Carbone Bros Pty Ltd v Shire of Harvey - [2015] WASCA 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CARBONE BROS PTY LTD -v- SHIRE OF HARVEY [2015] WASCA 248

CORAM: McLURE P
MURPHY JA
CORBOY J

HEARD: 18 AUGUST 2015

DELIVERED : 7 DECEMBER 2015

FILE NO/S: CACV 116 of 2014

BETWEEN: CARBONE BROS PTY LTD
Appellant
AND
SHIRE OF HARVEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
Citation  :CARBONE BROS PTY LTD -v- SHIRE OF HARVEY [2014] WASC 284
File No  :CIV 2601 of 2012

Catchwords:

Local government - Validity of conditions in planning consents requiring payment of road levies for use of land for extractive industries

Legislation:

District Planning Scheme No 1, cl 2.4.2, cl 2.6.2, cl 9.13
Extractive Industries Local Law 2007 (WA), cl 2.1, cl 3.1
Local Government Act 1995 (WA), s 1.3(1)(d), pt 3 div 2, s 6.15, s 6.16, s 6.17, s 6.18, 6.20, pt 6 div 6, s 6.38
Planning and Development Act 2005 (WA), s 68, s 69(1), sch 7
Planning and Development Regulations 2009 (WA), r 47, sch 2 item 3
Road Traffic Act 1974 (WA), s 85
Town Planning and Development Act 1928 (WA), s 6, s 7

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr P G McGowan & Mr T Houweling
Respondent: Mr P Wittkuhn

Solicitors:

Appellant: Cornerstone Legal
Respondent: McLeods Barristers & Solicitors

Case(s) referred to in judgment(s):

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490
Brayson Motors Pty Ltd v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651
Carbone Bros Pty Ltd v Shire of Harvey [2014] WASC 284
Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 53 ALR 632
Kelvedon Pty Ltd v Shire of Northam [2011] WASC 288
Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142
Marsh v Shire of Serpentine-Jarrahdale (1966) 120 CLR 572
Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Town of Cottesloe v Multiplex (Marine Parade) Pty Ltd [2007] WASCA 113
Van der Feltz v City of Stirling [2009] WASC 142
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

McLURE P: I agree with Murphy JA that the appeal should be dismissed. These are my reasons for that conclusion.
The facts are detailed by Murphy JA and not repeated here. The issue in the appeal is the validity of conditions in planning consents requiring the appellant to pay road levies to the Shire of Harvey (Shire) for use of land within the Shire for 'extractive industries'. The condition in each case imposed a levy of a specified amount per cubic metre of extracted material to be paid to the Shire to assist in the upgrade and maintenance of roads used in connection with the conduct of the extractive industry.
At the hearing of the appeal, the appellant departed in significant ways from its written submissions in the appellant's case. In particular, it abandoned its primary claim that the road levies were a tax that were beyond the power of the Shire to impose (as to which, see Marsh v Shire of Serpentine-Jarrahdale (1966) 120 CLR 572).
As I understand the appellant's oral submissions, its propositions are to the following effect: (1) s 6.15 of the Local Government Act 1995 (WA) (LGA) is an exhaustive statement of the source of the power of a local government to impose a revenue or income raising obligation; (2) as a result, cl 2.4.2 of the Shire's District Planning Scheme No 1 (TPS1) and cl 3.1(2)(b) of the Shire's Extractive Industries Local Law 2007 (Extractive Industries Law) are not a, or the, source of the Shire's power to impose the road levies; (3) the road levies are fees or charges within s 6.15(1)(iii) of the LGA to which s 6.17 applies; (4) the road levies are invalid because they were not struck in accordance with the requirements in s 6.17.

The legislative framework

An object of the LGA is to provide a framework for the administration and financial management of local governments (s 1.3(1)(d)). Section 6.15 is in pt 6 div 5 of the LGA relating to the financing of local government activities. Section 6.15 provides:
(1)A local government may receive revenue or income ‑
(a)from ‑
(i)rates; or
(ii)service charges; or
(iii)fees and charges; or
(iv)borrowings; or
(v)investments; or
(vi)any other source,
authorised by or under this Act or another written law; or
(b)from ‑
(i)dealings in property; or
(ii)grants or gifts.
(2)Nothing in subsection (1)(a) authorises the making by a local government of a local law providing for the receipt of revenue or income by the local government from a source not contemplated by or under this Act.
The express powers of a local government to impose rates, service charges and fees and charges are in pt 6 div 6, s 6.38 and s 6.16, respectively, of the LGA. The power to borrow is conferred by s 6.20 and the power to invest by s 6.14.
Section 6.16(1) of the LGA is the source of the power of a local government to impose and recover a 'fee or charge for any goods or service it provides or proposes to provide, other than a service for which a service charge is imposed'.
Section 6.16(2) identifies the particular circumstances in which a fee or charge may be imposed. They include, relevantly, for:
(d)receiving an application for approval, granting an approval … and issuing a licence …
(f)such other service as may be prescribed.
No relevant service has been prescribed for the purpose of s 6.16(2)(f).
Section 6.17 of the LGA relevantly provides:
(1)In determining the amount of a fee or charge for a service or for goods a local government is required to take into consideration the following factors ‑
(a)the cost to the local government of providing the service or goods; and
(b)the importance of the service or goods to the community; and
(c)the price at which the service or goods could be provided by an alternative provider.
TPS1 is a town planning scheme made under the former Town Planning and Development Act 1928 (WA) (the former Act), s 6, s 7. A town planning scheme, when approved of by the Minister under s 7 and published in the Gazette, had full force and effect as if it were enacted by the former Act.
The former Act was replaced by the Planning and Development Act 2005 (WA) (PDA). Under s 68 of the PDA, any town planning scheme in force under the former Act continues in force as a local planning scheme and has effect as if it were enacted by the PDA.
Part 2 of TPS1 deals with the requirements of, and applications for, planning consent. Clause 2.4.2, which deals with the Council's power to determine applications for planning consent, provides:
The Council having regard to any matter which it is required by the Scheme to consider, to the purpose for which the land is zoned or approved for use under the Scheme, to the purpose for which land in the locality is used, and to the orderly and proper planning of the locality and the preservation of the amenities of the locality, including land designated as a place of heritage significance, may refuse to approve any application for planning consent or may grant its approval unconditionally or subject to such conditions as it thinks fit. (emphasis added)
The conditions for the imposition of road levies the subject of this appeal were contained in planning consents given under cl 2.4.2.
Clause 9.13 of TPS1 deals with extractive industries. It relevantly provides:
9.13.1A person shall not carry on an extractive industry on any land within the Shire of Harvey without first having obtained an Extractive Industry Licence and Planning Approval from Council in the following manner: ‑
(lxxxii) Application for an Extractive Industry Licence is to be lodged in accordance with the requirements of Council's Extractive Industry By-laws.
(b)Application for Planning Consent to undertake an extractive industry shall be lodged in accordance with the provisions ‑ Clause 9.13.2.
Clause 9.13.2 requires specified information, including details of proposed access to the property for cartage, proposed cartage routes on public roads, access to the excavation site and the types of roads to be constructed.
The Extractive Industries Law is a 'local law' made by the Shire under pt 3 div 2 of the LGA. A 'local law' was formerly called a 'by-law'.
Clause 2.1 of the Extractive Industries Law provides:
A person must not carry on an extractive industry -
(a)unless the person is the holder of a valid and current licence; and
(b)otherwise than in accordance with any terms and conditions set out in, or applying in respect of, the licence.
Clause 3.1 of the Extractive Industries Law relates to the determination of applications for a licence and relevantly provides:
(1)The local government may refuse to consider an application for a licence that does not comply with the requirements of clause 2.3 and in any event shall refuse an application for a licence where planning approval for an extractive industry use of the land has not first been obtained.
(2)The local government may, in respect of an application for a licence ‑
(a)refuse the application; or
(b)approve the application -
(i) …
(ii)on such terms and conditions, if any, as it sees fit.
Clause 3.1(5) relevantly provides:
Without limiting subclause (2), the local government may impose conditions in respect of the following matters -
…
(q)requiring the licensee to enter into an agreement with the local government by which it agrees to pay any extraordinary expenses incurred by the local government in repairing damage caused to thoroughfares in the district by heavy or extraordinary traffic conducted by or on behalf of the licensee under the licence;
(r)requiring the licensee to enter into an agreement with the local government in respect of any condition or conditions imposed under this Local Law; and
(s)any other matter for properly regulating the carrying on of an extractive industry.

