MATTER : Declaration pursuant to O 58 r 11(1) of the Supreme Court Rules

Town planning - Staged subdivision approved - Payment in lieu of public open space - Date of valuation dependent on time of approval by planning authority and local government - Whether approval given by local government

Statutory interpretation - Effect of repeal - Whether preservation of a right - Date when right accrued affecting date of valuation

Interpretation Act 1984 (WA), s 36, s 37

Planning and Development Act 2005 (WA), s 153, s 155

Town Planning and Development Act 1928 (WA), s 20C

1 The plaintiff is the Shire of Peppermint Grove, being the local government of the district in which is situated certain land owned by the defendant.

2 In 2004, and again in 2005, the defendant received conditional approval from the Western Australian Planning Commission (WAPC) for the subdivision of its land. Both approvals were granted conditionally upon the defendant ceding 10% of the land to the Crown to be used as public open space. In each case, the WAPC informed the defendant that, pursuant to s 20C of the Town Planning and Development Act 1928 (WA) (the 1928 Act), it might make a payment of money to the plaintiff in lieu of the provision of land.

3 On 9 April 2006, the 1928 Act was repealed and replaced by the Planning and Development Act 2005 (WA) (the 2005 Act).

4 The 2005 Act contained provisions similar to those of the 1928 Act for the payment of money in lieu of a public open space requirement. However, whereas the amount to be paid under the 1928 Act was to be calculated by reference to the valuation of the subject land as at the date of subdivision approval, the amount under the 2005 Act is to be calculated by reference to the value of the land at the date of valuation.

5 The plaintiff contends that in the circumstances of the present case, the land should be valued under the 2005 Act, whereas the defendant contends that the land should be valued under the 1928 Act, as at the date of the 2004 subdivision approval.

6 Although the matter has proceeded largely on the basis of agreed facts, there is an outstanding factual issue: whether the plaintiff has agreed to accept money in lieu of the provision of land. The proceedings, which were commenced by originating summons, therefore require the resolution of factual and legal issues.

7 Despite that, the plaintiff, by its originating summons, 'seeks a declaratory judgment in relation to the following questions of law':

(1) Whether the valuation date for the purposes of ascertaining a cash-in-lieu of public open space contribution to be made by the Defendant to the Plaintiff in satisfaction of a condition of subdivision approval issued to the Defendant should be determined under section 20C of the Town Planning and Development Act 1928 ('TP&D Act') or under sections 253-255 of the Planning and Development Act 2005? and

(2) If the valuation date is to be determined under section 20C of the TP&D Act:

(a) Is the date of subdivision for the purpose of that section the date of conditional approval of the plan of subdivision or the date of WAPC endorsement of approval on the Deposited Plan? and

(b) Is the relevant subdivision the subdivision on the 2004 Subdivision Application or the subdivision on the 2005 Subdivision Application?

8 I take my findings of fact principally from the affidavit sworn 8 January 2007 by Graeme Keith Simpson, the plaintiff's chief executive officer (exhibit 4). Mr Simpson's affidavit appears to have provided the basis for the statement of agreed facts.

9 At the beginning of 2004, the defendant was registered as the proprietor of an estate in fee simple of the following parcels of land:

(1) Portion of Swan Location 84 and being Lot 12 on Diagram 14540 the subject of Certificate of Title Volume 1121 Folio 286 (Lot 12); and

(2) Portion of Swan Location 84 and being Part Lot 101 on Diagram 86840 the subject of Certificate of Title Volume 2055 Folio 292 (Pt Lot 101).

Lot 101 comprised an area of some 1.6 ha with frontages to Bay View Terrace and Johnston Street in Peppermint Grove.

10 At some stage in 2004, the defendant was given approval to subdivide Lot 101 by excising from it an area of 1,737 m2 fronting Johnston Street, on which there stood an existing dwelling. This became Lot 50.

11 The parties refer to this subdivision as stage 1. The only significance of the stage 1 approval is to explain why the subsequent approvals, which are relevant to this application, are referred to respectively as stage 2 and stage 3.

12 On 27 January 2004, the defendant applied to the WAPC for approval of the stage 2 subdivision. The proposal involved the subdivision of Lot 12, together with the balance of the remainder of Lot 101, to create 10 new lots. These were Lots 41 - 49 inclusive and Lot 51. Lots 41 - 50 were consistent with an R10 density coding. Lot 51 was a 'super lot' of 6,600 m2, which the defendant intended to subdivide further at an R25 density coding.

