Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30; 211 ALR 472; 79 ALJR 414

Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30; 211 ALR 472; 79 ALJR 414 - HCA 2004 case summary — Zoe

[14]

The appellant, the Western Australian Planning Commission ("the Commission"), is a body corporate established under s 4 of the Western Australian Planning Commission Act 1985 (WA). That Act, the Town Planning Act and the Metropolitan Region Scheme Act confer various functions on the Commission. One of the functions of the Commission under the Town Planning Act is to make decisions on applications for subdivision approval.
As it then stood, s 42 of the Town Planning Act established the Tribunal. One of the functions of the Tribunal was to hear "appeals" from decisions of the Commission on applications for subdivision approval. They were appeals on the merits of the case. Section 54B of the Town Planning Act allowed appeals from decisions of the Tribunal to the Supreme Court of Western Australia on a question of law[1].
Temwood Holdings Pty Ltd ("Temwood") appealed to the Tribunal against decisions of the Commission approving applications for three subdivisions of a larger parcel of land subject to the condition in each case that Temwood cede a certain portion of that land, which was reserved under a town planning scheme, to the Crown free of cost to and without payment of compensation by the Crown. The Tribunal dismissed Temwood's complaints about the Commission's decisions[2].
Temwood then appealed to the Supreme Court of Western Australia arguing that the condition was invalid because the Commission had no power to impose it and because, in any event, it was imposed for an improper purpose. It identified the purpose as the defeat of Temwood's presently subsisting but deferred right to compensation for injurious affection under s 11 of the Town Planning Act and s 36(3) of the Metropolitan Region Scheme Act. McLure J[3] dismissed Temwood's appeal. Her Honour found that Temwood did not have a vested right to compensation under s 36 of the Metropolitan Region Scheme Act with respect to the reservation. Its "right" was merely a contingent or inchoate right[4]. Her Honour held that s 20 of the Town Planning Act gave the Commission (and on appeal the Tribunal) power to impose the condition[5] and that the power was not improperly exercised even though the condition defeated Temwood's contingent or inchoate right to compensation[6].
Temwood then appealed to the Full Court of the Supreme Court of Western Australia (Wallwork and Scott JJ and Olsson AUJ), which allowed the appeal[7]. The Full Court held[8] that s 11 of the Town Planning Act - which provides a mechanism for compensating persons whose land or property is injuriously affected by the making of a town planning scheme - conferred upon Temwood a "positive, unequivocal", "specific, definite, substantive" statutory right to compensation as a consequence of the reservation of that portion of its land under the relevant town planning scheme, the Metropolitan Region Scheme. The Court held[9] that actual enjoyment of this right was deferred until "the relevant event stipulated in s 36(3) of the [Metropolitan Region Scheme Act] took place." The relevant event was when the land was first sold following the date of the reservation or when the Commission refused an application for subdivision approval or granted subdivision approval subject to conditions that were unacceptable to the applicant. The Court held[10] that a manifest legislative intention was required to abrogate this statutory right. Olsson AUJ, with whose judgment Wallwork and Scott JJ agreed, said[11]:

[19]

The Commission contends that its power to impose conditions on subdivision approval is not affected by any statutory presumption against interference with vested proprietary rights[15]. The Commission says that it is irrelevant that the Land is the subject of a reservation under the Metropolitan Region Scheme. The Commission also contends that the imposition of a condition on subdivision approval requiring the ceding of land to the Crown, free of cost, is not a confiscation or expropriation of a proprietary right.
The Commission contends that the Full Court erred in characterising the imposition of the condition as an extinguishment of a statutory right. The Commission claims that the entitlement to compensation for injurious affection for land reserved under the Metropolitan Region Scheme is governed by ss 11 and 12 of the Town Planning Act, as modified by s 36 of the Metropolitan Region Scheme Act. An entitlement to compensation is conditional upon the occurrence of one of the events specified in s 36(3)(a) and (b) of the Metropolitan Region Scheme Act and upon the claimant making a claim within the time specified in s 36(5) of that Act. The Commission argues that a landowner's entitlement to compensation as a result of the reservation of the Foreshore Reserve is a potential or contingent right until the occurrence of one of the events specified in s 36(3)(a) and (b) of the Metropolitan Region Scheme Act. It contends that the principle in Clissold v Perry[16] - that legislation is not presumed to interfere with vested proprietary rights unless the intention is manifest - does not apply to potential or contingent rights.
The Commission also contends that it imposed the condition for a proper planning purpose and not for any ulterior purpose and that the condition related reasonably and fairly to the development permitted and was not so unreasonable that no reasonable planning authority would have imposed the condition[17]. It claims that it imposed the condition for the legitimate planning purpose of securing public ownership of land for public purposes and to preserve the Foreshore Reserve and to ensure public access for recreation. The Commission says that the condition reasonably related to the entire subdivision of the Land, considered as a whole, and that the existence of the owner's contingent right to compensation did not make the condition unreasonable.

[27]

The first issue in the appeal is whether s 11 of the Town Planning Act, read with s 36 of the Metropolitan Region Scheme Act, conferred on Temwood a vested but deferred right to compensation, as the Full Court held. In my opinion, the reservation of the Foreshore Reserve conferred no right to compensation of any kind on Temwood until it made an application for development approval that was rejected by the Commission or approved subject to a condition that it found unacceptable.
When the Metropolitan Region Scheme reserves land for public purposes, the interaction of the Town Planning Act and the Metropolitan Region Scheme Act may entitle an owner of the land to obtain compensation in one of three situations. The first is when the land is sold for the first time after the date of reservation. Only the person who owned the land when the reservation was made can obtain compensation in this situation. Temwood was not the owner of the Land when the reservation was made with respect to the Foreshore Reserve. Consequently, it never had any entitlement of any kind to compensation arising out of the first sale of the Land. The second and third situations that give rise to a right to compensation are where the Commission refuses a development application in respect of the land or approves it subject to a condition that the applicant will not accept. In either case, compensation is payable to the owner of the land at the time of the application. Temwood was the owner of the Land when the Commission approved its applications for development approval subject to the "transfer free of cost" condition. If Temwood found that condition "unacceptable", it then acquired a right to compensation. In this context, "unacceptable to the applicant" does not mean "disapproved by the applicant"; it means that the applicant does not accept the condition and will not pursue the development burdened by that condition. If the applicant proceeds with the development subject to that condition, it has no right to compensation. The result of the interaction of the Town Planning Act and the Metropolitan Region Scheme Act, therefore, is that at no stage prior to the Commission's conditional approval of Temwood's development applications did Temwood have any right, contingent or otherwise, to compensation.

