Corporation. He submitted that the issue was whether, in the proper exercise of its duty under s.35 of the Act, the Corporation should submit the Murdesk plan PS 528527P or one of the additional ones. However, in accordance with the principles stated above, the resolution of the dispute is indeed in a confined area. The Court can only act if it is established that Roads Corporation, by submitting plan PS 518224Q, failed to lawfully discharge its obligations under s.35 of the Act. The Legislature has entrusted the task of deciding the form and content of the sub-division to the Corporation and not the Court. The supervisory jurisdiction is concerned to ensure that the Corporation performs its statutory duty and power in accordance with the law. The Court is not in a position to consider the merits of each plan put forward by Murdesk and determine which is the appropriate plan. The Court does not substitute its decision for that of the Corporation. The Court is concerned with the legality of the decision-making process. That is not to say that the Court will ignore the form and content of the Murdesk plan. It will do so only in the context of the decision-making process.

124. Section 35 of the Act is concerned with acquisition of land by an acquiring authority. Section 35(1) imposes a mandatory duty upon the acquiring authority in certain circumstances to submit a plan to council for certification and lodge it for registration. It provides:

"(1) If an acquiring authority is to acquire or acquires land that cannot be disposed of without being subdivided, the authority must, in accordance with section 5(2), submit a plan to the Council for certification and lodge it for registration as if the authority were the owner of all the land to be subdivided by the acquisition."

128. The Corporation is an acquiring authority.[16] The Corporation has acquired land with the result that the balance has been sub-divided and it is common ground that the Corporation is required to submit a plan to council for certification and lodge it for registration. The council is the Whittlesea City Council. Section 5(2) in paragraphs (a) and (b) deals with the date when the plan must be submitted which depends upon the nature of the acquisition by compulsory process, and if those paragraphs do not apply, paragraph (c) requires the authority to submit one plan under s.35. There is no suggestion that compliance with s.5(2) will not occur and hence the requirements can be put to one side. For present purposes "plan" is defined by s.3 and relevantly concerns a plan of sub-division or a plan of consolidation.

131. The Corporation proposes to lodge its plan. The question is, does the plan satisfy the mandatory requirement in s.35(1)? The answer is found in s.35(3) which gives a discretion to the Corporation as to the form and content of the subdivision although there are some mandatory requirements.

Power to determine form and content of subdivision plan

135. The question of the exercise of the power to determine the form and content of the plan is at the heart of this application. Roads Corporation wishes to submit its plan because the plan does not require a planning permit. It is not a development plan within the meaning of the Planning and Environment Act 1987. Roads Corporation submits that it can only lodge a plan for the purposes given to it by the Transport Act 1983 and Road Management Act 2004, and the objects and functions of the Corporation do not include sub-division or development of land. It submits that its two lot plan is a proper exercise of its discretionary power under s.35 and points out that this has been conceded in the past by Murdesk's solicitor. In a facsimile sent by the plaintiff's solicitor to Mr Porter dated 21 September 2003, the solicitor stated that "In my view a PS (plan of subdivision) was required by SDA section 35(1) (Subdivision Act) (to which TLA section 54 is subject) and that according RC could validly do what it proposed notwithstanding that it has the power to accommodate Merv's access request in drafting the Plan. Issues of non-access and lack of services then became matters of compensation which in fact, at Merv's wise suggestion, form part of Murdesk's categories of claim."

138. The Corporation contends, and in my view correctly, that it is not required to obtain a permit and is not required to go through any planning processes by the lodgement of its plan. On the other hand, it points out that the plans proposed by the plaintiff do require a permit. This would require the Corporation to apply for a planning permit, and to go through certification, compliance and registration processes. Reference is made to the evidence of David Grenfell Whitney, Town Planning Consultant. His evidence, which I accept, is that the Murdesk plan, when submitted, would require the Corporation to apply for a permit to subdivide the land. The responsible authority would be required to take into account a range of matters including the matters under s.60(1) of the Planning and Environment Act 1987, any objections to the application for the permit, any decision and comments of a Referral Authority, and any significant social and economic effects of the proposed use or development. The Authority would also have to consider the matters set out in the Whittlesea Planning Scheme, including clauses 65.01 and 65.02 which set out a broad range of matters that the council must consider as appropriate. The Authority must also consider all matters applicable to the zone as set out in clause 35.01-5 and clause 35.01-6. At present the land is still zoned rural. However, I do accept the evidence of Mr Dickie, a director of Murdesk, that as a result of a proposed amendment which has been placed on exhibition, it is likely in the future that the Murdesk land with other land nearby will be re-zoned with the object of establishing an employment-generating area and that the Murdesk land will be used for industrial and commercial uses. Compliance obligations imposed by the council may involve the carrying out of works for roads and utilities and the Corporation may be required to submit engineering plans and to incur the expense imposed by the council or any referral authority for a supervisor of works. Whether or not a permit would be granted by the council is a moot question, and could involve a proceeding before the Victorian Civil and Administrative Tribunal. The Corporation submits that it has properly exercised its functions. In determining in the exercise of its statutory discretion, the form and content of the plan, it has acted fairly and in good faith. It has considered the preferred plan put forward by Murdesk and in the end it has made a decision which results in minimal changes to the total area of the land after the acquisition. The Corporation's plan does not require a permit. It does not raise any issue as to its statutory power to lodge a development plan. It does not preclude Murdesk hereafter seeking to subdivide the single large eastern lot. Its plan does not involve the Corporation in any future substantial expenses. The result of the acquisition divided parcel 4 into two parts. It is said therefore that to do minimal changes to the new position, a three lot sub-division is appropriate, namely, the sliver of land on the west side, a lot comprising the balance of the land left in parcel 4, and the third lot being the whole of parcel 5 on the Certificate of Title plan. However, that approach results in a problem because the acquired land is irregular and precludes any access from Cooper Street into the balance of parcel 4. It seemed to be common ground that one could not create a separate lot of the balance of the land in parcel 4 and accordingly the decision by the Corporation is the appropriate decision effecting minimal changes to what was the position prior to the acquisition. The Roads Corporation contends, with some force, that it has discharged its discretionary power in accordance with the law and that the preferred plan put forward by Murdesk requires it to do acts which will involve it in work and expense.