13 By letter dated 22 June 2004, the WAPC informed the defendant that it was 'prepared to approve' the proposed subdivision, in accordance with the submitted plan, 'once the conditions set out below have been fulfilled'. There were 20 conditions. Only condition 13 is relevant for present purposes. It was in the following terms:

A 660.8m2 portion of land being set aside for recreation purposes in a position agreed to the satisfaction of the [WAPC], such land being ceded free of cost and without any payment of compensation by the Crown.

In respect of Condition 13, the [defendant] is advised that the public open space contribution has been calculated on the area of the proposed 'super-lot' which is intended to form part of a future 'Stage 3' subdivision. Taking into account the likely increase in lot yield arising from the staged development of this site the [WAPC] considers that a public open space contribution is justified.

15 The letter went on to draw the defendant's attention to the provisions of s 20C of the 1928 Act:

[W]hereby arrangements can be made, subject to further approval of the [WAPC], for a cash-in-lieu contribution by the [defendant] to the [plaintiff], in respect of Condition 13 of this approval. (emphasis supplied)

16 I shall set out below the provisions of s 20C of the 1928 Act. In summary, it provides for the owner of land who is required to set aside part of his land as a condition of subdivision approval, to pay money in lieu, if the relevant local government and the WAPC both approve.

17 The WAPC made no reference in its advice of 22 June 2004, to the need for approval by the plaintiff. This suggests that the plaintiff had already given its approval.

18 There is no evidence that the WAPC sought the plaintiff's views in advance of its own consideration of the stage 2 application. However, having regard to s 24 of the 1928 Act, I think it probable it did so. Section 24(1) provides:

When, in the opinion of the [WAPC], the plan of subdivision may affect the powers or functions of any local government or public body other than the [WAPC], or any Government department, the [WAPC] shall forward the plan or a copy thereof to such local government, public body, or Government department, as the case may be, for objections or recommendations.

19 In my view, the defendant's proposed plan of stage 2 would have been regarded by the WAPC as likely to 'affect the powers and functions' of the plaintiff. That is no doubt why the WAPC sought the plaintiff's views in relation to the stage 3 proposal. As will be seen, the plaintiff then requested the WAPC to stipulate for the payment of money by the defendant. I think it probable that the plaintiff's attitude was the same in relation to the stage 2 proposal. However, it is not necessary for me to make any finding about that matter.

20 Following the June 2004 approval, the defendant requested the WAPC to reconsider the imposition of some of the conditions which had then been imposed.

21 The request is not in evidence. However, it is common ground that the WAPC's response is set out in a letter dated 10 November 2004 from the secretary of the WAPC to the defendant's planning consultant. In relation to condition 13, the WAPC said:

The [WAPC] is not prepared to waive the requirement for public open space to be provided as part of the current subdivision because it requires a guarantee that such provision will be made. However the [WAPC] would be prepared to defer provision of the public open space or cash-in-lieu, as the case may be, if its provision could be guaranteed. Such a guarantee would be required to be binding on any subsequent purchasers of the land, whether the site is further subdivided or developed for grouped housing, which would have the same impact on demand for public open space as subdivision at a similar density. Therefore, condition 13 remains unchanged but Advice Note 7 is added, as follows:

1. With respect to condition 13 and advice note 3, the [WAPC] would be prepared to accept deferral of the public open space contribution until the further subdivision or strata subdivision of proposed Lot 51 or the development of proposed Lot 51 at a similar density. The liability for the contribution must be transferred to any future purchaser in the event that the land is sold prior to this condition being satisfied. To this end, the [WAPC] would be prepared to enter into a legal agreement, prepared at the proponent's cost, that provides for a public open space contribution of 660.8m2 being provided at the time of the further subdivision, strata subdivision, or development of Lot 51 and that is binding on future purchasers and successors in Title of Lot 51. The legal agreement would need to be supported by a caveat on the Title.

22 This letter was copied to the plaintiff and was exhibited to Mr Simpson's affidavit of 8 January 2007, in support of the originating summons (annexure GKS7, pages 27 - 30).

23 It is to be noted that the WAPC's reference number relating to stage 2 of the subdivision, as appears from its letters of 22 June and 10 November 2004, was 124367.

24 The proposed stage 3 subdivision involved the creation of 11 residential lots having an average size of 550m2 (that is, within the R25 density code) and a common property lot, being a roadway from Bay View Terrace, which passed between Lots 46 and 47 and gave access to the new lots.