[49]

Section 11 of the Town Planning Act, read with ss 36(3) and 36(3a) of the Metropolitan Region Scheme Act, conferred on the owner of the Land at the time when the Metropolitan Region Scheme was made a liberty to apply for compensation at a future time. "Liberty" or "expectation" rather than "right" is the description that best fits the entitlement of such an owner. Section 11 must be read with s 36 of the Metropolitan Region Scheme Act. Those sections in combination look to the future. Section 11 of the Town Planning Act declares generally that, if an owner whose land is injuriously affected makes a claim within the time specified, the owner shall "be entitled to obtain compensation". Section 36, however, postpones the entitlement until the happening of one of three events identified in s 36(3) of the Metropolitan Region Scheme Act. None of them may occur in the lifetime of the owner. And it is far from fanciful to think that in many cases none of them may occur for generations. Injuriously affected land may be passed down to family members or relatives for many decades before the affected land is sold or developed.
The mere reservation of the Foreshore Reserve conferred no right in a Hohfeldian sense on the owner of the Land at the time of reservation. No other person or persons came under any present or correlative duty, obligation, disability or liability by reason of the reservation. As Holmes CJ pointed out in Tyler v Judges of the Court of Registration[30], when he was Chief Justice of the Supreme Court of Massachusetts, "all rights ... are really against persons." Until one of the three events occurs, there is no interest, right or privilege that the owner of the Land could enforce against anyone, and no interest, right or privilege that the courts would protect by way of injunction or otherwise. And none might arise. If the owner made a gift of the Land before the occurrence of one of the events, he or she would retain no entitlement to any kind of compensation. It may even be the case that, if the owner died before the occurrence of one of those events, nothing would pass to the owner's estate that could ripen into a claim for compensation when one of the three events occurred. Perhaps the liberty has sufficient substance to be saved by the Interpretation Act 1984 (WA) if s 11 were to be repealed[31]. But assuming that is so, the liberty to apply for compensation in the future conferred by s 11 and restricted by s 36 bears no relationship to the rights considered in Clissold v Perry[32], the case upon which the Full Court relied. The rights in Clissold were existing rights that could be enforced against anyone except a person with a better title to the land. That is not the case with the liberty conferred by s 11 of the Town Planning Act, when it is read, as it must be, with s 36 of the Metropolitan Region Scheme Act.
Moreover, any entitlement to compensation by the person who owned the Land when the reservation was made would depend on the particular event that triggered the claim for compensation. If the event was the first sale of the Land, that person would be the only person who could obtain compensation. A subsequent purchaser or transferee of the Land would have no right to compensation in respect of that event.

[52]

All the sub-sections of s 36 are expressed in "until … or" format or just in "or" format. No sub-section expressly states that compensation becomes payable once and for all as soon as one of the three events referred to in s 36(3) occurs. If s 36(3) has that construction, then the effect of s 36(3a) is that compensation becomes payable only to the owner of the land at the time of the reservation if the land is sold before any application for development is made. Conversely, it is payable only to the applicant for development if an application is refused or granted subject to conditions that are unacceptable to the applicant.
Section 36(10)[33] refers to the payment of a refund where a reservation is revoked or reduced in size and the Commission has already compensated an owner for injurious affection. Section 36(10) states that the refund is not payable by the owner of the land "until the land is first sold or subdivided following the date of the revocation or reduction referred to in subsection (9)(b) unless otherwise agreed by the owner and the Commission." If the sub‑section refers to the time when the land is "first sold or subdivided", rather than when the land is "first sold" "or" "subdivided", the sub-section contemplates that it is the event that occurs first in time that is the relevant event which gives rise to the obligation to pay the refund. Arguably, a similar construction should apply in relation to the obligation to pay compensation when the reservation is first imposed. On the other hand, the silence in s 36 in relation to the time when the obligation to pay compensation arises supports the conclusion that it is not necessarily the event that occurs first in time that conclusively and finally triggers the right to compensation.
If the question had arisen for decision before 1986, the better construction of s 36(3) would have been that once one of the three events triggered a claim for compensation, the later occurrence of the two remaining events could not trigger a further claim. The reasons of Gummow and Hayne JJ show why that is so. Thus, once the land the subject of the reservation was sold, the refusal of development approval or its grant subject to unacceptable conditions could not trigger a further claim for compensation. However, in 1986, s 36(3a), which had been inserted in 1968, was repealed and a new sub-section substituted. The new sub-section provided that, where land the subject of a reservation is "first sold" after the making of the reservation, compensation is payable to the person who was the owner of the land at the date of reservation. Where the Commission refuses a development application in respect of that land, or grants permission to carry out development on the land on conditions unacceptable to the applicant, compensation is payable to the person who was the owner of the land at the date of application.
Whatever the effect of s 11 of the Town Planning Act may be if it stood alone, in cases where land has been reserved for public purposes, it must be read with s 36(3)-(5) of the Metropolitan Region Scheme Act. When that is done, the entitlement to compensation cannot be confined to the person who was the owner of the land when the reservation was made. Paragraph 36(3a)(a), when read with s 36(3), provides for the payment of compensation - where "the land is first sold following the date of the reservation" - to the owner of the land at that date. Paragraph 36(3a)(b), when read with s 36(3), provides for the payment of compensation - where an application for development has been rejected or approved subject to unacceptable conditions - "to the person who was the owner of the land at the date of application". It is impossible to escape the conclusion, therefore, that par 36(3a)(b) applies to a subsequent owner, and there is no reason for confining the class of subsequent owners to those who have obtained ownership other than by way of sale.
Accordingly, the reference to "[a]ny person" in s 11(1), when read with ss 36(3) and 36(3a) does not require that the owner of the property the subject of a reservation be the same owner as the person who owned the property at the time of the making of the scheme. Further, when s 11 is read with s 36(3)-(5), the words "affected by the making of a town planning scheme" should not be given a temporal connotation. Hence, in a case where land has been reserved for public purposes, a claim for compensation may be made where the ownership of the property has changed.
Thus, the terms of s 36(3a)(b) point irresistibly to the conclusion that a person who has bought the affected land and whose subsequent development application is rejected or approved subject to unacceptable conditions may be entitled to compensation. The words "owner of the land at the date of application" would have little scope for operation unless this was so. Section 36(3a)(b) would operate only in the limited class of case where the owner at the date of reservation made an application for development or where the land had been conveyed to the applicant other than by sale - for example, by will or operation of law. This is such an unlikely construction that it must be rejected. On the construction of s 36(3a) that I favour, par (b) of that sub-section must be regarded as giving an independent claim of compensation unrelated to the fact of ownership at the date when the Scheme was made.
Moreover, once it is accepted that s 36 in combination with s 11 confers two independent rights, there is no reason why one right should expire because the other right to compensation was not pursued. Thus, where land is reserved under a town planning scheme, upon rejection of a development application or approval subject to conditions unacceptable to the applicant, a claim arises. If the claim lapses, however, for want of prosecution, I see no reason for holding that, upon the first sale of the land, a claim for compensation does not arise. And that is so, whether the rights subsist in different persons or the same person. Section 36(3a) declares that compensation is payable only once. It does not declare that both of the independent rights conferred lapse if one of them is not pursued after its triggering event occurs.
Accordingly, although Temwood had no presently subsisting, vested, deferred or contingent right to compensation under the Metropolitan Region Scheme Act, it would obtain a vested right to compensation if its applications for subdivision were refused or if they were approved subject to an unacceptable condition. But at no time did it have or could it acquire a right to compensation in respect of the sale of the Land. That right belonged to the owner of the Land at the time of the making of the Metropolitan Region Scheme.

