City of Bayswater v Minister for Family and Children's Services & Ors
[2000] WASCA 151
•1 JUNE 2000
CITY OF BAYSWATER -v- MINISTER FOR FAMILY AND CHILDREN'S SERVICES & ORS [2000] WASCA 151
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 151 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:168/1999 | 4 FEBRUARY 2000 | |
| Coram: | KENNEDY J ANDERSON J STEYTLER J | 1/06/00 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | CITY OF BAYSWATER MINISTER FOR FAMILY AND CHILDREN'S SERVICES MINISTER FOR WORKS DALCON CONSTRUCTION PTY LTD (ACN 009 239 589) |
Catchwords: | Local Government Town planning Metropolitan Region Scheme Public works proposed by Crown on Crown land zoned "Urban" under Scheme Whether Crown bound to submit application to commence and carry out development to local authority Statutes Interpretation Direction in subsequent Act that it is to be construed in conjunction with earlier Act Earlier Act providing that it bound the Crown except where otherwise provided Provision in earlier Act that nothing therein to be deemed to interfere with the right of the Crown to undertake any public works Subsequent Act providing that Crown bound by the Scheme Whether Crown seeking to undertake public works bound by Planning Scheme made under the subsequent Act |
Legislation: | Metropolitan Region Town Planning Scheme Act 1959, s 3, s 45 Town Planning and Development Act 1928, s 32, s 35 |
Case References: | Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57 Cadbury-Fry-Pascall Proprietary Limited v The Federal Commissioner of Taxation (1944) 70 CLR 362 City of Cockburn v Boral Resources (Australia) Ltd (1997) 97 LGERA 232 Georgoussis v The Medical Board of Victoria [1957] VR 671 Phillips v Parnaby [1934] 2 KB 299 Read v Joannon (1890) 25 QBD 300 The Canada Southern Railway Company v International Bridge Company (1883) 8 AC 723 West Midlands Joint Electricity Authority v Pitt [1932] 2 KB 1 Bropho v Western Australia (1990) 171 CLR 1 Butler v Attorney General (Vict) (1961) 106 CLR 268 Costa v Shire of Swan [1983] WAR 22 Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526 Foster v Aloni [1951] VLR 481 Goodwin v Phillips (1908) 7 CLR 1 Institute of Patent Agents v Lockwood [1894] AC 347 Pratt v Cook, Son and Company (St. Pauls) Limited [1939] 1 KB 364 Saraswati v The Queen (1991) 172 CLR 1 South-Eastern Drainage Board (SA) v The Savings Bank of South Australia (1939) 62 CLR 603 Ulowski v Miller [1968] SASR 277 University of Western Australia v City of Subiaco (1980) 52 LGRA 360 Williams v Tooth & Co Ltd (1939) 39 SR (NSW) 46 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CITY OF BAYSWATER -v- MINISTER FOR FAMILY AND CHILDREN'S SERVICES & ORS [2000] WASCA 151 CORAM : KENNEDY J
- ANDERSON J
STEYTLER J
- Appellant (Plaintiff)
AND
MINISTER FOR FAMILY AND CHILDREN'S SERVICES
First Respondent (First Defendant)
MINISTER FOR WORKS
Second Respondent (Second Defendant)
DALCON CONSTRUCTION PTY LTD (ACN 009 239 589)
Third Respondent (Third Defendant)
Catchwords:
Local Government - Town planning - Metropolitan Region Scheme - Public works proposed by Crown on Crown land zoned "Urban" under Scheme -
(Page 2)
Whether Crown bound to submit application to commence and carry out development to local authority
Statutes - Interpretation - Direction in subsequent Act that it is to be construed in conjunction with earlier Act - Earlier Act providing that it bound the Crown except where otherwise provided - Provision in earlier Act that nothing therein to be deemed to interfere with the right of the Crown to undertake any public works - Subsequent Act providing that Crown bound by the Scheme - Whether Crown seeking to undertake public works bound by Planning Scheme made under the subsequent Act
Legislation:
Metropolitan Region Town Planning Scheme Act 1959, s 3, s 45
Town Planning and Development Act 1928, s 32, s 35
Result:
Appeal allowed
Representation:
Counsel:
Appellant (Plaintiff) : Mr D W McLeod
- First Respondent (First Defendant) : Mr R M Mitchell
Second Respondent (Second Defendant) : Mr R M Mitchell
Third Respondent (Third Defendant) : No appearance
Appellant (Plaintiff) : McLeod & Co
First Respondent (First Defendant) : State Crown Solicitor
Second Respondent (Second Defendant) : State Crown Solicitor
Third Respondent (Third Defendant) : No appearance
Case(s) referred to in judgment(s):
Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57
Cadbury-Fry-Pascall Proprietary Limited v The Federal Commissioner of Taxation (1944) 70 CLR 362
(Page 3)