Disposition

It is clear from the text and context that s 6.15 of the LGA is not the source of the power of a local government to impose an obligation to make a payment of any description. In particular:
(1)the expression 'authorised by or under this Act or another written law' applies to each of the sources of revenue or income specified in pars (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) of s 6.15(1); and
(2)the source of the power to impose an obligation to make a payment is to be found elsewhere in the LGA or another written law.
The sole purpose of s 6.15 is to authorise a local government to receive revenue or income that is generated from the lawful exercise by that local government of its powers.
By s 6.15(2) of the LGA, a local government's power to receive revenue or income cannot be enlarged by a local law. That has the effect of narrowing the scope of s 6.15(1)(a)(vi) to exclude a source authorised solely by a local law. A local government would be authorised to receive revenue or income generated by a local law that is within the categories in s 6.15(1)(a)(i) ‑ (v). I infer revenue or income outside those categories would be paid into consolidated revenue. Thus, the Shire's power to receive revenue or income can be enlarged by TPS1 but not by the Extractive Industries Law.
The appellant's first proposition is based on a false premise. Section 6.15 of the LGA is not the source of the power of a local government to generate revenue or income, whether by imposing an obligation or otherwise. Section 6.15 is the source of a local government's entitlement to receive revenue or income within the categories in s 6.15(1)(a) that are authorised by or under the LGA or another written law.

That leaves the question whether the express power to impose obligations to pay rates, service charges or fees and charges under the LGA impliedly limits or excludes the power to impose conditions under cl 2.4.2 of TPS1. That is, would the general power to impose conditions be read down to exclude the power to impose a condition that is inconsistent, in content or effect, with the express powers in the LGA relating to rates, service charges or fees and charges. However, it is unnecessary to determine that issue. I do not accept the appellant's contention that the road levies are fees and charges within the scope of the LGA. The road levies are not a fee or charge for any goods or services it provides or proposes to provide. In particular, the road levies are not a fee or charge for receiving or granting the application for planning consent. The road levy is related to the deleterious effect on roads within the Shire of the transport of significant quantities of extracted material. Accordingly, s 6.17 of the LGA has no application. The appellant does not contend that the road levies were not for a proper planning purpose or were not reasonably and fairly related to the activity permitted by the planning consents. In the circumstances, it is unnecessary to determine the respondent's notice of contention.
MURPHY JA:

Introduction

This is an appeal from a decision of Jenkins J[1] concerning the question of whether the Shire of Harvey (Shire) had the power to impose conditions that the appellant pay road maintenance and upgrade levies (road levies) in relation to roads used by the appellant for access to sites within the Shire's district, from which the appellant extracted materials. The road levies were calculated with reference to the volume of materials extracted from the sites. They were purportedly imposed pursuant to planning consents granted under the Shire of Harvey District Planning Scheme No 1, and extractive industry licences issued under the Extractive Industries Local Law 2007 (WA).
[1] Carbone Bros Pty Ltd v Shire of Harvey [2014] WASC 284 (Primary Reasons).
The appellant in the primary proceedings challenged the Shire's decision to impose conditions requiring the payment of the road levies on the basis that the Shire had no power, or was not authorised, to impose such levies under the Local Government Act 1995 (WA), the Extractive Industries Local Law 2007, the Planning and Development Act 2005 (WA), or any other law.

The appellant's application before Jenkins J related to conditions imposed with respect to a number of sites over various periods of time. Jenkins J dismissed the appellant's application insofar as it related to the imposition of certain conditions in respect of certain sites on discretionary grounds concerning gross delay. There is no appeal from that part of her Honour's decision. As to the remainder of the appellant's application, her Honour dismissed it on the basis that the Shire had the power to impose conditions in respect of road levies. That aspect of her Honour's decision is challenged in this appeal. The details of the relevant sites, planning consents, extractive industry licence periods, conditions, and the alleged source of power for the imposition of such conditions, are set out in the Appendix to these reasons.

Background

From at least 2000 to the date of trial, the appellant carried on the business of quarrying gravel, sand and limestone from various sites within the Shire of Harvey. The quarrying was conducted from various sites within the local government area of the Shire, including relevantly for the purposes of the appeal:[2]
•lot 5 Wellesley Road, Wellesley;
•lot 67 Sandalwood Road, Benger;
•lot 11 Runnymede Road, Myalup; and
•lot 29 Tredrea Road, Myalup.
[2] See counsel for the appellant's submissions at ts 3.
The appellant applied for, and the Shire granted, planning consents and extractive industry licences for the appellant's quarries. Each of the planning consents imposed a condition that the appellant pay a road levy. Such conditions were also contained in, or incorporated into, the extractive industry licences issued to the appellant.
The relevant conditions described the road levies as being payable to the Shire to 'assist in', or to 'contribute towards', the 'upgrade and maintenance' of designated roads or, in the case of the Wellesley site, to assist in the 'upgrade and maintenance' of 'gazetted roads used for access to the pit'.
There was uncontested evidence,[3] and the judge found, in effect,[4] that each of the designated or gazetted roads referred to in the relevant conditions is a road, or pair of roads, which trucks must use to obtain access to relevant extractive sites, and along which trucks travel to obtain access to the network of roads on which they depend for distributing extracted material.
[3] Affidavit of S Hall sworn 5 June 2013, pars 14 - 15.
[4] Primary reasons [10] - [11].
The judge found, and it is not disputed, that each of the roads was a road for which the Shire had the care, control and management under s 55(2) of the Land Administration Act 1997 (WA), although the absolute property in the land comprising the road was vested in the Crown.
From June 2002 to December 2011, the appellant has paid the respondent the sum of $143,107.40 in road levies. Since December 2011, the appellant has paid further road levies to the respondent.

The appeal

Grounds of appeal

The appellant's grounds of appeal were to the effect that:
1.The primary judge erred in law in finding the respondent had the power to impose on the appellant, as a condition of extractive industry licences and planning consents, a requirement for direct financial contribution for the maintenance and upgrade of roads at a fixed rate per m3 of material extracted under the Local Government Act 1995; Extractive Industries Law; Planning and Development Act 2005; and the Town Planning Scheme.
2.In the alternative, if the respondent had the power to impose on the appellant as a condition of extractive industry licences and planning consents, a requirement for direct financial contribution for the maintenance and upgrade of roads at a fixed rate per m3 of material under the Extractive Industries Law, then the primary judge erred in law in finding the Extractive Industries Law was valid.
3.In the alternative, the primary judge erred in law by finding that on the material admitted into evidence the appellant conceded there was a nexus between a requirement to contribute to the maintenance and upgrading of roads and the road levies, calculated solely by reference to the volume of material extracted from the relevant quarry.
The appellant's written submissions, in support of these grounds, summarised the appellant's case in this appeal as follows:
•The road levies were a tax.
•The Shire did not have the power to impose a tax.[5]
[5] Written submissions, par 3, WB 6.
Despite this, in oral submissions counsel for the appellant (who had not signed the written submissions) said, in effect, that the appellant was not contending that the road levies were invalid because they were a tax.[6]
[6] ts 17 ‑ 18.
Counsel submitted that ground 1 contended, in effect, that there was no statutory power to impose the relevant conditions and that ground 2 did not 'really develop … any different proposition'.[7]
[7] ts 11.
The appellant submitted, in effect, that ground 3 would not require determination if the appellant failed in relation to grounds 1 and 2.[8] In this context, the appellant referred to the primary judge's finding that '[The appellant] does not assert that the levies do not have a nexus to the extractive industries carried on under the challenged licences and planning consents'.[9] It is to be noted that originally the appellant's originating motion[10] included allegations to the effect that the conditions were invalid because they were not for a proper planning purpose; they were not reasonably and fairly related to the activity permitted by the consent; and they were so unreasonable that no reasonable planning authority could have imposed them. These allegations reflected broadly the observations of McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd[11] concerning the requirements of a valid condition attached to the grant of planning permission. However, on the day of the hearing before her Honour, the appellant applied for, and was granted, leave to amend the originating motion to delete those allegations.
[8] ts 5, 11 - 12.
[9] Primary reasons [4].
[10] Originating motion, par 3, BB 30.
[11] Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [57].

