City of Bayswater v Minister for Family and Children's Services

[1999] WASC 198

CITY OF BAYSWATER -v- MINISTER FOR FAMILY AND CHILDREN'S SERVICES & ORS [1999] WASC 198

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 198
Case No:	CIV:1549/1999	Heard:	30 AUGUST 1999
Coram:	MURRAY J	Delivered:	18/10/99
No of pages:	10	Judgment Part:	1 of 1
Result:	Question answered in the affirmative
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Parties:	CITY OF BAYSWATER MINISTER FOR FAMILY AND CHILDREN'S SERVICES MINISTER FOR WORKS DALCON CONSTRUCTION PTY LTD (CAN 009 239 589)
Catchwords:	Town planning "Public work" proposed by Crown on Crown land zoned "urban" under Metropolitan Region Scheme Crown bound by legislation Crown not required to obtain approval of development from responsible authority
Legislation:	Metropolitan Region Town Planning Scheme Act 1959 (WA) s3, s45 Town Planning and Development Act 1928 (WA) s32, s35
Case References:	Bropho v WA (1990) 171 CLR 1 City of Cockburn v Boral Resources (Australia) Ltd (1997) 97 LGERA 232 Daniele v Shire of Swan (1998) 20 WAR 164 Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 1 FCR 409 Butler v Attorney General (Vic) (1961) 106 CLR 268South-eastern Drainage Board (SA) v The Savings Bank of South Australia (1939) 62 CLR 603 Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526 Georgoussis v The Medical Board of Victoria [1957] VR 671 Goodwin v Phillips (1908) 7 CLR 1 Saraswati v The Queen (1991) 172 CLR 1 University of WA v City of Subiaco (1980) 52 LGRA 360

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : CITY OF BAYSWATER -v- MINISTER FOR FAMILY AND CHILDREN'S SERVICES & ORS [1999] WASC 198 CORAM : MURRAY J HEARD : 30 AUGUST 1999 DELIVERED : 18 OCTOBER 1999 FILE NO/S : CIV 1549 of 1999 BETWEEN : CITY OF BAYSWATER

Plaintiff

AND

MINISTER FOR FAMILY AND CHILDREN'S SERVICES
First Defendant

MINISTER FOR WORKS
Second Defendant

DALCON CONSTRUCTION PTY LTD (CAN 009 239 589)
Third Defendant

Catchwords:

Town planning - "Public work" proposed by Crown on Crown land zoned "urban" under Metropolitan Region Scheme - Crown bound by legislation - Crown not required to obtain approval of development from responsible authority

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Legislation:

Metropolitan Region Town Planning Scheme Act 1959 (WA) s3, s45

Town Planning and Development Act 1928 (WA) s32, s35

Result:

Question answered in the affirmative

Representation:

Counsel:

Plaintiff : Mr D W McLeod
First Defendant : Mr R M Mitchell
Second Defendant : Mr R M Mitchell
Third Defendant : Mr R A Zilkens

Solicitors:

Plaintiff : McLeod & Co
First Defendant : State Crown Solicitor
Second Defendant : State Crown Solicitor
Third Defendant : Zilkens & Co

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

Bropho v WA (1990) 171 CLR 1
City of Cockburn v Boral Resources (Australia) Ltd (1997) 97 LGERA 232
Daniele v Shire of Swan (1998) 20 WAR 164

Case(s) also cited:

Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 1 FCR 409
Butler v Attorney General (Vic) (1961) 106 CLR 268South-eastern Drainage Board (SA) v The Savings Bank of South Australia (1939) 62 CLR 603
Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526
Georgoussis v The Medical Board of Victoria [1957] VR 671


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Goodwin v Phillips (1908) 7 CLR 1
Saraswati v The Queen (1991) 172 CLR 1
University of WA v City of Subiaco (1980) 52 LGRA 360

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1 MURRAY J: The protagonists in this matter were the plaintiff on one side and the first and second defendants on the other. Counsel for the third defendant was given leave to retire when it announced that it would abide the decision of the Court. The matter before the Court was a special case stated pursuant to the Rules of the Supreme Court O 31 r 2(1) as follows:

"1. Land known as 77-79 Grand Promenade, Bedford, and more particularly described as Reserve 35552 (formerly being Lot 38 on Plan 1146(2)) and being the whole of the land comprised in Crown Land Record Volume 3047 Folio 971 ('the Land') is, and was at all material times, Crown land vested in the First Defendant. The Land is located within the district of the Plaintiff.