25 It is not clear when the defendant made its application for the stage 3 subdivision. However, it appears from the approval letter to which I shall refer below, that the WAPC gave the application the reference number 126739.

26 On 15 December 2004, Mr Simpson, in his capacity as chief executive officer of the plaintiff, approved the text of a letter from the plaintiff to the secretary of the WAPC (exhibit 1 and ts 38).

27 The plaintiff's letter was written under WAPC reference number 126739. It referred to the WAPC's letter dated 3 November 2004

regarding the proposed subdivision of the abovementioned property and the [WAPC's] request for information, comment or recommended conditions that this Council believes would be relevant to and would assist the [WAPC] in determining the application.

(I assume that the WAPC's letter of 3 November 2004 was written pursuant to s 24(1) of the 1928 Act, to which I have referred above.)

28 The plaintiff's letter went on to say that the matter had been considered at an Ordinary Meeting of the plaintiff's council held on 13 December 2004; that the council had resolved to support the proposed subdivision and that it submitted a number of conditions and recommendations to the WAPC for consideration and inclusion in the conditions for subdivision.

29 Under the heading 'Public Open Space', the letter said:

The original lots that were amalgamated to create lot 101 had approximately 10 dwellings before the site was cleared for this and earlier subdivision (discontinued). The current development proposes to create a total of 21 new lots, an increase of 11 lots which forms stage 3 of the development plan.

The Town Planning and Development Act enables the [WAPC] to request the allocation of 10% of the proposed subdivisible area being ceded free of cost by the subdivider and vested in the Crown as a Reserve for Recreation. Alternatively, there is provision for a cash payment to be made in lieu of providing land for open space.

As the subdivisible land is adjacent to an exiting reserve managed by Council, it would be reasonable for the developer to make a financial contribution to the ongoing management and maintenance of this reserve.

The proposed subdivision does not include any POS.

It is therefore requested that the [WAPC] imposes a condition for a cash payment in lieu of a dedicated area from the proposed Stage 3 subdivision for the purposes of Reserve for Recreation for the development, in accordance with WAPC Policy No DC 2.3, Public Open Space in Residential Areas.

30 On 29 March 2005, the WAPC granted approval of the stage 3 subdivision subject to a number of conditions.

31 Condition 9 was in precisely the same terms as condition 13 of the approval given in relation to stage 2. Further, the approval contained the same advice in relation to the defendant's entitlement to make a 'cash-in-lieu' payment 'subject to further approval of the [WAPC]'. Again, there was no reference to the need to obtain the plaintiff's approval.

32 I find as a fact that the reason the WAPC did not refer in its advice to the defendant obtaining the plaintiff's approval, was that the plaintiff had already given its approval, as communicated in its letter of 15 December 2004. The plaintiff had requested the WAPC to impose a condition for a money payment in lieu of the provision of land. That was not, of course, a condition which the WAPC had power to impose. However, the plaintiff's position was quite clear: it did not want land, it wanted money.

33 Despite this, Mr Simpson said in his affidavit made on 19 November 2007:

I have not seen, nor am I aware of any communication to or from the Plaintiff prior to 29 June 2006 which suggested that the Plaintiff consented to, or even had knowledge of an agreement for the Defendant to make a cash in lieu of public open space contribution.

34 In cross-examination, Mr Simpson was asked whether he had read anything, since swearing his affidavit, which caused him to change that statement. He answered 'No, that still holds' (ts 40).

35 Given that Mr Simpson was involved in the plaintiff's discovery of its correspondence with the WAPC (ts 5 and 37 - 38), I am quite unable to accept that answer. I can assume only that it reflects some misunderstanding on Mr Simpson's part about the effect of the plaintiff's letter dated 15 December 2004. I assume also, that the misunderstanding explains Mr Simpson's failure to refer to the letter in the affidavit he made on 8 January 2007, in support of the originating summons.

36 It will be recalled that in the letter dated 10 November 2004, in which the WAPC responded to the defendant's request for a reconsideration of the June 2004 subdivision approval, the WAPC agreed to defer the public open space contribution until the further subdivision of the proposed Lot 51. The WAPC then expressed its willingness to enter into a legal agreement which was binding on the defendant's successors in title to Lot 51.

37 In accordance with this proposal, the WAPC and the defendant entered into a deed on or about 21 December 2005 (the Deed).

38 The Deed contained the following recitals ('the Developer' being a reference to the defendant):

1. The Developer is the registered proprietor of the Land which is in the municipality of the Shire.
2. The Developer has lodged with the WAPC an application to subdivide the Land under their reference 124367.