City of Cockburn v Boral Resources (Australia) Ltd (1997) 97 LGERA 232
Georgoussis v The Medical Board of Victoria [1957] VR 671
Phillips v Parnaby [1934] 2 KB 299
Read v Joannon (1890) 25 QBD 300
The Canada Southern Railway Company v International Bridge Company (1883) 8 AC 723
West Midlands Joint Electricity Authority v Pitt [1932] 2 KB 1
Case(s) also cited:
Bropho v Western Australia (1990) 171 CLR 1
Butler v Attorney General (Vict) (1961) 106 CLR 268
Costa v Shire of Swan [1983] WAR 22
Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526
Foster v Aloni [1951] VLR 481
Goodwin v Phillips (1908) 7 CLR 1
Institute of Patent Agents v Lockwood [1894] AC 347
Pratt v Cook, Son and Company (St. Pauls) Limited [1939] 1 KB 364
Saraswati v The Queen (1991) 172 CLR 1
South-Eastern Drainage Board (SA) v The Savings Bank of South Australia (1939) 62 CLR 603
Ulowski v Miller [1968] SASR 277
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Williams v Tooth & Co Ltd (1939) 39 SR (NSW) 46
(Page 4)
1 KENNEDY J: Pursuant to O 31 r 2(1) of the Rules of the Supreme Court, a case was stated for the opinion of the Court. The facts set out in the case were 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 function as responsible authority in respect of the determination of applications for approval to commence
(Page 5)
- 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 section 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."
2 The question of law raised for the opinion of the Court was as follows:
"Does section 32 of the TP&D Act operate to excuse the requirement of approval referred to in paragraph 9 above?"
- The question was answered in the affirmative by a Judge of the Supreme Court and the appellant (plaintiff) has appealed against that decision.
3 The Town Planning and Development Act 1928 was enacted for the purpose of rationalising the planning and development of land within the State for urban, suburban and rural purposes. It makes provision in s 7 for the preparation of town planning schemes by local authorities. A local authority, after advertising and consulting with such public authorities and persons as appear to it to be likely to be affected by a scheme, is required to submit the scheme to the Minister for Planning. When approved by the Minister and published in the Gazette, the scheme, pursuant to s 7(3) of the Act, "shall have full force and effect as if it were enacted by this Act".
4 Section 35 of the Town Planning and Development Act provides:
"35. Except where otherwise provided, this Act shall bind the Crown".
- There is an exception in s 32 of the Act, in the following terms:
"32. 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:
(Page 6)
- 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)."
5 The Metropolitan Region Town Planning Scheme Act 1959 provides for the planning and development of land within the metropolitan region. It is concerned with the broader aspects of town planning, and, by s 34, town planning schemes made by local authorities within the metropolitan region are required to be consistent with the provisions of the Metropolitan Region Scheme. Applications for approval to commence and carry out development on land zoned under Pt III of the Metropolitan Region Scheme within the district of a local authority are, as noted in par 7 of the case stated, required to be directed for decision to the local authority as the delegate of the Western Australian Planning Commission.
6 The Metropolitan Region Scheme was made by the Metropolitan Region Planning Authority and, in accordance with s 31 of the Metropolitan Region Town Planning Scheme Act 1959, was approved by the Minister and by the Governor, published in the Government Gazette on 9 August 1963, and, as required by s 32, the scheme, together with the report of the Authority on the objections to the scheme made to it, was laid before each House of Parliament. It was open to either House to disallow the scheme; but neither did so. Accordingly, under s 32(2) of the Act, the Scheme had effect as though its provisions were enacted by the Act. By s 45 of the Metropolitan Region Town Planning Scheme Act,
(Page 7)
- which was inserted in 1979, it is provided that the scheme (not, it may be noted, the Act) binds the Crown.
7 Standing alone, there could be no doubt that the Crown was bound to seek approval to commence the development in question. By s 3 of the Metropolitan Region Town Planning Scheme Act, however, it is provided:
"3. 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."