[60]

"Given the necessary relevance of the conditions to the particular step which the Board is asked to approve, there is no foothold for any argument based on the general principle against construing statutes as enabling private property to be expropriated without compensation. The Act at its commencement took away the proprietary right to subdivide without approval, and it gave no compensation for the loss. But it enabled landowners to obtain approval by complying with any conditions which might be imposed, that is to say which might be imposed bona fide within limits which, though not specified in the Act, were indicated by the nature of the purposes for which the Board was entrusted with the relevant discretion: see Swan Hill Corporation v Bradbury[50]; Water Conservation and Irrigation Commission (NSW) v Browning[51]. If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the [Town Planning Act] down in some fashion by appealing to a principle of construction that has to do with confiscation. If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions."

[63]

The Full Court found that the focus of the Metropolitan Region Scheme Act and the Metropolitan Region Scheme was not upon Crown acquisition of ownership of all, or any specific, reserve land. Instead, it saw the focus of the Act and the Scheme as "ensuring that adequate and appropriate reserves are created to satisfy proper planning objectives"[53]. It noted that, if a compensation claim is made in accordance with the statute, the Crown could "elect to acquire actual ownership, rather than pay compensation merely to preserve a status quo."[54] It said that the Crown had no need to take further action to secure the existence of a reserve that had already been brought into existence by the Metropolitan Region Scheme[55]. It rejected the argument that a shortage of acquisition funds supported the proposition that the Western Australian Parliament could on the one hand confer a specific statutory right to compensation and on the other make provision for the Commission effectively to negate that right[56]. As a result, the Full Court held that no planning purpose was served by imposing a condition accelerating possible Crown ownership because it was not "pitched at the orderly development of the locality and preservation of the amenity of the locality at all."[57] Rather, said the Court, "it simply manifests an administrative desire to contain monetary cost. Its essential thrust is based on fiscal, rather than planning, objectives."[58]
The Full Court also held that, even if the condition was imposed for a planning purpose, it was not imposed bona fide for that purpose. The Court acted on the Tribunal's statement that the condition was designed to circumvent the potential operation of s 36 of the Metropolitan Region Scheme Act in a situation where the requisite reserve already existed under the Metropolitan Region Scheme. The Court found that, as the Foreshore Reserve already existed, the purpose of avoiding a compensation liability to Temwood (which was conferred on Temwood by statute) was a major ulterior or extraneous purpose. Applying the reasoning in Newbury District Council v Secretary of State for the Environment[59] and Thompson v Randwick Corporation[60], the Full Court held that the imposition of the condition could not be regarded as the bona fide exercise by the Commission of its powers for a legitimate planning purpose[61].

[72]

I have already referred to the Commission's power to impose conditions on applications for subdivision. The Town Planning Act gives the Commission a broad discretion to impose conditions. Section 20A contemplates that a condition of subdivision approval may be for the purpose of conservation or protection of the environment or a reserve for foreshore management or recreation. The Town Planning Act contemplates that the Commission may eventually acquire land the subject of a reservation[69].
A condition is imposed for a proper planning purpose if it is "imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists". In Lloyd, the land the subject of the condition was not reserved under the Metropolitan Region Scheme or any other town planning scheme. The condition that the land be ceded to the Crown free of cost was justified on the basis that the imposition of the condition was a reasonable response to the change in existing affairs created by the proposed subdivision.
Here, the Foreshore Reserve was already reserved. The Commission had previously imposed an essentially identical condition (but did not enforce the condition) when it approved subdivision applications in respect of other parts of the Land. The requirement that the Foreshore Reserve be ceded had its origin in a Consultative Environmental Review of the area by the Environmental Protection Authority ("the EPA"). The Department of Conservation and Environment had recommended that the land be classified as system 6 recommendation M107. The M107 recommendation referred to the environmental features of the area. They included the extensive coastal dunes, valuable for coastal vegetation, recreational and aesthetic reasons[70]. The recommendation also referred to the need for a buffer zone of uncleared land to preserve the scenery and vegetation, a zone that would be an east‑west link of open space between the coast and Mandurah Road[71]. The EPA Bulletin stated that the main purpose of the M107 area "was that the area's recreational and landscape values be protected by planning procedures which would not require public acquisition of the land involved."[72] As the east-west strip had not become part of the planning framework for the area, the EPA decided to consider other alternatives. The EPA recommended that there be an expanded coastal foreshore reserve, wider than that normally required by the planning authority. The Consultative Environmental Review culminated in a statement issued by the Minister for the Environment under s 45 of the Environmental Protection Act 1986 (WA) ("Statement that the Proposal May be Implemented") setting out the conditions under which the proposal could be implemented[73].
One condition was that there should be a foreshore reserve and, at subdivision, Temwood "shall transfer to public ownership the proposed foreshore reserve."[74] The statement also required that Temwood should provide, in exchange for a part of M107, additional open space adjacent to the Foreshore Reserve. By letter dated 13 January 1993, Temwood advised the Minister that "the conditions meet with our approval."[75] Before the Tribunal, Temwood also accepted the environmental condition that the Foreshore Reserve should be set aside for public use. The boundary of the Reserve was altered by the 1994 South West Corridor Omnibus Amendment No 960/33. The Commission described its failure to require the ceding of the Foreshore Reserve when it approved other subdivisions of the Land as an "oversight" and suggested that it had "assumed that ceding had taken place."[76]
The Tribunal found that the Commission had designed the condition to have the following effects[77]:

[75]

The Tribunal also referred to the "necessity" of the Commission being able to impose a condition that land be ceded free of cost upon subdivision in appropriate cases. This was "because of the legitimate community concern that a developer contribute to infrastructure costs to the extent permissible" on the basis that "the condition is the price for the privilege of subdivision."[78] The Tribunal also noted the Commission's submission that the purpose of the condition was to enforce the historical condition.
The purpose of enlivening the machinery provisions of the Town Planning Act is not, without more, an ulterior purpose; it is simply directed at a procedural step. It is the purpose for which the Commission sought to enliven those machinery provisions that is critical. If the purpose was to defeat any existing liability to pay compensation (or perhaps to render nugatory any right to compensation under the Metropolitan Region Scheme Act), then that purpose would be an ulterior purpose. Even though there was no potential liability to pay compensation before imposing the condition, the purpose of defeating the operation of Pt V of the Metropolitan Region Scheme Act is not irrelevant in determining whether the Commission was actuated by an improper purpose. What would be relevant - if the Commission's purpose was the relevant purpose - is that the Commission would have imposed a condition not for a planning purpose but because it sought to achieve an object outside the scope of its discretionary power. On that hypothesis, the Commission would have imposed - probably did impose - the condition for an improper purpose.
However, the Commission's purpose is not the relevant purpose in determining whether the condition was validly imposed. In hearing the appeals, the Tribunal was conducting a review of the merits based on the facts. In dismissing the appeals, the Tribunal was affirming the merits of the Commission's decision. It is the Tribunal's purpose in upholding the imposition of the condition that is the relevant purpose, not the original purpose of the Commission. An examination of the Tribunal's reasons shows that it found that "the basis for the imposition of the condition is that it was imposed historically and, having not be [sic] effectuated, requires to be imposed again until it is fulfilled."[79] The Tribunal did not say that it upheld the imposition of the condition because it would defeat Temwood's claim for compensation. And, given "the basis for the imposition of the condition" which the Tribunal stated, the purpose of defeating a claim for compensation should not be attributed to it.
The Supreme Court had power to set aside the Tribunal's decision to impose the condition only if the Tribunal had made an error of law. The merits of the Tribunal's decision was not a matter for the Supreme Court. If there was evidence that could reasonably support the Tribunal's decision, and if its reasons contained no error of legal principle, the Supreme Court had no power to set aside the decision.
The purpose of "enforcing" the historical condition was a legitimate planning purpose. Section 20A(1) of the Town Planning Act contemplates that the Commission may impose a condition that portions of "that land" be vested in the Crown for the purpose of conservation or protection of the environment or reserve for foreshore management or recreation. The Tribunal was entitled to regard the evidence as proving that the "historical condition" related to foreshore management and that it had a clear environmental protection or conservation purpose, namely, to maintain a buffer zone of uncleared land to preserve the scenery and vegetation. These purposes were deducible from the EPA M107 recommendation and the ministerial statement issued under s 45 of the Environmental Protection Act.
In addition, s 20C(1) of the Town Planning Act contemplates that the Commission may require a portion of land the subject of an approved plan of subdivision to be "set aside and vested in the Crown for parks, recreation grounds or open spaces generally". The section permits the owner of the land to pay money in lieu thereof to the local government in whose district the portion is situated. Given that the Foreshore Reserve was reserved under the Metropolitan Region Scheme for the purpose of "Parks and recreation area", the condition is consistent with a vesting for the purpose of parks, recreation grounds or open spaces generally. Before the Tribunal, Temwood "accepted the environmental condition that the land should be set aside for public use."[80]
In my opinion, Temwood has failed to show that the Tribunal erred in law because the condition was imposed for an improper planning purpose.

[77]

In this case, the condition did not relate to the land the subject of Temwood's three applications for subdivision. This raises the question whether the condition, although made for a legitimate planning purpose, reasonably and fairly related to the development permitted.
A condition must "reasonably and fairly relate" to the permitted development to be valid. A condition is "relevant" to the development if it falls within the proper limits of the Commission's functions under the Town Planning Act and the Metropolitan Region Scheme Act or is imposed to maintain proper standards in local development. The condition need not relate to the subdivision in question, if the subdivision is one of a series of subdivisions of a larger parcel of land, and the condition relates to the larger parcel of land as a whole. In Lloyd v Robinson, this Court held[81] that the Commission may impose a condition on a grant of subdivision approval that requires the giving up of another area of land for purposes relevant to the subdivision of the first. That condition must be "imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists"[82]. The Court also held that the condition need not relate to the subdivision in question, if the subdivision is one of a series of subdivisions of a larger parcel of land, and the condition relates to the larger parcel of land as a whole[83]. Even if the condition approved by the Tribunal did not relate to the land the subject of the subdivision applications, Lloyd v Robinson supports the proposition that the condition reasonably and fairly related to the approved development. This is because the condition clearly related to the Land as a whole.
Counsel for Temwood seemed to suggest that a condition reasonably and fairly relates to a proposed development only if the development is benefited by the imposition of the condition. Before the Full Court[84], counsel asked rhetorically: "Why would the Crown wish or need to take further action to secure the existence of a reserve which has already been brought into existence by the [Metropolitan Region Scheme]?" But this misstates the issue - which is not whether the condition requiring the ceding of the Foreshore Reserve to the Crown secures the existence of a reserve, but whether the development is benefited by the Crown's acquiring all the rights and liabilities entailed by ownership of the Foreshore Reserve. The Town Planning Act contemplates the eventual public ownership of reserved land for public purposes, such as foreshore management or the protection of the environment. As the Court remarked in Lloyd v Robinson[85], there may be no legally enforceable obligation on the Crown to keep the Foreshore Reserve reserved for the purpose of "Parks and recreation area": the ultimate sanction may be political only. Here, the subdivision was part of a series of subdivisions of a larger parcel of land. The condition was imposed for environmental protection reasons or foreshore management reasons in respect of that larger parcel of land. Moreover, the Minister had previously rejected an application for two grouped dwellings on the Foreshore Reserve. In these circumstances, the Tribunal was entitled to take the view that as a matter of fact the vesting of the Foreshore Reserve in the Crown secured that protection and those environmental protection or foreshore management objectives.
Once this is accepted, there is no ground for concluding that the condition was so unreasonable that no reasonable planning authority could have imposed it. Accordingly, the condition was validly imposed.