141. Murdesk's argument is that immediately prior to acquisition it had two parcels of land, and it submits that it could have disposed of each separately. It is noted that land in the area is undergoing a transition from rural to urban use, resulting in substantial price rises and Murdesk, as a developer, has received an offer for the land at a substantial profit to it but subject to the land being divided into a number of lots. Murdesk does not agree with the plan of the Roads Corporation because it would be left only with one lot; this is on the basis that the sliver of land to the west of the acquired land is of little value, and it is therefore prejudiced because it cannot sell one lot to finance the development of the other. It is contended that the Corporation plan entirely ignores Murdesk's interests that Murdesk is not prepared to consent to the consolidation of parcel 5 with the eastern portion of parcel 4 and that the Corporation plan is inconsistent with one of the chief objects of Murdesk's plan which is to ensure that each lot has a road frontage. I observe that insofar as the submission and registration of the Corporation's plans results in pecuniary loss to Murdesk, that will be relevant in the compensation claim.

144. I emphasise that the Court's jurisdiction is limited to consider whether or not the Corporation, by lodging its plan, has performed its discretionary power in accordance with the law.

"(3) A plan submitted by an acquiring authority -

(a) may do anything which can be done by a plan including, but not limited to, one or more of the following:

(i) Maintain without alteration of boundaries except for the purposes of acquisition or to correct any minor defect in boundaries ... the number of separately disposable parcels of land in the area covered by the plan, excluding the land to be acquired;

(ii) Reduce the number of separately disposable parcels of land in the area covered by the plan, excluding the land to be acquired;

(iia) Alter any separately disposable parcels of land excluding the land to be acquired;

(iib) Subject to section 33(2) and (3), create new lot entitlements or lot liabilities;

(iii) Create additional lots;

(iv)-(vii) (inclusive) ...

(b) must state which land is to be acquired by the authority and whether it is to be acquired free from or subject to encumbrances; and

(c) having regard to sub-section (6), must, for each thing done by the plan, state whether it is to happen -

(i) on the registration of the plan; or

(ii) to the extent that it relates to land acquired by compulsory process, when the Registrar records the vesting date; or

(iii) to the extent that it relates to land acquired by agreement, on the vesting date; and

(d) if the plan consolidates land acquired or to be acquired by the authority, must (despite paragraph (c)) state that the consolidation is to happen -

(i) on the registration of the plan ...; or

(ii) if any of the land is acquired after the registration of the plan ... "

(Emphases added).

154. It can be seen that s.35(3) gives a wide discretion to the acquiring authority with respect to the form and content of the sub-division plan, subject to mandatory requirements, to state certain matters on the plan.

157. The Corporation has stated that it intends to submit plan PS 518224Q to the Whittlesea Council. Does this plan meet the requirements of s.35(3) of the Act? More importantly, has Murdesk established that the Corporation in making its decision has not reached its decision in accordance with the law?

