Local Government - Town planning - Apportionment of cost of road between subdividers

Town Planning and Development Act 1928, s 28A(1)

Town Planning and Development Amendment Act 1986, s 11

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Hunt v Knabe (No 2) (1992) 8 WAR 96

Trlin v Fabio (1994) 12 SR (WA) 19

Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21

Muntz v Elkington [1891] VicLawRp 6; (1891) 17 VLR 23

Sydney Holdings Pty Ltd v New Holders Pty Ltd [1938] VicLawRp 47; [1938] VLR 217

1 MARTINO DCJ: This is an appeal by the defendant against a decision of Deputy Registrar Harman entering summary judgment in the plaintiff's favour in the sum of $46,339. The appeal is a fresh hearing of the plaintiff's application for summary judgment: Hunt v Knabe (No 2) (1992) 8 WAR 96; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.

2 The plaintiff's claim is made under s 28A of the Town Planning and Development Act 1928. It is for one half of the cost borne by the plaintiff of part of two roads on land subdivided by the plaintiff. Section 28A(1) provides:

"(1) Where after the coming into operation of section 16 of the Town Planning and Development Amendment Act 1982 (in this section referred to as the 'amending Act') -

(a) a person (in this section called 'the later subdivider') having after that coming into operation subdivided land-

(i) a lot or lots of that subdivision has or have a common boundary with; or

(ii) a road of that subdivision (in this subsection called a 'subdivisional road') joins,

(b) a person (in this section called the original subdivider) who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing the existing road; and

(c) the later subdivider did not contribute to that cost,

the original subdivider may, in accordance with this section, recover from the later subdivider a sum representing one-half of so much of the cost as was borne by the original subdivider of providing the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, referred to in paragraph (a)."

3 The plaintiff claims that the defendants are later subdividers and that two roads of the defendants' subdivision join existing roads of the plaintiff's subdivision. The plaintiff contends that its claim comes within s 28A(1)(a)(ii).

4 Section 28A(4)(a) provides:

"(a) land is subdivided on the date on which, any conditions specified by the Commission having been complied with, the approval of the Commission is endorsed on the diagram or plan of survey relating to the subdivision of the land, as provided in regulations made under this Act."

5 The plaintiff carried out a joint subdivision with another company of Lots 50 and 51 East Road, Pearsall in the city of Wanneroo. This action concerns Lot 51 which adjoined Lot 21 East Road which was land subdivided by the defendants.

6 The plaintiff's subdivision is on deposited plan 31636. The Western Australian Planning Commission endorsed its consent on that plan on 29 August 2002. The defendants' subdivision is on deposited plan 36337. The approval of the Commission was endorsed on that plan on 16 July 2003. The plaintiff's subdivision was therefore completed before the defendants' subdivision and the plaintiff is therefore the original subdivider and the defendants are later subdividers within the meaning of those terms in s 28A.

7 Attached to these reasons is a copy of part of a plan which was annexure "IBM1" to an affidavit of Ian Bruce McKellar, a civil engineer retained by the plaintiff, sworn on 6 May 2004. Although there is some uncertainty in the affidavit material filed on behalf of the plaintiff, it appears that the parts of the roads for which the plaintiff claims one half of the cost are those parts which are marked with a hatched pattern on Lot 51. It can be seen from that plan that two roads of the defendants' subdivision extend existing roads of the plaintiff's subdivision.

8 Section 28A(1) is not an easy provision to understand in its application to cases where a subdivisional road joins an existing road.

9 There are two difficulties. The first is in s 28A(1)(b). That paragraph refers to the original subdivider having subdivided land "that also has a common boundary with that existing road". However in cases where a subdivisional road joins an existing road the land of the later subdivision may not have a common boundary with the existing road. In those circumstances the word "also" in s 28A(1)(b) could be redundant or it could mean that even where the claim is made in relation to a subdivisional joining an existing road a lot or lots of the later subdivision must have a common boundary with that existing road for the subsection to apply.

10 The second difficulty relates to the part of the existing road for which the earlier subdivider can recover one half of the cost. It is clearly not the whole of the existing road, it is "the part of the existing road ..... which is joined by a subdivisional road". However where the subdivisional road extends an existing road the part which is joined is only the line at which the subdivisional road joins the existing road.

11 The only reported decision on s 28A of which I am aware is Trlin v Fabio (1994) 12 SR (WA) 19. That case differed from this case in that the later subdividers' lots had a common boundary with the existing road and the claim was one under s 28A(1)(a)(i). In Trlin v Fabio Commissioner Millar held that the later subdivider was liable to contribute to the cost of not only the part of the road with which the later subdivider's lots shared a common boundary, but also "some 10 m extending from the boundary of [the later subdivider's land with the existing road] to meet the Shire obligation to take new roads into existing roads."