8 The Town Planning and Development Act provides for an exception to the Crown being bound by that Act in relation to public works. In contrast, the Metropolitan Region Town Planning Scheme Act provides in absolute terms that the Crown shall be bound by the Metropolitan Region Scheme. In my view, it is, to that extent, inconsistent with the Town Planning and Development Act and therefore prevails over s 32 of the former Act. As a consequence, approval for the respondents to commence development under the Metropolitan Region Scheme was required from the local authority.
9 I would allow the appeal and answer the question in the negative.
10 ANDERSON J: The parcel of land at 77-79 Grand Promenade, Bedford is Crown land vested in the Minister for Family and Children's Services. It is within the City of Bayswater. The land is zoned "Urban" under the Metropolitan Region Scheme. It is the address of the Bedford Youth Hostel, an institution which is financed and run by the Department for Family and Children's Services. The department has commenced to further develop the land by refurbishing the hostel for the department's purposes. Pursuant to the provisions of cl 10 of the Metropolitan Region Scheme, it is provided that:
"10. Except as otherwise provided in this Scheme, no development of any land within the metropolitan region shall be commenced or continued without the written approval of the responsible authority in addition to any other permission or approval that may otherwise be required by law."
(Page 8)
11 No development approval was sought with respect to the refurbishment. The City of Bayswater is the responsible authority within the meaning of cl 10, by delegation from the Western Australian Planning Commission. There is no dispute that, but for the operation of s 32 of the Town Planning and Development Act1928, the development was prohibited without the approval of the City of Bayswater. Section 32 of the Town Planning and Development Act 1928 is in the following terms:
"32. Savings
Nothing in this Act shall be deemed to interfere with the right of … 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)."
13 The question that was submitted to Murray J under O 31 r 2(1) of the Supreme Court Rules was:
(Page 9)
- "Does s 32 of the TP&D Act operate to excuse the requirement of approval [contained in the Metropolitan Region Scheme]?"
14 Murray J answered that question "Yes" and the City appeals from that decision.
15 In its terms, s 32 only refers to matters "in this Act", that is, in the Town Planning and Development Act1928; and anything in any other legislative instrument which might interfere with the right of the "Government of the State" to undertake public works (such as the need to obtain planning approvals) is, prima facie, not within the ambit of s 32. Prima facie, therefore, s 32 of the Town Planning and Development Act1928 cannot be relied on by a public authority to avoid the general requirement in cl 10 of the Metropolitan Region Scheme to obtain planning approval with respect to public works.
16 However, regard must be had to s 3 of the Metropolitan Region Town Planning Scheme Act 1959 and that section provides:
"3. Construction
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."
17 His Honour held that this section meant that the two Acts were to be regarded as one. He said:
" … the effect of … s 3 is clear. The provisions of the [Metropolitan Region Town Planning Scheme Act 1959] and those of the [Town Planning and Development Act1928] are to be read together as if they [are] one enactment … "
18 Thus, the Metropolitan Region Town Planning Scheme Act 1959 and hence the Metropolitan Region Scheme is to be read as if it contained s 32 of the Town Planning and Development Act1928.
19 I respectfully agree with this conclusion. As is pointed out in Pearce & Geddes "Statutory Interpretation in Australia" 4th ed par 7.26:
(Page 10)
- "It is not uncommon to find in an Act a provision saying that it is to be read as one with, or to be read and construed with, or to be incorporated with, another Act. The effect of such a provision is, in effect, to mould the two Acts into one - to require the incorporated Act notionally to be written into the incorporating Act. Accordingly, each of the provisions of the two Acts must be construed as if they were included in the one Act - unless there is such a manifest discrepancy that it can be seen that the later of the two Acts impliedly repealed part of the earlier."
20 Cases in which it has been held that this is the effect of such a provision are conveniently collected in Georgoussis v The Medical Board of Victoria [1957] VR 671, especially at 675. In The Canada Southern Railway Company v International Bridge Company (1883) 8 AC 723 at 727 Lord Selborne LC said that the effect of a provision that Acts shall be construed together as if one were incorporated in the other, is that "we must construe every part of each of them as if it had been contained in one Act, unless there is some manifest discrepancy, making it necessary to hold that the later Act has to some extent modified something found in the earlier Act".