In the primary court, the appellant's counsel also withdrew reliance on written submissions to the effect that 'a planning condition which imposes a fixed levy per cubic metre of extractive material cannot be said to arise from changes precipitated by [the appellant's] quarrying activities, as there is no nexus between the revenue collected and the additional expenditure that the [Shire] may incur as a result of the activities permitted by the Consents'.[12] The Shire withdrew certain evidentiary material in light of that concession.[13]
[12] Primary court ts 21 - 22, 24; GB 11 - 12, 14, read in the context of the appellant's submissions in support of an order nisi for a writ of certiorari 19/09/12, pars 37 - 38.
[13] Primary court ts 25; GB 15.
Counsel for the appellant also, in effect, informed this court that the appellant did not advance propositions to the effect that if there were a statutory power, then the exercise of that power was not fairly and reasonably related to the subject matter of the consent, and that the road levies were a tax and imposed for an ulterior purpose.[14]
[14] ts 12.
Accordingly, as the case was put in oral argument, the appellant's essential contention was that there was no statutory power which enabled the Shire to impose conditions requiring the payment of the road levies. The appellant's arguments appeared to be as follows.
First, the power of a local government to receive revenue or income was contained in s 6.15 of the Local Government Act 1995. Secondly, the 'colour and flavour' of s 6.15 was gained by reading s 6.16 and s 6.17 of the Local Government Act.[15]Thirdly, properly characterised, the conditions imposed a fee or charge which fell within s 6.16(2)(d) of the Local Government Act and, by s 6.17(3)(b), the fee could not exceed the cost of providing the service.[16] Fourthly, the conditions were not imposed pursuant to, nor did they constitute, 'any other source' authorised 'under another written law' for the purposes of s 6.15(1)(a)(vi) of the Local Government Act. In that regard, it was alleged that the Shire of Harvey District Planning Scheme No 1, and in particular cl 2.4.2 in relation to the imposition of conditions in connection with the approval of developments, 'would [have] need[ed] to be expressed in a way which overtly related to the raising of revenue or income to achieve what is otherwise open under [s] 6.15(1)[(a)](vi) [of the Local Government Act]'.[17]
[15] ts 10.
[16] ts 10.
[17] ts 11.
Fifthly, the appellant contended, in effect, that cl 3.1(2) and cl 3.1(5) of the Shire's Extractive Industries Local Law 2007, and in particular cl 3.1(5)(q) and cl 3.1(5)(r) thereof, provided an 'aid' to the appellant's construction of s 6.15 of the Local Government Act.[18] The contention appeared to be, in effect, that there is no specific power in cl 3.2.5 of the Shire's Extractive Industries Local Law to impose a condition in the form of road levies upon the grant of an extractive industry licence; that the specific powers in relation to that topic appeared in cl 3.1(5)(q) (and possibly cl 3.1(5)(r)), which required an agreement to be entered into with the Shire; and that those matters indicated that the legislature did not contemplate that a power to impose conditions under the Shire of Harvey District Planning Scheme No 1 could provide a 'source' of 'revenue or income' to a local government for the purposes of s 6.15(a)(vi) of the Local Government Act. That proposition was said to be augmented by the argument that cl 3.1(5)(q) of the Extractive Industries Local Law had its own independent source of statutory power in s 85 of the Road Traffic Act 1974 (WA) (as the Road Traffic Act 1974 then stood at the relevant time).
[18] ts 13.
The appellant also appeared to submit that the principal issues in the appeal were:
(a)whether the power to impose conditions under cl 2.4.2 of the Shire of Harvey District Planning Scheme No 1 was wide enough to include the imposition of conditions which would produce revenue or income for the local government; and
(b)if so, whether a condition imposed under cl 2.4.2 of the Shire of Harvey District Planning Scheme No 1 which raised income or revenue for the local government is a 'source' of revenue or income authorised by or under another written law within the meaning of s 6.15(1)(a)(vi) of the Local Government Act.[19]
[19] ts 7, 9.
The respondent contended that on the proper construction of the Local Government Act and the Shire of Harvey District Planning Scheme No 1, both of these questions should be answered in the affirmative.
Relevant provisions of the Local Government Act and the Extractive Industries Local Law are set out in the next section of these reasons.

Notice of contention

The respondent raised two points by way of notice of contention. They were to the effect that the primary judge's decision to dismiss the appellant's claims should also be upheld on the basis that the claims should, in any event, have been dismissed on discretionary grounds.
First, the Shire contended that the proceedings should have been dismissed on the basis that the appellant was guilty of gross delay in bringing the application for certiorari in relation to all of the sites in question, and that alternative remedies were available which were not pursued. In this regard, the Shire contended that when the proceedings were commenced (19 September 2012),[20] O 56 r 1(1) of the Rules of the Supreme Court 1971 (WA) imposed a six month time limit on the commencement of certiorari proceedings in respect of an inferior court or tribunal, or magistrate or justices. It contended that whilst O 56 r 1(1) did not in terms apply to the decisions under challenge,[21] it nevertheless provided a guide as to the exercise of the court's discretion to withhold relief. The Shire also contended that the Shire has suffered prejudice in that the appellant has paid contributions for a number of years without objection and those monies have been expended by the Shire. It further contended that the appellant had rights of review under s 252(1) of the Planning and Development Act 2005 (WA) and, prior to that, under s 8A of the Town Planning and Development Act 1928 (WA), which had not been exercised. It referred to Re Carey; Ex parte Exclude Holdings Pty Ltd,[22] in which Martin CJ (with whom Wheeler JA agreed) endorsed observations to the effect that where an alternative remedy is available, certiorari should only be granted where there are 'exceptional circumstances'.[23]
[20] Primary reasons [2].
[21] Reference was made to Kelvedon Pty Ltd v Shire of Northam [2011] WASC 288 [13].
[22] Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501.
[23] Re Carey [135] - [140].
In response, the appellant contended that its challenges went to the existence of the power and not as to the merits of the conditions; that certiorari proceedings are a proper and convenient avenue for determining whether, as a matter of law, the Shire had the power to impose the road levies; that the licences containing the conditions were all extant at the time the proceedings were commenced; that the question of power relates to instruments which are widely applied throughout the State and are not peculiar to the appellant's dealings with the Shire with respect to these particular quarries; and that the decision in Re Carey is distinguishable because there, the parties applying for certiorari were unsuccessful parties to primary proceedings in the State Administrative Tribunal, and the substance of the Chief Justice's criticism was that there should have been an appeal under s 105 of the State Administrative Tribunal Act 2004 (WA), rather than an application for prerogative relief.
The second point raised by the notice of contention was to the effect that in relation to each of lot 67 Sandalwood Road, Benger, and lot 29 Tredrea Road, Myalup (items 3 and 4 in the Appendix hereto), the condition in the extractive industry licence merely referred to the condition in the relevant planning consent, and that in consequence 'no good purpose would be served by issuing certiorari'. It was not clear that this added anything of substance either to the basis upon which the Shire resisted grounds 1 and 2 of the appeal, or to the first point in the notice of contention.

Local Government Act 1995 and Local Laws

Introduction and functions

The long title of the Local Government Act 1995 states:
An Act to provide for a system of local government in Western Australia, to amend the Local Government Act 1960 and for related purposes.
Part 1 is titled 'Introductory matters'. Section 1.3 provides relevantly:
1.3Content and intent
(1)This Act provides for a system of local government by -
…
(b)describing the functions of local governments;
…
and
(d)providing a framework for the administration and financial management of local governments and for the scrutiny of their affairs.
(2)This Act is intended to result in -
(a)better decision-making by local governments;
(b)greater community participation in the decisions and affairs of local governments;
(c)greater accountability of local governments to their communities; and
(d)more efficient and effective local government.
(3)In carrying out its functions a local government is to use its best endeavours to meet the needs of current and future generations through an integration of environmental protection, social advancement and economic prosperity.
Part 3 of the Local Government Act is titled 'Functions of local governments'.
Division 1 of pt 3 is titled 'General'. Section 3.1 provides:
3.1General function
(1)The general function of a local government is to provide for the good government of persons in its district.
(2)The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.
(3)A liberal approach is to be taken to the construction of the scope of the general function of a local government. (emphasis added)
Section 3.4 provides that the general function of a local government includes legislative and executive functions.

The making of local laws

Division 2 of pt 3 of the Local Government Act is titled 'Legislative functions of local governments'. Section 3.5(1) provides relevantly that a local government may make local laws under the Local Government Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under the Local Government Act. Section 3.5(3) provides that the power conferred under subsection (1) is in addition to any power to make local laws conferred on the local government by any other Act.
Section 3.7 provides that local laws made under the Local Government Act are inoperative to the extent that they are inconsistent with the Local Government Act or any other written law.
Subdivision 2 of div 2 of pt 3 of the Local Government Act is titled 'Local laws made under any Act'. Section 3.11 provides that subdivision 2 applies to local laws made under this Act and, unless a contrary intention appears in another Act, to local laws made under any other Act. Section 3.12 concerns the procedure for making local laws.