160. Mr Porter submits that the Corporation has not exercised its discretionary power in accordance with the law because it has not acted bona fide in the sense that it has ignored Murdesk's interests by not choosing one of its plans. He emphasised that prior to acquisition the title contained two parcels of land and he contends Murdesk could have, prior to acquisition, sold parcel 4 on the Certificate of Title plan separately from parcel 5. This is much disputed by the Corporation. Be that as it may, Mr Porter submits that this would have enabled Murdesk to sell one parcel of land and develop the other. He submits it is now denied that opportunity. Therefore, if the interests of Murdesk were being considered, the Corporation should lodge one of Murdesk's plans. This would give Murdesk a number of lots which would enable it to sell one to finance the development of others. He contended that it was incumbent upon the Corporation to give consideration to the planning controls imposed by the Whittlesea Planning Scheme. He traced through the history of the legislation concerning the requirements of the law imposed on an acquiring authority, noting that over the years more and more emphasis has been placed on the role of councils in respect to sub-divisions and the necessity of the activities of the acquiring authorities to comply with planning schemes. He submitted that a consideration of the legislation since 1914, see Re Nelson & Tammer's Contract[17] shows that the acquiring authority must, in deciding what type of plan of sub-division to lodge, to take into account the relevant planning scheme requirements concerning the balance of the land. Mr Porter submitted that it was now expected that an acquiring authority when lodging a suitable plan, and taking into account the interests of the land owner, may have to apply for a permit and go through the planning permit process in performing its statutory duty. That may be so. The submission of a plan in certain circumstances may require the Corporation to go down that path. But it does not follow that if it chooses another path which is in accordance with its discretionary power, that it is not lawfully performing its function. The fact is that the Corporation is prepared to comply with the planning scheme, but it is not prepared to lodge a plan which requires it to obtain a permit. To do so would mean that the Corporation is carrying out the functions of Murdesk as a developer of the land. This, in my view, would expose it to work and expense. The submission and registration of the Corporation's plan would not preclude Murdesk applying to sub-divide the land. Murdesk would take on the burden of applying for and obtaining the permit and all that entails which it seeks by this proceeding to put on the Corporation. Why should the Corporation have to assume the burden when Murdesk can?

163. Mr Porter submitted that power now exists for an acquiring authority to clean up the sub-division, or mess as he puts it, in the wake of compulsory acquisition. He submits that there is nothing in the legislation which leads to the conclusion that the authority is obliged to propose a sub-division which is unsatisfactory to the body affected by the acquisition, because a permit would be required for a sub-division satisfactory to the interests of that party. He submits that the Roads Corporation was obliged to consider the decision guidelines in the planning scheme with reference to both planning and technical considerations and the interests of Murdesk.

166. The correspondence that passed between the parties over the years shows a back and forth discussion concerning the form and content of the sub-division. A variety of plans have been put forward. In the end, the Corporation has decided to lodge the plan which contains two lots. Murdesk has not established that the Corporation has not considered the interests of Murdesk. In my opinion, the Corporation has not failed to give consideration to the planning scheme and the proposals of Murdesk. On the contrary, the correspondence shows that over a period of time plans were put forward, various submissions were put forward as to why a particular plan was appropriate and after proper consideration the Corporation made a decision after duly and properly considering the interests of Murdesk. It follows that Murdesk has not proven that the proposed lodgement of the Corporation plan is a failure to exercise the Corporation's discretionary power with respect to the form and content of the plan. Clearly the plan complies with s.35(3) of the Act. I did not understand Mr Porter to contend otherwise. I am satisfied that the Corporation has given consideration to the views of Murdesk and has declined to lodge a plan preferred by Murdesk. But that does not prove error in the decision-making process. The thrust of Murdesk's case was that its interests were not properly considered or taken into account. I do not accept that. In the end, it was a matter for the Corporation. I am satisfied that it has acted bona fide and reasonably. I did not understand Mr Porter to contend that the Corporation in reaching its decision had acted unreasonably in the sense of the Wednesbury principle.[18] I discussed the principles in Matson v Racing Appeals Tribunal.[19] Applying those principles, in my view there is no basis for suggesting that the decision was unreasonable. The reasons put forward by the Corporation were proper and not contrary to law. The Corporation has justified its decision. I think the grounds were proper. The decision was a lawful discharge of the duty of the Corporation.

169. It follows, in my opinion, that Murdesk has failed to establish that the lodgement of the Corporation plan being PS 518224Q is a failure by the Corporation to discharge its duty according to law. It follows that there is no basis for a mandamus-type order. In making that observation I proceed on the assumption that the Corporation will submit its plan within the next seven days.

172. Subject to any submissions by counsel, the order I propose is that the proceeding be dismissed. I will hear the parties on the question of costs.

[1] [1959] AC 663 at 697.

[2] [1949] HCA 33; (1949) 78 CLR 389 at 398.

[4] (1895) 1 QB 616.

[6] [1993] HCA 40; (1993) 178 CLR 379.

[8] [1975] QB 431.

[9] [1933] HCA 30; (1933) 50 CLR 228 at 242.

[12] [1982] HCA 26; (1982) 151 CLR 342 at 368.

[13] [1905] AC 426 at 433.

[14] See Westminster Corporation case per Lord Macnaghten cited with approval in Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87 at 105.

[15] [1976] HCA 24; (1975) 135 CLR 110 at 118-9.

[16] See definition in s.3.

[17] [1952] VicLawRp 52; [1952] VLR 391 at 393.

[18] See [1947] EWCA Civ 1; [1948] 1 KB 223 at 229.

[19] [2001] VSC 264 at paras 137 - 146.