21 In Cadbury-Fry-Pascall Proprietary Limited v The Federal Commissioner of Taxation (1944) 70 CLR 362, Williams J said, at 388:
"The Assessment Act deals with and provides the machinery for the imposition of taxation but it does not contain any provisions prescribing any rate of tax and does not of itself impose any taxation. It is not therefore an Act within the ambit of s 55 of the Constitution. The tax is imposed by the Tax Act, which prescribes the rates of taxation. This Act incorporates the Assessment Act and provides that the two Acts are to be read together. My own view, to which I adhere, as to the effect of such a section, is stated in Perpetual Trustee Co (Ltd) v Wittscheibe (1940) 40 SR (NSW) 501, at 510 as follows:
'In In re Woods' Estate; Ex parte Her Majesty's Commissioners of Works & Buildings the Court of Appeal held that if a subsequent Act bring into itself by reference some of the clauses of a former Act, the legal effect of that is to write those sections into the new Act just as if they had been actually printed into it …'
(Page 11)
- The Tax Act and the incorporated Assessment Act is, therefore, a single Act and one which falls within this section of the Constitution."
22 It is worth referring to Phillips v Parnaby [1934] 2 KB 299 as an example of the application of this principle of construction. By the Weights and Measures Act 1889 there was a requirement that vendors of coal must deliver with the coal a ticket in a prescribed form and an offence was created if the quantity of coal delivered was less than the quantity expressed in the ticket. By a subsequent Act dealing with the sale of food and entitled Sale of Food (Weights and Measures) Act 1926 it was provided that a prosecution "under this Act" must be brought within 28 days. By a section of the later Act, it was provided that the Act "shall be construed as one with" the Weights and Measures Act 1889. A prosecution was brought under the earlier Act, but not within the time prescribed in the later Act. It was held that, although in the later Act the time limit was expressed to apply to prosecutions "under this Act", because the two Acts were to be read together the limitation provision in the later Act was transposed into the earlier Act. In applying Lord Selborne's statement in Canada Southern Railway Co v International Bridge Co (supra), Lord Hewart CJ said at 303:
"In the present case it is quite clear that the Legislature has thought fit to provide, by s 15 of the Act of 1926, that that Act is to be construed as one with the … Weights and Measures Act, 1889. As I have already said, there is no manifest discrepancy between the provisions of the sub-sections with which we are concerned here so as to prevent effect being given in a proper case to s 12, sub-s 6, of the Act of 1926 where what is being dealt with is the sale, not of food, but of coal."
23 There are other cases which stand for the proposition that the words "this Act" in expressions such as "in this Act" or "under this Act" must be construed to mean the combined Acts: West Midlands Joint Electricity Authority v Pitt [1932] 2 KB 1, especially at 43 - 44; Read v Joannon (1890) 25 QBD 300; Georgoussis v Medical Board of Victoria (loc cit).
24 In the latter case, Smith J said, at 675:
" … when an Act is passed containing a direction that it shall be read and construed as one with an earlier Act expressions such as 'under this Act' appearing in the earlier Act must, in the absence of some indication of an intention to the contrary, be
(Page 12)
- given an extended application as from the date of the later Act so as to cover, as from that date, things done under the later Act."
25 This may not be so where the earlier Act is incorporated into the later Act if the effect would be to amend retrospectively the earlier Act: Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57. But that is not this case. In this case, the later Act is incorporated into the earlier Act and the incorporation does not have the effect of retrospectively amending the earlier Act.
26 What this means is that the Metropolitan Region Town Planning Scheme Act 1959 must be taken to include s 32 of the Town Planning and Development Act1928 as if that section was printed in it, prima facie, at any rate; and as if the opening words of s 32 "Nothing in this Act … " meant "Nothing in the combined Acts … ".
27 It would follow from this, as Murray J held, that any provisions in the Metropolitan Region Town Planning Scheme Act 1959 which required development approvals must be construed as if s 32 of the Town Planning and Development Act1928 applied with respect to those provisions.
28 The prima facie effect of this is that the government's right to undertake public works is not restricted by anything in the two Acts and is, therefore, not restricted by the requirement of development approval contained in cl 10 of the Metropolitan Region Scheme.
29 It was submitted on behalf of the City that this conclusion ignores the proviso to s 3 of the Metropolitan Region Town Planning Scheme Act 1959, the effect of which is to give paramountcy to that Act in the event of any conflict or inconsistency between the provisions of that Act and those of the Town Planning and Development Act1928.