Local Government Act - financing local government activities

Division 5 of pt 6 of the Local Government Act is headed 'Financing local government activities'. Subdivision 1 of div 5 is headed, 'Introduction', and contains s 6.15. Subdivision 2 of div 5 of pt 6 of the Local Government Act is headed, 'Fees and charges'. It contains, relevantly, s 6.16, 6.17 and 6.18.
Sections 6.15 - 6.18 are relevantly set out below. The italicised parts are those referred to by the appellant's counsel or are otherwise of particular relevance to the appellant's arguments.
6.15.    Local government’s ability to receive revenue and income
(1)A local government may receive revenue or income -
(a)from -
(i)rates; or
(ii)service charges; or
(iii)fees and charges; or
(iv)borrowings; or
(v)investments; or
(vi)any other source,
authorised by or under this Act or another written law; or
(b)from -
(i)dealings in property; or
(ii)grants or gifts.
(2)Nothing in subsection (1)(a) authorises the making by a local government of a local law providing for the receipt of revenue or income by the local government from a source not contemplated by or under this Act.
6.16.    Imposition of fees and charges
(1)A local government may impose and recover a fee or charge for any goods or service it provides or proposes to provide, other than a service for which a service charge is imposed.
(2)A fee or charge may be imposed for the following -
(a)providing the use of, or allowing admission to, any property or facility wholly or partly owned, controlled, managed or maintained by the local government;
(b)supplying a service or carrying out work at the request of a person;
(c)subject to section 5.94, providing information from local government records;
(d)receiving an application for approval, granting an approval, making an inspection and issuing a licence, permit, authorisation or certificate;
(e)supplying goods;
(f)such other service as may be prescribed.
(3)Fees and charges are to be imposed when adopting the annual budget but may be -
(a)imposed during a financial year; and
(b)amended from time to time during a financial year.
6.17.    Setting level of fees and charges
(1)In determining the amount of a fee or charge for a service or for goods a local government is required to take into consideration the following factors -
(a)the cost to the local government of providing the service or goods; and
(b)the importance of the service or goods to the community; and
(c)the price at which the service or goods could be provided by an alternative provider.
(2)A higher fee or charge or additional fee or charge may be imposed for an expedited service or supply of goods if it is requested that the service or goods be provided urgently.
(3)The basis for determining a fee or charge is not to be limited to the cost of providing the service or goods other than a service -
(a)under section 5.96; or
(b)under section 6.16(2)(d); or
(c)prescribed under section 6.16(2)(f), where the regulation prescribing the service also specifies that such a limit is to apply to the fee or charge for the service.
(4)Regulations may -
(a)prohibit the imposition of a fee or charge in prescribed circumstances; or
(b)limit the amount of a fee or charge in prescribed circumstances.
6.18.    Effect of other written laws
(1)If the amount of a fee or charge for a service or for goods is determined under another written law a local government may not -
(a)determine an amount that is inconsistent with the amount determined under the other written law; or
(b)charge a fee or charge in addition to the amount determined by or under the other written law.
(2)A local government is not to impose a fee or charge for a service or goods under this Act if the imposition of a fee or charge for the service or goods is prohibited under another written law.
(emphasis added)

The Extractive Industries Local Law 2007

As noted earlier, the general function of the Shire is to provide for the good governance of persons in its district.[24] The scope of the general function is to be construed in the context of the Shire's other functions under any other written law.[25] A liberal approach is to be taken to the construction of the scope of the general function.[26] As discussed later in these reasons, the Shire of Harvey District Planning Scheme No 1 is a 'written law' for this purpose, and that Scheme makes express provision for the licensing of extractive industries by the Shire, including the nature and contents of any applications for 'Planning Consent' and 'Extractive Industry Licences'.[27]
[24] Section 3.1(1) of the Local Government Act.
[25] Section 3.1(2) of the Local Government Act.
[26] Section 3.1(3) of the Local Government Act.
[27] Clause 9.13.1 of the Shire of Harvey District Planning Scheme No 1.
On 9 November 2007, the Shire of Harvey's Extractive Industries Local Law 2007 (Local Law) was gazetted. It contains, relevantly, the following provisions.
Clause 1.1 defines 'licence' to mean a licence issued under this Local Law.
Clause 2.1 provides that a person must not carry on an extractive industry (a) unless the person is the holder of a valid and current licence; and (b) otherwise than in accordance with any terms and conditions set out in, or applying in respect of, the licence.
A person applying for a licence is required to provide:
•plans showing the location of existing and proposed thoroughfares or other means of vehicular access to and egress from the land, and to public thoroughfares in the vicinity of the land (cl 2.3(1)(a)(v)); and
•a works and excavation program containing details of the proposed number and size of trucks entering and leaving the site each day, and the route or routes to be taken by those vehicles (cl 2.3(1)(b)(viii)).
An applicant for a licence is also required to lodge copies of 'all land use planning approvals required under any planning legislation' (cl 2.3(1)(g)).
Clause 3.1 provided as follows. The italicised parts are those referred to or emphasised by the appellant:
Determination of Application
3.1 (1)The local government may refuse to consider an application for a licence that does not comply with the requirements of clause 2.3 and in any event shall refuse an application for a licence where planning approval for an extractive industry use of the land has not first been obtained.
(2)The local government may, in respect of an application for a licence -
(a)refuse the application; or
(b)approve the application-
(i)over the whole or part of the land in respect of which the application is made; and
(ii)on such terms and conditions, if any, as it sees fit.
(3)Where the local government approves an application for a licence, it shall-
(a)determine the licence period, not exceeding 10 years from the date of issue; and
(b)approve the issue of a licence in the form determined by the local government from time to time.
(4)Where the local government approves the issue of a licence, the CEO upon receipt by the local government of -
(a)payment of the annual licence fee, or the relevant proportion of the annual licence fee to 30 June, determined by the local government from time to time;
(b)payment of the secured sum if any, imposed under clause 5.1;
(c)the documents, if any, executed to the satisfaction of the CEO, under clause 5.1; and
(d)a copy of the public liability insurance policy required under clause 7.1(1);
shall issue the licence to the applicant.
(5)Without limiting subclause (2), the local government may impose conditions in respect of the following matters -
(a)the orientation of the excavation to reduce visibility from other land;
(b)the appropriate siting of access thoroughfares, buildings and plant;
(c)the stockpiling of material;
(d)the hours during which any excavation work may be carried out;
(e)the hours during which any processing plant associated with, or located on, the site may be operated;
(f)requiring all crushing and treatment plant to be enclosed within suitable buildings to minimise the emission of noise, dust, vapour and general nuisance to the satisfaction of the local government;
(g)the depths below which a person shall not excavate;
(h)distances from adjoining land or thoroughfares within which a person must not excavate;
(i)the safety of persons employed at or visiting the excavation site;
(j)the control of dust and wind-blown material;
(k)the planting, care and maintenance of trees, shrubs and other landscaping features during the time in which the extractive industry is carried out in order to effectively screen the area to be excavated and to provide for progressive rehabilitation;
(l)the prevention of the spread of dieback or other disease;
(m)the drainage of the excavation site and the disposal of water;
(n)the restoration and reinstatement of the excavation site, the staging of such works, and the minimising of the destruction of vegetation;
(o)the provision of retaining walls to prevent subsidence of any portion of the excavation or of land abutting the excavation;
(p)requiring the licensee to furnish to the local government a surveyor’s certificate each year, prior to the renewal fee being payable, to certify the quantity of material extracted and that material has not been excavated below the final contour levels outlined within the approved excavation programme;
(q)requiring the licensee to enter into an agreement with the local government by which it agrees to pay any extraordinary expenses incurred by the local government in repairing damage caused to thoroughfares in the district by heavy or extraordinary traffic conducted by or on behalf of the licensee under the licence;
(r)requiring the licensee to enter into an agreement with the local government in respect of any condition or conditions imposed under this Local Law; and
(s)any other matter for properly regulating the carrying on of an extractive industry.
Payment of Annual Licence Fee
3.2On or before 30 June in each year, a licensee shall pay to the local government the annual licence fee determined by the local government from time to time.