1. WAPC approved the subdivision and issued the Subdivision Approval for the Land on 25 June 2004.

1. Condition 13 of the Subdivision Approval requires that the Developer shall set aside and vest in the Crown for public open space a portion of the Land with a [sic] area of 660.8m2.
2. Pursuant to section 20C of the TPDA the Shire and WAPC are prepared to approve the payment of a sum of money in lieu of any area of the Land being set aside and vested in the Crown.
3. The Developer and WAPC have agreed that the Developer will satisfy and WAPC will clear the Conditions in the way set out in this document to enable the Land to be subdivided in accordance with Deposited Plan 47007 (a copy of which is attached).

39 The plaintiff is not, of course, a party to the Deed. However, I consider that recital E above, reflects accurately the fact that the plaintiff had, by its resolution of 13 December 2004, not only expressed its preparedness to approve the payment of a sum of money in lieu of the provision of land for public open space, but had sought that such a condition be imposed on the defendant.

40 The plaintiff was informed on 29 August 2005 that the WAPC was proposing to enter into a deed with the defendant 'as per the [WAPC's] request for reconsideration'. The information was contained in an e-mail sent by Nicole Lucas-Smith, effectively on behalf of the WAPC, to Terry Mayor of the plaintiff (exhibit 2). Mr Mayor apparently works under the supervision of Mr Simpson: it was he who prepared the plaintiff's letter of 15 December 2004, which Mr Simpson countersigned (ts 38).

41 As I have noted above, the plaintiff was aware, from the WAPC's letter of 10 November 2004, that the WAPC was proposing to enter into a deed with the defendant to secure the payment of money in lieu of setting aside land for public open space. If the plaintiff had not consented to this course, it might have been expected that the e-mail of 29 August 2005 would prompt a response to that effect. However, there is no evidence that the plaintiff made any objection.

42 Mr Simpson said he assumed Mr Mayor received the e-mail. He said also that he was unaware of it when he made his affidavit of 19 November 2007.

43 On 9 April 2006, as I have noted above, the 1928 Act was repealed and replaced by the 2005 Act.

44 On 23 June 2006, the defendant's planning consultant tendered a cheque in the sum of $660,000 to the plaintiff. The cheque was said to represent the value of 660.8m2 of the defendant's land, calculated by licensed valuers as at 26 June 2004, 'being the day following the approval of the [WAPC] to the subdivision'. The covering letter appears to have been written under an erroneous reference: 126367. I assume the intention was to quote reference 124367, that being the WAPC's reference for the June 2004 approval.

45 On 4 July 2006, the plaintiff's solicitors returned the defendant's cheque under cover of a letter which also bore the erroneous reference 126367. The plaintiff's solicitors contended that if the defendant wished to contribute cash in lieu of public open space, the value of its contribution should be assessed under the 2005 Act, not the 1928 Act. On that basis, the plaintiff's solicitors invited the defendant to agree that a valuation be carried out by the plaintiff's nominee.

46 Issue having been joined, the plaintiff commenced these proceedings by originating summons on 8 January 2007.

47 Section 20C of the 1928 Act provides, so far as relevant:

(1) Where the Commission has approved a plan of subdivision of land upon condition that portion thereof be set aside and vested in the Crown for parks, recreation grounds or open spaces generally, if the local government in whose district the portion is situated and the Commission approve, the owner of the land may, in lieu thereof, pay to that local government a sum that represents the value of the portion.

...

(3) For the purposes of subsection (1), the value of the portion shall be such percentage of the market value of the land of which the portion forms part as the area of the portion bears to the area of that land on the date of the subdivision.

(4) For the purposes of subsection (3), the market value of land -

(a) is the capital sum which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require;

(b) shall be determined, at the cost of the owner of the land, by a licensed valuer agreed upon by the parties or, failing agreement, appointed by the local government; and

(c) shall be so determined -

(i) as at the date of the subdivision;

(ii) on the basis that there are no buildings, fences or other improvements of a like nature on the land;

(iii) on the assumption that any rezoning necessary for the purpose of the subdivision has come into force; and

(iv) taking into account the added value of all other improvements on or appurtenant to the land.

...

(7) For the purposes of this section -

(a) land is subdivided on the date on which the Commission approves of the plan of subdivision of the land subject to the condition mentioned in subsection (1); and

(b) 'licensed valuer' means -

(i) a licensed valuer within the meaning of the Land Valuers Licensing Act 1978;

(ii) the Valuer-General,

but nothing in subsection (4)(b) or in this paragraph shall be construed as obliging the Valuer-General to undertake any valuation for the purposes of this section.