2. The Land is zoned 'Urban' under Part III of the Metropolitan Region Scheme ('the MRS'). A true copy of the text of the MRS is annexure 1 to this Special Case.

3. The Second Defendant, on behalf of the Director General of the Department for Family and Children's Services ('the DGDFCS'), proposes to conduct a refurbishment of the Bedford Youth Hostel which is located on the Land. That refurbishment constitutes a development for the purpose of the MRS.

4. The Third Defendant has been engaged by the Second Defendant to undertake the refurbishment of the Youth Hostel on the Land for the Second Defendant.

5. The refurbishment of the Youth Hostel on the Land commenced on or about 29 March, 1999.

6. The Youth Hostel on the Land, when refurbished, is to be used for the purposes of fulfilling the functions of the DGDFCS under the Child Welfare Act 1947 and the Community Services Act 1972. The refurbishment of the Youth Hostel on the Land is a 'public work' for the purposes of section 32 of the Town Planning and Development Act 1928 ('TP&D Act') and the Public Works Act 1902.

7. The Plaintiff is the delegate of the Western Australian Planning Commission in respect of the Commission's

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function as responsible authority in respect of the determination of applications for approval to commence and carry out development on land zoned under Part III of the MRS within the Plaintiff's district.

8. Neither the First Defendant nor the Second Defendant has sought or obtained approval to commence or continue the refurbishment of the Youth Hostel on the Land from the responsible authority under the MRS.

9. Leaving aside s 32 of the TP&D Act, the First and/or Second Defendant would be required to obtain the approval of the Plaintiff under the MRS to commence or continue the refurbishment of the Youth Hostel on the Land.

UPON the above stated facts, the following question of law is raised for the opinion of the Court under Order 31 Rule 2(1) of the Rules of the Supreme Court:

Does s 32 of the TP&D Act operate to excuse the requirement of approval referred to in par 9 above?"

2 The Public Works Act 1902 (WA) contains in s 2 a definition of "public work" which includes, most importantly, every work which the Crown or any Minister of the Crown or any local government is authorised to undertake under any Act.

3 The earlier of the two Acts with which the Case is concerned is the Town Planning and Development Act 1928 (WA) (the "TP Act"). Under that Act s 7, a local government may prepare a town planning scheme with reference to land within its district. The Act prescribes a procedure for making such a scheme. Under s 7(3):

"A town planning scheme or amendment to a town planning scheme, when approved of by the Minister and published in the Gazette, shall have full force and effect as if it were enacted by this Act."

The effect of that provision is clear. It is that a town planning scheme, when properly made and promulgated, is to have legal effect as if it were part of the TP Act.

4 The same process is provided in the Metropolitan Region Town Planning Scheme Act 1959 (WA) (the "MRS Act"), s 30 and s 31. Under

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those sections the Metropolitan Region Scheme (the "MRS") was made by the Metropolitan Region Town Planning Authority to provide for planning matters in respect of land within the metropolitan region by a process which, in similar fashion to that under the TP Act, includes the obtaining of Ministerial and governmental approval and publication in the Gazette, and provides for the Scheme to be subject to disallowance by the Parliament. Upon completion of that process, under s 32(2), the MRS has effect "as though its provisions were enacted by this Act". Again it can be seen that the effect of that process is to give the MRS the force of law as if it were part of the MRS Act, but not of course as if it were part of the TP Act, unless regard is had to another provision to which I shall shortly come.