Legislative background

As noted earlier, on the appellant's case the principal issues in this appeal appeared to be:
(a)whether the power to impose conditions under cl 2.4.2 of the Shire of Harvey District Planning Scheme No 1 was wide enough to include the imposition of conditions which would raise revenue or income for the local government; and
(b)if so, whether a condition imposed under cl 2.4.2 of the Shire of Harvey District Planning Scheme No 1, which produces revenue or income for the Shire, is a 'source' of revenue or income 'authorised by or under … another written law', for the purposes of s 6.15(1)(a)(vi) of the Local Government Act.
The Local Government Act commenced on 1 July 1996. Its predecessor was the Local Government Act 1960 (WA). It was enacted against the background of the continuing operation of the Town Planning and Development Act 1928, discussed below.

The Town Planning and Development Act 1928 (1928 Planning Act)

Section 6(1) of the 1928 Planning Act provided, inter alia, that a town planning scheme may be made with respect to any land with the general object of improving and developing the land and securing suitable provision for traffic, transportation, factory and other areas, and of making suitable provision for the use of the land for building or other purposes, and for all or any of the purposes, provisions, powers or works contained in the First Schedule.
The First Schedule of the 1928 Planning Act included:
•classification of areas for trade, business, industry and commercial purposes (item 10);
•probable sites for quarries and any other private or public work or undertaking authorised by a statute (item 13);
•works ancillary to or consequent on the scheme (item 14);
•the recovery of expenses incurred in giving effect to the scheme (item 24);
•any matter necessary or incidental to town planning (item 28).
The First Schedule also provided that the mention of particular matters within the schedule should not be held to prejudice or affect the generality of any other matter.
By s 7(1), a local government may prepare or amend a town planning scheme with reference to any land within its district or with reference to any land within its district and other land within any adjacent district.
By s 7(3) of the 1928 Planning Act, a town planning scheme, once approved by the Minister and gazetted, had 'full force and effect as if it were enacted by this Act'.
By s 8(2)(c), special provisions could be inserted in a town planning scheme dealing with 'any special circumstances or contingencies for which adequate provision is not made by the general provisions'.
Section 10 of the 1928 Planning Act made provision, in effect, requiring that any developments be undertaken in accordance with a town planning scheme, including any condition imposed with respect to the development by the 'responsible authority' pursuant to the powers under the scheme.[28] The 'responsible authority' was defined in s 2 to mean, in effect, the local government responsible for the observance of a scheme or for the execution of any works in respect of which it was responsible under the scheme or under the Act.

The Shire of Harvey District Planning Scheme No 1 - statutory force

[28] Section 10(1)(b) of the 1928 Planning Act.

The Shire's District Planning Scheme No 1 (Scheme) was made under the 1928 Planning Act. It came into effect on 12 November 1996. As noted above, it thereupon had full force and effect as if it were enacted by the 1928 Planning Act.
The 1928 Planning Act has since been repealed by the Planning and Development Act2005.
Section 68 of the Planning and Development Act2005 (2005 Planning Act) provides relevantly, in effect, that the Scheme continues in force as a local planning scheme under the 2005 Planning Act and has effect as if it were enacted by that Act.
The validity of the Scheme is not in issue.

The Planning and Development Act 2005 (2005 Planning Act)

The long title to the 2005 Planning Act states that it is an Act 'to provide for a system of land use planning and development in the State and for related purposes'. The purposes of the 2005 Planning Act are set out in s 3. They include, relevantly, to provide for an efficient and effective land use planning system in the State, and to promote the sustainable use and development of land in the State.[29]
[29] 2005 Planning Act s 3(1)(b) and s 3(1)(c).
Section 69 deals with the general objects of a local planning scheme. It provides, relevantly:
(1)A local planning scheme may be made under this Act with respect to any land -
(a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and
(b)making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.
(2)With those objects a local planning scheme may provide for planning, replanning, or reconstructing, the whole or any part of the local planning scheme area.
(3)This section applies subject to section 256 and the regulations made under it and sections 257A and 257B.
Part 10 of the 2005 Planning Act is titled 'Subdivision and development control'. Division 5 of pt 10 is titled 'Development controls'.
Section 162(1) provides relevantly that, subject to the Act, where a planning scheme provides that development referred to in the planning scheme is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme applies unless the approval has been obtained and is in force under the planning scheme; and the development is carried out in accordance with the conditions subject to which the approval was granted.

Matters which may be dealt with by a planning scheme - sch 7

Schedule 7 of the 2005 Planning Act is titled 'Matters which may be dealt with by planning scheme'.
Clause 1 provides:
1.Generality preserved
The mention of a particular matter in this Schedule does not prejudice or affect the generality of any other matter.
Clause 5 provides, relevantly:
5.Roads, public works, reservation of land, provision of facilities
(1)Roads … and all objects … associated with, constructed or located on, below or adjacent to roads, intersections and corners.
(2)Public works and undertakings of any kind including lighting, water, sewerage, drainage, public transport and associated facilities on land and water.
Clause 8 provides, relevantly:
8.Development standards
Standards for the development of any class or kind of building, structure, [or] work … including standards in respect of -
…
(j)any other activity or requirement arising from the development.
Clause 9 provides:
9.Development controls
Approval, refusal or approval subject to conditions of any use or class or kind of development by a consideration of any matter to which the Act relates including the public interest. (emphasis added)
Clause 11 provides, relevantly, as follows:
11.Powers
…
(4)Powers to recover expenses incurred or to be incurred in implementing, enforcing and giving effect to the scheme.
Clause 13 provides, relevantly:
13.Carrying out scheme
(1)The carrying out of the scheme.
…
(3)The responsibilities of any persons or authorities to which this scheme relates.
Clause 15 provides, relevantly:
15.Policies and ancillary matters
…
(2)Any other matter necessary or incidental to the sustainable development or use of land.

Provisions of the Scheme

Clause 1.6 of the Scheme provides relevantly as follows:
1.6SCHEME OBJECTIVES
1.6.1The objectives of the Scheme are:
…
(iii)to encourage and control the continued orderly development of land within the Shire in a manner that enhances the quality of life of the Shire community;
(b)to ensure that the existing standard of roads … and other community services are sufficient for the additional demands proposed development would create.
1.6.2In considering applications for planning consent, subdivision or amendments to this Planning Scheme the Council shall have regard to the above objectives. (emphasis added)
Clause 1.9 provides relevantly, in effect, that subject to the defined terms contained in sch 13, the words and expression of the Scheme have their normal and common meaning. Schedule 13 contains the following definitions:
•'development' includes the clearing, excavation, filling and drainage of land;
•'industry' means, relevantly, (a) the winning processing or treatment of minerals and (b) the 'breaking up or demolition of any article or part of an article';
•'Industry‑Extractive' means, relevantly, an industry which involves the extraction of sand, gravel, limestone, clay, turf, soil, rock, stone minerals, or similar substance from the land.
Clause 2.1 provides relevantly:
2.1REQUIREMENTS FOR PLANNING CONSENT
2.1.1Except as hereinafter provided, no development shall be carried out on land within the Scheme area without the prior consent of the Council. Such consent is hereinafter referred to as 'planning consent'. (emphasis added)
Clause 2.2 provides relevantly:
2.2APPLICATION FOR PLANNING CONSENT
2.2.1Every application for planning consent shall be made in the form prescribed in Schedule 10 to the Scheme and shall be accompanied by such plans and other information as is required by the Scheme.
2.2.2Unless Council waives any particular requirements every application for planning consent shall be accompanied by:
…
(viii)the existing and proposed means of access … to and from the site.
Clause 2.4 provides, relevantly:
2.4DETERMINATION OF APPLICATIONS
…
2.4.2The Council having regard to any matter which it is required by the Scheme to consider, to the purpose for which the land is zoned or approved for use under the Scheme, to the purpose for which land in the locality is used, and to the orderly and proper planning of the locality and the preservation of the amenities of the locality, including land designated as a place of heritage significance, may refuse to approve any application for planning consent or may grant its approval unconditionally or subject to such conditions as it thinks fit.
…
2.4.5Where the Council approves an application for planning consent under this Scheme the Council may limit the time for which that consent remains valid.
(emphasis added)
Clause 2.7 provides relevantly:
2.7DEVELOPMENT OF LOTS ABUTTING UNCONSTRUCTED ROADS
…
2.7.2Council may as a condition of planning approval for a development application lodged in accordance with clause 2.7.1 of this Scheme, include a condition requiring the provision of a Constructed Road.
Clause 9.13 provides relevantly:
9.13EXTRACTIVE INDUSTRIES
9.13.1A person shall not carry on an extractive industry on any land within the Shire of Harvey without first having obtained an Extractive Industry License and Planning Approval from Council in the following manner-
…
(lxxxii)Application for an Extractive Industry License is to be lodged in accordance with the requirements of Council's Extractive Industry By-laws.
(b)Application for Planning Consent to undertake an extractive industry shall be lodged in accordance with the provisions- Clause 9.13.2.
9.13.2Unless otherwise specified by Council, all Applications for Planning Consent regarding extractive industry proposals shall be accompanied by [plans showing]:-
…
(lxxxiv)Property location and adjoining public roads.
…
(lxxxvii)Proposed access to property for cartage
…
(b)Four copies of an extraction programme containing details of the following-
…
(lxxxviii)The nature and estimated duration of the proposed excavation.
(ii)A schedule of estimated stages of the excavation programme and of the time periods within which it is proposed operations will be carried out.
(iii)Proposed cartage routes on public roads, access to the excavation site and the types of roads to be constructed. (emphasis added)
Part XI of the Scheme is titled 'Administration. Section 11.1 provides relevantly:
11.1POWERS OF THE SCHEME
The Council in implementing the Scheme has, in addition to all other powers vested in it, the following powers:
(cxxi) the Council may enter into any agreement with any owner, occupier or other person having an interest in land affected by the provisions of the Scheme in respect of any matters pertaining to the Scheme. (emphasis added)