48 On the basis of the findings I have made, I consider that on 13 December 2004 at the latest, the plaintiff gave its approval for a payment of money in lieu of setting aside land, when it passed the resolution referred to above. That approval was communicated to the WAPC by the plaintiff's letter of 15 December 2004.

49 Alternatively, the plaintiff must be taken to have known, on or about 29 August 2005, that the WAPC and the defendant were preparing to enter into a deed to secure the payment of money in lieu of setting aside land for public open space. In the absence of any objection by the plaintiff, it must be taken to have approved this course at about that time.

50 Section 20C appears to have been drafted on the basis that the land owner who wishes to pay money in lieu of setting aside land will make that request and seek the approval of the local government, after the WAPC has given its conditional approval to the plan of subdivision. However, I do not think that the clear intent of the provision should be frustrated by grammatical considerations in circumstances such as this, where a land owner is invited to consider making a payment in lieu of setting aside land at the request of the local government.

51 It follows, on the view I take, that since all approvals were given before the 1928 Act was repealed, the valuation is to be carried out at the date of one of the approvals given under that Act. I shall consider below whether the valuation should be carried out as at the date of the stage 2 or stage 3 approval.

52 If I am wrong in my interpretation of s 20C, it must follow that the plaintiff did not give its approval for a payment of money in lieu of setting aside land for public open space, until 4 July 2006, when the plaintiff's solicitors invited the defendant to agree that a valuation be carried out by the plaintiff's nominee. In their letter, the plaintiff's solicitors drew attention to s 155(3)(a) of the 2005 Act, which would permit the plaintiff to appoint the valuer failing agreement between the parties. This is a clear indication that (consistently with its position throughout) the plaintiff wanted money, not land.

53 If 4 July 2006 is the relevant approval date, it becomes necessary to consider the applicable provisions of the 2005 Act and the Interpretation Act 1984 (WA).

(1) If the Commission has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in the Crown for parks, recreation grounds or open spaces generally and -

(a) the Commission, after consultation with the local government in whose district the portion is situated, so requires; or

(b) the Commission, the local government in whose district the portion is situated and the owner of the land so agree,

the owner of that land is to, in lieu of setting aside the portion, pay to that local government a sum that represents the value of the portion.

55 This provision differs from s 20C of the 1928 Act, in that it permits the WAPC, when approving a plan of subdivision, to impose a condition requiring the land owner to make a payment of money in lieu of setting aside land for public open space.

56 Section 155 of the 2005 Act deals with the valuation of land for the purposes of s 153. It provides:

'licensed valuer' means -

(a) a licensed valuer as defined in the Land Valuers Licensing Act 1978; or

(b) the Valuer-General,

but nothing in subsection (3)(a) or in this definition is to be construed as obliging the Valuer-General to undertake a valuation for the purposes of this section;

'market value of land' means the capital sum which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require.

(2) For the purposes of section 153, the value of the portion is to be such percentage of the market value of the land of which the portion forms part as the area of the portion bears to the area of that land.

(3) For the purposes of subsection (2), the market value of land -

(a) is to be determined, at the cost of the owner of the land, by a licensed valuer agreed upon by the parties or, failing agreement, appointed by the local government; and

(b) is to be so determined -

(i) as at the date on which the valuation is made;

(ii) on the basis that there are no buildings, fences or other improvements of a like nature on the land;

(iii) on the assumption that any rezoning necessary for the purpose of the subdivision has come into force; and

(iv) taking into account the added value of all other improvements on or appurtenant to the land.

(4) The licensed valuer is to give the valuation to the owner of the land and the local government.

(5) If within 90 days, or such longer time as is agreed in writing by the local government, of the date on which the valuation is made the owner of the land has not -

(a) paid the amount of the valuation; or

(b) disputed the valuation under section 156,

the local government may, by written notice to the owner of the land, determine that the valuation is no longer current and that a fresh valuation is required.

57 Section 155(3) differs from s 20C(4) in that it provides for the value of the land to be set aside as at the date of valuation not (as previously) as at the date of the approval.