5 However, before doing so I observe that as the Case makes clear, we are here concerned with the plaintiff's contention that the work proposed to be carried out by way of refurbishment of the Bedford Youth Hostel is subject to approval to commence or continue the work being obtained from the plaintiff as the delegate of the Western Australian Planning Commission in respect of the land, zoned "urban" under Part III of the MRS. Speaking generally, such approval for the "development" of land (which this work would undoubtedly be: Daniele v Shire of Swan (1998) 20 WAR 164. 168-9) would be required under clauses 10 and 24 of the MRS. Those provisions would apply except as otherwise provided in the Scheme, eg by cl 16 under which land reserved under the Scheme (which this is not) which is owned by or vested in a public authority may be used without the approval of the responsible authority generally for the purpose for which it is reserved under the Scheme or for any purpose for which the land may lawfully be used by the public authority.

6 What then is the position with respect to the Crown and its emanations, such as the Ministers who are the first and second defendants? Are they required to obtain approval from the plaintiff for the development which the work in question comprises? That is in effect the question posed by the Case stated.

7 The MRS Act, s 45 provides simply that "The Scheme binds the Crown." When that section was enacted in 1979 by amendment to the MRS Act and before the decision of the High Court in Bropho v WA (1990) 171 CLR 1, it was thought that the law was that the Crown was not bound by its statutory enactments unless from such a statute the intention that it should be so bound was made manifest; hence s 45 to perform that function.

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8 The TP Act s 35 is a similar provision applying "except where otherwise provided". Section 32 provides:

"Nothing in this Act shall be deemed to interfere with the right of Her Majesty, or the Governor, or the Government of the State or a local government to undertake, construct, or provide any public work, and to take land for the purposes of that work: Provided that -

(a) so far as, in the interests of the public, it is reasonably possible, every such work shall be undertaken, constructed, or provided, and all land taken for the purpose of such work shall be taken, in such a manner as to be in keeping with the design and intent of every town planning scheme, and so as not to destroy the amenity of any town planning scheme made and approved under this Act and having effect in the district where, and at the time when, such work is undertaken, constructed, or provided, or such land is taken; and

(b) the responsible authority shall be consulted at the time when a proposal for any public work, or for the taking of land therefor, is being formulated to ensure that the undertaking, construction, or provision of, or the taking of land for, the work will comply with paragraph (a)."

9 Clearly if that section applies to this case the first and second defendants might undertake, construct and provide the public work in question without interference by the need to obtain any approval before doing so. The same would apply to public works undertaken by local government and to the taking of land for the purposes of that work. But the section only refers to and makes inapplicable the provisions of the TP Act including, of course, those in an enacted town planning scheme, as the procedural provisos to s 32 themselves make clear by their reference to the provisions of town planning schemes made and approved under the Act and the requirement for consultation with the responsible authorities concerned to administer such schemes. Relative to this case, the TP Act, s 32 by itself can have no capacity to ameliorate the effect of the MRS Act, s 45 and the need to obtain approval from the responsible authority under the MRS.

10 However, the MRS Act, s 3 provides:

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"This Act shall be construed in conjunction with the Town Planning Act, as if the provisions of this Act were incorporated with and formed part of that Act, but where the provisions of this Act are in conflict or are inconsistent with the provisions of that Act, the provisions of this Act prevail to the extent to which they are so in conflict or inconsistent."

11 The plaintiff argues that this section does not have the effect of making the MRS Act part of the TP Act. It relies upon the judgment of Steytler J, with whom Pidgeon and Wallwork JJ agreed, in City of Cockburn v Boral Resources (Australia) Ltd (1997) 97 LGERA 232. That case concerned an application for a mining lease before a Mining Warden in respect of land which was reserved for parks and recreation under the MRS. The Mining Act 1978 (WA) s 120(1) provided that in considering an application for a mining lease, the Warden was to take into account the provisions of any town planning scheme under the TP Act, but there was no reference to taking into account the provisions of the MRS and it was held that the Warden was not obliged by the Mining Act to do so.