The imposition of conditions - case law

In Lloyd v Robinson,[30] the High Court considered the question of the power of the Town Planning Board to impose conditions on an application for subdivisional development under the 1928 Planning Act. The developers owned an area south of Mandurah bordering the coast and comprising 605 acres. They had been progressively subdividing and selling portions of the land in accordance with approvals granted by the Board. A further application was made for the approval of a proposed subdivision of part of the unsubdivided land. The Board, and later the Minister, required, as a condition of the approval, that the developers transfer a certain area of land to the Crown free of cost for park and recreation purposes. The developers were also required to construct a service road parallel to a contiguous public road at the developer's cost. The developers challenged the imposition of the conditions. In relation to the condition requiring the developers to transfer part of the land, the developers' challenge was on two bases. The first was that the two areas concerned lay outside of the land which was the immediate subject of the application, and was thus said to be imposed for purposes extraneous to the subdivision and beyond the purposes to which the Board was legally entitled to have regard. The second was that to impose any condition requiring the transfer of land to the Crown free of cost was outside the contemplation of the Act because, in the absence of any provision for compensation, the Act could not be construed as intending to authorise what would amount to the confiscation of private property. The High Court rejected both contentions.
[30] Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142.
The High Court (Kitto, Menzies & Owen JJ) said with respect to the first contention:[31]
The assumption may be accepted that the statutory power to annex conditions to an approval of a subdivision does not extend to requiring the setting aside for public recreation of land which is so unrelated to the land to be subdivided, because of remoteness from it or some other circumstance, that there is no real connexion between the provision of the open space and the contemplated development of the area to be subdivided. But in the present case it must not be forgotten that the subdivision for which the respondents sought approval was one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up and placed on the market; and it was well within the limits of a proper understanding of the Board's functions under the Act to insist, at appropriate stages in the course of applications for approval to the constituent subdivisions, that open spaces be suitably located within the total area to satisfy reasonable requirements in respect of the total area. At what stages this should be done, what proportion of open space should be required, and where the open spaces should be, were questions within the discretionary judgment of the Board and, on appeal, of the Minister; and unless they were answered so unreasonably or improperly that the discretion could be said to have miscarried, there could be no ground upon which the courts would have authority to interfere.
[31] Lloyd (153).
Their Honours said with respect to the second contention:[32]
The second contention, on the other hand, found favour with the learned judge. With great respect we think it should not be sustained. If it were correct the Board could never give an approval of a subdivision conditionally upon the applicant's giving up land for any purpose, for roads, for public recreational areas, for foreshore reservation purposes, or for anything else, however relevant the condition might be to the observance of proper standards in local development. 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 … 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.
[32] Lloyd (153 - 154).
In Lloyd v Robinson, the developers were required to transfer certain land to the Crown as a condition of their proposed development. The relevant statutory provisions referred, simply, to approval 'subject to conditions',[33] and 'affix[ing] such conditions as the Board may think fit'.[34]
[33] Section 20 of the 1928 Planning Act.
[34] Section 24 of the 1928 Planning Act.
In Cardwell Shire Council v King Ranch Australia Pty Ltd,[35] an analogous but not identical provision of a Queensland statute was considered. In that case, the statutory scheme prohibited the imposition of any conditions which were 'not prescribed by the scheme, or by‑law or reasonably required by … the subdivision of the land'.[36] One of the conditions imposed was to require the developer to pay a sum of $25,000 'towards future costs involved' in replacing a certain bridge.[37] The evidence was that traffic generated by the proposed subdivision would significantly shorten the life of the existing bridge.[38] The developer challenged the imposition of the conditions. The condition was not prescribed by the scheme or a by‑law, and could accordingly only be imposed if it was 'reasonably required by … the subdivision of the land'. The High Court rejected the developer's challenge. Gibbs CJ, with whom the other members of the court agreed, said:[39]
The statutory test that has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the present is whether the conditions are reasonably required by the subdivision. This means that the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce - for example, in a case such as the present, the increased use of the road and of the bridge - and to impose such conditions as appear to be reasonably required in those circumstances.
In the present case, the learned District Court judge found, amongst other things, that traffic on the road and wear and tear on the bridge would be increased by the subdivision of the land. It is difficult to reconcile with that finding the statement that there is no requisite nexus, identification or relationship between the development and the purpose to which the contribution is to be put or the moneys expended on sealing Davidson Road. There seems to be an obvious connection between the effect of a subdivision which causes an increased use of roads and bridges and a condition that the subdivider should, by making a reasonable contribution, assist in defraying the costs incurred in meeting the consequences of the extra wear and tear that is expected.
[35] Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 53 ALR 632.
[36] Cardwell Shire Council (633 ‑ 634).
[37] Referred to as Condition (a).
[38] Cardwell Shire Council (634).
[39] Cardwell Shire Council (635).