58 Section 36 of the Interpretation Act provides:

Where a written law repeals and re-enacts, with or without modification, any enactment -

(a) all districts or other local divisions or areas;

(b) all councils, corporations, boards, tribunals, commissions, trusts, or other bodies constituted, and all elections and appointments of members thereof made; and

(c) all offices constituted and appointments of officers made;

(d) all subsidiary legislation, warrants, certificates, and documents made; and

(e) all other acts, matters, and things whatsoever,

which, at the commencement of the repealing law, are respectively in existence, or in force or operation, under or for the purposes of such provision, shall, in so far as is consistent with the repealing law, subsist and enure for the purposes of such law and shall continue as if the repealing law had been in operation when they respectively originated or were constituted, made or done and they had originated or been constituted, made or done under that law.

59 In the present case, the 2005 Act has repealed and re-enacted with 'modification' the 1928 Act, as summarised above.

60 The plaintiff submits that both the stage 2 and stage 3 conditional approvals were acts, matters or things of the kind contemplated by s 36(e) which were in existence at the commencement of the 2005 Act.

61 Therefore, the plaintiff submits, each of those approvals would continue as if the 2005 Act had been in operation at the dates of the approvals. Thus, the approvals would be regarded as having originated under the 2005 Act and would be subject to the procedures provided under that Act. The result would be that the value of the land to be set aside would be determined as at the date of the valuation.

62 The plaintiff submits that this approach was adopted by the Court of Appeal in Victoria in Felman v Law Institute of Victoria [1998] 4 VR 324 when considering s 16(b) of the Interpretation of Legislation Act 1984 (Vic) which is the Victorian equivalent of s 36 of the Interpretation Act.

63 In Felman, two sets of proceedings had been brought against the defendant in order to restrain him from practising as a solicitor. One set of proceedings was brought by the Law Institute of Victoria, pursuant to s 95A of the Legal Profession Practice Act 1958 (Vic). The other proceedings were brought by the secretary of the Law Institute, pursuant to s 90(7) of that Act.

64 After the proceedings had been commenced, the Legal Profession Practice Act was repealed and the Legal Practice Act 1996 (Vic) enacted. The 1996 Act abolished the Law Institute and created the Victorian Lawyers RPA Ltd. RPA means 'recognised professional association', which is referred to in the legislation as 'the Society'.

65 The Court of Appeal dealt with a preliminary question arising in the two sets of proceedings: whether the repeal of the 1958 Act and the abolition of the Institute and its secretary had the effect that the two proceedings lapsed.

66 The leading judgment of the Court of Appeal was given by Kenny JA, with whom Winneke P and Brooking JA agreed. One of the questions considered by Kenny JA was how s 16(b) of the Interpretation of Legislation Act applied. It is in the following terms:

Where an Act or a provision of an Act is repealed and re-enacted (with or without modification) then, unless the contrary intention expressly appears -

...

(b) insofar as any subordinate instrument made or other thing done under the repealed Act or provision, or having effect as if so made or done, could have been made or done under the re-enacted Act or provision, it shall have effect as if made or done under the re-enacted Act or provision.

67 That subsection is, I think, to the same effect as s 36(e) of the Interpretation Act, in that by referring to a thing done which could have been done under the re-enacted Act, it is, in substance, contemplating a consistency between the repealed and repealing laws of the kind referred to in s 36(e).

68 In answering the question how s 16(b) was to apply, Kenny JA said:

If an order is made in these proceedings under s 90(7) or s 95A of the former Act, the 'thing done' will be the making of the order. The effect of s 16(b) is that the order 'shall have effect as if made or done under' [the repealing provisions] (340).

69 Her Honour referred to the argument advanced on behalf of the defendant that s 16(b) could not be applied in that way because the 'thing done' could not have been done, or given effect under the repealing Act.

70 Kenny JA did not accept that submission. Her Honour held that the thing to be done, 'namely, prohibiting a person from undertaking employment of a certain kind' was essentially the same as that sought under the repealed Act although the order would be made by a tribunal and not by the Supreme Court.

71 Further, Kenny JA held, in effect, that a prohibition granted under the repealing Act against engaging in legal practice was essentially equivalent to a prohibition against practising as a solicitor under the previous legislation (at 341).

72 In my view, the approach by Kenny JA as summarised above does not support the plaintiff's submission. Let it be assumed, for the purposes of the argument, that the act, matter or thing for the purpose of s 36(e) is the conditional subdivision approval. The effect of s 36(e) is that that approval, in so far as it is consistent with the 2005 Act, shall subsist and enure for the purpose of that Act, as if given under that Act.

73 However, there is an inconsistency between the 1928 and 2005 Acts, in that the valuation date has changed. It follows that, unlike the situation in Felman's case, where the same order would be made under the repealed and repealing Acts (but by a different authority), here, the application of the 1928 and 2005 Acts would produce different results. That being so, the conditional approval could not 'subsist and enure' for the purposes of the 2005 Act.