[105]

Part V of the Town Planning Act is headed "Appeals". Temwood instituted an appeal to the Tribunal against the imposition of the Condition upon the grants of the three subdivision approvals. The appeals were dismissed by the Tribunal. However, s 54B of the Town Planning Act provides for an appeal to the Supreme Court of Western Australia on condition that the appeal involves a question of law[99]. Pursuant to s 54B an appeal was taken by Temwood to the Supreme Court. As already indicated, the appeal was heard by McLure J, who dismissed it[100]. However, a further appeal by Temwood to the Full Court was allowed with costs. The orders of McLure J were set aside and in place thereof it was ordered that the appeal from the Tribunal be allowed and that the orders of the Tribunal be set aside and a declaration made that the Condition "be and is ... void". Special leave was granted by this Court to the Commission on terms that it pay Temwood's reasonable costs of the appeal and that it not seek to disturb the costs order made by the Full Court.
The Full Court held that s 11 of the Town Planning Act conferred upon Temwood a statutory right to compensation as a consequence of the reservation of the Foreshore Reserve under the MRS, actual enjoyment of which was deferred until the occurrence of a relevant event stipulated in s 36(3) of the Metropolitan Region Act; that such a right was not taken away by some other statutory provision unless such an intention is manifest; and that the Commission could not by exercise of its powers under par (a) of s 20(1) of the Town Planning Act attach a condition to an approval to subdivide which directly negated that right. The result was that the purported exercise of power by the imposition of the Condition was ultra vires and invalid. In this Court the Commission challenges that conclusion.
The Commission also challenges the further holding of the Full Court with respect not to the existence of power but to the improper exercise of the power. The Full Court concluded that a condition of a development approval which required the cession of land reserved for public purposes under a town planning scheme is invalid as serving no proper "planning purpose", and that the imposition of the Condition was invalid because it was not imposed by the Commission for a planning purpose.
The appeal should succeed, for the reasons which follow.

[129]

The classification of the Condition as the manifestation of a "planning purpose" turns upon the considerations referred to by Walsh J in Allen Commercial Constructions[119] and other authorities, as discussed earlier in these reasons. Looking to the subject-matter, scope and purpose of the Town Planning Act, when read with the Metropolitan Region Act, was the imposition of the Condition capable of being regarded as related to the purpose under s 20(1)(a) of the former statute for which the functions of the Commission were being exercised?
The discretion of the Commission under s 20(1)(a) was "not fettered" by the provisions of a town planning scheme "except to the extent necessary for compliance with an environmental condition relevant to the land under consideration" (s 20(5)). In argument, Temwood accepted that the purpose of the reservation of the Foreshore Reserve was a "planning purpose".
The Condition in terms spoke of vesting in the Crown "under s 20A". Section 20A, to which reference is made earlier in these reasons, speaks of a condition of approval by the Commission that portion of the land in a subdivision shall vest in the Crown, among other purposes, for the "purpose of conservation or protection of the environment"; the Registrar of Titles is to vest that land in the Crown without any transfer. In the alternative, s 20C establishes a system whereby, with the approval of the local government authority and the Commission, the owner of the portion of the land to be set aside and vested in the Crown for "parks, recreation grounds or open spaces generally" may, in lieu thereof, pay to that authority a sum that represents the value of the portion.
The Town Planning Act thus in direct terms assumes the power under par (a) of s 20(1) to impose upon approvals of subdivisions a term of the nature of the Condition. The imposition of the Condition plainly is capable of being regarded as related to the purpose for which the functions of the Commission under par (a) were being exercised. The imposition of the Condition was within power.
Further, the imposition of the Condition did not acquire the character of an exercise of power to achieve extraneous ends or objects merely because the inescapable effect of the legislation under which it was imposed was that, if Temwood were then to subdivide, the right to do so may have been achieved at what Temwood regarded as too high a cost. That, as the Commission rightly emphasised, is a proposition supported by Lloyd v Robinson.
In that case, Kitto, Menzies and Owen JJ remarked[120]:

[136]

The appeal should be allowed; orders 1, 2, 3 and 5 of the Full Court set aside and in place thereof it be ordered that the appeal to that Court be dismissed. Costs are dealt with in accordance with the undertaking, to which reference has been made.
CALLINAN J. It is no doubt tempting for planning authorities, especially those that are also rating or taxing authorities[124], to seek to obtain for the perceived public benefit, such parcels of land as they can, for as little as they can, or for nothing. But that temptation cannot of itself justify the opportunistic imposition of a condition on a planning or a subdivisional approval, that the land owner convey land free of cost to an authority. The test of validity of such a condition is not whether its imposition is in the public interest, but whether the condition is for a planning purpose and reasonably required by, and related to the subdivision, in the light of other relevant considerations such as the changes, burdens and demands that the subdivision will produce. A condition which answers this description may still be valid even if it produces benefits for people other than the persons connected with, or who will occupy or use the subdivided land. It follows that the test is not simply one of Wednesbury[125] unreasonableness, a matter to which I will in due course return.
The actual question in this case is whether the appellant, as a planning authority, was entitled to impose the condition that it did, that the subdivider cede valuable coastal land to the Crown free of cost, as a condition of a series of grants of subdivisional approvals. It is not whether the respondent had a current right to claim compensation for injurious affection to that land by reason of its earlier gazettal as a Foreshore Reserve. An argument in support of the latter proposition based on a construction of the relevant enactments was suggested as a possible argument by the Court, and for the first time, during the appeal. The appellant was initially reluctant to embrace it. The problem with such an embrace is that this Court suffers, as I think it did here, the disadvantages of the absence of a studied preparation, and a careful analysis of the relevant enactments by the parties, and a reasoned judgment on the point by the intermediate Court of Appeal. A further problem with the argument is that it ran counter to a position that the appellant had until then maintained, not only in the courts and tribunals below, but also repeatedly during the appeal in this Court: that the time for the making of a claim had not arrived because the event after which it might be made had not occurred.