The case of Western Australian Planning Commission v Temwood Holdings Pty Ltd[40] also dealt with a challenge by a developer of a condition requiring it to cede certain land to the Crown without payment of compensation by the Crown. The land in question had previously been reserved for the purpose of 'parks and recreation area' and was described as 'the foreshore reserve'. The majority approved and applied (relevantly for present purposes) the reasoning addressing the second contention in Lloyd.[41]
[40] Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30.
[41] Lloyd [45], [49] - [51] (McHugh J), [87], [116] (Gummow & Hayne JJ). A potential qualification to what was said in Lloyd, referred to by Gummow and Hayne JJ [119], is irrelevant for present purposes.
Each member of the court in Temwood (other than Heydon J) also expressly referred with evident approval to the observations of Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council.[42] With reference to the observations of Walsh J in Allen Commercial Constructions, Gummow and Hayne JJ said:[43]
His Honour [Walsh J] had pointed out that a power to attach conditions to development consents was to be understood as a power to impose conditions reasonably capable of being regarded as related to the purpose for which the functions of the responsible authority were being exercised; that purpose was to be ascertained from a consideration of the applicable legislation and town planning instruments rather than from 'some preconceived general notion of what constitutes planning'.
[42] Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490, 499 ‑ 500. See Temwood [56] (McHugh J), [93] (Gummow & Hayne JJ), [156] (Callinan J).
[43] Temwood [93].
The High Court case of Marsh v Shire of Serpentine‑Jarrahdale[44] also dealt with the validity of a condition imposed by a local government body. In that case, the Road Districts Act 1919 ‑ 1959 (WA) provided, by s 188, that a board had the power to enter private lands and take from them earth, stone, sand or gravel for road‑making or road repair work within the district and within a mile of the land so entered, providing that it paid compensation for any damage sustained by the owner of the land, including the value of the material taken.
[44] Marsh v Shire of Serpentine‑Jarrahdale (1966) 120 CLR 572.
Section 202 of that Act further provided:
Subject to this Act, a board may make by‑laws to regulate or prohibit the quarrying for stone, gravel, or other material, and other similar excavations on other than Crown land within townsites and prescribed areas, without the licence of the board.
Section 204 of the Road Districts Act permitted by‑laws to be made under the Act to fix the fees payable for and the duration of a licence. By‑law 7 provided:
The fee payable to the Board for any such licence shall be the sum calculated at the rate of 3d per cubic yard of the total area in respect of which any such licence may be granted.
The Road Districts Act was repealed by the Local Government Act 1960. The effect of the repeal was that any by‑law remained effective if two conditions were satisfied: (1) it had been validly passed under the repealed law; and (2) it was capable of being validly passed under the repealing statute.[45] As to the second matter, s 235(3) of the Local Government Act 1960 gave the council a power to make by‑laws regulating the carrying on of an extractive industry.
[45] Marsh (578).
In the proceedings in which the board claimed a fee imposed in accordance with by‑law 7, the board's statement of claim pleaded that the board required the payment of a 'royalty' of 3d. per cubic yard on quarried material for production. The quarry owner resisted the claim on the basis that the fee was invalidly imposed. The High Court upheld the challenge to the validity of the fee on the basis that it did not satisfy the first of the two conditions referred to in the preceding paragraph.
Barwick CJ, with whom the other members of the court agreed, said:[46]
The first question, therefore, is whether the Road Districts Act authorized a by‑law requiring for the issue of a licence to quarry upon privately owned land the payment of a sum rated to the total volume of material which the applicant for the licence could remove from the area of the land in respect of which he sought the licence.
It will be observed that the applicant for a licence under the by-law must furnish with his application a plan of the area to be quarried which presumably will enable a calculation to be made of the volume of material capable of being extracted by him from the area: see by-law 2. The fee payable for the issue of the licence is then a sum of 3d per cubic yard of that volume. In the instant case, this computation, we are told, would produce the figure of $625,000. But the practice of the defendant in the case of a licence to quarry material, as we are informed, is to require the licensee to report the amount of material from time to time removed by him from the area the subject of the licence and to pay the sum of 3d per cubic yard of the volume of material so removed as and when removed. This practice is reflected in the form of the plaintiff's statement of claim in which he alleges that the defendant requires the payment of a 'royalty of 3d per cubic yard on quarried material for production'. But this practice cannot control the interpretation of the statute nor can it alter the obligation imposed upon the licensee by the combined effect of the by‑laws and the licence to pay the total amount of the fee irrespective of the extent to which the licensee extracts any material under the licence.
It was submitted that the validity of the by‑law can be determined by placing the payment for which it provides into the category of a fee or into that of a tax, it being pointed out that in general a fee is a payment for or in respect of services rendered whereas a tax is not, but rather a means of obtaining revenue for governmental purposes. But, although the broad distinction between a fee for performing a service and a tax to raise revenue is quite valid, the instant question as to validity is not necessarily answered merely by designating this payment as one or the other. What is authorized under the description of a fee may very well be a tax and yet within the actual authority given. The question remains one of interpretation of the statute, bearing in mind its relevant purposes and the part the issue of a licence plays in them or with respect to them.
Here the land from which material may not be taken is private land. It is not in the ownership of the Crown or of the Board or Shire. The power to regulate quarrying is not incident to the ownership of the land or of the material which could be removed therefrom. It was as part of the Board's function as a local government body that the power was given to make by‑laws to regulate and control the removal of material from land by quarrying, a power to be exercised in the public interest of the neighbourhood. If the material is wanted for local government purposes, power to obtain it is elsewhere given by the statute: s 188. The grant or refusal of a licence is a mechanism by which such regulation and control of the quarrying activity may be effected. If it is in the public interest to grant it, the Board has no interest to refuse it. The payment of money for the Board's permission to exercise a right to quarry derived elsewhere than from the Board does not seem to me to be contemplated as part of the mechanism for regulating or controlling extractive industry or activity in the neighbourhood. Nor can I find in the statute anything to suggest that the statute intended that the Board by its grant of a licence should aggrandize its own funds or participate financially in the quarrying operation carried on by the licensee. To put the matter another way, to require the payment of a sum of money rated to the volume of material capable of extraction is not, in my opinion, in furtherance of any purpose or policy discoverable in the Act nor is it a contemplated method of regulating or controlling the activity of quarrying in the public interest. (emphasis added)
[46] Marsh (579 ‑ 580).