74 If I am wrong in this view, and the inconsistency was not so great as to prevent the conditional approval from continuing, the effect of s 36(e) would be that the approval would continue as if it had originated under the 2005 Act, even though it had actually been given under the 1928 Act.

75 Thus, the cash-in-lieu provisions of the 1928 Act would continue to apply, even though that would result in a valuation being carried out on a basis which was not available under the 2005 Act. If that was not so, the application of s 36(e) and s 37 (to which I shall refer below) would produce opposite results. This cannot have been intended by the legislature.

76 Given my primary view that s 36(e) of the Interpretation Act does not apply (because of the inconsistency between the 1928 and 2005 Acts) I turn to consider s 37. So far as relevant, it provides:

(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

...

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal.

77 This provision is in similar terms to s 8 of the Acts Interpretation Act 1901 (Cth) which provides:

Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

...

(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed.

78 In Esber v The Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430, 439, the majority of the High Court said that the first step in a consideration of s 8 was to identify the 'right' which was acquired or accrued under the repealed Act.

79 Further, in Chang v Laidley Shire Council [2007] HCA 37; (2007) 237 ALR 482 [117], Hayne, Heydon and Crennan JJ, in a joint judgment, said:

Terms like 'right', 'interest', 'title', 'power' or 'privilege' when used in the context of a general interpretation provision like s 20 are to be understood by reference to the statute that has been amended or repealed. They are terms that are not used 'solely in any technical sense derived exclusively from property law or analytical jurisprudence'.

The reference is to s 20 of the Acts Interpretation Act 1954 (Qld) which provides that the repeal or amendment of an Act 'does not ... affect a right, privilege or liability acquired, accrued or incurred under the Act'. It therefore has a similar effect to s 37 of the Interpretation Act 1984.

80 In Esber's case, a former member of the defence forces (the appellant) received weekly payments in excess of $50 under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). The appellant applied to have the weekly payments redeemed, and to receive a lump sum in lieu. That application was rejected. The appellant then sought review of the decision by the Administrative Appeals Tribunal (Tribunal). However, after the appellant had made his application to the Tribunal, but before it was heard, the 1971 Act was repealed. It was replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) which provided that payments of compensation over $50 per week were not redeemable.

81 The Tribunal held that the 1971 Act applied. It therefore granted redemption. However, on appeal by the Commonwealth, the Full Court of the Federal Court (by a majority) held that the 1988 Act applied.

82 On appeal, the High Court reversed the decision of the Federal Court. The majority held (omitting references to authority):

Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment'. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent'. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act (440 - 441).

83 In its submissions, the plaintiff notes that in Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 at [63] Spigelman CJ referred to 'the problematic judgment of the High Court in Esber ...' His Honour went on to say that the decision was 'probably best explained as turning on the interpretation of the transitional provisions in the Act': that is, the 1988 Act referred to above. Indeed, that was the explanation given in Attorney-General for the State of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485 at [49], per Gaudron, McHugh, Gummow and Hayne JJ and at [127] per Kirby J.

84 Similarly, I consider that (if, contrary to my view, the plaintiff did not approve a cash-in-lieu payment before the 1928 Act was repealed) the present case turns on the construction of s 37 of the Interpretation Act.

85 The plaintiff submits that in the present case, the defendant did not have any substantive right to make a money payment in lieu of contributing land for public open space. The plaintiff submits that that right could not come into existence until both the plaintiff and the WAPC had approved such a course.

86 I do not accept that submission because I do not think it reflects the correct analysis of the conditional approval to subdivide given by the WAPC.

87 It is clear from the judgment of the High Court in Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 that an approval to subdivide given on a condition vests in the owner a right to subdivide, but:

... the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions (154).

88 Assuming (contrary to my view) that the plaintiff had not given its approval for a 'cash-in-lieu' payment before the 1928 Act was repealed, I accept that the defendant's right to do so was contingent on that approval being given. I do not think the right was inchoate.

89 However, as the majority of the High Court said in Esber, s 37 of the Interpretation Act 'protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" '(440).

90 To hold otherwise, would, I think, be to give the 2005 Act a retrospective effect, which, in a rising property market would be likely to reduce the value of the conditional approval during its currency. There being no such intention appearing in the 2005 Act, it follows that the right to subdivide will be protected by s 37(1)(c) of the Interpretation Act: see Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1; Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88.