12 Commissioner Millar apportioned the later subdivider's liability to contribute to that cost according to the relative proportions of each subdivider's frontages onto the existing road.

13 I find it difficult to see how s 28A provides an apportionment of other than one half. I also find it difficult to see how in a case such as Trlin v Fabio the subdivider's obligation is to the cost of a greater part of the road than the part which has a common boundary with the later subdivider's lot or lots. However as this case comes within s 28A(1)(a)(ii) I do not think that Trlin v Fabio can assist in the determination of it and I express no further view on that case.

14 It is necessary to refer to the history of the legislation. Prior to the Town Planning and Development Amendment Act 1986 s 28A(1) of the Act provided.

" 28A. (1) Where after the coming into operation of section 16 of the Town Planning and Development Amendment Act 1982 (in this section referred to as 'the amending Act') -

(a) a person (in this section called 'the later subdivider') subdivides land and a lot or lots of the subdivision have a common boundary with an existing road; and

(b) a person (in this section called 'the original subdivider') who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing the existing road; and

(c) the later subdivider did not contribute to that cost, the original subdivider may, in accordance with this section, recover from the later subdivider a sum representing one-half of so much of the cost as was borne by the original subdivider of providing the part of the existing road which has a common boundary with the lot or lots referred to in paragraph (a) of this subsection."

15 That section enabled the original subdivider to recover from the later subdivider one half of the cost borne by the original subdivider of that part of the existing road of the original subdivision which has a common boundary with a lot or lots of the later subdivider's subdivision. Section 28A was amended by s 11 of the Town Planning and Development Amendment Act 1986 which provided as follows:

"11. Section 28A of the principal Act is amended in subsection (1) by deleting -

(a) paragraph (a) and substituting the following paragraph -

'(a) a person (in this section called 'the later subdivider') having after that coming into operation subdivided land -

(i) a lot or lots of that subdivision has or have a common boundary with; or

(ii) a road of that subdivision (in this subsection called 'a subdivisional road') joins,

(b) 'referred to in paragraph (a) of this subsection.' and substituting the following -

' , or is joined by a subdivisional road, referred to in paragraph (a). '."

16 In the second reading speech for the 1986 Amendment Act the Minister said of this section:

"There is a minor alteration of the provisions relating to subdivision roads to overcome a technicality whereby a later subdivider can presently avoid reimbursing an earlier subdivider for half the cost of a section of road provided by that earlier subdivider if it is opposite a road junction."

17 Although the word junction can mean a place where two or more roads meet, unite or cross the phrase road junction generally refers to an intersection, such as in the example "busy road junction" which is an example given in the Oxford English Dictionary. That seems to be how the phrase was being used in the second reading speech.

18 In my view that speech assists in the interpretation of s 28A. Where the subdivisional road joins the existing road at an intersection then the part of the road which is joined by the subdivisional road is the intersection, and it is one half of the cost of that intersection that can be recovered by the original subdivider. It would seem therefore that s 28A may not have been intended to apply to cases such as this where the subdivisional road extends the existing road if the road is not opposite an intersection.

Did the defendants contribute to the cost of the existing road?

19 There is another difficulty with the plaintiff's application for summary judgment. The plaintiff only has a claim against the defendants if the defendants did not contribute to the cost of the existing roads. Although the affidavits are unclear it appears that the roads constructed by the plaintiff did not extend to the boundary of the plaintiff's subdivision with the defendants' subdivision.

20 That appears from annexure "IBM5" to Mr McKellar's affidavit on which the road pavement is shown as not extending to that boundary.

21 It also appears from an affidavit sworn by the defendants' engineer, David Porter on 25 May 2004 in which Mr Porter has deposed that much of the road infrastructure on Lot 51 did not extend to the common boundary and that the defendants spent $7,092.32 "on completing the plaintiff's works to join the subdivisions."

22 The word "road" is not defined in s 28A. It may mean a constructed road rather than a road reserve as it refers to the costs of providing a road which is defined in s 28A(3) as including the cost of preparing and sealing the road.

23 It may be therefore that the defendants contributed to the cost of the existing roads and that the plaintiff has no claim against them.

24 It is well settled that the power to enter summary judgment should be exercised with great care and should not be exercised unless there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87.

25 In my view there are two questions in this action which ought to be tried. One is the issue of whether s 28A of the Town Planning and Development Act 1928 has any application to a case such as this where the road of the latter subdivision extends an existing road rather than joins it at an intersection.

26 The other question arises if s 28A does apply to the plaintiff's claim. That is whether the plaintiff does not have a claim because the defendants contributed to the cost of the existing roads.

27 For these reasons I conclude that the defendants should be given leave to defend the action.