[137]

It is unnecessary for me to repeat all of the facts. One observation should at this point however be made. Neither party to this appeal has acted consistently in relation to the relevant land and the condition. For example, in January 1993 the respondent had advised the responsible Minister, in effect, that it did not then object to the imposition of a condition of the kind the subject of the appeal. Notwithstanding that, the appellant took no steps to possess itself of the land covered by it, or to have it conveyed to the Crown. Instead, it permitted a number of subdivisions of land in the vicinity owned by the respondent to be undertaken. Nothing turns upon these circumstances: it was not suggested that either party was in any way estopped, or otherwise precluded from adopting the stances that each has done in the current litigation (save for the appellant's late embrace of the argument referred to in the previous paragraph).
There are some facts and some aspects of the decisions in the Town Planning Appeal Tribunal of Western Australia ("the Tribunal"), and of the Supreme Court of Western Australia, which do require some further attention.
The gazettal of the Reserve neither divested the appellant of its ownership of the land nor severed it from the land to the east of it of which it formed part. At any time since the gazettal the appellant could have compulsorily acquired the land if it wished. Indeed, as was pointed out in the Second Reading Speech in the Legislative Council on the Bill for the Amendment Act to the Metropolitan Region Town Planning Scheme Act 1959 (WA) ("the Scheme Act") in 1968, the responsible Minister repeated that the intention then, as it had been earlier, was that the owner should be compensated for any loss in market value of the land[126].
What then was the effect of the gazettal of the land as Foreshore Reserve? It certainly did not in terms prohibit subdivision of it. What it did, by cl 13 of the Metropolitan Region Scheme ("the Scheme"), was to repose in the appellant a power to oversee, and to forbid development without its prior approval. The gazettal of the Foreshore Reserve would, in all likelihood, have had an immediate adverse impact upon the value of the land the subject of it, and also, in all probability upon the value of the land now in the ownership of the respondent to the east of it. The precise legal effect of the gazettal upon the owner's proprietary rights is not entirely clear. There is no suggestion however that the gazettal deprived the land of all utility and value to the owner. Indeed, cl 13 of the Scheme provided that the owner could erect a boundary fence without the need for any consent by the appellant, and cl 14 provided that the owner might continue to use the land for any purpose for which it was lawfully being used before the Scheme had the force of law[127]. Whilst the Foreshore Reserve remained in private ownership therefore, the owner could still use and occupy it, and deny entry upon or use of it to anyone else except authorized official entrants. It should not be automatically assumed, and it was not suggested in argument, that all uses, or means of exploitation of the land within the Reserve would be necessarily incompatible with its reservation. Furthermore, whilst it remained in the ownership of the same person as owned land to the east of it, it continued to have added value for the purpose of preserving views, of preventing the obstruction of prevailing sea breezes, and as a means of giving direct access to the beach, thereby enhancing the value of the eastern lands. In addition, the owner had a valuable right to claim compensation in respect of it in due course.
The result wrought by the imposition of the condition is a quite different and more drastic one. The Tribunal approached the case as if the only effect of the condition was to deprive the respondent of a right to compensation that it would otherwise have had. That was an erroneous approach and one which has subsequently infected this litigation. It is erroneous because the condition, if valid, did much more than that. The condition deprived the owner of its valuable proprietary rights relating to, and over the Foreshore Reserve, including, but by no means confined to, the right to claim compensation for the injurious affection caused by the Scheme, of the land to the east of it to which I have referred. In short in its passive and unused state it still enhanced the amenity of the land to the east[128], and had a potential for uses not incompatible with its reservation as a Foreshore Reserve.

[142]

This is another error. It is not right to say that the ceding condition does not take away a future right to compensation but (merely) requires the giving up of the land free of cost. Once the land is given up free of cost no right to compensation exists, because the land the subject of it has passed out of the ownership of its former owner. The former owner who continues to own the adjoining land would have no right to claim compensation for injurious affection to that adjoining, now severed land by reason of the loss of the Foreshore Reserve as a result of the imposition of the condition, a right which in all probability it had when the Foreshore and the adjoining land were unsubdivided, in the same ownership, and subject only to the gazettal of the Reserve. Neither the value nor the loss is the same in each case. The passage overlooks the fact that the Foreshore Reserve was of utility and value to the respondent whilst it was in its ownership. The Tribunal repeatedly spoke as if the legal and practical efforts of the gazettal and the imposition of the condition were identical. Even if, as I do not think to be the case, the right to compensation had already been lost, the condition deprived the respondent of more than it had lost by the gazettal of the Foreshore Reserve for the reasons that I have given. If it were otherwise there would have been no need to impose the condition: the reservation by the gazettal would have sufficed.
The next step in the reasoning of the Tribunal was to hold that[133]: "the basis for the imposition of the condition is that it was imposed historically and, having not [been] effectuated, requires to be imposed again until it is fulfilled". The Tribunal records that it was not argued that the land the subject of the condition should not be set aside for Foreshore Reserve, and that the appellant accepted the environmental condition that the land should be set aside for public use. This did not mean however that the respondent accepted the condition as imposed, and is to overlook the critical element of it, that the land was to be ceded, free of cost. Nor has the respondent resiled from the arguments: (a) that the condition in its totality does not reasonably relate to the subdivision of any of the lands that it owns, and has owned, including those the subject of current applications for subdivision, and those intended to be subdivided in the future, and (b) that the condition does not implement a relevant planning purpose as contemplated by the Scheme.
It is possible that a case could be made to justify imposing a condition that the land be ceded free of cost on the basis that it does reasonably relate to the lands subdivided or to be subdivided. It may be that having regard to the total quantity of those lands, their location, and the intended use of them, it is proper that foreshore land of the area in question should be put into public ownership, and used for open space, public recreation, or indeed preserved for passive enjoyment only[134]. But this was not the inquiry that was made by the Tribunal. Perhaps it was distracted from undertaking that inquiry because of the concentration by the respondent upon the arguments which the Tribunal recorded in detail. That is not however to the point. In its earlier statement of the test the Tribunal acknowledged what its obligation was, but proceeding and reasoning as it did, failed to meet that obligation. It should also be pointed out that the appellant made no attempt in evidence or otherwise, to explain why, in pursuance of a valid and proper planning purpose, land already reserved by gazettal as Foreshore Reserve, should now be ceded free of cost.
The decision of the Tribunal was erroneous therefore in the several respects to which I have referred.
I will now go directly to the decision of the Full Court of the Supreme Court of Western Australia to which the respondent appealed after its appeal against the Tribunal's decision to a single judge (McLure J) of the Supreme Court failed.