91 I therefore conclude that the right to subdivide which was given to the defendant by the WAPC's conditional approvals relating to stages 2 and 3, carried with it, albeit contingently, the right to make a payment in lieu of setting aside land for public open space, such a right arising under s 20C of the 1928 Act and entitling the defendant to have the relevant valuation carried out in accordance with the provisions of that Act.

92 The question raised by par (1) of the originating summons must therefore be answered in that way.

93 I turn to the second question raised by the originating summons. The first part of that question asks whether the date of subdivision for the purposes of s 20C is the date of conditional approval of the plan of subdivision or the date of WAPC endorsement of approval on the deposited plan.

94 In my view, the answer to that question lies in s 20C itself. Section 20C(4)(c) provides that the market value of the land on which the cash-in-lieu payment is to be calculated, is to be determined at the date of the subdivision.

95 By s 20C(7), for the purposes of the section, the land is subdivided on the date on which the WAPC approves of the plan of subdivision subject to the condition that a portion be set aside for public open space.

96 It follows that the date of subdivision for present purposes must either be 22 June 2004, when the WAPC approved the stage 2 subdivision, or 29 March 2005, when it approved the stage 3 subdivision. Clearly, although the same condition as to setting aside land for public open space was a feature of both approvals, the WAPC did not intend that the defendant should make two cash-in-lieu payments by way of satisfaction of the conditions.

97 In this context, I think it important to emphasise that although such payments are made to the local government, it is the WAPC, under s 20AA(2)(b) of the 1928 Act, which is to be satisfied that, if an approval has been given subject to conditions, the conditions have been complied with. The WAPC will then endorse its approval on the diagram or plan of survey.

98 In the present case, the condition imposed as part of the 22 June 2004 approval was said by the WAPC to be justified because of the likely increase in lot yield arising from the staged development of the site, it being envisaged that the then proposed 'super-lot' would form part of the future stage 3 subdivision: see par 2 of the approval under the heading 'Advice to Applicant'.

99 Further, as appears from the WAPC's response to the defendant's request for a reconsideration of the public open space condition, the WAPC expressed its preparedness to defer the provision of the public open space or cash-in-lieu, pending the further subdivision of the super-lot. Thus, the imposition of the public open space condition as part of the 29 March 2005 approval was merely a confirmation of what had gone before.

100 In my view, the Deed of December 2005 puts the matter beyond doubt. The recitals to the Deed (set out above) refer to the defendant's application under reference 124367. That was the reference for the application which led to the approval given on 25 June 2004. The same approval is referred to in the interpretation section. Clause 1.1 contains a definition of 'Subdivisional Approval' as 'the letter dated 25 June 2004'.

101 The Deed was prepared in anticipation of the stage 3 subdivision. Clause 2.2 required the defendant to pay to the plaintiff the 'Contribution Sum' within five business days after it had lodged all applications for clearances with the WAPC 'to clear the conditions relating to Stage 3 of the Subdivision'.

102 The term 'Contribution Sum' is defined in cl 1.1 to be the sum to be paid by the defendant to the plaintiff to be determined in accordance with s 20C of the 1928 Act.

103 I do not regard as significant the fact that the Deed was prepared by the defendant's solicitors. The WAPC must be taken to have known and understood its contents.

104 The plaintiff contends that because the public open space contribution formed part of the stage 3 approval, the stage 3 approval date of 29 March 2005 is the operative date for present purposes.

105 I do not accept that submission because, in my view, it does not reflect the fact that the basis for the public open space condition which formed part of the stage 2 approval, was that there would be a stage 3 at a density of R25. As the High Court held in Lloyd v Robinson at 154, a condition need not relate to the subdivision in respect of which the approval is given, provided that it relates to that development. This proposition was affirmed in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [72] - [73] by McHugh J and at [117] - [118] by Gummow and Hayne JJ.

106 For all these reasons, I conclude that the answer to question (2)(b) raised by the originating summons is that the relevant subdivision is that for which conditional approval was given by the WAPC on 22 June 2004.

107 I will ask counsel to bring in a minute of orders which reflects these reasons.

108 Finally, I wish to record that in reaching the conclusions set out above I have not referred to exhibit 7. This is a document produced by the WAPC, entitled 'Policy No. DC 2.3 Public Open Space in Residential Areas'. Exhibit 7 was tendered by counsel for the defendant, over objection by leading counsel for the plaintiff, who submitted that it was of no relevance. I received the document subject to that objection (TS 47), on which it is not now necessary to rule.