12 At 236 Steytler J said:

"It seems to me, with respect, that s 120(1) of the Mining Act cannot be read so as to include the Scheme Act. It is quite clear in its terms, referring only to town planning schemes in force under the Planning Act and to local laws in force affecting the use of the land concerned. It would, effectively, require a rewriting of that section in order to read it as including a reference to a Metropolitan Region Scheme under the provisions of the Scheme Act.

The position in that regard is not, in my opinion, altered by the provisions of s 3 of the Scheme Act, relied upon by the Warden, which provides inter alia that the Scheme Act is to be construed in conjunction with the Planning Act as if its provisions were incorporated with and formed part of that Act. That section is no more than a guide to construction of the Scheme Act only and does not constitute that Act as part of the Planning Act for the purposes of s 120 of the Mining Act or for any purpose other than that to which it specifically refers."

13 In my opinion the plaintiff misconstrues his Honour's remarks at that point. His Honour was saying that the effect of s 3 is to incorporate the

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provisions of the MRS Act into the TP Act for the purposes of construing those Acts, but not for the purposes of construing a quite separate Act such as the Mining Act. However, in my opinion, for present purposes the effect of the MRS Act, s 3, is clear. The provisions of the MRS Act and those of the TP Act are to be read together as if they were one enactment, except in a case of conflict or inconsistency between the provisions so amalgamated in which case the provisions of the MRS Act prevail to the extent of the conflict or inconsistency.

14 That means, in my view, that the legislation governing the need to obtain approval of the public work as a development under the MRS is governed by the provision of s 45 of the MRS Act and s 35 and s 32 of the TP Act, provided reading all those sections together does not produce such conflict or inconsistency as to require the provisions of the TP Act to give way in favour of s 45 of the MRS Act.

15 However, the effect of reading all those sections together as if the MRS Act, s 45 were incorporated with and formed part of the TP Act is in the construction of the MRS Act to qualify the operation of the MRS Act, s 45 in the way provided by the TP Act, s 35 and therefore by the terms of s 32 of that Act. That is sufficient by itself to preclude the conclusion that the provisions of the MRS Act, s 45 are so in conflict or inconsistent with the provisions of the TP Act as to require the decision that the MRS Act, s 45 prevails so as to brook no exception to the proposition that the provisions of the MRS Act bind the Crown. In my opinion, the TP Act, s 32 does apply to this case. The Crown is bound by the MRS Act generally, subject to the specific exception in s 32.

16 The position therefore is that the requirement for approval of development under the MRS which would otherwise apply to this work may not apply so as to interfere with the right of the government unfettered by the requirement to seek such approval to undertake, construct, or provide the public work in question. In my opinion the answer to the question posed by the Case stated is "Yes".

17 Of course, s 32 will apply in its terms and the provisos in par (a) and par (b) will apply in relation to the design and intent of the relevant town planning scheme and the need to consult with the authority responsible for the administration of that scheme. In my opinion the effect of the MRS Act, s 3 is that not only do those provisos operate with respect to the relevant town planning scheme of an affected local government, but also with respect to the MRS, the definition of which in s 6 of the MRS Act is by s 3 of that Act incorporated in the TP Act so as to define for the

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purposes of s 32 the MRS as "a town planning scheme for the metropolitan region or any part thereof". The effect of that in my opinion would be to make the MRS a town planning scheme within the meaning of s 32 of the TP Act.

18 The effect of that conclusion, of course, is to place the State Government and local governments on the same footing that no formal approvals are required for them to undertake, construct or provide any public work and to take land for the purposes of that work. Of course, as s 32 is limited in that way, the appropriate approvals would be required for work carried out by or on behalf of the State Government or a local government which was not properly described as a public work. I appreciate, so far as the MRS is concerned, the effect of s 32 as I have construed the legislation, is a broad application of the section which would overlap the provisions of the MRS, cl 16 and cl 24.