30 In my opinion, the conflict or inconsistency which is referred to in s 3 is a conflict or inconsistency which would prevent the two Acts being read as one. It is this kind of inconsistency or "manifest discrepancy" which is referred to in the leading authorities on this subject.
31 In this case, the conflict or inconsistency is said to arise in the following way. Clause 10 of the Metropolitan Region Scheme, containing the prohibition on development without approval, is made applicable to the Crown by s 45 of the Metropolitan Region Town Planning Scheme Act 1959 which provides:
(Page 13)
- "The Scheme binds the Crown."
32 It was submitted that the effect of s 45 is that cl 10 of the Metropolitan Region Scheme binds the minister. If and to the extent that s 32 of the Town Planning and Development Act1928 excuses the Minister from the prohibition in cl 10 of the Scheme, it is in conflict and inconsistent with s 45. This inconsistency must, therefore, be resolved by giving paramountcy to s 45 and cl 10.
33 In my opinion, if the words "conflict" and "inconsistency" are given the narrower meaning already referred to, that is, conflict or inconsistency in the sense of manifest discrepancy preventing the two Acts being treated as one, there is no conflict or inconsistency between s 32 of the Town Planning and Development Act1928 and s 45 of the Metropolitan Region Town Planning Scheme Act 1959. There is no reason why a provision such as s 32, which is an excepting provision, cannot stand with full effect in an Act which contains a general prohibition. To exempt the Minister from the requirement in the Metropolitan Region Scheme to obtain development approval with respect to public works is not to deny that the Metropolitan Region Scheme binds the Crown.
34 Counsel for the appellant, Mr McLeod, sought to rely on the qualification in Georgoussis v Medical Board of Victoria (supra) to the effect that expressions such as "in this Act" appearing in the earlier Act will only be given an extended application so as to cover both Acts if there is no indication of a contrary intention. He submitted that s 32 does contain an indication that it was not to apply to the Metropolitan Region Scheme, but was only applicable to the Town Planning and Development Act1928 and to local government schemes made under that Act.
35 I can see nothing in s 32 to support this submission. There is nothing in the operative part of the section, that is, the first 46 words, which renders the section inapplicable to the Metropolitan Region Town Planning Scheme Act 1959 or to the Metropolitan Region Scheme. As to the provisos, counsel relies especially on the requirement that the public works are to be undertaken "in such 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 … ". It was submitted by Mr McLeod that these words do not refer to the Metropolitan Region Scheme made pursuant to the Metropolitan Region Town Planning Scheme Act 1959; that "town planning scheme" and "district" clearly refer only to town
(Page 14)
- planning schemes made by municipalities with respect to municipal districts.
36 I would not accept this submission. The Metropolitan Region Scheme is a town planning scheme within the meaning of s 32. It is described as a town planning scheme in the definition of "Metropolitan Region Scheme" in s 6 of the Metropolitan Region Town Planning Scheme Act 1959. There is no difficulty in regarding the metropolitan region as a "district" for planning purposes, within the meaning of s 32. Neither does the reference to "responsible authority" in par (a) of the proviso to s 32 lead to the conclusion that the section is exclusively concerned with local government schemes.
37 Counsel for the appellant relied on the decision of this Court, differently constituted, in City of Cockburn v Boral Resources (Australia) Ltd (1997) 97 LGERA 232 as authority for the proposition that s 3 of the Metropolitan Region Town Planning Scheme Act 1959 did not have the effect that the two Acts must be read as one legislative instrument and did not have the effect that the expression "in this Act" in s 32 of the Town Planning and Development Act1928 must be taken to extend to both Acts. That case involved an application for a mining lease to mine for silica sand on land vested in the City of Cockburn and classified as a C-class reserve. The land was reserved for parks and recreation under the Metropolitan Region Scheme. The City objected to the grant of the mining lease and one of its arguments was that planning approval would have to be obtained under the Metropolitan Region Scheme prior to the commencement or carrying out of mining operations. For its part, the company relied on s 120(1) of the Mining Act 1978 which provided, inter alia, that "the provisions of any town planning scheme in force under the Town Planning and Development Act1928 … shall not operate to prohibit or affect the granting of a mining tenement or the carrying out of any mining operations authorized by this Act"; and submitted that in virtue of s 3 of the Metropolitan Region Town Planning Scheme Act 1959 the reference in s 120(1) of the Mining Act to the Town Planning and Development Act1928 should be taken to be a reference to both that Act and the Metropolitan Region Town Planning Scheme Act 1959. Hence, s 120(1) of the Mining Act excepted mining operations not only from requirements in the Town Planning and Development Act1928 as regards development approvals, but also from the requirement in the Metropolitan Region Scheme to obtain planning approval. Of this submission, Steytler J (with whose judgment Pidgeon and Wallwork JJ agreed) said, at 236:
(Page 15)
- "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 s120 of the Mining Act or for any purpose other than that to which it specifically refers."