Disposition - grounds 1 and 2 of the appeal

The foregoing indicates that s 6.15 of the Local Government Act was enacted in the context that local government bodies had been entrusted for many years with the statutory responsibility for preparing and implementing town planning schemes and requiring developments to be undertaken, including where appropriate on conditions, in accordance with the relevant town planning scheme. The power to impose conditions was, and is, a power to impose conditions reasonably capable of being regarded as related to the purpose for which the functions of the responsible authority were being exercised, with that purpose to be ascertained from a consideration of the applicable legislation and town planning instruments.[47]
[47] Allen Commercial Constructions Pty Ltd (499 ‑ 500). See Temwood [56], [93], [156].
Section 69(1) of the 2005 Planning Act provides, in effect, that a local planning scheme may be made:
•with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and
•making provision for all or any of the purposes, provisions, powers or works referred to in sch 7.
Schedule 7 of the 2005 Planning Act refers, inter alia, to 'development controls', including approval, subject to conditions, of any development, by a consideration of 'any matter to which the Act relates, including the public interest' (cl 9).
The matters 'to which the Act relates' include the other purposes, provisions, powers or works in sch 7 of the 2005 Planning Act, including:
•roads (cl 5);
•the power to recover expenses incurred or to be incurred in implementing, enforcing and giving effect to the scheme (cl 11(4));
•the carrying out of the scheme (cl 13); and
•any matter 'incidental to the sustainable development or use of land' (cl 15(2)).
By cl 2.4.2 of the Scheme, the council may grant approval of development applications 'subject to such conditions as it thinks fit', having regard, inter alia, to:
•'any matter which it is required by the Scheme to consider'; and
•the orderly and proper planning of the locality and the preservation of the amenities of a locality.
By cl 1.6.2 of the Scheme, the matters which the Shire is required to consider are the objectives in cl 1.6.1, including:
•the orderly development of land within the Shire (cl 1.6.1(iii)); and
•ensuring that existing standards of roads and other community services are sufficient for the additional demands that the proposed development would create (cl 1.6.1(b)).
In this context, the power to impose conditions under cl 2.4.2 of the Scheme would be wide enough to require, in appropriate cases, the payment of a financial contribution to the revenue of the Shire for the maintenance and upgrade of roads. Some at least inferential support for that conclusion is found in the High Court decisions of Cardwell Shire Council, Lloyd, and Temwood, which tend to suggest that the power to impose conditions in the town planning context is one of considerable width and flexibility. The decision in Marsh indicates that the by‑law was invalid in that case not simply because it exacted a monetary contribution from the applicant and thereby raised revenue, but because the fee was not imposed in furtherance of any purpose or policy discoverable in the enabling statute.
A condition requiring the payment of money imposed under cl 2.4.2 of the Scheme, which was within power in the sense discussed earlier, would be a 'source' of 'revenue or income' for the purposes of s 6.15(1)(a)(vi) of the Local Government Act. The imposition of such a condition is 'authorised by or under' the Scheme. The word 'under' means 'by', 'in accordance with', 'pursuant to' and 'by virtue of'.[48] For the purposes of s 6.15(1)(a), a 'written law' includes the Scheme.[49]
[48] Definition of 'under', s 5 Interpretation Act 1984 (WA).
[49] Definition of 'written law' and 'subsidiary legislation' in s 5 of the Interpretation Act 1984 (WA); Town of Cottesloe v Multiplex (Marine Parade) Pty Ltd [2007] WASCA 113 [24]; Van der Feltz v City of Stirling [2009] WASC 142 [45].
Turning to the five arguments raised by the appellant referred to in [43] ‑ [44] above, the following observations may be made. First, s 6.15 refers to 'revenue or income' which a local government may 'receive'. It is to be read in light of s 6.7(1) which provides that all money 'received or receivable' by a local government is to be held and brought to account in its 'municipal fund', unless required by the Local Government Act, or any other written law, to be held in the local government's trust fund.[50] Secondly, s 6.15(1) of the Local Government Act identifies the sources from which revenue or income is receivable by a local government, but is not itself a provision empowering the local government to raise revenue or income. Thirdly, the words 'authorised by or under this Act or under another written law' apply to each of the sources identified in s 6.15(a)(i) - s 6.15(a)(vi). Fourthly, s 6.15(2) provides that nothing in s 6.15(1)(a), and in particular the reference to 'another written law', is to be taken as authorising a local law to provide for the receipt of revenue or income from a source not contemplated by, or under, the Local Government Act. Fifthly, s 6.15(1)(a)(vi) clearly demarcates 'any other source' of revenue or income from the other sources specified in s 6.15(1)(a)(i) ‑ s 6.15(1)(a)(v). The words 'any other source' in s 6.15(1)(a)(vi) are not to be somehow read down in light of the provisions in subdivision 2 of div 5 of pt 6 of the Local Government Act dealing with 'fees and charges', which are specifically mentioned in s 6.15(1)(a)(iii). Sixthly, the conditions imposed are not properly characterised as a 'fee or charge for … service' for the purposes of s 6.16. Insofar as the Shire provided a 'service', it was the administrative service in dealing with the application for an extractive industry licence. The fee for that administrative service is prescribed by item 3 of sch 2 of the Planning and Development Regulations 2009 (WA) pursuant to reg 47 of the Planning and Development Regulations 2009. The local government is, in effect, bound by the fees so prescribed by reason of s 6.18(1) of the Local Government Act. Seventhly, for the reasons given earlier, even though cl 2.4.2 of the Scheme did not 'overtly' state that conditions may be imposed which raise revenue, the power is wide enough to impose a condition which has that purpose and effect.
[50] As to the local government's 'trust fund', see s 6.9 of the Local Government Act.
The fifth matter raised by the appellant was that its construction of s 6.15 of the Local Government Act was aided by a consideration of cl 3.1 of the Shire's Local Law, and in particular cl 3.1(5)(q) and cl 3.1(5)(r) of the Local Law. That submission should not be accepted The following observations may be made.
First, cl 3.1(2) and cl 3.1(5) of the Local Law deal relevantly with the imposition of conditions on the grant of a licence to carry on an extractive industry. Before any such licence is granted, the applicant for the licence must first have obtained 'planning approval': cl 3.1(1) of the Local Law. Provision of evidence of 'planning approval' is also a necessary element of the application for a licence: cl 2.3(1)(g) of the Local Law. 'Planning approval' in this context is presumably a reference to a 'planning approval' under Scheme cl 9.13.1, which is the product of an application for 'Planning Consent': Scheme cl 9.13.1(b) read with the Scheme cl 2.1.1. Accordingly, cl 3.1(1) of the Local Law is speaking, relevantly, at a time when planning approval has first been obtained, including any planning consent granted on conditions under cl 2.4.2 of the Scheme. The scope of the power to impose conditions under cl 2.4.2 is to be ascertained by consideration of the Scheme, the provisions of which have full force and effect as if they were enacted in the 2005 Planning Act. The provisions of the Local Law cannot be used to construe cl 2.4.2 of the Scheme: Brayson Motors Pty Ltd v Federal Commissioner of Taxation;[51] and Master Education Services Pty Ltd v Ketchell.[52]
[51] Brayson Motors Pty Ltd v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651, 652 (Mason J).
[52] Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 [19].
Secondly, the types of conditions specifically enumerated in cl 3.1(5)(a) ‑ cl 3.1(5)(r) of the Local Law do not in any event purport to be exhaustive. That is made plain by cl 3.1(2)(b)(ii); the opening words of cl 3.1(5) and cl 3.1(5)(s) of the Local Law.
Thirdly, a local government may make local laws prescribing matters which are necessary or convenient to be prescribed for the purposes of performing its functions.[53] Its functions include its 'general function', which is to be construed in the context of its other functions under a written law,[54] including the implementation of the Scheme. If the power under cl 2.4.2 of the Scheme were wide enough to impose road levy‑type conditions, and the conditions imposed were within power, those conditions could then properly be mirrored as conditions imposed on the grant of an extractive industry licence pursuant to cl 3.1(2)(b)(ii) or cl 3.1(5)(s) of the Local Law. In that circumstance, the imposition of the condition would not be inconsistent with s 6.15(2) of the Local Government Act.
[53] Section 3.5(1) of the Local Government Act.
[54] Section 3.1(2) of the Local Government Act.
Finally, in this context, the appellant also sought to draw support from s 85 of the Road Traffic Act 1974. Section 85(1) of the Road Traffic Act provided, relevantly, in substance, that where:
•'it appears' to a local government which is liable or authorised or has undertaken to repair any road; and
•'extraordinary expenses' (compared with average expense of repairing in the neighbourhood) have been incurred by the local government in repairing a road; and
•the need for such repairs has arisen by reason of damage caused by heavy traffic, or extraordinary traffic thereon,
then the local authority may recover in court, from the person by whose order the traffic has been conducted, the amount of such expenses.

Section 85(2) provided:
Any person against whom expenses are or may be recoverable under this section may enter into an agreement with such local government … for the payment to it of a composition in respect of such traffic, and thereupon the person so paying the same shall not be subject to any proceedings under this section.
Clause 3.1(5)(q) of the Local Law does not merely give effect to s 85 of the Road Traffic Act, as the appellant appears to contend. Section 85 of the Road Traffic Act is both wider and narrower in its operation than cl 3.1(5)(q) of the Local Law. Section 85(1) and s 85(2) of the Road Traffic Act are wider in their operation in that they are not confined to users of roads connected with extractive industries. Section 85(2) of the Road Traffic Act is narrower than cl 3.1(5)(q) of the Local Law in that s 85(2) refers to a consensual agreement, whereas under cl 3.1(5)(q) (and cl 3.1(5)(r)) of the Local Law, the Shire may require or oblige an applicant for an extractive industry licence to enter into such an agreement as a condition of the licence. Insofar as cl 3.1(5)(q) and cl 3.1(5)(r) of a Local Law are within power (and the appellant did not suggest that they were not), they are in addition to a local government's rights under s 85 of the Road Traffic Act.

For these reasons the appeal should be dismissed. The power to impose conditions under cl 2.4.2 of the Scheme is wide enough to allow the imposition of conditions requiring financial contributions to the revenue or income of the Shire. The appellant does not contend that if the power existed, the conditions were imposed for an ulterior purpose or were not reasonably capable of being regarded as related to the purpose for which the functions of the Shire were being exercised. Nor could it so contend, given the way that it ran its case in the primary court, as discussed in [39] - [40] above.
It is accordingly unnecessary to address the notice of contention. For completeness, however, I would accept that the matters referred to by the appellant at [50] above indicate that, on balance, the appeal should not be dismissed on, in effect, discretionary grounds.

Conclusion

The appeal should be dismissed.
CORBOY J: I agree with McLure P

Appendix

No	Site	Date of planning consent	Extractive Industry licence period	Conditions imposed by the Planning Consent and in the Extractive Industry Licence	Provision allegedly authorising levy
1	Lot 5 Wellesley Road, Wellesley	5.01.2011	14.06.2011 to 14.06.2016	A levy of 0.50c per m3 of extracted material is to be paid on an annual basis to Council to assist in the upgrade and maintenance of gazetted roads used for access to the pit	Shire of Harvey Town Planning Scheme No 1 cl 2.1 Shire of Harvey Extractive Industries Local Law 2007 cl 3.1(5)(s)[55]
2	Lot 67 Sandalwood Road, Benger	10.11.2009	16.03.2010 to 16.03.2015	A levy of 0.50c per m3 of material extracted is to be contributed towards the upgrade and maintenance of Sandalwood Road	Shire of Harvey Town Planning Scheme No 1 cl 2.1 Shire of Harvey Extractive Industries Local Law 2007 cl 3.1(5)(s)
3	Lot 11 Runnymede Road, Myalup	16.08.2010	14.09.2010 to 14.09.2015	A levy of 0.50c per m3 of extracted material is to be paid to Council to assist in the upgrade and maintenance of Myalup and Runnymede Roads Note: the Extractive Industry Licence provides: 'Bonds payable' - 'Road reinstatement - 0.50c per m3 levy including asphalt Harvey/Myalup intersection', and to comply with the Planning Consent condition	Shire of Harvey Town Planning Scheme No 1 cl 2.1 Shire of Harvey Extractive Industries Local Law 2007 cl 3.1(5)(s)
4	Lot 29 Tredrea Road, Myalup	17.09.2009	19.03.2010 to 19.03.2015	A levy of 0.50c per m3 of extracted material, paid six (6) months in advance to Council to assist in the maintenance and upgrade of Taranto and Tredrea Roads Note: The Extractive Industry Licence required compliance with the Planning Consent condition	Shire of Harvey Town Planning Scheme No 1 cl 2.1 Shire of Harvey Extractive Industries Local Law 2007 cl 3.1(5)(s)

[55] Made under the Local Government Act 1995 s 3.5