[159]

Lloyd was decided in 1962 only three years after the Scheme Act had been passed. There had, accordingly, been relatively little experience of it by the time that the appeal was argued in June of that year. Although town planning Acts had been enacted in Australia from time to time in various rather rudimentary forms, sophisticated and detailed town planning enactments and procedures have only gradually evolved[149] and, I would suggest, come to be well understood in this country in the last 30 or so years. During that period there has been a great increase in population, and in the development and subdivision of land to accommodate it. Over those years many instances have been noted of aggressive action, even impropriety, and excess of power on the part of planning authorities in regulating that development and subdivision[150]. Even the most cursory resort to planning law reports will throw up examples of that[151].
Whilst it is true that principles applying to the construction of statutes enabling the expropriation of private property are not directly relevant to the lawful imposition of conditions with respect to subdivisions and developments, the fact that the condition may result in the acquisition of property by an authority free of charge, does provide reason for a careful examination of the nature and extent of the development or subdivision, and the relevance of the condition to it.
I cannot agree that the Act to which the Court was referring in Lloyd took away the proprietary right to subdivide without approval. In my opinion a more accurate statement of the position is that the Act made provision for the regulation of subdivision. This is particularly so because, in deciding whether to grant or withhold approval, and as to the appropriateness of conditions, the Board was bound to act reasonably and fairly, and in no way arbitrarily. Furthermore, to speak as if there were a proprietary right to subdivide without approval before the Act, and as if that right were an absolute one is to put the matter too high. The making of a subdivision that purports to create allotments without access to public roads will usually result in the creation of easements of necessity at common law[152]. Many subdivisions also involve the creation of new roads. This cannot be done unilaterally by the subdivider: the Crown or the local authority must be willing for this to occur and to accept the road as a public road, and to permit it to intersect, or make a junction with an existing public road. Also, apart from the practical constraints upon any subdivider compelling it to subdivide in such a way as to ensure appropriate access, configuration and shape and size of lots to enable them to be utilized, and to meet a market, or serve some other purpose, the creation of subdivisions of land under the Torrens system (as this land is) was always subject to a degree of supervision by the Registrar of Titles[153].
The passage that I have quoted from Lloyd refers to the judgment of Dixon J in Swan Hill Corporation v Bradbury[154]. The issue in that case was whether a municipal by-law prohibiting the erection of any building within the municipality unless with the approval of the Council, was within a power to make by-laws "regulating and restraining the erection and construction of buildings". The by-law was unanimously held to be beyond power. The case was one of statutory construction, and many of the observations regarding the exercise of discretionary Council's powers were obiter. Dixon J said[155] that an authority such as a Council had a discretion unlimited by anything but the scope and object of the instrument conferring it. That may be to state a familiar formula but it is not to state accurately and fully the relevant test. His Honour did go on to say that it is usually impracticable to say in advance what the permissible limits, within which the discretion is exercisable, will be. On any view however, it cannot be within the scope, and an object of either or both, of the Scheme Act and the TP Act to get the Foreshore Reserve for nothing, and without regard to relevant town planning considerations such as the effects of the proposed subdivisions, the demands and impacts that they may make upon the amenity and existing infrastructure, and the relevance of the ceding, free of cost of the Foreshore, to the Crown, to those considerations. Subsequent authority to which I will refer makes it clear that the test relating to conditions has more to it than the dictum of Dixon J suggests.
The other case to which the Court referred in Lloyd was Water Conservation and Irrigation Commission (NSW) v Browning[156]. With the greatest of respect I cannot regard this case as other than a product of its time, and as one in which the same conclusion would not be reached today. The authority there was a water authority charged with the power as lessor, of granting or refusing consent to the transfer of irrigation farm leases. Its decision, to withhold consent to a transfer to a naturalized Australian of Italian, that is to say enemy origin, was affirmed by the Court. The case very much turns upon its own facts and the relevant legislation, and provides little guidance to the resolution of an appeal which is concerned with planning conditions.
There are other reasons to doubt the correctness of Lloyd. The Justices in that case were critical of a statement by the primary judge in posing the question for his consideration in the way in which his Honour did, by referring to an expropriation of the land for the benefit of the Crown. They said[157]:

[164]

As Gibbs CJ made clear however, that did not mean that the condition could be regarded as reasonable only if the product of its implementation would be for the exclusive benefit of persons connected with the subject land[162].
It seems to me that even though the Court was considering a condition which was governed by particular legislation in Cardwell, the same approach as was adopted there should be adopted under the TP Act despite that it does not use the word "reasonably".
The test stated in Cardwell is moreover, a similar test to the one adopted by the House of Lords in Newbury District Council v Secretary of State for the Environment[163]: that a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development, and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it[164]. It may be doubted whether the third limb of the test is necessary. It uses the language of Wednesbury[165], but if, as the second limb of the test requires, the condition must fairly and reasonably relate to the proposed development, it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case. The reference therefore to Wednesbury unreasonableness serves to confuse, rather than to illuminate the issue in cases of potentially unlawful conditions. On any view therefore I do not think it appropriate to regard the language of Lloyd, particularly the passages that I have quoted as being applicable to contemporary planning problems and the resolution of this appeal.
The adoption by this Court (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Bathurst[166] of what was said by Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council[167] does not dictate a different conclusion. It is necessary to keep in mind everything that was said by Walsh J in the passage quoted in Bathurst, in particular that the discretion (to impose conditions) was not unlimited, and that the conditions must be "reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised"[168]. Neither the purpose nor the function of the authority is to get land for nothing for a planning purpose at large: the function and purpose of the authority is of deciding whether the subdivision should be permitted, and if so, whether any and which conditions reasonably and fairly relate to it and should be imposed.
The conclusion which I have reached is not affected by s 20C of the TP Act which provides that an owner may, with the approval of the local authority and the appellant, pay money in lieu of the provision of land for parks, recreation grounds or open spaces generally. It is clear that from the outset the appellant and the Crown in this instance were interested in the particular land, and not money in lieu of it. As the Scheme makes clear, they wanted all of the foreshore land in the vicinity for foreshore preservation as well as perhaps other purposes. There is not the slightest suggestion that the Crown or the appellant would have consented to take money rather than reserve and ultimately take the land. The fact that the land was reserved long before the subdivision or subdivisions were conceived means that the reservation could have nothing to do with them. Whilst it cannot be doubted that there is a power to impose a condition of the kind imposed here, the condition has to be one which is fairly and reasonably related to the subdivision or development, the application for the approval of which is to provide the occasion and need for its imposition: no attempt has been made by the appellant to establish that vital connexion. Section 20C is obviously designed to allow flexibility in cases such as ones in which the general policies of, for example, taking a certain percentage of land for parks, cannot be implemented, or other circumstances make it appropriate for the appellant or the Crown to take money instead of land.