38 As can be seen, the Court was not concerned in that case to construe the two planning Acts, but was concerned with the proper construction of s 120(1) of the Mining Act . I do not see how the case assists the appellant as to the proper construction of the two planning Acts.
39 In my opinion, Murray J was correct to answer "Yes" to the question submitted to him and I would dismiss this appeal.
40 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by Anderson J. I will consequently repeat the facts and circumstances giving rise to this appeal only insofar as is necessary in order to explain the different conclusion at which I have arrived.
41 The question giving rise to the appeal is that of whether either the first or the second respondent, each of whom is a Minister of the Crown in Western Australia, was required by cl 10 of the Metropolitan Region Scheme ("the Scheme") to obtain the written approval of the appellant, the City of Bayswater, being the delegate of the Western Australian Planning Commission, for the Crown's proposed development of the Bedford Youth Hostel in Bayswater. As Anderson J has pointed out, the answer to that question depends upon the answer to the question whether s 32 of the Town Planning and Development Act 1928 ("the Planning Act") operated to excuse the Crown from obtaining that approval. The learned Judge
(Page 16)
- below held that it did and the City of Bayswater contends that he erred in doing so.
42 There is no doubt, if the Metropolitan Region Town Planning Scheme Act 1959 ("the Scheme Act") was to be looked at in isolation, that the Crown was required to obtain the City of Bayswater's written approval. That is because s 45 of the Scheme Act provides that the Scheme binds the Crown. The consequence of that is that the Crown, in common with any other developer of land within the metropolitan region, may not, by virtue of cl 10 of the Scheme (which has, by virtue of s 32(2) of the Scheme Act, effect as if enacted by that Act), either commence or continue a development without the written approval of the responsible authority, save insofar as the Scheme itself provides otherwise.
43 Nor is there any doubt, as Anderson J has pointed out, that s 32 of the Planning Act could not, if that Act was looked at in isolation, be relied upon as excusing the requirement expressed in cl 10 of the Scheme.
44 Section 32 of the Planning Act reads as follows:
"32. Savings
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
(Page 17)
- ensure that the undertaking, construction, or provision of, or the taking of land for, the work will comply with paragraph (a)."
45 It is apparent from the opening line of that section, if it is read in isolation, that s 32 provides that nothing in the Planning Act itself shall be deemed to interfere with the right of those therein referred to to undertake, construct or provide any public work.
46 The question, on the appeal, consequently comes down to that of what is the effect of s 3 of the Scheme Act when read together with the other provisions to which reference has been made. That section reads as follows:
"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."
47 I agree with each of the learned Judge below and Anderson J that the effect of this section is that the provisions of the Planning Act and those of the Scheme Act have to be read together as if they were one enactment. However it does not seem to me, with respect, that this conclusion leads, in turn, to the conclusion that s 32 of the Planning Act operates to excuse the requirement, imposed upon the Crown by cl 10 of the Scheme when read with s 45 of the Scheme Act, to obtain written approval for the proposed development.
48 I have said above that the effect of s 45 of the Scheme Act and cl 10 of the Scheme is that the Crown may not either commence or continue a development within the metropolitan region without the written approval of the responsible authority, save insofar as the scheme itself provides otherwise. It seems to me that if s 32 of the Planning Act is to be read as having the effect, contended for by the respondents, that the Crown, in one or more of its emanations, has the right without interference, including interference in the form of the requirement imposed by cl 10 of the Scheme, to undertake, construct or provide any public work then that section would necessarily be in conflict or inconsistent with the provisions of s 45 of the Scheme Act and, by virtue of s 3 thereof, to that extent inoperative.
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49 It follows, in my opinion, that the appeal should be allowed and that a negative answer should be substituted for that given by the learned Judge below in answer to the question put to him.
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