[184]

Section 36(4) does not produce any different a result. It is intended to ensure that an application for compensation is bona fide in the sense that if the event is the sale, it has been a sale genuinely made at the best possible price.
The fact is that if the construction that I prefer is correct, then the price on a sale following the date of the reservation should include a component for the compensation to which the purchaser or any subsequent purchaser will become entitled, if in due course the responsible authority refuses an application, or imposes unacceptable conditions in respect of an application, by a subsequent purchaser or purchasers. It may be that there is little or no loss on the first sale following the date of the reservation. Loss, if any, or the true and full loss, may only crystallise and be sustained by a purchaser seeking to develop the land, who is then able to see and assess the precise and full adverse effect of the Scheme. It was for this reason no doubt that the Full Court thought that some statements in the recent decision of this Court in Moneywood Pty Ltd v Salamon Nominees Pty Ltd [172] were relevant.
Section 36(3a) is not an easy provision to construe. The words "unless after the payment of that compensation" which appear in the section produce the result that it is only if compensation has already been paid and received, that the criterion for further compensation, of a change in the reservation, has to be satisfied.
There are other indications that the event giving rise to a right to claim has not occurred. Section 36(3) of the Scheme Act refers to, and identifies the relevant land as "any land [that] has been reserved for a public purpose". Section 36(3)(b) identifies the alternative event after which a claim for compensation can be made, as the refusal of an application, or the imposition of unacceptable conditions in relation to a proposed "development on the land". The application that was made here was an application for the subdivision, that is to say the development, of the adjoining land. As I understand it, the respondent has never made any application to subdivide, or otherwise develop the land reserved for a public purpose, the Foreshore Reserve. Accordingly, the event has not occurred, and the time within which an application should be made has not expired. Section 36(5) which provides that a claim must be made within six months of the relevant event again expresses the matter disjunctively without qualification and consistently with the earlier sub-sections.
The construction which I prefer and which eschews implications, provides a fairer result. It allows the claim to be made when the true effect of the Scheme becomes known and the full loss is incurred. In the meantime, the owner of the land remains liable for the rates and other charges payable in respect of it, and the appellant enjoys the advantage of a large measure of control over the land, and the postponement of any liability to acquire or pay for it. If the owner wishes to claim immediately following the making of the Scheme, then that is a matter for it. Because only one claim can be made prudence would ordinarily dictate that it be made as and when the full loss is ascertainable.
The construction which I consider to be correct is also consistent with the relevant extrinsic materials which were in evidence. The Metropolitan Region Scheme Report 1962 with which this Scheme was submitted for Parliamentary approval pursuant to the Scheme Act made this acknowledgment. "The depreciation [of the reserved land] in value is, in many instances hypothetical. It becomes real only when property is sold at a value depressed by the reservation, or when development is frustrated by a refusal of consent." Later this appears in the Report:

[193]

The issue below and s 36 of the Scheme Act. The crucial issue below depended on s 20(1)(a) of the TP Act. It gave the appellant power to grant approval for the subdivision of lots on conditions. The question was whether the appellant had power to impose on three approvals for subdivision of the relevant land a condition that the Foreshore Reserve be vested in the Crown "free of cost and without any payment of compensation by the Crown." The resolution of that question turns largely on the significance of the finding by the Tribunal that one "intended effect of the condition is to defeat the operation of Part V of the [Scheme Act, which] provides … that compensation may be claimed for injurious affection of land that is reserved under [the Scheme]". That finding, which loomed large in the respondent's Notices of Appeal to McLure J and to the Full Court, is crucial to the respondent's argument.
Conditions imposed by the appellant under s 20(1)(a) must not be imposed for any purpose extraneous to those permitted by the legislation. A planning authority which intends a particular effect may be said to have a purpose of bringing about that effect. Hence it is strictly irrelevant whether, assuming that the condition had not been imposed, the respondent would have been able to claim compensation: it suffices that the appellant had - if it did - the purpose of defeating any claim open to the respondent, which in the circumstances was outside the range of objects permitted by s 20(1)(a)[174]. A decision can be invalidated by an extraneous purpose even though the goal which underlies that purpose is futile or unnecessary or impossible of achievement. For that reason, the arguments of the parties in the courts below about whether the respondent had any right to compensation, and the discussions of those arguments by the courts below, are irrelevant. Further, for that reason, and for the reasons given by Callinan J[175], it is not necessary to examine a question not raised below but raised in this Court, namely the true construction of s 36 of the Scheme Act. Since the question is one peculiarly affecting the complex and specialised subject of town planning law in a particular State, it would be valuable for this Court to have the assistance of a specialist institution charged with relevant responsibilities, like the Tribunal, as well as that of the judges of the Supreme Court of Western Australia. The Tribunal will certainly have had, and the judges will probably have had, vastly greater experience of the legislation than this Court. In view of the way the proceedings were conducted below, this Court has been deprived of that valuable assistance.
Bad faith/improper purpose. In argument, some colourful language was used about the relevant inquiry. The key question posed below is not whether the appellant acted in bad faith, or mala fide, or improperly, in one of the ranges of meaning which those words bear. The question is simply whether the appellant was actuated by a purpose which, in the circumstances of the case, was extraneous to those permitted by s 20(1)(a).
Was Lloyd v Robinson right? The appellant placed Lloyd v Robinson[176] at the centre of its argument. The respondent, on the other hand, contended that Lloyd v Robinson could be distinguished. But the respondent did not contend that Lloyd v Robinson should be overruled or that any particular part of the reasoning in it, so far as it rested on propositions of law, should be departed from. Those steps should not be taken unless it is necessary to do so. It is not necessary to do so for the following reasons. The question in Lloyd v Robinson was whether particular conditions imposed on a subdivision of the land involved in that case on 16 March 1960 were validly imposed (and, in particular, whether they had extraneous objects). That question is entirely distinct from the question in this case - whether the condition imposed on the subdivisions of the land on 17 May and 7 September 2000 had an extraneous object. In Lloyd v Robinson, this Court answered the question before it by finding that the imposition of the conditions by the Board was in order to serve purposes which it was justified in pursuing. It does not follow from that answer that the same answer should be given to the question raised by this case, and hence it is not necessary to consider the correctness of Lloyd v Robinson.

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